SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE OF CLAIMS
THIS SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE OF CLAIMS (the
"Agreement"), dated this ____________ day of November, 1998, by and among
GLOBAL ENTERTAINMENT GROUP, INC., N.V., an Aruban limited liability company
("Global"), GLOBAL CASINOS, INC., a Utah corporation (the "Global Parent"),
DUTCHCO N.V., an Aruban limited liability company ("DutchCo"), and ARUBA
CARIBBEAN HOTEL LIMITED PARTNERSHIP, a Delaware limited partnership
("Landlord"),
WITNESSETH:
WHEREAS, Global and DutchCo executed that certain Settlement Agreement
dated as of April 22, 1998 (the "Settlement Agreement") for the purposes set
forth therein;
WHEREAS, Global and DutchCo executed that certain Amended and Restated
Aruba Caribbean Resort and Casino Lease Agreement dated as of April 22, 1998
(the "Original Lease"), pursuant to which Original Lease DutchCo, as landlord,
leased and demised to Global, as tenant, certain space in the hotel located at
X.X. Xxxxxxxxx Xxxxxxxxx 00, Xxxx Xxxxx, Xxxxx formerly known as the Radisson
Aruba Caribbean Resort and Casino, now known as the Radisson Aruba Resort, Spa
& Casino, referred to in the Original Lease and hereinafter referred to as the
"Hotel";
WHEREAS, the Original Lease was amended pursuant to that certain First
Amendment to Amended and Restated Aruba Caribbean Resort and Casino Lease
Agreement dated as of July 28, 1998 (the "First Amendment to Lease") by and
among Global, DutchCo and Landlord, in its capacity as successor landlord to
DutchCo;
WHEREAS, the Original Lease, as amended by the First Amendment to Lease,
is hereinafter collectively referred to as the "Lease";
WHEREAS, certain disputes have arisen between Global and DutchCo
concerning certain matters with respect to the Settlement Agreement, and
Global and DutchCo desire to compromise, resolve and settle all of their
disputes regarding the Settlement Agreement;
WHEREAS, certain disputes have arisen between Global and the Landlord
concerning certain matters with respect to the Lease, and Global and the
Landlord desire to compromise, resolve and settle all of their disputes
regarding the Lease;
WHEREAS, the parties hereto have agreed to join in the mutual release
set forth herein and to release all parties from liability upon the terms set
forth herein; and
WHEREAS, DutchCo and the Landlord have requested that the Global Parent
execute this Agreement for the purposes of causing Global and the Global
Parent, on behalf of themselves and all of their respective Affiliates (as
such term is defined on Exhibit A attached hereto) to join in the mutual
releases set forth below, and the Global Parent desires to execute this
Agreement for such purpose;
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. INCORPORATION OF RECITALS; DEFINITIONS; MEANING OF TERMS. Each of
the Recitals set forth above is incorporated herein as if set forth herein
verbatim. As used in this Agreement, each of the terms set forth on Exhibit A
shall have the meanings ascribed therein. All other capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Lease.
2. PAYMENTS TO GLOBAL. Within fourteen days after Landlord's lender
has approved this Agreement, the Landlord shall pay Global the sum of U.S.
$400,000.00 less the sum of $22,058.00 (which sum represents payments to have
been made prior to the execution of this Agreement as listed in the right hand
column of Schedule A attached hereto and which will be made by Landlord).
Such payment shall be made by wire transfer instructions of immediately
available funds to an account or accounts designated by Global. Any such
payments shall be subject to any embargos made against Global or the Global
Parent in Aruba and the direction of any court in Aruba administering any such
embargos.
3. HOTEL CREDITS. As additional consideration for Global entering into
this Agreement, for the six year period commencing January 1, 2000 and
terminating December 31, 2005 (the "Hotel Credit Term"), subject to the
following terms and conditions, Global, the Global Parent and each of their
Permitted Transferees (collectively, the "Beneficiaries") shall be entitled to
Hotel Credits aggregating an amount of U.S. $100,000.00 for each of the six
Calendar Years (the "Annual Hotel Credit"). The following terms and
restrictions shall apply to the ability of the Beneficiaries to use the Hotel
Credits:
(a) The Landlord shall have the right to designate, by written notice
delivered to the Global Parent no later than October 1 prior to the
commencement of each Calendar Year during the Hotel Credit Term, the
Black Out Period for such Calendar Year. The Beneficiaries shall
not be entitled to use any Hotel Credits during the Black Out
Period. The weeks or days, as applicable, comprising the Black Out
Period do not need to be consecutive.
