SUBDEVELOPMENT SERVICES AGREEMENT
This Agreement is made as of September 29, 1995 between Sun International
Management Limited, a British Virgin Island corporation ("SIML") and Xxxxxx
Construction, L.L.C., a Connecticut limited liability company ("Xxxxxx").
PRELIMINARY STATEMENT
The following is a recital of certain facts upon which this Agreement
is based:
As of September 29, 1995, Trading Cove Associates, a Connecticut general
partnership ("TCA") and SIML entered into a Development Services Agreement
(the "Development Services Agreement") pursuant to the terms of which TCA
engaged the services of SIML to perform certain services as subcontractor to
TCA with respect to the development of a casino in Montville, Connecticut for
the Mohegan Tribe of Indians of Connecticut. Capitalized terms used herein
not defined shall have the meanings set forth in the Development Services
Agreement.
SIML wishes to retain the services of Xxxxxx as a subcontractor to
assist SIML in meeting its obligations under the Development Services
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Local Construction Management Services. SIML hereby retains the
services of Xxxxxx as a subcontractor to provide local construction management
services in connection with the Project. Xxxxxx agrees to perform local
construction management services in accordance with the terms of the
Development Services Agreement.
2. Fees and Payment Terms. In consideration of the services to be
provided, SIML agrees to pay Xxxxxx 20.83% of the Development Services Fee,
which Development Services Fee is equal to $8,280,000, plus an additional
$25,000 for expense reimbursement (collectively, the "Xxxxxx Amount"), as
and when received by SIML from TCA in accordance with the terms of the
Development Services Agreement which shall be payable ratably.
3. Payment Direction. SIML hereby directs TCA to pay directly to Xxxxxx
the Xxxxxx Amount ratably out of the Development Services Fee at such time as
amounts are payable by TCA under the Development Services Agreement.
4. Indemnification. Xxxxxx and its affiliates, parents, subsidiaries and
controlling members (collectively, the "Indemnified Parties") shall not be
liable to SIML by reason of any act performed for or on behalf of SIML
hereunder, or in the furtherance of SIML business, or any omission to act,
except for acts or omissions that constitute a material breach of any
provision of this Agreement, gross negligence, fraud or bad faith. SIML
shall indemnify, defend and hold harmless the Indemnified Parties from any
claim, demand or liability, and from any loss, cost or expense, including
but not limited to, attorneys' fees and court costs, which may by made or
imposed upon them by reason of any act performed for or on behalf of SIML
or in furtherance of SIML's business, or any omission to act, except for
acts and omissions that constitute a material breach of any provision of this
Agreement, gross negligence, fraud or bad faith.
5. Authorization; Representations and Warranties. Each party represents
and warrants to the other that:
(a) The execution, delivery, and performance by it of this Agreement and
the transactions contemplated herein have been duly authorized by all necessary
action, and the individual(s) executing this Agreement on its behalf are duly
authorized to do so;
(b) It is duly organized and in good standing under the laws of the
jurisdiction of its formation; and
(c) The execution, delivery and performance of this Agreement does not
and shall not violate any existing agreement, bylaw, statute, rule,
regulation and/or ordinance applicable to such party or its execution,
delivery and/or performance of this Agreement.
6. Notices. All notices hereunder shall be deemed properly given upon
(i) receipt by the addressee by personal delivery or facsimile transmission,
(ii) two (2) business days after delivery by an overnight express delivery
service for the next business day delivery, or (iii) if mailed, upon the
first to occur of receipt or the expiration of five (5) business days after
deposit in United States Postal Service certified mail, postage prepaid,
addressed to the parties at the addresses appearing below. Such addresses
may be changed by notice given in the same manner.
If to Xxxxxx: Xxx Xxxxxx
c/o Wolman Construction, L.L.C.
000 Xxxxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Telecopy: 000-000-0000
With Copy to: Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
2290 First National Building
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: 000-000-0000
If to SIML: Xxxxxx ("Xxxxx") Xxxxxxx
c/o Sun International Management (UK) Ltd
Executive Offices, Coral Towers
Paradise Island, The Bahamas
Telecopy: 000-000-0000
7. Amendments. This Agreement may be amended or modified only by written
instrument executed by all of the parties hereto.
8. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York.
9. Severability. If any provision hereof shall be judicially determined
to be illegal, or if the application thereof to any party or in any
circumstance shall, to any extent, be judicially determined to be invalid or
unenforceable, the remainder of this Agreement, or the application of such
provision to parties or in circumstances other than those to which it has
been judicially determined to be invalid or unenforceable, shall not be
affected thereby, and each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
10. Counterparts. This Agreement may be executed by facsimile and in any
number of counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same Agreement.
11. Further Assurances. The parties will execute and deliver such further
instruments and undertake such further actions as may be required to carry out
the intent and purposes of this Agreement.
12. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on
September 10, 1997, to be effective on the day and year first above written.
SUN INTERNATIONAL MANAGEMENT
LIMITED, a British Virgin Island corporation
By: /s/Xxxxxxx Xxxxx
Its: __________________________
XXXXXX CONSTRUCTION, L.L.C., a
Connecticut limited liability company
By: /s/Xxx Xxxxxx
Its: __________________________
The undersigned acknowledges the payment direction contained in Paragraph 3
above and agrees to act in accordance with such direction.
TRADING COVE ASSOCIATES
By: Sun Cove, Ltd.
By:/s/Xxxxxx Xxxxxxx
Name:
Title:
By: Waterford Gaming, L.L.C.
By:/s/Xxx Xxxxxx
Name:
Title:
