AGREEMENT RELATING TO DEVELOPMENT SERVICES
This AGREEMENT RELATING TO DEVELOPMENT SERVICES ("Agreement")
dated as of February 9, 1998, between TRADING COVE ASSOCIATES, a
Connecticut general partnership ("TCA") and SUN INTERNATIONAL
MANAGEMENT LIMITED, a British Virgin Island corporation ("SIML").
PRELIMINARY STATEMENT
The following is a recital of certain facts upon which this
Agreement is based:
The Mohegan Tribe of Indians of Connecticut, a federally
recognized Indian Tribe (the "Tribe") and its instrumentality, The
Mohegan Tribal Gaming Authority (the "Authority") has entered into
a certain Development Services Agreement dated February 7, 1998
(the "Development Services Agreement") with TCA pursuant to the
terms of which the Tribe and the Authority have granted to TCA the
exclusive right and obligation to provide development services in
respect of the design, construction, equipment and opening of the
"Project", as that term is defined in the Development Services
Agreement.
TCA is entering into this subcontract with SIML pursuant to
which SIML will, on behalf of TCA, perform certain of the duties
and obligations as Subcontractor to the "Developer" under the
Development Services Agreement.
The Amended and Restated Partnership Agreement of TCA dated as
of September 21, 1994, as amended, provides for TCA to enter into
this Agreement.
NOW THEREFORE, the parties hereto agree as follows:
1. Services to be Provided. TCA hereby retains SIML as a
Subcontractor and SIML hereby agrees to perform all of the services
subcontracted to SIML by TCA in fulfillment of the duties and
obligations under the Development Services Agreement.
Notwithstanding the foregoing, nothing herein shall be interpreted
to mean or imply that TCA has assigned the Development Services
Agreement to SIML.
2. Costs and Expenses. TCA has or will hire employees in
order to fulfill its obligations under the Development Services
Agreement provided that no such employees will be hired without the
consent and approval of SIML and SIML's local construction manager,
Xxxxxx Construction, L.L.C. ("Xxxxxx"). TCA will be responsible
for the salary and all other costs associated with such employees.
Furthermore, all reasonable costs and expenses incurred by SIML and
Xxxxxx and their respective affiliates as Subcontractors relating
to the development of the Project will be direct obligations of TCA
which costs and expenses will be paid as requests for payment are
submitted to TCA with such information as may be reasonably
requested by TCA to verify such payment requests. All salary,
fringe benefits and other costs and expenses associated with TCA's
employees described herein, and the costs and expenses of SIML,
Xxxxxx and their affiliates described herein are herein
collectively referred to as "Project Costs and Expenses."
3. Fees and Payment Terms. In consideration of the services
to be provided hereunder, TCA shall pay to SIML a fee (the
"Development Services Fee") equal to 3% of the total Development
Costs of the Project less all Project Costs and Expenses. For
purpose hereof, the term "Development Costs of the Project" shall
be understood to include all so-called hard and soft costs incurred
by the Authority with respect to the construction of the Project
except land acquisition costs and interest expense. TCA agrees to
pay the Development Services Fee in installments due on December
31, 1999 (the "First Payment"), December 31, 2000 (the "Second
Payment") and on the Completion Date, as defined in the Development
Services Agreement (the "Third Payment"). The First Payment will
be in an amount equal to TCA's reasonable best estimate of what
one-third (1/3) of the Development Services Fee will be based upon
its review of the Authority's and TCA's development budgets
applicable to the Project. The Second Payment will be in an amount
equal to TCA's reasonable best estimate of two-thirds (2/3) of the
Development Services Fee based upon the then most current
development budgets of the Authority and TCA with respect to the
Project minus the First Payment. The Third Payment shall be in an
amount equal to the actual Development Services Fee minus the First
Payment and the Second Payment. Notwithstanding the foregoing, in
the event that the Development Costs of the Project are not fully
known by the date of the Third Payment, the Third Payment will also
be based upon TCA's reasonable best estimate with a final payment
being made by TCA to SIML or a refund being paid by SIML to TCA
when the actual Development Costs of the Project are finally
determined.
4. Payment Limitation. Notwithstanding anything herein to
the contrary contained, TCA's obligation to pay the Development
Services Fee to SIML hereunder shall be limited to the extent that
TCA has funds available to make the payments provided for in
Section 3 hereof, consistent with the limitations and
prioritizations set forth in the Omnibus Termination Agreement
dated March 18, 1999.
