HOTEL MANAGEMENT AGREEMENT
between
CALEDON CASINO BID COMPANY (PTY) LTD
(Reg. No. 96/10708/07)
("the OWNER")
and
XXXXXX XXXX HOSPITALITY (PTY) LTD
(Reg. No. 80/00096/07)
("XXXXXX KING")
of the Graduate School of Business, Portswood Road, Waterfront, Cape Town
Fax No. 000-000000
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INTRODUCTION
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The Owner intends to conduct the business of a Hotel and Resort situated at
0 Xxxxxx Xxxxxx, Xxxxxxx.
The Owner recognises the need to have his hotel and resort professionally
managed and therefore wishes to employ XXXXXX XXXX as his agent to manage the
hotel and resort as set forth in this agreement.
XXXXXX KING is willing to assume such responsibilities.
NOW THEREFORE IT IS AGREED THAT:
1. INTERPRETATION
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1.1 The clause headings are for convenience, and shall be disregarded in
construing this Agreement.
1.2 Unless the context clearly indicates a contrary intention:
1.2.1 the singular shall include the plural and vice versa; and
1.2.2 any reference to any one gender shall include the other genders;
and
1.2.3 any reference to natural persons shall include partnerships and
bodies corporate and vice versa.
2. DEFINITIONS
-----------
In this Agreement, unless the context clearly indicates to the contrary,
the following words or expressions shall have the meanings and cognate
expressions will bear corresponding meanings:
2.1 The word "hotel" is used extensively in this agreement and always
includes all accommodation, spa activities, food and beverage
outlets,
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conference rooms and all other non-casino activities. The word "hotel"
excludes casino activities and any other activities that any third
party manages for a fee on behalf of the OWNER.
2.2 "Auditors" means the OWNER's auditors from time to time.
2.3 "Financial Year" means the financial year of the OWNER.
2.4 "Gross income" means all income derived directly or indirectly from the
operation of the accommodation, food & beverage outlets and parking,
unless any such activities are contracted to third parties, excluding:
2.3.1 VAT and any other taxes;
2.3.2 sale of furniture or equipment;
2.5 "Hotel expenses" means all expenditure incurred in the operation of the
Hotel and any off-sales including without limiting the generality
of the aforegoing:
2.4.1 the cost of all food, beverages and other consumables sold or
consumed, including items such as crockery and cutlery,
linen, cleaning materials and paper products;
2.4.2 salaries, including without limitation the salary of a General
Manger who may be an employee of XXXXXX XXXX but bona fide
employed in the operation of the Hotel, and wages (including
without limitation pension plans, medical insurance, life
insurance, travel accident insurance, employee benefits,
termination benefits and accruals therefor, costs of moving
Hotel personnel and bonuses) of Hotel personnel, and all
other expenses bona fide incurred in connection with the
personnel of the Hotel.
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2.4.3 the cost of all other goods and services utilised by the Hotel
in connection with its operation, including, heat and utilities,
office supplies and all services rendered by third parties.
2.4.4 the cost of repairs, maintenance and replacements of furniture
and equipment in the Hotel but excluding refurbishment;
2.4.5 the cost of normal repairs and maintenance to the Hotel
buildings;
2.4.6 insurance premiums in respect of all policies of insurance
covering the Hotel and its operations payable by the OWNER;
2.4.7 all licence fees, rates, taxes and other charges excluding
income tax, payable by or assessed against the OWNER in
respect of the operation of the Hotel;
2.4.8 legal costs and fees and audit fees for services relating to the
operation of the Hotel, the obligations imposed by this
Agreement and the conclusion and signing of this Agreement;
2.4.9 all costs and expenses of all advertising, (whether marketing,
group marketing or for the hotel only), business promotion
or personal training programmes for the Hotel;
2.4.10 all out-of-pocket expenses and disbursements of the Hotel that
have been reasonably, properly and specifically incurred by
the Hotel in the course of and directly related to the
operation of the Hotel;
2.4.11 the cost of and incidental to the provision of a centralised
reservations system payable by the Hotel;
2.4.12 XXXXXX KING's fees
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2.4.13 an allowance for uncollectable accounts receivable in an amount
accepted by the auditor of the Hotel.
