Exhibit 10(mmm)
HOTEL LICENSE AGREEMENT
Between
FOUR SEASONS HOTELS LIMITED
And
MANDALAY CORP.
FOUR SEASONS RESORT, LAS VEGAS
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS. . . . . . . . . . . . . . . . . . . . 3
1.01 Definitions . . . . . . . . . . . . . . . . . . . 3
1.02 Recitals. . . . . . . . . . . . . . . . . . . . . 3
1.03 Interpretation. . . . . . . . . . . . . . . . . . 4
1.04 Schedules . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II - TERMINATION PRIOR TO OPENING DATE . . . . . . . . 5
2.01 Termination Prior to Opening Date . . . . . . . . 5
ARTICLE III - GRANT OF LICENSE . . . . . . . . . . . . . . . . 6
3.01 Grant of License. . . . . . . . . . . . . . . . . 6
3.02 Reservation of Rights . . . . . . . . . . . . . . 6
3.03 No Right to Sublicense. . . . . . . . . . . . . . 7
ARTICLE IV - QUALITY STANDARDS AND CONTROL . . . . . . . . . . 7
4.01 Quality Standards . . . . . . . . . . . . . . . . 7
4.02 Control . . . . . . . . . . . . . . . . . . . . . 7
4.03 Deficiency. . . . . . . . . . . . . . . . . . . . 8
ARTICLE V - OWNERSHIP, USE, CONFIDENTIALITY AND PROTECTION
OF TRADEMARKS AND PROPRIETARY MATERIALS . . . . . 8
5.01 Ownership . . . . . . . . . . . . . . . . . . . . 8
5.02 Use of Trademarks and Proprietary Materials . . . 9
5.03 Protection and Defence of Trademarks and
Proprietary Materials . . . . . . . . . . . . . . 10
5.04 Confidentiality of Proprietary Materials. . . . . 11
5.05 Operating Policies. . . . . . . . . . . . . . . . 13
ARTICLE VI - TERM. . . . . . . . . . . . . . . . . . . . . . . 13
6.01 Term. . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII - ASSIGNMENTS AND MORTGAGES. . . . . . . . . . . . 13
7.01 Owner's Right to Assign . . . . . . . . . . . . . 13
7.02 Owner's Right to Mortgage . . . . . . . . . . . . 14
7.03 Limitation on Owner's Right to Assign and
Mortgage. . . . . . . . . . . . . . . . . . . . . 15
7.04 Licensor's Right to Assign. . . . . . . . . . . . 15
7.05 Licensor's Right to Mortgage. . . . . . . . . . . 16
7.06 Limitation on Licensor's Right to Assign. . . . . 16
ARTICLE VIII - EVENTS OF DEFAULT AND TERMINATION . . . . . . . 17
8.01 General . . . . . . . . . . . . . . . . . . . . . 17
8.02 Rights of Non-Defaulting Parties. . . . . . . . . 18
8.03 Remedying Defaults. . . . . . . . . . . . . . . . 18
8.04 Bona Fide Dispute . . . . . . . . . . . . . . . . 18
8.05 Licensor's Right to Terminate . . . . . . . . . . 19
8.06 Licensor's Remedy for Breach of Provisions
Relating to the Trademarks or the Proprietary Materials 19
8.07 Cross-Termination . . . . . . . . . . . . . . . . 20
8.08 Use of Trademarks and Proprietary Materials
Following Termination . . . . . . . . . . . . . . 21
8.09 Claims on Termination . . . . . . . . . . . . . . 22
ARTICLE IX - APPROVALS AND DISPUTE RESOLUTION. . . . . . . . . 22
9.01 Approvals . . . . . . . . . . . . . . . . . . . . 22
9.02 Dispute Resolution. . . . . . . . . . . . . . . . 24
ARTICLE X - OWNER'S AND LICENSOR'S LIABILITY . . . . . . . . . 25
10.01 Owner's and Licensor's Liability . . . . . . . 25
ARTICLE XI - ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . 26
11.01 Owner's Acknowledgments. . . . . . . . . . . . 26
11.02 Licensor's Acknowledgments . . . . . . . . . . 27
ARTICLE XII - GENERAL PROVISIONS . . . . . . . . . . . . . . . 27
12.01 Entire Agreement . . . . . . . . . . . . . . . 27
12.02 Modification and Changes . . . . . . . . . . . 27
12.03 Partial Invalidity . . . . . . . . . . . . . . 27
12.04 Counterparts . . . . . . . . . . . . . . . . . 28
12.05 Waivers. . . . . . . . . . . . . . . . . . . . 28
12.06 Enurement. . . . . . . . . . . . . . . . . . . 28
12.07 Applicable Law . . . . . . . . . . . . . . . . 29
12.08 Jurisdiction . . . . . . . . . . . . . . . . . 29
12.09 Designation of Agent for Service of Process. . 29
12.10 Notices. . . . . . . . . . . . . . . . . . . . 30
12.11 Time of Essence. . . . . . . . . . . . . . . . 32
12.12 Estoppel Certificates. . . . . . . . . . . . . 32
SCHEDULE "A" DEFINITIONS
SCHEDULE "B" TRADEMARK APPLICATIONS AND REGISTRATIONS
HOTEL LICENSE AGREEMENT
THIS AGREEMENT is made this 10th day of March, 1998.
B E T W E E N:
FOUR SEASONS HOTELS LIMITED, a corporation
incorporated under the laws of the Province of
Ontario, having its principal offices at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
("Licensor"),
- and -
MANDALAY CORP., a corporation incorporated under
the laws of the State of Nevada, United States of
America, having its principal offices at ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇.▇.▇. ▇▇▇▇▇,
("Owner").
RECITALS
A. Parent and/or its Affiliates (as defined below) are the legal and
beneficial owners of the Land (as defined below) situated in Las
Vegas, Nevada (as defined below), and on or before the Opening Date
(as defined below), Owner will be the legal and beneficial Owner of
the Hotel (as defined below).
B. Parent (as defined below) now proposes to develop upon the Land the
Project (as defined below) consisting of: (i) a World Class Luxury
Hotel (as defined below) containing approximately 429 guest rooms,
together with two restaurants, a bar, an entertainment lobby and
lounge, approximately 28,000 square feet of banquet, meeting and
other public rooms, a private fitness club, spa and pool area,
together with a pool bar and grille, valet parking and other
facilities to be developed, constructed, furnished and equipped in
accordance with the Hotel Design Brief (as defined below), (ii) an
additional first class hotel containing approximately 3,300 guest
rooms and other facilities, such World Class Luxury Hotel and
additional first class hotel to be situated in the same building,
(iii) a casino of approximately 100,000 square feet, (iv) a fitness
and spa facility which shall include a large pool area, (v) various
restaurants and other food and beverage facilities, (vi) various
retail areas and other related facilities, and (vii) parking
facilities.
C. Licensor, together with its Affiliates (as defined below), has
expertise in the various phases of the development, construction,
furnishing, equipping, servicing, marketing, operation, management,
supervision and direction of World Class Luxury Hotels.
D. Contemporaneously with the execution of this Agreement, Parent has
entered into an agreement (the "Hotel Pre-Opening Services
Agreement") with Licensor, pursuant to which Licensor (for certain
fees) has agreed to provide to Parent certain services with respect
to the development and construction of the Hotel and certain other
services with respect to the pre-opening acquisition of Furniture,
Fixtures and Equipment (as defined below) and Operating Equipment
and Supplies (as defined below).
E. Contemporaneously with the execution of this Agreement, Owner and
Parent have entered into an agreement (the "Hotel Management
Agreement") with Licensor, pursuant to which Licensor (for certain
fees) has agreed to provide to Owner certain services with respect
to the day-to-day operation and management of the Hotel.
F. Licensor is the owner of the Trademarks (as defined below) and the
Proprietary Materials (as defined below).
G. Owner also wishes to obtain from Licensor the right and license to
use the Trademarks and utilize the Proprietary Materials solely in
connection with the marketing, operation and management of the
Hotel, and Licensor (for certain fees and other consideration) is
prepared to grant such right and license to Owner in connection with
the marketing, operation and management of the Hotel, upon and
subject to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW THEREFORE in consideration of the covenants and agreements
set forth in this Agreement, the parties agree that:
ARTICLE I
DEFINITIONS
1.01 Definitions
All capitalized terms herein shall, unless otherwise
indicated, have the meaning set forth in the Hotel Management Agreement.
In this Agreement, the terms in Schedule "A" attached hereto shall have
the respective meanings indicated therein.
1.02 Recitals
Licensor and Owner each represent and warrant to the other
that the Recitals to this Agreement, insofar as they relate to it, are
true and correct.
1.03 Interpretation
In this Agreement, save and except as otherwise expressly
provided:
(a) all words and personal pronouns relating thereto shall be read
and construed as the number and gender of the party or parties
requires and the verb shall be read and construed as agreeing
with the required word and pronoun;
(b) the division of this Agreement into Articles and sections and
the use of headings is for convenience of reference only and
shall not modify or affect the interpretation or construction
of this Agreement or any of its provisions;
(c) when calculating the period of time within which or following
which any act is to be done or step taken pursuant to this
Agreement, the date which is the reference day in calculating
such period shall be excluded. If the last day of such period
is not a business day, the period in question shall end on the
next business day;
(d) all monetary amounts are expressed in United States Dollars.
All payments of sums, charges, fees, costs and expenses and
other amounts contemplated by this Agreement shall be paid in
United States Dollars. If, pursuant to the judgment or order
of any court or otherwise, any amount due or payable hereunder
in United States Dollars, (the "Original Currency") is paid in
any other currency (the "Second Currency"), such payment in
the Second Currency shall discharge or satisfy the obligation
of the party making such payment to pay such amount in the
Original Currency only to the extent of the United States
Dollar Equivalent of the amount of such payment in the Second
Currency. The party making such payment shall, as a separate
and independent obligation, which shall not be merged in any
such judgment or order or extinguished by any such payment in
the Second Currency, pay or cause to be paid such obligation
in respect of the Original Currency not so discharged and
satisfied in accordance with the foregoing and indemnify the
party receiving such payment and hold the party receiving such
payment harmless from and against any losses, costs, damages
or expenses which the party receiving such payment may sustain
or incur as a result of any such amount being paid in the
Second Currency;
(e) all references to Article and section numbers refer to
Articles and sections of this Agreement, and all references to
Schedules refer to the Schedules attached hereto; and
(f) the words "herein," "hereof," "hereunder," "hereinafter" and
"hereto" and words of similar import refer to this Agreement
as a whole and not to any particular Article or section
hereof.
1.04 Schedules
The following schedules are attached hereto and are
incorporated and deemed to be an integral part of this Agreement:
Schedule "A" - Definitions
Schedule "B" - Trademark Applications and Registrations
ARTICLE II
TERMINATION PRIOR TO OPENING DATE
2.01 Termination Prior to Opening Date
If any or all of the other Hotel Agreements are terminated in
accordance with their terms prior to the Opening Date, then this Agreement
shall terminate on the date of such termination and Owner and Licensor
shall have no future obligations arising out of this Agreement, save and
except as otherwise expressly provided for in this Agreement.
ARTICLE III
GRANT OF LICENSE
3.01 Grant of License
(a) Licensor hereby grants to Owner, and Owner hereby accepts,
upon and subject to the terms and conditions set forth in this
Agreement, the right and license to use the Trademarks and
utilize the Proprietary Materials solely in connection with
the marketing, operation and management of the Hotel (the
"Services"). This grant shall include the authorization to
use the Trademarks and utilize the Proprietary Materials in
promotional materials in connection with the Services (the
"Related Materials"), but not in materials in the nature of
consumer products or merchandise, unless such consumer
products or merchandise is sold at the Hotel under the
direction of Senior Hotel Personnel and is specifically
authorized by Licensor under such terms and conditions
specified by Licensor. This grant shall be royalty free
throughout the Term, save and except as otherwise set forth in
the Hotel Agreements.
(b) Owner shall not use the Trademarks or utilize the Proprietary
Materials in connection with the marketing of the Hotel with
any other component of the Project, unless such use is
specifically authorized by Licensor under such terms and
conditions specified by Licensor.
3.02 Reservation of Rights
Licensor shall retain all rights in the Trademarks and the
Proprietary Materials not expressly granted to Owner by this Agreement,
and it is hereby specifically acknowledged and agreed by Owner that
Licensor may grant licenses to other Persons, including (without
limitation) the right to use the Trademarks and utilize the Proprietary
Materials in connection with the marketing, operation and management of
other five-star luxury hotel or resort (as that term is understood in the
hotel industry on the date of this Agreement) except, for so long as
Licensor or any of its Affiliates continues to operate and manage the
Hotel, in connection with any such hotel or resort located within a 50
mile radius of the Project .
3.03 No Right to Sublicense
Owner has no right to sub-license the rights granted by this
Agreement.
ARTICLE IV
QUALITY STANDARDS AND CONTROL
4.01 Quality Standards
The Hotel, the Services and the Related Materials shall be of
the standards of nature and quality characteristic of World Class Luxury
Hotels and as otherwise contemplated by the Hotel Management Agreement.
4.02 Control
Owner shall co-operate with Licensor to ensure at all times
that the Hotel, the Services and the Related Materials meet the standards
of nature and quality set out in section 4.01 and shall co-operate with
Licensor to enable Licensor at all times to ascertain whether the Hotel,
the Services or the Related Materials meet such standards, and, in that
regard, Owner shall allow Licensor or any of its Affiliates or any of
their respective directors, officers, employees, agents or representatives
the right to inspect the premises at all reasonable times in order to
ascertain whether the Hotel, the Services or the Related Materials meet
such standards.
4.03 Deficiency
Promptly upon receipt of notice from Licensor that the Hotel,
the Services or the Related Materials do not meet the standards of nature
and quality set out in section 4.01, Owner shall co-operate with Licensor
to correct such deficiency forthwith.
ARTICLE V
OWNERSHIP, USE, CONFIDENTIALITY AND PROTECTION
OF TRADEMARKS AND PROPRIETARY MATERIALS
5.01 Ownership
(a) Owner hereby acknowledges that Licensor is the owner of the
Trademarks and the Proprietary Materials, and the goodwill
associated with the Trademarks and the Proprietary Materials.
Apart from the right of Owner to use the Trademarks and
utilize the Proprietary Materials pursuant to this Agreement,
Owner shall acquire no right, title or interest of any kind or
nature whatsoever in or to the Trademarks or the Proprietary
Materials, or the goodwill associated with the Trademarks and
the Proprietary Materials.
(b) Owner agrees that all artwork, graphics, layouts, slogans,
names, titles or similar materials incorporating, or being
used in association with, the Trademarks or the Proprietary
Materials which may be created by or on behalf of Owner
pursuant to this Agreement shall become the sole property of
Licensor, including (without limitation) all copyrightable
subject matter, and Owner agrees, on its own behalf and on
behalf of its directors, officers, employees, agents,
representatives or any other Persons with whom they may
contract to create such materials, to promptly execute any and
all appropriate documents and conveyances in this regard.
Notwithstanding the foregoing, Owner may retain any such
artwork, graphics, layouts, slogans, names, titles or similar
materials prepared by Owner in connection with the marketing
of the Hotel with any other component of the Project in
accordance with the provisions of section 3.01(b) so long as
the Trademarks and the Proprietary Materials are deleted or
removed from such artwork to the satisfaction of Licensor.
5.02 Use of Trademarks and Proprietary Materials
(a) Owner shall use the Trademarks and utilize the Proprietary
Materials only in connection with the Hotel, the Services and
the Related Materials, and agrees that all of Owner's use
under this Agreement enures to the benefit of Licensor. Owner
shall use the Trademarks and utilize the Proprietary Materials
only for such purposes and in such format and manner as are
specifically approved by Licensor, and, upon the request of
Licensor, shall affix any legends, markings and notices of
trademark registration or any other notice of Licensor's
proprietary interest therein, including (without limitation)
copyright, as Licensor may require. Licensor shall have the
right to approve all advertising, displays and any other
material using the Trademarks or the Proprietary Materials
prepared by Owner. Owner agrees to follow Licensor's
instructions and guidelines regarding proper usage of the
Trademarks and utilization of the Proprietary Materials in all
respects.
(b) Owner agrees to join with Licensor in any application to enter
Owner as a registered or permitted user of the Trademarks or
the Proprietary Materials with any Governmental Authority.
Upon termination or expiration of this Agreement for any
reason whatsoever, Licensor may immediately apply to cancel
Owner's status as a registered or permitted user, and Owner
shall consent in writing to the cancellation and shall join in
any cancellation proceedings. The costs and expenses of any
application or cancellation as a registered or permitted user
shall be borne by Owner unless this Agreement is terminated as
a result of a breach by Licensor or any of its Affiliates of
their obligations under the Hotel Agreements.
(c) During or after the Term, Owner shall not use or register any
other trademarks or other property similar in sound,
appearance or meaning to the Trademarks, nor shall Owner use
or register, in whole or in part, the Trademarks or Licensor's
trade or corporate name, or any identification similar in
sound, appearance or meaning thereto, as part of the trade or
corporate name of Owner or as the name of any Person directly
or indirectly associated with the activities of Owner.
(d) Owner acknowledges the substantial value and goodwill of the
Trademarks and the Proprietary Materials accruing solely to
Licensor and agrees not to use the Trademarks or utilize the
Proprietary Materials in any manner which may, in Licensor's
judgment, be in bad taste, be inconsistent with Licensor's
public image or which may in any way disparage Licensor or its
reputation, including (without limitation) the manner and
placement of advertising, nor take any action which will harm
or jeopardize the Trademarks or the Proprietary Materials in
any way.
5.03 Protection and Defence of Trademarks and Proprietary Materials
Owner acknowledges that Licensor has a proprietary interest in
the Trademarks and the Proprietary Materials which, subject to this
Agreement, shall be under the exclusive control of Licensor. Owner shall,
without charge to Licensor except for the reimbursement to Owner of all
costs and out-of-pocket expenses, including (without limitation)
reasonable legal fees, execute, acknowledge and deliver all documents that
may be necessary or desirable in the opinion of Licensor, acting
reasonably, to enable Licensor to protect, defend or register its
proprietary interest in any of the Trademarks or the Proprietary
Materials. Owner shall, without charge to Licensor except for the
reimbursement to Owner of all costs and out-of-pocket expenses, including
(without limitation) reasonable legal fees, co-operate fully with Licensor
in the protection, defence and registration of the Trademarks and the
Proprietary Materials, and, in that regard, Owner shall execute,
acknowledge and deliver all documents as may be necessary or desirable in
the opinion of Licensor, acting reasonably, to enable Licensor to protect,
defend or register its proprietary interest in any of the Trademarks or
the Proprietary Materials. Owner shall, without charge to Licensor, co-
operate with Licensor as it may request in proceedings relating to the
protection, defence and registration of any of the Trademarks or the
Proprietary Materials and execute any documents or pleadings required in
the opinion of Licensor, acting reasonably, for such purpose and Licensor
shall indemnify, defend and protect Owner against all claims, costs,
damages, liabilities and expenses, including (without limitation)
reasonable legal fees which Owner may suffer or incur in connection with
the execution and delivery of such documents or pleadings or the
protection, defense or registration of such proprietary interest. Owner
shall promptly advise Licensor in writing of any potentially infringing
uses by others in addition to any suits brought or claims made, against
Owner involving the Trademarks or the Proprietary Materials. Decisions
involving the protection, defence or registration of the Trademarks and
the Proprietary Materials shall be solely in the discretion, and at the
sole cost and expense, of Licensor. Owner shall take no actions in this
regard without the express written permission of Licensor. Owner shall
not attack, or assist any other Person in attacking, the validity of
Licensor's proprietary interest in any of the Trademarks or the
Proprietary Materials.
5.04 Confidentiality of Proprietary Materials
(a) Owner shall not disclose or permit the disclosure of any of
the Proprietary Materials which it has been advised in writing
is, or is otherwise aware of being, confidential (the
"Confidential Proprietary Materials") at any time to any
Person, save and except as may be permitted by Licensor
pursuant to this Agreement or to those directors, officers,
employees, agents or representatives of Owner that must have
access to any of the Confidential Proprietary Materials to
exercise the rights, or to perform the obligations, of Owner
under this Agreement and the other Hotel Agreements and only
for such purposes. Owner shall ensure that any such Person is
aware of the confidential and proprietary nature of such
Confidential Proprietary Materials and agrees to abide by the
same restrictions in respect thereof as are applicable to
Owner under this Agreement.
(b) Owner shall not release any written material (whether in a
prospectus, information circular, offering document, marketing
campaign or otherwise) or issue any press release or make any
other public statement containing any of the Confidential
Proprietary Materials or in any way relating to the Hotel
Agreements or to Licensor or to any of its Affiliates without
the prior express written consent of Licensor, which consent
may be withheld or delayed.
(c) The obligations of Owner to Licensor under this section 5.04
shall not apply to any of the Confidential Proprietary
Materials which (i) are or become generally available to the
public other than as a result of the action or inaction of
Owner or any of its Affiliates or any of their respective
directors, officers, employees, agents or representatives,
(ii) become available to Owner on a non-confidential basis
from a source other than Licensor or any of its Affiliates or
any of their respective directors, officers, employees, agents
or representatives; provided that such source is not bound by
a confidentiality agreement with Licensor or any of its
Affiliates or any of their respective directors, officers,
employees, agents or representatives or otherwise prohibited
from transmitting any of the Confidential Proprietary
Materials to Owner by a contractual, legal or fiduciary
obligation, (iii) was known to Owner on a non-confidential
basis prior to disclosure to Owner by Licensor or any of its
Affiliates or any of their respective directors, officers,
employees, agents or representatives, and (iv) subject to the
provisions of section 5.04(d), are required to be disclosed in
accordance with Applicable Law.
(d) In the event that Owner or any of its Affiliates or any of
their respective directors, officers, employees, agents or
representatives become compelled by any Applicable Law to
disclose any of the Confidential Proprietary Materials, Owner
will provide Licensor with prompt written notice so that
Licensor may seek a protective order or other appropriate
remedy or waive compliance with the provisions of this
section 5.04. In the event that such protective order or
other remedy is not obtained, or that Licensor waives
compliance with the provisions of this section 5.04, Owner or
any of its Affiliates or any of their respective directors,
officers, employees, agents or representatives will furnish
only that portion of such Confidential Proprietary Materials
which is required by any Applicable Law and each such Person
shall exercise its reasonable efforts to obtain reliable
assurances that confidential treatment will be accorded such
Confidential Proprietary Materials.
5.05 Operating Policies
Owner shall not take any action that may preclude the Hotel
from being operated in accordance with Licensor's policies and procedures
and as otherwise contemplated by the Hotel Agreements. Nothing herein
shall give Owner any right, title or interest in or to any of such
policies or procedures, whether written or oral, except as a mere
privilege and license during the Term to use the same with respect to the
operation of the Hotel in accordance with the Hotel Agreements.
ARTICLE VI
TERM
6.01 Term
The term of this Agreement shall be for a period commencing on
the date hereof and terminating upon the expiry of the Term, unless
earlier terminated in accordance with the provisions of this Agreement.
ARTICLE VII
ASSIGNMENTS AND MORTGAGES
7.01 Owner's Right to Assign
Subject to the provisions of section 7.03, Owner shall have
the right at any time to sell, assign, transfer or otherwise dispose of
all or any part of its Interest to any Person on the condition that such
Person first enter into an agreement with Licensor, in form and substance
satisfactory to Licensor, agreeing:
(a) that the Hotel Agreements continue in full force in effect
after such sale, assignment, transfer or other disposition;
and
(b) to assume all of the contractual obligations of Owner
contained in the Hotel Agreements.
7.02 Owner's Right to Mortgage
Subject to the provisions of section 7.03, Owner shall have
the right at any time to mortgage, hypothecate or otherwise encumber all
or any part of its Interest to any Person on the condition that such
mortgagee first enter into an agreement with Licensor, in form and
substance satisfactory to Licensor, agreeing:
(a) to be bound by Owner's covenants and undertakings under the
Hotel Agreements for any period during which it is in
possession of the Hotel;
(b) that in the event of a foreclosure of its mortgage or lien on
the Hotel or this Agreement or of a conveyance in lieu of
foreclosure (i) no default under such mortgage or other
documents evidencing the lien in favour of such mortgagee, and
no proceeding to foreclose the same, and no conveyance in lieu
of foreclosure thereof, will disturb Licensor's right to
perform its duties pursuant to this Agreement or affect any
other right of Licensor under this Agreement, and (ii) this
Agreement shall continue in full force and effect and such
mortgagee, its successors and assigns, or any Person (the
"Foreclosure Purchaser") acquiring the Hotel or any interest
or right therein upon foreclosure sale, or by deed in lieu of
foreclosure, as the case may be, shall be a Qualified Person
and shall automatically recognize this Agreement and
Licensor's rights hereunder for the balance of the Term upon
the same terms, covenants and conditions as herein provided,
with the same force and effect as though this Agreement were
originally made directly between Licensor and such mortgagee,
or its successors and assigns, or the Foreclosure Purchaser,
as the case may be; and
(c) not to sell, transfer or otherwise dispose of any interest it
may have in the Hotel or this Agreement without first causing
any transferee thereof to acknowledge and agree to be bound by
and become a party to such agreements with Licensor.
7.03 Limitation on Owner's Right to Assign and Mortgage
Notwithstanding the provisions of sections 7.01 and 7.02,
Owner shall not without the express prior written consent of Licensor,
which consent may be withheld or delayed, directly or indirectly, by way
of transfer of shares, partnership interests or otherwise, sell, assign,
transfer or otherwise dispose of, or mortgage, hypothecate or otherwise
encumber, any interest, whether legal or beneficial, in all or any part of
its Interest to any Person other than a Qualified Person. Any change in
control of Owner, whether directly or indirectly and whether by way of
transfer of shares, partnership interests or otherwise, to any Person
other than a Qualified Person shall be prohibited unless the express prior
written consent of Licensor, which consent may be withheld or delayed, is
obtained; provided that this section 7.03 shall not apply to a change in
control of Circus Circus Enterprises, Inc. resulting from the change in
ownership of, or direction or control over, shares of Circus Circus
Enterprises, Inc. that are listed and posted for trading on any
internationally recognized securities exchange.
7.04 Licensor's Right to Assign
Subject to the provisions of section 7.06, Licensor shall have
the right at any time to sell, assign, transfer or otherwise dispose of
all or any part of its Interest to any Person, on the condition that:
(a) the Person to whom the Interest of Licensor is to be sold,
assigned, transferred or otherwise disposed of shall first
enter into an agreement with Owner, in form and substance
satisfactory to Owner, agreeing to assume all of the
contractual obligations of Licensor contained in this
Agreement; and
(b) in the case of a sale, assignment, transfer or other
disposition to an Affiliate of Licensor, Licensor shall first
enter into an agreement with Owner, in form and substance
satisfactory to Owner, agreeing to be jointly and severally
liable with such Affiliate to perform all of the contractual
obligations of Licensor contained in this Agreement
notwithstanding such sale, assignment, transfer or other
disposition.
