EXCHANGE AGREEMENT
Between
TROPICAL LEISURE RESORTS, INC.
(Formerly Maxum Development, Inc.)
and
AMBASSADOR CASINO CRUISES, INC.
Dated September 24, 2001
TABLE OF CONTENTS
ARTICLE I REPRESENTATIONS, COVENANTS, AND WARRANTIES OF AMBASSADOR CASINO
CRUISES, INC.
1.01 Organization 1
1.02 Capitalization 1
1.03 Subsidiaries and Predecessor Corporations 1
1.04 Financial Statements 1
1.05 Information 2
1.06 Options and Warrants 2
1.07 Absence of Certain Changes or Events 2
1.08 Title and Related Matters 3
1.09 Litigation and Proceedings 3
1.10 Contracts 3
1.11 Material Contract Defaults 4
1.12 No Conflict With Other Instruments 4
1.13 Governmental Authorizations 4
1.14 Compliance With Laws and Regulations 4
1.15 Insurance 4
1.16 Approval of Agreement 4
1.17 Material Transactions or Affiliations 4
1.18 Labor Relations 4
1.19 Grill Concepts Schedules 5
1.20 Bank Accounts; Power of Attorney 5
1.21 Valid Obligation 6
ARTICLE II REPRESENTATIONS, COVENANTS, AND WARRANTIES OF TROPICAL LEISURE
RESORTS, INC.
2.01 Organization 6
2.02 Capitalization 6
2.03 Subsidiaries and Predecessor Corporations 6
2.04 Securities Filings; Financial Statements 6
2.05 Information 7
2.06 Options and Warrants 7
2.07 Absence of Certain Changes or Events 7
2.08 Title and Related Matters 8
2.09 Litigation and Proceedings 8
2.10 Contracts 8
2.11 Material Contract Defaults 9
2.12 No Conflict With Other Instruments 9
2.13 Governmental Authorizations 9
2.14 Compliance With Laws and Regulations 9
2.15 Insurance 9
2.16 Approval of Agreement 9
2.17 Continuity of Business Enterprises 9
2.18 Material Transactions or Affiliations 9
2.19 Labor Relations 9
2.20 Tropical Schedules 10
2.21 Bank Accounts; Power of Attorney 10
2.22 Valid Obligation 11
ARTICLE III PLAN OF EXCHANGE
3.01 The Exchange 11
3.02 Anti-Dilution 11
3.03 Closing 11
3.04 Closing Events 11
3.05 Termination 11
ARTICLE IV SPECIAL COVENANTS
4.01 Access to Properties and Records 13
4.02 Delivery of Books and Records 13
4.03 Third Party Consents and Certificates 13
4.04 Name Change and Increase in Authorized Capital 13
4.05 Tropical Shareholder Meeting 13
4.06 Consent of NCC Shareholders 13
4.07 Designation of Directors and Officers 13
4.08 Exclusive Dealing Rights 13
4.09 Actions Prior to Closing 14
4.10 Sales Under Rule 144 or 145, If Applicable 15
4.11 Indemnification 15
4.12 Limitation of Subsequent Corporate Actions 16
4.13 Indemnification of Subsequent Corporate Actions 16
ARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS OF Maxum
5.01 Accuracy of Representations and Performance of
Covenants 16
5.02 Officer's Certificates 16
5.03 No Material Adverse Change 17
5.04 Good Standing 17
5.05 Approval by NCC Shareholders 17
5.06 No Governmental Prohibitions 17
5.07 Consents 17
5.08 Other Items 17
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF NCC AND THE NCC SHAREHOLDERS
6.01 Accuracy of Representations and Performance of
Covenants 17
6.02 Officer's Certificate 18
6.03 No Material Adverse Change 18
6.04 Good Standing 18
6.05 No Governmental Prohibition 18
6.06 Consents 18
6.07 Other Items 18
ARTICLE VII MISCELLANEOUS
7.01 Brokers 18
7.02 Governing Law 18
7.03 Notices 18
7.04 Attorney's Fees 19
7.05 Confidentiality 19
7.06 Public Announcements and Filings 19
7.07 Schedules; Knowledge 19
7.08 Third Party Beneficiaries 19
7.09 Expenses 19
7.10 Entire Agreement 19
7.11 Survival; Termination 19
7.12 Counterparts 19
7.13 Amendment or Waiver 20
7.14 Best Efforts 20
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement") is
entered into as of this day of September, 2001 by and between TROPICAL LEISURE
RESORTS, INC., a Nevada corporation (hereinafter referred to as "Tropical")and
AMBASSADOR CASINO CRUISES, INC., a Florida corporation (hereinafter referred to
as "Ambassador"), upon the following premises:
Premises
WHEREAS, Tropical is a publicly held corporation organized under the laws
of the State of Nevada;
WHEREAS, Ambassador is a limited liability corporation organized under the
laws of the State of Florida;
WHEREAS, management of the constituent corporations have determined that it
is in the best interest of the parties that Tropical acquire 100% of the issued
and outstanding securities of Ambassador in exchange for the issuance of certain
shares of Tropical (the "Exchange") and Ambassador agreed to use its best
efforts to cause its shareholders (the "Ambassador Shareholders") to exchange
their securities of Ambassador on the terms described herein; and
WHEREAS, Tropical and Ambassador desire to set forth the terms of the
Exchange, which is intended to constitute a tax-free reorganization pursuant to
the provisions of Section 368(a)(1)(B) of the Internal Revenue Code of 1986.
Agreement
NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF AMBASSADOR
As an inducement to, and to obtain the reliance of Tropical, except as set
forth on the Ambassador Schedules (as hereinafter defined), Ambassador
represents and warrants as follows:
Section 1.01 Organization. Ambassador is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Florida
and has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, including
qualification to do business as a foreign corporation in the states or countries
in which the character and location of the assets owned by it or the nature of
the business transacted by it requires qualification, except where failure to be
so qualified would not have a material adverse effect on its business. Included
in the Ambassador Schedules are complete and correct copies of the articles of
incorporation, and bylaws of Ambassador as in effect on the date hereof. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of Ambassador'
articles of incorporation or bylaws. Ambassador has taken all actions required
by law, its articles of incorporation, or otherwise to authorize the execution
and delivery of this Agreement. Ambassador has full power, authority, and legal
right and has taken all action required by law, its articles of incorporation,
and otherwise to consummate the transactions herein contemplated.
Section 1.02 Capitalization. The authorized capitalization of Ambassador
consists of 50,000shares of common stock, $.01 par value, of which 2 shares are
currently issued and outstanding. All issued and outstanding shares are legally
issued, fully paid, and non-assessable and not issued in violation of the
preemptive or other rights of any person.
Section 1.03 Subsidiaries and Predecessor Corporations. Ambassador does not
have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation, except as
disclosed in Schedule 1.03. For purposes hereinafter, the term "Ambassador" also
includes those subsidiaries, if any, set forth on Schedule 1.03.
Section 1.04 Financial Statements.
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(a) Included in the Ambassador Schedules are (i) the unaudited balance
sheets and the related statements of operations of Ambassador as of and
for the six months ended June 30, 2001, and (ii) the audited balance
sheets of Ambassador as successor in interest as of December 31, 1999
and 2000, and the related audited statements of operations,
stockholders' equity and cash flows for the two fiscal years ended
December 31, 1999 and 2000 together with the notes to such statements
and the opinion of Xxxxxxx, Xxxxx & Xxxxx, LLP, independent certified
public accountants, with respect thereto.
(b) All such financial statements have been prepared in accordance with
generally accepted accounting principles. The Ambassador balance sheets
present a true and fair view as of the dates of such balance sheets of
the financial condition of Ambassador. Ambassador did not have, as of
the dates of such balance sheets, except as and to the extent reflected
or reserved against therein, any liabilities or obligations (absolute
or contingent) which should be reflected in the balance sheets or the
notes thereto, prepared in accordance with generally accepted
accounting principles, and all assets reflected therein are properly
reported and present fairly the value of the assets of Ambassador in
accordance with generally accepted accounting principles.
(c) Ambassador has no liabilities with respect to the payment of any
federal, state, county, local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not
yet due and payable.
(d) Ambassador has filed all state, federal or local income and/or
franchise tax returns required to be filed by it from inception to the
date hereof. Each of such income tax returns reflects the taxes due for
the period covered thereby, except for amounts which, in the aggregate,
are immaterial.
(e) The books and records, financial and otherwise, of Ambassador are
in all material respects complete and correct and have been maintained
in accordance with good business and accounting practices.
(f) All of Ambassador' assets are reflected on its financial
statements, and, except as set forth in the Ambassador Schedules or the
financial statements of Ambassador or the notes thereto, Ambassador has
no material liabilities, direct or indirect, matured or unmatured,
contingent or otherwise.
Section 1.05 Information. The information concerning Ambassador set
forth in this Agreement and in the Ambassador Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading. In
addition, Ambassador has fully disclosed in writing to Tropical (through this
Agreement or the Ambassador Schedules) all information relating to matters
involving Ambassador or its assets or its present or past operations or
activities which (i) indicated or may indicate, in the aggregate, the existence
of a greater than $25,000 liability or diminution in value, (ii) have led or may
lead to a competitive disadvantage on the part of Ambassador or (iii) either
alone or in aggregation with other information covered by this Section,
otherwise have led or may lead to a material adverse effect on the transactions
contemplated herein or on Ambassador, its assets, or its operations or
activities as presently conducted or as contemplated to be conducted after the
Closing Date, including, but not limited to, information relating to
governmental, employee, environmental, litigation and securities matters and
transactions with affiliates.
Section 1.06 Options or Warrants. There are no existing options,
warrants, calls, or commitments of any character relating to the authorized and
unissued Ambassador common stock, except options, warrants, calls or
commitments, if any, to which Ambassador is not a party and by which it is not
bound.
Section 1.07 Absence of Certain Changes or Events. Except as set forth
in this Agreement or the Ambassador Schedules, since June 30, 2001:
(a) there has not been (i) any material adverse change in the business,
operations, properties, assets, or condition of Ambassador or (ii) any
damage, destruction, or loss to Ambassador (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or condition of Ambassador;
(b) Ambassador has not (i) amended its articles of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make, any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are outside of the ordinary course of
business or material considering the business of Ambassador; (iv) made
any material change in its method of management, operation or
accounting; (v) entered into any other material transaction other than
sales in the ordinary course of its business; (vi) made any accrual or
arrangement for payment of bonuses or special compensation of any kind
or any severance or termination pay to any present or former officer or
employee; (vii) increased the rate of compensation payable or to become
payable by it to any of its officers or directors or any of its
salaried employees whose monthly compensation exceeds $1,000; or (viii)
made any increase in any profit sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement made to, for, or with its officers, directors,
or employees;
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(c) Ambassador has not (i) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability
(absolute or contingent) except as disclosed herein and except
liabilities incurred in the ordinary course of business; (ii) paid or
agreed to pay any material obligations or liability (absolute or
contingent) other than current liabilities reflected in or shown on the
most recent Ambassador balance sheet, and current liabilities incurred
since that date in the ordinary course of business and professional and
other fees and expenses in connection with the preparation of this
Agreement and the consummation of the transactions contemplated hereby;
(iii) sold or transferred, or agreed to sell or transfer, any of its
assets, properties, or rights (except assets, properties, or rights not
used or useful in its business which, in the aggregate have a value of
less than $1,000), or canceled, or agreed to cancel, any debts or
claims (except debts or claims which in the aggregate are of a value of
less than $1,000); (iv) made or permitted any amendment or termination
of any contract, agreement, or license to which it is a party if such
amendment or termination is material, considering the business of
Ambassador; or (v) issued, delivered, or agreed to issue or deliver any
stock, bonds or other corporate securities including debentures
(whether authorized and unissued or held as treasury stock); and
(d) to the best knowledge of Ambassador, Ambassador has not become
subject to any law or regulation which materially and adversely
affects, or in the future may adversely affect the business,
operations, properties, assets, or condition of Ambassador.
Section 1.08 Title and Related Matters. Ambassador has good and
marketable title to all of its properties, inventory, interests in properties,
and assets, real and personal, which are reflected in the most recent Ambassador
balance sheet or acquired after that date (except properties, inventory,
interests in properties, and assets sold or otherwise disposed of since such
date in the ordinary course of business) free and clear of all liens, pledges,
charges, or encumbrances except (a) statutory liens or claims not yet
delinquent; (b) such imperfections of title and easements as do not and will not
materially detract from or interfere with the present or proposed use of the
properties subject thereto or affected thereby or otherwise materially impair
present business operations on such properties; and (c) as described in the
Ambassador Schedules. Except as set forth in the Ambassador Schedules,
Ambassador owns, free and clear of any liens, claims, encumbrances, royalty
interests, or other restrictions or limitations of any nature whatsoever, any
and all products it is currently manufacturing, including the underlying
technology and data, and all procedures, techniques, marketing plans, business
plans, methods of management, or other information utilized in connection with
Ambassador' business. Except as set forth in the Ambassador Schedules, no third
party has any right to, and Ambassador has not received any notice of
infringement of or conflict with asserted rights of others with respect to any
product, technology, data, trade secrets, know-how, propriety techniques,
trademarks, service marks, trade names, or copyrights which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a materially adverse effect on the business, operations, financial
condition, income, or business prospects of Ambassador or any material portion
of its properties, assets, or rights.
Section 1.09 Litigation and Proceedings. Except as set forth in the
Ambassador Schedules, there are no actions, suits, proceedings, or
investigations pending or, to the knowledge of Ambassador after reasonable
investigation, threatened by or against Ambassador or affecting Ambassador or
its properties, at law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of any
kind. Ambassador does not have any knowledge of any material default on its part
with respect to any judgment, order, injunction, decree, award, rule, or
regulation of any court, arbitrator, or governmental agency or instrumentality
or of any circumstances which, after reasonable investigation, would result in
the discovery of such a default.
Section 1.10 Contracts.
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(a) Except as included or described in the Ambassador Schedules, there
are no "material" contracts, agreements, franchises, license
agreements, debt instruments or other commitments to which Ambassador
is a party or by which it or any of its assets, products, technology,
or properties are bound other than those incurred in the ordinary
course of business (as used in this Agreement, a "material" contract,
agreement, franchise, license agreement, debt instrument or commitment
is one which (i) will remain in effect for more than six (6) months
after the date of this Agreement or (ii) involves aggregate obligations
of at least fifty thousand dollars ($50,000));
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(b) All contracts, agreements, franchises, license agreements, and
other commitments to which Ambassador is a party or by which its
properties are bound and which are material to the operations of
Ambassador taken as a whole are valid and enforceable by Ambassador in
all respects, except as limited by bankruptcy and insolvency laws and
by other laws affecting the rights of creditors generally;
(c) Ambassador is not a party to or bound by, and the properties of
Ambassador are not subject to any contract, agreement, other commitment
or instrument; any charter or other corporate restriction; or any
judgment, order, writ, injunction, decree, or award which materially
and adversely affects, the business operations, properties, assets, or
condition of Ambassador; and
(d) Except as included or described in the Ambassador Schedules or
reflected in the most recent Ambassador balance sheet, Ambassador is
not a party to any oral or written (i) contract for the employment of
any officer or employee which is not terminable on 30 days, or less
notice; (ii) profit sharing, bonus, deferred compensation, stock
option, severance pay, pension benefit or retirement plan, (iii)
agreement, contract, or indenture relating to the borrowing of money,
(iv) guaranty of any obligation, other than one on which Ambassador is
a primary obligor, for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of obligations
which, in the aggregate do not exceed more than one year or providing
for payments in excess of $25,000 in the aggregate; (vi) collective
bargaining agreement; or (vii) agreement with any present or former
officer or director of Ambassador.
Section 1.11 Material Contract Defaults. Ambassador is not in default
in any material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets or condition of Ambassador and there is no event of default
in any material respect under any such contract, agreement, lease, or other
commitment in respect of which Ambassador has not taken adequate steps to
prevent such a default from occurring.
Section 1.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
an event of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which Ambassador is a party or to which any of its
properties or operations are subject.
Section 1.13 Governmental Authorizations. Except as set forth in the
Ambassador Schedules, Ambassador has all licenses, franchises, permits, and
other governmental authorizations that are legally required to enable it to
conduct its business in all material respects as conducted on the date hereof.
Except for compliance with federal and state securities and corporation laws, as
hereinafter provided, no authorization, approval, consent, or order of, or
registration, declaration, or filing with, any court or other governmental body
is required in connection with the execution and delivery by Ambassador of this
Agreement and the consummation by Ambassador of the transactions contemplated
hereby.
