EXHIBIT 10.24
ASSET PURCHASE AGREEMENT
(Pads 7 and 9, Palace View Condominiums, Branson, Missouri)
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This Asset Purchase Agreement (this "Agreement") is made effective on
the date indicated hereinbelow that the last party executed this Agreement (the
"Effective Date"), between Capitol Communities Corporation, a Nevada corporation
(the "Buyer"), and Palace View Ventures, L.L.C., a Missouri limited liability
Company ("Ventures"), and Palace View Inc., a Missouri corporation ("Palace
View") (hereinafter Ventures and Palace View are collectively referred to as the
"Sellers").
PREMISES:
Ventures is the owner of pad seven (7) and Palace View is the owner of
pad nine (9) of Phase I, Palace View COndominium, Branson, Missouri, consisting
of approximately .5 acres of land for each pad foundation, which have been
platted for development. Sellers have constructed the concrete foundations for
a fourteen (14) unit condominium building on each pad, but have not commenced
construction of the planned condominium buildings thereon. Ventures intends to
construct a building on pad seven (7) according to approved plans and
specifications (the "Plans") for the purpose of building full ownership
condominiums.
WITNESSETH:
1. SALES AND PURCHASE. The Sellers agree to sell, and the Buyer agrees
to purchase on the terms hereafter stated, all of the Sellers' right, title and
interest in and to the following described property and improvements (hereafter
collectively called the "Project"):
1.1 Real Property.
(a) Pad seven (7) and nine (9) of Phase I, Palace View Place
Condominium, together with the foundations and improvements now or hereafter
located on such land situated in Branson, Taney County, Missouri, more
particularly described on Schedule 1.1(a) attached as a part hereof (all of the
foregoing are referred to herein as the "Real Property");
(b) All easements, rights of ways, privileges, appurtenances and other
rights pertaining to said Real Property;
ASSET PURCHASE AGREEMENT/PAGE 1
(c) All right, title and interest, if any, of the Sellers in and to:
(1) Any land lying in the bed of any street, in front of or
adjoining the Real Property.
(2) Any award made or to be made in lieu thereof;
(3) Any unpaid award for damage to the Real Property by reason
of change of street grade or otherwise;
(4) Any strips and small parcels of land adjoining the Real
Property; and
1.2 Intangible Personal Property. All the following intangible personal
property which is in the possession of the Sellers and affiliates ("Intangible
Personal Property") and used in the ownership, financing, operation and
maintenance of the Real Property: all contract rights relating to the Real
Property, deposits, permits, warranties, instruments, documents of title, and
business records pertaining to the Real Property; architect's construction plans
and specifications; contractor's warranties and guarantees; and all rights to
all trademarks and tradenames, including the nonexclusive right to use the
tradename, "Palace View", and all artwork, brochures, artistic renderings and
advertising material.
1.3 Certain Contracts. Sellers will assign to Buyer all Sellers' rights
and Buyer shall assume the obligations of Sellers pursuant to the Condominium
Declaration of Condominium and By-laws dated November 1, 1993, filed of record
November 16, 1993, the Articles of Incorporation and By-laws of the Palace View
Place Property Owners Association (the "POA") dated November 24, 1993, and the
Agreements between Palace View and PVP Development Company, LLC all as listed
on Schedule 1.3. In addition, Buyer covenants and agrees that all construction
on Pads 7 and 9 shall be generally consistent with the Plans.
Sellers shall deliver to Buyer at Closing all instruments necessary to
convey the Project.
2. PURCHASE PRICE AND PAYMENT TERMS.
2.1 Purchase Price. The Purchase Price (the "Purchase Price") for the
Project shall be Nine Hundred Nine Thousand Dollars ($909,000.00).
ASSET PURCHASE AGREEMENT/PAGE 2
2.2 Payment of Purchase Price. The Purchase Price shall be paid in U.S.
dollars at Closing.
2.3 Xxxxxxx Money Deposit. Contemporaneously with the execution of this
Agreement, Buyer shall deliver the sum of Five Thousand Dollars ($5,000.00) to
Tri-Lakes Title Company, Inc., Branson Missouri ("Escrow Agent"), as escrow
agent, to be held as xxxxxxx money (the "Xxxxxxx Money Deposit"). If all the
conditions precedent to Buyer's obligations under this Agreement are satisfied
in full or expressly waived, the Xxxxxxx Money Deposit shall be applied to the
Purchase Price at Closing. If, after fulfillment of all the conditions precedent
to Buyer's obligations hereunder, fulfillment of title conditions and tender of
full and complete performance by Seller, Buyer should otherwise fail to fulfill
his obligation to tender the Purchase Price at Closing, the parties agree that
the Xxxxxxx Money Deposit shall be paid to Sellers as liquidated damages for
Buyer's breach hereof.
