EXHIBIT 10.148
AGREEMENT DATED JULY 31, 1996 BETWEEN NUOASIS
INTERNATIONAL INC. AND NG MAN SUN
AGREEMENT
DATED: 31st July, 1996.
PARTIES:
1. "NuOasis" NUOASIS INTERNATIONAL INC., a corporation organised
under the laws of the Commonwealth of the Bahamas
2. "Dragon" XX. XX MAN SUN, DOING BUSINESS AS DRAGON SIGHT
INTERNATIONAL AMUSEMENT (MACAU) COMPANY
RECITALS:
1.1 On May 25, 1995, Xxxx Xxxxxxx'x XX Inc. a Colorado corporation
("Xxxx"), the sole shareholder of NuOasis, acquired from Dragon a forty
percent (40%) net profits interest in the gaming operations conducted
by Dragon at the Hyatt and Holiday Inn Hotels in Macau, (the "Net
Profits Interest"); and,
1.2 As partial consideration for the purchase of the Net Profits Interest
on May 25, 1996, Xxxx issued a Contingent Security Promissory Note in
the principal amount of Three Million Dollars (USD3,000,000) in favor
of Dragon, a copy of which is annexed hereto as Schedule "1" (the
"Note"); and
1.3 Xxxx assigned all of its right, title and interest in the Net Profits
Interest and its obligations under the Note to NuOasis by way of the
Assumption Agreement dated December 29, 1995; and,
1.4 Dragon and Xxxx have agreed, as part of the settlement of a dispute
between them, to the retirement of the Note, by way of purchase by a
third party or otherwise; and,
1.5 NuOasis has agreed to purchase the Note pursuant to the terms hereof.
OPERATIVE PROVISIONS
1. NuOasis hereby purchases from Dragon and Dragon hereby sells the Note
to NuOasis, subject only to Seller's receipt of the Purchase Price (as
defined below).
2. The Purchase Price for the Note shall be Three Million Two Hundred
Eighty Thousand Dollars (US$3,280,000), payable in cash at Closing.
3. Dragon hereby warrants to NuOasis as follows:
[NUOINTL\AGR:NG73196.AGR]
3.1 At Closing Dragon shall deliver the Note in its original
form to NuOasis in proper form for transfer, with signatures
guaranteed in favor of NuOasis or its designee, transferring
all right, title and interest in and to the Note to NuOasis,
or such designee; and,
3.2 This Agreement has been duly executed by Dragon 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 judgment, order or decree to
which the Note is subject or to which Dragon is a party;
and,
3.3 The Note is not subject to any claims or causes of action
created by or through Dragon, and Dragon is not a defendant,
nor a plaintiff against whom a counterclaim has been made or
reduced to judgment, in any litigation or proceedings before
any federal or state government of Macau or other
jurisdiction, or any department, board, body or agency
thereof, involving the Note; and,
3.4 Dragon has the full right and power to transfer such and
enter into and carry out this Agreement; and,
3.5 No representation or warranty contained herein, nor
statement in any document, certificate or schedule furnished
or to be furnished pursuant to this Agreement by Dragon, or
in connection with the transaction contemplated hereby,
contains or contained any untrue statement of a material
fact, nor does it omit to state a material fact necessary to
make any statement of fact contained herein not misleading.
4. NuOasis hereby warrants to Dragon as follows:
4.1 It is a corporation duly organized and validly existing
under the laws of the Commonwealth of the Bahamas as of the
date hereof; and,
4.2 It is not a defendant or a plaintiff against whom a
counterclaim has been made or reduced to judgment, in any
litigation or proceedings before any federal, provincial or
municipal government of the Commonwealth of the Bahamas, or
other jurisdiction, or any department, board, body or agency
thereof, which could result in a claim against the Purchase
Price; and,
4.3 This Agreement has been duly executed in the capacity stated
on the signature page hereof, 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, judgment, order or decree to which NuOasis is a
party or to which it may be subject; and,
[NUOINTL\AGR:NG73196.AGR]
4.4 No representation or warranty contained herein, nor
statement in any document, certificate or schedule furnished
or to be furnished pursuant to this Agreement by Dragon, or
in connection with the transaction contemplated hereby,
contains or contained any untrue statement of a material
fact, nor does it omit to state a material fact necessary to
make any statement of fact contained herein not misleading.
5. This Agreement sets out the entire agreement and understanding of the
parties and is in substitution for any previous agreements or contracts
between NuOasis and Dragon in respect to the Note, which shall herewith
be deemed to have been terminated by mutual consent.
