PURCHASE AGREEMENT
This PURCHASE AGREEMENT (hereinafter referred to as the "Contract") is
entered into by and between Xxxx, Inc, corporation (hereinafter referred to as
"Seller"), and Hospitality Plus Corporation, a Nevada corporation AND/OR ITS
SUCCESSORS OR ASSIGNS (hereinafter referred to as "Purchaser").
P R E M I S E S:
WHEREAS, Seller is the owner of certain real property and improvements
("Real Property"), as more particularly described herein, and consisting of the
following hotel;
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to
purchase from Seller all of Seller's right, title and interest in and to the
real property described herein and the improvements thereon.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, agreements and obligations set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged
and confirmed, Seller and Purchaser do hereby agree as follows:
ARTICLE I
SALE AND PURCHASE
1.1 REAL PROPERTY AND IMPROVEMENTS. Upon and subject to the terms and
conditions hereinafter set forth, Purchaser agrees to purchase from Seller, and
Seller agrees to sell to Purchaser, the real property all improvements located
on the land and any and all amenities and other improvements located on the
land, and all personal property presently owned by Seller and located on or in
the Real Property or used in connection with the operations and maintenance of
the hotels and being the real property more particularly described on Exhibit
"A" attached hereto and incorporated herein by reference for all purposes,
together with all rights, ways, privileges and appurtenances pertaining thereto,
including any right, title and interest of Seller in and to any streets, alleys
or rights-of-way adjoining said real property and to any strips or gores between
said real property and all abutting properties (hereinafter collectively
referred to as the "Property"), for the consideration and upon and subject to
the terms, provisions, and conditions hereinafter set forth.
1.2 PERSONAL PROPERTY. All personal property presently owned by Seller
and located on or in the Real Property or used in connection with the operation
and maintenance of the Hotel, including, without limitation, all of Seller's
fixtures, furniture, machinery, vehicles, equipment, linens, kitchen and bar
equipment and supplies, building materials, supplies, merchandise inventories,
hardware, carpeting, draperies, wall coverings, guest supplies, signs, food and
beverage inventories, and all other personal property used in connection with
the operation of the Hotel (all of such personal property being hereinafter
referred to as the "Personal Property"). To the extent any items of Personal
Property are subject to operating leases or executory contracts that are
assignable, Seller shall convey such property subject to such operating leases
or executory contracts. Within (15) days after the Effective Date, Seller's most
recent inventory (the "Personal Property Inventory") of all of the Personal
Property (and executory contracts and operating leases relating thereto) shall
be delivered to Purchaser. On the Closing Date, such Personal Property Inventory
shall be supplemented in accordance with the terms and provisions hereof. Such
Personal Property Inventory and the supplements thereto, shall, upon delivery to
Purchaser as aforesaid, be and constitute a part of this Agreement, to the same
extent as if fully set forth herein.
ARTICLE II
PURCHASE PRICE
2.1 PURCHASE PRICE. The Purchase Price for the Property (hereinafter
referred to as the "Purchase Price") shall be Two Million Five hundred Thousand
and no/100 Dollars ($2,500,000) payable as follows:
(a) Cash. Purchaser will pay cash in the amount of $300,000, at
Closing.
(b) Stock. Purchaser will also transfer Two hundred thirty thousand
shares of Inn-vestor Inc. that buyer guarantees to register with the
Securities and Exchange Commission within 100 days of closing.
ARTICLE III
XXXXXXX MONEY
3.1 XXXXXXX MONEY DEPOSIT. Within five (5) days of the full execution of
this Contract, Purchaser shall deposit with Fidelity National Title located at
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx (hereinafter referred to as
the "Title Company"), $25,000.00 to assure prompt observance of this Contract by
Purchaser (hereinafter referred to as the "Xxxxxxx Money Deposit").
3.2 INTEREST BEARING ACCOUNT. The Title Company shall be instructed to
invest the Xxxxxxx Money Deposit in a federally insured, interest bearing
account. The term "Xxxxxxx Money Deposit" shall include the initial deposit of
$25,000 described above plus any interest thereon. The Xxxxxxx Money Deposit
shall apply to the Purchase Price at Closing.
ARTICLE IV
TITLE STATUS
4.1 TITLE COMMITMENT. Seller shall deliver or shall cause to be delivered
to Purchaser within twenty (20) days after the Effective Date (as hereinafter
defined in Paragraph 13.11), a Commitment for Title Insurance, Texas standard
form (hereinafter referred to as the "Commitment") together with legible copies
of all instruments and documents referred to therein as exceptions to title to
the Property (hereinafter referred to as the "Exception Dcouments"), in the
amount of the Purchase Price, in favor of Purchaser, pursuant to which the Title
Company agrees, subject to the provisions thereof, to issue at Closing an Owner
Policy of Title Insurance (hereinafter referred to as the "Owner Policy") to
Purchaser.
4.2 REVIEW OF TITLE COMMITMENT. The review of the Title Commitment shall be
governed by the following:
(a) Purchaser Obligations. Purchaser shall have Five (5) days after
the latest to be received of: (i) the Commitment; (ii) the Exception
Documents; and (iii) the Survey (as hereinafter defined in Paragraph 5.1),
to provide to Seller written objections to the status of title to the
Property. If such written objections have not been received by Seller prior
to the end of such fifteen (15) day period, Purchaser shall be deemed to
have conclusively accepted and approved the status of title to the
Property, as shown by the Commitment.
(b) Seller Obligations. If Purchaser does timely deliver to Seller
such written objections, Seller shall have Five (5) days from the receipt
of the objections to attempt to cure such objections. If Seller is unable
to cure such objections within such Five (5) day period, Purchaser may
either: (i) waive such objections in writing and purchase the Property
notwithstanding such objections; (ii) extend Seller additional time, not
later than the date of Closing, to cure such objections; or (iii) terminate
this Contract by written notice to Seller, in which event the Xxxxxxx Money
Deposit shall be returned to Purchaser on demand, and neither Seller nor
Purchaser shall have any further obligations hereunder.
4.3 CONVEYANCE BY DEED. Seller shall deliver to Purchaser, at Closing, a
Special Warranty Deed (hereinafter referred to as the "Deed") conveying fee
simple title to the Property to Purchaser, subject to the exceptions to title
contained in the Commitment approved or waived by Purchaser pursuant to
Paragraph 4.2 hereof (hereinafter referred to as the "Permitted Exceptions").
ARTICLE V
SURVEY
5.1 DESCRIPTION OF SURVEY. Seller, at its cost and expense, shall
provide to Purchaser, within twenty-five (25) days after the Effective Date, a
current survey of the Property prepared by a licensed surveyor or professional
engineer (hereinafter referred to as the "Survey"), which survey shall: (i) be
in form and content sufficient to delete the standard survey exception from the
Owner Policy at Seller's expense; (ii) be accompanied by a metes and bounds
description of the Property which description shall tie this Property to the
adjacent property boundaries setting forth the acreage within the Property;
(iii) locate, and identify by volume and page reference, if applicable, all
existing improvements, fences, waterways, lakes, ponds, encumbrances,
encroachments, conflicts, protrusions, uses, highways, streets, roads,
easements, alleys and rights-of-way, upon or adjacent to the Property, which are
visible on the ground or listed in the Commitment; (iv) show the location of the
"100-year frequency flood plain" on the Property, if applicable, or, if
inapplicable, shall certify that such flood plain does not affect the Property;
and (v) set forth the number of Gross Acres and Net Acres contained in the
Property. The Net Acres shall be: (a) the Gross Acres contained within the
Property; minus (b) the sum of the acres (or any partial acreage) within the
Property which is contained in all existing and proposed roads, streets,
rights-of-way, easements, flood plains and encroachments on the Property. The
Survey shall contain a certificate by the surveyor or engineer, addressed to
Seller, Purchaser and the Title Company certifying the number of Gross Acres and
Net Acres contained within the Property. At Closing, the metes and bounds
description of the Property reflected on the Survey shall be used in the Deed
and any other documents requiring a legal description of the Property.
5.2 REVIEW OF SURVEY. The review of the Survey shall be governed by the
following:
(a) Purchaser Obligations. Purchaser shall have Five (5) days
after the latest to be received of : (i) the Commitment; (ii) the
Exception Documents; and (iii) the Survey, to provide to Seller written
objections to the Survey. If such written objections have not been
received by Seller prior to the end of such Five (5) day period,
Purchaser shall be deemed to have conclusively accepted and approved
the Survey.
(b) Seller Obligations. If Purchaser does timely deliver to
Seller such written objections, Seller shall have Five (5) days from
receipt of the objections to attempt to cure such objections. If Seller
is unable or unwilling to cure such objections within such Five (5) day
period, Purchaser may either:(i) waive such objections in writing and
purchase the Property notwithstanding such objections; (ii) extend
Seller additional time, not later than the date of Closing, to cure
such objections; or (iii) terminate this Contract by written notice to
Seller, in which event the Xxxxxxx Money Deposit shall be returned to
Purchaser and neither Seller nor Purchaser shall have any further
obligations hereunder.
ARTICLE VI
INSPECTION AND EXAMINATION
6.2 ENVIRONMENTAL SURVEY. The inspection and examination of the Property
relative to the environmental condition of the Property shall be governed by the
following:
(a) Examination Authority. Purchaser shall have the right to
conduct a "Phase 1" environmental survey (the "Environmental Survey")
of the Property, which must be completed prior to the expiration of the
Inspection Period. If an Environmental Survey is conducted, then
Purchaser shall cause a written report setting forth the findings
obtained in that Environmental Survey to be delivered to Seller.
(b) Remediation/Termination. If, as a result of the
Environmental Survey, or by any other means, Purchaser or Seller
becomes aware of the existence of toxic or hazardous wastes (including
asbestos), or other environmental contamination, on or within the
Property, then Purchaser shall have the right to immediately terminate
this Contract unless, Seller has made arrangements satisfactory to
Purchaser to completely xxxxx or remove the existing toxic or hazardous
wastes or other environmental contamination in a manner that is
reasonably acceptable to Purchaser and in compliance with applicable
law. If Purchaser terminates this Contract pursuant to this Paragraph
6.2, then the Xxxxxxx Money Deposit shall be returned to Purchaser and
the parties shall have no further obligations under this Contract.
6.3 DOCUMENT INSPECTION. To facilitate Purchaser's inspection of the
Property, Seller shall provide to Purchaser, within Five (5) days after the
Effective Date, Seller shall provide Purchaser with the following information:
(a) Financial Statements. Seller shall provide the Purchaser
with copies of year-end financial statements for the Hotels (the
"Operating Statement") for the three (3) most recent full calendar
years prior to Closing and, to the extent available, the current year.
(b) Taxes. Seller shall provide Purchaser with copies of the
xxxx or bills issued for the three (3) most recent years for which
bills have been issued for all real estate taxes, sales and occupancy
taxes, and personal property taxes and with all notices pertaining to
such taxes or assessments applicable to the Hotels.
(c) Contracts. Seller shall provide Purchaser with copies of
all brokerage, commission, management, leasing, maintenance, repair,
service, pest control, and supply contracts (including without
limitation janitorial, elevator, scavenger, laundry, and landscaping
agreements) and any other contracts or agreements relating to or
affecting the Hotels that will be binding upon the Hotel or Purchaser
subsequent to Closing, all as amended. Contemporaneously with the
execution hereof, Seller shall provide Purchaser with copies of all
notes, mortgages, leases, contracts, licenses, commitments, trademarks,
trade names, copyrights, and engagements of Seller with respect to the
Property and the business conducted thereon or any part thereof. At
Closing, Seller shall furnish to Purchaser assignments, in form and
content satisfactory to Purchaser's counsel, conveying and assigning
such of the Contracts as Purchaser has agreed to assume and perform.
Such assignments of Contracts shall contain all third party consents as
may be required in order to validly assign same to Purchaser and shall
require Purchaser to assume all obligations under such Contracts that
may arise thereunder from and after the Closing (except as otherwise
herein provided) and to indemnify Seller with respect thereto.
(d) Licenses. Seller shall provide Purchaser with copies of
all licenses of Seller for the benefit of the Hotels or of third
parties burdening the Hotels.
(e) Leases. Seller shall provide Purchaser with copies of all
contracts, leases, and agreements for the Property.
(f) Insurance. Seller shall provide Purchaser with a schedule
setting forth all the insurance policies owned by Seller with respect
to the Property and indicating the carrier or carriers of such
insurance, the type of coverage afforded by each such policy, the
annual premium, the policy number, and the duration of the policy.
Purchaser acknowledges that it will cause its own insurance to be
placed on the Property at Closing.
(h) Reduction Certificate. Seller shall provide Purchaser with
any estoppel letters from any mortgages as to mortgages encumbering the
Real Property and/or Personal Property, to be furnished not less than
Five (5) days prior to Closing.
(i) Payroll Summary. Seller shall provide Purchaser with a
summary of Seller's payroll for employees.
(j) Franchise Reports. Seller shall provide Purchaser with
copies of all inspection reports, deficiency letter, improvement
requirements, and similar communications received by Seller from the
Franchisor under the Franchise Agreement during the past twenty-four
(24) calendar months.
(k) Inventory. The inventory of Personal Property of the Hotel
shall be delivered to Purchaser in accordance with Paragraph 1.2.
(l) Title Insurance. Seller shall provide any previous title
commitments.
(m) Judgments and Liens. Seller shall provide any and all
documents relating to any suit or administrative proceeding, brought by
a third party, pending or threatened against Seller.
ARTICLE VII
CLOSING
7.1 CLOSING DATE. The date of closing (hereinafter referred to as the
"Closing Date") shall be, and the event of closing (hereinafter referred to as
the "Closing"), shall occur on July 28, 2002 in the offices of the Title
Company, at such hour as Seller and Purchaser may mutually agree, but otherwise
at 10:00 a.m., local time. Purchaser shall have the right, in its sole and
absolute discretion, to extend the Closing Date an additional thirty (30) days
upon deposit of a $100.00 check with the Title Company. Said deposit shall be
non-refundable to Purchaser but shall be applied to the Purchase Price at
Closing.
7.2 CLOSING COSTS. At Closing, subject to the provisions of this Agreement,
the costs shall be borne as set forth below:
(a) Seller's Costs. Seller must pay: (i) Seller's pro rata portion of
the property taxes upon the Property; (ii) all expenses of curing any
Objections to the Title Commitment and/or Survey that Seller undertakes to
cure;(iii) one-half of any escrow fee; (iv) the premium for the Owner's
Policy of Title Insurance and the premium for the Survey deletion; and (v)
its own attorney's fees, if any; and
(b) Purchaser's Costs. Buyer must pay: (i) all attorney's fees for
Buyer's attorneys; and (ii) one-half of any escrow fee.
All other costs and expenses of Closing must be paid by the Party
incurring or requesting the same, or according to the custom or practice of the
Title Company for transactions that are similar to this transaction.
7.3 RECORDING AND FILING FEES. Seller shall pay the recording fees for
such documents as are required to be recorded or filed in order to cause title
to the Property to be in the condition called for by this Agreement. Purchaser
shall pay all other recording fees.
7.4 TRANSFER FEES AND SALES TAX. Seller shall pay any Real Estate
Transfer Fee imposed as a result of the conveyance of the Real Property and
Seller shall pay all sales tax fees or other fees imposed as a result of the
conveyance of the Personal Property.
7.5 TAX PRORATION; ROLLBACK TAXES. Real and personal property taxes for
the current tax year shall be prorated to the Closing Date. In the event that
the Closing Date shall occur before the tax rate is established for the year in
which Closing occurs, the apportionment of taxes shall be upon the basis of
taxes levied upon the Property for the preceding year. Seller shall pay when
due, all assessments and/or taxes for a change in the use of the Property for
the period prior to Closing.
7.6 SELLER'S OBLIGATIONS AT CLOSING. At Closing, Seller shall deliver
to Purchaser the following documents which shall be duly executed and, where
appropriate, acknowledged, together with any and all items or instruments
necessary or appropriate thereto:
(a) Deed. The Deed; and
(b) Owner Policy. The Owner Policy, containing no exception to title
other than: (i) the standard printed exceptions in Schedule B to the
Commitment, and the survey exception shall be amended to read "shortages in
area" only, and the tax exception shall refer to taxes for the year 2000
and subsequent years, and subsequent assessments for prior years due to
change in land usage or ownership; and (ii) the Permitted Exceptions;
(c) Non-foreign Affidavit. An Affidavit required pursuant to Section
1445 of the Internal Revenue Code stating, under penalties of perjury, that
Seller nor any other party so swearing, is a foreign person within the
meaning of Section 1445 of the Internal Revenue Code;
(d) Evidence of Authority. Any and all documents reasonably requested
by the Title Company or required by this Agreement to confirm that this
transaction and the parties executing such documents are fully authorized
and empowered to so act;
(e) Personal Property. Seller must deliver to Purchaser a Blanket
Conveyance and Xxxx of Sale in a form acceptable to Purchaser, conveying
the Personal Property and such property shall be conveyed free and clear of
all liens and encumberances;
(f) Ad Valorem Taxes. Seller must deliver to Purchaser tax
certificates from all taxing authorities having jurisdiction over the Real
Property, showing payments of all ad valorem taxes on said Property through
the calendar year preceding the Closing of this Purchase and Sale; in the
alternative, in the event such reports show that there are taxes upon the
Real Property that are due and owing, Seller may pay the same; in any
event, taxes for current year must be prorated between the parties pursuant
to the provisions of this contract;
(g) Management Contracts and Franchise Agreements. Seller shall
warrant that the Real Property is free of Management Contracts and
Franchise Agreements;
(h) Assignments. Seller shall deliver executed copies of all leases
and executory contracts assigned to Purchaser.
7.7 PURCHASER'S OBLIGATIONS AT CLOSING. At Closing, Purchaser shall deliver
to the Title Company:
(a) Cash Funds. The cash funds relative to such Closing as more
specifically described in Paragraph 2.1 hereof; and
(b) Evidence of Authority. Any and all documents reasonably requested by
the Title Company or required by this Agreement to confirm that this transaction
and the parties executing such documents are fully authorized and empowered to
so act.
7.8 DELIVERY OF POSSESSION. Possession of the Property shall be delivered
to Purchaser at Closing.
7.9 CONDITIONS TO SELLER'S OBLIGATIONS. The obligation of Seller to
consummate the transactions contemplated by this Agreement is, at its option,
subject to the following conditions:
(a) Representations and Warranties. Purchaser's
representations and warranties shall be true and correct as though made
at the Closing.
(b) Performance. Purchaser shall have performed and complied
with all covenants, agreements, obligations, and conditions on its part
herein required to be performed or complied with at or before the
Closing.
(c) Pending Litigation. There shall not be any suit or
administrative proceeding, brought by a third party, pending or
threatened against Seller or Buyer seeking to enjoin Seller and Buyer
from completing the transactions contemplated by this Agreement.
7.10 CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligation of Buyer to
consummate the transactions contemplated by this Agreement is, at its option,
subject to the following conditions.
(a) Representations and Warranties. Seller's representations
and warranties shall be true and correct as though made at the Closing.
(b) Performance. Seller shall have performed and complied with
all covenants, agreements, obligations, and conditions on its part
herein required to be performed or complied with at or before the
Closing.
(c) Pending Litigation. There shall not be any suit or
administrative proceeding, brought by a third party, pending or
threatened against Seller or Purchaser seeking to enjoin Seller and
Purchaser from completing the transactions contemplated by this
Agreement
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Seller represents,
and warrants and covenants to Purchaser the following:
(a) Title to Property. Seller will deliver at Closing good,
indefeasible, and fee simple title to the Property, free and clear of
all mortgages, liens, encumbrances, leases, tenancies, security
interest, covenants, conditions, restrictions, rights-of-way,
easements, judgments or other matters affecting title other than those
shown on Schedule B of the Commitment and otherwise permitted in this
Contract.
(b) Authority. Seller has full power and authority to execute
this Contract and perform all of its obligations hereunder.
(c) Condemnation; Legal Action. There is no pending or
threatened condemnation or similar proceeding affecting the Property or
any portion thereof, or pending public improvements, liens, or special
assessments, in, about or outside the Property which will in any manner
affect the Property or access to the Property, nor any legal action of
any kind or character whatsoever affecting the Property which will in
any manner affect Purchaser upon the consummation hereof, nor is any
such action presently contemplated.
(d) Governmental Requirements. Seller has complied with all
applicable laws, ordinances, regulations, statutes, rules and
restrictions pertaining to and affecting the Property and that Seller's
performance of this Contract will not result in any breach of, or
constitute any default under, or result in imposition of, any lien or
encumbrance upon the Property under any agreement or other instrument
to which Seller is a party or by which Seller or the Property might be
bound.
(e) Continued Operation. Seller will operate and manage the
Property in substantially the same manner it has been operated and
managed and will maintain the physical condition of the Property in the
same or better condition as it presently exists to the date of Closing,
reasonable wear and tear excepted.
(f) Environmental. Seller has no knowledge of and has received
no notice concerning any violation of Environmental Laws related to the
Property or the presence or release of Hazardous Materials on or from
the Property or any portion thereof or on or from any adjacent
property. Neither Seller nor, to the best of Seller's knowledge, any
previous owner, tenant, licensee, invitee or user of the Property, or
any other person or entity, has ever (i) used, generated, processed,
stored, disposed of, released or discharged any Hazardous Materials on,
under, or about the Property, or (ii) transported Hazardous Materials
to, from or across the Property except as reflected in any
environmental report or studies actually delivered by Seller to
Purchaser. To the best of Seller's knowledge, the Property is in
compliance with all applicable Environmental Laws. There are no orders,
judgment, claims, suits, or proceedings concerning or affecting the
Property with respect to any Environmental Law. Seller has not received
any notice of any threatened or pending suit or proceeding concerning
the Property relating to any Environmental Laws. The term
"Environmental Laws" includes without limitation the Resource
Conservation and Recovery Act and the Comprehensive Environmental
Response Compensation and Liability Act ("CERCLA") and other federal
laws governing the environment, pollution or hazardous materials as in
effect on the Effective Date of this Contract together with their
implementing regulations and guidelines as of the Effective Date of
this Contract and all state, regional, county, municipal and other
local laws, regulations and ordinances that are equivalent or similar
to the federal laws recited above or that purport to regulate the
environment, pollution or hazardous materials. The term "Hazardous
Materials" includes any substance, material waste, pollutant or
contaminant regulated, listed or defined as hazardous or toxic under
any Environmental Law. There are no underground storage tanks located
on or under the Property, and to the best of Seller's knowledge, there
have never been any underground storage tanks on or under the Property
except as reflected in any environmental report or studies actually
delivered by Seller to Purchaser. To the best of Seller's knowledge,
the Property has not been used as a landfill or as a dump for garbage
or refuse.
(g) Mechanic's Liens. All bills for work done or materials furnished with
respect to the Real Property have been paid in full or will be paid in full and
discharged by Seller at or prior to Closing;
8.2 PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Purchaser
represents, warrants and covenants to Seller that Purchaser has full power and
authority to execute this Contract and perform all of its obligations hereunder.
ARTICLE IX
DEFAULT
9.1 PURCHASER'S DEFAULT. In the event that Purchaser shall fail to purchase
the Property in accordance with the terms and conditions of this Contract, or
otherwise default in the performance of Purchaser's obligations pursuant to this
Contract, for any reason whatsoever other than Seller's default, Seller shall be
paid and shall retain the Xxxxxxx Money Deposit as liquidated damages as
Seller's sole remedy hereunder (it being agreed that actual damages would be
difficult to determine, vague and speculative in nature). Seller hereby waives
any and all other of its rights or remedies, at law or in equity, for breach of
this Contract by Purchaser, including, but not limited to, a suit to enforce
specific performance and a suit for damages.
