Restructuring Agreement among Sea Containers Ltd., Orient-Express Hotels Ltd., and Affiliates (July 21, 2000)
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Summary
This agreement, dated July 21, 2000, is between Sea Containers Ltd., Orient-Express Hotels Ltd., and several related companies. It outlines a series of sales and transfers of company shares and assets among the parties, primarily involving hotel and leisure businesses. The agreement sets out the obligations for each party to transfer or sell specific subsidiaries and assets, the payment terms, and the representations and warranties of each party. The closing is tied to the completion of an initial public offering by Orient-Express Hotels Ltd. and includes indemnification provisions for the parties involved.
EX-2.4 6 ex-2_4.txt EXHIBIT 2.4 RESTRUCTURING AGREEMENT THIS AGREEMENT dated as of July 21, 2000, is by and among Sea Containers Ltd., a Bermuda company ("SCL"), Orient-Express Hotels Ltd., a Bermuda company ("OEHL"), Orient-Express Hotels Inc., a Delaware corporation ("OEHI"), Orient-Express Properties Inc., a Delaware corporation ("OEP"), Sea Containers UK Ltd., a United Kingdom company ("SCUK"), Sea Containers British Isles Ltd., a United Kingdom company ("SCBI"), and Orient-Express Hotels UK Ltd., a United Kingdom company ("OEHUK"). WHEREAS, the parties mutually desire that, between the date hereof and the Closing Date (as such term is defined hereunder): (i) OEHI will sell to SCL all of the capital stock of Sea Containers America Inc., a Delaware corporation ("SCAM"), thereby selling to SCL the subsidiaries of SCAM (as listed on Schedule 1.1 hereto); (ii) after giving effect to the sale of SCAM, OEHI will transfer to OEP all of its assets, which are comprised of the capital stock of the remaining subsidiaries of OEHI (as listed on Schedule 2.1 hereto); (iii) SCL will sell to OEHL all of the capital stock of certain of its wholly-owned subsidiaries, and its shares of stock in certain less than wholly-owned subsidiaries, which are engaged in the hotel and leisure businesses (as listed in Schedule 3.1 hereto); (iv) SCUK will transfer to OEHUK all of the capital stock of certain of its wholly-owned subsidiaries which are engaged in the hotel and leisure businesses (as listed on Schedule 4.1 hereto); (v) SCBI will transfer to OEHUK all of the capital stock of certain of its wholly-owned subsidiaries which are engaged in the hotel and leisure businesses (as listed on Schedule 5.1 hereto); (vi) SCUK will sell to OEHL all of the capital stock of OEHUK, thereby selling to OEHL the subsidiaries of OEHUK (as listed on Schedule 6.1 hereto); and (vii) SCL will execute a trust declaration whereby OEHL will acquire the beneficial interest in SCL's 50% shareholding in Ferrocarril Transandino S.A.; NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereby agree as follows: SECTION 1. SALE FROM OEHI TO SCL. 1.1 On or before the Closing Date, OEHI will sell and deliver to SCL, and SCL will buy and receive from OEHI, all of the right, title and interest of OEHI in and to the capital stock of SCAM. (The subsidiaries of SCAM are listed on Schedule 1.1 hereto). SECTION 2. TRANSFER FROM OEHI TO OEP. 2.1 On or before the Closing Date, after giving effect to the sale described in Section 1.1, OEHI will transfer and deliver to OEP, and OEP will accept and receive from OEHI, for payment of no consideration, all of the right, title and interest of OEHI in and to all of the assets of OEHI, which consist of the capital stock of the entities listed on Schedule 2.1 hereto. SECTION 3. SALE FROM SCL TO OEHL. 3.1 On or before the Closing Date, SCL will sell and deliver to OEHL, and OEHL will buy and receive from SCL, all of the right, title and interest of SCL in and to the capital stock of the entities listed on Schedule 3.1 hereto. SECTION 4. TRANSFER FROM SCUK TO OEHUK. 4.1 On or before the Closing Date, SCUK will transfer and deliver to OEHUK, and OEHUK will accept and receive from SCUK, for payment of no consideration, all of the right, title and interest of SCUK in and to the capital stock of the entities listed on Schedule 4.1 hereto. SECTION 5. TRANSFER FROM SCBI TO OEHUK. 5.1 On or before the Closing Date, SCBI will transfer and deliver to OEHUK, and OEHUK will accept and receive from SCBI, for payment of no consideration, all of the right, title and interest of SCBI in and to the capital stock of the entities listed on Schedule 5.1 hereto. 2 SECTION 6. SALE FROM SCUK TO OEHL. 6.1 On or before the Closing Date, and after giving effect to the transfers described in Sections 4.1 and 5.1, SCUK will sell and deliver to OEHL, and OEHL will buy and receive from SCUK, all of the right, title and interest of SCUK in and to the capital stock of OEHUK. (The subsidiaries of OEHUK, after giving effect to the transfers described in Sections 4.1 and 5.1, are listed on Schedule 6.1 hereto.) SECTION 7. FERROCARRIL TRANSANDINO S.A. 7.1 On or before the Closing Date, SCL will execute a declaration of trust in form and substance satisfactory to SCL and OEHL whereby OEHL will acquire the beneficial interest in SCL's 50% shareholding in Ferrocarril Transandino S.A. (Peru). SECTION 8. PAYMENT. 8.1 On or before the Closing Date, at the direction of OEHI, SCL will pay to OEP, and OEP will receive, $1.00 in cash as the purchase price for the purchase and sale described in Section 1.1. 8.2 On or before the Closing Date, OEHL will pay to SCL, and SCL will receive on behalf of itself and SCUK, as the purchase price for the purchases and sales described in Sections 3.1, 6.1 and 7.1, 23,440,601 Class A common shares of OEHL and 19,303,877 Class B common shares of OEHL. SECTION 9. REPRESENTATIONS AND WARRANTIES. 9.1 Each party hereto represents and warrants to all of the other parties hereto that: (a) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of such party; (b) this Agreement constitutes the legal, valid and binding obligation of such party; (c) this Agreement does not constitute, and the execution, delivery and performance of this Agreement will not result in, any violation of the articles of incorporation, by-laws or similar 3 documents of such party or of any judgment, decree or agreement to which it is a party or by which it is bound; and (d) all necessary authorizations of the transactions contemplated by this Agreement required to be obtained by such party from any government, foreign and domestic, Federal, State or local, have been obtained. 9.2 Each transferor and seller named in Sections 1 through 7 (each, a "Transferor") hereby represents and warrants to its transferee or buyer (each, a "Transferee"), as the case may be, that the shares of capital stock transferred and sold pursuant to Sections 1 through 7 are validly issued, fully paid and nonassessable. 9.3 Additional representations and warranties are set out in footnotes to the Schedules to this Agreement. SECTION 10. INDEMNITIES. 10.1 Each Transferee hereby agrees to indemnify and save harmless its Transferor from any liability, damage, cost or expense, including reasonable attorneys' fees, arising from the status of such Transferor as a shareholder or stockholder of the entities transferred or sold by such Transferor hereunder. SECTION 11. CLOSING. 11.1 The closing hereunder (the "Closing") will take place at 12:00 noon, Bermuda time, on the date the initial public offering of shares in OEHL is completed (the "Closing Date"), at the offices of SCL, 41 Cedar Avenue, Hamilton, Bermuda, or at such other time and place as SCL and OEHL may agree. All transfers and sales contemplated by this Agreement will be deemed to have occurred and to be effective on the Closing Date. SECTION 12. NOTICES. 12.1 Any notice, consent, invoice, approval or payment required or permitted to be given or sent hereunder must be in writing and delivered personally or by mail (registered or certified, return receipt requested), Federal Express or equivalent courier service, or given by facsimile or telecopy. All notices sent in accordance with this Section shall be effective only if and when received by the party to be notified. For purposes of notice, the address of the parties shall be as set forth below or as may be designated in writing from time to time: 4 (a) If to SCL, SCUK, SCBI or OEHUK, to: Sea Containers Services Ltd. 20 Upper Ground London SE1 9PF England Attention: Mr. Daniel J. O'Sullivan and Edwin S. Hetherington, Esq. Telecopier: 0207 ###-###-#### (b) If to OEHL, OEHI or OEP, to: Orient-Express Hotels Ltd. c/o Orient-Express Services Ltd. 20 Upper Ground London SE1 9PF England Attention: Mr. Simon M.C. Sherwood and Edwin S. Hetherington, Esq. Telecopier: 0207 ###-###-#### (c) with a copy in either case to: Carter, Ledyard & Milburn 2 Wall Street New York, New York 10005 Attention: Robert M. Riggs, Esq. Telecopier: 212 ###-###-#### SECTION 13 MISCELLANEOUS. 13.1 At and subsequent to the Closing, each Transferor transferring or selling shares of capital stock hereunder will take all actions in its power to complete any incomplete transfer or sale at the earliest possible date following the Closing and will deliver such additional instruments of assignment and transfer as its Transferee may reasonably require to vest in such Transferee all right, title and interest in and to such shares. Each of the parties shall do, execute and take all necessary and reasonable actions, and perform all such documents, acts and things as may be reasonably within its power to give effect to the provisions of this Agreement and to procure that such provisions are observed and performed. All economic rights and benefits of the transfers and sales under this Agreement, whether complete or incomplete, will accrue to and benefit the respective Transferees no later than as of the Closing Date. 5 13.2 This Agreement may be amended, modified or supplemented only by a written instrument executed by an authorized signatory of each of the parties hereto. Any modification or variation of this Agreement other than in accordance with this Section shall be null and void. 13.3 This Agreement may not be assigned in whole or in part by any party hereto without the prior written consent of the other parties. Any attempted or purported assignment by any party other than in accordance with this Section shall be null and void. 13.4 This Agreement may be executed in any number of counterparts, and by any party on separate counterparts, each of which as so executed and delivered shall be deemed an original but all of which together shall constitute one and the same instrument, and it shall not be necessary in making proof of this Agreement as to any party hereto to produce or account for more than one such counterpart executed and delivered by such party. SECTION 14. PROPER LAW AND JURISDICTION. 