AGREEMENT Exhibit 1
THIS AGREEMENT (hereinafter the "Agreement") is made and entered into
as of the 17th day of May, 2000 ("Effective Date"), by and between Auric
Minerals Corporation (hereinafter referred to as "Auric"), a Nevada corporation,
and Corporacion de Xx Xxxxx (hereinafter referred to as "La Fonda"), a New
Mexico corporation (hereinafter together sometimes referred to as the
"Parties"), upon the following premises:
Premises
--------
A. Auric is the holder of a total of 9,200 shares of common stock
of Xx Xxxxx (the "Common Stock").
B. Auric is in the process of changing management and its
business direction, and, in doing so, is interested in selling the Common Stock
to Xx Xxxxx.
X. Xx Xxxxx is interested in purchasing the Common Stock on the
terms set forth herein.
Agreement
---------
NOW, THEREFORE, in consideration of the promises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Incorporated by Reference.
--------------------------
The above recitals are incorporated herein by this reference.
2. Terms of Purchase and Sale.
--------------------------
Upon the terms and subject to the conditions herein stated, Auric and
Xx Xxxxx agree as follows:
2.1 Xx Xxxxx will purchase the Common Stock from Auric, and Auric will
sell to Xx Xxxxx the Common Stock, at a total purchase price of $1,303,548, and
other consideration, as follows:
a) The sum of $103,548 shall be immediately due and payable,
by wire transfer of funds to Auric's account, upon execution of this Agreement;
b) The sum of $1,200,000 shall be due and payable in full
within thirty (30) days of execution of this Agreement; and
c) Xx Xxxxx shall also grant to Auric the use of rooms in the
hotel for a period of ten (10) years, as set forth in paragraph 2.5 below.
1
2.2 Contemporaneously with the execution and delivery of this
Agreement:
a) Xx Xxxxx shall immediately wire transfer to Auric, at its
bank account, good funds in the amount of $103,548;
b) Auric shall deliver to Xx Xxxxx, immediately upon receipt
of the payment in subparagraph (a) above, a stock certificate or certificates,
representing the Common Stock; and
c) Auric shall deliver to Xxxxx X. Xxxxx, counsel for Auric, a
stock power, authorizing the transfer of the Common Stock to Xx Xxxxx,
immediately upon receipt of the payment of $1,200,000 described in paragraph 2.1
above. Such stock power shall be delivered to Xx Xxxxx immediately upon receipt
of such $1,200,000 payment.
2.3 If Xx Xxxxx fails to timely make the payment of $1,200,000 set
forth in paragraph 2.1 above, or fails to perform its obligations hereunder in
any other material respect, Xx Xxxxx shall immediately return to Auric the stock
certificate(s) representing the Common Stock.
2.4 Upon execution of this Agreement, and transfer of the
certificate(s) representing the Common Stock, and until Xx Xxxxx fails to
perform as set forth in paragraph 2.3 above, Xx Xxxxx shall be the owner of the
Common Stock, with all of the incidents thereto, including, but not limited to,
voting rights and rights to dividends. If Xx Xxxxx fails to timely make the
payment of $1,200,000 set forth above, the ownership of the Common Stock shall
immediately and automatically revert to Auric.
2.5 As described in paragraph 2.1 above, Xx Xxxxx agrees to provide two
rooms having a current value of $200 per night, at the Hotel de Xx Xxxxx owned
by Xx Xxxxx, for 30 days each year, for a period of ten (10) years. Auric may
vary the date(s) for use of rooms, subject to availability due only to prior
customer reservations.
3. Representations and Warranties of Auric.
----------------------------------------
3.1 Auric is the owner of the Common Stock and the Common Stock is
fully paid and nonassessable, free of any liens, judgments, encumbrances,
security agreements, options, claims, charges or other contractual restrictions,
except as set forth in this agreement.
3.2 There is no suit, action, arbitration or legal, administrative or
other proceeding, or governmental investigation pending to which Auric is a
party, or to the best knowledge of Auric, which is threatened against Auric, to
which an adverse determination could result in a lien, encumbrance, claim or
other charge or restriction being placed on the Common Stock or any part
thereof.
3.3 Auric has the legal right, power and authority to enter into this
Agreement, and to consummate the transactions contemplated herein, and the
execution, delivery and performance thereof by Auric do not require the consent
or approval of any governmental body, agency or authority which has not been
obtained.
2
4. Representations and Warranties of Xx Xxxxx.
------------------------------------------
Xx Xxxxx represents and warrants as follows:
4.1 Xx Xxxxx has the legal right, power and authority to enter into
this Agreement, and to consummate the transactions contemplated herein, and the
execution, delivery and performance thereof by Xx Xxxxx do not require the
consent or approval of any governmental body, agency or authority which has not
been obtained..
