Exhibit 10.15
COMMONWEALTH OF THE BAHAMAS
New Providence
DATED the 18th day of September, 1996
BETWEEN:-
OCEAN PROPERTIES BAHAMAS LIMITED
&
PARADISE CORPORATION
AND
SUN INTERNATIONAL HOTELS LIMITED
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AGREEMENT FOR SALE
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AGREEMENT FOR SALE/PURCHASE
EXECUTION COPY - 12/9/96
COMMONWEALTH OF THE BAHAMAS
NEW PROVIDENCE
THIS AGREEMENT is made the Eighteenth day of September, 1996
BETWEEN:
(1) OCEAN PROPERTIES BAHAMAS LIMITED a company incorporated under the laws of
the Commonwealth of The Bahamas and having its registered office in the City of
Nassau on the Island of New Providence one of the Islands of the Commonwealth of
The Bahamas ("Ocean Bahamas") of the first part
(2) PARADISE CORPORATION a company incorporated under the laws of the State of
Nevada one of the United States of America ("Paradise Corp") of the second part
and
(3) SUN INTERNATIONAL HOTELS LIMITED a company also incorporated under the laws
of the Commonwealth of The Bahamas and having its Registered Office in the City
of Nassau in the Island of New Providence aforesaid ("Sun Hotels") of the third
part
NOW IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
1.1 In this Agreement the following words and expressions have the
following meanings unless inconsistent with the context:
1.1:1 "the Governmental Approvals" means the Vendors' Governmental
Approvals and the Purchaser's Governmental Approvals
1.1:2 "the Assets" means all the assets property and rights to be
sold to the Purchaser pursuant to clause 2 AS-IS-WHERE-IS
with all faults and without any warranties other than as
expressly set forth herein PROVIDED HOWEVER that the Assets
shall not include any items of personal property which bear
the trademark or indicia of the Franchisor
1.1:3 "the Assumed Liabilities" means the liabilities to be
assumed by the Purchaser pursuant to clause 4
1.1:4 "the Book Debts" means all book and other debts accounts
receivable notes receivable accrued or accruing due to the
Vendor in respect of
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the Business as at the Transfer Date. The Book Debts
expressly exclude any inter-company receivables of the
Vendor and as of the date of this Agreement are limited
to those set forth in Schedule One
1.1:5 "the Business" means the hotel business situate on Paradise
Island in the said Commonwealth of The Bahamas and
carried on by the Vendor through the Manager and known as
the Holiday Inn Sunspree Resort which term is used herein
for convenience and to facilitate reference herein to
certain activities and interests of the Vendor; provided
however that it is specifically understood and agreed
that this Agreement concerns only the sale of the Assets
by the Vendor to the Purchaser and the use of such term
shall not be construed in any manner whatsoever to
indicate that the Purchaser is purchasing the Business
and (except as expressly set forth herein) neither the
Vendor nor its stockholders directors officers agents
employees accountants attorneys or any other agent or
representative whatsoever or any of the companies or
entities affiliated with the Vendor has made any
warranties representations or guarantees express implied
or statutory written or oral to the Purchaser and the
Purchaser specifically understands and acknowledges that
neither the Vendor nor its stockholders directors
officers agents employees accountants attorneys or any
other agent or representative whatsoever or any of the
companies or entities affiliated with the Vendor shall
have any liability of whatsoever kind nature or
description to the Purchaser in connection with the
probability of success of the operation of the Business
(financial or otherwise) or otherwise and the Purchaser
specifically acknowledges and agrees that (except as
expressly set forth herein) neither the Vendor nor its
stockholders directors officers agents employees
accountants attorneys or any other agent or
representative whatsoever or any of the companies or
entities affiliated with the Vendor has made or is bound
by any warranties expressed or implied of whatsoever kind
type nature description or characterization with respect
to the Business. The Purchaser has received independent
advice from legal financial and other similar
professional advisors of its choice with respect to the
advisability of purchasing only the Assets and the
Purchaser as a material inducement
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to the Vendor to execute this Agreement hereby
specifically acknowledges that the Financial Statements
are furnished by the Vendor to the Purchaser for
information purposes only and without any warranty or
representation of any kind type nature or description and
neither the Vendor nor its agents employees or any of the
companies affiliated with the Vendor has made any
warranties representations or guarantees express implied
or statutory written or oral to the Purchaser and the
Purchaser specifically understands and acknowledges that
neither the Vendor nor its stockholders directors
officers agents employees accountants attorneys or any
other agent or representative whatsoever or any of the
companies or entities affiliated with the Vendor shall
have any liability of whatsoever kind nature description
to the Purchaser in connection with the decision of the
Purchaser to purchase only the Assets and to accept the
Assets and all aspects of the Business AS-IS-WHERE-IS
with all faults and without any warranties expressed or
implied of whatsoever kind type nature description or
