EXHIBIT 10.1
EXCHANGE AGREEMENT
BETWEEN:
1. Cleopatra's Palace Resorts and Casinos Limited
("CPR&C")
and
2. Cleopatra's World Inc.
(the "Company").
Whereas, the Company owns certain assets consisting of
(a) Negotiable Promissory notes in the aggregate principal amount of Six
Million Five Hundred Thousand Dollars (USD6,500,000) issued by NuOasis Resorts
Inc., copies of which are annexed hereto on Schedule 1 (the "Notes"),
(b) shares of capital stock of Societe D'Animation et de Loisirs Touristiques,
a Tunisian corporation ("SALT") comprising approximately twenty percent (20%)
of the total equity of SALT (the "SALT Shares"), (c) the rights to the Casino
Lease and Management Agreement dated October 1993, as amended, between SALT and
Cleopatra Palace Limited, a copy of which is annexed hereto as Schedule "2"
(the "SALT Lease") and, (d) the trade account receivable in the approximate
amount of One Million Nine Hundred Thousand Dollars (USD1,900,000) due from
Cleopatra Hammamet Limited (the "CHL Receivable"); and,
Whereas, CPR&C wishes to acquire the Company's interest in the Notes,
the SALT Interest and the SALT Lease and the CHL Receivable in exchange for
newly issued ordinary 1.00 pound sterling par value shares of CPR&C.
In consideration of the mutual promises contained herein, the benefits
to be derived by each party hereunder and other good and valuable consideration,
the receipt and sufficiency of which are hereby expressly acknowledged, CPR&C
and the Company agree as follows:
1.0 On the basis of the representations and warranties herein contained,
subject to the terms and conditions set forth herein, the Company agrees to
exchange its interest in the Notes, the SALT Interest and the SALT Lease
for Twelve Million, Five Hundred Fifty-Three Thousand One Hundred Twenty
Five (12,553,125) shares of 1.00 pound sterling par value shares of CPR&C
(the "Shares").
2.0 The closing of the exchange contemplated by this Agreement (the "Closing"
or "Transfer Date") shall occur not later than 30 September 1998. At the
Closing, CPR&C shall the Company shall deliver the Notes, the SALT Interest
and the SALT Lease to CPR&C, and CPR&C shall issue and deliver the Shares
to the Company. Notwithstanding the date of Closing, the Effective Date
shall be the 1st of July, 1998.
3.0 The parties agree to select a mutually agreeable third party to act as
escrowholder ("Escrowholder") and to effect the exchange transaction
contemplated through such Escrowholder, through which the parties will
deliver the Notes and the Shares.
4.0 The Company hereby represents and warrants to CPR&C that:
4.1 The Company is a corporation validly existing and in good
standing under the laws of the British Virgin Islands, with the
power and authority to carry on its business as now being
conducted. The execution and delivery of this Agreement and the
consummation of the transaction contemplated in this Agreement
have been, or will be prior to Closing, duly authorized by all
requisite corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company
and constitutes a binding, and enforceable obligation of the
Company;
4.2 No authorization, consent, or approval of, or registration or
filing with, any governmental authority or any other person is
required to be obtained or made by the Company in connection
with the execution, delivery, or performance of this Agreement,
or if required, the Company has or will obtain same prior to
Closing;
4.3 The Company is not a defendant or a plaintiff against whom a
counterclaim has been made or reduced to judgement, in any
litigation or proceedings before any local, state or U.S.
government, or any department, board, body or agency thereof,
which could result in a claim against the Notes;
4.4 The Notes and the SALT Shares were validly issued by Resorts and
SALT, respectively, and to the best of CPR&C's knowledge the
Notes and the SALT Shares were issued for valid consideration.
Further, there is not in effect or pending, any claim by Resorts
or SALT which would serve as an offset to or to restrict the
transfer or exchange of the Notes or the SALT Shares,
respectively, as contemplated herein. Additionally, the Company
has not created any option, security interest or encumbrance
involving the Notes, the SALT Shares or the SALT Lease that
would give rise to any claims by third parties or otherwise
conflict with or preclude the exchange as contemplated herein;
and
4.5 This Agreement has been duly executed by the Company, and the
execution and performance of this Agreement will not violate, or
result in a breach of, or constitute a default in any agreement,
instrument, judgement, order or decree to which the Company is a
party or to which the Company is subject.
5.0 All obligations of CPR&C under this Agreement are subject to the
fulfillment, prior to or as of the Closing Date, of each of the
following conditions:
5.1 CPR&C shall have issued and delivered the Shares to the
Escrowholder.
5.2 The Company shall have taken all action necessary to assign
and deliver the Notes, the SALT Shares and the SALT Lease to
Escrowholder.
5.3 All instruments and documents delivered to CPR&C and the
Company pursuant to the provisions of this Agreement shall be
satisfactory to CPR&C and the Company and their legal counsel.
