ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit 99.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT made and entered into as of the 5th day of October 2006, by and between BUCCANEER EXPLORATION INC., a Florida corporation having an office at 33 Harbour Bay Shopping Plaza, East Bay Street, P. X. Xxx XX-00000, Xxxxx 000, Xxxxxx, Xxxxxxx (“Buccaneer”), and DYNAMIC LEISURE CORPORATION, f/k/a DynEco Corporation, a Minnesota corporation having an office at 0000X X. Xxxxxxx Xxxxxx, Xxxxx, XX 00000 (“Dynamic”).
W I T N E S S E T H:
WHEREAS, Dynamic is a party to a certain TRDA Funding Agreement dated November 20, 2002, with the Technology Research Development Authority of the State of Florida (“TRDA”), a copy of which is annexed hereto as Exhibit A (the “Funding Agreement”), pursuant to which Dynamic is currently indebted to TRDA in the principal amount of $150,000 (the “TRDA Debt”) and has other on-going obligations to the TRDA; and
WHEREAS, Dynamic desires to sell, assign and transfer to Buccaneer, all of Dynamic’s right, title and interest in and to the Funding Agreement, upon the terms and conditions hereinafter set forth; and
WHEREAS, Buccaneer desires to accept Dynamic’s assignment of all of Dynamic’s right, title and interest in and to the Funding Agreement, and to assume Dynamic’s obligations under the Funding Agreement, including payment of the TRDA Debt, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration for the promises and covenants herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledge, the parties hereto, intending to be legally bound, agree as follows:
1. Assignment of Rights under Funding Agreement. Dynamic hereby sells, assigns and conveys to Buccaneer, all of Dynamic’s right, title and interest in and to the Funding Agreement.
2. Assumption of Obligations under Funding Agreement. Buccaneer hereby assumes all of Dynamic’s obligations under the Funding Agreement and, from and after the Effective Date (as hereinafter defined), agrees to perform all of Dynamic’s obligations under the Funding Agreement, including repayment of the TRDA Debt. Buccaneer hereby agrees to indemnify and hold harmless Dynamic from any claim(s) that may be asserted against Dynamic by the TRDA arising out of the Funding Agreement and/or the TRDA Debt, other than any claim that may have arisen during the period from January 13, 2006 to the date hereof. Buccaneer and Dynamic each hereby confirms to the other that it is not aware of any such claim or any facts that could reasonably be foreseen to give rise to any such claim.
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3. Further Assurances. Dynamic hereby agrees to execute and deliver to Buccaneer such other and further documents and instruments as may be necessary in order to convey to Buccaneer all of Dynamic’s right, title and interest in and to the Funding Agreement. Buccaneer hereby agrees to execute and deliver to Dynamic such other and further documents and instruments as may be necessary in order to evidence Buccaneer’s assumption of Dynamic’s obligations under the Funding Agreement. Each of the parties shall execute such other and further documents and instruments as may reasonably be deemed necessary to effectuate the intent of the provisions of this Agreement.
4. Effective Date. This Assignment and Assumption Agreement shall become effective at such time (the “Effective Date”) as Buccaneer and the TRDA have executed and delivered this Assignment and Assumption Agreement and (a) Buccaneer and Dynamic shall have executed and delivered to each other an Assignment and Assumption Agreement pursuant to which Dynamic shall have assigned to Buccaneer all of Dynamic’s right, title and interest in and to a certain Exclusive Worldwide License Agreement dated the 1st day of May 2003 by and between DynEco Corporation (n/k/a Dynamic) and Xxxxxx-Xxxxxxxx Corporation, and Buccaneer shall have assumed all of Dynamic’s obligations thereunder, (b) Buccaneer and Dynamic shall have executed and delivered to each other an Assignment and Assumption Agreement pursuant to which, among other things, Dynamic shall have assigned to Buccaneer all of Dynamic’s right, title and interest in and to a certain Exclusive Patent and Know-How License Agreement dated the 12th day of January 2006 by and between DynEco Corporation (n/k/a Dynamic) and Xx. Xxxxxx X. Xxxxxxx, and Buccaneer shall have assumed all of Dynamic’s obligations thereunder and (c) the TRDA shall have executed and delivered its written consent in the form annexed hereto as Exhibit B.
5. Representations and Warranties of Dynamic. Dynamic hereby represents and warrants to Buccaneer that (a) Dynamic is a corporation validly existing and in good standing under the laws of the State of Minnesota, (b) Dynamic has approved this Agreement and the transactions contemplated hereby to the extent required by applicable law, (c) no consent of any person is required in order for Dynamic to consummate the transactions contemplated by this Agreement, other than those contemplated by this Agreement, (d) this Agreement contains the valid and binding obligations of Dynamic and is enforceable in accordance with the terms and conditions hereof, (e) since January 13, 2006, Dynamic has taken no action that has caused or may cause a default under the Funding Agreement, nor has Dynamic granted any security interest in or otherwise encumbered the Funding Agreement.
