Exhibit 10(lll)
HOTEL MANAGEMENT AGREEMENT
Among
FOUR SEASONS HOTELS LIMITED
And
MANDALAY CORP.
And
CIRCUS CIRCUS ENTERPRISES, INC.
FOUR SEASONS RESORT, LAS VEGAS
TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS. . . . . . . . . . . . . . . . . . . . 3
1.01 Definitions . . . . . . . . . . . . . . . . . . 3
1.02 Recitals. . . . . . . . . . . . . . . . . . . . 3
1.03 Interpretation. . . . . . . . . . . . . . . . . 3
1.04 Schedules . . . . . . . . . . . . . . . . . . . 5
ARTICLE II - GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE PARTIES. . . . . . . . . . . . 5
2.01 General Representations, Warranties and Covenants of
Owner and Parent . . . . . . . . . . . . . . . 5
2.02 Representations, Warranties and Covenants of
Operator . . . . . . . . . . . . . . . . . . . 7
ARTICLE III - EARLY TERMINATION. . . . . . . . . . . . . . . . 8
3.01 Termination Prior to Opening Date . . . . . . . 8
ARTICLE IV - OPENING DATE. . . . . . . . . . . . . . . . . . . 9
4.01 Determination of Opening Date . . . . . . . . . 9
4.02 Partial Operations Prior to Opening Date. . . . 10
ARTICLE V - OPERATOR'S AND OWNER'S RESPONSIBILITIES. . . . . . 10
5.01 Operator's Appointment. . . . . . . . . . . . . 10
5.02 Operator's Responsibilities . . . . . . . . . . 10
5.03 Limitation on Powers of Operator. . . . . . . . 16
5.04 Owner's Responsibilities Relating to Hotel. . . 17
5.05 Owner's Responsibilities Relating to Other Components
of Project . . . . . . . . . . .. . . . . . . . 17
5.06 Maintenance and Capital Refurbishing Programs for the
Hotel. . . . . . . . . . . . . . . . . . . . . 18
5.07 Maintenance and the Project Equipment and Systems 18
5.08 Parking . . . . . . . . . . . . . . . . . . . . 18
5.09 Dealings with Third Persons . . . . . . . . . . 19
ARTICLE VI - ANNUAL PLAN . . . . . . . . . . . . . . . . . . . 19
6.01 Annual Plan . . . . . . . . . . . . . . . . . . 19
6.02 Variations in the Annual Plan . . . . . . . . . 22
6.03 Emergency Expenditures. . . . . . . . . . . . . 23
6.04 Owner's Obligation to Fund Capital for
Furniture, Fixtures and Equipment Replacements. 24
ARTICLE VII - FUNDING, BANKING, ETC. . . . . . . . . . . . . . 24
7.01 Request for Working Capital . . . . . . . . . . 24
7.02 Advances by Operator. . . . . . . . . . . . . . 26
7.03 Bank Accounts . . . . . . . . . . . . . . . . . 26
7.04 Owner's Right to Funds. . . . . . . . . . . . . 27
7.05 Pledging of Bank Accounts . . . . . . . . . . . 27
7.06 Extending Credit. . . . . . . . . . . . . . . . 28
ARTICLE VIII - TERM AND RENEWALS . . . . . . . . . . . . . . . 28
8.01 Initial Term. . . . . . . . . . . . . . . . . . 28
8.02 Extension Terms . . . . . . . . . . . . . . . . 28
8.03 Exercise of Extension Options . . . . . . . . . 30
8.04 Covenants to Apply. . . . . . . . . . . . . . . 30
ARTICLE IX - SALES, MARKETING, ADVERTISING AND
PURCHASING SERVICES AND CHARGES . . . . . . . 31
9.01 Corporate Sales and Marketing Charges
and Corporate Advertising Charges . . . . 31
9.02 Centralized Reservation Service Charge. . . . . 33
9.03 Adjustment of Charges . . . . . . . . . . . . . 33
9.04 Centralized Purchasing. . . . . . . . . . . . . 34
9.05 Quality of Services . . . . . . . . . . . . . . 36
ARTICLE X - NAME OF HOTEL. . . . . . . . . . . . . . . . . . . 37
10.01 Name of Hotel. . . . . . . . . . . . . . . . 37
ARTICLE XI - REMUNERATION AND REIMBURSEMENT OF OPERATOR. . . . 37
11.01 Basic Fee. . . . . . . . . . . . . . . . . . 37
11.02 Incentive Fee. . . . . . . . . . . . . . . . 37
11.03 Refurbishing Fee . . . . . . . . . . . . . . 37
11.04 Reimbursement of Costs and Expenses. . . . . 38
11.05 Manner of Payment of Fees and Charges, Costs and
Expenses . . . . . . . . . . . . . . . . . . 39
11.06 Payment of Available Cash. . . . . . . . . . 41
11.07 Financial Statements of Hotel. . . . . . . . 42
11.08 Operator's Performance Guarantee . . . . . . 43
ARTICLE XII - BOOKS AND RECORDS. . . . . . . . . . . . . . . . 44
12.01 General. . . . . . . . . . . . . . . . . . . 44
12.02 Location, Examination and Inspection . . . . 44
ARTICLE XIII - RELATIONSHIP OF OPERATOR AND OWNER. . . . . . . 44
13.01 Operator to Act as Agent for Owner . . . . . 44
13.02 Delegation of Authority by Operator. . . . . 45
13.03 Additional Benefits to Personnel . . . . . . 45
ARTICLE XIV - REPAIRS, REPLACEMENTS, MAINTENANCE AND IMPROVEMENTS 47
14.01 Repairs, Replacements and Maintenance. . . . 47
14.02 Structural Repairs . . . . . . . . . . . . . 48
14.03 Alterations, Additions and Improvements. . . 49
ARTICLE XV - DAMAGE TO AND DESTRUCTION OF THE HOTEL . . . . . 49
15.01 Owner's Obligation to Repair . . . . . . . . 49
15.02 Operator's Reinstatement . . . . . . . . . . 51
ARTICLE XVI - EXPROPRIATION. . . . . . . . . . . . . . . . . . 52
16.01 Complete Expropriation . . . . . . . . . . . 52
16.02 Partial Expropriation. . . . . . . . . . . . 52
16.03 Temporary Expropriation. . . . . . . . . . . 53
ARTICLE XVII - TAXES AND MORTGAGES . . . . . . . . . . . . . . 54
17.01 Payment of Taxes . . . . . . . . . . . . . . 54
17.02 Contest. . . . . . . . . . . . . . . . . . . 54
ARTICLE XVIII - INSURANCE. . . . . . . . . . . . . . . . . . . 55
18.01 Coverage . . . . . . . . . . . . . . . . . . 55
18.02 Named Insureds . . . . . . . . . . . . . . . 58
18.03 Policies . . . . . . . . . . . . . . . . . . 59
18.04 Insurance Companies. . . . . . . . . . . . . 59
18.05 Certificates of Insurance. . . . . . . . . . 59
18.06 Blanket Policies . . . . . . . . . . . . . . 60
18.07 Insurance Appraisals . . . . . . . . . . . . 60
ARTICLE XIX - ASSIGNMENT AND MORTGAGES . . . . . . . . . . . . 61
19.01 Owner's Right to Assign. . . . . . . . . . . 61
19.02 Owner's Right to Mortgage. . . . . . . . . . 61
19.03 Limitation on Owner's Right to Assign and Mortgage 62
19.04 Operator's Right to Assign . . . . . . . . . 63
19.05 Operator's Right to Mortgage . . . . . . . . 64
19.06 Limitation on Operator's Right to Assign . . 64
ARTICLE XX - EVENTS OF DEFAULT AND TERMINATION . . . . . . . . 64
20.01 General. . . . . . . . . . . . . . . . . . . 64
20.02 Rights of Non-Defaulting Party . . . . . . . 66
20.03 Remedying Defaults . . . . . . . . . . . . . 66
20.04 Bona Fide Dispute. . . . . . . . . . . . . . 66
20.05 Owner's Right to Terminate . . . . . . . . . 67
20.06 Operator's Right to Terminate. . . . . . . . 68
20.07 Cross-Termination. . . . . . . . . . . . . . 69
20.08 Accounting on Termination. . . . . . . . . . 69
20.09 Owner to Receive All Books and Records Upon
Termination. . . . . . . . . . . . . . . . . 70
20.10 Claims on Termination. . . . . . . . . . . . 70
ARTICLE XXI - APPROVALS, DISPUTE RESOLUTION AND
ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . 71
21.01 Approvals. . . . . . . . . . . . . . . . . . 71
21.02 Dispute Resolution . . . . . . . . . . . . . 73
21.03 Legal Proceedings and Arbitration. . . . . . 74
ARTICLE XXII - OPERATOR'S LIABILITY. . . . . . . . . . . . . . 76
22.01 Standard of Care . . . . . . . . . . . . . . 76
22.02 Indemnities. . . . . . . . . . . . . . . . . 76
ARTICLE XXIII - ACKNOWLEDGMENTS 77
23.01 Owner's and Parent's Acknowledgments . . . . 77
23.02 Operator's Acknowledgments . . . . . . . . . 78
ARTICLE XXIV - GENERAL PROVISIONS. . . . . . . . . . . . . . . 79
24.01 Entire Agreement . . . . . . . . . . . . . . 79
24.02 Modification and Changes . . . . . . . . . . 79
24.03 Partial Invalidity . . . . . . . . . . . . . 79
24.04 Counterparts . . . . . . . . . . . . . . . . 80
24.05 Waivers. . . . . . . . . . . . . . . . . . . 80
24.06 Enurement. . . . . . . . . . . . . . . . . . 80
24.07 Parent Covenant. . . . . . . . . . . . . . . 80
24.08 Applicable Law . . . . . . . . . . . . . . . 81
24.09 Jurisdiction . . . . . . . . . . . . . . . . 81
24.10 Designation of Agent for Service of Process. 82
24.11 Notices. . . . . . . . . . . . . . . . . . . 83
24.12 Radius Restriction . . . . . . . . . . . . . 84
24.13 Time of Essence. . . . . . . . . . . . . . . 85
24.14 Estoppel Certificates. . . . . . . . . . . . 85
24.15 Access to Fitness and Spa Facility . . . . . 85
24.16 Solicitation of Employees of the Hotel . . . 86
24.17 Access to Operating Policies and Procedures. 86
SCHEDULE "A" - DEFINITIONS
SCHEDULE "B" - DESCRIPTION OF LAND
SCHEDULE "C" - INSURANCE COVERAGE
SCHEDULE "D" - OPERATING POLICIES AND PROCEDURES
SCHEDULE "E" - MAP OF LAS VEGAS METROPOLITAN AREA
HOTEL MANAGEMENT AGREEMENT
THIS AGREEMENT is made this 10th day of March, 1998.
A M O N G:
FOUR SEASONS HOTELS LIMITED, a
corporation incorporated under the laws of the
Province of Ontario, Canada, having its
principal offices at 0000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0,
("Operator"),
- and -
MANDALAY CORP., a corporation
incorporated under the laws of the State of
Nevada, United States of America, having its
principal offices at 2880 Las Vegas Boulevard
South, Las Vegas, Nevada, U.S.A. 89109,
("Owner"),
- and -
CIRCUS CIRCUS ENTERPRISES, INC., a
corporation incorporated under the laws of the
State of Nevada, United States of America,
having its principal offices at 2880 Las Vegas
Boulevard South, Las Vegas, Nevada,
U.S.A. 89109,
("Parent").
RECITALS
A. Owner is a direct wholly-owned subsidiary of Parent.
B. Parent and/or its Affiliates (as defined below) are the legal and
beneficial owners of certain real property situated in Las Vegas,
Nevada (as defined below), more precisely described in Schedule
"A" attached hereto (the "Land"), and on or before the Opening
Date (as defined below), Owner will be the legal and beneficial
owner of the Hotel (as defined below).
C. Parent now proposes to develop upon the Land a hotel and casino
resort complex (the "Project") 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.
D. Operator has expertise in the various phases of the development,
construction, furnishing, equipping, servicing, marketing,
operation, management, supervision and direction of World Class
Luxury Hotels.
E. Contemporaneously with the execution of this Agreement, Parent
has entered into an agreement (the "Hotel Pre-Opening Services
Agreement") with Operator, pursuant to which Operator (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).
F. Contemporaneously with the execution of this Agreement, Owner
has entered into an agreement (the "Hotel License Agreement")
with Operator, pursuant to which Operator (for certain fees and
other consideration) has agreed to provide the right and license to
use the Trademarks (as defined below) and the Proprietary
Materials (as defined below) to Owner in connection with the
marketing, operation and management of the Hotel.
G. Owner also wishes to obtain the benefit of Operator's expertise in
advising and providing services in connection with the furnishing,
equipping, servicing, marketing, operation, management,
supervision and direction of World Class Luxury Hotels, and
Operator (for certain fees) has agreed to provide such advice and
services to Owner in connection with 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
In this Agreement, the terms in Schedule "A" attached
hereto shall have the respective meanings indicated therein.
1.02 Recitals
Operator, Owner and Parent each represents and warrants
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,
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" - Description of the Land
Schedule "C" - Insurance Coverage
Schedule "D" - Operating Policies and Procedures
Schedule "E" - Map of Las Vegas Metropolitan Area
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE PARTIES
2.01 General Representations, Warranties and Covenants of
Owner and Parent
Owner and Parent jointly and severally represent, warrant
and covenant to Operator that:
(a) subject to the provisions of Article XIX, Owner has, and
throughout the Term will maintain, good and marketable
title to its Interest, free and clear of any liens, charges and
encumbrances of any nature or kind, save and except for
liens, charges and encumbrances in connection with any
matters (other than those relating to any financial
commitments of Owner or Parent) which could not have a
material adverse effect on the operation of the Hotel by
Operator and such other matters as may be approved by
Operator in writing;
(b) the Hotel is, and Owner will ensure that, prior to the
Opening Date, all activities and conditions at the Hotel will
continue to be, in compliance with in all material respects
all Applicable Laws, including (without limitation)
Environmental Laws;
(c) except to the extent Owner has given notice to Operator in
writing, no notice advising of any material defects in the
construction, state of repair or state of completion of the
Hotel, or ordering or directing that any alteration, repair,
improvement or other work be done, or relating to
non-compliance with any building permit or Applicable Law,
or relating to any threatened or impending condemnation or
expropriation has been received by Owner or Parent from
any Governmental Authority or mortgagee of the Hotel,
which has not been complied with to the satisfaction of
such Governmental Authority or mortgagee, as the case
may be, as of and from the Opening Date. Owner and
Parent shall promptly provide Operator with a copy of any
such notice in writing, or full particulars of any such notice
not in writing, forthwith upon receipt;
(d) except to the extent Owner has given notice to Operator in
writing, there are no actions, suits or proceedings pending
or, to the knowledge of Owner or Parent, threatened at law
or in equity or before any Governmental Authority which
affect or may affect, as of and from the Opening Date, the
Hotel, the Hotel Agreements, or the use of the Fitness and
Spa Facility by the guests and patrons of the Hotel. Owner
and Parent shall promptly provide Operator with written
notice of any such action, suit or proceeding of which
Owner may become aware;
(e) subject to the performance, satisfaction and compliance by
Operator of and with all of its obligations under this
Agreement and the other Hotel Agreements as and when
required, Operator may peaceably and quietly possess,
manage and operate the Hotel during the Term, free from
interruption or disturbance, it being understood, however,
by Operator that Parent and its Affiliates will be developing
and constructing other projects on land adjacent to the
Hotel to the south.
2.02 Representations, Warranties and Covenants of Operator
Operator represents, warrants and covenants to Owner that:
(a) Operator has the requisite corporate power and authority to
enter into this Agreement and to perform its obligations
hereunder;
(b) subject to the performance, satisfaction and compliance by
each of Owner and Parent of and with all of its obligations
under this Agreement and the other Hotel Agreements as
and when required, Operator will ensure that, after the
Opening Date, all activities and conditions at the Hotel will
be in compliance with in all material respects all Applicable
Laws, including (without limitation) Environmental Laws;
provided that to the extent that there are insufficient funds
in the Hotel Bank Accounts to ensure compliance by
Operator with its obligations under this section 2.02(b),
Owner shall deposit in the Hotel Bank Accounts the
amounts from time to time necessary to ensure such
compliance in accordance with section 7.01;
(c) except to the extent Operator has given notice to Owner in
writing, no notice advising of any material defects in the
construction, state of repair or state of completion of the
Hotel, or ordering or directing that any alteration, repair,
improvement or other work be done, or relating to non-
compliance with any building permit or Applicable Law, or
relating to any threatened or impending condemnation or
expropriation has been received by Operator from any
Governmental Authority or mortgagee of the Hotel, which
has not been complied with to the satisfaction of such
Governmental Authority or mortgagee, as the case may be,
as of and from the Opening Date. Operator shall promptly
provide Owner with a copy of any such notice in writing, or
full particulars of any such notice not in writing, forthwith
upon receipt; and
(d) except to the extent Operator has given notice to Owner in
writing, there are no actions, suits or proceedings pending
or, to the knowledge of Operator, threatened in law or in
equity or before any Governmental Authority which affect
or may affect, as of from the Opening Date, the Hotel, the
Hotel Agreements, or the use of the Fitness and Spa Facility
by the guests and patrons of the Hotel. Operator shall
promptly provide Owner with written notice of any such
action, suit or proceedings of which Operator may become
aware.
ARTICLE III
EARLY TERMINATION
3.01 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,
Parent and Operator shall have no future obligations arising out of this
Agreement, except as otherwise expressly provided in this Agreement.
ARTICLE IV
OPENING DATE
4.01 Determination of Opening Date
(a) The opening date of the Hotel (the "Opening Date") will be
the date of the actual opening of the Hotel for guest
occupancy. The Opening Date shall be determined by
Operator and Owner.
(b) A proposed opening date of the Hotel (the "Scheduled
Opening Date") shall be determined by Operator and
Owner. Owner and Operator shall use all reasonable efforts
to open the Hotel on the Scheduled Opening Date. If for
any reason (other than a Force Majeure Event), the opening
of the Hotel by the Scheduled Opening Date should be
placed in jeopardy, Owner shall consider implementing, but
shall not be obligated to implement, all reasonable measures
to assure the opening of the Hotel on the Scheduled
Opening Date, including (without limitation) authorizing all
necessary overtime and shift work, if necessary, which
shall be undertaken at Owner's expense.
(c) Owner's failure to approve the initial Proposed Annual Plan
or revisions to the initial Annual Plan submitted by Operator
to Owner prior to the Scheduled Opening Date pursuant to
section 6.01 shall not justify any delay in the Opening Date.
(d) The determination of the Opening Date shall not be
construed as or operate as any confirmation by Operator or
any of its Affiliates of the structural integrity, safety or
other similar aspects of the Hotel or of the competence of
Owner's architects, engineers, contractors and other
consultants or as to the compliance by the Hotel with any
Applicable Law.
4.02 Partial Operations Prior to Opening Date
Operator may conduct partial operations of the Hotel prior
to the Opening Date in accordance with the Pre-Opening Plan and Budget
for the purpose of staff training and operational and promotional
development. Owner and Operator shall co-operate with each other in
connection with all promotional activities relating to the opening of the
Hotel as contemplated in the Pre-Opening Plan and Budget.
ARTICLE V
OPERATOR'S AND OWNER'S RESPONSIBILITIES
5.01 Operator's Appointment
Owner engages Operator as the exclusive operator and
manager of the Hotel during the Term with exclusive responsibility and
full control and discretion in connection with the furnishing, equipping,
servicing, marketing, operation, management, supervision and direction
of the Hotel and its staff as a World Class Luxury Hotel in accordance
with the terms and conditions of this Agreement and as contemplated in
the Annual Plan. Owner expressly agrees and undertakes, subject to the
terms and conditions of this Agreement, to allow Operator to furnish,
equip, service, market, operate, manage, supervise and direct the Hotel
and its staff as a World Class Luxury Hotel and as contemplated in the
Annual Plan.
5.02 Operator's Responsibilities
Operator shall, throughout the Term, in a professional,
efficient and expeditious manner, do all things and take all necessary
action in connection with the furnishing, equipping, servicing, marketing,
operation, management, supervision and direction of the Hotel as a
World Class Luxury Hotel, all for the account of and on behalf of Owner
and subject to and in accordance with the terms and conditions of this
Agreement and the Annual Plan. Without limiting the generality of the
foregoing and the other provisions of this Agreement, Operator is
authorized and directed, as agent of Owner, subject to and in accordance
with the terms and conditions of this Agreement and the Annual Plan, to:
(a) use all reasonable efforts consistent with a World Class
Luxury Hotel to maximize patronage and profitability of
Hotel facilities in accordance with prudent business and
management practices, including (without limitation) the
establishment of room rates for the Hotel on a basis
consistent with a World Class Luxury Hotel;
(b) use all reasonable efforts to collect all charges, rents and
other amounts due from guests, patrons and Hotel tenants,
subtenants, Persons providing services and
concessionaires, cause notices to be served upon such
guests, patrons, tenants, subtenants, Persons providing
services and concessionaires to quit and surrender space
occupied or used by them where desirable or necessary,
ask for, demand, collect and give receipts for all charges,
rents and other amounts which may at any time be due
from such guests, patrons, tenants, subtenants, or Persons
providing services or concessionaires and, subject to the
provisions of section 5.02(h), xxx for and institute summary
proceedings where desirable or necessary in the name of
Operator or Owner, where required, in connection
therewith;
(c) hire, pay, supervise, relocate and discharge all personnel of
the Hotel, including (without limitation) the General
Manager of the Hotel, establish and from time to time
modify any appropriate employee benefit plans, pension
plans and profit sharing plans, and determine all matters
with regard to such personnel, including (without limitation)
compensation, bonuses, fringe benefits and replacement, it
being agreed by Owner that all such personnel shall be
employed by Owner and that all expenses relating to the
employment of such personnel shall be borne by Owner (as
an Operating Expense), and such personnel shall be
employees of Owner. Owner shall have the right to approve
the appointment of the General
Manager and the Controller of the Hotel; provided that all
of the decisions relating to the employment of the General
Manager and the Controller, including (without limitation)
the transfer or dismissal of such personnel shall be made by
Operator. Owner shall also have the right to conduct
investigative procedures which are customary in the hotel
gaming industry in Las Vegas, Nevada in respect of all
personnel of the Hotel prior to the hiring thereof in a timely
manner; provided that (a) Owner shall not have the right to
approve the hiring of any such personnel (other than the
General Manager and the Controller of the Hotel), it being
understood by Operator that in deciding whether or not to
hire any such personnel, Operator shall give regard to the
results of such investigative procedures and to the
customary standards of Owner relating to the hiring of
personnel in connection with its hotel gaming operations,
and (b) all of the decisions relating to the employment of
such personnel, including (without limitation) the transfer
and dismissal of such personnel shall be made by Operator,
it being understood by Operator that in deciding whether or
not to dismiss any such personnel, Operator shall give
regard to the customary standards of Owner relating to the
dismissal of personnel in connection with its hotel gaming
operations;
(d) if requested, assist Owner in negotiations with any labour
union or other bargaining unit lawfully entitled to represent
Hotel personnel or any of them engaged in the operation of
the Hotel; provided that any agreement or other accord with
any such labour union or other bargaining unit shall be
subject to the prior approval of Owner;
(e) provide for the maintenance and repair of the Hotel in
accordance with World Class Luxury Hotel standards;
(f) arrange for utility, telephone, security protection, elevator,
escalator, window-washing, vermin extermination, trash
removal and other services necessary for the operation of
the Hotel and, subject to the provisions of section 9.04,
purchase on the credit of Owner all Operating Equipment
and Supplies and Furniture, Fixtures and Equipment and
such other services and merchandise as are necessary for
proper operation of the Hotel as a World Class Luxury
Hotel, it being understood by Operator that certain services,
such as elevator, escalator and window-washing services,
shall be coordinated with similar services to be provided to
the other components of the Projects so long as such
services are cost effective and do not affect the operation
and management of the Hotel as a World Class Luxury
Hotel;
(g) purchase on the credit of Owner all Furniture, Fixtures and
Equipment pursuant to any approved Capital Refurbishing
Programs;
(h) commence or defend any legal action or proceeding
concerning the Hotel as is necessary or required in the
opinion of Operator and Owner and retain counsel approved
by Owner in connection with such action or proceeding;
provided that Operator shall not commence or defend any
such legal action or proceeding without the prior written
approval of Owner;
(i) enter into contracts in connection with the operation and
management of the Hotel, including (without limitation)
leases for retail facilities incidental to and customary in
World Class Luxury Hotels and grant concessions for
services customarily subject to concession in World Class
Luxury Hotels; provided that prior to entering into any such
contract where (A) the total cost to be incurred, or
revenues to be earned, by the Hotel in respect of such
contract is in excess of $25,000 in any Fiscal Year (which
amount shall be adjusted in any Fiscal Year to reflect any
increase in the Consumer Price Index during the preceding
Fiscal Year), or (B) the notice period for cancellation of such
contract by Owner or Operator is in excess of two years,
Operator shall obtain the prior written consent of Owner;
(j) operate and manage the parking and garage services of the
Hotel;
(k) hire, engage or appoint the attorneys, consultants and other
advisors of the Hotel, it being agreed by Owner that all
such advisors shall be hired, engaged and appointed at the
cost and expense of the Hotel and shall be advisors of
Owner; provided that prior to hiring, engaging or appointing
any such attorneys, consultants or other advisors of the
Hotel who are situated in Las Vegas, Nevada, Operator
shall obtain the prior written consent of Owner;
(l) establish the cash management and banking arrangements
for the Hotel;
(m) establish the Hotel policy regarding its association with any
credit card system, which policy shall be in general
conformity with the policy established in respect of the
other hotels and resorts owned or operated and managed
by Operator or any of its Affiliates under the name "Four
Seasons";
(n) cause all such other things to be done in and about the
Hotel as shall be necessary to comply with Applicable Laws
respecting the use or manner of the Hotel or the operation
and management of the Hotel, the non-compliance with
which would materially and adversely affect the Hotel;
provided, however, that either Owner or Operator shall, in
consultation with the other, have the right to contest by
legal proceedings the validity of any Applicable Law to the
extent and in the manner provided or permitted by
Applicable Law until final determination of any such
proceeding;
(o) advise Owner as to the details of plans and specifications,
alterations, additions or improvements to the Hotel
consistent with a World Class Luxury Hotel;
(p) eliminate operational problems;
(q) train and develop personnel of the Hotel and, in this regard,
advise Owner as to the courses made available through
Operator or any of its Affiliates and the dates and times on
which such courses shall be made available to personnel of
the Hotel through Operator or any of its Affiliates;
(r) assess and maintain the effectiveness of the Hotel's human
resources department in meeting its objectives as set by
Operator, including (without limitation) the Hotel's
personnel director, and the establishment, review and
update of the Hotel's human resource polices and
procedures;
(s) advise Owner as to the pay benefit policies and external
comparative surveys to ensure maintenance of a sound
competitive position for the Hotel;
(t) advise Owner as to turnover reports for employees of the
Hotel and suggestions of remedial actions designed to
reduce such turnover;
(u) deliver to Owner periodic reports of food and beverage
results at the Hotel, including (without limitation) the
comparison of the same against detailed budget and labour
standards;
(v) establish, review and update food and beverage control and
service manuals, rooms division manuals, housekeeping
manuals and labour standards manuals;
(w) assess and maintain the adequacy of the food and beverage
controls in the Hotel, the adequacy of Hotel systems and
procedures and the degree of compliance with Operator's
policies;
(x) monitor the accounts receivable of the Hotel in accordance
with Operator's standards on a monthly basis, and provide
follow-up advice in respect thereof with an action plan
where aging is unacceptable;
(y) advise Owner as to the selection, review and update of
computer systems (hardware and software) for use in the
Hotel;
(z) advise Owner as to the development, review and update of
accounting software for use in the Hotel;
(aa) develop a guest history package for Hotel guests and the
food and beverage point of sales system; and
(bb) develop new products and changes in operations to
improve quality and efficiency standards for the Hotel.
Any Dispute concerning the performance by Operator of its
obligations under this section shall, if requested by either Owner or
Operator, be resolved by arbitration in accordance with the provisions of
section 21.03(b).
5.03 Limitation on Powers of Operator
Notwithstanding the provisions of section 5.02, Operator
shall not take any of the following actions without the prior written
approval of Owner:
(a) commence any legal action or proceeding with respect to
any contract, lease or concession agreement which Owner
has the right to approve in accordance with the provisions
of section 5.02(i);
(b) execute or otherwise enter into any contract, agreement or
undertaking to borrow money on behalf of Owner;
(c) make, execute or deliver on behalf of Owner any
assignment for the benefit of creditors, or any guarantee,
indemnity, bond or surety bond; or
(d) settle any legal action or proceeding concerning the Hotel.
5.04 Owner's Responsibilities Relating to Hotel
Owner shall cause the Hotel to be:
(a) operated, managed, supervised, directed, serviced and
marketed in accordance with this Agreement and the Hotel
License Agreement; and
(b) developed, constructed, furnished and equipped in
accordance with the Hotel Pre-Opening Services
Agreement,
and shall fulfil all of its obligations under this Agreement and under
the other Hotel Agreements.
Any Dispute concerning the performance by Owner of its
obligations under this section shall, if requested by either Owner or
Operator, be resolved by arbitration in accordance with the provisions of
section 21.03(b).
5.05 Owner's Responsibilities Relating to Other Components of
Project
(a) Owner covenants to cause the other elements and
components of the Project to be developed, constructed,
furnished, equipped, operated, managed, serviced,
marketed, supervised and directed at a standard which is
the same as the most upscale casinos and ancillary facilities
existing in Las Vegas, Nevada as of June of 1996.
(b) Owner covenants to maintain all other elements and
components of the Project, including (without limitation)
maintaining the physical structure of the other elements and
components of the Project, at a level of standard and
quality which is the same as the standard of its original
construction (subject to ordinary wear and tear which shall
be repaired in accordance with prudent business practice).
5.06 Maintenance and Capital Refurbishing Programs for the
Hotel
(a) Owner covenants to maintain the Hotel as a World Class
Luxury Hotel.
(b) Owner agrees to approve any proposed capital refurbishing
programs submitted to Owner by Operator from time to
time for approval if they are necessary to fulfil the
obligation of Owner to maintain the Hotel as a World Class
Luxury Hotel. Upon approval by Owner of any such capital
refurbishing programs (the "Capital Refurbishing
Programs"), Operator shall allow the Capital Refurbishing
Programs to be implemented by any Person engaged by
Owner, including (without limitation) Owner, Operator or
any of their respective Affiliates.
Any Dispute concerning the performance by Owner of its
obligations under this section shall, if requested by either Owner or
Operator, be resolved by arbitration in accordance with the provisions of
section 21.03(b).
5.07 Maintenance and the Project Equipment and Systems
Owner covenants to maintain the Project Equipment and
Systems, and Owner shall adopt a continuous maintenance program so
as to enable Owner to maintain the Project Equipment and Systems, at
a standard normal for a hotel of a standard equivalent to that of the Hotel
and sufficient at all times in order to enable Operator to operate and
manage the Hotel as a World Class Luxury Hotel.
5.08 Parking
Owner acknowledges that the parking facilities available to
the Hotel are an important element of the operation and management of
the Hotel as a World Class Luxury Hotel. Owner shall therefore make
available to Operator:
(i) for valet parking services, 200 parking spaces on an
exclusive basis in the underground parking facility for
the Project underneath the Hotel; and
(ii) for general parking services, parking spaces on a
non-exclusive basis in the above ground parking facility
for the Project behind the Project, and the fees and
charges for providing such parking services shall be the
same as the fees and charges for providing such
parking services to other guests and patrons of the Project.
5.09 Dealings with Third Persons
Owner hereby acknowledges and agrees that, in fulfilment
of its obligations hereunder, Operator may, subject to the terms and
conditions of this Agreement, communicate directly with any Person
engaged to provide services to the Hotel, including (without limitation)
any Affiliates of Operator.
ARTICLE VI
ANNUAL PLAN
6.01 Annual Plan
(a) Within 30 days after the execution of this Agreement,
Operator shall submit to Owner for its approval the pro
forma statements of the Hotel for the initial period of 12
calendar months after the Opening Date. Operator may
submit revisions to the pro forma statements to Owner
from time to time for Owner's review and approval.
Operator shall submit to Owner for its approval an annual
business plan for the Hotel not later than 60 days prior to
the Scheduled Opening Date (other than that portion of the
annual business plan of the Hotel consisting of the annual
marketing plan for the Hotel which shall be submitted to
Owner for its approval 90 days before the Scheduled
Opening Date), and thereafter at least 45 days before the
beginning of each Fiscal Year (the "Proposed Annual Plan",
which shall become the approved annual business plan and
marketing plan for the Hotel (the "Annual Plan") once the
same has been approved or deemed to have been approved
in accordance with this Agreement). Operator may submit
revisions to the Annual Plan to Owner from time to time for
Owner's review and approval.
(b) Owner shall notify Operator of its approval or its
disapproval of the Proposed Annual Plan or revisions to the
Annual Plan not later than 30 days after receipt thereof. If
no such notice is given by Owner within such 30 day
period, then Owner shall be deemed to have approved of
the Proposed Annual Plan or revisions to the Annual Plan.
Owner shall have the opportunity to meet personnel
designated by Operator as appropriate during the 30 day
period. If Owner disapproves of all or any portion of the
Proposed Annual Plan or revisions to the Annual Plan within
such 30 day period, Owner shall furnish Operator at the
time of notice of such disapproval with detailed reasons for
its objections to the Proposed Annual Plan or revisions to
the Annual Plan and Owner and Operator shall attempt to
agree in respect of the items to which Owner objects within
30 days after notice of disapproval has been given, and if
such agreement is not reached within such 30 day period,
then such Dispute shall, if requested by either Owner or
Operator, be resolved by arbitration in accordance with the
provisions of section 21.03(b); provided that pending the
arbitration decision (i) in the case of the initial Proposed
Annual Plan or revisions to the initial Annual Plan submitted
by Operator to Owner, that initial Proposed Annual Plan and
revisions to that initial Annual Plan submitted by Operator
shall be deemed to be the approved Annual Plan for the
initial Fiscal Year, and (ii) in the case of any subsequent
Proposed Annual Plan or revisions to any subsequent
Annual Plan submitted by Operator to Owner, that
Proposed Annual Plan and revisions to that Annual Plan (to
the extent they are not the subject of arbitration) and the
Annual Plan and revisions to the Annual Plan for the
preceding Fiscal Year (to the extent they address the
matters subject to arbitration and irrespective of whether it
is the Annual Plan and revisions to the Annual Plan
submitted by Operator and approved by Owner for the
preceding Fiscal Year in accordance with this section 6.01
or the Annual Plan and revisions to the Annual Plan deemed
to have been the approved Annual Plan and revisions to the
Annual Plan for the preceding Fiscal Year in accordance
with this section 6.01) shall be deemed to be the approved
Annual Plan for the current Fiscal Year; provided that each
applicable item of the Annual Plan and revisions to the
Annual Plan for the preceding Fiscal Year shall be increased
proportionately to reflect any increase in the Consumer
Price Index during such preceding Fiscal Year.
(c) Each Annual Plan shall include the following:
(i) a marketing plan, which provides general sales and
marketing philosophy and strategy covering both
local and national sales, advertising and promotional
activities, market analysis, advanced booking
information, a marketing segmentation plan, pricing
strategy, customer relations policy, credit card
policy, complimentary rooms policy and a marketing
budget;
(ii) an annual forecast of operations, including projected
occupancy rates and average daily room rates,
estimated complimentary or discounted rooms to be
awarded by each of Owner and Operator, food,
beverage and other sales, including, without
limitation, estimated Deemed Complimentary Hotel
Charges, departmental expenses, including all
staffing and payroll expenses (including, without
limitation, expenses relating to employee benefit
plans, pension plans and profit sharing plans),
advertising expenses and group service charges,
general and administrative expenses, Deemed
Complimentary Hotel Expenses, anticipated expenses
for repairs, renovation and maintenance and capital
improvements, including, without limitation,
Allocated Maintenance Charges, expenses for utility
services, including, without limitation, Allocated
Utility Charges, Taxes and insurance;
(iii) a projected balance sheet, cash flow budget and
source and use of funds statement;
(iv) a capital plan for expenditures on Furniture, Fixtures
and Equipment and any other proposed capital
improvements; and
(v) an analysis of or changes to all major operating
licences, leases and contracts anticipated to be
required during the Fiscal Year in question.