(b) No more than U.S.$15,000.00 of Hotel Credits (the "High Season
Monthly Credit Limit") may be used per month in each of the months
of January, February and March (the "High Season Months") in any one
Calendar Year. No more than $20,000.00 of Hotel Credits (the "Low
Season Monthly Credit Limit") may be used per month in any of the
remaining months of April through December (the "Low Season Months")
of any one Calendar Year. If all or any portion of the High Season
Monthly Credit Limit or the Low Season Monthly Credit Limit is not
used as a result of a portion of such High Season Month or Low
Season Month being part of a Black Out Period, the balance of such
unused portion of the High Season Monthly Credit Limit or Low Season
Monthly Credit Limit for such High Season Month or Low Season Month,
as applicable, may be used in any of the remaining High Season
Months or Low Season Months. In determining the portion of a High
Season Monthly Credit Limit or Low Season Monthly Credit Limit not
used because of a portion of such month being part of a Black Out
Period, the same shall be calculated to be the lesser of: (x) a
fraction whose numerator is the number of Black Out days in such
month and whose denominator is the number of days in such month
multiplied by the lesser of either the Monthly Credit Limit for such
month or the remaining Annual Hotel Credit for such month, (y) the
portion of the Monthly Credit Limit for such month not actually
utilized, or (z) the Annual Hotel Credit for such year outstanding
at the end of such month.
(c) No more than thirty three and one-third (33.33%) percent of the
Hotel Credits in any single stay at the Hotel by any individual
Beneficiary may be applied against Food and Beverage Charges.
(d) The Annual Hotel Credit is non-cumulative and, accordingly, there
shall be no carry forward to any other Calendar Year of any portion
of the Annual Hotel Credit not used in any Calendar Year, except to
the extent: (1) there occurs in any Calendar Year a wrongful act or
omission or willful breach of this Agreement by the Landlord which
prevents in such Calendar Year the use of all of the Annual Hotel
Credits which were otherwise available for use in such Calendar
Year; or (2) in such Calendar Year the Hotel is not open to the
public for business for a period of three (3) months or more,
whether as the result of the occurrence of a Force Majeure event or
otherwise (the "Closed Period"). With respect to determining
whether an event under clause (1) of the preceding sentence has
occurred, Global or the Global Parent shall be required to send
Landlord a notice specifying such breach within twenty (20) days of
the occurrence of the same, Landlord shall have a period of thirty
(30) days within which to cure such breach, and the provisions of
the next sentence of this clause (d) shall only apply in the event
Landlord has not cured such breach within the aforesaid thirty (30)
day period. In the event of the occurrence of the events set forth
in clauses (1) or (2) of the first sentence of this clause (d), the
amount of Annual Hotel Credit permitted to be carried forward (which
carry forward may only be used in the next Calendar Year) shall be
the lesser of: (x) a fraction whose numerator is the number of days
in such Closed Period and whose denominator is 365, multiplied by
the remaining Annual Hotel Credits for such Calendar Year, or (y)
the Annual Hotel Credit for such Calendar Year outstanding at the
end of such Calendar Year.
(e) The Hotel Credits may only be applied as credits against Room Rates
and permitted Food and Beverage Charges and may not be used for any
other purposes, including by way of illustration and not limitation
for any gratuities, service charges or Taxes. The Hotel Credits are
also not redeemable for cash. Reservations for rooms are subject to
the availability of rooms and, accordingly, to the extent in any
calendar month a room is available for the reservation requested
when the written notice set forth in clause 3(f) below is given, the
reservation for the room will be accepted, and, to the extent in any
calendar month a room is not available when the written notice set
forth in clause 3(f) below is given, the reservation will not be
accepted. If a Hotel Credit cannot be used because of the
unavailability of rooms (where requested at least two (2) weeks in
advance), such Hotel Credit may be used at a later date during the
applicable Calendar Year, provided, however, that if such
unavailability of rooms occurs in November or December of such
Calendar Year, such remaining Hotel Credits can be used in the next
Calendar Year. The Beneficiaries shall be entitled to the same
rights and privileges as any other member of the general public
reserving a room at the Hotel.
(f) In the event Global or the Global Parent desire to designate a
Permitted Transferee as a Beneficiary of any Hotel Credits, any
Designator shall send a written notice identifying the Permitted
Transferees to the Hotel Manager, whose approval shall be deemed
given, provided:
(i) the Hotel reserves the right to refuse to honor Hotel
Credits from any Permitted Transferee, or the individuals comprising
the Permitted Transferee, in the event such Permitted Transferee is
an entity who has been previously prohibited for any reason from
being a customer at the Hotel or any other hotel operated by the
Hotel Manager; and
(ii) in the event Global or the Global Parent desires to market
the Hotel Credits to any proposed Permitted Transferee, Global first
sends a written request to the Hotel Manager setting forth the scope
and terms of any such marketing plan (including, but not limited to,
the intended published pricing under such marketing plan) and
obtains the prior written approval of the Hotel Manager. Any such
prior written approval of the Hotel Manager shall not be
unreasonably withheld by the Hotel Manager provided the marketing
plan does not in the Hotel Manager's judgment undercut any
wholesaler of rooms at the Hotel or involve the sale for a specific
date to any party who has already booked rooms at the Hotel for such
date. The availability of Hotel Credits to any Beneficiary shall be
determined at the time of booking, after taking into account the
amount of Hotel Credits previously booked for the applicable month.
Global and the Global Parent shall be entitled to designate one or
more travel agencies (each, a "Travel Agency"), an entity which
barters, purchases and sells hotel rooms and scrip for hotel rooms
(a "Broker"), or Approved Corporate Group as a Beneficiary entitled
to use the Hotel Credits. The use of such credits by the Travel
Agency, Broker and Approved Corporate Group shall be subject to all
of the limitations as to the use of Hotel Credits set forth in this
Section 3, including but not limited to the limitations set forth in
this Section 3 as to the number of rooms at the Hotel which may be
booked in any month. Rather than utilizing the GDS System or
Radisson 800 reservation number, in order to monitor and administer
the use of available Hotel Credits the Travel Agency, Broker or
Approved Corporate Group, or any Designator, as the case may be,
shall always telephone the reservation department at the Hotel to
make the bookings, identifying such bookings as being under the
"Global Hotel Credit Program". The Landlord shall use its best
efforts to cause the Hotel Manager to send to the Global Parent by
the last day of each calendar month commencing with the month of
February of 2000 a statement itemizing the amount of Hotel Credits
(in U.S. dollars) used by Beneficiaries in the preceding calendar
month and the amount remaining, if any, of Annual Hotel credits for
the balance of the then applicable Calendar Year (inclusive of the
month in which the statement is sent). Furthermore, the Hotel
Manager shall, by October 1 of 1999 and October 1 of each succeeding
Calendar Year during the Hotel Credit Term, issue to Global and the
Global Parent a letter to be entitled the "Global Annual Hotel
Credit Program" which shall confirm the rights to the Hotel Credits
for the next succeeding Calendar Year and summarize the terms,
conditions, limitations and restrictions described in this Section
3, and such letter shall also provide for the assignment or transfer
of such Hotel Credits pursuant to the terms and provisions of this
Section 3. Global and the Global Parent shall have the right by
notice sent to the Hotel Manager to designate in any one Calendar
Year up to twelve Travel Agencies, Brokers or Approved Corporate
Groups which are entitled to make the reservations for individuals
to use the rooms.
(g) All of the above Hotel Credits shall be evidenced not by any
vouchers but, rather, by credits given to a Beneficiary on the xxxx
it receives when such Beneficiary completes his or her stay at the
Hotel.
(h) Global and the Global Parent shall, jointly and severally, hold
harmless the Landlord Released Parties (as such term is defined in
Section 6 below) and their respective heirs, successors and assigns,
from and against any and all claims, charges, liabilities, losses,
obligations, demands, torts, damages, expenses (including
attorneys' fees), actions, causes of action, proceedings and suits
which any third parties have which are based upon the inability to
use the Hotel Credits unless such inability has resulted from a
breach by Landlord or Hotel Manager of the terms and provisions of
Section 3 of this Agreement.
In the event of a change in identity of the Hotel Manager, the Landlord
shall cause any such successor Hotel Manager to execute a Joinder in the form
of the Joinder attached to this Agreement in order to confirm such successor
Hotel Manager's acknowledgment of and agreement to the terms and provisions of
this Section 3. The use of Hotel Credits shall be subject to reasonable rules
and regulations of the Hotel Manager which are consistent with the foregoing
in order to permit effective administration of the same.
4. CANCELLATION OF PROMISSORY NOTE, WARRANT AND SETTLEMENT AGREEMENT.
Upon approval of the execution of this Agreement by Landlord's lender, DutchCo
shall xxxx "canceled" that certain Promissory Note dated as of August 26, 1998
executed by Global, as maker, for the benefit of DutchCo, as payee, in the
original principal amount of $250,000.00 and shall deliver such canceled
Promissory Note to Global. Upon approval of the execution of this Agreement
by Landlord's lender, DutchCo shall xxxx the Warrant Certificate, original
Certificate No. W-102 dated April 22, 1998 executed by the Global Parent for
the purchase of common shares of the Global Parent, par value $.05 per share
"canceled" and shall deliver to the Global Parent such "canceled" Certificate
No. W-102. Effective upon the cancellation of the Promissory Note and the
Warrant Certificate, each of the parties hereto hereby releases each of the
other parties from the obligations and liabilities arising from, under, or in
connection with the Promissory Note, Warrant Certificate or Settlement
Agreement whether concurrently existing or arising at any time hereafter.
5. CANCELLATION OF LEASE. Effective as of the date of approval of this
Agreement by Landlord's lender, the Lease shall be deemed canceled,
terminated, and of no further force and effect and neither party shall have
any further rights, obligations or liabilities thereunder, each of the parties
hereto shall be deemed as of such approval date as releasing each of the other
parties hereto from any such rights, obligations and liabilities arising from,
under or in connection with the Lease, whether concurrently existing or
arising at any time hereafter, and Global shall have no further right, title
or interest in the casino premises or otherwise with respect to the Hotel.
The termination of the Lease shall be unaffected by any breach of the
representations and warranties or default hereunder.
6. MUTUAL GENERAL RELEASES.
(a) Except for breaches of this Agreement, each of DutchCo, the
Landlord, Radisson hotel Corporation, a New Jersey corporation ("RHI") and
Radisson International Management, Inc., a Minnesota corporation ("RIMI"), for
themselves and any and all of their Affiliates, predecessors, partners, joint
venturers, past and present officers, directors, shareholders, agents,
servants, employees, legal representatives, successors and assigns, do hereby
forever and fully release, remise and discharge Global and the Global Parent
and each of their respective Affiliates, predecessors, partners, joint
venturers, lenders, past and present officers, directors, shareholders,
agents, servants, employees, legal representatives, successors and assigns
(collectively, the "Global Released Parties") of and from any and all rights,
duties, claims, charges, liabilities, losses, obligations, demands, debts,
dues, sums of money, covenants, contracts (express or implied), promises,
agreements, torts, damages, expenses (including attorneys' fees), actions,
causes of action, proceedings and suits, whether or not known, suspected or
claimed, which DutchCo, the Landlord, RHI and RIMI and each of their
respective Affiliates or any of them ever had, now has or claims, or might
hereafter have or claim, against the Global Released Parties or any of them
prior to and as of the date of this Agreement.
(b) Except for breaches of this Agreement, each of Global and the Global
Parent, for themselves and any and all of their Affiliates, predecessors,
partners, joint venturers, past and present officers, directors, shareholders,
agents, servants, employees, legal representatives, successors and assigns, do
hereby forever and fully release, remise and discharge DutchCo, Landlord, RHI
and RIMI, and each of their respective Affiliates, predecessors, partners,
joint venturers, lenders, past and present officers, directors, shareholders,
agents, servants, employees, legal representatives, successors and assigns
(collectively, the "Landlord Released Parties") of and from any and all
rights, duties, claims, charges, liabilities, losses, obligations, demands,
debts, dues, sums of money, covenants, contracts (express or implied),
promises, agreements, torts, damages, expenses (including attorneys' fees),
actions, causes of action, proceedings and suits, whether or not known,
suspected or claimed, which Global and the Global Parent and each of their
respective Affiliates or any of them ever had, now has or claims, or might
hereafter have or claim, against the Landlord Released Parties or any of them
prior to and as of the date of this Agreement.
7. NO ADMISSION. Nothing contained in this Agreement or any other
agreement or instrument delivered by any of the parties hereto shall
constitute an admission by said party that said party is, or ever was, liable
to the other party or has committed or done any of the acts or things alleged
by any of the other parties hereto concerning the matters raised or which
could have been raised in connection with or arising out of any matters prior
to and as of the date of this Agreement, including but not limited to the
Settlement Agreement or Lease.
