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EXHIBIT 10.26
PRINCESA PARTNERS
JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT ("Agreement") is made and entered
into as of this ____ day of October, 1998 by and between Goldcoast Entertainment
Cruises, Inc., a Florida corporation ("Goldcoast") and Conami, Inc., a Florida
corporation ("Conami").
RECITALS
A. Goldcoast and Conami propose to form a joint venture to engage in
the business of owning and leasing (or chartering for hire) the Princesa, a 200'
by 40' gaming vessel docked in Miami, Florida. Such business is described with
more specificity in Section 1.2 of this Agreement. Goldcoast and Conami further
propose that the joint venture take the form of a general partnership.
B. Goldcoast has agreed to contribute its management services to the
partnership. Conami has agreed to contribute certain tangible and intangible
property to the partnership. The partnership will use such contributions to
engage in the business described in Section 1.2 of this Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt
of which is hereby acknowledged, and the mutual promises contained herein, the
parties hereto agree as follows:
ARTICLE I
FORMATION, PURPOSES, DURATION
Section 1.1. FORMATION AND NAME.
1.1.1. Formation. The parties hereto (jointly the "Venturers" and
individually a "Venturer") hereby enter into a definitive joint venture
agreement to memorialize the limited purposes and scope of the joint venture
(the "Joint Venture" or the "Venture") set forth in this Agreement. The Joint
Venture shall be governed by the Florida Revised Uniform Partnership Act (the
"Act"), as from time to time amended, except as expressly provided herein to the
contrary.
1.1.2. Name. The name of the Joint Venture shall be "Princesa Partners"
and the business of the Joint Venture shall be conducted solely under such name
or in the name of the "Princesa", or any other name unanimously selected by the
Management Committee.
1.1.3 Statement of Partnership. The parties hereto acknowledge that a
Partnership Registration Statement, pursuant to the provisions of Section
620.8105 of the Act, has been executed and recorded with the Secretary of State
of the State of Florida, and the parties agree to execute and acknowledge a
fictitious name affidavit and cause the same to be published and filed in
accordance with the Act.
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1.1.4 Title to Venture Assets. Title to all Venture property, whether
real or personal, shall be taken and held only in the name of the Venture or in
such other name, as may be required under applicable law.
Section 1.2. PURPOSES AND SCOPE OF THE JOINT VENTURE.
1.2.1 Purposes. The purposes of the Joint Venture are (a) to construct,
invest in, acquire, own, hold, lease, sublease, sell, dispose of, hire out, or
otherwise deal with the Princesa, a 200' by 40' gaming vessel built by Xxxxx
Marine, Inc. (official number 1073261) and delivered to the Joint Venture on
October 6, 1998, and (b) for the purpose of engaging in all activities and
transactions that are necessary or advisable in furtherance of that purpose.
1.2.2 Scope of Venturers' Authority and Powers. The Venture shall have
such powers as are necessary or appropriate to carry out the purposes of the
Venture and for the protection and benefit of the Venture, including without
limitation, the following powers, directly or through subsidiaries:
(a) to form, own, manage and dissolve one or more subsidiaries;
(b) to borrow money for any business, object or purpose of the Venture
from time to time, without limit as to amount; to issue promissory notes,
drafts, bills of exchange, warrants, bonds, debentures, and any other kinds of
negotiable and nonnegotiable instruments and evidences of indebtedness, whether
or not in connection with borrowing money, and to secure the payment thereof
(and of the interest thereon) by the creation of any interest in the property or
rights of the Venture, or in any property owned by others when the Venture has
the right so to do, whether owned by or subject to such right of the Venture at
the time such indebtedness is incurred or thereafter;
(c) to purchase, borrow, acquire, hold, exchange, sell, distribute,
assign, transfer, lend, mortgage, pledge, hypothecate, convert, redeem, escrow
or reissue instruments evidencing its indebtedness;
(d) to make such investments as the Managing Committee deems advisable
and approves;
(e) to have and maintain one or more offices within or without the
State of Florida, and in connection therewith to rent, lease or purchase office
or manufacturing space, facilities and equipment, to engage and pay personnel
and do such other acts and things and incur such other expenses on its behalf as
may be necessary or advisable in connection with the maintenance of such offices
or manufacturing space or the conduct of the Venture;
(f) to open, maintain and close bank accounts, and to draw checks and
other orders for the payment of money;
(g) to employ and dismiss from employment any and all employees, agents
or independent contractors;
(h) to xxx and to defend suits, to prosecute, settle
or compromise claims against others, to compromise, settle or accept judgments
or claims against the Venture and to execute all documents and make any
representations, admissions and waivers in connection therewith;
(i) to enter into, make and perform all such contracts, agreements and
other undertakings, including indemnity agreements, as may be necessary or
advisable or incident to carrying out the foregoing purposes; and
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(j) to take such other actions as the Managing Committee may deem
necessary or advisable in connection with the foregoing, including the retention
of agents, independent contractors, attorneys, accountants and other experts
selected by the Managing Committee on behalf of and at the expense of the
Venture, and in connection with the preparation and filing of all Venture tax
returns.
Without limiting the foregoing, the Venture may carry out its
objectives and accomplish its purposes as principal or agent, directly or
indirectly through one or more of its subsidiaries or Affiliates, alone or with
associates, or as a member or as a participant in any firm, association, trust,
partnership or other entity. Although the Venture may engage in any or all of
the above activities, the Venture need not engage in any one or more of them.
Except as otherwise expressly and specifically provided in this
Agreement, neither Venturer shall have any authority to bind or act for, or
assume any obligations or responsibility on behalf of, the other Venturer or the
Joint Venture. Neither the Joint Venture nor either Venturer shall be
responsible or liable for any indebtedness or obligation of the other Venturer
or otherwise relating to the Princesa incurred or arising either before or after
the execution of this Agreement, except as to those joint responsibilities,
liabilities, indebtedness, or obligations incurred after the date hereof
pursuant to and as limited by the terms of this Agreement. This Agreement shall
not be deemed to create a general partnership between the Venturers with respect
to any activities whatsoever other than activities within the scope and business
purposes of the Joint Venture specified in Subsection 1.2.1.
Section 1.3 PRINCIPAL PLACE OF BUSINESS.
The principal place of business of the Joint Venture shall be
located at 000 X. Xxxxxxxx Xxxx., Xxxxx 000, Xxxxx, Xxxxxxx 00000, or at such
other location as may be approved by the Management Committee from time to time.
Section 1.4. TERM.
The term of the Joint Venture shall commence as of the date
set forth above, and shall continue, unless sooner terminated in accordance with
other provisions of this Agreement, for so long as the Joint Venture holds any
interest in or has any obligations relating to the Princesa, or until the
Venturers agree to its termination; provided, however, that the Joint Venture
shall, if not sooner terminated, terminate on December 1, 2015, unless otherwise
extended by mutual written agreement of both Venturers; and provided further,
that neither Venturer shall have the right and each Venturer hereby agrees not
to withdraw from the Joint Venture nor to dissolve, terminate or liquidate, or
to petition a court for the dissolution, termination or liquidation of the Joint
Venture, except as provided in this Agreement, and neither Venturer at any time
shall have the right to petition or to take any action to subject the Princesa
or any part thereof or the Joint Venture assets or any part thereof to the
authority of any court of bankruptcy, insolvency, receivership or similar
proceeding.
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ARTICLE II
CAPITAL CONTRIBUTIONS,
FINANCING AND DISTRIBUTION
Section 2.1 JOINT VENTURE INTERESTS AND CAPITAL ACCOUNTS.
2.1.1. Percentage Interests. The Venturers shall have the following
undivided percentage interests in the Joint Venture (individually a "Percentage
Interest" and jointly "Percentage Interests").
Conami 80%
Goldcoast 20%
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100%
2.1.2 Adjustments. Unless otherwise agreed by both Venturers, no
adjustment to the Percentage Interest of either Venturer shall be made as a
result of a transfer of a Venturer's Percentage Interest or a portion thereof
pursuant to Articles VI or VII hereof.
2.1.3 Capital Accounts. A separate capital account ("Capital Account")
shall be maintained for each Venturer in accordance with federal income tax
accounting principles under Treasury Regulation section 1.704-1(b). The Capital
Account of each Venturer shall be:
(a) increased by (i) the amount of any cash and the fair market value
of any property contributed to the Venture by such Venturer (net of
liabilities secured by such contributed property that the Venture is
considered to assume or to which it is subject under section 752 of the
Internal Revenue Code of 1986, as amended and in effect from time to
time, and applicable regulations thereunder (the "Code")); and (ii),
its distributive share of Venture income and gain (or items thereof),
including income and gain exempt from tax and gain determined for book
purposes, but excluding income and gain described in Treasury
Regulations section 1.704-1(b)(4)(i); and
(b) decreased by (i) the amount of money and the fair market value of
property distributed to the Venturer by the Venture (net of liabilities
secured by such distributed property that the Venturer is considered to
assume or to which it is subject under Code section 752); (ii) such
Venturer's distributive share of Venture loss or deduction (or items
thereof), including loss and deduction determined for book purposes,
but excluding loss or deduction described in Treasury Regulation
section 1.704-1(b)(4)(i) and expenditures described in clause (iii);
and (iii), such Venturer's distributive share of expenditures which are
neither deductible nor properly capitalized.
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Section 2.2 CAPITAL CONTRIBUTIONS BY CONAMI AND GOLDCOAST.
Conami's and Goldcoast's capital contribution accounts shall be zero.
Any future capital contributions of the Venturers shall be contributed in cash
and/or property. Other contributions from the Venturers are in the form of
guarantees on obligations assumed by the Joint Venture.
Section 2.3 ADDITIONAL FUNDING.
2.3.1 General. It is anticipated that the Joint Venture may require
funds. The Venturers agree that in no event shall any capital contributions be
required to be made by either Venturer to the Venture, but that such funds shall
be sought through outside financing, which may include leasing. In the event
that third party financing is not available at reasonable terms, the Venturers
shall have the opportunity to provide financing to the Joint Venture (the
"Financing Venturer).
2.3.2 Notice by Manager. In the event that the Management Committee
unanimously determines that it is necessary for the Venture to borrow additional
funds for the Venture's continued operations pursuant to this Section 2.3, the
Manager, when Approved by the Management Committee (as such phrase is defined
herein), shall give notice to each Venturer in the manner provided in Section
10.2. Such notice shall specify in reasonable detail the amount and purpose of
any such additional funds and a proposed method of obtaining such additional
funds.
2.3.3 Repayment of Financing Venturer Loan(s). In the event a Financing
Venturer makes a loan to the Joint Venture ("Venturer Loan"), the terms of the
Venturer Loan shall be negotiated by the Management Committee.
Section 2.4 NO INTEREST ON CAPITAL.
Interest earned on Joint Venture funds shall inure solely to the
benefit of the Joint Venture, and except as specifically provided in Section 2.3
with respect to the payment of interest on a Venturer Loan, no interest shall be
paid upon any contributions or advances to the capital of the Joint Venture nor
upon any undistributed or reinvested income or profits of the Joint Venture.
Section 2.5 DISTRIBUTIONS TO VENTURERS FROM JOINT VENTURE.
(a) Distributions and capital withdrawals of cash shall be made in
accordance with the terms and conditions of any and all loan documents entered
into by the Joint Venture first and then in accordance with the provisions in
Articles VI and VII; and
(b) Subject to subsection (a) above, the Venture shall distribute such
cash or other property of the Venture as may be approved by the Management
Committee from time to time, to the Venturers in shares equal to their
respective interests in the Venture.
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Section 2.6 PROCEEDS FROM SALE OR FINANCING AND PROFITS ON SALE.
Proceeds from any sale, mortgage, hypothecation (other than
the loan proceeds from the Xxxx Xxxxxxxx Incorporated debt placement dated
October 20, 1998), assignment, condemnation or other transfer or disposition of
the Princesa, or any part thereof or interest therein, shall be paid to the
Venturers in their respective Percentage Interests in the Joint Venture, as
stated in Section 2.1.1. after the payment of (i) $6,405,000 to Conami less any
distributions paid Conami or Concorde Cruises, Inc., (ii) the payment of any
Financing Venturer Loans, if any, and (iii) the repayment of any unpaid initial
advances to Goldcoast prior to commencement of operations. The remainder of such
proceeds, if any, shall be distributed to the Venturers based on their
respective Percentage Interests, as provided in Section 2.1.1.
Section 2.7 ALLOCATIONS OF PROFITS AND LOSSES TO VENTURERS.
Venture Losses and Venture Profits for any year shall be allocated in
accordance with their percentage interests in the Joint Venture.
Section 2.8 TAX ALLOCATIONS CODE SECTION 704(c)
In accordance with Code Section 704(c) and the regulations thereunder,
income, gain, loss, and deduction with respect to any property contributed to
the capital of the Venture by a Venturer shall, solely for tax purposes, be
allocated among the Venturers so as to take account of any variation between the
adjusted basis of such property to the Venture for federal income tax purposes
and its fair market value at the time of contribution. In the event the value of
any of the real and personal property acquired by the Venture and any
improvements thereto (collectively, the "Venture Property") is adjusted on the
Venture's books to reflect the fair market value pursuant to Section 2.9 of this
Agreement, subsequent allocations of income, gain, loss and deduction with
respect to such asset shall take account of any variation between the adjusted
basis of such property for federal income tax purposes and its value on the
Venture's books in the same manner under Section 704(c) of the I.R.S. Code.
Section 2.9 WITHDRAWALS OF CAPITAL.
Except as otherwise provided herein, no portion of the capital of the
Joint Venture may be withdrawn at any time without the unanimous Approval of the
Management Committee. Upon termination of the Joint Venture, the Venturers'
capital shall be distributed pursuant to Section 7.5 hereof.
Section 2.10 REVALUATION OF VENTURE PROPERTY
Upon (1) the admission of any Venturer to the Venture, (2) the
liquidation of a Venturer's interest in the Venture, (3) the making of any full
or partial withdrawals by a Venturer which changes the Venture's relative
Venture interest (other than a de minimis amount) in the Venture as determined
by reference to the relative balances in the Venturers' Capital Accounts and (4)
immediately before liquidation of the Venture, all the Venture Property shall be
revalued at its fair market value, and the Venturers' Capital Accounts shall be
adjusted to reflect the manner in
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which the unrealized income, gain, loss or deduction inherent in such property
(that has not been previously reflected in adjustments to the Venturers' Capital
Accounts) would be allocated among the Venturers if the Venture Property were
sold at its fair market value on the valuation date.
Section 2.11 TAX MATTERS PARTNER
Conami shall be the "tax matters partner" of the Partnership as defined
in Section 6231 of the I.R.S. Code.
ARTICLE III
MANAGEMENT
Section 3.1 MANAGEMENT OF THE VENTURE.
3.1.1 Management Committee. The overall management and control of the
business and affairs of the Joint Venture shall be vested in a management
committee ("Management Committee"). Except where herein expressly provided to
the contrary, all decisions with respect to the management and control of the
Joint Venture that are "Approved by the Management Committee" shall be binding
on the Joint Venture and each of the Venturers. The Management Committee of the
Joint Venture shall be composed of two representatives from Conami and one
representative from Goldcoast. Each Venturer shall designate in writing from
time to time its respective representatives on the Management Committee and an
alternate for each. Each such representative shall be fully authorized to
provide any consent or approval which may be required hereunder of the
Management Committee. When the phrases "Approved by the Management Committee" or
"Approval of the Management Committee" are used in this Agreement, such phrases
shall mean approval in writing by the Venturers acting through their
representatives on the Management Committee who shall have been designated
pursuant to this Subsection 3.1.1.
3.1.2 The Manager. The Joint Venture shall have a manager (the
"Manager"), who shall be designated pursuant to Section 3.2 hereof. The Manager
shall be responsible for the implementation of the decisions of the Management
Committee and for conducting the ordinary and usual business and affairs of the
Joint Venture as more fully set forth in Section 3.2 hereof. The Management
Committee shall require that the Manager shall at all times conform to policies
and programs established by the Management Committee and that the scope of the
Manager's authority shall be limited to said policies and programs. The acts of
the Manager shall bind the Venturers and the Joint Venture when within the scope
of the Manager's authority. The Manager shall at all times be subject to the
direction of the Management Committee, and the Management Committee shall
require that the Manager shall keep the Management Committee informed as to all
matters of concern to the Joint Venture.
3.1.3 Major Decisions. No act shall be taken, sum expended, decision
made or obligation incurred by the Joint Venture, the Management Committee, the
Manager or either Venturer with respect to a matter within the scope of any of
the major decisions enumerated
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below (the "Major Decisions"), unless and until the same has been Approved by
the Management Committee or expressly delegated by the Management Committee in
writing. The Major Decisions itemized under (a) through (d) below shall require
the unanimous approval of the Management Committee. All other Major Decisions
shall require majority approval. The Major Decisions shall include:
(a) acquisition of any land or other real property or interest therein;
(b) financing or refinancing of the Joint Venture or any assets of the
Joint Venture, including, without limitation, the financing of the acquisition
of the Princesa, the construction of the Princesa, interim and long-term
financing or refinancing of the Princesa, and financing operations of the Joint
Venture;
(c) subject to the provisions of Section 6.4 below, sale or other
transfer of, or mortgaging or the placing or suffering of any other encumbrance
on or affecting the Princesa or any part or parts thereof;
(d) construction of any improvements or the making of any capital
improvements, alterations or changes in, to or of the Princesa or any part
thereof, except for such matters as may be expressly delegated to the Manager by
the Management Committee; and approval of all construction and architectural
contracts and all architectural plans, specifications and drawings prior to the
construction, addition to and/or alteration of the Princesa or any portion
thereof, and any modifications of such contracts, plans, specifications and
drawings, except for such matters as may be expressly delegated in writing to
the Manager by the Management Committee;
(e) selecting or varying depreciation and accounting methods and making
other decisions with respect to treatment of various transactions for state or
federal income tax purposes or other financial purposes not otherwise
specifically provided for herein, provided that such methods and decisions shall
be consistent with the other provisions of this Agreement;
(f) varying or changing any portion of the insurance program Approved
by the Management Committee;
(g) determining the amount of distributions to be made to the Venturers
as computed in Section 2.6, notwithstanding payments required by Sections 2.4
and 3.4 hereof;
(h) approving the Princesa Plan and all Budgets pursuant to Section 3.3
hereof;
(i) making any expenditure or incurring any obligation, other than
payments for governmental agencies, by or on behalf of the Joint Venture
involving a sum in excess of $5,000 or involving a sum of $5,000 or less than
$5,000 where the same relates to a component part of work, the combined cost of
which in any one fiscal year exceeds $5,000 , except for expenditures made and
obligations incurred pursuant to and specifically set forth in a Budget
theretofore Approved by the Management Committee;
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(j) making any expenditure or incurring any obligation which when added
to any other expenditure for the fiscal year of the Joint Venture exceeds the
Budget or any line item specified in the Budget;
(k) retention of counsel for the Joint Venture or institution of any
legal action, except for such action as the Management Committee may in writing
expressly authorize the Manager to institute; or
(l) any other decision or action which by any provision of this
Agreement is required to be Approved by the Management Committee or which
materially affects the Joint Venture or the assets or operations thereof.
Section 3.2 APPOINTMENT AND REPLACEMENT OF MANAGER; DUTIES AND FEES OF
MANAGER.
3.2.1 Appointment of Manager. Goldcoast is hereby appointed as the
Manager of the Joint Venture. The Manager shall not be compensated or receive
any management fee for performing its duties.
3.2.2 Termination of Manager. The Manager may be terminated by a
majority vote of the Management Committee. In the event of termination of
Manager, the parties agree to, in good faith, discuss future payments which will
include the following considerations in an effort to negotiate a buyout of the
Manager's Joint Venture Interest:
(a) value of Joint Venture assets and equity therein, if any;
(b) net present value of future operating cash flows for the remaining
term of this joint venture using a discount rate tied to the prime
rate, plus; and
(c) the management services that were to be provided by the Manager to
the Joint Venture and how it relates to the Manager acquiring its Joint
Venture Interest.
3.2.3 Duties of Manager. The Manager, at the expense of and on behalf
of the Joint Venture, shall implement or cause to be implemented all decisions
Approved by the Management Committee and delegated to the Manager in writing by
the Management Committee and shall conduct or cause to be conducted the ordinary
and usual business and affairs of the Joint Venture in accordance with and as
limited by this Agreement.
3.2.4 Prior Authorization. Any provision hereof to the contrary
notwithstanding, except for expenditures made and obligations incurred
previously Approved by the Management Committee or in direct pursuance to a
Budget Approved by the Management Committee, or otherwise not required to be
Approved by the Management Committee, the Manager shall not have any authority
to make any expenditure or incur any obligation on behalf of the Joint Venture.
The Manager shall not expend more than what the Manager in good faith believes
to be the fair and reasonable market value at the time and place of contracting
for any goods purchased or services engaged on behalf of the Joint Venture.
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3.2.5 Rights Not Assignable. The rights and obligations of the Manager
under this Agreement shall not be assignable voluntarily or by operation of law
by the Manager.
Section 3.3 BUSINESS PLAN AND BUDGETS.
(a) As soon as practically possible following the date of this
Agreement, the Manager shall prepare a Business Plan and submit it to the
Management Committee for approval. The Business Plan shall be the overall plan
for development, construction, completion, financing, leasing and operation of
the Princesa, including, but not limited to, the following:
(i) A site plan as well as a statement of the conditions and
restrictions applicable thereto.
(ii) A plan for responding to all conditions required by the
City of Miami or other governmental authorities to charter or lease the
Princesa, including, but not limited to, all permits and approvals.
(iii) All cost estimates for development and operating
expenses, including an operating budget and pro forma income
projections, which cost estimates shall include estimates of required
Princesa funding.
(vi) The final terms of the charter agreement with Bayfront
Ventures.
(v) A comprehensive insurance program for the Venture and the
Princesa.
(vi) The final terms of the architectural services contract
for the Princesa.
(vii) Feasibility studies and such other reports, studies,
investigations, and recommendations as are requested by the Management
Committee, or as are, in the judgment of the Manager, necessary or
advisable in order to provide the Venturers with adequate and timely
information with respect to leasing of the Princesa.