6.02 Variations in the Annual Plan
(a) Operator shall comply with the Annual Plan relating to each
Fiscal Year and shall not (except to the extent permitted
pursuant to sections 6.02(c) and 6.03 or within the
permitted variances set out in section 6.02(b)) exceed the
expenditures set out in the Annual Plan, without the
approval of Owner.
(b) Owner acknowledges that the Annual Plan is a planning
tool used to attempt to achieve the objective of operating
and maintaining the Hotel in accordance with this
Agreement. As such, Owner agrees that Operator shall not
be liable for any variance between actual results and the
estimate of the projected results for the Fiscal Year set out
in the Annual Plan, it being agreed that the Annual Plan
cannot be relied upon as an assurance of actual results for
such Fiscal Year. Subject to section 6.02(c), Operator shall
not, except with the prior written consent of Owner, depart
from the Annual Plan other than within a 10% variance per
line item, or within a 7% variance in the aggregate of all of
the line items, in each case on the summary page of the
profit and loss statement for the Hotel in the Annual Plan
for such Fiscal Year.
(c) Owner acknowledges that, notwithstanding Operator's
experience and expertise in relation to the operation,
management, supervision and direction of World Class
Luxury Hotels, the projections contained in each Annual
Plan are subject to and may be affected by changes in
financial, economic and other conditions and circumstances
beyond Operator's control. Owner further acknowledges
that certain of the figures set forth in the Annual Plan for a
Fiscal Year will be variable in correlation to the occupancy
of the Hotel and any such variances shall be deemed to
form part of such approved Annual Plan.
6.03 Emergency Expenditures
Notwithstanding the provisions of section 6.02(a) or any
other provisions in this Agreement requiring adherence to the Annual
Plan, whenever, by reason of circumstances beyond the control of
Operator, emergency or special circumstances warrant expenditures
which are in the opinion of Operator required to be made for the lawful
or safe operation and management of the Hotel, Operator shall be
entitled to make such expenditures notwithstanding that such
expenditures are not provided for in the Annual Plan. Operator shall use
its reasonable efforts to give Owner advance notice of any expenditures
required to be made by Operator pursuant to this section 6.03 and to
obtain the approval of Owner prior to making any such expenditures.
Whenever the giving of such advance notice or the obtaining of such
approval is, however, impracticable, in Operator's opinion, by virtue of
the nature of the emergency or special circumstances giving rise to any
expenditures required to be made by Operator pursuant this section 6.03,
Operator shall be entitled to make such expenditures without having to
give such advance notice or having to obtain such approval; provided,
however, that Operator shall give Owner notice as soon as practicable
after such expenditures are made of the nature of the emergency or
special circumstances giving rise to such expenditures, the action taken
by Operator to deal with the emergency or special circumstances giving
rise to such expenditures and the amount of such expenditures.
6.04 Owner's Obligation to Fund Capital for
Furniture, Fixtures and Equipment Replacements
(a) Owner hereby acknowledges and approves in advance the
allocation in the Annual Plan for expenditures in connection
with the replacement and renewal of Furniture, Fixtures and
Equipment of an amount equal to:
(i) 2% of Gross Receipts during the first Fiscal Year;
(ii) 3% of Gross Receipts during the second Fiscal Year;
(iii) 4% of Gross Receipts during the third Fiscal Year;
and
(iv) 5% of Gross Receipts for each Fiscal Year thereafter.
(b) One twelfth of such amount for each Fiscal Year shall be
deposited each month into a separate bank account
designated for such expenditures (the "Capital Reserve") in
accordance with the Annual Plan. Operator shall be entitled
to expend any amounts in the Capital Reserve, including
(without limitation) interest accrued thereon , for the
purpose of the replacement and renewal of Furniture,
Fixtures and Equipment in compliance with the Annual Plan
or an approved Capital Refurbishing Program.
ARTICLE VII
FUNDING, BANKING, ETC.
7.01 Request for Working Capital
(a) From time to time throughout the Term as and when
requested by Operator, Owner shall provide working capital
in amounts required for the uninterrupted and efficient
operation of the Hotel in accordance with the Annual Plan
then applicable and, without limiting the generality of the
foregoing, sufficient to fund the cash requirements set out
in sections 11.06(a) through (d), inclusive. In this regard,
Operator shall request Owner to fund any deficiency in
working capital in writing and, at the time, provide Owner
with a six-month forecast of sources and uses of funds.
Owner shall then deposit in the Hotel Bank Accounts the
amount of any deficiency in working capital within 10 days
following Operator's written request for such funding. Any
dispute as to the working capital required for the operation
of the Hotel shall, if requested by either Owner or Operator,
be resolved by arbitration in accordance with the provisions
of section 21.03(b).
(b) To facilitate the funding of working capital contemplated in
section 7.01(a), Owner shall at all times maintain a bank
account or a line of credit with an insured bank designated
by Owner and approved by Operator in an amount equal to
the Working Capital Reserve designated in the Annual Plan.
The bank account or line of credit may be drawn upon
freely and directly by Operator acting alone; provided that
nothing in this section 7.01(b) shall be construed to limit
the ability of Operator to request Owner to advance funds
in accordance with section 7.01(a) before the funds in the
bank account or line of credit have been fully drawn. The
terms of the operation of the bank account or line of credit
and any amendments thereto shall be in form and
substance approved by Owner and Operator and shall
expressly provide that during the Term no instruction by
Owner terminating, diminishing or otherwise materially and
adversely affecting Operator's right to draw funds shall be
effective without the prior written approval of Operator.
Operator shall be entitled at any time and from time to time
to draw cash from the bank account or under the line of
credit in any amount required to operate the Hotel in
accordance with the Hotel Agreements or otherwise to
perform its obligations under this Agreement. The sole
condition precedent to Operator's draw under the line of
credit shall be the delivery to the issuer of the line of credit
of a certificate signed by those Persons designated by
Operator (each of whom shall be appropriately bonded)
stating that a specified amount is required for the operating
funds of the Hotel in accordance with the Hotel Agreements
or for other purposes for which the line of credit was
established pursuant to this Agreement. In each Fiscal
Year, within 60 days following the delivery to Owner of the
annual statement of profit and loss of the Hotel for the
preceding Fiscal Year, Owner shall replenish the line of
credit or fund the bank account to an amount equal to the
Working Capital Reserve.
7.02 Advances by Operator
In no event shall Operator be required to advance any of its
own funds for, or incur any liability in connection with, the operation of
the Hotel. If, however, Operator requests Owner to advance funds in
accordance with section 7.01(a) and Owner fails to do so within the 10
day period contemplated therein, Operator shall have the right to
advance funds in connection with the operation and management of the
Hotel. In addition, Operator shall have the right to advance funds for the
payment of expenditures required to be made by Operator pursuant to
section 6.03 or for the payment of sums due to a supplier, service
contractor or other creditor in connection with the operation of the Hotel,
if (a) Owner has failed to pay such creditor in a timely fashion, and (b)
such non-payment may trigger the imposition of any penalty, cost or
liability affecting Operator or the Hotel or, in Operator's opinion, may
prevent or hinder Hotel operations or may adversely affect or impair the
credit status of Operator or the Hotel. Owner shall repay Operator on
demand any such advances, together with interest on such advances
from the date of such advances at the Interest Rate.
7.03 Bank Accounts
Bank accounts established and maintained in connection
with the operation of the Hotel, including (without limitation) the Capital
Reserve and Working Capital Reserve accounts (collectively, the "Hotel
Bank Accounts"), shall at all times be at an insured bank designated by
Owner and approved by Operator and maintained under the name of the
Hotel. Operator shall designate those Persons (each of whom shall be
appropriately bonded) who may draw on such accounts. All funds
derived from the operation of the Hotel shall be deposited into the Hotel
Bank Accounts and all disbursements in respect of the Hotel shall be
made from the Hotel Bank Accounts. Operator shall make available to
Owner from time to time when reasonably requested, all records of the
Hotel Bank Accounts.
7.04 Owner's Right to Funds
The funds in the Hotel Bank Accounts shall be the property
of Owner and, subject to the rights and obligations of Operator under
this Agreement, shall be disbursed only in accordance with the provisions
of this Agreement. Operator shall have the right, in its discretion, to
invest or cause to be invested any funds that are in the Hotel Bank
Accounts in short-term certificates of deposit issued by, or a savings or
other interest-bearing account with the bank at which the Hotel Bank
Accounts are maintained. Owner shall bear all losses occasioned by any
loss of principal or interest resulting from the application of funds as
contemplated by this Agreement or the failure or insolvency of the bank
or other financial institution in which any Hotel Bank Account is
maintained.
7.05 Pledging of Bank Accounts
Except as additional security for the line of credit
contemplated by section 7.01(b) or in connection with a mortgage
permitted by section 19.02, Owner shall not pledge or deal with the
funds in the Hotel Bank Accounts in any manner that may impede the
ability of Operator to pay obligations incurred in or in connection with the
operation and management of the Hotel.
7.06 Extending Credit
In no event shall Operator be required to extend its own
credit in connection with the acquisition of Furniture, Fixtures and
Equipment or Operating Equipment and Supplies or otherwise for the
operation of the Hotel.
ARTICLE VIII
TERM AND RENEWALS
8.01 Initial Term
The initial term of this Agreement shall be for a period
commencing on the date hereof and terminating at midnight on the last
day of the twentieth full Fiscal Year (disregarding the initial Fiscal Year
of less than 12 calendar months) after the Opening Date.
8.02 Extension Terms
(a) Operator shall have the right to extend the Term:
(i) for a first extension term of 20 additional Fiscal
Years; and
(ii) if such first option of extension shall have been
exercised, for a second extension term of 20
additional Fiscal Years; and
(iii) if such second option of extension shall have been
exercised, for a third extension term of 20 additional
Fiscal Years;
provided that, subject to section 8.02(b), if the Hotel fails
to achieve the Performance Test in five or more Fiscal Years
(whether or not consecutive) during the initial term provided
for in section 8.01, the first extension term provided for in
section 8.02(a)(i) or the second extension term provided for
in section 8.02(a)(ii), then the option to extend the Term for
the next succeeding extension term shall be exercised only
by mutual agreement of Owner and Operator.
(b) In determining the number of Fiscal Years in which the
Hotel fails to achieve the Performance Test for purposes of
section 8.02(a), there shall be excluded:
(i) in respect of the initial term provided for in section
8.01, the lesser of (A) the Fiscal Years prior to the
Fiscal Year in which the Hotel achieves the
Performance Test for the first time, and (B) the first
four Fiscal Years of the Term (disregarding the initial
Fiscal Year of less than 12 calendar months); and
(ii) any Fiscal Year during which any one or more Force
Majeure Events occurs or the effects of which are
continuing, which Force Majeure Event or Force
Majeure Events in their totality, after giving effect to
the proceeds received from any applicable business
interruption insurance contemplated in section
18.01(a), adversely effect Achieved Room Revenue
to such an extent so as to cause the Hotel to fail to
achieve the Performance Test.
(c) In addition to the extension terms provided for in section
8.02(a), the Term shall be extended automatically by a
period equal to the period between any termination and
subsequent reinstatement of this Agreement pursuant to
section 15.02.
8.03 Exercise of Extension Options
Each option to extend exercisable by:
(a) Operator, in its sole discretion, in accordance with the
provisions of section 8.02(a), shall be deemed to have been
exercised unless Operator shall have given written notice to
Owner of Operator's intention not to exercise the option to
extend, which notice shall be given by Operator not later
than 12 months prior to the end of the initial term provided
for in section 8.01 or any subsequent extension term
provided for in section 8.02(a), as the case may be; and
(b) mutual agreement of Owner and Operator in accordance
with the provisions of section 8.02(a), shall be deemed to
have been exercised if a written agreement to that effect is
executed by Owner and Operator not later than 12 months
prior to the initial term provided for in section 8.01 or any
subsequent extension term provided for in section 8.02(a),
as the case may be.
8.04 Covenants to Apply
During each extension term provided for in section 8.02(a)
and any extension of the Term contemplated in section 8.02(c), this
Agreement shall continue in full force and effect in all respects, and all
of the terms, covenants, conditions and provisions of this Agreement
shall apply, except that there shall be no options to extend beyond those
provided for in this Article VIII.
ARTICLE IX
SALES, MARKETING, ADVERTISING AND
PURCHASING SERVICES AND CHARGES
9.01 Corporate Sales and Marketing Charges
and Corporate Advertising Charges
(a) Owner shall pay to Operator the following charges and all
related reimbursable expenses:
(i) for corporate sales and marketing services (including
corporate sales offices, supervision of the Hotel's
sales and marketing and advertising programs and
public relations assistance):
(A) commencing nine months prior to the
Scheduled Opening Date, an advance
corporate sales and marketing charge (the
"Advance Corporate Sales and Marketing
Charge") equal to 0.87% of the budgeted
Gross Receipts of the Hotel for the initial
period of nine calendar months after the
Opening Date as set out in the pro forma
statements of the Hotel for the initial period of
12 calendar months after the Opening Date to
be agreed upon between Owner and Operator
for corporate sales and marketing services
rendered by Operator prior to the Opening
Date;
(B) commencing on the Opening Date, an annual
corporate sales and marketing charge (the
"Corporate Sales and Marketing Charge")
equal to 0.87% of budgeted Gross Receipts as
set out in the Annual Plan then applicable for
corporate sales and marketing services
rendered by Operator after the Opening Date;
and
(ii) for supervision and development (including, without
limitation, production) and placement (including,
without limitation, purchase of space) of all corporate
advertising commencing on the Opening Date, an
annual corporate advertising charge (the "Corporate
Advertising Charge") equal to 0.6% of budgeted
Gross Receipts as set out in the Annual Plan then
applicable for corporate advertising services rendered
by Operator after the Opening Date.
(b) The percentages set out in section 9.01(a) for use in
determining the Corporate Sales and Marketing Charge and
the Corporate Advertising Charge will not be greater than
the lowest percentages charged, from time to time, to any
other hotels or resorts owned, leased, licensed, franchised
or managed by Operator or any Affiliate thereof under the
name "Four Seasons" for such services and will not be
changed without the express prior written consent of
Owner, which consent shall not be unreasonably withheld
or delayed and which consent may not be withheld or
delayed if Operator has notified all of the owners of hotels
owned, leased, licensed, franchised or managed by
Operator or any Affiliate thereof under the name of "Four
Seasons" of a change in such percentages, and (i) at least
two-thirds of such owners entitled to approve such change
( excluding ownership entities in which Operator or any
Affiliate thereof controls either directly or indirectly the
decision-making process in respect of the matters
contemplated in this section 9.1(b)) as tabulated by the
auditors of Operator, approve such change, and (B) all other
owners are required to comply with such approved change.
Operator will provide to Owner, at the same time as the
Annual Plan is delivered to Owner, an annual corporate
sales and marketing plan and an annual corporate
advertising plan.
9.02 Centralized Reservation Service Charge
Commencing on the Opening Date, Owner shall pay to
Operator a charge (the "Centralized Reservation Service Charge") relating
to centralized reservation services to be provided to the Hotel by
Operator. The Centralized Reservation Service Charge is intended to be
an amount per month per hotel room in the Hotel equal to the lowest
amount per month per hotel room charged, from time to time, to other
hotels and resorts owned, leased, licensed, franchised or managed by
Operator or any Affiliate thereof under the name "Four Seasons" for
centralized reservation services, which amount is currently the United
States Dollar Equivalent of C$35.50 and shall be subject to change 30
days after written notice thereof has been given by Operator to Owner.
9.03 Adjustment of Charges
Operator acknowledges that the intent of the provisions of
sections 9.01 and 9.02 is to permit the recovery of Operator's costs of
providing corporate sales and marketing services, corporate advertising
services and centralized reservation services and it is intended that
Operator not realize a profit or loss on such services. Accordingly, at the
time of the delivery by Operator of the annual statement of profit and
loss for the Hotel pursuant to section 11.07(b), Operator will furnish to
Owner an audited statement of income and expense for its corporate
sales and marketing, corporate advertising and centralized reservations
divisions, indicating the total of such charges received and
disbursements made for the previous Fiscal Year in respect of the hotels
and resorts owned, leased, licensed, franchised or managed by Operator
or any Affiliate thereof under the name "Four Seasons". If the Corporate
Sales and Marketing Charge, Corporate Advertising Charge or Centralized
Reservation Service Charge paid by Owner for such Fiscal Year exceeds
Owner's pro rata share of expenses incurred by Operator in respect of its
corporate sales and marketing, corporate advertising and centralized
reservation divisions for such Fiscal Year in respect of the hotels and
resorts owned, leased, licensed, franchised or managed by Operator or
any Affiliate thereof under the name "Four Seasons", Operator shall
promptly refund to Owner an amount equal to such excess (the "Service
Charge Excess"). Subject to sections 9.01 and 9.02, if the Corporate
Sales and Marketing Charge, Corporate Advertising Charge or Centralized
Reservation Service Charge paid by Owner for such Fiscal Year is less
than Owner's pro rata share of expenses incurred by Operator in respect
of its corporate sales and marketing, corporate advertising and
centralized reservation divisions for such Fiscal Year in respect of the
hotels and resorts owned, leased, licensed or managed by Operator or
any Affiliate thereof under the name "Four Seasons", Owner shall
promptly pay to Operator an amount equal to such deficiency (the
"Service Charge Deficiency").
9.04 Centralized Purchasing
(a) Commencing on the Opening Date, the Hotel may at the
option of Owner, exercised from time to time, participate in
a centralized purchasing system whereby items of Furniture,
Fixtures and Equipment and Operating Equipment and
Supplies are purchased from suppliers designated by
Operator or from or through any Affiliates of Operator and
Owner shall pay to Operator a charge (the "Centralized
Purchasing Charge") relating to such centralized purchasing.
