Exhibit
4.8


 


EXECUTION
COPY


 


 


AGREEMENT IN PRINCIPLE


 


between


 


 


KERZNER INTERNATIONAL LIMITED,


 


and


 


NAKHEEL, LLC


 


Dated: September 22, 2003


 

















 


AGREEMENT IN PRINCIPLE


 


AGREEMENT IN PRINCIPLE
dated as of September 22, 2003 (this “Agreement”), between Kerzner
International Limited, a Bahamian corporation (“KZL”), and Nakheel, LLC
(“Nakheel”).


 


RECITALS


 


KZL is an internationally recognized resort and hotel
developer and operator with extensive experience in developing and operating
hotel and resort properties in various jurisdictions throughout the world.


 


Nakheel is a corporation incorporated in Dubai, the
UAE.


 


KZL owns and operates a 2,300 room resort in the
Bahamas which it operates under the brand “Atlantis”.


 


KZL and Nakheel believe that the development of an
Atlantis branded resort complex on Palm Island will assist in creating the
dynamic attractions necessary for the success of Palm Island, Jumeirah as a
tourist destination.


 


KZL and Nakheel desire to form a joint venture (the
“JV Entity”) to develop and own Atlantis, Palm Island.


 


AGREEMENT


 


NOW THEREFORE, in
consideration of the respective covenants and promises contained herein and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:


 


ARTICLE I


 


1.1                               Definitions.                                As
used in this Agreement, the following terms shall have the following meanings:


 


“Affiliate” means,
as to a party, any corporation or other entity or person controlled by, under
common control with, or which controls, directly or indirectly, such party.


 


“Board of Directors”
means the Board of Directors of the JV Entity which shall consist of two
members appointed by KZL (or one of its Affiliates) and two members appointed
by Nakheel.


 


2

















 


“Cash Contributions”
means the cash contributions of $60 million to be made to the JV Entity by each
of  KZL and Nakheel at the Closing.


 


“Closing” means
the closing of the transactions contemplated by this Agreement.


 


“Debt Financing”
means the Debt Financing with commercial banks with substantially the terms set
forth on Exhibit A.


 


“Developable Condition”
means that the Site shall be in such condition, including the supply of all
standard utilities and other infrastructure, such that it can support the
development and operation of the Project.


 


“Development Services
Agreement” means the Development Services Agreement to be dated as of the
Closing Date between KZL (or one of its Affiliates) and the JV Entity, pursuant
to which KZL (or one of its Affiliates) shall perform certain development
services for the JV Entity, such Development Services Agreement to have
substantially the commercial terms set forth on Exhibit B.


 


“Dollars” or “$”
means United States Dollars.


 


“Equity/Mez Financing”
means the private placement of Equity and Mezzanine Financing with
substantially the terms set forth on Exhibit C.


 


“Ground Lease”
means the Ground Lease Agreement pursuant to which the JV Entity shall lease
the Site from Nakheel, such Ground Lease to have the substantive terms set
forth on Exhibit D.


 


“JV Entity” means
the entity to be formed by KZL Member and Nakheel, which will own the Project
and all facilities located on the Site, such entity to be a limited liability
corporation or such other form as the parties may agree.


 


“JV Formation
Documents” means the certificate of incorporation, by-laws and
Shareholders’ Agreement or such other documents as may be agreed by the parties
pursuant to which KZL and Nakheel form the JV Entity, such JV Formation
Documents to include the provisions set forth on Exhibit E.


 


“KIML Palm Island
Account” means the bank account of KIML into which each of Nakheel and KZL
have deposited $500,000, and which will be used to pay for development costs
pending the formation of the JV Entity.


 


“License Agreement”
means the License Agreement pursuant to which the JV Entity will license from
KZL the name “Atlantis” for use with respect to the Project, which License
Agreement shall contain the provision set forth on Exhibit F.


 


3

















 


“Management Agreement”
means the Management Agreement to be dated as of the Closing Date between KZL
(or one of its Affiliates) and the JV Entity, pursuant to which KZL (or one of
its Affiliates) shall provide certain management services to include the
substantive terms set forth on Exhibit G.


 


“Operative Documents”
means the Development Services Agreement, JV Formation Documents, Ground Lease,
License Agreement and Management Agreement.


 


“Project” means
the Atlantis, Palm Island facilities to be developed on the Site as set forth
on Exhibit H.


 


“Site” means the
property listed on Exhibit I attached hereto on which the Project will be
developed.


 


“Special Site Services”
means any power, infrastructure, utility or services that the Site needs to
support the Project, which are in addition to the power, infrastructure,
utilities or services provided to the Site for a typical 1000-room hotel
project.


 


ARTICLE II


 


Joint Development


 


2.1                               Joint
Development of the Properties.   The
parties through the JV Entity agree to jointly own the Project and the
facilities to be developed on the Site in connection therewith.


 


2.2                               Project
Development.  As soon as possible after the occurrence of
the Closing, the JV Entity will begin the development of the Project on the
Site.


 


2.3                               Formation
of JV Entity.  As soon as
practicable after the execution of this Agreement, the parties shall cause the
JV Entity to be formed, and the equity interests of the JV Entity will be owned
50% by KZL and 50% by Nakheel. The JV Entity shall initially be capitalized
with an aggregate of $5 million of shareholders’ capital and shall have
governance and other provisions consistent with the JV Formation Documents.


 


2.4                               Nature
of Investor.  Each of the
parties may form a wholly owned subsidiary for the purpose of holding its
interest in the JV Entity.


 


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ARTICLE III


 


Closing


 


3.1                               Closing.  At the Closing, subject to the satisfaction
(or waiver by the applicable party) of the conditions set forth in Article IV
hereof, KZL and Nakheel shall execute and/or deliver, or cause its respective
Affiliates to execute and deliver, the following documents, and/or shall
undertake or cause its Affiliates to undertake, the following actions as
applicable:


 


(a)                                  each
of the Operative Documents shall be executed and delivered by the appropriate
parties thereto;


 


(b)                                 the
JV Entity shall be formed (if it has not previously been formed);


 


(c)                                  the
Cash Contributions shall be made to the JV Entity; and


 


(d)                                 the
definitive documents evidencing binding commitments with respect to the Debt
Financing and Equity/Mez Financing shall be executed.


 


3.2                               Time
and Place of Closing.  The
Closing shall be at 10:00 am within five business days from the date that the
conditions set forth in Article IV hereof are satisfied or waived or such other
date and time as agreed by the parties (the “Closing Date”) and shall
take place in Dubai (or such other place as the parties shall agree).


 


ARTICLE IV


 


Conditions
to Closing


 


4.1                               Closing
Conditions.  The obligations of
each party hereto to consummate the transactions contemplated hereby, unless
specifically waived in writing by such party, is subject to fulfillment of the
following conditions on or prior to the Closing Date:


 


(a)                                  Governmental
Consents.  All governmental
actions, consents or approvals required to be taken or obtained that are
necessary in connection with the transactions contemplated by this Agreement
shall (a) have been taken, given or obtained and (b) be in full force and
effect at the Closing.


 


(b)                                  Representations
and Warranties.  The
representations and warranties of each party contained in Article VI shall be
true and correct as of the date of this Agreement, and at the Closing with the
same effect as if made at and as of the Closing.


 


(c)                                  Status
of the Site.  The Site shall be
free and clear of all liens, claims and encumbrances. The Site shall be in
Developable Condition and no condition shall exist on or about the Site that would
make it unsuitable for development for its intended purposes.


 


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(d)                                  Debt
Financing and Equity/Mez.  The
JV Entity shall have arranged binding commitments for the Debt Financing and
Equity/Mez Financing.


 


(e)                                Exclusivity.  The
JV Entity shall have received adequate assurances that (i) for five years from
opening that there shall be no additional dolphin swims or encounter
experiences or aquariums on Palm Island, Jebel Ali and (ii) during the term of
the Management Agreement there will be no additional dolphin swims or encounter
experiences or aquariums on Palm Island, Jumeriah. In addition, during the term
of the Management Agreement, KZL shall have a right of first refusal to develop
and operate any dolphin swims or encounter experiences or aquariums on Palm
Island, Jebel Ali.


 


(f)                                    Legal
Opinions.  KZL shall have received legal opinions to
the effect that the Operative Documents are valid and such other legal opinions
as may be reasonably requested and are customary for commercial transactions in
Dubai.


 


The parties agree that, without prejudicing a party’s right to
terminate this Agreement in accordance with its terms, in the event that any
condition is not satisfied they will work in good faith to attempt to agree
terms pursuant to which Closing will occur.


 


4.2                               Financing
Condition Covenant.  The parties agree that in the event the
condition contained in Section 4.1 (d) cannot be satisfied, they shall
negotiate in good faith for 90 days to agree an alternative financing structure
mutually acceptable to the parties; provided, however, nothing
contained in this Section 4.2 shall prejudice a party’s right to terminate this
Agreement in accordance with its terms if an agreement is not reached after
such 90-day period.


 


ARTICLE V


 


Exclusive Relationship


 


5.1                               Exclusive
Relationship.  The parties agree
that while this Agreement is in effect the JV Entity will be the exclusive
vehicle through which any of them will be involved, directly or indirectly, in
any water-based theme parks or any aquaria on Palm Islands, Jumeira.


 


ARTICLE VI


 


Representations and Warranties


 


6.1                               Organization.                    KZL represents
that it is a duly formed Bahamian corporation, and is validly existing and in
good standing under the laws of the Commonwealth of The Bahamas. Nakheel
represents that it is a duly formed Dubai company.


 


6

















 


6.2                               Authority.  Each of KZL and Nakheel with respect to
itself  represents to the other that (a)
it has full power and authority to enter into this Agreement and the Operative
Documents to which it is a party, (b) the execution, delivery and performance
of this Agreement and the Operative Documents (when executed by it) and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action and (c) this Agreement is, and each other Operative
Document when executed and delivered will be, a legal, valid, binding and
enforceable agreement of and against parties signing such document.


 


6.3                               Conflicts.  Each of KZL and Nakheel with respect to
itself represents to the other that except for consents that are required and
will be obtained prior to Closing, neither the execution and delivery of this
Agreement or any other Operative Document (when executed) nor the consummation
of the transactions contemplated hereby or thereby will (a) conflict with,
result in a breach of the terms, conditions or provisions of, or constitute a
default or an event of default under, its organizational documents, (b)
conflict with, result in a material breach of any of the material terms,
conditions or provisions of, or constitute a default or an event of default
under, any instrument, agreement, contract, mortgage, indenture, deed of trust,
franchise, license, judgment, order, award or decree to which it or one of its
Affiliates, or any of their property, is bound or (c) require the approval,
consent or authorization of, or the making of any declaration, filing or
registration with, any federal, state or local court, governmental authority or
regulatory body.


 


6.4                               Litigation.  Each of KZL and Nakheel with respect to
itself represents to the other that there are no actions, suits, proceedings,
judgments or court orders or decrees pending or, to its knowledge, threatened,
which would reasonably be expected to prevent or hinder the consummation of the
transactions contemplated by this Agreement or any Operative Document (when
executed by it).


 


6.5                               No
Governmental Action.  Each of
KZL and Nakheel with respect to itself represents to the other that, to the
best of its knowledge, it is not subject to any pending or threatened action,
suit, proceeding, hearing, investigation of, in or before any governmental or
regulatory office or authority which, if adversely decided, would have a
material adverse effect on such party or its business reputation, the formation
of the JV Entity, or the ownership, development, operation, management of the
Project.


 


ARTICLE VII


 


Covenants


 


7.1                               Further
Assurances.  Following the
execution and delivery of this Agreement, each party shall take all reasonable
actions necessary or appropriate to ensure that the conditions to the Closing
are timely satisfied.  From and after
the Closing, each party shall do, execute and perform all such other acts,
deeds and documents as may be from time to time reasonably required in order to
carry out fully the intent and purposes of this Agreement.


 


7

















 


7.2                               Assignment.   Each party may assign its rights and
obligations hereunder to a wholly-owned Affiliate; provided, however, such
assigning party shall not be released from its obligation hereunder.  Except as provided above, neither this
Agreement nor any Operative Documents, may be assigned by any party without the
prior written consent of the other party, which consent may be withheld at its
sole discretion.  Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, and no
other person or entity shall have any right, benefit or obligation under this
agreement as a third party beneficiary or otherwise.