2.4 Allocation of Purchase Price. With respect to the assets being sold
by Sellers to Buyer pursuant to this Agreement, the Buyer and Seller agree to
allocate the Purchase Price among such assets in accordance with the Allocation
of Purchase Price to be set forth in a schedule which will be prepared and
approved by Buyer and Seller at or prior to Closing. Each party agrees to file
Form 8594 pursuant to Section 1060 of the Internal Revenue Code of 1986 in
accordance with the allocation made pursuant to this section. Buyer represents
that its taxpayer identification number is 00-0000000. Ventures represents that
its taxpayer identification number is 00-0000000. Palace View represents that
its taxpayer identification number is 00-0000000. Each of Buyer and Sellers
agree, prior to filing the Form 8594 with the Internal Revenue Service, to
provide to each other a true, complete and legible copy of its Form 8594 it
shall file with the Internal Revenue Service in order to ensure that the filings
will be consistent.
3. TITLE AND SURVEY.
3.1 Title Commitment. On or before 5:00 o'clock p.m. central daylight
savings time on the 15th day after the Effective Date, the Sellers will provide
to the Buyer a preliminary binder for issuance of an ALTA owner's title
insurance policy (the "Title Commitment") reflecting Buyer as the proposed
insured, in the amount equal to the Purchase Price, issued by Tri-Lakes Title
Company, Inc., as agent for Chicago Title Insurance Company, showing fee simple
title to the Project to be in Sellers, and containing only the exceptions
(hereafter called the "Permitted Exceptions") described on Schedule 3.1 attached
hereto and made a part hereof, together with copies of all documents listed
therein as exceptions to title. After receipt of the preliminary title binder,
Buyer shall be allowed fifteen (15) days to notify Sellers in writing of any
objections to Sellers' title to the Real Property. Said objections
ASSET PURCHASE AGREEMENT/PAGE 3
shall be in writing to be deemed waived. Upon receipt of any written
objections, Sellers shall promptly undertake to correct the defects in title
objected to by the Buyer. If the Sellers are unable to correct such defects
within one hundred twenty (120) days after Seller's receipt of any written
objections to title, the Buyer will have the option to waive such defect or
terminate this Agreement, in which event neither party shall have any further
rights or obligations hereunder. If the title binder discloses judgments,
bankruptcies or other exceptions against other persons having names the same as
or similar to that of the Sellers, the Sellers, on request, shall deliver to the
Buyer and the title company affidavits showing that such judgments,
bankruptcies or other exceptions are not against the Sellers. Sellers shall
also deliver any affidavits and documentary evidence required by the title
company to eliminate all exceptions other than the Permitted Exceptions
appearing in the title binder.
3.2 Title Policy. On the Closing Date, Buyer may obtain, at Buyer's
sole cost and expense, if there is any additional cost, an owner's policy of
title insurance issued pursuant to the Title Commitment.
3.3 Survey. On or before 5:00 o'clock p.m. central daylight savings
time on the 15th day after the Effective Date, Seller shall deliver to Buyer a
current ALTA-ACSM survey of the Real Property certified to Buyer and the title
company, with the signature and seal of a Registered Land Surveyor for the State
of Missouri showing all easements affecting the land, the relation of the land
to public thoroughfares for access purposes, the location of all buildings, and
improvements and legal description compatible with Schedule 1.1(a), and
sufficient to convey title to the Real Property.
3.4 Environmental Report; Investigation. The Sellers shall, promptly
after the Effective Date, provide the Buyer with all books, records and
documents (collectively, the "Documents") pertaining to the Project and the
operation thereof (to the extent not theretofore furnished), including, without
limitation, all documents referred to in this Agreement and the schedules
annexed hereto, and all financial statements and contracts of and for the
Palace View Place Property Owner's Association. Contemporaneously with the
execution of this Agreement by both Seller and Buyer, Buyer shall have the
right, at Buyer's expense, to (i) engage environmental engineering firm
acceptable to Buyer to prepare and deliver to Buyer before Closing, an
environmental audit for the Project and (ii) engage structural engineers,
consultants, and firms to thoroughly inspect, audit and test the Project for the
existence of any poor conditions or defects in the structure or the mechanical,
electrical or plumbing systems serving the Project, or its compliance with
"Americans with Disabilities Act" and other regulatory requirements. The scope,
sequence and timing of the environmental audit and/or the structural inspection
shall be at the sole discretion of Buyer,
ASSET PURCHASE AGREEMENT/PAGE 4
and the environmental audit and/or the structural inspection shall be commenced
as soon as reasonably practicable after the Effective Date.
Buyer shall have the right, without the obligation, to enter upon the
Project prior to the Closing to undertake sampling at the Project at Buyer's own
expense. Sellers shall, upon request of Buyer, provide to Buyer a description
of all known operations, past and present, undertaken at the Project and any
existing building construction and as-built plans and drawings and maps and
diagrams designating the location of past and present operations and past and
present storage of hazardous material, above and below ground, at the Project.
If Buyer's sampling reveals that there has been a spill or discharge of a
hazardous substance or waste or the existence of any hazardous material at the
Project, or if the inspections performed by Buyer or any of its contractors
indicate any unsatisfactory condition of the Project, Sellers shall have the
right to correct any such unsatisfactory condition within 90 days after receipt
of notice from Buyer that such unsatisfactory condition exists. If such
unsatisfactory conditions are not corrected within such 90-day period, the Buyer
may elect to terminate this Agreement, or close and accept the Project subject
to such unsatisfactory conditions.
4. REPRESENTATIONS AND WARRANTIES OF SELLERS. To induce Buyer to enter
into this Agreement, Seller makes the following representations and warranties,
each of which is material and relied upon by Buyer;
4.1 Authorization. Ventures is a Missouri limited liability company and
Palace View is a Missouri corporation, both of which are (i) duly organized,
validly existing and in good standing under the laws of the State of Missouri,
(ii) has the power and authority to sell and convey the Project; and (iii) prior
to the Closing, shall have taken all actions required for the consummation of
the transactions contemplated by this Agreement, or any other document delivered
or to be delivered in connection with this Agreement;
4.2 Title. Sellers are the sole owners of good, fee simple,
unencumbered, marketable title to all of the real and personal property to be
sold to Buyer under this Agreement, subject only to the liens and encumbrances
expressly stated in the Title Commitment.
4.3 Easements and Encroachments. Except as expressly stated in the
Title Commitment, there are no encroachments, easements, or rights-of-way on,
over, under, or across the Project or any part of it. No part of the buildings
or structures on the Project encroach on any other property and all
improvements on the Project are fully within its boundaries and violate no set
back requirements.
ASSET PURCHASE AGREEMENT/PAGE 5
4.4 Regulations and Restrictions. To the best knowledge of Sellers, none
of the improvements on the Project violate any ordinance, regulation or
restriction of the City of Branson, Missouri, or any other governmental
authority, or any restrictions, covenants, or agreements of any kind or nature.
To the best knowledge of Sellers, the Project is properly zoned for its current
use and no part of the Project is subject to any building or use restrictions or
any easements or right-of-way which will impair or interfere with the continued
use of the Project as it is presently used, except as disclosed in Schedule 4.4,
affixed hereto. Sellers have received no notices of any violations of any rule,
regulation, code, resolution, ordinance, statute, or law involving the use,
maintenance, operation, or condition of the Project or improvements. To the best
knowledge of Sellers, all installations and improvements both constructed and
contemplated for construction pursuant to the Plans on the Project currently do,
and when constructed shall, fully and duly comply with all applicable
resolutions, statutes, rules, regulations and codes of the City of Branson, the
County of Taney, and State of Missouri, and all governmental agencies having
jurisdiction over the Project, and the requirements of all Boards of
Underwriters (or similar agencies), except to the extent that waivers have
previously been obtained.
4.5 Improvements and Systems. To the best knowledge of Seller, the
structural components of the Real Property (including all its mechanical,
electrical, plumbing and structural components) has been constructed in a good
workmanlike manner and in compliance with all applicable laws, statutes, codes,
and requirements of all governmental authorities having jurisdiction and all
Boards of Underwriters, and the Real Property and all parts thereof are
structurally safe and sound and in good operating condition. Seller does not
know or have reason to know of any defects in or about any part of the Project
which is impairing or interfering, or may impair or interfere, with the day to
day use and operation of the Project as it is presently used.
4.6 Taxes. Seller has timely paid, or will pay at or prior to Closing,
all of its taxes and assessments with respect to the Project or its operation
which are or could become liens against the Project, in accordance with the
apportionments required by Section 7.1(b) herein.
4.7 Mechanic's and Materialman's Liens. All labor performed and
materials supplied for the Project have been fully paid by Seller, or will be
paid by Seller at Closing, and no mechanic's lien or other lien may be claimed
by any person for such labor or materials. If, subsequent to the Closing Date,
and mechanic's or other lien, charge or order for the payment of money shall be
filed against the Project, or any portion thereof as a result of labor or
material supplied to the Project on or prior to the Closing Date, within two (2)
days after notice to the Seller of the filing thereof, the Seller shall take
such action, by
ASSET PURCHASE AGREEMENT/PAGE 6
bonding, deposit, payment or otherwise, as will remove or satisfy such lien of
record against the Project.
4.8 Condemnation Proceedings. No condemnation proceedings are pending,
or to the best of Seller's knowledge are threatened, against the Project or any
part thereof, and Seller has not received any oral or written notice that any
public authority or utility intends or desires to take or use the Project or
any part thereof.
4.9 Truth and Accuracy of Material Facts. To the best knowledge of
Seller, all statements made and information given to Buyer in this Agreement,
including any related Schedules and Exhibits, are true and accurate in every
material respect, and no material fact has been withheld from Buyer. To the
best knowledge of Seller, no representation or warranty of Seller in this
Agreement contains any untrue statement of a material fact, or omits to state a
material fact necessary to make the statements not misleading.
4.10 Other Facts of Circumstances. Seller has no knowledge or
information of any facts, circumstances, or conditions which do or would in any
way adversely affect the Project, the improvements thereon, or the successful
operation of the Project, except as specifically stated in this Agreement or any
related Schedules and Exhibits.
4.11 Leases. There are no leases or other occupancy agreements relating
to the Project. Seller has not collected any prepaid rent in advance in excess
of rent for the month during which the Closing occurs or the month immediately
following such month, and as of the date hereof, there are no leasing
commissions owing in connection with the Project.
4.12 Pending Alterations. Seller has not received (and has no knowledge
of) any notice or request from any insurance company or Board of Fire
Underwriters (or organization exercising similar functions) requesting the
performance of any work or alteration in respect of the Project. Seller shall
promptly notify Buyer if Seller receives any such notice before the Closing.
4.13 Contractual Obligations. Any installations of personal property and
any alterations or work in connection with the Project performed or required to
be performed by Seller (i) under the terms of any leases, or (ii) under any
contracts or other agreements affecting the Project have been completed and
fully paid for by Seller. No rents or leases have been assigned (except pursuant
to any mortgage to which Buyer agrees to take subject and for which Buyer
receives a credit towards the purchase price). There are no contracts or
agreements for services rendered in connection with the operation of the Project
which Buyer shall be required to take the Project subject to, except as set
forth in Section 1.3.
ASSET PURCHASE AGREEMENT/PAGE 7
Seller has paid all sums due for wages, utilities, or fees pursuant to all
service contracts, management agreements, union contracts, or other agreements
affecting the Project except as set forth in Schedule 4.13.
4.14 Rights of Third Party Purchasers. To the best of Seller's
knowledge, no person, firm, or entity (except as may be set forth in this
Agreement) has any rights in or right to acquire the Project or any part
thereof.
4.15 Litigation. Seller is not a party to any litigation, nor does he
know of any threatened litigation, affecting the Project, and Seller shall give
Buyer prompt notice if any such litigation is instituted before the Closing.
4.16 New Contracts. Seller shall not, without Buyer's written consent,
negotiate or enter into any new service or other contract affecting the Project
which cannot be terminated without cost to Buyer on or before the Closing.
4.17 Environmental Compliance. Seller has no knowledge of any
conditions of the Real Property which violate any state or federal environmental
law, rule, regulation, except those disclosed on Schedule 4.17, affixed hereto.
5. RIGHT OF TERMINATION. It shall be a condition to Buyer's obligation
to close that all of the material representations and warranties in Section 4
hereof shall be true at and as of the Closing (except to the extent Sellers are
permitted herein to take actions which may change such state of facts), and
Sellers further make such representations as of the Closing (except to the
extent Sellers are permitted herein to take actions which may change such state
of facts). Sellers' representations and warranties shall not merge with the
contract and shall survive the closing of this Agreement for the limited purpose
of enforceability for a period of five years after delivery of the Warranty
Deed, and any claim based upon breach of any such representation or warranty
must be asserted within that period. Without limiting any of the rights of the
Buyer to close under this Agreement is conditioned upon the accuracy of all of
the Sellers' material warranties and representations and the due compliance by
the Sellers with all of its agreements set forth in this Agreement. If on the
Closing Date, the Buyer determines that any of the Sellers' representations or
warranties is untrue and in any material respect, or if the Sellers have not
complied in all material respects with any of the Sellers' material agreements,
covenants or obligations in this Agreement, then the Buyer may elect to
terminate this Agreement by notice given to the Sellers, in which event neither
Sellers nor Buyer shall have any further rights or obligations hereunder.
ASSET PURCHASE AGREEMENT/PAGE 8
6. INDEMNITY FOR SELLER'S BREACH. In the event the transaction set forth
in this Agreement is consummated, Sellers agree to indemnify the Buyer and hold
the Buyer harmless and defend the Buyer from and against any and all loss, cost,
claims, liabilities, damages and expenses, including, without limitation,
reasonable attorneys' fees, arising as the result of a breach of any material
representations, warranties, covenants, agreements or obligations of the Seller
set forth in this Agreement. Sellers' covenants pursuant to this Section 6 shall
not merge with the contract and shall survive the closing of this Agreement for
the limited purpose of enforceability for a period of five years after delivery
of the Warranty Deed, and any claim based upon breach of any such covenant
pursuant to this Section 6 must be asserted within that period.
7. APPORTIONMENTS.
7.1 Items Prorated. The following items shall be apportioned as of
11:59 p.m. on the day immediately preceding the Closing Date:
(a) Current and pre-paid rents as of the Closing Date on any
Leases on the Project (but not past-due rents as of the Closing Date on
the Leases on the Project);
(b) Real estate taxes due and payable prior to and accrued in
the year in which the closing occurs. The general real estate taxes for
the year of Closing so prorated will be deemed to be equal to 110% of
the amount of the general real estate taxes assessed for the year
immediately preceding the Closing Date. All levied and pending
assessments as of the Closing Date shall be the responsibility of and
paid by Seller on the Closing Date;
(c) Charges for water, sewer, electricity, gas and telephone,
which are not metered to tenants under any leases or otherwise charged
directly to tenants under any leases; provided that if the consumption
of any such utilities is measured by meters, the Seller, on the Closing
Date, shall furnish a current reading of each meter; and further
provided that if there is not a meter or if the current xxxx for any of
such utilities has not been issued prior to the Closing Date, the
charges therefor shall be adjusted on the Closing Date on the basis that
the charges for the prior period for which bills were issued and shall
be further adjusted when the bills for the current period are issued;
ASSET PURCHASE AGREEMENT/PAGE 9
(d) Amounts paid or payable under transferable service and
maintenance contracts, if any such service or maintenance contracts shall,
at the Buyer's option, be assigned to and assumed by the Buyer on the
Closing Date; and
(e) Premiums on any existing transferable insurance policies or
renewals of those expired prior to the Closing Date, if any such policy
shall, at Buyer's option, be assigned to and assumed by the Buyer on the
Closing Date.
7.2 Survival. The provisions of Sections 7.1 shall not merge with the
contract and shall survive the closing of this Agreement for the limited purpose
of enforceability for a period of five years after delivery of the Warranty
Deed, and any claim to enforce the provisions of Section 7.1 must be asserted
within that period.
8. CLOSING
8.1 Closing Date and Documents. The closing (the "Closing") of the
transactions contemplated hereby shall, subject to the provisions of this
Agreement, take place on September 12, 1997 at 10:00 o'clock a.m. central
daylight savings time at Tri-Lakes Title Company, Inc., Branson, Missouri (the
"Original Closing Date"); provided, however, at any time before the Original
Closing Date, Buyer shall have the right to establish an earlier date (the
"Early Closing Date") for closing by giving Seller at least 5 business days'
written notice of such Early Closing Date. If Buyer does not close the
transaction contemplated herein for any reason other than a material breach by
the Seller, then Seller shall retain the Xxxxxxx Money as liquidated damages for
Buyer's breach of this Agreement and neither party shall have any further
liability or obligation hereunder. With respect to the Closing Date, time is of
the essence. The term, "Closing Date," shall refer to the Original Closing Date
unless Buyer elects an earlier date as provided herein, in which event, it will
refer to the Early Closing Date.