The Centralized Purchasing Charge received by Operator
shall be the same as that generally charged, from time to
time, to other hotels and resorts owned, leased, licensed,
franchised or managed by Operator or any Affiliate thereof
under the name "Four Seasons" for centralized purchasing
services, not to exceed 7 1/2% of the total cost of any
purchase (including the cost of storage, freight and
installation, fees and commissions to third Persons (other
than the Centralized Purchasing Charge) and the costs of
any contracts awarded and any items purchased, leased or
hire-purchased on conditional sale; provided that the total
cost of items purchased, leased or hire-purchased on an
instalment payment basis shall be capitalized to reflect the
actual total cost thereof) and shall be subject to change 30
days after written notice thereof has been given by
Operator to Owner; provided that Operator shall not receive
the Centralized Purchasing Charge in respect of Furniture,
Fixtures and Equipment or Operating Equipment and
Supplies purchased pursuant to any approved hotel
refurbishing plan or capital improvement, including (without
limitation) any refurbishing or capital improvement activity
contemplated in an Annual Plan or any approved Capital
Refurbishing Programs to the extent that Operator has
received a Refurbishing Fee based on such purchase.
(b) Notwithstanding section 9.04(a), commencing on the
Opening Date, the Hotel shall participate in the centralized
purchasing system with respect to any particular item of
Furniture, Fixtures and Equipment or Operating Equipment
and Supplies, unless in respect of any such item (other than
any items which bear the "Four Seasons" name or logo or
any derivative thereof) (A) Owner can purchase such item
otherwise than through the centralized purchasing system
at a cost to the Hotel which would be less than the cost to
the Hotel of purchasing such item through the centralized
purchasing system (including, but not limited to, the
Centralized Purchasing Charge), (B) the specifications,
including (without limitation) quality and availability, of such
item purchased otherwise than through the centralized
purchasing system would be at least as good as the
specifications, including (without limitation) quality and
availability, of such item purchased through the centralized
purchasing system, and (C) the purchase of such item
otherwise than through the centralized purchasing system
would not otherwise adversely affect the operation and
management of the Hotel as a World Class Luxury Hotel.
(c) Notwithstanding the provisions of this section 9.04, the
cost to the Hotel of any purchase accomplished through the
centralized purchasing system (including, without limitation,
the Centralized Purchasing Charge), taking into account the
quality and payment terms of the items purchased, shall be
no greater than the cost at which such items could be
obtained by Owner or Operator from Persons who are not
Related Persons. If such maximum is exceeded, the excess
shall be rebated by Operator promptly upon it becoming
aware of such excess; provided such rebate shall not
exceed the Centralized Purchasing Charge received by
Operator in respect of the item in question. Any Dispute
concerning whether or not such maximum is exceeded
shall, if requested by either Owner or Operator, be resolved
by arbitration in accordance with the provisions of
section 21.03(b). Operator shall attempt to purchase all
items through the centralized purchasing system at the
lowest possible cost which Operator can obtain for the
Hotel taking advantage of all discounts, rebates and credits
available and having regard to the specifications, including
(without limitation) quality and availability of such items and
that the Hotel be furnished and equipped as a World Class
Luxury Hotel.
(d) Subject to the provisions of section 9.04(c), all purchases
accomplished through the centralized purchasing system
shall be made by Operator as agent for and at the sole risk
of Owner, and Operator makes no representation or
warranty with respect to items so purchased and shall not
be responsible for defects in any property acquired, but
shall enforce third Person warranties regarding such items
to the extent permitted by law and at Owner's sole cost
and expense.
9.05 Quality of Services
Notwithstanding any other provision of this Agreement to
the contrary, subject to Owner performing all of its obligations under this
Agreement and the other Hotel Agreements, the services to be provided
by Operator pursuant to the provisions of sections 9.01(a) and 9.02 shall
be of a nature, scope and level of standard and quality equivalent to the
nature, scope and level of standard and quality of such services rendered
by Operator to any other hotel or resort operated and managed by
Operator or any Affiliate under the name "Four Seasons" subject to the
provisions of this Agreement, including (without limitation) having regard
to the fact that the percentages charged to Owner for such services shall
not be greater than the lowest percentages charged to any such other
hotel or resort for such services.
ARTICLE X
NAME OF HOTEL
10.01 Name of Hotel
During the Term, the Hotel shall at all times be known and
designated as the "Four Seasons Resort, Las Vegas", together with such
other name or names, including (without limitation) the name of the
Project, as may be agreed to by Owner and Operator from time to time.
ARTICLE XI
REMUNERATION AND REIMBURSEMENT OF OPERATOR
11.01 Basic Fee
Owner shall pay to Operator a fee (the "Basic Fee") for
services rendered under this Agreement for each Fiscal Year of the Term
(and proportionately for any fraction of a Fiscal Year) equal to the sum
of: (i) 1.5% of Gross Receipts for such Fiscal Year, and (ii) 6% of Gross
Operating Profit for such Fiscal Year.
11.02 Incentive Fee
Owner shall pay to Operator an additional fee (the
"Incentive Fee") for services rendered under this Agreement for each
Fiscal Year of the Term (and proportionately for any fraction of a Fiscal
Year) equal to 15% of Adjusted Net Cash Flow for such Fiscal Year.
11.03 Refurbishing Fee
Owner may, at Owner's sole discretion, engage Operator to
provide construction supervisory services in connection with any
approved refurbishing plan or capital improvement, including (without
limitation) any refurbishing or capital improvement activity contemplated
in an Annual Plan or any Capital Refurbishing Programs and, in
consideration of Operator providing such services, Owner shall pay to
Operator a fee (the "Refurbishing Fee") to be agreed to by Owner and
Operator based on the scope of Operator's involvement in such approved
hotel refurbishing plan or capital improvement.
11.04 Reimbursement of Costs and Expenses
Owner shall reimburse Operator for all costs and expenses
reasonably incurred by Operator in the performance of the services in
accordance with this Agreement. Owner expressly acknowledges that
such services may be for either (a) the exclusive benefit of the Hotel, or
(b) the benefit of the Hotel and one or more other hotels or resorts that
are owned or operated and managed by Operator or any of its Affiliates;
provided that if such activities are not for the exclusive benefit of the
Hotel, only an equitable portion of the costs and expenses associated
therewith shall be allocated to the Hotel by Operator. Such costs and
expenses may include, but are not limited to, consultants fees and
expenses, out-of-pocket expenses incurred in connection with
performance of the duties described in this Agreement, travel expenses
and food and lodging of Operator's personnel (but shall not include the
employment costs of Operator's personnel, save and except as provided
for in this section 11.04). Such costs and expenses shall be estimated
by Operator in the Annual Plan. Owner shall also reimburse Operator, on
the basis of the number of days spent at the Hotel, for:
(a) the total employment costs of any personnel of Operator or
any of its Affiliates who spend time at the Hotel engaged in
duties on a temporary basis fulfilling a function that is
normally a full-time function of an employee of the Hotel;
and
(b) the total employment costs of any personnel of Operator or
any of its Affiliates who spend time at the Hotel devoted to
the problems or affairs of the Hotel; provided that, in each
case, the time spent at the Hotel is not less than 30
consecutive full working days;
provided that for purposes of sections 11.04(a) and (b), the time spent
at the Hotel by such personnel of Operator or any of its Affiliates shall
not, in each case, exceed 60 full working days.
11.05 Manner of Payment of Fees and Charges, Costs and
Expenses
(a) On the last day of each of the nine months commencing
immediately preceding the Scheduled Opening Date,
Operator shall be paid the Advance Corporate Sales and
Marketing Charge.
(b) Upon receipt by Owner of the statement of profit and loss
of the Hotel at the end of each month and otherwise in
accordance with section 11.07(a) Operator shall be:
(i) paid the Corporate Sales and Marketing Charge and
Corporate Advertising Charge for the preceding
month, calculated on the basis of budgeted Gross
Receipts as set out in the Annual Plan then
applicable;
(ii) paid the Basic Fee for the preceding month,
calculated on the basis of Gross Receipts for the
preceding month and budgeted Gross Operating
Profit as set out in the Annual Plan then applicable;
(iii) paid the Centralized Reservation Service Charge for
the preceding month;
(iv) paid the Centralized Purchasing Charge and
Refurbishing Fee, if any, for the preceding month;
and
(v) reimbursed for all costs and expenses, if any,
reimbursable to it pursuant to section 11.04 or for
which it may be responsible arising out of anything
done within the scope of its responsibilities under
this Agreement during the preceding month.
(c) Upon receipt by Owner of the statement of profit and loss
of the Hotel at the end of March, June, September and
December in each Fiscal Year and otherwise in accordance
with section 11.07(a) Operator shall be paid the Incentive
Fee for the preceding three month period, calculated on the
basis of the lesser of budgeted Adjusted Net Cash Flow for
such three month period as set out in the Annual Plan then
applicable and the actual Adjusted Net Cash Flow for such
three month period.
(d) Upon receipt by Owner of (i) the statement of profit and
loss of the Hotel at the end of March, June, September and
December in each Fiscal Year and otherwise in accordance
with section 11.07(a), and (ii) the annual statement of
profit and loss of the Hotel from Operator at the end of
each Fiscal Year and otherwise in accordance with
section 11.07(b), the requisite adjustments to reflect the
provisions of this Agreement shall be made between Owner
and Operator with respect to the Basic Fee and the
Incentive Fee for such quarter or Fiscal Year, as the case
may be, concurrently with the delivery of such statement.
(e) Upon receipt by Owner of the annual statements referred to
in section 9.03, the requisite adjustments to reflect the
provisions of this Agreement shall be made between Owner
and Operator with respect to each of the Corporate Sales
and Marketing Charge, Corporate Advertising Charge and
Centralized Reservation Service Charge for such Fiscal
Year, and Operator shall be paid any Service Charge
Deficiency or Owner shall be paid any Service Charge
Excess, as the case may be.
(f) To the extent that there may be insufficient funds in the
Hotel Bank Accounts for Operator to make the payments
required to be made under this section 11.05 on behalf of
Owner, Owner shall pay the amount of any deficit to
Operator within 10 days after demand, together with
interest on such payments commencing from the expiry of
such 10 day period at the Interest Rate.
11.06 Payment of Available Cash
The following payments shall be made by Operator on
behalf of Owner from the Hotel Bank Accounts or from funds made
available pursuant to section 7.01 in the following order of priority:
(a) to the payment of all Operating Expenses (excluding the
Basic Fee);
(b) to the extent not paid in accordance with section 11.06(a),
to the repayment to Operator of any sums advanced by it
pursuant to sections 7.02 and 15.01 and all costs and
expenses, if any, reimbursable to it pursuant to
section 11.04 or for which it may be responsible out of
anything done within the scope of its responsibilities under
this Agreement, together with interest on such advances
from the date of such advances at the Interest Rate;
(c) to fund the Capital Reserve for replacement and renewals
of Furniture, Fixtures and Equipment;
(d) to fund adequate working capital reserves for the Hotel in
accordance with the Annual Plan;
(e) to the payment of the Basic Fee to Operator, the Owner's
Priority Payment to Owner and the Owner's Pre-Opening
Advisory Fee to Owner;
(f) to the payment of the Incentive Fee to Operator; and
(g) the balance to Owner.
The payments enumerated in this section 11.06 shall be made by
Operator (by way of cash, direct debit to Hotel Bank Accounts, cheque,
bank draft, wire transfer or other means of payment selected by
Operator) on behalf of Owner from time to time as required for the
operation of the Hotel or as otherwise set forth in this Agreement.
11.07 Financial Statements of Hotel
(a) Operator shall deliver to Owner within 15 days after the
end of each month a profit and loss statement showing the
results of operation of the Hotel for the immediately
preceding month and the Fiscal Year to date. Such
statements shall be taken from the books of accounts
maintained by Operator.
(b) Within 90 days after the end of each Fiscal Year, Operator
shall cause to be prepared and delivered to Owner, a profit
and loss statement certified by the Hotel's General Manager
and the independent auditors of the Hotel showing the
results of operation of the Hotel for such Fiscal Year and a
computation of Gross Receipts, Gross Operating Profit and
the Fees and Charges. Operator shall have no liability for
delays in the preparation and delivery of such statements to
Owner provided that Operator has taken all practical steps
to facilitate the preparation of such statements on a timely
basis. The cost of the audit shall be an Operating Expense.
Owner shall engage, at the expense of the Hotel, an
independent and reputable firm of Certified Public
Accountants designated by Owner and approved by
Operator to be the auditors of the Hotel.
(c) Any Dispute concerning the manner of reporting or
record-keeping, including (without limitation), the
calculation of Fees and Charges, shall, if requested by
either Owner or Operator, be resolved by arbitration in
accordance with the provisions of section 21.03(b).
(d) Operator shall, at the request of Owner from time to time
and upon reasonable prior notice, deliver to Owner a profit
and loss statement showing the results of the operation of
the Hotel for the twelve month period coinciding with the
fiscal year of Owner.
11.08 Operator's Performance Guarantee
(a) If the Hotel fails to achieve the Performance Test in both
the third and fourth Fiscal Years of the Term (disregarding
the initial Fiscal Year of less than 12 calendar months),
Operator shall pay to Owner concurrently with the delivery
to Owner of the annual statement of profit and loss of the
Hotel from Operator in accordance with section 11.07(b) at
the end of the fourth Fiscal Year of the Term, an amount
equal to the lesser of:
(i) the portion of the Basic Fee based on Gross
Operating Profit payable to Operator for each of such
Fiscal Years; and
(ii) the GOP Shortfall for each of such Fiscal Years.
(b) Operator shall not be required to make the payment
contemplated in section 11.08(a) if, during either the third
or fourth Fiscal Years of the Term (disregarding the initial
Fiscal Year of less than 12 calendar months), one or more
Force Majeure Events occurs or the effects of which are
continuing, which Force Majeure Event or Force Majeure
Events in their totality, after giving effect to the proceeds
received from any applicable business interruption insurance
contemplated in section 18.01(a), adversely affect
Achieved Room Revenue to such an extent so as to cause
the Hotel to fail to achieve the Performance Test.
ARTICLE XII
BOOKS AND RECORDS
12.01 General
Operator shall, for the account of Owner, keep full and
adequate books of account and other records (collectively, the
"Accounts") on an accrual basis reflecting the results of operation of the
Hotel, all in accordance with Generally Accepted Accounting Principles
and Applicable Law, with such exceptions as may be required by the
provisions of this Agreement. The Accounts shall be presented in a
format consistent with the format used in other hotels or resorts which
Operator or any of its Affiliates own or operate and manage.
12.02 Location, Examination and Inspection
The Accounts shall be kept at the Hotel. The Accounts
shall be available to Owner and its representatives at all reasonable times
for examination, inspection and transcription; provided that all requests
for access to the Accounts and all inquiries resulting from such access
shall be made to Operator and such access shall be subject to such
restrictions as are necessary so as not to interfere with the operation of
the Hotel. The Accounts pertaining to the Hotel shall at all times be the
property of Owner, shall not be removed from the Hotel by Operator
without Owner's prior consent, which consent may be unreasonably
withheld or delayed.
ARTICLE XIII
RELATIONSHIP OF OPERATOR AND OWNER
13.01 Operator to Act as Agent for Owner
In the performance of its duties as the operator and
manager of the Hotel, Operator shall act solely as the agent of Owner.
Nothing in this Agreement shall constitute or be construed to be or
create a partnership, joint venture or joint employer relationship between
Owner and Operator, and the relationship of Operator to Owner shall be
that of an independent contractor acting on Owner's behalf. Operator
shall not be required to expend any of its own funds or otherwise incur
any debts or liabilities to any Person in the performance of its duties as
the operator and manager of the Hotel. All debts and liabilities to third
Persons required or permitted to be incurred by Operator under this
Agreement in the course of its furnishing, equipping, servicing,
marketing, operation and management of the Hotel shall be the debts and
liabilities of Owner only and Operator shall not be liable for any such
obligations by reason of its furnishing, equipping, servicing, marketing,
operation and management of the Hotel for Owner. Operator may so
inform third Persons with whom it deals on behalf of Owner and may
take any other reasonable steps to carry out the intent of this
section 13.01.
13.02 Delegation of Authority by Operator
Operator may engage one or more Persons to assist
Operator to perform services in connection with the furnishing,
equipping, servicing, marketing, operation and management of the Hotel
and each Person engaged by Operator to perform such services,
including (without limitation) any of its Affiliates, any agent or employee
of Operator or any of its Affiliates or any agent or employee of Owner
hired by Operator or any of its Affiliates, shall be acting solely as agent
of Owner and not of Operator for such purposes. Notwithstanding that
Operator may engage one or more Persons to perform the services
contemplated by this section 13.02(a), Operator shall not be released
from its responsibilities under this Agreement or any liabilities which may
result therefrom nor shall such responsibilities or liabilities be diminished.
13.03 Additional Benefits to Personnel
(a) Operator, in its discretion but always in accordance with
normal practice in other hotels and resorts under
management of Operator or any of its Affiliates and in
accordance with the Annual Plan, may provide food and
lodging for Senior Hotel Personnel and allow them to use
the Hotel facilities without charge and may provide other
Hotel personnel fully or partially discounted rooms, food
and beverage and access to other Hotel facilities.
Furthermore, Operator may, in accordance with normal
practice in other hotels and resorts under management of
Operator or any of its Affiliates and in accordance with the
Annual Plan, allow Senior Hotel Personnel to occupy
suitable living quarters inside the Hotel and any costs
incurred in providing such suitable living quarters shall be
an Operating Expense. In addition, Operator may, in
accordance with normal practice in other hotels and resorts
under management of Operator or any of its Affiliates and
in accordance with the Annual Plan, provide the General
Manager of the Hotel with suitable living quarters outside
the Hotel and any costs incurred in providing such suitable
living quarters shall be an Operating Expense. In this
regard, Owner acknowledges the current practice in other
hotels and resorts under the management of Operator or
any of its Affiliates of providing interest-free mortgage loans
to senior management of such hotels and resorts, and
approves of Operator providing interest-free mortgage loans
from the Hotel Bank Accounts to, or otherwise arranging
interest-free mortgage loans for, the General Manager of the
Hotel to enable him to purchase a suitable home. Such
loan shall be used solely for the purchase of a home for
occupancy by the General Manager of the Hotel, shall be
secured by a valid mortgage or lien against the home, and
shall be immediately due and payable at any time the
General Manager of the Hotel ceases to hold such position.
(b) Operator may also, in its discretion but always in
accordance with normal practice in other hotels and resorts
under management of Operator or any of its Affiliates,
permit senior management personnel of Operator or any of
its Affiliates the use of all Hotel facilities, including (without
limitation) those for the provision of food and beverages,
when appropriate in the context of services provided by
such senior management personnel to the Hotel, without
charge to such senior management personnel or to Operator
or to such Affiliate.
(c) Operator may also, in its discretion but always in
accordance with normal practice in other hotels and resorts
under management of Operator or any of its Affiliates,
permit personnel of Operator or any of its Affiliates and
personnel of hotels and resorts under management of
Operator or any of its Affiliates the use of all Hotel facilities,
including (without limitation) those for the provision of food
and beverages, without charge (or with discounted charge)
to such personnel or to Operator or to such Affiliate or to
the hotels and resorts employing such personnel; provided
that rooms in the Hotel shall only be booked on a space
available basis.
(d) Owner acknowledges and agrees that the benefits
contemplated in this section 13.03 will be provided in
accordance with the current operating policies and
procedures of Operator described in Schedule "D", as the
same may be amended from time to time. Operator also
agrees to provide Owner with notice of any change to the
current operating policies and procedures of Operator
described in Schedule "D" which could have a material
adverse effect on the Hotel.
ARTICLE XIV
REPAIRS, REPLACEMENTS, MAINTENANCE AND IMPROVEMENTS
14.01 Repairs, Replacements and Maintenance
Operator shall, at the sole cost and expense of Owner,
make such expenditures from time to time that are consistent with the
Annual Plan for repairs and maintenance, for replacements, renewals and
additions to Furniture, Fixtures and Equipment and for minor capital
improvements as are necessary to maintain the Hotel in good and safe
operating condition and at the standard of a World Class Luxury Hotel
(excluding structural repairs and changes to the Hotel and extraordinary
repairs to or replacement of Furniture, Fixtures and Equipment as
contemplated in section 14.02). If any such repairs, maintenance,
replacements, renewals, additions or improvements shall be made
necessary by any condition against the occurrence of which Owner has
received or is entitled to the benefit of the guarantee or warranty of any
supplier of labour or material for the construction of repairs,
maintenance, replacements, renewals, additions or improvements to the
Hotel or of the Furniture, Fixtures and Equipment installed therein, then
Operator shall use its reasonable efforts to invoke such guarantees or
warranties in Owner's or Operator's name and Owner will co-operate
fully with Operator in the enforcement thereof.
14.02 Structural Repairs
If structural repairs or changes to the Hotel or extraordinary
repairs to or replacement of any Furniture, Fixtures and Equipment shall
be required at any time during the Term to maintain the Hotel in good
and safe operating condition or by reason of any Applicable Law or by
order of any Governmental Authority or because Operator and Owner
jointly agree upon the desirability thereof (excluding repairs and
maintenance, replacements and renewals and additions to Furniture,
Fixtures and Equipment and minor capital improvements as contemplated
in section 14.01), then Operator or Owner, at its option, subject to the
provisions of this section 14.02, shall make all such repairs, changes or
replacements in or to the Hotel. All such repairs, changes or
replacements shall be made at Owner's sole cost and expense with as
little hindrance to the operation of the Hotel as reasonably possible.
Subject to the provisions of section 6.03, Operator shall give Owner
advance notice of any such repairs, changes or replacements and obtain
the approval of Owner prior to making any such repairs, changes or
replacements in or to the Hotel. Whenever the giving of such advance
notice or the obtaining of such approval is, however, impracticable, in
Operator's opinion, then Operator shall be entitled to make such repairs,
changes or replacements without having to give such advance notice or
having to obtain such approval; provided, however, that Operator shall
give Owner notice as soon as practicable after such repairs, changes or
replacements are made of the nature of such repairs, changes or
replacements and the reasons therefor. Notwithstanding the foregoing,
Owner shall have the right to either contest the need for any such
repairs, changes or replacements or postpone compliance therewith, if
such contestation or postponement is permitted by Applicable Law, and
will not in any way adversely affect the operation of the Hotel or the
insurance contemplated by Article XVIII or expose Operator to civil or
criminal liability. Operator shall co-operate with Owner as Owner may
request and execute any documents or pleadings required for such
purpose; provided that (i) Operator is satisfied that the facts set forth in
such documents or pleadings are accurate and that such execution and
co-operation does not impose any liabilities, obligations or costs and
expenses on Operator, and (ii) Owner shall protect Operator from any
loss, cost, damage or cost and expense which may result therefrom,
such protection to be in form and substance satisfactory to Operator.
The Capital Reserve shall not be utilized for repairs, changes or
replacements contemplated in this section 14.02.
14.03 Alterations, Additions and Improvements
Operator shall, at the sole cost and expense of Owner,
make such alterations, additions or improvements from time to time that
are consistent with the Annual Plan in or to the Hotel (excluding repairs
and maintenance, replacements, renewals and additions to Furniture,
Fixtures and Equipment and minor capital improvements as contemplated
in section 14.01 and structural repairs and changes to the Hotel and
extraordinary repairs to or replacements of Furniture, Fixtures and
Equipment as contemplated in section 14.02). The cost of such
alterations, additions or improvements shall be charged either directly to
current expenses or shall be capitalized on the books of account in
accordance with Generally Accepted Accounting Principles applicable to
the hotel industry and in accordance with the Uniform System of
Accounts.
ARTICLE XV
DAMAGE TO AND DESTRUCTION OF THE HOTEL
15.01 Owner's Obligation to Repair
(a) Subject to sections 15.01(b) and (c), if the Hotel or any
portion thereof shall be damaged or destroyed at any time
or times during the Term by fire or any other casualty,
Owner will with due diligence repair, rebuild or replace the
same so that after such repairing, rebuilding or replacing the
Hotel shall be substantially the same as prior to such
damage or destruction. If Owner fails to undertake such
work within 90 days after the fire or other casualty or fails
to complete the work diligently, Operator may, at its option,
either (i) terminate this Agreement by written notice to
Owner, or (ii) pursue any other recourse at law or in equity
it may have.
(b) If the cost of repair, rebuilding or replacement following a
casualty is estimated to exceed 50% of the replacement
cost of the Hotel, Owner shall have the right (exercisable by
written notice given to Operator within 90 days following
the date which is the later of the date of occurrence of
such casualty and the date of the determination of the
estimate) not to repair, rebuild or replace the damage and
to terminate this Agreement effective on the last day of the
month following the month in which such notice is given;
provided that if such damage occurs within the final five
years of the then current Term and the cost of repair,
rebuilding or replacement exceeds 20% (but is less than
50%) of the replacement cost of the Hotel, Owner shall
have the right to elect not to repair, rebuild or replace such
damage and to terminate this Agreement by written notice
to Operator, unless Operator has a further right to extend
the Term pursuant to section 8.02(a), in which case the
notice of termination shall not be effective and Owner shall
repair, rebuild or replace the Hotel as otherwise required by
section 15.01(a).
(c) If the cost of repairing, rebuilding or replacement not
covered by insurance following a casualty is estimated to
exceed 20% of the replacement cost of the Hotel, then
Owner shall have the option (exercisable by written notice
given within 90 days following the date which is the later
of the date of occurrence of such casualty and the date of
determination of the estimate) not to repair, rebuild or
replace and to terminate this Agreement effective on the
last day of the month following the month in which such
notice is given.
(d) If Owner, by reason of the occurrence of any one or more
Force Majeure Events, shall be unable to undertake the
repairs or restoration within the time provided in
section 15.01(a), the time during which Owner shall be able
to undertake to accomplish the repairs or restoration shall
be extended accordingly.
(e) Operator shall, notwithstanding any delay or interruption
resulting from any such damage or destruction, be entitled
to receive from any insurance proceeds paid in respect of
the business interruption insurance contemplated in section
18.01(a) (i) at any time prior to the end of the first full
Fiscal Year (disregarding the initial Fiscal Year of less than
12 calendar months) after the Opening Date, an equitable
apportionment of such insurance proceeds based on (A) the
Corporate Sales and Marketing Charge and the Corporate
Advertising Charge calculated on the basis of budgeted
Gross Receipts as set out in the Annual Plan then
applicable, (B) the Basic Fee calculated on the basis of
budgeted Gross Receipts and budgeted Gross Operating
Profit as set out in the Annual Plan then applicable, (C) the
Incentive Fee, calculated on the basis of budgeted Adjusted
Net Cash Flow as set out in the Annual Plan then
applicable, and (D) the Centralized Reservation Service
Charge, or (ii) at any time after the first full Fiscal Year
(disregarding the initial Fiscal Year of less than 12 calendar
months) after the Opening Date, an equitable apportionment
of such insurance proceeds based on the Corporate Sales
and Marketing Charge, the Corporate Advertising Charge,
the Basic Fee, the Incentive Fee and the Centralized
Reservation Service Charge historically earned by Operator.
15.02 Operator's Reinstatement
If, following a termination of this Agreement by Operator in
accordance with section 15.01, at any time during the three year period
following such termination Owner, Parent or a Related Person intends to
repair, rebuild or replace the Hotel or commences to do so, Owner shall
promptly notify Operator in writing of such intention or commencement,
and, at Operator's election (exercisable by written notice given to Owner
within 60 days of receipt of the written notice by Owner of its intention
to repair, rebuild or replace the Hotel, or, if no such Owner's notice is
given, Operator's actual knowledge of the commencement) this
Agreement shall be reinstated (with only such amendments as are
required due to changes in the type, scope or design of the project).
ARTICLE XVI
EXPROPRIATION
16.01 Complete Expropriation
If the whole of the Hotel shall be taken or condemned in any
expropriation, compulsory acquisition or like proceedings, or if such a
portion of the Hotel shall be so taken as to make it imprudent or
unreasonable, in Owner's and Operator's opinion, to operate the
remaining portion as a hotel of the standard of operation then applicable
to the Hotel, then in either event this Agreement shall be deemed to have
terminated as of such time as possession of the Hotel or portion of the
Hotel is surrendered or its operation is discontinued as a result of such
taking or condemnation. Owner shall receive the whole of any award for
any complete taking or condemnation and Operator shall not be entitled
to make any claim for all or any part of such award; provided, however,
that Operator shall be entitled to make a separate and distinct claim
against the appropriate Governmental Authority for compensation arising
from the loss of its Interest as a result of such taking or condemnation.
Any Dispute as to whether the remaining portion of the Hotel can be
operated as a hotel of the standard of operation then applicable to the
Hotel after any condemnation or expropriation shall, if requested by
either Owner or Operator, be resolved by arbitration in accordance with
the provisions of section 21.03(b).
16.02 Partial Expropriation
If only a part of the Hotel shall be taken or condemned in
any expropriation, compulsory acquisition or like proceedings and the
taking or condemnation does not make it financially or operationally
unreasonable or imprudent, in Owner's and Operator's opinion, to
operate the remaining portion as a hotel of the standard of operation then
applicable to the Hotel, this Agreement shall not terminate; provided that
any award therefor shall be used by Owner to repair any damage to the
Hotel or any part of the Hotel, or to alter or modify the Hotel or any part
of the Hotel, so as to render the Hotel a complete and satisfactory
architectural unit as a World Class Luxury Hotel. The remainder of any
award for any partial taking or condemnation shall be retained by Owner;
provided that Operator shall be entitled to make a separate and distinct
claim against the appropriate Governmental Authority for compensation
arising from the loss of its Interest as a result of such taking or
condemnation. Any Dispute as to whether the remaining portion of the
Hotel can be operated as a hotel of the standard of operation then
applicable to the Hotel after any condemnation or expropriation shall, if
requested by either Owner or Operator, be resolved by arbitration in
accordance with the provisions of section 21.03(b).
16.03 Temporary Expropriation
If all or any part of the Hotel shall be taken or condemned
in any expropriation, compulsory acquisition or like proceeding for a
temporary use, this Agreement shall not terminate and Operator shall, for
the duration of any delay or for the period of business interruption
resulting from any such taking or condemnation, be entitled to receive
from any insurance proceeds paid in respect of the business interruption
insurance contemplated in section 18.01(a) (i) at any time prior to the
end of the first full Fiscal Year (disregarding the initial Fiscal Year of less
than 12 calendar months) after the Opening Date, an equitable
apportionment of such insurance proceeds based on (A) the Corporate
Sales and Marketing Charge and the Corporate Advertising Charge,
calculated on the basis of budgeted Gross Receipts as set out in the
Annual Plan then applicable, (B) the Basic Fee, calculated on the basis of
budgeted Gross Receipts and budgeted Gross Operating Profit as set out
in the Annual Plan then applicable, (C) the Incentive Fee, calculated on
the basis of budgeted Adjusted Net Cash Flow as set out in the Annual
Plan then applicable, and (D) the Centralized Reservation Service Charge,
or (ii) at any time after the end of the first full Fiscal Year (disregarding
the initial Fiscal Year of less than 12 calendar months) after the Opening
Date, an equitable apportionment of such insurance proceeds based on
the Corporate Sales and Marketing Charge, the Corporate Advertising
Sale, the Basic Fee, the Incentive Fee and the Centralized Reservation
Service Charge historically earned by Operator. When and if during the
Term, the period of temporary use shall terminate, Owner shall make all
such restoration, repairs and alterations as shall be necessary to restore
the Hotel to a World Class Luxury Hotel.
ARTICLE XVII
TAXES AND MORTGAGES
17.01 Payment of Taxes
Subject to section 17.02, all Taxes levied against the Hotel
or any component part thereof shall be paid prior to the date the same
become due and payable, subject to any right to pay by instalments to
the extent permitted by Applicable Law. Should funds available from the
Hotel Bank Accounts not be sufficient to enable Operator to pay such
obligations to the extent not paid by Owner in timely and complete
fashion, Owner shall supply the deficiency in accordance with
section 7.01.
17.02 Contest
Notwithstanding section 17.01, Owner may contest the
validity of the amount of any Taxes, without prejudice to Operator's
rights under this Agreement; provided that such contest is permitted by
Applicable Law and will not in any way adversely affect the operation of
the Hotel or expose Operator to civil or criminal liability. The costs and
expenses of such contest shall be an Operating Expense. Operator shall
co-operate with Owner as Owner may request and execute any
documents or pleadings required for such purpose; provided that (a)
Operator is satisfied that the facts set forth in such documents or
pleadings are accurate and that such execution or co-operation does not
impose any obligations or liabilities or costs and expenses on Operator,
and (b) Owner shall protect Operator from any loss, cost, damage or cost
and expense which may result therefrom, such protection to be in form
and substance satisfactory to Operator. To the extent that any Taxes
affect Operator or Operator's rights under this Agreement, Operator may,
at the expense of Operator, contest the validity of the amount of any
Taxes and Owner shall co-operate with Operator as Operator may
request and execute any documents or pleadings required for such
purpose; provided that (a) Owner is satisfied that the facts set forth in
such documents or pleadings are accurate and that such execution or
co-operation does not impose any obligations or liabilities or costs and
expenses on Owner, and (b) Operator shall protect Owner from any loss,
cost, damage or cost and expense which may result therefrom, such
protection to be in form and substance satisfactory to Owner.
ARTICLE XVIII
INSURANCE
18.01 Coverage
(a) Owner acknowledges and agrees that during the Term
Operator will provide and maintain for the Hotel insurance
coverage of the kinds and in the amounts carried by
Operator or any of its Affiliates at other hotels and resorts
insured under blanket policies arranged by Operator or any
of its Affiliates. Without limiting the generality of the
foregoing, such insurance coverage shall include:
(i) the policies described in Schedule "C" to this
Agreement; and
(ii) other policies which the Operator or any of its
Affiliates shall, from time to time, deem prudent for
the operation of a World Class Luxury Hotel,
and the premiums payable in respect of all such insurance
coverage shall be included in the calculation of Operating
Expenses. Operator shall provide Owner with an annual
report on the extent of all insurance coverage provided and
maintained by Operator for the Hotel at the time of renewal
of such insurance coverage.
(b) If Owner wishes any increased amount or additional form of
insurance other than those arranged by Operator or any of
its Affiliates as described in section 18.01(a), then Owner
shall request Operator in writing to arrange such insurance
and Operator shall make every reasonable effort to arrange
such insurance. If, in the view of Operator's general
insurance brokers such insurance would not be obtainable,
Operator shall so advise Owner promptly in writing. Owner
shall be free thereafter to attempt to arrange such increased
amounts or additional forms of insurance, in accordance
with the policy requirements set out in sections 18.02
through 18.06, until the next policy renewal. If Owner
increases such insurance above the limits or forms that are
standard in the industry for properties of comparable
location and character, the increased premium shall be
excluded for purposes of calculating Operating Expenses
and, to the extent cash is not available in the Hotel Bank
Accounts to make payments pursuant to section 11.06 as
a result of those excess premiums, Owner shall deposit the
amount of the deficiency into the Hotel Bank Accounts.
(c) Owner understands that Operator cannot guarantee
availability during the Term of all coverage described in
section 18.01(a). If at any time:
(i) Operator shall, for any reason, be unable to arrange
any or all of the insurance described in
section 18.01(a), then Operator shall so notify
Owner in writing, and Owner shall be free thereafter
to attempt to arrange such insurance, in accordance
with the policy requirements set out in
sections 18.02 through 18.06, until the next policy
renewal;
(ii) in the view of Operator or any of its Affiliates or their
general insurance brokers any coverage is not
obtainable exactly as described in Schedule "C",
then Operator shall substitute the obtainable
coverage which in the opinion of Operator or any of
its Affiliates or their general insurance brokers most
closely meets the requirements of Schedule "C".
Operator shall, however, notify Owner in writing of
the nature of and reason for any such discrepancy;
and
(iii) notwithstanding the provisions of section 18.01(a),
Owner shall at all times be free to attempt to arrange
such insurance in accordance with the policy
requirements set out in sections 18.02 through
18.06 until the next policy renewal, as long as the
cost of such insurance is no greater than the cost of
the insurance policies provided by Operator and the
coverages and the proposed replacement
underwriter's credit rating, creditworthiness, claims
processing, service and other relevant considerations
are at least equal to or better than those of the
insurance policies and underwriters provided by
Operator; provided that, prior to attempting to
arrange such insurance and, thereafter, if such
insurance has been arranged, Owner shall co-operate
with Operator in such a manner as Operator may
reasonably require in order not to cause any
disruption to the insurance coverage arranged by
Operator or any of its Affiliates for the other hotels
and resorts owned or operated and managed by
Operator or any of its Affiliates.
Owner further understands that, notwithstanding the
foregoing obligations, risks may exist from time to time
which are not insurable or insured. Operator will make
every reasonable effort to ensure that coverage is arranged
to the standard of insurance described in Schedule "C" or
that obtainable coverage which most closely meets the
requirements of Schedule "C" in the opinion of Operator or
any of its Affiliates or their general insurance brokers is
substituted therefor as described in section 18.01(c)(ii).
(d) Subject to Article XXII, Operator or any of its Affiliates, in
the performance of its obligations under this Article XVIII,
shall not be liable to Owner or to any other Person for any
and all uninsured liability, loss, claim or damage, and Owner
shall indemnify, defend and hold Operator and any of its
Affiliates harmless for any and all uninsured liability, loss,
claim or damage.
18.02 Named Insureds
All policies required under, or otherwise contemplated by,
this Article XVIII shall:
(a) name, as insureds, Operator and such other parties as
Operator shall require to be named as insureds;
(b) name as additional insureds Owner and such additional
Persons as Owner shall require to be named as additional
insureds or loss payees;
(c) contain a waiver of subrogation provision pursuant to which
the insurer(s) waives all expressed and implied rights of
subrogation against each of the parties insured and their
respective Affiliates; and
(d) provide that losses shall be payable to the parties insured
as their respective interests may appear. With respect to
insurance on the Hotel structure, if the mortgagee is an
institutional lender and so requires, insurance proceeds may
be made payable to the mortgagee or to an insured bank in
the country where the Hotel is located, in either instance as
trustee for the custody and disposition of the proceeds.
Owner shall exercise reasonable commercial efforts to
ensure that any mortgage shall contain a provision to the
effect that proceeds from the insurance shall be promptly
made available by the mortgagee for repair, rebuilding or
restoration.
18.03 Policies
All policies required under, or otherwise contemplated by,
this Article XVIII shall include the following provisions:
(a) such insurance shall be non-contributing with, and shall
apply only as primary and not in excess to, any other
insurance available to the Persons insured; and
(b) coverage shall not be cancelled, lapsed or materially
reduced, except where the insurer(s) have provided the
Persons insured at least 30 days advance written notice
thereof.
18.04 Insurance Companies
Owner and Operator shall use all reasonable efforts to
ensure that all insurance shall be taken out by Owner or Operator in
respect of the Hotel with insurance companies having (i) a Best Insurance
Reports' policyholder rating of not less than "A" and a financial rating of
at least IX, (ii) the equivalent thereof by other rating agencies, or (iii) a
reputable and secure insurance company in the opinion of J & H Xxxxx
and XxXxxxxx, Inc. or such other general insurance broker of Operator
or any of its Affiliates approved by Owner.
18.05 Certificates of Insurance
Whenever insurance coverage is arranged by Operator or by
Owner in accordance with this Agreement, whichever party has arranged
for such coverage, will direct that up-to-date certificates of such
coverage (and full and complete copies of the relevant insurance policies,
if requested) and subsequent renewals or replacements thereof will be
delivered to:
(a) the other party; and
(b) any one else reasonably designated by the other party.
18.06 Blanket Policies
(a) Where insurance is provided by Operator or any of its
Affiliates, such insurance may be maintained under
insurance policies which cover operations other than the
Hotel. In such event, it is acknowledged and agreed by
Owner that the purpose of such blanket policies is to
provide mutual benefits to Owner, Operator and owners of
other hotels and resorts managed by Operator or any of its
Affiliates. Operator or any of its Affiliates are hereby
authorized to make any amendments, consolidations or
changes in either deductibles or the insurer designated to
yield net cost reductions to a majority of the participants in
any blanket policy.
(b) Where coverage is provided under such a policy or policies,
the insurer shall identify the proportion of the total premium
that is applicable to the Hotel, and the reasonable opinion
of the insurer with respect to the allocation shall be binding.
(c) Operator shall be entitled to charge the Hotel's
proportionate share of all premiums for business
interruption insurance paid by Operator or any of its
Affiliates as an Operating Expense of the Hotel.
18.07 Insurance Appraisals
Within a reasonable time following receipt of Owner's
written request (but not more frequently than annually) Operator where
practicable shall obtain such insurance appraisals of the replacement
value of the Hotel, the Furniture, Fixtures and Equipment or any parts
thereof as are specified in such written request. The cost of such
appraisals shall be an Operating Expense.
ARTICLE XIX
ASSIGNMENT AND MORTGAGES
19.01 Owner's Right to Assign
Subject to the provisions of section 19.03, 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 Operator, in form and
substance satisfactory to Operator, 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.
19.02 Owner's Right to Mortgage
Subject to the provisions of section 19.03, 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 Operator, in form
and substance satisfactory to Operator, agreeing:
(a) to be bound by Owner's covenants and undertakings
hereunder for any period during which it is in possession of
the Hotel;
(b) not to exercise any rights that it might otherwise have to in
any way limit Operator's rights under this Agreement in
respect of the Hotel Bank Accounts;
(c) 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
Operator's right to operate and manage the Hotel in
accordance with the terms of this Agreement or affect any
other right of Operator under this Agreement, and (ii) this
Agreement shall continue in full force and effect and such
mortgagee, its successors and assigns, or any party (the
"Foreclosure Purchaser") acquiring the Hotel or any interest
or right therein upon foreclosure sale or by deed in lieu
thereof, as the case may be, shall be a Qualified Person and
shall automatically recognize this Agreement and Operator'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 Operator and such
mortgagee, or its successors and assigns, or the
Foreclosure Purchaser, as the case may be; and
(d) 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 Operator.
19.03 Limitation on Owner's Right to Assign and Mortgage
Notwithstanding the provisions of sections 19.01 and
19.02, Owner shall not without the express prior written consent of
Operator, 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, 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 Operator, which
consent may be unreasonably withheld or delayed, is obtained; provided
that this section 19.03 shall not apply to a change in control of Parent
resulting from the change in ownership of, or direction or control over,
shares of Parent that are listed and posted for trading on any
internationally recognized securities exchange.
19.04 Operator's Right to Assign
Subject to section 19.06, Operator 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 Operator 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 Operator contained in this
Agreement; and
(b) in the case of a sale, assignment, transfer or other
disposition to an Affiliate of Operator, Operator 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 Operator 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, Operator shall be released from all of its obligations
under this Agreement.
19.05 Operator's Right to Mortgage
Operator shall have the right at any time to mortgage,
hypothecate or otherwise encumber all or any part of its right to any
payments to which it is entitled hereunder to a financial institution as
security for its obligations to such financial institution.
19.06 Limitation on Operator's Right to Assign
Operator 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 Operator, or (iii) a Person that acquires all or
substantially all of the assets of Operator, 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 19.06 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 XX
EVENTS OF DEFAULT AND TERMINATION
20.01 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 disburse any
amount to the other party provided for herein, or 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 Operator;
(c) the consent to an involuntary petition in bankruptcy or the
failure by Owner or Operator 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 Operator 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; and
(e) the failure of either Owner or Operator 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 the 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. Any
Dispute as to whether a period required to cure a default is
a reasonable period shall, if requested by Owner or
Operator, be resolved by arbitration in accordance with the
provisions of section 21.03(b).
20.02 Rights of Non-Defaulting Party
Upon the occurrence of any event of default pursuant to
section 20.01 and the applicable grace periods having expired, either
Owner or Operator may, without prejudice to any other recourse at law
or in equity which it may have, give to the other party 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.
20.03 Remedying Defaults
Notwithstanding anything to the contrary contained in this
Agreement, either Owner or Operator 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.
20.04 Bona Fide Dispute
Notwithstanding the provisions of section 20.02, neither
Owner nor Operator shall be entitled to take any of the actions
contemplated in section 20.02, save and except for the commencement
of any legal proceedings (in which case the provisions of sections 24.09
and 24.10 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 20.02,
notice of a Dispute has been delivered in accordance with
section 21.02(a) with respect to any of the foregoing events of default,
and the procedures set forth in sections 21.02(b) and (c) are being
pursued in good faith (except that for this purpose under section
21.02(b), the requirement of a 30 day negotiation period under section
21.02(a) shall be inapplicable and the period within which to appoint an
expert under section 21.02(b) shall commence on the date of delivery of
notice of a Dispute).
20.05 Owner's Right to Terminate
(a) Subject to the provisions of sections 20.05(b) and 20.05(c)
and in addition to any right arising out of section 20.02,
Owner shall have the right to terminate this Agreement at
any time following the Termination Test Effective Date if,
in any two consecutive Fiscal Years (a "Termination Test
Period"), the Hotel fails to achieve the Performance Test.
(b) Notwithstanding the provisions of section 20.05(a),
Owner's right to terminate this Agreement in respect of any
Termination Test Period shall only be exercised (i) by
written notice by Owner to Operator within 90 days of the
receipt by Owner of the annual statement of profit and loss
for the Hotel from Operator in accordance with the
provisions of section 11.07(b) for the immediately
preceding Fiscal Year, which notice shall be effective 90
days after such notice is given, and (ii) with respect to the
operations of the Hotel in the immediately preceding
Termination Test Period.
(c) Notwithstanding the provisions of section 20.05(a), Owner
shall not have the right to terminate this Agreement in
respect of any Termination Test Period, if, during either
Fiscal Year of such Termination Test Period, one or more
Force Majeure Events occurs, which Force Majeure Event
or Force Majeure Events in their totality, after giving effect
to the proceeds received from any applicable business
interruption insurance contemplated in section 18.01(a),
adversely affect Achieved Room Revenue to such an extent
so as to cause the Hotel to fail to achieve the Performance
Test.
(d) In addition to any right arising out of section 20.02 and
20.05(a), Owner shall have the right to terminate this
Agreement if:
(i) Operator is no longer generally recognized in the
hotel industry as one of the three leading operators
and managers of five-star luxury hotels or resorts (as
the term "five-star" is understood in the hotel
industry on the date of this Agreement) in the United
States; or
(ii) the number of World Class Luxury Hotels operated
and managed by Operator and its Affiliates under the
name "Four Seasons" and "Regent" (A) in the United
States, Canada, Mexico and the Caribbean,
considered as a whole, is less than 10, or
(B) worldwide, is less than 20.
Any Dispute as to whether or not Owner has the right to
terminate this Agreement in accordance with this section 20.05 shall, if
requested by either Owner or Operator, be resolved by arbitration in
accordance with the provisions of section 21.03(b).
20.06 Operator's Right to Terminate
In addition to any right arising out of section 20.02,
Operator 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 Operator in its obligations under this
Agreement or the other Hotel Agreements or due to the occurrence of
any one or more Force Majeure Events. Operator's right to terminate this
Agreement in accordance with this section 20.06 shall be exercised by
written notice by Operator given to Owner within 30 days after the
relevant date mentioned above. If the Opening Date does not occur on
or before December 31, 2000 for any reason beyond the control of
Owner, including (without limitation) the Hotel or any portion thereof
being damaged or destroyed, and Operator does not terminate this
Agreement in accordance with this section 20.06, Operator shall, for the
period beginning on January 1, 2001 and ending on the Opening Date,
nevertheless be entitled to receive, from any insurance proceeds paid in
respect of the business interruption insurance contemplated in section
18.01(a), an equitable apportionment of such insurance proceeds based
on (i) the Advance Corporate Sales and Marketing Charge, (ii) the
Corporate Sales and Marketing Charge and the Corporate Advertising
Charge, calculated on the basis of budgeted Gross Receipts as set in the
Annual Plan then applicable, (iii) the Basic Fee, calculated on the basis
of budgeted Gross Receipts and budgeted Gross Operating Profit as set
out in the Annual Plan then applicable, (iv) the Incentive Fee, calculated
on the basis of budgeted Adjusted Net Cash Flow as set out in the
Annual Plan then applicable, and (v) the Centralized Reservation Service
Charge. Any Dispute as to whether or not Operator has the right to
terminate this Agreement in accordance with this section 20.06 shall, if
requested by either Owner or Operator, be resolved by arbitration in
accordance with the provisions of section 21.03(b).
20.07 Cross-Termination
If the Hotel License 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 Agreement, and Owner,
Parent and Operator shall have no future obligations arising out of this
Agreement, save and except as otherwise expressly provided for in this
Agreement.
20.08 Accounting on Termination
If this Agreement is terminated, Operator shall be entitled
(in addition to any rights or remedies available to it at law or in equity)
to all sums, charges and fees which it is entitled to receive under this
Agreement payable up to and including the date of termination, together
with costs and expenses, if any, reimbursable to it pursuant to section
11.04 or for which it may be responsible arising out of anything done
within the scope of its responsibilities under this Agreement to the date
of termination. The amount of all of such sums, charges, fees and costs
and expenses shall be ascertained for the period ending on the date of
such termination and shall be paid to Operator on the later of the date on
which such sums, charges, fees and costs and expenses are ascertained
and the date which is 20 days after the date of such termination.
20.09 Owner to Receive All Books and Records Upon
Termination
Upon termination of this Agreement, the Accounts and all
other information concerning the operation of the Hotel (whether
contained in hard copy or computerized or other electronic form), but
specifically excluding any Proprietary Materials and except as specifically
contemplated in the Hotel License Agreement, shall be turned over to
Owner forthwith so as to ensure the orderly continuance of the operation
of the Hotel, but the Accounts relating to the operation of the Hotel
during the Term shall thereafter be available to Operator at all reasonable
times for inspection, audit, examination and transcription for (i) in the
case of any Tax related enquiries, for a period of 7 years from the date
of such termination, and (ii) otherwise, for a period of five years from the
date of such termination.
20.10 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 any of Owner, Parent or Operator against either or both
of the others 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 21.02 shall no longer apply to any of
Owner, Parent or Operator after termination of this Agreement and any
of Owner, Parent or Operator shall be entitled to commence legal
proceedings seeking any other 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; provided that such legal proceedings shall not involve
issues which have previously been submitted to and settled by arbitration
in accordance with this Agreement unless such legal proceedings involve
the enforcement of an arbitration decision or award made in respect of
such issues.
ARTICLE XXI
APPROVALS, DISPUTE RESOLUTION AND ARBITRATION
21.01 Approvals
Except as otherwise expressly 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, however, 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 Annual Plan 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 21.01(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 Operator 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 21.01(b)(iv)(C),
representatives of Owner and Operator shall convene
to consider the specific issues in dispute and resolve
them to the mutual satisfaction of the parties and if
unable to resolve the specific issues in dispute, the
same shall be resolved in accordance with the
procedures provided in section 21.03.
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.
21.02 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 negotiate in
good faith 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 21.02(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. The expenses of the experts (or such single
expert) shall be borne equally;
(c) third, if the parties are still unable to resolve the Dispute
within such 60 day period, the parties shall resolve the
Dispute in accordance with the procedures set forth in
section 21.03; and
(d) fourth, 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.
21.03 Legal Proceedings and Arbitration
(a) Except as otherwise expressly provided in this Agreement,
any Dispute arising out of or relating to this Agreement
shall not be resolved by arbitration, but may be resolved by
legal proceedings.
(b) Where it is otherwise expressly provided in this Agreement
that a Dispute arising out of or relating to this Agreement
shall be resolved by arbitration, the arbitration shall be
conducted as follows:
(i) each party shall be entitled to serve upon the other
party written notice of its desire to settle the matter
by arbitration, which notice shall specify the name of
the individual such party wishes to appoint as the
sole arbitrator of the matter, which individual shall be
experienced in the hotel and gaming industries.
Within 10 days after receipt by the other party of
such notice, such other party shall notify the first
party of its approval or its disapproval of the
proposed arbitrator. If no such notice is given by the
other party within such 10 day period, such other
party shall be deemed to have approved of the
proposed arbitrator. If such other party disapproves
of the proposed arbitrator, either party may apply to
the courts of the State of Nevada located in Las
Vegas, Nevada for the appointment of a single
arbitrator who shall be experienced in the hotel and
gaming industries ;
(ii) the decision of the arbitrator shall be made within 30
days of the close of the hearing in respect of the
arbitration (or such longer time as may be agreed to,
if necessary, which agreement shall not be
unreasonably withheld) and the decision of the
arbitrator when reduced to writing and signed by the
arbitrator shall be final, conclusive and binding upon
the parties hereto, and may be enforced in any court
having jurisdiction;
(iii) the arbitration shall be held in Las Vegas, Nevada
and, except for those procedures specifically set
forth in this section 21.03(b), shall be conducted in
accordance with the Commercial Arbitration Rules of
the American Arbitration Association as in effect on
the date hereof; and
(iv) the arbitrator shall determine the proportion of the
expenses of such arbitration which each party shall
bear; provided, however, that each party shall be
responsible for its own legal fees.
Notwithstanding anything contained in this section 21.03(b), (i) any of
Owner, Parent or Operator shall be entitled to commence legal
proceedings (in which case the provisions of sections 24.09 and 24.10
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 in accordance with the procedures set forth
in this section 21.03, (ii) commence legal proceedings (in which case the
provisions of section 24.09 and 24.10 governing jurisdiction and service
of process shall govern) involving the enforcement of an arbitration
decision or award or judgment arising out of this Agreement, or (iii) join
any arbitration or legal proceeding arising out of this Agreement with any
other arbitration or legal proceeding arising out of either this Agreement
or any of the other Hotel Agreements.
ARTICLE XXII
OPERATOR'S LIABILITY
22.01 Standard of Care
Operator shall not, in the performance of its obligations
under this Agreement, be liable to Owner or to any other Person for any
act or omission (whether negligent, tortious or otherwise) of Operator or
any of its Affiliates or any of their respective directors, officers,
employees, consultants, agents or representatives, except only to the
extent such liabilities, obligations, claims, costs and expenses arise out
of or are caused by the wilful misconduct, gross negligence or bad faith
of Operator or any of its Affiliates or any of their respective directors,
officers, employees, consultants, agents or representatives.
22.02 Indemnities
(a) Each of Owner and Parent hereby indemnifies and holds
Operator and its Affiliates and any of their respective
directors, officers, employees, consultants, agents and
representatives (collectively, the "Indemnified Parties")
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 action or
omission or course of action on the part of an Indemnified
Party in the performance of its obligations under this
Agreement; provided that this indemnity shall not apply to
any liabilities, fines, suits, claims, obligations, damages,
penalties, demands, actions, costs and expenses resulting
from the wilful misconduct, gross negligence or bad faith of
the Indemnified Party.
(b) Operator hereby indemnifies and holds Owner and Parent
and any of their respective directors, officers, employees,
consultants, 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 the wilful
misconduct, gross negligence or bad faith of Operator or
any of its directors, officers, employees, consultants,
agents or representatives.
ARTICLE XXIII
ACKNOWLEDGMENTS
23.01 Owner's and Parent's Acknowledgments
Owner and Parent acknowledge that:
(a) in entering into this Agreement and except as provided in
section 23.02, neither Owner nor Parent has relied on any
statement, study, representation or warranty of Operator,
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 profit or loss or statements
as to future success of the Hotel which may have been
prepared by or on behalf of Operator, any of its Affiliates or
any Person actually or apparently engaged by them or on
their behalf, and Owner and Parent understand that no
guarantee is made or implied by Operator or by any of its
Affiliates with respect thereto;
(b) Operator is relying on the representations, warranties and
covenants of Owner and Parent set out in the Hotel
Agreements in connection with Operator entering into and
fulfilling its obligations under this Agreement; and
(c) Operator would suffer substantial damages, would be
irreparably harmed and would not have an adequate remedy
at law in the event that this Agreement is wrongfully
terminated by Owner. Accordingly, Parent and Owner
agree that Operator shall be entitled to seek injunctive relief
to prevent a wrongful termination of this Agreement by
Owner in addition to any other remedy which Operator may
be entitled to at law or in equity or under this Agreement.
Owner further agrees to indemnify and hold Operator and
its Affiliates and any of their respective officers, directors,
employees or agents harmless from and against any loss of
any kind or nature arising out of a wrongful termination of
this Agreement by Owner.
23.02 Operator's Acknowledgments
(a) Operator acknowledges that Owner is relying on the
representations, warranties and covenants of Operator as
set out in the Hotel Agreements in connection with Owner
entering into and fulfilling its obligations under this
Agreement.
(b) Owner would suffer substantial damages, would be
irreparably harmed and would not have an adequate remedy
at law in the event that this Agreement is wrongfully
terminated by Operator. Accordingly, Operator agrees that
Owner and Parent shall be entitled to seek injunctive relief
to prevent a wrongful termination of this Agreement by
Operator in addition to any other remedy which Owner and
Parent may be entitled to at law or in equity under this
Agreement. Operator further agrees to indemnify and hold
Owner and Parent and any of their respective officers,
directors, employees or agents harmless from and against
any loss of any kind or nature arising out of a wrongful
termination of this Agreement by Operator.
ARTICLE XXIV
GENERAL PROVISIONS
24.01 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.
24.02 Modification and Changes
This Agreement cannot be changed or modified except by
another agreement in writing signed by all the parties or by their
respective duly authorized agents and consented to by all the parties to
the other Hotel Agreements.
24.03 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.
If no such amendment has been agreed upon within 60 days after the
initial request by any party to negotiate such amendment, such Dispute
shall, if requested by Owner or Operator, be resolved by arbitration in
accordance with the provisions of section 21.03(b).
24.04 Counterparts
This Agreement may be executed simultaneously in two
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.
24.05 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 breach then existing or subsequent breach thereof.
24.06 Enurement
This Agreement shall enure to the benefit of and be binding
upon each of the parties and their respective successors and permitted
assigns.
24.07 Parent Covenant
Parent hereby unconditionally guarantees the performance
by Owner of all of its obligations under this Agreement and the other
Hotel Agreements and undertakes to perform all acts and make all
payments required of Owner pursuant to this Agreement and the other
Hotel Agreements if Owner should fail to do so. Parent hereby waives
any defences that it might otherwise be entitled to assert at law or at
equity in respect of this covenant that might arise by virtue of any
change of name or status of Owner, or any passage of time or waiver of
rights as against Owner given by Operator.
24.08 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.
24.09 Jurisdiction
The parties 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
defence 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 24.09(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.
24.10 Designation of Agent for Service of Process
(a) Operator 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
Operator agrees and consents that any such service of
process as specified above shall be taken and be deemed to
be valid personal service upon Operator 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 Operator waives all claims of error
by reason of any such service. Notwithstanding the
foregoing, Operator may, by notice to Owner and Parent,
change its designation of any agent for service of process.
Without in any way limiting the validity of such service of
process, Owner and Parent shall promptly mail a copy of
such process to Operator at its address set forth in section
24.11.
(b) Each of Owner and Parent irrevocably designates its
General Counsel, at 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxxx, Xxxxxx, X.X.X. 00000 as its Nevada agent to
accept and acknowledge on its behalf service of any and all
process in any such suit, action or proceedings brought in
the State of Nevada, and each of Owner and Parent agrees
and consents that any such service of process as specified
above shall be taken and deemed to be valid personal
service upon Owner, or Parent, as the case may be, 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 requirement of such
service in the State of Nevada, and each of Owner and
Parent waives all claims of error by reason of any such
service. Notwithstanding the foregoing, each of Owner and
Parent may, by notice to Operator change its designation of
any agent for service of process. Without in any way
limiting the validity of such service of process, Operator
shall promptly mail a copy of such process to Owner and
Parent at their respective addresses set forth in section
24.11.
24.11 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 Operator, to: Four Seasons Hotels Limited
0000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attn: General Counsel
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attn: Xxxxx Xx Xxxxx
Facsimile No.: (000) 000-0000
If to Owner, to: Mandalay Corp.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx
X.X.X. 00000
Attn: President
Facsimile No.: (000) 000-0000
If to Parent, to: Circus Circus Enterprises, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx
X.X.X. 00000
Attn: General Counsel
Facsimile No.: (000) 000-0000
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 providing a Notice in
the manner set forth in this section 24.11.
24.12 Radius Restriction
Neither Operator nor any of its Affiliates shall operate and
manage a five-star luxury hotel or resort (as that term is understood in
the hotel industry on the date of this Agreement) within a 50 mile radius
of the Project; provided that this section 24.12 shall not extend, and
shall not be construed to extend, to any hotel or resort operating under
the name "Regent" within a fifty mile radius of the Project so long as
Operator or any of its Affiliates do not operate or manage any such
hotels or resorts.
24.13 Time of Essence
Time shall be of the essence of each and every term and
obligation of this Agreement.
24.14 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.
24.15 Access to Fitness and Spa Facility
Each of Owner and Parent covenants to ensure that all
guests and patrons of the Hotel shall have unrestricted access to, and
the use of, the Fitness and Spa Facility at any time during the Term so
as to maximize patronage of the Hotel, such use and access to be (a) on
terms and conditions no less favourable than those applicable to the
guests and patrons of any of the other components of the Project, and
(b) at a cost no less favourable than the cost charged to the guests and
patrons of any of the other components the Project. Nothing contained
in this section 24.15 shall prevent or otherwise restrict Owner from
permanently closing the Fitness and Spa Facility at any time; provided
that so long as the guests and patrons of any of the other components
of the Project are entitled to access to, and the use of, the Fitness and
Spa Facility, each of Owner and Parent covenants to ensure that the
guests and patrons of the Hotel shall be afforded rights to access to, and
the use of, the Fitness and Spa Facility as contemplated by the
provisions of this section 24.15.
24.16 Solicitation of Employees of the Hotel
Neither Operator nor any of its Affiliates shall solicit the
employment of any employee of the Hotel after the termination of this
Agreement other than the Senior Hotel Personnel.
24.17 Access to Operating Policies and Procedures
Operator agrees to provide Owner and its representative at
all reasonable times throughout the Term access to the operating policies
and procedures of Operator applicable to the Hotel for examination by
Owner and its representatives; provided that all requests for such access
shall be made to Operator and such access shall be subject to such
restrictions as are necessary so as not to interfere with the normal
operations of Operator.
IN WITNESS WHEREOF the parties have duly executed this
Agreement the day and year first above written.
FOUR SEASONS HOTELS LIMITED
By: XXXXXXXX XXXXXX
By: XXXXXXX XXXXX
MANDALAY CORP.
By: XXXXX XXXXXXXXX
By:
CIRCUS CIRCUS ENTERPRISES,
INC.
By: XXXXX XXXXXXXXX
By:
SCHEDULE "A"
DEFINITIONS
(a) "Accounts" has the meaning set out in section 12.01.
(b) "Achieved Room Revenue" means, in respect of any hotel
for any Fiscal Year, the product obtained by multiplying the
Average Daily Occupancy Rate for such hotel for such
Fiscal Year by the Average Daily Room Rate for such hotel
for such Fiscal Year.
(c) "Advance Corporate Sales and Marketing Charge" has the
meaning set out in section 9.01(a)(i)(A).
(d) "Adjusted Net Cash Flow" means, in respect of any Fiscal
Year, Gross Receipts for such Fiscal Year less the aggregate
of the following, without duplication, (i) Operating Expenses
for such Fiscal Year, (ii) expenditures from the Capital
Reserve for such Fiscal Year, (iii) the Owner's Return for
such Fiscal Year.
(e) "Affiliate" means, with respect to any Person, any other
Person controlling, controlled by or under common control
with such first Person.
(f) "Allocated Maintenance Charges" means, in respect of any
Fiscal Year, the costs and expenses incurred by Owner in
connection with the general maintenance of the Project
Equipment and Systems for such Fiscal Year which are
allocated to the Hotel in a manner to be agreed upon by
Owner and Operator as part of the approval of the Annual
Plan.
(g) "Allocated Utility Charges" means, in respect of any Fiscal
Year, the utility charges incurred in respect of the Project
Equipment and Systems for such Fiscal Year which are
allocated to the Hotel in a manner to be agreed upon by
Owner and Operator as part of the approval of the Annual
Plan.
(h) "Annual Plan" has the meaning set out in section 6.01(a).
(i) "Applicable Law" means all laws, statutes, regulations,
codes, by-laws, ordinances, treaties, orders, judgments,
decrees, directives, rules, guidelines, orders, policies and
other requirements of any Governmental Authority having
jurisdiction, whether or not having the force of law.
(j) "Average Daily Occupancy Rate" means, in respect of any
hotel for any Fiscal Year, the quotient obtained by dividing
the Rooms Occupied for such hotel for such Fiscal Year by
the Rooms Available for such hotel for such Fiscal Year.
(k) "Average Daily Room Rate" means, in respect of any hotel
for any Fiscal Year, the quotient obtained by dividing the
Net Rooms Revenue for such hotel for such Fiscal Year by
the Rooms Occupied for such hotel for such Fiscal Year.
(l) "Basic Fee" has the meaning set out in section 11.01.
(m) "business day" means any day of the year on which banks
are not required or authorized to close in Xxxxxxx, Xxxxxxx,
Xxxxxx, New York, New York, United States of America
and Las Vegas, Nevada, United States of America.
(n) "Comparable Hotel" means a hotel whether existing on the
date hereof or developed during the Term (i) located in Las
Vegas, Nevada, and (ii) having at least 350 guest rooms.
(o) "Canadian Dollars" or "C $" means the lawful currency of
Canada.
(p) "Capital Refurbishing Programs" has the meaning set out in
section 5.06(b).
(q) "Capital Reserve" has the meaning set out in
section 6.04(b).
(r) "Centralized Purchasing Charge" has the meaning set out
in section 9.04.
(s) "Centralized Reservation Service Charge" has the meaning
set out in section 9.02.
(t) "Consumer Price Index" means the consumer price index
for All Urban Consumers - Los Angeles - Anaheim -
Riverside (1982 - 84 = 100) published by the Bureau of
Labor Statistics of the United States Department of Labor
or, if that consumer price index is no longer published, the
index published by the former publisher of that consumer
price index in substitution for that consumer price index or,
in the absence of any such substituted index, any
replacement index designated by Operator, acting
reasonably. If a substitution or replacement of the
Consumer Price Index is required, Operator will make the
necessary conversions. If the base year for the Consumer
Price Index (or any substituted or replacement index of the
Consumer Price Index) is changed, Operator will make the
necessary conversions.
(u) "control" means direct or indirect (i) ownership of a
majority of voting shares or other interests in a Person, or
(ii) in the absence of such majority ownership, the effective
control over the decision-making process of a Person.
(v) "Corporate Advertising Charge" has the meaning set out in
section 9.01(a)(ii)(B).
(w) "Corporate Sales and Marketing Charge" has the meaning
set out in section 9.01(a)(i)(B).
(x) "Deemed Comparable Hotel Charges" means, in respect of
any Comparable Hotel, all amounts deemed to be charged
to guests of such Comparable Hotel for complimentary
rooms, food, beverage and other sales and services
determined on the same basis as determined for the Hotel.
(y) "Deemed Complimentary Hotel Charges" means all amounts
deemed to be charged to guests of the Hotel designated by
Owner or Operator for complimentary rooms, food,
beverage and other sales and services in a manner to be
agreed to by Owner and Operator as part of the approval of
the Annual Plan; provided that Deemed Complimentary
Hotel Charges shall not include any amounts in respect of
the use of complimentary rooms, food, beverage or other
sales and services as contemplated in section 13.03.
(z) "Deemed Complimentary Hotel Expenses" means all costs
and expenses deemed to be incurred by the Hotel in
connection with providing complimentary rooms, food,
beverage and other sales and services to guests of the
Hotel designated by Owner or Operator in a manner agreed
to by Owner and Operator as part of the approval of the
Annual Plan.
(aa) "Dispute" has the meaning set out in section 21.02.
(bb) "Environmental Law" means all Applicable Laws concerning
discharges to air, surface or subsurface soil, water or
groundwater and concerning the refining, generating,
handling, storing, treating, transferring, releasing,
producing, processing, transporting or disposing of any
Waste Materials.
(cc) "Fees and Charges" means, collectively, the Basic Fee, the
Incentive Fee, the Refurbishing Fee, the Advance Corporate
Sales and Marketing Charge, the Corporate Sales and
Marketing Charge, the Corporate Advertising Charge, the
Centralized Reservation Service Charge, the Centralized
Purchasing Charge and the Service Charge Deficiency.
(dd) "Fiscal Year" means the calendar year for all purposes,
except that the first Fiscal Year shall be the period
commencing on the Opening Date and ending on
December 31 of the same year.
(ee) "Fitness and Spa Facility" means the applicable portion of
the Land and the fitness and spa facility constructed
thereon, which shall include a large pool area, to be
constructed on such portion of the Land.
(ff) "Force Majeure Event" means any act of God, war, riot,
labour unrest, shortage of critical supplies, damage or
destruction to the Hotel or any other similar cause beyond
the control of Operator or Owner, as the case may be.
(gg) "Furniture, Fixtures and Equipment" means all furniture,
furnishings, fixtures and equipment required for the
operation of a World Class Luxury Hotel, including (without
limitation) lobby furniture, carpeting, draperies, paintings,
bedspreads, television sets, office furniture and equipment
such as safes, cash registers and accounting, computer,
duplicating and communication equipment, telephone
equipment, guest room furniture, specialized hotel
equipment such as equipment required for the operation of
kitchens, laundries, the front desk, dry cleaning facilities,
pool and fitness club facilities, bars and cocktail lounges
and decorative lighting, material handling equipment and
cleaning and engineering equipment and all other fixtures,
equipment, apparatus and personal property needed for
such purposes. Furniture, Fixtures and Equipment shall
exclude, however, (i) Hotel systems and facilities (including,
without limitation, safety, heating, lighting, plumbing,
sanitation, air conditioning, ventilation, laundry and dry
cleaning and kitchen systems and facilities, elevators and
escalators), and (ii) Operating Equipment and Supplies.
(hh) "Generally Accepted Accounting Principles" means those
accounting principles applicable to the hotel industry which
are recognized as being generally accepted in the United
States of America from time to time as set forth in the
publications of the American Institute of Certified Public
Accountants.
(ii) "GOP Margin" means, in respect of any Fiscal Year, the
ratio of the total amount of Gross Operating Profit for such
Fiscal Year to the total amount of Gross Receipts for such
Fiscal Year, expressed as a percentage.
(jj) "GOP Shortfall" means an amount computed in accordance
with the following formula:
A x [ B x [ (C - D) + (E - F) ] ],
where: (i) A is the average GOP Margin for the third and
fourth Fiscal Years of the Term (disregarding the initial
Fiscal Year of less than 12 calendar months); (ii) B is the
aggregate number of Rooms Available in respect of the
Hotel for the third and fourth Fiscal Years (disregarding the
initial Fiscal Year of less than 12 calendar months); (iii) C
and E is the Achieved Room Revenue of the third ranking
Comparable Hotel for the third and fourth Fiscal Years,
respectively (disregarding the initial Fiscal Year of less than
12 calendar months) ranked in terms of Achieved Room
Revenue; and (iv) D and F is the Achieved Room Revenue
of the Hotel for the third and fourth Fiscal Years,
respectively (disregarding the initial Fiscal Year of less than
12 calendar months).
(kk) "Governmental Authority" means any government, whether
federal, provincial, state, county, municipal, local or other,
any ministry, department, agency, whether administrative
or regulatory, or other body relating thereto and any board
of fire underwriters or any other body which may exercise
similar functions.
(ll) "Gross Operating Profit" means, in respect of any Fiscal
Year, Gross Receipts for such Fiscal Year less the aggregate
of the following, without duplication, (i) Operating Expenses
for such Fiscal Year (other than real and personal property
Taxes, insurance premiums, Fees and Charges (other than
the Corporate Advertising Charge, the Corporate Sales and
Marketing Charge and the Centralized Reservation Service
Charge), and (ii) actual bad debts and an allowance for
doubtful accounts in such Fiscal Year; provided, however,
that any recovered bad debts and accounts receivable taken
into account in the calculation of allowances for doubtful
accounts (but only to the extent previously so provided)
shall be included in Gross Receipts in the Fiscal Year in
which they are recovered.
(mm) "Gross Receipts" means all receipts, revenues, income
(including, without limitation, service charges) and proceeds
of sales of every kind earned directly or indirectly from the
operation of the Hotel, the private fitness club and pool
area of the Hotel and rentals of all kinds received from
tenants, sub-tenants, licensees and occupants of
commercial and retail space located in the Hotel and off-site
food and beverage sales provided by the Hotel calculated
on an accrual basis (whether in cash or on credit), including
(without limitation) the proceeds of insurance received by
Owner or Operator with respect to or in lieu of use and
occupancy or business interruption insurance, security and
other deposits not refunded, any amount recovered in any
legal action or proceedings or settlement thereof (less all
costs and expenses incurred in recovering such amount)
which arose out of the operation of the Hotel, fees paid by
members of the private fitness club of the Hotel (including,
without limitation, fees relating to initiation, annual
renewals and transfer of memberships), receipts
representing accounts receivable treated as actual bad
debts or taken into account in the calculation of allowances
for doubtful accounts in the calculation of Gross Operating
Profit in any prior accounting period pursuant to
section 1.01(al), telephone and parking charges to guests
and patrons and Deemed Complimentary Hotel Charges.