9.2 SELLER'S DEFAULT. In the event that Seller shall default in the
performance of Seller's obligations hereunder, for any reason whatsoever other
than Purchaser's default or as otherwise permitted hereunder, as Purchaser's
only remedies hereunder, Purchaser may, at Purchaser's option: (i) purchase the
Property notwithstanding such default pursuant to the remaining terms and
provisions of this Contract, in which event such default shall be deemed waived;
(ii) terminate this Contract, in which event Purchaser shall be entitled to
return of the Xxxxxxx Money Deposit, and neither Seller nor Purchaser shall have
any further obligation hereunder; or (iii) file a suit to enforce specific
performance. Purchaser hereby waives any and all other of its rights or
remedies, at law or in equity, for breach of this Contract by Seller, including,
but not limited to, a suit for damages.
ARTICLE X
RISK OF LOSS; CONDEMNATION
10.1 RISK OF LOSS. Risk of loss due to casualty up to and including the
Closing Date shall be borne by Seller, except to the extent of any loss or
damage caused solely by the acts of Purchaser or its agents, employees,
contractors, or invitees. Seller shall repair and restore all damage to the
Property and any improvements for which Seller has the risk of loss prior to the
Closing. The provisions of this Paragraph 10.1 shall govern notwithstanding any
contrary statutory provisions.
10.2 CONDEMNATION. By notice to Purchaser given within ten (10) days
after Seller receives notice of proceedings in eminent domain affecting the
Property or any portion thereof, that are contemplated, threatened or instituted
by any body having the power of eminent domain, and if necessary the Closing
Date shall be extended to give Purchaser a period of twenty (20) working days to
make such election, Purchaser may: (a) terminate this Contract and the Xxxxxxx
Money shall be immediately returned to Purchaser without the necessity of
obtaining any consent or release by Seller; or (b) proceed under this Contract,
in which event Seller shall, at the Closing, assign to Purchaser its entire
right, title and interest in and to any condemnation award. The provisions of
this Paragraph 10.2 shall govern notwithstanding any contrary statutory
provisions.
ARTICLE XI
BROKER FEES AND COMMISSIONS
11.1 OBLIGATION TO PAY. Seller and Purchaser each hereby warrant and
represent to the other that all claims for brokerage fees, commissions or
finders' or other similar fees in connection with the transactions contemplated
in this Contract, insofar as such claims shall be based on agreements made by
either of the parties, shall be paid by the party making such agreements, and
the party hereto making such agreement does hereby indemnify and hold the party
hereto which does not make such agreement harmless from and against all
liability, loss, cost, damage or expense (including but not limited to
reasonable attorney's fees and costs of litigation) which the party hereto which
does not make such agreement shall suffer or incur because of any claim by any
broker, agent or finder claiming any compensation pursuant to such agreement
with respect to the sale and purchase of the Property or the execution of this
Contract. The terms of this Paragraph 11.1 shall survive Closing.
ARTICLE XII
NOTICE
12.1 NOTICE DESIGNATION. All notices, objections and approvals referred
to in this Contract must be given in writing and will be effective on the day
the notice is (i) actually received by the addressee thereof after being sent by
overnight delivery (such as Federal Express) or having been personally hand
delivered by the sender, (ii) deposited in the United States Mail, postage
prepaid, registered or certified mail, return receipt requested, and properly
addressed to the party to receive said notice, or (iii) sent to the addressee by
telecopier, facsimile or similar transmitting machine, as the case may be. The
notice addresses of the parties will be those specified below until further
notice:
SELLER: Xxxx Inc
( ) Telephone
( ) Facsimile
PURCHASER: Hospitality Plus Corporation, Inc
0000 Xxxxx Xxxxxxx Xxxxxxx Xxx
Xxxxx 000 #0
Xxxxxx, Xxxxx 00000
(000) 000-0000 Telephone
(000) 000-0000 Facsimile
ARTICLE XIII
MISCELLANEOUS
13.1 OFFER OF SALE. The execution of this Contract by the Purchaser
constitutes an offer to buy the Property. Unless this Contract is accepted by
Seller within Two (2) days of Purchaser's execution hereof, and a fully executed
copy is delivered to the Purchaser, the offer of this Contract shall be
automatically revoked and terminated.
13.2 BINDING AGREEMENT. This Contract and all of the terms, provisions
and covenants contained herein shall apply to, be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns.
