Dated 30th August 2008 HARD ROCK CAFE INTERNATIONAL (STP), INC. AND MELCO CROWN (COD) DEVELOPMENTS LIMITED AND MELCO CROWN COD (HR) HOTEL LIMITED NOVATION AGREEMENT in respect of Hotel Memorabilia Lease
Exhibit 4.27
EXECUTION COPY
Dated 30th August 2008
HARD ROCK CAFE INTERNATIONAL (STP), INC.
AND
MELCO CROWN (COD) DEVELOPMENTS LIMITED
AND
MELCO CROWN COD (HR) HOTEL LIMITED
NOVATION AGREEMENT
in respect of Hotel Memorabilia Lease
in respect of Hotel Memorabilia Lease
THIS
NOVATION AGREEMENT is made on
30th day of August 2008
BETWEEN
| (1) | Hard Rock Cafe International (STP), INC. a Florida corporation (“the Lessor”); |
| (2) | Melco Crown (COD) Developments Limited (formerly known as Melco Hotel and Resorts (Macau)
Limited) a company incorporated under the laws of Macau whose registered office is at Avenida
Xian Xing Hai, ▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ floor, A-C e K-N, Macau (the “Old Lessee”);
and |
| (3) | Melco Crown COD (HR) Hotel Limited a company incorporated under the laws of Macau whose
registered office is at Avenida Xian Xing Hai, ▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ floor, A-C e
K-N, Macau (the “New Lessee”). |
WHEREAS
| (A) | By a memorabilia lease dated 22nd January 2007 (the “Lease”) the Lessor leased to
the Old Lessee the right to use certain articles of memorabilia for display and exhibition at
a specified licensed location. |
| (B) | The Old Lessee wishes to be released and discharged from the Lease and the New Lessee wishes
to take up the rights and benefits of the Lease and to assume the obligations and liabilities
of the Old Lessee under the Lease whether arising on or before or after the date hereof. |
| (C) | The Lessor has agreed to release and discharge the Old Lessee upon the terms that, inter
alia, the New Lessee undertakes to perform the Lease in lieu of the Old Lessee and agrees to
be bound by the terms and conditions of the Lease. |
NOW IT IS HEREBY AGREED
In consideration of HK$100 paid by each of the Lessor and the Old Lessee to the New Lessee, receipt
and sufficiency of which the New Lessee hereby acknowledges:
| 1. | NOVATION |
| 1.1 | The New Lessee hereby undertakes to observe, perform, discharge and be bound by the terms,
conditions and covenants of the Lease (including all the liabilities and obligations of the
Old Lessee arising under the Lease, whether actual, contingent or otherwise, and whether
arising on or before or after the date hereof) in every way as if the New Lessee were, and had
originally been, a party to the Lease in place of the Old Lessee. |
| 1.2 | The Lessor hereby releases and discharges the Old Lessee from the performance of the Lease
and from all obligations, liabilities, claims and demands howsoever arising under or in
relation to the Lease and accepts, the obligations and liabilities of the New Lessee under the
Lease in place of the liabilities and obligations of the Old Lessee and the Lessor agrees to
observe, perform, discharge and be bound by the terms, conditions and covenants of the
Lease in every way as if the New Lessee were, and had originally been, a party to the Lease
in place of the Old Lessee. |
| 1.3 | The Lessor covenants not to bring any suit, action or proceeding or make any demand or claim
of any type against the Old Lessee relating to or in connection with the Lease or the
relationship created thereby. Such release and discharge in Clause 1.2 being without
prejudice to the liabilities and obligation of New Lessee to the Lessor under the Lease as
novated by this Novation Agreement. Nothing in this provision shall affect the Lessor’s, Old
Lessee’s or New Lessee’s right to make claims or bring an action for breach of this Novation
Agreement. |
| 1.4 | The Old Lessee hereby releases and discharges the Lessor from the performance of the Lease
and from all obligations, liabilities, claims and demands howsoever arising under or in
relation to the Lease. The Old Lessee covenants not to bring any suit, action or proceeding or
make any demand or claim of any type against the Lessor relating to or in connection with the
Lease or the relationship created thereby. Such release and discharge being without prejudice
to the liabilities and obligation of the Lessor to the New Lessee under the Lease as novated
by this Novation Agreement. Nothing in this provision shall affect the Lessor’s, Old Lessee’s
or New Lessee’s right to make claims or bring an action for breach of this Novation Agreement. |
| 1.5 | The Old Lessee hereby assigns and transfers absolutely to the New Lessee all its rights,
title and interests in the Lease including all correspondence, memoranda, drawings, samples,
calculations, plans, specifications, models and other relevant documents and information
pertaining to the services and work the Old Lessee provided under the Lease. |
| 2. | DEEMED PAYMENTS |
The New Lessee agrees with the Lessor that all previous payments made to the Lessor by the
Old Lessee under the Lease, and all previous performance by the Old Licensee under the
Lease, shall for the purpose of this Novation Agreement be deemed to be payments and /or, as
the case may be, performance made by the New Lessee.
