EXHIBIT 10.86
CASINO MANAGEMENT AGREEMENT
THIS CASINO MANAGEMENT AGREEMENT (the "Agreement"), is made and entered
into as of the 3 day of December 1999, by and between CALEDON CASINO BID COMPANY
(PTY) LIMITED, a South Africa corporation ("Owner") and CENTURY CASINOS AFRICA
(PTY) LTD., a South African corporation ("Manager").
WITNESSETH
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WHEREAS, Owner shall use its best efforts to obtain all necessary approvals
from the Gaming Board of the South African Province of the Western Cape and all
other relevant authorities to develop and operate a gaming/entertainment
facility (the "Casino") to be situated at a site located in Caledon, Overberg
region, within the Western Cape Province, as mutually agreed upon between Owner
and Manager (the "Site"), (the Casino and all property and fixtures thereon, the
buildings and improvements at the Site are collectively referred to herein as
the "Facility"); and
WHEREAS, Owner has secured/controls the Site and represents that the Site
is suitable for the development and operation of a Casino; and
WHEREAS, Owner is seeking experience and. expertise in the operation of the
gaming/entertainment business to be conducted at/on the Facility; and
WHEREAS, Manager has experience and expertise in the operation and
management of gaming facilities and in the gaming/entertainment business; and
WHEREAS, Owner desires to engage Manager to provide the management
necessary to manage and operate the gaming/entertainment business to be
conducted at/on the Facility; and
WHEREAS, Manager is willing to provide such services on behalf of and for
the account of Owner on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows"
1
ARTICLE I
DEFINITIONS
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As used in this Agreement, the following terms shall have the respective
meanings indicated.
Act. The term "Act" shall mean the Gaming/Casino Act of the Province of the
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Western Cape as well as South Africa, as the case may be, and the regulations
promulgated pursuant thereto.
Advancement Plan. The term "Advancement Plan" shall have the meaning set
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forth in Section 2.7.
Affiliate. The term "Affiliate" shall mean a Person that directly or
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indirectly, or through one or more intermediaries, Controls, is Controlled by,
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or is under common Control with the Person in question and any stockholder or
partner of any Person referred to in the preceding clause owning (i) more than
fifty percent (50%) or more of such Person if such Person is a publicly traded
corporation, or (ii) more than fifty percent (50%) or more of an ownership or
beneficial interest in any other Person.
Annual Operating Budget. The term "Annual Operating Budget" shall have the
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meaning set forth in Section 7.1.
Annual Operating Plan. The term "Annual Operating Plan" shall have the
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meaning set forth in Section 7. 1.
Approval. The term "Approval" means any license, finding of suitability,
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qualification, approval or permit by or from any Gaming Authority.
Approved Legal Counsel. The term "Approved Legal Counsel" shall have the
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meaning set forth in Section 7.17.
Bank Accounts. The term "Bank Accounts" shall have the meaning set in
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Section 7.17.
Books and Records The term Books and Records" shall have the meaning set
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forth in Section 7.10.
Business Day. The term "Business Day" shall have the meaning set forth in
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Section 18.14
Capital Replacements. The term "Capital Replacements" shall have the
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meaning set forth in Section 7.8
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Casino. The term "Casino" means the casino improvements and fixtures
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(temporary and/or permanent), including Casino Gaming Activities, to be
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constructed at the Facility, consistent with the concepts set forth in the
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Development Plan and in accordance with the Plans and Specifications.
Casino Bankroll. The term "Casino Bankroll" shall mean an amount of monies
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determined by Manager as necessary to provide cash-on-hand monies required to
operate and maintain Casino Gaming Activities, but in no event shall such amount
be less than the amount required by Law. In no event shall the Casino Bankroll
include amounts necessary to provide for the payment of Operating Expenses,
Working Capital or initial cash needs as described in Section 9.3 herein. The
Casino Bankroll shall include the finds in the separate accounts in Manager's
name plus any finds located on the casino tables, in the gambling devices,
cages, vault, counting rooms, or in any other location in the Casino where funds
may be found.
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Casino Gaming Activities. The term "Casino Gaming Activities" shall mean
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the casino cage, table games (such as blackjack, baccarat, roulette, craps,
mini-baccarat, pai gow, poker or pai gow poker, or any other table game), gaming
machines, and other casino-type games operated by Manager in the Casino.
Century. The term "Century" shall mean Century Casinos, Inc., a Delaware,
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USA corporation, or any of its subsidiaries or assignees.
Condemnation. The term "Condemnation" shall mean any taking by eminent
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domain, condemnation or any other governmental action.
Construction Permits. The term "Construction Permits" shall mean all
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licenses, permits, approvals, consents and authorizations from Governmental
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Authorities that are necessary to develop and construct the Facility (including,
without limitation, certificates of occupancy and other similar permits
necessary to occupy the Casino).
Consumer Price Index. The term "Consumer Price Index" shall mean the
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Consumer Price Index from time to time published by the relevant South African
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authority.
Control. The term "Control" (including derivations such as "controlled" and
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"controlling") means with respect to a Person, the ownership of more than fifty
percent (50%) or more of the beneficial interest or voting power of such Person.
Credit Policy. The term "Credit Policy" means the policy prepared by
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Manager and approved by Owner regarding the extension and collection of credit
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to customers of the Casino, which Credit Policy shall be based on (i) the target
markets of the Casino, (ii) the business issues involved, and (iii) such changes
and refinements as Owner shall reasonably recommend, all of which shall comply
and conform in all respects with any applicable Governmental Requirements
(including, without limitation, the rules and regulations of the Gaming
Commission).
Default. The tern: "Default" shall have the meaning set forth in Section
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8.1.
Default Rate. The term "Default Rate" shall mean the lesser of (i) the
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reference or prime commercial lending rate in South Africa, plus two percent
(2%) per annum, or (ii) the highest rate permitted by applicable Law, to the
extent applicable Law establishes a maximum rate of interest which may be
charged with respect to obligations of the type of questions, until paid.
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Department. The term "Department" shall have the meaning set forth in Section
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7.9.
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Development Budget. The term "Development Budget" shall have the meaning
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set forth in Section 5.1.
Development Plan. The term "Development Plan" shall have the meaning set
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forth in Section 5.1.
EBITDA. The term "EBITDA" shall mean Owner's earnings before interest
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expense, income taxes, depreciation and amortization, and also before any and
all costs/expenses beyond the control of Manager (such as F, F&E reserve, any
leasing, rental or similar costs/expenses) for the subject monthly, quarterly or
annual period, as reported in the financial statements prepared by the Manager.
Effective Date. The term "Effective Date" shall mean the execution date of
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this Agreement.
Enforcement Division. The term "Enforcement Division" shall mean the
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relevant authority to grant casino gaming licenses.
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Environmental Damages. The term "Environmental Damages" shall mean all
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claims, judgments, damages, losses, penalties, fines, liabilities (including
strict liability), encumbrances, liens, costs, and expenses of investigation and
defense of any claim, whether or not such claim is ultimately defeated, and of
any good faith settlement of judgment, of whatever kind or nature, contingent or
otherwise, matured or unmatured, foreseeable or unforeseeable, including without
limitation reasonable attorneys' fees and disbursements and consultants' fees,
any of which are incurred at any time as a result of the existence of Hazardous
Material upon, about, beneath the Site, or migrating or threatening to migrate
to or from the Site, or the existence of a violation of Environmental
Requirements pertaining to the Site, regardless of whether the existence of such
Hazardous Material or the violation of Environmental Requirements arose prior to
the present ownership or operation of the Site.
Environmental Requirements. The term: "Environmental Requirements" shall
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mean all applicable federal, state and local laws, rules, regulations,
ordinances and requirements relating to health and safety, worker health and
safety and pollution and protection of the environment, as amended or hereafter
amended.
Estimated Opening Date. The term "Estimated Opening Date" shall mean that
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projected opening date of the Facility as set forth in the agreed Construction
Schedule.
Event of Default. The term "Event of Default" shall have the meaning set
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forth in Section 3.1
Extended Term. The term "Extended Term" shall have the meaning set forth in
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Section 3.1.
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Facility. The term "Facility" shall have the meaning set forth in the
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"WHEREAS" clause of this Agreement.
Facility Employee. The term "Facility Employee" shall mean any employee of
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Owner directed by Manager to work at the Facility or in any capacity related to
the Facility.
FF&E. The term "FF&E" shall mean all furniture, furnishings, equipment, and
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fixtures, including gaming equipment, computers, housekeeping and maintenance
equipment, necessary or appropriate to operate the Facility in conformity with
this Agreement.
FF&E Requirements. The term "FF&E Requirements" shall have the meaning set
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forth in Section 5.2(c).
FF&E Specifications. The term "FF&E Specification" shall have the meaning
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set forth in Section 5.2(a).
Financial Statements. The term "Financial Statements" shall mean an income
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statement, balance sheet and a cash flows statement, all prepared in conformity
with Generally Accepted Accounting Principles and on a basis consistent in all
material respects with that of the preceding period (except as to those changes
or exceptions disclosed in such Financial Statements).
Fiscal Year. The term "Fiscal Year" shall mean the period beginning on
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January 1 and ending on December 31 of each calendar year.
Gaming Authorities. The term "Gaming Authorities" or "Authority" shall mean
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all agencies, authorities and instrumentalities of any state, nation, or other
governmental entity, or any subdivision thereof, regulating gaming or related
activities in South Africa, including, without limitation, the Gaming Commission
and the Enforcement Division.
Gaming Commission. The term "Gaming Commission" shall mean the Western Cape
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Gambling and Racing Board.
Gaming License. The term "Gaming License" shall have the mean all
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activities set forth in Section 3.1.
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Gaming Operations. The term "Gaming Operations" shall mean all activities
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pertaining to the development and construction of the Casino and the Casino
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thereon, all Casino Gaming Activities conducted in the Casino and all activities
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conducted at the Facility; related to any of the foregoing.
General Laws The term "General Laws shall mean any statute, ordinance,
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promulgation, law, treaty, rule, regulation, code, judicial or administrative
precedent or order of any court or other body of South Africa and any state law
or subdivision thereof, any foreign countries or subdivisions thereof, and shall
include all Laws.
Generally Accepted Accounting Principles. The term "Generally Accepted
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Accounting Principles" shall mean generally accepted accounting principles in
all material respects as established from time to time by the American Institute
of Certified Public Accountants, provided, however, that to the extent there are
changes in, or there are implemented by mandates now-existing elective
treatments under, Generally Accepted Accounting Principles from and after the
date hereof, such changes or implementations shall not be taken into
consideration for purposes of defining the term EBITDA.
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Governmental Authority. The term "Governmental Authorities" or "Authority"
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means South Africa, Province of the Western Cape and any other political
subdivision in which the Facility is located, and any court or political
subdivision, agency, commission, board or instrumentality or officer thereof,
whether federal, state, local, having or exercising a jurisdiction over Owner,
Manager or the Facility, including, without limitation, any Gaming Authority.
Governmental Requirements. The term "Governmental Requirements" means all
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Laws and agreements with any Governmental Authority that are applicable to the
acquisition, development, construction and operation of the Facility and
including, without limitation, the Purchase, all Required Contracts, Approvals
and any rules, guidelines or restrictions created by or imposed by Governmental
Authorities (including, without limitation, any Gaming Authority).
Gross Casino Revenue. The terms "Gross Gaming Revenue" and "Gross Casino
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Revenue" shall mean all gross revenues generated by or in the Casino, including
gaming receipts less all sums paid out as winnings in connection therewith.
Hazardous Materials. The term "Hazardous Materials" shall mean without
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limitation: (i) hazardous materials, hazardous substances, extremely hazardous
substances or hazardous wastes, (ii) petroleum, including, without limitation,
crude oil or any fraction thereof which is liquid at standard conditions of
temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch
absolute); (iii) any radioactive material, including, without limitation, any
source, special nuclear, or by-product material, and (iv) asbestos in any form
or condition.
Initial Term. The term "Initial Term" shall have the meaning set forth in
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Section 3.1.
Law. The term "Law" means any statute, ordinance, promulgation, law,
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treaty, rule, regulation, code, judicial or administrative precedent or order of
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any court or any other Governmental Authority, as well as the orders or
requirements of any local board of fire underwriters or any other body which man
exercise similar functions.
Major Casualty. The term "Major Casualty" shall mean any casualty or
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accident which prevents or substantially impairs the conduct of the Facility's
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business and the ability to earn or generate revenues and income or its ability
to make payments under the Purchase.
Major Condemnation. The term "Major Condemnation" shall mean any
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Condemnation which prevents or substantially impairs the conduct of the Facility
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and the ability to earn or generate revenues and income and/or its ability to
make payments under the Purchase.
Management Fee. The term "Management Fee" shall have the meaning set forth
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in Section
4.1.
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Manager Denial. The term "Manager Denial" shall have the meaning set forth
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in Section 10.3
Manager Indemnitees. The term "Manager Indemnitees" shall have the meaning
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set forth in Section 16.2
Manager Operating Permits. The term "Manager Operating Permits" shall mean
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all licenses, permits, approvals, consents and authorizations which Manager is
required to obtain from any Governmental Authority to perform and carry out its
obligations under this Agreement.
Manager's Advances. The term "Manager's Advances" shall have the meaning
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set forth in Section 9.7.
Manager's Default. The term "Manager's Default" shall mean those
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occurrences described in Section 8.2.
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Minor Casualty. The term "Minor Casualty" shall mean any casualty or
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accident other than a Major Casualty.
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Minor Condemnation. The term "Minor Condemnation" shall mean any
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Condemnation other than a Major Condemnation.
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Net Gaming Proceeds. The term "Net Gaming Proceeds" shall have the exact
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same meaning as "Gross Gamine Revenue".
Opening Date. The term "Opening Date" shall mean the first date a
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revenue-paying customer is admitted to the Casino. The parties shall hereafter
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confirm the Opening Date in an Addendum to this Agreement which shall be
attached hereto and made a part hereof
Operating Expenses. The term "Operating Expenses" shall mean those
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reasonable operating expenses, including payroll, marketing and administration
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incurred on behalf of Owner after the Opening Date in connection with conducting
and operating the Facility, computed on an accrual basis, deductible under
Generally Accepted Accounting Principles in determining "Operating Income" (as
defined in casino industry practice) for purpose of preparing a statement of
operations for the Facility. VAT and other taxes shall not be included in
Operating Expenses Further. Operating Expenses shall not include depreciation or
amortization with respect to the Facility or the F. F&E. Debt Service or Capital
Replacements deposits. Operating Expenses shah include the Management Fee.
Operating Guidelines The term "Operating Guidelines" means the general
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guidelines for the operation of the Facility which shall be prepared by Manager
and shall be included in and constitute a part of each Annual Operating Plan.
Operating Guidelines shall include the Credit Policy. Manager's policies
regarding (i) restricting access to the Casino to those under the legal age for
gaming in South Africa, (ii) assisting compulsive gamblers, and (iii) employee
travel, employee expense reimbursement and employee gambling at the Casino.
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Operating Permits. The term "Operating Permits" shall mean Manager
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Operating Permits and Owner Operating Permits.
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Operating Supplies. The term "Operating Supplies" shall mean gaming
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supplies, paper supplies, cleaning materials, food and beverage, fuel, marketing
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materials, maintenance supplies, linen, china, glassware, silverware, kitchen
utensils, uniforms and all other consumable supplies and materials used in the
operation of the Facility.
Owner Denial. The term "Owner Denial" shall have the meaning set forth in
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Section 10. 1
Owner Indemnitees. The term "Owner Indemnitees" shall have the meaning set
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forth in Section 16.1.
Owner Operating Permits. The term "Owner Operating Permits" shall mean all
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licenses, permits, approvals, consents and authorizations from Governmental
Authorities that are necessary to own, develop, open, operate and occupy the
Facility other than Manager Operating Permits and the Construction Permits.
Owner's Advances. The term "Owner's Advances" shall mean the amounts to be
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advanced by Owner to Manager pursuant to Section 9. 1.
Owner's Default. The term "Owner's Default" shall have the meaning set
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forth in Section 8.3.
Person. The term "Person" shall mean any individual, partnership,
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corporation, association or other entity, including, but not limited to, any
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government or agency or subdivision thereof and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person
where the context so admits.
Plans and Specifications. The term "Plans and Specifications" shall have
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the meaning set forth in Section 5.2(a).
Pre-Opening Budget. The term "Pre-Opening Budget" shall mean the budget of
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expenses to be incurred prior to the Opening Date pursuant to Section 6. 1 of
the Agreement and with respect to any other provision of the Agreement
pertaining to the period prior to the Opening Date. Such expenses shall include,
without limitation, all budgeted expenses incurred by Manager or by any of
Manager's Affiliates in performing the Pre-Opening Services, the cost of
recruitment and training for all employees of the Facility, costs of licensing
or other qualification of Facility employees prior to the Opening Date, the cost
of pre-opening sales, marketing, advertising, promotion and publicity, the cost
of obtaining all Construction Permits and Owner Operating Permits, permits for
employees, including the fees of lawyers and other consultants incident thereto,
and other Pre-Opening Expenses.
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Pre-Opening Expenses. The term "Pre-Opening Expenses" shall have the
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meaning set forth in Section 6.2.
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Pre-Opening Services. The term "Pre-Opening Services" shall have the
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meaning set forth in Section 6.1.
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Project Architects. The term "Project Architects" shall have the meaning
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set forth in Section 5.2(a).
Project Designers. The term "Project Designers" shall have the meaning set
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forth in Section 5.2(a).
Property Insurance. The term "Property Insurance" shall have the meaning
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set forth in Section 14.2.
Purchase. The term "Purchase" shall mean the Purchase or lease agreement
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for the Site.
Required Coverage. The term "Required Coverage" shall have the meaning set
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forth in Section 14.1.
Senior Staff. The term "Senior Staff" shall have the meaning set forth in
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Section 7.4.
Site. The term "Site" shall have the meaning set forth in the "WHEREAS"
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clause of this Agreement.
Technical Services. The term "Technical Services" shall have the meaning
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set forth in Section 5.3.
Term. The term "Term" shall mean the Initial Term and any Extended Term for
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which the option to extend as provided in the Agreement has been properly
exercised.
Unavoidable Delay. The term "Unavoidable Delay" shall have the meaning set
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forth in Article XIII.
Working Capital. The term "Working Capital" shall mean such amount in the
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Bank
Accounts as will be sufficient to reasonably assure the timely payment of all
current liabilities of the Facility and the uninterrupted and efficient
operation of the Facility during the Term of this Agreement to permit Manager to
perform its responsibilities and obligations hereunder, all as contemplated by
the applicable Annual Operating Plan with reasonable reserves for unanticipated
contingencies and for short term business fluctuations resulting from monthly
variations between the Annual Operating Plan and operating expenses.
9
ARTICLE II
APPOINTMENT OF MANAGER
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SECTION 2.1 Appointment Owner hereby appoints, hires and employs Manager,
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as Owner's exclusive agent, to manage the Gaming Operations on behalf of and for
the account of Owner during the term of this Agreement. Manager hereby accepts
such appointment upon and subject to the terms, conditions, covenants and
provisions set forth herein.
SECTION 2.2 Management of the Facility. Manager agrees to act (i) in
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compliance with this Agreement and the requirements of the Gaming Commission and
any other Governmental Requirements, (ii) in accordance with the requirements of
any carrier of insurance on the Facility or any part thereof, and (iii) in
conformity with the applicable Annual Operating Plan and the Operating
Guidelines (all of the foregoing being hereinafter collectively referred to as
the "Operating Goals").
SECTION 2.3 No Interference. Owner hereby agrees that, subject to the
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limitations described herein, Manager shall have uninterrupted control of the
management of the Gaming Operations during the Term of this Agreement, subject
to the rights of Owner set forth herein, and that Manager may manage the Gaming
Operations free of molestation, eviction or disturbance by Owner or any third
party claiming by, through or under Owner, subject in each case, to exercise of
the fiduciary duties under applicable law of any other managers of Owner.
SECTION 2.4 Limitations on Authority of Manager. In addition to any other
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limitations on the powers and authority of Manager as set forth herein, except
for transactions in the ordinary course of business, Manager shall have no
authority to (i) sell or purchase all or any part of the Facility or (ii) cause
Owner to acquire any other business entities or sell all or substantially all of
the assets thereof.
SECTION 2.5 Other Century Casinos. The parties hereto acknowledge and agree
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that Century, Manager or its Affiliates are the beneficial owner and/or managers
of existing casinos and may. in the future, have an interest, direct and/or
indirect in other casinos, and/or manage or operate other casinos in South
Africa, provided that the limited ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇) contained in the shareholders agreement is fulfilled.
SECTION 2.6 Employment of Affiliates. Manager may, acting in its sole
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discretion in the best interests of Owner, employ or retain as consultants or
agents any of Manager's Affiliates, or any other entity or Person related to
Manager, in fulfilling its obligations pursuant to this Agreement; provided.
However, that Manager shall disclose all transactions with any entity related to
Manager, as required by Generally Accepted Accounting Principles on the
quarterly financial statements required under Section 7.11. All such service
agreements shall be on economic terms comparable with agreements negotiated on
an arms-length basis and subject to Owner's approval.
10
ARTICLE III
TERM OF AGREEMENT
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SECTION 3.1 Term. The operating term of this Agreement shall be ten (10)
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years (initial Term"), despite the date of execution thereof, shall be deemed to
have commenced on the award of a casino license 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, ▇▇▇▇▇▇ ▇▇▇▇ Hospitality (Pty) Ltd, Overberg Country
Hotel and Spa (Pty) Ltd and Senator Trust). This Agreement shall be
automatically renewed for further multiple ten (10) year periods ("Extended
Term"), unless Manager gives six months notice of its intention to withdraw from
this Agreement. Owner undertakes, subject to licensing for which Owner shall use
its best efforts at any time, throughout the term (Initial and Extended) of this
Agreement, to conduct the business of a Casino and Casino Gaming Activities at
the Facility.
SECTION 3.2 Effect of Termination. All sums owed by either party to the
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other shall be paid immediately upon termination of this Agreement. In the event
of any termination of this Agreement, Owner shall, notwithstanding such
termination, be liable to Manager for the fees earned and reasonable
out-of-pocket expenses incurred by Manager in conformity with this Agreement
prior to such termination as follows: (i) any unpaid accrued portion of the
Management Fee and Manager's Advances (including any unpaid accrued interest
thereon), if any, plus (ii) all reimbursable costs to Manager which were
properly incurred prior to termination in connection with the performance of
Manager's obligations in conformity with this Agreement. If the termination of
this Agreement is a consequence of Owner's Default, Owner shall also be liable
to Manager for all reasonable costs (including, but not limited to, severance
pay or settlements and moving expenses of Manager's employees, if any, and any
attorney's fees, expenses, and losses as the result of such severance) incurred
as a direct result of Owner's Default. If the termination of this Agreement is a
consequence of Manager's Default, Manager shall not have the right to collect
any amounts due Manager under this Section 3.4 from the Bank Accounts. In such
event, Owner shall pay Manager within five (5) Business Days of the date of
termination the amounts owed Manager described in clauses (i) and (ii) above
through the date of termination.
SECTION 3.3 Survival of Representations and Indemnifications.
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Notwithstanding anything contained herein to the contrary, the parties
acknowledge that the representations, covenants and indemnifications set forth
in Articles XI, XIV, XVI and Sections 18.2, 18.6, 18.8 and 18.9 shall survive
the termination or expiration of this Agreement. All amounts due and payable
front either party to the other shall survive the termination of the Agreement.
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ARTICLE IV
FEE; EXPENSES
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SECTION 4.1 Management Fee. During the Term of this Agreement, Manager
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shall be paid the Management Fee set forth herein. Failure to pay the Management
Fee in accordance with the time periods set forth in this Agreement shall
constitute a breach of this Agreement.
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SECTION 4.2. Calculation of Management Fee. The Management Fee shall be
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equal to:
(a) 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),
plus
(b) Four percent (4%) of the yearly gross revenues (excluding VAT and any
other taxes) generated by or in the Casino (excluding food & beverage), for the
applicable Fiscal Year, between zero Rand (R0) and forty million Rands
(R40,000,000), plus five percent (5%) of the yearly gross revenues (excluding
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VAT and any other taxes) generated by or in the Casino (excluding food &
beverage), for the applicable Fiscal Year, exceeding forty million Rands
(R40,000,000), plus
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(c) Seven and a half percent (7.5%) of the Casino's yearly EBITDA (excluding
food & beverage), for the applicable Fiscal Year.
(d) The percentage referred to in the first section of (b) above (four
percent) shall be reduced to three percent (3%) for the first twelve months of
casino operation.
SECTION 4.3 Time of Payment of Management Fee. All out-of-pocket costs and
---------------------------------
expenses incurred by Manager shall be invoiced to Owner and Owner shall pay
these amounts to Manager within ten days. The fee described in (a) above shall
be paid from Owner to Manager on the fifth (5th) day of each month, for the
preceding month. That portion of the Management Fee based upon EBITDA shall be
paid thirty (30) days after the last day of each calendar month. The aggregate
of the Management Fees so paid monthly shall be adjusted quarterly, and an
annual adjustment shall be made within ninety (90) days of the end of each
Fiscal Year. A partial Fiscal Year at the beginning and end of this Agreement
shall be treated as an Fiscal Year for purposes of this Section 4.3. Owner
hereby authorizes Manager to pay itself the monthly Management Fee due from the
Bank Accounts. Owner shall pay all applicable taxes or fees on the Management
Fee. For the last month of the term of this Agreement, Owner shall pay Manager
the Management Fee directly. The fee in 4.2.(c) shall not take into account any
losses carried forward from any prior financial year.
Section 4.4 Place of Payment of Management Fee. It shall be Owner's
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obligation to ensure that the Management Fees are paid to Manager at such
account as may be determined by Manager from time to time.
Section 4.5 Expenses. In addition to the Management Fee, within ten (10)
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Business Days after presentation of expense vouchers or billing invoices, as the
case may be, Owner shall reimburse Manager on a monthly basis for (i) all
documented expenses properly incurred under this Agreement by Manager, its
officers and employees and/or agents in rendering the services provided for in
this Agreement, and (ii) all amounts billed to Manager by Persons for such
Persons' reasonable fees, charges, costs and expense properly incurred under
this Agreement in connection with Manager's performance of its duties hereunder.
Notwithstanding the foregoing, all Operating Expenses shall be paid directly
from the Bank Accounts pursuant to Section 7.19 herein. Any amounts not
reimbursed within ten (10) business days shall bear interest at the Default
Rate. No expenses payable to Manager's Affiliates shall be paid out without
Owner prior consent.
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ARTICLE V
FACILITY DEVELOPMENT
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SECTION 5.1 Development Plan.
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(a) As soon as practicable after the execution date of this Agreement,
after Owner has demonstrated and represented, to Manager's reasonable
satisfaction, that the necessary financing for the full development of the
Facility has been secured, and after a Gaming/Casino License has been issued to
Owner, Manager shall present to Owner a proposed development plan (the
"Development Plan"). The Development Plan will be Manager's plan and schedule
for developing the Casino, and shall contain (i) a development budget (the
"Development Budget") for developing the Casino and (ii) the Pre-Opening Budget.
Manager shall consult with Owner in the preparation of the Development Plan,
provided Owner makes its representatives readily available for such
consultation.
(b) Within fifteen (15) days of receipt of the proposed Development Plan,
Owner shall inform Manager in writing whether it disapproves of the proposed
Development Plan and, if so, the specific portions thereof of which it
disapproves and the reasons therefor. Owner shall not unreasonably withhold or
delay its approval of the Development Plan or any item therein. If Owner does
not inform Manager in writing of its disapproval of the Development Plan within
the above-described fifteen (15) day period, it shall be deemed to have approved
the Development Plan.
(c) If Owner reasonably disapproves of the Development Plan or any portion
thereof, Manager shall (i) endeavor to make such modifications to the
Development Plan as are necessary to resolve the objections raised in Owner's
notice pursuant to Section 5.1(b); (ii) within fifteen (15) days of Owner's
notice of disapproval, resubmit such Development Plan for review under the terms
of Section 5.1(b); and (iii) if necessary, to make further revisions under this
Section 5.1(c).
(d) If Manager and Owner cannot reach agreement as to matters contained
in the
Development Plan within forty-five (45) days of Manager's submission of the
proposed
Development Plan, the disputed matter(s) will be resolved through
arbitration pursuant to Article XVII herein.
SECTION 5.2 Plans and Specifications
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(a) Owner will engage and retain, at Owner's sole cost and expense,
such architects, engineers, contractors, designers and other specialists as
Manager deems necessary to prepare all site plans, grading plans, construction
drawings, surveys, materials, specifications, architectural plans and drawings,
elevations, construction models, engineering plans and drawings, approved plans
and all other plans, drawings, studies or reports required for the construction
of the Facility (the "Plans and Specifications") and for the purchase and
installation of the FF&E (the "FF&E Specifications), as provided for in the
Development Plan. Manager shall consult and advise with the architects (the
architects so selected are referred to herein as the "Project Architects") and
the designers (the designers so selected are referred to herein as the "Project
Designers"), and the Owner on these matters.
(b) The Plans and Specifications shall be consistent in all material
respects with and based upon the conceptual plans for the Casino as set forth in
the Development Plan and shall be subject to any changes necessary to meet
applicable requirements of the Act and any other Governmental Requirements.
(c) The FF&E shall (i) bear the name or identifying characteristic or logo
of the Casino, where appropriate. (ii) be generally consistent in quality and
relative scope with other casinos in South Africa, taking into consideration the
Construction Budget's limitations, the Development Plan, local conditions, and
the image and target markets of the Casino, (iii) comply with all applicable
Laws and any other Governmental Requirements, and (iv) be available in
quantities required by the FF&E Specifications to meet the Construction Schedule
(collectively, the "FF&E Requirements").
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SECTION 5.3 Technical Services (Pre-Opening). From the date of the award of
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the casino license until the Casino is substantially completed (including the
installation of FF&E), Manager, either directly or through one or more of its
Affiliates, shall provide the technical services described below (collectively,
the "Technical Services"):
(i) Manager will prepare specific operational and functional criteria for
the Casino for use by the Project Architects and the Project Designers in the
preparation of the Plans and Specifications and the FF&E Specifications;
(ii) Manager shall advise and consult with the Project Architects in the
development of schematic, preliminary and working Plans and Specifications and
the Project Designers in the selection and specifications of FF&E;
(iii) Manager shall review, critique and make recommendations to Project
Architects and the Project Designers in the selection and layout of the FF&E in
accordance with the FF&E Specifications and the Plans and Specifications.
SECTION 5.4 Opening the Casino. The Casino shall be opened to the public on
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a date established by Manager upon satisfaction of the following: (i) the
Project Architects have issued to Owner a certificate(s) of substantial
completion confirming that the Facility has been substantially completed in
accordance with the Plans and Specifications. (ii) the Project Designers have
issued to Owner a certificate(s) of substantial completion confirming that the
FE&E has been substantially installed therein in accordance with the FF&E
Specifications and the Plans and Specifications, (iii) all Operating Permits
(including, without limitation, a certificate of occupancy or local equivalent,
gaming/casino, liquor and restaurant licenses and all permits, certificates and
other licenses required of any authority) have been obtained, (iv) the initial
cash needs for the Casino as set forth in Section 9.3 and the Casino Bankroll
has been furnished by Owner, (v) Manager is satisfied that all operational
systems have been adequately tested on a "dry-run" basis to the satisfaction of
Manager and any appropriate Governmental Authorities, and (vi) all other
Governmental Requirements necessary to open, occupy and operate the Facility
have been satisfied. Manager shall use all reasonable efforts in the performance
of its duties under this Agreement to assist Owner in achieving the satisfaction
of all of the foregoing requirements by the Estimated Opening Date.
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ARTICLE VI
PRE-OPENING SERVICES
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SECTION 6.1 Pre-Opening Services. Between the date of the casino license
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and the Opening Date, Manager, as agent of Owner, shall perform or arrange for
others to perform the following services (in addition to the services described
in Article V herein) on behalf of and for the account of Owner but subject to
the Pre-Opening Budget contained in the Development Budget (the "Pre-Opening
Services"):
(a) Pre-Opening Marketing. Manager shall implement the marketing portion of
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the approved Development Plan, including, but not limited to, direct sales,
media and direct mail advertising, promotion, publicity and public relations
designed to attract customers to the Casino from and after the Opening Date in
accordance with the provisions of Section 7.24.
(b) Personnel. Manager shall have the sole authority to recruit, hire,
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provide orientation to, train, supervise, promote and determine the compensation
(which must be within normal and reasonable industry standards) of and discharge
all executive and general staff of the Facility on behalf of Owner, including
all Facility personnel to be utilized during the period from the date hereto
until the Opening Date in accordance with the approved Development Plan. The
authority granted to Manager pursuant to this Section 6. shall be in addition to
all authority granted to Manager pursuant to Sections 7.3 and 7.4 herein,
provided that all such personnel and staff shall be suitable under applicable
rules, regulations and laws of South Africa.
(c) Operating Permits. Manager shall use reasonable efforts in applying
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for, processing and producing all Manager Operating Permits and in assisting
Owner in applying for, processing and procuring Owner Operating Permits within
the timetables established by the Development Plan (and in any event prior to
the Estimated Opening Date).
SECTION 6.2 Payment of Pre-Opening Expenses. All costs and expenses
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properly incurred in connection with the Pre-Opening Services (the "Pre-Opening
Expenses") shall be paid from the Bank Accounts. Pre-Opening Expenses and the
time schedule for incurring such expenses shall be established in the approved
Development Budget and Development Plan. Owner shall deposit, in advance, such
sums in accordance with the schedule as shall be established by the parties in
the Development Budget and the Development Plan and Owner shall maintain
sufficient funds therein to pay all Pre-Opening Expenses in accordance with
monthly schedules to be prepared by Manager and submitted to Owner. Manager
shall not incur any expenses or make any disbursements that are not provided
for, or are in excess of one hundred fifty percent (150%) of any the Development
Budget without Owner's prior written consent: provided, however, that if a
savings of up to five hundred thousand Rands (R500,000) is obtained for a line
item, such amount may be reallocated so as to allow an excess disbursement in an
amount up to the amount saved with respect to another line item. Manager may,
but is not required to, advance funds to pay Pre-Opening Expenses on behalf of
Owner. All such Pre-Opening Expenses advanced by Manager, if any, shall be
itemized, scheduled and submitted to Owner on a calendar month basis and
reimbursement within ten (10) Business Day's after such submission. Any
Pre-Opening Expenses advanced day Manager that remain unreimbursed ten (10)
Business Days after submission shall bear interest at the Default Rate.
SECTION 6.3 Temporary Casino. In the event that Owner is authorized by any
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applicable Governmental Authority to conduct temporary gaming/casino operations,
and Owner elects to do so, Manager shall manage such gaming operations for the
same management fees as outlined above Manager shall reasonably cooperate with
Owner in preparing a pre-opening plan for the temporary casino and such other
information as Owner may reasonably request.
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ARTICLE XIII
FACILITY OPERATIONS
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SECTION 7.1 Annual Operating Plan and Budget
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(a) On or before the forty-fifth (45th) day preceding the first day of each
Fiscal Year subsequent to the Opening Date, Manager shall submit to Owner for
its approval an annual operating plan for the operation of the Casino for the
forthcoming Fiscal Year (each such annual operating plan that is approved by
Owner is referred to herein as an "Annual Operating Plan"), which shall include
an annual marketing plan, annual operating budget by month (the "Annual
Operating Budget"), annual estimate of key operating statistics, annual
projection of sources of cash by month, and a two (2) year projection of capital
expenditures. The Annual Operating Plan shall include sufficient amounts for
maintenance and repairs to keep the Casino in good operating condition. Manager
will consult with Owner and the Casino Manager in preparing the Annual Operating
Plan, provided that Owner and Casino Manager make their representatives readily
available for such consultations.
(b) Within thirty (30) days after the date Manager submits the proposed
Annual Operating Plan, Owner shall inform Manager in writing whether it
disapproves of the proposed Annual Operating Plan and, if so, the specific
portions thereof of which it disapproves. Any notice that disapproves a proposed
Annual Operating Plan must contain reasonably detailed objections along with
suggestions as to what corrective measures can be taken to make such proposed
Annual Operating Plan acceptable to Owner. If Owner fails to provide written
notice to Manager of its objections within thirty (30) days after the submission
of the proposed Annual Operating Plan, such proposed Annual Operating Plan shall
be deemed to be approved as submitted
(c) If Owner reasonably disapproves or objects to the proposed Annual
Operating Plan, or any portion thereof, Manager shall endeavor to make such
modifications to the Annual Operating Plan as are necessary to resolve the
objections raised in Owner's notice, and within thirty (30) days of the Owner's
notice, to resubmit such Annual Operating Plan for review by Owner under the
terms of Section 7.1 and. if necessary, to make further revisions under this
Section 7.1.
(d) If Owner's objection relates only to certain portions of the proposed
Annual Operating Plan or an Annual Operating Budget contained therein, the
undisputed portions of the proposed Annual Operating Plan or Annual Operating
Budget shall be deemed to be adopted and approved. With respect to objectionable
items in any proposed Annual Operating Budget, prior to the adoption of a new
Annual Operating Budget, the corresponding item contained in the Annual
Operating Budget for the preceding Fiscal Year shall be substituted in lieu of
the disputed portions of the proposed Annual Operating Budget, excluding,
however, line items in the previous Annual Operating Budget for extraordinary
expenses or revenues. In any instance where a portion of an Annual Operating
Budget from a preceding Fiscal Year is deemed to be applicable to the Annual
Operating Budget in effect until a new Annual Operating Budget is fully
approved, corresponding items contained in the Annual Operating Budget for the
preceding Fiscal Year shall be automatically adjusted by a percentage equal to
the percentage change in the Consumer Price Index during the preceding Fiscal
Year. Such calculation of percentage change in the Consumer Price Index shall be
made by Manager based upon the most recently published Consumer Price Index data
at the time the calculation is made.
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(e) If Owner and Manager are unable to agree on the amount of any capital
expenditure or reserve item in an Annual Operating Budget, only those capital
expenditures (or the undisputed amount when the amount is in dispute) with
respect to which Owner and Manager have reached an agreement that are approved
by Owner or are required to be made by any Governmental Authority shall be made
until Owner and Manager otherwise agree on the terms of such Annual Operating
Budget or the matter is decided by arbitration. The Annual Operating Plan will
be appropriately adjusted to reflect the effect of any delay in capital
expenditures.
(f) Each proposed Annual Operating Plan shall be prepared by Manager based
on the actual and projected results of the current Fiscal Year, the standard of
maintaining the Casino and the Facility in good operating condition, information
with respect to possible occurrences which may impact the marketing and/or
operation of the Casino and the Facility in the future, changes from the
previous Fiscal Year results, reasonable predictions for the future and such
other information and assumptions that shall be reasonable under the
circumstances.
(g) Except as otherwise provided in Sections 7.22 or 7.23, Manager shall
not, without Owner's prior written consent, incur any expenses or make any
disbursements that are either not provided for in an Annual Operating Budget or
are in excess of one hundred and fifty percent (150%) of the amount approved for
a particular item in such Annual Operating Budget unless otherwise permitted by
Sections 7.22 or 7.23. Any request by Manager to make any expenditure or incur
any obligation in excess of one hundred fifty percent (150%) of an amount set
forth in the Annual Operating Budget contained in the applicable Annual
Operating Plan or which falls into any category of expenditures which is
required by any Law to have the prior approval of Owner, shall be submitted to
Owner in writing with an explanation of such expenditure. Owner shall respond to
any request within fifteen (15) days after the receipt thereof. If Owner fails
to respond within such fifteen (15) day period, the proposed expenditure shall
be deemed approved.
SECTION 7.2 Contracts and Expenses. Manager may make, enter into and
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perform, in the name of, for the account of, on behalf of, and at the expense of
Owner, any contracts and agreements provided for under this Agreement and each
Annual Operating Plan and Annual Operating Budget, so long as Manager has
complied with all the requirements of this Agreement with respect to such
contracts and agreements. All costs and expenses incurred by Manager or an
Affiliate of Manager in accordance with this Agreement, the Annual Operating
Plan and the Annual Operating Budget shall be for and on behalf of Owner and for
Owner's account. All debts and liabilities incurred Manager under this Agreement
to third parties on behalf of either Owner or the Facility are and shall remain
the sole obligations of Owner. Manager shall use commercially reasonable efforts
to promote and enforce the goals of the Advancement Plan by Owners contractors,
to the extent required by the Advancement Plan.
SECTION 7.3 Recruitment. Manager shall establish and implement procedures,
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techniques, and programs consistent with the Annual Operating Plan, the Annual
Operating Budget and the Advancement Plan to recruit, screen, evaluate, hire,
orient and train qualified applicants to become Facility Employees. Manager
shall have the sole authority to recruit, hire, provide orientation to, train,
supervise, promote, determine the compensation of, and discharge all Facility
Employees.
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SECTION 7.4 Manager's Personnel Decisions. Manager shall have the
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authority to recruit, hire, provide orientation to, train, supervise, promote,
determine the compensation of, and discharge all personnel, including all
management personnel ("Senior Staff") at the Facility on behalf of Owner. Except
as otherwise decided by Manager, all of the Senior Staff shall be employees of
Owner. Regardless of whether they are employed by Owner or Manager, expenses and
costs pertaining to the employment of the Senior Staff, including without
limitation, affiliate incentive and stock plans, severance pay and the costs of
retirement benefits pertaining to such persons, shall be Operating Expenses of
the Facility and reimbursed to Manager on a current basis.
SECTION 7.5 Union Contracts. Manager shall assist Owner to negotiate with
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any labor union lawfully entitled to represent the Facility Employees. All
decisions regarding union contracts applicable to the Facility shall be made by
Manager.
SECTION 7.6 Payroll Checks. Payroll checks for all Facility Employees
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shall be in a form, contain such identifications and be signed by persons
specified by Owner (provided such checks shall not identify Manager without
Manager's consent).
SECTION 7.7 Financial Management. Manager shall be responsible for the
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administration of the day-to-day financial affairs of the Casino.
SECTION 7.8 Capital Replacements
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(a) Manager shall have the responsibility and sole authority to plan,
contract for, account for and supervise all capital replacements and
improvements to the Casino and the Facility or any portion thereof (collectively
"Capital Replacements") that are contemplated in any Annual Operating Plan.
Manager shall have the right to approve plans and specifications and select
architects, engineers, general contractors, subcontractors, suppliers, and
materialmen with respect to Capital Replacements, taking into consideration the
criteria set forth in the Development Plan and al1 Annual Operating Plans. Any
changes in the Casino structure itself or the structure of any of the buildings
located at the Facility shall comply with any requirements in the Purchase, or
any Governmental Requirements.
(b) Manager shall have the right to supervise the general contractor or
other person responsible for the Capital Replacements work. To the extent the
proposed Capital Replacements will have a material adverse effect on the
operation of the Facility during the performance of the work. the plans and
specifications applicable thereto shall comply with the terms of the Purchase
and any applicable Governmental Requirements.
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SECTION 7.9 Revisions to Annual Operating Plan and Reallocations of Funds.
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If, after approval of an Annual Operating Plan for a particular Fiscal Year, in
Manager's reasonable business judgment, revisions to the Annual Operating Plan
are appropriate, Manager shall revise the Annual Operating Plan and submit such
revised Annual Operating Plan to Owner for approval in accordance with the
procedures set forth in Section 7.1. Owner shall have the right to suggest
revisions to the Annual Operating Plan subject to Manager's approval with
disagreements being resolved as set forth in Section 7. 1. Manager, without
Owner's consent, may reallocate all or any portion of any line item in an Annual
Operating Budget to another item in the same Department in an amount not to
exceed five hundred thousand Rands (R500,000) in the aggregate in any Fiscal
Year but may not reallocate from one Department to another without Owner's
approval. The term "Department" means those general divisional categories in the
Annual Operating Budgets and shall not mean or refer to subcategories appearing
in a divisional category. Manager shall not make any payments or disbursements
in excess of one hundred fifty percent (150%) of the Department or total
operating expense amounts in an Annual Operating Plan, except as follows:
(i) Pursuant to Sections 7.22 or 7.23;
(ii) If expenditures for Operating Expenses bear the same relationship
(ratio) to the amount budgeted for such items as actual gross revenue for such
month bears to the projected gross revenue for such month (provided that any
increase in Operating Expenses is, in Manager's reasonable business judgment, a
necessary consequence of the increase in gross revenue);
(iii) Any expenditures for which written approval in advance has been
obtained from Owner;
(iv) For taxes, insurance and utilities to reflect actual costs thereof,
subject to Owner s right to contest the validity of such items; and
(v) For payment of any final judgment in litigation involving the Facility.
SECTION 7.10 Accounting Records. During the Term of this Agreement, Manager
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shall maintain full and adequate books of account and records ("Books and
Records") reflecting the results of the operation of the Casino on an accrual
basis, all in accordance with Generally Accented Accounting Principles
consistently applied in all material respects. The Books and Records shall be
kept separate and distinct from all other operations and businesses of Manager
or Affiliates of Manager. Manager shall keep all Books and Records, including,
without limitation, current vendor invoices, payroll records, general ledgers,
credit transactions and other records relating to the Casino at the Facility or
at such other location as shall be approved by Owner in writing, subject to such
record retention and storage policies and access rights required by any Gaming
Authority and any other applicable Governmental Requirements. All such Books and
Records shall at all times be the property of Owner and shall not be removed
from the Facility or other approved location by Manager without Owner's written
approval except as required by General Laws. Upon any termination of this
Agreement, all Books and Records shall immediately by turned over to Owner so as
to ensure the orderly continuance of the operation of the Facility, but (i)
Manager may make and retain copies of all or any portion of the Books and
Records needed for its own record keeping and (ii) such Books and Records shall
be available to Manager for a period of five years after termination of this
Agreement at all reasonable times for inspection, audit, examination and
transcription of particulars relating to the period in which Manager managed the
Facility.
20
SECTION 7.11 Financial Statements; Meetings. Manager shall provide Owner
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with reasonably accurate unaudited Financial Statements of the Casino sixty (60)
days after the end of each calendar quarter. The annual Financial Statements
shall be audited by Owner's auditors at Owner's expense and provided to Owner
within ninety (90) days after the end of the Fiscal Year. In addition, Manager
shall provide Owner with daily results (including cash drop) for all games and
with a copy of Manager's monthly casino report.
SECTION 7.12 Access. Review and Audit. Owner (or its duly appointed agents)
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and any Gaming Authority (as permitted by Law) shall have the right at
reasonable times and during normal business hours, after reasonable written
notice to Manager, to examine, audit, inspect and transcribe the Book and
Records. With respect to such reviews, Owner and its respective agents shall be
subject to the confidentiality covenants in Section 18.8.
Section 7.13 Limitation of Responsibility for Annual Operating Budgets. All
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Annual Operating Budgets are intended only to be reasonable estimates based on
Manager's best business judgment and Manager shall not be liable or responsible
in any event if any of the budgeted figures are not attained or there is any
variance between the actual revenues and expenditures and the amounts set forth
in any Annual Operating Budgets. Owner acknowledges that Manager has not made
any guarantees, warranty or representation of any nature concerning or related
to the amounts of Gross Gaming Revenue to be generated and Operating Expenses to
be incurred from the operation of the Facility during the Term of this
Agreement.
SECTION 7.14 Management. Subject at all times to the Operating Guidelines
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and those rights of Owner specifically provided in this Agreement. Manager shall
have the discretion and authority to determine operating policies and
procedures, standards of operation, staffing levels and organization, win
payment arrangements, standards of service and maintenance, food and beverage
quality and service, pricing, and other policies affecting the Casino, or the
operation thereof, to implement all such policies and procedures, and to perform
any act on behalf of Owner which Manager deems necessary or desirable in its
good faith business judgment for the operation and maintenance of the Casino and
the Facility on behalf for the account and at the expense of Owner. including
but not limited to the following, as applicable:
(i) Manager shall negotiate and consummate such agreements necessary for the
furnishing of utilities, services, security, and supplies for the maintenance of
utilities, services, security, and supplies for the maintenance and operation of
the Casino.
(ii) If consistent with the Development Plan, Manager may negotiate and
grant concessions and purchases for space in the Casino.
(iii) Manager shall have sole authority to make all repairs, replacements,
and improvements which are necessary or appropriate.
Manager shall report directly to the Board of Directors of Owner as well as to
the Board of Directors of Century Casinos, Inc. on all matters.
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SECTION 7.15 Licenses. Permits, Reports and Accreditation.
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(a) Manager shall use its best efforts to apply for, process, obtain and
maintain all Manager Operating Permits and, to the extent requested by Owner,
Owner Operating Permits, in a manner and within the time periods that will
permit the Facility to be operated on a continuous and uninterrupted basis after
the Opening Date. If reasonably requested by Owner, Manager shall (i) apprise
Owner of the need to renew, reapply or requalify for any Owner Operating Permits
and filing any reports relating thereto or required by any Governmental
Authority, and (ii) assist Owner in processing all such matters in a timely
fashion. All reasonable out-of-pocket costs and expenses reasonably necessary to
obtain and maintain Manager Operating Permits shall be reimbursable by Owner and
shall constitute Operating Expenses. Owner shall provide all required
information for all of the above promptly upon request and such information
shall be accurate.
(b) If Owner fails to apply (or fails to request that Manager apply (on
behalf of Owner) for a necessary Owner Operating Permit, and Manager makes a
good-faith determination that such failure jeopardizes the ability to operate
the Facility on a continuous and uninterrupted basis after the Opening Date,
then Manager may take all necessary or desirable steps to obtain the Owner
Operating Permit on behalf of Owner and Owner hereby grants Manager an
irrevocable power of attorney, which Owner acknowledges is coupled with an
interest, to implement the foregoing. Manager shall be reimbursed by Owner for
all expenses incurred in obtaining such Owner Operating Permit.
SECTION 7.16 Government Regulations. Upon five (5) Business Day's written
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notice to Owner, Manager shall be permitted to contest the validity and/or
application of any Law or Governmental Requirement pertaining to Gaming
Operations before any court or appropriate administrative body unless Owner
shall object to such action in writing during said notice period.
SECTION 7.17 Legal Actions. All matters of a legal nature involving the
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Facility, shall be handled by legal counsel selected by Manager and approved by
Owner (such legal counsel is hereinafter referred to as "Approved Legal
Counsel") Manager shall notify Owner in writing of the commencement of any legal
action or proceeding concerning the Facility as soon as practicable after
Manager receives actual notice of the commencement of such legal action which
could reasonably be anticipated to involve liability or damage to Owner for
which Manager reasonably anticipates liability. Notwithstanding the foregoing.
Manager shall notify Owner immediately of any action filed against the business,
the Facility, Owner, Manager or the Casino which could result in seizure of the
Casino. Except with respect to those legal matters in which Owner advises
Manager it desires to be directly involved, Manager shall be responsible for
retaining on behalf of Owner the Approved Legal Counsel to take any reasonable
or necessary legal actions to protect the assets of the Facility and to insure
compliance with the contractual obligations of others and all Governmental
Requirements. In any legal action or proceeding for damages in which Owner is to
be the plaintiff or complainant, then Manager may not commence such legal action
or proceeding without first notifying Owner in writing. Owner shall, by written
notice to Manager, within five (5) days of the date of such notice, consent to
the commencement of such legal action or proceeding or provide Manager with a
good faith material basis for not commencing such legal action or proceeding.
SECTION 7.18 Accounting Services. Manager shall establish and maintain
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accounting systems, internal controls, and reporting systems in accordance with
the Operating Guidelines that are (i) consistent in all material respects with
customary policies and procedures used by Managers' Affiliates engaged in such
business and (ii) which comply with all Governmental Requirements and
requirements of Gaming Authorities and has obtained all Gaming Authority
approvals which Owner or Manager are required to obtain.
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SECTION 7.19 Bank Accounts. Owner shall establish one or more bank accounts
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that are necessary for the operation of the Facility at various banking
institutions chosen by Manager and reasonably acceptable to Owner (such accounts
are hereinafter collectively referred to as the "Bank Accounts"). The accounts
shall be in the name of Owner, but, except as provided in the following
sentence, Manager's designees shall be the only persons authorized to draw upon
the Bank Accounts. If Manager has committed an Event of Default which continues
during the term of any applicable cure periods, or if Manager has acted in bad
faith with respect to Owner's funds in the Bank Accounts, then Owner shall have
the right to assume sole control of the Bank Accounts upon two (2) Business
Days' prior written notice to Manager, whereupon the signatures of two (2)
members of Owner shall be required to draw upon the Bank Accounts. Manager's
designated signatories must be covered by the fidelity insurance described in
Section 14.1. The Bank Accounts shall be interest bearing accounts if such
accounts are reasonably available and all interest thereon shall be credited to
the Bank Accounts. All gross revenues received by Manager from the operations of
the Facility shall be deposited in the Bank Accounts and Manager shall pay out
of the Bank Accounts, to the extent of the funds therein, from time to time, all
Operating Expenses and other amounts required by Manager to perform its
obligations under this Agreement. All funds in the Bank Accounts shall be
separate from any other funds and Manager may not commingle any of Managers
funds with the funds in the Bank Accounts. Owner shall bear the risk of the
insolvency of any financial institution holding such Bank Accounts.
SECTION 7.20 Credit. All decisions regarding the granting and collection of
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credit, if allowed under the Act, shall be governed by the Credit Policy- to be
developed by Manager and approved by Owner. All credit shall be for the account
of and at the sole risk of Owner.
SECTION 7.21 Sales Taxes. Etc. If reasonably requested by Owner and agreed
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to by Manager, Manager shall use its best efforts to comply in all material
respects with all applicable Laws with respect to collecting, accounting for and
paying to the appropriate Governmental Authorities all applicable excise, sales
and use taxes and other similar governmental charges resulting from the
operation of the Casino.
SECTION 7.22 Emergency Expenditures. Without limiting the generality of
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this Section 7.22, in the eve at that a condition exists in, on, or about the
Facility of a nature reasonably believed by Manager to be an emergency,
including structural repairs, which Manager believes requires immediate repair
to preserve and protect the Facility and assure its continued operation or to
protect the safety and welfare of the Facility customers, guests or employees,
Manager, on behalf of and at the expense of Owner, shall take all reasonable
steps and make all reasonable expenditures necessary to repair and correct any
such condition, whether or not provisions have been made in the applicable
budgets for any such emergency expenditures. Expenditures made by Manager in
connection with an emergency shall be paid from the Bank Accounts. Owner shall
replenish finds paid from the Bank Accounts with any insurance proceeds received
by Owner with respect to such emergency condition or situation, and Owner shall
replace any difference between the insurance proceeds and the amount used for
such emergency from the Bank Accounts. Manager shall promptly notify Owner of
any emergency expenditures made pursuant to this Section 7.22.
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SECTION 7.23 Expenditures Required for Compliance with Law. Without
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limiting the generality of this Article VII, if at any time during the Term of
this Agreement repairs, additions, changes or corrections in the Facility of any
nature shall be required by reason of any Governmental Requirements now or
hereafter in force, such repairs, additions, changes or corrections shall be
made at the direction of Manager and shall be paid for by Owner. Manager shall
inform Owner of the existence of any Governmental Requirements which require
expenditures under this Section 7 23 as soon as practicable after learning of
such Governmental Requirements and the repairs, additions, changes or
corrections which Manager believes are required to be- made and the estimated
expenditures to be incurred. If compliance with any Governmental Requirements
that are the subject of this Section 7.23 will require expenditures which will
make the continued operation of the Facility uneconomical to Owner, Owner shall
have the right to cease operating the Facility (to the extent the cessation of
Facility operations will not result in any material liability to Manager) and in
connection therewith, to terminate this Agreement, which termination shall not
constitute a Default by Owner hereunder. In the event Owner reopens the Facility
or the Casino at a site different from the Site within three hundred sixty-five
(365) days after so ceasing operations, Manager shall have the option to be
reinstated and resume as Manager in accordance with the terms of this Agreement.
SECTION 7.24 Marketing Programs. Manager shall develop a marketing program
------------------
to implement the marketing plans contained in each Annual Operating Plan.
Manager may, at its option, also provide for the Facility, or seek to cause an
Affiliate to so provide the followings (i) joint marketing or advertising with
similar properties owned or operated by Affiliates of Manager and (ii) major
entertainment, sporting events or special attractions sponsored by the Facility.
Manager shall use its best efforts to cooperate with Owner in the development of
any joint marketing efforts which it determines at its option to provide for the
Facility.
SECTION 7.25 Limitations on Use of Names and Logos. Owner acknowledges that
-------------------------------------
neither this Agreement nor the exercise of any of Owner's rights in respect of
the Facility. shall give Owner any rights to the names "Century" or "Legends".
SECTION 7.26 Manager's Expenses. In connection with Manager's obligations
-------------------
under this Agreement and with Owner's prior approval, Manager may at its option
arrange for Century or its Affiliates to provide such reasonable supervisory,
accounting, administrative and operational services to Manager as are generally
provided by Century or its Affiliates to its other gaming units. Owner shall pay
Century (or its Affiliates, as the case may be) a commercially reasonable hourly
rate for such services and shall bear the cost of reasonable travel and related
expenses for any staff of Century or its Affiliates visiting the Facility for
purposes of providing such services to the Facility.
SECTION 7.27 Pricing for Hotel Rooms. Food & Beverage. Etc. The parties
-----------------------------------------------
agree that Annexure A (outlining pricing for complimentary hotel rooms, food &
beverage, etc.) shall be an integral part of this Agreement.
24
ARTICLE VIII
DEFAULT/STEP-IN RIGHTS
----------------------
SECTION 8.1 Default or Event of Default. The occurrence of any one or more
------------------- -------
of the events described in Sections 8.2 and 8.3 which is not cured within the
time permitted shall constitute a default under this Agreement (hereinafter
referred to as a "Default" or an Event of Default) as to the party failing in
the performance or effecting the breaching act.
SECTION 8.2 Manager's Defaults. Manager shall have committed a "Manager's
------------------
Default" if Manager shall:
(i) file a voluntary petition in bankruptcy or insolvency, or a petition
for relief or reorganization under any bankruptcy or insolvency law;
(ii) consent to an involuntary petition in bankruptcy or fail to vacate
any order approving an involuntary petition within sixty (60) days from the date
of entry thereof;
(iii) have entered against it an order for relief under any bankruptcy
code (or any successor statute) or any other order, judgment or decree by any
court of competent jurisdiction on the application of a creditor adjudicating
Manager insolvent or approve a petition seeking reorganization or appointing a
receiver, trustee, custodian or liquidator of all or a substantial part of
Manager's assets, and such order, judgment or decree continues unstayed and in
effect for a period of ninety (90) days;
(iv) have appointed for it a receiver or custodian of or for all or a
substantial portion of the assets of Manager unless removed within sixty (60)
days:
(v) assign for the benefit of its creditors all or any substantial part
of its assets, or consent to the appointment of a receiver, liquidator,
custodian or trustee in bankruptcy for Manager of all or any substantial part of
its assets;
(vi) fail to materially perform or materially comply with any of the
covenants, agreements, terms or conditions contained in this Agreement to
Manager (other than monetary payments) and such failure shall continue for a
period of forty-five (45) days after written notice thereof from Owner to
Manager specifying in detail the nature of such failure, or, in the case such
failure is of a nature that it cannot, with due diligence and good faith, be
cured within forty-five (45) days, if Manager fails to proceed promptly and with
all due diligence and in good faith to cure the same and thereafter to prosecute
the curing of such failure to completion with all due diligence within ninety
(90) days thereafter; or
25
(vii) take or fail to take any action to the extent required of Manager
under this Agreement that creates a default under any- Governmental Requirement
unless Manager cures such default or breach prior to the expiration of
applicable notice, grace and cure periods, if any.
If the only result of the failure by Manager to act is a monetary loss to Owner
which is not otherwise capable of being cured by Manager, then Manager shall not
be in Default if Manager reimburses Owner for such losses within thirty (30)
Business Days of incurring such loss or otherwise protects Owner against such
loss in a manner reasonably acceptable to Owner.
SECTION 8.3 Owner's Default. Owner shall have committed an "Owner's
----------------
Default" if Owner shall:
(i) file a voluntary petition in bankruptcy or insolvency, or a petition
for relief or reorganization under any bankruptcy or insolvency law;
(ii) consent to an involuntary petition in bankruptcy or fail to vacate
any order approving an involuntary petition within sixty (60) days from the date
of entry thereof;
(iii) have entered against it an order for relief under any bankruptcy
code (or any successor statute) or any other order, judgment or decree by any
court of competent jurisdiction on the application of a creditor adjudicating
such Owner insolvent or approve a petition seeking reorganization or appointing
a receiver, trustee, custodian or liquidator of all or a substantial part of
Owner's assets, and such order, judgment or decree continues unstayed and in
effect for a period of ninety (90) days;
(iv) have appointed for it a receiver or custodian of or for all or a
substantial portion of the assets of Owner unless removed within sixty (60)
days;
(v) assign for the benefit of its creditors all or any substantial part
of its assets. or the consent to the appointment of a receiver, liquidator,
custodian or trustee in bankruptcy for all or any substantial part of its
assets:
(vi) fail to make any monetary payment required under this Agreement,
including, but not limited to, the Management Fee or Owner's Advances, on or
before the cue date recited herein and said failure continues for five (5)
Business Days after written notice front Manager specifying such failure: or
(vii) fail to perform or materially comply with any of the other
covenants. agreements, terms or conditions contained in this Agreement
applicable to Owner (other than monetary payments) and such failure shall
continue for a period of forty-five (45) days after written notice thereof from
Manager to Owner specifying in detail the nature of such failure, or, in the
case such failure is of a nature that it cannot, with due diligence and good
faith, cure within forty-five (45) days, if Owner fails to proceed promptly and
with all due diligence and in good faith to cure the same and thereafter to
prosecute the curing of such failure to completion with all due diligence within
ninety (90) days thereafter.
26
SECTION 8.4 Delays and Omissions. No delay or omission as to the exercise
--------------------
of any right or power accruing upon any Event of Default shall impair the
non-defaulting party's exercise of any right or power or shall be construed to
be a waiver of any Event of Default shall impair the non-defaulting party's
exercise of any right or power or shall be construed to be a waiver of any Event
of Default or acquiescence therein.
SECTION 8.5 Owner's Remedies. Upon the occurrence of a Manager's Default,
----------------
Owner shall be entitled to (i) terminate this Agreement by Owner's written
notice of termination to Manager and such termination shall be effective
forty-five (45) days after delivery of such notice; (ii) obtain specific
performance of Manager's obligations hereunder and injunctive relief, or (iii)
exercise Owner's step-in rights as described in Section 8.7 herein.
SECTION 8.6 Manager's Remedies. Upon the occurrence of an Owner's Default,
------------------
Manager shall be entitled to (i) terminate this Agreement by Manager's written
notice of termination to Owner, and such termination shall be effective
forty-five (45) days after delivery of such notice or such time as a new manager
is appointed, whichever is earlier; or (ii) obtain specific performance of
Owner's obligations hereunder and injunctive relief In the event of a
termination of this Agreement pursuant to clause (i) of this Section 8.6,
Manager shall be entitled to accelerated payment of all of its projected
Management Fees for the remainder of the then applicable ten year period this
Agreement or thirty-six (36) month period following the termination date of this
Agreement, whatever is longer, such projected Management Fees to be based on
last year's Management Fee increased by 15% (fifteen percent) per annum. The
parties hereby agree that the amount payable as liquidated damages described
above is a reasonable estimate of the amount of damages for termination of this
Agreement arising out of such Owner Default and the termination of this
Agreement and upon payment thereof Manager shall have no further rights, claims
or entitlement to damages as a consequence of such termination.
SECTION 8.7 Step-In Rights.
---------------
(a) If Owner's funds are available, and Manager fails to pay when due any
amount which it is Manager's responsibility to pay from such Owner's funds
pursuant to this Agreement, then Owner, after five (5) days written notice to
Manager with respect to any Operating Expense, and with respect to any-
non-Operating Expense with such notice, if any as may be reasonable under the
circumstances (except in the event that Manager has exposure to potential
liability in connection with making such payments in which case Owner shall give
Manager five (5) days written notice), may (but shall not be required to) pay
such amounts (including fines, penalty, interest and late payment fees) and take
all such action as may be necessary in respect thereof. Manager shall, following
such payments by Owner, promptly reimburse Owner from the Bank Accounts to the
extent funds are available in the amount which Manager failed to pay when due.
27
(b) If Manager fails to take any action which it is Manager's
responsibility under this Agreement to take, and the result is to expose Owner
to a material loss or Facility patrons to a material risk of physical safety,
then Owner, upon five (5) days' written notice to Manager (except in any
emergency in which case Owner shall give Manager such notice, if any, as is
reasonable under the circumstances), may (but shall not be required to) take
such actions as may be necessary to protect Owner's assets from such a material
loss and/or to protect the Facility customers. Manager shall, following any
payments by Owner made with respect to such actions, promptly- reimburse Owner
from the Bank Accounts, to the extent funds are available, the amount which
Owner has expanded.
SECTION 8.8 Remedies Nonexclusive. No remedy granted to either Owner or
----------------------
Manager under Sections 8.5, 8.6 and 8.7, respectively, is intended to be
exclusive of any other remedy herein or by General Law provided, but each shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity.
SECTION 8.9 Manager Responsibilities. In the event of termination of this
------------------------
Agreement. Manager will relinquish control of the Bank Accounts. Manager shall
make its Senior Staff available to Owner for a period of sixty (60) days at
Owner's expense to ensure an orderly and uninterrupted transition of the
management of the Facility. Owner shall reimburse Manager for all out-of-pocket
expenses, personnel costs and allocated overhead incurred during said sixty (60)
day period.
28
ARTICLE IX
CERTAIN RIGHTS AND RESPONSIBILITIES OF OWNER
------- ------ --- ---------------- -- -----
SECTION 9.1 Owner's Advances. Owner shall advance to Manager on a timely
-----------------
and prompt basis immediately available funds with which to conduct the affairs
of and maintain the Facility (hereafter referred to as "Owner's Advances") as
set forth in this Agreement and as otherwise provided hereunder.
SECTION 9.2 Development Plan Funding.Owner shall timely fund to Manager the
-------------------------
initial amounts agreed to by the parties set forth in the Development Plan or
any revisions thereof approved by Owner. In the event that Owner or Manager
anticipates a delay in the opening of the Facility beyond the Estimated Opening
Date, each shall be obligated to immediately notify the other in writing and
Owner shall, at the request of Manager, at any time and from time to time,
deposit with Manager any additional amounts that are reasonably- necessary to
pay the additional Pre--Opening Expenses attributable to the delay, which shall
include, without limitation, wages and other expenses relating to the Facility
personnel already employed
SECTION 9.3 Initial Cash Needs Thirty (30) days prior to the Estimated
--------------------
Opening Date, Owner shall fund to Manager the Working Capital necessary to
commence operating the Facility, as established by Manager.
SECTION 9.4 Working Capital Dome the Term of this Agreement, within five
----------------
(5) business Days after receipt of written notice front Manager, Owner shall
fund Owner's Advances adequate to insure that the Working Capital set forth in
the applicable Annual Operating Plan as revised pursuant to the provisions of
Section 7, is sufficient to support the uninterrupted and efficient ongoing
operation of the Facility. The written request for any additional Working
Capital shall be submitted by Manager to Owner on a monthly basis based on the
Financial Statements and the applicable Annual Operating Plan as revised
pursuant to the provisions of Section 7.9.
29
SECTION 9.5 Payment of Expenses. Manager shall pay from Net Gaming Proceeds
-------------------
the following items in the order of priority listed below, subject to the
General Laws, on or before their applicable due date:
(i) Operating Expenses (including the Management Fee), expenditures
permitted pursuant to Sections 7.22 and 7.23, and other payments due under the
Purchase; and
(ii) If applicable, payments due on any Purchase or other financing
arrangements relating to the FF&E, and any other expenditures permitted by any
Annual Operating Plan; and
(iv) If applicable, any other taxes, expenses or fees which Owner is
obligated to pay out of Net Gaming Proceeds by contract and Owner has asked
Manager to administer such payments (as long as such contract has been brought
to the attention of Manager) or under law.
Manager's responsibility to make any of the foregoing payments is subject to and
conditioned upon Owner making available funds sufficient to make such payments
from Net Gaming Proceeds or otherwise in the order set forth above. Owner shall
have the right to elect to pay directly (rather than have Manager pay) rental,
fees and other payments due under the Purchase, or debt service upon five (5)
days' written notice to Manager and in such event Manager shall disburse to
Owner from gross revenues (subject to the prior payment of expenses listed in
clause (i) above) funds in such amounts and at such times as may be necessary to
pay such expenses on or before the date such expenses are due, subject to
various Casino Bankroll and Working Capital requirements and the availability of
such funds otherwise. Owner shall timely make all payments under this Section
9.5 where Owner has requested the right to make such payments directly and if
Owner fails to make such payments, Owner's right to make such payments directly
shall cease until Owner has brought all such obligations current. Nothing in
this Section 9.5 shall be deemed to relieve Owner from its obligations to pay
Management Fees in a timely manner in accordance with Article IV or to comply
with the time requirements set forth in Articles IV and VIII or to pay any other
obligation of Owner under this Agreement. Notwithstanding anything to the
contrary in this Agreement, Manager shall have the right to offset any amounts
due from Manager, if any, under this Agreement against any unpaid Management
Fee.
SECTION 9.6 Casino Bankroll In addition to the initial cash needs described
---------------
in Section 9.3 herein, at least fifteen (15) days prior to the Estimated Opening
Date. Owner shall provide the initial Casino Bankroll and shall maintain such
amount throughout the Term of this Agreement. If the Casino Bankroll required to
be provided by Owner pursuant to this Section 9.6 is not sufficient to
adequately fund Casino Gaming Activities or is depleted as a result of losses,
Owner shall fund Casino Bankroll in an amount sufficient to carry on the Casino
Gaming Activities and in a manner which complies with Governmental Requirements.
30
SECTION 9.7 Optional Funding by Manager. In the event Owner fails to fund
---------------------------
any Owner's Advance within the specific time period set forth in this Article IX
or make any other payment required to be made by Owner hereunder, or if sums are
required prior to such time as Owner is obligated to advance the same, Manager
may, at its sole option, upon five (5) days' written notice to Owner, without
assuming any liability for the payment of any account, advance the amount
required, or any portion thereof, on behalf of Owner. The amount advanced and
paid on behalf of Owner ("Manager's Advances") shall be reimbursed on demand and
shall bear interest at the Default Rate until Manager is reimbursed in full,
including all accrued interest. The funding of any Manager's Advance does not in
any manner waive any rights or remedies granted to Manager under the terms of
this Agreement, including the right to declare Owner in Default as provided in
Article VIII and to proceed with any remedies granted under Article VIII.
SECTION 9.8 Cooperation of Owner and Manager. Owner and Manager shall
------------------------------------
cooperate fully with each other during the Term of this Agreement to facilitate
the performance by Manager of Manager's obligations and responsibilities set
forth in this Agreement and to procure and maintain all Construction and
Operating Permits. Owner shall provide Manager with such information pertaining
to the Purchase, Governmental Requirements and the Facility necessary to the
performance by Manager of its obligations hereunder as may be reasonably and
specifically- requested by Manager from time to time.
ARTICLE X
LICENSE PROTECTION
------- ----------
SECTION 10.1 Owner Denial. If at any time (i) either Owner or any Person owning
------------
any partnership interest or any of the issued and outstanding stock of (or
beneficial interest in) either Owner or an Affiliate of Owner, or a partner,
limited partner, officer or director of either is (x) denied a license, found
unsuitable, or is denied any other Approval with respect to the Facility or any
other gaming operation anywhere by a Gaming Authority because of such Person's
misconduct or association with any other Person who is reputed to be controlled
by Persons known to be engaged in criminal activities, or (y) is required by any
Gaming Authority to apply for an Approval and does not apply within any required
time limit (including extensions, if any), wrongfully withdraws any application
for Approval, and if the result of the foregoing has or would have an adverse
affect on Manager or any Affiliate of Manager with respect to its operation, or
ownership of a casino under any Gaming Authority or does or would materially
delay obtaining any Approval affecting Manager or any Affiliate of Manager, or
(ii) any Gaming Authority commences any suit or proceeding against either
Manager or an Affiliate or to terminate or deny any right or Approval of Manager
or any Affiliate because of a final determination of unsuitability or similar
finding concerning Owner, any Affiliate of Owner or any Person owning a
beneficial interest in Owner or an Affiliate of Owner or (iii) the compliance
committee of Manager reasonably determines that Owner, or any Person owning any
partnership interest or any of the issued and outstanding stock of (or
beneficial interest in) Owner or an Affiliate of Owner may jeopardize Approvals
held by Manager or its Affiliates, or the current status of Manager or its
Affiliates with any Gaming Authority (all of the foregoing events described in
clauses (i)-(iii) above are collectively referred to as an "Owner Denial"), said
Owner Denial shall be a Default and shall entitle Manager to its remedies under
Article VIII. Said Owner Denial shall not be an Event of Default, however,
providing Owner ends such association within such period of time, if any, as the
Gaming Authority and/or Manager's compliance committee gives for terminating
such association. Owner and all Persons associated with Owner shall promptly,
and in all events within any time limit established by law or such Gaming
Authority, furnish each Gaming Authority any information requested by such
Gaming Authority and shall otherwise fully cooperate with all Gaming Authorities
including any required inspections.
▇▇
▇▇▇▇▇▇▇ ▇▇.▇ ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Licensing. Manager shall apply for and
--------------------------------
pursue all Manager Operating Permits or licenses, and use best efforts to assist
Owner in obtaining Owner Operating Permits or licenses, as expeditiously as
possible. Manager shall not be obligated to accept any conditions to obtain any
Manager Operating Permit which imposes any liabilities, financial obligations or
performance obligations not required by this Agreement.
SECTION 10.3 Manager Denial. If at any time (i) either Manager, any
---------------
Affiliate of Manager or any Person associated in any way with Manager is denied
a license, found unsuitable, or is denied any other Approval with respect to the
Facility or any other gaming operation by a Gaming Authority or is required by
any Gaming Authority to apply for an Approval and does not apply within any
required time limit (including extensions, if any), wrongfully withdraws any
application for Approval, and if the result of the foregoing has or would have
an adverse effect on Owner or any Affiliate of Owner or any officer or director
of Owner or its Affiliates with respect to such person's or its operation of a
casino under any Gaming Authority, or does or would materially delay obtaining
any Approval affecting Owner or any Affiliate of Owner, or (ii) any Gaming
Authority commences any suit or proceeding against either Owner or any Affiliate
because of a final determination of unsuitability or similar finding concerning
Manager, any Affiliate of Manager or any Person owning a beneficial interest in
Manager (all of the foregoing events described in clauses (i) and (ii) above are
collectively referred to as a "Manager Denial"), said Manager Denial shall
entitle Owner to terminate this Agreement. If Owner exercises its right to
terminate this Agreement pursuant to this Section 10.3 solely as the result of
an association of Manager or any Person associated with Manager, this Agreement
shall not terminate if Manager ends such association within such period of time,
if any, as the Gaming Authority gives for terminating such association, Manager
and all Persons associated with Manager shall promptly, and in all events within
any time limit established by General Law or such Gaming Authority, furnish each
Gaming Authority any information requested by such Gaming Authority including
any required inspections. The purpose of this Section 10.3 is solely to protect
existing licenses of Owner and Owner's Affiliates and of their respective
officers and directors. This Section 10.3 does not apply to any-event described
above that does not jeopardize the continued viability of such licenses. Any
Manager Denial that is attributable in whole or in part to the acts or omissions
of Owner shall not entitle Owner to terminate this Agreement.
SECTION 10.4 Owner's South Africa Licensing. Owner shall timely obtain and
------------------------------
maintain any Owner Operating Permits the responsibility for the maintenance of
which Owner has not requested of Manager pursuant to this Agreement.
ARTICLE XI
OWNER'S COVENANTS AND REPRESENTATIONS
------- --------- --- ---------------
Owner makes the following covenants and representations to Manager, which
representations and covenants shall, unless otherwise stated herein, survive the
execution and delivery of this Agreement and the Opening Date and shall continue
to be true during the Term of this Agreement.
SECTION 11.1 Corporate Status. Owner is a company duly organized, validly
----------------
existing, and in good standing under the laws of South Africa and has full
corporate power to enter into this Agreement and execute all documents required
hereunder.
32
SECTION 11.2 Authorization The making, execution, delivery and performance
-------------
of this Agreement by Owner has been duly authorized and approved by all
requisite action of the Board of Directors of Owner, and this Agreement has been
duly executed and delivered by Owner and constitutes a valid and binding
obligation of Owner, enforceable in accordance with its terms.
SECTION 11.3 Other Agreements. Neither the execution and delivery of this
----------------
Agreement by Owner nor Owner's performance of its obligations hereunder will
result in a violation or breach of or constitute a default with respect to or
accelerate the performance required under any other agreement or obligation to
which Owner is a party or is otherwise bound or to which the Facility or any
part thereof is subject, and will not constitute a violation of any General Law
to which Owner or the Facility is subject.
SECTION 11.4 Documentation. If necessary to carry out the intent of this
-------------
Agreement, Owner agrees to execute and provide to Manager, on or after the date
hereof any and all other instruments, documents and agreements necessary to make
this Agreement fully and legally effective, binding and enforceable between the
parties hereto and as against third parties.
SECTION 11.5 Related Contracts. Owner shall cause the timely payment and
------------------
performance of all its obligations under the Purchase, loan documents and all
other contracts related to the development and operation of the Facility other
than such responsibilities as are imposed upon Manager pursuant to this
Agreement; provided, however, that Owner shall fund all such obligations to the
extent gross revenues are sufficient therefor.
ARTICLE XII
MANAGER'S COVENANTS AND REPRESENTATIONS
------------------- -------------------
Manager makes the following covenants and representations to Owner, which
covenants and representations shall, unless otherwise stated herein, survive the
execution and delivery of this Agreement and the Opening Date and continue to be
true during the Term of this Agreement.
SECTION 12.1 Corporate Status. Manager is a corporation duly organized,
-----------------
validly existing, and in good standing with full corporate power to enter into
this Agreement and execute all documents required hereunder.
SECTION 12.2 Authorization. The making, execution, delivery and performance
-------------
of this Agreement by Manager has been duly authorized and approved by all
requisite action of the Board of Directors of Manager, and this Agreement has
been duly executed and delivered by Manager and constitutes a valid and binding
obligation of Manager, enforceable in accordance with its terms.
SECTION 12.3 Other Agreements. Neither the execution and delivery of this
----------------
Agreement by Manager nor Manager's performance of its obligations hereunder will
result in a violation or breach of or constitute a default with respect to or
accelerate the performance required under any other agreement or obligation to
which Manager is a party or is otherwise bound and will not constitute a
violation of any General Law to which Manager is subject.
SECTION 12.4 Documentation If necessary to carry out the intent of this
-------------
Agreement, Manager agrees to execute and provide to Owner, on or after the date
hereof any and all other instruments, documents and agreements that may be
necessary to make this Agreement fully and legally effective, binding and
enforceable between the parties hereto and against third parties.
33
ARTICLEXIII
UNAVOIDABLE DELAYS
------------------
The provisions of this Article XIII shall be applicable if there shall
occur during the Term of this Agreement any (i) strike(s), lockout(s) or labor
dispute(s), (ii) inability to obtain labor or materials, or reasonable
substitutes therefor, (iii) acts of God, governmental restrictions, regulations
or controls, enemy or hostile governmental action, civil commotion, fire or
other casualty, (iv) delay attributable to the failure to obtain any
Construction Permit, Operating Permit or any Approval of any Governmental
Authority for reasons that are not the fault of or beyond the reasonable control
of the party obligated, or (v) other conditions similar to those enumerated in
this Article XIII beyond the reasonable control of the party obligated to
perform (collectively referred to as "Unavoidable Delay"). If Manager or Owner
shall, as the result of any Unavoidable Delay fail punctually to perform any
obligation on its part under this Agreement, then, upon written notice to the
other within five (5) Business Days of such event, such failure shall be excused
and not be a breach of this Agreement by the party claiming an Unavoidable
Delay, but only to the extent occasioned by such event. If any right or option
of either party to take any action under or with respect to the Term of this
Agreement is conditioned upon the same being exercised within any prescribed
period of time or at or before a named date, then such prescribed period of time
or such named date shall be deemed to be extended or delayed, as the case may
be, upon written notice, as provided above, for a time equal to the period of
the Unavoidable Delay. Notwithstanding anything contained herein to the
contrary, the provisions of this Article XIII shall not be applicable to the
time periods for satisfying Manager's or Owner's obligation to make any payments
to the other pursuant to the terms of this Agreement nor shall this Article
operate to extend any time period set forth in Article X.
34
ARTICLE XIV
INSURANCE
---------
SECTION 14.1 Operating Insurance
--------------------
(a) Owner shall procure all insurance coverages deemed necessary and
adequate by Manager (the "Required Coverage")
(b) The premiums for all insurance obtained in accordance with
this Section XIV shall be Operating Expenses
(c) Manager shall be required to provide the following:
(i) Prompt reporting of any incident or potential claim on or about the
premises:
(ii) Assist and cooperate in the adjustment of all claims;
(iii) Implementation and monitoring of all loss control practices as
required by Owner or various insurance companies; and
(iv) Advise Owner of any unsafe conditions or hazards brought to the
attention of Manager during the Term of this Agreement.
SECTION 14.2 Other Insurance. Owner shall procure and maintain at all times
---------------
during the Term of this Agreement insurance (subject to reasonable deductible
amounts as determined by Manager and as available and consistent with market
conditions) protecting the real and personal property of the Casino against
fire, with all risks coverage against fire, with all risk coverage against other
perils, including vandalism, malicious mischief, flood, hurricane, tornado,
earthquake, lightning, aircraft and explosion, and also including boiler and
machinery and business interruption with ordinary payroll coverage and such
other insurance as is required by the Purchase or the loan documents (excluding,
however, insurance described in Section 14.3) or commonly or prudently
maintained by owners of similar properties similarly used, in the full
replacement value at an agreed amount, including cost of debris removal and
increased cost of construction ("Property Insurance"). Owner shall obtain
builder's risk and ▇▇▇▇▇▇▇'▇ compensation, commercial general liability and
automobile liability c overage during all construction. Owner shall also obtain
all insurance necessary to insure the Casino as provided for in the Casino
Management Agreement. Owner shall also procure such additional kinds of coverage
that Manager determines shall be reasonable and prudent with respect to the
Facility or as reasonably required by lender(s) or the terms of the Purchase.
SECTION 14.3 Parties to be Covered by Insurance: Location of Policies. All
--------------------------------------------------------
policies of insurance procured pursuant to Sections 14.1, 14.2 and any
Governmental Requirements shall name Manager (and, if such insurance is procured
by Century, Owner) as an additional insured by policy endorsement where
permitted by the terms and conditions of the various policies but in all events
with respect to all liability insurance. All policies shall name such other
parties as may be required by the loan documents, the Purchase and any
Governmental Requirements as the insured persons thereunder, as their respective
interests may appear, and shall provide that they shall not be canceled,
modified or denied renewal without at least thirty (30) days prior written
notice (or such longer period as is required by Law) to each party that is a
named or additional insured thereunder. Owner shall not be required to cause any
Person other than those Persons required to be named pursuant to this Section
14.3 to be insured by any insurance policy until thirty (30) days after Owner
has received notice of such Person's interest.
SECTION 14.4 Rights of Manager and Owner to Receive Information on
------------------------------------------------------------
Insurance Matters. Owner and Manager shall furnish each other with certificates
----------
of insurance, evidencing that the insurance required herein has been procured,
no later than thirty (30) days after the approval of the Development Plan. Any
binder issued as interim proof must cc replaced within thirty (30) days of
issuance with a certificate of insurance indicating a policy number.
35
SECTION 14.5 Termination of Agreement. In the event of the termination of
------------------------
this Agreement for any reason. Owner shall, at Owner's sole cost and expense,
continue to name Manager as an additional insured on the liability insurance
coverage required by this Agreement following the date of the termination of
this Agreement, provided that Owner's obligations under this sentence are
subject to the availability of such coverage from the existing insurance
carrier. Owner shall provide Manager with evidence of the foregoing coverages
following the date of the termination of this Agreement by the delivery of
certificates of insurance evidencing the current in place coverage, together
with such other information as may be reasonably requested, from time to time,
by Manager.
SECTION 14.6 Other Insurance Requirements. All the insurance required under
----------------------------
this Agreement shall be issued by insurance companies authorized to do business
in South Africa with a financial rating of at least an A- status as rated in the
most recent edition of Best Insurance Reports, or an equivalent rating by a
responsible company providing similar services if Best Insurance Reports ceases
to be regularly published.
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ARTICLE XV
DAMAGE AND CONDEMNATION
---------- ------------
SECTION 15.1 Minor Casualty. In the event of a Minor Casualty, Manager
---------------
shall repair any damage or destruction at Owner's sole cost and expense.
SECTION 15.2 Major Casualty. Major Condemnation. In the event of a Major
-----------------------------------
Casualty or a Major Condemnation, this Agreement shall remain in full force and
effect if the Casino or the Facility is repaired or restored within one (1) year
from the date of the Major Casualty or the Major Condemnation. If not repaired
or restored within one year, Owner shall pay to Manager the greater of a sum
equivalent to five percent (5%) of all insurance monies received or the
projected Management Fees for the remainder of this Agreement. Such projected
Management Fees shall be equal to the last year's Management Fee increased by
15% (fifteen percent) per annum.
SECTION 15.4 Minor Condemnation. In the event a Minor Condemnation occurs,
------------------
this Agreement shall not terminate and Owner shall use the award to repair and
restore the Facility, including, without limitation, to the extent required
under the Purchase or the loan documents. Manager may separately claim for,
prove and receive an award for any separately compensable rights of Manager that
are taken in any such condemnation action.