6. The validity, construction and performance of this Agreement shall be
governed by the laws of the Commonwealth of the Bahamas.
7. Delivery of the Note ("Closing") shall occur forty eight (48) hours
following NuOasis' written notice to Dragon that NuOasis wishes to
effect a Closing.
8. All disputes, claims or proceedings between the parties relating to the
validity, construction or performance of this Agreement shall be
subject to the exclusive jurisdiction of the Commonwealth of the
Bahamas to which the parties irrevocably submit.
9. Any notice to be given by a party under this Agreement must be in
writing (in the English language) and must be given by delivery at or
sending by first class post or other faster postal service, or telex,
facsimile transmission or other means of telecommunication in
permanent written form (provided the addressee has his or its own
facilities for receiving such transmissions) to the last known postal
address or relevant telecommunications number of the other party.
Where notice is given by sending in a prescribed manner it shall be
deemed to have been received when in the ordinary course of the means
of transmission it would be received by the addressee. To prove the
giving of a notice it shall be sufficient to show it was dispatched. A
notice shall have effect from the sooner of its actual or deemed
receipt by the addressee.
10. This Agreement may be executed in more than one counterpart, each of
which shall be deemed to constitute an original and shall become
effective when one or more counterparts have been signed by all of the
parties hereto and when such a counterpart so executed has been
delivered to each of the parties hereto.
[NUOINTL\AGR:NG73196.AGR]
IN WITNESS WHEREOF this Agreement has been entered into by the parties hereto as
a deed the day and year first below written
SIGNED and DELIVERED as a DEED )
)
)
By: /s/ Xxxxx Xxxxx Xxxxx )
-------------------------------------------------------- )
Xxxxx Xxxxx Xxxxx (Representing First Directors )
Limited) (a Director) )
)
)
/s/ Xxxxxx Xxx Xxxxxxxx )
-------------------------------------------------------- )
Xxxxxx Xxx Xxxxxxxx (Representing First Directors )
Limited) (a Director) )
)
on behalf of NUOASIS INTERNATIONAL INC. )
SIGNED and DELIVERED as a DEED )
)
)
By: /s/ Ng Man Sun )
-------------------------------------------------------- )
Ng Man Sun )
)
on behalf of DRAGON SIGHT INTERNATIONAL AMUSEMENT (Macau) )
COMPANY )
[NUOINTL\AGR:NG73196.AGR]
SCHEDULE "1"
to the
Agreement
Dated 31 July, 1996
THE NOTE
[NUOINTL\AGR:NG73196.AGR]
SECURED CONTINGENT PROMISSORY NOTE
FOR VALUE RECEIVED, effective on the 25th day of May, 1995, Xxxx
Xxxxxxx'x XX Inc, a corporation ("Maker") promises to pay to Xx Xx Man Sun,
doing business as Dragon Sight International Amusement (Macau) Company
("Holder"), the principal sum of Three Million Dollars (US$3,000,000) with
interest at the rate of eight percent (8%) per annum.
Rate of Interest
Interest shall accrue at a rate per annum equal to the lesser of (a) three
percent (3%) or (b) the percentage which is the sum of (i) the "base rate of
interest" announced publicly by First Los Angeles Bank, Newport Beach,
California, from time to time (360-day basis) then in effect and most recently
available before the date on which the interest rate determination is made (the
"Base Rate") plus (ii) one percent (1%). A determination of the interest rate
from time to time in effect shall be made prospectively on the date hereof and
on the first day of each calendar month thereafter until this Note shall be paid
in full. Interest hereunder shall be calculated on the actual number of days
elapsed on the basis of a 360-day year.
Rate of Interest on Default
Interest on the unpaid principal together with all accrued and unpaid interest
shall, after the maturity hereof, whether by demand, acceleration, or otherwise,
automatically accrue and shall be payable at the rate per annum equal to the
lesser of (a) three percent (3%) or (b) the percentage which is the sum of (i)
one percent (1%), plus (ii) the Base Rate.
Payment of Principal and Interest
Payments of principal and interest under this Note shall be payable on or before
June 30, 1996, with accrued interest, at the applicable rate set forth above,
beginning on the first business day of June 1995 and thereafter on the first
business day of each succeeding calendar month until the entire remaining
balance together with all accrued but unpaid interest hereunder is paid.
Each payment shall, when made, be credited first on interest then due, and the
remaining on principal, and interest shall thereupon cease upon the principle so
credited.
