STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is entered into as of December 4, 1997,
between U.S. GOLF COMMUNITIES, INC., a Delaware corporation ("Buyer"), and
MARICOPA HARDY DEVELOPMENT GROUP, INC., a Florida corporation ("'Seller").
R E C I T A L S
WHEREAS, Seller owns all of the outstanding capital stock of PELICAN
STRAND DEVELOPMENT CORPORATION, a Florida corporation (hereinafter, the
"Company");
WHEREAS, Seller desires to sell, and Buyer desires to buy, eighty-one
percent (81%) of all authorized and issued shares of stock of the Company for
the consideration described herein.
NOW, THEREFORE, in consideration of the mutual premises contained
herein and intending to be legally bound the parties agree as follows:
ARTICLE I
DEFINITIONS/PURCHASE & SALE/CLOSING
1.1 Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided:
(a) the terms defined in this Article I have the meanings assigned to
them in this Article I and include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned under GAAP (as hereinafter defined);
(c) all references in this Agreement to designated "Articles",
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of the body of this Agreement;
(d) pronouns of either gender or neuter shall include, as
appropriate, the other pronoun forms; and
(e) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
As used in this Agreement and the Exhibits and Schedules delivered
pursuant to this Agreement, the following definitions shall apply:
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"Action" means any action, complaint, petition, suit or other
proceeding, whether civil or criminal, in law or in equity, or before
any arbitrator or Governmental Entity.
"Affiliate" means a Person that directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common
control with, a specified Person.
"Agreement" means this Agreement by and between Buyer and Seller, as
amended or supplemented, together with all Exhibits and Schedules
attached or incorporated by reference.
"Business Day" means any day except Saturday, Sunday and any day which
shall be a legal holiday in Florida or a day on which banking
institutions are authorized or required by law or other government
action to close.
"Closing" means the consummation of the purchase and sale of the Stock
under this Agreement.
"Closing Date" means the date of the Closing, as designated by Buyer,
but in no event any later than December 5, 1997.
"GAAP" means generally accepted accounting principles in the United
States, as in effect from time to time.
"Governmental Entity" means any government of any agency, bureau,
board, commission, court, department, official, political subdivision,
tribunal or other instrumentality of any government having authority
in the United States or any other nation, whether federal, state or
local.
"Intangible Property" means any patent, service xxxx, trademark,
tradename or copyright, and all registrations or applications for
registration of any of the foregoing.
"IRS" means the Internal Revenue Service or any successor entity.
"Law" means any constitutional provision or statute, whether federal,
state or local, applicable in the United States or any other nation or
other law, rule, regulation, or interpretation of any Governmental
Entity and any Order.
"Partnership" means Pelican Strand, Ltd., a Florida limited
partnership.
"Permit" means any license, permit, franchise, certificate of
authority, or Order, or any waiver of the foregoing, required to be
issued by any Governmental Entity.
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"Person" means an association, corporation, an individual, a
partnership, a trust or any other entity or organization, including a
Governmental Entity.
"Pelican Strand Projects" - The property commonly known as Pelican
Strand, as further described on Exhibit "All attached hereto and
incorporated herein by virtue of this reference.
"Stock" means eighty-one percent (81%) of all of the authorized and
issued capital stock of the Company.
"Tax" means each and all taxes, levies, imposts, duties, assessments,
charges and withholdings imposed by any federal, state, local or
foreign government or taxing authority or by any political subdivision
thereof or any combination thereof (including, without limitation,
income, gross receipts, ad valorem, minimum tax, franchise, sales,
use, excise, property, payroll, stock transfer, withholding or other
tax, governmental fee or other like assessment or charge of any kind
whatsoever), including interest, penalties, fines, assessments and
additions to tax in respect to the foregoing.
"United States" means the United States of America, its territories
and possessions.
1.2 Transfer of Stock by Seller.
Subject to the terms and conditions of this Agreement, Seller agrees to
sell the Stock and deliver the certificates evidencing the Stock to Buyer at the
Closing. The certificates will be properly endorsed for transfer to, or
accompanied by a duly executed stock power in favor of, Buyer and otherwise in a
form acceptable for transfer on the books of the Company. Seller shall procure
any stock transfer stamps required in respect of the transfer of the Stock.
1.3 Purchase of Stock by Buyer; Purchase Price.
Subject to the terms and conditions of this Agreement, Buyer agrees to
acquire Stock from Seller and to pay $9,439,960.00 (the "Purchase Price") to
Seller. The Purchase Price shall be paid at the Closing to Seller as follows:
(a) An initial deposit of $10,000.00 shall be due and payable
at the of execution of this Agreement, to be returned to Buyer at
Closing.