37
ARTICLE XVI
INDEMNIFICATION
---------------
Section 16.1 Owner lndemnitv. Owner hereby covenants and agrees to
----------------
indemnify, save, and defend at Owner's sole cost and expense and hold harmless.
Manager and its officers, directors and Affiliates (collectively, "Owner
Indemnitees"), from and against the full amount of any and all Losses. The term:
"Losses" shall include, but not be limited to, any and all liabilities, claims,
suits, administrative proceedings, losses, damages or costs, which may be
asserted against an Owner Indemnitee arising from, or relating to the financing,
construction or operation of the Facility and shall include expenses of defense
including, without limitation, attorneys' fees. The term "Losses" also includes
losses arising out of the negligence or strict liability of any Owner
Indemnitee. Each Owner Indemnitee will promptly notify Owner of such action,
suit or proceeding which relates to any matter covered by the indemnity in this
Section 16.1.
SECTION 16.2 Manager Indemnity. Manager hereby covenants and agrees to
------------------
indemnify, save and defend, at Manager's sole cost and expense, and hold
harmless, Owner and its officers and directors (collectively, "Manager
Indemnitees") from and against liabilities, claims, losses, damages, costs or
expenses that may be asserted against a Manager Indemnitee solely arising from
or relating to the criminal misconduct or fraud of Manager in breach of any of
its duties and obligations under this Agreement. Owner will promptly notify
Manager of such action, suit or proceeding which relates to any matter covered
by the indemnity in this Section 16.2.
SECTION 16.3 Special Environmental Indemnity. Owner agrees to indemnify,
--------------------------------
defend, reimburse and hold harmless Manager from and against any and all
Environmental Damages arising from the presence of Hazardous Materials upon,
about or beneath the Site, or migrating to or from same, or arising in any
manner whatsoever out of the violation of any Environmental Requirements
pertaining to the Site, whether or not arising out of Manager's negligence, or
the breach of any warranty or covenant or the inaccuracy of any representation
of Owner contained in this Agreement.
SECTION 16.4 Legal Fees. Etc.: Procedures. Each indemnitor under this
-------------------------------
Article XVI shall reimburse each indemnitee for any legal fees and costs,
including reasonable attorneys' fees and other litigation or proceeding
expenses, even if the claim is groundless, false, or fraudulent, reasonably
incurred by such indemnitee in connection with investigating or defending
against Losses with respect to which indemnity is provided hereunder; provided,
however, that an indemnitor shall not be required to indemnify an indemnitee for
any payment made by such indemnitee to any claimant in settlement of Losses
unless such settlement has been previously approved by the indemnitor. If Losses
are asserted, or if any action or suit is commenced with respect thereto, for
which indemnity may be sought against an indemnitor hereunder, the indemnitee
shall notify the indemnitor in writing within ten (10) days after the indemnitee
shall have had actual knowledge of the assertion or commencement of the Losses
or a claim which could give rise to Losses, which notice shall specify in
reasonable detail the matter for which indemnity may be sought. The indemnitor
shall have the right, upon notice to the indemnitee given within thirty (30)
days following its receipt of the indemnitee's notice (or shorter period if such
notice specifies such shorter period and provides reasonable reason therefor),
to take primary responsibility, for the prosecution, defense or settlement of
such matter, including the employment of counsel chosen by the indemnitor with
the approval of the indemnitee. which approval shall not be unreasonably
withheld or delayed, and payment of expenses in connection therewith. The
indemnitee shall provide, without cost to the indemnitor, all relevant records
and information reasonablv required by the indemnitor for such prosecution,
defense or settlement and shall cooperate with the indemnitor to the fullest
extent possible The indemnitee shall have the right to employ its own counsel in
any matter with respect to which the indemnitor has elected to take primary
responsibility for prosecution (without regard to Section 7.17), defense or
settlement, but the fees and expenses of such counsel shall be the expense of
the indemnitee except when indemnitee has engaged its own counsel due to a
conflict of interest between indemnitors and indemnitees interests in which case
such fees and expenses shall be paid in accordance with this Section 16.4.
38
ARTICLE XVII
RELATIONSHIP, AUTHORITY AND FURTHER ACTIONS
------------- --------- --- ------- -------
SECTION 17.1 No Joint Venture or Ownership. Nothing contained in this
---------------------------------
Agreement nor any. acts of the parties shall be deemed or construed by the
parties or by any third party as (i) creating the relationship of a partnership
or joint venture between the parties to this Agreement, or (ii) creating or
vesting any right, title, interest, estate, equity participation or beneficial
ownership interest in favor of Manager in or to the Facility except the
contractual rights created in Manager by this Agreement. Neither any provisions
contained herein nor any acts of the parties shall be deemed to create any
relationship between the parties other than the relationship of Owner and
Manager, as provided in this Agreement.
SECTION 17.2 Manager Affiliates. The parent of Manager and/or other
-------------------
Affiliates of Manager may provide service to, provide loans and funds to,
negotiate for, provide personnel to, and, from time to time take actions on
behalf of or for the benefit of Manager by direct dealings with Owner or those
acting for it. The parent corporation(s) or Affiliates of Manager shall not be
liable to Owner for obligations or liabilities of Manager.
SECTION 17.3 Arbitration. The exact same article about "Arbitration" of the
-----------
Hotel Management Agreement between Owner and ▇▇▇▇▇▇ King Hospitality (Pty) Ltd.,
which is of the same date as this Agreement, shall be incorporated into this
Agreement.
ARTICLE XXIII
MISCELLANEOUS
-------------
SECTION 18.1 Notices. All notices, demands, consents, requests, approvals,
-------
and other communications required or permitted hereunder shall be in writing and
shall be deemed effective only upon delivery (whether receipt is accepted or
refused) at the addresses set forth below (or at such other addresses as shall
be given in writing by any party to the others in accordance with this Section
18.1) Notices may be delivered by hand, registered or certified mail, return
receipt requested, or bonded private courier service.
If to Owner: _____________________
_____________________
Attention:
With a copy to: _______________________
_______________________
_______________________
If to Manager: Centurv Casinos Africa (Pty) Limited
c/o Deloitte & Touche
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Deloitte & Touche Place, The Woodlands
Woodland Drive, Woodmead, Sandton 2196
with a copy to: Century Casinos, Inc.
200 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
39
SECTION 18.2 Governing Law. This Agreement shall be governed by the laws of
-------------
South Africa, without giving effect to the principles of conflicts of law.
Notwithstanding the foregoing, this Agreement shall be deemed to include all
provisions required by the Act, and shall be conditioned upon the approval of
the Gaming Commission and the Enforcement Division. To the extent that any term
or provision contained in this Agreement shall be inconsistent with the Act, the
provisions of the Act shall govern. All provisions of the Act, to the extent
required by law to be included in this Agreement, are incorporated herein by
reference as if fully restated in this Agreement. The forum for any actions
between Owner and Manager will be a court of competent jurisdiction in the
Province where the Facility is located.
SECTION 18.3 Limitations on Rights of Third Parties. Except as otherwise
---------------------------------------
set forth herein, nothing in this Agreement is intended or shall be construed to
confer upon or give any Person, other than the parties hereto and their
respective successors, any rights or remedies under or by reason of this
Agreement or any transaction contemplated hereby. Provisions herein referring to
Century or its Affiliates are included herein for the benefit of such Persons.
SECTION 18.4 Assignments. 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 Manager's ability to assign its rights or
delegate its responsibilities under this Agreement to any directly or indirectly
controlled Affiliate of Manager. This Agreement shall not be assignable without
the prior approval of the Gaming Commission and the Enforcement Division.
SECTION 18.5 Unenforceabilitv. If any provision herein shall be
----------------
held invalid or unenforceable, such provision shall not affect the validity or
enforceability of any other provisions hereof all of which other provisions
shall, in such case. remain in full force and effect.
SECTION 18.6 Entire .Agreement and Amendments. This Agreement constitutes
--------------------------------
the entire understanding of the parties with respect to the subject matter
hereof and supersedes all other oral or written agreements between the parties.
This Agreement may not be amended, modified, altered or waived, in whole or in
part, except by a subsequent writing signed by each of the parties hereto. No
amendments may be made to this Agreement without the approval of the Gaming
Commission.
SECTION 18.7 Limitation on Damages. Neither party shall be liable to the
----------------------
other party for any consequential damages resulting from a breach hereof.
40
SECTION 18.8 Confidentialitv. Except as otherwise set forth in Article X,
---------------
both parties shall maintain confidentiality with respect to material
developments in the course of development and operation of the Facility subject
to Governmental Requirements and General Law. Except as required by any General
Law (including, without limitation, federal securities exchange and stock
exchange or NASD requirements) and Gaming Authorities, material confidential
information shall only be made available to such of a party's employees and
consultants as are required to have access to the same in order for the
recipient party to adequately use such information for the purposes for which it
was furnished. Any Person to whom such information is disclosed shall be
informed of its confidential nature and shall agree to keep it confidential as
provided herein. Information provided by one party to the other shall be
presumed confidential unless the information is (i) published or in the public
domain other than as a result of any action by the recipient thereof (ii)
disclosed to the recipient by a third party or (iii) presented to the recipient
under circumstances which clearly and directly indicate the delivering party
does not intend such information to be confidential.
SECTION 18.9 Securities Law Requirements. Owner acknowledges that Century's
---------------------------
parent company, Century Casinos, Inc. is a publicly held company and that
trading in its securities based on non-public information or unauthorized
disclosure or other use of material developments could expose Manager and Owner
to significant penalties. Owner shall take appropriate precautions to inform its
employees and independent contractors of such requirements. In the event Owner
or any Affiliate of Owner becomes a publicly-held company, Manager shall take
appropriate precautions to inform its employees and independent contractors that
trading in the securities of Owner or such Affiliate based on non-public
information or unauthorized disclosure or other use of material developments
could expose Owner and Manager to significant penalties.
SECTION 18.10 Payment of Fees. In the event of litigation or arbitration of
---------- ----
any dispute or controversy arising from, in, under or concerning this Agreement
and any amendments hereof including, without limiting the generality of the
foregoing, any claimed breach hereof any suit for accounting, or action for
dissolution, the prevailing party in such action or arbitration shall be
entitled to recover from the other party in such action or arbitration, such sum
as the court or arbitrator shall fix as reasonable attorneys' fees and expenses
incurred by such prevailing party.
SECTION 18.11 No Waiverof Default. No consent or waiver, express or
---------------------
implied. by any party to or of any breach or default by any other party in the
performance by the other of its obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance by the other party of the same or any other obligations or such
party hereunder. Failure on the part of any party to complain of any act or
failure to act of the other party or to declare the other party in default.
irrespective of how long such failure continues. shall not constitute a waiver
by any such party of its rights hereunder.
SECTION 18.12 Counterparts This Agreement may be execute in any number of
------------
Counterparts, all of which, when taken together, shall constitute one and the
same instrument.
SECTION 18.13 Future Deliveries. Each party will, from time to time,
------------------
execute and deliver such further instruments and do such further acts and things
as may be reasonably requested by any other party to carry out the intent and
purposes of this Agreement.
SECTION 18.14 Computation of Time. In the computation of any period of time
--------------- ----
provided for in this Agreement, the day of the act or event from which said
period of time runs shall be excluded, and the last day of such period shall be
included unless it is a Saturday, Sunday, or national United States or South
African holiday, in which case the period shall be deemed to run until the end
of the next day which is not a Saturday, Sunday, or national United States or
South African holiday. As used in this Agreement "Business Day" for any party
shall be a day which is not a Saturday, Sunday or national United States or
South African holiday.
41
SECTION 18.15 First Right of Refusal. During the term of this Agreement, so long
-------------- -------
as no events of default by Manager have occurred, Owner shall grant Manager the
first right of refusal on all of its and/or its Affiliates future gaming casino
projects. Such right shall be on terms similar to those outlined in this
Agreement. Manager shall have sixty (60) days upon receipt of notice from Owner
to either accept or reject an offer to act as manager of Owner's and/or Owner's
Affiliates future gaming casino project(s).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
FOR CALEDON CASINO BID COMPANY (PTY) LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇- Witness: ____________________________
-----------------
a duly authorized signatory Print name: ____________________
Position:Director__________
--------
Print name: ▇▇▇▇ ▇▇▇▇▇▇
FOR CENTURY CASINOS AFRICA (PTY) LTD
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Witness: ____________
----------------------
A duly authorized signatory Print name: ___________
Position: Vice Chairman
Print name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
42