LOCAL CONSTRUCTION SERVICES AGREEMENT
This LOCAL CONSTRUCTION SERVICES AGREEMENT ("Agreement") dated
as of February 9, 1998, 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:
The Mohegan Tribe of Indians of Connecticut, a federally
recognized Indian Tribe (the "Tribe") and its instrumentality, The
Mohegan Tribal Gaming Authority (the "Authority") has entered into
a certain Development Services Agreement dated February 7, 1998
(the "Development Services Agreement") with Trading Cove Associates
("TCA") pursuant to the terms of which the Tribe and the Authority
have granted to TCA the exclusive right and obligation to provide
development services in respect of the design, construction,
equipment and opening of the "Project", as that term is defined in
the Development Services Agreement.
Concurrently herewith, TCA is entering into an Agreement
Relating to Development Services with SIML (the "Agreement Relating
to Development Services") pursuant to which SIML will, as a
Subcontractor to TCA, perform certain of the duties and obligations
of the "Developer" under the Development Services Agreement. SIML
wishes to retain the services of Xxxxxx as a subcontractor to
assist SIML in meeting its subcontract obligations under the
Agreement Relating to Development Services.
NOW THEREFORE, the parties hereto agree as follows:
1. Services to be Provided. SIML hereby subcontracts Xxxxxx
and Xxxxxx hereby agrees to perform and to hold itself available to
provide local construction management services reasonably
subcontracted to Xxxxxx by SIML in order to facilitate the
fulfillment of the duties and obligations under the Agreement
Relating to Development Services.
2. Costs and Expenses. SIML agrees to cause TCA to
reimburse Xxxxxx for all reasonable costs and expenses incurred by
Xxxxxx and its affiliates as Subcontractors relating to the
development of the Project which costs and expenses will be paid as
requests for payment are submitted to TCA with such information as
may be reasonably requested by TCA to verify such payment requests.
3 Fee and Payment Terms. In consideration of the services
to be provided hereunder, SIML shall pay to Xxxxxx a fee (the
"Xxxxxx Fee") equal to 20.83% of the Development Services Fee which
SIML is to receive from TCA under the Agreement Relating to
Development Services. SIML agrees to pay Xxxxxx the Xxxxxx Fee
ratably as and when SIML receives its Development Services Fee from
TCA under the Agreement Relating to Development Services.
4. Payment Direction. SIML hereby directs TCA to pay
directly to Xxxxxx the Xxxxxx Fee ratably out of the Development
Services Fee at such time as all or any portion of the Development
Services Fee is payable by TCA to SIML under the Agreement Relating
to Development Services.
5. 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 be 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.
6. Third Party Beneficiary. This Agreement is exclusively
for the benefit of the parties hereto and it may not be enforced by
any party other than the parties to this Agreement and shall not
give rise to any liability to any third party other than the
authorized successors and assigns of the parties pursuant to
Section 7 hereof.
7. Assignments. 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.
8. 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.
9. 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 No. (000) 000-0000
With a copy to: Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
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
With a copy to: Xxxxxxx Xxxxx, Esq.
Sun International
Executive Offices
Atlantis, Coral Towers
Paradise Island, The Bahamas
Telecopy No. (000) 000-0000
10. Amendments. This Agreement may be amended or modified
only by written instrument executed by all of the parties hereto.
11. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
New York.
12. 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.
13. 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.
14. 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.
15. Successors and Assigns. Subject to the restrictions on
transferability contained in Paragraph 7 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 as of the day and year first written above.
SUN INTERNATIONAL MANAGEMENT LIMITED
By:______________________________
Name:
Title:
XXXXXX CONSTRUCTION, L.L.C.
By:_____________________________
Name:
Title:
ACKNOWLEDGEMENT AND AGREEMENT
The undersigned acknowledges the payment direction contained
in paragraph 4 above and agrees to act in accordance with such
direction.
TRADING COVE ASSOCIATES
By: SUN COVE LIMITED
By:___________________
Name:
Title:
By: WATERFORD GAMING, L.L.C.
By:______________________
Name:
Title:
