Exhibit 99.2
EXECUTION COPY
SETTLEMENT AGREEMENT
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This Settlement Agreement (the "Settlement Agreement") is made as of
this 1st day of November 2002, by and among, Xxxxxxx International Limited, a
corporation organized under the laws of the Bahamas ("Xxxxxxx," as that term is fully
defined in Section 1 herein) (formerly known as Sun International Hotels Limited
("SIHL")), Kersaf Investments Limited, a company incorporated under the laws of the
Republic of South Africa ("Kersaf"), Royale Resorts Holdings Limited, a company
incorporated under the laws of Bermuda ("RRHL"), Sun International Management
Limited, a company incorporated under the laws of Switzerland ("SIMLA" and together
with Kersaf and RRHL the "Kersaf Entities," as that term is fully defined in
Section 1 herein), World Leisure Group Limited, a company incorporated under the laws
of the British Virgin Islands ("WLG," as that term is fully defined in Section 1
herein), Caledonia Investments PLC, a company incorporated under the laws of England
("Caledonia," as that term is fully defined in Section 1 herein), Mangalitsa Limited,
a company incorporated under the laws of The Bahamas ("Mangalitsa," as that term is
fully defined in Section 1 herein) and Cement Merchants SA, a company incorporated
under the laws of Panama ("CMS," as that term is fully defined in Section 1 herein).
WHEREAS, Xxxxxxx and the Kersaf Entities wish to resolve all
outstanding issues pertaining to any monies owing from SIMLA to Xxxxxxx and/or any of
its Affiliates, including pursuant to Section 5.1(b) of the Omnibus Agreement (as
defined herein) (the "SIMLA Contribution"), the payment of which, SIMLA believes,
constitutes an onerous contract to SIMLA; and
WHEREAS, SIMLA also wishes to purchase from Xxxxxxx and/or any of its
Affiliates all interests Xxxxxxx and/or any of its Affiliates own in the venture
referred to below as the Egypt Project, including pursuant to Sections 4.2 through
4.9 inclusive of the Omnibus Agreement; and
WHEREAS, an action was brought by SIHL against the Kersaf Entities in
the Supreme Court of the State of New York, New York County (the "Court"), entitled
Sun International Hotels Ltd. v. Kersaf Investments Ltd., et al., Index No. 604963/01
(N.Y. Sup. Ct. 2001) (the "Action"); and
WHEREAS, the Kersaf Entities deny all allegations that have been
asserted against them in the Action; and
WHEREAS, Xxxxxxx and the Kersaf Entities now wish to terminate the
Action and to settle forever all claims asserted in the Action;
NOW, THEREFORE, Xxxxxxx, the Kersaf Entities, WLG, Caledonia,
Mangalitsa and CMS agree as follows:
1. Definitions. As used herein, the following terms shall have the following
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meanings:
(a) "Affiliate" shall mean, with respect to any specified Person,
any other Person controlling, controlled by or under direct or indirect common control with
such specified Person; provided, however, as to any specified Person that is a party to
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this Settlement Agreement the term "Affiliate" shall exclude any other party to this
Settlement Agreement. For the purposes of this Settlement Agreement, "control," when
used with respect to any specified Person, shall mean, as determined with respect to
each Person pursuant to the laws of the jurisdiction where such Person is organized,
the power to direct the management and policies of such Person, directly or
indirectly, whether through ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" shall have meanings correlative to the
foregoing.
(b) "Caledonia" shall mean Caledonia Investments PLC and its
predecessors, successors, assigns and Affiliates together with their respective past,
current or future officers, directors, employees and agents.
(c) "CMS" shall mean Cement Merchants SA and its predecessors,
successors, assigns and Affiliates together with their respective past, current or future
officers, directors, employees and agents.
(d) "Controlled Affiliate" shall mean with respect to any Person, any
Affiliate thereof which is controlled by such Person.
(e) "Egypt Project" shall have the same meaning set forth in Section 1.1
of the Omnibus Agreement.
(f) "Existing Agreements" shall mean the SIIL Agreement, the SIHL Agreement
and the Rosegrove Agreement, each as defined in the Omnibus Agreement, and the
Shareholders' Agreement, dated 11 October 1993, by and among, RRHL, Sun Hotels
Limited, a company incorporated under the laws of Bermuda, WLG, SIMLA and Xxxxxxx
Xxxxxxx (the "SIMLA Shareholders' Agreement").
(g) "July 3, 2001 Agreements" shall mean the Registration Rights and
Governance Agreement, Omnibus Agreement, Supplemental Agreement to the Original Shareholders'
Agreement and to the Rosegrove Shareholders' Agreement, Irrevocable Proxy Agreement,
Trade Name and Trademark Agreement, Nine Percent (9%) Promissory Note, Stock Pledge
Agreement, Power of Attorney, and Stock Power, entered into by the parties, among
others, as of July 3, 2001, each as modified, amended or supplemented.
