EXHIBIT A
Execution Copy
Private & Confidential
WITHOUT PREJUDICE
FOR SETTLEMENT PURPOSES ONLY
SUBJECT TO CONTRACT
DATED JULY 3, 2001
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KERSAF INVESTMENTS LIMITED (1)
SUN INTERNATIONAL INC. (2)
SUN HOTELS INTERNATIONAL (3)
ROYALE RESORTS HOLDINGS LIMITED (4)
WORLD LEISURE INVESTMENTS LIMITED (5)
SUN HOTELS LIMITED (6)
WORLD LEISURE GROUP LIMITED (7)
ROYALE RESORTS INTERNATIONAL LIMITED (8)
CALEDONIA INVESTMENTS PLC (9)
XXXXXXX XXXXXXX (10)
SUN INTERNATIONAL MANAGEMENT LIMITED (11)
ROSEGROVE LIMITED (12)
SUN INTERNATIONAL INVESTMENTS LIMITED (13)
MANGALITSA LIMITED (14)
and
HOG ISLAND HOLDINGS LIMITED (15)
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SUPPLEMENTAL AGREEMENT
TO THE ORIGINAL
SHAREHOLDERS' AGREEMENT
AND TO THE ROSEGROVE
SHAREHOLDERS' AGREEMENT
(EACH AS DEFINED IN THIS AGREEMENT)
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CONTENTS
CLAUSE PAGE
1 Definitions and interpretation.........................................................................4
2 Business of the Company and at Rosegrave...............................................................5
3 Termination of the Original Shareholders Agreement and the Rosegrove Shareholders
Agreement..............................................................................................6
4 Winding-up and Dissolution of the Company and Rosegrove................................................7
5 Dealings with and transfers of shares..................................................................9
6 Rights to information..................................................................................9
7 Parties bound.........................................................................................10
8 Assignability.........................................................................................11
9 Not a partnership.....................................................................................11
10 This Agreement to prevail.............................................................................11
11 Remedies to be cumulative.............................................................................12
12 Further assurance.....................................................................................12
13 Announcements.........................................................................................12
14 Costs.................................................................................................12
15 Entire agreement......................................................................................12
16 Miscellaneous.........................................................................................12
17 Notices...............................................................................................14
18 Choice of law, submission to jurisdiction and address for service.....................................19
1
THIS AGREEMENT is dated July 3, 2001 and is made BETWEEN:
(1) KERSAF INVESTMENTS LIMITED ("(a company incorporated under the laws of
the Republic of South Africa) whose registered office is at 0 Xxxxxxx
Xxxxxx Xxxxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxxxx xx Xxxxx Xxxxxx ("KERSAF");
(2) SUN INTERNATIONAL INC. (a company incorporated under the laws of the
Republic of Panama) whose principal office is at c/o Franco & Franco,
Edificio Eastern, Avenue Xxxxxxxx Xxxx, Piso no. 12 (Penthouse), Panama
5, Republic of Panama ("SII");
(3) SUN HOTELS INTERNATIONAL (an unlimited company incorporated under the
laws of England) whose registered office is at 00 Xx. Xxxxxx Xxxxxx,
Xxxxxx XX0 0XX ("SHIL");
(4) ROYALE RESORTS HOLDINGS LIMITED (a company incorporated under the laws of
Bermuda) whose registered office is at Clarendon House, 0 Xxxxxx Xxxxxx,
Xxxxxxxx XX XX, Xxxxxxx ("RRHL");
(5) WORLD LEISURE INVESTMENTS LIMITED (formerly Royale Resorts Limited) (a
company incorporated under the laws of Bermuda) whose registered office
is at Clarendon House, 0 Xxxxxx Xxxxxx, Xxxxxxxx XX XX, Xxxxxxx ("WLI");
(6) SUN HOTELS LIMITED (a company incorporated under the laws of Bermuda)
whose registered office is at Clarendon House, 0 Xxxxxx Xxxxxx, Xxxxxxxx
XX XX, Xxxxxxx ("SUN HOTELS");
(7) WORLD LEISURE GROUP LIMITED (a company incorporated under the laws of the
British Virgin Islands) whose registered office is at c/o Trident Trust
Company Limited, P.O. Box 000, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Islands
("WLG");
(8) ROYALE RESORTS INTERNATIONAL LIMITED (a company incorporated under the
laws of Bermuda) whose registered office is at Clarendon House, 0 Xxxxxx
Xxxxxx, Xxxxxxxx XX XX, Xxxxxxx ("RRIL");
(9) CALEDONIA INVESTMENTS PLC (a company incorporated under the laws of
England) whose registered office is at Cayzer House, 0 Xxxxxx Xxxx
Xxxxxx, Xxxxxx X0X 0XX ("CI");
(10) XXXXXXX XXXXXXX of Ibstone House, Ibstone, Nr. High Wycombe,
Buckinghamshire HP14 3YA ("SK");
(11) SUN INTERNATIONAL MANAGEMENT LIMITED (a company incorporated under the
laws of Bermuda) whose registered office is at Clarendon House, 0 Xxxxxx
Xxxxxx, Xxxxxxxx XX XX, Xxxxxxx ("SIMLA");
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(12) ROSEGROVE LIMITED (a company incorporated under the laws of the British
Virgin Islands) whose registered office is at c/o Codan Trust Company
(BVI) Ltd, Romasco Place, Wickhams Cay 0, Xxxx Xxxx, Xxxxxxx, Xxxxxxx
Xxxxxx Xxxxxxx ("ROSEGROVE");
(13) SUN INTERNATIONAL INVESTMENTS LIMITED (a company incorporated under the
laws of the British Virgin Islands) whose registered office is at c/o
Trident Trust Company Limited, P.O. Box 000, Xxxx Xxxx, Xxxxxxx, Xxxxxxx
Xxxxxx Islands (the "COMPANY" or "SIIL");
(14) MANGALITSA LIMITED (a company incorporated under the laws of the Bahamas)
whose registered address is Sandringham House, 00 Xxxxxxx Xxxxxx, XX Xxx
X0000, Xxxxxx, Bahamas ("MANGALITSA"); and
(15) HOG ISLAND HOLDINGS LIMITED (a company incorporated under the laws of
Bermuda) whose registered address is 00 Xxxxx Xxxxxx, Xxxxxxxx, XX00,
Xxxxxxx ("HOG ISLAND HOLDINGS").
WHEREAS:
(A) The parties hereto (other than Mangalitsa and Hog Island Holdings) are
parties to the Original Shareholders' Agreement recording, inter alia,
the agreement of the parties thereto (other than the Company) in
relation to the operation and management of the Company and its
subsidiaries and investments, including SIHL, and the relationship
between the shareholders of the Company.
(B) CI, Hog Island Holdings, RRHL, RRIL, Mangalitsa and Rosegrove are
parties to the Rosegrove Shareholders' Agreement recording, inter alia,
the agreement of the parties thereto (other than Rosegrove) in relation
to the operation and management of Rosegrove and the relationship
between the shareholders of Rosegrove.
(C) The Parties wish to procure the Winding-up and Dissolution of the
Company and Rosegrove.
(D) This Agreement sets forth the agreements of the Parties with respect to
the Winding-up and Dissolution of the Company and Rosegrove; this
Agreement is supplemental to the Original Shareholders' Agreement and
the Rosegrove Shareholders' Agreement (to the extent expressly provided
herein) and is entered into to make certain variations and amendments
to the Original Shareholders' Agreement and the Rosegrove Shareholders'
Agreement.
NOW IT IS HEREBY AGREED as follows:
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1 DEFINITIONS AND INTERPRETATION
1.1 Save as defined herein words and expressions defined in the
Original Shareholders' Agreement shall have the same meanings where
used herein.
1.2 In this Agreement and the Recitals unless the context otherwise requires:
1.2.1 the following expressions have the following meanings:
"ACT" means The International Business Companies Ordinance, 1984 of
the British Virgin Islands;
"ARTICLES" means the Articles of Association of the Company as altered
from time to time;
"CONTINUING AGREEMENTS" means the Omnibus Agreement and the
Registration Rights and Governance Agreement and which are in the
agreed form, each entered into of even date herewith, together with
all the documents which are or are required by such agreements to be
entered into by the Parties or any of them;
"ORIGINAL SHAREHOLDERS' AGREEMENT" means the agreement between the
parties hereto (other than Mangalitsa and Hog Island Holdings) dated
11 October 1993 referred to in Recital A;
"PARTIES" means the parties to this Agreement;
"ROSEGROVE SHAREHOLDERS" means the holders of shares in Rosegrove, the
current such holders being RRIL and Mangalitsa (as to 50% each);
"ROSEGROVE SHAREHOLDERS' AGREEMENT" means the agreement relating to
Rosegrove entered into between CI, Hog Island Holdings, RRHL, RRIL,
Rosegrove, and Mangalitsa as read together with the supplemental deed
thereto, entered into on 3 May 1994;
"SHARES" means shares in the capital of the Company;
"SHAREHOLDERS' AGREEMENT TERMINATION DATE" means the date on which
articles of dissolution (or the equivalent) in respect of the
winding-up and dissolution of the relevant company are submitted to
the Registrar of Companies of the British Virgin Islands in accordance
with the Act or such other date on which the winding-up and
dissolution of the relevant company commences in accordance with
section 94(5) of the Act and "SIIL Shareholders' Agreement Termination
Date" and "Rosegrove Shareholders' Agreement Termination Date" shall
be construed accordingly;
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"SIIL SHAREHOLDERS" means the holders of Shares from time to time, the
current such holders being WLI and Rosegrove (as to 1/3 and 2/3
respectively);
"SIHL" means Sun International Hotels Limited, a company incorporated
in the Bahamas, whose registered office is at Coral Towers, Paradise
Island, The Bahamas;
"SIHL Shares" means shares in the capital of SIHL;
"WINDING-UP AND DISSOLUTION" means the winding-up and dissolution of
the relevant company in accordance with the Act;
1.2.2 any document expressed to be "IN THE AGREED FORM" means a document in
a form approved by the Parties (and for the purpose of identification
signed by or on behalf of the Parties), subject to such amendments as
may be agreed by the Parties;
1.2.3 references:
(a) to clauses are, unless otherwise stated, to clauses of this
Agreement;
(b) to statutory provisions shall be construed as references to those
provisions as respectively replaced, amended or re-enacted
(whether before or after the date hereof) from time to time and
shall include any provisions of which they are re-enactments
(whether with or without modification) and any subordinate
legislation made under such provisions;
(c) to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, Court,
official or any legal concept or thing shall in respect of any
jurisdiction other than England be deemed to include what most
nearly approximates in that jurisdiction to the English legal
term;
1.2.4 words importing the singular include the plural and vice versa, words
importing a gender include every gender and references to persons
include bodies corporate or unincorporated;
1.2.5 the headings to the clauses are for convenience only and shall not
affect the construction or interpretation of this Agreement.
2 BUSINESS OF THE COMPANY AND OF ROSEGROVE
2.1 From the date hereof up to and including the SIIL Shareholders' Agreement
Termination Date, the business of the Company shall be to act as a
holding or parent company in respect of the holding of the Company in
SIHL, and the Parties shall (to the extent they are respectively able)
procure that the Company shall be wound-up and dissolved as soon as
practicable and accordingly that the Company shall not trade or conduct
any
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business and shall not incur any liabilities nor acquire or dispose of
any assets other than pursuant to the Winding-up and Dissolution of the
Company.
2.2 From the date hereof up to and including the date of the SIIL
Shareholders' Agreement Termination Date and without prejudice to the
provisions of clauses 4.1 to 4.3 (inclusive), the SIIL Shareholders agree
that a decision relating to the Company concerning any matter whatsoever
(other than as envisaged by this Agreement) shall only be taken (whether
in a meeting of the members of the Company or otherwise) with the prior
approval by unanimous written resolution of the Board of the Company or
by unanimous resolution of the Board of the Company at a meeting of the
Board of the Company at which a quorum is present pursuant to clause
13.10 of the Original Shareholders' Agreement (excluding the operation of
clause 13.12 of the Original Shareholders' Agreement).
2.3 From the date hereof up to and including the Rosegrove Shareholders'
Agreement Termination Date, the business of Rosegrove shall be to act as
a holding or parent company in respect of the holding of Rosegrove in the
Company, and the Parties shall (to the extent they are respectively able)
procure that Rosegrove shall be wound-up and dissolved as soon as
practicable and accordingly that Rosegrove shall not trade or conduct any
business and shall not incur any liabilities nor acquire or dispose of
any assets other than pursuant to the Winding-up and Dissolution of
Rosegrove.
2.4 From the date hereof up to and including the date of the Rosegrove
Shareholders' Agreement Termination Date and without prejudice to the
provisions of clauses 4.1 to 4.3 (inclusive), the Rosegrove Shareholders
agree that a decision relating to Xxxxxxxxx concerning any matter
whatsoever (other than as envisaged by this Agreement) shall only be
taken (whether in a meeting of the members of Rosegrove or otherwise)
with the prior approval by unanimous written resolution of the Board of
Rosegrove or by unanimous resolution of the Board of Rosegrove at a
meeting of the Board of Rosegrove at which a quorum is present pursuant
to clause 3.10 of the Rosegrove Shareholders' Agreement (excluding the
operation of clause 3.12 of the Rosegrove Shareholders' Agreement).
3 TERMINATION OF THE ORIGINAL SHAREHOLDERS' AGREEMENT AND THE ROSEGROVE
SHAREHOLDERS' AGREEMENT
3.1 The Parties hereby agree and acknowledge that the provisions of clause 10
of the Original Shareholders' Agreement shall terminate on the date
hereof when the Omnibus Agreement in the agreed form becomes effective
and that the Original Shareholders' Agreement shall terminate on the SIIL
Shareholders' Agreement Termination Date (without prejudice to the
provisions of clause 3.6 of the Original Shareholders' Agreement which
shall continue in full force and effect as referred to in the Omnibus
Agreement, those provisions of clause 23 of the Original Shareholders'
Agreement which are
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expressed to survive termination, the provisions of this Agreement and
the provisions of the Continuing Agreements).
3.2 The Parties hereby agree and acknowledge that the Rosegrove Shareholders'
Agreement shall terminate on the Rosegrove Shareholders' Agreement
Termination Date (without prejudice to those provisions of clause 11 of
the Rosegrove Shareholders' Agreement which are expressed to survive
termination, the provisions of this Agreement and the provisions of the
Continuing Agreements).
4 WINDING-UP AND DISSOLUTION OF THE COMPANY AND ROSEGROVE
4.1 WLG, CI, Mangalitsa, Hog Island Holdings, Kersaf, RRHL and Rosegrove
shall procure (to the extent they are respectively able) that:
4.1.1 as soon as practicable after the date hereof and in any event no
later than 13 July 2001 each of the Company and Rosegrove shall
voluntarily commence to wind up and dissolve on a solvent basis by a
resolution of the SIIL Shareholders or (as the case may be) the
Rosegrove Shareholders or otherwise as required by the Act;
4.1.2 immediately thereafter the board of directors of each of the Company
and Rosegrove shall authorise PricewaterhouseCoopers as liquidator
and approve a plan of dissolution containing information as provided
for in section 94 of the Act (including that the relevant company is,
and will continue to be, able to discharge or pay or provide for the
payment of all claims, debts, liabilities and obligations in full in
compliance with such section 94);
4.1.3 immediately thereafter the SIIL Shareholders or (as the case may be)
the Rosegrove Shareholders shall approve such plan of dissolution;
4.1.4 immediately thereafter articles of dissolution shall be executed by
the Company or (as the case may be) Xxxxxxxxx and submitted to the
Registrar of Companies in the British Virgin Islands; and
4.1.5 the Company and Rosegrove and their respective boards of directors
shall generally do or procure the doing of and/or authorise all such
acts, deeds and things and take all other steps as may be necessary
or desirable to authorise, implement and complete the Winding-up and
Dissolution of each of the Company and Rosegrove in accordance with
the provisions of this clause and the Act.
4.2 Without prejudice to clause 4.1, WLG, CI, Mangalitsa, Hog Island
Holdings, Kersaf, RRHL and Rosegrove shall procure (to the extent they
are respectively able, including by entering into appropriate and
customary agreements with the liquidator) that as a result of the
Winding-up and Dissolution of the Company and Rosegrove:
7
4.2.1 as soon as practicable after the date hereof the 13,487,380 SIHL
Shares held by the Company shall be distributed (as a result of the
Winding-up and Dissolution of the Company) to the SIIL Shareholders:
(a) as to 1/3 to WLI (being 4,495,794 SIHL Shares); and
(b) as to 2/3 to Rosegrove (being 8,991,586 SIHL Shares);
4.2.2 immediately following the distributions made pursuant to clause 4.2.1
above, the SIHL Shares held by Rosegrove shall be distributed (as a
result of the Winding-up and Dissolution of Rosegrove) to the
Rosegrove Shareholders (being the 8,991,586 Shares distributed in
accordance with clause 4.2.1 above together with the 2,625,000 Shares
held directly by Xxxxxxxxx):
(a) as to 1/2 to RRIL (being 5,808,293 SIHL Shares); and
(b) as to 1/2 to Mangalitsa (being 5,808,293 XXXX Xxxxxx),
and such parties shall procure (to the extent they are respectively able)
that such distributions shall take place (and shall only take place) as
nearly as possible at the same time so that the distributions referred to
in clause 4.2.1 shall only be made if the distributions referred to in
clause 4.2.2 will be made immediately thereafter.
4.3 Each of the parties referred to in clause 4.1 hereby undertakes to
procure that any person it may have nominated to be a director of the
Company or (as the case may be) Rosegrove will (to the extent that person
is able) procure the passing of, and in any event vote in favour of, any
resolution of the board of the Company or (as the case may be) Rosegrove
necessary or desirable to enable the provisions of this clause 4 to be
implemented and completed.
4.4 The Parties further undertake that they shall (so far as within his/their
power to do so) do all they reasonably can to achieve completion of the
Winding-up and Dissolution of each of the Company and Rosegrove as soon
as practicable following the date hereof and in any event no later than
17 August 2001.
4.5 Each of the SIIL Shareholders hereby undertakes that it shall (so far as
within its power to do so) do all it reasonably can to achieve the
implementation and completion of the Winding-up and Dissolution of the
Company on a solvent basis and each of the Rosegrove Shareholders hereby
undertakes that it shall (so far as within its power to do so) do all it
reasonably can to achieve the implementation and completion of the
Winding-up and Dissolution of Rosegrove on a solvent basis. Accordingly:
8
(a) each of WLI, RRIL and Xxxxxxxxxx agrees to contribute (or procure
the contribution of) such monies or funds to the Company as may
be necessary to ensure that all claims, debts, liabilities and
obligations of the Company are discharged, paid and settled in
full. Any such contribution shall be made as to 1/3 by each of
WLI, RRIL and Mangalitsa (and WLG, Kersaf and CI unconditionally
and irrevocably agree to procure that WLI, RRIL and Mangalitsa
respectively comply with their respective obligations under this
clause); and
(b) each of 4RRIL and Xxxxxxxxxx agrees to contribute (or procure the
contribution of) such monies or funds to Rosegrove as may be
necessary to ensure that all claims, debts, liabilities and
obligations of Rosegrove are discharged, paid and settled in
full. Any such contribution shall be made as to 50% by each of
RRIL and Mangalitsa (and Kersaf and CI unconditionally and
irrevocably agree to procure that RRIL and Mangalitsa
respectively comply with their respective obligations under this
clause).
5 DEALINGS WITH AND TRANSFERS OF SHARES
5.1 WLG and Rosegrove hereby undertake to each other that they will not,
prior to the SIIL Shareholders' Agreement Termination Date, do or enter
into any arrangement to do any of the things referred to in sub-clauses
(a) to (d) (inclusive) of clause 20.1 of the Original Shareholders'
Agreement without the prior written consent of the other (and accordingly
the operation of clauses 20.2 to 20.15 (inclusive) of the Original
Shareholders' Agreement shall be excluded).
5.2 The Rosegrove Shareholders hereby undertake to each other that they will
not, prior to the Rosegrove Shareholders' Agreement Termination Date, do
or enter into any arrangement to do any of the things referred to in
sub-clauses (a) to (d) (inclusive) of clause 7.1 of the Rosegrove
Shareholders' Agreement without the prior written consent of the others
(and accordingly the operation of clauses 7.2 to 7.13 (inclusive) of the
Rosegrove Shareholders' Agreement shall be excluded).
6 RIGHTS TO INFORMATION
6.1 Following the SIIL Shareholders' Agreement Termination Date the Parties
shall procure (to the extent they are respectively able) that there shall
be made available to any Party to the Original Shareholders' Agreement
such books and records of the Company relating to the periods or parts
thereof ending on or prior to the SIIL Shareholders' Agreement
Termination Date (or the winding up of the Company) for inspection by
such Party or its duly authorised representatives as that Party may
reasonably request. Any such Party shall be entitled at its expense to
make copies or extracts from any such books and records as it may
reasonably require.
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6.2 Following the Rosegrove Shareholders' Agreement Termination Date the
Parties shall procure (to the extent they are respectively able) that
there shall be made available to any Party to the Rosegrove Shareholders'
Agreement such books and records of Rosegrove relating to the periods or
parts thereof ending on or prior to the Rosegrove Shareholders' Agreement
Termination Date (or the winding up of Rosegrove) for inspection by such
Party or its duly authorised representatives as that Party may reasonably
request. Any such Party shall be entitled at its expense to make copies
or extracts from any such books and records as it may reasonably require.
7 PARTIES BOUND
7.1 To the extent lawful, the Company undertakes with each of the other
Parties to be bound by and comply with the terms and conditions of this
Agreement insofar as the same relate to the Company and to act in all
respects as contemplated by this Agreement.
7.2 To the extent lawful, Rosegrove undertakes with each of the other Parties
to be bound by and comply with the terms and conditions of this Agreement
as the same relate to Rosegrove and to act in all respects as
contemplated by this Agreement.
7.3 The SIIL Shareholders undertake with each other to exercise their powers
in relation to the Company so as to ensure that the Company (including
for this purpose its subsidiaries and subsidiary undertakings) fully and
promptly observes, performs and complies with its obligations under this
Agreement and to exercise their rights (as shareholders or otherwise) in
a manner consistent with this Agreement.
7.4 The Rosegrove Shareholders undertake with each other to exercise their
powers in relation to Rosegrove so as to ensure that Rosegrove (including
for this purpose its subsidiaries and subsidiary undertakings) fully and
promptly observes, performs and complies with its obligations under this
Agreement and to exercise their rights (as shareholders or otherwise) in
a manner consistent with this Agreement.
7.5 Each SIIL Shareholder undertakes with each other SIIL Shareholder that
while it remains a party to this Agreement it will not (except as
expressly provided for in this Agreement) agree to cast any of the voting
rights exercisable in respect of any of the Shares held by it in
accordance with the directions, or subject to the consent of, any other
person (including another SIIL Shareholder).
7.6 Each Rosegrove Shareholder undertakes with each other Rosegrove
Shareholder that while it remains a party to this Agreement it will not
(except as expressly provided for in this Agreement) agree to cast any of
the voting rights exercisable in respect of any of the shares in
Rosegrove held by it in accordance with the directions, or subject to the
consent of, any other person.
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8 ASSIGNABILITY
8.1 This Agreement shall be binding on and shall ensure for the benefit of
each Party's successors and assigns and personal representatives (as the
case may be).
8.2 None of the Parties may, without the written consent of the others,
assign any of their respective rights or obligations under this
Agreement.
9 NOT A PARTNERSHIP
Nothing in this Agreement shall create a partnership or establish a
relationship of principal and agent or any other fiduciary relationship
between or among any of the Parties.
10 THIS AGREEMENT TO PREVAIL
10.1 In the event of any conflict, ambiguity or discrepancy between the
provisions of this Agreement and the Articles, the SIIL Shareholders
shall join in procuring that the Articles are altered to accord with the
provisions of this Agreement, which shall as between the Parties prevail.
10.2 In the event of any conflict, ambiguity or discrepancy between the
provisions of this Agreement and the articles of association of Rosegrove
or any agreement or arrangement between the Rosegrove Shareholders or by
which they are bound, the Rosegrove Shareholders shall join in procuring
that the articles of association of Rosegrove and/or any such agreement
or arrangement are altered to accord with the provisions of this
Agreement, which shall as between the Parties prevail.
10.3 Each of the SIIL Shareholders agrees with the others that it will:
10.3.1 exercise all voting and other rights and powers vested in or
available to them respectively to procure the convening of all
meetings, the passing of all resolutions and the taking of all steps
necessary or desirable to give effect to this Agreement;
10.3.2 not exercise any rights conferred on it by the Articles which are or
may be inconsistent with its rights or obligations under this
Agreement.
10.4 Each of the Rosegrove Shareholders agrees with the others that it will:
10.4.1 exercise all voting and other rights and powers vested in or
available to them respectively to procure the convening of all
meetings, the passing of all resolutions and the taking of all steps
necessary or desirable to give effect to this Agreement;
10.4.2 not exercise any rights conferred on it by the articles of
association of Rosegrove which are or may be inconsistent with its
rights or obligations under this Agreement.
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11 REMEDIES TO BE CUMULATIVE
No remedy conferred by any of the provisions of this Agreement is
intended to be exclusive of any other remedy available at law, in equity,
by statute or otherwise. Each and every other remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law, in equity, by statute or otherwise. The
election by any party to pursue one or more of such remedies shall not
constitute a waiver by such party of the right to pursue any other
available remedy.
12 FURTHER ASSURANCE
Each of the Parties shall, and shall use their respective reasonable
endeavours to procure that any necessary third parties shall, execute and
deliver to the other Parties such other instruments and documents and
take such other action as may be required to carry out, evidence and
confirm the provisions of this Agreement.
13 ANNOUNCEMENTS
Subject as required by law or by any relevant stock exchange or by any
relevant national or supra-national regulatory authorities, all
announcements and circulars by or on behalf of any of the Parties and
relating to the subject matter of this Agreement shall be in terms to be
agreed between the Parties in advance of issue.
14 COSTS
Each of the parties shall be responsible for their respective legal and
other costs incurred in relation to the negotiation, preparation and
completion of this Agreement.
15 ENTIRE AGREEMENT
15.1 This Agreement and the agreements referred to in this Agreement,
including (for the avoidance of doubt) the Original Shareholders'
Agreement and the Rosegrove Shareholders' Agreement, sets forth the
entire agreement and understanding between the Parties or any of them in
connection with the Company and the arrangements described herein.
15.2 No purported variation of this Agreement shall be effective unless made
in writing between all the Parties.
16 MISCELLANEOUS
16.1 If any term or provision in this Agreement shall be held to be illegal or
unenforceable, in whole or in part, under any enactment or rule of law,
such term or provision or part shall to that extent be deemed not to form
part of this Agreement but the enforceability of the remainder of this
Agreement shall not be affected.
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16.2 A Party's failure to insist on strict performance of any provision of
this Agreement shall not be deemed to be a waiver thereof or of any right
or remedy for breach of a like or different nature. Subject as aforesaid,
no waiver shall be effective unless specifically made in writing and
signed by a duly authorised officer of the Shareholder granting such
waiver.
16.3 This Agreement may be entered into in any number of counterparts and by
the Parties to it on separate counterparts, each of which when executed
and delivered shall be an original, but all the counterparts shall
together constitute one and the same instrument.
16.4 A person who is not a party to this Agreement may not enforce any of its
terms under the Contracts (Rights of Third Parties) Act 1999, but this
shall not affect any right or remedy of a third party which exists or is
available other than under that Act.
16.5 Each Party represents and warrants, and undertakes that:
16.5.1 it has the requisite power under its constitutional documentation to
execute, deliver and perform its obligations under this Agreement;
16.5.2 the execution and delivery of, and the performance of the obligations
of such Party under, this Agreement have been duly authorised by all
necessary corporate action on the part of such Party whether under
its articles of association (or the equivalent) or otherwise;
16.5.3 this Agreement constitutes, and any other documents executed by such
Party which are to be delivered pursuant to this Agreement will, when
executed, constitute legal, valid and binding obligations of such
Party enforceable in accordance with their respective terms;
16.5.4 the execution and delivery of, and the performance by such Party of
its obligations under, and compliance with the provisions of, this
Agreement by such Party will not:
(a) result in a violation of any provision of the memorandum or
articles of association (or the equivalent) of such Party; or
(b) result in a breach of, or constitute a default under, any
instrument to which such Party is a party or by which such Party
is bound; or
(c) result in a violation of any law or regulation in any
jurisdiction having the force of law or of any order, judgment or
decree of any court or governmental agency or agreement to which
such Party is a party or by which such Party is bound; and
16.5.5 no consent, authorisation, licence or approval of such Party's
shareholders or of any governmental, administrative, judicial or
regulatory body, authority or organisation is
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required to authorise the execution, delivery, validity,
enforceability or admissibility in evidence of this Agreement or the
performance by such Party of its obligations under this Agreement.
17 NOTICES
17.1 Any notice or other document to be given under this Agreement shall be in
writing and shall be deemed duly given:
17.1.1 if delivered by hand or sent by facsimile transmission to the
respective addresses shown below:
(a) KERSAF INVESTMENTS LIMITED
0 Xxxxxxx Xxxxxx Xxxxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxxxx xx
Xxxxx Xxxxxx
attention: The Company Secretary
fax: 000 000 000 0000
with a copy to:
c/o Badgemore House, Gravel Hill, Henley-on-Thames, RG9 4NR
attention: The Company Secretary
fax: 01491 576526
(b) SUN INTERNATIONAL INC.
c/o Franco & Xxxxxx, Torro Universal, Avenue Xxxxxxxx Xxxx,
Piso no. 12 (Penthouse), Panama 5, Republic of Panama
attention: Xx. X.X. Xxxxxx
fax: x000 000 0000
with a copy to:
c/o Badgemore House, Gravel Hill, Henley-on-Thames, RG9 4NR
attention: The Company Secretary
fax: 01491 576526
(c) SUN HOTELS INTERNATIONAL
00 Xx. Xxxxxx Xxxxxx, Xxxxxx XX0 0XX
attention: The Company Secretary
fax: 020 7378 0647
14
with a copy to:
c/o Badgemore House, Gravel Hill, Henley-on-Thames, RG9 4NR
attention: The Company Secretary
fax: 01491 576526
(d) ROYALE RESORTS HOLDINGS LIMITED
Clarendon House, 0 Xxxxxx Xxxxxx, Xxxxxxxx XX XX, Xxxxxxx
attention: X. X. Xxxxxxxx
fax: 0101 809 2 924720
with a copy to:
c/o Badgemore House, Gravel Hill, Henley-on-Thames, RG9 4NR
attention: The Company Secretary
fax: 01491 576526
(e) WORLD LEISURE INVESTMENTS LIMITED
Clarendon House, 0 Xxxxxx Xxxxxx, Xxxxxxxx XX XX, Xxxxxxx
attention: The Company Secretary
fax: 001 809 2 924 720
with a copy to:
c/o Xxxxxx Xxxx, Xxxxxxx House, Camomile Street,
London EC3A 7AN England
attention: Xxxxxxxxxxx Xxxxxxx
fax: 0207 283 6500
(f) SUN HOTELS LIMITED
Clarendon House, 0 Xxxxxx Xxxxxx, Xxxxxxxx XX XX, Xxxxxxx
attention: The Company Secretary
fax: 001 441 2 924 720
15
with a copy to:
c/o Xxxxxx Xxxx, Xxxxxxx House, Camomile Street,
London EC3A 7AN England
attention: Xxxxxxxxxxx Xxxxxxx
fax: 0207 283 6500
(g) WORLD LEISURE GROUP LIMITED
c/o Trident Trust Company Limited, PO Xxx 000, Xxxx Xxxx,
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
attention: The Company Secretary
fax: 001 284 494 3754
with a copy to:
c/o Xxxxxx Xxxx, Xxxxxxx House, Camomile Street,
London EC3A 7AN England
attention: Xxxxxxxxxxx Xxxxxxx
fax: 0207 283 6500
(h) ROYALE RESORTS INTERNATIONAL LIMITED
Clarendon House, 0 Xxxxxx Xxxxxx, Xxxxxxxx XX XX, Xxxxxxx
attention: The Company Secretary
fax: 001 809 2 924720
with a copy to:
c/o Badgemore House, Gravel Hill, Henley-on-Thames, RG9 4NR
attention: The Company Secretary
fax: 01491 576526
(i) CALEDONIA INVESTMENTS PLC
Cayzer House, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX
attention: The Company Secretary
fax: 020 7488 0896
16
with a copy to:
Freshfields Bruckhaus Xxxxxxxx, 00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
attention: Xxxxxxxx Xxxx
fax: 0207 832 7001
(j) XXXXXXX XXXXXXX
Ibstone House, Ibstone, Nr. High Wycombe, Buckinghamshire,
HP14 3YA
attention: Xxxxxxx Xxxxxxx
fax: 01491 638807
with a copy to:
c/o Xxxxxx Xxxx, Xxxxxxx House, Camomile Street, London EC3A
7AN England
attention: Xxxxxxxxxxx Xxxxxxx
fax: 0207 283 6500
(k) SUN INTERNATIONAL MANAGEMENT LIMITED
Clarendon House, 0 Xxxxxx Xxxxxx, Xxxxxxxx XX XX, Xxxxxxx
attention: The Company Secretary
fax: 00 44 1784 6154
with a copy to:
c/o Badgemore House, Gravel Hill, Henley-on-Thames, RG9 4NR
attention: The Company Secretary
fax: 01491 576526
(l) ROSEGROVE LIMITED
c/o Codan Trust Company (BVI) Limited, Romasco Place, Wickhams
Cay 0, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
attention: Codan Management (BVI) Limited
fax: 001 284 494 4929
17
with a copy to:
Freshfields Bruckhaus Xxxxxxxx, 00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
attention: Xxxxxxxx Xxxx
fax: 0207 832 7001
(m) SUN INTERNATIONAL INVESTMENTS LIMITED
c/o Trident Trust Company Limited, PO Xxx 000, Xxxx Xxxx,
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
attention: The Company Secretary
fax: 001 284 494 3754
with a copy to:
c/o Badgemore House, Gravel Hill, Henley-on-Thames, RG9 4NR
attention: The Company Secretary
fax: 01491 576526
(n) MANGALITSA LIMITED
Sandringham House, 00 Xxxxxxx Xxxxxx, XX Xxx X0000,
Xxxxxx, Xxxxxxx
attention: Xxxxxxxx Deal
fax: 001 242 328 6919
with a copy to:
Freshfields Bruckhaus Xxxxxxxx, 00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
attention: Xxxxxxxx Xxxx
fax: 0207 832 7001
(o) HOG ISLAND HOLDINGS LIMITED
00 Xxxxx Xxxxxx, Xxxxxxxx, XX Xxx 0000, Xxxxxxx
attention: Xxxxx Xxxxx
fax: 001 441 292 8666
with a copy to:
Freshfields Bruckhaus Xxxxxxxx, 00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
attention: Xxxxxxxx Xxxx
fax: 0207 832 7001
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or to such other address and/or number as any such Party may by notice to
all other Parties hereto expressly substitute therefor.
