THE ROYAL MIRAGE
BEACH HOTEL
(A SUN INTERNATIONAL RESORT)
Management Agreement between
The Government of Dubai (hereinafter called "Owner")
and
Sun International Management Limited (hereinafter called "Manager"), a company
incorporated under the laws of the British Virgin Islands and having its
registered office in ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and
Sun International Hotels Limited, a company Incorporated under the laws of The
Commonwealth of the Bahamas
Recitals
Whereas Owner is causing to have constructed a 258 room luxury resort hotel
("the Property") at Jumeira Beach, Dubai:
Whereas Manager has extensive experience in planning, designing, constructing,
decorating, furnishing, equipping, promoting, operating and managing luxury
resort hotels in different areas of the world and is willing to manage the
operation of the Property and to perform certain pre-opening management
services;
Whereas as Owner and Manager wish to enter into an agreement for such operating
management and pre-opening management services;
Now therefore the parties hereto covenant and agree as hereinafter set out:
1. Definitions
Unless inconsistent with the context, the following terms shall have the
meaning assigned to them hereunder. When used herein, the words
1.1 "Owner" - The Government of Dubai
1.2 "Manager" - Sun International Management Limited
1.3 "The Property" - the luxury resort hotel, currently being constructed and
currently named the Mirage Beach, located at Jumeria Beach, Dubai, as well
as any extension and/or addition to the resort on the adjacent site
1.4 "IAS" - the accounting standard as published by the International
Accounting Standards Committee
1.5 "Gross Revenues" - all revenue and income generated from the operation of
the Property and the related facilities as calculated in accordance with
IAS, after deducting all bad debts written off (unless and until such
debts are recovered whereupon they shall be treated as receipts and
revenue in the operating year during which they are recovered), direct
subsidy payments, governmental allowances, grants and awards, or other
forms of incentive payments, or awards, gratuities to employees, PROVIDED
that such revenue shall not include:
(a) receipts of tenants, licensees and concessionaires (but including
rents received from such tenants, licensees and concessionaires);
(b) federal and local taxes collected from patrons or guests;
(c) proceeds arising from the sale or other disposition of capital
assets, operating equipment or supplies;
(d) all proceeds from insurance claims (except those resulting from loss
of revenue);
(e) interest income earned on funds deposited in banks or any other
investment activity; and
(f) service charge collected from patrons or guests;
1.6 "Gross Operating Profit" - the Gross Revenues of the Property (including
any staff gratuities not paid out to employees) and its related facilities
LESS:
A. All operating expenses calculated pursuant to IAS including, but not
limited to:
(i) cost of food, beverages and other saleable items;
(ii) remuneration, benefits and entitlement of all the employees of
the Property and the related facilities including the General
Manager and the Financial Controller;
(iii) operating expenses of a revenue nature including but not
limited to costs of re-supplying rooms, after occupancy, of
printing and stationery and other guest supplies, laundry and
all other costs associated with supplies and providing
accommodation and food and beverage services;
(iv) unallocated expenses of a revenue nature related to the
operation of the Property and the related facilities including
administration and general expenses, cost of training
employees, advertising and business promotion expenses, heat,
light, power and water and repairs and maintenance expenses;
(v) all other expenses of a revenue nature relating to the
operation of the Property and the related facilities including
the cost of replacement of items of operating equipment;
(vi) a reasonable provision for doubtful debts;
(vii) taxes (if any and only to that extent) assessed against or
payable by the Manager in connection with the operation of the
Property and the related facilities, but excluding any tax
payable on profit and/or income in the hands of the Owner
and/or of the Manager and/or on or in respect
of the fees receivable by the Manager hereunder and/or in the
nature of withholding tax or lump sum deductions;
(viii) the Base Fee payable to the Manager under Section 8.1;
(ix) legal, accountancy and other professional fees, costs and
expenses incurred in connection with the operation of the
Property and the related facilities;
(x) costs incurred in respect of any local recruited persons who
may be selected for a reasonable period of training prior to
entering the service of the Property and the related facility;
(xi) out-of-pocket and traveling expenses of employees of the
Manager necessarily incurred to ensure the efficient
management of the Property and the related facilities;
(xii) commissions allowed to travel agents;
(xiii) insurance premiums;
(xiv) rent paid to the Owner for staff accommodation; and
(xv) all other payments/expenses of a revenue nature incurred in
the course of operating the Property and the related
facilities.
B. Depreciation of furniture, fixtures and equipment as listed in
Schedule A, but excluding depreciation on building; and
C. Amortization of pre-opening management expenses and pre-opening
expenses over a period of sixty (60) months from the opening of the
Property to paying patrons.
