Exhibit 10.15
WARRANT AND PARTICIPATION AGREEMENT
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THIS AGREEMENT is dated as of December 22, 2006, between STANFORD
INTERNATIONAL BANK LIMITED, an Antiguan banking corporation ("Grantee"), SOUTH
BEACH RESORTS, LLC, a Florida limited liability company ("Grantor"), AMERICAN
LEISURE HOLDINGS, INC., a Nevada corporation ("AMLH"), XXXXXXX XXXXXX ("Xxxxxx")
and XXXXXXXXX XXXXXX ("Pauzer").
1. In consideration of Grantee's amendment on this date of its $4.3
million Credit Agreement dated as of November 22, 2006 (the "Credit Agreement")
with Grantor's affiliates American Leisure Holdings, Inc., a Nevada corporation,
and Xxxxx Creek Acquisition Company, LLC, a Florida limited liability company,
in order to increase the maximum loan amount thereunder by $1.12 million and
Grantee's advance of $1.12 million under the Credit Agreement on this date to
cover the cost of an appeal bond and related expenses on behalf of Grantor in In
re: 000 Xxxxx Xxxxx Corp., Case No. 03-42999-BKC-AJC, Chapter 11, U.S.
Bankruptcy Court, S.D. Florida, Grantor hereby grants to Grantee and its assigns
a transferable warrant (the "Warrant") to purchase, for an aggregate exercise
price of $1.00, a 25% participation interest in the Net Proceeds (as defined in
Section 4 below) realized by Grantor or its successors or assigns upon the
disposition of the real property located at 000 Xxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxx and known as the Boulevard Hotel (the "Property").
2. The Warrant shall be evidenced by one or more warrants,
substantially in the form of Exhibit A hereto, registered in such names as
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specified in Schedule 1 hereto.
3. AMLH represents and warrants that it owns 100% of the equity in the
Grantor (the "Equity") and that no other person has any interest in or right to
acquire any of the Equity. AMLH agrees that it will not, without Grantee's prior
written consent in its sole discretion, sell, assign, transfer, pledge or
otherwise dispose of any interest in the Equity.
4. For purposes of this Agreement, "Net Proceeds" means the proceeds
realized upon the disposition or refinancing of the Property less Grantor'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. The Property may not be sold or otherwise disposed
of, including, without limitation a transfer to any Affiliate of Grantor, for
consideration other than cash without Grantee's prior written consent in its
sole discretion.
5. Grantor shall provide Grantee with 30 days' prior written notice of
the closing of any proposed disposition of the Property. The Warrant may be
exercised at any time before the closing date of such disposition.
6. Exercise of the Warrant shall be accomplished by delivery to Grantor
of written notice thereof together with payment of the exercise price; provided,
however, that in its notice of exercise, Grantee may elect cashless exercise, in
which case the exercise price shall be deducted from Grantee's share of the Net
Proceeds.
7. No interest in the Property may be sold or transferred to an
Affiliate of Grantor without assumption by the Affiliate of the obligations of
Grantor hereunder and the prior written consent of Grantee in its sole
discretion. No partial interest in the Property may be sold or transferred to
any non-Affiliate of Grantor without the prior written consent of Grantee in its
sole discretion.
8. In the event that Grantee exercises the Warrant, Grantor shall pay
Grantee's share of the Net Proceeds in cash to the persons and in the percentage
amounts set forth on Schedule 1 attached hereto within two business days
following the closing, and such payment shall be accompanied by a statement in
reasonable detail setting forth Grantor's calculation of Net Proceeds. All Net
Proceeds shall be held in escrow by Grantor's attorneys pending payment of
Grantee's share of Net Proceeds.
9. In the event that the Property is not sold on or prior to the third
anniversary of this Agreement, then Grantor shall irrevocably appoint Grantee or
its designee with full power of substitution, the true and lawful proxy of the
Grantor in the Grantor's name, place and stead to engage a real estate brokerage
firm to market and sell the Property, to enter into one or more purchase and
sale agreements with respect to the sale of the Property, to execute any all
documents necessary or appropriate in connection with the closing of the sale of
the Property and to take any and all actions which the Grantee may deem
necessary or proper in this respect, all at the sole cost and expense of the
Grantor. The Grantor hereby affirms that this proxy is irrevocable and coupled
with an interest and the Grantor hereby ratifies and confirms all that the proxy
may lawfully do or cause to be done by virtue hereof. The Grantor shall
cooperate with and assist the Grantee and take all reasonable actions to
effectuate this irrevocable proxy including, without limitation, providing
information, executing and delivering such additional documents, instruments,
papers, and other assurances that the Grantee requests as necessary,
appropriate, convenient, useful or desirable to effectively carry out the intent
of this irrevocable proxy.
10. AMLH, Xxxxxx and Xxxxxx shall be jointly and severally liable for
performance and payment of all of Grantor's obligations hereunder.
11. Grantor, AMLH Xxxxxx and Pauzer jointly and severally represent and
warrant as follows:
a. (i) Hazardous Materials have not been released on the Property;
(ii) there have been no events related to the Property that could give rise
to liability under any Environmental Law; (iii) the Property is now, and
has for the past three years been, in compliance in all material respects
with all applicable Environmental Laws and there are no extant conditions
that could reasonably be expected to constitute an impediment to such
compliance in the future; (iii) there are no pending or threatened claims
under any Environmental Law against Grantor relating to the Property; (iv)
there is no environmental remediation or other environmental response
occurring on the Property; and (v) Grantor has not received any notice nor
does it have knowledge of any circumstances related to liability, under any
Environmental Law. As used herein, "Hazardous Materials" means petroleum
and petroleum products, byproducts or breakdown products, radioactive
materials, and any other chemicals, materials, or substances designated,
classified or regulated as being "hazardous" or "toxic", or words of
similar import, under any Environmental Law, and "Environmental Law" means
any federal, state, local or foreign constitution, statute, law, ordinance,
regulation, rule, code, injunction, judgment, order, decree or other
requirement, restriction or rule of law relating to the environment,
health, safety or Hazardous Materials, including but not limited to,
Comprehensive Environmental Response, Compensation, and Liability Act of
1980; the Resource Conservation and Recovery Act of 1986 and Hazardous and
Solid Waste Amendments of 1984, 42 U.S.C. (S)(S)6901 et seq.; the Hazardous
Materials Transportation Act, 49 U.S.C. (S)(S)6901 et seq.; the Clean Xxxxx
Xxx, 00 X.X.X. (X)(X)0000 et seq.; the Toxic Substances Control Act of
1976, 15 U.S.C. (S)(S)2601 et seq.; the Clean Air Act of 1966, as amended,
42 U.S.C. (S)(S)7401 et seq.; the Safe Drinking Water Act, 42 U.S.C.
(S)(S)300f et seq.; the Atomic Energy Act, 42 U.S.C. (S)(S)2011 et seq.;
the Federal Insecticide, Fungicide and Xxxxxxxxxxx Xxx, 0 X.X.X. (X)(X)000
et seq.; and the Emergency Planning and Community Right-to-Know Act of
1986, 42 U.S.C. (S)(S)1101 et seq.
b. Grantor has all insurance that is prudent for the Property, and (i)
all insurance policies under which the Property is covered are in full
force and effect, and Grantor has paid all premiums due and are not in
default, (ii) all insurance policies are sufficient for compliance with all
applicable requirements of applicable law, and (iii) no notice of
cancellation or non-renewal with respect to, or disallowance of any claim
under, any such policy has been received by Grantor.
12. In connection with the transactions contemplated hereby and as a
condition to Grantee's advance of $1.12 million contemplated by Section 1 above,
Grantor shall deliver the following to Grantee:
a. the Warrants, duly executed by Grantor, in the form of Exhibit A
attached hereto;
b. an opinion of counsel for American Leisure Holdings, Inc., in form
and substance satisfactory to the Grantee in its sole discretion;
c. an amendment to the Operating Agreement of the Grantor, duly
executed by AMLH, in the form of Exhibit B attached hereto;
d. Amendment No. 1 to $4.3 Million Credit Agreement, duly executed by
AMLH and Xxxxx Creek Acquisition Company, LLC;
e. Amendment No. 1 to $6.2 Million Credit Agreement, duly executed by
AMLH, Tierra del Sol Resort (Phase 2), Ltd., Costa Xxxxxx XX Real Estate,
LLC, Xxxxx Xxxxxx III Real Estate, LLC, TDS Town Homes (Phase 2), LLC and
TDS Clubhouse, Inc.;
f. such other documents as Grantee shall reasonably deem necessary in
connection with the transactions contemplated hereby.
13. For purposes of this Agreement "AFFILIATE" shall mean any person
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(or entity) which directly or indirectly through one or more intermediaries
controls, or is controlled by or is under common control, with Grantor, AMLH,
Xxxxxx or Xxxxxx, or 5% or more of the equity interest of which is held
beneficially or of record by any of Grantor, AMLH, Xxxxxx or Pauzer. The term
"control" means the possession, directly of indirectly, of the power to cause
the direction of the management and policies of a person or entity, whether
through the ownership of voting securities, by contract or otherwise.
14. Any notice or other communication hereunder to any party hereto
shall be delivered by hand delivery, facsimile, recognized overnight courier or
registered or certified mail, return receipt requested, and shall be deemed to
have been given or made when delivered to the party at its address or fax number
specified next to its signature hereto (or at any other address that the party
may hereafter specify to the other parties in writing).
15. This Agreement shall be deemed a contract made under the law of the
State of Florida and shall be governed by and construed in accordance with the
law of said state and any suit, action or proceeding arising out of or relating
to this Agreement may be commenced and maintained in any court of competent
subject matter jurisdiction in Miami-Dade County, Florida, and any objection to
such jurisdiction and venue is hereby expressly waived.
16. This Agreement shall be binding upon and shall inure to the benefit
of each party, and their respective successors and assigns, provided, however,
that except as specifically permitted herein, neither Grantor, AMLH, Xxxxxx nor
Xxxxxx may assign any of his/its rights hereunder without the prior written
consent of Grantee, which may be arbitrarily withheld, and any such assignment
will be void.
17. AMLH shall reimburse the Grantee for all of its costs and expenses,
including reasonable attorney's fees, incurred in connection with the
transactions contemplated hereby.
18. EACH PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE
RIGHT HE/IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
DOCUMENT EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OR EITHER PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT TO GRANTEE ENTERING INTO THIS AGREEMENT AND
MAKING THE $1.12 MILLION ADVANCE DESCRIBED IN SECTION 1 HEREOF.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
STANFORD INTERNATIONAL BANK LIMITED
By:
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Its:
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Address: 0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
SOUTH BEACH RESORTS, LLC
By: AMERICAN LEISURE HOLDINGS, INC., its sole member
By: /s/ Xxxxxxx X. Xxxxxx
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Its: CEO
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Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
AMERICAN LEISURE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Its: CEO
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Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX XXXXXX
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
/s/ Xxxxxxxxx Xxxxxx
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XXXXXXXXX XXXXXX
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
SCHEDULE 1
WARRANTS DISTRIBUTION
NAME ADDRESS % OF WARRANTS
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Stanford International Bank Limited Xx. 00 Xxxxxxxx Xxxxx, Xx. Xxxx'x, 50.0000%
Antigua, West Indies
Xxxxxx X. Xxxxx 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xx. 00000 11.5625%
Xxxxxxx X. Xxxxxxxxxx 000 Xxxxxxx Xxxx. # 000, Xxx Xxxxxxxx, XX 00000 11.5625%
Xxxxxxx Pi 0000 XX 000xx Xxxxxx, Xxxxxxxxx, XX 00000 11.5625%
Xxxxxx X. Xxxxx 0000 Xxxxxxx Xxxx, Xxxxx Xxxxx, Xx. 00000 11.5625%
Xxxxxxx X. Xxxxxx 0000 X. 00xx Xxxxxx, Xxxxxxxxx, XX 00000 1.8750%
Xxx Xxxxxx 000 Xxxxx Xxxxxxxx Xxxx., Xxxxx, XX 00000 1.8750%
TOTAL 100.0%