2.5 "Net Operating Profit" means the gross income less Hotel expenses
for the financial year in question but excludes Value Added Tax,
depreciation and/or amortisation of the Hotel and its contents,
interest or finance charges on the OWNER'S indebtedness from
whatsoever cause, payments by the Owner under any lease or rental
agreement whether in respect of the Hotel building or any of its
contents.
3. APPOINTMENT
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The OWNER hereby appoints XXXXXX XXXX and XXXXXX XXXX accepts the
appointment, as exclusive Hotel Managers of the Hotel and Resort, on the
terms and conditions of this Agreement.
4. PERIOD
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4.1 The operating term of this Agreement is 10 years, despite the date of
execution hereof, shall be deemed to have commenced on the award of a
casino licence to Owner and the fulfillment of the conditions
precedent as outlined in clause 3. of the shareholders agreement
(concluded between Caledon Casino Bid Company (Pty) Ltd, Caledon
Overberg Investments (Pty) Ltd, Century Casinos Africa (Pty) Ltd,
Caledon Hotel Spa and Casino Resort (Pty) Ltd, Xxxxxx Xxxx Hospitality
(Pty) Ltd, Overberg Country Hotel and Spa (Pty) Ltd and Senator
Trust).
4.2 This Agreement shall be automatically renewed for further ten (10) year
periods ("the renewal period"), unless XXXXXX XXXX gives six months
notice of its intention to withdraw from the contract.
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4.3 The OWNER undertakes throughout the period of this Agreement as
provided for in clause 4.1and 4.2 hereof, to conduct the business of a
hotel at the address as detailed in the introduction hereto.
5. NAME OF HOTEL
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5.1 During the term of this Agreement the Hotel shall be at all times known
and designated as Caledon Casino Resort & Spa or such other name
as from time to time the parties mutually agree.
5.2 On termination of this Agreement for any reason whatsoever, the OWNER
undertakes irrevocably to discontinue the use or incorporation of
the name "XXXXXX KING" in any form whatsoever in the conduct
of the Hotel.
6. GENERAL DUTIES OF THE HOTEL MANAGER
----------------------------------------
The Hotel manager shall operate, direct, manage and supervise the Hotel and
the property on which it is situated and shall attend to all aspects of
Hotel management and to undertake to perform all the duties and discharge
all responsibilities regarding the operation of the Hotel in such a manner
as can reasonably be expected of qualified and competent Hotel managers
during the currency of this Agreement.
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7. SPECIFIC DUTIES OF THE OPERATOR
-----------------------------------
Without derogating from the generality of clause 6, XXXXXX XXXX shall;
7.1 Pre-opening:
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7.1.1 Prepare with the owner with a pre-opening budget including all
the pre-opening costs relating to the operation of the hotel;
7.1.2 Advise OWNER if requested regarding the design of the hotel;
7.1.3 Market and advertise the Hotel during the pre-opening stage;
7.1.4 Arrange pre-opening staff training in consultation with the
OWNER;
7.1.5 Prepare a marketing strategy and business plan with the OWNER.
7.2 Marketing:
---------
7.2.1 Arrange all phases of marketing regarding the Hotel and its
operation;
7.2.2 Market the Hotel generally as part of XXXXXX KING's
system/network;
7.2.3 Provide the owner with group marketing which will be budgeted in
the annual budget and paid for on a monthly basis.
7.3 Operating Policies:
-------------------
Provide Hotel management services in accordance with the standards of
Hotels of a comparable class and shall have control and discretion in
the operation, direction, supervision and management of the Hotel.
7.4 Legal:
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7.4.1 Apply for, obtain and maintain, in the name and at the expense
of the OWNER, all licenses and permits required of the OWNER or
XXXXXX XXXX in connection with the management and operation
of the Hotel and any related operations run for the benefit
of the OWNER by XXXXXX KING;
7.4.2 Comply with all applicable laws, regulations, ordinances and any
other requirements ("the laws") of any national, provincial or
local authority;
7.4.3 Comply with the reasonable requirements of any insurance company
covering any of the risks against which the Hotel is insured.;
7.4.4 Institute or defend, in its own name or in the name of the
OWNER, but at the expense of the OWNER, legal proceedings to
collect payment of debts, rent, to evict guests, cancel
bookings or leases for breach or default or any other
litigious issue affecting the Hotel;
7.4.5 Instruct attorneys in respect of any work necessary in terms of
this clause, such attorneys to be mutually approved by the OWNER
and XXXXXX XXXX.
7.5 Prices:
------
Establish, with the written approval of OWNER, prices and rate
schedules for guest rooms, conference rooms, commercial space, food,
beverage and other items making up the Hotel business.
Pricing for Hotel Rooms, Food & Beverage, Etc.
-----------------------------------------------------
The parties agree that the Annexure outlining pricing for hotel rooms,
food & beverage, etc., complimentary by the casino shall be an
integral part of this Agreement.
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7.6 Budget:
------
Four (4) months prior to the opening date and thereafter two (2) months
prior to the commencement of each financial year, XXXXXX KING will submit
at the request of the OWNER a budget for the forthcoming financial year (or
remaining part thereof) to the OWNER.
7.6.1 If the OWNER fails to object to the budget or any revision
thereof in writing within fourteen (14) days of receiving same
the OWNER shall be deemed to have approved. If the OWNER
disapproves of the budget, the OWNER and XXXXXX XXXX shall
enter into negotiations as soon as possible to determine a
mutually satisfactory budget. If agreement is not reached
one (1) month before commencement of the relevant financial
year (or part thereof), the disputed items in the budget
shall be referred to arbitration and the provisions of
clause 25, shall apply save that the arbitrator shall be the
Auditors, failing whom 25.5.2 shall apply. The OWNER
concedes that XXXXXX KING does not warrant or represent in
any way or in whole or in part that the gross revenues or
gross profit as budgeted will be met or exceeded or that
expenses will not be exceeded. In the event of sanction of
the budget or consent to revision thereof being unreasonably
withheld in any one instance, XXXXXX XXXX shall be entitled
to forthwith terminate this Agreement subject to the only
condition that three calendar months notice of such
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termination be forwarded to the OWNER in writing by XXXXXX KING;
7.6.2 Without limiting the requirements of the budget, it shall cover
the operation, promotion, marketing and advertising of the Hotel
and all gross revenue items and all Hotel expense items.
7.6.3 Any revision of the budget and any deviation from the budget
shall require the timeous prior written approval of the OWNER
which shall not be unreasonably withheld;
7.7 Personnel:
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7.7.1 Determine labour policies;
7.7.2 Hire, promote, terminate and supervise all staff performing
services in or about the Hotel, save for the general manager
only, who shall in consultation with the OWNER be employed
in the name of XXXXXX XXXX. All other staff shall be
employed in the name of the OWNER
7.7.3 Negotiate on the OWNER's behalf with any union lawfully entitled
to represent any employees, but shall not conclude any
collective bargaining agreements without the OWNER's
approval;
7.8 Concessionaries:
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7.8.1 Contract in the name of and for the benefit of the OWNER all
arrangements with concessionaries, licensees, tenants and rental
space of the property, the terms and provisions of such
arrangements to be subject to the prior written approval of
the OWNER.
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7.9 Suppliers:
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7.9.1 Negotiate and contract in the name of the OWNER with all
suppliers of services required in the ordinary and regular
course of the business of the Hotel including, without
limitation, for the supply of electricity, gas, telephone,
cleaning, vermin
extermination, elevator and boiler maintenance etc.;
7.9.2 Purchase and arrange for the purchase of all inventories,
provisions and supplies of operating equipment required in the
normal and regular course of carrying on the Hotel business.
XXXXXX KING shall pass on to OWNER any group discounts or
commissions obtained from any suppliers;
7.9.3 Not pledge the OWNER's credit, without the OWNER's prior consent
except for purchases made in the ordinary course of business in
the operation of the Hotel and within the scope of this
Agreement.
7.9.4 Not borrow, in the name of the OWNER, any money or execute any
promissory note or other encumbrance without the prior
consent of the OWNER.
7.10 Repairs:
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7.10.1 Make or install or cause to be made or installed in the name of
the OWNER all necessary or desirable repairs,
replacements, renewals, alterations, additions and
improvements in and to the Property, the Hotel building, the
equipment and furnishings, provided that these are included
in the budget or do not exceed Thirty Thousand Rand (R30
000,00) per item or R100 000 in the aggregate for any
financial year;
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7.10.2 Obtain the prior written consent of the OWNER before entering
into any contracts not included in the budget which exceeds the
amount stipulated, unless in emergency situations whereafter
the OWNER shall be notified as soon as practical.
7.11 Statements:
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7.11.1 Make available to the OWNER on or before the 25th day of every
calendar month a trading statement showing the results of the
operation of the Hotel for the immediate preceding month and
for the fiscal year to date.
7.11.2 Be available, through its executive, at reasonable times to
discuss with the OWNER the results shown in the said financial
statements and the operations of the Hotel generally.
7.11.3 Deliver a computation of the management fee together with the
trading statement.
7.11.4 Assist the OWNER'S auditors and provide to them all
documentation necessary to enable such auditors to produce,
after the end of each financial year, a balance sheet and
income statement including supporting schedules.
8. FEES
----
8.1 In consideration for the performance by XXXXXX XXXX in terms of this
Agreement, the OWNER shall pay to XXXXXX KING management fees as
follows:
8.1.1 A fixed amount of R35 000 (thirty five thousand) per month for
the pre-operations period (period from award of casino
license to opening date of casino), plus
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8.1.2 From opening date of casino on, a basic fee of 6.5 % of gross
income;
8.1.3 From opening date of casino on, an incentive fee of 15 % net
operating profit, but reduced to 10% for the first 12 months of
operation of this agreement.
8.2 Fee Payment
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8.2.1 The fees in 8.1.2 shall be paid upon presentation of a statement
of income for the month by XXXXXX XXXX to the OWNER. Any
adjustments will be made at the end of the financial year as
arranged in clause 8.2.2.
8.2.2 The fees in 8.1.3 shall be payable monthly within seven (7) days
after delivery by XXXXXX KING to the OWNER of the statements in
terms of 7.11.1 above, subject to a final adjustment at the
end of each the financial year. Any adjustment required in
terms of auditor's figures shall be made within thirty (30)
days after delivery of the audited financial statements to
the OWNER and paid within seven (7) days after such receipt
by the OWNER.
8.2.3 The fees in 8.1.3 do not take into account any losses or profits
carried forward from any prior financial year
8.3 Group Marketing Fees
--------------------
XXXXXX XXXX provide extensive marketing of the OWNER as part of the
XXXXXX KING group and a budget for that will be prepared and agreed on
between XXXXXX XXXX and the OWNER as part of the operating budget.
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9 RIGHT OF INSPECTION AND REVIEW
----------------------------------
The OWNER and its duly authorised agents shall have the right to enter
the Hotel at reasonable times for the purpose of examining or
inspecting the Hotel, its records, or operation and for any other
purpose which the OWNER shall deem necessary.
10 BOOKS AND RECORDS
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10.1 XXXXXX XXXX shall keep full, true and accurate books of account and
other records reflecting the results of the operation of the
Hotel.
10.2 The books of account shall be kept only at the Hotel, the offices of
XXXXXX KING or the Auditor and shall be available to the OWNER and his
representatives at all reasonable times and a back-up set provided at
the OWNER's office on the OWNER's request.
10.3 All such books and records pertaining to the Hotel, including without
limitation, books of account, guest records, invoice books, front
office records and bank statements shall be at all times the property
of the OWNER and shall not be moved from the Hotel or offices of
XXXXXX XXXX without the consent of the OWNER.
10.4 Upon termination of this Agreement all such books and records shall be
delivered to the OWNER who shall make them available at all reasonable
times to XXXXXX KING or his agents or employees for inspection,
examination or transcription for a period of three (3) years from the
date of such termination.
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11. BANK ACCOUNT
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11.1 To the extent that funds necessary for the operation of the hotel are
not generated by its operation the OWNER shall continue to provide the
working capital necessary for the efficient and uninterrupted
operation of the Hotel and shall furnish such funds at the request of
XXXXXX XXXX. In the event of the OWNER failing to supply such funds
within a period of seven (7) days from date of written request for
same XXXXXX KING shall be entitled unilaterally to terminate this
Agreement forthwith and/or claim damages.
11.2 All funds received by XXXXXX XXXX in the operation of the Hotel
including working capital received from the OWNER, shall be deposited
in the name of the Hotel in a bank approved by the OWNER. Such funds
shall not be mingled with the other funds of XXXXXX KING or the OWNER.
11.3 The said bank account shall be operated solely by XXXXXX XXXX. All
interest earned on such account shall be for the benefit of the OWNER.
Cheques or other documents of withdrawal shall be signed only by
representatives of XXXXXX KING.
11.4 On termination of this Agreement whether by effluxion of time or
otherwise, the amount in the said bank account shall be paid to the
OWNER subject to the condition that XXXXXX XXXX has received all
monies due to it in terms of this Agreement.
12 INSURANCE
---------
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12.1 The OWNER shall:
12.1.1 Be liable for all insurance required by the Hotel and the
operation thereof in order to cover and protect itself and
shall ensure that throughout the period of this agreement
its provisions for insurance cover shall include Public
Liability Insurance for an amount of not less than R5 000
000,00 (Five Million Rand).
12.1.2 Continue to adequately insure the Hotel and the operation
thereof throughout the period of this Agreement.
12.1.3 Upgrade and increase its insurance cover from time to time as
the need arises and as advised by its Insurance Brokers who
the OWNER undertakes to consult on a regular basis if
requested.
12.1.4 Furnish XXXXXX XXXX with written proof of all insurance
relating to the Hotel and its operation by way of paid
receipts and/or copies of all relevant policies should
XXXXXX KING require the same within seven (7) days of
receiving such requests.
12.1.5 The OWNER absolves XXXXXX XXXX from all responsibility as
regards insurance and/or claims or potential claims which
might arise therefrom as regards the operation of the Hotel
and the conduct of the hotel business.
12.2 XXXXXX KING shall:
12.2.1 Ensure compliance with any reasonable insurance policy in
operating and managing the Hotel;
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12.2.2 Consult the OWNER, if required, regarding the adequacy of risks
covered and amounts insured for;
12.2.3 Where practical make available to the OWNER the opportunity to
reduce insurance costs by participating with other properties
operated by XXXXXX XXXX in blanket insurance policies.
13. LICENSES AND GRADING
----------------------
13.1 The OWNER and XXXXXX KING shall not do or cause to be done or omit to
do any act which may jeopardise any liquor license, Hotel
grading or any other right, privilege and trading license
which the Hotel may enjoy.
14. REPLACEMENTS, SUBSTITUTIONS AND ADDITIONS TO FURNITURE AND EQUIPMENT
------------------------------------------------------------------------
XXXXXX XXXX shall be entitled to expend funds of the OWNER to maintain the
standards of the Hotel on the repair, replacement, substitution and
addition of furniture and equipment in the Hotel. XXXXXX KING shall for
this purpose create a separate reserve fund wherein 5 % (five per cent) of
turnover each year will be retained and deposited into such fund whether
improvements are brought about during that year or not (the "refurbishment
fund"). All proceeds from the sale of furniture and equipment no longer
needed for the operation of the Hotel shall be paid into such refurbishment
fund. XXXXXX XXXX'x entitlement to expend funds accordingly in terms of
this clause shall be limited to the amount of funds in the refurbishment
fund unless the OWNER otherwise specifically consents hereto in writing.
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15. REPAIRS, MAINTENANCE AND CAPITAL IMPROVEMENTS
-------------------------------------------------
15.1 XXXXXX KING shall expend such amounts in repairs and maintenance as
shall be required to keep the Hotel in good operating condition
(excluding structural repairs and changes and extraordinary repairs to
and replacement of equipment which forms part of the Hotel building).
In the event of any such repairs or maintenance being necessary
through any circumstances against the occurrence of which the OWNER
has obtained insurance or in guarantee from a supplier, builder or
manufacturer, the OWNER will enforce the insurance policy or guarantee
and XXXXXX XXXX shall assist in this regard as required
..
15.2 The OWNER may from time to time make such alterations, additions or
improvements in or to the Hotel as the OWNER and XXXXXX KING agree and
the cost thereof shall be borne by the OWNER and dealt with in a
manner as the Auditor of the OWNER shall decide. The OWNER
specifically undertakes to ensure that the Hotel is maintained at an
acceptable standard of refurbishment and repair.
15.3 If structural repairs, or changes to the Hotel, or extraordinary
repairs to, or replacement of any equipment forming part of the Hotel
shall be required at any time during the currency of this Agreement,
to maintain the Hotel or by reason of any requirement under any law,
ordinance or regulation now or hereafter in force, or by order of any
governmental or municipal authority or otherwise, or because the OWNER
and XXXXXX XXXX agree upon the desirability thereof, then in such
event all such repairs, replacements or changes shall be made by the
OWNER at his expense, and shall be made with as little hindrance to
the operation of the Hotel as possible.
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16. DAMAGE OR DESTRUCTION OF HOTEL
----------------------------------
16.1 In the event of the Hotel or any portion thereof being damaged or
destroyed, the OWNER shall have the choice, at his own cost and
expense and with due diligence, repair or replace the Hotel so that it
shall be substantially the same as prior to such damage or destruction
or shall pay to XXXXXX KING the greater of a sum equivalent to 5 %
(five per cent) of the Insurance monies received or the estimated
basic fee envisaged in clause 7.7.1 for the remainder of the contract.
This estimate shall be equal to the last year's basic fee (or pro-rata
part in thereof of less than 1 year) increased by 15 % per annum.
16.2 The OWNER undertakes to take out sufficient Insurance cover and to
maintain payment of all premiums due in terms thereof so as to ensure
that in the event of damage or destruction of the Hotel building he is
protected for consequential loss and/or loss of profits.
16.3 The OWNER absolves XXXXXX XXXX from all liability in regard to damage
he might suffer as a result of damage or destruction to the Hotel
building.
17. RIGHT OF OCCUPATION
---------------------
The OWNER warrants that he has and will have throughout the term of this
Agreement the right to occupy the Hotel whether as Owner, Lessee or
otherwise and the right to possess whether as Owner or under lease or
otherwise, all the furniture, equipment and contents of the Hotel.
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19. OWNER/XXXXXX KING CONSULTATION
--------------------------------
19.1 The parties hereto acknowledge that they will work closely together in
order to successfully complete the Project, to establish and maintain
a successful Hotel and to satisfactorily provide for, establish,
enforce and maintain the terms and conditions of this Agreement.
XXXXXX XXXX hereby undertakes to listen to and consider any input
and/or opinion of the OWNER as far as is reasonably possible and the
OWNER hereby undertakes not to dictate to XXXXXX KING on how XXXXXX
KING should fulfil its duties and execute its appointment under this
Agreement.
19.2 Wherever the approval of either the OWNER or XXXXXX XXXX is required
by the other, such approval shall be in writing and not unreasonably
withheld.
20. LAW OF THIS AGREEMENT
------------------------
The law of the Republic of South Africa shall apply in all respects to
this Agreement.
21. ASSIGNMENT
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This Agreement will be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns but will not
be assignable or delegable by any party without the prior written consent
of the other party; provided, however, that nothing in this Agreement is
intended to limit XXXXXX KING's ability to assign its rights and
responsibilities under this Agreement to any directly or indirectly
controlled Affiliate of XXXXXX XXXX, in which case OWNER needs to be
notified.
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22. PERFORMANCE OF MANAGEMENT DUTIES - NO PARTNERSHIP
-------------------------------------------------------
In the performance of its duties as Manager of the hotel XXXXXX KING shall
act solely as agent of the OWNER. Nothing herein shall constitute a
partnership or joint venture between the OWNER and XXXXXX XXXX. All debts
and liabilities to third parties incurred by XXXXXX KING in the course of
its operation and management of the Hotel shall be the debts and
liabilities of the OWNER and XXXXXX XXXX shall so inform third parties with
whom it deals on behalf o f the OWNER. Every person performing services in
terms of this agreement, including any agent or employee of XXXXXX KING or
any agent or employee of the OWNER hired or employed by XXXXXX XXXX, shall
act as agent or employee of the OWNER.
23. DOMICILIA & NOTICES
23.1 For all purposes arising from or in connection with this Agreement,
the parties do hereby respectively select and appoint as domicilia
citandi et executandi and addresses for notices in terms of this
Agreement the addresses reflected on the covering page.
23.2 Each party may change its domicilium or address for notice to a
physical address in the Republic of South Africa by not less than ten
(10) days prior written notice to the other of them to this effect.
23.3 Any notice addressed by any party to the other of them at their
domicilia hereby chosen shall:
23.3.1 If posted by prepaid registered post, be deemed to have been
received by the addressee on the seventh (7th) day following
the date of such posting; or
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23.3.2 If delivered by hand or telexed, be deemed to have been
received by the addressee on the date of such delivery or
telex, as the case may be; or
23.3.3 If transmitted by telefax be deemed to have been received on
date of transmission if transmitted before 13h00, failing
which it shall be deemed to have been received on the day
after transmission.
24 NON-WAIVER
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No addition to, variation, novation or consensual cancellation of this
agreement and no waiver of any right arising from this Agreement or the
termination or cancellation thereof shall affect the terms hereof or be of
any force unless the same is reduced to writing and signed by the parties.
No extension of time or waiver of any right shall operate as an estoppel
against any party from thereafter exercising its rights strictly in
accordance with the terms of this Agreement.
25. TERMINATION
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25.1 In the event of either of the parties to this Agreement ("the
defaulting party") committing a material breach of any of the terms of
this Agreement which is capable of being remedied and failing to
remedy such breach within a period of thirty (30) days (or to commence
remedying immediately and proceed with reasonable speed until
completion where more than thirty (30) days is necessary) after
receipt of a written notice from the other party ("the aggrieved
party") giving specific details of the said breach and calling upon
the defaulting party
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to remedy such breach, then the aggrieved party shall be entitled to
terminate this Agreement by written notice to the other, for the same
breach.
25.2 Either party may terminate this Agreement if either party is
liquidated provisionally or finally or either party makes application
for voluntary liquidation or enters into any agreement or compromise
with its creditors.
25.3 Upon termination XXXXXX KING shall:
25.3.1 be paid all outstanding fees due for services up to the
effective date of termination;
25.3.2 deliver to the OWNER (properly indexed and filed) all books,
records, budgets and any other documents or items that
may/should be in its possession and not previously delivered
to the OWNER which may be relevant to the Hotel;
25.3.3 remove its property from the Hotel; and
25.3.4 assign and transfer to the OWNER XXXXXX XXXX'x right,
title and interest in and to all liquor, restaurant and
other licenses and permits, if any, used in the operating of
the Hotel.
