Exhibit 10.11
PURCHASE AGREEMENT
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Dated as of December 21, 2006
THIS PURCHASE AGREEMENT is made by and between SBR HOLDING COMPANY, LLC, a
Florida limited liability company ("SBR"), and AMERICAN LEISURE HOLDINGS INC., a
Nevada corporation ("AMLH").
R E C I T A L S
A. SBR owns 100% of the outstanding membership interests (the "Interests")
in South Beach Resorts, LLC, a Florida limited liability company (the
"Company").
B. Xxxxx Xxxxxxx has made loans and advances to the Company in the
aggregate amount of THREE MILLION FIVE HUNDRED NINETY THOUSAND EIGHT HUNDRED
ELEVEN ($3,590,811.00) (the "Affiliate Loans").
C. SBRdesires to sell the Interests to AMLH, and AMLH desires to acquire
the Interests, on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of mutual promises set forth in this Agreement,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. PURCHASE AND SALE OF INTERESTS
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1.1 Purchase of Interests. Upon the execution and delivery of this
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Agreement, SBR will sell, assign and deliver the Interests to AMLH, and
AMLH will purchase and accept the Interests.
1.2 Purchase Price for Interests. In exchange for the sale of the
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Interests, AMLH will pay to SBR a purchase price (the "Purchase Price")
equal to 75% of the Net Proceeds (as defined in Section 1.3 below) realized
by the Company upon the disposition of the real property located at 000
Xxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxx and known as the Boulevard Hotel (the
"Property"), up to a maximum of THREE MILLION AND NO/100 DOLLARS
($3,000,000.00).
1.3 Calculation of Profits. For purposes of this Agreement, the term
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"Net Proceeds" means the proceeds realized upon the disposition or
refinancing of the Property less Company's cost basis in the Property;
provided, however, that for purposes of the calculation of Net Proceeds,
all operating losses or operating profits relating to the Property shall be
excluded.
1.4 Payment of Purchase Price. AMLH will pay the Purchase Price to
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SBRupon the disposition of the Property.
2. ADDITIONAL AGREEMENTS
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2.1 Covenants Related to Company. Excluding any profit participation
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agreements with Stanford International Bank Ltd. or any warrants issued to
Stanford International Bank Ltd. or its principals, until the sale of all
of the assets of the Company, the repayment of the Affiliate Note and the
payment of the Purchase Price to SBR, (i) AMLH will not receive from the
Company (and AMLH will cause the Company not to make) any distributions or
payments to AMLH or its affiliates, (ii) AMLH will not sell, pledge or
otherwise encumber the Interests, (iii) AMLH will authorize (or permit the
Company to authorize) the issuance of any additional interests in the
Company to any person, and (iv) AMLH will not authorize (or permit the
Company to authorize) any sale or other transfer of the assets of the
Company except to an unaffiliated third party in an arm's length
transaction in which the Company receives fair market value for such
assets.
2.2 Affiliate Loans. Upon the execution of this Agreement, the parties
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will cause the Company to execute and deliver a note evidencing for
Affiliate Loans in the form of Exhibit A to this Agreement (the "Affiliate
Note").
2.3 Guaranty of Affiliate Note. Upon the execution and delivery of
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this Agreement, AMLH will execute and deliver a guarantee of the Affiliate
Note in the form of Exhibit B to this Agreement (the "AMLH Guarantee").
2.4 Delivery of Documents. Upon the execution and delivery of this
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Agreement, the parties will execute and deliver the following documents:
(a) SBR will execute and deliver to AMLH an Assignment of
Interest evidencing the assignment of the Interests to AMLH.
(b) AMLH will execute and deliver to SBR the AMLH Guarantee .
3. REPRESENTATIONS AND WARRANTIES OF SBR.
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SBR hereby represents and warrants to AMLH as follows:
3.1 Ownership of SBR Interest. SBR owns the Interests beneficially and
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of record and will assign, bargain, sell, transfer, and deliver all rights,
title and interest in the Interests to AMLH, free and clear of all liens,
charges, claims, encumbrances, pledges, security interests, community
property rights, equities, liabilities, debts, restrictions on transfer or
other defects in title of any kind or nature.
3.2 Authority to Enter into Agreement; Enforceability. SBR has the
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right, power, legal capacity and authority to enter into and carry out the
terms and provisions of this Agreement and the other agreements to be
entered into by SBR in connection with the consummation of this Agreement,
without obtaining the approval or consent of any party or authority. This
Agreement and such other agreements constitute the legal, valid and binding
agreements of SBR, enforceable against it in accordance with its terms.
3.3 Compliance with Laws and Other Instruments. Neither the execution
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and delivery of this Agreement or any other agreement to be entered into by
SBR pursuant to this Agreement, nor the consummation of the transactions
contemplated by this Agreement or such other agreements, will conflict
with, or result in a violation or breach of, or constitute a default under,
any term or provision of any order, judgment, injunction, decree, license,
permit, statute, ordinance, rule or regulation of any court or any
governmental or regulatory authority or any indenture, mortgage, deed of
trust, lease, contract, instrument, commitment or other agreement or
arrangement to which SBR is a party or by which it or its properties are
bound.
4. REPRESENTATIONS AND WARRANTIES OF AMLH.
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AMLH represents and warrants to SBR as follows:
4.1 Authority to Enter into Agreement; Enforceability. AMLH has the
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right, power, legal capacity and authority to enter into and carry out the
terms of this Agreement and the other agreements to be entered into by AMLH
pursuant to the terms of this Agreement without obtaining the approval or
consent of any party or authority. This Agreement and such other agreements
constitute the legal, valid and binding agreements of AMLH enforceable
against AMLH in accordance with their respective terms.
4.2 Compliance with Laws and Other Instruments. Neither the execution
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and delivery of this Agreement or any other agreement to be entered into by
AMLH pursuant to this Agreement, nor the consummation of the transactions
contemplated by this Agreement or such other agreements, will conflict
with, or result in a violation or breach of, or constitute a default under,
any term or provision of any order, judgment, injunction, decree, license,
permit, statute, ordinance, rule or regulation of any court or any
governmental or regulatory authority or any indenture, mortgage, deed of
trust, lease, contract, instrument, commitment or other agreement or
arrangement to which AMLH is a party or by which he or his properties are
bound.
5. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All
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representations, warranties and agreements made by the parties in this
Agreement will survive the execution, delivery and performance of this
Agreement and any investigations, inspections or examinations made by or on
behalf of the parties. All such representations and warranties will remain
in full force and effect until the expiration of the applicable statute of
limitations.
6. MISCELLANEOUS.
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6.1 THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT
LIMITED TO ANY CLAIMS, CROSS CLAIMS OR THIRD PARTY CLAIMS) ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE EXHIBITS TO THIS
AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTION OF ANY PARTY.
6.2 Expenses. Except as otherwise provided by this Agreement or the
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exhibits to this Agreement, all legal and other costs and expenses incurred
in connection with this Agreement and the transactions contemplated herein
will be paid by each party as each such party incurs such expenses.
6.3 Notices. Any notice or other communication required or permitted
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under this Agreement will be given in writing and will be delivered by
receiptedhand or by prepaid next day Federal Express or similar nationally
recognized overnight courier service, addressed as follows:
If to SBR, to:
SBR Holding Company, LLC
c/o Xxxxxxxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000
If to AMLH, to:
American Leisure Holdings, Inc.
c/o Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Any such notice or communication will be effective and willbe deemed to have
been given as of the date delivered if by hand or air courier, or as of the date
of refusal, if delivery is refused or not accepted. Any party may change the
foregoing address by giving notice to all of the other parties in the manner
provided under this Section 7.3.
6.4 Entire Agreement. This Agreement and the exhibits to this
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Agreement: (i) constitute the entire and exclusive agreement and
understanding between the parties with respect to the subject matter
hereof; and(ii) supersede and revoke all prior oral or written
communications, representations, negotiations and/or agreements with
respect to the subject matter hereof. All Exhibits hereto will be deemed a
part of this Agreement.
6.5 Applicable Law. The validity, enforcement, and construction of
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this Agreement will be governed by the laws of the State of Florida.
6.6 Jurisdiction and Venue. SBR and AMLH hereby irrevocably:
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(a) submit, in any legal proceeding relating to this Agreement,
to the non-exclusive in personam jurisdiction of any state or United
States court of competent jurisdiction sitting in the State of Florida
and agree to suit being brought in any such court;
(b) waive any objection that either of them may now or hereafter
have to the venue of such proceeding in any such court located in
Orange County, Florida or that such proceeding was brought in an
inconvenient court;
(c) agree to service of process in any such legal proceeding in
the manner for providing notices specified in Section 6.3 of this
Agreement;
(d) agree that nothing herein shall affect the right of any party
hereto to effect service of process in any other manner permitted by
law; and
(e) agree that any party hereto shall have the right to bring any
legal proceedings (including a proceeding for enforcement of a
judgment entered by any of the aforementioned courts) against any
other party or parties hereto in any other court or jurisdiction in
accordance with applicable law.
6.7 Headings. The headings in this Agreement are solely for
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convenience of reference and will not affect its interpretation.
6.8 Counterparts. This Agreement may be executed in as many
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counterparts as may be deemed necessary or convenient, all of which taken
together will constitute one and the same instrument, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
6.9 Gender, Etc. Words used herein, regardless of the number and
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gender specifically used, will be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or
neuter, as the context requires.
6.10 Interpretation. No provision of this Agreement is to be
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interpreted for or against any party because that party or that party's
legal representative drafted such provision.
6.11 Provisions Separable. The provisions of this Agreement are
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independent of and separable from each other, and no provision will be
affected or rendered invalid or unenforceable by virtue of the fact that
for any reason any other provision or provisions may be invalid or
unenforceable in whole or in part.
6.12 Independent Counsel. The parties acknowledge and agree that each
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of them has been represented by its own counsel in connection with the
preparation of this Agreement.
6.13 Amendments; Waivers. This Agreement may be amended or modified,
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and any of the terms, covenants, representations, warranties or conditions
in this Agreement may be waived, only by written instrument executed by the
parties, or in the case of a waiver, by the party waiving compliance. Any
waiver by any party of any condition, or of the breach of any provision,
term, covenant, representation or warranty contained in this Agreement, in
any one or more instances, will not be deemed to be nor construed as a
further waiver of such condition, or of the breach of any other provision,
term, covenant, representation or warranty of this Agreement.
6.14 Attorney Fees. In the event of any legal proceedings (including
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arbitration) arising out of this Agreement, the prevailing party will be
entitled to recover from the non-prevailing party or parties, reasonable
cost and expenses, including attorneys fees, incurred by such prevailing
party in such proceedings. As used herein, attorneys' fees will include,
without limitation, attorneys fees incurred by such party in any
arbitration, judicial, bankruptcy, administrative or other proceedings, in
any appellate proceedings, and in any post-judgment proceedings.
6.15 Assignment. No party to this Agreement shall assign this
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Agreement without first obtaining the written consent of the other party
hereto. Without waiver of the foregoing provision, however, all of the
rights, benefits, duties, liabilities, and obligations of the parties
hereto shall inure to the benefit of and shall be binding upon the parties
and their respective successors and assigns.
[SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
SBR:
SBR Holding Company, LLC
By: /s/ Xxxxxxxxx X. Xxxxxx
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Its: Member
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Name: Xxxxxxxxx X. Xxxxxx
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By: /s/ Xxxxxxx X. Xxxxxx
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Its: Member
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Name: Xxxxxxx X.Xxxxxx
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AMLH:
American Leisure Holdings, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
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Its: Chief Executive Officer
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Name: Xxxxxxx X. Xxxxxx
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