Exhibit 2.1
AGREEMENT FOR EXCHANGE OF CORPORATE STOCK
THIS AGREEMENT FOR EXCHANGE OF CORPORATE STOCK (referred to as
"Agreement") is made and entered into by and between WHITEMARK HOMES, INC.,
a Colorado corporation,("Buyer"), and XXXX XXXXXXXX, XXXXX XXXXXXXX AND XXXX
XXXXXXXX, as to their current respective ownership in those companies
described in Exhibit "A" ("Sellers").
RECITALS:
A. Sellers, either individually or collectively, currently own one
hundred percent (100%) of the issued and outstanding shares of Stock of
NORTH FLORIDA CONSULTING, INC. and certain other corporations which are
related thereto or affiliated therewith (all of which are, in the aggregate,
referred to as "Corporation") in the following manner:
SEE EXHIBIT "A", ATTACHED AND MADE A PART HEREOF.
Exhibit "A" consists of two portions. Exhibit "A" depicts the current
ownership of the stock in the Corporation, and Exhibit "A-1" depicts the
manner in which it is anticipated that the stock of Corporation will be
owned immediately prior to closing, subject to the consent or agreement of
certain parties who have participation, ownership or equity interests in
Corporation.
B. Corporation owns and operates certain real estate interests in
Florida and Texas, as more particularly described below (the "Businesses")
SEE EXHIBIT "B", ATTACHED AND MADE A PART HEREOF.
C. The Corporation and related Businesses own certain real estate
holdings in various stages of development or development approval, which
constitute the majority of the valuable assets of Corporation. These real
estate holdings are identified as follows and are sometimes referred to in
this Agreement as the "Properties." The Properties are listed on Exhibit
"A" by project name.
X. Xxxxxxx desire to transfer to Buyer all their interest in the
above- listed issued and outstanding Stock of Corporation as shown on
Exhibit "A" or as modified prior to closing pursuant to Exhibit "A-1" upon
the terms and conditions contained herein, and Buyer desires to obtain the
same.
NOW, THEREFORE, in consideration of the premises, and the mutual
promises, covenants, and conditions herein set forth and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto mutually covenant and agree as follows:
1. Recitals. The recitals set forth above are true and correct and
are incorporated herein by reference.
2. Definitions. The following definitions and abbreviations will be
used for purposes of this Agreement:
(a) "Stock" means all of the stock owned by Sellers (as
identified on Exhibit "A") of the issued and outstanding shares of all
classes of capital Stock in Corporation, as well as stock to be owned at
closing as identified on Exhibit "A-1". As used in this Agreement, the term
"Stock" when meant to refer to the ownership interests in the entities which
form a part of the businesses listed on Exhibits "A" and "A-1", shall refer
to common or other types of stock, represents ownership of said Businesses.
In each case, Sellers transfer of their ownership interest shall be
evidenced by the transfer of stock in the Corporations which own said
Businesses.
(b) "Real Property" means any real property owned by
"Corporation," and to the extent that the context permits or requires
includes any property being used or occupied by the Corporation under
written lease, intended to be purchased pursuant to a purchase or option
agreement, or otherwise held in a manner in which Corporation has an
equitable or legal interest.
(c) "Effective Date" and "date of this Agreement" both mean the
date on which the last of the parties will have executed this Agreement (so
that the Agreement is fully executed) and gives notice of that execution to
the other party.
(d) "Assets" means all property of any kind, real or personal,
tangible or intangible, or otherwise, owned by the Corporation. (e) Other
terms as are defined throughout this Agreement.
3. Exchange of Stock. Subject to the terms and conditions herein set
forth in this Agreement, Sellers shall transfer, assign and convey the Stock
to Buyer, and Buyer shall acquire the Stock from Sellers in the manner
described in this Agreement.
4. Closing.
(a) Closing shall occur on or before September 30, 2001, or may
be extended by Buyer for up to 60 days, provided Buyer meets those financial
obligations of Sellers and Corporation falling due within said 60 days, as
more particularly described on Exhibit "Q", but no extension shall extend
the closing beyond November 29, 2001, time being of the essence.
(b) Closing shall occur at a time and place mutually agreeable
to by the parties. In the absence of an agreement, the closing shall occur
at the offices of the Sellers in Destin.
(c) Buyer's obligation to close upon the terms of this Agreement
shall be specifically conditioned upon the fulfillment, to Buyer's
satisfaction, or written waiver by Buyer of each of the following:
i) At closing, Buyer shall acquire one hundred percent
(100%) of the outstanding shares of common stock of Corporation. The manner
of acquisition shall be a nontaxable share exchange acquisition complying
with Section 368 of the Internal Revenue Code of 1986. On the closing date,
Buyer shall deliver to Sellers the greater of Five Million (5,000,000)
shares of common stock of Buyer, or ninety-five percent (95%) of the number
of shares owned by Xxxxx Xxxxx ("White Shares") at time of stock delivery to
Sellers, which shall constitute the exchange value for the Corporation.
Notwithstanding the foregoing, the White Shares shall not include any shares
purchased by Xxxxx Xxxxx after the Effective Date on the open market. The
White Shares shall include any stock acquired by Xxxxx Xxxxx by virtue of
any stock splits, other than stock splits on purchased shares after the
Effective Date. The shares shall be restricted under Section 144 of SEC
regulations, which regulates transferability of the shares. Each stock
certificate issued to Sellers shall have a legend printed thereon which
recites and complies with the restriction terms set forth in Section 144.
Sellers further acknowledge that each of them is an "Accredited Investor" as
defined in Section 10-b(5) of the Securities Exchange Act, and each has had
ample opportunity to fully investigate and make inquiries of Buyer as to any
facts or circumstances which may be material to the acquisition by them of
the shares of Stock of Buyer.
Together with the delivery of the stock to Sellers, the
parties shall enter into an agreement at closing which will allow the
Sellers to the extent they do not already have that right pursuant to the
percentage ownership of stock they have, to appoint at least one member to
the Boards of Directors of Buyer and North Florida Consulting, Inc., with
the remainder of the Boards to be selected by all of the shareholders of
Buyer in the manner provided in its Bylaws. This right of appointment shall
exist for so long as Sellers own five percent or more of the outstanding
shares of Buyer or North Florida Consulting, Inc.
ii) The determination by Buyer that the Businesses have
obtained or are capable of obtaining, within a time period acceptable to
Buyer, all of the permits, development approvals, governmental approvals or
other regulatory actions which may be necessary to permit the construction,
development and sale of the Properties constituting the Businesses in a
manner consistent with the plans and specifications previously prepared for
them by Sellers and presented to Buyer.
(iii) Satisfactory confirmation of anticipated presales,
including reservations, together with confirmation of the deposits
associated therewith, which may have been obtained for portions of the
Properties which have been offered for sale to purchasers in the ordinary
course of business.
(iv) The closing shall be further contingent upon the
truth, satisfaction, and fulfillment of each and every one of the
representations and warranties or other agreements of the parties contained
within the terms of this agreement.
5. Purchase Price and Method of Payment.
(a) The Purchase Price shall be paid by the issuance by Buyer to
Sellers, in such manner as the three Sellers shall direct at closing, the
greater of Five Million (5,000,000) shares of the common stock of Buyer, or
ninety-five percent (95%) of the number of shares owned by Xxxxx Xxxxx
("White Shares") at time of stock delivery to Sellers, which shall
constitute the exchange value for the corporation and shall be issued on the
closing date. Notwithstanding the foregoing, the White Shares shall not
include any shares purchased by Xxxxx Xxxxx after the Effective Date on the
open market. The White Shares shall include any stock acquired by Xxxxx
Xxxxx by virtue of any stock splits, other than stock splits on purchased
shares after the Effective Date. The parties hereto acknowledge that
certain liabilities of the Corporation, as listed on Exhibits "G" and "H"
will not be satisfied prior to Closing and that Buyer is purchasing the
Stock subject to such liabilities of the Corporation. Buyer further
acknowledges that transfer of certain portions of the Stock subject to such
liabilities is conditioned on the approval of the holders of such
liabilities. Buyer shall pay those liabilities described in Exhibit "R"
within the time frames described thereon.
6. Operation of Corporation and Buyer.
(a) Until Closing, Sellers shall cause the following:
(i) The operation of Corporation's Businesses to
preserve the value of Corporation's assets. No sale, transfer or wasting
of any Assets will be permitted other than in the ordinary course of
business or with the consent of Buyer.
(ii) The Businesses of Corporation to be operated in the
usual and normal manner.
(iii) The payment of all obligations of the Corporation as
they mature and become due, except as may be otherwise disclosed on Exhibit
"H", or as maybe required of Buyer to pay as described in Exhibits "Q" and
"R".
(iv) The operation of the Corporation's Businesses so as
to not violate any governmental laws and regulations.
(b) Until Closing, Buyer shall cause the following:
(i) The operation of Buyer's Business to preserve the
value of Corporation's assets. No sale, transfer or wasting of any assets
will be permitted other than in the ordinary course of business or with the
consent of Sellers.
(ii) The Business of Buyer to be operated in the usual
and normal manner.
(iii) The payment of all obligations of the Buyer as they
mature and become due.
(iv) The operation of the Buyer's business so as to not
violate any governmental laws and regulations.
7. No Issuance of Stock. So long as this Agreement is in effect,
Sellers shall not cause or authorize or permit any issuance of any
additional stock, securities convertible into any stock, stock warrants and
rights to acquire stock of the Corporation without the written consent of
Buyer. So long as this Agreement is in effect, Buyer shall not cause or
authorize or permit any issuance of any additional stock, securities
convertible into any stock, stock warrants and rights to acquire stock of
the Corporation without the written consent of Sellers.
8. Buyer's Right to Inspect.
(a) Any time prior to Closing, Buyer has the right to inspect
any and all of Corporation's books, records, accounts, financial
information, ledgers, and the like. Sellers shall cause Corporation to
allow Buyer access to said information during reasonable business hours.
(b) Buyer shall have the right to inspect all of the Properties
owned by Sellers which constitute a part of the Businesses, including the
right to enter onto any such Properties and conduct physical tests and
inspections of the condition thereof. Prior to conducting physical testing
of any of the Properties, Buyer shall obtain the consent of Sellers, which
consent shall not be unreasonably withheld, and shall provide a certificate
showing evidence of liability insurance coverage in a minimum amount of
$1,000,000.00, naming Sellers and Corporation as additional insureds.
Sellers shall also make available to Buyer all of Seller's records
concerning the Properties.
9. Seller's Right to Inspect.
(a) Any time prior to Closing, Sellers has the right to inspect
any and all of Buyer's books, records, accounts, financial information,
ledgers, and the like. Buyer shall allow Sellers access to said information
during reasonable business hours.
(b) Sellers shall have the right to inspect all of the
Properties owned by Buyer, including the right to enter onto any such
Properties and conduct physical tests and inspections of the condition
thereof. Prior to conducting physical testing of any of the Properties,
Sellers shall obtain the consent of Buyer, which consent shall not be
unreasonably withheld, and shall provide a certificate showing evidence of
liability insurance coverage in a minimum amount of $1,000,000.00, naming
Buyer as an additional insured. Sellers shall also make available to Buyer
all of Seller's records concerning the Properties.
10. Transfer of Stock or Distribution of Assets. With written notice
and full disclosure to Buyer so long as this Agreement is in effect:
(a) Sellers may mortgage or pledge any Stock of the Corporation
before the Closing.
(b) Sellers shall cause the Corporation to not, during the time
this Agreement is in effect, make or declare any dividends, or make or agree
to make any distributions of assets or dividends of any type to its
shareholders, except and unless specifically permitted herein, or by mutual
written consent of the parties.
(c) Buyer shall cause, during the time this Agreement is in
effect, make or declare any dividends, or make or agree to make any
distributions of assets or dividends of any type to its shareholders, except
and unless specifically permitted herein, or by mutual written consent of
the parties.
11. Conditions Precedent to Closing.
The obligation of Buyer and Sellers to perform their obligations
under this Agreement is subject to the satisfaction, on or before the
Closing, of the following conditions unless waived by the party entitled to
receive performance of said condition.
(a) Sellers and Buyer having performed all of their obligations
which are required to be performed on or before the Closing under this
Agreement. Each party shall execute at closing a signed certificate to the
effect that it has complied with and performed the obligations and
conditions required by this Agreement prior to the Closing.
(b) There shall be no material inaccuracy in the representations
and warranties of Sellers or Buyer set forth in this Agreement as of the
Closing Date, and such representations and warranties shall be true and
correct in all material respects as the Closing Date.
(c) Buyer shall have received an opinion from Seller's counsel,
satisfactory in scope and substance to counsel to Buyer, to the effect that:
(i) Corporation is a corporation duly organized and in
good standing under the laws of the State of its incorporation or formation
and has all requisite corporate power to own, lease, and operate its
properties and Business, and is duly qualified and in good standing in every
jurisdiction where it owns real estate, owns personal property, or operates
a Business. For purposes of this subparagraph the parties realize that the
opinion(s) will have to be tailored so that they relate to the specific
approvals or filings for each entity which forms a part of "Corporation";
(ii) This Agreement has been duly and validly authorized,
executed and delivered by Sellers and is a legally binding obligation of
Sellers, enforceable in accordance with its terms;
(iii) Such counsel does not have personal knowledge that,
except as disclosed herein, consummation of this Agreement will (A) give
rise to or cause any default under any of the terms, conditions, or
provisions of any note, bond, mortgage, indenture, license, agreement, or
any other instrument or obligation to which Sellers or Corporation is a
party or by which they or any of their Properties or assets may be bound, or
(B) violate any court order, writ, injunction or decree applicable to
Sellers or to Corporation, or any of their Properties or Assets;
(iv) All of the issued and outstanding Stock has been
validly issued, and are fully paid and non- assessable;
(v) Such counsel does not know of or have reason to
believe that any litigation, proceeding or investigation is pending or
threatened in writing which might result in a material adverse change in the
Corporation's Businesses or Properties, except as disclosed in writing to
Buyer;
(vi) Such counsel does not know of any default under, or
the occurrence of any event which, with the lapse of time or action by a
third party, could result in a default under, any outstanding indenture,
contract, or agreement to which Sellers or Corporation, or any of their
Properties may be subject, or under any governmental license or permit or
any provision of Corporation's Articles of Incorporation, Bylaws, corporate
resolutions or other indicia of legal existence;
(vii) It is counsel's opinion that Sellers may transfer
the stock contemplated herein to Buyer under applicable Florida and Texas
law.
(viii) It is counsel's opinion that Corporation has
marketable title to all of the Properties owned by Corporation subject only
to mortgages securing indebtedness specified in Exhibit "H" of this
Agreement or as disclosed in Schedule B-2 of title policies provided to
Buyer. Certain of the Properties are not titled in the name of Sellers. In
such cases, it is counsel's opinion that the options, buyout agreements or
participation agreements which regulate Seller's right to acquire the
Corporations and Properties are in full force and effect and enforceable
according to their terms.
(ix) That any resignations of Sellers and any other
resignations requested by Buyer to be effective as of the date of the
Closing are valid and effective, subject to the agreement giving Sellers the
right to designate board members pursuant to paragraph 4(c)(i).
(x) Corporation has no deferred compensation plans
which were qualified under the Internal Revenue Code of 1986, as amended,
and there is no outstanding funding or tax liabilities associated with any
such plans.
(d) Sellers shall have received an opinion from Buyer's
counsel, satisfactory in scope and substance to counsel to Sellers, to the
effect that:
(i) Buyer is a corporation duly organized and in good
standing under the laws of the State of Colorado and has all requisite
corporate power to own, lease, and operate its properties and Business, and
is duly qualified and in good standing in every jurisdiction where it owns
real estate, owns personal property, or operates a business.