(b) Not less often than one time each fiscal year, the Manager shall
prepare and submit to the Management Committee for its consideration a budget
("Budget") setting forth the estimated receipts and expenditures (capital,
operating, and other) of the Joint Venture for the period covered by the Budget.
The Management Committee shall review and adjust the Budget on a quarterly
basis. When approved by the Management Committee, the Manager shall implement
the Budget and shall be authorized, subject to the provisions of Section 3.1.3,
without the need for further Approval by the Management Committee, to make the
expenditures and incur the obligations provided for in the Budget.
Section 3.4 COMPENSATION OF VENTURERS.
No payment will be made by the Joint Venture to either Venturer for the
services of such Venturer or any member, shareholder, director or employee of
such Venturer.
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Section 3.5 CONTRACTS WITH RELATED PARTIES.
The Manager shall not knowingly enter into any agreement or other
arrangement for the furnishing to or by the Venture of goods or services with
any individual, corporation, partnership, joint venture, association, firm,
joint stock company, trust, unincorporated association or other entity
(hereinafter in this Section referred to as a "Person") related to or affiliated
with the Manager or either Venturer unless such agreement or arrangement has
been Approved by the Management Committee after the nature of the relationship
or affiliation has been disclosed. By way of definition of the phrase "related
to or affiliated with," for the purposes of this Section 3.5, the following
Persons shall be deemed to be "related to or affiliated with" the Manager or a
Venturer:
(a) Any Owning Person, which shall mean a Person owning directly or
indirectly more than five percent (5%) of the issued and outstanding stock of,
or more than a five percent (5%) beneficial interest in the Manager or either
Venturer;
(b) Any Owned Person, which shall mean a Person more than five percent
(5%) of the issued and outstanding stock of which, or more than a five percent
(5%) beneficial interest in which, is owned directly or indirectly by the
Manager or either Venturer;
(c) Any Affiliated Person, which shall mean (i) a Person owning more
than five percent (5%) of the issued and outstanding stock of which, or more
than a five percent (5%) beneficial interest in which, is owned by an Owning
Person or an Owned Person, and (ii) a Person which owns more than five percent
(5%) of the issued and outstanding stock of, or more than a five percent (5%)
beneficial interest in, any Owning Person or any Owned Person; and
(d) Any agent, officer, director, employee, or partner (or any member
of the family of any agent, officer, director, employee or partner) of the
Manager, either Venturer, any Owning Person, any Owned Person or any Affiliated
Person.
Section 3.6 TIME DEVOTED TO JOINT VENTURE.
The Venturers shall each devote such time to the Joint Venture as is
reasonably necessary to carry out the provisions of this Agreement.
Section 3.7 OTHER BUSINESS ACTIVITIES; DISCLOSURE, WAIVER.
Each of the Venturers understands that the other Venturer or its
affiliates may be interested, directly or indirectly, in various other
businesses and undertakings not included in the Joint Venture. The Venturers
hereby agree that the creation of the Joint Venture and the assumption by each
of the Venturers of their duties hereunder shall be without prejudice to their
rights (or the rights of their affiliates) to have such other interests and
activities and to receive and enjoy profits or compensation therefrom, and each
Venturer waives any rights he or it might otherwise have to share or participate
in such other interests or activities of the other Venturer or their affiliates,
provided such other interests do not negatively and materially affect the
Venture. The Venturers may engage in or possess an interest in any other
business venture of any nature or
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description independently or with others and neither the Joint Venture nor the
other Venturer shall have any right by virtue of this Agreement in and to such
venture or the income or profits derived therefrom if it negatively and
materially affects the Venture. Each Venturer shall give notice to the other
Venturer of its interest, or the interest of any of its affiliates, in any other
business or undertaking which proposes to enter into any business transactions
with the Joint Venture.
Section 3.8 SCOPE OF AUTHORITY; INDEMNIFICATION.
Neither of the Venturers shall, without the consent of the other
Venturer, take any action on behalf of or in the name of the Joint Venture, or
enter into any commitment or obligation binding upon the Joint Venture, except
for (a) actions expressly provided for in this Agreement, (b) actions by the
Manager within the scope of its authority granted hereunder, and (c) actions
authorized by the Venturers in the manner set forth herein. Each Venturer shall
indemnify and hold harmless the other Venturer and its affiliates, directors and
officers from and against any and all claims, demands, losses, damages,
liabilities, lawsuits and other proceedings, judgments and awards, and costs and
expenses (including but not limited to reasonable attorneys' fees) arising
directly or indirectly, in whole or in part, out of any breach of the foregoing
provisions by such Venturer or its affiliates, officers, agents or employees.
ARTICLE IV
ACCOUNTING
Section 4.1 BOOKS AND RECORDS.
4.1.1 General. At all times during the term hereof, the Manager, at the
Joint Venture's expense, shall cause accurate books and records of account to be
maintained in which shall be entered all matters relating to the Joint Venture,
including all income, expenditures, assets, and liabilities thereof.
4.1.2 Accrual Basis. Such books and records of account shall be
maintained on the accrual basis and shall be adequate to provide either Venturer
with all financial information as may be needed by either Venturer or any
affiliate of either Venturer for purposes of satisfying the financial reporting
obligations of either Venturer or its respective affiliate or affiliates.
4.1.3 Information to Venturers. Each Venturer shall be entitled to any
additional information necessary for the Venturer to adjust its financial basis
statement to a tax basis as the Venturer's individual needs may dictate.
Section 4.2 LOCATION AND RIGHTS OF INSPECTION.
The Joint Venture's books and records of account shall be kept and
maintained at all times at the place or places Approved by the Management
Committee. Each Venturer and its authorized representatives shall have the right
to inspect, examine and copy the books, records, files, securities and other
documents of the Joint Venture at all reasonable times.
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Section 4.3 FISCAL YEAR.
The fiscal year of the Joint Venture shall end on September 30 of each
year.
Section 4.4 FINANCIAL STATEMENTS.
The Manager shall prepare a financial statement which will include a
balance sheet, income statement and statement of Net Cash Flow of the Joint
Venture as of the last day of each month of each fiscal year. Financial
statements shall be prepared in accordance with generally accepted accounting
principles. Such statements shall be certified by an officer of the Manager.
Copies shall be furnished to the Management Committee and to each of the
Venturers within fifteen (15) days after the end of each month. Annual financial
statements of the Joint Venture and income (unaudited) shall be furnished to the
Management Committee and to each of the Venturers within sixty (60) days after
the close of the fiscal year, to the extent feasible.
Section 4.5 AUDIT.
In conjunction with Conami's annual audit, the Joint Venture shall
allow, and provide assistance to, Conami's independent auditors to audit the
Joint Venture. The independent auditors shall at the end of each fiscal year (a)
audit the records and accounts of the Joint Venture, (b) render their opinion on
the financial statements of the Joint Venture as of the end of each fiscal, and
(c) render their opinion on the annual Net Cash Flow computations made by the
Manager for the Joint Venture and as to whether distributions thereof are in
accordance with Section 2.6 of this Agreement.
Section 4.6 BANK ACCOUNTS.
Funds of the Joint Venture shall be deposited in an account or accounts
of a type, in form and name and in a bank or banks Approved by the Management
Committee. Withdrawals from bank accounts shall be made by parties Approved by
the Management Committee.
Section 4.7 OTHER ACCOUNTING DECISIONS.
All accounting decisions for the Joint Venture (other than those
specifically provided for in other Sections of this Agreement) shall be approved
by the Management Committee.
ARTICLE V
INCOME TAX RETURNS,
TAX ACCOUNTING, TAX ELECTIONS
Section 5.1 PREPARATION OF TAX RETURNS.