8.2 Seller's Closing Obligations. On the Closing Date, Sellers shall
deliver to Buyer the following items:
(a) A general warranty deed (the "Warranty Deed") in recordable form
conveying the Project, less and except the Units described on Schedule 1.4,
free and clear of all liens and encumbrances except the Permitted
Encumbrances;
ASSET PURCHASE AGREEMENT/PAGE 10
(b) Copies of all policies of insurance covering the Project
assigned to Buyer, at Buyer's option (which assignment shall be subject to
the consent of the insurer), together with evidence of premium payment
therefor;
(c) An affidavit in a form acceptable to the title insurance company
certifying that the Project is free from claims for mechanic's,
materialman's and laborer's liens;
(d) Appropriate resolutions from the Manager and Members of the
Ventures and from the directors and shareholders of Palace View authorizing
the transactions contemplated hereby and the execution and delivery of all
of the documents executed in connection with this Agreement;
(e) A certificate of the Seller dated as of the Closing Date
certifying that all of the Sellers' representations and warranties set forth
in this Agreement remain true as of the Closing Date, or if not, specifying
the respect in which such representation or warranty is no longer true;
(f) A xxxx of sale conveying all of Sellers' right, title and interest
in and to all of the Tangible Personal Property and Intangible Personal
Property comprising a portion of the Project free and clear of all liens and
encumbrances, except the Permitted Exceptions;
(g) An assignment of any service and maintenance contracts (to the
extent that the Buyer, at its option, has elected to assume the same), to
the extent the same can be assigned;
(h) Copies of all the plans, specifications, and blueprints for the
Project which are available to Seller;
(i) All Maintenance records and operating manuals pertaining to the
Project available to Seller;
(j) All keys to the Project;
(k) All contractors' warranties and guaranties to the Project,
together with assignments of such guaranties and warranties to the Buyer to
the extent the same can be assigned;
ASSET PURCHASE AGREEMENT/PAGE 11
(l) Any operating statements relating to the Project available to
Seller;
(m) Any documents necessary to file the Warranty Deed;
(n) Seller's original soil core tests, if available;
(o) Seller shall satisfy each requirement of the Title Commitment;
(p) A separate Estoppel, Subordination and Attornment Agreement
executed by each of the lessees of the Leases which is in form reasonably
acceptable to Buyer and Buyer's lender;
(q) A notice of assignment of the Leases, if any, addressed to the
lessees of the Leases, executed by Seller, advising each of the lessees of
the assignment of its respective Lease and directing payments of all future
rent to Buyer;
(r) An assignment of each of the Leases, if any, in recordable form;
and
(s) Such other documents as may be reasonably required by Buyer to
effectuate the sale of the Project.
(t) Proof, satisfactory to Buyer, that all of Seller's trade payables
and other liabilities arising from the operation of the Project have been
satisfied in full, or will be satisfied at Closing.
8.3 Buyer's Closing Obligations. On the Closing Date, Buyer shall deliver
to Sellers the following items:
(a) The Purchase Price provided in Section 2.2(b) in the sum of Nine
Hundred Nine Thousand Dollars ($909,000.00);
(b) Such affidavits and other documents as the title insurance
company may reasonably request regarding Buyer for the purposes of issuing
title insurance for the Project.
ASSET PURCHASE AGREEMENT/PAGE 12
9. COSTS, BROKERS AND TERMINATION
9.1 Sellers' Costs. The Sellers will pay the following costs: Sellers'
attorneys' fees, all abstracting costs, costs incurred in issuing the Title
Commitment (including any search charges and service fee), all revenue stamps,
taxes or filing fees due with respect to the recording of any mortgage
satisfactions or releases of any liens.
9.2 Buyer's Costs. Buyer will pay the following costs: Buyer's attorney's
fees, costs incurred in connection with Buyer's due diligence investigation, any
premium on the owner's policy of title insurance and mortgagee's policy of title
insurance, and the fee for recording the Warranty Deed.