8. WARRANTIES. Each of the parties hereto represents and warrants to
each other: (a) that each has read this Agreement; (b) that each intends to be
legally bound by this Agreement; (c) that each has entered into this Agreement
freely and voluntarily; (d) that each has the full right, power, authority and
capacity to enter into and execute this Agreement and has taken all
governmental, corporate or partnership action, as applicable, and obtained all
consents necessary to make this Agreement valid, binding and duly authorized,
executed and delivered; (e) that the person signing this Agreement on behalf
of each party has been duly authorized and empowered to do so; (f) that each
has had the benefit and advice of legal counsel; and (g) that this Agreement
is entered into with no party relying upon any statement or representation
made by any other party not embodied in this Agreement. Global and the Global
Parent represent and warrant to the other parties hereto and each other that
Global is the tenant under the Lease and has not assigned or granted any
interest in the Lease to any other person. All representations and warranties
of Global hereunder shall be joint and several with the Global Parent.
9. BINDING EFFECT AND BENEFIT. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
heirs, successors and assigns, and, with respect to such successor owners of
the Hotel, the succession to any such successor owners shall be evidenced by
an acknowledgment executed by such successor owner of receipt of a copy of
this Agreement and the fact that, as set forth in this Section 9, such
Agreement is binding on such successor owner.
10. FURTHER ASSURANCES. Each party hereto agrees to cooperate with the
other parties hereto, and to execute and deliver, or to cause to be executed
and delivered, all such other instruments or documents, and to take all such
other actions as it may be reasonably requested to take, from time to time, in
order to effect the provisions and purposes of this Agreement.
11. ENTIRE AGREEMENT. This instrument contains the entire agreement by
and among the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings (including but not limited
to the Settlement Agreement and the Lease), express or implied. Any
modification of this Agreement may be made only by an instrument in writing
signed by or on behalf of all of the parties to this Agreement and approved by
Landlord's lenders.
12. CONFIDENTIALITY. The parties agree that this Agreement relates to
the compromise and settlement of matters in dispute between them, and that the
terms and provisions of this Agreement are intended to remain confidential and
therefore the parties agree that none of the terms and provisions of this
Agreement shall be disclosed to any other person or entity other than
Landlord's lender without the prior written consent of the other. In the
event either party is requested to produce a copy of this Agreement pursuant
to any subpoena or discovery request in any pending or future arbitration or
litigation, that party will immediately give the other party written notice of
such request and will object to such request upon the written demand of the
other party.
13. NO THIRD PARTY BENEFICIARY. The parties agree that this Agreement
is not intended by either party to give any benefits, rights, privileges,
actions or remedies to any person, partnership, firm or corporation (other
than the parties hereto, Landlord's lender and, for the limited purposes set
forth in Section 3 above, the Permitted Transferees) as a third party
beneficiary or otherwise under any theory of law.
14. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier, by cable, fax, telegram, telex or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 15).
Global and the Global Parent will deliver to Landlord's lender a copy of any
notice of default sent hereunder and any notice asking for a Hotel Credit to
be extended to a subsequent Calendar Year pursuant to the terms of
Section 3(d).
(a) If to DutchCo:
Xx. Xxxxx X. Xxxx
Blok & Associates
X.X. Xxxxx Boulevard, Xx. 00
Xxxx Xxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx
Tel.: 000-000-0-00000
Fax: 000-000-0-00000
(b) If to the Landlord:
Aruba Caribbean Hotel Limited Partnership
c/o DutchCo N.V.
X.X. Xxxxxxxxx Xxxxxxxxx 00
Xxxx Xxxxx, Xxxxx
Attn: Managing Director
Tel.: 000-000-0-00000
Fax: 000-000-0-00000
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Winston & Xxxxxx
00 X. Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Tel.: 000-000-0000
Fax: 000-000-0000
(c) If to Global or the Global Parent:
Xx. Xxxxxxx X. Xxxxxxxxxxx
Global Entertainment Group, Inc. N.V.
c/o Global Casinos, Inc.
0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
With a copy to:
Xxxxxx Xxxxxx, Esq.
Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Tel.: 000-000-0000
Fax: 000-000-0000
(d) If to the Lender:
Aruba LLM Holdings B.V
c/o Credit Suisse First Boston
Johannes Xxxxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Xxxxx X. xxx Xxxxx
Telecopy: 00-00-000-0000
With copies to:
Credit Suisse First Boston Mortgage Capital LLC
Principal Transactions Group
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Asset Management
Re: Radisson Aruba/Xxxxx Xxxxx
Credit Suisse First Boston Mortgage Capital LLC
Legal & Compliance Department
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
Re: Radisson Aruba/Xxxxx Xxxxx - PTG
Situs Servicing, Inc.
0000 Xxxx Xxx Xxxxx Xxxxx
Xxxxx 000 Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxx
and
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
15. ESTOPPEL CERTIFICATE. Upon request by Landlord's lender to Landlord
(which shall not be made more than once in any calendar quarter), the Global
Parent shall within ten days after such request is transmitted to the Global
Parent by Landlord, furnish Landlord's lender with a certificate executed by
the Global Parent affirming: (i) that Global and the Global Parent, as of the
date of such certificate, have received the payment specified in Section 2 of
this Agreement as of the date of such certificate; (ii) that to the best of
their knowledge, the Beneficiaries have not been denied as of the date of such
certificate the use of any Hotel Credits which as of the date of such
certificate have been requested and approved in accordance with Section 3;
(iii) that there are no known defaults or existing disputes under this
Agreement; (iv) the Hotel Credits remaining available to Beneficiaries in such
Calendar Year or in any subsequent Calendar Year based upon the statement of
available Hotel Credits received by Global or the Global Parent from the Hotel
Manager; and (v) that this Agreement is in full force and effect and
unmodified.
16. HEADINGS AND INTERCHANGEABILITY. The headings of sections contained
in this Agreement are merely for convenience of reference and shall not affect
the interpretation of any of the provisions of this Agreement. Whenever the
context so requires, the plural shall include the singular and vice versa.
This Agreement may be executed in any one or more counterparts, each of which
shall constitute an original, no other counterpart needing to be produced, and
all of which, when taken together, shall constitute but one and the same
instrument.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of Aruba and the forum for all disputes shall be in
Aruba.
18. SURVIVAL. Notwithstanding anything to the contrary contained in
this Agreement, the covenants, warranties, releases, and agreements made in
this Agreement shall survive the execution and delivery of this Agreement.
19. LENDER'S APPROVAL. This Agreement shall be binding and effective
upon the approval of the same by Landlord's lender, which approval or
disapproval shall be evidenced by a written notice delivered by Landlord to
Global. In the event this Agreement has not been approved by Landlord's
lender within ten business days' after the execution of the same by the
parties hereto, this Agreement shall be null and void.
IN WITNESS WHEREOF, the parties hereto have executed this Settlement
Agreement and Mutual General Release of Claims as of the day and year first
above written.
GLOBAL ENTERTAINMENT GROUP, INC., N.V.,
an Aruban company
By:
---------------------------------
Its:
---------------------------------
GLOBAL CASINOS, INC., a Utah corporation
By:
---------------------------------
Its:
---------------------------------
ARUBA CARIBBEAN HOTEL LIMITED
PARTNERSHIP, a Delaware limited partnership
By: CRESCENDO HOTEL VENTURES, N.V., an Aruban
company
By:
---------------------------------
Its:
---------------------------------
DUTCHCO N.V., an Aruban company
By:
---------------------------------
Its:
---------------------------------
JOINDER
RADISSON INTERNATIONAL MANAGEMENT, INC., a Minnesota corporation (the
"Hotel Manager"), has joined this Agreement for the limited purpose of
acknowledging the rights of Global, the Global Parent and the Permittee
Transferees under Section 3 of this Agreement and acknowledging and agreeing
to be bound by the terms and provisions of Section 6 of this Agreement.
RADISSON HOTEL CORPORATION, a New Jersey corporation, has joined this
Agreement for the limited purpose of acknowledging and agreeing to be bound by
the terms and provisions of Section 6 of this Agreement.
All notices, requests, claims, demands and other communications required
to be made to the undersigned Hotel Manager shall be in writing and shall be
given or made (and shall be deemed to have been duly given or made upon
receipt) by delivery in person, by courier, by cable, fax, telegram, telex or
by registered or certified mail (postage prepaid, return receipt requested) to
the Hotel Manager at the following address (or at such other address for the
undersigned Hotel Manager as shall be specified in a notice given in
accordance with Section 15 of this Agreement).
