Exhibit 10.7
EXECUTION VERSION
AMENDED AND RESTATED
TRADEMARK LICENSE
AGREEMENT
AMENDED AND RESTATED TRADEMARK
LICENSE AGREEMENT (the “Agreement”), made as of this
20 th day of May, 2005 (the
“Effective Date”) by and among Donald J. Trump, an
individual with an address at 721 Fifth Avenue, New York, New York
10022 (“Trump”), Trump Entertainment Resorts Holdings,
L.P., a Delaware limited partnership formerly known as Trump Hotels
& Casino Resorts Holdings, L.P., with a principal place of
business at 1000 Boardwalk at Virginia, Atlantic City, New Jersey
08401 (“Trump Holdings”) and, solely for purposes of
Sections 5.3, 5.4, 9, 10.2.1 and 11 hereof, Trump Entertainment
Resorts, Inc., a Delaware corporation formerly known as Trump
Hotels & Casino Resorts, Inc., with a principal place of
business at 1000 Boardwalk at Virginia, Atlantic City, New Jersey
08401 (“Company”) and the Trump Taj Mahal Associates,
LLC, a New Jersey limited liability company, with a principal place
of business at 1000 Boardwalk at Virginia, Atlantic City, New
Jersey 08401, Trump Plaza Associates, LLC, a New Jersey limited
liability company, with a principal place of business at the
Boardwalk at Mississippi Avenue, Atlantic City, New Jersey 08401,
Trump Marina Associates, LLC, a New Jersey limited liability
company, with a principal place of business at Huron &
Brigantine Blvd., Atlantic City, New Jersey 08401, and Trump
Indiana, Inc., a Delaware corporation, with a principal place of
business at One Buffington Harbor, Gary, Indiana 46401.
R E C I T A
L S :
WHEREAS, Trump and Company entered
into that certain Trademark License Agreement, dated as of June 12,
1995, as amended, relating to the Licensed Marks (the “Prior
Agreement”), and that certain Trademark Security Agreement,
dated as of June 12, 1995, as amended (the “Security
Agreement”).
WHEREAS, on November 21, 2004, the
Company 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 (the “Bankruptcy Code”), in the United States
Bankruptcy Court for the District of New Jersey (the
“Bankruptcy Court”). The Debtors’ chapter 11
cases are being jointly administered 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 the Plan, all
executory contracts and unexpired leases of the Reorganized Debtors
(as defined in the Plan) identified on the Contract/Lease Schedule
(as defined in the Plan) were deemed to have been assumed by the
applicable Reorganized Debtor(s) on the Effective Date (as defined
in the Plan) in accordance with the provisions and requirements of
Sections 365 and 1123 of the Bankruptcy Code;
WHEREAS, the Prior Agreement and the
Security Agreement were listed on the Contract/Lease Schedule and,
pursuant to the Plan, were assumed by the Company on the
Effective Date (as defined in the Plan) in
accordance with the provisions and requirements of Sections 365 and
1123 of the Bankruptcy Code;
WHEREAS, pursuant to that certain
Assignment and Assumption Agreement, dated as of May 20, 2005,
Company assigned of all its rights and obligations under the Prior
Agreement and the Security Agreement to Trump Holdings;
WHEREAS, Trump and Trump Holdings
desire to amend and restate the Prior Agreement, as provided
herein, and the Security Agreement, as provided in that certain
Amended and Restated Security Agreement to be entered into by Trump
and Trump Holdings on even date herewith (the “Amended
Security Agreement”);
WHEREAS, by virtue of advertising,
promoting, and adhering to the highest standards of service and
marketing, Trump has made the names and marks “DONALD J.
