EXHIBIT 10.28
AGREEMENT
THIS AGREEMENT made and entered into this 9th day of December, 1997, by and
between CAPITOL RESORTS OF FLORIDA, INC., a Florida corporation, with offices
located at 00000 Xxxxxxxx Xxxx., #X, Xxxxxxxx, XX 00000, (hereinafter referred
to as "Purchaser") and OCEAN PALMS DEVELOPMENT CORPORATION, a Florida
Corporation and OCEAN PALMS RESORT, INC., A Florida corporation, with offices
located as 0000 Xxxxx Xxxxx Xxxx., Xxxxxxx Xxxxx, XX 00000, (hereinafter
referred to as "Seller").
WITNESSETH:
WHEREAS, the Seller owns certain assets described as follows:
A. Ocean Palms Resort, consisting o_ the tenant's interest in that certain
long term ground lease recorded in Official Records Book 2973, Page 677, of the
Public Records of Broward County, Florida (the "Ground Lease") (said Ground
Lease having been assigned to Seller by Assignment of Lease recorded in Official
Records Book 25980, Page 744, of the Public Records of Broward County, Florida),
a copy of which Ground Lease is attached hereto as Exhibit "A"; together with
the improvements contained upon the real property which is the subject matter of
the Ground Lease consisting of a 53 unit apartment complex, pool, office areas,
parking areas and other amenities (the "Improvements"), said Ground Lease and
Improvements being located upon land lying, and situate at 0000 Xxxxx Xxxxx
Xxxx., Xxxxxxx Xxxxx, XX 00000, being more specifically described as follows:
See Exhibit "B" attached hereto and by reference made a part hereof.
B. All of the personal property owned by Seller and used in connection with
the operation of Ocean Palms Resort, including, but not limited to, all of the
furniture, furnishings, fixtures, machinery and equipment of Seller located in
the several apartment units at Ocean Palms Resort or used in the maintenance and
operation of Ocean Palms Resort, all warranties pertaining to such personal
property, all permits, approvals, advertising materials, trade names, phone
numbers, equipment and maintenance leases and agreements, hardware and software
(the "Personal Property"). The Personal Property does not include 2 computers
and one copy machine owned personally by Xxxxx Xxxxx and Xxxxxx Xxxxx.
C. The landlord's interest in the several long term tenant leases of the
individual apartments at Ocean Palms Resort (the "Tenant Leases"), which Tenant
Leases are more fully described in Exhibit "C" attached hereto and by reference
made a part hereof.
D. The exclusive right to manage and operate the hotel operation ongoing at
Ocean Palms Resort (the "Desk").
E. The owner and holder's interest in all of those certain promissory notes and
accompanying conditional lease assignments arising out of sales of long term
leases upon the several apartments of Ocean Palms Resorts (the "Paper"), which
Paper aggregates approximately $2,600,000.00 in outstanding principal balances,
and which paper is more specifically described and identified in Exhibit "D"
attached hereto and by reference made a part hereof.
The Ground Lease, Improvements, Personal Property, and Tenant Leases are
hereinafter, from time to time, collectively referred to as the "Resort
Property"; and the Resort Property, the Paper and the Desk are hereinafter, from
time to time, collectively referred to as the "Assets".
WHEREAS, Purchaser desires to purchase the Assets; and
WHEREAS, Seller is desirous of selling the said Assets upon the following
terms and conditions; and
NOW, THEREFORE, in consideration of the mutual benefits accruing to the
respective parties under the provisions of this Agreement, it is hereby agreed
as follows:
1. Sale and Purchase. The Seller agrees to sell and convey and the Purchaser
agrees to purchase, free from all encumbrances except as hereinafter
specifically set forth, the Ground Lease, the Improvements, the Personal
Property, the Tenant Leases, the Desk, and the Paper; and together with all
plans, specifications and surveys located in or used in connection with the
Resort Property, (hereinafter referred to as the "Plans"); together with all
termite inspection reports and guarantees and warranties, environmental reports
and engineering reports (hereinafter referred to as the "Reports").