 


7.3                               Confidential
Information.  Each party hereby
agrees that any information provided at any time to such party by the other
party in connection with the negotiation, performance or enforcement of this
Agreement which has not been generally disclosed to the public or which the
other party did not already have knowledge of independent of the disclosure as
part of this transaction (the “Confidential Information”), including,
without limitation, any information contained in proprietary software systems,
any management techniques and any customer and database information provided to
the JV Entity (except as expressly permitted hereunder), shall be kept in
confidence; provided, however, that any of such information may be disclosed to
a party’s employees, agents, attorneys, auditors, accountants, financial
advisors, banks or other financial sources that need to know such Confidential
Information (it being agreed that such representatives or persons will be
informed by such party of the confidential nature of such Confidential
Information and directed to treat such Confidential Information confidentially,
and that such party will be responsible for any disclosures of Confidential
Information by its representatives).  In
the event that a party becomes legally compelled to disclose any Confidential
Information, such party shall provide the other party with prompt prior written
notice of such requirement so that the other party may seek a protective order
or other appropriate remedy unless such notice is prohibited by law.  In the event such protective order or other
remedy is not obtained, the party legally compelled to disclose such
Confidential Information agrees to disclose only that portion of the
Confidential Information which, in the opinion of such party’s counsel, is
legally required to be disclosed.  The
parties acknowledge and agree that, notwithstanding the provisions of this
Section 7.3, the parties shall be entitled to disclose and use the Agreed
Description (as defined in Section 7.4 hereof) of the relationship of the
parties.


 


7.4                               Publicity.  Neither party shall issue or make, or allow
any Affiliate to issue or make, any press release or public announcement
relating to the subject matter of this Agreement without the prior approval of
the other party; provided, however, that any party or an Affiliate of any party
may make any public disclosure it believes in good faith is required by
applicable law, any listing or trading agreement concerning its
publicity-traded securities or in connection with any governmental filings (in
which case the party which intends to issue such press release or make such
public announcement will advise the other party prior to making the disclosure
and provide the other party opportunity to comment upon the release or
announcement).  The parties shall, as
soon as practicable after the date hereof, use their reasonable best efforts to
agree on one or more descriptions of the relationship of the parties hereunder
(an “Agreed Description”).  At
any time prior to the termination of this Agreement, the parties shall be
entitled to use the Agreed


 


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Description in all
communications, advertising, announcements and other materials used in
connection with the conduct of their respective business.


 


7.5                               Activities
Pending Closing.  The parties
agree to work together on a development plan for the Project and agree that all
out-of-pocket costs associated with the development plan pending the formation
of the JV Entity shall be paid from the KIML Palm Island Account. After the
formation and capitalization of the JV Entity in accordance with Section 2.3,
all development costs shall be paid by the JV Entity.  The budget for such development plan shall be agreed between KZL
and Nakheel.


 


ARTICLE VIII


 


Termination and Remedies


 


8.1                               General
Termination.  Each party shall
have the right to terminate this Agreement by delivery of thirty (30) days
written notice thereof to the other party in the event the Closing has not
occurred by March 31, 2004 or such later date as the parties may agree.


 


8.2                               KZL
Termination.  Prior to the
Closing, either party shall have the right to terminate this Agreement without
liability if it reasonably believes, based on advice from the financial advisor
appointed by the parties, that the Debt Financing or Equity/Mez Financing would
not be available on terms reasonably acceptable, provided that this termination
right is only exercised following a consultation meeting between the parties.


 


8.3                               Effect of
Termination. 
Notwithstanding the termination of this Agreement as provided in Section
8.1 hereof, the provisions of Section 7.3 (Confidential Information) shall
continue in full force and effect.  In
the event of the transactions contemplated herein do not close  (i) each party shall be responsible for all
of its costs and expenses associated with the preparation and negotiation of
this Agreement and the Operative Documents, (ii) the parties will share equally
all costs and expenses associated with the development plan (provided that such
costs and expenses were agreed by the parties) and (iii) to the extent that the
JV Entity had already been formed, it shall be dissolved and all unused cash in
the JV Entity or the KIML Palm Island account, after satisfaction of items
included in item (ii) above, will be returned to the parties in equal shares.


 


8.4                               Remedies.  Any termination in accordance with the  terms of this Agreement shall be without
liability; provided however, in the event either party fails to perform
its obligations hereunder, the other party shall have all rights and remedies
available at law or in equity, including, where appropriate, injunctive relief
without bond or surety.


