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EXHIBIT 10.9
OMNIBUS AGREEMENT
OMNIBUS AGREEMENT, dated as of July 3, 2001 (this "AGREEMENT"), by
and among Sun International Hotels Limited, a company incorporated under the
laws of The Bahamas (the "COMPANY"), Sun International Investments Limited, a
company incorporated under the laws of the British Virgin Islands ("SIIL"),
World Leisure Group Limited, a company incorporated under the laws of the
British Virgin Islands ("WLG"), Kersaf Investments Limited, a company
incorporated under the laws of the Republic of South Africa ("KERSAF"),
Caledonia Investments PLC, a company incorporated under the laws of England
("CALEDONIA"), Rosegrove Limited, a company incorporated under the laws of the
British Virgin Islands ("ROSEGROVE"), Royale Resorts Holdings Limited, a company
incorporated under the laws of Bermuda ("RRHL"), Mangalitsa Limited, a company
incorporated under the laws of The Bahamas ("MANGALITSA"), Cement Merchants SA,
a company incorporated under the laws of Panama ("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 ("SHI"),
Royale Resorts International Limited, a company incorporated under the laws of
Bermuda ("RRIL"), Sun Hotels Limited, a company incorporated under the laws of
Bermuda ("SHL"), World Leisure Investments Limited (formerly Royale Resorts
Limited), a company incorporated under the laws of Bermuda ("WLI"), Hog Island
Holdings Limited, a company incorporated under the laws of Bermuda ("HIHL"),
Solomon Kerzner, as an individual ("SK"), Peter Buckley, an individual ("PB"),
Derek Aubrey Hawton, an individual ("DAH"), Sun International Management
Limited, a company incorporated under the laws of the British Virgin Islands
("SIMLB"), Sun International Management (UK) Limited, a company incorporated
under the laws of England ("SIMLC"), and Sun International Management Limited, a
company incorporated under the laws of Switzerland ("SIMLA" and together with
WLG, Kersaf, Caledonia, Rosegrove, RRHL, Mangalitsa, CMS, SINC, SHI, RRIL, SHL,
WLI, SIMLB, SIMLC, HIHL and SK, the "SIIL INVESTORS").
R E C I T A L S
- - - - - - - -
WHEREAS, each of the SIIL Investors (other than CMS, HIHL,
Mangalitsa, SIMLB and SIMLC) is a party to that certain Subscription and
Shareholders' Agreement, dated as of October 11, 1993 (the "SIIL AGREEMENT"),
relating to SIIL;
WHEREAS, each of SIIL and the Company is a party to that certain
Combination and Restructuring Agreement, dated as of December 12, 1994 (the
"SIHL AGREEMENT");
WHEREAS, each of Mangalitsa, HIHL and RRHL, among others, are a
party to that certain Shareholders' Agreement, dated as of May 3, 1994 (as
amended), relating to Rosegrove (the "ROSEGROVE AGREEMENT" and together with the
SIIL Agreement and the SIHL Agreement, the "EXISTING AGREEMENTS");
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WHEREAS, the SIIL Investors shall arrange for the winding-up and
dissolution of SIIL, and accordingly the distribution (the "DISTRIBUTION") of
the shares, par value $0.001 per share, of the Company to (a) the shareholders
of SIIL, WLG (or a wholly-owned subsidiary thereof) and Rosegrove, and (b) then
by Rosegrove to its shareholders, RRHL (or a wholly-owned subsidiary thereof)
and Mangalitsa;
WHEREAS, in connection with the execution and delivery of this
Agreement, certain of the parties hereto shall enter into the following
additional agreements (collectively, the "ADDITIONAL AGREEMENTS"):
(a) a Supplemental Agreement to the SIIL Agreement and the Rosegrove
Agreement, dated as of the date hereof, by and among the parties thereto, (the
"SUPPLEMENTAL AGREEMENT"), with respect to the Distribution and certain other
matters; and
(b) a Registration Rights and Governance Agreement by and among the
Company, SIIL and certain of the SIIL Investors (the "GOVERNANCE AGREEMENT"),
with respect to (i) the transfer and acquisition of shares of the Company, (ii)
governance arrangements in respect of the board of directors of the Company and
(iii) providing each of such SIIL Investors and their Affiliates (as defined
herein) with certain registration rights.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINED TERMS. For the purposes of this Agreement, the
following terms shall have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
controlling, controlled by or under direct or indirect common control with such
Person. For the purposes of this 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.
"AUDITOR" shall be a mutually acceptable independent accounting firm
having knowledge and experience in the hotel, resort and casino industries.
"CALEDONIA GROUP" means, as of any date, Caledonia and all of its
Affiliates (but excluding the Company), as of such time.
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"CMS GROUP" means, as of any date, CMS and all of its Affiliates as
of such time.
"COMMISSION" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"COMPANY EVENT" shall have the meaning ascribed to it in the
Governance Agreement.
"CONFIDENTIAL INFORMATION" means all records, information, reports
and data concerning the RRHL Egypt Entity or the Egypt Project, whether oral or
written, that is furnished to the Company or the Company's representatives, by
or on behalf of the RRHL Egypt Entity including, without limitation, information
furnished pursuant to Sections 4.4, 4.5 and 4.6 of this Agreement.
Notwithstanding the previous sentence, the term "Confidential Information" shall
not include information that (i) is or becomes generally available to the public
other than as a result of a disclosure by the Company or the Company's
representatives in violation of this Agreement; or (ii) becomes available to the
Company on a non-confidential basis from a source other than the RRHL Egypt
Entity, which the Company reasonably believes is under no obligation of
confidentiality to the RRHL Egypt Entity.
"CONTROLLED AFFILIATE" shall mean with respect to any Person, any
Affiliate thereof which is controlled by such Person.
"EGYPT PROJECT" means all phases of the proposed integrated resort
development at Port Ghalib located on the Red Sea in Egypt as contemplated under
the Egypt Project Agreements and any expansions related thereto.
"EGYPT PROJECT AGREEMENTS" shall mean those agreements relating to
RRHL's involvement with the Egypt Project, substantially in the form attached
hereto as Exhibit D, and any other agreement or arrangement pursuant to which
any member of the RRHL Group is entitled to receive revenue, fees, income or any
other form of consideration relating to its involvement with the Egypt Project,
including any renewals or extensions thereof.
"GAAP" means generally accepted accounting principles based on
international accounting standards, consistently applied.
"GROSS REVENUE" means, for any period, all revenue, fees, income or
other form of consideration as generated by RRHL or any of its Affiliates from
the development and management of the Egypt Project for such period as
calculated in accordance with GAAP and calculated in United States Dollars
(converted into United States Dollars at prevailing exchange rates, if
necessary), after making provision for any withholding or deduction required
pursuant to Egyptian law, including any Egyptian income tax liability that is
assessed in the event that the payment pursuant to Section 4.2(a) should not be
allowed as a deduction for income tax purposes.
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"GROUP" means any of the WLG Group, the Kersaf Group, the Caledonia
Group, the CMS Group or the RRHL Group.