characterization except as expressly provided herein
1.1:6 "Cash Float" means any cash balances held at the Transfer
Date for the purpose of reimbursing out-of-pocket expenses
of the Business
1.1:7 "Contracts" means the contracts and other documents listed
in Schedule Two
1.1:8 "Completion" means the performance by the Parties of their
respective obligations under clause 8 on the Transfer Date
1.1:9 "the Creditors" means the aggregate amount owed by the
Vendor in connection with the Business to or in respect
of trade creditors as recorded in the books of account of
the Business as at the Transfer Date (save for the
Assumed Liabilities)
1.1:10 "the said currency" means the lawful currency of the United
States of America
1.1:11 "the Date for Governmental Approvals" means the Transfer
Date
1.1:12 "the Employees" means the persons engaged in the Business at
or immediately prior to the Transfer Date whose names are
listed in Schedule Three
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1.1:13 "the Excluded Employees" means the employees listed in Part
I of Schedule Three
1.1:14 "the Transferring Employees" means the employees listed in
Part II of Schedule Three
1.1:15 "the Equipment" means the furniture fittings and equipment
located at the site of the Business and used in
connection with the Business at the Transfer Date owned
by the Vendor and listed in Schedule Four
1.1:16 "Excluded Assets" means the assets listed in clause 3 which
are owned by the Vendor but are excluded from the sale to
the Purchaser
1.1:17 "the Financial Statements" means accountant-prepared
statements for Ocean Bahamas in respect of the Business
as of the 31st day of October for the years 1993 1994 and
1995 prepared in accordance with generally accepted
accounting principles and furnished to the Purchaser with
the express understanding that (a) the Purchaser will
make no use whatsoever of the Financial Statements and
(b) the Purchaser is not relying upon the Financial
Statements and (c) the Financial Statements are furnished
for information purposes only and are furnished without
any warranties representations or guarantees express
implied or statutory written or oral or of any other kind
type nature or description
1.1:18 "the Franchise Agreement" means that certain licence
agreement dated the 8th day of August, 1994 made between
Bass International Holdings NV and Ocean Bahamas and the
terms "Franchisor" and "Franchisee" shall be construed
accordingly
1.1:19 "the Goodwill" means goodwill if any of the Vendor in
connection with the Business
1.1:20 "the Holder" means the successor to Aetna Life Insurance
Company under the Indenture
1.1:21 "the Indenture" means that debenture dated the 6th day of
November, 1987 made between the Vendor of the first part
and Aetna Life Assurance Company of the second part
recorded in Volume 4856 at pages 65 to 136 in the
Registry of Records in the City of Nassau aforesaid as
amended including without limitation those amendments and
modifications contained and set forth in those certain
instruments dated the 10th day of January, 1992 and the
11th day of March, 1994
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1.1:22 "Liabilities" means the liabilities shown on the books and
records of the Business as outstanding and any other
liabilities or obligations whether fixed or contingent
known or unknown at the Transfer Date (save for the
Assumed Liabilities)
1.1:23 "the Licences" means those licences in respect of the
Business listed in Schedule Five
1.1:24 "the Loan-related Obligations" means those matters set forth
in the Estoppel Letter dated the 19th day of July, 1996
executed by the Holder in favour of the Vendor a copy of
which is attached hereto as Exhibit A
1.1:25 "the Manager" means Sunspree Management Limited a wholly-
owned subsidiary of the Vendor and its predecessors
1.1:26 "OPL" means Ocean Properties Ltd. a company incorporated
under the laws of the State of Maine another of the
United States of America which corporation is an
affiliate of the Vendor
1.1:27 "the Parties" means Ocean Bahamas Paradise Corp and Sun
Hotels
1.1:28 "the Property" means that certain parcel of real property
described in Schedule Six
1.1:29 "the Purchaser" means Sun Hotels a company whose shares are
quoted on the New York Stock Exchange
1.1:30 "the Purchaser"s Governmental Approvals" means any and all
required approvals of whatsoever kind type nature
description or characterization including for the
purposes of illustration and not limitation the following:
1.1:30.1 Permit required under the International Persons
Landholding Act 1993 in connection with the
acquisition of the Property
1.1:30.2 Bahamas Investment Authority approval in respect
of the acquisition of the Business including the
Assets
1.1:31 "the Purchaser"s Attorney" means Xxxxxxx X. Xxxxxx of Xxxxx
X. Xxxxx and Company of Nassau Bahamas
1.1:32 "the Stocks" means the items used in connection with the
Business at the Transfer Date such items as at the date of
this Agreement at their current replacement value being
listed in Schedule Seven
1.1:33 "the Transfer Date" means the day of September, 1996
1.1:34 "the Vendor" means Ocean Bahamas and Paradise Corp
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1.1:35 "the Vendors" Governmental Approvals" means any and all
required approvals of whatsoever kind type nature
description or characterization including for the purposes
of illustration and not limitation the approval from the
Exchange Control Department of the Central Bank of The
Bahamas to allow the Vendor immediately upon the Transfer
Date to transfer or repatriate the total proceeds of the
sale of the Assets hereunder to the United States of
America in the said currency without any tax premium or
any other kind or type of premium and without penalty in
The Bahamas
1.1:36 "the Vendors" Attorney" means Xxxxxx X. Xxxxxx,. Esq of
Messrs., Xxxxxxxx Xxxxxxxx & Xxxxxx Xxxxxx House Xxxxxx
Street Nassau Bahamas
1.1:37 "the Warranties" means the warranties and representations
and undertakings set out in Schedule Eight
1.2 Words denoting the singular number only shall include the plural and
vice versa. Words denoting any gender include all genders and words
denoting persons shall include firms and corporations and vice versa
1.3 Unless the context otherwise requires reference to any clause sub-
clause or schedule is to a clause sub-clause or schedule (as the case
may be) of or to this Agreement
1.4 Unless the context otherwise requires references to acts or omissions
by the Vendor in respect of the Business shall include the acts or
omissions of the Manager
1.5 The headings in this Agreement are inserted for convenience only and
shall not affect the construction or interpretation of this Agreement
2. SALE AND PURCHASE OF THE ASSETS
2.1 Subject to the provisions of this Agreement the Vendor shall sell as
beneficial owner and the Purchaser shall purchase subject to the
Indenture and the other Assumed Liabilities but otherwise free from
all charges liens equities and encumbrances with effect from the
Transfer Date the following assets of the Vendor:
2.1:1 the Goodwill
2.1:2 the Property
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2.1:3 the Equipment
2.1:4 the Stocks
2.1:5 the Book Debts together with all cheques bills notes and
securities receivable for same
2.1:6 the Cash Float
2.1:7 without in any way limiting the generality of the foregoing
all other assets of whatever nature employed in the Business
at the Transfer Date including the Licences but excluding
the Excluded Assets
2.2 The aggregate consideration for the sale by the Vendor of the Assets
(in addition to the assumption of the Assumed Liabilities by the
Purchaser shall be the payment to the Vendor of the sum of Twelve
million dollars in the said currency (US$12,000,000.00) but
subject to upward adjustments for Stocks Book Debts and Cash Float
and apportioned outgoings charges and prepayments pursuant to
clause 5
2.3 The consideration shall be paid:
2.3:1 as to Twelve million dollars in the said currency
(US$12,000,000.00) at the Transfer Date in accordance with
clause 8.5:1
2.3:2 as to the value of the Stocks in accordance with clause 9.1
2.3:3 as to an amount equal to Ninety-seven percent (97%) of the
Book Debts as of the Transfer Date in accordance with
clause 9.2
2.3:4 as to the amount of the Cash Float in accordance with
clause 9.3
2.3:5 as to the amount due to the Vendor in respect of any
apportionments or prepayments in accordance with clause 9.4
3. EXCLUDED ASSETS AND LIABILITIES
3.1 There shall be excluded from the sale and purchase of the Assets and
retained by the Vendor the following assets:
3.1:1 all the books and records of the Vendor other than as
referreed to in clauses 8.3:4.1 8.3:4.2 and 8.3:4.3
3.1:2 all cash and deposits of whatsoever kind type
characterization nature or description relating to the
Business (except the Cash Float) and/or held by or on
behalf of the Holder including (for the purpose of
illustration and not by way of limitation) all sums on
deposit at NationsBank in the FF&E escrow account on the
Transfer Date
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3.2 There shall be excluded from the sale and purchase of the Assets and
retained by the Vendor the Liabilities the Creditors and any items of
personal property which bear the trademark or indicia of the
Franchisor
4. ASSUMED LIABILITIES
4.1 Subject to the consent where necessary of other contracting parties
(which the Parties shall use all reasonable endeavours to obtain)
the Purchaser shall as from the Transfer Date assume perform and
discharge the liabilities of the Vendor listed below. If it
proves impossible to obtain any such consent in relation to any of
such liabilities the Purchaser will assume perform and discharge
such liability as agent for and on behalf of the Vendor and will
indemnify the Vendor accordingly. The Assumed Liabilities are
those liabilities and obligations of the Vendor under or in
respect of:
4.1:1 The Indenture including the Loan-related Obligations
4.1:2 The Contracts
4.1:3 Related to or arising out of the environmental state or
condition of the Assets of whatsoever kind type nature or
characterization
4.1:4 The Transferring Employees from and after the Transfer Date
4.1:5 Real Property Taxes in respect of the Property from and
after the 11th day of March, 1994
4.2 The Purchaser shall not be the successor to the Vendor and it is
agreed that the Purchaser shall not assume or be responsible or
become responsible or become liable to pay, satisfy, perform or
discharge any obligation, liability or indebtedness whatsoever
contingent or otherwise of the Vendor or its affiliates except the
Assumed Liabilities. The Vendor shall indemnify and hold harmless
the Purchaser and its affiliates from and against any obligation
liability or indebtedness of any kind or nature of the Vendor or
its affiliates not included in the Assumed Liabilities
5. APPORTIONMENT/PREPAYMENTS
5.1 Except for the Assumed Liabilities all other charges and outgoings of
the Business or in relation to the Property including but not
limited to electricity water telephone charges deposits business
licence fees guest taxes and all other payments outgoings and