1.7 "Base Fees" - the fees based upon a percentage of Gross Revenues payable
by Owner to Manager for performance of the management duties described
herein
1.8 "Incentive Fee" - the fees based upon a percentage of Gross Operating
Profit payable by Owner to Manager for performance of the management
duties described herein
2. Appointment
2.1 Owner appoints and engages Manager, which accepts such appointment and
engagement, to service Owner as its exclusive agent in the performance of
the ongoing and pre-opening management, direction, control and general
conduct of the Property subject to the terms and conditions herein
contained.
2.2 Owner recognizes that Manager is part of an international organization and
that some services to be performed by the Manager hereunder may be
performed by Manager at such location as Manager may reasonably determine
other than Dubai.
3. Terms of Agreement
3.1 Subject to earlier termination as provided in Clause 16 below this
agreement shall commence from the date of signature and shall endure until
twenty (20) years from the opening of the Property to paying patrons.
3.2 Owner and Manager shall have the right to renegotiate the management fee
schedule described in Clause 8 of this agreement after 10 years from the
opening of the Property provided that any amendments to this Clause 8
shall be commercially reasonable and consistent with prevailing industry
standards.
4. Pre-opening Management
4.1 Manager shall, as exclusive agent for Owner for such purposes, perform
Pre-opening management services during the course of the development of
the Property which shall comprise some of or any combination of the
following:
4.1.1 to review and give advice on the schematic plans, final sets of
architectural plans and specifications;
4.1.2 to give assistance and advice regarding interior design, including
the theme treatment and functional layout of facilities, advice
regarding layout plans, elevations, color schemes and
specifications for carpeting, furniture, fabrics, decor and such
like;
4.1.3 to give assistance and advice regarding the recommended standards
for water treatment, heating, ventilation, air conditioning,
plumbing and drainage, electrical distribution, elevators,
escalators and telephone and public address systems;
4.1.4 to give assistance and advice regarding lighting plans and
specifications;
4.1.5 the establishment of operating standards, practices and procedures
in accordance with those generally associated with international
luxury resort hotels;
4.1.6 the recruitment and training of the optimum number of employees
required to operate the Property and to ensure that they are
competent to deliver the standards of service required in a luxury
property; and
4.1.7 the organization and operation of a pre-opening marketing campaign
including any pre-opening promotional functions.
5. Manager's Reimbursement for Pre-opening Management
5.1 As consideration for the performance of the Pre-opening management
services pursuant to the terms of Article 4.1, Owner shall reimburse
Manager in U.S. dollars all reasonable traveling and reasonable
out-of-pocket expenses of Manager which are directly attributable to the
performance of Manager's duties in terms of Article 4 including the
payroll costs of Manager's executives involved. Manager shall submit
quarterly estimates of these costs and expenses to Owner in advance. These
expenses shall be paid by Owner to Manager within thirty (30) days of the
periodic rendition of an account therefor by Manager, duly supported by
vouchers and other relevant back-up documentation but that, in regard to
executive time, travel and subsistence, these reimbursable shall be
limited to two hundred and fifty thousand U.S. Dollars ($250,000).
6. Manager's Management of Owner's Property
6.1 Manager shall, subject to the terms hereof, define, alter and vary from
time to time the policies and procedures to be observed in the management
of the Property, which shall encompass all administrative, accounting,
budgeting, marketing, personnel, operational and other practices and
procedures to be observed and applied in relation to the
operation of the Property, provided that Manager shall continue to operate
the Property in accordance with internationally accepted luxury standards
for resort hotels.
