AGREEMENT
THIS AGREEMENT, made and entered into as of the 19 day of March, 2004 is by and
between:
American Leisure Holdings, Inc., a Nevada corporation with its principal office
and place of business in Orlando, Florida (hereinafter referred to as "Buyer"),
and
GCD Acquisition Corp,., a Florida corporation with its principal office and
place of business located in Coral Gables, Florida (hereinafter referred to as
"Seller").
W I T N E S S E T H
WHEREAS, Seller is the owner and holder of certain assets, to wit: promissory
notes (the "Galileo Notes") and collateral documents (the "Security") made by
Around The World Travel, Inc., as Payor, in favor of Galileo International, LLC,
as Payee (the Galileo Notes and Security are collectively referred to herein as
the "Assets"). The Galileo Notes and Security are set forth on Exhibits "A" and
"B" respectively; and
WHEREAS, Seller acquired the Assets in an arms length transaction from CNG
Hotels, Ltd. ("CNG"); and
WHEREAS, the Galileo Notes are secured by the Security; and
WHEREAS, Seller acquired the Assets from CNG in consideration for its promissory
note in favor of CNG in the principal amount of $5,000,000.00 US (the "CNG
Note"); and
WHEREAS, Seller is a party to that certain Settlement Agreement dated February
23, 2004 by and between the Seller, CNG; Payor; Around the World Holdings, LLC;
Seaway Hospitality Corporation ; Xxxxx St. Clair; Xxx Xxxxxxx; Xxxx Xxxxxxxx;
Seaway Two Corporation ("Seaway"); Traveleaders Group, LLC; Finnbarr Power;
Corporate Finance Ireland Limited; Xxxx Xxxxxx; Tzell Travel & Tours, Inc.;
Tzell America, Inc.; Tzell Travel New England, Inc.; Tzell Travel West, Inc.;
Tzell Travel LLC.; Xxxxx Xxxxx; Xxxxx Xxxxxxx; Xxxxx Xxxx; and HoteLeaders, Ltd.
(the "Settlement Agreement"). The Settlement Agreement is incorporated herein by
this reference in its entirety;
WHEREAS, Buyer desires to acquire the Assets.
NOW THEREFORE, in consideration of the mutual promises herein contained, it is
agreed as follows.
1. The forgoing Recitals are true and accurate and are made a part of this
Agreement.
2. Seller is the true and only owner and holder of the Assets.
GCD Acquisition, Corp.
American Leisure Holdings, Inc.
Agreement of Sale
March 19, 2004
3. The Seller has not pledged or assigned, as collateral or otherwise, the
Assets to any person, corporation or party of any kind.
4. To the Seller's knowledge, the obligations recited in the Assets are
valid and enforceable obligations of the Payor and Seller has not been
notified of any defenses, set-offs, counterclaims or novations of the
obligations contained in the Assets.
5. The Seller hereby agrees to assign and transfer over to the Buyer, all
of the Seller's right, title and interest in the Galileo Notes and the
Security upon the execution hereof, without recourse.
6. Buyer is familiar with the terms and content of the Galileo Notes and
the Security and has made its own independent judgment as to the value of
the Galileo Notes and Security.
7. Buyer is familiar with the obligations incurred by Seller in the
Settlement Agreement and has made its own independent judgment as to the
meaning and import of said obligations. By execution hereof, Buyer hereby
agrees to assume all of the Seller's obligations under the Settlement
Agreement and to hold Seller and Seaway harmless and completely indemnify
Seller and Seaway from any and all Damages, costs, liabilities,
responsibilities and duties which may be incurred by Seller arising from
or as a result of the Settlement Agreement or the actions described
therein. The term Damages shall mean and include: all actual and
consequential damages, liabilities, obligations, penalties, fines,
judgments, claims, deficiencies, losses, costs, expenses and assessments,
including all attorneys' fees and costs, and interest accruing on such
Damages incurred or suffered by the indemnified parties.
8. Buyer is familiar with the terms of the CNG Note and has made its own
and independent judgment as to the nature and meaning of the document. By
execution hereof, Buyer hereby agrees to assume all of the obligations
under the CNG Note and to hold Seller harmless and does completely
indemnify Seller from any and all Damages, costs, liabilities,
responsibilities and duties, including the obligation to pay the CNG Note
as provided for therein. Buyer's indemnification herein shall include the
reasonable legal costs of enforcement and defense, court costs and all
other costs reasonably incurred for paralegals and consultants, witnesses
and depositions and reasonable travel and accommodation costs incurred in
either enforcement or defense of the terms of this Agreement or the terms
of the Assets.
9. a. In addition, Buyer hereby indemnifies Seller and Seaway against any
Damages, costs or losses incurred by Seller by virtue of any claims or
litigation brought by any party (except the Internal Revenue Service)
challenging the validity of the Assets, or the value of the Assets.
Excepted from this indemnity are acts or omissions of the Seller or
Seaway, which are finally determined by an appropriate court of competent
jurisdiction to constitute gross negligence or willful misconduct. Prior
_____ 2. of 7. _____
Seller Buyer
to any such determination, Buyer shall advance all legal fees and costs
incurred in defense thereof, with an undertaking by the Seller that it
will reimburse all such fees and costs upon such final determination of
gross negligence or willful misconduct.
b. If a claim for Indemnification (a "Claim") is to be made by
Seller or Seaway (the "Indemnitees"), Indemnitee shall give written notice
(a "Claim Notice") to Buyer (the "Indemnitor") as soon as practicable
after the Indemnitee becomes aware of any fact, condition or event which
may give rise to indemnification under this Agreement. In the case of a
Claim involving the assertion of a claim by a third party (whether
pursuant to a lawsuit or other legal action or otherwise, a "Third-Party
Claim"), (i) the Indemnitor shall be entitled, if it so elects, at its own
cost, risk and expense, (A) to take control of the defense and
investigation of such Third-Party Claim and (B) to pursue the defense
thereof by appropriate actions or proceedings, including, without
limitation, to employ and engage attorneys of its own choice reasonably
acceptable to the Indemnitee to handle and defend the same, and (ii) the
Indemnitor shall be entitled to compromise or settle such Claim, which
compromise or settlement shall be made only with the written consent of
the Indemnitee, such consent not to be unreasonably withheld. In the event
the Indemnitor elects to assume control of the defense and investigation
of such lawsuit or other legal action, the Indemnitee may, at its own cost
and expense, participate in the investigation, trial and defense of such
Third-Party Claim. If the Indemnitor fails to assume the defense of such
Third-Party Claim in accordance with this Agreement within fifteen (15)
calendar days after its receipt of the Claim Notice, the Indemnitee shall
(upon delivering notice to such effect to the Indemnitor) have the right
to undertake, at the Indemnitor's cost, risk and expense, the defense,
compromise and settlement of such Third-Party Claim on behalf of and for
the account of the Indemnitor; provided that such Third-Party Claim shall
not be compromised or settled without the written consent of the
Indemnitor, which consent shall not be unreasonably withheld. In the event
the Indemnitor assumes the defense of the claim, the Indemnitor shall keep
the Indemnitee reasonably informed of the progress of any such defense,
compromise or settlement, and in the event the Indemnitee assumes the
defense of the claim, the Indemnitee shall keep the Indemnitor reasonably
informed of the progress of any such defense, compromise or settlement
offer. The Indemnitor shall be liable for any settlement of any
Third-Party Claim effected pursuant to and in accordance with this
Agreement and for any final judgment (subject to any right of appeal), and
the Indemnitor agrees to indemnify and hold harmless Indemnitee from and
against any and all Damages by reason of such settlement or judgment.
c. If Indemnitee has not received full indemnification within thirty
(30) days after making a demand, Indemnitee shall have the right to
enforce his indemnification rights under this Agreement by commencing an
action in any court of competent jurisdiction over the subject matter
thereof and in which venue is proper, seeking an initial determination by
the court to uphold Indemnitee's rights of indemnification. The
_____ 3. of 7. _____
Seller Buyer
GCD Acquisition, Corp.
American Leisure Holdings, Inc.
Agreement of Sale
March 19, 2004
Indemnitors shall indemnify and pay to the Indemnitee all expenses
including reasonable attorney's fees that are incurred by Indemnitee in
connection with any successful claim asserted against or action brought by
Indemnitee for indemnification or payment of expenses by the Indemnitor
under this Agreement.
d. The parties agree and acknowledge that the indemnification
provided for under this Agreement is unique, and that the parties hereto
may obtain relief by way of injunction, specific performance and such
other equitable relief to which they may be entitled.
e. Expenses incurred by Indemnitee (including attorneys' fees) in
defending a threatened or pending action, suit or proceeding shall be paid
by the Indemnitors as and when incurred by Indemnitee. The Indemnitor
shall promptly pay the amount of such expenses to the Indemnitee, but in
no event later than ten (10) days following the Indemnitee's delivery to
the Indemnitor of a written request for payment.
10. Buyer hereby discloses that it is evaluating the business decision to
buy the assets or the stock of the Payor. In conjunction with such a
decision, Buyer is conducting an assessment of the relative values of the
assets of Payor and the stock of Payor to determine the viability of the
Payor as an ongoing business. In this assessment exercise, Buyer has
determined that the acquisition of the Assets on terms contained in this
Agreement will have a positive effect on its decision to acquire either
the assets or the stock of Payor and has entered into an option to
purchase 100% of the Membership Units of Around The World Holdings, LLC
pursuant to that certain Option Agreement by and between the Buyer and
Xxxxx St. Clair et al of even date herewith (the "Option Agreement").
Consummation of this Agreement shall be contingent on the complete
execution of the Option Agreement.
11. Seller agrees to use its best efforts to obtain from Payor an estoppel
agreement, dated within 30 days following the date hereof, which recites
the true and accurate amount of the debt represented by the Galileo Notes,
inclusive of principal amounts, interest amounts and any uncollected
taxes, fees or penalties accrued thereon. The estoppel agreement shall
also contain the Payor's acknowledgement of the acquisition by Buyer of
the Assets. The Seller makes no representation or warranty regarding any
amounts that may remain outstanding under the Galileo Notes or any
statement made by Payor in such estoppel certificate.
_____ 4. of 7. _____
Seller Buyer
GCD Acquisition, Corp.
American Leisure Holdings, Inc.
Agreement of Sale
March 19, 2004
12. The indemnities of the Buyer issued herein to the Seller do not extend
to any claim or assessment made by the Internal Revenue Service against
the Seller for any element of the transaction wherein Seller obtained the
Assets or the transaction described herein. Notwithstanding anything
herein to the contrary, the indemnification provisions in favor of the
Seller and Seaway in the Settlement Agreement shall remain in full force
and effect.
13. The indemnities of Buyer herein shall extend to the Seller, Seaway and
their respective shareholders, officers and directors. The indemnities
made herein shall survive the legal life of the Seller and Seaway and
shall inure to the Seller's and Seaway's successors, distributees and
devisees of their respective shareholders.
14. Upon the execution performance of this Agreement, Seller and Buyer
shall jointly inform Payor and CNG of the sale of the Assets as well as
the assignment of the obligations contained in the CNG Note and Settlement
Agreement. Buyer shall use its best efforts to obtain a release of Seller
from CNG of its obligations under the CNG Note and Settlement Agreement.
Buyer agrees to supply any and all information about Buyer reasonably
requested by CNG as part of its best efforts to obtain such release.
15. Each of the parties hereto agree that they will take such further
action and execute all such further papers, documents and instruments as
may be necessary or reasonably required by either of them to carry into
effect the purposes and terms, conditions and provisions of this
Agreement, including but not limited to corporate governance matters
arising prior to or after execution of this Agreement.
16. Buyer acknowledges that the Galileo Notes and Security were lost,
stolen or destroyed, and that Seller has been unable to recover the
Galileo Notes and Security after diligent effort to such end. Buyer
acknowledges that the copies of the Galileo Notes to which the
endorsements to Buyer are attached as well as copies of the Security
documents to be delivered to the Buyer shall be deemed for all purposes to
be the original Galileo Notes and Security. Seller shall deliver to Buyer
an acknowledgement of the Payor of such fact and a re-affirmation of the
debts. Said acknowledgement is attached hereto as Exhibit C. Seller hereby
indemnifies the Buyer, on terms described herein, from any and all claims
that the Assets are not the rightful property of the Seller.
17. The Purchase Price for the Galileo Notes and Security shall be the
assumption by the Buyer of all of Seller's obligations under the CNG Note
and the Settlement Agreement, as well as the indemnifications and hold
harmless obligations of the Buyer set forth in this Agreement.
18. This Agreement shall be construed and enforced according to the laws
of the State of Florida.
19. The Parties agree that Miami-Dade County courts shall have
jurisdiction over any action brought to enforce this Agreement.
20. Any part of this Agreement deemed unenforceable by a competent court
shall not vitiate the remaining terms.
_____ 5. of 7. _____
Seller Buyer
GCD Acquisition, Corp.
American Leisure Holdings, Inc.
Agreement of Sale
March 19, 2004
21. In the event of any litigation arising out of this Agreement, the
prevailing parties in such suit or proceedings shall be entitled to
receive from the non-prevailing parties all costs of prosecuting or
defending such suit or proceedings, including, without limitation,
reasonable attorneys' fees at trial and all appellate levels.
23. The rights, duties and obligations of the parties herein shall not be
assignable without the prior written consent of the other party.
Notwithstanding the foregoing, Buyer shall have the right to designate its
nominee to take title to the Assets.
24. This Agreement shall be binding upon and inure to the benefit of all
parties hereto and their respective legal representatives, heirs,
successors and assigns.
25. All parties hereto acknowledge and agree that they and their
respective counsel have had an opportunity to make detailed inquiry and
investigation of all relevant facts and matters related to this Agreement
and transaction contemplated hereunder. The Buyer agrees that it has not
relied upon any representation, warranty or other information given or
made by the Seller other than as set forth herein and has had the right
and opportunity to satisfy itself as to all matters related to the subject
matter hereof. Each party agrees that they have sufficient knowledge and
experience, or have relied upon their own experts, in making the decision
to enter into this Agreement.
26. All parties represent and warrant to each other that they are
represented by legal counsel of their choice, are fully aware of the terms
contained in this Agreement and have voluntarily and without duress
entered into this Agreement and the documents executed in connection with
this Agreement.
27. Any and all notices required or permitted to be served pursuant to the
terms of this Agreement shall be in writing and shall be served by (a)
registered or certified mail, return receipt requested and postage
pre-paid (b) overnight by nationally recognized overnight courier (c) hand
delivery, or (d) facsimile transmission, coupled with one of the forgoing
methods, as follows:
If to Seller: GCD Acquisition Corp.
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Facsimile No. (000) 000-0000
With a copy to
Xxxxxxx Xxxxxx et al.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: S. Xxxxxx Xxxxx, Esq.
Facsimile No. (000) 000-0000
_____ 6. of 7. _____
Seller Buyer
GCD Acquisition, Corp.
American Leisure Holdings, Inc.
Agreement of Sale
March 19, 2004
If to Buyer: American Leisure Holdings Inc.
0000 Xxxxxx Xxxx
-----------------------------
Xxxxxxx, XX 00000
----------------------------
Attn: Xxxxxxx Xxxxxx
-------------------------
Facsimile No. (000)000-0000
or to such other address as the parties shall designate in writing. Notice shall
be deemed given two (2) business days from when such notice was deposited in the
United States Mail or delivered to the courier in the manner aforesaid with
sufficient pre-paid postage or shipping cost affixed to carry same to its
destination.
Dated at Coral Gables, Florida this _19 day of March, 2004.
Witnessed By: American Leisure Holdings, Inc., a
Nevada corporation
_____________________ By:L/S Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: President
GCD Acquisition Corp., a Florida
Corporation
L/S Xxxxxx X. Xxxxxx By:L/S T. Xxxx Xxxxxxxx
------------------------------- -----------------------
Xxxxxx X. Xxxxxx Name: T Xxxx Xxxxxxxx
---------------
Title: President
_____ 7. of 7. _____
Seller Buyer
FIRST AMENDMENT TO
AGREEMENT
BETWEEN GCD ACQUISITION CORP
AND
AMERICAN LEISURE HOLDINGS, INC.
DATED MARCH 22, 2004
THIS FIRST AMENDMENT is entered into this 29th day of March, 2004 by and between
American Leisure Holdings, Inc., a Nevada corporation with its principal office
and place of business located in Orlando, Florida (hereinafter referred to as
"Buyer"), and GCD Acquisition Corp., a Florida corporation with its principal
office and place of business located at Coral Gables, Florida (hereinafter
referred to as "Seller").
Whereas, the Parties had commenced the closing of an agreement (the "Agreement")
as of the 22nd day of March, 2004 wherein the Seller was to agree to sell and
the Buyer was to agree to buy the Assets as defined therein; and
Whereas, during the closing of said Agreement, an issue arose that caused the
placement of the negotiated Agreement into escrow pending the resolution of the
issue; and
Whereas, the Parties have resolved the issue.
Now, therefore, in consideration of the promises herein contained, it is agreed
to amend the Agreement as follows.
1. Recitals. The forgoing recitals are true and accurate and incorporated
herein.
2. Definitions. The capitalized terms used herein bear the same definitions as
contained in the Agreement.
3. Additional Consideration. Buyer hereby agrees to amend the array of
consideration for its purchase of the Assets. Buyer reaffirms its commitment to
pay the consideration set forth in the Agreement and in addition to the
consideration recited therein, Buyer shall also pay to Seller the sum of One
Million, Seven Hundred Thousand Dollars ($1,700,000). Such additional
consideration shall be satisfied in full via the issue of 340,000 shares of
Buyer's Common Restricted Stock at a strike price of $5.00 per share to Seller.
4. Stock Certificates. Attached hereto as Amendment Exhibit I are copies of the
actual certificates to be delivered to Seller on the date of this Amendment.
Seller acknowledges that it has reviewed said copies and the legend thereon and
accepts said certificates as payment in full of the Additional Consideration.
First Amendment To Agreement
4/5/2004
Page 2. of 2.
5. Remaining Terms. The parties agree that this Amendment shall control as to
the matters discussed herein and that all other terms of the Agreement remain in
full force and effect.
6. Release of Escrow. The parties hereby agree that upon the signing of this
amendment that the escrow shall be immediately terminated.
Dated At Coral Gables, Florida this 29th day of March, 2004.
Seller: Witnessed By:
------------------------------- ---------------------------
T. Xxxx Xxxxxxxx, President Xxxxxx X. Xxxxxx
GCD Acquisition Corp.
Buyer:
-------------------------------
Xxxxxxx Xxxxxx, President
American Leisure Holdings, Inc.
