EXHIBIT 10.44
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
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This First Amendment to Asset Purchase Agreement (this "Amendment") dated
as of March 31, 2005 by and among American Leisure Equities Corporation, a
Florida corporation (the "Purchaser"); American Leisure Holdings Inc., a Nevada
corporation (the "Parent"); and Around The World Travel, Inc., a Florida
corporation (the "Seller").
RECITALS
A. The Purchaser, the Parent and the Seller have previously entered into
a certain Asset Purchase Agreement dated as of December 30, 2004 (the
"Original Agreement"), pursuant to which the Seller agreed to sell and
the Purchaser agreed to purchase certain of the assets of the Seller.
B. The Purchase of the assets was consummated on December 31, 2004.
C. A component of the Original Agreement recited that the ultimate
purchase price and the consideration therefor would be determined
after completion and delivery of the Final Audit Reports for Seller
for 2003 and 2004 as well as the completion and receipt of a third
party valuation report.
D. As of the date hereof the parties have not received all of the
requisite information to conclude the purchase price or the
consideration to be paid.
E. Pending the receipt of all of the final information, the parties have
agreed, in the interim, to make certain changes as set forth herein
below.
NOW THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained in this Amendment, and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereby agrees as follows:
1. RECITALS: The Recitals hereinabove are incorporated by this
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reference.
2. DEFINED TERMS. Capitalized terms used in this Amendment, unless
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otherwise defined in this Amendment, have the meanings ascribed to them in the
Original Agreement.
3. AMENDMENT AND RESTATEMENT OF SECTION 2.3 OF THE ORIGINAL AGREEMENT.
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The provisions of Section 2.3 of the Original Agreement are hereby amended and
restated in their entirety as follows:
2.3 Limited Assumption of Liabilities.
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(i) Purchaser will not assume any liabilities and obligations of
the Seller or any of its Affiliates other than $4,242,051 in debt owed to the
Minority Shareholders by virtue of entering into 85 month amortizations of debt
issued by Purchaser to parties who had accepted notes from Seller when Seller
bought their businesses (the "Minority Shareholder Debt").
(ii) The parties hereby acknowledge and agree that: (i) the
Purchaser is not assuming any portion of the Galileo Debt or the Hassine Debt;
and (ii) the Seller will continue to be liable for all amounts due with respect
to the Galileo Debt or the Hassine Debt, notwithstanding the Seller's transfer
of the collateral for such debt to Purchaser and Purchaser's agreement to accept
such assets subject to the Liens securing the Galileo Debt and the Hassine Debt.
4. AMENDMENT AND RESTATEMENT OF SECTION 3.3 OF THE ORIGINAL AGREEMENT.
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The provisions of Section 3.3 of the Original Agreement are amended and restated
in their entirety as follows:
3.3 Payment of Purchase Price. The Purchase Price will be paid by the
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Purchaser as follows:
(a) through the forgiveness by the Purchaser of the AMLH Debt
(which had a balance of $4,774,619 as of the Closing Date) and the release by
the Purchaser of the Seller's obligations with respect to said debt; and
(b) through the assumption by the Purchaser of the Minority
Shareholder Debt (which had a balance of $4,242,051 as of the Closing Date) and
the release by the Parent of the obligations of the Seller with respect to the
Minority Shareholder Debt; said assumption shall commence on January 15, 2006;
And
(c) through the issuance of the promissory note of the Purchaser
for the balance of the Purchase Price (the "Purchase Money Note"); the Purchase
Money Note shall provide for the accrual of interest at 6% per annum and the
deferral of all payments of principal and interest, with all balances due in a
balloon payment 60 months from inception. The Purchase Money Note shall contain
a provision whereby the Maker of said note shall be entitled to set off against
its liability in the note for any amounts owed to Purchaser or Parent such as by
the retention of the assigned Accounts Receivable by AWT as same are paid by the
obligors thereof.
5. ALLOCATION OF PURCHASE PRICE. The Purchase Price will be allocated
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among the Purchased Assets as set forth on Schedule 3.4, a copy of which is
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attached to this Amendment.
6. MISCELLANEOUS.
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6.1 Headings. The division of this Amendment into Articles, Sections,
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Subsections and other subdivisions and the insertion of headings are for
convenience of reference only and will not affect or be utilized in the
construction or interpretation of this Amendment.
6.2 Governing Law. This Amendment will be interpreted and construed
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in accordance with the Laws of the State of Florida and the laws of the United
States of America applicable therein. Any action, suit or proceeding relating
to, arising out of, or in connection with this Amendment may be brought by any
party against any other party in an appropriate Federal or state court located
in Miami-Dade County, Florida. All parties hereby waive any objection to
jurisdiction or venue in any such proceeding before said court.
6.3 Further Assurances. Each of the parties upon the request of any
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other party, whether before or after the Closing, will do, execute, acknowledge
and deliver or cause to be done, executed, acknowledged or delivered all such
further acts, deeds, documents, assignments, transfers conveyances, powers of
attorney and assurances as may be reasonably necessary or desirable to effect
complete consummation of the transactions contemplated by this Amendment.
6.4 Successors in Interest. This Amendment and the provisions hereof
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will inure to the benefit of and be binding upon the parties and their
respective successors and permitted assigns. No party may assign this Amendment
or any of its rights and obligations hereunder without the prior consent of all
of the other parties.
6.5 No Third Party Beneficiaries. Except as provided in Article 9 of
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the Original Agreement, nothing in this Amendment or the Original Agreement is
intended or shall be construed to give any Person (including employees of the
parties), other than the parties hereto, any legal or equitable right, remedy or
claim under or in respect of this Amendment or any provision contained herein.
6.6 Expenses. Each party will bear and pay all costs, expenses and
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fees (including, without limitation, legal counsel and accounting fees and
disbursements) incurred by such party in connection with the preparation,
execution and consummation of this Amendment and the transactions contemplated
hereunder.
6.7 Counterparts. This Amendment may be executed in one or more
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counterparts, each of which when so executed will be deemed an original, and
such counterparts together will constitute one and the same instrument.
6.8 Ratification. Except as amended by the terms of this Amendment,
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all of the terms of the Original Agreement are hereby ratified, confirmed and
approved.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
PURCHASER:
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AMERICAN LEISURE EQUITIES CORPORATION
By:
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Its:
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Name:
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PARENT:
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AMERICAN LEISURE HOLDINGS, INC.
By:
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Its:
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Name:
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SELLER:
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AROUND THE WORLD TRAVEL, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Its: President
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Name: Xxxxx X. Xxxxxxx
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AROUND THE WORLD HOLDINGS, LLC
Concurring with this Amendment
By:
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Its:
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Name:
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