TRUMP,” “DONALD TRUMP,” “D. J. TRUMP”
and “D. TRUMP” (collectively, the “Donald
Name”), and “TRUMP” (the “Trump Name”
and together with the Donald Name, the “Trump Names”)
well known to the public and they enjoy among the trade and the
public a superior reputation and widespread goodwill with respect
to the style and quality of services and products bearing the Trump
Names;
WHEREAS, Trump is the owner of all
rights in the Trump Names in the United States or where Trump has
registered trademarks for Casino Services and Products (as
hereinafter defined) outside the United States, in each case for
use in connection with Casino and Gaming Activities, and of each of
the trademarks, service marks and registrations and applications
listed on Schedule A annexed hereto (the Trump Names with respect
to the foregoing uses, together with each of the marks,
registrations and applications listed on Schedule A and, subject to
Section 2.2 hereof, any derivatives thereof, shall be referred to
hereinafter, collectively, as the “Licensed
Marks”);
WHEREAS, the Licensed Marks are of a
unique character without an equivalent substitute; and
WHEREAS, pursuant to and in
accordance with the Plan and that certain Amended and Restated
Investment Agreement, dated as of May 20, 2005, by and among the
Company, Trump Holdings and Trump (the “Investment
Agreement”), Trump has agreed to grant to Trump Holdings, and
Trump Holdings desires to acquire from Trump, a perpetual,
exclusive, royalty-free, worldwide license to use the Licensed
Marks and Trump’s likeness in connection with Casino and
Gaming Activities (as hereinafter defined), subject to the terms
and conditions herein;
NOW, THEREFORE, in consideration of
the mutual premises and covenants contained herein, and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree to amended
and restate the Prior Agreement as follows:
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1. Definitions.
1.1. “Affiliate” means,
with respect to any Person, any other Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such Person.
1.2. “Amended Security
Agreement” shall have the meaning set forth in the
Preamble.
1.3. “Casino and Gaming
Activities” shall mean the business of owning, operating,
managing or developing a casino or similar facility in which a
principal business activity is the taking or receiving of bets or
wagers upon the result of games of chance or skill, including
hotel, dockside, riverboat, cruise ship, transportation,
entertainment, sports, resort, bar, restaurant and retail (subject
to Section 2.3 hereof) services in connection with any of the
foregoing activities.
1.4. “Casino Services and
Products” shall mean (i) Casino and Gaming Activities and
activities, services and products conducted, provided, sold or
distributed in connection therewith solely within Company Property
or as set forth in Section 2.3 hereof; and (ii) advertising and
promotion of the foregoing.
1.5. “Cause” shall have
the meaning set forth in the Services Agreement.
1.6. “Company Property”
shall mean any of (i) Trump Taj Mahal Casino Resort, (ii) Trump
Plaza Hotel and Casino, (iii) Trump Marina Hotel Casino, (iv) Trump
Indiana Casino Hotel, (v) Trump 29 Casino, and (vi) any casino or
other gaming facility, or lodging, restaurant, entertainment or
other facility for Casino and Gaming Activities at a casino or
other gaming facility, in each case that Trump Holdings, Company or
any of their respective Subsidiaries, owns, operates, manages or
develops, it being acknowledged and agreed that, for purposes of
Sections 5.3 and 5.4 hereof, any one location comprised of both (i)
a casino or other gaming facility and (ii) a restaurant,
entertainment or other facility for Casino and Gaming Activities at
a casino or gaming facility, will be considered one Company
Property.
1.7. “Compensation”
shall have the meaning set forth in the Services
Agreement.
1.8. “Conversion Date”
shall have the meaning set forth in Section 5.2.
1.9. “Domain Names”
shall mean the Internet domain names (or similar or successor
address system) containing the Licensed Marks which promote Casino
and Gaming Activities.
1.10. “EBITDA” shall
mean, with respect to an applicable Company Property, for an
applicable period, an amount equal to the sum of (i) the net income
(or loss) of the Company and its consolidated Subsidiaries for such
period determined in accordance with generally accepted accounting
principles, consistently applied, excluding any extraordinary,
unusual or non-recurring gains or losses, plus (ii) all
amounts deducted in computing such net income (or loss) in respect
of interest (including the imputed interest portions of rentals
under
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capitalized leases), depreciation, amortization
and taxes based upon or measured by income, plus (iii) other
non-cash charges arising from market value adjustments and
adjustments pertaining to contributions of deposits in each case in
respect of CRDA Bonds.
1.11. “Effective Date”
shall have the meaning set forth in the Preamble.
1.12. “Entity” shall
mean any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business
trust, real estate investment trust, association or other
entity.
1.13. “Existing
Agreements” shall have the meaning set forth in Section
2.3.
1.14. “Good Reason”
shall have the meaning set forth in the Services
Agreement.
1.15. “Investment
Agreement” shall have the meaning set forth in the
Preamble.
1.16. “License” shall
have the meaning set forth in Section 2.1.
1.17. “Licensed Marks”
shall have the meaning set forth in the Preamble.
1.18. “Nonconforming
Activities” shall have the meaning set forth in Section
4.2.
1.19. “Permanent
Disability” shall have the meaning set forth in the Services
Agreement.
1.20. “Permitted
Transferee” shall mean (i) the spouse and descendants of
Trump (including any related trusts controlled by, and established
and maintained for the sole benefit of, Trump or such spouse or
descendants), (ii) the estate of any of the foregoing, and (iii)
any Entity of which Trump has a majority ownership
interest.
1.21. “Person” shall
mean any natural person or Entity.
1.22. “Prior Agreement”
shall have the meaning set forth in the Preamble.
1.23. “Royalty License”
shall have the meaning set forth in Section 5.1.
1.24. “Royalty Option”
shall have the meaning set forth in Section 5.1.
1.25. “Security
Agreement” shall have the meaning set forth in the
Preamble.
1.26. “Special
Committee” shall mean the committee of the Company’s
Board of Directors composed of two or more directors, none of whom
is an officer or employee of Company, Trump Holdings or any of
their respective Affiliates, or an Affiliate of Trump or any of his
Affiliates; provided, however, that a Person shall not be deemed to
be such an Affiliate for purposes of this sentence solely by reason
of being a member of the Company’s Board of Directors or that
of any of its Subsidiaries.
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1.27. “Services
Agreement” shall mean that certain Services Agreement, dated
as of the date hereof, as amended from time to time, entered into
by and among Trump, Company and Trump Holdings.
1.28. “Subsidiary” of
any Person means (i) a corporation a majority of whose voting stock
is at the time, directly or indirectly, owned by such Person, by
such Person and one or more Subsidiaries of such Person or by one
or more Subsidiaries of such Person, (ii) any other Person (other
than a corporation) in which such Person, one or more Subsidiaries
of such Person, or such Person and one or more Subsidiaries of such
Person, directly or indirectly, at the date of determination
thereof has at least a majority ownership interest, or (iii) a
partnership in which such Person or a Subsidiary of such Person is,
at the time, a general partner and has a majority ownership
interest.
1.29. “Termination
Event” shall have the meaning set forth in Section 5.1
hereof.
1.30. “Trump Names”
shall have the meaning set forth in the Preamble.
2. License.
2.1. License to Trump
Holdings . Subject to the terms and conditions hereof, Trump
hereby grants to Trump Holdings, and Trump Holdings hereby accepts,
upon the terms and conditions set forth herein, a perpetual,
exclusive (including as to Trump), royalty-free, worldwide right
and license, with the right of sublicense only as provided in
Section 10.2 hereof:
2.1.1 to use the Licensed Marks
solely in connection with Casino Services and Products.
2.1.2 to use Trump’s likeness
solely in connection with Casino Services and Products.
2.1.3 to use the Licensed Marks as
Domain Names, provided that any Domain Name is used only as a URL
for a website maintained by Trump Holdings or Company solely for
the purposes of advertising and/or offering Casino Services and
Products; provided, however, that the license grant does not
include the right to use the Licensed Marks or Trump’s
likeness in connection with online or Internet gaming or any form
of electronic gaming activities, which activities are expressly
prohibited under this Agreement (hereinafter referred to,
collectively, as the “License”). Notwithstanding the
foregoing, Trump and Trump Holdings agree to negotiate in good
faith an agreement pursuant to which Trump shall grant to Trump
Holdings the right to use the Licensed Marks in connection with
online or Internet gaming activities; provided, however, that if
the parties are unable to reach such agreement, neither Trump nor
Trump Holdings may use the Licensed Marks and/or Trump’s
likeness in connection with such activities. Nothing contained
herein shall preclude Trump from entering into negotiations with
third parties for the use of the Trump Names and/or Trump’s
likeness in connection with online or Internet gaming activities,
provided that Trump shall not enter into an agreement with any such
third party in connection with such activities unless he shall have
first presented such third-party’s final offer to Trump
Holdings and Trump Holdings
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shall have failed to (i) offer the
identical terms to Trump within ten (10) days after receipt of such
final offer and (ii) enter into a written agreement with Trump upon
such terms within thirty (30) days after receipt of such final
offer.
