RESTRUCTURING AGREEMENT
THIS AGREEMENT dated as of July 21, 2000, is by and among Sea Containers
Ltd., a Bermuda company ("SCL"), Orient-Express Hotels Ltd., a Bermuda company
("XXXX"), Orient-Express Hotels Inc., a Delaware corporation ("OEHI"),
Orient-Express Properties Inc., a Delaware corporation ("OEP"), Sea Containers
UK Ltd., a United Kingdom company ("SCUK"), Sea Containers British Isles Ltd., a
United Kingdom company ("SCBI"), and Orient-Express Hotels UK Ltd., a United
Kingdom company ("OEHUK").
WHEREAS, the parties mutually desire that, between the date hereof and the
Closing Date (as such term is defined hereunder):
(i) OEHI will sell to SCL all of the capital stock of Sea Containers
America Inc., a Delaware corporation ("SCAM"), thereby selling to SCL the
subsidiaries of SCAM (as listed on Schedule 1.1 hereto);
(ii) after giving effect to the sale of SCAM, OEHI will transfer to OEP
all of its assets, which are comprised of the capital stock of the remaining
subsidiaries of OEHI (as listed on Schedule 2.1 hereto);
(iii) SCL will sell to XXXX all of the capital stock of certain of its
wholly-owned subsidiaries, and its shares of stock in certain less than
wholly-owned subsidiaries, which are engaged in the hotel and leisure businesses
(as listed in Schedule 3.1 hereto);
(iv) SCUK will transfer to OEHUK all of the capital stock of certain of
its wholly-owned subsidiaries which are engaged in the hotel and leisure
businesses (as listed on Schedule 4.1 hereto);
(v) SCBI will transfer to OEHUK all of the capital stock of certain of its
wholly-owned subsidiaries which are engaged in the hotel and leisure businesses
(as listed on Schedule 5.1 hereto);
(vi) SCUK will sell to XXXX all of the capital stock of OEHUK, thereby
selling to XXXX the subsidiaries of OEHUK (as listed on Schedule 6.1 hereto);
and
(vii) SCL will execute a trust declaration whereby XXXX will acquire the
beneficial interest in SCL's 50% shareholding in Ferrocarril Transandino S.A.;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereby agree as follows:
SECTION 1. SALE FROM OEHI TO SCL.
1.1 On or before the Closing Date, OEHI will sell and deliver to SCL, and
SCL will buy and receive from OEHI, all of the right, title and interest of OEHI
in and to the capital stock of SCAM. (The subsidiaries of SCAM are listed on
Schedule 1.1 hereto).
SECTION 2. TRANSFER FROM OEHI TO OEP.
2.1 On or before the Closing Date, after giving effect to the sale
described in Section 1.1, OEHI will transfer and deliver to OEP, and OEP will
accept and receive from OEHI, for payment of no consideration, all of the right,
title and interest of OEHI in and to all of the assets of OEHI, which consist of
the capital stock of the entities listed on Schedule 2.1 hereto.
SECTION 3. SALE FROM SCL TO XXXX.
3.1 On or before the Closing Date, SCL will sell and deliver to XXXX, and
XXXX will buy and receive from SCL, all of the right, title and interest of SCL
in and to the capital stock of the entities listed on Schedule 3.1 hereto.
SECTION 4. TRANSFER FROM SCUK TO OEHUK.
4.1 On or before the Closing Date, SCUK will transfer and deliver to
OEHUK, and OEHUK will accept and receive from SCUK, for payment of no
consideration, all of the right, title and interest of SCUK in and to the
capital stock of the entities listed on Schedule 4.1 hereto.
SECTION 5. TRANSFER FROM SCBI TO OEHUK.
5.1 On or before the Closing Date, SCBI will transfer and deliver to
OEHUK, and OEHUK will accept and receive from SCBI, for payment of no
consideration, all of the right, title and interest of SCBI in and to the
capital stock of the entities listed on Schedule 5.1 hereto.
