CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is entered into as of
____________, 1998, by and between Aspen Springs Ranch, Inc., a Colorado
corporation with its principal place of business at 0000 Xxxxx Xxxxxxxx Xxxxx,
Xxxxx, Xxxxxxx 00000 (the "Company"), and Xxxx Enterprises Mid-Atlantic, Inc., a
Virginia corporation and its unincorporated division, Xxxx Enterprises Community
Development, with its principal place of business at 0000 Xxx Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000-0000 ("Consultant").
Each of the Company and Consultant are sometimes referred to herein as
a "Party," and both of them, together, are sometimes referred to herein as the
"Parties."
RECITALS
A. Consultant has expertise in the development, marketing, sale and
management of residential communities.
B. Consultant, an independent contractor, desires to provide consulting
services to the Company, and the Company desires to retain Consultant to provide
consulting services to the Company, for the period contemplated by, and on the
terms and conditions set forth in, this Agreement.
C. This Agreement is being entered into in conjunction with the
construction, marketing, financing, development and sale (collectively, the
"Development") of a residential community by the Company upon approximately
5,700 acres of real property located in Garfield County, Colorado, which
community is presently planned to include approximately 70 estate lots, 116
executive lots, 157 golf course lots, 9 meadow lots, 200 timeshare units
(consisting of 50 cabins divided into quarter shares), two (2) signature golf
courses and an equestrian center (collectively, the "Project").
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the Parties, intending to be bound hereby, agree as follows:
1. ENGAGEMENT AS INDEPENDENT CONTRACTOR. The Company hereby hires,
retains and otherwise engages Consultant as an independent contractor, and
Consultant hereby accepts such engagement, upon the terms and conditions set
forth herein. Each of the Parties acknowledges and agrees that Consultant (a) is
being hired, retained and otherwise engaged as an independent contractor for
federal tax purposes, (b) shall not be considered an employee, agent or partner
of the Company, Atlantic Gulf Communities Corporation ("AGCC") or any of their
affiliates or subsidiaries, (c) shall have no right, power or authority, and
shall not hold itself out as having any right, power or authority, to assume or
create any obligation or liability, express or implied, on behalf, or in the
name, of the Company, AGCC or any of their affiliates or subsidiaries, or to
bind the Company, AGCC or any of their affiliates or subsidiaries in any manner,
without the Company's or AGCC's (as the case may be) express prior written
consent (collectively, "Liabilities") and (d) shall have no right, power or
authority to sign the name of the Company, AGCC or any of their affiliates or
subsidiaries to any document, agreement, contract or instrument or to hold
itself out as a general or special agent, partner, member, officer, employee or
director of the Company, AGCC or any of their affiliates or subsidiaries. The
Company shall carry no workers' compensation insurance or any health or accident
insurance to cover Consultant or its employees. The Company shall not pay any
contribution to Social Security, unemployment insurance, or federal or state
withholding taxes in connection with the retention of Consultant under this
Agreement (collectively, "Taxes"), and Consultant agrees to indemnify and hold
the Company harmless from any such Liabilities and/or Taxes which may be
assessed in connection with payments to Consultant under this Agreement.
2. DUTIES.
a. EXECUTIVE CONSULTING SERVICES. Consultant shall contribute
a minimum of twenty percent (20%) and a maximum of forty percent (40%) of the
work time (i.e., 1 to 2 full work days per week) of Consultant's chairman, Xxxxx
X. XxXxxxxxx ("Executive"), as required, to oversee the Development of the
Project. Executive shall be responsible for overseeing the Development of the
Project. The Project Manager (as hereinafter defined) shall report directly to
the Executive on a regular basis, as required by Executive.
b. MANAGEMENT COMMITTEE. Executive shall serve as the initial
chairman of a three-person management committee (the "Committee"), initially
consisting of Executive, J. Xxxxx Xxxxxxxxxx, the President and Chief Executive
Officer of AGCC (the "Company Representative"), and the managing director of the
Project appointed by the Company ("Project Manager"). The Company shall be
entitled to replace the Committee members (other than Executive) from time to
time, at the Company's sole option. Executive's membership on the Committee
shall cease effective on the date the term of this Agreement expires or is
otherwise terminated under paragraph 5. below. The Committee shall meet at least
once each calendar quarter and at such other times as required by and/or in
connection with the Development of the Project. Each Committee member other than
the Company Representative shall be entitled to one (1) vote on each matter
presented to the Committee, and the Company Representative shall be entitled to
three (3) votes on each matter presented to the Committee. All matters brought
before the Committee shall be decided (i) by a majority of votes of the
Committee at a meeting attended (in person or by telephone) by all of the
members of the Committee or (ii) by a signed written consent of the members of
the Committee constituting a majority of votes.
c. MATTERS REQUIRING THE APPROVAL OF THE COMMITTEE. The
following "Major Decisions" shall require the approval of the Committee:
i. Any amendment to the Project pro-forma
and/or Project budget.
ii. The sale, lease or other disposition of, or
the granting of any mortgage, lien or other
encumbrance on, or entering into any other
capital transaction with respect to, the
Project or any part thereof, except for the
disposition of lots, timeshare units and
memberships in accordance with the approved
Project pro-forma and Project budget.
iii. The incurrence of any indebtedness for
borrowed money by, or any refinancing of any
indebtedness of, the Company, whether or not
secured by any property of the Company.
iv. The making or incurring of any expenditure
which, when taken together with all prior
expenditures made or incurred or reasonably
anticipated to be made or incurred, exceeds
the line item therefor in the approved
Project budget, it being agreed that for
purposes hereof, each Project budget line
item shall be the amount of such line item
as set forth in the approved Project budget
plus a proportionate share of the
contingency line item set forth in the
approved Project budget.
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v. Entering into or renewing any contract,
agreement, lease or other arrangement or
transaction with any person which is an
affiliate of Consultant or Project Manager.
vi. Any action or decision to omit any action
that, if taken or omitted, could result in a
violation of or default under any term or
provision of any agreement binding on the
Company and/or the Project, which violation
or default could materially and adversely
affect the Company, AGCC, any of their
subsidiaries or affiliates and/or Project or
could result in the acceleration of any
indebtedness of the Company or any
indebtedness that is secured by the Project
or any portion thereof.
vii. The initiation, defense, adjustment,
settlement or compromise of any claim,
action, suit, proceeding or judgment by or
against the Company or the Project or any
portion thereof in excess of $25,000.
Notwithstanding the foregoing, Consultant acknowledges and agrees that
certain proposed actions and/or decisions of Consultant and/or the Committee may
require the approval of the Board of Directors of the Company (the "Board")
and/or AGCC before such actions may be taken or such decisions may be
implemented. Nothing contained herein shall constitute (a) a waiver by the
Board, any member thereof or AGCC of its/his rights with respect thereto or (b)
authority on the part of the Consultant or the Committee to take any such
actions or implement any such decisions without obtaining the Board's and/or
AGCC's prior written consent (to the extent so required) with respect thereto.
d. OTHER CONSULTING SERVICES. Consultant shall contribute the
expertise of its other employees to the Project, when and as reasonably
determined by Executive to be necessary for the proper Development of the
Project.
3. COMPLIANCE WITH LAWS, CONTRACTS, LOAN AGREEMENTS, PERMITS, PRO-FORMA
AND BUDGET. Consultant acknowledges that it has received copies of the following
documents:
a. that certain Loan Agreement, dated September 3, 1998,
between the Company and Xxxxxx Brothers Holdings,
Inc.,
b. that certain Senior Secured Facilities Credit
Agreement, dated September 3, 1998, between the
Company and Xxxxxx Xxxxxxx Senior Funding, Inc.,
c. that certain Exchange Agreement, dated September 3,
1998, by and between the Company and Spring Valley
Holding USA, Ltd., together with the Addendum
thereto, and
d. the approved pro-forma and budget for the Project
(the documents described in a., b., c. and this d.
being collectively referred to herein as the "Project
Agreements").
Consultant agrees to comply with all of the terms and conditions of the
Project Agreements, as well as all applicable laws, rules, regulations and
permits with respect to the Project, the Development of the Project and
Consultant's performance of its duties hereunder.
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4. TERM. Subject to paragraph 5. hereof, the initial term of this
Agreement shall begin on September 1, 1998, and shall terminate on the earlier
of (a) September 30, 2003 or (b) the date upon which the Company has sold all of
the lots, timeshare units and club memberships comprising the Project. Any
rights of Consultant to Incentive Compensation as defined in paragraph 6.b,
below shall survive the expiration of the term of this Agreement, except as set
forth below.