26. ARBITRATION
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Should any difference or dispute at any time arise between any of the
parties hereto, whether in regard to the meaning or effect of any term of
this Agreement, or the implementation of any party's obligations hereunder,
or any other matter arising therefrom or incidental thereto, then and in
that event,
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such differences or dispute shall, at the option of any of the parties
hereto, be submitted to arbitration in accordance with the following
provisions, viz:
26.1 The arbitration proceedings shall be conducted in accordance with the
Arbitration Laws of the Republic of South Africa.
26.2 The arbitration proceedings shall be held on an informal basis, it
being the intention that a decision should be reached as expeditiously
and as inexpensively as possible, subject only to the due observance
of the principles of justice.
26.3 Each party to the dispute shall be entitled to be represented at such
arbitration proceedings by its legal representatives and/or other
expert or specialist retained by it.
26.4 The Arbitrator shall permit each party to adduce such evidence and
argument as the Arbitrator may consider to be relevant to the matter
in dispute, and shall generally determine in his sole discretion all
matters relating to the conduct of the proceedings and the procedures
to be adopted in order to give effect to the intent expressed in 27.2
above.
26.5 The Arbitrator shall be a person to be nominated as follows:
26.5.1 If the matter in dispute is primarily a legal matter,
the Arbitrator shall be an Attorney or Advocate, of ten (10)
years standing as such, to be agreed upon between the
parties, and failing agreement, to be nominated by the
President for the time being of the Law Society of the Cape
of Good Hope.
26.5.2 If the matter in dispute is primarily an accounting matter, the
Arbitrator shall be a Chartered Accountant, of ten (10)
years standing as such, to be agreed upon between the
parties and
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failing agreement, to be nominated by the President for the
time being of the Cape Society of Chartered Accountants.
26.5.3 If the matter in dispute relates to any matter not being
primarily a legal and/or accounting issue, or if the parties
are unable to agree on the nature of the matter in dispute,
the Arbitrator shall be such other person having an
appropriate knowledge, as may be agreed upon between the
parties, and failing agreement, to be nominated by the
President for the time being of the Law Society of the Cape
of Good Hope.
26.6 The decision of the Arbitrator shall be final and binding upon both
parties and capable of being made an Order of Court on application by
either of them.
26.7 Nothing herein contained or implied, shall preclude either party from
applying to Court for a temporary interdict or other relief of an
urgent and temporary nature, pending the award of the Arbitrator
hereunder.
26.8 The costs of and incidental to any such arbitration proceedings shall
be in the discretion of the Arbitrator who shall be entitled to direct
that they shall be taxed as between "party and party" or as between
"attorney and client".
27 MISCELLANEOUS
-------------
27.1 Indemnification:
---------------
27.1.1 As XXXXXX KING is the agent for the OWNER neither XXXXXX XXXX
nor any of its servants, officers or employees shall be
liable to any other person in respect of any bone fide act
or omission in the performance of the duties of XXXXXX KING
in
25
terms of this contract and the OWNER hereby indemnifies and
holds harmless XXXXXX XXXX, its servants, officers and
employees against any claims in respect thereof.
27.2 This document constitutes the entire Agreement between the parties and
no amendment or cancellation thereof or addition thereto shall be of
any force or effect unless reduced to writing and signed by both
parties.
28 COSTS:
-----
The costs incidental to redrafting of this Agreement, stamp duty thereon
and the attendance by attorneys shall be borne by the Hotel and be regarded
as a Hotel operating expense.
THUS DONE AND SIGNED AT CAPETOWN ON THE 3 DAY OF DECEMBER 1999.
/s/Xxxx Xxxxxx /s/Xxxxx Xxxxxxxxxx
XXXXXX XXXX HOSPITALITY (PTY) LTD WITNESS
Duly authorized representative
Position:
Name: Xxxx Xxxxxx
THUS DONE AND SIGNED AT CAPETOWN ON THE 3 DAY OF DECEMBER 1999.
/s/Xxxx Xxxxxx /s/Xxxxx Xxxxxxxxxx
CALEDON CASINO BID COMPANY (PTY) LTD WITNESS
Duly authorized representative
Position: Director
Name: Xxxx Xxxxxx
26
