Exhibit 10.9
EXECUTION VERSION
RIGHT OF FIRST OFFER
AGREEMENT
Made By
Trump Entertainment Resorts,
Inc.
(formerly known as Trump Hotels
& Casino Resorts, Inc.)
and
Trump Entertainment Resorts
Holdings, L.P.
(formerly known as Trump Hotels
& Casino Resorts Holdings, L.P.)
both having an address at
1000 Boardwalk at Virginia
Atlantic City
New Jersey 08401
(collectively, the “ Company
”)
to
Trump Organization
LLC
having an address at
725 Fifth Avenue
New York, New York 10022
(“ Developer ”)
Dated as of May 20, 2005
RIGHT OF FIRST OFFER
AGREEMENT
REGARDING
DEVELOPMENT
THIS RIGHT OF FIRST OFFER
AGREEMENT (this “
Agreement ”), dated as of May 20, 2005 (the “
Effective Date ”), made between TRUMP ENTERTAINMENT
RESORTS, INC. (formerly known as Trump Hotels & Casino Resorts,
Inc.), a Delaware corporation, TRUMP ENTERTAINMENT RESORTS
HOLDINGS, L.P. (formerly known as Trump Hotels & Casino Resorts
Holding, L.P.), a Delaware limited partnership (collectively, the
“ Company ”), each having an address at 1000
Boardwalk at Virginia, Atlantic City, New Jersey 08401 and Trump
Organization LLC, a New York limited liability company having an
address at 725 Fifth Avenue, New York, New York 10022 (“
Developer ”). Trump Entertainment Resorts, Inc. and
Trump Entertainment Resorts Holdings, L.P. shall be jointly and
severally liable for all obligations of the Company under this
Agreement.
WITNESSETH
:
WHEREAS , the Company and its Affiliates are in the
business of acquiring, developing, owning and operating casinos,
casino hotels, hotels and related hospitality lodging (“
Projects ” and each individually, a “
Project ”);
WHEREAS , on November 21, 2004, Trump Hotels &
Casino Resorts, Inc. and certain of its subsidiaries (collectively,
the “ Debtors ”) filed voluntary petitions under
chapter 11 of title 11 of the United States Code, 11 U.S.C.
§§ 101-1330, in the United States Bankruptcy Court for
the District of New Jersey (the “ Bankruptcy Court
”), under case numbers 04-46898 through 04-46925
(JHW);
WHEREAS , on April 5, 2005, by written order, the
Bankruptcy Court confirmed the Debtors’ Second Amended Joint
Plan of Reorganization, dated as of March 30, 2005 (the “
Plan ”);
WHEREAS , pursuant to and in accordance with the Plan,
the Company has agreed to provide Developer with an irrevocable
right of first offer during the term of this Agreement to provide
certain development services with respect to certain Projects of
the Company as set forth below;
NOW, THEREFORE
, in consideration of the premises
and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and
Developer hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. “
Agreement ” shall have the meaning set forth in the
recitals hereto.
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SECTION 1.2. “
Affiliate ” shall mean, with respect to any specified
Person, any other Person that directly, or indirectly through one
or more intermediaries, (1) Controls, (2) is under the Control of,
or (3) is under common Control with, such specified
Person.
SECTION 1.3. “ Applicable
Project ” shall have the meaning set forth in Section 2.2
hereto.
SECTION 1.4. “ Applicable
Service ” shall have the meaning set forth in Section 2.3
hereto.
SECTION 1.5. “ Business
Days ” shall mean all days, excluding Saturdays, Sundays
and all days observed by either the State of New York or the
Federal Government as legal holidays.
SECTION 1.6. “ Company
” shall mean, collectively, Trump Entertainment Resorts, Inc.
(formerly known as Trump Hotels & Casino Resorts, Inc.) and
Trump Entertainment Resorts Holdings, L.P. (formerly known as Trump
Hotels & Casino Resorts Holding, L.P.), and each of such
parties’ successors and assigns.
SECTION 1.7. “ Company
Party ” shall have the meaning set forth in Section
2.1.
SECTION 1.8. “ Construction
Management Services ” shall mean services customarily
performed by a construction manager on projects similar to an
Applicable Project.
SECTION 1.9. “ Control
” or “ control ” shall mean (i) direct or
indirect ownership of more than fifty percent (50%) of the
outstanding voting stock of a corporation or other majority equity
interest if not a corporation, or (ii) the power or authority to
control the management or affairs of a Person, whether by reason of
(a) direct or indirect ownership of a particular portion of the
total equity interest in such Person, (b) the terms of a contract,
or (c) another means.
SECTION 1.10. “ Covered
Project ” shall have the meaning set forth in Section
2.1.
SECTION 1.11. “ Debtor
” shall have the meaning set forth in the recitals
hereto.
SECTION 1.12. “
Developer ” shall mean Trump Organization LLC and any
permitted successor or assign to this Agreement.
SECTION 1.13. “ Development
Management Services ” shall mean the services customarily
performed by a development manager or project manager on projects
similar to an Applicable Project.
SECTION 1.14. “ Developer
Contract Price ” shall have the meaning set forth in
Section 2.3 hereto.