 


9

















 


ARTICLE IX


 


Miscellaneous


 


9.1                               Notices.  All notices and other communications under
this Agreement shall be in writing and shall be deemed given when delivered
personally or by courier service at a party at the following address (or to
such other address as such party may have specified by notice given to the
other parties pursuant to this provision):


 


	
  If
  to KZL:

  	
   

  	
  Kerzner International
  Limited

  
	
   

  	
   

  	
  2-4 Packhorse Road

  
	
   

  	
   

  	
  Gerrards Cross

  
	
   

  	
   

  	
  Buckinghamshire

  
	
   

  	
   

  	
  England, United Kingdom

  
	
   

  	
   

  	
  SL9 7QE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:  Charles D. Adamo

  
	
   

  	
   

  	
  Executive Vice
  President

  
	
   

  	
   

  	
  Corporate Development
  & General Counsel

  
	
   

  	
   

  	
  Facsimile No. +44
  (0)1753 899808

  
	
   

  	
   

  	
   

  
	
  If
  to Nakheel:

  	
   

  	
  Nakheel, LLC

  
	
   

  	
   

  	
  P.O. Box 1700

  
	
   

  	
   

  	
  Dubai, United Arab
  Emirates

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention: Hamid Kazim

  



 


9.2                               Governing
Law; Arbitration.  This
Agreement, and the application or interpretation thereof, shall be exclusively
governed by its terms and by the internal laws of England.  In the event of any dispute between the
parties arising out of or relating to this Agreement, representatives of the
parties shall, within 21 days service of written notice from either party to
the other (a “Dispute Notice”), hold a meeting (a “Dispute Meeting”) in an
effort to resolve the dispute.  Each
party shall use all endeavours to send a representative who has authority to
settle the dispute to attend the Dispute Meeting.  Following the expiry of 30 days after the service of a Dispute
Notice, any dispute which is not resolved, whether or not a Dispute Meeting has
been held, shall at the request of either party, be referred to arbitration for
final settlement under the Rules of the London Court of International
Arbitration (the “Rules”) by one arbitrator who shall be appointed in
accordance with the Rules.  The place of
arbitration shall be London, and the language of the arbitration shall be
English.


 


9.3                               Entire
Agreement; Amendments; Waivers.  This Agreement contains the
entire understanding of the parties hereto with regard to the subject matter
contained herein.  The parties hereto,
by mutual agreement in writing, may amend, modify and supplement this
Agreement.  The failure of any party
hereto to enforce at any time any provision of this Agreement shall not be 


 


10

















 


construed to be a waiver
of such provision, nor in any way to affect the validity of this Agreement or
any part hereof or the right of such party thereafter to enforce each and every
such provision.  No waiver of any breach
of this Agreement shall be held to constitute a waiver of any other or
subsequent breach.


 


9.4                               Execution
in Counterparts. This Agreement may be executed by facsimile and in one
or more counterparts, each of which shall be considered an original
counterpart, and shall become a binding agreement when KZL and Nakheel each
shall have executed one counterpart.


 


9.5                               Partial
Invalidity.  In case any one or
more of the provisions contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement but
the parties hereto shall use their reasonable good faith efforts to modify or
reformulate other provisions contained herein as necessary or appropriate to
implement fully the provisions contained in this Agreement.


 


9.6                               No
Third Party Beneficiaries. 
Nothing in this Agreement, expressed or implied, is intended or shall be
construed to confer upon any person other than the parties hereto and permitted
successors and assigns any right, remedy or claim under or by reason of this
Agreement.


 


9.7                               Currency.  Unless otherwise specified in any of the
Operative Documents, all transactions between the JV Entity and the parties or
any of their respective Affiliates shall be denominated in U.S. dollars.


 


9.8                               Titles
and Headings.  Titles and
headings to Sections herein are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or interpretation of
this Agreement.


 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this agreement to be duly executed on their respective behalf by
their respective officers thereunto duly authorized, as of the day and year
first above written.


 


	
   

  	
  KERZNER INTERNATIONAL
  LIMITED,

  	
   

  
	
   

  	
  a Bahamas corporation

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles D. Adamo

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Charles D. Adamo

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President

  
	
   

  	
   

  	
  Corporate
  Development &

  General Counsel

  
						



 


11

















 


	
   

  	
  NAKHEEL, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Sultan Ahmed Bin
  Sulayem

  	
   

  
	
   

  	
   

  	
  Sultan Ahmed Bin
  Sulayem

  	
   

  
	
   

  	
   

  	
   

  



 


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