SETTLEMENT OF LOANS AGREEMENT
(INCORPORATING NEW LOAN AGREEMENT)
by and between
CENTURY RESORTS LIMITED
(a Mauritian company of Registration No. 50866)
("CRL")
and
CENTURY CASINOS AFRICA (PROPRIETARY) LIMITED
(Registration No. 1996/010501/07)
("CCA")
(CRL, CCA, and their affiliates collectively, "CGC")
and
SILVERSTAR DEVELOPMENT LIMITED
(Registration No. 1995/00369/06)
("SILVERSTAR")
and
JOSE DA SILVA
("JDS")
and
(and, collectively, "the parties")
WHEREAS:
o CGC is the beneficiary in title to various loan agreements entered into for
the purpose of providing funding in support of the efforts of SILVERSTAR,
its subsidiaries, and its agents in the pursuit of a casino license for the
Western Gauteng region of South Africa;
o The parties wish to agree upon the disposition of the loan funds provided
by CGC to date and upon the provision of further funds under defined
circumstances and the repayment of same.
o The parties therefore agree subject to the terms and conditions set our
herein.
1. INTERPRETATION
1.1. This agreement shall be exclusively governed and interpreted according
to the laws of the Republic of South Africa in all respects.
1.2. The headings to the clauses of this agreement shall be deemed not to
form part of this agreement and shall not affect its interpretation.
1.3. Except where the context clearly indicates a contrary intention, the
singular includes the plural and vice versa, words importing the
neuter gender include other genders and vice versa, the word "person"
includes a company and any other juristic person and a partnership and
any other body of persons (whether corporate or incorporate), and
includes in each instance their successors in title.
1.4. The parties defined above shall maintain their meanings as so defined
and the following expressions shall bear the meanings ascribed to them
hereunder:
1.4.1. "additional loan" R3 000 000.00 (three million rand);
1.4.2. "call loans" a part of all amounts provided to the signature
date by way of loans to SILVERSTAR, its subsidiary RHINO RESORTS
LIMITED, and through its agent JDS such part totaling R5 595
000.00 (five million five hundred and ninety five thousand rand);
1.4.3. "default rate" the prime overdraft rate quoted by Nedbank
Limited plus 5% (five per cent) calculated nominal annual
compounded monthly in arrear;
1.4.4. "option agreement" the option agreement entered into by, inter
alia, SILVERSTAR, CGC, and AKANI GROUP on even date;
1.4.5. "prime rate" the prime overdraft rate quoted by Nedbank Limited
calculated nominal annual compounded in arrear;
1.4.6. "signature date" the date that this agreement is signed by the
party signing last in time;
1.5. If any provision in a definition is a substantive provision conferring
a right or imposing an obligation on any party then, notwithstanding
that it appears by way of definition, effect shall be given to that
provision as if it were a substantive provision in the body of this
agreement.
1.6. Where a number of days is to be calculated from a particular day, such
number shall be calculated as excluding such particular day and
commence on the next day. If the last day of such number so calculated
falls on a day which is not a business day, or any specific calendar
date given that is not a business day, that last day or that specific
date shall be deemed to fall upon the next succeeding day which is a
business day.
1.7. Any reference to days (other than a reference to business days),
months, or years shall be a reference to calendar days, months, or
years, as the case may be.
2. REPAYMENT OF THE CALL LOANS
2.1. Upon the signature date, the call loans shall fall immediately due and
payable.
2.2. The call loans shall be settled in full by bank certified cheque or
other agreed means of confirmed payment.
2.3. Repayment of the call loans to CGC shall be in full and final
settlement of the claims CGC has, or may have, in respect of the call
loans and CGC shall make no further claim whatsoever in respect of the
call loans and shall promptly release any and all security which CGC
may have held in respect of the call loans. CRL confirms that, after
SILVERSTAR has repaid the additional loan as set out in clause 4
together with the full compensation provided for in the option
agreement, CRL shall not have any claim of whatsoever nature against
SILVERSTAR except for claims in terms of the option agreement and it
hereby waives all and any such claims which may exist.