5. Indemnification. SIML its affiliates, parents,
subsidiaries, controlling shareholders and officers and directors
(collectively, the "Indemnified Parties") shall not be liable to
TCA by reason of any act performed for or on behalf of TCA
hereunder, or in the furtherance of TCA business, or any omission
to act, except for acts or omissions that constitute a material
breach of any provision of this Agreement, gross negligence, fraud
or bad faith. TCA shall indemnify, defend and hold harmless the
Indemnified Parties from any claim, demand or liability, and from
any loss, cost or expense, including, but not limited to,
attorneys' fees and court costs, which may be made or imposed upon
them by reason of any act performed for or on behalf of TCA or in
furtherance or TCA's business, or any omission to act, except for
acts and omissions that constitute a material breach of any
provision of this Agreement, gross negligence, fraud or bad faith.
Notwithstanding anything contained herein to the contrary, the
parties agree that if the assets of TCA are insufficient to satisfy
the obligation set forth in this section, the partners of TCA shall
bear the indemnification liability set forth herein in proportion
to their respective percentage interest in TCA and, in no event,
shall the Indemnified Parties have the right to assert claims
pursuant to this section against partners of TCA in excess of each
such partner's percentage interest in TCA.
6. Third Party Beneficiary. This Agreement is exclusively
for the benefit of the parties hereto and it may not be enforced by
any party other than the parties to this Agreement and shall not
give rise to any liability to any third party other than the
authorized successors and assigns of the parties pursuant to
Section 6 hereof.
7. Assignments. Neither party may assign its rights and/or
obligations under this Agreement, except: (i) to an affiliate of
such party, or (ii) with the prior written consent of all parties
hereto. Any assignment shall be subject to and made in accordance
with applicable gaming, securities or other laws.
8. Authorization; Representations and Warranties. Each
party represents and warrants to the other that:
(a) The execution, delivery, and performance by it of this
Agreement and the transactions contemplated herein have been duly
authorized by all necessary action, and the individual(s) executing
this Agreement on its behalf are duly authorized to do so;
(b) It is duly organized and in good standing under the laws
of the jurisdiction of its formation; and
(c) The execution, delivery and performance of this Agreement
does not and shall not violate any existing agreement, bylaw,
statute, rule, regulation and/or ordinance applicable to such party
or its execution, delivery and/or performance of this Agreement.
9. Notices. All notices hereunder shall be deemed properly
given upon (i) receipt by the addressee by personal delivery or
facsimile transmission, (ii) two (2) business days after delivery
by an overnight express delivery service for the next business day
delivery, or (iii) if mailed, upon the first to occur of receipt or
the expiration of five (5) business days after deposit in United
States Postal Service certified mail, postage prepaid, addressed to
the parties at the addresses appearing below. Such addresses may
be changed by notice given in the same manner.
If to TCA: Xxx Xxxxxx
c/o LMW Investments, Inc.
000 Xxxxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Telecopy No. (000) 000-0000
With a copy to: Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy No. (000) 000-0000
If to SIML: Xxxxxx ("Xxxxx") Xxxxxxx
Sun International
Executive Offices
Atlantis, Coral Towers
Paradise Island, The Bahamas
Telecopy No. (000) 000-0000
With a copy to: Xxxxxxx Xxxxx, Esq.
Sun International
Executive Offices
Atlantis, Coral Towers
Paradise Island, The Bahamas
Telecopy No. (000) 000-0000
10. Amendments. This Agreement may be amended or modified
only by written instrument executed by all of the parties hereto.
11. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
New York.
12. Severability. If any provision hereof shall be
judicially determined to be illegal, or if the application thereof
to any party or in any circumstance shall, to any extent, be
judicially determined to be invalid or unenforceable, the remainder
of this Agreement, or the application of such provision to parties
or in circumstances other than those to which it has been
judicially determined to be invalid or unenforceable, shall not be
affected thereby, and each provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
13. Counterparts. This Agreement may be executed by
facsimile and in any number of counterparts, each of which shall
constitute an original and all of which together shall constitute
one and the same Agreement.
14. Further Assurances. The parties will execute and deliver
such further instruments and undertake such further actions as may
be required to carry out the intent and purposes of this Agreement.
15. Successors and Assigns. Subject to the restrictions on
transferability contained in Paragraph 6 hereof, this Agreement
shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the day and year first written above.
TRADING COVE ASSOCIATES,
By: SUN COVE LIMITED
By:___________________
Name:
Title:
By: WATERFORD GAMING., L.L.C.,
By:______________________
Name:
Title:
SUN INTERNATIONAL MANAGEMENT LIMITED,
By:_______________________
Name:
Title:
