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EXHIBIT 99
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
THIS AGREEMENT is dated effective September 5, 1996, and is entered into by
and between IRT Industries, Inc., a Florida corporation ("Purchaser") and
Inmobiliaria La J Tres Sociedad de Responsabilidad Limitada ("Seller").
R E C I T A L S :
1. Seller is the authorized user of a gaming license ("License") issued
by the government of Costa Rica for casino operations at the following
identified Hotel, furniture, fixtures and equipment related to the operation of
the casino under such Gaming License, and a lease with the Hotel Barcelo Playa
Tambor ("Hotel"), Puntarenas, Costa Rica all as to Casino Bahia Ballena, S.A., a
Costa Rican corporation (collectively the "Assets"); and
2. Seller wishes to sell, and Purchaser wishes to purchase the Assets,
with the exception of the License, of which Purchaser wishes to have exclusive
use, but which will be considered a part of the Purchase Price, upon the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, mutual promises,
covenants, terms and conditions herein, and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the parties hereby agree as follows:
1. RECITALS, EXHIBITS AND SCHEDULES. All of the above recitals are true,
correct and complete, as well as each exhibit and schedule attached hereto,
which are incorporated herein by reference.
2. PURCHASE AND SALE. Purchaser agrees to purchase from Seller, and Seller
agrees to sell and deliver to Purchaser (hereinafter the "Sale"), on the
"Closing" (hereinafter defined) the Assets with the exception of the License, of
which Purchaser shall have exclusive use. Seller represents and warrants that,
among other things, the Assets to be conveyed to Purchaser by Seller at Closing
will be free and clear of any and all liens, encumbrances, claims or demands,
except as both disclosed and otherwise provided for herein.
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3. PURCHASE PRICE. The purchase price for the Assets is the sum of $700,000,
which will be paid by the Purchaser to the Seller as provided below ("Purchase
Price").
4. PAYMENT OF PURCHASE PRICE. The Purchase Price, shall be paid to Seller as
follows:
The purchase price of $700,000 shall be payable, and paid, in the form of
Common Stock to the Purchaser as follows: the parties agree that, based upon
the average recent trading sales price of the Common Stock of $6.00 per share, a
total of 116,666 shares of Common Stock are due to the Seller in connection with
the transaction. However, due to the pending issuance of 50,000 shares of
Common Stock in the Company to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Berenes, the Seller shall
receive 66,666 shares. The 66,666 "Shares" to be issued by Purchaser to Seller
shall be issued as soon as practicable to the Seller and shall be issued in
accordance with Regulation S of the U.S. Securities and Exchange Commission.
5. LICENSE. Seller represents to the Purchaser that the License shall permit
the Purchaser to operate and otherwise commercially exploit, a casino gaming
facility at the Hotel. Furthermore, Purchaser shall be entitled to the exclusive
use of said License for the aforementioned purposes for the duration of
occupation of the premises. Seller shall fully cooperate with the Purchaser in
the utilization by the Purchaser of the License including, without limitation,
the following: (i) Purchaser shall be deemed to have the exclusive right to use
said License and to exploit the same for commercial purpose, and Seller shall
not transfer any interest, place any lien, or otherwise encumber the License in
any way; (ii) Seller shall execute any and all documents requested by Purchaser
and legal counsel to Purchaser in connection with the License; and (iii) Seller
shall not conduct any business or other activities other than acting in full
cooperation with the Purchaser.
6. CLOSING AND CERTAIN RELATED MATTERS. A. Closing Date. The date for the
closing of the Sale (herein "Closing") shall be deemed effective the date first
written above, unless the parties agree otherwise in writing.
B. Instruments of Conveyance and Transfer. At Closing: (i) Seller
shall deliver to Purchaser a ▇▇▇▇ of sale and assignments for the Assets in
forms satisfactory to Purchaser and containing, among other things, full
warranties of title to vest in Purchaser good, absolute and marketable title to
the Assets, free and clear of all liens, charges and encumbrances whatsoever,
except as otherwise provided herein, and such
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other instruments required herein; (ii) Seller shall take and complete all such
requisite steps to put Purchaser in actual possession, operation and control of
the Assets; and (iii) Purchaser shall deliver to Seller the Shares.
C. Conditions Precedent to the Closing. (i) By Purchaser. The
obligation of Purchaser to consummate this Agreement shall be subject to, and
conditioned upon, the satisfaction, at or prior to Closing, of each of the
following conditions, and as otherwise provided in this Section, except to the
extent of any waiver by Purchaser in writing signed by Purchaser:
(1) Compliance with Agreement. Seller shall have
performed and complied with all covenants and
Agreements of Seller hereunder, and satisfied all
conditions hereunder, that Seller is required
by this Agreement to perform, comply with, or
satisfy before or at Closing, and all actions,
proceedings, instruments and documents required of
Seller to carry out the terms of this Agreement
shall have been duly delivered to Purchaser.
(2) Adverse Changes. No event shall have occurred
between the date of this Agreement and the Closing
date which has or might reasonably have a material
adverse affect on the Assets.
(3) Representations. The express and implied
representations of Seller hereunder, which shall
be deemed (i) to have been made as of the date of
this Agreement and also on the Closing date and
(ii) to continue and survive the Closing, shall be
true, complete and correct.
(4) Approval by Legal Counsel. All actions,
proceedings, instruments and documents required of
Seller to carry out the terms of this Agreement,
or incidental hereto, and all other related legal
matters, shall have been approved by legal counsel
of Purchaser.
(5) Errors, Etc. Purchaser shall not have discovered
any material error, misstatement or omission of
Seller
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hereunder or in any information, schedule or
exhibit delivered to Purchaser.
(6) Seller's Performance. All of the terms and
conditions of this Agreement to be complied with
and performed by Seller on or before the Closing
shall have been complied with and performed.
(G) Exhibits and Schedules. Except as otherwise provided herein,
Seller shall prepare and deliver all of the exhibits and
schedules, stated herein as attached hereto.
(ii) By Seller. The obligation of Seller to consummate this Agreement
shall be subject to and conditioned upon the satisfaction, at or prior to
Closing, of each of the following conditions, except to the extent of any
waiver by Seller in writing signed by Seller:
(A) Compliance with Agreement. Purchaser shall have performed and complied
with all covenants and agreements of Purchaser hereunder, and satisfied all
conditions hereunder, that Purchaser is required by this Agreement to
perform, comply with, or satisfy before or at Closing.
(B) Purchase Price. Purchaser shall have delivered the shares or confirmation
of the delivery authorization within 30 days of the date first written
above.
D. Transition. Seller shall aid and assist Purchaser in the transition
of ownership of the Assets.
7. CERTAIN REPRESENTATIONS OF SELLER. As a material inducement to Purchaser
to enter into this Agreement and perform hereunder, Seller hereby represents to
Purchaser, in addition to such other representations contained elsewhere herein,
the following:
A. Absence of Specified Changes. Except as provided herein, Seller has
not, and from the date hereof to and including the Closing, Seller will not have
(as to the Seller, and the Assets as the context permits): (i) mortgaged,
pledged, subjected to lien, charged, encumbered or granted a security interest,
tangible or intangible; (ii) suffered any damage, destruction or loss (whether
or not covered by insurance) or waived any rights of substantial value in
respect thereof; (iii) entered into any transaction other than in the ordinary
course of business; (iv) experienced any
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material adverse change or event; (v) incurred any obligations or liabilities,
except current liabilities in the ordinary course of business; (vi) made any
amendment or termination of any contract, agreement or license, except in the
ordinary course of business; or (vii) sold or transferred any of its assets.
B. Liabilities. Except as disclosed herein, Seller has no
debts, contracts, liabilities or obligations of any kind, character or
description, whether accrued, absolute, contingent or otherwise, or due or to
become due, for which Purchaser shall in any way be directly or indirectly
subject to or liable for. Seller represents that Purchaser shall not be liable
for any liabilities or obligations of Seller, and Seller hereby agrees to
indemnify and hold Purchaser harmless from all liabilities and obligations.
C. Taxes. Within the times and in the manner prescribed by law, Seller
has filed all government assessments and penalties due and payable. There are
no present disputes as to taxes, of any nature, payable by Seller.
D. Litigation. There is no suit, action, arbitration or legal,
administrative or other proceeding, or governmental investigation, pending or
threatened against or by (as the context permits) the Assets, or Seller; nor is
Seller aware of any facts which has or may result in any action, suit or
proceeding against Purchaser in respect of the Assets.
E. Title To and Condition of Assets. Seller has good, absolute and
marketable title to all property being sold to Purchaser pursuant to this
Agreement.
F. Compliance with Law and Other Instruments. Seller is a duly
organized, validly existing corporation in good standing in Costa Rica. Seller
is not in violation or default of any term or provision of any law, charter,
bylaw, mortgage, indenture, contract, agreement, lease, instrument, judgment,
decree, order, statute, rule, regulation or ordinance, and the execution,
delivery and performance of, and compliance with, this Agreement will not
result in the violation of, or be in conflict with, or constitute a default
under, any such term or provision or result in the creation of any mortgage,
lien, encumbrance, or charge upon any of the Assets pursuant to any such term
or provision.
G. Disclosure. To the best of Seller's knowledge, no representation or
warranty by Seller contained, reflected or referred to in this Agreement
contains, or will contain, any untrue statement of material fact or omits or
will omit to state any material fact (of which Seller has knowledge or notice)
otherwise required to make
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the statements herein not misleading. Seller has no knowledge of any materially
adverse matter or thing (threatened or existing) relative to the condition,
financial or otherwise, of the Assets or its prospects, not disclosed in this
Agreement.
H. Subsidiaries. Seller has no subsidiaries.
I. Regulation S. Seller agrees that Seller has received an offer to
receive the Shares identified herein, offshore of the U.S.A. and has purchased
the securities offshore of the U.S.A. Neither the Seller nor any officer,
Director, owner or controlling person is a resident or citizen of the U.S.A. The
Seller has received this document prior to purchasing the Securities, or any
negotiations in connection with same. The Seller has received a copy of, has
read, and understands Regulation S. The Seller understands that Regulation S
applies to this transaction and that the Seller has restrictions and limitations
applicable to the securities including, without limitation a restriction of
resale for at least 40 days from the Closing. The securities have not been
registered under the U.S. Securities Act of 1933, as amended, and may not be
offered or sold in the U.S.A. or to persons in the U.S.A. unless the securities
are registered under said Act or an exemption from the registration requirement
of the Act is available. The Seller understands and agrees that any requirement
to register these securities in Costa Rica are the responsibility of the Seller.
8. NATURE AND SURVIVAL OF REPRESENTATIONS. All statements herein, or in any
other document delivered by or on behalf of Seller for information or reliance
by Purchaser pursuant to this Agreement, shall be deemed representations by
Seller and incorporated herein. All such representations shall also be true,
complete and correct as of the Closing date as if made on that date and shall
survive the Closing, and any inspection or investigation made by Purchaser or
Purchaser's representatives.
9. INDEMNIFICATION. Seller hereby agrees to indemnify and hold harmless
Purchaser at all times from and after the Closing against and in respect of
110% of any damages, including any claims, actions, demands, losses, costs,
expenses, obligations, liabilities (joint or several), interest, penalties,
reasonable attorneys' fees through appeals (including without limitation,
attorneys' fees incurred in investigating or in attempting to avoid such
damages or in opposing the imposition thereof or in enforcing this
indemnification), resulting to the Purchaser from: (i) any inaccurate
representation of Seller made under this Agreement; (ii) breach by Seller of
any of Seller's representations; (iii) breach or default in the performance by
Seller of any of the covenants or agreements hereunder applicable to Seller, or
in any
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agreement executed pursuant to this Agreement; (iv) any undisclosed debts,
liabilities or obligations of Seller whether accrued, absolute, contingent or
otherwise, or due or to become due; and (v) any actions, suits, appeals,
proceedings, demands, assessments, judgments, costs and expenses, including
reasonable attorneys' fees through appeals, incident to the foregoing.
10. ACCESS TO ASSETS AND RECORDS. From and after the date of this Agreement,
Seller shall afford to Purchaser, and Purchaser's legal counsel, accountant and
other authorized representatives, free and full access to the properties, books
and records of Seller and all such other items of Seller or within Seller's
control discussed herein in order for Purchaser to have a full opportunity to
make whatever inspections and investigations Purchaser shall desire of the
affairs of Seller, provided that such inspections and investigations shall not
unreasonably interfere with the operations of Seller. Any such inspections and
investigations shall not constitute a waiver or relinquishment by the Purchaser
of Purchaser's right to rely upon the (implied and express) covenants and
representations of Seller and Seller's affiliates as made herein or pursuant
hereto.
11. PUBLICITY. All notices to third parties and all other publicity concerning
the Sale prior to Closing, except as necessary to consummate this Agreement,
shall be jointly planned and coordinated by, and between, Purchaser and Seller
and following the Closing only Purchaser will be permitted to effect any
publicity, with Seller to cooperate.
12. EXCUSE OF PERFORMANCE - RISK OF DAMAGE. Prior to Closing, risk of damage,
loss, destruction or theft of any of the Assets shall be on Seller, and in the
event any material damage to the Assets occurs prior to Closing, Purchaser, at
Purchaser's discretion, shall be entitled to (i) cancel this Agreement, and (ii)
a return of any and all deposits made, and all parties shall thereupon be
relieved of all further obligations to each other hereunder.
13. MISCELLANEOUS PROVISIONS. A. Gender. Wherever the context shall require,
all words herein in the masculine gender shall be deemed to include the feminine
or neuter gender, all singular words shall include the plural, and all plural
shall include the singular.
B. Severability. If any provision hereof is deemed unenforceable by a
court of competent jurisdiction, the remainder of this Agreement, and the
application of such provision in other circumstances shall not be affected
thereby.
C. Further Cooperation. From and after the date of this Agreement, each
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of the parties hereto agrees to execute whatever additional documentation or
instruments as are necessary to carry out the intent and purposes of this
Agreement or to comply with any law.
D. Waiver. No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the waiving party. The failure of any party at
any time to insist upon strict performance of any condition, promise, agreement
or understanding set forth herein, shall not be construed as a waiver or
relinquishment of any other condition, promise, agreement or understanding set
forth herein or of the right to insist upon strict performance of such waived
condition, promise, agreement or understanding at any other time.
E. Expenses. Except as otherwise provided herein, each party hereto
shall bear all expenses incurred by each such party in connection with this
Agreement and in the consummation of the transactions contemplated hereby and in
preparation thereof.
F. Amendment. This Agreement may only be amended or modified at any
time, and from time to time, in writing, executed by the parties hereto.
G. Captions. Captions herein are for the convenience of the parties and
shall not affect the interpretation of this Agreement.
H. Counterpart Execution. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
I. Assignment. This Agreement is freely assignable by Purchaser. On any
such assignment, Seller shall look solely to the assignee for the obligations of
Purchaser hereunder. Seller shall not assign this Agreement.
J. Parties in Interest. Provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by Purchaser and Seller,
their heirs, executors, administrators, other permitted successors and assigns,
if any. Nothing contained in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties to it and their respective successors and
assigns, nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement, nor
shall any provision give any third persons any right of subrogation over, or
action against, any party to this Agreement.
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K. Entire Agreement. This Agreement and the exhibits attached hereto
constitute the entire agreement and understanding of the parties on the subject
matter hereof and supersede all prior agreements and understandings.
L. Construction. This Agreement shall be governed by the laws of the
State of Florida, U.S.A., without reference to conflict of laws and the venue
for any action, claim or dispute in respect of this Agreement shall be such
court of competent jurisdiction as is located in Broward County, Florida. The
parties agree and acknowledge that each has reviewed this Agreement and the
normal rule of construction that agreements are to be construed against the
drafting party shall not apply in respect of this Agreement given the parties
have mutually negotiated and drafted this Agreement.
M. Attorneys' Fees. In the event either party seeks to enforce this
Agreement, whether or not through litigation, the prevailing party shall be
entitled to receive reasonable attorneys' fees through appeals and all costs and
expenses incurred in connection with such enforcement, including fees, costs and
expenses of appeals.
N. Cooperation. The parties hereto agree to cooperate with one another
in respect of this Agreement, including reviewing and executing any document
necessary for the performance of this Agreement, to comply with law or as
reasonably requested by any party hereto, or legal counsel to any party hereto.
O. Independent Legal Counsel. The parties hereto agree that (i) each has
retained independent legal counsel in connection with the negotiation,
preparation and execution of this Agreement, (ii) each has been advised of the
importance of retaining legal counsel, and (iii) by the execution of this
Agreement, each party who has not retained independent legal counsel
acknowledges having waived such right. Notwithstanding the foregoing, it is
hereby acknowledged that the law firm of Rossi & Associates, Attorneys, P.A. has
acted as legal counsel to Purchaser only.
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