2
SECTION 6. SALE FROM SCUK TO XXXX.
6.1 On or before the Closing Date, and after giving effect to the
transfers described in Sections 4.1 and 5.1, SCUK will sell and deliver to XXXX,
and XXXX will buy and receive from SCUK, all of the right, title and interest of
SCUK in and to the capital stock of OEHUK. (The subsidiaries of OEHUK, after
giving effect to the transfers described in Sections 4.1 and 5.1, are listed on
Schedule 6.1 hereto.)
SECTION 7. FERROCARRIL TRANSANDINO S.A.
7.1 On or before the Closing Date, SCL will execute a declaration of trust
in form and substance satisfactory to SCL and XXXX whereby XXXX will acquire the
beneficial interest in SCL's 50% shareholding in Ferrocarril Transandino S.A.
(Peru).
SECTION 8. PAYMENT.
8.1 On or before the Closing Date, at the direction of OEHI, SCL will pay
to OEP, and OEP will receive, $1.00 in cash as the purchase price for the
purchase and sale described in Section 1.1.
8.2 On or before the Closing Date, XXXX will pay to SCL, and SCL will
receive on behalf of itself and SCUK, as the purchase price for the purchases
and sales described in Sections 3.1, 6.1 and 7.1, 23,440,601 Class A common
shares of XXXX and 19,303,877 Class B common shares of XXXX.
SECTION 9. REPRESENTATIONS AND WARRANTIES.
9.1 Each party hereto represents and warrants to all of the other parties
hereto that:
(a) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of such party;
(b) this Agreement constitutes the legal, valid and binding obligation of
such party;
(c) this Agreement does not constitute, and the execution, delivery and
performance of this Agreement will not result in, any violation of the articles
of incorporation, by-laws or similar
3
documents of such party or of any judgment, decree or agreement to which it is a
party or by which it is bound; and
(d) all necessary authorizations of the transactions contemplated by this
Agreement required to be obtained by such party from any government, foreign and
domestic, Federal, State or local, have been obtained.
9.2 Each transferor and seller named in Sections 1 through 7 (each, a
"Transferor") hereby represents and warrants to its transferee or buyer (each, a
"Transferee"), as the case may be, that the shares of capital stock transferred
and sold pursuant to Sections 1 through 7 are validly issued, fully paid and
nonassessable.
9.3 Additional representations and warranties are set out in footnotes to
the Schedules to this Agreement.
SECTION 10. INDEMNITIES.
10.1 Each Transferee hereby agrees to indemnify and save harmless its
Transferor from any liability, damage, cost or expense, including reasonable
attorneys' fees, arising from the status of such Transferor as a shareholder or
stockholder of the entities transferred or sold by such Transferor hereunder.
SECTION 11. CLOSING.
11.1 The closing hereunder (the "Closing") will take place at 12:00 noon,
Bermuda time, on the date the initial public offering of shares in XXXX is
completed (the "Closing Date"), at the offices of SCL, 41 Cedar Avenue,
Hamilton, Bermuda, or at such other time and place as SCL and XXXX may agree.
All transfers and sales contemplated by this Agreement will be deemed to have
occurred and to be effective on the Closing Date.
SECTION 12. NOTICES.
12.1 Any notice, consent, invoice, approval or payment required or
permitted to be given or sent hereunder must be in writing and delivered
personally or by mail (registered or certified, return receipt requested),
Federal Express or equivalent courier service, or given by facsimile or
telecopy. All notices sent in accordance with this Section shall be effective
only if and when received by the party to be notified. For purposes of notice,
the address of the parties shall be as set forth below or as may be designated
in writing from time to time:
4
(a) If to SCL, SCUK, SCBI or OEHUK, to:
Sea Containers Services Ltd.
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Xxxxxxx
Attention: Xx. Xxxxxx X. X'Xxxxxxxx and
Xxxxx X. Xxxxxxxxxxxx, Esq.