(h) "Kersaf Entities" shall mean Kersaf Investments Limited, Royale
Resorts Holdings Limited and Sun International Management Limited and their predecessors,
successors, assigns and Affiliates together with their respective past, current or
future officers, directors, employees and agents; however, excluding for the
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avoidance of doubt, CMS.
(i) "Kersaf's Properties" shall mean the hotel, resort or casino
properties developed, owned or managed by any of the Kersaf Entities, including, but not
limited to, the Sun City resort in South Africa.
(j) "Xxxxxxx" shall mean Xxxxxxx International Limited and its
predecessors, successors, assigns and Affiliates together with their respective past, current
or future officers, directors, employees and agents.
(k) "Xxxxxxx'x Properties" shall mean the hotel, resort or casino
properties developed, owned or managed by Xxxxxxx, including, but not limited to, the
Atlantis Resort and Casino, the Mohegan Sun Resort and Casino, and Sun Resorts' properties in
Mauritius.
(l) "Mangalitsa" shall mean Mangalitsa Limited and its predecessors,
successors, assigns and Affiliates together with their respective past, current or future
officers, directors, employees and agents.
(m) "Minimum Year One Sale" shall have the same meaning set forth in
Section 4.2(a) of the Registration Rights and Governance Agreement.
(n) "Minimum Year One Sale Closing Date" shall mean the date on which the
offering contemplated by the underwriting agreement to be entered into in connection with of
the Minimum Year One Sale has closed.
(o) "9% Note" shall mean that certain Nine Percent (9%) Promissory Note,
dated July 3, 2001, executed by RRHL.
(p) "Note" shall have the meaning set forth in Section 3 herein.
(q) "Omnibus Agreement" shall mean that certain Omnibus Agreement, dated
as of July 3, 2001, as amended and supplemented, by and among SIHL, Sun International
Investments Limited, a company organized under the laws of the British Virgin Islands
("SIIL"), WLG, Kersaf, Caledonia, Rosegrove Limited, a company incorporated under the laws of
the British Virgin Islands ("Rosegrove"), RRHL, Mangalitsa, CMS, Sun International Inc., a
company incorporated under the laws of the Republic of Panama ("SINC"), Sun Hotels
International, a company incorporated under the laws of England, Royale Resorts International
Limited, a company incorporated under the laws of Bermuda, Sun Hotels Limited, a company
incorporated under the laws of Bermuda, World Leisure Investments Limited, a company
incorporated under the laws of Bermuda, Hog Island Holdings Limited, a company incorporated
under the laws of Bermuda, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxx Xxxxxx, Sun
International Management Limited, a company incorporated under the laws of the British Virgin
Islands, Sun International Management (UK) Limited, a company incorporated under the laws of
England, and SIMLA.
(r) "Person" shall have the same meaning set forth in Section 1.1 of the
Omnibus Agreement.
(s) "Power of Attorney" shall mean that certain Power of Attorney,
executed as of July 3, 2001, by Kersaf.
(t) "Registration Rights and Governance Agreement" shall mean that
certain Registration Rights and Governance Agreement, dated as of July 3, 2001, as amended
and supplemented, by and among, SIHL, SIIL, WLG, Kersaf, Caledonia, Mangalitsa, CMS,
Rosegrove RRHL and SINC.
(u) "Stock Pledge" shall mean that certain Stock Pledge Agreement, dated
as of July 3, 2001, between RRHL and SIHL.
(v) "Stock Power" shall mean that certain Stock Power, executed as of
July 3, 2001, by SINC.
(w) "Trade Name and Trademark Agreement" shall mean that certain Trade
Name and Trademark Agreement, dated as of July 3, 2001, by and among SIHL, SIIL, WLG and
SIMLA.
(x) "WLG" shall mean World Leisure Group Limited and its predecessors,
successors, assigns and Affiliates together with their respective past, current or future
officers, directors, employees and agents.
2. Closing. The closing of this Settlement Agreement (the "Closing") shall take
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place at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the earlier of the Minimum Year One Sale
Closing Date or December 2, 2002.