"KERSAF GROUP" means, as of any date, Kersaf and all of its
Affiliates (but excluding, for the avoidance of doubt, the Company), as of such
time (including, as of the date hereof, RRHL).
"MINIMUM YEAR ONE SALE" shall have the meaning ascribed to it in the
Governance Agreement.
"MINIMUM YEAR ONE SALE DATE" shall have the meaning ascribed to it
in the Governance Agreement.
"PERSON" means any individual, firm, partnership, company, joint
stock company, corporation, partnership, trust, estate, incorporated or
unincorporated association, syndicate, joint venture or organization, or any
government or any department, agency or other political subdivision thereof, or
any other entity, and shall include any successor of any such entity.
"PRIOR REGISTRATION DELAY" shall have the meaning ascribed to it in
the Governance Agreement.
"RRHL EGYPT ENTITY" means the member of the RRHL Group which is
entitled to receive revenue, fees, income and other forms of consideration
relating to its involvement with the Egypt Project, and is designated by RRHL in
accordance with Section 4.3(a).
"RRHL GROUP" means, as of any date, RRHL and all of its Affiliates
(excluding for the avoidance of doubt, the Company), as of such time.
"REALIZATION EVENT" means:
(a) any event or circumstance as a result of which the RRHL Egypt
Entity ceases to be, directly or indirectly, a Controlled Affiliate of
Kersaf;
(b) any event or circumstance which shall affect, directly or
indirectly, the right of the RRHL Egypt Entity to receive Gross Revenue
including, but not limited to:
(i) the termination of any Egypt Project Agreements; or
(ii) the sale, assignment or transfer by RRHL or any of its
Controlled Affiliates of all or part of any Egypt Project Agreements
or any interest therein to any Person (other than a member of the
RRHL Group); or
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(iii) the sale or transfer by RRHL or any of its Controlled
Affiliates of all or any part of the Egypt Project or any interest
therein to any Person (other than a member of the RRHL Group); or
(c) Kersaf ceasing to own, directly or indirectly, a majority of
each class of equity securities in the RRHL Egypt Entity or any of the
Controlled Affiliates of the RRHL Egypt Entity.
"SECURITIES ACT" means the United States Securities Act of 1933 or
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect, from time to time.
"SENIOR EMPLOYEE" means any person employed by the Company, the WLG
Group, or the Kersaf Group as of the date hereof or hired after the date hereof
whose total salary per annum is greater than or equal to one hundred fifty
thousand United States Dollars ($150,000).
"SHARES" means (a) the ordinary shares, par value $0.001 per share,
of the Company (including any dividends in kind thereon), or (b) any other class
of stock resulting from any reclassification, exchange, substitution,
combination, stock split or reverse stock split, including in connection with
any merger or otherwise, of such ordinary shares.
"UNDERWRITER OUT" shall have the meaning ascribed to it in the
Governance Agreement.
"WLG GROUP" means, as of any date, WLG and all of its Affiliates
(but excluding the Company), as of such time.
Section 1.2 OTHER DEFINED TERMS. As used herein, the following terms
shall have the meanings ascribed to them in the Section of this Agreement
opposite each such term:
<Table>
<Caption>
Term Section
---- -------
Additional Agreements Recitals
Agreement Preamble
Assignment 2.1
Caledonia Preamble
Claims 5.1(a)
CMS Preamble
Company Preamble
Confidential Information 4.7
Covered Territory 3.1(a)
</Table>
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<Table>
<Caption>
Term Section
---- -------
Distribution Recitals
Dispute 5.1(a)
Existing Agreements Recitals
Governance Agreement Recitals
Investment Bank 4.2(b)
Kersaf Preamble
Management Fee Payment 4.2(a)
Mangalitsa Preamble
PB Preamble
Promissory Note 4.1(b)
Realization Event Payment 4.2(b)
Released Parties 5.1(a)
Releasing Parties 5.1(a)
Rosegrove Preamble
Rosegrove Agreement Recitals
RRHL Preamble
RRIL Preamble
RRL Preamble
SHI Preamble
SHL Preamble
SIHL Agreement Recitals
SIIL Preamble
SIIL Agreement Recitals
SIIL Investors Preamble
SIMLA Preamble
SINC Preamble
SK Preamble
Supplemental Agreement Recitals
WLG Recitals
</Table>
ARTICLE II
ASSIGNMENT OF NAME
Section 2.1 ASSIGNMENT OF NAME. The Company shall, and shall cause
its Controlled Affiliates to, WLG shall, and shall cause its Affiliates to, and
SIIL shall,
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enter into the Trade Name and Trademark Agreement (contemporaneously with the
execution of this Agreement) in the form of Exhibit A attached hereto (the
"ASSIGNMENT").
ARTICLE III
NON-COMPETITION; NON-SOLICITATION
Section 3.1 COVENANT NOT TO COMPETE.
(a) In consideration of the transactions contemplated by this
Agreement and the Additional Agreements and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
following the date hereof and for a period terminating on the earliest of (i)
the date on which the Kersaf Group owns less than seven and one half percent
(7.5%) in the aggregate of the Shares outstanding on the date hereof, (ii) the
consummation of the Minimum Year One Sale and (iii) June 30, 2002 if the Minimum
One Year Sale Date has been extended because of any Underwriter Out, Company
Event, Prior Registration Delay or pursuant to the last sentence of Section 5.5
of the Governance Agreement, Kersaf shall not, and shall cause its Controlled
Affiliates not to, directly or indirectly engage in any hotel, resort or casino
business competitive with the business of the Company, as now conducted, in any
part of the world other than the mainland of the continent of Africa (the
"COVERED TERRITORY"). Provided that the foregoing covenant shall not prohibit
Kersaf and any of its Affiliates from (i) the holding and ownership of any
Shares and (ii) purchasing, selling or owning five percent (5%) or less in the
aggregate of the securities of a publicly traded corporation competitive with
the Company.
(b) In consideration of the transactions contemplated by this
Agreement and the Additional Agreements and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, as
long as the obligations contained in Section 3.1(a) remain outstanding, each of
the Company and its Controlled Affiliates, WLG and its Affiliates, and Caledonia
and its Affiliates, shall not directly or indirectly engage in any hotel, resort
or casino business in the mainland of the continent of Africa; PROVIDED,
HOWEVER, that the Company's interest in the Egypt Project under this Agreement
shall not be in violation of the foregoing provision; PROVIDED, FURTHER, that
the foregoing covenant shall not prohibit the Company, any of its Controlled
Affiliates, WLG and any of its Affiliates, and Caledonia and any of its
Affiliates from (i) the holding and ownership of any Shares and (ii) purchasing,
selling or owning five percent (5%) or less in the aggregate of the securities
of a publicly traded corporation competitive with the Company.
(c) For purposes of both Section 3.1(a) and Section 3.1(b), the
phrase "directly or indirectly engage in" shall include carrying on in any
capacity, having a direct or indirect equity interest in, or providing
consulting, management, or advisory services, or being party to other agreements
or having understandings that result in an interest in the profits or revenue of
another Person, other than as a creditor, with any Person which engages in the
business in question.
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(d) Notwithstanding the foregoing, upon the due execution and
delivery of this Agreement and the Additional Agreements, Kersaf and its
Affiliates may proceed immediately to engage in the Egypt Project; it being
understood and agreed by Kersaf, however, that none of the Company, WLG or
Caledonia has any obligation or commitment under the Egypt Project or anything
contained in the Egypt Project Agreements.
Section 3.2 COVENANT NOT TO SOLICIT.
(a) For a period of two (2) years following the date hereof, Kersaf
shall not, and shall cause each of its Controlled Affiliates not to, directly or
indirectly, solicit or cause others to solicit any Senior Employee of the
Company, the WLG Group or any of their respective Controlled Affiliates.
Furthermore, during such period, Kersaf shall not, and shall cause each of its
Controlled Affiliates not to, (i) hire or make any offer of employment, or cause
others to hire or make any offer of employment, to any such Senior Employee or
(ii) attempt to influence, persuade or induce any such Senior Employee to
terminate his employment with the Company, WLG Group or any of their respective
Controlled Affiliates; PROVIDED, HOWEVER, that nothing herein shall restrict any
job listing advertisements, WEB site listing or other offer of employment which
is widely distributed and not specifically targeted at such Senior Employee .
(b) For a period of two (2) years following the date hereof, the
Company shall not, and shall cause each of its Controlled Affiliates not to, and
WLG shall not, and shall cause each of its Affiliates not to, directly or
indirectly, solicit or cause others to solicit any Senior Employee of Kersaf or
any of its Affiliates. Furthermore, during such period, each of the Company and
WLG shall not, and shall cause each of its respective Controlled Affiliates not
to, (i) hire or make any offer of employment, or cause others to hire or make
any offer of employment, to any such Senior Employee or (ii) attempt to
influence, persuade or induce any such Senior Employee to terminate his
employment with Kersaf or any of its Affiliates; PROVIDED, HOWEVER, that nothing
herein shall restrict any job listing advertisements, WEB site listing or other
offer of employment which is widely distributed and not specifically targeted at
such Senior Employee .
Section 3.3 ENFORCEMENT. If for any reason any court of competent
jurisdiction shall find the provisions of this Article III unreasonable in
duration or in geographic scope, the prohibition herein shall be restricted to
such time and geographic areas as such court determines to be reasonable, it
being the full intention of the parties that this Article III be enforceable to
the full extent permitted by law, to the extent contemplated herein.
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ARTICLE IV
MONETARY CONSIDERATION
Section 4.1 UPON EXECUTION.
Immediately upon the execution and delivery of this Agreement, RRHL
shall, or shall cause a member of its Group to, deliver to the Company the
following:
(a) three million five hundred thousand United States Dollars
($3,500,000) in immediately available funds by wire transfer to an account
specified in writing by the Company; and
(b) a promissory note in the principal amount of twelve million
United States Dollars ($12,000,000) to be issued by RRHL to the Company in the
form of Exhibit B attached hereto (the "PROMISSORY NOTE"). The Promissory Note
shall be secured by a pledge of Shares having an aggregate value, as of the date
of this Agreement, equal to twenty four million United States Dollars
($24,000,000), such pledge to be made pursuant to a pledge agreement, by and
among RRHL and the Company, in the form of Exhibit C attached hereto.
Section 4.2 EGYPT PROJECT.
(a) RRHL shall from time to time pay to the Company in United States
Dollars by wire transfer or otherwise in immediately available funds, without
any withholding or deduction, an amount (the "MANAGEMENT FEE PAYMENT") equal to
(i) twenty five percent (25%) of the annual Gross Revenue up to one million four
hundred thousand United States Dollars ($1,400,000), (ii) forty percent (40%) of
the annual Gross Revenue in excess of one million four hundred thousand United
States Dollars ($1,400,000) and up to two million eight hundred thousand United
States Dollars ($2,800,000) and (iii) fifty percent (50%) of the annual Gross
Revenue in excess of two million eight hundred thousand United States Dollars
($2,800,000) minus an amount equal to fifty percent (50%) of RRHL's documented
and reasonable out-of-pocket expenses in acquiring the Egypt Project, (the total
amount of RRHL's expenses not to exceed two hundred thousand United States
dollars (US$200,000) without the prior approval of the Company (such approval
not to be unreasonably withheld)); PROVIDED, HOWEVER, that such calculation
shall not include any of RRHL's expenses relating to the Dispute. The Management
Fee Payment shall be payable quarterly in arrears (as based upon reasonably
projected annual Gross Revenue) no later than ten (10) days after receipt by the
RRHL Egypt Entity of its Gross Revenues for such fiscal quarter, and in any
event, within thirty (30) days after the end of each fiscal quarter of the RRHL
Egypt Entity. In addition, no more than ninety (90) days following the end of
each fiscal year of the RRHL Egypt Entity, each of RRHL and the Company agrees
that it shall make a payment to the other in an amount equal to the difference,
if any, between the Management Fee Payment as calculated for such fiscal year
pursuant to the estimated Gross Revenue and the Management Fee Payment as
calculated for such fiscal year pursuant to the actual Gross Revenue, as
determined in good faith by RRHL in consultation with the Company.
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(b) In addition to the Management Fee Payment, upon the occurrence
of a Realization Event, RRHL shall (if the Company so elects) pay to the Company
in United States Dollars (i) fifty per cent (50%) of the Fair Market Value (as
defined below) of the Egypt Project Agreements (the "REALIZATION EVENT PAYMENT")
plus (ii) any accrued and unpaid Management Fee Payment. The Realization Event
Payment shall be paid in cash by wire transfer or otherwise in immediately
available funds. Realization Event Payments shall be payable in full on the
consummation of any Realization Event.
The "Fair Market Value" shall be determined by the Company and RRHL
acting in good faith as the fair market value of the Egypt Project Agreements
after taking account of, INTER ALIA, (i) any taxation to be suffered by RRHL and
its Controlled Affiliates (including the RRHL Egypt Entity) as a consequence of
the receipt of consideration in connection with the Realization Event that is
attributable to the Egypt Project or the Egypt Project Agreements, (ii) any tax
saving, deduction and other benefit available to RRHL or its Affiliates
(including the RRHL Egypt Entity) in connection with or as a consequence of the
Realization Event Payment, and (iii) any taxation to be suffered by the Company
as a consequence of the receipt of the Realization Event Payment, to the intent
that there shall be a fair and equitable apportionment of any taxation suffered
by RRHL and its Affiliates (including the RRHL Egypt Entity) and the Company
respectively (and such parties agree to cooperate so that the Realization Event
Payment is made and structured in a manner which is equitable in terms of
achieving a tax and fiscally efficient settlement). In the absence of a joint
determination, the determination of Fair Market Value (but no other matter)
shall thereupon be referred to such independent investment bank as the Company
and RRHL may agree or, failing such agreement, as the Director General (or the
equivalent) for the time being of the London Investment Banking Association may
nominate on the application of the Company or RRHL (the "INVESTMENT BANK") for
determination on the following basis:
(A) the Investment Bank shall be instructed to notify the
Company and RRHL of its determination as soon as practicable;
(B) in making its determination the Investment Bank shall act
as expert and not as arbitrator, its decision as to any matter referred to it
for determination shall in the absence of manifest error be final and binding in
all respects on the Company and RRHL and shall not be subject to question on any
ground whatsoever; and
(C) the fees and expenses of the Investment Bank shall be
borne and paid by the Company and RRHL equally.