(ii) This Agreement has been duly and validly
authorized, executed and delivered by Buyer and is a legally binding
obligation of Buyer, enforceable in accordance with its terms;
(iii) Such counsel does not have personal knowledge that,
except as disclosed herein, consummation of this Agreement will (A) give
rise to or cause any default under any of the terms, conditions, or
provisions of any note, bond, mortgage, indenture, license, agreement, or
any other instrument or obligation to which Buyer is a party or by which
they or any of their properties or assets may be bound, or (B) violate any
court order, writ, injunction or decree applicable to Buyer, or any of their
properties or assets;
(iv) All of the Stock being issued hereunder to Sellers
has been validly issued, and is fully paid and non- assessable;
(v) Such counsel does not know of or have reason to
believe that any litigation, proceeding or investigation is pending or
threatened in writing which might result in a material adverse change in the
business, properties, or prospects of Buyer, except as disclosed in writing
to Sellers;
(vi) Such counsel does not know of any default under,
or the occurrence of any event which, with the lapse of time or action by a
third party, could result in a default under, any outstanding indenture,
contract, or agreement to which Buyer, or any of its properties may be
subject, or under any governmental license or permit or any provision of
Buyer's Articles of Incorporation, Bylaws, corporate resolutions or other
indicia of legal existence;
(vii) From tax counsel, that this agreement meets the
tax free exchange provisions of the Internal Revenue Code so that Sellers
will not have any tax liability as a result of the parties' stock being
exchanged pursuant to this Agreement.
(viii) The opinion shall state the authorized stock and
outstanding and issued stock of the Buyer, the outstanding stock options,
dividends or "golden parachutes", the trading symbol of the Buyer and the
authority of the person signing this Agreement and closing documents have
the authority to bind the Buyer.
(e) The holders of any indebtedness of Sellers, Buyer or of
Corporation, the lessors of any material real or personal property leased by
Sellers, Buyer or by Corporation, and any other party to any material
contract with Sellers, Buyer or with Corporation, and any federal or state
regulatory agency having jurisdiction, to the extent that their or its
consent may be required by the pertinent debt, lease, or other contractual
instrument of Sellers, Buyer or Corporation, or applicable laws or
regulations for the consummation of the transactions contemplated hereby,
under any such lease or contract, shall have granted any necessary consent.
As to any notes, bonds, mortgages or indebtedness of any type which may be
owed by the Corporation, Sellers shall deliver any certificate, estoppel,
agreement or consent which may be reasonably required by Buyer or shall
notify Buyer in writing as to those consents it cannot obtain.
(f) The form and substance of all legal matters contemplated
herein and of all papers used for delivery hereunder shall be reasonably
acceptable to counsel for Sellers and Buyer.
(g) There has been no material adverse change in the financial
or economic condition or situation of Corporation or Buyer since the date of
execution of this Agreement, and the parties shall verify and certify that
this statement is true and correct on the Closing date.
(h) No action or proceeding against Sellers, Buyer or
Corporation has been instituted or threatened which, if successful, could
prohibit consummation or require substantial rescission of the transactions
contemplated under this Agreement.
(i) Sellers has delivered to Buyer and Buyer has delivered to
Sellers copies certified true and accurate by the Buyer's and Corporation's
secretary of Board of Directors, and Shareholders resolutions from
Corporation and Buyer approving of the transactions under this Agreement.
(j) Sellers to deliver to Buyer, proof satisfactory to Buyer's
counsel, that Sellers has obtained all necessary and desirable permits,
licenses and approvals from all applicable federal, state and local
regulatory agencies for the operation of Corporation's Businesses, and for
the transfer of Stock, as contemplated herein, if any approvals of the same
are necessary or required.
(k) Except as to those Properties disclosed as not yet being
owned by Corporation, Corporation has marketable title to all real property
owned by Corporation except for mortgages securing loans as scheduled in
this Agreement, except for those title exceptions which have been disclosed
in writing to Buyer and have been deemed acceptable to Buyer, and except for
the option agreements, purchase agreements, participation agreements and
other interests disclosed on Exhibit "C" or otherwise disclosed in writing
to Buyer.
(l) Subject to Sellers' right to designate a Board Member of
Buyer and NFC as provided for in paragraph 4(c)(i), Sellers shall deliver
the resignations or terminations of officers and directors of Corporation
which Buyer, in its sole discretion, deems desirable.
(m) To the extent any exist, all deferred compensation plans
which are qualified under the Internal Revenue Code of 1986, as amended, for
Corporation have been terminated.
(n) At Closing, Sellers delivers to Buyer a certificate of good
standing of Corporation certified by the Florida Secretary of State and
dated no more than thirty (30) days prior to Closing, and Buyer shall
deliver to Sellers a certificate of good standing issued by the Secretary of
State of Colorado and dated no more than thirty (30) days prior to Closing.
(o) Xxxx Xxxxxxxx executes and delivers to Buyer an Employment
Agreement in a form substantially similar to Exhibit "D." Said Employment
Agreement will provide that Xxxx Xxxxxxxx will continue to be employed by
Buyer and shall fulfill all of the material duties which he has heretofore
performed on behalf of Corporation and the Businesses. The term of the
Employment Agreement shall be five years, with a mutual option for a five
year extension.
(p) Receipt from each mortgagee, investor or other creditor
listed in Exhibit "H" of an estoppel letter certifying the balance of each
loan secured by any of the Assets as of a date not more than thirty (30)
days prior to Closing.
(q) Satisfaction of the requirements of Paragraph 25.
12. Representations and Warranties of Sellers. Sellers represents and
warrants to Buyer (as to each of the Businesses) as follows:
(a) Organization. Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of its
incorporation, as set forth in Exhibit "C", which is attached and made a
part hereof. Sellers shall cause Corporation to remain a validly existing
corporation in good standing at all times this Agreement is in effect.
Corporation has the corporate power to carry on its business that is now
being conducted and to own or hold under lease the Properties and Assets
that it now owns or holds under lease. As to any of the Properties which
are under contract or other agreement to be acquired by Sellers, any such
contract or agreement is in full force and effect and is binding against the
Sellers in such agreement or contract.
(b) Stock or Other Ownership. Except as otherwise disclosed in
Exhibit "C" or otherwise disclosed in writing to Buyer, Sellers holds and
owns beneficially and of record shares of common stock of Corporation which
is 100% of the issued and outstanding stock or other ownership interest in
Corporation; such shares are validly issued, fully paid and non-assessable;
Sellers has good and marketable title to the shares of stock in Corporation,
free and clear of any lien, pledge, encumbrance, equity, voting trust,
security interest, charge, claim or other restriction of any kind, and of
any rights in third persons to acquire any of the issued shares of stock in
Corporation; and Sellers has the absolute right, power, authority and
capacity to enter into and perform this Agreement.
(c) Valid Execution. This Agreement and the related documents
and agreements referred to herein and in the Exhibits attached hereto have
been duly and validly executed and delivered by Sellers, and are legally
binding on the Sellers, and are enforceable against Sellers in accordance
with their terms.
(d) Stock Options. Except as otherwise disclosed in Exhibit "C"
or disclosed in writing to Buyer there are no securities convertible into
stock; outstanding stock options; stock warrants; or rights to acquire stock
for Corporation.
(e) Claims Against Corporation. Sellers have no claims against
Corporation and Corporation is not obligated or liable to Sellers except as
otherwise set forth in Exhibit "E" attached hereto and incorporated herein.
(f) Formation Documentation. Attached hereto and incorporated
herein as Exhibit "F" is a true and correct listing of the Articles of
Incorporation and Bylaws, Partnership Agreements, Articles of Organization
and Regulations, Operating Agreements or other constituent documents related
to the creation and maintenance of Corporation and those entities having an
interest in the Assets and properties, including all Amendments made thereto
through the date of this Agreement. Sellers shall deliver to Buyer full
copies of each such document.
(g) Financial Statements. A copy of Corporation's 1998-2000
year-end financial and its August 31, 2001 compiled statements, without
notes, copies of which are attached hereto and incorporated herein as
Exhibit "G" accurately reflect the financial position of Corporation as of
its date and the results and operations of the Business of Corporation for
the year then ended. The financial statements referred to herein are
referred to collectively as the ("Financial Statements").
(h) No Undisclosed Liabilities. Corporation has no known
contingent liabilities and no other liabilities (whether accrued, absolute,
assumed or otherwise, and whether as a maker, guarantor, surety, or
otherwise, and whether due or to become due), except as set forth on the
Balance Sheet included in the Financial Statements and as set forth on
Exhibit "H," attached hereto and incorporated herein, or except as otherwise
disclosed in writing to Buyer. Such listing on Exhibit "H" shall include
any security interest securing the liabilities of the Corporation. Such
listing on Exhibit "H" shall include all liabilities of the Corporation as
of the Closing date.
(i) Absence of Certain Changes or Events. Since the date of the
Corporation's Balance Sheet, except as otherwise disclosed in Exhibits "H"
or "I," attached hereto and incorporated herein as the same may be amended
prior to closing, there have not been:
(i) Any materially adverse change in the Business or
financial condition of the Corporation;
(ii) Any damage, destruction or loss, whether covered by
insurance or not, materially and adversely affecting the Properties or
Business of the Corporation;
(iii) Any authorization, issuance, redemption,
repurchase, split, combination or reclassification of any shares of stock of
the Corporation or any declarations, setting aside or payment of a dividend
(whether in cash, stock, or property) of the Corporation;
(iv) Any secured or unsecured borrowing or any guarantee
for the borrowing of money by the Corporation or the issuance or creation of
(or any commitment with respect thereto) any bonds, debentures, notes or
other obligations for the payment of money by the Corporation except as set
forth on Exhibit "H" attached hereto and incorporated herein, and except as
otherwise incurred in the ordinary course of business or as disclosed in
writing to Buyer;
(v) Any labor trouble or loss or threatened loss of key
employees of the Corporation;
(vi) Any other event or condition of any character known
to Sellers pertaining to and materially or adversely affecting the
Properties, Business, licenses, contracts, or permits of the Corporation;
and
(vii) Any distribution, payments, or bonuses in cash or
other property to the shareholders, directors, officers or employees of the
Corporation, except for the customary salaries paid to such persons or as
disclosed to Buyer in writing.
(j) Absence of Litigation; Compliance with Laws, Etc. Except
as may be disclosed in Exhibit "S", or otherwise disclosed in writing to
Buyer, there is no action, suit, proceeding or claim and no investigation
pending or to the best knowledge of Sellers, threatened against, or directly
involving, the Corporation or its properties, Business or goodwill which has
or might have a material and adverse effect on the Corporation's Business or
condition and there is no unsatisfied or outstanding order, writ, judgment,
injunction, or decree affecting the Corporation or its assets, Business or
goodwill which has a material and adverse affect on the Corporation's
Business or condition. To the best knowledge of Sellers, the Corporation is
not in violation of any law or government regulation applicable to it or its
Properties or Business, including, but not limited to, any applicable
building, zoning, safety, environment control, fair employment, equal
opportunity, utility or similar law or regulation. Any pending litigation
shall be listed on Exhibit "H".
(k) Union Contracts. The Corporation is not a party to or
liable in connection with any oral or written collective bargaining
agreement or other agreement with any labor union or labor organization, and
no other such agreement has been requested by, or is under discussion with,
any group of employees or others.
(l) Tax Matters. The balance sheets included in the Financial
Statements of the Corporation contain adequate provisions for all unpaid
federal, state, county, municipal, local and foreign, sales, franchise, real
property, personal property and all other taxes of the Corporation as of the
date of such Financial Statements, including interest and penalties in
respect thereof for the periods ended as of such date and all fiscal periods
prior to those dates in accordance with generally accepted accounting
principles. Except as otherwise disclosed in Exhibit "J" attached hereto and
incorporated herein, the Corporation has duly and timely filed or validly
extended all tax returns and reports which are required to be filed,
including, but not limited to, returns and reports covering all of the
aforesaid taxes. None of the federal income tax returns of the Corporation
have been audited, except as noted on Exhibit "J". The Corporation has
filed all required state and federal employee withholding tax returns. There
are currently no pending audits of any federal, state, municipal or local
income tax returns of the Corporation, except as noted on Exhibit "J." As
of the date of execution of this Agreement, the Corporation has made all
required estimated tax payments in accordance with the applicable federal,
state or local laws and regulations. The parties recognize that the
Corporation is not a taxpaying entity, since it consists of "pass through"
entities which are not taxed at the entity level. Sellers represent that
they have received no notice of facts which might give rise to a challenge
or termination of any Subchapter S election or other "pass through" status.
(m) Governmental Licenses and Permits. The Corporation has all
licenses, permits and other governmental authorizations necessary for the
conduct of its Business. Sellers disclose that it does not possess all
permits for all of the Properties which are necessary to commence
development activities. All such licenses, permits and other governmental
authorizations are in full force and effect, and the sale of the Stock to
Buyer pursuant to this Agreement will not result in violation or revocation
of any of the licenses, permits, or other governmental authorizations.
(n) Contracts, Agreements and Leases. All contracts, notes,
agreements and leases in excess of $100,000.00 to which the Corporation is a
party or by which the Corporation's Assets are affected are listed in
Exhibit "K," attached hereto and incorporated herein (the "Contracts").
Except as disclosed on Exhibit "K" or otherwise disclosed in writing to
Buyer, the Corporation is not in default under any of the Contracts, the
Sellers is not aware of any default by any other party with respect to any
of the Contracts, and the sale of the Stock to Buyer pursuant to this
Agreement will not result in a violation of any of the Contracts or a
termination of any of the Contracts including any acceleration of any
amounts due thereunder, except as may be disclosed in writing to Buyer.
(o) Indebtedness of Corporation. The indebtedness of the
Corporation as of the date of this Agreement is as shown on the Balance
Sheet and is more specifically listed on Exhibit "H."
(p) Operation of Corporation. Until Closing, Sellers shall
cause Corporation to operate the Business in the normal course of business
pursuant to paragraph 6.
(q) Assets. That Corporation owns free and clear with
marketable title those assets listed on the Financial Statements or on
Exhibit "L," attached hereto and incorporated herein, subject only to the
liabilities, whether or not such liabilities are secured or unsecured,
listed on said Exhibit "L" or on Exhibit "H," or other matters which are
shown on Schedule B- 2 of the title policies obtained for Properties.
Assets to be listed on Exhibit "L" shall include, the assets listed on the
Financial Statements, and any other assets shown on Exhibit "L", which have
a value exceeding $5,000.00 but not otherwise shown on the financial
statements, including the name the Corporation conducts its Business under.
(r) Loans on Corporation Assets. The Corporation owns free and
clear, except as listed on Exhibit "H", and has marketable, fee simple title
to the Assets, except to the extent that Sellers has disclosed that it holds
assets in the nature of contractual rights, options or other executory
rights to acquire the Properties, which are disclosed on Exhibit "B". The
Assets are subject to the liabilities listed in Exhibit "H" and none others
in excess of $1,000.00. Sellers and the Corporation warrant and certify
that, except as disclosed on Exhibit "H" or otherwise disclosed in writing
to Buyer, the Corporation and any applicable guarantors, sureties, or other
obligors have fully performed, and are current on all of their respective
obligations under the loans referred to above and under all obligations
secured thereby or incurred in connection therewith (collectively referred
to herein as the "Loans"). Sellers and the Corporation further warrant
that, except as disclosed on Exhibit "H" or otherwise disclosed in writing
to Buyer, no condition exists under the Loans that with the giving of notice
or passage of time would constitute a default by the Corporation or any
applicable guarantors, sureties, or other obligors under the Loans. Within
fifteen (15) days after the Effective Date, Sellers shall deliver to Buyer
estoppel certificates from the holders of the mortgages, in form and
substance satisfactory to Buyer, certifying, among other matters, the
following:
(i) that copies of all Loan documents delivered to Buyer
are current, true, and complete, and have not been amended or modified,
whether in writing, verbally, or through course of dealing;
(ii) that, except as disclosed on Exhibit "H" or
otherwise disclosed in writing to Buyer, the Corporation and all applicable
guarantors, sureties, and other obligors are current on all obligations
under the Loans and no condition exists that with the giving of notice or
passage of time would constitute a default thereunder; and,
(iii) that the principal balance and accrued interest
then total an amount to be specified in the estoppel certificate. Through
the date of Closing, the Corporation and all guarantors, sureties, and other
obligors shall continue fully and timely to perform their obligations under
the Loans provided that Buyer performs its obligations under Paragraph 4(a)
and Exhibit "Q", Exhibit "R" and elsewhere in this Agreement. After
Closing, the Buyer shall insure that the Corporations obligated thereunder
shall either timely fulfill all contractual obligations related to the loans
or satisfy them according to the lenders' requirements prior to maturity.
(s) Absence of Deferred Compensation. The Corporation has no
qualified or unqualified plans, arrangements, or agreements of deferred
compensation for any employees, officers, directors, or independent
contractors. The Corporation has no obligation or liability under any
qualified or unqualified plans, arrangements, or agreements of deferred
compensation for any employees, officers, directors, or independent
contractors. For purposes of this subparagraph, "qualified" plan,
arrangement, and agreement of deferred compensation means a plan,
arrangement, or agreement qualified under Subchapter D of Chapter 1 of the
Internal Revenue Code of 1986, as amended, and "unqualified" plan,
arrangement, and agreement of deferred compensation means a plan,
arrangement, or agreement not so qualified.
(t) Employees.
(i) Except as otherwise disclosed on Exhibit "N", or
otherwise disclosed to Buyer in writing, no bonuses, increases in salary,
increases in commissions, or other forms of additional compensation have
been or will be given or promised employees of Corporation from the
Effective Date.
(ii) Corporation is in compliance with all local, state,
federal and foreign laws and regulations governing employees, and there are
no threatened or pending claims that Corporation is violating any laws or
regulations relating to its employees.
(iii) Sellers is not aware of any pending or threatened
dispute between Corporation and any of its employees that might materially
and adversely affect the continuance of the Corporation's Business
operations.
(iv) There is no written or oral employment agreement
that may not be terminated immediately and such immediate termination will
not result in any obligation of the Corporation in favor of such terminated
employee.
(v) The attached Exhibit "N" lists all of the employees
of Corporation, their salary and compensation.
(u) Employee Benefit Plans.
(i) All employee benefit plans and arrangements of
Corporation are included in Exhibit "M", and the copies of those plans and
arrangements in Exhibit "M" are true and accurate.
(ii) All such plans and arrangements comply with
applicable local, state, and federal law and regulations, and there are no
threatened, pending, or actual claims that such plans and arrangements
violate any local, state, or federal laws or regulations.
(iii) Without Buyer's written permission, Sellers shall
cause Corporation to not amend, modify, or terminate any of its employee
benefit plans or incur any further obligations other than in the ordinary
course of its business.
(v) Condemnation of Real Property. There are no condemnation or
eminent domain proceedings pending or, to the best of Seller's knowledge,
contemplated against any of Corporation's Real Property or any part thereof,
and Sellers has received no notice of the desire or intent of any public
authority or other entity to take or use any Real Property or any part
thereof.
(w) Suits Affecting Corporate Property. Except as shown on
Exhibit "H", or otherwise disclosed in writing to Buyer, there are no
pending suits or proceedings against or affecting Sellers and/or Corporation
that do or could affect title to the corporate assets or any part thereof,
or do or could prohibit or make unlawful the consummation of this
transaction, or render Sellers unable to consummate this transaction.
(x) Access to Property. All of Corporation's Real Property has
full and free access to and from dedicated and maintained public streets
and, to the best knowledge and belief of Sellers, there is no pending or
threatened governmental proceeding that would impair or result in the
termination of any access or street frontage presently available to any of
the Real Property.
(y) Compliance with Mortgages and Servitudes. Except as shown
on Exhibit "H" or otherwise disclosed in writing to Buyer, Sellers has no
knowledge or notice that any default or breach exists under any mortgage or
other encumbrance encumbering any of its Real Property or any leases,
covenants, conditions, restrictions, rights-of-way or easements that affect
any Real Property or any portion thereof, and that no condition or
circumstance exists which, with the passage of time or the giving of notice,
or otherwise, would result in a default or breach under any such leases,
covenants, conditions, restrictions, rights-of-way or easements.
(z) Commitments Affecting Real Property. Except as disclosed in
writing as part of Exhibit "O", or as otherwise reflected in a recorded
instrument shown on title insurance policies delivered to the Buyer, or as
otherwise disclosed in writing to Buyer, Sellers have not on their own
behalf or on behalf of Corporation made any commitments to any governmental
authority, utility company, school board, church or other religious body, or
any homeowners association (except for developer guarantee of shortfall
programs established pursuant to Chapter 718, Florida Statutes or pursuant
to recorded covenants and restrictions), or to any other organization,
group, or individual, that would impose an obligation upon Corporation, or
Buyer, or its successors or assigns to make any contribution or dedications
of money or land, or to construct, install, or maintain any improvements on
or off any of Corporation's Real Property; and no governmental authority has
imposed any requirement that any owner of any Real Property pay directly or
indirectly any special fees or contributions or incur any expenses or
obligations in connection with any development or use of the Real Property
or any part thereof. Notwithstanding the foregoing, there may be some
ongoing responsibility pursuant to environmental conservation easements
given pursuant to project permits.
(aa) Leases and Options. Except as made in the ordinary course
of business, as shown on Exhibit "H", or as otherwise disclosed in writing
to Buyer, Sellers has no knowledge of, and Sellers has given no person, firm
or other legal entity other than Corporation and Buyer, any right or option
whatsoever to acquire any of its Assets or any portion or portions thereof
or any interest or interests therein. No person or entity has any lease,
easement, license, or similar right to use or occupy the Assets other than
the Corporation.
(bb) Hazardous Substances. Sellers has no notice of the
presence on any of its Real Property or other Assets of asbestos or asbestos
products or any other hazardous substance as defined in 15 U.S.C.A. Sections
2601, et seq. and 42 U.S.C.A. 7401, et seq. Sellers shall indemnify,
defend, and hold Buyer harmless from all claims, liabilities, obligations,
costs or expenses incurred by Buyer or by Corporation as a result of any
asbestos or similar substance hereafter found on any of Corporation's Real
Property or other assets, but only to the extent that such substance was
placed on the site by Corporation or its agents or that Corporation or
Sellers had actual knowledge of the existence of said substance and failed
to disclose it to Buyer. If any asbestos or similar substance is found at
any time prior to closing, then Buyer, at Buyer's option may terminate this
Agreement.
(cc) Compliance with Land Use Restrictions. To the best of
Sellers' knowledge or as otherwise disclosed to Buyer in writing,
improvements on and the present use of any of Corporation's Real Property or
other Assets are not in violation of any zoning or other laws, nor is such
use being permitted only under the doctrine of pre-existing use. Between
the Effective Date and the Closing, except as otherwise disclosed in writing
to Buyer, neither Sellers nor Corporation shall file any application for any
change of the present zoning classification of any Real Property unless such
change is requested by or consented to by Buyer.
(dd) Condition of Improvements and Equipment. To the best of
Sellers' knowledge or as otherwise disclosed to Buyer in writing, the Real
Property and other Assets are in a good, safe, and substantial condition and
is subject to no recurring conditions requiring repair or replacement; and,
Sellers knows of no facts materially affecting the value or condition of the
Real Property or other Assets that are not readily observable by Buyer and
that have not been disclosed to Buyer. There are no conditions on the Real
Property or other Assets that are defective or in need of repair or
replacement. The improvements on the Real Property, and the equipment and
other Assets of Corporation are in good repair and operable condition.
(ee) Full Disclosure. All information furnished by Sellers
pursuant to or in connection with this Agreement (including, but not limited
to, information set forth in any Exhibit) is accurate and complete in all
material respects unless otherwise disclosed to Buyer in writing prior to
Closing, and includes all material facts required to be stated therein or
necessary to make the statements contained therein not misleading. All
documents furnished by Sellers to Buyer, or by Buyer to Seller, pursuant to
or in connection with the Agreement through Closing are true and correct
copies and there are no amendments or modifications to those documents. As
of the Closing date, the representations and warranties of Sellers are made
and reaffirmed, and Sellers has disclosed to Buyer all events, conditions
and facts known to Sellers to be materially affecting the Corporation's
Businesses.
13. Representations and Warranties of Buyer. Buyer hereby
represents and warrants to Sellers as follows:
(a) Valid Execution. This Agreement and the related documents
and agreements referred to herein and in the exhibits attached hereto have
been duly and validly executed and delivered by Buyer, are legally binding
on Buyer and are enforceable against Buyer in accordance with their terms.
(b) Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Colorado. Said corporation has the corporate power to carry on its business
that is now being conducted.
(c) Stock Options. Except as otherwise disclosed in writing to
Sellers there are no securities convertible into stock; outstanding stock
options; stock warrants; or rights to acquire stock for Buyer.
(d) Formation Documentation. Attached hereto and incorporated
herein as Exhibit "T" is a true and correct listing of the Articles of
Incorporation and Bylaws, or other constituent documents related to the
creation and maintenance of said entities, including all Amendments made
thereto through the date of this Agreement for the Corporation. Sellers
shall deliver to Buyer full copies of each such document.
(e) Financial Statements. Buyer's Financial Statements as
available for public inspection through the SEC web site are true and
accurate.
(f) No Undisclosed Liabilities. Corporation has no known
contingent liabilities and no other liabilities (whether accrued, absolute,
assumed or otherwise, and whether as a maker, guarantor, surety, or
otherwise, and whether due or to become due), except as set forth on the
Balance Sheet included in the Buyer and Seller' Financial Statements.
(g) Absence of Certain Changes or Events. Since the date of the
Buyer's latest SEC filings there have not been:
(i) Any materially adverse change in the Business or
financial condition of the Buyer;
(ii) Any damage, destruction or loss, whether covered by
insurance or not, materially and adversely affecting Buyer;
(iii) Any authorization, issuance, redemption,
repurchase, split, combination or reclassification of any shares of stock of
Buyer, setting aside or payment of a dividend (whether in cash, stock, or
property) of Buyer,
(iv) Any secured or unsecured borrowing or any guarantee
for the borrowing of money by the Corporation or the issuance or creation of
(or any commitment with respect thereto) any bonds, debentures, notes or
other obligations for the payment of money by Buyer except as otherwise
incurred in the ordinary course of business or as disclosed in writing to
Sellers;
(v) Any labor trouble or loss or threatened loss of key
employees of the Buyer;
(vi) Any other event or condition of any character known
to Buyer pertaining to and materially or adversely affecting Buyer; and
(vii) Any distribution, payments, or bonuses in cash or
other property to the shareholders, directors, officers or employees of the
Buyer, except for the customary salaries paid to such persons or as
disclosed to Sellers in writing.
(h) Absence of Litigation; Compliance with Laws, Etc. Except
as may be disclosed in writing to Sellers, there is no action, suit,
proceeding or claim and no investigation pending or to the best knowledge of
Buyer, threatened against, or directly involving, Buyer or its properties,
Business or goodwill which has or might have a material and adverse effect
on the Buyer's Business or condition and there is no unsatisfied or
outstanding order, writ, judgment, injunction, or decree affecting the Buyer
or its assets, business or goodwill which has a material and adverse affect
on the Buyer. To the best knowledge of Buyer, it is not in violation of any
law or government regulation applicable to it or its properties or business,
including, but not limited to, any applicable building, zoning, safety,
environment control, fair employment, equal opportunity, utility or similar
law or regulation.
(i) Union Contracts. The Buyer is not a party to or liable in
connection with any oral or written collective bargaining agreement or other
agreement with any labor union or labor organization, and no other such
agreement has been requested by, or is under discussion with, any group of
employees or others.
(j) Tax Matters. The balance sheets included in the Financial
Statements of the Buyer contain adequate provisions for all unpaid federal,
state, county, municipal, local and foreign, income, sales, franchise, real
property, personal property and all other taxes of the Corporation as of the
date of such Financial Statements, including interest and penalties in
respect thereof for the periods ended as of such date and all fiscal periods
prior to those dates in accordance with generally accepted accounting
principles. Except as otherwise disclosed to Sellers in writing, the Buyer
has duly and timely filed or validly extended all tax returns and reports
which are required to be filed, including, but not limited to, returns and
reports covering all of the aforesaid taxes. None of the federal income
tax returns of the Buyer have been audited, except as disclosed to Sellers
in writing. The Buyer has filed all required state and federal employee
withholding tax returns. There are currently no pending audits of any
federal, state, municipal or local income tax returns of the Buyer, except
as disclosed to Sellers in writing. As of the date of execution of this
Agreement, the Buyer has made all required estimated tax payments in
accordance with the applicable federal, state or local laws and regulations.
(k) Governmental Licenses and Permits. The Buyer has all
licenses, permits and other governmental authorizations necessary for the
conduct of its Business. All such licenses, permits and other governmental
authorizations are in full force and effect, and the transfer of the Stock
to Sellers pursuant to this Agreement will not result in violation or
revocation of any of the licenses, permits, or other governmental
authorizations.
(m) Indebtedness of Corporation. The indebtedness of the Buyer
as of the date of this Agreement is as shown on the SEC filings previously
mentioned.
(n) Operation of Buyer. Until Closing, Buyer shall operate its
business in the normal course of business subject to the same restrictions
on Sellers as referenced in paragraph 6.
(o) Condemnation of Real Property. There are no condemnation
or eminent domain proceedings pending or, to the best of Buyer's knowledge,
contemplated against any of Buyer's Real Property or any part thereof, and
Buyer has received no notice of the desire or intent of any public authority
or other entity to take or use any Real Property or any part thereof.
(p) Suits Affecting Corporate Property. Except as disclosed in
writing to Sellers, there are no pending suits or proceedings against or
affecting Buyer that do or could affect title to Buyer's assets or any part
thereof, or do or could prohibit or make unlawful the consummation of this
transaction, or render Buyer unable to consummate this transaction.
(q) Compliance with Mortgages and Servitudes. Except as
otherwise disclosed in writing to Sellers, Buyer has no knowledge or notice
that any default or breach exists under any mortgage or other encumbrance
encumbering any of Buyer's Real Property or any leases, covenants,
conditions, restrictions, rights-of-way or easements that affect any of
Buyer's Real Property or any portion thereof, and that no condition or
circumstance exists which, with the passage of time or the giving of notice,
or otherwise, would result in a default or breach under any such leases,
covenants, conditions, restrictions, rights-of-way or easements.
(r) The transactions contemplated in this Agreement meet all SEC
requirements governing Buyer's business, as well as IRS requirements for
Sellers not incurring any tax liabilities.
14. Brokerage. Buyer represents and warrants to Sellers, and
Sellers represents and warrants to Buyer, that neither Buyer nor Sellers
have incurred any obligation to anyone in the nature of a brokerage
commission or finder's fee in respect to the transactions contemplated by
this Agreement except as stated in this paragraph. Buyer agrees to defend,
indemnify and hold harmless Sellers against any and all claims in the nature
of a brokerage commission or finder's fee of any person acting on behalf of
or through Buyer. Sellers represents and warrants to Buyer that Sellers has
not incurred any obligation to anyone in the nature of a brokerage
commission or finder's fee in respect to the transactions contemplated by
this Agreement. Sellers agrees to defend, indemnify and hold harmless Buyer
against any and all claims in the nature of a brokerage commission or
finder's fee of any person acting or allegedly acting on behalf of or
through Sellers. In an indemnity action, Sellers may choose counsel of
their own choice.
15. Evidence of Title and Survey.
(a) Within fifteen (15) days from the Effective Date of this
Agreement, Sellers shall cause delivery to be made to Buyer of all legal
descriptions and copies of all existing policies of owner's title insurance
for all real property owned by Corporation specifically listed in this
Agreement, which Buyer may cause to be updated to a current date. If title
is found to be defective or if title policies are not available for any of
Corporation's real property, Buyer, at its sole discretion, may elect to
terminate this Agreement. If title is defective and Buyer does not
terminate this Agreement, such non-election will not be a waiver of any of
Buyer's rights to subsequent objection for any defects in title. If the
defects render title unmarketable, Sellers shall, at Sellers' option, have
thirty (30) days from receipt of notice within such time to remove the
defects, and if Sellers is unsuccessful in removing the defects within that
time, Buyer may, in its sole discretion, notify Sellers that it is
terminating this Agreement, and thereafter Sellers and Buyer will be
released from all further rights and obligations under this Agreement.
(b) Survey. Sellers shall deliver to Buyer any surveys on any
of its real property. If the surveys disclose that there is no access to
and from any portion of the property on a dedicated public street, or if
they show any encroachments, overlaps, easements or other matters which
would adversely affect title to the property in Buyer's reasonable opinion
and hinder or preclude Buyer's intended use of the Corporation's real
property, written notice to that effect shall be given to Sellers and such
shall be considered a defect in title pursuant to subparagraph (a) above.
16. Right of Entry. Sellers hereby grants permission to Buyer and
to Buyer's agents and engineers, to enter upon any of Corporation's real
property or inspect other assets at any reasonable time prior to Closing for
the purpose of conducting, at Buyer's expense, any tests, examinations,
inspections, surveys and studies that Buyer deems desirable, including, but
not limited to, soil tests, engineering, termite, mechanical, electrical,
plumbing, construction and other inspections, topographical and other
surveys, and any other investigation intended to reveal the condition of
improvements and assets, conditions of soils, and any other information
concerning conditions on the real property, conditions of soils, and any
other information concerning conditions on the real property and other
Assets. Any study, test, examination or survey caused to be conducted by
Buyer shall be done in a manner that will not unreasonably interfere with
Seller's activities. Prior to Buyer conducting such tests, Buyer shall
obtain Sellers' permission, which shall not be unreasonably withheld, and
Buyer shall present to Sellers evidence of insurance naming Sellers and
Corporation (or the entity owning the property in question) as additional
insureds in a minimum amount of $1,000,000.00 general liability. Buyer
hereby agrees to defend, indemnify and hold Sellers harmless from all claims
or obligations of any kind that may be incurred as a result of Buyer's entry
or the entry of Buyer's agents upon the Real Property pursuant to this
Agreement. In the event, for any reason, this Agreement is terminated
without Closing, all tests, examinations, surveys and studies obtained by
Buyer hereunder shall become the property of Sellers. Sellers shall have the
right to choose their own counsel in any indemnity action based on the
foregoing.
17. Eminent Domain. If judicial, administrative or other
proceedings are instituted prior to Closing that may result in the taking of
any portion of the Corporation's owned or leased Real Property by eminent
domain, Buyer shall have the option to terminate this Agreement by giving
Sellers written notice to that effect at any time after receiving notice of
the proceedings. Sellers agrees to give Buyer written notice of any such
proceedings. Should the Buyer terminate this Agreement pursuant to the
provisions of this paragraph, the parties shall be released of all further
obligations and liability hereunder. If Buyer elects not to terminate this
Agreement because of a taking or a threatened taking through eminent domain,
then at Closing, Sellers shall assign to Buyer all right, title and interest
to any award made or pending in connection with the taking.
18. Representations and Warranties Regarding Hazardous Waste.
Sellers represents and warrants as follows:
(a) To the best of Seller's knowledge, Sellers and/or
Corporation has secured and kept current any required federal, state, and
local permits and authorizations relating to environmental protection and
regulation at the Real Property or to Seller's and/or Corporation's
activities thereon; and, to the best of Seller's knowledge, Sellers and
Corporation are and have always been in full compliance with those
environmental permits and authorizations, and all rules, regulations, and
policies promulgated in connection therewith.
(b) There are no pending actions or claims against Sellers
and/or Corporation under any environmental law, regulation, or ordinance;
and neither Sellers nor Corporation have received notice in any form of such
an action or claim or of a possible action or claim.
(c) To the best of Seller's knowledge and belief, there are no
contaminants, pollutants, man-made substances, toxic or hazardous
substances, or substances that may be toxic or hazardous on, or in the Real
Property or any adjacent property. Except as otherwise described in Exhibit
"U" or disclosed to Buyer in writing, neither Sellers, Corporation, nor, to
the best of Seller's knowledge and belief, any other person or entity, has
placed, caused, or allowed to be placed any substance on the Real Property
that may be hazardous or toxic. Except as otherwise disclosed to Buyer in
writing, Sellers knows of no present or previous use of the Real Property or
of any adjacent property that has generated or involved, or may have
generated or involved, any hazardous or potentially hazardous substances.
Except as otherwise disclosed to Buyer in writing, Sellers knows of no
migration of hazardous or potentially hazardous substances onto or into the
Real Property from nearby property or flowing onto the Real Property with
ground or surface waters.
(d) To the best of Seller's knowledge and belief, except as
otherwise disclosed to Buyer in writing, there are no past or current
deposits or releases of hazardous substances on, over, from, or in the Real
Property or any facility at the Real Property, as those terms are defined by
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq. or by any similar or related federal, state, or
local law or by regulations promulgated in connection therewith.
(e) To the best of Seller's knowledge and belief, except as
otherwise disclosed to Buyer in writing, there is no situation or condition
in, around or concerning the Real Property nor has there occurred any
incident on, in, around or concerning the Real Property, that possibly could
give rise to an action, claim, or liability under any environmental law,
rule, ordinance, or common law theory.
Sellers shall indemnify, defend, and hold Buyer harmless from
all expenses, claims, liabilities, and obligations arising from the breach,
untruthfulness, or incorrectness of any representation or warranty made
herein, but only to the extent that Sellers placed the hazardous substance
on the site which is the cause of such claims or liabilities or that Sellers
had actual knowledge of said substance but failed to disclose it to Buyer.
19. Indemnification.
(a) Sellers agrees to defend, indemnify and hold harmless Buyer
against and in respect of any and all losses, damages, deficiencies or
liabilities incurred by Buyer as a result of any intentional incorrectness
or failure of any representation or warranty made by Sellers in this
Agreement, any intentional misrepresentation, breach of warranty or
nonfulfillment of any covenant or agreement on the part of Sellers under
this Agreement, or as a result of any intentional misrepresentation
contained in or occasioned by any certificate or other instrument furnished
or to be furnished by Sellers to Buyer under this Agreement, and any and all
assessments, judgments, interest, costs and legal and other reasonable
expenses incidental to any of the foregoing whether suit be brought or not
(including reasonable attorney's fees on appeal).
(b) Buyer agrees to defend, indemnify and hold harmless Sellers
against and in respect of any and all losses, damages, deficiencies or
liabilities incurred by Sellers as a result of any intentional incorrectness
or failure of any representation or warranty made by Buyer in this Agreement,
any intentional misrepresentation, breach of warranty or nonfulfillment of any
covenant or agreement on the part of Buyer under this Agreement, or as a
result of any intentional misrepresentation contained in or occasioned by any
certificate or other instrument furnished or to be furnished by Buyer to
Sellers under this Agreement, and any and all assessments, judgments,
interest, costs and legal and other reasonable expenses incidental to any of
the foregoing whether suit be brought or not (including reasonable attorney's
fees on appeal). Sellers reserve the right to choose their own counsel.
(c) TAX MATTERS Buyer shall indemnify Sellers as to certain tax
matters as set forth in Exhibit "V".
20. Closing Costs. Except as otherwise specified herein, closing
costs shall be split evenly between Corporation and Buyer. Closing costs
include but are not limited to filing of record all closing instruments
contemplated in this transaction, but Buyer solely shall pay any fees
associated with required SEC filings. Closing costs shall specifically
exclude fees of attorneys, accountants or other professionals, and each
party shall bear its own expense for such professionals which it engages.
The foregoing sentence shall not apply to attorneys' fees which may be
awarded to a party in the event of a default in this Agreement.
21. Specific Performance. The parties hereto declare that it is
impossible to measure in money the damages which will accrue to them by
reason of a failure on the part of either of them to perform any of the
obligations under this Agreement. Therefore, if the Buyer or Sellers
institutes any action or proceeding to enforce the provisions hereof, any
persons against whom such action or proceeding is brought hereby waives the
claim or defense therein that such party has an adequate remedy at law, and
such person shall not urge in any such action or proceeding the claim or
defense that such remedy at law exists and Buyer or Sellers will be able to
have specific performance granted as a remedy. Nothing herein shall limit
the right of a party to seek damages or pursue any other causes of action
against each other arising from the other party's breach of the terms and
conditions hereof.
22. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and personally delivered, sent
by fax with confirmation or receipt, sent by overnight delivery service with
signature required, or sent by registered or certified mail, return receipt
requested, postage prepaid to the following addresses:
To Buyer:
WHITEMARK HOMES, INC.
Attn: Xxxxx Xxxxx
000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX, 00000
Phone number: (000) 000-0000
Facsimile number: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxx, Esq.
XXXXX X. XXXXX, P.A.
000 X. Xxxxx Xxxx. Xxxxx 000
Xxxxxx Xxxx, Xxxxxxx 00000
Phone number: (000) 000-0000
Facsimile number: (000) 000-0000
To Sellers:
Xxxx Xxxxxxxx; Xxxxx Xxxxxxxx; Xxxx Xxxxxxxx
00000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, XX 00000
Phone number: (000) 000-0000
Facsimile number: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxx, P.A.
Attn: Xxxx X. Xxxxxxxx
000 Xxxxxxx 00 Xxxx
Xxxxxx, XX 00000
Phone number: (000) 000-0000
Facsimile number: (000) 000-0000
Provided, however, that any party hereto may, from time to time, give to
the other parties notice, as described herein, of some other address to
which communications to such party shall be sent, in which event notices to
such party shall be delivered to such address. Notice shall be deemed
effectively given hereunder when delivered or when deposited in the United
States mail, postage prepaid, registered or certified, return receipt
requested, as the case may be.
