EXHIBIT 6.3
AMENDED AND RESTATED PURCHASE AGREEMENT
This Amended and Restated Purchase Agreement ("Agreement") is entered into
as of May 5, 1999 by and between Intercapital Global Fund, Ltd., a corporation
organized under the laws of Antigua and Barbuda ("IGF"), and Summerhill Gaming
Limited, a corporation organized under the laws of the Bahamas ("SGL"), and
supersedes all previous agreements.
WHEREAS, IGF is engaged in the Internet gaming business and is in the
process of establishing an Internet casino and sports book website known as
xxx.xxxxxxxxxx.xxx ("Slotsvegas"); and
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WHEREAS, SGL desires to purchase a fifty (50%) percent ownership interest
in Slotsvegas and the right to an equal profit and loss participation therein
(such interest and right hereinafter the "Slotsvegas Participation").
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the parties hereto agree as follows:
Section 1. Purchase of Slotsvegas Participation. (a) IGF hereby sells and
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transfers to SGL, and SGL hereby purchases and accepts from IGF, the Slotsvegas
Participation in consideration for $500,000 in cash (the "Purchase Price") to be
paid by SGL to IGF upon execution of this Agreement. Such advance payment is
non-refundable under any circumstances. Upon receipt of the Purchase Price and
commencement of operations at the Slotsvegas site, IGF shall maintain a separate
set of books and records which will account for the assets, liabilities,
profits, losses and other operations associated with the Slotsvegas site. The
profit or loss, for purposes of defining the Slotsvegas Participation (the"net
profits") shall mean: (i) the net gaming winnings, (ii) less expenses directly
attributable to the operation of the website, licensing fees, ISP charges,
credit card processing fees, advertising costs, etc..., (iii) less allocatable
overhead costs attributable to the website operation, operating salaries,
customer service, depreciation, maintenance, office supplies, etc..., as
determined based upon the relative percentage of revenues of the Slotsvegas
website over all revenues of IGF's parent company, Total Entertainment Inc.,
(iv) plus proceeds from the sale of the website to a third party, (v) plus any
other revenues or expenses attributable to the website.
(b) The assets of the Slotsvegas website shall consist of the preferred
software licensing costs, hardware and software used specifically in the website
and accounts receivable from IGF's credit card processor. The liabilities of
the Slotsvegas website shall consist of customer accounts payable and accrued
expenses relating to the operation of the website. IGF shall pay over to SGL on
a monthly basis or such other interim basis as the parties may agree, one-half
of the estimated net profits derived from the Slotsvegas site, as determined in
accordance with generally accepted accounting principles in the United States.
Within 90 days following the end of each fiscal year, the parties shall
reconcile and adjust such interim payments to the actual net profits or losses
based upon the annual audited financial statements of IGF (or its parent, Total
Entertainment Inc.).
(c) Should the operation of the Slotsvegas website cease on a permanent
basis, for any reason, then the calculation of the net profits, as previously
defined, shall be discontinued and neither IGF or SGL shall be required to fund
any further expenses, except as required by applicable law. To the extent the
net profit of the Slotsvegas website is negative (i.e a loss), then SGL is
required to fund 50 % of such loss to IGF on same payment terms as discussed
above.
Section 2. Responsibilities. IGF shall be responsible for creating,
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maintaining and operating the Slotsvegas site and, in connection therewith,
shall supply all necessary hardware, software, technical support and
maintenance. IGF shall also be responsible for management, marketing and all
other matters with respect to the Slotsvegas site. SGL shall have no management,
operational or other rights or responsibilities with respect to the Slotsvegas
site.
Section 3. Liquidity Advances. From time to time upon request of IGF, SGL
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may make short-term loans to IGF for liquidity purposes (the "Liquidity
Advances"). If SGL elects to make Liquidity Advances, the parties shall agree on
the maturity, interest rate and other terms and conditions thereof. The
Liquidity Advances shall not affect the parties' rights and responsibilities
hereunder with respect to the Slotsvegas site.
Section 4. Representations and Warranties of IGF. IGF represents and
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warrants to SGL as of the date hereof as follows:
(a) IGF has full power and authority to execute, deliver and perform
this Agreement and the agreements and instruments to be executed and delivered
by it hereunder, and has taken all action and secured all consents necessary to
authorize the execution, delivery and performance by it of this Agreement and
the agreements and instruments to be executed and delivered by it hereunder.
(b) This Agreement has been duly executed and delivered by IGF, and
this Agreement constitutes the legal, valid and binding obligation of IGF,
enforceable against it in accordance with its terms.
(c) The execution, delivery and performance by IGF of this
Agreement does not violate, conflict with, or constitute (with or without the
giving of notice or passage of time or both) a default under any provisions of
(i) any order, writ, injunction, judgment, decree, law, statute, rule or
regulation applicable to IGF or to the Slotsvegas site, or (ii) any note,
indenture, mortgage, deed of trust or other instrument or agreement to which IGF
is a party or by which it is bound or subject.
(d) IGF has obtained all approvals, authorizations, consents,
licenses, franchises, orders, certificates and all other permits of, and has
made all filings with, any governmental authority which is required for the
ownership of Slotsvegas or the conduct of an Internet gaming business thereon.
(e) IGF has good title to Slotsvegas and shall deliver to SGL good
title to the Slotsvegas Participation free and clear of all liens, tax liens,
mortgages, security interests,
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encumbrances, claims or similar adverse interests of any kind or character, and
has full right, power, and authority to sell, convey and transfer the Slotsvegas
Participation in accordance with the terms of this Agreement.
(f) To IGF's knowledge, as of the date hereof, no litigation,
investigation or proceeding by or before any court or governmental authority or
arbitrator is pending or threatened against IGF with respect to Slotsvegas or
affecting any of the property or assets of Slotsvegas, and IGF is not a party to
or subject to the provisions of any order, writ, injunction, decree or judgment
of any governmental authority in connection with the on-going operations of
Slotsvegas.
(g) Except those previously obtained, no consent, authorization,
approval, permit or order of, waiver by, or notice or declaration to, or
registration, qualification or filing with, any governmental authority or other
person pursuant to any applicable laws or agreements, is required on the part of
IGF in connection with IGF's execution, delivery or performance of this
Agreement or the consummation of any of the transactions contemplated hereby.
Section 5. Representations and Warranties of SGL. SGL represents and
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warrants to IGF as of the date hereof as follows:
(a) SGL is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, and has the
power and authority to own its properties and to carry on its business as
presently conducted.
(b) SGL has the power and authority to execute, deliver and perform
this Agreement, and has taken all action necessary to authorize its execution,
delivery and performance of this Agreement, and the agreements and instruments
to be executed and delivered by it hereunder.
(c) This Agreement has been duly executed and delivered by SGL, and
this Agreement constitutes the legal, valid and binding obligation of SGL,
enforceable against it in accordance with its terms.
Section 6. Further Assurances. At any time and from time to time after
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the date hereof, each party will use its best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things reasonably
requested by the other party to make effective the transactions contemplated by
this Agreement.
Section 7. Expenses. Except as otherwise provided herein, all expenses
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incurred by or on behalf of the parties hereto in connection with this Agreement
shall be borne solely by the party who incurred the charge.
Section 8. Notices. All notices and other communications hereunder shall
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be in writing and shall be deemed given (a) on the date of delivery if delivered
personally; (b) on the date after delivery in the continental United States to a
reputable nationally recognized overnight courier service prepaid and with
instruction to deliver the next morning; or (c) three (3) days after being
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mailed by registered or certified mail (return receipt requested) to the parties
at the address set forth on the signature page hereof (or at such other address
for a party as shall be specified by like notice).
Section 9. Entire Agreement; Amendment. This Agreement constitutes the
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entire agreement and understanding between the parties pertaining to the subject
matter hereof, and supersedes all prior agreements, understandings,
negotiations and discussions of the parties, whether written or oral. No
amendment, supplement, or modification of this Agreement shall be binding or
effective unless executed in writing and signed on behalf of each party.
Section 10. Governing Law. This Agreement shall be governed by and
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construed under the laws of the State of New York, without reference to
conflicts of laws principles.
Section 11. Assignment. No party may assign this Agreement or any rights
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or obligations hereunder without first obtaining the written consent of the
other party. Any attempted or purported assignment by either party in violation
of this Section 11 shall be null and void.
Section 12. Binding Effect. This Agreement shall be binding upon, and
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shall inure to the benefit of and be enforceable by, the parties hereto and
their respective successors and permitted assigns. This Agreement is for the
sole benefit of the parties hereto and nothing in this Agreement, expressed or
implied, is intended or shall be construed to confer upon any person, other than
the parties and their successors and permitted assigns, any right, remedy or
claim under or by reason of this Agreement.
Section 13. Waivers. Any term or provision of this Agreement may be
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waived, or the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. The failure of any party hereto to enforce at
any time any provision of this Agreement shall not be construed to be a waiver
of such provision, nor in any way to affect the validity of this Agreement or
any part hereof or the right of any party thereafter to enforce each and every
such provision. No waiver of any breach of this Agreement shall be held to
constitute a waiver of any other or subsequent breach.
Section 14. Partial Invalidity. Wherever possible, each provision hereof
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shall be interpreted in such manner as to be effective and valid under
applicable laws, but in case any one or more or the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision or provisions had never been
contained herein unless the deletion of such provision or provisions would
result in such a material change as to cause completion of the transactions
contemplated hereby to be unreasonable.
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Section 15. Counterparts. This Agreement may be executed in any number
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of counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
INTERCAPITAL GLOBAL FUND, LTD.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
Address for Notices:
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx, Xxxxxx H3A 155
SUMMERHILL GAMING LIMITED
By: /s/ Xxxxxx Xxxxxxx
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Name: XXXXXX XXXXXXX, Phd.
Title: ATTNY-IN-FACT/V.P.
Address for Notices:
QUEEN STREET
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DEVONSHIRE HOUSE
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NASSAU, BAHAMAS
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