Upon a sale, assignment, transfer or other disposition to a Person other
than an Affiliate, Licensor shall be released from all of its obligations
under this Agreement.
7.05 Licensor's Right to Mortgage
Licensor shall have the right at any time to mortgage,
hypothecate or otherwise encumber all or any part of its right to any
payment to which it is entitled hereunder to a financial institution as
security for its obligations to such financial institution.
7.06 Limitation on Licensor's Right to Assign
Licensor shall not without the express prior written consent
of Owner, which consent may be unreasonably withheld or delayed, directly
or indirectly, by way of transfer of shares, partnership interests or
otherwise, sell, assign, transfer or otherwise dispose of all or any part
of its Interest to any Person other than (i) an Affiliate, (ii) a Person
that results from any merger, amalgamation, consolidation or other
reorganization of Licensor, or (iii) a Person that acquires all or
substantially all the assets of Licensor, and operates a luxury hotel
management business after any such sale, assignment, transfer or other
disposition either on its own or in conjunction with its Affiliates under
the name "Four Seasons". This section 7.06 shall not, however, apply to
a change in control of Four Seasons Hotels Inc. resulting from the change
in ownership of, or direction or control over, shares of Four Seasons
Hotels Inc. that are listed and posted for trading on any internationally
recognized securities exchange.
ARTICLE VIII
EVENTS OF DEFAULT AND TERMINATION
8.01 General
Each of the following events shall constitute an event of
default by the party in respect of which such event occurs:
(a) the failure of either Owner or Operator to pay any amounts
required to be paid by it hereunder to the other party for a
period of 30 days after the date on which notice of the
failure has been given to the defaulting party by the other
party;
(b) the filing of a voluntary assignment in bankruptcy or
insolvency or a petition for reorganization under any
Applicable Law by Owner or Licensor;
(c) the consent to an involuntary petition in bankruptcy or the
failure by Owner or Licensor to vacate, within 60 days from
the date of entry thereof, any order approving an involuntary
petition;
(d) the making of an order, judgment or decree by any court of
competent jurisdiction, on the application of a creditor,
adjudicating Owner or Licensor a bankrupt or insolvent or
approving a petition seeking reorganization or appointing a
receiver, trustee or liquidator of all or a substantial part
of a party's assets, if such order, judgment or decree shall
continue unstayed and in effect for a period of 120
consecutive days; or
(e) the failure of Owner or Licensor to fulfil any of the other
material covenants, undertakings, obligations or conditions
set forth in this Agreement, and the continuance of any such
default for a period of 30 days after written notice of the
failure; provided that if upon receipt of any notice the
defaulting party promptly and with all due diligence cures the
default or, if the default is not susceptible of being cured
within the 30 day period and the defaulting party advises the
other party in writing of the period which will be required to
cure the default and with all due diligence takes and
continues action to cure and cures the failure within that
period so advised, then no event of default shall be deemed to
have occurred unless and until the defaulting party has failed
to take or to continue to take action or to complete the cure
within the period.
8.02 Rights of Non-Defaulting Parties
Upon the occurrence of any event of default pursuant to
section 8.01 and the applicable grace periods having expired, Owner or
Licensor may, without prejudice to any other recourse at law or in equity
which it may have, give to the other notice of its intention to terminate
this Agreement after the expiration of a period of 30 days from the date
of such notice and, upon the expiration of such period, the term of this
Agreement shall expire unless such default has been cured within such 30
day period.
8.03 Remedying Defaults
Notwithstanding anything to the contrary contained in this
Agreement, either Owner or Licensor shall be entitled to remedy any
default of the other under this Agreement with reasonable notice to the
other or without notice in the event of any emergency or apprehended
emergency, without prejudice to any rights under this Agreement and the
party so remedying such default shall be repaid upon demand by the other
for the cost of remedying such default, together with interest on such
cost from the date of incurring such cost at the Interest Rate.
8.04 Bona Fide Dispute
Notwithstanding the provisions of section 8.02, neither Owner
nor Licensor shall be entitled to take any of the actions contemplated in
section 8.02, save and except for the commencement of any legal
proceedings (in which case the provisions of sections 12.08 and 12.09
regarding jurisdiction and service of process shall govern) seeking such
mandatory, declaratory or injunctive relief as may be necessary to define
or protect the rights and enforce the obligations contained in this
Agreement pending the resolution of a Dispute, if before the expiration of
the 30 day notice period referred to in section 8.02, notice of a Dispute
has been delivered in accordance with section 9.02(a) with respect to any
of the foregoing events of default and the procedures set forth in
sections 9.02(b) and (c) are being pursued in good faith (except that for
this purpose under section 9.02(b), the requirement of a 30 day
negotiation period under section 9.02(a) shall be inapplicable and the
period within which to appoint an expert under section 9.02(b) shall
commence on the date of delivery of notice of a Dispute).
8.05 Licensor's Right to Terminate
In addition to any right arising out of section 8.02, Licensor
shall have the right to terminate this Agreement if the site preparation
for the Hotel has not commenced by January 1, 1998, or if the Opening Date
does not occur on or before December 31, 2000, other than by reason of any
default by Licensor in its obligations under this Agreement or the other
Hotel Agreements or due to the occurrence of any one or more Force Majeure
Events. Licensor's right to terminate this Agreement in accordance with
this section 8.05, shall be exercised by written notice by Licensor given
to Owner within 30 days after the relevant date mentioned above.
8.06 Licensor's Remedy for Breach of Provisions
Relating to the Trademarks or the Proprietary Materials
(a) Notwithstanding anything to the contrary contained in this
Agreement, in the event that any provision of this Agreement
relating to the Trademarks or the Proprietary Materials is not
performed in accordance with its specific terms or is
otherwise breached, Licensor shall be entitled to:
(i) without prejudice to any other recourse in law or in
equity which it may have, give Owner notice of its
intention to terminate this Agreement after expiration
of a period of 30 days from the date of such notice and,
upon the expiration of such period, the term of this
Agreement shall expire unless such non-performance or
breach has ceased; or
(ii) pursue any other recourse at law or in equity which it
may have to cease such non-performance or breach,
and, in each case, Licensor shall be entitled to take such
action without regard to anything to the contrary contained in
this Agreement, including (without limitation) the provisions
of Article IX regarding approvals and dispute resolution or
the provisions of Article XII regarding applicable law,
jurisdiction and service of process.