6. Representations and Warranties of Buccaneer. Buccaneer hereby represents and warrants to Dynamic that (a) Buccaneer is a corporation validly existing and in good standing under the laws of Florida, (b) Buccaneer has approved this Agreement and the transactions contemplated hereby to the extent required by applicable law, (c) no consent of any person is required in order for Buccaneer to consummate the transactions contemplated by this Agreement, and (d) this Agreement contains the valid and binding obligations of Buccaneer and is enforceable against Buccaneer in accordance with the terms and conditions hereof.
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7. Governing Law; Jurisdiction; Jury Trial. This Agreement shall be governed by the internal laws of the State of Florida, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Florida or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Florida. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in the counties of Palm Beach or Hillsborough, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Each party hereby irrevocably waives any right it may have, and agrees not to request, a jury trial for the adjudication of any dispute hereunder or in connection herewith or arising out of this Agreement or any transaction contemplated hereby.
8. Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile signature.
9. Headings. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.
10. Severability. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction.
11. Entire Agreement; Amendments. This Agreement supersedes all other prior oral or written agreements between Buccaneer, Dynamic, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither Dynamic nor Buccaneer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement, any Schedule or Exhibit, may be amended other than by an instrument in writing signed by Dynamic and Buccaneer. No provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought.
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12. Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (a) upon receipt, when delivered personally; (b) upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (c) two (2) business days after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:
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If to Buccaneer:
Buccaneer Exploration Inc. Telephone: (000) 000-0000 |
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With a copy to: Xxxxxxxxx Xxxxxxxxxx & Beilly LLP |
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If to Dynamic: Dynamic Leisure Corporation 0000X X. Xxxxxxx Xxxxxx Xxxxx, XX 00000 Telephone: (000) 000-0000 |
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With a copy to: Dynamic Leisure Corporation 0000X X. Xxxxxxx Xxxxxx Xxxxx, XX 00000 Telephone: (000) 000-0000 |
Any party may modify its notice information by written notice given to each other party no less than five days prior to the effectiveness of such change. Written confirmation of receipt: (i) given by the recipient of such notice, consent, waiver or other communications; (ii) mechanically or electronically generated by the sender’s facsimile machine containing the time, date, recipient facsimile number and an image of the first page of such transmission; or (iii) provided by a nationally recognized overnight delivery service shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (a), (b) or (c) above, respectively.
13. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
14. Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
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IN WITNESS WHEREOF, Dynamic and Buccaneer have executed this Agreement as of the date and year first above written.
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BUCCANEER EXPLORATION INC. |
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By: |
/s/ Xxxxxxx Xxxxxx |
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Xxxxxxx Xxxxxx |
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Chief Executive Officer |
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DYNAMIC LEISURE CORPORATION |
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By: |
/s/ Xxxxxx Xxxxxxxx |
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Xxxxxx Xxxxxxxx |
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Chief Executive Officer |
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EXHIBIT A
FUNDING AGREEMENT
EXHIBIT B
FORM OF CONSENT
CONSENT
The undersigned, TECHNOLOGY RESEARCH AND DEVELOPMENT AUTHORITY OF THE STATE OF FLORIDA (“TRDA”), by duly authorized action, hereby consents to (A) the assignment by Dynamic Leisure Corporation., a Minnesota corporation formerly known as DynEco Corporation (“Dynamic”), to Buccaneer Exploration Inc., a Florida corporation (“Buccaneer”), of all of Dynamic’s right, title and interest in and to that certain TRDA Funding Agreement dated November 20, 2002, by and between the undersigned and Dynamic (the “Funding Agreement”); and (B) the assumption by Buccaneer of all of Dynamic’s obligations under the Funding Agreement; ALL PURSUANT TO a certain Assignment and Assumption Agreement of even date herewith by and between Buccaneer and Dynamic, a copy of which is attached to this Consent (the “Assignment and Assumption Agreement”). Upon execution and delivery of this Consent and the Assignment and Assumption Agreement, TRDA hereby releases Dynamic from any and all further obligation under the Funding Agreement.
The undersigned acknowledges that the address of Buccaneer for notices and other communications under the Funding Agreement shall, until modified in accordance with the terms of the Funding Agreement, be:
00 Xxxxxxx Xxx Xxxxxxxx Xxxxx
Xxxx Xxx Xxxxxx
P. X. Xxx XX-00000, Xxxxx 000
Xxxxxx, Xxxxxxx
IN WITNESS WHEREOF, this Consent has been executed as of the ___ day of October 2006, to become effective on the effective date of the Assignment and Assumption Agreement.
TECHNOLOGY RESEARCH AND DEVELOPMENT AUTHORITY
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By: |
_________________________ |
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_______________, _________ |