13.3 CAPTIONS. The captions employed in this Contract are for
convenience only and are not intended in any way to limit or amplify the terms
and provisions of this Contract.
13.4 TIME OF THE ESSENCE. TIME IS OF THE ESSENCE of this Contract.
13.5 CHOICE OF LAW. This Contract shall be construed in accordance with
the laws of the State of Texas, and shall be specifically performable in Dallas
County, Texas.
13.6 ENTIRE AGREEMENT. This Contract contains the entire agreement of
the parties with respect to the subject matter hereof, and shall not be varied,
amended, or superseded except by written agreement between the parties hereto.
13.7 COUNTERPART EXECUTION. This Contract may be executed in
counterparts, each of which shall constitute an original, and all which taken
together shall constitute an original and all which taken together shall
constitute a single agreement.
13.8 DATE COMPUTATION. If any date of significance hereunder falls upon
a Saturday, Sunday or recognized Federal holiday, such date will be deemed moved
forward to the next day which is not a Saturday, Sunday or recognized Federal
holiday. The terms "working day" shall mean days elapsed exclusive of Saturday,
Sunday or recognized Federal holidays.
13.9 CONTRACT CONSIDERATION. In addition to the Xxxxxxx Money Deposit,
Purchaser shall pay to Seller the sum of $100.00 as independent contract
consideration for Seller's execution and delivery of this Contract and all
provisions of the Contract, including Purchaser's right to terminate this
Contract during the Inspection Period. This independent contract consideration
is in addition to and independent of any other consideration or payment provided
in this Contract and is non-refundable to Purchaser.
13.10 ASSIGNMENT. Nothing herein shall be construed to restrict or
prohibit the right of either party to assign this Contract.
13.11 EFFECTIVE DATE. This Contract (or a counterpart hereof) must be
executed by Purchaser and Seller and a fully executed copy hereof (or executed
counterparts) deposited with the Title Company not later than five (5) days
after execution hereof by the latter of Purchaser or Seller (the actual date of
deposit being herein referred to as the "Effective Date"), or this Contract
shall become null, void and of no effect whatsoever.
13.12 LITIGATION. In the event either party hereto is required to
employ an attorney because of the default of the other party, then the
defaulting party shall pay to the non-defaulting party court costs and
reasonable attorney fees incurred in the enforcement of this Agreement.
13.13 CONSTRUCTION. This Contract is the result of negotiations between
the parties, neither of whom has acted under any duress or compulsion, whether
legal, economic or otherwise. Accordingly, the terms and provisions hereof shall
be construed in accordance with their usual and customary meanings. Seller and
Buyer hereby waive the application of any rule of law which otherwise would be
applicable in connection with the construction of this Contract that ambiguous
or conflicting terms or provisions should be construed against the party who (or
whose attorney) prepared the executed Contract or any earlier draft of the same.
13.14 SURVIVAL CLAUSE. The provisions of Articles VIII and XIII of the
Contract shall survive the Closing and remain in full force and effect after
Closing as between the parties hereto.
IN WITNESS WHEREOF, the parties hereunto set their hands and seals as of the
Effective Date described in Paragraph 13.11 hereof.
SELLER:
Xxxx, Inc,
a corporation
By:___________________________________
Printed Name:_________________________
Title:________________________________
Execution Date:_______________________
PURCHASER:
Hospitality Plus Corporation, Inc.,
a Nevada corporation
By:___________________________________
Printed Name:_________________________
Title:________________________________
Execution Date:_______________________
ACCEPTANCE BY TITLE COMPANY
The undersigned title company, FIDELITY NATIONAL TITLE COMPANY,
referred to in the foregoing Contract as the "Title Company", hereby
acknowledges receipt of a fully executed copy (or executed counterparts) of the
foregoing Contract and the Xxxxxxx Money Deposit referred to therein, and
accepts the obligations of the Title Company as set forth therein.
FIDELITY NATIONAL TITLE COMPANY
By:_______________________________________
Printed Name:______________________________
Title:______________________________________
Date:______________________________________
"Effective Date"
EXHIBIT "A"
LEGAL DESCRIPTION