3. Closing Payment. If the Minimum Year One Sale Closing Date occurs on or prior
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to December 2, 2002, at the Closing the Kersaf Entities will pay to Xxxxxxx the sum
of Thirty-Two Million Dollars ($32,000,000) by wire transfer of immediately available
funds (the "Wire Transfer") pursuant to wire instructions delivered by Xxxxxxx to
Kersaf (c/o Xxxxx Xxxxxx-Xxxxxxx, Xxxxx Xxxxx and Xxxxxxx Brand) at least five (5)
calendar days prior to the Closing (the "Designated Account"). If the Minimum Year
One Sale Closing Date has not occurred as of December 2, 2002, at the Closing on
December 2, 2002 SIMLA will issue a promissory note in the principal sum of
Thirty-Two Million Dollars ($32,000,000) in the form attached hereto as Exhibit A
(the "Note").
4. Releases. Effective upon the consummation of the Closing, each of the parties
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to this Settlement Agreement does hereby, and each shall cause each of its respective
Affiliates (collectively, the "Releasors") to, in consideration of the transactions
contemplated by this Settlement Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged (the
"Consideration"), forever release and discharge each of the other parties to this
Settlement Agreement and each of their respective Affiliates, and each of their past
and present respective directors, officers, employees, consultants, equity holders,
advisors, agents, successors and assigns (collectively, the "Releasees") from (a) any
and all debts, demands, actions, causes of action, suits, proceedings, agreements,
contracts, judgments, damages, expense accounts, reckonings, executions, claims and
liabilities whatsoever (including any and all unknown or unanticipated injuries,
damages or losses) of every name and nature (except death and personal injury)
whether known or unknown, whether or not well founded in fact or in law, and whether
in law or in equity or otherwise, whether direct or consequential, compensatory,
exemplary, liquidated or unliquidated, which such Releasor ever had, now has, or
which its legal representatives, successors, assigns, heirs, executors or
administrators can, shall or may have for or by reason of any matter, cause or
anything whatsoever (the "Claims"), for all periods prior to the date of this
Settlement Agreement and (b) all Claims for the period from the date of this
Settlement Agreement through and including the date of the Closing arising out of,
relating to or derived from the July 3, 2001 Agreements or the Existing Agreements
(excluding Clause 11 of the Rosegrove Agreement and Clause 23 of the SIIL Agreement);
provided, however, that nothing in this release shall extend to any of the rights,
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obligations or liabilities set forth in (i) the Registration Rights and Governance
Agreement, (ii) the Power of Attorney, (iii) the Stock Power, (iv) the Trade Name and
Trademark Agreement, and (v) Section 5.1(a) of the Omnibus Agreement, together with
all defined terms used in the Omnibus Agreement, and Articles VI and VII of the
Omnibus Agreement, each to the extent applicable to Section 5.1(a) of the Omnibus
Agreement, all of which shall continue in full force and effect; provided, further,
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that this release shall not release any obligations set forth in this Settlement
Agreement.
5. Stipulation of Discontinuance with Prejudice. At the Closing, after Xxxxxxx
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has received a federal reference number in respect of the Wire Transfer to the
Designated Account or upon execution and delivery of the Note by SIMLA to Xxxxxxx,
Xxxxxxx and the Kersaf Entities, by their counsel, shall execute a Stipulation of
Discontinuance with Prejudice, substantially in the form annexed hereto as Exhibit B,
and, within five (5) days thereafter, counsel for Xxxxxxx shall file the executed
Stipulation of Discontinuance with Prejudice with the Court. Promptly after the
Stipulation of Discontinuance with Prejudice has been "So Ordered" by the Court,
counsel for Xxxxxxx shall furnish counsel for the Kersaf Entities with a copy thereof.
6. July 3, 2001 Agreements.
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(a) Except as set forth below, the July 3, 2001 Agreements shall continue
in full force and effect (as modified by the December 7, 2001 Stipulation entered into
between SIHL and RRHL in the action entitled Sun International Hotels Limited v. Royale
Resorts Holdings Limited, Index No. 01/605239, Supreme Court of the State of New York, County
of New York):
(i) Effective upon the consummation of the Closing, Section 5.1(b)
of the Omnibus Agreement (and for the avoidance of doubt, Section 3.6 of the SIIL Agreement
and Section 5.2 of the SIMLA Shareholders' Agreement) and Article IV of the Omnibus Agreement
shall be discharged, terminated and of no further force and effect and Xxxxxxx shall have no
further rights in the Egypt Project or in receiving any payments under Section 5.1(b) of the
Omnibus Agreement that accrue on or after the Closing.
(ii) Effective as of the date hereof:
(1) The Registration Rights and Governance Agreement is amended
to provide that following the consummation of the Minimum Year One Sale, the Kersaf Entities
agree that they shall have no rights under, and no right to enforce, the provisions of
Section 4.1 of the Registration Rights and Governance Agreement against WLG, Caledonia and
CMS, such that the terms of Section 4.1 can be waived, amended or terminated without any
notice to or approval by any of the Kersaf Entities.
(2) The Registration Rights and Governance Agreement is amended
to provide that Xxxxxxx, Kersaf, WLG, Caledonia, Mangalitsa and CMS agree (1) that as part of
the Minimum Year One Sale, WLG shall have the right to register and sell up to five hundred
thousand (500,000) Shares (as defined in the Registration Rights and Governance Agreement)
(such shares, the "WLG Tag Shares"), (2) the WLG Tag shares shall have the same rights and be
subject to the same obligations as the Caledonia Tag Shares and the CMS Tag Shares (each as
defined in the Registration Rights and Governance Agreement); provided, however, that WLG's
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right to include the WLG Tag Shares shall be subject to the priority of each of the Kersaf
Entities, Caledonia and CMS to include the maximum number of Shares proposed by each of them
respectively.
(3) The Registration Rights and Governance Agreement is amended
to provide that the Minimum Year One Sale Date as defined in Section 4.2(a)(i) of the
Registration Rights and Governance Agreement shall be extended until February 28, 2003.
(4) Article III of the Omnibus Agreement is hereby discharged,
terminated and of no further force and effect.
(5) Each of the 9% Note and the Stock Pledge has been
discharged, terminated and of no further force and effect.
(b) The parties to this Settlement Agreement agree to and each shall
cause its respective Affiliates (to the extent applicable) to enter into any and all
amendments to the July 3, 2001 Agreements necessary to give effect to this Settlement
Agreement.
(c) The Kersaf Entities agree that the proceeds of the Minimum Year One
Sale (less any brokerage commissions, discounts, allowances or other third party expenses
associated with such sale) or any other sale of Shares (as defined in the Registration Rights
and Governance Agreement) by any Kersaf Entity shall be used to pay all amounts outstanding
under the Note. In furtherance of the foregoing, the Kersaf Entities agree that the
underwriting agreement entered into with respect to the Minimum Year One Sale may provide
that, to the extent that the Note is outstanding, the proceeds of the Minimum Year One Sale
shall be used to pay all amounts outstanding under the Note.
(d) Xxxxxxx hereby waives any rights it may have under Section 4.1 of the
Registration Rights and Governance Agreement in respect of the transfer of Shares by the
Kersaf Entities to CMS in connection with a transaction previously described to Xxxxxxx by
Kersaf.
7. Properties.
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(a) Xxxxxxx'x Properties. The Kersaf Entities party to this Settlement
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Agreement warrant that they shall not, and that they shall not permit their respective
Affiliates to advertise, market or in any other way hold themselves out as the
creators, developers, owners, managers, promoters or in any other way involved in any
of Xxxxxxx'x Properties; provided, however, that the Kersaf Entities may disclose
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their interest as a shareholder in Xxxxxxx (i) as required by any applicable law,
(ii) in any regulatory or other filing with a governmental authority, (iii) in any
other factual disclosure of such interest as shareholders or (iv) in any annual or
other regular report to shareholders of the Kersaf Entities, in each case that (x) is
not used in advertising, marketing or promotion by the Kersaf Entities and (y) does
not in any other way suggest that any Kersaf Entity is responsible for or contributed
to (in whole or in part) the development or management of any of Xxxxxxx'x Properties.
(b) Kersaf's Properties. Xxxxxxx warrants that it shall not, and that
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it shall not permit its respective Affiliates to advertise, market or in any other way hold
themselves out as the creators, developers, owners, managers, promoters or in any
other way involved in any of Kersaf's Properties; provided, however, it is
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acknowledged that Xxx Xxxxxxx was the creator, developer, founder and Chief Executive
Officer of all of Kersaf's Properties prior to 1996, and, not withstanding the
foregoing, Xxxxxxx shall be entitled to make any and all references to Xxx Xxxxxxx'x
activities in this regard.
8. Confidentiality.
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(a) Except to the extent required by law or by any relevant securities
exchange or any relevant national or regulatory authority, each of the parties agrees and
covenants that it shall not, and that it shall cause its respective Affiliates not to, issue
any press release or make any public statements about this Settlement Agreement, the
transactions contemplated hereby or the negotiation thereof. In addition, Xxxxxxx, on the one
hand, and the Kersaf Entities party to this Settlement Agreement, on the other hand, agree to
consult with each other with respect to any press release, circulars or otherwise making any
public statements with respect to the Settlement Agreement or the transactions contemplated
hereby.
(b) All information designated as "Confidential" or "Highly Confidential"
pursuant to the Stipulation and Order Governing the Production and Exchange of Confidential
Material entered into between the parties and "So Ordered" by the Court on July 15, 2002
("Confidentiality Stipulation") that was disclosed or produced by the parties in this Action
shall continue to be treated as confidential in accordance with the terms of the
Confidentiality Stipulation and destroyed or returned in accordance with Section 12 of the
Confidentiality Stipulation.