23. Attorney and Professional Fees.
(a) All legal and professional fees incurred by each of the
parties hereto in connection with this Agreement and the consummation of the
transactions contemplated hereby will be paid by Buyer and Corporation,
except as provided in paragraph 21, "Closing Costs".
(b) In the event a party to this Agreement fails to fulfill his
obligations set forth herein, and counsel is employed by a party to enforce
such obligation, then the party whose position substantially prevails, shall
be entitled to all reasonable costs and expenses, including reasonable
attorneys' fees (including reasonable attorneys' fees on appeal), whether
suit be brought or not.
24. Exhibits. This Agreement contains Exhibits "A" through "V"
which are attached hereto and made a part hereof. The parties acknowledge
that many of the Exhibits hereto will not be prepared as of the date this
Agreement is being executed. The preparation and attachment of those
exhibits is Seller's responsibility, except Exhibit "T" which is Buyer's
responsibility, and the parties shall provide the same to each other within
15 days from the Effective Date. Buyer may, in its sole discretion, within
15 days from Buyer's receipt of the Exhibits, either accept the Exhibits,
obtain Seller's consent to a modification thereto, or cancel this Agreement.
The parties acknowledge a duty to act in good faith to complete the
Exhibits. Where this Agreement allows disclosures to be made by "as
otherwise disclosed in writing" said writing shall be delivered in the
manner specified herein for the providing of notices and shall identify the
Exhibit to which it relates.
25. Binding Effect; Assignment. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, beneficiaries, successors and
permitted assigns. Neither Buyer nor Sellers may assign its rights or
obligations hereunder without the prior written consent of the other party.
26. Complete Agreement. This Agreement and the Exhibits hereto
contemplate the execution and performance of related agreements. This
Agreement and such related agreements constitute the complete agreement
between Sellers and Buyer with respect to the subject matter hereof.
Neither this Agreement nor any of such related agreements may be amended or
modified except by a written instrument executed by the party to be charged.
27. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
28. Further Assurances. The parties hereto agree that they shall
execute all documents and/or take all steps as may be necessary to
effectuate the transactions contemplated by this Agreement.
29. Risk of Loss. Prior to Closing, Sellers shall bear all risk of
loss, damage or destruction to the Assets of the Corporation. If the Assets
of the Corporation, or any portion thereof, is lost, damaged, or destroyed,
then Buyer, at its sole election, may terminate this Agreement. Sellers
shall not bear the risk of loss as to any Assets which are under contractual
rights to acquire but are not yet owned by Corporation
30. Cumulative Remedies. Remedies provided to the parties by this
Agreement by law and by any instrument or document executed pursuant to this
Agreement, are cumulative. No remedy shall be exclusive of any other
remedies allowed to the parties by this Agreement, in equity, by law, by any
instrument or document executed pursuant hereto, or by any other source. A
party's exercise of any particular remedy shall not preclude that party from
exercising one or more additional or alternative remedies.
31. Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required, and it shall not be
necessary that the signature of each party, or on behalf of each party,
appear on each counterpart. It shall be sufficient that the signature of,
or on behalf of, each party appear on at least one counterpart. All
counterparts shall collectively constitute a single agreement.
32. Equal Participation. The parties acknowledge that they
participated equally in the drafting and review of this Agreement and that,
accordingly, no court construing this Agreement shall construe it more
stringently or liberally for or against either party.
33. Waiver. No waiver of any provision hereof shall be effective
unless executed in writing by the party claimed to have made the waiver. No
waiver of a provision hereof shall constitute a continuing waiver. No act
or omission of a party shall constitute a waiver of any of that party's
rights or an estoppel against enforcing those rights. A party's forbearance
to enforce any available rights or to exercise any available remedy, or to
insist upon strict compliance herewith, shall not be deemed a waiver or
forfeiture of such rights, remedies or strict compliance. Such forbearance
shall not estop such party from exercising all rights and remedies, or from
requiring strict compliance in the future. A party's acceptance of any late
or inadequate performance, shall not constitute a waiver or forfeiture of
such party's right to treat such performance as an event of default or to
require timely and adequate performance in the future.
34. Severability. In the event that any provision of this Agreement
shall be held to be invalid on unenforceable, that provision shall be
deleted herefrom without affecting, in any respect whatsoever, the validity
of the remainder of this Agreement.
35. Survival. All indemnities, covenants, warranties, rights and
obligations agreed to by Sellers or Buyer in this Agreement shall survive
after the termination and/or Closing.
36. Time is of the Essence. Time is of the essence of this
Agreement.
37. Captions. The captions to the provisions of this Agreement are
for convenience and reference only, and are not intended to limit, explain,
augment, or otherwise affect the substance or scope of the provisions, nor
to imply the parties' intent.
38. Construction. Whenever the context permits, or requires the use
of the singular in this Agreement shall include the plural, and the plural
shall include the singular. Any reference herein to one gender shall
likewise apply to the other gender and to the neuter; and any reference
herein to the neuter shall refer likewise to one or both genders. Any
reference herein to a person shall include trusts, partnerships,
corporations, and any other entity, as appropriate.
39. Venue. In the event of any legal action arising under this
Agreement, Venue shall lie exclusively in Xxxxxx County, Florida, and the
Parties hereto agree to binding arbitration of their disputes pursuant to
the rules of the American Arbitration Association, with discovery to be
allowed pursuant to the Florida Rules of Civil Procedure, and costs and
Arbitrator fees, filing fees and attorneys' fees to be awarded to the
prevailing party.
40. Waiver of Jury Trial. THE PARTIES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A
TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT.
41. Persons Bound. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective successors-in-
interest. This Agreement is for the benefit only of the parties or their
successors- in-interest. No other person shall be entitled to rely hereon,
receive any benefit herefrom, or enforce any provision of this Agreement
against any party.
42. Knowledge of Corporation. For purposes of this Agreement any
actual or constructive knowledge of or notice to Corporation is deemed to be
actual or constructive, as the case may be, knowledge of or notice to
Sellers.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date written below their signatures.
Witnesses: "BUYER"
WHITEMARK HOMES, INC.,
a Colorado corporation
__/s/ XXXXX WHITE_____________
Printed name: Xxxxx Xxxxx
Title: President
Date: __August 31, 2001______
"SELLERS"
__/s/ XXXX ADKINSON___________
XXXX XXXXXXXX
__/s/ XXXXX ADKINSON__________
XXXXX XXXXXXXX
__/s/ XXXX ADKINSON___________
XXXX XXXXXXXX
Date of Seller's execution: __August 31, 2001____
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EXHIBIT "A"
EXHIBIT "A-1"
EXHIBIT "B"
PROPERTIES OWNED BY SELLERS/ CORPORATION
EXHIBIT "C"
MANNER OF OWNERSHIP
EXHIBIT "D"
EMPLOYMENT AGREEMENT
EXHIBIT "E"
SELLERS CLAIMS
EXHIBIT "F"
FORMATION DOCUMENTS
EXHIBIT "G"
FINANCIAL STATEMENTS
EXHIBIT "H"
LIST OF LIABILITIES, LIENS, AND MORTGAGES
OF CORPORATION
EXHIBIT "I"
CHANGES SINCE DATE OF FINANCIAL STATEMENTS
EXHIBIT "J"
TAX DISCLOSURE
EXHIBIT "K"
MATERIAL "CONTRACTS"
EXHIBIT "L"
ASSETS OF CORPORATON
EXHIBIT "M"
EMPLOYEE BENEFIT PLANS
EXHIBIT "N"
EMPLOYEE LIST
EXHIBIT "O"
COMMITMENTS AFFECTING REAL PROPERTY
EXHIBIT "P"
EXCLUDED ASSETS
EXHIBIT "Q"
BUYER OBLIGATIONS
EXHIBIT "R"
LIST OF LIABILITIES
EXHIBIT "S"
NO LITIGATION
EXHIBIT "T"
BUYER'S FORMATION DOCUMENTS
EXHIBIT "U"
ENVIRONMENTAL MATTERS
EXHIBIT "V"
TAX INDEMNITY