6.2 Subject only to the provisions of Article (6.1), (7) and (11) of this
Agreement, Manager as exclusive agent for Owner for such purposes shall
provide the management, administration, control and conduct of the
Property and to that end Manager shall utilize its resources and skills
and is hereby authorized and empowered to supervise, monitor, approve and
otherwise oversee, or to procure the supervision, monitoring or approval,
as the case may be, of the following:
6.2.1 the selection and appointment of a General Manager, other senior
executives, other managers and heads of department of the Property
all of whom shall be employed on a full time basis by and for the
account of Owner, as may be considered necessary from time to
time;
6.2.2 the determination of the terms of service and the remuneration
payable to all members of personnel of the Property including all
perquisites of employment;
6.2.3 the conduct of purchasing of necessary provisions and supplies for
the Property;
6.2.4 the setting and maintenance of operations procedures, systems and
standards for the Property commensurate with a deluxe resort
hotel;
6.2.5 the retention and periodic renewal, as applicable, of authorities
and licences required in connection with the operation of the
Property;
6.2.6 the administration of such functions as are usually carried out by
managers, secretaries and accountants of an hotel business similar
to that which is conducted at the Owner's property;
6.2.7 after the opening of the Property, the procurement of the
furniture, fixtures, equipment and operating supplies, and of such
services and other merchandise as may be required for the proper
operation and maintenance of the Property;
6.2.8 the completion and submission of returns and the compliance
with other formalities required by any applicable laws, rules or
regulations pertaining to property taxes, business license fees
and any other legislation applicable to the operation of a
property in Dubai;
6.2.9 the planning and execution of all major advertising and
promotional campaigns and other marketing activities for the
promotion of the Property;
6.2.10 the determination and establishment of tariffs, prices and rates
for the facilities to be offered by the various elements of the
Property;
6.2.11 the establishment and maintenance of accounting and other
appropriate managerial systems for the control and administration
of the Property;
6.2.12 the keeping of proper books of account and records as required by
law and good management accounting and secretarial practices;
6.2.13 the preparation and submission to the Owner, not later than thirty
(30) days before the commencement of each financial year, of an
annual operating plan and budget for the Property as well as an
annual capital expenditure plan;
6.2.14 the preparation and provision to the Owner of quarterly unaudited
financial statements in respect of the Property, not later than
six (6) weeks after the end of the quarter to which they relate;
6.2.15 the preparation and provision to the Owner of annual audited
financial statements in respect of the Property prepared in
accordance with IAS by not later than ninety (90) days after the
end of each financial year;
6.2.16 to make available all books of account and other records for
inspection by Owner;
6.2.17 the maintenance of the physical plant of the Property in first
class condition;
6.2.18 generally, the doing or procurement of whatever else may
be necessary to carry out the Manager's mandate as described in
this Agreement.
7.7. Entrenched Provisions
7.1 Notwithstanding anything to the contrary contained in this Agreement
Manager shall not engage in, agree not to perform or undertake any of the
acts, procedures or matters referred to in Article 7.2, except with the
prior written approval of Owner.
7.2 The acts, procedures and matters referred to in Article 7.1 are the
following: -
7.2.1 the establishment and opening of new lines of business as agent
for the Owner except those directly related to the operation of
the Property;
7.2.2 the purchase or sale of assets not provided for in any budget
approved by Owner.
7.2.3 the incurring of borrowings as agent for Owner not provided for in
any budget approved by the Owner;
7.2.4 the issuing and entering into any guarantees, indemnity or
suretyship of whatsoever nature in respect of the Property and the
related facilities;
7.2.5 the pledging, mortgaging, hypothecating or encumbering of any
assets of the Owner;
7.2.6 the hiring of the Property General Manager and the Property
Controller and the termination of the services of either of them;
7.2.7 making any loan other than normal credit allowed to guests and
other customers in the ordinary and usual course of business;
7.2.8 demolishing, removing, scrapping, selling or disposing of any item
forming part of the Property and the related facilities, their
furnishing, fixture, furniture, equipment or motor vehicles other
than in the ordinary and usual course of business;
7.2.9 the appointing of the Property's lawyers and external auditors;
and
7.2.10 the hiring of any employee whose total emoluments (including
without limitation salary and other benefits) exceed seventy five
thousand U.S. Dollars ($75,000) per annum.
8. Management Fees and Reimbursables
Owner shall pay to Manager, as remuneration for the operating management
services rendered under this Agreement, the amounts set out in this
Article 8 in respect of each of Owner's financial years during the period
that the Property is open to paying patrons throughout the term of this
Agreement, or proportionately in respect of a fraction of such a financial
year.
8.1 Base Fee
Owner shall pay to Manager a base fee equal to one and one half percent
(1 1/2%) of the Gross Revenue.
The base fee shall be calculated by reference to the annual audited
financial statements in regard to the Property, but shall be paid at
quarterly intervals within forty five (45) days after the end of the
quarter in respect of which the sum is payable. The payment in respect of
the final quarter shall be made within fourteen (14) days of the
completion, signature and certification by the Property's external
auditors of the annul audited financial statements for that financial
year. Each payment to be made in respect of the first three quarters shall
be computed on a cumulative basis by reference to the quarterly management
accounts for the preceding quarter, and on completion, signature and
certification of the annual audited financial statements for the financial
year the Base Fee for the whole of that year shall be computed and
8.1.1 the amount by which the Base Fee so computed exceeds the three
quarterly payments on account thereof in terms of the foregoing
shall be paid immediately by Owner to Manager, or
8.1.2 the amount by which the Base Fee is computed falls short of the
three quarterly payments of account hereof in terms of the
foregoing shall be paid immediately by Manager to Owner.
8.2 Incentive Fee
Owner shall pay to Manager, in addition to the base fee, an incentive fee
equal to ten percent (10%) of the Gross Operating Profit.