9. Representations and Warranties. Each of Xxxxxxx, Kersaf, WLG, Caledonia,
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Manalitsa and CMS represents and warrants on behalf of itself that:
(a) It is a corporation or company duly organized and validly existing in
good standing under the laws of its jurisdiction of organization or formation.
(b) It has taken all necessary corporate or other similar actions to duly
approve the execution, delivery and performance of this Settlement Agreement.
(c) This Settlement Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding obligations of it, enforceable against it in
accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws now or hereafter in effect relating to or
affecting enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at law).
(d) The execution, delivery and performance of this Settlement Agreement
will not violate any provision of (i) its organization documents, (ii) any law, rule,
regulation, order, judgment or award applicable to it or to its properties or (iii) any
contract to which it is a party or by which it is bound, which would adversely affect its
ability to consummate and perform the transactions contemplated hereby.
(e) Except as provided in Section 5 herein, no consent, approval or
authorization of, or declaration, filing or registration with, any governmental authority, is
required to be made or obtained that has not been obtained or made in connection with the
execution, delivery and performance of this Settlement Agreement, and the consummation of the
transactions contemplated hereby.
(f) The person executing this Settlement Agreement on its behalf is duly
and fully authorized to do so.
(g) It has read this Settlement Agreement in its entirety and knows the
contents thereof, knows that the terms are contractual and not merely recitals, has signed
this Settlement Agreement of its own free will, and has obtained advice of legal counsel.
10. Entire Agreement; Conflicts. This Settlement Agreement, together with
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all exhibits hereto, constitutes the entire agreement among the parties pertaining to the
subject matter of this Settlement Agreement. No purported variation of this
Settlement Agreement, together with all exhibits hereto, shall be effective unless
made in writing between the parties. If there is any conflict between the provisions
of this Settlement Agreement and the July 3, 2001 Agreements, the provisions of this
Settlement Agreement shall prevail.
11. Expenses. The parties shall pay their own fees and expenses, including their
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own attorneys' fees, incurred in connection with this Settlement Agreement and any
transaction contemplated hereby.
12. Remedies to be Cumulative.
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(a) No remedy conferred by any of the provisions of this Settlement
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.
(b) CMS shall not be liable jointly or severally with the Kersaf Entities
for any breaches of this Settlement Agreement by the Kersaf Entities.
13. Waivers. A party's failure to insist on strict performance of any
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provision of this Settlement 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
authorized officer of the party granting such waiver.
14. Further Assurances. After the execution and delivery of this Settlement
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Agreement, the parties shall, and shall cause each of their respective Affiliates to,
take such actions and execute and deliver to any of the other parties such further
agreements as any of the parties may reasonably request to carry out, evidence and
confirm the transactions contemplated by this Agreement.
15. Successors and Assigns. The provisions of this Settlement Agreement
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shall be binding upon and inure to the benefit of the parties hereto and their respective
successors. Except as expressly provided herein, no party may assign, delegate or
otherwise transfer any of its rights or obligations under this Settlement Agreement.
16. Choice of Law; Submission to Jurisdiction and Address for Service. This
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Settlement Agreement shall be governed by and interpreted in accordance with New York
law. The parties hereby irrevocably submit to the non-exclusive jurisdiction of the
Supreme Court of the State of New York, County of New York, and this Settlement
Agreement may be enforced in any court of competent jurisdiction. Each party shall
at all times maintain an agent for service of process in New York and:
(a) Xxxxxxx hereby irrevocably authorizes and appoints Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx (or such other person resident in New York, 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 Settlement Agreement and service on Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx (or such substitute) shall be deemed to be service on the
party concerned.
(b) Each of Kersaf, RRHL and SIMLA hereby irrevocably authorizes and
appoints Xxxxxxxxxx & Xxxxx LLP (or such other person resident in New York, 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 Settlement Agreement and service on Xxxxxxxxxx
& Xxxxx LLP (or such substitute) shall be deemed to be service on the party concerned.
17. Counterparts; Effectiveness. This Settlement Agreement may be entered
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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.
18. Severability. If any term or provision of this Settlement Agreement
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or the application of any provision hereof to any party hereto or set of circumstances is
held invalid or unenforceable, in whole or in part, under any enactment or rule of
law, such term or provision or part thereof shall to that extent be deemed not to
form a part of this Settlement Agreement but the remainder of this Settlement
Agreement and the application of such provision to the other parties hereto or sets
of circumstances shall not be affected, unless the provisions held invalid or
unenforceable shall substantially impair the benefits of the remaining portions of
this Settlement Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Settlement
Agreement to be duly executed by their respective authorized officers and delivered
as of the day and year first above written.