If to the Hotel Manager: Radisson International Management, Inc.
00000 Xxxxx Xxxxxxx 00
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Legal Department
Telecopy No.: 000-000-0000
Confirmation No.: 000-000-0000
If to RHI: Radisson Hotel Corporation
00000 Xxxxx Xxxxxxx 00
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Legal Department
Telecopy No.: 000-000-0000
Confirmation No.: 000-000-0000
RADISSON HOTEL CORPORATION,
a New Jersey corporation
By:
---------------------------------
Its:
---------------------------------
RADISSON INTERNATIONAL MANAGEMENT,
INC., a Minnesota corporation
By:
---------------------------------
Its:
---------------------------------
EXHIBIT A
DEFINITIONS
AFFILIATES. With respect to a specified Person, any Person controlled
by, controlling or under common control with the Person in question.
APPLICABLE HOTEL ROOM. A guest room at the Hotel occupied by any
Permitted Transferee.
APPROVED CORPORATE GROUP. A corporation which desires to purchase a
package of Hotel Credits from Global or the Global Parent and has been
approved by the Hotel Manager pursuant to the written request of Global or the
Global Parent and the terms and provisions of Section 3(f)(ii).
BLACK OUT PERIOD. A period of time equal to twenty-eight days per
Calendar Year, consisting of two weeks plus fourteen individual days (which
weeks and individual days may be consecutive or non-consecutive, as the
Landlord or Hotel Manager may in their sole discretion direct).
FOOD AND BEVERAGE CHARGES. The rate, exclusive of Taxes, charged by the
Hotel for food and beverage, as set forth on the menus at the Hotel, which
guests at the Hotel may order from the Hotel through room service, through use
of the wet bar in the Applicable Hotel Room or at a Hotel Restaurant.
CALENDAR YEAR. The period of time commencing January 1 and terminating
December 31 in each calendar year.
DESIGNATOR. Any individual who, either as of the date of this Agreement
or from time to time during the term of this Agreement, is: (i) a member of
the board of directors of Global or the Global Parent; and (ii) the
president, vice president, secretary or treasurer of Global or the Global
Parent. Global and/or the Global Parent shall from time to time send to
Landlord and the Hotel Manager a list of each of the individuals holding the
positions described in clauses (i) or (ii) of the preceding sentence, which
first list shall be provided by October 1, 1999.
FORCE MAJEURE. Any event applicable to the Hotel beyond the reasonable
control of Landlord, including, but not limited to, war, invasions, rebellion,
revolution, insurrection, riots, an act of government or quasi-government
authority or agency in its sovereign capacity, earthquakes, hurricanes, tidal
waves, inclement weather or any act of God or operation of forces of nature
which Landlord or Manager could not reasonably provide against, and strikes,
lockouts or other employee disturbances.
GOVERNMENTAL AUTHORITY. Any Aruban or other foreign government or any
United States federal, state, county or municipal government, or any political
subdivision of any of the foregoing, any foreign or domestic governmental or
quasi-governmental agency, authority, board, bureau, commission, department,
instrumentality or public body, or any court or administrative tribunal.
HOTEL CREDITS. Credits to be applied against the Room Rate for
Applicable Hotel Rooms and Food and Beverage Charges.
HOTEL MANAGER. Radisson International Management, Inc., a Minnesota
corporation, and any successor manager of the Hotel.
HOTEL RESTAURANT. A restaurant at the Hotel operated by the Hotel
Manager and not leased to, and operated at the Hotel by, a third party entity.
PERMITTED TRANSFEREES. Any individual or entity designated by any
officer or member of the board of directors of Global or the Global Parent in
accordance with the approval process described in Section 3 of the Agreement
to which this Exhibit A is attached.
PERSON. Any individual, corporation, partnership, limited liability
company, joint venture, estate, trust, unincorporated association, any
Governmental Authority or any fiduciary acting in such capacity on behalf of
any of the foregoing.
ROOM RATE. The applicable retail room rate, exclusive of all Taxes, for
an Applicable Hotel Room as published by the Hotel applicable to the actual
time period when any of the individuals permitted to occupy Applicable Hotel
Rooms pursuant to this Agreement occupies such Applicable Hotel Room.
TAXES. All sales, use, excise, V.A.T. and any similar taxes charged with
respect to Room Rates and Food and Beverage Charges by applicable taxing
authorities.