17.2 In proving the giving of a notice it shall be sufficient to prove that
the notice was left or that the applicable means of telecommunications
was properly addressed and despatched (as the case may be) and such
notice shall be deemed to have been received:
17.2.1 if delivered by hand during normal business hours, at the time
of delivery; or
17.2.2 if sent by facsimile during the normal business hours of the
addressee, on the date of successful transmission thereof.
18 CHOICE OF LAW, SUBMISSION TO JURISDICTION AND ADDRESS FOR SERVICE
18.1 This Agreement shall be governed by and interpreted in accordance with
English law.
18.2 The Parties hereby irrevocably submit to the non-exclusive jurisdiction
of the High Court of Justice in England, and this Agreement may be
enforced in any court of competent jurisdiction.
18.3 Each Party shall at all times maintain an agent for service of process in
England and:
18.3.1 WLI, Sun Hotels, WLG, SK and SIIL hereby irrevocably authorises and
appoints Sun International Management (UK) Limited ("SIMLC") (or such
other person resident in England, as such Party may as regards itself
by notice to all other Parties substitute) to accept service of all
legal process arising out of or connected with this Agreement and
service on SIMLC (or such substitute) shall be deemed to be service
on the Party concerned;
18.3.2 Kersaf, RRHL, SIMLA, SII, SHIL and RRIL hereby irrevocably authorises
and appoints Xxxxxx Xxxxxxxx Xxxxxxx (or such other person resident
in England, as such Party may as regards itself by notice to all
other Parties substitute) to accept service of all legal process
arising out of or connected with this Agreement and service on Xxxxxx
Xxxxxxxx Xxxxxxx (or such substitute) shall be deemed to be service
on the Party concerned; and
18.3.3 CI, Rosegrove, Mangalitsa and Hog Island Holdings hereby irrevocably
authorises and appoints Freshfields Bruckhaus Xxxxxxxx (marked for
the attention of the Departmental Managing Partner, Litigation Ref:
RHCC) (or such other person resident in England, as such Party may as
regards itself by notice to all other Parties substitute) to accept
service of all legal process arising out of or connected with this
Agreement and service on Freshfields Bruckhaus Xxxxxxxx (or such
substitute) shall be deemed to be service on the Party concerned.
19
IN WITNESS whereof this Agreement has been entered into as a Deed the day and
year first above written
EXECUTED as a DEED by ) .....................................
KERSAF INVESTMENTS LIMITED ) Director
in the presence of: )
.....................................
Director
EXECUTED as a DEED by ) .....................................
SUN INTERNATIONAL INC. ) Director
in the presence of: )
.....................................
Director
EXECUTED as a DEED by ) .....................................
SUN HOTELS INTERNATIONAL ) Director
in the presence of: )
.....................................
Director
EXECUTED as a DEED by ) .....................................
ROYALE RESORTS HOLDINGS LIMITED ) Director
in the presence of: )
.....................................
Director
EXECUTED as a DEED by ) .....................................
WORLD LEISURE INVESTMENTS LIMITED ) Director
in the presence of: )
.....................................
Director
EXECUTED as a DEED by ) .....................................
SUN HOTELS LIMITED ) Director
in the presence of: )
.....................................
Director
EXECUTED as a DEED by ) .....................................
WORLD LEISURE GROUP LIMITED ) Director
in the presence of: )
.....................................
Director
EXECUTED as a DEED by ) .....................................
ROYALE RESORTS INTERNATIONAL LIMITED) Director
in the presence of: )
.....................................
Director
20
EXECUTED as a DEED by ) .....................................
CALEDONIA INVESTMENTS PLC ) Director
in the presence of: )
.....................................
Director
EXECUTED as a DEED by )
XXXXXXX XXXXXX )
in the presence of: ) .....................................
EXECUTED as a DEED by ) .....................................
SUN INTERNATIONAL MANAGEMENT ) Director
LIMITED )
in the presence of: )
.....................................
Director
EXECUTED as a DEED by ) .....................................
ROSEGROVE LIMITED ) Director
in the presence of: )
.....................................
Director
EXECUTED as a DEED by ) .....................................
SUN INTERNATIONAL INVESTMENTS ) Director
LIMITED )
in the presence of: )
.....................................
Director
EXECUTED as a DEED by ) .....................................
MANGALITSA LIMITED ) Director
in the presence of: )
.....................................
Director
EXECUTED as a DEED by ) .....................................
HOG ISLAND HOLDINGS ) Director
LIMITED )
in the presence of: .....................................
Director
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