Telecopier: 0000-000-0000
(b) If to XXXX, OEHI or OEP, to:
Orient-Express Hotels Ltd.
c/o Orient-Express Services Ltd.
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Xxxxxxx
Attention: Xx. Xxxxx X.X. Xxxxxxxx and
Xxxxx X. Xxxxxxxxxxxx, Esq.
Telecopier: 0000-000-0000
(c) with a copy in either case to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier: 000-000-0000
SECTION 13 MISCELLANEOUS.
13.1 At and subsequent to the Closing, each Transferor transferring or
selling shares of capital stock hereunder will take all actions in its power to
complete any incomplete transfer or sale at the earliest possible date following
the Closing and will deliver such additional instruments of assignment and
transfer as its Transferee may reasonably require to vest in such Transferee all
right, title and interest in and to such shares. Each of the parties shall do,
execute and take all necessary and reasonable actions, and perform all such
documents, acts and things as may be reasonably within its power to give effect
to the provisions of this Agreement and to procure that such provisions are
observed and performed. All economic rights and benefits of the transfers and
sales under this Agreement, whether complete or incomplete, will accrue to and
benefit the respective Transferees no later than as of the Closing Date.
5
13.2 This Agreement may be amended, modified or supplemented only by a
written instrument executed by an authorized signatory of each of the parties
hereto. Any modification or variation of this Agreement other than in accordance
with this Section shall be null and void.
13.3 This Agreement may not be assigned in whole or in part by any party
hereto without the prior written consent of the other parties. Any attempted or
purported assignment by any party other than in accordance with this Section
shall be null and void.
13.4 This Agreement may be executed in any number of counterparts, and by
any party on separate counterparts, each of which as so executed and delivered
shall be deemed an original but all of which together shall constitute one and
the same instrument, and it shall not be necessary in making proof of this
Agreement as to any party hereto to produce or account for more than one such
counterpart executed and delivered by such party.
SECTION 14. PROPER LAW AND JURISDICTION.
14.1 This Agreement shall be governed by and construed in accordance with
the internal substantive laws of the Islands of Bermuda.
14.2 If any party shall have the right to seek recourse to a court with
respect to any dispute arising out of or related to this Agreement or the
transactions contained in or contemplated by this Agreement, whether in tort or
contract or at law or in equity, then any action or proceeding in respect of any
such dispute shall be brought exclusively in the Courts of the Islands of
Bermuda.
* * * * *
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
SEA CONTAINERS LTD. ORIENT-EXPRESS HOTELS LTD.
By: /S/ X. X. X'Xxxxxxxx By: /s/ X. Xxxxxxx
--------------------------- ------------------------------
Name: Xxxxxx X. X'Xxxxxxxx Name: Xxxxx Xxxxxxx
Title: Senior Vice President - Title: Vice President and
Finance and Chief Treasurer
Financial Officer
ORIENT-EXPRESS HOTELS INC. ORIENT-EXPRESS PROPERTIES INC.
By: /s/ X. Xxxxxxx By: /s/ X. Xxxxxxx
--------------------------- ------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx
Title: Vice President and Title: Vice President and
Treasurer Treasurer
SEA CONTAINERS UK LTD. SEA CONTAINERS BRITISH ISLES LTD.
By: /s/ X. X. X'Xxxxxxxx By: /s/ X. X. X'Xxxxxxxx
--------------------------- ------------------------------
Name: Xxxxxx X. X'Xxxxxxxx Name: Xxxxxx X. X'Xxxxxxxx
Title: Director and Secretary Title: Director and Secretary
ORIENT-EXPRESS HOTELS UK LTD.