2.2. Rights Retained by or
Granted to Trump .
2.2.1 Nothing contained in this
Agreement shall restrict or restrain Trump from using, registering,
further licensing or otherwise exploiting (i) the Trump Names
and/or his likeness in connection with services, products and
activities other than Casino Services and Products, including in
connection with board games and similar games for consumer use such
as chess, checkers, backgammon, darts, cards, billiards, dominoes,
tic tac toe, poker, Chinese checkers, cribbage, dice and marbles
and (ii) marks other than the Licensed Marks, as well as terms
included in the Licensed Marks that merely describe a type of
product or service (i.e., hotel and marina), for any purpose. For
the avoidance of doubt and by way of example only, Trump shall have
the right to use, register, license or otherwise exploit the Trump
Names and/or Trump’s likeness anywhere in the world,
including, without limitation, in connection with hotel, dockside,
riverboat, cruise ship, transportation, entertainment, sports,
resort, bar, restaurant and retail store activities and services
and merchandise provided or sold in connection therewith, to the
extent not provided or sold in connection with any Casino and
Gaming Activities. Without limiting the foregoing, Trump hereby
acknowledges and agrees that such uses shall conform in all
material respects to the standards of quality in existence prior to
the Effective Date.
2.2.2 Trump Holdings hereby agrees
that, any provision contained herein to the contrary
notwithstanding, Trump may use the Licensed Marks and/or his
likeness in connection with Internet websites maintained by Trump
or his Affiliates, including providing a link to those of Trump
Holdings’, Company’s or their respective
Subsidiaries’ Internet websites operated under or in
connection with the Licensed Marks, provided that (i) any such use
is of a quality consistent with uses made by Trump or his
Affiliates of the Licensed Marks or Trump’s likeness prior to
the Effective Date and (ii) no such use disparages or otherwise
suggests a negative opinion of any Company Property. If Trump
Holdings reasonably determines that any website use by Trump or his
Affiliates has violated the foregoing, it shall so advise Trump in
a written notice indicating with reasonable specificity the basis
of such determination, and Trump shall cease the violating use
within five (5) business days after receipt of such
notice.
2.2.3 Trump hereby acknowledges and
agrees that his uses of the Licensed Marks, marks constituting the
Licensed Marks and/or Trump’s likeness hereunder shall be
conducted in a manner consistent with or exceeding the high
reputation and importance of the Licensed Marks as of the Effective
Date.
2.3. Use of the Licensed Marks in
Connection with Retail Services .
2.3.1 Subject to agreements in
existence as of the Effective Date to which Trump is a party
relating to the Licensed Marks and/or Trump’s likeness (the
“Existing Agreements”), Trump Holdings may use the
Licensed Marks in connection
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with the operation of not more than
five (5) retail stores owned by Trump Holdings; provided, however,
that: (i) no such store, at the time initially opened for business,
shall be located within a ten (10)-mile radius of any retail
establishment other than Company Properties offering products
bearing any Licensed Marks and/or Trump’s likeness; (ii)
Trump Holdings shall not use the Trump Name apart from the Licensed
Marks in connection with any such store (i.e., Trump Holdings may
use Trump Taj Mahal or Taj Mahal, but not Trump); and (iii) no such
store shall compete or conflict with the Existing Agreements.
Notwithstanding clause (i) above, Trump Holdings may use the
Licensed Marks in connection with the ownership and operation of
retail stores located in airports within any distance from
establishments offering products bearing any Licensed Marks and/or
Trump’s likeness. All stores established pursuant to this
Section 2.3 may only sell and offer for sale the products set forth
on Schedule B hereof, which Schedule may be amended from time to
time by mutual written agreement of Trump Holdings and Trump.