KERSAF INVESTMENTS LIMITED
by
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Name:
Title
ROYALE RESORTS HOLDINGS LIMITED
by
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Name:
Title
SUN INTERNATIONAL MANAGEMENT
LIMITED
by
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Name:
Title
XXXXXXX INTERNATIONAL LIMITED
by
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Name:
Title
WORLD LEISURE GROUP LIMITED
by
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Name:
Title
CALEDONIA INVESTMENTS PLC
by
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Name:
Title
MANGALITSA LIMITED
by
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Name:
Title
CEMENT MERCHANTS SA
by
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Name:
Title
Exhibit A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS OR "BLUE SKY" LAWS (COLLECTIVELY, THE
"SECURITIES LAWS"), AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS
BEEN REGISTERED UNDER THE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION APPLIES
TO SUCH TRANSFER OR DISPOSITION.
SUN INTERNATIONAL MANAGEMENT LIMITED
PROMISSORY NOTE
$32,000,000
New York, New York December 2, 2002
FOR VALUE RECEIVED, the undersigned, Sun International Management
Limited (the "Company" or the "Maker"), promises to pay to the order of XXXXXXX
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INTERNATIONAL LIMITED, a company incorporated under the laws of The Bahamas (the
"Payee"), the principal sum of THIRTY TWO MILLION DOLLARS ($32,000,000) and interest
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on the outstanding principal balance as set forth in this Promissory Note (the
"Note"). Capitalized terms used but not otherwise defined herein shall have the
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meaning ascribed to such terms in that certain Settlement Agreement, dated November
__, 2002 (the "Settlement Agreement"), by and among the Maker and the Payee, among
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others.
1. Interest Rate; Payment.
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(a) The outstanding principal balance of this Note shall
bear interest at a rate of (i) seven percent (7%) per annum during the period from
December 2, 2002 to May 31, 2003 and (ii) ten percent (10%) per annum during the
period from June 1, 2003 to December 2, 2003, until repayment of the principal and
payment of all accrued interest in full. Interest shall be computed on the basis of
a 365 day year and the actual number of days elapsed, and shall be payable quarterly
on the last day of each February, May, August and November, commencing February
2003.
(b) The outstanding balance of any amount owed under this
Note which is not paid when due (including any interest that is not paid when due)
shall bear interest at a rate per annum equal to the sum of (x) the then applicable
rate under Section 1(a) hereof plus (y) two percent (2%) per annum (the "Default
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Interest") with the Default Interest accruing, from and including such due date, on a
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cumulative basis, compounding quarterly.
(c) The Maker shall pay to the Payee the entire principal
amount of this Note then outstanding, together with all interest accrued and unpaid
thereon, no later than the earlier of (i) the Minimum Year One Sale Closing Date and
(ii) December 2, 2003 (the "Maturity Date"). On the Maturity Date, the Maker shall
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pay the applicable amount of principal and interest in lawful money of the United
States of America by wire or bank transfer of immediately available funds to an
account designated by the Payee in writing from time to time not less than two (2)
business days prior to any payment date.
(d) Without limiting the foregoing, if at any time the Maker
or any other Kersaf Entity shall sell any Shares, the proceeds of such sale (less any
brokerage commissions, discounts, allowances or other third party expenses associated
with such sale) shall be paid by the Maker to the Payee and shall be applied, first,
in respect of any interest accrued and unpaid interest on this Note and, second, in
respect of principal amount of this Note.
(e) The obligation of the Maker to make payment pursuant to
this Note shall be construed as a continuing, absolute, unconditional and irrevocable
obligation of payment and performance without regard to (i) any defense (other than
indefeasible payment or an applicable statute of limitations), set-off or
counterclaim that may at any time be available to the Maker or (ii) any other
circumstance whatsoever, whether or not similar to any of the foregoing, that
constitutes, or might be construed to constitute, an equitable or legal discharge of
Maker, in bankruptcy or in any other instance.
2. Prepayment.
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(a) Mandatory Prepayment.
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(i) Upon the occurrence of an Event of Default under
Section 3(c) or (d), the outstanding principal of and all accrued and unpaid interest
on this Note shall automatically be accelerated and shall automatically become
immediately due and payable, without presentment, demand, protest or notice of any
kind, all of which are expressly waived by the Maker, notwithstanding anything
contained herein to the contrary.
