EXHIBIT 10.145
AGREEMENT OF EXCHANGE DATED SEPTEMBER 30, 1996 BETWEEN
NUOASIS INTERNATIONAL, INC. AND C/A/K TRUSTKANTOOR N.V.
AGREEMENT OF EXCHANGE
THIS AGREEMENT OF EXCHANGE ("Agreement") is made and entered into
effective as of the day of September, 1996, by and between NuOasis
International, Inc., a company organised under the laws of the Commonwealth of
the Bahamas and a resident at all times outside the United States (hereinafter
referred to as "Party A"), and CAK Trustkantoor N.V., a trust company organised
under the laws to the Netherlands Antilles and a resident at all times outside
the United States (hereinafter referred to as "Escrow Holder").
RECITALS:
WHEREAS, Party A is the present owner of that certain asset known as
the Gaming Interest, being equal to forty percent (40%) of the Gaming Profits
(net distributable after-tax) from the Casinos (i.e., the gaming operations
conducted pursuant to an arrangement between Ng Man Sun, doing business as
Dragon Sight International Amusement (Macau) Co. and Sociedade DeTurismo
Diversocs De Macau at the Holiday Inn and Hyatt Hotels in Macau) more
particularly described in Exhibit "A" attached hereto and incorporated herein by
reference and as described in the Contract (as hereinafter defined) (the
"Relinquished Property");
WHEREAS, Party A and all of those persons listed on Schedule 1 attached
hereto and incorporated herein by reference (collectively referred to herein as
"Purchasers"), have entered into that certain Purchase Agreement dated August
30, 1996, and as thereafter amended (the "Contract"), pursuant to which Party A
has agreed to transfer and convey the Relinquished Property to the Purchaser in
exchange for the purchase price as stated in the Contract, and as adjusted at
closing (referred to herein as the "Purchase Price");
WHEREAS, Party A desires to make an exchange of the Relinquished
Property for other assets to be located in the future;
WHEREAS, Escrow Holder is willing to accept the assignment of Party
A's rights under the Contract; and
WHEREAS, Escrow Holder has entered into this Agreement pursuant to
which the Escrow Holder has agreed to hold money and/or other assets, including
without limitation, stocks, bonds, promissory notes and all other types of
property, real, personal, tangible or intangible, in an Escrow Account.
NOW THEREFORE, for and in consideration of the mutual covenants,
conditions and agreements set forth herein, Party A and Escrow Holder hereby
agree as follows:
1. Exchange of Properties. On the Closing Date (as hereinafter
defined), Party A hereby agrees to transfer and convey to Escrow Holder all of
its right, title and interest in the Contract, in consideration of and in
exchange for the transfer and conveyance to Party A of other assets, including
without limitation, stocks, bonds, promissory notes and all other types of
property, real, personal, tangible or intangible, whether one or more, the
"Replacement Property": (I) which is designated by Party A pursuant to Section 2
of this Agreement no later than forty-five (45) days after the Closing (as
hereinafter defined), and (ii) the cost of which does not exceed, in the
aggregate, the "Exchange Credit" (as hereinafter defined) at the time of its
acquisition, subject to Party A's right to arrange for additional equity or debt
in order to pay costs of acquisition in excess of the Exchange Credit. For
purposes of this Agreement, the term "Exchange Credit" shall mean, at any given
point in time, the sum of: (I) net proceeds from the Purchase Price, including
any indebtedness assumed or taken subject to by the purchasing party, less
closing costs with regard to the sale of the Relinquished Property and repayment
of debt secured by the Relinquished Property and all related obligations
thereto, plus (ii) the amount of interest, if any, which has then accrued to
Escrow Holder with respect to the Escrow Account.
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2. Acquisition of Replacement Property.
(a) Identification. At such time or times as Party A locates
other assets, including without limitation, stocks, bonds, promissory notes and
all other types of property, real, personal, tangible or intangible which it
desires for Escrow Holder to cause to be acquired and conveyed to it pursuant to
this Agreement as "Replacement Property," Party A shall give written notice (an
"Identification Notice") that: (I) is delivered to Escrow Holder and states that
such property or assets will constitute Replacement Property pursuant to this
Agreement, (ii) is in such form or forms as satisfies the requirements of Escrow
Holder, (iii) is given within forty-five (45) days of the Closing
("Identification Period"), and (iv) specifically describes the Replacement
Property. Party A may give an Identification Notice: (I) more often than once
and (ii) with respect to more than one asset. Any Identification Notice may be
revoked by Party A within forty-five (45) days of Closing but thereafter may not
be revoked.
(b) Acquisition. Subject to the limitations of Section 2(c)
and (d) hereof, if Party A provides to Escrow Holder an Identification Notice
with respect to a specific item of Replacement Property, Escrow Holder shall use
its reasonable efforts to: (I) enter into or accept the assignment of a binding
written contract with the owner or owners of the Replacement Property for the
acquisition of Replacement Property acceptable to Party A and (ii) cause the
transfer and conveyance of the Replacement Property to Party A within 180 days
of the Closing. Escrow Holder may, at its election, cause the owner or owners of
the Replacement Property to deliver to Party A a deed and/or other closing
documents conveying title directly from the owner of the Replacement Property to
Party A and Party A shall execute all closing documents required of it.
(c) Maximum Payment. In no event shall Escrow Holder be
required to provide consideration to acquire the Replacement Property: (I) in
any form other than cash and/or debt which is secured by the Replacement
Property and/or is the obligation of Party A, or (ii) expend in the acquisition
of the Replacement Property an aggregate amount (including the expenses incurred
in such acquisition or acquisitions), which exceeds the amount of the then
outstanding Exchange Credit, subject to Party A's right to arrange for
additional equity or debt in order to pay costs of acquisition in excess of the
Exchange Credit.
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(d) Debt Assumption. Other Limitations. Escrow Holder shall not
be required to (I) enter into any agreement to acquire the Replacement Property
which is not reasonably acceptable to it, (ii) assume any loan secured by the
Replacement Property or to execute any promissory note or other evidence of
indebtedness in connection with its acquisition or acquisitions which would
impose any liability upon Escrow Holder or (iii) execute any agreement or
participate in any transaction, which in the opinion of counsel to Escrow
Holder, would require Escrow Holder to engage in any unlawful or fraudulent
actions.
(e) Limitation Period. Upon the expiration of one hundred eighty
(180) days after the Closing, Party A shall have the right to require Escrow
Holder to transfer to it the Exchange Credit then unexpended in the acquisition
of the Replacement Property; provided, however, if Party A has not identified
Replacement Property by the end of the Identification Period, then Party A shall
have the right to require Escrow Holder to transfer to it the balance of the
Exchange Credit then unexpended in the acquisition of the Replacement Property.
Escrow Holder shall transfer all amounts due Party A pursuant to the immediately
preceding sentence within five (5) days of written demand therefor from Party A.
The payment by Escrow Holder to Party A of the balance of the Exchange Credit
pursuant to this paragraph shall terminate the obligations of Escrow Holder to
deliver the Replacement Property to Party A.
3. Escrow Account.
a. Appointment of Escrow Holder. Party A appoints Escrow Holder as the
Escrow Holder set forth herein, and Escrow Holder accepts such appointment.
b. Deposit. The sum of the net proceeds or other assets received from
the sale of the Relinquished Property, as defined herein (the "Deposit") shall
be delivered to Escrow Holder to be held by Escrow Holder in accordance with the
terms hereof. Subject to and in accordance with the terms and conditions hereof,
Escrow Holder agrees that it shall receive, hold in escrow and release or
distribute the Deposit and all interest earned thereon, if any. All interest and
other earnings on the Deposit shall become part of the Deposit for all purposes,
and that all losses resulting from the investment or reinvestment thereof from
time to time and all amounts charged thereto to compensate or reimburse the
Escrow Holder from time to time for amounts owing to it hereunder shall from the
time of such loss or charge no longer constitute part of the Deposit. From time
to time Party A may deposit or direct deposit of additional funds or assets with
the Escrow Holder to be held, invested and disbursed hereunder and which shall
be considered a part of the Deposit.
c. Investment of the Deposit. Escrow Holder shall cause the Deposit to
be held, or invested and reinvested after receipt of same in short-term interest
bearing investments, such as bank certificates of deposit, money market funds,
overnight repurchase accounts and treasury bills. Receipt or investment of the
Deposit shall be confirmed by Escrow Holder as soon as practicable by account
statement unless otherwise indicated; and any discrepancies therewith shall be
noted by Party A to Escrow Holder within a reasonable time prior to the next
account statement. Unless otherwise directed, Escrow Holder may use a
broker-dealer of its own selection, including a broker-dealer owned by or
affiliated with Escrow Holder or any of its affiliates. Party A shall be liable
for all brokerage costs and related expenses incurred hereunder. Escrow Holder
shall not be liable for and shall be indemnified by Party A from all liability
for losses on any investments, market risk due to premature liquidation, or
other actions taken in compliance with this Agreement. Notwithstanding the
foregoing, Escrow Holder may, in its sole and absolute discretion, accept
written directions or instructions from Party A, which Escrow Holder believes to
be genuine, but Escrow Holder shall not be liable for executing, failing to
execute or for any mistake in the execution of such orders except in case of
willful misconduct.
d. Disbursement of Deposit. Escrow Holder is hereby authorized to make
disbursements of the Deposit only as follows:
(i) Upon (a) notification from Party A, that a property or asset
has been identified, instructing Escrow Holder to disburse
an amount to make the initial deposit, if any, for or to
effectuate the acquisition of Replacement Property in
compliance with this Agreement and specifying:
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(1) The amount of such initial deposit or purchase price
required for the acquisition of the identified
Replacement Property;
(2) The manner in which such initial deposit or purchase
price is to be made available;
(3) The person or persons to which such initial deposit or
purchase price is to be transferred; and
(4) The date the initial deposit or purchase price is
required to be delivered.
(ii) Upon receipt of a written notification signed by Party A
stating that there has been a failure, within forty-five
(45) days from the date of Escrow Holder's receipt of the
Deposit to identify sufficient Replacement Properties which
are suitable for an exchange under and in accordance with
this Agreement;
(iii)Upon receipt of a written notification from Party A stating
that all Replacement Property previously identified pursuant
to this Agreement has been transferred and conveyed to Party
A within 180 days after the date of the closing of the sale
of the Relinquished Property by Party A, all funds then
remaining in the Deposit, after all fees and expenses have
been paid, shall be disbursed to Party A;
(iv) As permitted by this Agreement, to Escrow Holder; and
(v) Into the registry of the court in accordance with Sections 5
or 8 hereof.
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e. Tax Matters. Party A hereto shall provide Escrow Holder with its
taxpayer identification number or certification of foreign taxpayer exemption at
the execution hereof. Failure to so provide such forms may prevent or delay
investment of the Deposit and/or final disbursement of the Deposit and may incur
a penalty and cause Escrow Holder to be required to withhold tax on any interest
payable hereunder. All interest, if any, earned on the Deposit shall be paid to
Party A.
f. Scope of Undertaking. Escrow Holder's and Escrow Holder's duties
and responsibilities shall be purely ministerial and shall be limited to those
expressly set forth in this Agreement. Escrow Holder is not a principal,
participant or beneficiary of any transaction underlying this Agreement and
shall have no duty to inquire beyond the terms and provisions hereof. Escrow
Holder and Escrow Holder shall have no responsibility or obligation of any kind
in connection with this Agreement or the Deposit, and shall not be required to
deliver the same or any part thereof or take any action with respect to any
matters that might arise in connection therewith, other than to receive, hold,
invest and deliver the Deposit as herein provided. Without limiting the
generality of the foregoing, it is hereby expressly agreed and stipulated by the
parties hereto that Escrow Holder shall not be required to exercise any
discretion hereunder and shall have no investment or management responsibility
and, accordingly, shall have no duty to, or liability for its failure to,
provide investment recommendations or investment advice to the parties or either
of them. Escrow Holder shall not be liable for any error in judgment, any act or
omission, any mistake of law or fact, or for anything it may do or refrain from
doing in connection herewith, except for, subject to Section 4 hereinbelow, its
own willful misconduct. It is the intention of the parties hereto that Escrow
Holder shall not be required to use, advance or risk its own funds or otherwise
incur financial liability in the performance of any of its duties or the
exercise of any of its rights and powers hereunder.
4. Reliance; Liability. After Escrow Holder receives the consent of
Party A, Escrow Holder shall not be liable for following the instructions
contained in any written notice, instruction or request or other paper furnished
to it hereunder or pursuant hereto and believed by it to have been signed or
presented by the proper part. Escrow Holder shall be responsible for holding,
investing, reinvesting and disbursing the Deposit; provided, however, that in no
event shall Escrow Holder be liable for any lost profits, lost savings or other
special, exemplary, consequential or incidental damages in excess of Escrow
Holder's fee hereunder and provided, further, that Escrow Holder shall have no
liability for any loss arising from any cause beyond its control, including, but
not limited to, the following: (a) acts of God, force majeure, including,
without limitation, war (whether or not declared or existing), revolution,
insurrection, riot, civil commotion, accident, fire, explosion, stoppage of
labor, strikes and other differences with employees; (b) the act, failure or
neglect of any other party or any agent or correspondent or any other person
selected by Escrow Holder; (c) any delay, error, omission or default of any
mail, courier, telegraph, cable or wireless agency or operator; or (d) the acts
or edicts of any government or governmental agency or other group or entity
exercising governmental powers. Escrow Holder is not responsible or liable in
any manner whatsoever for the sufficiency, correctness, genuineness or validity
of the subject matter of this Agreement or any part hereof or for the
transaction or transactions requiring or underlying the execution of this
Agreement, the form or execution hereof or for the identity or authority of any
person executing this Agreement or any part hereof or depositing the Deposit.
5. Right of Interpleader. Should any controversy arise involving the
parties hereto or any other person, firm or entity with respect to this
Agreement or the Deposit, or should a substitute Escrow Holder fail to be
designated as provided in Section 8 hereof, or if Escrow Holder should be in
doubt as to what action to take, Escrow Holder shall have the right, but not the
obligation, either to (a) withhold delivery of the Deposit until the controversy
is resolved, the conflicting demands are withdrawn, or its doubt is resolved, or
(b) institute a xxxx of interpleader in any court of competent jurisdiction to
determine the rights of the parties hereto. The right of Escrow Holder to
institute such a xxxx of interpleader shall not, however, be deemed to modify
the manner in which Escrow Holder is entitled to direct disbursements of the
Deposit as herein set forth other than to tender the Deposit into the registry
of such court. In the event Escrow Holder is a party to any dispute, Escrow
Holder shall have the additional right to refer such controversy to binding
arbitration. Should a xxxx of interpleader be instituted, or should Escrow
Holder be threatened with litigation or become involved in litigation or binding
arbitration in any manner whatsoever in connection with this Agreement or the
Deposit, then, Party A agrees to pay Escrow Holder from the Deposit its
attorney's fees and any and all other disbursements, expenses, losses, costs and
damages of Escrow Holder in connection with or resulting from such threatened or
actual litigation or arbitration prior to any disbursement hereunder.
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6. Lien. Escrow Holder is hereby given a lien upon all the rights,
titles and interest of the other parties hereto in all Deposits to protect
Escrow Holder's rights, including without limitation, rights of payment and to
indemnity and reimbursement, as provided hereunder, which lien may be enforced
by Escrow Holder without notice, by set off, or by appropriate foreclosure
proceedings.
7. Consultation with Legal Counsel. Escrow Holder may consult with its
counsel or other counsel satisfactory to it concerning any question relating to
its duties or responsibilities hereunder or otherwise in connection herewith and
shall not be liable for any action taken, suffered or omitted by it in good
faith upon the advice of such counsel.
8. Resignation. Escrow Holder may resign hereunder upon 10 days' prior
written notice to Party A. If Party A fails to designate a substitute Escrow
Holder within 10 days after the giving of such notice, Escrow Holder may
institute a xxxx of interpleader as contemplated by Section 5 hereof. Escrow
Holder's sole responsibility after the notice period expires shall be in
accordance with the directions of a final order or judgment of a court of
competent jurisdiction, at which time Escrow Holder's obligations hereunder
shall cease and terminate.
9. Performance of Contract. Notwithstanding anything to the contrary
set forth herein, Party A shall not have the right following the Closing to
receive, pledge, borrow or otherwise obtain the benefits of the Relinquished
Property or the Exchange Credit, or any income or interest which has accrued
with respect to the same, except as provided in Section 2 or 3 of this
Agreement.
10. Closing. The transfer by Party A to Escrow Holder of all of its
right, title and interest in the Contract shall occur prior to closing. The
closing ("xxx Xxxxxxx") shall be effective the 30th day of September, 1996 (the
"Closing Date") or on such other date as may be mutually agreed to by Party A
and Escrow Holder. The transfer by Party A to Escrow Holder of the Contract
shall be made pursuant to an Agreement for Assignment of Rights substantially in
the form of Exhibit B attached hereto. Party A hereby agrees to execute and
deliver a deed or other assignment conveying title to the Relinquished Property
pursuant to the terms of the Contract, and any other required conveyance and
closing documents, directly to the Purchasers under the Contract.
11. Execution of Documents: Further Documentation. Each party hereto
agrees to execute any and all additional documents and/or instruments necessary
to carry out the terms of this Agreement. The costs incurred in the preparation
of any documents required to conclude the transfer of the Relinquished Property
or the Replacement Property shall be borne by Party A.
12. Conflict With Prior Agreements. If and to the extent that this
Agreement is in conflict with any prior written or oral agreement or
understanding between the parties hereto, the terms of this Agreement shall
prevail. No modification or waiver of the terms of the Agreement shall be valid
unless made in writing signed by both parties.
13. Arbitration. Any dispute arising out of this Agreement, whether for
interpretation or enforcement of its terms, shall be determined and settled by
arbitration under the then prevailing commercial rules of the International
Arbitration Association. Arbitration shall be held in Willemstad, Curacao. Any
reward rendered in such arbitration shall be final and binding on each of the
parties and judgment may be entered thereon in a court of competent
jurisdiction.
14. Attorneys' Fees. In the event any of the parties to this Agreement
institutes legal action or arbitration proceedings against any other party to
interpret or enforce this Agreement, or to obtain damages for any alleged breach
hereof, the prevailing party in such action or proceeding shall be entitled to
reasonable attorneys' and experts' fees in addition to all other recoverable
costs and damages.
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15. Survival. The terms of this Agreement shall survive the delivery
of the conveyance documents to the Relinquished Property and receipt by Party A
of the conveyance documents to the Replacement Property pursuant to this
Agreement.
16. Time. Time is of the essence of this Agreement.
17. Binding. This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto their estates, heirs, representatives,
successors in interest and assigns; provided, however, that Party A shall have
no right to assign this Agreement or any of its rights hereunder without the
prior written consent of Escrow Holder.
18. Choice of Laws; Cumulative Rights. This Agreement and the Deposit
shall be construed under and governed by the laws of the Netherlands Antilles,
including its conflict of law rules. All of Escrow Holder's rights hereunder are
cumulative of any other rights it may have by law or otherwise.
19. Assignment. This Agreement shall not be assigned by Party A or
Escrow Holder without the prior written consent of either party.
20. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reasons
whatsoever, such illegality or invalidity shall not affect the validity or
legality of the remainder of this Agreement.
21. Termination. Upon disbursement of all the Deposit as specified in
Section 3 hereof, this Agreement shall terminate.
22. Notices. All notices required or permitted to be given pursuant to
this Agreement shall be in writing and shall be effective upon personal delivery
or confirmed telefax to the party to whom they are addressed at the following
address:
To Party A:
NuOasis International, Inc.
00 Xxxxxxxxx Xxxxxx
X.X. Xxx XX-00000
Nassau, Bahamas
Telephone: (000) 000-0000
Telefax: (000) 000-0000
To Escrow Holder:
CAK Trustkantoor N.V.
Do Xxxxxxxxxx 00X
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx
Xxxxxxxxxxx Antilles
Telephone: 0000-000000
Telefax: 5999-612720
Any party may change its address for notice by giving notice to the
other party in accordance with this paragraph.
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23. No Agency. Party A and Escrow Holder mutually agree that Escrow
Holder is acting as an independent principal in the transaction described herein
and shall not be deemed as an agent for Party A in any capacity.