Federal, state and local income tax returns of the Joint Venture shall
be prepared by qualified certified public accountants. Copies of all tax returns
of the Joint Venture shall be furnished for review and approval by each of the
Venturers and the Management Committee at least thirty (30) days prior to the
statutory date for filing, including extensions thereof, if any. If
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the Management Committee shall fail to approve any such return, an application
for extension of time to file shall be timely filed by the Manager.
Section 5.2 ALLOCATIONS TO VENTURERS.
5.2.1 Method of Allocation. The proportionate part of each item of
income, gain, loss, deduction or credit earned, realized or available by or to
the Joint Venture shall be allocated to the Venturers in accordance with the
Percentage Interests of each Venturer.
5.2.2 754 Election. The Joint Venture shall, if requested by either
Venturer, make the election under Section 754 of the Internal Revenue Code.
Section 5.3 TAX DECISIONS NOT SPECIFIED.
Tax decisions and elections for the Joint Venture not provided for
herein must be approved by the Management Committee.
Section 5.4 NOTICE OF TAX AUDIT.
Prompt notice shall be given to the Venturers upon receipt of advice
that the Internal Revenue Service intends to examine Joint Venture income tax
returns for any year.
ARTICLE VI
SALE, TRANSFER OR MORTGAGE
Section 6.1 GENERAL.
6.1.1 Required Consents. Except as expressly permitted herein, neither
Venturer shall sell, assign, transfer, mortgage, charge or otherwise encumber,
or suffer any third party to sell, assign, transfer, mortgage, charge or
otherwise encumber, or contract to do or permit any of the foregoing, whether
voluntarily or by operation of law (herein sometimes collectively called a
"transfer"), any part or all of its Joint Venture interest without the written
consent of the other Venturer and any attempt to do so shall be void. The giving
of such consent in any one or more instances shall not limit or waive the need
for such consent in any other or subsequent instances.
6.1.2 Indirect Transfers. In order to effectuate the purpose of this
Section 6.1, each Venturer agrees that to the extent its interest in the Joint
Venture is at any time held by any Person which is a partnership, corporation,
trust or other entity, such Venturer will seek to transfer its interest in the
Joint Venture only through a direct transfer of such interest therein in the
manner contemplated in this Article VI, and that no transfer or other
disposition of any stock or partnership or other beneficial interest in any such
entity which holds an interest in the Joint Venture will be effected, directly
or indirectly, unless Approved by the Management Committee.
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Section 6.2 PERMITTED TRANSFERS BY THE VENTURERS.
6.2.1 Transfers by Conami. Notwithstanding the provisions of Subsection
6.1, Conami may without the consent of the other Venturer from time to time, and
at any time transfer, its interest in the Joint Venture to its parent
corporation, Concorde Gaming Corporation, to subsidiary of Conami, or to a
subsidiary of such subsidiary, or from such subsidiary or sub-subsidiary back to
Conami or to such subsidiary.
6.2.2 Transfers by Goldcoast. Notwithstanding the provisions of
Subsection 6.1, Goldcoast may, without the consent of the other Venturer, from
time to time transfer its interest in the Joint Venture to a subsidiary of
Goldcoast or to a subsidiary of such subsidiary, or from such subsidiary or
sub-subsidiary back to Goldcoast or to such subsidiary.
Section 6.3 TERMINATION OF OBLIGATIONS.
As of the effective date of any transfer not prohibited hereunder by a
Venturer of its entire interest in the Venture, such Venturer's rights and
obligations hereunder shall terminate except as to items accrued as of such date
and except as to any indemnity obligations of such Venturer attributable to acts
or events occurring prior to such date. Thereupon, except as limited by the
preceding sentence, this Agreement shall terminate as to the transferring
Venturer but shall remain in effect as to the other Venturer. In the event of a
transfer of its or his entire Joint Venture interest by a Venturer to the other
Venturer, the Venturer to whom such interest is transferred shall indemnify,
defend and hold harmless the Venturer so transferring its or his Joint Venture
interest from and against any and all claims, demands, losses, liabilities,
expenses, actions, lawsuits, and other proceedings, judgments, awards, and costs
and expenses (including but not limited to reasonable attorneys' fees) incurred
in or rising directly or indirectly, in whole or in part, out of operation of
the business of the Joint Venture, excluding only those liabilities, if any,
accruing prior to the date of such transfer.
Section 6.4 AGREEMENTS WITH TRANSFEREES.
In the event that pursuant to the provisions of this Article VI, any
Venturer (the "Transferor") shall transfer its Joint Venture interest to any
person or entity other than the other Venturer ("Transferee"), no such transfer
shall be made or shall be effective to make such Transferee a Venturer or
entitle such Transferee to any benefits or rights hereunder until the proposed
Transferee agrees in writing to assume and be bound by all the obligations of
the Transferor and be subject to all the restrictions to which the Transferor is
subject under the terms of this Agreement and any further agreement with respect
to the Princesa contemplated by this Agreement to which the Transferor is then
subject or is then required to be a party. In the event a Venturer's Joint
Venture interest is transferred by operation of law and the Venturer's
Transferee fails to sign such a writing within ninety (90) days of the date it
is determined such transfer has been made, such failure shall entitle either
Venturer (i) to treat such failure as a default under this Agreement, or (ii) if
the Venturer elects not to treat such failure to sign as a default hereunder,
nonetheless to invoke the appraisal or the dissolution procedures as set forth
in Section 7.4 hereof and in such event, such transferee shall be treated in the
same manner as a "Defaulter" under Section 7.4.
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Section 6.5 RESTRAINING ORDER.
In the event that either Venturer shall at any time transfer or attempt
to transfer its Joint Venture interest in violation of the provisions of this
Agreement and any rights hereby granted, then the other Venturer shall, in
addition to all rights and remedies at law and in equity, be entitled to a
decree or order restraining and enjoining such transfer and the offending
Venturer shall not plead in defense thereto that there would be an adequate
remedy at law; it being hereby expressly acknowledged and agreed that damages at
law will be an inadequate remedy for a breach or threatened breach of the
violation of the provisions concerning transfer set forth in this Agreement.
Section 6.6 NO TERMINATION.
Notwithstanding any provision to the contrary in this Article VI,
neither Venturer shall transfer all or any part of its interest in the Joint
Venture to any party other than the other Venturer, whether or not such transfer
would otherwise be permitted hereunder, if such transfer would result in a
termination of the Joint Venture under the Code. At the request of the other
Venturer and as a condition of the consummation of any transfer of all or any
part of a Venturer's interest to any party other than the other Venturer, the
Venturer proposing to transfer all or any part of its interest shall at its cost
provide an unqualified opinion of counsel, which must be reasonably satisfactory
to the other Venturer, that such transfer would not result in such a termination
and the Venturer proposing to transfer all or any part of its interest to any
party other than the other Venturer shall indemnify and hold harmless the other
Venturer from and against any and all loss, cost, liability or expense
(including but not limited to reasonable attorneys' fees) which such other
Venturer may suffer if such transfer would, either by itself or together with
any other prior transfers of an interest in the Venture of which the
transferring Venturer has knowledge at the time of such transfer, cause such a
termination.
