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EXHIBIT 10.21
OPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement") is made and entered into as of this
20th day of April, 1998 (the "Contract Date") by and between Xxxxx X. Xxxx, an
individual (the "Optionee"), and Concorde Gaming Corporation, a Colorado
corporation ("the Optionor").
W I T N E S S E T H
WHEREAS, the Optionor is the owner of an 80% interest (the "Interest") in
Bayfront Ventures, a Florida general partnership ("Bayfront Ventures"); and
WHEREAS, Goldcoast Entertainment Cruises, Inc. ("Goldcoast") is the owner
of the remaining 20% interest in Bayfront Ventures; and
WHEREAS, pursuant to the joint venture agreement dated as of August 27,
1997 between the Optionor and Goldcoast (the "JV Agreement"), the Optionor is
required to make certain capital contributions (the "Capital Contributions") to
Bayfront Ventures; and
WHEREAS, the Optionor has not been able to obtain financing to fund the
Capital Contributions; and
WHEREAS, Optionee has agreed to provide Optionor until the Termination Date
(defined below) with a line of credit (the "Line of Credit") in the amount of
$3,000,000 upon which Optionor may draw (each, an "Advance") at any time. Any
Advance made to Optionor from the Line of Credit will bear interest at a rate of
18% per annum which interest shall accrue until the earlier of the Exercise Date
or the Termination Date (as defined below) and shall be payable over a four year
term; and
WHEREAS, Optionee has signed a Commitment Letter whereby he has agreed to
finance the working capital needs of the Optionor in an amount not to exceed
$500,000 (the "Working Capital Line of Credit"); and
WHEREAS, in consideration for Optionee extending Optionor the Line of
Credit and the Working Capital Line of Credit, Optionor has agreed to grant to
Optionee the exclusive right to purchase all or a portion of the Interest (the
"Option") in accordance with the terms and on the conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements as
hereinafter set forth, the parties agree as follows:
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1. GRANT OF RIGHTS.
(a) Grant of Option. Optionor hereby grants to Optionee an exclusive
and irrevocable right to purchase all or a portion of the Interest from
Optionor subject to the terms contained herein.
(b) Termination. This Option shall terminate on April 20, 1999 (the
"Termination Date") if not previously exercised.
(c) Option Exercise. Optionee may exercise the Option at any time (the
"Exercise Date") on or prior to the Termination Date by giving Optionor
written notice of such exercise (the "Exercise Notice"); provided that the
Option may not be exercised until the Exercise Conditions (as defined
below) have been met.
(d) Exercise Price. On the Exercise Date the Optionee shall pay to the
Optionor the Exercise Price (the "Exercise Price"), which shall be an
amount equal to (i) the total amount of the Capital Contributions made by
the Optionor up to the Exercise Date; (ii) other costs incurred by Optionor
to acquire its partnership interest, which costs are set forth on Schedule
A and include costs related to the LEG Agreement, legal costs and other
costs (not including their financing costs) related to Bayfront Ventures
that are not classified as a Capital Contribution; and (iii) financing
costs such as interest and fees incurred by Optionor on all obligations
related to Bayfront Ventures from the date of this Agreement.
(e) Payment Terms. Upon the exercise of the Option by Optionee,
Optionee shall pay Optionor the Exercise Price in the following manner: (i)
One Million Dollars ($1,000,000.00) in cash, which amount may be increased
at Optionee's discretion; (ii) the cancellation of all notes receivable
from Optionor related to loans made by Optionee, or entities controlled by
him, for Bayfront Ventures (which total $1,440,000.00) as of the date of
this Option Agreement; and (iii) a promissory note for the balance of the
Exercise Price payable in 36 monthly installments with interest at eighteen
percent (18%) commencing one month after the later of (A) the Exercise Date
or (B) October 1, 1998.
(f) In the event Optionee elects to purchase only a portion of the
Interest, the Exercise Price and the payment terms set forth in subsection
(e) above shall be reduced on a pro rata basis.
2. CONDITIONS TO EXERCISE. The exercise of the Option by Optionee shall be
subject to the successful completion of the following (collectively, the
"Exercise Conditions"):
(a) Optionee shall provide a letter of credit in the amount of
$900,000 to the Bayfront Park Management Trust (the "Trust") which letter
of credit shall be reasonably acceptable to the Trust;
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(b) the Trust shall release Optionor from the letter of credit
Optionor previously provided to the Trust;
(c) Goldcoast must have consented in writing to the transfer of the
Interest to Optionee and the replacement of Optionor by Optionee as a
partner in Bayfront Ventures;
(d) the Trust must have approved in writing the transfer of the
Interest to Optionee;
(e) all lenders who had provided Bayfront Ventures with financing
prior to the Exercise Date must approve of the transfer of the Interest to
Optionee and release Concorde from any obligation thereunder; and
(f) Optionor and Optionee must have executed a management agreement
acceptable to each party pursuant to which Optionor will agree to manage
Optionor's interest in Bayfront Ventures.