2. Purchase Price The purchase price for the Desk shall be TEN THOUSAND
DOLLARS ($10,000.00). The purchase price for the Resort Property, the Paper and
for
any remaining tangible and intangible assets included in the sale shall be ONE
MILLION NINE HUNDRED FIFTY-SIX THOUSAND DOLLARS ($1,956,000.00) plus
THIRTY-THREE THOUSAND FIVE-HUNDRED (33,500) shares of the capital stock of
Purchaser's parent, Capitol Communities Corporation (the "Stock").
3. Payment of Purchase Price Said purchase price of TEN THOUSAND DOLLARS
($10,000.00) for the Desk and said purchase price of ONE MILLION NINE-HUNDRED
FIFTY-SIX THOUSAND DOLLARS ($1,956,000.00) plus THIRTY-THREE THOUSAND FIVE-
HUNDRED (33,500) shares of the Stock for the Resort Property, the Paper and for
any remaining tangible and intangible assets included in the sale shall be paid
at closing as follows:
(a) TEN THOUSAND DOLLARS ($10,000.00) for the Desk shall be paid in cash or by
cashier's or certified check or wire transfer.
(b) ONE MILLION ONE-HUNDRED FIFTY-EIGHT THOUSAND DOLLARS ($1,158,000.00)
of the purchase price for the Resort Property and the Paper shall be paid by the
assumption by Purchaser of that certain first leasehold mortgage presently
encumbering the Ground Lease (the "Leasehold Mortgage"), a copy of which
Leasehold Mortgage and all modifications thereof are attached hereto as Exhibit
"E" and by reference made a part hereof. Purchaser acknowledges that the Paper
is and/or shall be collaterally assigned to the owner and holder of the
Leasehold Mortgage as and for additional security for the promissory note
referred to therein. Purchaser also agrees that at the closing, and in order to
induce the owner and holder of the Leasehold Mortgage to allow the assumption
thereof by Purchaser, the Leasehold Mortgage and the promissory note secured
thereby will be modified and amended so that the monthly payments due
thereunder, commencing with the payment due on the 1st day of May, 1998, will be
calculated based upon a ten (10) year amortization, and the terms of the
collateral assignment of the Paper will be modified so that each month out of
the collections received from the Paper an amount equal to the monthly payment
due under the Leasehold Mortgage will be paid to the owner and holder thereof
and thereafter any remaining collections for such month shall be paid over to
Purchaser. Additionally the insurance escrow requirement set forth in the
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Mortgage will be removed. Except as hereinabove set forth the terms of the
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Leasehold Mortgage as they exist as of the date of this agreement (including the
maturity date), and the terms governing the collateral assignment of the Paper
will remain the same.
(c) The Stock, being 33,500 shares of the common stock of Capitol Communities
Corporation, shall be delivered free and clear of all liens and encumbrances.
Seller may take title to the Stock in its own name or in the name of a designee.
(d) The balance of the purchase price for the Resort Property and the Paper,
in the amount of approximately SEVEN-HUNDRED NINETY-EIGHT THOUSAND DOLLARS
($798,000.00) (or such greater or lesser amount as may be necessary to complete
the payment of the purchase price after adjustments or credits, prorations and
the like) shall be paid in cash or by cashier's or certified check or wire
transfer. An estimated closing statement is attached hereto as Exhibit "G".
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4. Title. The Seller shall, within five (5) days prior to the closing of the
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within transaction, at Seller's expense, obtain a title insurance commitment
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issued by a qualified title insurer agreeing to issue to the Purchaser, upon the
recording of the assignment of lease hereinafter mentioned, a leasehold owner's
title insurance policy in the amount of the purchase price for the Resort
Property insuring title of the Purchaser to the Ground Lease to be good and
marketable subject only to: the following: (a) taxes for the year 1998 and
subsequent years; (b) conditions, restrictions, limitations, easements and
reservations of record (but Purchaser shall not be obligated to close hereunder
if the same render title to the Property not good and marketable and insurable;
(c) zoning ordinances of record provided same are not violated by existing
structures; (d) the Leasehold Mortgage; and (e) those additional matters which
shall be discharged by Seller at or before closing. Purchaser shall have three
(3) days from the date of receiving said title insurance commitment to examine
same. If the title is found to be defective, Purchaser shall, within said period
notify the Seller in writing specifying the defects. Upon receiving such notice,
Seller shall use diligence to correct the defects and the closing shall be
extended, if necessary, to no later than ten (10) days after such defects have
been corrected. If Seller cannot correct the defects within ten twenty (10) days
from receiving the notice, Purchaser shall have the option of:
(a) Accepting title as it then is together with such cash, adjustment to the
purchase price or other consideration as the parties may agree upon, or
(b) Demanding a refund of all moneys paid hereunder which shall forthwith be
returned to the Purchaser, and thereupon the Purchaser and Seller shall be
released of all further obligations to each other under this Agreement.
The cost of the title insurance shall be paid for by Seller. Seller, immediately
subsequent to the date of the complete execution of the within agreement will
provide Purchaser with a copy of the most recent leasehold owners title
insurance policy covering the Ground Lease.
5. 'Title Status Search. Prior to the closing of the within transaction and
within five (5) days thereof, Purchaser shall be entitled to cause search to be
made in the Public Records of Broward County, Florida, and in the Uniform
Commercial Code Records of the State of Florida, to determine the existence of
any liens, encumbrances, judgments, or outstanding adverse interests against the
equipment, furniture, furnishings, and machinery proposed to be sold pursuant to
this Agreement. In the event that Purchaser shall determine the existence of any
liens, encumbrances (other than the encumbrance of the Leasehold Mortgage) or
adverse claims against the property, other than the claims which can be
satisfied by payment of money at the time of closing by Seller, then Purchaser
shall have the option to rescind this Agreement and receive full refund of all
moneys paid and deposited hereunder.
6. Risk of Loss. All risk of loss up to the time of closing shall be borne by
the Seller. If any loss or damage, whether it be due to fire, storm, flood,
riot, or other casualty exceeds $250,000.00, the Purchaser shall have the option
of either taking the Property as is, together with any insurance proceeds
payable by virtue of such loss or damage, or of canceling this Agreement by
giving written notice to the Seller. Upon such or deposited pursuant to this
Agreement and all obligations under this Agreement shall thereupon terminate.
7. Closing.
(a) It is agreed that the closing of the title shall take place at the office
of Purchaser's attorney, on or before the ____ day of December, 1997,
unless otherwise extended by the provisions of this Agreement, or at such
earlier date upon which the parties may agree.
(b) At the time of the closing the Assignment of the Ground Lease shall be
recorded and evidence of title continued at Purchaser's expense to show title in
Purchaser without any encumbrances or changes which would render Purchaser's
title unmarketable, from the date of the last evidence and the cash proceeds of
sale shall be held in escrow by Seller's attorney for a period of not longer
than three (3) days. If Seller's title is rendered unmarketable, Purchaser's
attorney shall, within said three (3) day period, notify Seller or Seller's
attorney in writing of the defect, and Seller shall have five (5) days from the
date of receipt of such notice to cure said defect. In the event Seller fails to
timely cure said defect, all moneys paid hereunder by Purchaser shall, upon
written demand therefor, and within five (5) days thereafter, be returned to
Purchaser and simultaneously with such repayment, Purchaser shall vacate the
premises and reconvey the Resort Property and the remaining Assets to the
Seller. In the event that Purchaser fails to make timely demand for refund he
shall take title as is, waiving all rights against Seller as to such intervening
defect, except such rights as may be available to Purchaser by virtue of
warranties contained in Assignment of the Ground Lease. In the event the
transaction is not consummated because of an uncorrected or unwaived defect in
title, the Seller will be deemed to have defaulted under this Agreement.
(c) Except as otherwise set forth in this Agreement possession of the Resort
Property shall be delivered at the closing, subject to the existing Tenant
Leases.
(d) Each of the parties shall execute and deliver at the closing all
instruments reasonably required to effectuate the terms and conditions of this
Agreement and the intent thereof.
8. Assessments Certified, confirmed or ratified special assessment liens as of
the date of the closing (and not as of the date of Agreement) are to be paid by
the Seller. If, on the closing date, the Resort Property or any part thereof
shall be or have been affected by an assessment or assessments which are or may
become payable in annual installments, of which the first installment is then a
charge or lien, or has been paid, then for the purposes of this Agreement all
the unpaid installments of any such assessment, including those which are to
become due and payable after the closing date, shall be deemed to be due and
payable and to be liens on the premises affected thereby, and shall be paid and
discharged by the Seller on the closing date. Pending liens as of the date of
closing shall be assumed by the Purchaser, provided, however, that where the
improvement has
been substantially completed as of the date of the Agreement, such pending liens
shall be considered as certified, confirmed or ratified, and the Seller shall,
at closing, be charged an amount equal to the last estimate of the public body
of the assessment for the improvement.
9. Proration of Taxes (Real and Personal). Taxes both of real property and
personal property shall be prorated as of the closing date. Tax prorations shall
be based upon gross taxes for the year of the closing, with adjustment for
maximum discount. If the taxes for the year of the closing are unknown, they
shall be estimated for the purpose of closing and a re-proration thereof shall
be effected when tax notices are received.
10. Adjustments, Prorations and Expenses of Sale. The purchase price shall be
adjusted for prorations or insurance (if policies of insurance are being assumed
by Purchaser), utilities, license fees, rents, escrows with mortgagees, prepaid
hotel revenues, and similar items being transferred to Purchaser.
Transferable deposits shall be credited to the Seller. Seller shall have the
right to the refund of any nontransferable deposits and Purchaser shall be
responsible for making its own deposits therefor. The cost of recording any
corrective instrument, shall be paid for by the Seller. State documentary stamps
which are required to be affixed to the instrument or instruments of conveyance,
the cost of recording the Assignment of Ground Lease and other assignments shall
be paid for by the Purchaser. Attorney's fees of Xxxxxxx X. Xxxxxxx, Esq. in
connection with the transaction contemplated by this agreement, in the amount of
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$25,000.00, shall be paid for by Purchaser.
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11. Survey. The Purchaser, within the time provided for examination and
objection to title, may have the Resort Property surveyed as its expense. If the
survey shows an encroachment on said Resort Property or that the improvements
located on the Resort Property in fact encroach on the lands of others, or
violate any of the covenants herein, the same shall be treated as a title
defect.
12. Representations of Seller. The Seller represents and warrants in connection
with the transaction herein contemplated that:
(a) Except as otherwise expressly set forth herein, between the date hereof
and the closing date Seller will continue its usual program of maintenance and
repair of the Resort Property and it will continue its existing operation of the
Desk, and will continue its existing management of the Paper.
(b) The Seller shall, prior to closing, furnish Purchaser with an estoppel
letter from the landlord under the Ground Lease and from the owner and holder of
the Leasehold Mortgage. In addition Seller will furnish Purchaser with Seller's
affidavit setting forth, as to each Tenant Lease, the rental rate, the term
thereof, and whether same is in good standing; and Seller will furnish
Purchaser with Seller's affidavit setting forth, as to each item of Paper, the
interest rate, monthly payment amount, remaining term, outstanding principal
balance, paid through date, and whether same is in good standing.
(c) The Improvements contain: 53 apartments, a swimming pool, hot tub, and
other facilities and amenities.
(d) There are no contracts or leases (other than the Ground Lease and the
Tenant Leases) binding Seller in connection with the ownership or operation of
the Resort Property which are not cancelable within thirty (30) days except as
listed on Schedule "F" attached hereto and made a part hereof and except for the
contractual right of Xxxxx Xxxxx to own, operate, manage and commercialize the
Desk, which contractual right Seller agrees to extinguish by the payment of a
settlement fee at the time of the closing of the within transaction.
(e) Seller has the legal power and right to enter into and perform this
Agreement and the consummation of the transaction contemplated by this Agreement
will not result in breach or termination of any term or provision of or
constitute a default under any contract, mortgage or other instrument to which
Seller is a party or by which Seller is bound.
(f) The Resort Property is free and clear of pollution, debris, and/or
hazardous and/or toxic substances, whether visible or not, other than as
expressly disclosed to Purchaser in this agreement. Attached hereto as Exhibit
"H" is a phase I environmental report covering the Resort Property and
confirming the foregoing representation.
(g) Seller is the owner of the tenant's interest in the Ground Lease and is
able to convey full and complete title and possession (subject to the Tenant
Leases) at Closing except as to those matters specifically accepted by Purchaser
(including, but not limited to the Leasehold Mortgage).
(h) The Leasehold Mortgage is in good standing and not in default.
(i) There has been no litigation for the preceding twelve (12) months, nor
does there exist now any litigation, nor is Seller aware of any potential
litigation, all with respect to any aspect of the Resort Property or any portion
thereof, including but not limited to eminent domain and/or condemnation
proceedings of any nature; except landlord tenant litigation with tenants in
default under Tenant Leases, none of which litigation is presently ongoing, and
except as to Seller's and Seller's stockholders dispute with one of Seller's
stockholders, Xxxxx Xxxxxxxx, which dispute will be settled at the time of the
closing of the within transaction by payment to Xxxxx Xxxxxxxx, in redemption of
her stock in Seller and in repayment of all indebtedness owned her by Seller, of
the sum of $550,000.00.
(j) There are no pending, certified, confirmed, or ratified improvement
or other assessments or liens to be made by any governmental or quasi-
governmental authority for which the Seller shall not be liable and satisfied at
Closing.
(k) That there is no impending bankruptcy or insolvency of Seller, nor
has there been over the past twelve (12) months.
(1) That all documents heretofore provided and to be provided to
Purchaser under and in connection with this agreement are true and correct,
complete copies of originals and/or true and correct, complete originals.
(m) The Ground Lease is in good standing and not in default. Rental
under the Ground Lease is paid to and through the 28th day of February, 1998;
and the next rental payment under the Ground Lease (for the period March 1, 1998
through February 28, 1999) is due on the 1st day of March, 1998 in the amount of
approximately $76,320.00 (the quoted figure is the amount of the last period's
ground rent and may be increased for the forthcoming period based upon the
escalator clause set forth in the Ground Lease).
(n) The documents and instruments constituting the Paper (and the
related closing files) are authentic and represent bona fide transactions for
value, and the information contained therein is, to the best of Seller's
knowledge and belief, true, correct and complete.
(o) The Stock which is being acquired by Seller and/or its designee
pursuant to the provisions of this Agreement is being acquired solely for the
account of the Seller or its designee, for investment purposes only and not with
a view to, or in connection with, any distribution or sale of securities. Seller
has no contract, understanding or arrangement with any person to sell, transfer
or pledge to such person, or anyone else, any of the Stock which is being
acquired by Seller, and the Seller has no present plans or intentions to enter
into any such contract, understanding or arrangement. Seller is an "Accredited
Investor" as defined in Regulation D. Seller, either alone or in conjunction
with its counsel and its other representatives, has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of acquiring the Stock. Seller understand that there is a
risk that it may lose all of its investment in the Stock, but Seller feels that
it could afford such a loss. Seller understands that the shares of Stock have
not been registered under the Securities Act of 1933 and that no federal or
state agency has passed upon the Stock or made any finding or determination as
to the fairness of an investment in the Stock and Seller further understands
that the shares of Stock cannot be resold in the absence of such registration or
an exemption therefrom. Seller is not dependent upon a current cash return with
respect to its investment in the shares of Stock. Seller understands that
Capitol Communities Corporation is not a "tax shelter," and any information to
be provided to it concerning the income tax consequences arising from an
investment in the Stock is necessarily
general in nature and the specific tax consequences to it relative to an
investment in Capitol Communities Corporation will depend upon its individual
circumstances. Seller is relying upon its own advisors with regard to the
federal, state and local tax consequences to Seller arising from this
transaction. Seller understands that the transferability of the shares of Stock
are restricted and that an investment in the Stock involves limited liquidity.
Seller hereby acknowledges and represents that it and its advisors, counsel and
representatives have had the opportunity to review the Capitol Communities
Corporation's records and documents, including, but not limited to all of
Capitol Communities Corporation's 1934 Act filings, and ask questions of Capitol
Communities Corporation's President and discuss this investment and this
transaction and its risks with Seller's attorney and accountant.
13. Representations of Purchaser. The purchaser represents and warrants in
connection with the transaction herein contemplated that:
(a) Purchaser has the legal power and right to enter into and perform
this Agreement and the consummation of the transaction contemplated by this
Agreement will not result in breach or termination of any term or provision of
or constitute a default under any contract, mortgage or other instrument to
which Purchaser is a party or by which Purchaser is bound.
14. Seller's Responsibilities. At the closing Seller will deliver the following
instruments and documents to the Purchaser:
(a) Assignment of Ground Lease. The Assignment of Ground Lease shall be
properly executed and in recordable form and satisfactory to Purchaser's
attorney.
(b) Assignment of Improvements. The Assignment of Improvements shall be
properly executed and in recordable form and satisfactory to Purchaser's
attorney.
(c) Assignment of Tenant Leases. The Assignment of Tenant Leases shall
be properly executed and in recordable form and satisfactory to Purchaser's
attorney, and shall convey all of the Tenant Leases
(d) Xxxx of sale. Xxxx of Sale conveying all of the Personal Property
being conveyed in connection with the transaction contemplated by this
Agreement.
(e) Assignment of Paper. The Assignment of Paper shall be properly
executed and in recordable form and satisfactory to Purchaser's attorney, and
shall convey all of the Paper.
(f) Assignment of Rights to the Desk. The Assignment of Rights to the
Desk shall be properly executed and in recordable form and satisfactory to
Purchaser's
attorney, and shall convey all of the Seller's interest in and to the Desk.
(g) No Lien Affidavit. Seller shall furnish to Purchaser an affidavit that
there have been no improvements to the Real Property undertaken by Seller or at
Seller's direction for 90 days immediately preceding the closing date. If the
said Real Property has been improved by Seller or at his direction within 90
days immediately preceding the closing date, the Seller shall deliver as to the
work done by Seller or at his direction, releases or waivers of Construction
Liens executed by general contractors, subcontractors, suppliers, or materialmen
and Seller's Construction Lien Affidavit.
(h) Creditor's Affidavit. Seller's Affidavit of Creditor's of the Resort
Property. Additionally at the closing Seller will provide proof of payment for
the debts of Seller as listed on the Seller's Affidavit of Creditors and/or will
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pay same as they fall due (except to the extent same are being assumed by
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Purchaser).
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(i) Seller's Affidavit that all federal withholding and employment taxes and
all state of Florida sales and use taxes have been paid through the date of the
closing of the within transaction.
(j) Certificate of Non-Foreign Status.
(k) Original documents and files as to (a) the Tenant Leases, and (b) the
Paper (provided, that Purchaser acknowledges that the original promissory notes
which constitute part of the Paper have been and/or will be deposited with the
owner and holder of the Leasehold Mortgage pursuant to the terms thereof and of
the related collateral assignment of the Paper).
(1) Mortgage Modification and Assumption Agreement pursuant to which
Purchaser will assume and agree to pay the Leasehold Mortgage and agree to the
modification thereof hereinabove described.
(m) Keys, specifications, advertising materials and the like.
(n) The Plans and Reports.
15. Assignment. The Purchaser shall have the right at any time prior to closing
to assign all Purchaser's right, title and interest under this Agreement
whereupon Purchaser shall have no further liability or responsibility under this
Agreement. In addition, Purchaser shall have the right to designate entities to
take title to the various Assets which entities may be other than Purchaser,
provided that the Resort Property (which includes the Ground Lease, the
Improvements, the Personal Property and the Tenant Leases) shall be conveyed to
one and the same entity.
16. No Broker. The parties shall and do hereby represent one unto the other
that they have dealt with no real estate broker in connection with the real
estate transaction contemplated by the within Agreement. In the event a real
estate broker or agent claims to have dealt with one of the parties contrary to
the foregoing representation, the party with whom the broker or agent claims to
have dealt with or consulted with agrees to indemnify and hold the other party
harmless against such claim or demand.
17. Purchaser's Representatives. From the date of this Agreement Purchaser may
have its representatives upon the Real Property.
18. Default by Purchaser. If Purchaser fails to perform any of the covenants of
this Agreement to be performed by Purchaser, all moneys paid pursuant to this
Agreement by the Purchaser as aforesaid shall be retained by or for the account
of the Seller as consideration for the execution of this Agreement and as agreed
and liquidated damages in full settlement of any and all claims for damages or
Seller shall have the right to specific performance.
19. Default by Seller. If Seller fails to perform any of the covenants of this
Agreement to be performed by Seller, then the Purchaser may elect to terminate
this Agreement, in which event all moneys paid by Purchaser shall be returned to
the Purchaser on demand or Purchaser shall have the right to specific
performance.
20. Survival or Representations and Covenants. All representations and
covenants made by each party shall survive the delivery of possession and the
closing for the benefit of the other party.
21. Attorney's Fees and Costs. In connection with any litigation arising out of
this Agreement, the prevailing party shall be entitled to recover all costs
incurred, including reasonable attorney's fees at both the trial and appellate
level.
22. Entire Agreement. This Agreement sets forth the entire understanding of the
parties and it shall not be changed or terminated except by a document in
writing signed by the party or parties charged therewith. No representations not
contained in this instrument shall be valid or binding upon either of the
parties unless contained in some document in writing referred to or incorporated
in this instrument or duly executed in writing.
23. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs, administrators, executors, successors, and assigns of each
of the parties hereto.
24. Invalidity. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term
or provision to the persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby and each term and
provision of this Agreement shall be valid and enforced to the fullest extent
permitted by law.
25. Hold Harmless. Seller shall save and hold harmless the Purchaser from any
liability, expense, damage or claim arising out of or incurred by Seller's
business conducted on the Ground Lease property or arising out of or in
connection with the Resort Property, the Desk, or the Paper and not on account
of the acts or omissions of Purchaser, Purchaser's agents or employees prior to
the date of the closing of the within transaction (including, but not limited to
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payables of Seller not expressly assumed by Purchaser) and Seller shall
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reimburse for all costs and expenses, including, but not limited to, a
reasonable attorney's fee on both the trial or appellate level, incurred by
Purchaser in defending any such liability, expense, damage or claim. In
connection therewith, Seller and Purchaser agree that Five-thousand (5000)
shares of the Stock shall remain in escrow with Xxxxxxx X. Xxxxxxx, Esq.
("Escrow Agent") subsequent to the closing for a period not to exceed ninety
(90) days for the purpose of providing a fund and source from which any claims
of Purchaser covered by the foregoing indemnification can be charged and/or
offset. If no claim is made in writing by Purchaser within said ninety (90) day
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period, then Escrow Agent shall deliver the Stock to Seller or its designee. If
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Purchaser makes a written claim or claims within the said ninety (90) day
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period, then Escrow Agent shall so notify Seller and unless Seller pays or
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settles the claim within ten (10) days thereafter, Escrow Agent shall return
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the Stock to Purchaser and Purchaser shall retain the number of shares
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necessary to satisfy the claim(s) based upon $_ per share and shall issue a
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certificate for the remaining shares of Stock, if any, and shall deliver such
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certificate to Escrow Agent, or if the said ninety (90) day period has expired,
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to Seller or its designee. In the event that a dispute arises between the part-
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ies as to the provisions of this section 25 or the application thereof, Escrow
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Agent shall be entitled to file an action in interpleader against the parties
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and deposit the Stock with the registry of the court having jurisdiction
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thereof, and the parties shall hold harmless the Escrow agent of and from any
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liability, expense, damage or claim in connection therewith and shall reimburse
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Escrow Agent on demand for all costs incurred, including court costs and
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attorney's fees at both the trial and appellate levels.
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Additionally, Purchaser shall save and hold harmless the Seller from any
liability, expense, damage or claim arising out of any negligent or intentional
act or omission of Purchaser's agents or employees on the Ground Lease property
or arising out of the Resort Property or the Desk during the period commencing
with the date of the closing of the within transaction and Purchaser shall
reimbursed for all costs and expenses, including, but not limited to, a
reasonable attorney's fee on both the trail or appellate level incurred by
Seller in defending any such liability, expense, damage or claim.
26. Governing Law; Venue. The terms and provisions of this Agreement shall be
governed by the laws of the State of Florida. Venue in any proceeding shall be
in Broward County, Florida.
27. Notices. Any notice or communication required or permitted under this
Agreement shall be given by certified mail, postage prepaid, to the following
addresses:
FOR THE SELLER: OCEAN PALMS DEVELOPMENT CORPORATION
OCEAN PALMS RESORT, INC.
0000 Xxxxx Xxxxx Xxxx.
Xxxxxxx Xxxxx, XX 00000
FOR THE PURCHASER: CAPITOL RESORTS OF FLORIDA, INC.
00000 Xxxxxxxx Xxxx., #X,
Xxxxxxxx, XX 00000
Any such notice or communication may also be personally delivered to either
party at the above addresses or sent via recognized overnight courier, or any
such notice or communication, whether by certified mail or personal delivery or
overnight courier, may be delivered to such other address or in care of such
other person as shall be designated hereafter in writing by any party to the
others, and shall be deemed to have been given as of the date so delivered or as
of the date of receipt whichever event first occurs.
28. Captions. Captions and headings to the various paragraphs of this Agreement
are for convenience only, and carry no legal effect and shall in no way affect
the interpretation or construction of the paragraphs of this Agreement.
29. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute an original.
30. Time for Acceptance. If this Agreement is not accepted by Seller on or
before the expiration of _____ ( ) days subsequent to the date that this
Agreement is received by Seller at 0000 Xxxxx Xxxxx Xxxx., Xxxxxxx Xxxxx, XX
00000 this Agreement shall thereafter be null and void.
31. RADON GAS: Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed Federal and
State guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your County Public Health
Unit.
IN WITNESS WHEREOF, the undersigned have set their hands and seals the day and
year first above written.
Signed, sealed and delivered
in the presence of:
SELLER:
OCEAN PALMS DEVELOPMENT Signed, sealed and delivered
CORPORATION In the presence of
/s/ Xxxxxxx X. Xxxxxxx.
By: /s/ Xxxxx Xxxxx
Its: President
OCEAN PALMS RESORT, INC.
By: /s/ Xxxxx Xxxxx /s/ Xxxxxxx X. Xxxxxxx
Its: President
PURCHASER:
CAPITOL RESORTS OF FLORIDA, /s/ Xxxxxxx X. Xxxxxxx
INC., a Florida corporation
By: /s/ Xxxxx X. Xxxx
---------------------
Its: Vice President
INDEX TO SCHEDULES
Exhibit "A" Ground Lease
Exhibit "B" Legal Description of Fee
Exhibit "C" Tenant Leases
Exhibit "D" Paper
Exhibit "E" Leasehold Mortgage
Exhibit "F" Contracts and Equipment
Leases
Exhibit "G" Estimated Settlement Statement
Exhibit "H" Environmental Report
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