Section 6.7 TAKE-ALONG RIGHT/RIGHT OF FIRST NEGOTIATION
Conami shall agree not to sell its interest in the Joint Venture,
unless the proposed purchaser also agrees to purchase Goldcoast's interest in
the Joint Venture upon the same terms and conditions. Goldcoast shall have the
right to sell such interest to any purchaser who has agreed to acquire Conami's
interest in the Joint Venture, provided such a sale is upon the same terms and
conditions as received by Conami. Each Venturer shall grant the other a right of
first negotiation on its interest in the Joint Venture, exerciseable within five
(5) business of receiving written notice of the Venturer's offer to sell. For
purposes of this agreement, a right of first negotiations shall mean that the
Venturer desiring to sell shall first offer its interest to the other Venturer;
if after ten (10) business days satisfactory terms are not agreed upon, the
Venturer desiring to sell shall have the right for an agreed upon period of time
to sell to third parties on terms no less favorable to the seller than those
offered to the other Venturer.
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Section 6.8 TRANSFER RESTRICTIONS
6.8.1 Venturers' Transfers. Except as expressly provided for herein,
neither Venturer shall assign its rights or obligations under this Agreement
without the approval of the other Venturer, which approval may be withheld for
any reason or no reason at all.
6.8.2 Right of First Refusal
6.8.2.1 If at any time Venturer shall desire to accept a Qualified
Written Offer (hereinafter defined) to purchase all or any part of Venturer's
right, title and interest and to the Joint Venture (the "Venturer's Interest"),
then the Venturer ("Selling Venturer") shall first offer to sell all of such
Selling Venturer's Interest to the other Venturer pursuant to a written offer.
6.8.2.2 A Qualified Written Offer means a written offer that, at a
minimum, (i) provides for at least fifty percent (50%) of the purchase price to
be paid in cash at closing, (ii) provides for a closing no later than one
hundred twenty (120) days after the date of such offer, and (iii) is expressly
made subject to the rights of the other Venturer under this Agreement.
6.8.2.3 The Offer shall include (a) a copy of the Qualified Offer, (b)
the name and address of the person or entity desiring to purchase the Selling
Venturer's Interest (the "Proposed Transferee") (and if the Proposed Transferee
is an entity, the principals and parents of the Proposed Transferee) and (c) and
offer to sell the Selling Venturer's Interest to the other Venturer on the same
terms and conditions, including price, as those on which the Selling Venturer
proposes to sell its Interest to the Proposed Transferee. For purposes of this
Section, the date on which Selling Venturer delivers the Offer shall be deemed
the "Offer Date".
6.8.2.4 The Venturer shall have the option, exercisable by written
notice given to the Selling Venturer within forty five (45) days of the Offer
Date, to purchase all, but not less than all, of the Selling Venturer's Interest
upon the terms and conditions set forth in the Offer.
6.8.2.5 In the event that Venturer does not elect to purchase all of
the Selling Venturer's Interest, then all, but not less than all, of the Selling
Venturer's Interest may be sold by the Selling Venturer at any time within one
hundred twenty (120) days after the Offer date to the Proposed Transferee, upon
terms and conditions no more favorable to the Proposed Transferee than those
specified in the Offer. If the Selling Venturer's Interest is not sold to the
Proposed Transferee within such one hundred twenty (120) day period, the Selling
Venturer's Interest shall again be subject to the restrictions set forth in this
Agreement.
6.8.2.6 It shall be a condition precedent to the sale of the Selling
Venturer's Interest to the Proposed Transferee that the Proposed Transferee
execute and deliver to the Venturer an agreement acknowledging that the Selling
Venturer's Interest transferred to the Proposed Transferee is and shall be
subject to the terms and conditions of this Agreement and agreeing to be bound
by this agreement.
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ARTICLE VII
DEFAULT AND DISSOLUTION
Section 7.1 EVENTS OF DEFAULT.
The occurrence of any of the following events shall constitute an event
of default ("Event of Default") hereunder on the part of the Venturer with
respect to whom such event occurs ("Defaulter") if within forty-five (45) days
following notice of such default from the other Venturer (thirty (30) days if
the default is due solely to the nonpayment of monies), the Defaulter fails to
pay such monies, or in the case of non-monetary defaults, fails to commence
substantial efforts to cure such default or thereafter fails within a reasonable
time to prosecute to completion with diligence and continuity the curing of such
default:
(a) the violation by a Venturer of any of the restrictions set
forth in Article VI of this Agreement upon the right of a
Venturer to transfer its Joint Venture interest;
(b) institution by a Venturer of proceedings of any nature under
any laws of the United States or of any state, whether now
existing or subsequently enacted or amended, for the relief of
debtors wherein such Venturer is seeking relief as debtor;
(c) a general assignment by a Venturer for the benefit of
creditors;
(d) the institution by a Venturer of a case or other proceeding
under any section or chapter of the federal Bankruptcy Act as
now existing or hereafter amended or becoming effective;
(e) the institution against a Venturer of a case or other
proceeding under any section or chapter of the federal
Bankruptcy Act as now existing or hereafter amended or
becoming effective, which proceeding is not dismissed, stayed
or discharged within a period of sixty (60) days after the
filing thereof or if stayed, which stay is thereafter lifted
without a contemporaneous discharge or dismissal of such
proceeding;
(f) a proposed plan of arrangement or other action by a Venturer's
creditors taken as a result of a general meeting of the
creditors of such Venturer;
(g) the appointment of a receiver, custodian, trustee or like
officer, to take possession of assets having a value in excess
of $100,000 of a Venturer if the pendency of said receivership
would reasonably tend to have a materially adverse effect upon
the performance by said Venturer of its obligations under this
Agreement; which receivership remains undischarged for a
period of thirty (30) days from the date of its imposition;
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(h) admission by a Venturer in writing of his or its inability to
pay his or its debts as they mature;
(i) attachment, execution or other judicial seizure of all or any
substantial part of a Venturer's assets or of a Venturer's
Joint Venture interest, or any part thereof, such attachment,
execution or seizure being with respect to an amount not less
than $100,000 and remaining undismissed or undischarged for a
period of fifteen (15) days after the levy thereof, if the
occurrence of such attachment, execution or other judicial
seizure would reasonably tend to have a materially adverse
effect upon the performance by said Venturer of its
obligations under this Agreement; provided, however, that said
attachment, execution or seizure shall not constitute an Event
of Default hereunder if said Venturer posts a bond sufficient
to fully satisfy the amount of such claim or judgment within
fifteen (15) days after the levy thereof and the Venturer's
assets are thereby released from the lien of such attachment;
(j) default in performance of or failure to comply with any other
agreements, obligations or undertakings of a Venturer herein
contained; and
(k) any other matter specifically deemed an Event of Default
hereunder.
Section 7.2 CAUSES OF DISSOLUTION.
The Joint Venture shall be dissolved only in the event that:
(a) an Event of Default has occurred as provided in Section 7.1 and the
non-defaulting Venturer elects to dissolve the Joint Venture as provided in
Section 7.2 hereof;
(b) the Venturers mutually agree to terminate the Joint Venture;
(c) the Joint Venture ceases to maintain any interest in the Princesa;
(d) one or both of the Venturers elect to dissolve or terminate the
Joint Venture pursuant to any provision of this Agreement permitting such
election to be made; or
(e) the Joint Venture by its terms, as set forth in this Agreement, is
terminated.
Section 7.3 ELECTION OF NON-DEFAULTING VENTURER.
7.3.1 Purchase of Defaulter's Interest. Upon the occurrence of an Event
of Default by either Venturer ("Defaulter"), the other Venturer (a
"non-Defaulter") shall have the right to acquire the Joint Venture interest of
the Defaulter for cash, except as provided in Subsection 7.3.2 hereof, at a
price determined pursuant to the appraisal procedure set forth in Article VIII,
subject to adjustment as set forth in Subsection 6.6.2. In furtherance of such
right, the non-Defaulter may notify the Defaulter at any time following an Event
of Default of its election to institute the appraisal procedure set forth in
Article VIII. Within fifteen (15) days of
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receipt of notice of determination of the net fair market value of the
Defaulter's Joint Venture interest, the non-Defaulter may notify the Defaulter
of its election to purchase the interest of the Defaulter.
7.3.2 Election to Dissolve. If the non-Defaulter does not elect to
acquire the entire interest of the Defaulter as set forth in Subsection 7.3.1,
the non-Defaulter may elect (i) to dissolve and terminate the Joint Venture
pursuant to Section 7.2 of this Agreement by written notice to the Defaulter or
(ii) to pursue any other right or remedy available to it at law or in equity.
The right of the non-Defaulter to institute the procedures for purchase of the
Defaulter's Joint Venture interest as set forth in this Section 7.3 shall
continue until such non-Defaulter elects to exercise its right to terminate the
Joint Venture as provided in this Subsection 7.3.2.
Section 7.4 PROCEDURE IN DISSOLUTION AND LIQUIDATION.
7.4.1 Winding Up. Upon dissolution of the Joint Venture pursuant to
Section 7.2 hereof, the Joint Venture shall immediately commence to wind up its
affairs and the Venturers shall proceed with reasonable promptness to liquidate
the business of the Joint Venture.
7.4.2 Management Rights During Winding Up. During the period of the
winding up of the affairs of the Joint Venture, the rights and obligations of
the Venturers set forth herein with respect to the management of the Joint
Venture shall continue. For purposes of winding up, the Management Committee
shall continue to act as such and shall make all decisions relating to the
conduct of any business or operations during the winding up period and to the
sale or other disposition of Joint Venture assets; provided that if the
termination of the Venture results from an Event of Default, the defaulting
Venturer shall have no further right to participate in the management or affairs
of the Venture or to attend Management Committee meetings or vote on decisions
by the Management Committee, but shall nonetheless be bound by all decisions
made by the non-Defaulter. Each Venturer hereby waives any claims it may have
against the non-Defaulter that may arise out of the management by the
non-Defaulter of the Joint Venture, so long as such non-Defaulter acts in good
faith.
7.4.3 Work in Progress. If the Joint Venture is dissolved for any
reason while there is work in progress on the development or construction of the
Princesa, winding up of the affairs and termination of the business of the Joint
Venture may include completion of the work in progress to the extent of
development or construction on the Princesa as the Management Committee may
determine to be necessary to bring the matters under construction to a state of
completion convenient to permit a sale of the Joint Venture's interest in such
work, giving due regard to the interests of the Venturers.
7.4.4 Distributions in Liquidation. The assets of the Joint Venture
shall be applied or distributed in liquidation in the following order of
priority; provided, however, that if a Venturer shall have a negative balance in
its Capital Account, such Venturer shall immediately, and prior to any
distributions made pursuant to this Subsection 7.3.5, pay to the Joint Venture
in cash for distribution as provided in this Subsection 7.4.5 an amount equal to
the negative balance in said Venturer's Capital Account:
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(a) In payment of debts and obligations of the Joint Venture owed
to third parties, which shall include either Venturer as the
holder of any secured loan;
(b) In payment of debts and obligations of the Joint Venture to
either Venturer;
(c) In payment of Conami's Capital Contribution reduced by
distributions paid,
(d) To the Venturers in payment of any positive balances remaining
in their Capital Accounts .
7.4.5 Non-Cash Assets. Every reasonable effort shall be made to dispose
of the assets of the Joint Venture so that the distribution may be made to the
Venturers in cash. If at the time of the termination of the Joint Venture, the
Joint Venture owns any assets in the form of work in progress, notes, deeds of
trust or other non-cash assets, such assets, if any, shall be distributed in
kind to the Venturers, in lieu of cash, proportionately to their right to
receive the assets of the Joint Venture on an equitable basis reflecting the net
fair market value of the assets so distributed, which net fair market value
shall be determined by appraisal in accord with Section 8.3.
Section 7.5 DISPOSITION OF DOCUMENTS AND RECORDS.
All documents and records of the Joint Venture including, without
limitation, all financial records, vouchers, canceled checks and bank
statements, shall be delivered to Conami upon termination of the Joint Venture.
Unless otherwise Approved by the other Venturer, Conami shall retain such
documents and records for a period of not less than seven (7) years and shall
make such documents and records available during normal business hours to the
other Venturer for inspection and copying at the other Venturer's cost and
expense. In the event either Venturer ("Withdrawing Venturer") for any reason
ceases as provided herein to be a Venturer at any time prior to termination of
the Joint Venture, and the Joint Venture is continued without the Withdrawing
Venturer, the other Venturer ("Surviving Venturer") agrees that said documents
and records of the Joint Venture up to the date of the termination of the
Withdrawing Venturer's interest shall be maintained by the Surviving Venturer,
its successors and assigns, for a period of not less than seven (7) years
thereafter; provided, however that if there is an audit or threat of audit, such
documents and records shall be retained until the audit is completed and any tax
liability finally determined. Said documents and records shall be available for
inspection, examination and copying by the Withdrawing Venturer upon reasonable
notice in the same manner as provided in Section 4.2 during said seven-year
period.
ARTICLE VIII
APPRAISAL
Section 8.1 GENERAL.
Whenever this Agreement provides for the valuation of an interest in
the Joint Venture to be purchased or sold, the value of such interest in the
Joint Venture shall be determined as
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follows. The parties shall first attempt to agree upon the "net fair market
value" of the Joint Venture and of the interests in the Joint Venture to be
purchased or sold. The "net fair market value" of the Joint Venture shall mean
the cash price which a sophisticated purchaser would pay on the effective date
of the appraisal for all tangible assets of the Joint Venture in excess of the
financing then encumbering the Joint Venture assets, such valuation to be made
on the assumption that such assets are subject to any agreements, including,
without limitation, leases, management and service agreements then in effect,
except this Agreement. A sophisticated purchaser shall be one who would take
into account the nature, extent, maturity date, and other terms of the
liabilities of the Joint Venture, whether fixed or contingent, including the
favorable or unfavorable nature of any financing then encumbering the Princesa
or other Joint Venture assets, and the prospects that the income from the Joint
Venture assets would be sufficient to satisfy such liabilities when due,
excluding any liability under any financing already taken into account. The "net
fair market value" of a Joint Venture interest shall mean the value of the
interest to be sold or purchased, based on the net fair market value of the
Joint Venture, and subject to the terms and provisions of this Agreement.
Section 8.2 APPRAISAL PROCEDURE.
In the event the Venturers are unable to mutually agree upon the net
fair market value of the Joint Venture and of the Joint Venture interests to be
sold or purchased within thirty (30) days of the date the appraisal procedure of
this Article XIII is instituted as provided in this Agreement, the Venturers
shall then attempt to agree upon the appointment of three disinterested
appraisers who shall be marine appraisers/surveyors. If the Venturers are unable
to agree upon the selection of three appraisers within seventy-five (75) days of
the date the appraisal procedure is instituted as provided in this Agreement,
then a petition may be made by either Venturer to the presiding judge of the
Superior Court for the City of Miami, Florida, County of Dade, for such
selection. Each Venturer shall have the right to submit the names of three (3)
appraisers so qualified and the judge shall select the three (3) appraisers from
the names so submitted. Each appraiser so selected shall furnish the Venturers
and the certified public accountants for the Venture with a written appraisal
within ninety (90) days of his selection, setting forth his determination of the
net fair market value of all real estate and other tangible assets owned by the
Venture as of the date of the application to the Superior Court. Such appraisal
shall assume that the Princesa shall be the highest and best use of the
Property, and the appraisal shall not include any value for any intangible
assets of the Venture, such as good will. The average of the two closest
valuations of such appraisers shall be treated as the net fair market value of
the Venture and the determination shall be final and binding on the Venturers.
The cost of the appraisal shall be an expense of the Venture, except that if the
appraisal is instituted pursuant to Section 6.5 or 7.2, the cost shall be at the
expense of the dead or disabled Venturer or Defaulter, as applicable.
Section 8.3 APPRAISAL OF NON-CASH ASSETS.
The procedures set forth in Sections 8.1 and 8.2 for determining the
net fair market value of the Venture shall be followed in determining the net
fair market value of non-cash assets of the Venture as described in Subsection
7.4.5; provided, however, that all references to the net fair
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market value of the Venture shall be deemed to be references to the net fair
market value of such non-cash assets.
ARTICLE IX
ARBITRATION
Section 9.1 INITIATION.
In such cases where this Agreement provides for the determination of
any matter by arbitration, the same shall be settled and finally determined by
arbitration in accordance with the Rules of Commercial Arbitration of the
American Arbitration Association, or its successor in Dade County, Florida. Any
arbitration pursuant to this Agreement shall be conducted by three arbitrators.
The judgment upon the award rendered in any such arbitration shall be final and
binding upon the parties and may be entered in any court having jurisdiction
thereof.
Section 9.2 COSTS.
All fees and expenses of the arbitrators and all other expenses of the
arbitration, except for attorneys' fees, shall be shared equally by the
Venturers. Each Venturer shall bear its own attorneys' fees.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 COMPLETE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire agreement between the parties and
supersedes all agreements, representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the subject matter
hereof, and neither party hereto shall be bound by nor charged with any oral or
written agreements, representations, warranties, statements, promises or
understandings not specifically set forth in this Agreement or the exhibits
hereto. This Agreement may not be amended, altered or modified except by a
writing signed by both the Venturers.
Section 10.2 NOTICES.
10.2.1 Addresses. All notices under this Agreement shall be in writing
and shall be delivered by personal service, or by certified or registered mail,
postage prepaid, return receipt requested, to the Venturers at the addresses
herein set forth and to the Joint Venture at its principal place of business.
The addresses for notices are as follows:
Conami, Inc. Goldcoast Entertainment Cruises, Inc.
c/o Xxxxx X. Xxxx X/x Xxxxx Xxxxxxxx
00
00
0000 Xxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxx Xxxxxx 00000 Xxxxxx, Xxxxxxx 00000
10.2.2 Effective Date. All notices, demands and requests shall be
effective upon being deposited in the United States mail. However, the time
period in which a response to any such notice, demand or request must be given
shall commence to run from the date of receipt on the return receipt of the
notice, demand or request by the addressee thereof. Rejection or other refusal
to accept or the inability to deliver because of changed address of which no
notice was given as provided in Subsection 10.2.3 shall be deemed to be receipt
of the notice, demand or request sent.
10.2.3 Changes. By giving to the other parties at least thirty (30)
days' written notice thereof, the parties hereto and their respective permitted
successors and assigns shall have the right from time to time and at any time
during the term of this Agreement to change their respective addresses for
notices and each shall have the right to specify as its or his address for
notices any other address within the United States of America.
Section 10.3 ATTORNEYS' FEES.
Should any litigation be commenced between the parties hereto or their
representatives or should any party institute any proceeding in a bankruptcy or
similar court which has jurisdiction over any other party hereto or any or all
of his or its property or assets concerning any provision of this Agreement or
the rights and duties of any person or entity in relation thereto, the party or
parties prevailing in such litigation shall be entitled, in addition to such
other relief as may be granted, to a reasonable sum as and for his or its or
their attorneys' fees and court costs in such litigation which shall be
determined by the court in such litigation or in a separate action brought for
that purpose.
Section 10.4 VALIDITY.
In the event that any provision of this Agreement shall be held to be
invalid or unenforceable, the same shall not affect in any respect whatsoever
the validity or enforceability of the remainder of this Agreement.
Section 10.5 SURVIVAL OF RIGHTS.
Except as provided herein to the contrary, this Agreement shall be
binding upon and inure to the benefit of the parties signatory hereto, their
respective heirs, executors, legal representatives and permitted successors and
assigns.
Section 10.6 GOVERNING LAW.
This Agreement has been negotiated, executed and delivered in the State
of Florida and all questions with respect to this Agreement and the rights and
liabilities of the parties hereto shall be governed by the laws of that state.
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Section 10.7 WAIVER.
No consent or waiver, express or implied, by a Venturer to or of any
breach or default by the other Venturer in the performance by such other
Venturer of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such other Venturer of the same or any other obligations of such other Venturer
hereunder. Failure on the part of a Venturer to complain of any act or failure
to act of the other Venturer or to declare the other Venturer in default,
irrespective of how long such failure continues, shall not constitute a waiver
by such Venturer of its rights hereunder. The giving of consent by a Venturer in
any one instance shall not limit or waive the necessity to obtain such
Venturer's consent in any future instance.
Section 10.8 REMEDIES IN EQUITY.
The rights and remedies of either of the Venturers hereunder shall not
be mutually exclusive, i.e., the exercise of one or more of the provisions
hereof shall not preclude the exercise of any other provisions hereof. Each of
the Venturers confirms that damages at law will be an inadequate remedy for a
breach or threatened breach of this Agreement and agree that, in the event of a
breach or threatened breach of any provision hereof, the respective rights and
obligations hereunder shall be enforceable by specific performance, injunction
or other equitable remedy, but nothing herein contained is intended to, nor
shall it, limit or affect any rights at law or by statute or otherwise of any
party aggrieved as against the other for a breach or threatened breach of any
provision hereof, it being the intention by this Section to make clear the
agreement of the Venturers that the respective rights and obligations of the
Venturers hereunder shall be enforceable in equity as well as at law or
otherwise.
Section 10.9 TERMINOLOGY.
All personal pronouns used in this Agreement, whether used in the
masculine, feminine, or neuter gender, shall include all other genders; and the
singular shall include the plural and vice versa. Titles of Articles, Sections
and Subsections are for convenience only, and neither limit nor amplify the
provisions of this Agreement itself. The use herein of the word "including,"
when following any general statement, term or matter, shall not be construed to
limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
nonlimiting language (such as "without limitation," or "but not limited to," or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that could reasonably fall within
the broadest possible scope of such general statement, term or matter.
Section 10.10 COUNTERPARTS.
This Joint Venture Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
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Section 10.11 SURVIVAL OF INDEMNITY OBLIGATIONS.
Any and all indemnity obligations of either party hereto shall survive
any termination of the Joint Venture.
Section 10.12 FEES AND COMMISSIONS.
Each Venturer hereby represents and warrants that as of the date of
this Agreement there are no known claims for brokerage or other commissions or
finder's or other similar fees in connection with the transactions covered by
this Agreement insofar as such claims shall be based on actions, arrangements or
agreements taken or made by or on its behalf, and each Venturer hereby agrees to
indemnify and hold harmless the other Venturer from and against any liabilities,
costs, damages, and expenses from any party making any such claims through such
Venturer.
Section 10.13 FURTHER ASSURANCES.
Each party hereto agrees to do all acts and things and to make, execute
and deliver such written instruments, as shall from time to time be reasonably
required to carry out the terms and provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above set forth.
CONAMI, INC., a Florida corporation
By /s/ Xxxxx X. Xxxx
-------------------------------
Its President
GOLDCOAST ENTERTAINMENT CRUISES, INC.,
a Florida corporation
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Its President
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