Nothing contained in this Section 2.3 shall prevent Trump Holdings
from operating any number of retail stores on Company
Property.
3. Representations and
Warranties .
3.1. Representations and
Warranties of Trump . Trump hereby represents and warrants
that:
3.1.1 Trump is authorized to enter
into this Agreement, and his entry into this Agreement is not and
would not, with the passage of time, be in material breach or
violation of any governmental order or law or the contractual
rights of any third party (by contract or otherwise);
3.1.2 The Licensed Marks constitute
all of the trademarks, service marks and trade names currently
owned or used by Trump or any Entity owned or controlled by Trump
in connection with any Casino Services and Products which consist
of or incorporate the Trump Names;
3.1.3 Trump is the owner of the
Licensed Marks in the United States or where Trump has registered
trademarks for Casino Services and Products outside the United
States, and his rights therein are, free and clear of all liens and
encumbrances and licenses to third parties (other than (i) the
licenses granted pursuant to that certain Trademark Sublicense and
Consent, by and among Trump, Company and Trump Holdings, dated as
of July 24, 2003, in connection with that certain Bankcard Joint
Marketing Agreement, by and among Trump Taj Mahal Associates and
Bank One, dated as of July 24, 2003; and (ii) the security interest
granted by Trump in favor of Trump Holdings pursuant to the Amended
Security Agreement, including without limitation any claims arising
under “community property” or similar laws;
3.1.4 To the best of Trump’s
knowledge, there is no material claim, suit, action or proceeding
pending or threatened against Trump or any Entity owned or
controlled by Trump with respect to the validity of any of the
Licensed Marks, Trump’s ownership of any of the Licensed
Marks, the infringement of any of the Licensed Marks
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by any third party or the
infringement of the rights of any third party arising out of the
use of any of the Licensed Marks;
3.1.5 The Licensed Marks are valid
and enforceable in the United States and, to the best of
Trump’s knowledge, the Licensed Marks are valid and
enforceable elsewhere in the world;
3.1.6 To the best of Trump’s
knowledge, no third party owns or has asserted any rights in the
Licensed Marks and, to the best of Trump’s knowledge, the
Licensed Marks do not infringe any rights of any third party;
and
3.1.7 To the best of Trump’s
knowledge, all renewal and other maintenance fees for registrations
of any of the Licensed Marks or applications therefor which have
fallen due on or prior to the Effective Date have been
paid.
3.2. Representations and
Warranties of Trump Holdings . Trump Holdings represents and
warrants that it is duly formed and validly existing under the laws
of Delaware, that it is authorized to enter into this Agreement,
and that its entry into this Agreement is not and would not, with
the passage of time, be in breach or violation of any governmental
order or law or the rights of any third party (by contract or
otherwise).
4. Quality Control
.
4.1. Review . In order to
maintain the validity of the Licensed Marks and to protect the
goodwill and integrity associated with the Licensed Marks and
Trump’s likeness, Trump shall have the right to exercise
quality control over the use of the Licensed Marks and
Trump’s likeness in accordance with the following:
4.1.1 Trump Holdings shall not be
required to submit samples for uses of the Licensed Marks and
Trump’s likeness by Trump Holdings and its sublicensees made
prior to the Effective Date, provided the level of quality is
consistent with such prior uses (collectively, the “Prior
Uses”).
4.1.2 Trump Holdings shall not be
required to submit samples for uses of the Licensed Marks and
Trump’s likeness by Trump Holdings and its sublicensees if
such uses are substantially similar in type and quality to the
Prior Uses.