(ii) The Payee shall, at its sole option, have the
right to require the Maker to pay the outstanding principal of and all accrued and
unpaid interest on this Note upon the occurrence and continuation of any of the
following events: (A) an Event of Default under Section 3(a), (b), (e), (f) or (g),
(B) the closing by the Company of any sale or other disposition of all or
substantially all of its assets (other than the Shares (as defined in the
Registration Rights and Governance Agreement dated the date hereof (as amended, the
"Governance Agreement"), by and among the Maker and the Payee, among others), whether
---------------------
in one transaction or in a series of transactions, (C) the closing by the Company of
any consolidation or merger into another entity as a result of which the equity
holders of the Maker or their Affiliates immediately prior to such transaction do not
beneficially own at least 50% of all equity interest in the surviving corporation, or
(D) any event that constitutes a Change of Control (as defined below) of the Company,
in one transaction or in a series of transactions. No later than fifteen (15)
business days prior to the occurrence of an event set forth in clauses (A), (B), (C)
or (D) above, the Company shall give written notice of such event to the Payee.
"Change of Control" means any "person" or "group" (as such terms are used for purposes
------------------
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange
---------
Act")), other than any member of the Kersaf Group (as defined in the Governance
---
Agreement) or any other person or group that includes such member, becoming the
"beneficial owner" (as such term is used in Rule 13d-3 of the Exchange Act), directly
or indirectly, of more than fifty percent (50%) of the total voting power in the
aggregate normally entitled to vote in the election of directors, managers or
trustees, as applicable, of the Maker.
(iii) Any mandatory prepayment under this Section 3(a)
shall include payment of reasonable costs and expenses under Section 5(c) (including
reasonable attorneys' fees and expenses) incurred by the Payee and associated with
such prepayment, if any.
(b) Optional Prepayment. The Company shall have the right
--------------------
to prepay this Note, in whole or in part, at any time and from time to time upon five
(5) business days' prior written notice to the Payee, without premium or penalty.
3. Events of Default. An "Event of Default" shall occur if:
----------------- ----------------
(a) the Maker shall default in the payment of the principal
of this Note, when and as the same shall become due and payable, whether on the
Maturity Date or at a date fixed for prepayment or by acceleration or otherwise or
the Maker shall default in the payment of interest on this Note within three (3)
business days of the date when due;
(b) the Maker shall breach (other than any breach that is
immaterial) any covenant or agreement contained in this Note, the Settlement
Agreement or the Governance Agreement and such breach shall continue for five (5)
business days after the Maker receives notice of such failure;
(c) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction seeking
(i) relief in respect of the Maker or of a substantial part of the Maker's property or
assets, under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other United States or foreign bankruptcy, insolvency, receivership
or similar law (any such law, a "Bankruptcy Law"), and such proceeding or petition
---------------
shall not be dismissed within sixty (60) days, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for a substantial
part of the property or assets of the Maker, (iii) the entry of an order or decree by
a court of competent jurisdiction for the winding up or liquidation of the Maker and
the continuance of such order or decree unstayed and in effect for a period of sixty
(60) days;
(d) the Maker shall (i) voluntarily commence any proceeding
or file any petition seeking relief under a Bankruptcy Law, (ii) consent to the
institution of or the entry of an order for relief against it, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for a substantial part of the property or assets of
the Maker, (iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail generally to
pay its debts as they become due or (vii) take any action for the purpose of
effecting any of the foregoing;
(e) one or more judgments or orders for the payment of money
in excess of five million United States Dollars ($5,000,000) in the aggregate shall
be rendered against the Maker and such judgment(s) or order(s) shall continue
unsatisfied and unstayed for a period of thirty (30) days;
(f) the Maker shall default in the payment of any principal,
interest or premium with respect to indebtedness (excluding trade payables and other
indebtedness entered into in the ordinary course of business) in excess of five
million United States Dollars ($5,000,000) in the aggregate for borrowed money or any
obligation which is the substantive equivalent thereof and such default shall
continue for more than the period of grace, if any, or if any such indebtedness or
obligation shall be declared due and payable prior to the stated maturity thereof; or
(g) any material provisions of this Note shall terminate
(other than in accordance with its terms) or become void or unenforceable or the
Maker shall so assert in writing.
4. Suits for Enforcement.
---------------------
(a) Upon the occurrence and during the continuance of any
one or more Events of Default, the holder of this Note may proceed to protect and
enforce its rights by suit in equity, action at law or by other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained herein or in aid of the exercise of any power granted in this Note, or may
proceed to enforce the payment of this Note, or to enforce any other legal or
equitable right it may have as a holder of this Note.
(b) The holder of this Note may direct the time, method and
place of conducting any proceeding for any remedy available to itself.
(c) In case of any Event of Default, the Maker will pay to
the Payee the costs and expenses of the Payee in collecting and enforcing this Note,
including without limitation, reasonable fees, disbursements and other charges of
counsel incurred in connection with any action in which the Payee prevails.