3. CONVEYANCE OF THE INTEREST. On the Exercise Date, Optionor shall convey
to Optionee, or an entity controlled by Optionee and designated in writing, the
Interest. Optionee shall agree to assume and agree to pay, discharge or perform,
as appropriate, all liabilities and obligations of Optionor, and indemnify and
hold Optionor, its directors, officers, employees and agents harmless with
respect to all contracts related to Bayfront , including but not limited to the
following: 1) that certain agreement dated as of August 5, 1997 between the
Optionor and the Xxx Equity Group (the "LEG Agreement"); 2) the JV Agreement and
3) any vessel construction financing or long-term financing agreement entered
into by Bayfront. Optionor shall also assign to Optionee all of Optionor's
right, title and interest to: 1) the LEG Agreement and 2) the JV Agreement.
4. ASSIGNMENT. Except upon the prior written consent of the parties hereto,
Optionee may not assign the Option or any other right under this Agreement;
provided, however that Optionee may assign the Option to an entity controlled
(as such term is defined in the Securities Exchange Act of 1934, as amended) by
the Optionee without obtaining such consent.
5. BROKER. Each of the parties hereto represents to the other that it has
not retained the services of a broker or finder in connection with this
transaction.
6. NOTICE. Any notice, demand or request which may be permitted, required
or desired to be given in connection herewith shall be in writing and directed
to Optionor or Optionee at the respective addresses set forth below (or at such
other addresses as party hereto may designate in writing), personally delivered
or deposited in the U.S. mail, registered or certified, return receipt
requested. Such notice shall be deemed received seventy-two (72) hours after
deposited in the U.S. mail, or if personally delivered, upon delivery. A
registered mail or certified mail receipt will be prima facie evidence of the
giving of such notice and the date thereof:
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Optionee: Xxxxx X. Xxxx
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxx Xxxxxx 00000
Telephone:________________
Fax:_____________________
Optionor: Concorde Gaming Corporation
0000 Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxx Xxxxxx 00000
Telephone (000) 000-0000
Fax (000) 000-0000
Attention: Xxxxxx Xxxxxx
Copies to: Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxx
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
7. SURVIVAL. The terms and provisions of this Agreement shall not merge
with, be extinguished or otherwise affected by any subsequent conveyance or
instrument by or between the parties hereto unless such instruments shall
specifically so state and are signed by the parties hereto. The representations,
warranties, covenants and agreements of the parties contained herein shall
survive the closing and shall not be deemed to merge upon delivery and
acceptance of the License.
8. GENERAL PROVISIONS.
(a) Integration Clause. This is the entire agreement between the
parties with respect to this transaction. There are no oral promises,
conditions, representations, understandings, interpretations, or terms of
any kind as conditions or inducements to the execution hereof or in effect
between the parties. This Agreement may not be amended or modified except
by a document in writing signed by both parties.
(b) Applicable Law. This Agreement shall be interpreted in accordance
with the laws of the State of Colorado.
(c) Severability. In the event any provisions hereof or any portion of
any provision hereof shall be deemed to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability shall not
alter the remaining portion of any provision, or any other provision
hereof, as each provision of this Agreement shall be deemed to be severable
from all other provisions hereof.
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(d) Waivers. The waiver of either party hereto of any right granted to
it hereunder shall not be deemed to be a waiver of any other right granted
herein, nor shall the same be deemed to be a waiver of a subsequent right
obtained by reason of the continuation of any matter previously waived.
(e) Binding Agreement; Inurement. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective legal
representatives, successors, heirs and assigns.
(f) Time Calculations. Unless otherwise indicated, all periods of time
referred to in this Agreement shall refer to calendar days unless
specifically stated otherwise and shall include all Saturdays, Sundays and
state or national holidays; provided that if the date or last date to
perform any act or give any notice with respect to this Agreement shall
fall on a Saturday, Sunday or state or national holiday, such act or notice
may be timely performed or given on the next succeeding day which is not a
Saturday, Sunday or state or national holiday.
(g) Construction of Party Relationships. Nothing herein contained
shall be deemed or construed by the parties hereto or by any third person
to create the relationship of principal or agent or of partnership or joint
venture or of any association between Optionee and Optionor.
(h) Captions. The captions of the paragraphs hereof are for
convenience only and shall not govern or influence the interpretation
hereof.
(i) Parties Not Bound. No term or provision of this Agreement is
intended to, or shall be for the benefit of any person, firm, corporation
or other entity not a party hereto (including, without limitation, any
broker) and no such other person, firm, corporation or entity shall have
any right or cause of action hereunder.
(j) Preparation of Agreement. The parties hereto acknowledge that this
Agreement has been negotiated and prepared in an arms-length transaction
and that both Optionee and Optionor have negotiated all the terms contained
herein. Accordingly, the parties agree that neither party shall be deemed
to have drafted the Agreement and the Agreement shall not be interpreted
against either party as the draftsman.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
OPTIONOR:
Concorde Gaming Corporation
By:
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OPTIONEE:
By:
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Xxxxx X. Xxxx