(b) Owner acknowledges and agrees that Licensor would not have an
adequate remedy at law, including (without limitation) the
termination of this Agreement or damages, and would be
irreparably harmed in the event that any of the provisions of
this Agreement relating to the Trademarks or the Proprietary
Materials were not performed in accordance with their specific
terms or were otherwise breached. Accordingly, Owner agrees
that Licensor shall be entitled to injunctive relief to
prevent any breach of this Agreement and to specifically
enforce the terms and provisions hereof relating to the
Trademarks or the Proprietary Materials in addition to any
other remedy to which Licensor may be entitled at law or in
equity.
8.07 Cross-Termination
If the Hotel Management Agreement is terminated after the
Opening Date, or if the Hotel Pre-Opening Services Agreement is terminated
other than as a result of the expiry of its term through the passage of
time, then this Agreement shall automatically terminate as of the date of
termination of such other Hotel Agreements and Owner and Licensor shall
have no future obligations arising out of this Agreement, save and except
as expressly otherwise provided for in this Agreement.
8.08 Use of Trademarks and Proprietary Materials Following
Termination
(a) Without limiting the generality of Articles III and V, after
termination of this Agreement, neither Owner nor any other
owner, manager or operator of the Hotel shall have the right
to use the Trademarks or the Proprietary Materials, and the
right to the use thereof shall continue to be the exclusive
property of Licensor and its Affiliates. Licensor shall have
the right, at the sole cost and expense of Owner, to remove
from the Hotel any of the Proprietary Materials, any materials
displaying the Trademarks and any signs or other indicia of
any connection with the Trademarks, the Proprietary Materials
or Licensor or any of its Affiliates or with any hotel or
resort owned or operated and managed by Licensor or any of its
Affiliates; provided that if this Agreement is terminated by
virtue of any default by Four Seasons of its obligations
hereunder, Four Seasons shall bear the cost and expense of
removal of any such item from the Hotel which Four Seasons
wishes to have removed from the Hotel.
(b) Notwithstanding the provisions of sections 8.08(a) and (c),
after termination of this Agreement, Owner shall have the
right to use, without royalty or similar payments to Licensor,
all of the then existing Operating Equipment and Supplies
(other than printing, stationary and office materials and
supplies, including (without limitation) front office
letterhead, invoices and purchase orders marked with any of
the Trademarks) even though marked with any of the Trademarks,
any derivatives thereof or any other trade names, distinct
emblems, insignia, logos, slogans or distinguishing
characteristics used or associated with any of the Trademarks,
until such existing Operating Equipment and Supplies have been
fully consumed. Owner's right to such use shall be subject to
the execution by Owner of a registered user agreement or other
applicable document consistent with the foregoing protecting
the proprietary interest of Licensor therein.
(c) Subject to section 8.08(b), upon termination of this
Agreement, Owner shall return to Licensor (or as it may
direct) all tangible Proprietary Materials in the possession
or under the control of Owner or any of its Affiliates or any
of their respective directors, officers, employees, agents or
representatives.
8.09 Claims on Termination
Notwithstanding anything contained in this Agreement, (i) the
termination of this Agreement shall not prejudice any cause of action,
claim or right of either Owner or Licensor against the other accrued or to
accrue on account of any default by the other of its obligations under
this Agreement or arising as a result of the termination of this
Agreement, and any term, covenant, condition or provision of this
Agreement referable thereto shall not merge, but shall survive, the
termination of this Agreement, and (ii) the Dispute resolution procedure
set forth in section 9.02 shall no longer apply to Owner or Licensor after
termination of this Agreement and any of Owner or Licensor shall be
entitled to commence legal proceedings seeking any recourse available to
it at law or in equity, including (without limitation) mandatory,
declaratory or injunctive relief to define or protect the rights and
enforce the obligations contained in this Agreement. If this Agreement is
terminated, Licensor shall be entitled (in addition to any rights or
remedies available to it at law or in equity) to all costs and expenses
incurred by Licensor in connection with the enforcement of its rights
under this Agreement.
ARTICLE IX
APPROVALS AND DISPUTE RESOLUTION
9.01 Approvals
Except as otherwise provided in this Agreement:
(a) all opinions contemplated by this Agreement must be reasonably
formed and the approval of any document, proposed action or
other matters in accordance with this Agreement shall not be
unreasonably withheld or delayed; provided that in determining
the reasonableness of any such withholding or delay, full
consideration shall be given to the effect of such denial or
refusal on the ability of Operator to operate and manage the
Hotel as a World Class Luxury Hotel; and
(b) the following procedure shall be followed with respect to any
matter requiring approval:
(i) such documents or a written description of the proposed
action or other matter requiring approval shall be
submitted by the party having responsibility therefor
(the "requesting party") to the party having the right
of approval, which submission shall be accompanied by a
request for approval in accordance with this Agreement;
(ii) as soon as possible but not later than 30 days after
receipt of any proposed budget or 10 days after the
receipt of any other written request for approval (or
such longer time period as may be specified for approval
with respect to any item in this Agreement) the party
having the right of approval shall notify in writing the
requesting party of its approval or of its specific
objections to the document, proposed action or other
matter;
(iii) failure to respond in writing with specific objections
within the maximum time period specified in section
9.01(b)(ii) shall constitute approval of all matters
submitted;
(iv) within 10 days of the receipt of any objections (or such
other time period as may be specified in this
Agreement), the requesting party shall:
(A) acquiesce to such objections; or
(B) reach an agreement with the party objecting; or
(C) call for a meeting of representatives of Owner
and Licensor to be convened to consider the
matter in dispute (by giving notice to convene
such meeting in writing indicating the specific
issues in dispute to be resolved by such
representatives); and
(v) as soon as possible, but not later than 10 days after
receiving a request to convene a meeting in accordance
with section 9.01(b)(iv)(C), representatives of Owner
and Licensor shall convene to consider the specific
issues in dispute and resolve them to the mutual
satisfaction of the parties.
Once any document, proposed action or other matter is approved, no change
or amendment thereof may be effected without the prior consent of both
parties.
9.02 Dispute Resolution
Unless otherwise specifically provided for in this Agreement,
all disputes, controversies, claims or disagreements arising out of or
relating to this Agreement singularly, a "Dispute" and collectively,
"Disputes") shall be resolved in the following manner:
(a) first, within 10 days after the receipt of notice of a Dispute
by one party to the other, the parties shall in good faith
attempt to negotiate for a period of 30 days in an effort to
resolve the Dispute;
(b) second, if the parties are unable to resolve the Dispute
within such 30 day period, they shall retain a mutually
acceptable expert to assist them in resolving the Dispute
within 10 additional days, failing which they shall each
retain an expert on the eleventh day and the two experts thus
chosen shall together act as the expert for the purposes of
this section 9.02(b). If either party shall fail to appoint
an expert as required hereunder, the expert appointed by the
other party shall be the sole expert. Within 60 days after
the experts (or such single expert) have been retained, the
experts (or such single expert) shall, on a non-binding basis,
advise the parties in writing of their views, and the parties
shall in good faith attempt to resolve the Dispute based on
such views. The fees and expenses of the experts (or such
single expert) shall be borne equally; and
(c) third, any party to the Dispute shall be entitled to join any
Dispute proceeding arising out of this Agreement with any
other Dispute proceeding arising out of either this Agreement
or any of the other Hotel Agreements.