5. Gross-up. If at any time any applicable law, regulation or
--------
regulatory requirement, or any governmental authority, monetary agency or central
bank requires the Company to make any deduction or withholding from any payment made
in respect of any amount due from the Company hereunder, the amount so due shall be
increased to the extent necessary to ensure that, after the making of such deduction
or withholding, the Payee receives, on the due date for such payment, a net sum equal
to the sum which it would have received had no such deduction or withholding been
required to be made.
6. Notices. All notices, demands and other communications
-------
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first class mail, return receipt requested, telecopier,
courier service, overnight mail or personal delivery:
(a) if to the Company:
Clarendon House
Church Street
Xxxxxxxx XX DX, Bermuda
Attention: The Company Secretary
Facsimile: 00-00-0000-0000
and
Kersaf Investments Limited
00 Xxxxxxx Xxxxx
Xxxxxxx
Xxxxxxx 0000
Xxxxx Xxxxxx
Attention: The Company Secretary
Facsimile: 010-27-11-783-7446
with a copy to:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: 000-000-0000
(b) if to the Payee:
Xxxxxxx International Limited
P.O. Box N-4777
Nassau, The Bahamas
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: 000-000-0000
7. Successors and Assigns. This Note shall inure to the benefit
------------------------
of and be binding upon the successors and permitted assigns of the parties hereto.
The Maker shall not assign any of its rights or obligations under this Note without
the prior written consent of the Payee.
8. Amendment and Waiver.
--------------------
(a) No failure or delay on the part of the Payee in
exercising any right, power or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Maker or the Payee at law, in equity or
otherwise.
(b) Any amendment, supplement or modification of or to any
provision of this Note, any waiver of any provision of this Note and any consent to
any departure by the Maker from the terms of any provision of this Note, shall be
effective
(i) only if it is made or given in writing and signed by the Maker and the holder of
this Note and (ii) only in the specific instance and for the specific purpose for
which made or given.
9. Headings. The headings in this Note are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
10. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF
LAW PRINCIPLES THEREOF.
11. Waiver of Jury Trial and Setoff. The Maker and Payee hereby
----------------------------------
waive trial by jury in any litigation in any court with respect to, in connection
with, or arising out of this Note or any instrument or document delivered pursuant to
this Note, or the validity, protection, interpretation, collection or enforcement
thereof.
12. Consent to Jurisdiction. The Maker hereby irrevocably consents
-----------------------
to the jurisdiction of the United States federal courts and the courts of the State
of New York located in New York, New York, in connection with any action or
proceeding arising out of or relating to this Note or any document or instrument
delivered pursuant hereto.
13. Severability. If any one or more of the provisions contained
------------
herein, or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any other provisions hereof shall not be in any way impaired,
unless the provisions held invalid, illegal or unenforceable shall substantially
impair the benefits of the remaining provisions hereof.
14. Further Assurances. The Maker shall execute such documents and
-------------------
perform such further acts (including, without limitation, obtaining any consents,
exemptions, authorizations or other actions by, or giving any notices to, or making
any filings with, any governmental authority or any other person) as may be
reasonably required or appropriate to carry out or to perform the provisions of this
Note.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned have caused this Note to be duly
executed and delivered as of the date first above
written.
SUN INTERNATIONAL MANAGEMENT LIMITED
By: ______________________________________________
Name:
Title:
&
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
...........................................................x
SUN INTERNATIONAL HOTELS LIMITED ::::::::::
x
Plaintiff,
Index No. 604963/01
v. (IAS Part 49)
(Justice Xxxx)
KERSAF INVESTMENTS LIMITED,
ROYALE RESORTS HOLDINGS LIMITED and STIPULATION OF
SUN INTERNATIONAL MANAGEMENT LIMITED, DISCONTINUANCE
WITH PREJUDICE
--------------
Defendants.
...........................................................
IT IS HEREBY STIPULATED AND AGREED by plaintiff and defendants, by
their respective undersigned attorneys, that whereas no party hereto is an infant, an
incompetent person for whom a committee has been appointed or a conservatee, and no
person not a party has an interest in the subject matter of this action, the
above-entitled action be, and the same hereby is, discontinued with prejudice,
without costs or attorneys' fees to any party.
Dated:..New York, New York
.........November ___, 2002
XXXX, WEISS, RIFKIND, XXXXXXX & XXXXXXXX
By:_____________________________________
Xxxxxx X. Xxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Attorneys for Plaintiff
XXXXXXXXXX & XXXXX LLP
By:_____________________________________
Xxxxxx X. Xxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Attorneys for Defendants