| 3. | FURTHER ASSURANCE |
Each party to this Novation Agreement shall at all times hereinafter and at their own cost
and expense make, do and execute or cause to be made, done or executed all such acts,
instruments, assurances and writings whatsoever as may be reasonable to perform or give
effect to this Novation Agreement.
| 4. | COSTS AND EXPENSES |
The New Lessee shall bear all the costs and expenses incurred by the Lessor arising out of
or in connection with this Novation Agreement and all related documentation prepared in
consequence of this Novation Agreement.
| 5. | ENTIRE AGREEMENT; AND FUTURE TRANSFERS |
This Agreement is supplemental to the Lease. The terms and conditions of this Novation
Agreement represent the entire agreement between the parties relating to the novation of
the Lease and except as specifically supplemented by this Novation Agreement all the terms
and conditions of the Lease remain in full force and effect. Except as specifically provided
herein, no provision of this Novation Agreement, nor any action by Lessor prior to the date
hereof, shall be construed as a waiver by Lessor of any right under the Lease or any other
agreement or applicable law, including, without limitation, any right with respect to any
default under the Lease. New Lessee understands and agrees that it shall not rely on this
Novation Agreement as indicative of the position Lessor will take in future proposed
transfers or assignments by New Lessee or its owners.
| 6. | GOVERNING LAW AND JURISDICTION |
| 6.1 | This Novation Agreement shall be governed by and construed in accordance with the laws of the
Hong Kong Special Administrative Region. |
| 6.2 | In the event of any dispute and/or disagreement arising in connection with this Agreement,
the dispute resolution clauses as provided for in the Lease shall apply. |
| 7. | CONFIDENTIALITY |
Each of Old Lessee and New Lessee agrees to keep confidential and not disclose the existence
or terms of this Novation Agreement or any agreement related hereto without the prior written
consent of Lessor save that any such party shall be entitled to make such disclosure:
| (a) | in connection with any proceedings arising out of or in connection with this
Novation Agreement to the extent that either party may consider necessary to protect
its interests; |
| (b) | if required to do so by an order of a court of competent jurisdiction whether
in pursuance of any procedure for discovering documents or otherwise or pursuant to any
law; |
| (c) | to its auditors or legal advisors or other professional advisers; |
| (d) | if required to do so by any applicable law or in order for such party to comply
with its obligations under this Novation Agreement; |
| (e) | to its financiers, their agent or legal advisers; or |
| (f) | to a governmental, banking, taxation, stock exchange, securities or regulatory
authority which has legal or other regulatory authority over the relevant party. |
IN WITNESS whereof the parties hereto have executed this Novation Agreement the day and year
first above written.
Signed by
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) | Authorised signatory /s/ ▇▇▇ ▇▇▇▇▇▇▇ Wolszcza | ||||
for and on behalf of
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) | Full name ▇▇▇ ▇▇▇▇▇▇▇ Wolszcza | ||||
Hard Rock Café International (STP), Inc.,
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acting by its
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authorised signatory:-
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in the presence of:
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/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Signature of Witness |
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: |
Signed by
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) | Authorised signatory /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
for and on behalf of Melco Crown (COD)
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) | Full name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
Developments Limited, acting by its
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authorised signatory:-
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in the presence of:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇
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Signature of Witness |
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▇▇▇▇▇▇ ▇▇▇▇
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Signed by
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) | Authorised signatory /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
for and on behalf of Melco Crown COD
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) | Full name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
(HR) Hotel Limited, acting by its
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authorised signatory:-
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in the presence of:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇
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Signature of Witness |
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Name: |