costs of a periodical nature which are chargeable by reference to
a period commencing before and ending after the
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Transfer Date shall be apportioned on a time basis so that such
part of the relevant charges attributable to the period ended on
the Transfer Date shall be borne by the Vendor and such part of
the relevant charges attributable to the period commencing on the
day following the Transfer Date shall be borne by the Purchaser
5.2 Upon Completion the Vendor shall account to the Purchaser for all
prepayments received in respect of any of the Contracts or in
respect of any orders or arrangements not wholly completed or
discharged by the Vendor at the Transfer Date to the extent that
such prepayments exceed the actual cost (if any) incurred by the
Vendor in partially performing the Contracts or such orders or
arrangements prior to the Transfer Date
5.3 The apportionments and prepayments referred to in this clause shall
be determined and agreed in accordance with clause 9.4
6. CONDUCT OF THE BUSINESS
6.1 Except as expressly provided herein to the contrary including without
limitation the obligation of the Vendor to terminate the Franchise
Agreement pursuant to clause 13.1 of this Agreement and the
obligation of the Vendor to decertify the Property and to remove
therefrom all items of personal property which bear the trademark
or indicia of the Franchisor under the Franchise Agreement (and to
utilize the employees of the Purchaser to effectuate such
decertification without cost charge or expense to the Vendor) and
accepting any acts of the Purchaser which affects the conduct of
the Business the Vendor shall carry on the Business as a going
concern in the ordinary course from the date of this Agreement to
the Transfer Date and during such period shall:
6.1:1 not sell or dispose of any of the Assets or remove any
physical Assets of the Business from the Property save in
the course of normal day to day trading
6.1:2 not enter into any material contract or incur capital
expenditure (other than as disclosed in writing to the
Purchaser prior to the date of this Agreement or except
with the prior written consent of the Purchaser (such
consent not to be unreasonably withheld))
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6.1:3 not to depart in any material respect from the ordinary
course of the day-to-day conduct of the Business as affected
by the terms and provisions hereof and as further affected
by the acts of the Purchaser
6.1:4 not to grant or create or agree to grant or create any
mortgage charge debenture or other encumbrance over or
affecting any of the Assets
6.1:5 not permit any of its insurances to lapse or do or omit to
do anything which voids any policy of insurance
6.2 The Purchaser shall take over the Assets with effect from the Transfer
Date and shall assume responsibility for the management of the Assets
in all respects
7. RISK
The Assets shall be at the risk of the Vendor for the inclusive period from the
date of this Agreement to the Transfer Date
8. COMPLETION
8.1 Completion of the sale and purchase of the Assets shall be conditional
upon satisfaction of each of the following conditions:
8.1:1 the delivery by the Vendor to the Purchaser of the Financial
Statements within Five (5) days of the date of this
Agreement provided however that the Purchaser as a
material inducement to the Vendor to provide the
Financial Statements hereby specifically acknowledges
that the Financial Statements are furnished by the
Vendor to the Purchaser for information purposes only
and without any warranty or representation of any kind
type nature or description
8.1:2 the accuracy in all material respects of the Warranties
8.1:3 the grant of the Vendor Governmental Approvals which must be
obtained and written confirmation thereof furnished to the
Purchaser on or before the Date for Governmental Approvals
8.1:4 the grant of the Purchaser Governmental Approvals which must
be obtained and written confirmation thereof furnished to
the Vendor on or before the Date for Governmental Approvals
8.1:5 the Vendor's good and marketable documentary title to the
Property in fee simple in possession free from
incumbrances otherwise than the
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Indenture and the other Assumed Liabilities in so far as
they are capable of affecting and do affect the Property
8.2 Completion of the sale and purchase hereby agreed shall take place on
the Transfer Date at the offices of the Purchaser"s Attorneys or at
such other place as the Parties shall agree
8.3 At Completion the Vendor shall deliver or cause to be delivered to the
Purchaser:
8.3:1 certified copies of all necessary corporate approvals of the
Vendor authorizing the transactions contemplated by this
Agreement as required by Section 165 of the Companies
Act, 1992 and any relevant provisions of the respective
Memoranda and Articles of Association of the Vendor
8.3:2 duly executed conveyances assignments and other documents in
the terms to be agreed with the Purchaser's Attorney
necessary to vest title in the Property in the Purchaser
together with all deeds and documents relating to the
title of Ocean Bahamas in the Property
8.3:3 duly executed assignments in respect of the transfer of:
8.3:3.1 the Loan-related Obligations the Vendors' rights
and liabilities under the Indenture
8.3:3.2 the Contracts and
8.3:3.3 the Book Debts
8.3:4 all the Assets hereby agreed to be sold which are capable of
passing by delivery including without limitation the
following:
8.3:4.1 all designs drawings plans schematics sales