Security
This Note is secured by a Security Agreement of even date herewith executed by
Maker as Debtor granting to Holder a security interest in 250,000 shares of
Class B Preferred Stock of NuOasis Gaming Inc, a Delaware corporation (the
"NuOasis Shares") pursuant to which Maker has pledged the NuOasis Shares as
collateral for payment of this Note. This Note is further subject to and
governed by the provisions contained in or referred to in said Security
Agreement of even date. Notwithstanding the terms of said Security Agreement,
this Note is not negotiable. This Note may be assigned by Holder, but only
subject to all defenses which Maker may have against Holder. Further, payment of
this Note does not constitute a personal or corporate obligation of Maker.
[NUOINTL\AGR:NG73196.AGR]
Acceleration
The entire remaining balance of this Note together with all accrued but unpaid
interest hereunder, and all other obligations, direct and contingent, of Maker
or any endorser hereof to Holder shall, at the election of Holder, become
immediately due and payable, without demand or notice, upon the occurrence of
any of the following:
(a) Maker becomes bankrupt (including but not limited to, the
commencement of a case under Title 11 of the United States
Code as now constituted or hereafter amended, or under any
other applicable federal or state bankruptcy law) or makes
an assignment for the benefit of creditors;
(b) The appointment for Maker, voluntarily or involuntarily, of
a receiver, trustee, liquidator, custodian, or sequester or
other similar official) in equity, bankruptcy, or under any
provision of any law of any state or the United States of
America, or otherwise;
(c) Maker's dissolution; or
(d) Default in any payment or performance required under this
Note.
Failure to Exercise Rights
No failure or delay on the part of Holder in the exercise of any power, right,
or privilege under this Note shall operate as a waiver thereof or of any other
power, right, or privilege, nor shall any single or partial exercise of any such
power, right, or privilege preclude any further exercise thereof or of any other
power, right, or privilege.
Pre-Payment
The entire principal balance of this Note or any part thereof may be prepaid
without penalty or premium on any interest payment date upon not less than ten
(10) days prior written notice.
Offset for Note
This Note is issued under an Asset Purchase Agreement dated May 1, 1995, between
the Holder and the Maker. The Maker expressly reserves against the Holder, and
any subsequent holder of this Note, the right to offset against any and all sums
payable hereunder an amount equal to any and all damages sustained by the Maker
by reason of any breach or default by the Holder under the Purchase Agreement.
[NUOINTL\AGR:NG73196.AGR]
Limit on Interest
Notwithstanding anything to the contrary contained herein, the total liability
for payments in the nature of interest, additional interest, and other charges
shall not exceed the limits imposed by the applicable interest rate laws. If any
payments in the nature of interest, additional interest, and other changes made
hereunder are held to be in excess of the limits imposed by the applicable
interest rate laws it is agreed that any such amount held to be in excess shall
be considered payment of principal hereunder and the indebtedness evidenced
hereby shall be reduced by such amount so that the total liability, for payments
in the nature of interest, additional interest, and other charges shall not
exceed the limits imposed by the applicable interest rate laws in compliance
with the desires of Maker and Holder.
Waiver of Presentment, Etc.
Maker and endorsers, and each of them, hereby waive diligence, demand,
presentment for payment, protest and notice of protest, notice of dishonor, and
notice of nonpayment of this Note, and specifically consent to and waive notice
of any kind of any renewal, extension, or enforcement of this Note. The pleading
of any statute of limitations as a defense to any demand against Maker or
endorsers is expressly waived by each and all of said parties. Maker and
endorsers, and each of them, waive trial by jury in any litigation arising out
of or relating to this Note in which Holder is an adverse party and further
waive the right to interpose any defense, setoff, or counterclaim of any nature
or description.
Benefit
Subject to the terms and conditions contained herein, the provisions of this
Note shall inure to the benefit of and shall be binding upon the assigns,
successors in interest, or personal representatives of Maker and Holder,
respectively.
Severability
Every provision in this Note is intended to be severable. In the event any term
or provision hereof is declared by a court of competent jurisdiction to be
illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the balance of the terms and provisions hereof, which terms and
provisions shall remain binding and enforceable.
[NUOINTL\AGR:NG73196.AGR]
Time of Essence
Time is of the essence in the performance of each and every obligation under
this Note to be performed by Maker.
"Maker"
XXXX XXXXXXX'X XX INC.
a Colorado corporation
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Executiv Officer
[NUOINTL\AGR:NG73196.AGR]