6.0 CPR&C and the Company each represent that, by virtue of their
respective business activities and economic bargaining power or
otherwise, they have been able to conduct their own due diligence and
have had access to or have been furnished with, prior to or
concurrently with the execution hereof, the information which they
consider to be adequate to make a decision to exchange the Notes, the
SALT Shares and the SALT Lease for the Shares.
7.0 The officers of CPR&C and the Company executing this Agreement are duly
authorized to do so and each party has taken all action required by law
or otherwise to properly and legally execute this Agreement.
8.0 Any notice under this Agreement shall be deemed to have been
sufficiently given if sent by registered or certified mail, postage
prepaid, addressed as follows:
To the Company: Cleopatra's Palace Resorts and Casinos Limited
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx
Xxxxxx, Xxxxxxx X0 OPE
Telephone: x000 000-0000
Facsimile: +181 340-6100
With copy to: NuOasis International Inc.
00 Xxxxxxxxx Xxxxxx, Xxx X-0000, Xxxxxx, Bahamas
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Company: Cleopatra's World Inc.
x/x Xxxx 0, Xxxxxxxxx Xxxxx
00 Xxxxxxxxx Xxxxxxxx
Xxxxxx XX00 0XX, XXXXXXX
or to any other address which may hereafter be designated by either
party by notice given in such manner. All notices shall be deemed to
have been given as of the date of receipt.
9.0 This Agreement sets forth the entire understanding between the parties
hereto and no other prior written or oral statement or agreement shall
be recognized or enforced.
10.0 If a court of competent jurisdiction determines that any clause or
provision of this Agreement is invalid, illegal or unenforceable, the
other clauses and provisions of the Agreement shall remain in full
force and effect and the clauses and provision which are determined to
be void, illegal or unenforceable shall be limited so that they shall
remain in effect to the extent permissible by law.
11.0 None of the parties hereto may assign this Agreement without the
express written consent of the other parties and any approved
assignment shall be binding on and inure to the benefit of such
successor or, in the event of death or incapacity, on assignor's heirs,
executors, administrators and successors.
12.0 This Agreement has been negotiated and is being contracted for in
England and shall be governed by the laws of England, notwithstanding
any conflict-of-law provision to the contrary.
13.0 If any legal action or other preceding (non-exclusively including
arbitration) is brought for the enforcement of or to declare any right
or obligation under this Agreement or as a result of a breach, default
or misrepresentation in connection with any of the provisions of this
Agreement, or otherwise because of a dispute among the parties hereto,
the prevailing party will be entitled to recover actual attorney's fees
(including for appeals and collection) and other expenses incurred in
such action or proceeding, in addition to any other relief to which
such party may be entitled.
14.0 Nothing in this Agreement, expressed or implied, is intended to confer
upon any person, other than the parties hereto and their successors,
any rights or remedies under or by reason of this Agreement, unless
this Agreement specifically states such intent.
15.0 At any time, and from time to time after the Closing, each party hereto
will execute such additional instruments and take such action as may be
reasonably requested by the other party to confirm or perfect title to
the Shares, the Notes, the SALT Shares and the SALT Lease to be
transferred hereunder, or otherwise to carry out the intent and
purposes of this Agreement.
16.0 Every right and remedy provided herein shall be cumulative with every
other right and remedy, whether conferred herein, at law, or in equity,
and may be enforced concurrently herewith, and no waiver by any party
of the performance of any obligation by the other shall be construed as
a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to Closing, this
Agreement may be amended by a writing signed by all parties hereto.
17.0 The section and subsection headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
18.0 A facsimile, telecopy or other reproduction of this instrument may be
executed by one or more parties hereto and such executed copy may be
delivered by facsimile or similar instantaneous electronic transmission
device pursuant to which the signature of or on behalf of such party
can be seen, and such execution and delivery shall be considered valid,
binding and effective for all purposes. At the request of any party
hereto, all parties agree to execute an original of this instrument as
well as any facsimile, telecopy or other reproduction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
SIGNED AS A DEED FOR AND ON BEHALF OF
Cleopatra's Palace Resorts and Casinos Limited
For Grosvenor Administration Limited For Grosvenor Secretaries Limited
By:/s/Grosvenor Administration Limited By:/s/Grosvenor Secretaries Limited
Authorised signature(s) Authorised signature
Secretary
Effective the 1st day of July, 1998
SIGNED AS A DEED FOR AND ON BEHALF OF
Cleopatra's World Inc.
By: /s/ Xxxxxxx Xxxxxxxx
Authorised signature(s)
Effective the 1st day of July, 1998
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
SIGNED AS A DEED FOR AND ON BEHALF OF
Cleopatra's Palace Resorts and Casinos Limited
By: /s/ Xxxx X. Xxxx
Authorised signature(s)
Effective the 1st day of July, 1998
SIGNED AS A DEED FOR AND ON BEHALF OF
Cleopatra's World Inc.
By: /s/ Xxxxxxx Xxxxxxxx
Authorised signature(s)
Effective the 1st day of July, 1998