publications advertising and promotional
material which apply to the Property and the
structures or buildings on the Property in the
possession or control of the Vendor save and
except any items which bear the trademark or
indicia of the Franchisor
8.3:4.2 all documentation and records in relation to the
Contracts in the possession of the Vendor
8.3:4.3 all contract National Insurance payroll account
Union and Pension records relating to all
Transferring Employees duly completed and up to
date
8.3:4.4 a valid and binding written acknowledgment from
the Manager and the Franchisor that all
agreements and arrangements
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(including without limitation the Franchise
Agreement) which affect the Business or Assets
have been canceled by mutual agreement and
without any compensation or damages being
payable by the Purchaser
8.4 At Completion the Purchaser will deliver to the Vendors' Attorneys the
following:
8.4:1 by way of wire transfer in favour of the Vendor or such
other party or parties as the Vendor shall direct in
writing and/or to one or more accounts of the Vendor as
designated by the Vendor in writing the said sum of
Twelve million dollars in the said currency
(US$12,000,000.00) together with an amount in respect of
Book Debts referred to in clause 2.3:3 an amount in
respect of Stocks referred to in clause 2.3:2 an amount
in respect of Cash Float referred to in clause 2.3:4 and
subject to any adjustment for apportionments and
prepayments referred to in clause 2.3:5 and provided the
Vendor is in compliance with its obligations hereunder
other than those mentioned below such wire transfers
shall be transmitted by the Purchaser's bank prior to
1:00pm on the Transfer Date as a precondition to the
performances required of the Vendor pursuant to clauses
8.1 and 8.4 or otherwise as the Parties may agree in
writing
8.4:2 unconditional general releases in the form attached hereto
as Exhibit B whereby the Purchaser releases and agrees to
indemnify the Vendor OPL and their respective past and
present employees officers directors shareholders
attorneys accountants agents as well as any and all
entities owned by or affiliated with the Vendor or OPL
including without limitation the Manager of and from all
actions causes of action labour disputes and issues suits
losses costs debts dues sums of money accounts reckonings
bonds bills specialties covenants controversies
warranties agreements promises variances trespasses
damages judgments extents executions claims disputes
offset rights defenses to payment specific performance
indemnification rights subrogation rights and
contribution rights for upon by reason of on account of
or arising from or out of or by virtue of any transaction
event or occurrence duty or obligation indemnification
agreement promise warranty covenant or representation
breach of contract and
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demands of whatsoever kind or
nature in law or in equity whether direct or indirect
known or unknown actual or contingent heretofore arising
now existing or hereafter arising however or whenever
arising with respect to the Assumed Liabilities
9. STOCKS BOOK DEBTS AND CASH FLOAT
9.1 The Parties shall jointly update the Stocks no later than Two (2) full
working days prior to the Transfer Date to reflect items in
addition to those items shown on Schedule Seven ("the Added Items")
as well as those items shown on Schedule Seven which are not at the
Property on the date that the update is conducted. The Parties
shall agree the current replacement value of all Added Items. The
Purchaser specifically absolutely and unconditionally agrees to all
items listed in Schedule Seven and the replacement value reflected
therein for all such items
9.2 The Parties shall jointly update the Book Debts to reflect items in
addition to those items shown in Schedule One no later than Two (2)
full working days prior to the Transfer Date from which shall be
calculated the amount referred to in clause 2.3:3. The Purchaser
specifically absolutely and unconditionally agrees to all items
listed in Schedule One for which the Parties have agreed the
Purchaser shall pay to the Vendor the sum of Two million dollars in
the said currency (US$2,000,000.00)
9.3 The Parties shall jointly determine the Cash Float as near as
practicable to the Transfer Date
9.4 The Parties shall jointly determine apportionments and prepayments as
referred to in clause 5 as near as practicable to the Transfer Date
9.5 The Vendor shall forthwith upon Completion give notice in writing
pursuant to the Choses in Action Act to the relevant debtors of the
assignment of the Book Debts. The Vendor shall following
Completion and after payment by the Purchaser to the Vendor at
Completion of the amount referred to in clause 2.3:3 promptly pay
to the Purchaser all sums received by it in respect of the Book
Debts (whether received before or after the date of this Agreement)
and pending payment will hold such sums so received on trust for
the Purchaser
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10. EMPLOYEES
10.1 As regards the Excluded Employees:
10.1.1 The Vendor shall give notice prior to the Transfer Date to
terminate the employment contracts of each of the
Excluded Employees in each case on proper notice or
payment in lieu of notice according to the respective
terms of their employment and the notices so given will
expire on or prior to the Transfer Date and the Vendor
shall discharge and indemnify the Purchaser against all
costs claims liabilities expenses and demands arising
from all dismissals by the Vendor of the Excluded