4.2 To the best knowledge of Xx Xxxxx, there are no contracts or
arrangements between Xx Xxxxx and/ or any of its officers, directors or
shareholders, which would prohibit or restrict, in any way, the transaction
contemplated by this Agreement.
5. Miscellaneous Covenants and Agreements.
5.1 Expenses of Sale. The Parties agree that each of them shall bear
its own direct and indirect expenses incurred in connection with the
negotiations and preparation of this Agreement and the consummation and
performance of the transactions contemplated hereby.
5.2 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of New Mexico. Any action or proceeding brought be any
party against another arising out of or related to this Agreement shall be
brought in a state or federal court of competent subject matter jurisdiction
located within Santa Fe, New Mexico, and each of the Parties to this Agreement
consents to the personal jurisdiction of those courts.
5.3 Survival of Representations, Warranties and Covenants. Unless
otherwise specifically indicated, all representations, warranties and covenants
contained herein or made pursuant to this Agreement shall survive the Closing
and shall continue in full force and effect to the extent necessary to
effectuate the purposes of this Agreement.
5.4 Binding Effect. Except as specifically otherwise provided herein,
the provisions of this Agreement shall inure to the benefit of, and be binding
upon, the successors and assigns of the Parties hereto.
5.5 Entire Agreement. This Agreement and any ancillary agreements or
other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the Parties with regard to the subjects
hereof and no party shall be liable or bound to any other party in any manner by
any representation, warranties or covenants except as specifically set forth
herein. Except as expressly provided herein, neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought.
5.6 Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be delivered
personally or mailed by first class mail,
3
postage prepaid, with notice to be effective upon such delivery or mailing, and
shall addressed as follows:
If to Auric:
Auric Minerals Corporation
x/x Xxx Xxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
With a copy to:
Xxxxx X. Xxxxx
Xxxxx Law Offices
10 West 000 Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
If to La Fonda:
Corporacion de La Fonda
Attn: Xxx Xxxxxx
Xxx 0000
Xxxxx Xx, Xxx Xxxxxx 00000
With a copy to:
Xxxxx Xxxxxxx
The Business Law Firm
0000 Xxxxxxxx Xxxxx XX
Xxxxxxxxxxx, XX 00000
Either party may, by written direction to the other, change the address
to which said notice shall be sent.
5.7 Publicity. No press or publicity releases or announcement
concerning this Agreement or the transactions contemplated hereby shall be
issued without advance approval of the form and substance thereof by Seller and
Buyer.
5.8 Confidentiality. The Parties shall honor all confidentiality
agreements currently in place between or among them, which agreements survive
any termination of this Agreement.
5.9 Attorney's Fees. In the event of a default, the defaulting party
shall pay all costs and attorney's fees that the non-defaulting party
establishes were reasonably incurred by the non- defaulting party in enforcing
its rights under the terms of this Agreement, regardless of whether or not suit
is filed. Notwithstanding the foregoing, each party shall first give thirty (30)
4
days notice of any claimed default, specifying the default, and no such costs
and attorney's fees may be charged if the default is cured or corrected within
such thirty (30) day period.
5.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
5.11 Severability. The Parties agree that if any provision of this
Agreement is capable of two constructions, one which would render the provision
illegal or otherwise voidable or unenforceable and the other of which would
render the provision valid and enforceable, such provision shall have the
meaning which renders it valid and enforceable. The language of all provisions
of this Agreement shall be construed simply according to its fair meaning and
not strictly against the Parties. It is the desire and intent of the Parties
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies in force. If any provision is
nonetheless held to be void or unenforceable, all of the others shall remain in
full force and effect.
5.12 Injunctive and Equitable Relief. Parties recognize that in the
event of a breach of the terms of this Agreement that damages may not always be
an adequate remedy, and therefore stipulate that injunctive or other equitable
relief shall be available to the non-breaching party.
5.13 Assignment. Neither this Agreement nor any right under this
Agreement nor interest in this Agreement may be assigned by either party without
the prior express written consent of the other party, which may be withheld at
such other party's absolute discretion.
5.14 Waiver. Any waiver of any provision of this contract or of any
right by any party to this contract at any time shall not be construed as a
wavier or bar of any such right or provision at any future time, unless
expressly stated in writing.
IN WITNESS WHEREOF, this Agreement is hereby executed as of the date
first above written.
SELLER:
AURIC MINERALS CORPORATION
By /s/ Xxxxx X. Xxxxx
-------------------
Xxxxx X. Xxxxx, President
BUYER:
CORPORACION De LA FONDA
By /s/ Xxx Xxxxxx
--------------
Xxx Xxxxxx, Chairman
5