5. TERMINATION.
a. TERMINATION WITHOUT CAUSE. This Agreement is
terminable by either Party without cause, at any time upon thirty (30) days
prior written notice to the other Party, subject to the following:
i. In the event the Company terminates this
Agreement without cause under this paragraph
5, Consultant shall not be entitled to be
paid, from and after the date of such
notice, any further Base Fees, Retainer Fees
or other compensation hereunder; provided,
however, that Consultant shall retain any
rights it may have to be paid Incentive
Compensation under paragraph 6.b. below.
ii. In the event Consultant terminates this
Agreement without cause under this paragraph
5, Consultant shall not be entitled to be
paid, from and after the date of such
notice, any further Base Fees, Retainer Fees
or other compensation hereunder, including,
without limitation, the Incentive
Compensation under paragraph 6.b. below.
b. TERMINATION FOR CAUSE BY THE COMPANY. The Company may
terminate Consultant's engagement pursuant to this Agreement for "Cause"
effective upon written notice to Consultant. Consultant shall not be entitled to
be paid, from and after the date of such notice, any further Base Fees, Retainer
Fees or other compensation hereunder, including without limitation, the
Incentive Compensation under paragraph 6.b, below.
"Cause" under this paragraph 5.b. shall mean any one of the following
acts, omissions or occurrences, as the case may be, (X) by Executive,
individually, with respect to clauses i. through vii. below, (Y) by Consultant
with respect to clauses iii., iv., v., or vi. below or (Z) any other employee of
Consultant, individually with respect to clauses ii., iii., iv., v., or vi.
below:
i. Conviction of a felony;
ii. Deliberate and premeditated acts against the
best interests of the Company, its parent
company, Aspen Springs Ranch Holding Company
("Holding), Holding's parent company, AGCC,
or any of their affiliates or subsidiaries;
iii. Material breach of the terms of this
Agreement;
iv. Consultant or Executive being enjoined from
violation of any state or federal securities
laws or state or federal laws relating to
the sale of real estate;
v. Consultant violating any law, or regulation
governing their conduct in connection with
the services to be rendered hereunder;
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vi. Misappropriation of the Company's funds or
those of Holding, AGCC or their affiliates
or subsidiaries; or
vii. Executive's habitual use of alcohol or drugs
to a degree that such use substantially
interferes with the performance of his
duties hereunder.
c. TERMINATION FOR CAUSE BY THE CONSULTANT. Consultant
may terminate this Agreement for "Cause" effective upon written notice to the
Company. Consultant shall not be entitled to be paid from and after the date of
such notice, any further Base Fees, Retainer Fees or other compensation
hereunder; provided, however, that Consultant shall retain any rights it may
have to be paid Incentive Compensation under paragraph 6.b. below.
"Cause" under this paragraph 5.c. shall mean any one of the following
acts, omissions or occurrences, as the case may be by the Company:
i. Material breach of the terms of this
Agreement; or
ii. Company being enjoined from violation of any
state or federal securities laws or state or
federal laws relating to the sale of real
estate.
d. DEATH, DISABILITY OR UNEMPLOYMENT. In the event of
the death or disability of Executive or if Executive ceases to be an employee of
Consultant for any reason, Company may immediately terminate Consultant's
engagement pursuant to this Agreement upon giving written notice of such
termination to Consultant. Such termination shall be deemed a termination for
"Cause" and shall result in Consultant forfeiting any rights to be paid, from
and after the date of such notice, any further Base Fees, Retainer Fees or other
compensation hereunder, including, without limitation, the Incentive
Compensation under paragraph 6.b. below.
e. PERMITTING.
i. In the event the Company is unable to obtain
approval from Garfield County and all other
applicable governmental and/or quasi-
governmental agencies of the proposed
Planned Unit Development Amendment for the
Project (the "Governmental Approvals")
within eighteen (18) months following the
date hereof, Company may terminate
Consultant's engagement pursuant to this
Agreement upon giving written notice of such
termination to Consultant. Such termination
shall be deemed a termination for "Cause"
and shall result in Consultant forfeiting
any rights to be paid, from and after the
date of such notice, any further Base Fees,
Retainer Fees or other compensation
hereunder, including, without limitation,
the Incentive Compensation under paragraph
6.b. below.
ii. In the event the Company obtains the
Governmental Approvals within the eighteen
(18) month period following the date hereof,
the Company may terminate Consultant's
engagement pursuant to this Agreement by
providing written notice to Consultant
within thirty (30) days following the date
the Governmental Approvals are obtained. In
such event, Consultant shall not be entitled
to be paid, from and after the date of such
notice, any further Base Fees, Retainer
Fees, Incentive Compensation or other
compensation hereunder; provided, however,
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that Company shall pay to Consultant a lump
sum payment of $250,000 within thirty (30)
days following the date of delivery of the
notice of termination.
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6. COMPENSATION.
a. BASE FEE AND RETAINER FEE. For services rendered by
Consultant under this Agreement, the Company shall pay Consultant:
i. a base fee of $15,000 per month during the
term of this Agreement ("Base Fee"), and
ii. a retainer fee of $5,000 per month during
the term of this Agreement ("Retainer Fee").
Consultant shall be solely responsible for paying any and all amounts
due and owing to Executive, Consultant's other employees and Consultant's agents
and advisors ("Consultant Expenses"). Consultant acknowledges and agrees that
the Company shall have no liability whatsoever to Executive, Consultant's other
employees and Consultant's agents and advisors for any amounts due and owing to
them, including any Consultant Expenses. Consultant agrees to indemnify and hold
the Company harmless from any such Consultant Expenses.
b. INCENTIVE COMPENSATION. Subject to achieving the
Minimum Gross Margin, Consultant shall, subject to the conditions set forth
herein, be entitled to receive one percent (1%) of the Company's Gross Revenues
(as hereinafter defined) from the Project (the "Incentive Fee") payable as
follows:
i. $500,000 upon achieving $50 million in Gross
Revenues;
ii. an additional $500,000 upon achieving $100
million in Gross Revenues;
iii. an additional $500,000 upon achieving $150
million in Gross Revenues;
iv. an additional $500,000 upon achieving $200
million in Gross Revenues; and
v. an additional one percent (1%) of the Gross
Revenues in excess of $200 million upon
completion of the disposition of the
Project.
The payment of each tranche of the Incentive Fee shall be conditioned
upon the Project achieving a cumulative minimum Gross Margin ("Minimum Gross
Margin") of at least twenty percent (20%) at the time each such tranche of the
Incentive Fee payment becomes due and payable. The Incentive Fee shall be deemed
earned when paid. If the Minimum Gross Margin is not achieved on the date any
tranche of the Incentive Fee is otherwise payable hereunder, the Incentive Fee
relating to such tranche shall not be earned by, or payable to, Consultant and
the Incentive Fee relating to such tranche shall be permanently forfeited and
shall not be deferred to a later payment date.
Notwithstanding the foregoing, in the event the Company sells the
entire Project in bulk, the Incentive Fee of 1% of the Gross Revenues from such
bulk sale of the Project shall be payable to Consultant within fifteen (15) days
following the closing of the sale and the Company's receipt of the proceeds
therefrom. In the event of a bulk sale of the entire Project, there shall be no
Minimum Gross Margin condition to payment of the Incentive Fee.
All Retainer Fees paid to Consultant pursuant to Paragraph 6.a. above
shall be applied against any Incentive Fee payment due to Consultant under this
Paragraph 6.b.
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For purposes of this Agreement:
i. the term "Gross Revenues" shall mean the
total cash revenues received by the Company
from the sale of the lots, timeshare units
and club memberships comprising the Project
to bona-fide third party purchasers, and
ii. the term "Gross Margin" shall mean the
difference between Gross Revenues and the
cost of the lots, timeshare units and club
memberships sold as calculated in accordance
with the Company's approved pro-forma for
the Project (a copy of the current approved
pro-forma for the Project is attached hereto
as Exhibit "A"), which costs shall include,
without limitation, the total costs of the
land, indirect development (i.e.
engineering, due diligence, planning and
other similar soft costs), on-site
infrastructure, off-site infrastructure,
amenities and special features, financing,
property taxes, contingency and
cost-inflator.
c. NO OTHER COMPENSATION. Consultant acknowledges and
agrees that this Agreement shall not grant or extend to Consultant, and
Consultant specifically disclaims any rights with respect to:
i. participation in the Company, Holding's,
AGCC's or any of their subsidiaries' or
affiliates' revenues or profits generally or
with respect to any project or transaction,
other than the Project, unless otherwise
agreed to in a subsequent writing signed by
Consultant and the Company, Holding or AGCC;
or
ii. additional contributions by the Company,
Holding, AGCC or any of their affiliates or
subsidiaries with respect to any deferred
compensation plan, bonus plans, or fringe
benefits.
7. EXPENSES AND MISCELLANEOUS BENEFITS. Consultant is authorized
to incur reasonable expenses for promoting the business of the Company,
including expenses for travel, meals, entertainment and similar items; provided
such expenses do not exceed the amount set forth on an annual budget approved by
the Company in writing. The Company will reimburse Consultant for all such
expenses authorized by the Company upon the presentation by Consultant, from
time to time, of an itemized account of such expenditures.
8. DISCLOSURE OF INFORMATION. Consultant shall not disclose or
appropriate to its own use or for its own benefit, or to the use or for the
benefit of any third party, at any time during or subsequent to the term of this
Agreement, any secret or confidential information of the Company, AGCC or any of
their subsidiaries or affiliates ("Confidential Information") that Consultant
becomes aware of (regardless of how Consultant becomes aware of such
Confidential Information) during such period, whether or not developed by
Consultant, except as required in connection with Consultant's performance of
this Agreement or as required by a court or governmental authority. Upon
termination of this Agreement, Consultant shall promptly deliver to the Company
all Confidential Information, in whatever form, that is in the custody or
control of Consultant. The Company shall have the right to obtain injunctive
relief for violation of the terms of this paragraph 8. and the terms of this
paragraph 8. shall survive the termination of this Agreement.
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9. NONCOMPETITION. During the term of this Agreement, Consultant
shall not directly or indirectly, either as an employee, employer, consultant,
agent, principal, partner, stockholder, corporate officer, director, or in any
other capacity, own, operate, control, assist, or participate in any residential
community development within the jurisdictional boundaries of Garfield County
and Pitkin County, Colorado, which the Company reasonably determines to be in
competition with the Project. The foregoing prohibitions shall not apply to
ownership by Consultant of less than 5% of the issued and outstanding stock of
any publicly traded company, provided that Consultant does not control any such
company.
10. INDEMNIFICATION.
a. INDEMNIFICATION BY COMPANY. The Company shall
indemnify and hold harmless Consultant and its
employees, officers and directors (the "Consultant
Persons") for any losses, claims, damages,
liabilities, arising out of, in connection with or
related to the provision of services pursuant to this
Agreement. The Company shall also, at Consultant's
option, (i) undertake any Consultant Person's
defense, or (ii) reimburse any Consultant Person for
any legal or other expenses incurred in connection
with any pending or threatened investigation or
litigation arising out of, in connection with or
related to the provision of services pursuant to this
Agreement. The Company shall not, however, be liable
to any Consultant Person for any indemnification or
reimbursement to the extent that such Consultant
Person caused the loss or incurred the expense as a
result, directly or indirectly, of such Consultant
Person's gross negligence or willful misconduct. The
terms of this paragraph 10.a. shall survive the
termination of this Agreement.
b. INDEMNIFICATION BY CONSULTANT. The Consultant shall
indemnify and hold harmless Company, AGCC, their
subsidiaries and affiliates and their employees,
officers and directors ("Company Person") for (i) any
losses, claims, damages and liabilities, arising out
of, in connection with or resulting from, any
Consultant Person's gross negligence or wilful
misconduct and (ii) all Taxes, Liabilities and
Consultant Expenses. The Consultant shall also, at
Company's option, (i) undertake any Company Person's
defense, or (ii) reimburse any Company Person for any
legal or other expenses incurred in connection with
any pending or threatened investigation or litigation
arising out of, in connection with or resulting from,
any Consultant Person's gross negligence or wilful
misconduct or any Taxes, Liabilities or Consultant's
Expenses. The terms of this paragraph 10.b. shall
survive the termination of this Agreement.
11. ASSIGNMENT. A Party shall not voluntarily or by operation of
law assign or otherwise transfer the any of its rights, privileges, duties or
obligations hereunder without the prior written consent of the other Party. Any
attempted assignment by a Party of any of its rights, privileges, duties or
obligations hereunder without such prior written consent shall be wholly void
and unenforceable.
12. THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, whether
express or implied, (a) confers, or is intended to confer, upon any person other
than the Parties hereto and their respective successors and permitted assignees,
any rights or remedies under or by reason of this Agreement, (b) relieves or
discharges, or is intended to relieve or discharge, the liability of any Party
hereto or (c) gives any person or entity any right of subrogation against or
action over or against any Party.
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13. NO PARTNERSHIP OR JOINT VENTURE. Nothing contained in this
Agreement is intended to establish or create, or should be construed in any
manner or under any circumstances whatsoever as creating or establishing, a
partnership or a joint venture between Company and Consultant. It is the express
intent of the Parties that the relationship created hereunder shall be solely a
consulting arrangement.
14. NOTICES. All notices or other communications provided for by
this Agreement shall be made in writing and shall be deemed properly delivered
when delivered (a) personally, (b) by the facsimile transmission of such notice
to the Party entitled thereto, provided the sending Party receives written
electronic confirmation thereof, (c) by the mailing of such notice to the Party
entitled thereto, registered or certified mail, postage prepaid or (d) by
delivery by a reputable national courier or overnight delivery service, provided
the sending Party has a written tracking confirmation fro the notice, to a Party
at the following addresses (or to such address designated in writing by one
Party to the other):
COMPANY: Aspen Springs Ranch, Inc.
C/o Atlantic Gulf Communities Corporation
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
CONSULTANT: Xxxx Enterprises Community Development
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. XxXxxxxxx, Chairman
Fax: (000) 000-0000
15. AMENDMENTS. No supplement, modification or amendment of any
term, provision or condition of this Agreement shall be binding or enforceable
unless executed in writing by both Parties hereto.
16. SEVERABILITY. Should any part, term or provision of this
Agreement or any document required or contemplated herein to be executed be
declared to be invalid, void or unenforceable, all remaining parts, terms and
provisions hereof shall remain in full force and effect and shall in no way be
invalidated, impaired or affected thereby.
17. NO JURY TRIAL. Company and Consultant hereby voluntarily,
knowingly and intentionally WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY in any
legal action or proceeding arising under or in connection with this Agreement.
18. ATTORNEYS' FEES.
a. Each Party shall pay and shall be solely responsible
for paying its own expenses incurred in connection
with the negotiation, documentation, execution and
delivery of this Agreement, including, without
limitation, all fees and expenses of any agents,
representatives, counsel and accountants employed by
each Party in connection with the negotiation,
documentation, execution and delivery of this
Agreement.
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b. The Parties agree that, if any action is instituted
to enforce this Agreement, the Party not prevailing
in such action shall pay to the prevailing Party all
costs and expenses, including reasonable attorneys'
fees, incurred by such prevailing Party in connection
with such action. If both Parties prevail in part in
such action, the court or arbitrator(s), as the case
may be, shall allocate the financial responsibility
for such costs and expenses in an equitable manner,
consistent with its decision in such action.
19. APPLICABLE LAW. This Agreement shall be governed by and
construed and enforced in accordance with and subject to the laws of the State
of Colorado. The Parties hereby agree that venue shall be exclusively within
Denver County, Colorado.
20. ENTIRE AGREEMENT AND WAIVER. This Agreement contains the
entire agreement between the Parties hereto and supersedes all prior and
contemporaneous written or oral agreements, arrangements, negotiations and/or
understandings between the Parties hereto. No waiver of any term, provision or
condition of this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or shall constitute, a waiver of any other
provision hereof, nor shall any such waiver constitute a continuing waiver, and
no waiver shall be binding unless executed in writing by the Party making the
waiver.
21. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one and the same Agreement. Each Party agrees
to be bound by its own facsimile signature and to accept the facsimile signature
of the other Party to this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
Witnesses: ASPEN SPRINGS RANCH, INC.
____________________ By: _______________________________
Name: ____________________________
____________________ Title: ____________________________
XXXX ENTERPRISES MID-ATLANTIC, INC.
____________________ By: _______________________________
Name: ____________________________
____________________ Title: ____________________________
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