Until the Fair Market Value shall have been agreed and determined, RRHL and the
RRHL Egypt Entity shall, and shall use reasonable endeavors to cause their
respective Affiliates to:
(1) give or procure that the Investment Bank is given access
at all reasonable times to all books and records which are in the possession or
under the control of the RRHL Egypt Entity or any of its Affiliates (as the case
may be); and
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(2) generally provide the Investment Bank with such other
information and assistance as it may reasonably require (including access to and
assistance at reasonable times from personnel employed by RRHL, the RRHL Egypt
Entity or any of its Affiliates, as the case may be), in relation to the
determination of the Fair Market Value.
(c) RRHL shall give the Company prior notice in writing of any
proposed Realization Event. Any such election as referred to in Section 4.2(b)
must be made by the Company in writing to RRHL within ten (10) days of agreement
as to or determination of the Realization Event Payment and in any event prior
to the consummation of any Realization Event. In the event that no such election
is made, the Company shall continue to be entitled to receive Management Fee
Payments pursuant to Section 4.2(a) and RRHL shall not consummate any
Realization Event unless and until RRHL's obligations with respect to the
Company's rights are fully novated to and assumed by the relevant third party;
the Company shall enter into any agreement reasonably necessary to novate such
obligations with the relevant third party. RRHL shall not consummate a
Realization Event until the earlier of (i) ten (10) days after the determination
of Fair Market Value and (ii) the date the Company makes an election under
Section 4.2(b), and in any event shall not consummate a Realization Event
without having complied with its obligations under this Section 4.2(c).
(d) If the Company receives a Realization Event Payment in full, its
rights to Management Fee Payments shall cease and determine (save in respect of
any accrued but unpaid Management Fee Payments).
Section 4.3 COVENANTS.
The RRHL Group hereby covenants and agrees with the Company as
follows:
(a) RRHL shall ensure (and accordingly undertakes to the Company)
that at all times a Controlled Affiliate designated by it for such purpose and
notified to the Company as the RRHL Egypt Entity will be the only Affiliate of
RRHL which has any rights to receive consideration under the Egypt Project
Agreements or any financial interest in the Egypt Project (other than any
ownership interest derived from ownership of the equity of the RRHL Egypt
Entity).
(b) Neither RRHL nor the RRHL Egypt Entity shall amend, grant any
time for the performance or other indulgence, waive, supplement or otherwise
modify, and will not permit or agree to any amendment, supplementation or
modification of the Egypt Project Agreements, which would or would reasonably be
expected to materially and adversely affect the Company's rights or adversely
affect the Company's rights pursuant to Sections 4.2(a) and (b) in an amount,
individually or in the aggregate, equal to or greater than five percent (5%),
without the prior written consent of the Company which consent shall not be
unreasonably withheld or delayed. This Section 4.3(b) is without prejudice to
the rights and the limitations set forth in Sections 4.2(a) and (b).
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(c) RRHL and the Company shall cooperate and use reasonable
endeavors, such endeavors not to have an adverse effect to the RRHL Groups' and
RRHL Egypt Entity's overall organizational, operational, and tax management
practices, to minimize any withholding tax on any Gross Revenue on which the
Management Fee Payment is calculated and paid to the Company.
Section 4.4 FINANCIAL STATEMENTS AND OTHER INFORMATION. Kersaf
and/or RRHL shall procure delivery to the Company of all the following:
(a) as soon as available, but not later than ninety (90) days after
the end of each fiscal year of the RRHL Egypt Entity, a copy of the audited pro
forma balance sheet of the RRHL Egypt Entity's interest in the Egypt Project as
of the end of such fiscal year and the related statements of operations and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous year, all in reasonable detail and accompanied by the
opinion of an internationally recognized independent certified public accounting
firm which report shall state that such financial statements present fairly, in
all material respects, on a pro forma basis, the financial condition as of such
date and results of operations and cash flows for the periods indicated in
conformity with GAAP;
(b) commencing with the fiscal period ending on the end date of the
first fiscal quarter of the RRHL Egypt Entity's interest in the Egypt Project
that will be completed after the date hereof, as soon as available, but in any
event not later than forty-five (45) days after the end of each of the first
three fiscal quarters of each fiscal year, the unaudited pro forma balance sheet
of the RRHL Egypt Entity's interest in the Egypt Project, and the related
statements of operations and cash flows for such quarter and for the period
commencing on the first day of the fiscal year and ending on the last day of
such quarter, all certified by an appropriate officer of the RRHL Egypt Entity,
as presenting fairly, in all material respects, the financial condition, on a
pro forma basis, as of such date and results of operations and cash flows for
the periods indicated in conformity with GAAP, subject to normal year-end
adjustments and the absence of footnotes required by GAAP.
Section 4.5 BOOKS OF ACCOUNT. RRHL shall keep appropriate and
separate books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the RRHL Egypt
Entity's interest in the Egypt Project in accordance with GAAP.
Section 4.6 INSPECTION. Kersaf and/or RRHL shall use reasonable
endeavors to, and shall use reasonable endeavors to cause the RRHL Egypt Entity
and any other relevant entities not party hereto to, permit representatives of
the Company (external accountants only) to visit and inspect the physical
property of the Egypt Project (at the Company's expense and not more than once
per calendar year), to examine its corporate, financial and operating records
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its respective directors, officers and independent
public accountants (at the Company's expense and not more than once per calendar
year), all at such reasonable times during normal business hours and as may be
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reasonably requested upon reasonable advance notice to RRHL, all of the
foregoing solely for the purpose of verifying the accuracy of the financial
information disclosed in Section 4.4.
Section 4.7 USE OF CONFIDENTIAL INFORMATION. In connection with the
rights granted to the Company in accordance with Sections 4.4, 4.5 and 4.6
hereof, the Company agrees that it shall not, and shall cause its Controlled
Affiliates not to, without the prior written consent of the RRHL Egypt Entity,
(i) disclose any Confidential Information to any Person and (ii) use such
Confidential Information for any purpose other than the purpose set forth in
Section 4.6 or in any way that adversely affects the RRHL Egypt Entity's
commercial competitiveness.
Section 4.8 ASSIGNMENT OF RIGHTS TO PAYMENT. In the event of the
RRHL Egypt Entity failing to enforce payment to itself of the Gross Revenue or
collect any other revenue, income or other payment due and payable in connection
with the Egypt Project or the Egypt Project Agreements and subject to the
Company notifying RRHL at least ten (10) days in advance of its intention to
exercise rights pursuant to this Section 4.8 (and RRHL not within such period
having corrected such failure), RRHL shall use reasonable endeavors to, and
shall use reasonable endeavors to cause each member of its Group and other
relevant entities not party hereto to, permit the Company and any of its
Controlled Affiliates to procure payment (in the name of RRHL or any relevant
member of its Group including, without limitation, the RRHL Egypt Entity if the
Company so requests upon prior written notice given to RRHL), by legal redress
or otherwise, of any revenue, income or other consideration that has accrued and
is due and payable in respect the Egypt Project or the Egypt Project Agreements
but has not been fully paid to the RRHL Egypt Entity or any of its Affiliates.
For such purpose, RRHL shall or shall procure that any relevant member of its
Group shall give all such information and assistance as the Company reasonably
requests and act in accordance with the reasonable requirements of the Company
and at the cost of the Company. Any payment realized pursuant to this Section
4.8 shall be allocated pursuant to the terms of this Agreement after
reimbursement to the Company of the full amount of the documented and reasonable
out-of-pocket expenses incurred in connection with any such realization efforts
by the Company.
Section 4.9 CLOSING THE EGYPT PROJECT. RRHL shall use all reasonable
endeavors to close the Egypt Project on terms not materially different than the
Egypt Project Agreements. Without prejudice to the foregoing obligations and
this Section 4.9, Sections 4.2 through 4.8 are conditional on the RRHL Group
(including, for the avoidance of doubt, the RRHL Egypt Entity) having rights or
entitlements in relation to the Egypt Project. The parties hereto acknowledge
that RRHL does not have any binding commitments with other participants in the
Egypt Project and agree that RRHL shall have no liability or obligation for
failure to close the Egypt Project so long as such reasonable endeavors are
used.
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ARTICLE V
RELEASE AND WAIVER
Section 5.1 FULL AND FINAL SETTLEMENT.
(a) Subject to Section 5.1(b), each of the parties to this Agreement
does hereby, and each shall cause each of its respective Affiliates
(collectively, the "RELEASING PARTIES") to, in consideration of the transactions
contemplated by this Agreement and the Additional Agreements and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, forever release and discharge each of the other parties to this
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 "RELEASED PARTIES")
from 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 or all unknown or
unanticipated injuries, damages or losses) of every name and nature (except
death and personal injury) arising out of, or related to or derived from (i) the
SIIL Agreement, (ii) the SIHL Agreement, (iii) the Rosegrove Agreement and (iv)
the dispute principally involving the Kersaf Group's entitlement to pursue the
Egypt Project (the "DISPUTE") (all of the foregoing collectively, the "CLAIMS"),
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 Releasing Party
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, for all periods prior to the date
hereof; PROVIDED, HOWEVER, that this Release and Waiver shall not apply to
Claims by the Releasing Party, if any, for (i) the enforcement of the provisions
of this Agreement and the Additional Agreements and (ii) any claims arising
after the date hereof out of, or related to or derived from those provisions of
clause 11 of the Rosegrove Agreement and clause 23 of the SIIL Agreement, which
are expressed to survive termination and which shall continue in full force and
effect.
(b) Notwithstanding the foregoing provisions nothing contained in
this Agreement or the Additional Agreements shall constitute a settlement or
waiver of any rights, claims or causes of action arising from the provisions of
clause 3.6 of the SIIL Agreement. Accordingly, Section 3.6 of the SIIL Agreement
shall continue in full force and effect and shall be incorporated into and form
part of this Agreement. Clause 3.6 reads as follows:
"Following the Reorganisation, with effect from the Reorganisation
Effective Date, SIMLA shall pay to SIMLB an increased pre-estimated, fixed
contribution to SIMLB's overhead costs and structure at the rate of US$2,400,000
per annum, payable monthly in arrear, and escalating annually with effect from
1st July 1994 at the rate of 3.3 percent, per annum compound, such increase
having been agreed in the light of increases in SIMLB's costs as a result of the
novation of the Mauritius Management Contracts and the New Le Galawa Agreement
and so that SIMLB shall be
14
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responsible for all costs incurred after the Reorganisation Effective Date and
not recoverable from SRL or WLHC in relation to the Mauritius Management
Contracts and the New Le Galawa Agreement."
All rights of SIIL, if any, under or in respect of such provisions
shall accrue, as from the date hereof, for the benefit of the Company, are
hereby assigned to the Company and, accordingly, shall be exercisable by the
Company in place of SIIL. Words defined in the SIIL Agreement have the same
meaning in such clause. In connection with the interpretation of such clause,
regard may be had to the full terms and intent of the SIIL Agreement (including,
without limitation, any capitalized terms used in the immediately preceding
paragraph but not otherwise defined in that paragraph) which shall continue in
full force and effect to the extent necessary to give effect to this provision.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1 REPRESENTATIONS AND WARRANTIES BY THE PARTIES. Each of
the parties hereby severally represents and warrants to, and agrees as to itself
and with each of the other parties, as follows:
(a) ORGANIZATION OF THE PARTIES. It is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
and has full organizational power and authority to conduct its business as it is
presently being conducted.
(b) AUTHORIZATION. It has all necessary organizational power and
authority and has taken all organizational action necessary to enter into, and
perform its obligations under this Agreement, each of the Additional Agreements
to which it is a party, and the other transactions contemplated hereunder and
thereunder, respectively. This Agreement and the Additional Agreements have been
duly executed and delivered by it and constitute the legal, valid and binding
obligations of it, enforceable against it in accordance with their terms.
(c) NO CONFLICT OR VIOLATION. Neither the execution and delivery of
this Agreement and each of the Additional Agreements nor the consummation of the
transactions contemplated hereby or thereby by it will result in (i) a violation
of or a conflict with any provision of the charter or bylaws or other
organizational documents of it, (ii) a breach of or a default under any contract
to which it is a party or by which it is bound, or (iii) a violation by it of
any law, rule, regulation, order, judgment, or award, which violation would
adversely affect its ability to consummate the transactions contemplated hereby
and thereby.
(d) GOVERNMENTAL CONSENTS AND APPROVALS. No consent, approval or
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority, is required to be made or obtained by it that has not
been obtained or
15
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made in connection with the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby.
(e) DISCLAIMER OF OTHER REPRESENTATION. Except as set forth in this
Section 6.1, it makes no representations or warranties, expressed or implied, to
any of the other parties in connection with the transactions contemplated
hereby.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing and shall be given (and shall be
deemed to have been given upon receipt) if delivered in person or sent by
facsimile, telegram, telex, by registered or certified mail (postage prepaid,
return receipt requested) or by an internationally recognized overnight courier
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 7.1):
if to the Company, to:
SUN INTERNATIONAL HOTELS LIMITED
P.O. Box N-4777
Nassau, The Bahamas
Attention: Charles D. Adamo, Esq.
Facsimile: (242) 363-4581
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Attention: Kenneth M. Schneider, Esq.
Facsimile: (212) 757-3990
if to Kersaf, to:
KERSAF INVESTMENTS LIMITED
3 Sandown Valley Crescent
Sandown, Sandton
Republic of South Africa
Attention: The Company Secretary
Facsimile: 010 27 11 783 7446
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with a copy to:
c/o Badgemore House
Gravel Hill
Henley-on-Thames RG9 4NR
Attention: The Company Secretary
Facsimile: 01491 576526
if to SINC, to:
SUN INTERNATIONAL INC.
c/o Franco & Franco
Torro Universal
Avenue Federico Boyd
Piso no. 12 (Penthouse)
Panama 5, Republic of Panama
Attention: Mr. R.R. Franco
Facsimile: +507 263 8051
with a copy to:
c/o Badgemore House
Gravel Hill
Henley-on-Thames RG9 4NR
Attention: The Company Secretary
Facsimile: 01491 576526
if to SHI, to:
SUN HOTELS INTERNATIONAL
35 St. Thomas Street
London SE1 9SN
Attention: P. F. Robinson
Facsimile: 020 7378 0647
with a copy to:
c/o Badgemore House
Gravel Hill
Henley-on-Thames RG9 4NR
Attention: The Company Secretary
Facsimile: 01491 576526
17
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if to RRHL, to:
ROYALE RESORTS HOLDINGS LIMITED
Clarendon House
Church Street
Hamilton HM DX, Bermuda
Attention: The Company Secretary
Facsimile: 0101 809 2 924720
with a copy to:
c/o Badgemore House
Gravel Hill
Henley-on-Thames RG9 4NR
Attention: The Company Secretary
Facsimile: 01491 576526
if to RRIL, to:
ROYALE RESORTS INTERNATIONAL LIMITED
Clarendon House
Church Street
Hamilton HM DX, Bermuda
Attention: The Company Secretary
Facsimile: 001 809 2 924720
with a copy to:
c/o Badgemore House
Gravel Hill
Henley-on-Thames RG9 4NR
Attention: The Company Secretary
Facsimile: 01491 576526
if to SHL, to:
SUN HOTELS LIMITED
Clarendon House
Church Street
Hamilton HM DX, Bermuda
Attention: The Company Secretary
Facsimile: 001 441 2 924 720
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with a copy to:
c/o Norton Rose
Kempson House, Camomile Street
London EC3A 7AN
Attention: Christopher Pearson
Facsimile: 0207 283 6500
if to WLG, to:
WORLD LEISURE GROUP LIMITED
c/o Trident Trust Company Limited
PO Box 146, Road Town
Tortola, British Virgin Islands
Attention: The Company Secretary
Facsimile: 0101 809 494 3754
with a copy to:
c/o Norton Rose
Kempson House, Camomile Street
London EC3A 7AN
Attention: Christopher Pearson
Facsimile: 0207 283 6500
if to WLI, to:
WORLD LEISURE INVESTMENTS LIMITED
Clarendon House, Church Street
Hamilton HM DX, Bermuda
Attention: The Company Secretary
Facsimile:
with a copy to:
c/o Norton Rose
Kempson House, Camomile Street
London EC3A 7AN
Attention: Christopher Pearson
Facsimile: 0207 283 6500
19
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if to Caledonia, to:
CALEDONIA INVESTMENTS PLC
Cayzer House
1 Thomas More Street
London E1W 1YB
Attention: The Company Secretary
Facsimile: 020 7488 0896
with a copy to:
Freshfields Bruckhaus Deringer
65 Fleet Street
London EC4Y 1HS
Attention: Jonathan Rees
Facsimile: 0207 832 7001
if to SK, to:
SOLOMON KERZNER
Ibstone House, Ibstone
Nr. High Wycombe
Buckinghamshire, HP14 3YA
Attention: Solomon Kerzner
Facsimile: 01491 638807
with a copy to:
c/o Norton Rose
Kempson House, Camomile Street
London EC3A 7AN
Attention: Christopher Pearson
Facsimile: 0207 283 6500
if to PB, to:
PETER BUCKLEY
c/o Caledonia Investments plc
Cayzer House
1 Thomas More Street
London E1W 1YB
Attention: Peter Buckley
Facsimile: 020 7488 0896
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with a copy to:
Freshfields Bruckhaus Deringer
65 Fleet Street
London EC4Y 1HS
Attention: Jonathan Rees
Facsimile: 0207 832 7001
if to DAH, to:
DEREK AUBREY HAWTON
c/o Kersaf Investments Limited
3 Sandown Valley Crescent
Sandown, Sandton
Republic of South Africa
Attention: The Company Secretary
Facsimile: 010 27 11 783 7446
with a copy to:
c/o Badgemore House
Gravel Hill
Henley-on-Thames RG9 4NR
Attention: The Company Secretary
Facsimile: 01491 576526
if to SIMLA, to:
SUN INTERNATIONAL MANAGEMENT LIMTED
Clarendon House
Church Street
Hamilton HM DX, Bermuda
Attention: The Company Secretary
Facsimile: 00 44 1784 6154
with a copy to:
c/o Badgemore House
Gravel Hill
Henley-on-Thames RG9 4NR
Attention: The Company Secretary
Facsimile: 01491 576526
21
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if to SIMLB, to:
SUN INTERNATIONAL MANAGEMENT LIMITED
c/o Trident Trust Company
P. O. Box 146, Road Town
Tortola, British Virgin Islands
Attention: The Company Secretary
Facsimile: 0101 809 4943754
with a copy to:
c/o Badgemore House
Gravel Hill
Henley-on-Thames RG9 4NR
Attention: The Company Secretary
Facsimile: 01491 576526
if to SIMLC, to:
SUN INTERNATIONAL MANAGEMENT (UK) LIMITED
Badgemore House
Gravel Hill
Henley on Thames, RG9 4NR
Attention: The Company Secretary
Facsimile: 01491 638807
if to Rosegrove, to:
ROSEGROVE LIMITED
c/o Codan Trust Company (BVI) Limited
Romasco Place,
Wickhams Cay 1, P.O. Box 3140 Road Town
Tortola, British Virgin Islands
Attention: Codan Management (BVI) Limited
Facsimile: 284 494 4929
with a copy to:
Freshfields Bruckhaus Deringer
65 Fleet Street
London EC4Y 1HS
Attention: Jonathan Rees
Facsimile: 0207 832 7001
22
<Page>
if to SIIL, to:
SUN INTERNATIONAL INVESTMENTS LIMTED
c/o Trident Trust Company Limited
PO Box 146, Road Town
Tortola, British Virgin Islands
Attention: The Company Secretary
Facsimile: 0101 809 494 3754
with a copy to:
c/o Badgemore House
Gravel Hill
Henley-on-Thames RG9 4NR
Attention: The Company Secretary
Facsimile: 01491 576526
if to Mangalitsa, to:
MANGALITSA LIMITED
Sandringham House
83 Shirley Street
PO Box N3247
Nassau, Bahamas
Attention: Surinder Deal
Facsimile: 242 328 6919
with a copy to:
Freshfields Bruckhaus Deringer
65 Fleet Street
London EC4Y 1HS
Attention: Jonathan Rees
Facsimile: 0207 832 7001
if to HIHL, to:
HOG ISLAND HOLDINGS LIMITED
41 Cedar Avenue
P.O. Box HM1179 Hamilton
Bermuda
Attention: James Keyes
Facsimile: 441 292 8666
23
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with a copy to:
Freshfields Bruckhaus Deringer
65 Fleet Street
London EC4Y 1HS
Attention: Jonathan Rees
Facsimile: 0207 832 7001
if to CMS, to:
CEMENT MERCHANTS SA
P.O. Box 777
Steinort 175
FL-9497 Triesenberg
Principality of Liechtenstein
Attention: The Company Secretary
Facsimile: 423 262 7989
Section 7.2 ENTIRE AGREEMENT; CONFLICTS. This Agreement and the
Additional Agreements, together with all exhibits and schedules hereto and
thereto, respectively, constitute the entire agreement among the parties
pertaining to the subject matter of this Agreement and the Additional Agreements
and (save to the extent expressly provided otherwise in this Agreement or such
Additional Agreements) supersede all prior agreements, understandings,
negotiations, disclosures, and discussions, whether oral or written, of the
parties. No purported variation of this Agreement and the Additional Agreements,
together with all exhibits and schedules hereto and thereto, shall be effective
unless made in writing between the parties. Additionally, except as provided in
Section 5.1(b), in particular, if there is any conflict between the provisions
of this Agreement and the Additional Agreements and the Existing Agreements, the
provisions of this Agreement and the Additional Agreements shall prevail.