9.3 Brokers' Indemnity. Buyer and Sellers represent and warrant to each
other that neither they nor their agents, officers or employees, have entered
into any agreement, engaged, used the services of or otherwise dealt with any
broker or real estate agent in connection with this transaction. Sellers and
Buyer agree to indemnify and hold each other harmless and defend each other from
and against any claim, loss, damage and liability, including without limitation
reasonable attorneys' fees resulting from the claims of any broker or real
estate agent if there is a breach of the foregoing warranty and representation.
The provisions of this Section shall survive the Closing hereunder.
10. CONDEMNATION AND DESTRUCTION
10.1 Condemnation. If, prior to the Closing Date, all or any portions of
the Project are taken by eminent domain (or is the subject of a pending or
contemplated taking which has not been consummated), the Seller shall notify the
Buyer of such fact and the Buyer shall have the option (which option shall be
set forth in a notice from the Buyer to the Sellers given not later than ten
(10) days after receipt of the Sellers' notice):
(a) To terminate this Agreement, in which event neither party shall
have any further rights or obligations hereunder; or
(b) To accept title to the Project (other than the portion so taken)
without any abatement of the Purchase Price, in which event the Seller
shall assign and turn over to the Buyer at the Closing, and the Buyer shall
be entitled to receive and keep, all amounts awarded or to be awarded as
the result of the taking.
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If Buyer does not make either option within the time indicated, the Buyer
shall be deemed to have elected subsection 10.1(a) hereof.
10.2 Destruction
(a) If, prior to the Closing Date, all or any material portion of the
Project or the Tangible Personal Property is damaged or destroyed by fire or
other casualty, the Seller shall notify the Buyer of such fact and the Buyer
shall have the option (which option shall be set forth in a written notice
from the Buyer to the Seller given not later than ten (10) days after
receipt of the Sellers' notice):
(1) To terminate this Agreement, in which event neither party
shall have any further right or obligations hereunder;
(2) To accept title to the Project in its existing condition
without any abatement of the Purchase Price, in which event the Sellers
shall assign to the Buyer, at the Closing, all of the Seller's right,
title and interest in and to the insurance proceeds awarded or to be
awarded to the Seller as the result of such damage or destruction.
If Buyer does not make either option within the time indicated, the Buyer
shall be deemed to have elected subsection 10.1(a) hereof.
(b) In the event there is damage to or destruction of an immaterial
part of the Project or the Tangible Personal Property by fire or other
casualty, such damage or destruction shall be repaired promptly by the
Sellers, and in the event the same is not repaired on or before the Closing
Date, then at the Buyer's option:
(1) The Closing shall be postponed until such repairs have been
completed; or,
(2) The reasonable cost of such repairs, as estimated by the
Buyer, shall be withheld from the Purchase Price and paid over to the
Seller upon completion of the repairs and delivery to the Buyer of
satisfactory evidence that all mechanics, laborers and materialmen
providing services or materials in connection therewith have been paid
in full, and the Seller's obligation to complete such repairs promptly
shall survive the Closing hereunder.
ASSET PURCHASE AGREEMENT/PAGE 14
11. CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of Buyer, under
this Agreement shall be subject to the following conditions, any of which may be
waived by Buyer:
11.1 Representations and Warranties True at Closing. Buyer shall not have
discovered any material error, misstatement or omission in the representations
and warranties made by the Seller in Section 4 hereof; the respective
representations and warranties made by the Seller herein shall be deemed to have
been made again at and as of the time of Closing and shall then be true in all
material respects; the Seller shall have performed and complied in all material
respects with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by them at or prior to the Closing;
and Buyer shall have received a certificate, dated to the effect set forth in
this Section 11.1.
11.2 No Damage or Destruction. Prior to the Closing, there shall not have
occurred any casualty to any facility, property, machinery, equipment or the
building owned or used by the Seller. Additionally, there shall have been no
change in the business, properties or operations of the Seller which would have
a materially adverse effect on the value of the business and properties of the
Seller.
11.3 Consents. Seller shall have obtained and delivered to Buyer written
consents or approvals of all persons or entities whose consent or approval is
required to consummate the transactions contemplated herein.
11.4 Delivery of Closing Documents. Seller shall have delivered to Buyer
each of the closing documents listed and set forth herein, together with any
additional documents which Buyer may reasonably request in writing to effect the
transactions contemplated herein.