Employees
10.1.2 The Vendor shall indemnify the Purchaser against each and
every cost claim liability expense or demand which
relates to or arises out of either any act or omission by
the Vendor or any other event or occurrence including
(but without limitation) the sale of the Assets which the
Purchaser may incur in relation to any contract of
employment and collective agreements concerning the
Excluded Employees and the Vendor warrants and undertakes
that payment of all salaries wages monthly pension
contributions insurance and other employee-related
expenses shall be current to the Transfer Date with
respect to the Excluded Employees
10.2 As regards the Transferring Employees:
10.2:1 The contracts of employment shall at Completion be
transferred to the Purchaser to the extent transferable
10.2:2 The Purchaser agrees to assume any and all liabilities of
the Vendor of whatsoever kind or type under and pursuant
to any agreement of any kind type nature or description
which relates to the Transferring Employees including
without limitation any labour contract labor union or
collective bargaining agreements
10.2:3 The Purchaser shall be responsible for and undertakes to
indemnify and keep indemnified the Vendor from and
against any and all liabilities obligations costs claims
and demands of whatsoever kind type nature or
characterization resulting from the voluntary or
involuntary termination of any employee arrangements
which pertain to the Transferring Employees which occurs
in connection with the
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implementation of the terms and provisions of this Agreement
whether occurring prior or subsequent to the Transfer Date
10.2:4 The Vendor undertakes to indemnify and keep the Purchaser
indemnified from and against all liabilities obligations
costs claims and demands arising from or in respect of
any of the Transferring Employees insofar as and to the
extent that the same was caused by any act or omission of
the Vendor prior to the Transfer Date and the Vendor
warrants and undertakes that payment of all salaries
wages monthly pension contributions insurance and other
employee-related expenses shall be current to the
Transfer Date with respect to the Transferring Employees
10.2:5 Notwithstanding the foregoing or any other term or provision
contained and set forth in this Agreement to the contrary
in no event shall the Vendor bear any responsibility
whatsoever for any increases in the cost of benefits
attributable to the sale of the Assets or attributable to
the transfer of the Transferring Employees
11. THE PROPERTY
11.1 The Vendor sells the Property as beneficial owner
11.2 Upon Completion the Purchaser shall be entitled to vacant possession
of the Property which is sold subject to the Indenture and the other
Assumed Liabilities in so far as they are capable of affecting and do
affect the Property
11.3 In respect of the Property the Vendor shall deduce a good and
marketable documentary title in fee simple in possession free from
incumbrances other than as noted above from a good root of title in
accordance with the provisions of The Conveyancing and Law of
Property Act
12. CONTRACTS/LICENCES
12.1 The Purchaser shall after Completion but subject to the provisions of
this clause 12 carry out and perform in accordance with their terms
the Contracts and the Licences
12.2 If any of the Contracts or the Licences cannot be properly transferred
from the Vendor to the Purchaser without the consent of a third
party to the novation transfer and/or assignment of the relevant
agreement or licence then the Vendor and the Purchaser shall
co-operate in taking such steps as may be
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practicable in order to apply for such consent and the Vendor
shall use reasonable efforts to obtain from other parties to the
Contracts and the Licences consent to the substitution of the
Purchaser in the place of the Vendor as a party or licencee as the
case may be (whether by transfer assignment novation or otherwise)
12.3 The Purchaser undertakes to indemnify and keep indemnified the Vendor
from and against any payment required to be made or other liability
incurred by or arising against the Vendor in relation to the
Contracts or the Licences in respect of any period after Completion
13. TERMINATION OF EXISTING AGREEMENTS
13.1 The Vendor shall at its sole cost and expense terminate as at the Transfer
Date the Franchise Agreement as to the Business and any agreement with the
Manager
13.2 The Vendor undertakes to indemnify and keep indemnified the Purchaser from
and against any payment required to be made or other liability incurred by or
arising against the Purchaser in relation to the contracts and agreements to be
terminated under clause 13.1 and (insofar as and only to the extent that the
same was caused by any act or omission of the Vendor prior to the Transfer Date)
the Contracts
14. CREDITORS AND LIABILITIES
The Vendor agrees to remain solely responsible for all the Liabilities (save as
otherwise expressly provided in this Agreement) and undertakes to discharge the
Creditors and to indemnify the Purchaser fully at all times from and against any
and all claims actions proceedings demands liabilities costs and expenses in
connection with any of the Liabilities or the Creditors
15. WARRANTIES
15.1 The Vendor represents warrants and undertakes to and with the
Purchaser and its successors in title that the Warranties are at
the date of this Agreement and will be at the date of Completion
and the Transfer Date true and correct in all material respects.