Section 7.3 EXPENSES. The parties shall pay their own fees and
expenses, including their own attorneys' fees, incurred in connection with this
Agreement, the Additional Agreements, any transaction contemplated hereby and
thereby and the Dispute; PROVIDED, HOWEVER, that contemporaneously with the
execution of this Agreement, Kersaf shall, or shall cause a member of its Group
to, make a fixed contribution to the Caledonia Group in the amount of 100,000
British pounds in connection with the Caledonia Group's preparation and
completion of any formal agreements.
Section 7.4 REMEDIES TO BE CUMULATIVE. No remedy conferred by any of
the provisions of this Agreement is intended to be exclusive of any other remedy
available at law, in equity, by statute or otherwise. Each and every other
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law, in equity, by statute or
otherwise. The election by any party to
24
<Page>
pursue one or more of such remedies shall not constitute a waiver by such party
of the right to pursue any other available remedy.
Section 7.5 WAIVERS. A party's failure to insist on strict
performance of any provision of this Agreement shall not be deemed to be a
waiver thereof or of any right or remedy for breach of a like or different
nature. Subject as aforesaid, no waiver shall be effective unless specifically
made in writing and signed by a duly authorized officer of the party granting
such waiver.
Section 7.6 CONFIDENTIALITY. 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 not permit its respective Affiliates to, issue any press release or
make any public statements about the transactions contemplated by this Agreement
or the Additional Agreements, or the negotiation of such related transactions.
In addition, the Company, on the one hand, and the SIIL Investors, 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
transactions contemplated by this Agreement or the Additional Agreements, or the
negotiation of such related transactions.
Section 7.7 FURTHER ASSURANCES. After the execution and delivery of
this 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.
Section 7.8 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
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
Agreement.
Section 7.9 CHOICE OF LAW; SUBMISSION TO JURISDICTION AND ADDRESS
FOR SERVICE. This Agreement shall be governed by and interpreted in accordance
with English law. The parties hereby irrevocably submit to the non-exclusive
jurisdiction of the High Court of Justice in England, and this Agreement may be
enforced in any court of competent jurisdiction. Each Party shall at all times
maintain an agent for service of process in England and:
(a) Each of the Company, WCI, SHL, WLG, SK, SIMLB and SIIL hereby
irrevocably authorizes and appoints SIMLC (or such other person resident in
England, as such party may as regards itself by notice to all other parties
substitute) to accept service of all legal process arising out of or connected
with this Agreement and service on SIMLC (or such substitute) shall be deemed to
be service on the party concerned;
(b) Each of Kersaf, RRHL, SIMLA, SINC, SHI and RRIL hereby
irrevocably authorizes and appoints Berwin Leighton Paisner (or such other
person
25
<Page>
resident in England, as such party may as regards itself by notice to all other
parties substitute) to accept service of all legal process arising out of or
connected with this Agreement and service on Berwin Leighton Paisner (or such
substitute) shall be deemed to be service on the party concerned;
(c) Each of Caledonia, Rosegrove, Mangalitsa and HIHL hereby
irrevocably authorizes and appoints Freshfields Bruckhaus Deringer (marked for
the attention of the Department Managing Partner, Litigation, Ref: RHCC) (or
such other person resident in England, as such party may as regards itself by
notice to all other parties substitute) to accept service of all legal process
arising out of or connected with this Agreement and service on Freshfields
Bruckhaus Deringer (or such substitute) shall be deemed to be service on the
party concerned; and
(d) CMS hereby irrevocably authorizes and appoints Cameron McKenna
(or such other person resident in England, as such party may as regards itself
by notice to all other parties substitute) to accept service of all legal
process arising out of or connected with this Agreement and service on Cameron
McKenna (or such substitute) shall be deemed to be service on the party
concerned.
Section 7.10 COUNTERPARTS; EFFECTIVENESS. This Agreement may be
entered into in any number of counterparts and by the Parties to it on separate
counterparts, each of which when executed and delivered shall be an original,
but all the counterparts shall together constitute one and the same instrument.
Section 7.11 SPECIFIC PERFORMANCE. The parties hereto (and any
Person who agrees to be bound hereby pursuant to the terms hereof) acknowledge
and agree that their respective remedies at law for a breach or threatened
breach of any of the provisions of this Agreement would be inadequate and, in
recognition of that fact, agree that, in the event of a breach or threatened
breach by any other party (or any of such Persons) of the provisions of this
Agreement, in addition to any remedies at law, they shall, respectively, without
posting any bond, be entitled to obtain equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction
or any other equitable remedy which may then be available.
Section 7.12 NO THIRD PARTY BENEFICIARIES. A Person who is not
a party to this Agreement may not enforce any of its terms under the Contracts
(Rights of Third Parties) Act 1999, but this shall not affect any right or
remedy of a third party which exists or is available other than under that Act.