By: /s/ X. Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Director
7
SCHEDULE 1.1
SCAM AND ITS SUBSIDIARIES(1)
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
----------------------------------------- ------------------- -------------------
Sea Containers America Inc. Delaware
Charleston Container Shops Inc. Delaware
Charleston Marine Containers Inc. Delaware
Houston Marine Containers Inc. Delaware
SeaCo Texas Properties Inc. Delaware
Sea Containers West Inc. Delaware
SeaStreak America Inc. Delaware
GE SeaCo America LLC Delaware 50%
Sea Containers Agencies Inc. Delaware
Sea Containers Caribbean Inc. Delaware
Sea Containers U.S. Gulf Inc. Delaware
Sea Containers South Atlantic Inc. Delaware
Highlands Landing Corp. Delaware
--------
(1) OEHI represents and warrants to SCL as follows: SCAM is a direct
wholly-owned subsidiary of OEHI. All of the other companies listed on this
Schedule 1.1 are direct wholly-owned subsidiaries of SCAM, except as otherwise
noted in the column captioned "% of Ownership, If Less Than 100%".
SCHEDULE 2.1
SUBSIDIARIES OF OEHI (AFTER SECTION 1.1)(2)
COMPANY JURISDICTION OF % OF OWNERSHIP,
ORGANIZATION IF LESS THAN 100%
---------------------------------------------- ------------------- -----------------------
Windsor Court Hotel Inc. Delaware
Windsor Court Hotel L.P. Delaware 5%
'21' Club Properties Inc. Delaware
'21' Club Inc. New York
Hotel Cipriani Inc. Delaware
Europa Leisure and Health Tours Ltd. U.K.
Harry's Bar Ltd. U.K. 49%
Mountbay Holdings Inc. Delaware
Inn at Perry Cabin Corp. Maryland
Keswick Hall Inc. Virginia
Keswick Corporation Virginia
Keswick Utilities Inc. Virginia
Orient-Express Bahamas Properties Inc. Delaware
Orient-Express Services Inc. Delaware
Venice Simplon-Orient-Express Inc. Delaware
Orient-Express Hotels Louisiana Inc. Delaware
Charleston Place Holdings Inc. Delaware
Charleston Center LLC Delaware 19.9%
Eastern & Oriental Express Ltd. Bermuda 25%
E&O Services Singapore Pte. Ltd. Singapore
E&O Services Thailand Co. Ltd. Thailand
Etablissement Vanderelst Liechtenstein 46.7%
Orient-Express Hotels Pacific Ltd. Hong Kong
Orient-Express Hotels Asia Ltd. Hong Kong
Orient-Express Holdings Ltd. U.K.
Venice Simplon-Orient Express Ltd. U.K. 36%
Sea Containers Pacific Inc. Delaware
Orient-Express Hotels Ltd. Japan
----------
(2) OEHI represents and warrants to OEP as follows: After giving effect to
Section 1.1, the companies listed in this Schedule 2.1 will constitute all of
the direct and indirect subsidiaries of OEHI. Direct subsidiaries are listed in
the first column, and, in the case of each indirect subsidiary, its name is
indented and is listed immediately below its direct corporate parent. The common
shares of each company listed are owned 100% by such company's direct corporate
parent, except as otherwise noted in the column captioned "% of Ownership, If
Less Than 100%".
SCHEDULE 3.1
SUBSIDIARIES OF SCL TO BE SOLD TO OEHL3
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
--------------------------------------- ------------------- --------------------
Companhia Hoteis Palace Brazil 93.2%
Windsor Court New Orleans
Properties Ltd. Bermuda
Windsor Great Park Inc. Delaware
Windsor Court Hotel L.P. Delaware 95%
Leisure Holdings Asia Ltd. Bermuda
Myanmar Hotels and Cruises Ltd. Myanmar
Vessel Holdings 2 Ltd. Bermuda
Sea Containers Peru Rail Ltd. Bermuda
Sea Containers Peru Holdings S.A. Peru
Meviasur SAC Peru 50%
PeruRail SA Peru 50%
----------
(3) SCL represents and warrants to XXXX as follows: All of the companies
listed in this Schedule 3.1 are direct or indirect subsidiaries of SCL. Direct
subsidiaries are listed in the first column, and, in the case of each indirect
subsidiary, its name is indented and is listed immediately below its direct
corporate parent. The common shares of each company listed are owned 100% by
such company's direct corporate parent, except as otherwise noted in the column
captioned "% of Ownership, If Less Than 100%".