4.1.3 Uses of the Licensed Marks by
Trump Holdings and its sublicensees that are not substantially
similar to the Prior Uses, as well as any and all new uses of
Trump’s likeness, shall be at a level consistent with the
standards of quality associated with the Licensed Marks and
Trump’s likeness as used by Trump Holdings and its
sublicensees. In adhering to these standards, Trump Holdings shall
be guided by the standards of quality established for the Licensed
Marks and Trump’s likeness as of the Effective Date. Upon
Trump’s request, Trump Holdings shall submit for
Trump’s prior approval, representative samples of proposed
uses (other than Prior Uses) of the Licensed Marks by Trump
Holdings and its sublicensees; provided, however, that Trump
Holdings shall submit for Trump’s prior approval samples of
all proposed uses of Trump’s likeness (other than Prior
Uses). Trump may reject any sample if Trump
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reasonably believes the use thereof
will harm the validity, goodwill and/or integrity of the Licensed
Marks and/or Trump’s likeness. Trump shall advise Trump
Holdings in writing of his approval or rejection of each such
sample, stating with reasonable specificity any objections thereto,
and Trump Holdings shall refrain, and cause its sublicensees to
refrain, from any rejected use until Trump’s objections have
been satisfied. If Trump does not send such notice within ten (10)
business days following receipt of such sample, the sample shall be
deemed approved. If Trump rejects a sample, Trump Holdings may
modify such sample to address Trump’s written objections and,
if addressed to Trump’s reasonable satisfaction, Trump shall
approve the sample.
4.1.4 The parties acknowledge that
due to the nature of the Casino Services and Products, any
inspection of such services and products and of Trump
Holdings’ and/or its sublicensees’ premises where
activities relating to the Licensed Marks are conducted, such as is
necessary for Trump to monitor Trump Holdings’ and its
sublicensees’ compliance with the quality standards, may in
certain circumstances be conducted in publicly accessible
facilities and that Trump and/or his representative(s) shall be
free to inspect such publicly accessible facilities or publicly
available products and materials; provided, however, that Trump
and/or his representative(s) shall do so in a discrete manner
without materially disrupting or interfering with the normal
operations of such facilities.
4.2. Misuse; Cure Provision;
Termination .
4.2.1 All uses of the Licensed Marks
and Trump’s likeness shall be at levels consistent with or
exceeding the standards of quality associated with them as of the
Effective Date or as otherwise approved by Trump in accordance with
Section 4.1.3 hereof. In the event that Trump, upon review of
samples submitted by Trump Holdings or inspection of the premises
of Trump Holdings or its sublicensees pursuant to Section 4.1
hereof, in his reasonable business judgment, believes that Trump
Holdings or its sublicensees, in their conduct of activities under
the Licensed Marks, have failed to meet such quality standards,
Trump shall provide Trump Holdings with written notice thereof.
Such notice shall specify the activities that fail to comply with
such standards (the “Nonconforming Activities”) and the
manner in which such Nonconforming Activities fail to meet such
standards. Trump Holdings shall cooperate with Trump to correct or
cure such non-compliance within sixty (60) days from the date of
Trump’s notice thereof. If after sixty (60) days from the
date of notice by Trump to Trump Holdings, Trump Holdings shall
have failed to correct (or to have caused its sublicensees to
correct) such Nonconforming Activities, Trump’s sole and
exclusive remedy shall be to maintain an action in the district
court for the Southern District of New York or state court located
in New York City for declaratory judgment and/or injunctive relief
seeking to compel Trump Holdings to comply (or to cause its
sublicensees to comply) with the quality control standards, and any
such remedy shall be limited to the Licensed Marks that are the
subject of the Nonconforming Activities. Trump shall not have the
right to terminate this Agreement for any breach or alleged breach
of the quality control standards, unless a court determines that
Trump Holdings has failed to comply with a court order or
injunction respecting quality standards obtained by Trump in a
proceeding brought by Trump pursuant to this Section 4.2. Trump
Holdings shall pay all costs and expenses
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incurred by Trump in maintaining an
action pursuant to this Section 4.2 in the event a court determines
that Trump Holdings and/or its sublicensees engaged in
Nonconforming Activities and failed to correct such Nonconforming
Activities within sixty (60) days from the date of notice thereof.
Trump shall pay all costs and expenses incurred by Trump Holdings
in the event a court determines that neither Trump Holdings nor its
sublicensees engaged in Nonconforming Activities.
5. Conversion to Royalty-Bearing
License .
5.1. Royalty License . In the
event that: (a) the Services Agreement is terminated (i) by Company
and/or Trump Holdings other than for Cause, or (ii) by Trump for
Good Reason, or (b) Company a