Section 1.14 Compliance With Laws and Regulations. Except as set forth
in the Ambassador Schedules, to the best of its knowledge Ambassador has
complied with all applicable statutes and regulations of any federal, state, or
other governmental entity or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets, or condition of Ambassador or except to the
extent that noncompliance would not result in the occurrence of any material
liability for Ambassador.
Section 1.15 Insurance. All of the properties of Ambassador are fully
insured for their full replacement cost.
Section 1.16 Approval of Agreement. The board of directors of
Ambassador has authorized the execution and delivery of this Agreement by
Ambassador and has approved this Agreement and the transactions contemplated
hereby, and will recommend to the Ambassador Shareholders that the Exchange be
accepted by them.
Section 1.17 Material Transactions or Affiliations. Set forth in the
Ambassador Schedules is a description of every contract, agreement, or
arrangement between Ambassador and any predecessor and any person who was at the
time of such contract, agreement, or arrangement an officer, director, or person
owning of record, or known by Ambassador to own beneficially, 5% or more of the
issued and outstanding common stock of Ambassador and which is to be performed
in whole or in part after the date hereof or which was entered into not more
than three years prior to the date hereof. Except as disclosed in the Ambassador
Schedules or otherwise disclosed herein, no officer, director, or 5% shareholder
of Ambassador has, or has had since inception of Ambassador, any known interest,
direct or indirect, in any transaction with Ambassador which was material to the
business of Ambassador. There are no commitments by Ambassador, whether written
or oral, to lend any funds, or to borrow any money from, or enter into any other
transaction with, any such affiliated person.
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Section 1.18 Labor Relations. Ambassador has not had work stoppage
resulting from labor problems. To the knowledge of Ambassador, no union or other
collective bargaining organization is organizing or attempting to organize any
employee of Ambassador.
Section 1.19 Ambassador Schedules. Ambassador has delivered to Tropical
the following schedules, which are collectively referred to as the "Ambassador
Schedules" and which consist of separate schedules dated as of the date of
execution of this Agreement, all certified by the chief executive officer of
Ambassador as complete, true, and correct as of the date of this Agreement in
all material respects:
(a) a schedule containing complete and correct copies of the articles of
incorporation, and bylaws of Ambassador in effect as of the date of this
Agreement;
(b) a schedule containing the financial statements of Ambassador identified
in paragraph 1.04(a);
(c) a Schedule 1.19(c) containing a list indicating the name and address of
each shareholder of Ambassador together with the number of shares owned by
him, her or it;
(d) a schedule containing a description of all real property owned by
Ambassador, together with a description of every mortgage, deed of trust,
pledge, lien, agreement, encumbrance, claim, or equity interest of any
nature whatsoever in such real property;
(e) copies of all licenses, permits, and other governmental authorizations
(or requests or applications therefor) pursuant to which Ambassador carries
on or proposes to carry on its business (except those which, in the
aggregate, are immaterial to the present or proposed business of
Ambassador);
(f) a schedule listing the accounts receivable and notes and other
obligations receivable of Ambassador as of June 30, 2001, or thereafter
other than in the ordinary course of business of Ambassador, indicating the
debtor and amount, and classifying the accounts to show in reasonable
detail the length of time, if any, overdue, and stating the nature and
amount of any refunds, set offs, reimbursements, discounts, or other
adjustments, which are in the aggregate material and due to or claimed by
such debtor;
(g) a schedule listing the accounts payable and notes and other obligations
payable of Ambassador as of June 30, 2001, or that arose thereafter other
than in the ordinary course of the business of Ambassador, indicating the
creditor and amount, classifying the accounts to show in reasonable detail
the length of time, if any, overdue, and stating the nature and amount of
any refunds, set offs, reimbursements, discounts, or other adjustments,
which in the aggregate are material and due to or claimed by Ambassador
respecting such obligations;
(h) a schedule setting forth a description of any material adverse change
in the business, operations, property, inventory, assets, or condition of
Ambassador since June 30, 2001, required to be provided pursuant to section
1.07 hereof; and
(i) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Ambassador
Schedules by Sections 1.01 through 1.18.
Ambassador shall cause the Ambassador Schedules and the instruments and
data delivered to Tropical hereunder to be promptly updated after the date
hereof up to and including the Closing Date.
It is understood and agreed that not all of the schedules referred to
above have been completed or are available to be furnished by Ambassador.
Ambassador shall have until October 31, 2001 to provide such schedules. If
Ambassador cannot or fails to do so, or if Tropical acting reasonably finds any
such schedules or updates provided after the date hereof to be unacceptable
according to the criteria set forth below, Tropical may terminate this Agreement
by giving written notice to Ambassador within five (5) days after the schedules
or updates were due to be produced or were provided. For purposes of the
foregoing, Tropical may consider a disclosure in the Ambassador Schedules to be
"unacceptable" only if that item would have a material adverse impact on the
financial statements listed in Section 1.04(a), taken as a whole.
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Section 1.20 Bank Accounts; Power of Attorney. Set forth in Schedule
1.20 is a true and complete list of (a) all accounts with banks, money market
mutual funds or securities or other financial institutions maintained by
Ambassador within the past twelve (12) months, the account numbers thereof, and
all persons authorized to sign or act on behalf of Ambassador, (b) all safe
deposit boxes and other similar custodial arrangements maintained by Ambassador
within the past twelve (12) months, and (c) the names of all persons holding
powers of attorney from Ambassador or who are otherwise authorized to act on
behalf of Ambassador with respect to any matter, other than its officers and
directors, and a summary of the terms of such powers or authorizations.
Section 1.21 Valid Obligation. This Agreement and all agreements and
other documents executed by Ambassador in connection herewith constitute the
valid and binding obligation of Ambassador, enforceable in accordance with its
or their terms, except as may be limited by bankruptcy, insolvency, moratorium
or other similar laws affecting the enforcement of creditors' rights generally
and subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF TROPICAL
As an inducement to, and to obtain the reliance of Ambassador and the
Ambassador Shareholders, except as set forth in the Tropical Schedules (as
hereinafter defined), Tropical represents and warrants as follows:
Section 2.01 Organization. Tropical is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Nevada and
has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets, to carry on its
business in all material respects as it is now being conducted, and except where
failure to be so qualified would not have a material adverse effect on its
business, there is no jurisdiction in which it is not qualified in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification. Included in the Tropical Schedules are
complete and correct copies of the certificate of incorporation and bylaws of
Tropical as in effect on the date hereof. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, violate any provision of Tropical's certificate of incorporation or
bylaws. Tropical has taken all action required by law, its certificate of
incorporation, its bylaws, or otherwise to authorize the execution and delivery
of this Agreement, and Tropical has full power, authority, and legal right and
has taken all action required by law, its certificate of incorporation, bylaws,
or otherwise to consummate the transactions herein contemplated.
Section 2.02 Capitalization. Tropical's authorized capitalization
consists of 100,000,000 shares of common stock, par value $.001 of which
7,071,492 shares are issued and outstanding (the "Original Tropical Shares") and
5,000,000 shares of preferred stock, $.001 par value of which none are issued
and outstanding. All issued and outstanding shares are legally issued, fully
paid, and non-assessable and not issued in violation of the preemptive or other
rights of any person.
Section 2.03 Subsidiaries and Predecessor Corporations. Tropical does
not have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation, except as
disclosed in Schedule 2.03. For purposes hereinafter, the term "Tropical" also
includes those subsidiaries, if any, set forth on Schedule 2.03.
Section 2.04 Securities Filings; Financial Statements.
(a) For at least the past twelve months Tropical has timely filed all
forms, reports and documents required to be filed with the Securities
and Exchange Commission, and has heretofore delivered to Ambassador, in
the form filed with the Commission, (i) all quarterly and annual
reports on Forms 10-QSB and 10-KSB filed since June 30, 1999, (ii) all
other reports filed by Tropical with the Securities and Exchange
Commission since June 30, 1999 (collectively, the "SEC Reports") and
(iii) all comment letters from the Securities and Exchange Commission
with respect to the SEC Reports. The SEC Reports (i) were prepared in
accordance with the requirements of the Securities Exchange Act of 1934
or the Securities Act of 1933, as appropriate, and (ii) did not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
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(b) Included in the Tropical Schedules are (i) the unaudited balance
sheets of Tropical and the related statements of operations and cash
flows as of and for the six months ended June 30, 2001 and (ii) the
audited balance sheets of Tropical as of December 31, 1999 and 2000,
and the related audited statements of operations, stockholders' equity
and cash flows for the two fiscal years ended December 31, 1999 and
December 31, 2000, together with the notes to such statements and the
opinion of ___________________________, independent certified public
accountants, with respect thereto, all as set forth in the SEC Reports.
(c) All such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved. The Tropical balance sheets present
fairly as of their respective dates the financial condition of
Tropical. As of the date of such balance sheets, except as and to the
extent reflected or reserved against therein, Tropical had no
liabilities or obligations (absolute or contingent) which should be
reflected in the balance sheets or the notes thereto prepared in
accordance with generally accepted accounting principles, and all
assets reflected therein are properly reported and present fairly the
value of the assets of Tropical, in accordance with generally accepted
accounting principles. The statements of operations, stockholders'
equity and cash flows reflect fairly the information required to be set
forth therein by generally accepted accounting principles.
(d) Tropical has no liabilities with respect to the payment of any
federal, state, county, local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not
yet due and payable.
(e) Tropical has timely filed all state, federal or local income and/or
franchise tax returns required to be filed by it from inception to the
date hereof. Each of such income tax returns reflects the taxes due for
the period covered thereby, except for amounts which, in the aggregate,
are immaterial.
(f) The books and records, financial and otherwise, of Tropical are in
all material aspects complete and correct and have been maintained in
accordance with good business and accounting practices.
(g) All of Tropical's assets are reflected on its financial statements,
and, except as set forth in the Tropical Schedules or the financial
statements of Tropical or the notes thereto, Tropical has no material
liabilities, direct or indirect, matured or unmatured, contingent or
otherwise.
Section 2.05 Information. The information concerning Tropical set forth
in this Agreement and the Tropical Schedules is complete and accurate in all
material respects and does not contain any untrue statements of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading. In addition,
Tropical has fully disclosed in writing to Ambassador (through this Agreement or
the Tropical Schedules) all information relating to matters involving Tropical
or its assets or its present or past operations or activities which (i)
indicated or may indicate, in the aggregate, the existence of a greater than
$25,000 liability or diminution in value, (ii) have led or may lead to a
competitive disadvantage on the part of Tropical or (iii) either alone or in
aggregation with other information covered by this Section, otherwise have led
or may lead to a material adverse effect on the transactions contemplated herein
or on Tropical, its assets, or its operations or activities as presently
conducted or as contemplated to be conducted after the Closing Date, including,
but not limited to, information relating to governmental, employee,
environmental, litigation and securities matters and transactions with
affiliates.
Section 2.06 Options or Warrants. There are no existing options, warrants,
calls, or commitments of any character relating to the authorized and unissued
stock of Tropical.
Section 2.07 Absence of Certain Changes or Events. Except as disclosed in
Exhibit 2.07, or permitted in writing by Ambassador, since the date of the most
recent Tropical balance sheet:
(a) there has not been (i) any material adverse change in the business,
operations, properties, assets or condition of Tropical or (ii) any
damage, destruction or loss to Tropical (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets or condition of Tropical;
(b) Tropical has not (i) amended its certificate of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make any payment
of dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem,
any of its capital stock; (iii) waived any rights of value which in the
aggregate are outside of the ordinary course of business or material
considering the business of Tropical; (iv) made any material change in
its method of management, operation, or accounting; (v) entered into
any transactions or agreements other than in the ordinary course of
business; (vi) made any accrual or arrangement for or payment of
bonuses or special compensation of any kind or any severance or
termination pay to any present or former officer or employee; (vii)
increased the rate of compensation payable or to become payable by it
to any of its officers or directors or any of its salaried employees
whose monthly compensation exceed $1,000; or (viii) made any increase
in any profit sharing, bonus, deferred compensation, insurance,
pension, retirement, or other employee benefit plan, payment, or
arrangement, made to, for or with its officers, directors, or
employees;
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(c) Tropical has not (i) granted or agreed to grant any options,
warrants, or other rights for its stock, bonds, or other corporate
securities calling for the issuance thereof; (ii) borrowed or agreed to
borrow any funds or incurred, or become subject to, any material
obligation or liability (absolute or contingent) except liabilities
incurred in the ordinary course of business; (iii) paid or agreed to
pay any material obligations or liabilities (absolute or contingent)
other than current liabilities reflected in or shown on the most recent
Tropical balance sheet and current liabilities incurred since that date
in the ordinary course of business and professional and other fees and
expenses in connection with the preparation of this Agreement and the
consummation of the transaction contemplated hereby; (iv) sold or
transferred, or agreed to sell or transfer, any of its assets,
properties, or rights (except assets, properties, or rights not used or
useful in its business which, in the aggregate have a value of less
than $1000), or canceled, or agreed to cancel, any debts or claims
(except debts or claims which in the aggregate are of a value less than
$1000); (v) made or permitted any amendment or termination of any
contract, agreement, or license to which it is a party if such
amendment or termination is material, considering the business of
Tropical; or (vi) issued, delivered or agreed to issue or deliver, any
stock, bonds, or other corporate securities including debentures
(whether authorized and unissued or held as treasury stock), except in
connection with this Agreement; and
(d) to the best knowledge of Tropical, it has not become subject to any
law or regulation which materially and adversely affects, or in the
future, may adversely affect, the business, operations, properties,
assets or condition of Tropical.
Section 2.08 Title and Related Matters. Tropical has good and
marketable title to all of its properties, inventory, interest in properties,
and assets, real and personal, which are reflected in the most recent Tropical
balance sheet or acquired after that date (except properties, inventory,
interest in properties, and assets sold or otherwise disposed of since such date
in the ordinary course of business), free and clear of all liens, pledges,
charges, or encumbrances except (a) statutory liens or claims not yet
delinquent; (b) such imperfections of title and easements as do not and will not
materially detract from or interfere with the present or proposed use of the
properties subject thereto or affected thereby or otherwise materially impair
present business operations on such properties; and (c) as described in the
Tropical Schedules. Except as set forth in the Tropical Schedules, Tropical
owns, free and clear of any liens, claims, encumbrances, royalty interests, or
other restrictions or limitations of any nature whatsoever, any and all products
it is currently manufacturing, including the underlying technology and data, and
all procedures, techniques, marketing plans, business plans, methods of
management, or other information utilized in connection with Tropical's
business. Except as set forth in the Tropical Schedules, no third party has any
right to, and Tropical has not received any notice of infringement of or
conflict with asserted rights of others with respect to any product, technology,
data, trade secrets, know-how, propriety techniques, trademarks, service marks,
trade names, or copyrights which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a materially
adverse effect on the business, operations, financial condition, income, or
business prospects of Tropical or any material portion of its properties,
assets, or rights.
Section 2.09 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or, to the knowledge Tropical after
reasonable investigation, threatened by or against Tropical or affecting
Tropical or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind except as disclosed in Schedule 2.09. Tropical has no
knowledge of any default on its part with respect to any judgement, order, writ,
injunction, decree, award, rule or regulation of any court, arbitrator, or
governmental agency or instrumentality or any circumstance which after
reasonable investigation would result in the discovery of such default.
Section 2.10 Contracts.
----------
(a) Tropical is not a party to, and its assets, products, technology
and properties are not bound by, any material contract, franchise,
license agreement, agreement, debt instrument or other commitments
whether such agreement is in writing or oral, except as disclosed in
Schedule 2.10.
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(b) All contracts, agreements, franchises, license agreements, and
other commitments to which Tropical is a party or by which its
properties are bound and which are material to the operations of
Tropical taken as a whole are valid and enforceable by Tropical in all
respects, except as limited by bankruptcy and insolvency laws and by
other laws affecting the rights of creditors generally;
(c) Tropical is not a party to or bound by, and the properties of
Tropical are not subject to any contract, agreement, other commitment
or instrument; any charter or other corporate restriction; or any
judgment, order, writ, injunction, decree, or award which materially
and adversely affects, the business operations, properties, assets, or
condition of Tropical; and
(d) Except as included or described in the Tropical Schedules or
reflected in the most recent Tropical balance sheet, Tropical is not a
party to any oral or written (i) contract for the employment of any
officer or employee which is not terminable on 30 days, or less notice;
(ii) profit sharing, bonus, deferred compensation, stock option,
severance pay, pension benefit or retirement plan, (iii) agreement,
contract, or indenture relating to the borrowing of money, (iv)
guaranty of any obligation, other than one on which Tropical is a
primary obligor, for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of obligations
which, in the aggregate do not exceed more than one year or providing
for payments in excess of $25,000 in the aggregate; (vi) collective
bargaining agreement; or (vii) agreement with any present or former
officer or director of Tropical.
Section 2.11 Material Contract Defaults. Tropical is not in default in
any material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets or condition of Tropical and there is no event of default in
any material respect under any such contract, agreement, lease, or other
commitment in respect of which Tropical has not taken adequate steps to prevent
such a default from occurring.
Section 2.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
a default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which
Tropical is a party or to which any of its assets or operations are subject.
Section 2.13 Governmental Authorizations. Tropical has all licenses,
franchises, permits, and other governmental authorizations, that are legally
required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities or corporation laws, as hereinafter provided, no authorization,
approval, consent or order of, of registration, declaration or filing with, any
court or other governmental body is required in connection with the execution
and delivery by Tropical of this Agreement and the consummation by Tropical of
the transactions contemplated hereby.
Section 2.14 Compliance With Laws and Regulations. To the best of its
knowledge, Tropical has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or condition of Tropical or
except to the extent that noncompliance would not result in the occurrence of
any material liability. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities authorities.
Section 2.15 Insurance. All of the properties of Tropical are fully
insured for their full replacement cost.
Section 2.16 Approval of Agreement. The board of directors of Tropical
has authorized the execution and delivery of this Agreement by Tropical and has
approved this Agreement and the transactions contemplated hereby and will
recommend to its shareholders that they approve this Agreement and the
transactions contemplated hereby.
Section 2.17 Continuity of Business Enterprises. Tropical has no
commitment or present intention to liquidate Ambassador or sell or otherwise
dispose of a material portion of Ambassador' business or assets following the
consummation of the transactions contemplated hereby.
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Section 2.18 Material Transactions or Affiliations. Except as disclosed
herein and in the Tropical Schedules, there exists no contract, agreement or
arrangement between Tropical and any predecessor and any person who was at the
time of such contract, agreement or arrangement an officer, director, or person
owning of record or known by Tropical to own beneficially, 5% or more of the
issued and outstanding common stock of Tropical and which is to be performed in
whole or in part after the date hereof or was entered into not more than three
years prior to the date hereof. Neither any officer, director, nor 5%
shareholder of Tropical has, or has had since inception of Tropical, any known
interest, direct or indirect, in any such transaction with Tropical which was
material to the business of Tropical. Tropical has no commitment, whether
written or oral, to lend any funds to, borrow any money from, or enter into any
other transaction with, any such affiliated person.
Section 2.19 Labor Relations. Tropical has not had work stoppage
resulting from labor problems. To the knowledge of Tropical, no union or other
collective bargaining organization is organizing or attempting to organize any
employee of Tropical.
Section 2.20 Tropical Schedules. Tropical has delivered to Ambassador
the following schedules, which are collectively referred to as the "Tropical
Schedules" and which consist of separate schedules, which are dated the date of
this Agreement, all certified by the chief executive officer of Tropical to be
complete, true, and accurate in all material respects as of the date of this
Agreement:
(a) a schedule containing complete and accurate copies of the certificate
of incorporation and bylaws of Tropical as in effect as of the date of this
Agreement;
(b) a schedule containing the financial statements of Tropical identified
in paragraph 2.04(b);
(c) a Schedule 2.20(c) containing a list indicating the name and address of
each shareholder of Tropical together with the number of shares owned by
him, her or it;
(d) a schedule containing a description of all real property owned by
Tropical, together with a description of every mortgage, deed of trust,
pledge, lien, agreement, encumbrance, claim, or equity interest of any
nature whatsoever in such real property;
(e) copies of all licenses, permits, and other governmental authorizations
(or requests or applications therefor) pursuant to which Tropical carries
on or proposes to carry on its business (except those which, in the
aggregate, are immaterial to the present or proposed business of Tropical);
(f) a schedule listing the accounts receivable and notes and other
obligations receivable of Tropical as of June 30, 2001, or thereafter other
than in the ordinary course of business of Tropical, indicating the debtor
and amount, and classifying the accounts to show in reasonable detail the
length of time, if any, overdue, and stating the nature and amount of any
refunds, set offs, reimbursements, discounts, or other adjustments which
are in the aggregate material and due to or claimed by such debtor;
(g) a schedule listing the accounts payable and notes and other obligations
payable of Tropical as of June 30, 2001, or that arose thereafter other
than in the ordinary course of the business of Tropical, indicating the
creditor and amount, classifying the accounts to show in reasonable detail
the length of time, if any, overdue, and stating the nature and amount of
any refunds, set offs, reimbursements, discounts, or other adjustments,
which in the aggregate are material and due to or claimed by Tropical
respecting such obligations;
(h) a schedule setting forth a description of any material adverse change
in the business, operations, property, inventory, assets, or condition of
Tropical since June 30, 2001 required to be provided pursuant to section
2.07 hereof; and
(i) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Tropical
Schedules by Sections 2.01 through 2.19.
Tropical shall cause the Tropical Schedules and the instruments and
data delivered to Ambassador hereunder to be promptly updated after the date
hereof up to and including the Closing Date.
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It is understood and agreed that not all of the schedules referred to
above have been completed or are available to be furnished by Tropical. Tropical
shall have until October 31, 2001 to provide such schedules. If Tropical cannot
or fails to do so, or if Ambassador acting reasonably finds any such schedules
or updates provided after the date hereof to be unacceptable according to the
criteria set forth below, Ambassador may terminate this Agreement by giving
written notice to Tropical within five (5) days after the schedules or updates
were due to be produced or were provided. For purposes of the foregoing,
Ambassador may consider a disclosure in the Tropical Schedules to be
"unacceptable" only if that item would have a material adverse impact on the
financial statements listed in Section 2.04(b), taken as a whole.
Section 2.21 Bank Accounts; Power of Attorney. Set forth in Schedule
2.21 is a true and complete list of (a) all accounts with banks, money market
mutual funds or securities or other financial institutions maintained by
Tropical within the past twelve (12) months, the account numbers thereof, and
all persons authorized to sign or act on behalf of Tropical, (b) all safe
deposit boxes and other similar custodial arrangements maintained by Tropical
within the past twelve (12) months, and (c) the names of all persons holding
powers of attorney from Tropical or who are otherwise authorized to act on
behalf of Tropical with respect to any matter, other than its officers and
directors, and a summary of the terms of such powers or authorizations.
Section 2.22 Valid Obligation. This Agreement and all agreements and
other documents executed by Tropical in connection herewith constitute the valid
and binding obligation of Tropical, enforceable in accordance with its or their
terms, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE III
PLAN OF EXCHANGE
Section 3.01 The Exchange. On the terms and subject to the conditions
set forth in this Agreement, on the Closing Date (as defined in Section 3.03),
each Ambassador Shareholder who shall elect to accept the exchange offer
described herein (the "Accepting Shareholders"), shall assign, transfer and
deliver, free and clear of all liens, pledges, encumbrances, charges,
restrictions or known claims of any kind, nature, or description, the number of
shares of common stock of Ambassador set forth on Schedule 1.19(c) attached
hereto, in the aggregate constituting 100% of the issued and outstanding shares
of common stock of Ambassador held by each of such shareholders; the objective
of such Exchange being the acquisition by Tropical of 100% of the issued and
outstanding common stock of Ambassador. In exchange for the transfer of such
securities by the Ambassador Shareholders, Tropical shall issue to the
Ambassador Shareholders (1) an aggregate of 7,500,000 of common stock of
Tropical (the "Initial Shares"). At the Closing, each Ambassador Shareholder
shall, on surrender of his certificate or certificates representing such
Ambassador shares to Tropical or its registrar or transfer agent, be entitled to
receive a certificate or certificates evidencing his proportionate interest in
the Initial Shares. Upon consummation of the transaction contemplated herein,
assuming participation by all of the Ambassador Shareholders, all of the shares
of capital stock of Ambassador shall be held by Tropical.
Section 3.02 Anti-Dilution. The number of shares of Tropical common
stock issuable upon exchange pursuant to Section 3.01 shall be appropriately
adjusted to take into account any other stock split, stock dividend, reverse
stock split, recapitalization, or similar change in the Tropical common stock
which may occur (i) between the date of the execution of this Agreement and the
Closing Date, as to the Initial Shares, and (ii) between the date of the
execution of this Agreement and the release date, as to the Additional Shares.
Section 3.03 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date") but not later than July 31, 2001, subject to
the right of Tropical or Ambassador to extend such Closing Date by up to an
additional sixty (60) days. Such Closing shall take place at a mutually
agreeable time and place.
Section 3.04 Closing Events. At the Closing, Tropical, Ambassador and
each of the Accepting Shareholders shall execute, acknowledge, and deliver (or
shall ensure to be executed, acknowledged, and delivered) any and all
certificates, opinions, financial statements, schedules, agreements,
resolutions, rulings or other instruments required by this Agreement to be so
delivered at or prior to the Closing, together with such other items as may be
reasonably requested by the parties hereto and their respective legal counsel in
order to effectuate or evidence the transactions contemplated hereby. Among
other things, Tropical shall provide an opinion of counsel acceptable to
Ambassador as to such matters as Ambassador may reasonably request, which shall
include, but not be limited to, a statement, to the effect that (i) to such
counsel's best knowledge, after reasonable investigation, from inception until
the Closing Date, Tropical has complied with all applicable statutes and
regulations of any federal, state, or other applicable governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition of
Tropical or except to the extent that noncompliance would not result in the
occurrence of any material liability (such compliance including, but not being
limited to, the filing of all reports to date with federal and state securities
authorities) and (ii) based on a summary of the facts and applicable law, such
counsel believes that the Placement described in Section 4.08 below is not
subject to "integration" with the offering being made pursuant to the
Registration Statement (Ambassador acknowledges that "integration" is a highly
factual issue not susceptible to the rendering of a legal opinion and that the
statement to be delivered hereunder shall merely constitute a summary of the
reasoning which counsel to Tropical believes would apply if a third party were
to assert that such offerings should be integrated).
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Section 3.05 Termination.
(a) This Agreement may be terminated by the board of directors of either
Tropical or Ambassador at any time prior to the Closing Date if:
(i) there shall be any actual or threatened action or
proceeding before any court or any governmental body which
shall seek to restrain, prohibit, or invalidate the
transactions contemplated by this Agreement and which, in the
judgement of such board of directors, made in good faith and
based upon the advice of its legal counsel, makes it
inadvisable to proceed with the Exchange; or
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose approval is
required to consummate such transactions (which does not
include the Securities and Exchange Commission) or in the
judgement of such board of directors, made in good faith and
based on the advice of counsel, there is substantial
likelihood that any such approval will not be obtained or will
be obtained only on a condition or conditions which would be
unduly burdensome, making it inadvisable to proceed with the
Exchange.
In the event of termination pursuant to this paragraph (a) of Section
3.05, no obligation, right or liability shall arise hereunder, and each
party shall bear all of the expenses incurred by it in connection with
the negotiation, drafting, and execution of this Agreement and the
transactions herein contemplated in accordance with the Expense Sharing
Agreement attached hereto as Exhibit "B".
(b) This Agreement may be terminated by the board of directors of Tropical
at any time prior to the Closing Date if:
(i) there shall have been any change after the date of the
latest balance sheet of Ambassador in the assets, properties,
business, or financial condition of Ambassador, which could
have a materially adverse effect on the financial statements
of Ambassador listed in Section 1.04(a) taken as a whole,
except any changes disclosed in the Ambassador Schedules;
(ii) the board of directors of Tropical determines in good
faith that one or more of Tropical's conditions to Closing has
not occurred, through no fault of Tropical.
(iii) Tropical takes the termination action specified in
Section 1.18 as a result of Ambassador Schedules or updates
thereto which Tropical finds unacceptable;
(iv) on or before August 31, 2001, Tropical notifies
Ambassador that Tropical's investigation pursuant to Section
4.01 below has uncovered information which it finds
unacceptable by the same criteria set forth in Section 1.19;
or
(v) Ambassador shall fail to comply in any material respect
with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of
Ambassador contained herein shall be inaccurate in any
material respect, where such noncompliance or inaccuracy has
not been cured within ten (10) days after written notice
thereof.
If this Agreement is terminated pursuant to this paragraph (b) of Section 3.05,
this Agreement shall be of no further force or effect, and no obligation, right
or liability shall arise hereunder, except that Ambassador shall bear its own
costs as well as the reasonable costs of Tropical in connection with the
negotiation, preparation, and execution of this Agreement and qualifying the
offer and sale of securities to be issued in the Exchange under the registration
requirements, or exemption from the registration requirements, of state and
federal securities laws.
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(c) This Agreement may be terminated by the board of directors of
Ambassador at any time prior to the Closing Date if:
(i) there shall have been any change after the date of the latest balance
sheet of Tropical in the assets, properties, business or financial
condition of Tropical, which could have a material adverse effect on the
financial statements of Tropical listed in Section 2.04(b) taken as a
whole, except any changes disclosed in the Tropical Schedules;
(ii) the board of directors of Ambassador determines in good faith that one
or more of Ambassador' conditions to Closing has not occurred, through no
fault of Ambassador;
(iii) Ambassador takes the termination action specified in Section 2.20 as
a result of Tropical Schedules or updates thereto which Ambassador finds
unacceptable;
(iv) on or before August 31, 2001 Ambassador notifies Tropical that
Ambassador' investigation pursuant to Section 4.01 below has uncovered
information which it finds unacceptable by the same criteria set forth in
Section 2.20; or
(v) Tropical shall fail to comply in any material respect with any of its
covenants or agreements contained in this Agreement or if any of the
representations or warranties of Tropical contained herein shall be
inaccurate in any material respect, where such noncompliance or inaccuracy
has not been cured within ten (10) days after written notice thereof.
If this Agreement is terminated pursuant to this paragraph (c) of Section 3.05,
this Agreement shall be of no further force or effect, and no obligation, right
or liability shall arise hereunder, except that Tropical shall bear its own
costs as well as the reasonable costs of Ambassador and its principal
shareholders incurred in connection with the negotiation, preparation and
execution of this Agreement.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. Tropical and Ambassador
will each afford to the officers and authorized representatives of the other
full access to the properties, books and records of Tropical or Ambassador, as
the case may be, in order that each may have a full opportunity to make such
reasonable investigation as it shall desire to make of the affairs of the other,
and each will furnish the other with such additional financial and operating
data and other information as to the business and properties of Tropical or
Ambassador, as the case may be, as the other shall from time to time reasonably
request. Without limiting the foregoing, as soon as practicable after the end of
each fiscal quarter (and in any event through the last fiscal quarter prior to
the Closing Date), each party shall provide the other with quarterly internally
prepared and unaudited financial statements.
Section 4.02 Delivery of Books and Records. At the Closing, Ambassador
shall deliver to Tropical the originals of the corporate minute books, books of
account, contracts, records, and all other books or documents of Ambassador now
in the possession of Ambassador or its representatives.
Section 4.03 Third Party Consents and Certificates. Tropical and
Ambassador agree to cooperate with each other in order to obtain any required
third party consents to this Agreement and the transactions herein contemplated.
Section 4.04 Name Change. At or prior to the Closing Date, Tropical's
Board of Directors shall have approved an amendment to the certificate of
incorporation to change the name of Tropical to "Ambassador, INC." Such
amendment shall be carried out promptly upon approval of the same by the
shareholders of Tropical.
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Section 4.05 Tropical Shareholder Meeting. Tropical shall call a
special shareholders meeting to be held on or prior to the Closing Date at which
meeting the shareholders of Tropical shall be requested to approve, and
Tropical's Board of Directors shall recommend approval of, the terms of this
Agreement, including the name change and increase in authorized capital
described in Section 4.04 and such other matters as shall require shareholder
approval hereunder.
Section 4.06 Consent of Ambassador Shareholders. Ambassador shall use its
best efforts to obtain the consent of all Ambassador Shareholders to participate
in the Exchange.
Section 4.07 Designation of Directors and Officers. On or before the
Closing Date, Tropical shall increase its board of directors to three (3)
persons. Xxxxxxx Xxxxxxx shall be designated as Chairman of the Board of
Tropical and Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx, shall be designated as
additional board members.
Section 4.08 Exclusive Dealing Rights. Until 5:00 P.M. Eastern Daylight
Time on September 10, 2001.
(a) In recognition of the substantial time and effort which Tropical
has spent and will continue to spend in investigating Ambassador and
its business and in addressing the matters related to the transactions
contemplated herein, each of which may preempt or delay other
management activities, neither Ambassador, nor any of its officers,
employees, representatives or agents will directly or indirectly
solicit or initiate any discussions or negotiations with, or, except
where required by fiduciary obligations under applicable law as advised
by counsel, participate in any negotiations with or provide any
information to or otherwise cooperate in any other way with, or
facilitate or encourage any effort or attempt by, any corporation,
partnership, person or other entity or group (other than Tropical and
its directors, officers, employees, representatives and agents)
concerning any merger, sale of substantial assets, sale of shares of
capital stock, (including without limitation, any public or private
offering of the common stock of Ambassador) or similar transactions
involving Ambassador (all such transactions being referred to as
"Ambassador Acquisition Transactions"). If Ambassador receives any
proposal with respect to a Ambassador Acquisition Transaction, it will
immediately communicate to Tropical the fact that it has received such
proposal and the principal terms thereof.
(b) In recognition of the substantial time and effort which Ambassador
has spent and will continue to spend in investigating Tropical and its
business and in addressing the matters related to the transactions
contemplated herein, each of which may preempt or delay other
management activities, neither Tropical, nor any of its officers,
employees, representatives or agents will directly or indirectly
solicit or initiate any discussions or negotiations with, or, except
where required by fiduciary obligations under applicable law as advised
by counsel, participate in any negotiations with or provide any
information to or otherwise cooperate in any other way with, or
facilitate or encourage any effort or attempt by, any corporation,
partnership, person or other entity or group (other than Ambassador and
its directors, officers, employees, representatives and agents)
concerning any merger, sale of substantial assets, sale of shares of
capital stock, (including without limitation, any public or private
offering of the common stock of Tropical or similar transactions
involving Tropical (all such transactions being referred to as
"Tropical Acquisition Transactions"). If Tropical receives any proposal
with respect to a Tropical Acquisition Transaction, it will immediately
communicate to Ambassador the fact that it has received such proposal
and the principal terms thereof.
Section 4.09 Actions Prior to Closing.
(a) From and after the date of this Agreement until the Closing Date
and except as set forth in the Tropical Schedules or Ambassador
Schedules or as permitted or contemplated by this Agreement, Tropical
(subject to paragraph (d) below) and Ambassador respectively, will
each:
(i) carry on its business in substantially the same manner as it has
heretofore;
(ii) maintain and keep its properties in states of good repair and
condition as at present, except for depreciation due to ordinary wear
and tear and damage due to casualty;
(iii) maintain in full force and effect insurance comparable in amount
and in scope of coverage to that now maintained by it;
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(iv) perform in all material respects all of its obligations under
material contracts, leases, and instruments relating to or affecting
its assets, properties, and business;
(v) use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to maintain its
relationship with its material suppliers and customers; and
(vi) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state laws and
all rules, regulations, and orders imposed by federal or state
governmental authorities.
(b) From and after the date of this Agreement until the Closing Date,
neither Tropical nor Ambassador will:
(i) make any changes in their articles or certificate of incorporation
or bylaws;
(ii) take any action described in Section 1.07 in the case of
Ambassador, or in Section 2.07, in the case of Tropical (all except as
permitted therein or as disclosed in the applicable party's
schedules);
(iii) enter into or amend any contract, agreement, or other instrument
of any of the types described in such party's schedules, except that a
party may enter into or amend any contract, agreement, or other
instrument in the ordinary course of business involving the sale of
goods or services; or
(iv) sell any assets or discontinue any operations (other than the
Divestiture), sell any shares of capital stock (other than as
contemplated in Sections 4.07 and 4.08 hereof and the sale of
securities underlying existing warrants or options of Tropical) or
conduct any similar transactions other than in the ordinary course of
business.
(C) In light of the fact that Ambassador' shareholders will control
Tropical as a result of the Exchange, from and after the date of this Agreement
until the Closing Date, Tropical shall take no action which is material to its
business without the prior written approval of Ambassador, which Ambassador may
give or withhold in its sole discretion after consultation with Tropical.
Section 4.10 Sales Under Rule 144 or 145,If Applicable.
(a) Tropical will use its best efforts to at all times comply with the
reporting requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including timely filing of all periodic
reports required under the provisions of the Exchange Act and the rules
and regulations promulgated thereunder.
(b) Upon being informed in writing by any such person holding
restricted stock of Tropical that such person intends to sell any
shares under Rule 144, Rule 145 or Regulation S promulgated under the
Securities Act (including any rule adopted in substitution or
replacement thereof), Tropical will certify in writing to such person
that it has filed all of the reports required to be filed by it under
the Exchange Act to enable such person to sell such person's restricted
stock under Rule 144, 145 or Regulation S, as may be applicable in the
circumstances, or will inform such person in writing that it has not
filed any such report or reports.
(c) If any certificate representing any such restricted stock is
presented to Tropical's transfer agent for registration of transfer in
connection with any sale theretofore made under Rule 144, 145 or
Regulation S, provided such certificate is duly endorsed for transfer
by the appropriate person(s) or accompanied by a separate stock power
duly executed by the appropriate person(s) in each case with reasonable
assurances that such endorsements are genuine and effective, and is
accompanied by an opinion of counsel satisfactory to Tropical and its
counsel that the stock transfer has complied with the requirements of
Rule 144, 145 or Regulation S, as the case may be, Tropical will
promptly instruct its transfer agent to register such shares and to
issue one or more new certificates representing such shares to the
transferee and, if appropriate under the provisions of Rule 144, 145 or
Regulation S, as the case may be, free of any stop transfer order or
restrictive legend. The provisions of this Section 4.11 shall survive
the Closing and the consummation of the transactions contemplated by
this Agreement.
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Section 4.11 Indemnification.
(a) Ambassador hereby agrees to indemnify Tropical and each of the
officers, agents and directors of Tropical as of the date of execution
of this Agreement against any loss, liability, claim, damage, or
expense (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending against
any litigation, commenced or threatened, or any claim whatsoever), to
which it or they may become subject arising out of or based on any
inaccuracy appearing in or misrepresentations made under Article I of
this Agreement. The indemnification provided for in this paragraph
shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement.
(b) Tropical hereby agrees to indemnify Ambassador and each of the
officers, agents, and directors of Ambassador and each of the
Ambassador Shareholders as of the date of execution of this Agreement
against any loss, liability, claim, damage, or expense (including, but
not limited to, any and all expense whatsoever reasonably incurred in
investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever), to which it or they
may become subject arising out of or based on any inaccuracy appearing
in or misrepresentation made under Article II of this Agreement. The
indemnification provided for in this paragraph shall survive the
Closing and consummation of the transactions contemplated hereby and
termination of this Agreement.
Section 4.12 Limitation of Subsequent Corporate Actions.
It is expressly understood and agreed that Tropical, the
shareholders of Ambassador, and their affiliates, will take all steps necessary
to ensure that for a period of eighteen months following this Agreement:
(a) there shall be no reverse split of the Tropical's common stock;
(b) and that the assets of Tropical shall remain in Tropical as part of
its business operations;
(c) that Tropical will not issue shares for any consideration less than $1
per share.
Section 4.13 Indemnification of Subsequent Corporate Actions.
(a) No officer, director, controlling shareholder, agent or
representative of Tropical, or any other person currently affiliated with
Tropical, has offered or agreed to assist in the promotion, market making,
development, enhancement, or support of Tropical's business, capital
raising, or securities market.
(b) Tropical hereby represents and warrants that it will indemnify and
hold harmless any officer, director, controlling shareholder, agent or
representative of Tropical, or any other person affiliated with Tropical,
from any decisions, activities, or conduct of Tropical contemporaneous
with, or subsequent to this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF Tropical
The obligations of Tropical under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Ambassador in this Agreement were
true when made and shall be true at the Closing Date with the same force and
effect as if such representations and warranties were made at and as of the
Closing Date (except for changes therein permitted by this Agreement).
Ambassador shall have performed or complied with all covenants and conditions
required by this Agreement to be performed or complied with by Ambassador prior
to or at the Closing. Tropical shall be furnished with a certificate, signed by
a duly authorized executive officer of Ambassador and dated the Closing Date, to
the foregoing effect.
Section 5.02 Officer's Certificate. Tropical shall have been furnished
with a certificate dated the Closing Date and signed by a duly authorized
officer of Ambassador to the effect that no litigation, proceeding,
investigation, or inquiry is pending, or to the best knowledge of Ambassador
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement, or, to the
extent not disclosed in the Ambassador Schedules, by or against Ambassador,
which might result in any material adverse change in any of the assets,
properties, business, or operations of Ambassador.
