Exhibit 10.10
WARRANTY XXXX OF SALE AND TRANSFER AGREEMENT
THIS WARRANTY XXXX OF SALE AND TRANSFER AGREEMENT ("Transfer Agreement") is
executed and delivered on July 6, 2004, by ITG Vegas, Inc., a Nevada corporation
and ITG Palm Beach, LLC, a Delaware limited liability company (collective the
"Seller"), in favor of PDS Gaming Corporation, a Minnesota corporation (together
with its successors and assigns, "Purchaser").
1. In consideration of $500,000.00 ("Purchase Price") and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Seller does hereby bargain, sell, convey and grant unto Purchaser,
its successors and assigns, all of the assets and personal property of Seller
identified on the Attachment "A" attached hereto and incorporated herein (the
"Assets").
2. Seller hereby represents and warrants to Purchaser, its successors and
assigns as follows:
a. ITG Vegas, Inc., is a Nevada corporation, duly organized, validly
existing and in good standing under the laws of the State of Nevada, and
has all corporate power and authority to transact business as it is now
being conducted; and that ITG Palm Beach, LLC, is a Delaware limited
liability company, duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has all legal power and
authority to transact business as it is now being conducted.
b. Seller is the lawful owner of the Assets, has good title and right
to sell and transfer the same, and that all such Assets and property are
transferred to Purchaser free and clear of all liens, security interests
and encumbrances whatsoever. Seller has not made any prior sale or
assignment of the Assets (or any portion of them) to any other person or
entity.
c. Seller has full legal right and corporate or limited liability
company power and authority to enter into and deliver this Transfer
Agreement and to consummate the transactions contemplated by this Transfer
Agreement, the execution and delivery of this Transfer Agreement has been
approved by the necessary corporate or other action, and none of the
Seller's obligations hereunder will result in any breach of any provision
of any contract, agreement or instrument to which Seller is a party, or by
which Seller or its assets are bound.
d. This Transfer Agreement is a legal, valid and binding obligation of
Seller enforceable against Seller in accordance with its terms.
e. Seller has received all federal, state and local consents and all
consents of any private persons or entities necessary to execute and
deliver this Transfer Agreement, and to consummate the transactions
contemplated hereby. Seller represents that no additional approval,
consent, exemption or other action by, or notice to or filing with, any
governmental authority or private individuals by Seller is necessary in
connection with
the execution, delivery, performance or enforcement of this Transfer
Agreement or any instrument or agreement required hereunder, except as has
been obtained prior to the date hereof.
f. There is no action or proceeding pending or, to Seller's knowledge,
threatened, against the Assets, which may adversely affect the value of the
Assets or the enforceability of the Transfer Agreement.
3. This Transfer Agreement constitutes an irrevocable, direct and absolute
true sale at law of the Assets and not a grant of a security interest in such
Assets by the Seller to the Purchaser to secure a debt or other obligation of
the Seller. However, if notwithstanding the intent of the parties, a court of
competent jurisdiction holds that the conveyance of the Assets is not a true
sale of the Assets from the Seller to the Purchaser, then (a) this Transfer
Agreement also shall be deemed to be and hereby is a security agreement within
the meaning of the Uniform Commercial Code as in effect in the States of Nevada
and Delaware, respectively, (b) this Transfer Agreement and the Seller's books
and records shall evidence the Purchase Price paid by Purchaser, and (c) the
conveyance by the Seller provided for in this Transfer Agreement shall be deemed
to be, and the Seller hereby grants to the Purchaser a security interest in and
to, all of the Seller's right, title, and interest in Assets to secure all
obligations of the Seller to the Purchaser now or hereafter arising under this
Transfer Agreement, including, without limitation, loans to the Seller in the
amount of the Purchase Price. Seller hereby authorizes Purchaser to file uniform
commercial code financing statements against Seller to provide evidence of the
transfer of the Assets, as well as the precautionary security interest granted
by Seller to Purchaser hereunder.
4. For the purposes of accounting treatment under FASB 140 it is the intent
of the parties hereto that upon payment of the Purchase Price by Purchaser to
Seller and delivery of the Assets by Seller to Purchaser that:
a. The Assets will be isolated from Seller and its creditors, even in
bankruptcy or other receivership;
b. Purchaser shall have obtained all right, title and interest in and
to the Assets free from any and all conditions that constrain Purchaser
from taking advantage of its right to pledge or exchange the Assets; and
c. Seller will no longer maintain effective control over the Assets
and no agreement exists that both entitles and obligates the Seller to
repurchase or redeem the Assets, nor shall Seller have the ability to
unilaterally cause the Purchaser or any assignee of Purchaser, to return
any part of the Assets.
5. Seller hereby covenants and agrees to indemnify, defend, save and hold
Purchaser and its successors, assigns, affiliates, employees, officers,
directors and financiers free, clear and harmless from and against any and all
liabilities, losses, costs, expenses (including reasonable attorneys' fees),
damages, actions, suits, debts, judgments, claims, administration of claims,
liens, demands and obligations of any and kind, nature, character and
description, known or unknown, accrued or not yet accrued, whether anticipated
or unanticipated caused by, resulting
from, or in any way connected with any breach of any representation, warranty or
covenant of Seller under this Transfer Agreement.
6. Seller further hereby covenants and agrees with Purchaser that Seller
will execute and deliver to Purchaser all such further instruments of
conveyance, assignment and transfer as Purchaser shall reasonably request from
time to time to effectuate the transfer of the Assets to Purchaser, free and
clear of any and all liens, claims and encumbrances.
7. This Transfer Agreement may be executed in as many counterparts as may
be deemed necessary and convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed to be an
original, but all such counterparts together shall constitute but one and the
same document.
8. The parties hereto agree that execution of a facsimile of this Transfer
Agreement shall have the same force and effect as an executed original and shall
be binding upon the parties hereto. The Parties hereto agree that execution of a
facsimile of this Transfer Agreement and any documents, agreements or
instruments incorporated herein by reference shall have the same force and
effect as an executed original and shall be binding upon the Parties.
9. This Transfer Agreement shall be construed and enforced according to the
laws of the State of Nevada, and the parties hereto consent to the jurisdiction
of the state and federal courts located in the State of Nevada.
* * *
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Transfer Agreement as of the date first above written.
SELLER:
ITG Vegas, Inc. ITG Palm Beach, LLC
By:/S/Xxxxxxx X. Xxxxxx By:ITG Vegas Inc, Sole Member
Name: Xxxxxxx X. Xxxxxx By:/s/Xxxxxxx X. Xxxxxx
Its: President Its: President
PURCHASER:
PDS Gaming Corporation
By:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Its: President
Attachment A to
Warranty Xxxx of Sale and Transfer Agreement