24. Payment to Escrow Holder. Escrow Holder shall be entitled to a fee
for services rendered through closing of the Relinquished Property. Such fee
will be paid from the Escrow Account upon funding of the Escrow Account. After
closing of the Relinquished Property, Escrow Holder shall prepare an Assignment
of Rights and related documentation which may be required to effectuate the
transfer of the Replacement Property to Party A.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
"Party A"
NuOasis International, Inc.,
a company organised under the laws of the
Commonwealth of the Bahamas
By:----------------------------------------
Name:
Its:
"Escrow Holder"
CAK Trustkantoor N.V.,
a company organised under the laws of the
Netherlands Antilles
By:----------------------------------------
Name:
Its:
8
EXHIBIT "A"
to the
Agreement of Exchange
dated September ---, 1996
RELINQUISHED PROPERTY
9
EXHIBIT "B"
to the
Agreement of Exchange
dated September , 1996
AGREEMENT OF ASSIGNMENT OF RIGHTS
THIS AGREEMENT (the "Agreement") is effective this ----- day of
-------, 1996 by and between NuOasis International Inc., a company organised
under the laws of the Commonwealth of the Bahamas and a resident at all times
outside the United States ("Party A"), and C/A/K Trustkantoor N.V. a trust
company organised under the laws of the Netherlands Antilles and a resident at
all times outside the United States (hereinafter referred to as "Escrow
Holder"), with notice of this Agreement provided to those entities, as
Purchasers under the Purchase Agreement dated August 30, 1996 ("Acquiring
Party").
WHEREAS, Party A and Acquiring Party have entered into that certain
Purchase Agreement dated August 30, 1996, and as thereafter amended, by and
between Party A and Acquiring Party, attached hereto as Exhibit "A" (the
"Contract"); wherein Party A agreed to dispose of by means of a sale, its
interest in, among other things that asset or assets described in the Contract
(the "Relinquished Property");
WHEREAS, Party A and Escrow Holder have entered into that certain
Exchange Agreement dated as of September ____, 1996;
WHEREAS, the parties hereto wish to assign Party A's rights to the
Relinquished Property under the Contract to Escrow Holder;
NOW THEREFORE, in consideration of the mutual covenants and
promises set forth herein, Party A and Escrow Holder agree as follows:
1. Assignment of Rights. Party A hereby transfers and assigns to
Escrow Holder all of its rights, title and interest under the Contract.
Acquiring Party shall be notified of the assignment of Party A's rights, title
and interest to Escrow Holder in the Contract prior to closing under the
Contract.
2. Assignment of Deposit. At the time this Agreement becomes
effective, Party A will cause any deposit which has been made under the Contract
by the Acquiring Party to be released to the Escrow Holder.
3. Enforcement of Rights. Escrow Holder has assumed all rights of
Party A under the Contract pursuant to this Agreement; provided, however, if for
any reason Escrow Holder fails to enforce any of the rights assigned to it under
the Contract by this Agreement, Party A may enforce the rights under the
Contract assigned to Escrow Holder.
4. Assumption of Obligations. Escrow Holder does not hereby assume any
of the obligations, representations or warranties of Party A under the Contract.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, to be effective immediately before the transfer of title to the
Relinquished Property by Party A pursuant to the Exchange Agreement. This
Agreement, however, shall be null and void in the event Party A or its assigns
do not convey title to the Relinquished Property on or before September 30,
1996, or at such future date as is mutually agreed to by the parties hereto.
"Party A"
NuOasis International, Inc.,
a company organised under the laws of the
Commonwealth of the Bahamas
By:-----------------------------------------
Name:
Its:
"Escrow Holder"
CAK Trustkantoor N.V.,
a company organised under the laws of the
Netherlands Antilles
By:-----------------------------------------
Name:
Its:
11
EXHIBIT "A"
to the
Agreement for Assignment of Rights
dated September , 1996
THE CONTRACT
12
SCHEDULE "1"
to the
Agreement of Exchange
dated September , 1996
NAME(S) OF PURCHASERS OF THE RELINQUISHED PROPERTY
13