SCHEDULE 4.1
SUBSIDIARIES OF SCUK TO BE TRANSFERRED TO OEHUK4
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
--------------------------------------- ------------------- --------------------
Collection Venice Simplon-
Orient-Express Ltd. U.K.
Orient-Express Ltd. U.K.
Orient-Express Services Ltd. U.K.
Venice Simplon-Orient-
Express Tours Ltd. U.K.
----------
(4) SCUK represents and warrants to OEHUK that all of the companies listed
on this Schedule 4.1 are direct wholly-owned subsidiaries of SCUK.
SCHEDULE 5.1
SUBSIDIARIES OF SCBI TO BE TRANSFERRED TO OEHUK5
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
--------------------------------------- ------------------- --------------------
Reids Hotel Madeira Limited U.K.
Regency Rail Cruises Ltd. U.K.
Horatio Properties Ltd. U.K.
Blejan Investments (Pty) Ltd. South Africa
Egerland Investments (Pty) Ltd. South Africa
Fraser Helmsley Properties (Pty) Ltd. South Africa
Helmsley Motor Inn (Pty) Ltd. South Africa
Mount Xxxxxx Hotel Ltd. U.K.
Mount Xxxxxx Commercial Properties
(Pty) Ltd. South Africa
Mount Xxxxxx Residential Properties
(Pty) Ltd. South Africa
----------
(5) SCBI represents and warrants to OEHUK as follows: Reids Hotel Madeira
Limited, Regency Rail Cruises Ltd. and Horatio Properties Ltd. are wholly-owned
subsidiaries of SCBI. All of the other companies listed on this Schedule 5.1 are
wholly-owned subsidiaries of Horatio Properties Ltd.
SCHEDULE 6.1
OEHUK AND ITS SUBSIDIARIES (AFTER SECTIONS 4.1 AND 5.1)6
JURISDICTION OF % OF OWNERSHIP,
COMPANY ORGANIZATION IF LESS THAN 100%
--------------------------------------- ------------------- --------------------
Orient-Express Hotels UK Ltd. U.K.
Air Xaxaba (Pty) Ltd. Botswana
Exclusive Destinations (Pty) Ltd. South Africa
Orient-Express Hotels Botswana Ltd. Bermuda
Signature Boutique Ltda. Brazil
Xaxaba Camp (Pty) Ltd. Botswana
Game Viewers (Pty) Ltd. Botswana
Gametrackers (Botswana) (Pty) Ltd. Botswana
Reids Hotel Madeira Limited U.K.
Regency Rail Cruises Ltd. U.K.
Horatio Properties Ltd. U.K.
Blejan Investments (Pty) Ltd. South Africa
Egerland Investments (Pty) Ltd. South Africa
Fraser Helmsley Properties (Pty)
Ltd. South Africa
Helmsley Motor Inn (Pty) Ltd. South Africa
Mount Xxxxxx Hotel Ltd. U.K.
Mount Xxxxxx Commercial
Properties (Pty) Ltd. South Africa
Mount Xxxxxx Residential
Properties (Pty) Ltd. South Africa
Collection Venice Simplon-Orient-
Express Ltd. U.K.
Orient-Express Ltd. U.K.
Orient-Express Services Ltd. U.K.
Venice Simplon-Orient-Express Tours
Ltd. U.K.
----------
(6) SCUK represents and warrants to XXXX as follows: After giving effect to
Sections 4.1 and 5.1, all of the companies listed in this Schedule 6.1 will be
direct or indirect subsidiaries of SCUK. Direct subsidiaries are listed in the
first column, and, in the case of each indirect subsidiary, its name is indented
and is listed immediately below its direct corporate parent. The common shares
of each company listed will be owned 100% by such company's direct corporate
parent, except as otherwise noted in the column captioned "% of Ownership, If
Less Than 100%".