(b) The balance of the Purchase Price shall be due and payable at
Closing in the form of 3,432,713 shares of common stock of GOLF COMMUNITIES OF
AMERICA, INC., the anticipated and renamed corporation resulting from the merger
described in Article 3 below. All said shares of stock shall be issued to Seller
free and clear of any and all liens, encumbrances, shareholder agreements, or
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similar encumbrances, being freely tradeable shares in the open market, subject
only to the restrictions described in Article 4.4 below.
1.4 The Closing.
The Closing will take place at the offices of Buyer, on a date and
time selected by Buyer and reasonably acceptable to Seller, but in no event any
later than December 5, 1997.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants as follows:
2.1 Organization and Related Matters.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of Florida, and has currently and properly elected
Subchapter S tax treatment under the Internal Revenue Code. Seller has all
necessary corporate power and authority to execute, deliver and perform this
Agreement and any related agreements to which it is a party. The Company has all
necessary corporate power and authority to own its properties and assets and to
carry on its business as now conducted. Seller warrants and represents to Buyer
that Seller has all licenses necessary to operate the business of the Company as
now operated. True, correct and complete copies Seller's charter documents and
by-laws of the Company are attached hereto as Exhibit "B".
2.2 Capital Stock.
Seller owns the Stock, beneficially and of record, restrictions and
adverse claims of any kind, except for these encumbrances to be satisfied at
Closing. At the Closing, Buyer will acquire good and valid title to and complete
ownership of the stock, free of any and all adverse claims. The Stock of the
Company is duly authorized, validly issued and outstanding and is full paid and,
nonassessable. There are no outstanding subscriptions, options, warrants, calls,
commitments, conversion rights, rights of exchange, plans or other agreements or
rights to subscribe for or purchase, or any agreements, contracts or other
obligations to issue or grant any rights to acquire, any equity securities of
the Company other than as contemplated by this Agreement. The Company has no
other capital stock or other equity interest or any securities convertible into
(or exchangeable for) capital stock, or any other rights, warrants, or options
to acquire any of the foregoing, authorized or issued, other than the Stock.
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2.3 Subsidiaries.
The Company has no subsidiaries.
2.4 Financial Statements.
Attached hereto as Exhibit "C" are balance sheets for the Company as
of _________________________________, and the related statements of income for
the years then ended (such financial statements, including the notes thereto,
referred to herein as the "Financial Statements") and pro-forma income
statements for the Company for the years ended December 31, 19__ and 199_ (the
"Pro-Forma Statements"). The Financial Statements have been prepared in
conformity with GAAP, consistently applied, and the statements of income of the
Company for the respective periods covered, and the balance sheets contained
therein present fairly the financial position of the Company as at their
respective dates.
2.5 No Material Adverse Change.
Since December 31, 199_, (i) there has been no material adverse change
in the financial condition, results of operations, assets, liabilities or
business of the Company; (ii) the Company has not issued or sold any shares of
its capital stock; (iii) the Company has not incurred any obligation or
liability or entered into any other transaction except (A) in the ordinary
course of business or (B) for any obligations, liabilities and transactions that
in the aggregate have not had and would not reasonably be expected to have a
material adverse effect on the business, financial condition or results of
operations of the Company; and (iv) the physical properties owned or leased by
the Company have not suffered any destruction or damage, regardless of whether
or not the loss suffered was insured, that would, individually or in the
aggregate, materially adversely affect the business, financial condition or
results of operations of the Company.
2.6 Taxes.
Seller and Buyer agree to close the books and records of the Company
as of the day before the Closing Date, and Seller shall reimburse company for
all Company Taxes for the period of time commencing with the date of formation
of the Company, and terminating the date of closing of the books and records.
All tax returns required by law to have been filed on or prior to the Closing
Date by, or with respect to the activities of, the Company have been or will be
properly and timely filed. All Taxes required to be shown to be due on such Tax
Returns have been or will be timely paid.
2.7 Material Contracts.
The Company does not have, nor is bound by, (i) any agreement,
contract or commitment relating to the employment of any Person by
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the Company except as reflected in Exhibit "D" attached hereto; (ii) any
agreement, contract or commitment limiting the freedom of the company to engage
in any line of business or to compete with any other Person or (iii) any
agreement, contract or commitment (whether or not entered into in the ordinary
course of business) which involves payment by any party thereto of $5,000.00 or
more in any calendar year and is not cancelable by the Company without penalty
upon not more than 30 days' notice, except as reflected in Exhibit "E" attached
hereto. To the best knowledge of Seller, no party thereto has violated any
material term or condition of any contract or agreement to which either the
Seller or Company is a party.
2.8 Properties.
All tangible properties and assets owned by the Company are set forth
on Exhibit "F" attached hereto. All such assets are so owned free and clear of
all encumbrances, liens, charges and other restrictions of any kind or
character, except for encumbrances, liens, charges or similar restrictions (i)
for current taxes, assessments or governmental charges or levies on property not
yet due and delinquent, or (ii) which do not, individually or in the aggregate,
materially affect the operation of the business the Company.
2.9 Intangible Property.
Exhibit "G" attached hereto lists all material items of Intangible
Property in which the Company has an interest and the nature of such interest.
The Company has the right to use such Intangible Property in the manner now used
by the Company. Neither Seller nor the Company has received any written notice
to the effect (or is otherwise aware) that the Intangible Property or any use by
the Company of any such property infringes the rights of any Person.
2.10 Authorization; No Conflicts.
This Agreement and all related agreements constitute the legal, valid
and binding obligations of Seller, enforceable against Seller in accordance with
their terms. The execution, delivery and performance of this Agreement by Seller
and any related agreements by Seller and/or the Company will not (i) violate, or
constitute a breach or default (whether upon lapse of time and/or the occurrence
of any act or event or otherwise) under, the charter documents or by-laws of the
Company or any contract to which either Seller, or the Company, or both, is a
party or (ii) result in the imposition of encumbrance, lien, charge or similar
restriction against any asset or property of the Company, or (iii) violate any
Law to which Seller or the Company is subject.
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2.11 Legal Proceedings.
There are no orders entered, nor any legal administrative proceedings
promulgated or pending, or, to the best knowledge of Seller, threatened against
or affecting the Company or any of its properties or assets, and, to the best
knowledge of Seller, there is no investigation pending or threatened against or
affecting the Company before any Governmental Entity. However, Seller has
disclosed to Buyer that Partnership has been threatened by WCI Communities with
litigation over the use of the name of "Pelican Strand" for the Pelican Strand
Project.
2.12 Employees.
The Company has no employees, benefit plans, profit sharing plans,
Xxxxx plans, or employment plans of any nature whatsoever, nor has the Company
ever had any employees or any employee related benefit plans.
2.13 Officers and Directors.
The officers and directors of Company are as shown on Exhibit "H"
attached hereto. If requested by Buyer, all of said officers and directors
shall, at Closing, resign as an officer and director of the Company.
2.14 No Broker's or Finder's Fee.
No agent, broker, finder, or investment or commercial banker, or other
Person or firm engaged by or acting on behalf of Seller or the Company or any of
their respective Affiliates in connection with the negotiation, execution or
performance of this Agreement or the transactions contemplated by this
Agreement, is or will be any brokerage or finder's or similar fees or other as a
result of this Agreement or such transactions. hereby agree to pay any party
claiming any commission agrees to hold Buyer and and/or Company, against
entitled to commissions Seller does or similar fees by and through Seller, and
Company harmless, and to indemnify Buyer any and all such claims of broker
commissions.
2.15 Contracts.
Neither Seller individually, nor has Seller on behalf of Company,
executed any agreements, documents or contracts with any Governmental Entity or
third party which in any way concerns the acquisition, development, or operation
of the Pelican Strand Project or any improvements thereon.
Seller does hereby acknowledge and agree that in the event that any
warranty or representation set forth herein shall prove to be untrue or
inaccurate in any respect, and as a result thereof Buyer and/or Company suffers
damages thereby, that Buyer shall have the right to recover from Seller any and
all damages incurred by
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Buyer and/or Company as a result of said inaccuracy. Said damages shall include,
but not be limited to, any reasonable attorney's fees and other third party
costs incurred by Buyer. The terms and provisions of this Article shall survive
the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants as follows:
3.1 Organization and Related Matters.
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of Delaware, and is authorized to transact business in
the State of Florida. Buyer has all necessary corporate power and authority to
execute, deliver, and perform this Agreement, and any related agreements to
which it is a party.
3.2 Financial Statements.
Buyer does hereby warrant and represent that Buyer has heretofore
delivered to Seller true and correct copies of various financial information of
Buyer, and of Buyer's proxy statement for Buyer's merge with Golf Ventures, Inc.
A synopsis of all said financial information delivered to Seller by Buyer is as
set forth as Exhibit "K" attached hereto and incorporated herein by virtue of
this reference. Buyer does hereby warrant and represent that all of said
financial statements and other financial information have been prepared in
conformity with GAAP, consistently applied, and fairly and accurately represent
the financial position of the Buyer and/or Golf Ventures, Inc. as to the dates
shown thereon.
3.3 Merger.
The merger between Golf Ventures, Inc. and completed, and was properly
performed in compliance with all applicable rules, regulations, and statutes,
and is parties thereto. Tax liabilities for Golf Ventures, Inc. and Buyer are
paid up through and including the fiscal year of each corporation. Buyer does
hereby warrant and represent to Seller that Golf Ventures, Inc. is a publicly
traded corporation, duly organized, validly existing and in good standing under
the laws of the State of Utah; and, further, is authorized to transact business
in the State of Florida.
3.4 Material Contracts.
The Buyer does not have, nor is bound by, any agreement, contract, or
commitment relating to the employment of any Person by Buyer; nor any agreement,
contract, or commitment limiting the freedom of the Buyer to engage in any line
of business to compete with any other Person; or any agreement, contract or
commitment
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which involves payment by any party thereto of $50,000.00 or more any calendar
year and is not cancelable by the Buyer without penalty upon not more than
thirty (30) days notice, accept as reflected in the proxy statement.
3.5 Authorization: No Conflicts.
This Agreement and all related agreements constitute the legal, valid
and binding obligations of Buyer, enforceable against Buyer in accordance with
their terms. The execution, delivery and performance of this Agreement by Buyer
and any related agreements by Buyer will not involve (i) violate, or constitute
a breach or default (whether upon lapse of time and/or the occurrence of any act
or event or otherwise) under the Charter Documents or By-laws of Buyer or any
contract to which Buyer is a party; or (ii) results in the imposition of
encumbrances, liens, or charges or similar restrictions against any asset or
property of Buyer; or (iii) filing any Law to which Buyer is subject.
3.6 Legal Proceedings.
There are no orders entered, nor any legal administrative proceedings
promulgated or pending, or to the best knowledge of Buyer, threatened against or
reflecting Buyer or any of its properties or assets; and, to the best of Buyer's
knowledge, there is no investigation pending or threatening against Buyer or
affecting the Buyer before any Governmental Entity.
3.7 No Brokers or Finders Fee.
No agent, broker, finder, or investment or commercial banker, or other
Person or firm engaged by or acting on behalf of Buyer or the or any of their
respective Affiliates in connection with the negotiation, execution or
performance of this Agreement or the transactions contemplated by this
Agreement, is or will be entitled to any brokerage or finder's or similar fees
or other commissions as a result of this Agreement or such transactions. Buyer
does hereby agree to pay any party claiming any commission or similar fees by
and through Buyer, and agrees to hold Buyer and harmless, and to indemnify Buyer
and/or, against any and all such claims of broker commissions.
Buyer does hereby acknowledge and agree that in the event that any
warranty or representation set forth herein shall prove to be untrue or
inaccurate in any respect, and as a result thereof Seller and/or Company suffers
damages thereby, that Seller shall have the right to recover from Buyer any and
all damages incurred by Seller and/or Company as a result of said inaccuracy.
Said damages shall include, but not be limited to, any reasonable attorney's
fees and other third party costs incurred by Seller. The terms and provisions of
this Article shall survive the Closing.
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ARTICLE IV
CONDITIONS OF PURCHASE
4.1 General Conditions.
The obligations of the parties to effectuate the Closing shall be
subject to the following conditions, unless waived in writing by both parties:
(a) No Orders; Legal Proceedings. No law or order shall have
been enacted, entered, issued, promulgated or enforced by any Governmental
Entity, nor shall any Action have been instituted and remain pending or have
been threatened and remain so at what would otherwise be the Closing Date, which
prohibits or materially restricts or would prohibit or materially restrict the
transactions contemplated by this Agreement, or the development of the Pelican
Strand Project.
(b) Performance. Full performance of all obligations of Buyer and
Seller hereunder, unless waived by the other party.
4.2 Conditions to Obligations of Buyer.
The obligations of Buyer to effectuate the Closing shall be subject to
the following conditions, except to the extent waived in writing by Buyer:
(a) Representations and Warranties and Covenants of Seller. The
representations and warranties of Seller herein contained shall be true in all
material respects at the Closing Date with the same effect as though made at
such time, except as contemplated hereunder; and Seller shall have in all
material respects performed all material obligations and complied with all
material covenants and conditions required by this Agreement to be performed or
complied with by it at or prior to the Closing Date, and Seller shall have
delivered to Buyer a certificate of Seller in form and substance satisfactory to
Buyer, dated the Closing Date and signed by its duly authorized office to such
effect.
(b) No Material Adverse Changes. Since the date hereof there
shall have been no material adverse change in the financial condition, results
of operations, assets, liabilities or business of the Company, or of the Pelican
Strand Project.
(c) Management Agreement. Xxxxxx Xxxx Xxxxx and Xxxxx Xxxxxx
and Company, shall execute at or prior to closing, a Management agreement in the
form attached hereto as Exhibit "I".
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(d) The obligation of Buyer to effectuate the Closing shall be
subject to Huntington National Bank consenting to the transactions contemplated
herein. In the event that Huntington National Bank does not consent to the
transactions contemplated herein, either Seller or Buyer shall have the right to
rescind this Stock Purchase Agreement.
(e) Buyer's performance herein is further contingent upon Seller
providing Buyer with evidence reasonably acceptable to it, that Seller has
completed its merger with Golf Ventures, Inc., on the date of Closing. In the
event said merger is not complete, Buyer shall have the right to rescind this
Stock Purchase Agreement.
(f) Buyer's performance herein is contingent upon Buyer
obtaining the approval of Xxxxxxx X. Xxxxxxx, as trustee, the Class A Limited
Partner of Partnership, consenting to the transactions contemplated herein. In
the event that consent is not forthcoming, Buyer shall have the right to rescind
this Stock Purchase Agreement.
4.3 Conditions to Obligations of Seller.
(a) The obligations of Seller to effectuate the Closing shall be
subject to the representations and warranties of Buyer herein contained being
true in all material respects at the Closing Date with the same effect as though
made at such time, except as contemplated hereunder; and Buyer shall have in all
material respects performed all material obligations and complied with all
material covenants and conditions required by this Agreement to be performed or
complied with by it at or prior to the Closing Date, and Buyer shall have
delivered to Seller a certificate of Buyer in form and substance satisfactory to
Seller, dated the Closing Date and signed by its duly authorized office to such
effect.
(b) The obligation of Seller to effectuate the Closing shall be
subject to Huntington National Bank consenting to the transactions contemplated
herein. In the event that Huntington National Bank does not consent to the
transactions contemplated herein, either Seller or Buyer shall have the right to
rescind this Stock Purchase Agreement.
(c) Seller's performance herein is further contingent upon Buyer
providing Seller with evidence reasonably acceptable to it, that Buyer has
completed its merger with Golf Ventures, Inc., on the date of Closing. In the
event said merger is not complete, Seller shall have the right to rescind this
Stock Purchase Agreement.
(d) Seller's performance herein is contingent upon Seller
obtaining the approval of Xxxxxxx X. Xxxxxxx, as trustee, the Class A Limited
Partner of partnership, consenting to the transactions
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contemplated herein. In the event that consent is not forthcoming, Seller shall
have the right to rescind this Stock Purchase Agreement.
4.4 Restrictions on Golf Communities of America stock.
Seller does hereby agree that its ability to transfer shares of stock
it receives from Buyer as the Purchase Price will be subject to those
restrictions set forth on Exhibit "L" attached hereto and incorporated herein by
virtue of this reference. Buyer and Seller do hereby agree to enter into such
shareholders' agreements or other agreements at Closing, as may be necessary to
impose said restrictions.
ARTICLE V
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of the Seller, Buyer and/or Company
contained in or made pursuant to this Agreement shall survive the Closing.
ARTICLE VI
PELICAN STRAND PROJECT FINANCING
6.1 Obligation of Buyer.
No later than Closing, Buyer does hereby agree that Buyer shall loan
to Partnership, the sum of $1,250,000.00 upon the following terms and
conditions:
(a) Interest shall accrue on said unpaid principal balance at
the Prime Rate (as that term is defined in the Pelican Strand, Ltd. partnership
agreement) of interest, plus two percentage points.
(b) Interest shall accrue, and be due and payable at the
maturity of said loan, one year from the date of said loan.
(c) Said loan shall be unsecured, due and payable only by
Partnership, and for which no general partner of the partnership have any
personal liability therefore.
(d) All of said loan shall be repaid in accordance with the
terms of the partnership agreement for Partnership.
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6.2 Obligation of Seller.
No later than December 12, 1997, Seller shall loan to Partnership, the
principal sum of $1,250,000.00, upon the same terms and conditions as Buyer's
loan to Partnership, as described in Paragraph 6.1 above. Seller shall obtain
said loan proceeds from any third party of Seller's choosing, and upon such
terms and conditions as Seller may be able to negotiate. Buyer does hereby
acknowledge and agree that Seller may grant a security interest in all shares of
Golf Communities of America, Inc. stock that Seller receives from Buyer in
consummating the Closing described herein. The loans made by Buyer and Seller in
accordance with provisions of Paragraph 6.1 and 6.2 of this Agreement shall be
of co-equal dignity to each other.
6.3 Obligation of Buyer to Guarantee Huntington Loan.
No later than Closing, Buyer does hereby agree that Buyer shall
execute and deliver to the Huntington National Bank a continuing and
unconditional guaranty, in such form as the Huntington National Bank shall
reasonably prescribe, which, in part, obligates Buyer to fully and
unconditionally guarantee all loans now held by the Huntington National Bank
from Partnership. By execution hereof, Buyer does hereby warrant and represent
to Seller that Buyer has had the option to review all of said loan documents,
and is familiar with the terms and provisions of the same; and, further, has
engaged in extended conversations with the Huntington National Bank relative to
said loans.
6.4 Obligation of Seller and Buyer Beyond the Initial Loan.
Buyer and Seller do hereby agree that in the event that any additional
monies are needed by Partnership for its operations, and the general partner
thereof does not elect to obtain the same from third parties, that Buyer and
Seller shall each be responsible for contributing a pro rata share thereof to
Partnership, either as a loan or capital (as Buyer and Seller may then agree),
with Buyer responsible for eighty-one percent (81%) of all the said monies
needed, and Seller responsible for nineteen percent (19%) of all said monies
needed. Notwithstanding the foregoing however, in no event shall Seller be
obligated to provide any additional monies or capital to Partnership which, in
the aggregate, exceeds the amount of money that Seller may obtain by the pledge
of all stocks Seller obtains at Closing from Buyer as payment of the Purchase
Price. In the event that Seller is no longer obligated to provide additional
capital or loans to Partnership as a result of the foregoing, the parties hereto
do hereby agree that Buyer alone shall be responsible for providing all
additional monies needed by Partnership, all which shall be loaned to the
Partnership, and not treated as contributed capital.
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ARTICLE VII
TAXES
7.1 Seller's Responsibility.
Seller shall pay or cause to be paid and shall indemnify and hold
Buyer harmless against (a) all United States Federal Taxes payable with respect
to Tax Returns of the Company for all periods ending on or prior to the Closing
Date and state, local and foreign taxes with respect to which the Company has
filed or is required to file payable with respect to the Company for all periods
ending on or prior to the Closing Date.
7.2 Returns.
For all taxable periods ending on or prior to the Closing Date, Seller
shall file, or cause to be filed, all tax returns relating to the business or
assets of the Company required to be filed for taxable years ending on or before
the Closing Date.
ARTICLE VIII
INDEMNIFICATION
8.1 Obligations of Seller.
Seller agrees, subject to the other terms and conditions of this
Agreement from and after the Closing Date, to indemnify and hold Buyer harmless,
from and against any liabilities and damages to Buyer, directly or indirectly,
as a result of, or based upon or arising from any material inaccuracy in or
material breach of any of the representations and warranties, or any material
breach of any of the covenants or agreements, made by Seller in or pursuant to
this Agreement.
8.2 Obligations of Buyer.
Buyer agrees, subject to the other terms and conditions of this
Agreement from and after the Closing Date, to indemnify and hold Seller
harmless, from and against any liabilities and damages to Seller, directly or
indirectly, as a result of, or based upon or arising from any material
inaccuracy in or material breach of any of the representations and warranties,
or any material breach of any of the covenants or agreements, made by Buyer in
or pursuant to this Agreement.
ARTICLE IX
PROVISIONS REGARDING COUNTRY CLUB
At such time as the Partnership has sold ninety percent (90%) of all
acreage located within the Pelican strand Project which is designated for
residential use (as the parties hereto may then agree), and four hundred (400)
full golf memberships in and to the
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Xxxxxxx Xxxxxx Golf & Country Club) the "Club"), the parties hereto do hereby
agree as follows:
(a) The parties hereto shall cause the Club to be appraised by an
appraiser mutually acceptable to both parties hereto, utilizing then current
industry standards. In the event that the Parties hereto cannot mutually agree
upon an appraiser, then each party hereto shall be entitled to select an
appraiser, and said two appraisers select a third appraiser, and the average
opinion of the valuation of the Club of said three appraisers shall be deemed to
be the appraised value thereof.
(b) Upon receipt of said appraisal, and subject to the restrictions
set forth within the limited partnership agreement of the Partnership, the
parties hereto shall elect to either sell the Club, or retain it as a
Partnership asset. Buyer does hereby acknowledge that the Club cannot be sold
without the consent of the Class A Limited Partner of the Partnership.
(c) In the event that the parties hereto and the Class A Limited
Partner elect to sell the Club, the same shall be sold upon such price and terms
as may be mutually agreed by the parties hereto at that time.
(d) In the event that the parties hereto and the Class A Limited
Partner should elect to sell the Club, then either party hereto shall also have
the right to purchase the same from the Partnership upon such price and terms as
either party hereto may be willing to offer at that time. In the event such an
offer is made by one of the parties hereto, the other party shall have the right
to purchase the Club upon the same terms and conditions as that initially
proffered by the first party hereto to make such an offer, by so notifying the
other party hereto within twenty (20) days of the party's receipt of the first
offer to purchase the Club. In the event that either of the parties hereto
should enter into a binding sales contract with the Partnership for the sale of
the Club, the closing thereof shall take place no later than ninety (90) days
from the date of execution of a binding sales contract therefor.
(e) Buyer acknowledges that the Club's members may have the first
right to purchase the Club and, as such, any rights or remedies available to any
party under this Article are subordinate to the Club's members' rights.
(f) Buyer and Seller do hereby agree that as a result of Buyer
obtaining an interest in and to Company as the sole general partner of
Partnership, that Buyer does acquire a vested interest in and to the Club;
provided, however, Buyer acknowledges that Buyer has no ownership interest in
the Club, and the Buyer's sole source of any interest in and to the Club is as a
result of Buyer's stock ownership interest in the Company.
Stock Purchase Agreement
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ARTICLE X
GENERAL
10.1 Amendments; Waivers.
This Agreement and any Exhibit attached hereto may be amended only by
agreement in writing of the parties. No waiver of any provision nor consent to
any exception to the terms of this Agreement or any agreement contemplated
hereby shall be effective unless in writing and signed by the party to be bound
and then only to the specific purpose, extent and instance so provided.
10.2 Best Efforts; Further Assurances.
Each party will use its best efforts to cause all conditions to its
and the other party's obligations hereunder to be timely satisfied and to
perform and fulfill all obligations on its part to be performed and fulfilled
under this Agreement, to the end that the transactions contemplated by this
Agreement shall be effected substantially in accordance with its terms as soon
as reasonably practicable. The parties shall cooperate with each other in such
actions and in securing requisite Approvals. Each party shall execute and
deliver both before and after the Closing such further certificates, agreements
and other documents and take such other actions as may be necessary or
appropriate to consummate or implement the transactions contemplated hereby or
to evidence such events or matters.
10.3 Governing Law.
This Agreement and the legal relations between the parties shall be
governed by and construed in accordance with the laws of the State of Florida
applicable to contracts made and to be performed entirely with the State of
Florida, except to the extent that certain matters are preempted by federal law
or are necessarily governed by the law of the jurisdiction of organization of
the respective parties.
10.4 Allocations.
Buyer and Seller do hereby agree that the Purchase Price paid
hereunder shall be allocated as set forth on Exhibit "J" attached hereto and
incorporated herein by virtue of this reference.
10.5 Headings.
The descriptive headings of the Articles, Sections and Subsections of
this Agreement are for convenience only and do not constitute a part of this
Agreement.
10.6 Counterparts.
Stock Purchase Agreement
-16-
This Agreement and any amendment hereto or any other agreement (or
document) delivered pursuant hereto may be executed in one or more counterparts
by different parties in separate counterparts. All of such counterparts shall
constitute one and the same agreement (or other document) and shall become
effective (unless otherwise provided therein) when one or more counterparts have
been signed by each party and delivered to the other party.
10.7 Parties in Interest.
This Agreement shall be binding upon and inure to the benefit of each
party, and nothing in this Agreement, express or implied, is intended to confer
upon any other person any rights or remedies or any nature whatsoever under or
by reason of this Agreement. Nothing in this Agreement is intended to relieve or
discharge the obligation of any third person to (or to confer any right of
subrogation or action over against) any party to this Agreement.
In Witness Whereof, the parties hereto have set their hands and seals
this 4th day of December, 1997.
SELLER:
(Corporate Seal)
MARICOPA HARDY DEVELOPMENT
GROUP, INC., a
Florida corporation
/s/ Xxx X. Xxxxxxxxx By: /s/ Xxxxxx Xxxx Xxxxx
------------------------------- -----------------------------
WITNESS #1 XXXXXX XXXX XXXXX, as
Xxx X. Xxxxxxxxx Vice President
-------------------------------
(Print Name)
/s/ Xxxxx X. Xxxxx
-------------------------------
WITNESS #2
Xxxxx X. Xxxxx
-------------------------------
(Print Name)
ATTEST:
/s/ Xxx X. Xxxxxxxxx /s/ Xxxxx Xxxxxx
------------------------------- ----------------------------
WITNESS #1 XXXXX XXXXXX, as
Xxx X. Xxxxxxxxx Secretary
-------------------------------
(Print Name)
/s/ Xxxxx X. Xxxxx
-------------------------------
WITNESS #2
Xxxxx X. Xxxxx
-------------------------------
(Print Name)
Stock Purchase Agreement
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BUYER:
(Corporate Seal)
U.S. GOLF COMMUNITIES, INC., a
Delaware corporation
By:
------------------------------- -------------------------------
WITNESS #1 XXXXXX XXXXXXXXX, as
President
-------------------------------
(Print Name)
ATTEST:
------------------------------- --------------------------------
WITNESS #2 _________________________, as
Secretary
-------------------------------
(Print Name)
JOINDER:
(Corporate Seal)
PELICAN STRAND DEVELOPMENT
CORPORATION, a Florida
corporation
/s/ Xxx X. Xxxxxxxxx By: /s/ W. Xxxx Xxxxxxx
------------------------------- --------------------------------
WITNESS #1 W. XXXX XXXXXXX, as
Xxx X. Xxxxxxxxx President
-------------------------------
(Print Name)
/s/ Xxxxx X. Xxxxx
-------------------------------
WITNESS #2
Xxxxx X. Xxxxx
-------------------------------
(Print Name)
------------------------------- --------------------------------
WITNESS #1 XXXXXX XXXXXXXXX
-------------------------------
(Print Name)
-------------------------------
WITNESS #2
-------------------------------
(Print Name)
Stock Purchase Agreement
-18-
BUYER:
(Corporate Seal)
U.S. PELICAN STRAND, INC., a
Florida corporation
/s/ Xxxx Xx Xxxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------------- -------------------------------
WITNESS #1 XXXXXX XXXXXXXXX, as
Xxxx Xx Xxxxxx President
-------------------------------
(Print Name)
ATTEST:
/s/ Xxx Xxxxxxx /s/ Xxxx Xx Xxxxxx
------------------------------- --------------------------------
WITNESS #2 Xxxx Xx Xxxxxx, as
Vice President
-------------------------------
(Print Name)
JOINDER:
(Corporate Seal)
PELICAN STRAND DEVELOPMENT
CORPORATION, a Florida
corporation
/s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxx
------------------------------- --------------------------------
WITNESS #1 Xxxx Xxxxx, as
Xxxxxx Xxxxxx Vice President
-------------------------------
(Print Name)
/s/ Xxxxxxxx Xxxxxx
-------------------------------
WITNESS #2
Xxxxxxxx Xxxxxx
-------------------------------
(Print Name)
/s/ Xxxx Xx Xxxxxx /s/ Xxxxxx Xxxxxxxxx
------------------------------- --------------------------------
WITNESS #1 XXXXXX XXXXXXXXX
Xxxx Xx Xxxxxx
-------------------------------
(Print Name)
/s/ Xxx Xxxxxxx
-------------------------------
WITNESS #2
Xxx Xxxxxxx
-------------------------------
(Print Name)
Stock Purchase Agreement
-18-
/s/ Xxx X. Xxxxxxxxx /s/ Xxxxxx Xxxx Xxxxx
------------------------------- --------------------------------
WITNESS #1 XXXXXX XXXX XXXXX
Xxx X. Xxxxxxxxx
-------------------------------
(Print Name)
/s/ Xxxxx X. Xxxxx
-------------------------------
WITNESS #2
Xxxxx X. Xxxxx
-------------------------------
(Print Name)
/s/ Xxx X. Xxxxxxxxx /s/ Xxxxx Xxxxxx
------------------------------- -------------------------------
WITNESS #1 XXXXX XXXXXX
Xxx X. Xxxxxxxxx
-------------------------------
(Print Name)
/s/ Xxxxx X. Xxxxx
-------------------------------
WITNESS #2
Xxxxx X. Xxxxx
-------------------------------
(Print Name)
/s/ Xxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------------- --------------------------------
WITNESS #1 XXXXXXX X. XXXXXXX, as Trustee
Xxxxx Xxxxxxx
-------------------------------
(Print Name)
/s/ Xxxxxx Xxxxxxxxx
-------------------------------
WITNESS #2
Xxxxxx Xxxxxxxxx
-------------------------------
(Print Name)
Stock Purchase Agreement
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