14.1 This Agreement shall be governed by and construed in accordance with the internal substantive laws of the Islands of Bermuda. 14.2 If any party shall have the right to seek recourse to a court with respect to any dispute arising out of or related to this Agreement or the transactions contained in or contemplated by this Agreement, whether in tort or contract or at law or in equity, then any action or proceeding in respect of any such dispute shall be brought exclusively in the Courts of the Islands of Bermuda. * * * * * [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. SEA CONTAINERS LTD. ORIENT-EXPRESS HOTELS LTD. By: /S/ D. J. O'Sullivan By: /s/ P. Parrott --------------------------- ------------------------------ Name: Daniel J. O'Sullivan Name: Peter Parrott Title: Senior Vice President - Title: Vice President and Finance and Chief Treasurer Financial Officer ORIENT-EXPRESS HOTELS INC. ORIENT-EXPRESS PROPERTIES INC. By: /s/ P. Parrott By: /s/ P. Parrott --------------------------- ------------------------------ Name: Peter Parrott Name: Peter Parrott Title: Vice President and Title: Vice President and Treasurer Treasurer SEA CONTAINERS UK LTD. SEA CONTAINERS BRITISH ISLES LTD. By: /s/ D. J. O'Sullivan By: /s/ D. J. O'Sullivan --------------------------- ------------------------------ Name: Daniel J. O'Sullivan Name: Daniel J. O'Sullivan Title: Director and Secretary Title: Director and Secretary ORIENT-EXPRESS HOTELS UK LTD. By: /s/ P. Parrott --------------------------- Name: Peter Parrott Title: Director 7 SCHEDULE 1.1 SCAM AND ITS SUBSIDIARIES(1)
- -------- (1) OEHI represents and warrants to SCL as follows: SCAM is a direct wholly-owned subsidiary of OEHI. All of the other companies listed on this Schedule 1.1 are direct wholly-owned subsidiaries of SCAM, except as otherwise noted in the column captioned "% of Ownership, If Less Than 100%". SCHEDULE 2.1 SUBSIDIARIES OF OEHI (AFTER SECTION 1.1)(2)
- ---------- (2) OEHI represents and warrants to OEP as follows: After giving effect to Section 1.1, the companies listed in this Schedule 2.1 will constitute all of the direct and indirect subsidiaries of OEHI. Direct subsidiaries are listed in the first column, and, in the case of each indirect subsidiary, its name is indented and is listed immediately below its direct corporate parent. The common shares of each company listed are owned 100% by such company's direct corporate parent, except as otherwise noted in the column captioned "% of Ownership, If Less Than 100%". SCHEDULE 3.1 SUBSIDIARIES OF SCL TO BE SOLD TO OEHL3
- ---------- (3) SCL represents and warrants to OEHL as follows: All of the companies listed in this Schedule 3.1 are direct or indirect subsidiaries of SCL. Direct subsidiaries are listed in the first column, and, in the case of each indirect subsidiary, its name is indented and is listed immediately below its direct corporate parent. The common shares of each company listed are owned 100% by such company's direct corporate parent, except as otherwise noted in the column captioned "% of Ownership, If Less Than 100%". SCHEDULE 4.1 SUBSIDIARIES OF SCUK TO BE TRANSFERRED TO OEHUK4
- ---------- (4) SCUK represents and warrants to OEHUK that all of the companies listed on this Schedule 4.1 are direct wholly-owned subsidiaries of SCUK. SCHEDULE 5.1 SUBSIDIARIES OF SCBI TO BE TRANSFERRED TO OEHUK5
- ---------- (5) SCBI represents and warrants to OEHUK as follows: Reids Hotel Madeira Limited, Regency Rail Cruises Ltd. and Horatio Properties Ltd. are wholly-owned subsidiaries of SCBI. All of the other companies listed on this Schedule 5.1 are wholly-owned subsidiaries of Horatio Properties Ltd. SCHEDULE 6.1 OEHUK AND ITS SUBSIDIARIES (AFTER SECTIONS 4.1 AND 5.1)6
- ---------- (6) SCUK represents and warrants to OEHL as follows: After giving effect to Sections 4.1 and 5.1, all of the companies listed in this Schedule 6.1 will be direct or indirect subsidiaries of SCUK. Direct subsidiaries are listed in the first column, and, in the case of each indirect subsidiary, its name is indented and is listed immediately below its direct corporate parent. The common shares of each company listed will be owned 100% by such company's direct corporate parent, except as otherwise noted in the column captioned "% of Ownership, If Less Than 100%".
