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EXHIBIT 10.1
PARTNERSHIP INTEREST PURCHASE AGREEMENT
AMONG
CONCORDE CRUISES, INC.,
GOLDCOAST ENTERTAINMENT CRUISES, INC.,
XXXXXXX X. XXXXXX
AND
XXXXX XXXXXXXX
========================
Dated as of March 31, 2000
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TABLE OF CONTENTS
PAGE NO.
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Article I DEFINITIONS.......................................................................1
Section 1.01. Definitions............................................................1
Article II SALE AND PURCHASE OF PARTNERSHIP INTERESTS.......................................5
Section 2.01. Sale and Purchase......................................................5
Section 2.02. Purchase Price.........................................................5
Section 2.03. Escrow.................................................................6
Section 2.04. Closing................................................................6
Section 2.05. Deliveries by the Shareholders and Goldcoast...........................6
Section 2.06. Deliveries by Buyer....................................................7
Section 2.07. Allocation of Purchase Price...........................................7
Section 2.08. Further Assurances.....................................................7
Article III REPRESENTATIONS AND WARRANTIES BY GOLDCOAST AND THE SHAREHOLDERS................8
Section 3.01. Due Incorporation......................................................8
Section 3.02. No Subsidiaries........................................................8
Section 3.03. Due Authorization......................................................8
Section 3.04. Consents and Approvals; Authority Relative to this Agreement...........8
Section 3.05. Title to Partnership Interests.........................................8
Section 3.06. Financial Statements; Undisclosed Liabilities; Other Documents.........9
Section 3.07. Management of Bayfront and Princesa....................................9
Section 3.08. Contracts..............................................................9
Section 3.09. Litigation............................................................10
Section 3.10. Accuracy of Statements................................................10
Article IV REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS..............................11
Section 4.01. Shareholders' Power and Authority.....................................11
Section 4.02. Ownership of Goldcoast................................................11
Section 4.03. Effect of Agreement on the Shareholders...............................11
Section 4.04. Agreements Among Shareholders.........................................11
Article V REPRESENTATIONS AND WARRANTIES OF BUYER..........................................11
Section 5.01. Due Incorporation.....................................................11
Section 5.02. Due Authorization.....................................................12
Section 5.03. Consents and Approvals; Authority Relative to This Agreement..........12
Section 5.04. Litigation............................................................13
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Section 5.05. Accuracy of Statements................................................12
Article VI TAX REPRESENTATIONS AND COVENANTS...............................................12
Section 6.01. Tax Representations...................................................12
Article VII additional AGREEMENTS OF THE PARTIES...........................................13
Section 7.01. Public Announcements..................................................13
Section 7.02. Confidentiality.......................................................13
Section 7.03. Personal Guarantees...................................................13
Article VIII INDEMNIFICATION...............................................................13
Section 8.01. Survival..............................................................13
Section 8.02. Indemnification Obligations...........................................14
Section 8.03. Method of Asserting Claims, Etc.......................................14
Section 8.04. Arbitration...........................................................16
Section 8.05. Payment...............................................................17
Section 8.06. Equitable Relief......................................................18
Article IX MISCELLANEOUS...................................................................18
Section 9.01. Expenses..............................................................18
Section 9.02. Amendment.............................................................18
Section 9.03. Notices...............................................................18
Section 9.04. Waivers...............................................................20
Section 9.05. Counterparts..........................................................20
Section 9.06. Interpretation........................................................20
Section 9.07. Applicable Law........................................................20
Section 9.08. Assignment............................................................20
Section 9.09. No Third-Party Beneficiaries..........................................20
Section 9.10. Severability..........................................................20
Section 9.11. Remedies Cumulative...................................................21
Section 9.12. Entire Understanding..................................................21
Exhibit A: Escrow Agreement..........................................................A-1
Exhibit B: Form of Assignment of Partnership Interests...............................B-1
Exhibit C: Form of Goldcoast's Officers Certificate..................................C-1
Exhibit D: Form of Mutual Release....................................................D-1
Exhibit E: Form of Buyer's Officers Certificate......................................E-1
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PARTNERSHIP INTEREST PURCHASE AGREEMENT
This PARTNERSHIP INTEREST PURCHASE AGREEMENT (this "Agreement") is dated as
of March 31, 2000, among Concorde Cruises, Inc., a South Dakota corporation
("Buyer"), Goldcoast Entertainment Cruises, Inc., a Florida corporation
("Goldcoast"), and Xxxxxxx X. Xxxxxx, a shareholder of Goldcoast, and Xxxxx
Xxxxxxxx, a shareholder of Goldcoast (each referred to herein individually as a
"Shareholder" and collectively as the "Shareholders"). The Buyer, Goldcoast and
the Shareholders are each sometimes referred to herein individually as a "Party"
and collectively as the "Parties."
P R E A M B L E:
WHEREAS, pursuant to a joint venture agreement dated August 27, 1997, as
amended, Goldcoast owns 20% of the outstanding partnership interest in Bayfront
Ventures, a Florida general partnership ("Bayfront"), and Buyer, a wholly owned
subsidiary of Concorde Gaming Corporation ("Concorde"), owns 80% of the
outstanding partnership interest in Bayfront;
WHEREAS, pursuant to a joint venture agreement dated October 1, 1998, as
amended, Goldcoast owns 20% of the outstanding partnership interest in Princesa
Partners, a Florida general partnership ("Princesa"), and Conami, Inc., a wholly
owned subsidiary of Concorde, owns 80% of the outstanding partnership interest
in Princesa;
WHEREAS, the Shareholders own all of the issued and outstanding shares of
common stock of Goldcoast; and
WHEREAS, Goldcoast wishes to sell its partnership interests in Bayfront and
Princesa (collectively, the "Partnership Interests") to Buyer and Buyer desires
to purchase such Partnership Interests from Goldcoast.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants, agreements and warranties contained herein, and for other good and
valuable consideration, the Parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS.
(a) The following terms shall have the following meanings for the
purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, (i) any other
Person which, directly or indirectly, owns or controls, is under common
ownership or control with, or is owned or controlled by, such specified Person,
(ii) any other Person that is a director, officer or partner or is, directly or
indirectly, the beneficial owner of 10% or more of any class of equity
securities
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of the specified Person or a Person described in clause (i) of this paragraph,
(iii) another Person of which the specified Person is a director, officer or
partner or is, directly or indirectly, the beneficial owner of 10% or more of
any class of equity securities, or (iv) any relative or spouse of the specified
Person or any of the foregoing Persons.
"Business Day" means any day of the year other than (i) any Saturday or
Sunday or (ii) any other day on which commercial banks located in New York, New
York, are generally closed for business.
"Code" means the United States Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
"Company" means individually either Bayfront or Princesa, and collectively
Bayfront and Princesa are herein referred to as "Companies."
"Confidential Information" means any information relating to the
properties, prospects, products, services or operations of the Companies or any
direct or indirect Affiliate thereof that is not generally known, is proprietary
to the Companies or such Affiliate and is made known to such Person or learned
or acquired by such Person while such Person was a general partner, officer,
director, employee or independent contractor of the Companies, including,
without limitation, submission and proposal procedures of the Companies,
customer or contact lists, information concerning trade secrets of the
Companies, or any of its Affiliates and any improvements relating to the
products of the Companies in accounting, marketing, selling, leasing, financing
and other business methods and techniques. However, Confidential Information
shall not include (i) at the time of disclosure to any Person such information
that was in the public domain or later entered the public domain other than as a
result of a breach of an obligation herein; or (ii) subsequent to disclosure to
any Person, such Person received such information from a third party under no
obligation to maintain such information in confidence, and the third party came
into possession of such information other than as a result of a breach of an
obligation herein.
"Contract" means any contract, lease, commitment, understanding, sales
order, purchase order, agreement, indenture, mortgage, note, bond, right,
warrant, instrument, plan, permit or license, whether written or oral, that is
intended or purports to be binding and enforceable.
"Escrow Agent" means the escrow agent designated in the Escrow Agreement.
"Escrow Agreement" means the escrow agreement to be entered into by and
among Buyer, Goldcoast and the Escrow Agent in the form attached hereto as
Exhibit A.
"Financial Statements" means collectively, for each Company the (i) balance
sheets dated as of September 30, 1999 and 1998 and February 29, 2000, (ii)
related statements of income, changes in shareholders equity, and cash flows for
the fiscal years ended September 30, 1999 and 1998 and five months ended
February 29, 2000, and (iii) related notes and schedules, if any.
"Governmental Authority" means the government of the United States or any
foreign country or any state or political subdivision thereof and any entity,
body or authority exercising
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executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Holdback Escrow" means an account established by the Escrow Agent in
accordance with Section 2.03 and the Escrow Agreement.
"Indemnified Person" means the Person or Persons entitled to, or claiming a
right to, indemnification.
"Indemnifying Person" means the Person or Persons claimed by the
Indemnified Person to be obligated to provide indemnification.
"Indemnity Escrow" means an account established by the Escrow Agent in
accordance with Section 2.03 and the Escrow Agreement.
"Joint Venture Agreements" means (a) the agreement dated August 27, 1997,
as amended, between Goldcoast and Buyer for Bayfront, and (b) the agreement
dated October 1, 1998, as amended, between Goldcoast and Conami, Inc. for
Princesa.
"Knowledge" of a particular fact or other matter means:
(a) such Person is actually aware of such fact or other matter; or
(b) such Person should have discovered or become aware of such fact or
other matter in the course of conducting a reasonable investigation concerning
such fact or other matter.
A Person other than an individual shall be deemed to have "Knowledge" of a
particular fact or matter only if a director, officer or key employee of such
Person has, had or should have had Knowledge of such fact or matter.
"Law" means any law, statute, regulation, ordinance, rule, order, decree,
judgment, consent decree, settlement agreement or governmental requirement
enacted, promulgated, entered into, agreed or imposed by any Governmental
Authority.
"Legislative Session Expiration Date" means the last day on which the
governor of Florida may approve a xxxx passed by the Florida legislature during
the 2000 regular session of the Florida legislature.
"Lien" means any security agreement, financing statement filed with any
Governmental Authority, conditional sale or other title retention agreement, any
lease, consignment or bailment given for purposes of security, any lien,
mortgage, indenture, pledge, option, encumbrance, adverse interest, constructive
trust or other trust, claim, attachment, exception to or defect in title or
other ownership interest (including but not limited to reservations, rights of
entry, possibilities of reverter, encroachments, easement, rights-of-way,
restrictive covenants, and licenses) of any kind, which otherwise constitutes an
interest in or claim against property, whether arising pursuant to any Law,
Contract, or otherwise.
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"Loss" or "Losses" means any and all liabilities, losses, costs, claims,
damages (including consequential damages), penalties and expenses (including
reasonable attorneys' fees and expenses and costs of investigation and
litigation). In the event any of the foregoing are indemnifiable hereunder, the
terms "Loss" and "Losses" shall include any and all reasonable attorneys' fees
and expenses and costs of investigation and litigation incurred by the
Indemnified Person in enforcing such indemnity. No Loss shall be reduced by
reason of tax benefits allegedly enjoyed as a result of such Loss by any
Indemnified Person.
"Material Adverse Effect" means any material adverse change in, or material
adverse effect on, the business, assets, prospects, results of operations, value
or financial or other condition of Goldcoast, or any event or circumstance that
would likely prevent, hinder or materially delay the consummation of any of the
transactions contemplated by this Agreement and the Related Agreements.
"Person" means any individual, corporation, proprietorship, firm,
partnership, limited partnership, limited liability company, trust, association
or other entity, including a government or government department, agency or
instrumentality.
"Related Agreement" means any Contract that is or is to be entered into at
the Closing or otherwise pursuant to this Agreement.
"Subsidiaries" means any Person 50.1% or more of the voting power of which
is controlled by another Person.
"Tax" or "Taxes" means (a) any net income, alternative or add-on minimum
tax, gross income, gross receipts, sales, use, ad valorem, value added,
transfer, franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, environmental or windfall
profit tax, custom, duty or other tax, governmental fee or other like assessment
or charge of any kind whatsoever, together with any interest, penalty,
addition-to-tax or additional amount imposed by any governmental authority
(domestic or foreign) responsible for the imposition of any such tax (a "Taxing
Authority"), (b) any liability of the Companies for the payment of any amount of
the type described in clause (a) above as a result of being a member of an
affiliated, consolidated, combined or unitary group, and (c) any liability of
the Companies for the payment of any amount as a result of being party to any
Tax Sharing Agreement or with respect to the payment of any amounts of the type
described in clauses (a) or (b) above as a result of any express or implied
obligation to indemnify any other Person.
"Tax Sharing Agreement" means any existing Tax sharing agreements or
arrangements (whether or not written) binding Goldcoast and any other agreement
or arrangement (including any arrangement required or permitted by law) that (a)
requires Goldcoast to make any Tax payment to or for the account of any other
person, (b) affords any other person to utilize any tax attributes of Goldcoast
to reduce such other person's Taxes, (c) affords Goldcoast to utilize any tax
attributes of any other person to reduce any Taxes of Goldcoast, (d) requires or
permits the transfer or assignment of income, revenues, receipts, or gains, or
(e) requires or permits Goldcoast to determine its Tax liability by taking into
account or by reference to the Tax liability, income, revenues, receipts or
gains of any other person.
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"Treasury Regulations" means the U.S. income tax regulations, including
temporary regulations, promulgated under the Code, as of the date hereof.
(b) Each of the following terms is defined in the section set forth
opposite such term below:
Agreement...........................Introductory Paragraph
Balance Sheet Date.........................Section 3.06(b)
Bayfront..........................................Preamble
Buyer...............................Introductory Paragraph
Claim Notice............................Section 8.03(a)(i)
Closing.......................................Section 2.04
Closing Date..................................Section 2.04
Company Contracts.............................Section 3.08
Concorde..........................................Preamble
Escrow Amount.................................Section 2.03
Final Determination........................Section 8.03(d)
GAAP..........................................Section 3.06
Goldcoast...........................Introductory Paragraph
Holdback Amount............................Section 2.03(b)
Indemnification Obligation.................Section 8.02(a)
Indemnity Amount...........................Section 2.03(a)
Notice Period..........................Section 8.03(a)(ii)
Partnership Interest..............................Preamble
Party.............................................Preamble
Personal Guarantees...........................Section 7.03
Princesa..........................................Preamble
Purchase Price................................Section 2.02
Shareholder.........................Introductory Paragraph
ARTICLE II
SALE AND PURCHASE OF PARTNERSHIP INTERESTS
Section 2.01. SALE AND PURCHASE. Subject to the terms and conditions set
forth in this Agreement, Goldcoast hereby agrees to sell, assign, transfer and
deliver to Buyer all right, title and interest in and to (i) its Partnership
Interest in Bayfront and (ii) its Partnership Interest in Princesa, free and
clear of all Liens, and Buyer hereby agrees to purchase such Partnership
Interests.
Section 2.02. PURCHASE PRICE. The purchase price for the Partnership
Interests (the "Purchase Price") of $1,500,000, less the Escrow Amount, shall be
paid to Goldcoast in immediately available funds by wire transfer to a bank
account designated by Goldcoast at least two days prior to the Closing Date or,
if not so designated, then by certified or official bank check payable in
immediately available funds to the order of Goldcoast in such amount.
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Section 2.03. ESCROW. Subject to the terms and conditions set forth herein
and in the Escrow Agreement, Buyer shall withhold an aggregate of 30% from the
Purchase Price otherwise payable to Goldcoast (the "Escrow Amount") and deposit
the Escrow Amount into the Indemnity Escrow and the Holdback Escrow, as follows:
(a) 5% of the Purchase Price ("Indemnity Amount") shall be deposited
into the Indemnity Escrow, for a period of twelve months, as partial
security for the Indemnification Obligations as set forth in Article VIII;
and
(b) 25% of the Purchase Price ("Holdback Amount") shall be deposited
into the Holdback Escrow, until the Legislative Session Expiration Date, to
be distributed to Buyer in the event that during such time period any rule,
law, regulation or statute is adopted or enacted by a federal, state, local
or other governmental or quasi-governmental entity, or any decision or
proceeding by a court or other tribunal that (i) prohibits or has a
material adverse affect on the business of the Companies as such business
is currently conducted as of the date hereof, or (ii) permits Class III
gaming on Indian reservations.
Section 2.04. CLOSING. The closing of the transactions contemplated herein
(the "Closing") shall take place concurrently with the execution of this
Agreement at the offices of Xxxxxxxx & Xxxxxxxx LLP, at 000 Xxxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, unless another place or time is agreed to in
writing by Buyer and Goldcoast. The date upon which the Closing actually occurs
is referred to in this Agreement as the "Closing Date." The Closing, and all
transactions to occur at the Closing, shall be deemed to have taken place at,
and shall be effective as of, the close of business on the Closing Date.
Section 2.05. DELIVERIES BY THE SHAREHOLDERS AND GOLDCOAST. On or prior to
the Closing, the Shareholders and Goldcoast, as applicable, shall deliver to
Buyer the following:
(a) a copy of this Agreement, duly and validly executed by each
Shareholder and an authorized officer of Goldcoast;
(b) a copy of the Escrow Agreement, duly and validly executed by an
authorized officer of Goldcoast;
(c) a copy of the Assignment of Partnership Interests assigning the
Partnership Interests owned by Goldcoast in the form attached hereto as
Exhibit B;
(d) a certificate, dated as of the Closing Date, executed on behalf of
Goldcoast by Goldcoast's Secretary and Chief Executive Officer in the form
attached hereto as Exhibit C;
(e) evidence, in form satisfactory to Buyer, that all consents
required by Section 3.04, if any, have been obtained;
(f) a copy of the mutual release, whereby Goldcoast, Concorde and
Bayfront agree to release each other from amounts payable to each other as
set forth therein, duly and validly executed by an authorized officer of
Goldcoast, in the form attached hereto as Exhibit D (the "Release"); and
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(g) a copy of the consulting agreement between Buyer and Xxxxxxx X.
Xxxxxx, duly and validly executed by Xx. Xxxxxx.
Section 2.06. DELIVERIES BY BUYER. On or prior to Closing, the Buyer shall
deliver or cause to be delivered to Goldcoast, the Shareholders or the Escrow
Agent, as the case may be, the following:
(a) a copy of this Agreement, duly and validly executed by an
authorized officer of Buyer;
(b) a certificate, dated as of the Closing Date, executed on behalf of
Buyer, by Buyer's Chairman of the Board and Chief Executive Officer in the
form attached hereto as Exhibit E;
(c) a copy of the Escrow Agreement, duly and validly executed by an
authorized officer of Buyer;
(d) the Purchase Price;
(e) a copy of the Release duly and validly executed by an authorized
officer of Concorde; and
(f) a copy of the Consulting Agreement duly and validly executed by an
authorized officer of Buyer and delivered to Xx. Xxxxxx.
Section 2.07. ALLOCATION OF PURCHASE PRICE. The Parties agree that the
Purchase Price shall be allocated 100% to the Partnership Interests and that
such allocation will be used by the Parties in reporting the transactions
contemplated hereby for federal, state, county and local tax purposes.
Section 2.08. FURTHER ASSURANCES. At any time and from time to time after
the Closing Date, at the request of Buyer and without further consideration,
Goldcoast or its officers will execute and deliver such other instruments of
sale, transfer, conveyance, assignment and confirmation as may be reasonably
requested in order to more effectively transfer, convey and assign to the
applicable Buyer and to confirm such Buyer's title to the Partnership Interests.
Subject to the terms and conditions hereof, each Party hereto shall use its
reasonable best efforts to take all action required of it to fulfill its
obligations under the terms of this Agreement and to facilitate the consummation
of the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES BY GOLDCOAST AND THE SHAREHOLDERS
Goldcoast and the Shareholders, jointly and severally, represent and
warrant to Buyer as of the date of this Agreement, as follows:
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Section 3.01. DUE INCORPORATION. Goldcoast is duly organized, validly
existing and in good standing under the laws of the state of its organization,
with all requisite power and authority to own, lease and operate its properties
and to carry on its business as they are now being owned, leased, operated and
conducted.
Section 3.02. NO SUBSIDIARIES. Goldcoast has no direct or indirect
Subsidiaries, either wholly or partially owned, and Goldcoast does not hold any
direct or indirect economic, voting or management interest in any Person or
directly or indirectly own any security issued by any Person.
Section 3.03. DUE AUTHORIZATION. Goldcoast has full power and authority to
enter into this Agreement and the other Related Agreements to which it is a
party and to consummate the transactions contemplated hereby and thereby. This
Agreement and the Related Agreements to which it is a party, have been duly
authorized and approved by all necessary corporate action on the part of
Goldcoast. Goldcoast has duly and validly executed and delivered this Agreement
and the other Related Agreements to which it is a party. This Agreement and each
Related Agreement to which Goldcoast is a party constitutes the legal, valid and
binding obligation of Goldcoast enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect that affect the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies.
Section 3.04. CONSENTS AND APPROVALS; AUTHORITY RELATIVE TO THIS AGREEMENT.
(a) Except as set forth on Schedule 3.04(a), no consent, authorization
or approval of, filing or registration with, or cooperation from, any
Governmental Authority or any other Person not a party to this Agreement is
necessary in connection with the execution, delivery and performance by
Goldcoast of this Agreement, the Related Agreements to which Goldcoast is a
party or the consummation of the transactions contemplated hereby or
thereby.
(b) The execution, delivery and performance by Goldcoast of this
Agreement and the Related Agreements to which Goldcoast is a party does not
and will not, and the consummation of the transactions contemplated hereby
and thereby does not and will not, (i) violate any Law; (ii) violate or
conflict with, result in a breach or termination of, constitute a default
or give any third party any additional right (including any right of
termination or acceleration or right of acceleration) under, permit
cancellation of, result in the creation of any Lien upon any of the assets
or properties of Goldcoast under, or result in or constitute a circumstance
which, with or without notice or lapse of time or both, would constitute
any of the foregoing under, any Contract to which Goldcoast is a party or
by which Goldcoast or any of its assets or properties are bound; (iii)
permit the acceleration of the maturity of any indebtedness of Goldcoast or
indebtedness secured by its assets or properties; or (iv) violate or
conflict with any provision of the articles of incorporation and bylaws of
Goldcoast.
Section 3.05. TITLE TO PARTNERSHIP INTERESTS. Except as set forth on
Schedule 3.05, Goldcoast (i) owns all right, title and interest to the
Partnership Interests in the Companies, free
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and clear of any Lien, restriction on sale or transfer (other than restrictions
imposed by applicable securities laws), preemptive right, limitations on voting
rights or option or requirement to make any capital contributions that have not
previously been made and (ii) has the authority to dispose of such Partnership
Interests to Buyer pursuant to this Agreement.
Section 3.06. FINANCIAL STATEMENTS; UNDISCLOSED LIABILITIES; OTHER
DOCUMENTS.
(a) To Goldcoast's Knowledge, the Financial Statements of the
Companies have been prepared in accordance with generally accepted
accounting principles consistently applied ("GAAP"), subject to any
qualifications set forth in the applicable notes and schedules, present
fairly the financial condition of each Company as of such dates and the
results of operations of each Company for such periods, include all
adjustments that are necessary for a fair presentation of the information
shown, are correct and complete in all material respects, and are
consistent with the books and records of each Company (which books and
records are true and complete in all material respects). The Financial
Statements of the Companies reflect reserves appropriate and adequate for
all known liabilities and reasonably anticipated losses as required by GAAP
(including appropriate and adequate reserves for inventory, bad debt and
accrued liabilities). Goldcoast has disclosed to Buyer all material facts
relating to the preparation of the Financial Statements.
(b) Except as set forth on Schedule 3.06 or in the balance sheet dated
as of February 29, 2000 (the "Balance Sheet Date") for each Company, to
Goldcoast's Knowledge, the Companies have no liabilities, debts, claims or
obligations, whether accrued, absolute, contingent or otherwise, whether
due or to become due, other than trade payables and accrued expenses
incurred in the ordinary course of business since the Balance Sheet Date.
Except as set forth on Schedule 3.06, the Companies have no liabilities not
directly related to, and that did not arise directly out of, the business
of the Companies.
Section 3.07. MANAGEMENT OF BAYFRONT AND PRINCESA. (a) Except as set forth
on Schedule 3.07, Goldcoast, in its capacity as a general partner and/or manager
of the Companies, has conducted the business of the Companies in the ordinary
course consistent with past practices and in accordance with the terms of the
Joint Venture Agreements, and to Goldcoast's Knowledge, since the date of the
Financial Statements, there has not been any Material Adverse Effect and there
is no condition or development or contingency of any kind existing that could
reasonably be expected to result in a Material Adverse Effect on the Companies.
Section 3.08. CONTRACTS.
(a) Each of the Contracts to which either of the Companies is a party
were entered into in accordance with the terms and provisions of the Joint
Venture Agreement (the "Company Contracts").
(b) Except as set forth on Schedule 3.08(b), each Company Contract is
valid and in full force and effect, and is enforceable by each applicable
Company in
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accordance with its material terms, except as enforceability may be limited
by bankruptcy and other similar laws and general principles of equity.
(c) Except as set forth on Schedule 3.08(c), neither the Companies
nor, to the Knowledge of Goldcoast and the Shareholders, any party to a
Company Contract is in default under any Company Contract. To the Knowledge
of Goldcoast and the Shareholders, no event has occurred, and no
circumstance or condition exists, that likely would (with or without notice
or lapse of time) (A) result in a violation or breach of any of the
provisions of any Company Contract, (B) give any Person the right to
declare a default or exercise any remedy or hinder any Company Contract,
(C) give any Person the right to accelerate the maturity or performance of
any Company Contract, or (D) give any Person the right to cancel, terminate
or modify any Company Contract.
(d) Except as set forth on Schedule 3.08(d), the Company has not
received from any party to any Company Contract notification of a claim to
the effect that either Company has failed to perform a material obligation
thereunder. In addition, to the Knowledge of Goldcoast and the
Shareholders, there is no plan, intention or indication of any contracting
party to any Company Contract to cause the termination, cancellation or
modification of such Contract or to reduce or otherwise change its activity
thereunder so as to adversely affect the benefits derived or expected to be
derived therefrom by the Companies.
(e) The Company Contracts collectively constitute all of the Contracts
necessary to enable the Companies to conduct their respective business in
the manner in which such business is currently being conducted. Goldcoast
has made available to Buyer a copy of each Company Contract.
Section 3.09. LITIGATION. Except as set forth on Schedule 3.09, there are
no claims, actions, suits, arbitrations, grievances, proceedings or
investigations pending or, to the Knowledge of Goldcoast or any Shareholder,
threatened against the Companies, Goldcoast or any Shareholder, at law, in
equity or before any Governmental Authority involving the Companies, the
Partnership Interests or the transactions contemplated by this Agreement and any
Related Agreements.
Section 3.10. ACCURACY OF STATEMENTS. Neither this Agreement nor any
schedule, statement, list, document, certificate or other information furnished
or to be furnished by or on behalf of Goldcoast or the Shareholders to Buyer or
any representative or Affiliate of Buyer in connection with this Agreement, the
Related Agreements or any of the transactions contemplated hereby or thereby
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements contained
herein or therein, in light of the circumstances in which they are made, not
misleading.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each Shareholder, severally, represents and warrants to Buyer, as of the
date of this Agreement, as follows:
Section 4.01. SHAREHOLDERS' POWER AND AUTHORITY. The Shareholders have
legal capacity to execute, deliver and perform this Agreement and the other
Related Agreements to which the Shareholders are a party. This Agreement and
each of the Related Agreements to which the Shareholders are a party have been
duly executed and delivered by each Shareholder, constitutes a legal, valid and
binding obligation of such Shareholders, enforceable against each Shareholder in
accordance with its terms, except as enforcement thereof may be limited by
liquidation, conservatorship, bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally from
time to time in effect and except that equitable remedies are subject to
judicial discretion.
Section 4.02. OWNERSHIP OF GOLDCOAST. The Shareholders, collectively, own
100% of the issued and outstanding capital stock of Goldcoast.
Section 4.03. EFFECT OF AGREEMENT ON THE SHAREHOLDERS. Neither the
execution and delivery of this Agreement nor the Related Agreements to which the
Shareholders are a party nor the consummation of the transactions contemplated
hereby or thereby will: (i) result in the acceleration, breach or termination
of, or the creation in any party of the right to accelerate, terminate, modify,
cancel or require any notice under, any Contract or other obligation or
liability to which the Shareholders are a party or is bound or to which the
Shareholders' assets are subject, (ii) conflict with or violate any Law
applicable to the Shareholders by which any of their properties or assets are
bound or affected, or (iii) result in the creation of any Lien upon the
Partnership Interests or any assets, tangible or intangible, of the
Shareholders.
Section 4.04. AGREEMENTS AMONG SHAREHOLDERS. There are no agreements,
written or oral, between Goldcoast and any Shareholder relating to the
acquisition (including without limitation rights of first refusal or pre-emptive
rights), disposition or otherwise of the Partnership Interests.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Each Buyer represents and warrants to Goldcoast and the Shareholders, as of
the date of this Agreement, as follows:
Section 5.01. DUE INCORPORATION. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of its state of
organization, with all requisite power and authority to own, lease and operate
its properties and to carry on its business as they are now being owned, leased,
operated and conducted.
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Section 5.02. DUE AUTHORIZATION. Buyer has full power and authority to
enter into this Agreement and the Related Agreements to which Buyer is a party
and to consummate the transactions contemplated hereby and thereby. This
Agreement and the Related Agreements to which it is a party, have been duly
authorized and approved by all necessary corporate action on the part of Buyer.
Buyer has duly and validly executed and delivered this Agreement and the other
Related Agreements to which it is a party. This Agreement and each Related
Agreement to which Buyer is a party constitutes the legal, valid and binding
obligation of Buyer enforceable in accordance with their respective terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which affect
the enforcement of creditors' rights generally and by equitable limitations on
the availability of specific remedies.
Section 5.03. CONSENTS AND APPROVALS; AUTHORITY RELATIVE TO THIS AGREEMENT.
(a) Except as set forth on Schedule 5.03, no consent, authorization or
approval of, filing or registration with, or cooperation from, any
Governmental Authority or any other Person not a party to this Agreement is
necessary in connection with the execution, delivery and performance by
Buyer of this Agreement and the Related Agreements to which Buyer is a
party and the consummation of the transactions contemplated hereby and
thereby.
(b) The execution, delivery and performance by Buyer of this Agreement
and the Related Agreements to which Buyer is a party do not and will not,
and the consummation of the transactions contemplated hereby and thereby
does not and will not, (i) violate any Law, or (ii) violate or conflict
with any provision of the articles of incorporation, bylaws or similar
organizational instruments of Buyer.
Section 5.04. LITIGATION. Except as set forth on Schedule 5.04, there are
no claims, actions, suits, arbitrations, grievances, proceedings or
investigations pending or, to the Knowledge of Buyer, threatened against Buyer,
at law, in equity or before any Governmental Authority involving Buyer or the
transactions contemplated by this Agreement and any Related Agreements.
Section 5.05. ACCURACY OF STATEMENTS. Neither this Agreement nor any
schedule, statement, list, document, certificate or other information furnished
or to be furnished by or on behalf of Buyer to Goldcoast or the Shareholders or
any representative or Affiliate of Goldcoast or the Shareholders in connection
with this Agreement, the Related Agreements or any of the transactions
contemplated hereby or thereby contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein, in light of the circumstances in
which they are made, not misleading.
ARTICLE VI
TAX REPRESENTATIONS AND COVENANTS
Section 6.01. TAX REPRESENTATIONS. Goldcoast and each Shareholder, jointly
and severally, represents and warrants to Buyer as of the date hereof, that to
the Knowledge of
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Goldcoast and the Shareholders, all materials and information provided by
Goldcoast regarding returns required to be filed by or on behalf of the
Companies on or before the Closing Date have been (or will be) provided on a
timely basis and such materials are (or will be) true, complete and correct.
ARTICLE VII
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 7.01. PUBLIC ANNOUNCEMENTS. Each of the Parties acknowledges the
importance of appropriate disclosures in positioning the relationship between
the two companies to the distribution channel, the press, customers and others.
Goldcoast and the Shareholders agree to make no press releases or other public
announcements regarding this Agreement without Buyer's prior written consent.
Section 7.02. CONFIDENTIALITY. Goldcoast and the Shareholders will treat
and hold as such all Confidential Information, refrain from using any of the
Confidential Information except in connection with this Agreement, and deliver
promptly to Buyer or destroy, at the request and option of Buyer, all tangible
embodiments (and all copies) of the Confidential Information that are in its or
his possession. In the event that Goldcoast or any Shareholder is requested or
required (by oral question or request for information or documents in any legal
proceeding, interrogatory, subpoena, civil investigative demand, or similar
process) to disclose any Confidential Information, that Party will promptly
notify the Buyer of the request or requirement so that the Buyer may seek an
appropriate protective order or waive compliance with the provisions of this
Section 7.02. If, in the absence of a protective order or the receipt of a
waiver hereunder, Goldcoast or the Shareholders are, on the advice of counsel,
compelled to disclose any Confidential Information to any tribunal or else stand
liable for contempt, that Party may disclose the Confidential Information to the
tribunal; provided, however, that the disclosing Party shall use best efforts to
obtain, at the request of the Buyer, an order or other assurance that
confidential treatment will be accorded to such portion of the Confidential
Information required to be disclosed as the Buyer shall designate.
Section 7.03. PERSONAL GUARANTEES. Buyer will use its reasonable efforts to
assist the Shareholders in releasing the personal guarantees of each Shareholder
for contracts or obligations arising from or relating to the business of the
Companies. In the event that the Buyer cannot secure the release of the Personal
Guarantees, Buyer shall indemnify and hold harmless each Shareholder from any
and all damage, loss, liability and expense (including without limitation
reasonable expenses of investigation and reasonable attorneys' fees and expenses
in connection with any action, suit or proceeding) incurred or suffered by
either Shareholder arising out of the Personal Guarantees.
ARTICLE VIII
INDEMNIFICATION
Section 8.01. SURVIVAL. The covenants, agreements, representations and
warranties of the Parties contained in this Agreement or in any certificate or
other writing delivered pursuant
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hereto or in connection herewith shall survive the Closing (i) until the first
anniversary of the Closing Date, except in the case of fraud, in which case such
representations and warranties shall survive indefinitely, and (ii) the
representations and warranties contained in Section 3.05 and the covenants
contained in Section 7.02 shall survive indefinitely. Notwithstanding the
preceding sentence, any covenant, agreement, representation or warranty in
respect of which indemnity may be sought under this Agreement shall survive the
time at which it would otherwise terminate pursuant to the preceding sentence,
if notice of the inaccuracy or breach thereof giving rise to such right of
indemnity shall have been given to the Party against whom such indemnity may be
sought prior to such time.
Section 8.02. INDEMNIFICATION OBLIGATIONS.
(a) Indemnification by Goldcoast and the Shareholders. Goldcoast and
the Shareholders shall indemnify, defend and hold harmless Buyer and its
Affiliates (the "Indemnification Obligation") from, against and in respect
of any and all Losses resulting from, relating to or arising out of:
(i) any misrepresentation, inaccuracy in or breach of
representations or warranties contained in this Agreement or any
Related Agreements;
(ii) any failure to perform, satisfy or observe or the
non-fulfillment of any agreement or covenant on the part of Goldcoast
or the Shareholders contained in this Agreement or any Related
Agreements; and
(iii) any claim, action, suit, arbitration, grievance, proceeding
or investigation brought by third party involving Goldcoast as a
general partner of either of the Companies for any period of time on
or prior to closing;
provided, however, the maximum indemnification obligation of Goldcoast and the
Shareholders to Buyer shall not exceed an aggregate of $300,000; provided,
further that nothing contained in this Section 8.02(a) shall be deemed to limit
or restrict in any manner (whether by time, amount, procedure or otherwise) any
remedy at law or in equity to which Buyer may be entitled as a result of actual
fraud by the Shareholders or Goldcoast.
(b) Indemnification by Buyer. Buyer shall indemnify, defend and hold
harmless Goldcoast from, against and in respect of any and all Losses
resulting from, relating to or arising out of:
(i) any misrepresentation, inaccuracy in or breach of
representations and warranties contained in this Agreement or any
Related Agreement; and
(ii) any failure to perform, satisfy, or observe or the
non-fulfillment of any agreement or covenant on the part of Buyer
contained in this Agreement or any Related Agreement.
Section 8.03. METHOD OF ASSERTING CLAIMS, ETC. All claims for
indemnification under this Article VIII shall be asserted and resolved as
follows:
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(a) In the event that any claim or demand for which an Indemnifying
Person would be liable to an Indemnified Person hereunder is asserted
against or sought to be collected by a third party, the Indemnified Person
shall:
(i) promptly notify the Indemnifying Person of such claim or
demand, specifying the nature of such claim or demand and the amount
or the estimated amount thereof to the extent then feasible (which
estimate shall not be conclusive of the final amount of such claim or
demand) (the "Claim Notice"); provided, however, that the failure of
an Indemnified Person to give notice as provided herein shall not
relieve an Indemnifying Person of its obligations under this Article
VIII, except to the extent the Indemnifying Person is prejudiced
thereby;
(ii) an Indemnifying Person shall have 15 calendar days from
their receipt of the Claim Notice (the "Notice Period") to notify the
Indemnified Person (x) whether or not the Indemnifying Person disputes
its liability to the Indemnified Person hereunder with respect to such
claim or demand, and (y) if they do not dispute such liability,
whether or not they desire, at their sole cost and expense, to defend
the Indemnified Person against such claim or demand; provided,
however, that the Indemnified Person is hereby authorized prior to and
during the Notice Period to file any motion, answer or other pleading
which it shall deem necessary or appropriate to protect its interests;
(iii) in the event that the Indemnifying Person notifies the
Indemnified Person within the Notice Period that the Indemnifying
Person does not dispute such liability and desires to defend against
such claim or demand, then except as hereinafter provided, the
Indemnifying Person shall have the right to defend by appropriate
proceedings, which proceedings shall be promptly settled or prosecuted
to a final conclusion in such a manner as to avoid any risk of the
Indemnified Person becoming subject to liability for any other matter;
(iv) if the Indemnified Person desires to participate in, but not
control, any such defense or settlement it may do so at its sole cost
and expense; provided, however, that the Indemnifying Person shall pay
such expense if representation of the Indemnified Person by the
counsel retained by the Indemnifying Person would be inappropriate due
to actual or potential differing interests between the Indemnified
Person and any other party represented by such counsel in such
proceeding;
(v) if, in the reasonable opinion of the Indemnified Person, any
such claim or demand involves an issue or matter which could have a
Material Adverse Effect on the business, operations, assets,
properties or prospects of the Indemnified Person, or Affiliate of the
Indemnified Person, the Indemnified Person shall have the right to
control the defense or settlement of any such claim or demand, and its
reasonable costs and expenses thereof shall be included as part of the
Indemnification Obligations of the Indemnified Person hereunder and,
with respect to subsections (iv) and (v) the Indemnifying Person shall
make available
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to the Indemnified Person any documents and materials in his or her
possession or control that may be necessary or useful to such defense;
and/or
(vi) if the Indemnifying Person disputes the Indemnifying
Person's liability with respect to such claim or demand or elects not
to defend against such claim or demand, whether by not giving timely
notice as provided above or otherwise, then the amount of any such
claim or demand, or, if the same be contested by the Indemnifying
Person or by the Indemnified Person (but the Indemnified Person shall
not have any obligation to contest any such claim or demand), then
that portion thereof as to which such defense is unsuccessful, shall
be conclusively deemed to be a liability of the Indemnifying Person
hereunder (subject, if the Indemnifying Person has timely disputed
liability, to a determination that the disputed liability is covered
by these indemnification provisions).
(b) In the event the Indemnified Person should have a claim against
the Indemnifying Person hereunder which does not involve a claim or demand
being asserted against or sought to be collected from it by a third party,
the Indemnified Person shall promptly send a Claim Notice with respect to
such claim to the Indemnifying Person. If the Indemnifying Person does not
notify the Indemnified Person within the Notice Period that they dispute
such claim, the amount of such claim shall be conclusively deemed a
liability of the Indemnifying Person hereunder.
(c) Nothing herein shall be deemed to prevent any Indemnified Person
from making a claim hereunder for potential or contingent claims or demands
provided the Claim Notice sets forth the specific basis for any such
potential or contingent claim or demand and the estimated amount thereof to
the extent then feasible and the Indemnified Person has reasonable grounds
to believe that such a claim or demand will be made.
(d) As used herein, a "Final Determination" of a disputed claim shall
mean (i) as to third party claims, a judgment of any court determining the
validity of a disputed claim, if no appeal is pending from such judgment or
if the time to appeal therefrom has elapsed; (ii) as between Goldcoast, any
Shareholder and/or the Buyer an award of any arbitration determining the
validity of such disputed claim; (iii) a written agreement as to the
termination of the dispute with respect to such claim signed by all of the
Parties thereto or their attorneys; (iv) a written acknowledgement of the
Indemnifying Person that he or it no longer disputes the validity of such
claim; or (v) such other evidence of final determination of a disputed
claim as shall be acceptable to the Parties.
Section 8.04. ARBITRATION. All disputes under this Article VIII and all
other controversies or claims arising out of or relating to this Agreement, or
the breach thereof, not subject to a third party claim, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association in Denver, Colorado if Goldcoast or the Shareholders
request such arbitration or in Miami, Florida if Buyer requests such
arbitration. One arbitrator shall be selected by the Indemnifying Persons or
Parties, one arbitrator shall be selected by the Indemnified Person, and the
third arbitrator shall be chosen by the first two arbitrators chosen. The cost
and expense of arbitration shall be shared equally by the Parties to
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the arbitration, regardless of which Party or Parties prevail. The arbitration
shall be conducted in accordance with the following time schedule unless
otherwise mutually agreed to in writing by the Parties: (i) Parties to the
arbitration proceeding shall each appoint their respective arbitrator within 15
Business Days after the end of the Notice Period; (ii) within five Business Days
thereafter, such arbitrators shall appoint the third arbitrator; (iii) within 10
Business Days after the appointment of the third arbitrator, Parties to the
arbitration proceeding shall provide all documents, records and supporting
information reasonably necessary to resolve the dispute; and (iv) within 15
Business Days after the date the above records are due, the arbitrators shall
render their decision. The decision or award of the arbitrators shall be final
and binding upon the Parties hereto to the same extent and to the same degree as
if the matter had been adjudicated by a court of competent jurisdiction and
shall be enforceable under the Federal Arbitration Act.
Section 8.05. PAYMENT.
(a) As partial security for the Indemnification Obligations of the
Shareholders to Buyer set forth in Section 8.02(a), the Indemnity Amount
shall be deposited into the Indemnity Escrow in accordance with Section
2.03 hereof and the terms of the Escrow Agreement. In the event that any
amounts are due and owing to Buyer under the indemnification provisions of
this Article VIII, Buyer shall be entitled to offset such amounts against
the Indemnity Amount pursuant to the terms and provisions of the Escrow
Agreement. If the Indemnity Amount is insufficient, the Buyer may, in its
sole discretion, seek payment for such amount directly from Goldcoast or
the Shareholders, as the case may be.
(b) Except as set forth in Section 8.05(a), in the event that any
Party is required to make any payment under this Article VIII, such Party
shall promptly pay the Indemnified Person the amount so determined. If
there should be a dispute as to the amount or manner of determination of
any indemnity obligation owed under this Article VIII, the Party from which
indemnification is due shall nevertheless pay when due such portion, if
any, of the obligation as shall not be subject to dispute. The difference,
if any, between the amount of the obligation ultimately determined as
properly payable under this Article VIII and the portion, if any,
theretofore paid shall bear interest as provided in Section 8.05(d). Upon
the payment in full of any claim, either by setoff or otherwise, the Party
or Person making payment shall be subrogated to the rights of the
Indemnified Person against any Person with respect to the subject matter of
such claim.
(c) The foregoing indemnification provisions are in addition to, and
not in derogation of, any statutory or common law remedy any Party may have
for breach of representation, warranty, or covenant.
(d) If all or part of any Indemnification Obligation under this
Agreement is not paid when due, then the Indemnifying Person or parties
shall pay the Indemnified Person or parties interest on the unpaid amount
of the obligation for each day from the date the amount became due until
payment in full, payable on demand, at the "prime rate" set forth in The
Wall Street Journal on the date the payment was due.
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Section 8.06. EQUITABLE RELIEF. In the event of a breach or threatened
breach by any Shareholder of Section 7.02 hereof, each Shareholder hereby
consents and agrees that Buyer shall be entitled to an injunction or similar
equitable relief restraining the breaching party from committing or continuing
any such breach or threatened breach or granting specific performance of any act
required to be performed by such Shareholders under any such provision, without
the necessity of showing any actual damage or that money damages would not
afford an adequate remedy and without the necessity of posting any bond or other
security. Nothing herein shall be construed as prohibiting Buyer, Goldcoast or
the Shareholders from pursuing any other remedies at law or in equity which it
may have.
ARTICLE IX
MISCELLANEOUS
Section 9.01. EXPENSES. Goldcoast shall pay all expenses of the
Shareholders and Goldcoast (including attorneys' fees and expenses) and Buyer
shall pay all expenses of Buyer (including attorneys' fees and expenses), in
each case incurred in connection with this Agreement and the transactions
contemplated hereby. Goldcoast shall pay all sales, use, stamp, transfer,
service, recording, real estate and like taxes or fees, if any, imposed by any
Governmental Authority in connection with the transfer and assignment of the
Partnership Interests.
Section 9.02. AMENDMENT. This Agreement may be amended, modified or
supplemented but only in writing signed by the Parties.
Section 9.03. NOTICES. Any notice, request, instruction or other document
to be given hereunder by a Party hereto shall be in writing and shall be deemed
to have been given, (a) when received if given in person or by courier or a
courier service, (b) on the date of transmission if sent by facsimile or other
wire transmission, or (c) four Business Days after being deposited in the U.S.
or Canadian mail, certified or registered mail, postage prepaid:
(a) If to Xxxxx Xxxxxxxx, addressed as follows:
0000 Xxxxx Xxxx, #0000
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone No.: (000)000-0000
Facsimile No.: (000)000-0000
with a copy to:
Xxxxx, Xxxxxxx & Xxxxx, P.A.
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xx Xxxxx, Esq.
Telephone No.: (000)000-0000
Facsimile No.: (000)000-0000
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(b) If to Xxxxxxx Xxxxxx, addressed as follows:
Xxxxxxx Xxxxxx
0000 XX 000 Xxxxxxx
Xxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
with a copy to:
Cohen, Berke, Xxxxxxxxx, Xxxxxx & Kondell, P.A.
0000 Xxxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
Telephone No.: (000)000-0000
Facsimile No.: (000)000-0000
(c) If to Goldcoast, addressed as follows:
Goldcoast Entertainment Cruises, Inc.
000 X. Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone No.: (000)000-0000
Facsimile No.: (000)000-0000
(d) If to Buyer, addressed as follows:
Concorde Cruises, Inc.
c/o Concorde Gaming Corporation
0000 Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxx, President
Telephone No.: (000)000-0000
Facsimile No.: (000)000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxx
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X Xxxxxx, Esq.
Telephone No.: (000)000-0000
Facsimile No.: (000)000-0000
or to such other individual or address as a Party hereto may designate for
itself by notice given as herein provided.
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Section 9.04. WAIVERS. The failure of a Party hereto at any time or times
to require performance of any provision hereof shall in no manner affect its
right at a later time to enforce the same. No waiver by a Party of any condition
or of any breach of any term, covenant, representation or warranty contained in
this Agreement shall be effective unless in writing, and no waiver in any one or
more instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
Section 9.05. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by different Parties hereto in separate counterparts, each of
which when so executed shall be deemed an original, but all of which together
shall constitute one and the same instrument. Signatures on the Agreement may be
communicated by facsimile transmission and shall be binding upon the Party
transmitting the same by facsimile transmission.
Section 9.06. INTERPRETATION. The headings preceding the text of Articles
and Sections included in this Agreement and the headings to Schedules attached
to this Agreement are for convenience only and shall not be deemed part of this
Agreement or be given any effect in interpreting this Agreement. The use of the
masculine, feminine or neuter gender herein shall not limit any provision of
this Agreement. The use of the terms "including" or "include" shall in all cases
herein mean "including, without limitation" or "include, without limitation,"
respectively. References to Articles, Sections, Subsections or Schedules shall
refer to those portions of this Agreement. Consummation of the transactions
contemplated herein shall not be deemed a waiver of a breach of or inaccuracy in
any representation, warranty or covenant or of any Party's rights and remedies
with regard thereto. No specific representation, warranty or covenant contained
herein shall limit the generality or applicability of a more general
representation, warranty or covenant contained herein. A breach of or inaccuracy
in any representation, warranty or covenant shall not be affected by the fact
that any more general or less general representation, warranty or covenant was
not also breached or inaccurate.
Section 9.07. APPLICABLE LAW. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Florida without giving effect to the principles of conflicts of law thereof.
Section 9.08. ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective estates, heirs, legal
representatives, successors and assigns; provided, however, that no assignment
of any rights or obligations shall be made by any Party hereto without the
written consent of each other Party hereto, except that Buyer may assign its
rights hereunder, but not its obligations, without such consent to any Affiliate
of Buyer.
Section 9.09. NO THIRD-PARTY BENEFICIARIES. This Agreement is solely for
the benefit of the Parties hereto and, to the extent provided herein, their
respective estates, heirs, successors, Affiliates, directors, officers,
employees, agents and representatives, and no provision of this Agreement shall
be deemed to confer upon other third parties any remedy, claim, liability,
reimbursement, cause of action or other right.
Section 9.10. SEVERABILITY. If any provision of this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality or enforceability
of the other provisions hereof
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shall not be affected thereby, and there shall be deemed substituted for the
provision at issue a valid, legal and enforceable provision as similar as
possible to the provision at issue.
Section 9.11. REMEDIES CUMULATIVE. Unless otherwise specified, the remedies
provided in this Agreement shall be cumulative and shall not preclude the
assertion or exercise of any other rights or remedies available by law, in
equity or otherwise.
Section 9.12. ENTIRE UNDERSTANDING. This Agreement, together with all
Exhibits and Schedules referenced herein, and the Related Agreements set forth
the entire agreement and understanding of the Parties hereto and supersede any
and all prior agreements, arrangements and understandings among the Parties.
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IN WITNESS WHEREOF, the Parties hereto have executed and delivered or
caused this Agreement to be executed and delivered by their authorized
representatives as of the date first above written.
BUYER:
CONCORDE CRUISES, INC.
By: /s/ XXXXX X. XXXX
----------------------------------------
Name: Xxxxx X. Xxxx
Title: President
GOLDCOAST:
GOLDCOAST ENTERTAINMENT CRUISES,
INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
SHAREHOLDERS:
/s/ XXXXXXX X. XXXXXX
-------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ XXXXX XXXXXXXX
-------------------------------------------
Xxxxx Xxxxxxxx
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EXHIBIT A
ESCROW AGREEMENT
A-1
27
EXHIBIT B
FORM OF ASSIGNMENT OF PARTNERSHIP INTERESTS
B-1
28
EXHIBIT C
FORM OF GOLDCOAST'S OFFICERS CERTIFICATE
C-1
29
EXHIBIT D
FORM OF MUTUAL RELEASE
D-1
30
EXHIBIT E
FORM OF BUYER'S OFFICERS CERTIFICATE
E-1