The incentive fee shall be calculated by reference to the annual audited
financial statements, in respect of the Property, but shall be paid at
quarterly intervals, within forty five (45) days after the end of the
quarter in respect of which same is payable. Teach payment to be made in
respect of the first three quarters shall be computed by reference to the
quarterly management account of the preceding quarter. The payment in
respect of the final quarter shall be made within fourteen (14) days of
the completion, signature and certification by the Property's external
auditors of the annual audited financial statements for that financial
year and shall be computed by taking into account the three previous
payments of account thereof.
8.2.1 If the amount of 10% of the annual Gross Operating Profits as
certified by the Property's external auditors exceeds the three
quarterly payments, the excess shall be paid immediately by Owner
to Manager; or
8.2.2 If the amount of 10% of the annual Gross Operating Profits as
certified by the Property's external auditors falls short of the
quarterly payments, the shortfall shall be paid immediately by
Manager to Owner;
8.3 Reimbursement of Expenses
Owner acknowledges that Manager and its affiliates operate an
international marketing and sales organization with offices in Europe,
Africa and the U.S.A. and representation through general sales agents in
other territories. Owner shall bear and accordingly reimburse Manager,
within thirty (30) days of receiving Manager's invoice and relevant
support documentation, for all reasonable costs and expenses incurred by
Manager for Owner's account under the provisions of this agreement,
provided that after the opening of the property, the proposed expenses for
each year will be submitted in the yearly operation budget and should be
mutually agreed between the Owner and the Manager. Only agreed expenses as
per the yearly budget (or by subsequent agreement between Owner and
Manager), if actually incurred by the Manager, shall constitute
reimbursable expenses after opening.
By way of example, the costs and expenses to be reimbursed under this
Article 8.3 subject to the limitations described in 8.3 shall include the
following: -
8.3.1 reasonable travel and reasonable out-of-pocket expenses directly
attributable to the carrying out by the Manager of its management
services in terms of this Agreement and incurred by, among others,
Manager's management executives, food and beverage executives,
marketing and sales executives, accounting and computer systems
executives, design and construction executives and other
specialist executive personnel;
8.3.2 marketing costs incurred by Manager (other than overhead marketing
office costs) directly related to the marketing and promotion of
the Property, inclusive of payroll costs for time spent by
personnel engaged in marketing and/or representing the Property;
and
8.3.3 the salaries and wages and other payroll costs and moving and
related expenses, without any profit or premium, of employees of
Manager attributable to any extended periods where they are
seconded to the employment of the Owner and the Property.
8.4 Payments
All payments by Owner to Manager in terms of this Article 8 shall be made
in United States Dollars, free of bank commission or other deductions, and
be remitted to such place(s) as Manager may designate from time to time.
9. Insurance to be Maintained by Owner
9.1 Owner shall at all times during the period of any development project,
procure and maintain, as may be applicable under the development project
in question, adequate third party liability and property insurance
protecting both Manager and Owner against loss or damage arising in
connection with the preparation, construction, refurbishment, upgrading,
furnishing and equipping of any of Owner's businesses, including that of
contractors, subcontractors and such like in the performance of all
construction and related agreements entered into in respect of the
development project in question.
9.2 The Manager and the Owner shall agree to take out (as an operating
expense) and maintain, at all times, with effect from the opening of the
Property and throughout the continuance of this Agreement, under such
insurance policies issued by such insurers as the Owner and Manager
agreed, adequate coverage in relation to the Property and the related
facilities and their operation against risks mutually agreed by Manager
and Owner. The Manager and Owner shall agree on the level and adequacy of
all insurances, and neither Manager nor Owner shall have any claim against
the other with respect to adequacy of level of insurance. Notwithstanding
anything to the contracy contained in this agreement, the Manager is
responsible to, and shall ensure that, the following classes of insurance
are maintained as agreed between Owner and Manager.
MINIMUM ACCEPTABLE
(a) Property All Risks - Actual value of building
Material Damage - and contents
(b) Deterioration of Stock Actual Value
a) Refrigerated Stocks
b) Other Stocks and
Working Replacements
(c) Business Interruption 3 years gross profit (sales
less variable expense)
(d) Workmen's Compensation Premium basis As per U.A.E. Law is the annual
wage cost
(e) Employers Liability As per U.A.E. Law and up to 1.5
million pound sterling or 10
million Dirhams whichever is
higher
(f) Public Liability 10 million Dirhams or 1.5 million
pound sterling whichever is higher
(g) Loss of Money Negotiable 400.0 thousand Dirhams
Instruments
Non-negotiable 500.0 thousand Dirhams
Instruments
(h) Fidelity Guarantee No restriction UK pound sterling 250.0 thousand
to any category per employee
of employee
(i) Motor Vehicles As per Inventory
(Including motorized
vessels)
Each insurance policy obtained under this Clause 9.2 shall provide that
its cover will not lapse or be terminated, suspended or altered until thirty
(30) days after the relevant insurer has given notice to that effect to the
Manager at the Property and to the Owner at his address as stated in this
Agreement (or such other address as he may from time to time notify to the
relevant insurance for the purpose).