Notwithstanding anything contained in this section 9.02, any of Owner or
Licensor shall be entitled to commence legal proceedings (in which case
the provisions of sections 12.08 and 12.09 governing jurisdiction and
service of process shall govern) seeking such mandatory, declaratory or
injunctive relief as may be necessary to define or protect the rights and
enforce the obligations contained herein pending the settlement of a
Dispute.
ARTICLE X
OWNER'S AND LICENSOR'S LIABILITY
10.01 Owner's and Licensor's Liability
(a) Owner hereby indemnifies and holds Licensor and its Affiliates
and any of their respective directors, officers, employees,
agents and representatives harmless from and against any and
all liabilities, fines, suits, claims, obligations, damages,
penalties, demands, actions, costs and expenses of any kind or
nature (including, without limitation, legal fees) arising out
of any breach of this Agreement by Owner or any of its
directors, officers, employees, agents or representatives.
(b) Licensor hereby indemnifies and holds Owner and any of its
directors, officers, employees, agents and representatives
harmless from and against any and all liabilities, fines,
suits, claims, obligations, damages, penalties, demands,
actions, costs and expenses of any kind or nature (including,
without limitation, legal fees) arising out of or caused by
any proceedings against Owner with respect to the infringement
of the rights of any Person arising from the use of the
Trademarks or the utilization of the Proprietary Materials in
connection with the marketing, operation, management,
supervision or direction of the Hotel in accordance with this
Agreement.
ARTICLE XI
ACKNOWLEDGMENTS
11.01 Owner's Acknowledgments
Owner acknowledges that:
(a) in entering into this Agreement and except as provided in
section 11.02, Owner has not relied on any statement, study,
representation or warranty of Licensor, any of its Affiliates
or any Person actually or apparently engaged by them or on
their behalf, express or implied, relating to the Hotel,
including (without limitation) any statement, study,
representation or warranty relating to the structural
integrity, safety or other similar aspects of the Hotel, the
competence of the Consultants, the compliance of the Hotel
with Applicable Law, any projection or pro forma statements of
earnings or profits or loss or statements as to future success
of the Hotel which may have been prepared by or on behalf of
Licensor, any of its Affiliates or any Person actually or
apparently engaged by them or on their behalf, and Owner
understands that no guarantee is made or implied by Licensor
or by any of its Affiliates with respect thereto; and
(b) Licensor is relying on the representations, warranties and
covenants of Owner set out in the Hotel Agreements in
connection with Licensor entering into this Agreement and
fulfilling all of its obligations under this Agreement.
11.02 Licensor's Acknowledgments
Licensor acknowledges that Owner is relying on the
representations, warranties and covenants of Licensor set out in this
Agreement, and of the Affiliates of Licensor set out in the other Hotel
Agreements, in connection with Owner entering into and fulfilling its
obligations under this Agreement.
ARTICLE XII
GENERAL PROVISIONS
12.01 Entire Agreement
This Agreement and the other Hotel Agreements, together with
all schedules attached hereto and thereto, constitute the entire agreement
between the parties with respect to the subject matter contemplated herein
and therein and supersedes all oral statements and prior writings with
respect to the subject matter contemplated herein and therein. Any other
agreements regarding the subject matter contemplated herein or therein,
whether written or oral, are terminated.
12.02 Modification and Changes
This Agreement cannot be changed or modified except by another
agreement in writing signed by both parties or by their respective duly
authorized agents and consented to by all the parties to the other Hotel
Agreements.
12.03 Partial Invalidity
In the event that any one or more of the phrases, sentences,
clauses, Articles or sections contained in this Agreement shall be
declared invalid or unenforceable by order, decree or judgment of any
court having jurisdiction, or shall be or become invalid or unenforceable
by virtue of any Applicable Law, the remainder of this Agreement shall be
construed as if such phrases, sentences, clauses, Articles or sections had
not been inserted except when such construction (a) would operate as an
undue hardship on either party or (b) would constitute a substantial
deviation from the general intent and purposes of the parties as reflected
in this Agreement. In the event of either (a) or (b) above, the parties
shall use their best efforts to negotiate a mutually satisfactory
amendment to this Agreement to circumvent such adverse construction.
12.04 Counterparts
This Agreement may be executed simultaneously in counterparts,
each of which counterparts shall be deemed an original. In proving this
Agreement it shall not be necessary to produce or account for more than
one of the counterparts.
12.05 Waivers
No failure by a party to insist upon the strict performances
of any provision of this Agreement, or to exercise any right or remedy
consequent upon the breach thereof, shall constitute a waiver of any such
breach or any subsequent breach of such provision. No provision of this
Agreement and no breach thereof shall be waived, altered or modified
except by written instrument. No waiver of any breach shall affect or
alter this Agreement, but each and every provision of this Agreement shall
continue in full force and effect with respect to any other then existing
or subsequent breach thereof.
12.06 Enurement
This Agreement shall enure to the benefit of and be binding
upon each of the parties and their respective successors and permitted
assigns.
12.07 Applicable Law
This Agreement shall be construed, interpreted and applied in
accordance with, and shall be governed by, the laws of the State of Nevada
and the federal laws of the United States of America applicable therein.
12.08 Jurisdiction
The parties hereto irrevocably:
(a) submit and consent to the non-exclusive jurisdiction of the
courts of the State of Nevada located in Las Vegas, Nevada as
regards any suit, action or other legal proceedings arising
out of this Agreement;
(b) waive, and agree not to assert, by way of motion, as a defense
or otherwise, in any such suit, action or proceedings, any
claim that they are not personally subject to the jurisdiction
of the courts of the State of Nevada located in Las Vegas,
Nevada, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or
proceeding is improper, or that this Agreement or the subject
matter hereof may not be enforced in such courts; and
(c) agree not to seek, and hereby waive any review by any court
which may be called upon to enforce the judgment of the courts
referred to in section 12.08(a), of the merits of any such
suit, action or proceeding in the event of failure of any
party to defend or appear in any such suit, action or
proceeding.