Section 7.13 SEVERABILITY. If any term or provision of this
Agreement 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 Agreement but the remainder of
this 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 Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
/s/ Charles D. Adamo
EXECUTED as a DEED by ) -----------------------------------
SUN INTERNATIONAL HOTELS ) Director
LIMITED ) /s/ John R. Allison
in the presence of: ) -----------------------------------
Director
/s/
EXECUTED as a DEED by ) -----------------------------------
SUN INTERNATIONAL HOTELS ) Director
LIMITED )
in the presence of: ) -----------------------------------
Director
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL INVESTMENTS ) -----------------------------------
LIMITED ) Director
in the presence of: )
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
WORLD LEISURE GROUP LIMITED ) -----------------------------------
in the presence of: ) Director
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL INVESTMENTS ) -----------------------------------
LIMITED ) Director
in the presence of: )
-----------------------------------
Director
27
<Page>
EXECUTED as a DEED by ) /s/
WORLD LEISURE GROUP LIMITED ) -----------------------------------
in the presence of: ) Director
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL INVESTMENTS ) -----------------------------------
LIMITED ) Director
in the presence of: )
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
KERSAF INVESTMENTS LIMITED ) -----------------------------------
in the presence of: ) Director
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL INVESTMENTS ) -----------------------------------
LIMITED ) Director
in the presence of: )
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
CALEDONIA INVESTMENTS PLC ) -----------------------------------
in the presence of: ) Director
/s/
-----------------------------------
Director
28
<Page>
EXECUTED as a DEED by ) /s/
ROSEGROVE LIMITED ) -----------------------------------
in the presence of: ) Director
-----------------------------------
Director
EXECUTED as a DEED by )
ROSEGROVE LIMITED ) -----------------------------------
in the presence of: ) Director
/s/
-----------------------------------
Alternate Director
EXECUTED as a DEED by ) /s/
ROYALE RESORTS HOLDINGS ) -----------------------------------
LIMITED ) Director
in the presence of: )
/s/
-----------------------------------
Authorized Representative
EXECUTED as a DEED by ) /s/
ROYALE RESORTS INTERNATIONAL ) -----------------------------------
LIMITED ) Director
in the presence of: )
/s/
-----------------------------------
Authorized Representative
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL INC. ) -----------------------------------
in the presence of: ) Authorized Representative
/s/
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
SUN HOTELS INTERNATIONAL ) -----------------------------------
in the presence of: ) Director
/s/
-----------------------------------
Authorized Representative
29
<Page>
EXECUTED as a DEED by ) /s/
SUN HOTELS LIMITED ) -----------------------------------
in the presence of: ) Director
/s/
-----------------------------------
Authorized Representative
EXECUTED as a DEED by ) /s/
WORLD LEISURE INVESTMENTS ) -----------------------------------
LIMITED ) Director
in the presence of: )
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
SOLOMON KERZNER ) -----------------------------------
in the presence of: ) Director
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL MANAGEMENT ) -----------------------------------
LIMITED ("SIMLA") ) Authorized Representative
in the presence of: )
/s/
-----------------------------------
Authorized Representative
EXECUTED as a DEED by ) /s/
CEMENT MERCHANTS SA ) -----------------------------------
in the presence of: ) Director
/s/
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL MANAGEMENT ) -----------------------------------
LIMITED ("SIMLB") ) Director
in the presence of: )
-----------------------------------
Director
30
<Page>
EXECUTED as a DEED by ) /s/
SUN INTERNATIONAL MANAGEMENT ) -----------------------------------
(UK) LIMITED ("SIMLC") ) Director
in the presence of: )
/s/
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
MANGALITSA LIMITED ) -----------------------------------
in the presence of: ) Director
/s/
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
HOG ISLAND HOLDINGS LIMITED ) -----------------------------------
in the presence of: ) Director
/s/
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
PETER BUCKLEY ) -----------------------------------
in the presence of: ) Director
/s/
-----------------------------------
Director
EXECUTED as a DEED by ) /s/
DEREK AUBREY HAWTON ) -----------------------------------
in the presence of: ) Director
/s/
-----------------------------------
Director
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EXECUTION COPY
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OMNIBUS AGREEMENT,
by and among,
SUN INTERNATIONAL HOTELS LIMITED,
SUN INTERNATIONAL INVESTMENTS LIMITED
WORLD LEISURE GROUP LIMITED,
KERSAF INVESTMENTS LIMITED,
CALEDONIA INVESMENTS PLC,
ROSEGROVE LIMITED,
ROYALE RESORTS HOLDINGS LIMITED,
ROYALE RESORTS INTERNATIONAL LIMITED,
SUN INTERNATIONAL INC.,
SUN HOTELS INTERNATIONAL,
SUN HOTELS LIMITED,
WORLD LEISURE INVESTMENTS LIMITED,
SOLOMON KERZNER,
PETER BUCKLEY,
DEREK AUBREY HAWTON,
SUN INTERNATIONAL MANAGEMENT LIMITED ("SIMLA"),
CEMENT MERCHANTS SA,
SUN INTERNATIONAL MANAGEMENT LIMITED ("SIMLB"),
SUN INTERNATIONAL MANAGEMENT (UK) LIMITED ("SIMLC"),
HOG ISLAND HOLDINGS LIMITED
and
MANGALITSA LIMITED
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July 3, 2001
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS..................................................2
Section 1.1 Defined Terms........................................2
Section 1.2 Other Defined Terms..................................5
ARTICLE II ASSIGNMENT OF NAME..........................................6
Section 2.1 Assignment of NameThe Company shall, and shall cause
its Controlled Affiliates to, WLG shall, and shall
cause its Affiliates to, and SIIL shall,.............6
Section 2.1 enter into the Trade Name and Trademark Agreement
(contemporaneously with the execution of this
Agreement) in the form of Exhibit A attached hereto
(the "Assignment")...................................7
ARTICLE III NON-COMPETITION; NON-SOLICITATION..........................7
Section 3.1 Covenant Not To Compete..............................7
Section 3.2 Covenant Not to Solicit..............................8
Section 3.3 Enforcement..........................................8
ARTICLE IV MONETARY CONSIDERATION......................................9
Section 4.1 Upon Execution.......................................9
Section 4.2 Egypt Project........................................9
Section 4.3 Covenants...........................................11
Section 4.4 Financial Statements and Other Information..........12
Section 4.5 Books of Account....................................12
Section 4.6 Inspection..........................................12
Section 4.7 Use of Confidential Information.....................13
Section 4.8 Assignment of Rights to Payment.....................13
....................................................13
Section 4.9 Closing the Egypt Project ..........................13
ARTICLE V RELEASE AND WAIVER..........................................14
Section 5.1 Full and Final Settlement...........................14
ARTICLE VI REPRESENTATIONS AND WARRANTIES.............................15
Section 6.1 Representations and Warranties by the Parties.......15
ARTICLE VII GENERAL PROVISIONS........................................16
Section 7.1 Notices.............................................16
Section 7.2 Entire Agreement; Conflicts.........................24
Section 7.3 Expenses............................................24
Section 7.4 Remedies to be Cumulative...........................24
Section 7.5 Waivers.............................................25
Section 7.6 Confidentiality.....................................25
Section 7.7 Further Assurances..................................25
Section 7.8 Successors and Assigns..............................25
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Section 7.9 Choice of Law; Submission to Jurisdiction and
Address for Service................................25
Section 7.10 Counterparts; Effectiveness........................26
Section 7.11 Specific Performance...............................26
Section 7.12 No Third Party Beneficiaries.......................26
Section 7.13 Severability.......................................26