The Manager shall supply copies of each of the insurance policies obtained
under this Clause 9.2 to the Owner forthwith upon effecting the same and of each
insurance certificate and premium receipt forthwith upon receiving the same. The
Owner and his representatives shall be entitled to have access to the originals
of all the insurance policies obtained under this Clause 9.2 and to have
produced to him or them any other evidence he or they may from time to time
require that all the said policies are in full force and effect.
The Manager shall not do or omit to do any act or thing whereby the said
policies or any of them may be or become void or voidable.
Each of the insurance policies obtained under this Clause 9.2 shall be
reviewed by the Manager with the Owner at least annually during the continuance
of this Agreement to determine its continuing suitability in view of exposures
reasonably anticipated over the following year and, after each such review, the
Manager shall take such action with
regard thereto as the Owner may reasonable require, including without limitation
action to increase the amount covered thereby PROVIDED that the Manager shall
not without its agreement be required to decrease the amount covered by any such
insurance policies.
The Manager shall promptly cause to be investigated all accidents, claims
and other occurrences which may be within the coverage of any of the insurance
policies obtained under this Clause 9.2 and shall promptly report the same both
to the Owner and to the relevant insurer, and shall comply strictly with the
provisions of the relevant policy concerning claims made thereunder.
If the Property or the furnishing, fixtures, furniture or equipment
thereof or therein shall from any cause whatsoever be wholly or partially
destroyed or rendered unfit for use;
(a) The Owner shall, as soon as possible after receipt thereof, expend
any insurance monies paid under the property insurance policy in, or
so far as such monies may go towards, repair, reinstatement,
reconstruction and replacement, as necessary, of the property
destroyed or rendered unfit for use; and
(b) except as provided in paragraph (a) above, the Manager shall have no
claim against the Owner whether for compensation for loss of profit
or opportunity or for any other matter or thing whatsoever save only
for its share of any insurance monies paid under the business
interruption insurance policy.
9.3 All insurances referred to in Clauses 9.1 and 9.2 shall note the interest
of Manager as an "additional insured" and shall contain both severability
of interest and cross liability clauses and a waiver of the insurers'
rights of subrogation in favor of Manager and Owner.
10. Damage and Destruction
If any aspect of the infrastructure of any of the Property or any portion
thereof shall be damaged or destroyed at any time or times during the term
of this Agreement by fire or any casualty risk or otherwise, Owner, if it
elects to repair, rebuild or replace the same, shall, at its own cost and
expense and with
due diligence, repair, rebuild or replace the same so that after such
repairing, rebuilding or replacing, the facilities in question shall be
substantially the same as prior to such damage or destruction.
11. Alterations, Improvements and Capital Expenditure
11.1 Manager shall have the right to procure that, from time to time, such
renewals, replacements, alterations, additions or improvements are
effected to the Property, which are customarily made in the operation of
luxury international resorts subject to the prior written approval of
Owner. Manager shall submit an annual capital expenditure plan and budget
to Owner for Owner's approval or alteration, not later than one month
prior to the commencement of each fiscal year. Manager shall only proceed
with capital expenditure which has been approved by Owner as part of the
annual plan or with specific approval by Owner for items outside of the
annual plan. The costs of such customary renewals, replacements,
alternations, additions or improvements shall be charged directly to
current expenses or shall be capitalized in the books of account of the
Owner, un accordance with IAS.
11.2 If renewals, replacements, alterations, additions or improvements as
referred to in Article 11.1 will involve or result in a fundamental change
of the business concerned, Manager will submit or procure the submission
of a budget and plan for the proposed renewals, replacements, alterations,
additions or improvements to Owner for Owner's prior written approval as
regards the budget cost in question provided that Owner shall reply to the
submission within thirty (30) days of its receipt.
12. Trade Name
12.1 The parties acknowledge that the name "Sun International" is or will be
the exclusive property of Manager and/or any member of its group of
companies world-wide. Upon the expiry or earlier termination of this
Agreement for any reason, Owner shall as promptly as practicable cease
using, the "Sun International" name or any other trade name or
intellectual property developed, licensed or owned by Manager.