The Vendor undertakes to the Purchaser to indemnify the Purchaser
fully at all times from and against all costs claims proceedings
demands and expenses which the Purchaser may sustain incur or pay
by reason of any breach of any of the Warranties
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15.2 The remedies of the Purchaser in respect of breach of any of the
Warranties shall continue to subsist notwithstanding Completion
15.3 The rights and remedies of the Purchaser in respect of any breach of
the Warranties shall not be affected by any investigation made by
or on behalf of the Purchaser into the affairs of the Vendor by the
Purchaser failing to exercise or delaying the exercise of any of
its rights or remedies or by any other event or matter whatever
except a duly authorised written waiver or release
15.4 The Purchaser acknowledges that in entering into this Agreement (other
than as expressly represented warranted or otherwise set forth
herein):
15.4:1 the Purchaser was not induced to execute and deliver this
Agreement by any warranty representation inducement
promise or side agreement of any kind type
characterization nature or description made by the Vendor
and/or its agents employees or any of the companies
affiliated with the Vendor
15.4:2 the Purchaser received independent advice from legal
financial engineering architectural and other similar
professionals of its choice with respect to the
advisability of purchasing the Assets pursuant to the
stipulations agreements conditions and covenants
contained and set forth in this Agreement
15.4:3 neither the Vendor nor its agents employees or any of the
companies affiliated with the Vendor has made any
warranties representations or guarantees express implied
or statutory written or oral to the Purchaser and the
Purchaser specifically understands and acknowledges that
neither the Vendor nor its agents employees or affiliated
companies or entities shall have any liability of
whatsoever kind nature or description to the Purchaser in
connection with the probability of success of the
operation of the Business or otherwise and the Purchaser
has accepted the Assets AS-IS-WHERE-IS with all faults
and without any warranties expressed or implied or
whatsoever kind type nature description or
characterization
16. COSTS/STAMP DUTY
16.1 Except as expressly set forth in clause 16.2 below the Parties shall
pay their own costs in connection with the negotiation preparation
approval and
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implementation of this Agreement or any agreement conveyance
assignment or other documents incidental to or referred to in this
agreement (whether or not the transactions contemplated by this
Agreement are consummated)
16.2 The Purchaser shall pay and undertakes to indemnify the Vendor with
respect to all stamp duty (transfer tax) fees costs charges
expenses impact fees or any other costs charges expenses exactions
or whatsoever kind type nature description or characterization
payable by or assessed against the Vendor in The Bahamas as a
result of the proposed transactions and similarly all Bahamian
sales transfer recording and similar taxes and fees of whatsoever
kind type nature description or characterization in connection with
the sale and transfer of the Assets and the consummation of this
Agreement; it being the specific understanding that the Vendor
shall have received on the Transfer Date the amount set forth in
Clause 2.2 net of all transfer costs charges and expenses excepting
only the fees and expenses of the professional advisors of the
Vendor
16.3 The Parties hereby warrant and represent to each other that no real
estate commission or similar fee shall be payable to any agent or
third party upon or after Completion and should either party be
proven inaccurate in this respect then such party shall be solely
responsible for the payment of any such commission or fee and all
legal fees and similar expenses incurred by the other party in
connection therewith
17. FURTHER ASSURANCE AND GOOD FAITH
17.1 The Parties undertake with each other to execute and deliver any and
all documents and to take any steps as shall be reasonably required
to be executed and delivered so that the Parties fully comply with
each and every stipulation agreement condition and covenant
contained and set forth in this Agreement including for the
purposes of illustration and not limitation: (i) all documents and
steps required to vest the Assets in the Purchaser and (ii) all
documents and steps required to ensure the compliance of the
Manager in all relevant respects with regard to the matters
referred to in this Agreement and (iii) all documents and steps to
evidence the absolute and unconditional assumption of the Assumed
Liabilities by the Purchaser as of the Transfer Date
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17.2 The Parties each represent to the others that they will make proper
application for their respective Governmental Approvals and shall
diligently and conscientiously pursue the obtaining thereof by the
Date for Governmental Approvals
17.3 Each of the Parties undertakes with the others to render such
assistance as may be reasonably required (at the expense of the
requesting party) in order to facilitate the grant of the
respective Governmental Approvals
17.4 Upon the grant or refusal (as the case may be) of any of the
Governmental Approvals immediate written notification thereof shall
be made to the other Parties or their respective attorneys
18. CONFIDENTIALITY
18.1 No employees representatives counsel or accountants of the Purchaser
and/or its affiliates or any other person or entity claiming by or
through the Purchaser directly or indirectly shall have access to
the Assets or to the Financial Statements contracts books records
and other relevant information pertaining thereto or to the
employees and/or agents of the Vendor or to the hotel licensor of