3. ADVANCE OF THE ADDITIONAL LOAN
3.1. Immediately upon the repayment of the call loans, CCA shall advance
the additional loan to SILVERSTAR.
4. TERMS TO THE ADDITIONAL LOAN
4.1. The repayment by SILVERSTAR of the additional loan shall be by six
equal installments upon the payment dates of the seventh through
twelfth installments established in the option agreement;
4.2. Each installment payment of the additional loan shall be accompanied
by an interest premium payment of R60 000.00 (sixty thousand rands);
4.3. In the event that, should the option agreements still be effective and
one or more of the installment payments, in accordance with the option
agreements, have not been received by CGC in full by 30 June 2006,
CCAshall thereafter have the right to apply interest at the prime rate
plus 2% (two percent) from 30 June 2006 on the amount not repaid on
that date;
4.4. In the event that the option agreement is terminated or lapses, all
non repaid amounts in respect of the additional loan shall remain an
obligation of SILVERSTAR and CRL shall thereafter have the right to
apply interest at the default rate;
4.5. In the event an installment payment as measured against the seventh
through twelfth installments established in the option agreement is
not made by SILVERSTAR when due in terms of 4.1, CCA shall have the
right to apply interest at the default rate on the past-due amounts;
4.6. SILVERSTAR shall establish a sinking fund from such date as the first
installment payment under the option agreement falls due and shall
maintain in that sinking fund at all times an amount equal to the
amount due to CCA in respect of each next installment repayment of the
additional loan.
5. REINSTATEMENT OBLIGATION
5.1. In the event that the option agreement is terminated or lapses prior
to the receipt by CGC of the full amounts provided therein, SILVERSTAR
shall -
5.1.1. be liable for a further indebtedness in favour of CRL equal to
R 10 000 000.00 (ten million rand) reduced by the total of any
amounts CGC may have received under the option agreement prior to
the termination or lapsing of that agreement and increased by an
amount of R100 000.00 per month for each month, or part month,
that elapses between December 31, 2005 and the date the option
agreement is terminated or lapses; and
5.1.2. issue or caused to be transferred to CRL such shares in
SILVERSTAR as shall be equal to 1% (one percent) of the issued
shares of SILVERSTAR as measured after the issue or transfer of
those shares.
5.2. SILVERSTAR shall record any indebtedness incurred in respect of the
reinstatement obligation in favour of CRL in its accounts from the
date of the termination or lapsing of the option agreement;
5.3. From the date of assumption by SILVERSTAR of the reinstatement
obligation, CRL shall have the right to apply interest at the prime
rate.
6. BREACH
If, after the entering into of the option agreement, any party ("the
defaulting party") breaches any material term and/or condition of this
option agreement and fails to remedy such breach within a period of 14
(fourteen) days after receipt of written notice from any other party to
remedy same, the aggrieved party shall be entitled, without prejudice to
any other rights which it may have in terms of this agreement or at law, to
cancel this agreement or to claim immediate specific performance, in either
case without prejudice to its rights to claim damages.
7. SIGNATURE IN COUNTERPARTS
This option agreement may be executed in several counterparts, whether by
way of facsimile or otherwise, each of which shall, taken together,
constitute one and the same instrument.
8. DOMICILIUM CITANDI ET EXECUTANDI
8.1. The parties choose as their domicilia citandi et executandi for all
purposes under this option agreement, whether in respect of court
process, notices or other documents or communications of whatsoever
nature the following addresses:
CRL:
Physical: c/o L&P Financial Services
Attn: Richard Arlove
Fifth Floor TM Building
Pope Hennessey Street
Port St Louis
Mauritius
Telefax: + 1 707 982 7586
e-mail hoetzingerp@cs.com
CCA:
Physical: Attn: The Managing Director
c/o 1 Nerina Avenue
Caledon 7230South Africa
Telefax: +27 28 212-2773
e-mail hoetzingerp@cs.com
SILVERSTAR:
Physical: 34 Buffalo Thorn Road
Fourways Gardens
Fourways 2055
South Africa
Attn: James Forbes
Telefax: +27 86 672-6282
e-mail jforbes@mweb.co.za
JOSE DA SILVA:
Physical: 47 Amajuba Street
Noordheuwel
Krugersdorp 1744
Telefax: +27 86 672-6282
e-mail jforbes@mweb.co.za
8.2. Any notice or communication required or permitted to be given in terms
of this option agreement shall be valid and effective only if in
writing but it shall be competent to give notice by telefax.
8.3. Either party may by notice to the other party change the physical
address chosen as its domicilium citandi et executandi to another
physical address in South Africa (or Mauritius in respect of CRL) or
its telefax number, provided that the change shall become effective on
the 10th business day from the deemed receipt of the notice by the
other party.
8.4. Any notice to a party -
8.4.1. sent by courier in a correctly addressed envelope to it at its
chosen address shall be deemed to have been received on the 3rd
business day after sending (unless the contrary is proved);
8.4.2. delivered by hand to a responsible person during ordinary
business hours at the physical address chosen as its domicilium
citandi et executandi shall be deemed to have been received on
the day of delivery; or
8.4.3. sent by telefax to its chosen telefax number stipulated in
clause 8, shall be deemed to have been received on the date of
despatch (unless the contrary is proved).
8.5. Notwithstanding anything to the contrary herein contained a written
notice or communication actually received by a party shall be an
adequate written notice or communication to it notwithstanding that it
was not sent to or delivered at its chosen domicilium citandi et
executandi.
8.6. To the extent that any notice is given by a party, it shall equally
give notice by way of e-mail.
9. WHOLE AGREEMENT, NO AMENDMENT
9.1. This agreement constitutes the whole agreement between the parties
relating to the subject matter hereof.
9.2. No amendment or consensual cancellation of this settlement of loans
agreement or any provision or term hereof or of any agreement, bill of
exchange or other document issued or executed pursuant to or in terms
of this agreement and no settlement of any disputes arising under this
settlement of loans agreement and no extension of time, waiver or
relaxation or suspension of or agreement not to enforce or to suspend
or postpone the enforcement of any of the provisions or terms of this
settlement of loans agreement or of any agreement, bill of exchange or
other document issued pursuant to or in terms of this settlement of
loans agreement shall be binding unless recorded in a written document
signed by the parties (or in the case of an extension of time, waiver
or relaxation or suspension, signed by the party granting such
extension, waiver or relaxation). Any such extension, waiver or
relaxation or suspension which is so given or made shall be strictly
construed as relating strictly to the matter in respect whereof it was
made or given.
9.3. No extension of time or waiver or relaxation of any of the provisions
or terms of this settlement of loans agreement or any agreement, bill
of
exchange or other document issued or executed pursuant to or in terms
of this settlement of loans agreement, shall operate as an estoppel
against any party in respect of its rights under this agreement, nor
shall it operate so as to preclude such party thereafter from
exercising its rights strictly in accordance with this agreement.
9.4. To the extent permissible by law no party shall be bound by any
express or implied term, representation, warranty, promise or the like
not recorded herein, whether it induced the contract and/or whether it
was negligent or not.
10. COSTS
Each party shall pay its own costs pursuant to the negotiation, drafting
and implementation of this agreement.
SIGNED by the parties and witnessed on the following dates and at the following
places respectively:
DATE PLACE WITNESS SIGNATURE
1. Debra Wessels//s// For: CENTURY RESORTS LIMITED
12/01/2004 Johannesburg Christian Gernert//s//
2. Shahrina Ramphaul//s//
- -
1. Debra Wessels//s// For: CENTURY CASINOS AFRICA
12/01/2004 Johannesburg (PROPRIETARY) LIMITED
2. Shahrina Ramphaul//s// Christian Gernert//s//
1. Debra Wessels//s// For: SILVERSTAR DEVELOPMENT
12/01/2004 Johannesburg LIMITED
2. Shahrina Ramphaul//s// Jose Da Silva//s//
1. Debra Wessels/s// JOSE DA SILVA
12/01/2004 Johannesburg Jose Da Silva//s//
2. Shahrina Ramphaul//s//