12.2 The Manager shall accord to the Property and its related facilities the
status of a SUN INTERNATIONAL Hotel and the Owner shall accordingly be
entitled to use that description in respect of the Property and the
related facilities which shall be so described by the Manager and its
respective subsidiaries and affiliate throughout the continuance of this
Management Agreement. The Owner's aforesaid right to use in respect of and
the Property the description of the Property's right to be described as a
SUN INTERNATIONAL Hotel shall be exclusive in the Emirate of ▇▇▇▇▇.
▇▇. Assignment
13.1 Manager shall be entitled at any time, without the consent of Owner (or if
such consent is an inalienable right under any provision of applicable
law, then owner shall grant such consent) -
13.1.1 to cede, assign and delegate its rights and obligations under this
Agreement to any company which controls, is controlled by or is
under common control with Manager. Provided that such company
undertakes and agrees in writing to be bound by the provisions of
this Agreement.
13.2 Except as set forth in Article 13.1, Manager shall not cede, assign or
delegate its rights or obligations under this Agreement without the prior
written consent of Owner and any such cession, assignment, delegation or
other transfer made in violation of this Article 13.2 shall be void and of
no further force or effect.
13.3 The terms and conditions of this Agreement shall be binding upon and inure
to the benefit of the third party(ies) to which either Manager or Owner
may validly cede, assign and delegate their respective rights and
obligations.
14. Indemnification
14.1 Owner shall indemnify, save, and defend, at Owner's sole cost and expense,
and hold harmless, Manager and its officers, agents, employees,
representatives, shareholders and affiliates (collectively - "Owner
Indemnitees"), from and against the full amounts of any and all Section
14.1 Losses, excluding losses caused directly or indirectly by an Owner
indemnitte's misconduct whether wilful, wanton, criminal or otherwise,
negligence, fraud or any other illegal or improper act or omission or the
failure to perform or observe any obligation pursuant to this Agreement.
The term "Section 14.1 Losses" shall mean any and all liabilities, claim,
suits, administrative proceedings, losses, damages or costs of any nature
whatsoever which may be asserted against or incurred by an Owner
Indemnitee arising from the proper performance of the Manager's
obligations under this Agreement and the operation of the Property (except
if the same arises from any of the eventualities set out in paragraph (a)
to (d) below) and shall include reasonable expenses of defense including,
without limitation reasonable attorneys' fees provided, however, that
Section 14.1 Losses shall not include consequential losses or liabilities.
Save as provided in this Section 14.1, Owner shall have no liability
hereunder to Manager or any Manager Indemnitee for any other losses or
damages.
14.2 Manager shall indemnify, save and defend, at Manager's cost and expense,
and hold harmless, Owner and its officers, directors, agents, employees,
representatives and affiliates (collectively - "Manager Indemnitees") from
and against all Section 14.2 Losses. The term "Section 14.2 Losses" shall
mean any and all liabilities, claims, suits, administrative proceedings,
losses, damages or costs of any nature whatsoever (but shall specifically
exclude any consequential losses or liabilities) which may be asserted
against or incurred by a Manager Indemnitee arising from:
(a) The failure of the Manager to perform or observe all or any of the
obligations under this Agreement or any agreement concluded by the
Manager pursuant to the powers vested in the Manager under this
Agreement;
(b) Any fraudulent, improper, illegal or gross negligent act of the
Manager, any of its respective subsidiaries or affiliates or any of
its respective employees or the
employees of such subsidiaries or affiliates;
(c) Any fraudulent, improper, illegal or gross negligent acts of the
General Manager or the Financial Controller of the Property.
(d) In no event shall Manager ever be responsible for Section 14.2
losses for an amount exceeding the aggregate of Insurance recovery
plus the Base Fee and Incentive Fee received in the year such
Section 14.2 Loss has occurred. Save as provided in this Section 14,
Manager shall have no liability hereunder to any Manager indemnitee
for any other losses or damages.
14.3 Each party to be indemnified in accordance with Clauses 14.1 and 14.2
above shall keep the party to indemnify it fully informed of all matters
pertaining thereto and take such steps on behalf of the party to indemnify
it as that party may reasonably require. Each such indemnity shall without
limitation include the legal expenses of resisting any third party claim,
suit, demand or action.
14.4 Nothing in this Agreement shall entitle either the Owner on the one hand
or the Manager on the other hand to make any claim against each other to
the extent that it is able to obtain compensation or reimbursement from
any of the insurances provided for in Clause 9 above.
14.5 The parties agree that the waivers and disclaimers of liability,
indemnities, releases from liability and limitations on liability
expressed in this Clause 14 shall survive the expiry or earlier
termination for any reason of this Agreement.
15. Arbitration Any dispute or difference between the parties or any of them
which may arise out of or in connection with this Agreement shall be
submitted to arbitration in Dubai before a panel of three arbitrators. The
Owner shall appoint one such arbitrator and the other party or parties to
the dispute or difference shall appoint another such arbitrator. Each such
appointment shall be made within fifteen (15) days of any party to the
dispute or difference giving notice to the other or
others that the same shall be referred to arbitration. Within thirty (30)
days after the appointment of the second such arbitrator, the first such
arbitrator and the second such arbitrator shall jointly appoint the third
such arbitrator but if, by the end of that period, they have been unable
to agree on any such joint appointment, the third such arbitrator shall be
appointed by the President for the time being of the Dubai Chamber of
Commerce and Industry. The arbitration shall be conducted in accordance
with such law and procedures for the time being in force in the Emirate of
Dubai. The costs of the arbitration shall form an issue between the
parties to the relevant dispute or difference and be borne as provided in
the arbitration award. The arbitration award rendered by all or the
majority of the arbitrators shall be final and binding on the parties and
there shall be no appeal therefrom to any Court.
16. Termination
16.1 Notwithstanding anything to the contrary herein contained, Owner may
terminate this Agreement if -
16.1.1 for a period of thirty (30) days (or such longer period as may be
reasonable, having regard to the nature of the default and the
prevailing circumstances but not in any event to exceed sixty (60)
days) after written notice has been served on it and without
reasonable cause, Manager neglects, omits, refuses or fails to
discharge or diligently take action to discharge any of its
material obligations hereunder, whether through the operation of
law or otherwise, provided that this right of termination shall
not apply or be available if such failure to discharge such
obligations is cured prior to termination, or if such right of
termination is not exercised within ninety (90) days after it
first becomes available: or
16.2 Notwithstanding anything to the contrary herein contained, Manager may
terminate this Agreement if:
16.2.1 for a period of thirty (30) days (or such longer period as may be
reasonable, having regard to the nature of the default and the
prevailing circumstances but not in any event to exceed sixty (60)
days) after written notice has been served on it and without
reasonable cause, Owner neglects, omits, refuses or fails to
discharge or diligently take action to discharge any of its
material obligations hereunder, whether through the operation of
law or otherwise, provided that this right of termination, shall
not apply or be available if such failure to discharge such
obligations is cured prior to termination or if such right of
termination is not exercised within ninety (90) days after if
first available; or
16.2.2 Manager's association with Owner could reasonably jeopardize the
qualification of Manager or one of its affiliates to hold a gaming
license in any jurisdiction.
16.3 The rights granted in Article 16.1 and 16.2 shall be in addition to any
and all rights and remedies for breach of contract granted by the laws as
designated by Article 18.6, subject, however, to the provisions of Article
14; provided, however, that in the event of a breach of this Agreement by
Owner or Manager, the parties hereby waive any and all claims either may
have for consequential losses or damages resulting from such breach.
16.4 Notwithstanding the foregoing, neither party shall be deemed to be in
default under this Agreement if a bona fide dispute with respect to any of
the foregoing events or default has arisen between the parties and such
dispute has been submitted to arbitration.
16.5 Except in the case of a termination by Manager pursuant to Article 16.2.1,
if this Agreement is terminated pursuant to Article 16.1, Owner shall have
the right to elect, by written notice delivered to Manager within three
(3) business days after the date on which Manager first gives notice of
its election to terminate this Agreement, to continue this Agreement in
force for a transitional period reasonably sufficient to allow Owner to
retain an alternative manager; and Owner and Manager shall agree on
reasonable compensation for Manager for such transitional period.
16.6 If no agreement is reached between Owner and Manager on the management fee
after ten years from the opening of the property as provided in Clause 3.2
above, termination may be effected by giving not less than twelve (12)
months
notice after the end of the tenth year of operation of the Property.
17. Force Majeure
If by reason of war, terrorism, explosion, bombing, revolution, riots,
civil commotion, strikes, lockout, inability to obtain labor or materials,
fire, flood, storm, earthquake, hurricanes, tornado, drought or other acts
or elements, accident, government restrictions or appropriation or other
causes, whether like or unlike the foregoing, beyond the reasonable
control of either party hereto, such party is unable to perform in whole
or in part its obligations under this Agreement, then such party shall be
relieved of those obligations to the extent it is so unable to perform and
such inability to perform so caused shall not make such party liable to
the other.
18. Miscellaneous
18.1 Funding of Owner accounts
Notwithstanding anything to the contrary in this Agreement contained,
Manager shall not be obligated to perform its duties and shall be excused
from its obligations and responsibilities hereunder to the extent that
funds to be provided by Owner are not available to allow Manager to
perform such duties pursuant to the provisions of this Agreement.
18.2 Manager's right to request instructions
At any time, Manager may, if it reasonably deems it to be necessary or
appropriate, request written instructions from Owner within a reasonable
period prior to the necessity for taking action with respect to any matter
contemplated by this Agreement where the approval of the Owner is
required, and may defer action thereon pending receipt of such written
instructions. Owner shall promptly respond to any such request for written
instructions. Actions taken by Manager, its officers, employees and
representatives in accordance with the written instructions of Owner, or
failures to act by such persons pending the receipt of such written
instructions, shall be deemed to be proper conduct within the scope of
Manager's authority under this Agreement.
18.3 Independent contractors
Manager shall be an independent contractor with respect to the performance
of its duties hereunder. Neither Manager nor its employees or other agents
employed in the performance of such duties shall be deemed to be agents,
partners, joint venturers, representatives or employees of Owner, except
to the extent of the agency expressly created under this Agreement.
18.4 Conflicts
Nothing contained in this Agreement shall be construed so as to restrict
or prevent, in any manner, Manager from engaging in any other businesses
or investments during the term of this Agreement, including, without
limitation, any similar or competitive operations to those of Owner,
anywhere in the world except in the Emirate of Dubai without the prior
written approval of the Owner. Owner acknowledges that Manager and/or its
affiliates operate and/or manager other hotels, casinos and resorts
presently and may in the future operate and/or manage additional hotels,
casinos and resorts in different areas of the world, and that marketing
efforts may cross over into the same markets and with respect to the same
potential customer base.
18.5 Notices
All notices, requests, approvals, demands and other communications by
either party to the other pursuant to this Agreement shall be in writing
and be deemed to have been duly given and to be effective fifteen (15)
business days after being mailed by registered/certified pre-paid airmail,
or on the first business day after the deliver thereof or the transmission
thereof by facsimile, to either party at its address set out on the first
page hereof or to such other address as the parties may designate from
time to time by similar notice.
18.6 Applicable Law
This Agreement shall be construed, interpreted and applied in accordance
with, and governed by, the laws in force in the Emirate of Dubai.
18.7 Sole record
This document constitutes the sole record of the Agreement between the
parties concerning the subject matter thereof. No addition or variation
to, or agreed cancellation of this Agreement shall be of any force or
effect unless in writing and signed by the parties.
18.8 Indulgence - no waiver
No indulgence by either party ("the grantor") to the other ("the grantee")
shall constitute a waiver by the grantor, except in the instance and to
the extent
given, nor preclude the grantor from exercising any rights against the
grantee arising before or after the grant of such indulgence.
18.9 Severability
Any provision of this Agreement which may for any reason be held to be
unlawful or invalid shall be severable from the remaining provisions of
this agreement, which shall remain in full force and effect.
18.10 Interpretation
The Table of Contents and captions to the Articles shall not be used in
the interpretation of this Agreement. Unless the context indicates a
contrary intention, an expression which denotes any gender shall include
the other genders, a natural person shall include an artificial person and
vice versa and the singular shall include the plural and vice versa.
19. Sun International Hotels Limited agrees that it will cause all obligations
of Manager under this Agreement to be performed and observed fully and
faithfully.
Signed
__________________________________________
For the Government of Dubai
Date _____________________________________
Signed
__________________________________________
For Sun International Management Limited
Date _____________________________________
Signed
__________________________________________
For Sun International Hotels Limited
Date _____________________________________
SCHEDULE A
SCHEDULE OF DEPRECIATION
NO. CATEGORY YEARS OF DEPRECIATION
--- -------- ---------------------
1) Major laundry equipment 10/15
2) Small laundry equipment 5
3) Major/heavy kitchen equipment 10
4) Small/light kitchen equipment 5
5) Fixed/heavy furniture 10/15
6) Moveable/light furniture 5/10
7) Motor vehicles 3
8) Soft furnishings 3/5
9) Unclassified fixtures and fittings - Category (A) 3/5
- Category (B) 3/5
10) Communication/audio-visual equipment -
telephone systems 10
Other equipment 5
11) Accounting and office equipment software 3/5
12) Catering equipment 5/10
13) Fire fighting equipment 5/10
14) Gym/leisure/out-door equipment 5
15) Gain/loss on disposal - credit/debit depreciation expense
-
APPLIES ONLY TO ADDITIONS AND REPLACEMENTS:
16) Boilers 20
17) Chillers 20
18) Generators 20
19) Bathroom fittings 5/15
20) Electrical light fittings 10/15
21) Water supply system/pumps 5/15
