EXECUTION COPY
DEVELOPMENT SERVICES AGREEMENT dated as of September 29, 1995, between
TRADING COVE ASSOCIATES, a Connecticut general partnership ("TCA"), and SUN
INTERNATIONAL MANAGEMENT LIMITED, a Bahamian corporation ("SIML"). Capitalized
terms used herein but not defined shall have the meaning set forth in the
Amended and Restated Partnership Agreement of TCA dated as of September 21,
1994, as amended (the "TCA Partnership Agreement").
WHEREAS, TCA, through its Original Partners, secured a conditional
opportunity to develop, construct, and manage a casino in Montville,
Connecticut (the "Project") for the Mohegan Tribe of Indians of Connecticut
(the "Tribe");
WHEREAS, the location of the Project is near the Foxwoods Resort and
Casino ("Foxwoods") which has approximately 3,800 slot machines and 200 table
games, has been operating for nearly three years and is the largest gaming
facility in the United States;
WHEREAS, the Tribe was only willing to retain TCA as manager if TCA was
capable of developing and managing the construction of a large world class
facility capable of competing with Foxwoods;
WHEREAS, TCA, being incapable of developing and managing the construction
of such a facility, desired to enter into a sub-contract with SIML pursuant to
which SIML will develop and manage the construction of the Project;
WHEREAS, SIML has developed numerous world class facilities capable of
competing with Foxwoods and was willing to develop and manage the construction
of the Project as a sub-contractor to TCA pursuant to the terms hereto; and
WHEREAS, the TCA Partnership Agreement provides for TCA to enter into this
Development Services Agreement.
NOW THEREFORE, the parties hereto agree as follows:
1. Design Services. SIML, as sub-contractor to TCA, shall provide the
following design services in connection with the Project:
(a) SIML shall provide conceptual plans for the Project consistent with
a world class casino property. The theme of the conceptual plans shall reflect
the culture, history and art of the Tribe;
(b) SIML shall investigate and recommend various design consultants to
be retained in connection with the Project (the "Design Consultants"),
including without limitations, a primary architect, an MEP consultant, a
structural engineer consultant, a site and landscape architect, an interior
design consultant, a lighting architect, a food and beverage consultant and
a design architect.
(c) SIML shall manage the Design Consultants through the schematic design
phase, the design development phase and the construction document phase, and,
with the assistance of the Design Consultants, SIML shall provide a preliminary
evaluation of the schedule and construction budget for the Project and shall
monitor such schedule and budget as the Project develops.
2. Construction Services. SIML, as sub-contractor to TCA, shall
provide the following construction services in connection with the Project:
(a) SIML shall assist in the selection of a general contractor for the
Project and the negotiation of a GMP contract; and
(b) SIML shall provide comprehensive construction management services
for the Project, including administration of the construction documents and
on site supervision of the construction of the Project.
3. Local Services. SIML agrees that it will sub-contract with one or
more of the Partners of TCA, or one or more of their affiliates (the "Local
Subcontractors") to provide local construction management services in
connection with the Project.
4. Fees and Payment Terms. In consideration of the services provided
hereunder, TCA shall pay to SIML a fee (the "Development Services Fee") equal
to $8,280,000, constituting 3% of the total development costs of the Project
(which development costs shall include all so-called hard and soft costs with
respect to the construction of the Project, except land acquisition costs) plus
an additional $25,000 for any out-of-pocket costs and expenses it might incur.
SIML agrees that it shall pay the Local Subcontractors in the aggregate 20.83%
of the Development Services Fee plus an additional $25,000 for expense
reimbursement, as and when received, payable rateably.
5. Indemnification. SIML its affiliates, parents, subsidiaries,
controlling shareholders and officers and directors (collectively, the
"Indemnified Parties") shall not be liable to TCA by reason of any act
performed for or on behalf of TCA hereunder, or in the furtherance of TCA
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. TCA 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 be
made or imposed upon them by reason of any act performed for or on behalf of
TCA or in furtherance of TCA'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. Notwithstanding anything
contained herein to the contrary, the parties agree that if the assets of TCA
are insufficient to satisfy the obligations set forth in this section, the
partners of TCA shall bear the indemnification liability set forth herein in
proportion to their respective percentage interest in TCA and, in no event,
shall the Indemnified Partners have the right to assert claims pursuant to this
section against partners of TCA in excess of each such partner's percentage
interest in TCA.
6. Assignments. Except as otherwise contemplated by Section 3 hereof,
neither party may assign its rights and/or obligations under this Agreement,
except: (i) to an affiliate of such party, or (ii) with the prior written
consent of all parties hereto. Any assignment shall be subject to and made
in accordance with applicable gaming, securities or other laws.
7. 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.
7. 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 TCA: Xxx Xxxxxx
c/o LMW Investments, Inc.
000 Xxxxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Telecopy No. (000) 000-0000
With Copy to: Honigman, Miller, Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy No. (000) 000-0000
If to SIML: Xxxxxx ("Xxxxx") Xxxxxxx
Sun International
Executive Offices
Atlantis, Coral Towers
Paradise Island, The Bahamas
Telecopy No. (000) 000-0000
8. Amendments. This Agreement may be amended or modified only by
written instrument executed by all of the parties hereto.
9. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York.
10. 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.
11. 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.
12. 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.
13. Successors and Assigns. Subject to the restrictions on
transferability contained in Paragraph 6 hereof, 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.
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:
SUN INTERNATIONAL MANAGEMENT
LIMITED
By: /s/Xxxxxxx Xxxxx
Name:
Title:
