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EXHIBIT 10.18
JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT ("Agreement") is made and entered
into as of this 27th day of August, 1997 by and between Goldcoast Entertainment
Cruises, Inc., a Florida corporation ("Goldcoast") and Concorde Gaming
Corporation, a Colorado corporation ("Concorde").
RECITALS
A. The parties hereto propose to enter into a joint
venture to construct, own, operate and manage a commercial gaming vessel from
dockage at Bayfront Park, Miami, Florida (the "Project") and such other
activities as may be necessary or incidental thereto.
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 "Bayfront
Ventures" and the business of the Joint Venture shall be conducted solely under
such name or in the name of the "Bayside Princess", 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.
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.
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Section 1.2. PURPOSES AND SCOPE OF THE JOINT VENTURE.
1.2.1 Purposes. The purposes of the Joint Venture are (a) to
construct, own, operate and manage the Project, and any other projects
hereafter acquired by the Joint Venture pursuant to and in accordance with this
Agreement ("Additional Projects"), if it is "Approved by the Management
Committee" (as hereinafter defined); and to engage in such other activities as
are reasonably necessary or incidental to the foregoing with respect to the
Project and the Additional Projects.
1.2.2 Scope of Venturers' Authority. 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 Project 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 Bayfront Park, Miami, Florida, 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 Project or any
Additional Projects, 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 Project 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").
Concorde 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 Defined. 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.
Section 2.2 CAPITAL CONTRIBUTIONS BY CONCORDE.
Following the execution of this Agreement, Concorde shall make capital
contributions in accordance with the construction and capital outlay needs of
the Joint Venture. Concorde's capital contribution will be $6,405,000,
("Capital Contribution") which amount shall not include
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any funds contributed by Concorde in conjunction with the letter of credit
required by the Use Agreement. Concorde shall be credited for all payments
made by Concorde to Xxx Equity Group, Inc. ("LEG") and the Bayfront Park
Management Trust, if any, related to the acquisition of LEG's interest in the
Joint Venture, less $95,000 which shall be treated as a loan between Concorde
and Goldcoast. Concorde and Goldcoast agree to enter into a separate loan
agreement evidencing Goldcoast's obligation to reimburse Concorde for these
initial advances.
Section 2.3 CONTRIBUTIONS BY GOLDCOAST.
Goldcoast's capital contribution account shall be zero. Goldcoast's
contribution to the Joint Venture shall be: (i) the initial Identification and
Concept of the Project, including the successful award from a Request For
Proposals by the Bayfront Park Management Trust, a limited agency and
instrumentality of the City of Miami; (ii) the successful negotiation and
execution of a Use Agreement with Bayfront Park Management Trust for the
Bayfront Park docking facilities; (iii) the development and management of the
Project prior to the initial commercial voyage of the Project; and (iv) the
management of the Project, upon its initial commercial voyage.
Section 2.4 ADDITIONAL FUNDING.
2.4.1 General. It is anticipated that the Joint Venture will require
funds in addition to the capital contributions provided for above in Sections
2.2 and 2.3. The Venturers agree that in no event shall any additional 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).
2.4.2 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 2.4, 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.
2.4.3 Repayment of Financing Venturer Loan(s). In the event a
Financing Venturer makes a loan to the Joint Venture ("Venturer Loan"), the
Venturer Loan shall bear interest at a rate equal to the highest prime rate, as
published in the Wall Street Journal, plus 6 %, provided that such rate shall
not be less than 15% nor more than 20%. Any Financing Venturer Loans shall be
repaid in monthly installments in accordance with the following schedule:
Venturer Loan Amount Months for Repayment
< $1,000,000 12
$1,000,000 or >, but < $2,000,000 24
$2,000,000 or >, but < $3,000,000 36
$3,000,000 or > 60
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Repayment of a Venturer Loan shall be secured by all assets of the Joint
Venture and the Joint Venture agrees to file Uniform Commercial Code financing,
continuation statements, and other security instruments as may be appropriate
to perfect and continue such security interest in favor of such Financing
Venturer. In the event that the Venture's Net Cash Flow would result in a
distribution to Goldcoast in excess of the advances paid to Goldcoast in
Sections 3.4.2 and 3.4.3 ("Excess Net Cash Flow"), the Ventures agree that
either Venturer can request the Excess Net Cash Flow be used to repay a Venture
Loan, if any. No Venturer Loan shall have a prepayment penalty. Section 2.5
Section 2.5 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
2.4 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 2.6 DISTRIBUTIONS TO VENTURERS FROM PROJECT NET CASH FLOW.
2.6.1 Definition of Net Cash Flow. Not later than thirty (30) days
after the end of each calendar quarter, the Manager shall make a distribution
to the Venturers of the entire Net Cash Flow (as hereinafter defined in this
Subsection 2.6.1) of the Joint Venture from the Project during such preceding
calendar quarter in accordance with the provisions of Subsection 2.6.3 below.
"Net Cash Flow" shall be computed by the Manager and shall consist of the gross
cash receipts of the Joint Venture of any kind or description from the Project
during a calendar quarter except for the receipts described in Subsection
2.6.4, after deducting the following:
(a) all costs of improving, managing, leasing, operating,
maintaining, replacing and preserving the Project to the extent paid
in cash during such calendar quarter but not including any such
payments to the extent that the amounts thereof were reserved against
and funded from such reserves;
(b) all other operating or other expenses of the Joint Venture
attributable to the Project whether paid or accrued during such
calendar quarter, or any expenditures for casualty losses to the
extent that such losses are not reimbursed during such quarter by any
third party responsible therefore or through insurance maintained by
the Joint Venture, but not including any expenses paid in cash to the
extent that such expenses were reserved against and funded from such
reserves;
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(c) all cash payments made with respect to the discharge of Joint
Venture indebtedness during the calendar quarter, but not including
any such payments to the extent that the amounts thereof were reserved
against and funded from such reserves; and
(d) all reasonable amounts of reserved cash as shall be determined
and Approved by the Management Committee to be necessary or
advisable,provided that quarterly allocations for cash reserves from
the Net Cash Flow do not exceed 25% of the total quarterly Net Cash
Flow, for: (i) the repayment of Joint Venture indebtedness coming due
in such future time period as shall be determined by the Management
Committee; (ii) the improvement, management, operation (including but
not limited to insurance and property taxes and assessments),
maintenance, replacement or preservation of the Project; and (iii)
increases in working capital and other contingencies.
(e) all payments to Concorde as reimbursement for payments to LEG
or accruals in years one through three
2.6.2 No Deduction for Depreciation. In computing Net Cash Flow, no
deduction shall be made for depreciation or amortization as such terms are used
for purposes of the United States Internal Revenue Code of 1986, as amended
(the "Code").
2.6.3 Distribution. Distributions of Net Cash Flow will be paid, or
be payable, to the Venturers in accordance with their respective Percentage
Interests in the Joint Venture, as stated in Section 2.1.1. All distributions
paid, or payable, to Goldcoast will be reduced by the amount of advances paid
to Goldcoast in accordance with Sections 3.4.2 and 3.4.3. The parties
anticipate Concorde receiving a 100% payback of its capital contribution within
three (3) years of the Commencement of Operations. In the event the aggregate
distributions to Concorde as a percent of its capital contribution ("Concorde
Return") results in an annualized return of less than 33.33%, the distributions
to be paid will be computed pursuant to the following modifications:
(a) If Concorde's Return is between 33.3% and 20%, the
distributions paid to the Venturers shall be recomputed so that
Concorde's Return equals 33.3%, with the exception of advances paid to
Goldcoast under Sections 3.4.3.
(b) If Concorde's Return is less than 20%, then all distributions
shall be paid to Concorde, with the exception of advances paid to
Goldcoast under Section 3.4.3.
For purposes of calculating Concorde's Return, Concorde's share of the payments
to LEG after the Commencement of Operations shall be added to Concorde's Net
Cash Flow distribution, which sum shall be the numerator in determining
Concorde's Return. The denominator shall be Concorde's capital contribution of
$6,000,000.
In the event (a) or (b) above reduces the distribution paid to Goldcoast, the
Venturer's agree that Goldcoast will continue to accrue distributions equal to
their 20% interest in the Joint Venture. Accrued distributions due to
Goldcoast shall be paid upon the earlier of (1) when Concorde's Return is
33.3%, or (2) when Concorde's Capital Contribution has been paid back in its
entirety.
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The Management Committee shall endeavor to make distributions sufficient in
such amount and at such time to enable the Ventures to satisfy their respective
income tax liabilities attributable to the Venture.
2.6.4 Exclusions from Net Cash Flow. Notwithstanding the foregoing,
Net Cash Flow shall not include the proceeds of any sale, mortgage,
hypothecation, assignment, condemnation or other transfer or disposition of the
Project, or any part thereof or interest therein (excluding only occupancy
leases for space within the Improvements), which proceeds shall be distributed
as set forth in Section 2.7.
Section 2.7 PROCEEDS FROM SALE OR FINANCING AND PROFITS ON SALE.
Proceeds from any sale, mortgage, hypothecation (other than
the Construction Loan), assignment, condemnation or other transfer or
disposition of the Project, 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) Concorde's
capital contribution less any distributions paid, (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 2.8 ALLOCATIONS OF PROFITS AND LOSSES TO VENTURERS.
(a) Allocation of Losses. Venture Losses for any year shall
be allocated:
(1) first, to the Venturers up to the positive balance of
their Capital Accounts, ratably in accordance with the
positive balances of their Capital Accounts, and
(2) next, any remaining Losses shall be equally allocated
to the Venturers.
(b) Allocation of Profits. Venture Profits and gains for any
year shall be allocated:
(1) first, to the Venturers previously allocated Losses
under Section 2.8(a) to the extent of such Losses (reduced by
allocations under this clause for all prior years), ratably
and in inverse order to the manner in which such Losses were
allocated; and
(2) the balance, if any, shall be allocated 80% to
Concorde and 20% to Goldcoast
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.
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Section 2.10 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 2.10
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 Code.
Section 2.11 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 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
Concorde shall be the "tax matters partner" of the Partnership as
defined in Section 6231 of the 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
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Committee of the Joint Venture shall be composed of two representatives from
Concorde 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 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 Project, the construction of the Project, interim and
long-term financing or refinancing of the Project, 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 Project 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 Project 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
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prior to the construction, addition to and/or alteration of the Project 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 Project Plan and all Budgets pursuant to Section
3.3 hereof;
(i) making any expenditure or incurring any obligation, other than
payments for utilities, fuel and 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;
(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 AND CONSTRUCTION
MANAGER; DUTIES AND FEES OF MANAGER AND CONSTRUCTION MANAGER.
3.2.1 Appointment of Manager. Goldcoast is hereby appointed as the
initial Manager of the Joint Venture. The duties, obligations and compensation
of the Manager shall be as set forth in this agreement. The Manager shall not
be compensated but shall receive an advance against its distributions as set
forth in this agreement.
3.2.2 Termination of Manager. Following the completion of the
second full year of operations, Manager may be terminated as Manager for cause
if Concorde's Return is less than
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20% for any consecutive two-year period, as calculated pursuant to Section
2.6.3. 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 Project 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.
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 PROJECT PLAN AND BUDGETS.
(a) As soon as practically possible following the date of this
Agreement, the Manager shall prepare a Project Plan and submit it to the
Management Committee for approval. The Project Plan shall be the overall plan
for development, construction, completion, financing, leasing and operation of
the Project, 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 construct and
operate the Project, including, but not limited to, all permits and
approvals.
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(iii) All cost estimates for development and operating
expenses, including a construction budget and pro forma income
projections, which cost estimates shall include estimates of required
project funding.
(vi) The final terms of the construction contract.
(v) A comprehensive insurance program for the Venture and
the Project.
(vi) The final terms of the architectural services
contract for the Project.
(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 development of the Project.
(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 AND REIMBURSEMENT OF VENTURERS.
3.4.1 No Compensation. Except as provided in Sections 3.4.2 and
3.4.3 herein or hereafter Approved by the Management Committee, 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.
3.4.2 Initial Advances. Goldcoast shall receive prior to the
commencement of operations ("Initial Advances") an advance against its Net Cash
Flow distributions of $20,000 per month, provided, that in the event
construction of the Project is not completed by July 1, 1998, the parties agree
to discuss future payments, if any. Commencement of Operations shall be
defined as the day the Joint Venture conducts its first revenue-generating
cruise. Prior to the Commencement of Operations, Goldcoast may seek other
compensation, which shall offset its monthly advances. Repayment of Initial
Advances shall come from net cash flow distributions and shall be payable out
of Goldcoast's distribution provided for in Section 2.6.3. hereof beginning
with the first quarter after the commencement of operations. Initial Advances
shall be reflected as a reduction in Goldcoast's capital account and repaid in
accordance with the following:
(a) If Net Cash Flow is $450,000 or less, repayment of Initial
Advances may be deferred by Goldcoast until the Joint Venture receives Net Cash
Flow greater than $450,000 for any subsequent quarter;
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(b) If Net Cash Flow is greater than $450,000 but less than
$750,000 during the quarter, Goldcoast shall repay the Joint Venture in equal
quarterly installments over 12 quarters;
(c) If Net Cash Flow is $750,000 or greater, but less than
$1,000,000, during the quarter, the Joint Venture shall be repaid in equal
quarterly installments over 8 quarters; and
(d) If Net Cash Flow is $1,000,000 or greater during the quarter,
the Joint Venture shall be repaid in equal quarterly installments over 4
quarters.
The payment schedule shall be adjusted quarterly. Notwithstanding any
of the above, the repayment of Initial Advances computed in (a) through (d)
above shall not reduce Goldcoast's quarterly distribution of Net Cash Flow
below $90,000. Thus, the repayment of Initial Advances shall be reduced to an
amount that results in a minimum distribution of Net Cash Flow to Goldcoast of
$90,000 per quarter.
3.4.3. Advances to Goldcoast after the Commencement of Operations.
Advances made to Goldcoast after the Commencement of Operations shall be
$30,000 per month and shall be reflected as a reduction in its capital account.
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, the
Construction 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, the Construction 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
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(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 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. Notwithstanding the above, Goldcoast
hereby grants Concorde a right of first refusal with respect to any transaction
involving or relating to the ownership, operation or management of a commercial
gaming vessel which is located either within the State of Florida or is based,
located or operated on land in or adjacent to Florida, other than Goldcoast's
existing Fort Lauderdale project.
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.
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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.
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 Concorde's annual audit, the Joint Venture shall
allow, and provide assistance to, Concorde'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
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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 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.
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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.
Section 6.2 PERMITTED TRANSFERS BY THE VENTURERS.
6.2.1 Transfers by Concorde. Notwithstanding the provisions of
Subsection 6.1, Concorde may without the consent of the other Venturer from
time to time, and at any time transfer, its interest in the Joint Venture to a
subsidiary of Concorde, or to a subsidiary of such subsidiary, or from such
subsidiary or sub-subsidiary back to Concorde 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
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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 Project or the Additional Projects 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.
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
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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
Concorde 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
Concorde's interest in the Joint Venture, provided such a sale is upon the same
terms and conditions as received by Concorde. Each Venturer shall grant the
other a right of first negotiation on its interest in the Joint Venture,
exercisable 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.
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 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
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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.
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;
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(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;
(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.
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Section 7.2 CONCORDE'S FAILURE TO MAKE CAPITAL CONTRIBUTION.
Notwithstanding any of the above, if Concorde fails to make its
minimum capital contribution on a timely basis, Goldcoast shall have the right
to solicit other individuals and/or entities for the purpose of buying out
Concorde's Joint Venture Interest. In such an event, Concorde agrees to sell
its Joint Venture interest for a cash.
Section 7.3 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 7.3 hereof;
(b) the Venturers mutually agree to terminate the Joint Venture;
(c) the Joint Venture ceases to maintain any interest in the
Project or the Additional Projects;
(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 7.4 ELECTION OF NON-DEFAULTING VENTURER.
7.4.1 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 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.
7.4.2 Election to Dissolve. If the non-Defaulter does not elect to
acquire the entire interest of the Defaulter as set forth in Subsection 7.4.1,
the non-Defaulter may elect (i) to dissolve and terminate the Joint Venture
pursuant to Section 7.3 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 7.4 shall
continue until such non-Defaulter elects to exercise its right to terminate the
Joint Venture as provided in this Subsection 7.4.2.
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Section 7.5 PROCEDURE IN DISSOLUTION AND LIQUIDATION.
7.5.1 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.
7.5.2 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.
7.5.3 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 Project, 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 Project 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.
7.5.4 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 7.4.5, pay to the Joint Venture
in cash for distribution as provided in this Subsection 7.5.5 an amount equal
to the negative balance in said Venturer's Capital Account:
(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 Concorde's Capital Contribution reduced by
distributions paid,
(d) To the Venturers in payment of any positive balances remaining
in their Capital Accounts .
7.5.5 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
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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 7.6 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 Concorde upon termination of the Joint
Venture. Unless otherwise Approved by the other Venturer, Concorde 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 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 Project or other Joint Venture assets, and
the prospects that the income from the Joint Venture assets would be sufficient
to
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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 members of an investment banking firm. 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
Project 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 7.3, 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..5.5; provided, however, that all references to the net fair 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
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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:
Concorde Gaming Corporation Goldcoast Entertainment Cruises, Inc.
X/x Xxxxx X. Xxxx X/x Xxxxx Xxxxxxxx
0000 Lien Street 0000 Xxxxxxxxx Xxxx
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.
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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.
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.
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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.
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.
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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.
CONCORDE GAMING CORPORATION,
a Colorado corporation
By
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Its
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GOLDCOAST ENTERTAINMENT CRUISES,
INC., a Florida corporation
By
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Its
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