Gross Receipts shall exclude, however, (i) gratuities
collected by Operator on behalf of Persons rendering
services to guests and patrons of the Hotel to the extent
such gratuities are paid over to such Persons, (ii) Taxes
collectible as a direct tax from guests or patrons of the
Hotel or from tenants, sub-tenants, licensees or occupants
of commercial or retail space located in the Hotel or with
respect to the business conducted in the Hotel to the extent
such Taxes are paid over to taxing authorities,
(iii) condemnation or expropriation awards, insurance
proceeds (other than use and occupancy or business
interruption insurance) and similar extraordinary capital
receipts (other than the portion of such awards or receipts
representing compensation for loss of Gross Receipts),
(iv) recoveries in legal actions for tortious conduct (other
than the portion of such awards or receipts representing
compensation for loss of Gross Receipts) or awards for
punitive damages, and (v) receipts from vending and coin
operated machines to the extent such receipts are paid over
to Persons owning or providing such machines.
(nn) "Hotel" means the applicable portion of the Land and the
World Class Luxury Hotel to be constructed by Owner on
such portion of the Land as part of the Project as provided
for in the Hotel Pre-Opening and Technical Services
Agreement, which shall include 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, spa and pool area, together with a pool bar
and grille, and all other facilities, all as contemplated by the
Hotel Design Brief.
(oo) "Hotel Agreements" means, collectively, this Agreement,
the Hotel Pre-Opening Services Agreement and the Hotel
License Agreement.
(pp) "Hotel Bank Accounts" has the meaning set out in
section 7.03.
(qq) "Hotel Design Brief" has the meaning set out in the Hotel
Pre-Opening Services Agreement.
(rr) "Hotel License Agreement" has the meaning set out in
Recital F.
(ss) "Hotel Pre-Opening Services Agreement" has the meaning
set out in Recital E.
(tt) "Incentive Fee" has the meaning set out in section 11.02.
(uu) "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 Operator, the right, title
and interest of Operator in and to (A) the business of
Operator of operating and managing the Hotel, and (B) the
Hotel Agreements.
(vv) "Interest Rate" means the annual rate of interest equal to
the lesser of (i) the variable rate then currently charged by
Citibank, N.A. (New York) to its customers of varying
degrees of creditworthiness for United States Dollar
commercial loans made by it in the United States plus four
percent per annum, or (ii) the maximum legal rate permitted
by Applicable Law.
(ww) "Land" has the meaning set out in Recital B.
(xx) "Las Vegas, Nevada" means the Las Vegas metropolitan
area as shown outlined in red on the map attached hereto
as Schedule "E".
(yy) "Net Rooms Revenue" means, in respect of any hotel for
any Fiscal Year, Gross Receipts, including, without
limitation, Deemed Complimentary Hotel Charges in respect
of the Rooms Occupied for such hotel for such Fiscal Year;
provided that when calculating the Net Rooms Revenue for
any Comparable Hotel for any Fiscal Year, Deemed
Comparable Hotel Charges for such Comparable Hotel for
such Fiscal Year shall be included in Gross Receipts.
(zz) "Opening Date" means the date on which the Hotel is first
opened to the public for guest room occupancy as set out
in section 4.01(a).
(aaa) "Operating Equipment and Supplies" means all chinaware,
glassware, linens, silverware, tools, kitchen utensils,
uniforms, engineering and housekeeping tools and utensils,
food and beverage items, fuel, soap, light bulbs, mechanical
stores, cleaning supplies and materials, matches, stationery,
paper supplies, laundry supplies, food service preparation
utensils, housekeeping supplies, accounting supplies and
other immediately consumable items used in the operation
of a World Class Luxury Hotel.
(bbb) "Operating Expenses" means all operating expenses of the
Hotel determined in accordance with Generally Accepted
Accounting Principles applicable to the hotel industry and
with the Uniform System of Accounts, including (without
limitation) (i) real property Taxes, provided that any
assessments or re-assessments are directly allocable to the
Hotel and are amortized over the longest amortization
period permitted by Applicable Law, and personal property
Taxes, (ii) insurance premiums, (iii) employee remuneration,
bonuses, profit sharing, retirement and severance costs,
health insurance, labour union dues and funding and other
similar benefits, (iv) the aggregate of the Fees and Charges
(other than the Incentive Fee and the Advance Corporate
Sales and Marketing Charge), (v) the cost of any audit, (vi)
Deemed Complimentary Hotel Expenses, (vii) Allocated
Maintenance Charges, and (viii) Allocated Utility Charges.
Operating Expenses shall exclude, however, (vi)
depreciation, (vii) interest on funds borrowed by Owner
(whether from partners of Owner or otherwise),
(viii) expenditures for repairs caused by reason of
construction, design or structural defects in the Hotel,
(ix) capital expenditures (including, without limitation, any
expenditures from the Capital Reserve), (x) losses that fall
within the deductible amount on any insurance policies,
(xi) amortization and other non-cash charges, (xii) payments
on any ground lease, (xiii) payments on capital leases or
instalment sales contracts for Furniture, Fixtures and
Equipment or Hotel building equipment and systems,
(xiv) payments of the collected gratuities, Taxes and
receipts described in sections 1.01(am)(i), (ii) and (v),
(xv) discounts and allowances extended to guests and
patrons of the Hotel (excluding discounts and allowances
relating to Deemed Complimentary Hotel Charges),
(xvi) expenses (such as Taxes and expenses for utilities) to
the extent reimbursable by tenants, subtenants, licensees
and occupants of commercial and retail space located in the
Hotel, (xvii) any Service Charge Excess paid to Owner,
(xviii) payments (such as cash advances or payments to an
outside cleaner) to the extent reimbursable by guests and
patrons of the Hotel, and (xix) Owner's Pre-Opening
Advisory Fee.
(ccc) "Owner's Pre-Opening Advisory Fee" means the fee
payable to Owner in the amount of $700,000 for pre-opening
advisory services provided by Owner to the Hotel, as such
amount shall be reduced by the payments made to Owner
in accordance with section 11.06(e).
(ddd) "Owner's Priority Payment" means, in respect of any Fiscal
Year, an amount equal to the Basic Fee payable to Operator
for such Fiscal Year.
(eee) "Owner's Return" means, in respect of any Fiscal Year, an
amount equal to 8% of Total Hotel Costs, less the Owner's
Priority Payment payable to Owner for such Fiscal Year.
(fff) "Performance Test" means, in respect of any Fiscal Year,
the ability of the Hotel to achieve a level of Achieved Room
Revenue during such Fiscal Year sufficient to cause the
Hotel to be ranked as one of the top three Comparable
Hotels for such Fiscal Year ranked in terms of Achieved
Room Revenue.
(ggg) "Person" means any individual, partnership, corporation,
Governmental Authority, trust, trustee, unincorporated
organization and the heirs, executors, administrators or
other legal representatives of any individual.
(hhh) "Pre-Opening Plan and Budget" has the meaning set out in
the Hotel Pre-Opening Services Agreement.
(iii) "Project" has the meaning set out in Recital C.
(jjj) "Project Equipment and Systems" means the equipment
and systems of the Project shared by the Hotel and any of
the other components of the Project.
(kkk) "Proposed Annual Plan" has the meaning set out in section
6.01(a).
(lll) "Proprietary Materials" has the meaning set out in the Hotel
License Agreement.
(mmm) "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. Any Dispute as to whether or not a Person is
a Qualified Person shall, if requested by either Owner or
Operator, be resolved by arbitration in accordance with
the provisions of section 21.03(b).
(nnn) "Refurbishing Fee" has the meaning set out in
section 11.03.
(ooo) "Related Person" means, with respect to any Person, (i) an
Affiliate of such first Person, (ii) any Person connected by
blood relationship, marriage or adoption to such first
Person, (iii) any director, officer or employee of such first
Person, or (iv) any Affiliate of any Person described in this
section 1.01(bo).
(ppp) "Rooms Available" means, in respect of any hotel for any
Fiscal Year, the aggregate number of guest rooms available
for occupancy during such Fiscal Year in such hotel.
(qqq) "Rooms Occupied" means, in respect of any hotel for any
Fiscal Year, the aggregate number of rooms occupied
during such Fiscal Year by guests of such hotel, including,
without limitation, guests in respect of which Deemed
Complimentary Hotel Charges or Deemed Comparable Hotel
Charges are applicable.
(rrr) "Scheduled Opening Date" has the meaning set out in
section 4.01(b).
(sss) "Senior Hotel Personnel" means the Hotel's General
Manager, Controller, Executive Assistant Manager, Director
of Marketing, Director of Human Resources, Rooms Division
Manager, Food and Beverage Director and Chief Engineer.
(ttt) "Service Charge Deficiency" has the meaning set out in
section 9.03.
(uuu) "Service Charge Excess" has the meaning set out in
section 9.03.
(vvv) "Taxes" means all taxes imposed by any Governmental
Authority, including (without limitation) income, profits, real
property, personal property, goods and services, gross
receipts or occupancy, sales, use, transfer, purchase,
franchise, stamp, ad valorem, value added, capital stock or
surplus, occupation, excise, payroll, unemployment,
disability, employees' income withholding, social security or
withholding taxes.
(www) "Term" shall mean the initial term provided for in
section 8.01, any subsequent extension term provided
for in section 8.02(a) and any extension of the Term
contemplated in section 8.02(c).
(xxx) "Termination Test Effective Date" means at any time
following the earlier of: (i) the Termination Test Period
immediately following the Fiscal Year in which the Hotel
achieves the Performance Test for the first time, and (ii) the
sixth full Fiscal Year (disregarding the initial Fiscal Year of
less than 12 calendar months) after the Opening Date.
(yyy) "Termination Test Period" has the meaning set out in
section 20.05(a).
(zzz) "Total Hotel Costs" means, without duplication, the total
costs incurred by Owner in connection with (i) the
acquisition of the portion of the Land allocated to the Hotel
in a manner to be agreed upon by Owner and Operator,
(ii) the development and construction of (A) the Hotel, and
(B) the portion of the Project Equipment and Systems
allocated to the Hotel in a manner to be agreed upon by
Owner and Operator, (iii) the payment of the pre-opening
costs and expenses relating to the Hotel, and (iv) the
interest charges relating to the construction financing for
the Hotel. Total Hotel Costs shall exclude, however, the
principal, interest, financing charges, fees, costs and
expenses relating to the permanent financing for the Hotel.
Total Hotel Costs shall be calculated as at the Opening Date
in a manner to be agreed upon by Owner and Operator.
(aaaa) "Trademarks" has the meaning set out in the Hotel
License Agreement.
(bbbb) "Uniform System of Accounts" means the current
edition of the Uniform System of Accounts for Hotels
(being the Eighth Revised Edition on the date of this
Agreement) of the Hotel Association of New York City,
Inc., as adopted by the American Hotel Association of
the United States and Canada.
(cccc) "United States Dollar Equivalent" means, in respect of
any payment in any currency (other than United States
Dollars) and any business day, an amount equal to the
amount of United States Dollars that can be purchased with
the amount of such payment in such currency based on the
United States Dollar Exchange Rate.
(dddd) "United States Dollar Exchange Rate" means, in respect
of any business day, the rate of exchange for the
conversion of any currency to United States Dollars as
determined by using the official closing selling rate for
such currency as quoted by Citibank, N.A. (New York)
on such business day.
(eeee) "U.S. Dollars" or $" means the lawful currency of the
United States.
(ffff) "Waste Materials" means any materials, substances and
wastes which are or become regulated or classified as
hazardous or toxic under any Applicable Law.
(gggg) "Working Capital Reserve" means, in respect of any
Fiscal Year, an amount required for the uninterrupted and
efficient operation of the Hotel designated in the Annual
Plan then applicable.
(hhhh) "World Class Luxury Hotel" means a world class luxury
hotel as understood in the hotel industry having the
development, construction, operating, service and
maintenance standards at least equal to other hotels or
resorts which may at any time be managed by Operator
or any of its Affiliates under the name "Four Seasons"
worldwide; provided that for purposes of this
Agreement, the physical structure of the Hotel at the
standard of its original construction shall be deemed to
be that of a World Class Luxury Hotel.
SCHEDULE "B"
DESCRIPTION OF LAND
LEGAL DESCRIPTION PROJECT "Y" NORTH PARCEL (HACIENDA AVE
TO DIABLO DRIVE)
A PORTION OF THE SOURTHEAST QUARTER (SE 1/4) XXXXXXX 00,
XXXXXXXX 00 XXXXX, XXXXX 00 EAST, M.D.B.& X. XXXXX COUNTY
NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF THE NORTHEAST
QUARTER (NE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) SECTION
29 (E 1/4 CORNER SECTION 29) THENCE NORTH 89 DEGREES 45'06"
WEST ALONG THE NORTHERLY LINE OF THE SOUTHEAST QUARTER
(SE 1/4) OF SAID SECTION 29 A DISTANCE OF 150.01 FEET TO A
POINT ON THE WESTERLY RIGHT OF WAY LINE OF LAS VEGAS BLVD.
SOUTH, SAID POINT ALSO BEING THE POINT OF BEGINNING. THENCE
CONTINUING NORTH 89 DEGREES 45'06" WEST ALONG THE
NORTHERLY LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF SAID
SECTION 29 A DISTANCE OF 2052.37 FEET TO A POINT ON THE
EASTERLY RIGHT-OF-WAY LINE OF INTERSTATE 15; THENCE SOUTH
00 DEGREES 09'44" WEST ALONG THE EAST RIGHT OF WAY LINE OF
INTERSTATE 15 1362.30 FEET; THENCE SOUTH 89 DEGREES 18'49"
EAST ALONG THE SOUTHERLY LINE OF THE NORTH HALF (N 1/2) OF
THE SOUTHEAST QUARTER (SE 1/4) SECTION 29 A DISTANCE OF
2064.28 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE
OF LAS VEGAS BLVD. SOUTH. THENCE NORTH 00 DEGREES 19'48"
WEST ALONG SAID WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS
BLVD. SOUTH 1378.15 FEET TO THE POINT OF BEGINNING.
THIS PARCEL CONTAINS 64.74 ACRES, MORE OR LESS.
SCHEDULE "C"
INSURANCE COVERAGE
1. Insurance which shall comply with all applicable Workers'
Compensation & Occupational Disease Laws and which shall
cover all employees of Owner engaged in operations which fall
within the scope of this Agreement.
2. Employers' Liability insurance with a limit of not less than
$1,000,000 per occurrence.
3. Comprehensive General Liability insurance, to a minimum limit of
$1,000,000 inclusive limit per occurrence for Bodily Injury, and/or
Personal Injury and/or Property Damage combined. Such policies
shall not be subject to a general aggregate, and shall include:
(i) Cross-Liability and/or Severability of Interests
provisions;
(ii) Products and/or Completed Operations Liability (subject
to aggregate if applicable);
(iii) Blanket Contractual Liability;
(iv) Owners and Contractors Protective Liability;
(v) Bodily Injury arising out of incidental professional
liability and incidental medical malpractice insurance;
(vi) Liability arising out of the service of alcoholic
beverages;
(vii) Liability arising out of those hazards known as the
"X.C.U." hazards;
(viii) Advertising Injury Liability;
(ix) Worldwide jurisdiction;
(x) U.S. and Canadian domiciled companies;
4. Non-owned Automobile Liability to a minimum limit of $1,000,000
any one loss, bodily injury and/or property damage liability
combined.
5. Legal liability for bodily injury and property damage arising out of
the operations and/or storage of customers' automobiles to a
minimum limit of $1,000,000 combined per occurrence, including
legal liability for damage to customers' automobiles, for a
minimum amount of $100,000 per occurrence.
6. If any vehicles be owned and/or leased by or for the Hotel,
Automobile Insurance for Third Party Liability to a minimum
combined single limit of $1,000,000 Collision and Comprehensive
coverages.
7. Innkeepers Legal Liability insurance with policy limit(s) at least
sufficient to insure the liability imposed by statute, for the
safekeeping of property of guests, and including persons
occupying accommodations under lease agreements.
8. Umbrella Liability in excess of the liability coverages set forth in
sections 2, 3, 4, 5, 6 and 7, with limits not less than
$249,000,000 per occurrence or in the aggregate. Such
insurance shall also be extended to insure:
(i) Non-owned Aircraft and Non-owned Watercraft
Liability.
9. If aircraft and/or watercraft shall be owned and/or operated by or
for the Hotel, then liability insurance shall be arranged for each to
a minimum limit of $1,000,000 and section 8 shall also apply in
excess of such insurance.
Such aircraft and/or watercraft shall also be insured for physical
damage loss (if owned), or legal liability for physical damage (if
rented or leased).
10. Employee Dishonesty insurance to a minimum limit of $3,000,000
per occurrence.
11. Broad Form Money and Securities insurance, including counterfeit
paper currencies coverage, with minimum limits of $500,000.
12. All Risks Property of Every Description (including accounts
receivable and valuable papers insurance) (including to the extent
reasonably available, flood and earthquake) insurance with any co-
insurance clause deleted, providing:
(i) full replacement cost and consequential loss coverage
on the building and structures, furniture, fixtures,
equipment and supplies. Such coverage shall be for the
full replacement cost of the property insured;
(ii) combined business interruption (profits form) and extra
expense coverage including continuing charges,
expenses and payroll plus a 30-month period of
indemnity including an amount sufficient to pay the
Operator equal to what Operator might reasonably be
expected to receive in the form of fees and charges if
the Hotel had earned the amounts described in the
Annual Plan.
13. Comprehensive Boiler and Machinery insurance on a repair and
replacement basis. All objects shall be covered on a blanket basis
to a minimum limit of $50,000,000. Coverage shall include use
and occupancy (profits form) and extra expense.
14. Hotel Safe Deposit Box Legal Liability insurance on property
deposited by guests with limits sufficient to cover loss of property
valued in excess of statutory limits but accepted for deposit.
15. All risks Bailee's Customer insurance including burglary and theft
with limits sufficient to cover the exposure to loss from operation
of laundry, cleaning, tailoring and check room facilities with limits
sufficient to cover the exposure to loss.
SCHEDULE "D"
OPERATING POLICIES AND PROCEDURES
Not Included.
SCHEDULE "E"
MAP OF LAS VEGAS METROPOLITAN AREA
Not Included.