12. CONDITION TO OBLIGATIONS OF SELLERS. The obligations of Sellers,
under this Agreement, shall be subject to the simultaneous closing by Buyer of
the acquisition of Sections B, C, D and E - Palace View Resort, Branson,
Missouri, pursuant to the terms of an Asset Purchase Agreement of even date
herewith between Buyer and PVP Development Company, LLC (the "PVP Contract").
This condition may be waived by Sellers.
ASSET PURCHASE AGREEMENT/PAGE 15
13. MISCELLANEOUS.
13.1 Notices.
(a) All notices, demands or requests made pursuant to, under or by virtue of
this Agreement must be in writing and mailed to the party to which the notice,
demand or request is being made by postage, prepaid, certified or registered
mail, return receipt requested, as follows:
TO THE SELLERS: Xxxxxxx Xxxxxx
XxXxxxxxx Building, Suite F
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telecopier (000)000-0000
WITH A COPY TO: Xxxx X. Field
Neale and Xxxxxx
X.X. Xxx 00000
Xxxxxxxxxxx, XX 00000
Telecopier (000)000-0000
TO THE BUYER: Xxxxxxx X. Xxxx
Capitol Communities Corporation
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telecopier (000)000-0000
WITH A COPY TO: G. Xxxxxx Xxxxxx
XXXXXX & XXXXX, P.A.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Telecopier (000)000-0000
(b) Any such notice, demand or request shall be deemed to have been rendered
or given on the date of mailing.
(c) Notice of any address change shall be given in accordance with the
provisions of this Section.
ASSET PURCHASE AGREEMENT/PAGE 16
13.2 Entire Agreement. This Agreement and the Exhibits attached hereto
contain all of the terms agreed upon between the parties with respect to the
subject matter hereof and supersedes any and all prior written understandings.
All provisions of this Agreement shall survive closing.
13.3 Amendments. This Agreement may not be changed, modified or terminated
except by an instrument executed by the parties hereto.
13.4 Waiver. No waiver by either party of any failure or refusal of the
other party to comply with any of its obligations shall be deemed a waiver of
any other or subsequent failure or refusal so to comply.
13.5 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
13.6 Section Headings. The headings of the various Sections of this
Agreement have been inserted only for the purposes of convenience, and are not
part of this Agreement and shall not be deemed in any manner to modify, explain,
qualify or restrict any of the provisions of this Agreement.
13.7 Governing Law. This Agreement shall be governed by and in accordance
with the laws of the State of Missouri applicable to contracts made and to be
performed wholly within that State.
13.8 Counterparts. This Agreement may be executed in counterparts as if
each party executed one document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
indicated hereinbelow.
SELLERS:
PALACE VIEW VENTURES, LLC
DATE OF BY: _______________________________
EXECUTION: __________________________
NAME: _____________________________
TITLE: ____________________________
ASSET PURCHASE AGREEMENT/PAGE 17
PALACE VIEW, INC.
DATE OF BY:/s/Xxxxxxx X. Short
EXECUTION: 6/16/97 -------------------------------
----------------- NAME: Xxxxxxx X. Short
-----------------------------
TITLE: President
----------------------------
BUYER:
CAPITOL COMMUNITIES CORPORATION
DATE OF BY:/s/Xxxxxxx X. Xxxx, President
EXECUTION: 6/16/97 ------------------------------
---------------- Xxxxxxx X. Xxxx, President
ASSET PURCHASE AGREEMENT/PAGE 18
SCHEDULE 1.1 (A)
DESCRIPTION OF REAL PROPERTY
(Attached)
ASSET PURCHASE AGREEMENT/PAGE 19
SCHEDULE 4.13
SERVICES CONTRACTS
None
ASSET PURCHASE AGREEMENT/PAGE 20
SCHEDULE 1.3
DESCRIPTION OF TANGIBLE PERSONAL PROPERTY
(Attached)
ASSET PURCHASE AGREEMENT/PAGE 21
SCHEDULE 3.1
DESCRIPTION OF PERMITTED EXCEPTIONS
None
ASSET PURCHASE AGREEMENT/PAGE 22
SCHEDULE 4.4
RESTRICTIONS AND EASEMENTS
Attached
ASSET PURCHASE AGREEMENT/PAGE 23
SCHEDULE 4.17
KNOWN EXCEPTIONS TO ENVIRONMENTAL COMPLIANCE
None
ASSET PURCHASE AGREEMENT/PAGE 24