12.09 Designation of Agent for Service of Process
(a) Licensor irrevocably designates the General Manager at the
Hotel as its Nevada agent to accept and acknowledge on its
behalf service of any and all process in any such suit, action
or proceeding brought in the State of Nevada and Licensor
agrees and consents that any such service of process as
specified above shall be taken and be deemed to be valid
personal service upon Licensor and that any such service of
process shall be of the same force and validity as if service
were made upon it according to the laws governing the validity
and requirements of such service in the State of Nevada, and
Licensor waives all claims of error by reason of any such
service. Notwithstanding the foregoing, Licensor may, by
notice to Owner, change its designation of any agent for
service of process. Without in any way limiting the validity
of such service of process, Owner shall promptly mail a copy
of such process to Licensor at its address set forth in
section 12.10.
(b) Owner irrevocably designates its General Counsel at ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇.▇. ▇▇▇▇▇ as its
Nevada agent to accept and acknowledge on its behalf service
of any and all process in any such suit, action or proceeding
brought in the State of Nevada, and Owner agrees and consents
that any such service of process as specified above shall be
taken and deemed to be valid personal service upon Owner and
that any such service of process shall be of the same force
and validity as if service were made upon them according to
the laws governing the validity and requirement of such in the
State of Nevada, and Owner waives all claims of error by
reason of any such service. Notwithstanding the foregoing,
Owner may, by notice to Licensor, change its designation of
any agent for service of process. Without in any way limiting
the validity of such service of process, Licensor shall
promptly mail a copy of such process to Owner at its address
set forth in section 12.10.
12.10 Notices
Except as may otherwise be provided in this Agreement, all
notices, demands, statements, requests, consents, approvals and other
communications (collectively, "Notices") required or permitted to be given
hereunder, or which are to be given with respect to this Agreement, shall
be in writing, duly executed by an authorized officer or agent of the
party so giving such Notice, and either personally delivered to any duly
authorized representative of the party receiving such Notice or sent by
facsimile transmission, registered or certified mail, or by courier
service, return receipt requested, addressed:
If to Licensor, to: Four Seasons Hotels Limited
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Box 24, Suite 2400
Toronto, Ontario
Canada M5B 2M6
Attn: ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Owner, to: Mandalay Corp.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇.▇.▇. ▇▇▇▇▇
Attn: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Circus Circus Enterprises, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇.▇.▇. ▇▇▇▇▇
Attn: President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
All Notices shall be effective for all purposes upon personal delivery
thereof or, if sent by facsimile transmission, shall be effective on the
date of transmission duly shown on the confirmation slip, or, if sent by
mail or air freight or courier service, shall be effective on the date of
delivery duly shown on the return receipt. Any party may at any time
change the addresses for Notices to such party by giving a Notice in the
manner set forth in this section 12.10.
12.11 Time of Essence
Time shall be of the essence of each and every term and
obligation of this Agreement.
12.12 Estoppel Certificates
Each party shall, upon at least 10 days' written notice,
execute and deliver to any other party, and to any other Person having or
about to have a bona fide interest in the Hotel as such other party may
designate in writing, a statement certifying that this Agreement is
unmodified and in full force and effect, or if not, stating the details of
any modification and stating that as modified it is in full force and
effect, the date to which payments have been paid and whether or not, to
the knowledge of the certifying party, there is any existing default on
the part of any other party.
IN WITNESS WHEREOF the parties have executed or caused this
Agreement to be executed, all as of the date first above written.
FOUR SEASONS HOTELS LIMITED
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇
c/s
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
MANDALAY CORP.
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
c/s
By: PRESIDENT
SCHEDULE "A"
DEFINITIONS
(a) "Confidential Proprietary Materials" has the meaning set out
in section 5.04(a).
(b) "Dispute" has the meaning set out in section 9.02.
(c) "Interest" means (i) in respect of Owner the right, title and
interest of Owner in and to the Hotel and the Hotel
Agreements, and (ii) in respect of Licensor, the right, title
and interest of Licensor in and to (A) the business of
Licensor of operating and managing the Hotel, and (B) the
Hotel Agreements.
(d) "Proprietary Materials" means all confidential information and
other intellectual property, including (without limitation)
trade secrets and copyrighted materials (i) relating to
Licensor or any of its Affiliates, the business or affairs of
Licensor or any of its Affiliates or any hotel or resort which
Licensor or any of its Affiliates owns or operates and
manages, and (ii) approved by Licensor for the use of Owner
pursuant to this Agreement from time to time in connection
with the marketing, operation and management of the Hotel,
including (without limitation) (A) operational manuals,
including (without limitation) the policies and procedural
manuals, (B) corporate sales records (other than sales records
of the Hotel) and guest histories (other than a computer
diskette containing the guest history for the Hotel), (C)
employee attitude surveys, both on a departmental and on a
total hotel basis, (D) alternative cuisine recipes and
materials, (E) software and other management programs
developed by Licensor or any of its Affiliates,
notwithstanding any modification or alteration made for
application at the Hotel and notwithstanding their maintenance
or administration by any other person (other than those
prepared by Licensor at the request of Owner for use
exclusively in connection with the Hotel and for which
Licensor has charged the costs and expenses relating to the
development of such software and other management programs
solely to Owner as an Operating Expense), (F) back-up material
relating to the operating and design standards of any hotel or
resort owned or managed and operated by Licensor or any of its
Affiliates, and (G) internal audit reports prepared by
Licensor (other than those prepared by Licensor at the request
of Owner for use exclusively in connection with the Hotel and
for which Licensor has charged the costs and expenses relating
to the development of such internal audit reports solely to
Owner as an Operating Expense).
(e) "Qualified Person" means a Person that, in respect of the
operation of five star or luxury hotels, (i) has adequate
financial capacity to perform the obligations of Owner under
the Hotel Agreements, (ii) is not of ill repute, and (iii) is
not a Person whose prior activities, criminal record, if any,
reputation, habits and associations would cause a prudent
business Person not to associate with such Person in a
commercial venture.
(f) "Related Materials" has the meaning set out in section 3.01.
(g) "Services" has the meaning set out in section 3.01.
(h) "Trademarks" means the trademark applications and
registrations set out in Schedule "B", all owned by Licensor,
and such additional trademark applications and registrations
containing or consisting of the words "Four Seasons" and
formats comprising combinations and variations thereof
consisting of the words "Four Seasons" and other words and
design elements for use in connection with hotel and resort
services, lodging services, restaurant services, reservation
services and other services and goods as may be procured by
Licensor from time to time and licensed to Owner for use
pursuant to this Agreement. Trademarks shall exclude,
however, all words and design elements created and owned
exclusively by Owner for use in connection with the Hotel and
its restaurants, services and other facilities as permitted by
Licensor so long as such indicia are not similar to the
Trademarks.
SCHEDULE "B"
TRADEMARK APPLICATIONS AND REGISTRATIONS
▇▇▇▇ REG. NO. CLASSES
FOUR SEASONS RESORT
1,687,336
42
PRIVATE CONCIERGE NETWORK
1,670,908
42
PRIVATE RESERVE
1,495,545
42
ALTERNATIVE CUISINE
1,678,892
42
Tree Device
1,156,739
42