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Section 5.03 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any change in the financial condition, business,
or operations of Ambassador nor shall any event have occurred which, with the
lapse of time or the giving of notice, is determined to be unacceptable using
the criteria set forth in Section 1.19.
Section 5.04 Good Standing. Tropical shall have received a certificate
of good standing from the State of California, dated as of a date within ten
days prior to the Closing Date certifying that Ambassador is in good standing as
a corporation in the State of Delaware.
Section 5.05 Approval by Ambassador Shareholders. The Exchange shall
have been approved, and shares delivered in accordance with Section 3.01, by the
holders of not less than ninety percent (90%) of the outstanding common stock of
Ambassador, unless a lesser number is agreed to by Tropical.
Section 5.06 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 5.07 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Tropical and Ambassador after the Closing Date on the basis as
presently operated shall have been obtained.
Section 5.08 Other Items.
------------
(a) Tropical shall have received a list of Ambassador' shareholders
containing the name, address, and number of shares held by each
Ambassador shareholder as of the date of Closing, certified by an
executive officer of Ambassador as being true, complete and accurate;
and
(b) Tropical shall have received such further opinions, documents,
certificates or instruments relating to the transactions contemplated
hereby as Tropical may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF Ambassador
AND THE AMBASSADOR SHAREHOLDERS
The obligations of Ambassador and the Ambassador Shareholders under
this Agreement are subject to the satisfaction, at or before the Closing Date,
of the following conditions:
Section 6.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Tropical in this Agreement were true
when made and shall be true as of the Closing Date (except for changes therein
permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date.
Additionally, Tropical shall have performed and complied with all covenants and
conditions required by this Agreement to be performed or complied with by
Tropical and shall have satisfied the conditions described below prior to or at
the Closing:
(a) Immediately prior to the Closing, Tropical shall have no more than
an aggregate of 4,590,127 shares of common stock issued and
outstanding or issuable pursuant to outstanding warrants and options,
excluding any shares and warrants issuable pursuant to the Exchange or
the Placement.
(b) The shareholders of Tropical shall have approved the Exchange and
the related transactions described herein.
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Ambassador shall have been furnished with certificates, signed by duly
authorized executive officers of Tropical and dated the Closing Date, to the
foregoing effect.
Section 6.02 Officer's Certificate. Ambassador shall have been
furnished with certificates dated the Closing Date and signed by duly authorized
executive officers of Tropical, to the effect that no litigation, proceeding,
investigation or inquiry is pending, or to the best knowledge of Tropical
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement or, to the
extent not disclosed in the Tropical Schedules, by or against Tropical, which
might result in any material adverse change in any of the assets, properties or
operations of Tropical.
Section 6.03 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any change in the financial condition, business or
operations of Tropical nor shall any event have occurred which, with the lapse
of time or the giving of notice, is determined to be unacceptable using the
criteria set forth in Section 2.20.
Section 6.04 Good Standing. Ambassador shall have received a
certificate of good standing from the Secretary of State of the State of Nevada
or other appropriate office, dated as of a date within ten days prior to the
Closing Date certifying that Tropical is in good standing as a corporation in
the State of Delaware and has filed all tax returns required to have been filed
by it to date and has paid all taxes reported as due thereon.
Section 6.05 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 6.06 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Tropical and Ambassador after the Closing Date on the basis as
presently operated shall have been obtained.
Section 6.07 Other Items. Ambassador shall have received further
opinions, documents, certificates, or instruments relating to the transactions
contemplated hereby as Ambassador may reasonably request.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Brokers. Tropical and Ambassador agree that, except as set
out on Schedule 7.01 attached hereto, there were no finders or brokers involved
in bringing the parties together or who were instrumental in the negotiation,
execution or consummation of this Agreement. Tropical and Ambassador each agree
to indemnify the other against any claim by any third person other than those
described above for any commission, brokerage, or finder's fee arising from the
transactions contemplated hereby based on any alleged agreement or understanding
between the indemnifying party and such third person, whether express or implied
from the actions of the indemnifying party.
Section 7.02 Governing Law. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to the matters of state law, with the laws
of the State of Nevada without giving effect to principles of conflicts of law
thereunder. Each of the parties (a) irrevocably consents and agrees that any
legal or equitable action or proceedings arising under or in connection with
this Agreement shall be brought exclusively in the federal courts of the United
States, (b) by execution and delivery of this Agreement, irrevocably submits to
and accepts, with respect to any such action or proceeding, generally and
unconditionally, the jurisdiction of the aforesaid court, and irrevocably waives
any and all rights such party may now or hereafter have to object to such
jurisdiction.
Section 7.03 Notices. Any notice or other communications required or
permitted hereunder shall be in writing and shall be sufficiently given if
personally delivered to it or sent by telecopy, overnight courier or registered
mail or certified mail, postage prepaid, addressed as follows:
If to Tropical, to: TROPICAL LEISURE RESORTS, INC.
0000 Xxxxx Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxx 00000
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If to Ambassador, to: AMBASSADOR CASINO CRUISES,INC.
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
With copies to: Vanderkam & Xxxxxxx
000 Xxxxxxxxx, #000
Xxxxxxx, Xxxxx 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given (i) upon receipt, if personally delivered, (ii) on
the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section 7.04 Attorney's Fees. In the event that either party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the prevailing party shall be reimbursed by
the losing party for all costs, including reasonable attorney's fees, incurred
in connection therewith and in enforcing or collecting any judgement rendered
therein.
Section 7.05 Confidentiality. Each party hereto agrees with the other
that, unless and until the transactions contemplated by this Agreement have been
consummated, it and its representatives will hold in strict confidence all data
and information obtained with respect to another party or any subsidiary thereof
from any representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except (i) to the extent
such data or information is published, is a matter of public knowledge, or is
required by law to be published; or (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
Agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
work papers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
Section 7.06 Public Announcements and Filings. Unless required by
applicable law or regulatory authority, none of the parties will issue any
report, statement or press release to the general public, to the trade, to the
general trade or trade press, or to any third party (other than its advisors and
representatives in connection with the transactions contemplated hereby) or file
any document, relating to this Agreement and the transactions contemplated
hereby, except as may be mutually agreed by the parties. Copies of any such
filings, public announcements or disclosures, including any announcements or
disclosures mandated by law or regulatory authorities, shall be delivered to
each party at least one (1) business day prior to the release thereof.
Section 7.07 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.08 Third Party Beneficiaries. This contract is strictly
between Tropical and Ambassador, and, except as specifically provided, no
director, officer, stockholder (other than the Ambassador Shareholders),
employee, agent, independent contractor or any other person or entity shall be
deemed to be a third party beneficiary of this Agreement.
Section 7.09 Expenses. Subject to Sections 3.05 and 7.04 above, whether
or not the Exchange is consummated, each of Tropical and Ambassador will bear
their own respective expenses, including legal, accounting and professional
fees, incurred in connection with the Exchange or any of the other transactions
contemplated hereby.
Section 7.10 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof and
supersedes all prior agreements, understandings and negotiations, written or
oral, with respect to such subject matter.
Section 7.11 Survival; Termination. The representations, warranties,
and covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of two years.
Section 7.12 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
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Section 7.13 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may by amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 7.14 Best Efforts. Subject to the terms and conditions herein
provided, each party shall use its best efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by it under this
Agreement so that the transactions contemplated hereby shall be consummated as
soon as practicable. Each party also agrees that it shall use its best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement and the transactions contemplated
herein.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first-above written.
ATTEST: TROPICAL LEISURE RESORTS, INC.
BY:
----------------------------------- -------------------------------------
Secretary or Assistant Secretary President
ATTEST: AMBASSADOR CASINO CRUISES, INC.
BY:
------------------------------------ -------------------------------------
Secretary or Assistant Secretary Manager
The undersigned shareholders of AMBASSADOR CASINO CRUISES, INC. hereby
agree to participate in the Exchange on the terms set forth above. Subject to
Section 7.11 above, each of the undersigned hereby represents and affirms that
he has read each of the representations and warranties of AMBASSADOR CASINO
CRUISES, INC. set out in Article I hereof and that, to the best of his
knowledge, all of such representations and warranties are true and correct.
__________________, individually
__________________, individually