SECTION 1.15. “ Effective
Date ” shall have the meaning set forth in the recitals
hereto.
SECTION 1.16. “ General
Contracting Services ” shall mean services customarily
performed by a general contractor on projects similar to an
Applicable Project.
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SECTION 1.17. “ Negotiation
Period ” shall have the meaning set forth in Section 2.3
hereto.
SECTION 1.18. “ Other
Party ” shall have the meaning set forth in Section 2.3
hereto.
SECTION 1.19. “ Other Party
Contract Price ” shall have the meaning set forth in
Section 2.3 hereto.
SECTION 1.20. “ Person
” or “ person ” shall mean any natural
person or persons, a partnership, a limited liability company, a
corporation and any other form of business or legal association or
entity.
SECTION 1.21. “ Plan
” shall have the meaning set forth in the recitals
hereto.
SECTION 1.22. “ Project
” shall have the meaning set forth in the recitals
hereto.
SECTION 1.23. “ Proposed
Agreement ” shall have the meaning set forth in Section
2.2 hereto.
SECTION 1.24. “ Response
Notice ” shall have the meaning set forth in Section 2.3
hereto.
SECTION 1.25. “ Response
Notice Expiration Date ” shall have the meaning set forth
in Section 2.3 hereto.
SECTION 1.26. “ ROFO
” shall have the meaning set forth in Section 2.3
hereto.
SECTION 1.27. “ ROFO
Notice ” shall have the meaning set forth in Section 2.2
hereto.
SECTION 1.28. “ Termination
Date ” shall have the meaning set forth in Section 4.1
hereto.
SECTION 1.29. “ Transaction
Costs ” shall have the meaning set forth in Section 2.3
hereto.
ARTICLE II.
RIGHT OF FIRST
OFFER
SECTION 2.1. Subject to the terms of
this Article II , the Company shall not engage, or permit or
suffer any of its Affiliates Controlled by the Company to engage,
any party to perform Development Management Services, Construction
Management Services or General Contracting Services with respect to
any development, redevelopment, renovation, improvement,
alteration, construction, restoration or rehabilitation of a
Project (excluding any such development, redevelopment, renovation,
improvement, alteration, construction, restoration or
rehabilitation for which another party has been engaged as of the
date hereof pursuant to a binding agreement) with an initial budget
of in excess of Thirty Five Million ($35,000,000) Dollars
(excluding capital expenditures made in the ordinary course of
business and in connection with good
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maintenance practice) (a “ Covered
Project ”), without, in any such case, first instituting
the procedure described in this Article II so long as
Developer is reasonably qualified to perform any Applicable
Services (as defined below) on such Covered Project. For the
purposes of this Agreement, the Company or any such Affiliate
Controlled by the Company that is performing such Covered Project
shall be known as, as applicable, the “ Company Party
” and the Company shall cause each Company Party to comply
with the terms of this Agreement. For the purposes of determining
whether the initial budget exceeds Thirty Five Million
($35,000,000) Dollars, all work related to the applicable project
that would customarily be performed by the same development
manager, construction manager and/or general contractor, as the
case may be, in accordance with good construction practice, shall
be considered together and the Company shall be obligated to give
Developer a ROFO Notice with respect to such entire project if the
aggregate initial budget exceeds Thirty Five Million ($35,000,000)
Dollars.
SECTION 2.2. The Company shall
institute the procedure described in this Article II by
giving notice to Developer of a Company Party’s intention to
develop, redevelop, renovate, improve, alter, construct, restore or
rehabilitate a Covered Project (the “ ROFO Notice
”), which ROFO Notice shall (i) describe the Covered Project
or Covered Projects to which the particular ROFO Notice applies
(such Covered Project or Covered Projects being referred to herein
as the “ Applicable Project “), (ii) have
annexed thereto the most developed budget, plans and specifications
for the Applicable Project or other description in lieu thereof
(including an architect’s preliminary drawing relating to
such Applicable Project to the extent available), (iii) set forth
the date that the Company Party reasonably expects the Applicable
Project will commence and be substantially complete, (iv) specify
if the Company Party intends to seek to engage parties to perform
the General Contracting Services, Construction Management Services
and/or Development Management Services for the Applicable Project
and (v) be accompanied by a proposed draft general contracting
agreement, construction management agreement and/or development
management agreement, as applicable (each, a “ Proposed
Agreement ”). Upon receipt of the ROFO Notice, Developer
shall have the right to request all additional reasonable
information and materials relating to the Applicable Project
available to the Company Party that Developer shall reasonably
require and the Company agrees to cooperate with Developer in all
reasonable respects in connection with providing the such
information and materials. In the event that the Company Party
intends on engaging any party for any Applicable Services with
respect to a pre-development or pre-construction phase (excluding
any exploratory or investigative work, which services shall not be
subject to this Agreement), which is being conducted separately and
prior to the corresponding development or construction stage, then
the Company shall give Developer a ROFO Notice with respect to such
stage without diminishing the Company’s obligation to give a
subsequent ROFO Notice with respect to the construction or
development stage of the same project.
SECTION 2.3. Developer shall have
the right (the “ ROFO ”) to give the Company
Party notice stating that Developer desires to submit a bid to the
Company Party to perform any or all of (i)