the Business or the Franchisor without the prior written consent of
the Vendor which consent may be withheld in the sole judgment of
the Vendor
18.2 All information supplied by the Vendor to the Purchaser and/or its
agents or affiliates which is designated by the Vendor as
confidential shall be held in strict confidence and shall not be
disclosed to any third party for any reason whatsoever without the
prior written consent of the Vendor which consent may be withheld
in the sole judgment of the Vendor
18.3 Except with respect to public statements required by the Franchisor
each of the Parties agrees that no public statements will be made
with respect to the proposed transactions unless required by law or
the other parties have granted prior written consent thereto
19. ASSIGNMENT
Sun Hotels shall be at liberty to assign its rights under this Agreement to a
wholly-owned subsidiary of Sun Hotels (which expression shall include such
further wholly-owned subsidiaries of which Sun Hotels is the ultimate parent
or holding company) without the prior written consent of the Vendor PROVIDED
THAT all of the
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obligations of the Purchaser hereunder including (for the purposes of
illustration and not limitation) all indemnification obligations of the
Purchaser hereunder and the obligation of the Purchaser to execute and
deliver one or more general releases under clause 8.4:2 which obligations
shall remain the personal obligation and liability of the Purchaser
notwithstanding that such obligations and liabilities shall also be the
personal obligation and liability of any such assignee and any such assignee
shall also execute and deliver to the Vendor such releases and shall execute
and deliver to the Vendor such documentation as shall be required to evidence
the assumption of such obligations; it being the purpose and intendment of
this clause to underscore the express understanding of the Parties that all
of the rights and remedies of the Vendor hereunder and all of the duties
obligations and undertakings of Sun Hotels hereunder are and shall remain
absolute and unconditional notwithstanding any such assignment(s)
20. MISCELLANEOUS
20.1 Completion shall not in any way prejudice or affect the operation of
any of the stipulations agreements conditions and covenants
contained and set forth in this Agreement which contemplate or are
capable of operation after Completion and accordingly all such
stipulations agreements conditions and covenants shall continue in
full force and effect after and shall survive Completion.
Completion shall not constitute a waiver by any Party of any breach
of this Agreement whether or not known to the Party at the date of
Completion
20.2 This Agreement and the Schedules to it shall constitute the entire
agreement and understanding between the Parties with respect to all
matters which are referred to and shall supersede any previous
agreement(s) between the Parties or any of them in relation to the
matters referred to in this Agreement
20.3 If any term covenant or condition of this Agreement or the application
thereof to any person or circumstance shall be determined to be
unenforceable by a court of competent jurisdiction ("the Offending
Provision") then the remainder of this Agreement or the application
of such term covenant or condition to persons entities or
circumstances other than those as to which it is invalid or
unenforceable shall not be affected thereby and each term covenant
and condition of this Agreement shall be valid and enforced to the
fullest extent permitted by law; provided however that the parties
affected by the Offending
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Provision shall endeavour in good faith within Sixty (60) days
after the date such determination is made to agree upon alternative
provisions which shall have the same practical effect as the
Offending Provision and upon any agreement being reached the new
provision shall be incorporated into and form a part of this
Agreement
21. RELEVANT LAW
This Agreement shall be governed by and construed in accordance with Bahamian
law and the Parties submit to the non-exclusive jurisdiction of the Supreme
Court of The Commonwealth of The Bahamas and agree that in the event of any
action being begun in respect of this agreement the process by which it is
begun may be served on them in accordance with clause 22
22. NOTICES
22.1 Any notice required hereunder shall be given in writing and shall
be sent by reputable overnight delivery service (e.g. Federal
Express) or sent by certified mail return receipt requested to the
Parties at the addresses set forth below. Any Party from time to
time may change its address to which notice is to be sent pursuant
hereto by sending a notice of such change in conformity with the
foregoing requirements to the other Party. All notices sent in
conformity with the foregoing requirements shall be deemed
delivered (and received) upon receipt or first refusal to accept
delivery
ADDRESS FOR VENDOR: ADDRESS FOR PURCHASER:
Ocean Properties Bahamas Limited Sun International Hotels Limited
0000 Xxxxxx Xxxxxxxxx Executive Offices
Suite C-9 Coral Tower
Delray Beach, Florida 33444 Paradise Island, Bahamas
Tel: (000) 000-0000
Telephone: (000) 000 0000 Fax: (000) 000-0000
Paradise Corporation
0 Xxxx Xxxxxx
Xxxxx 0
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Telephone: (000) 000 0000
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WITH A COPY TO: WITH A COPY TO:
Xxxxxxx X. Xxxxxxxxxxx, Esq Xxxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxxxxxx Xxxxx X. Xxxxx and Company
Xxxxxx Xxxxx, Xxxxxxx 00000 Xxxxx Xxxxxxx Xxxxxx
X. X. Xxx X-000
Telephone: (000) 000 0000 Nassau, Bahamas
Tel: (000) 000-0000
AND Fax: (000) 000-0000
Xxxxxx X. Xxxxxx, Esq
Xxxxxxxx, Xxxxxxxx & Xxxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxx
X. X. Xxx X-0000
Nassau, Bahamas
Telephone: (000) 000 0000
