Exhibit 10.38
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement"), made as of March
1, 2001, by and between ELBE PROPERTIES, an Ohio general partnership, having an
address at 0000 Xxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxx ("Seller"), and JAGI DOSWELL,
L.L.C., a Delaware limited liability company, having an address at 0000
Xxxxxxxxx Xxxx., X.X., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx ("Purchaser").
WHEREAS, Seller owns a fifteen percent (15%) interest as a
general partner in Kings Dominion Lodge, a Virginia general partnership (the
"Partnership"); and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser
desires to purchase from Seller all of Seller's interest, as a general partner,
in the Partnership, being a fifteen percent (15%) interest (the "Partnership
Interest"); and
WHEREAS, the terms and conditions for the sale and purchase
have been negotiated and agreed upon by the parties.
NOW, THEREFORE, in consideration of the above premises and the
representations and covenants hereinafter contained, the parties hereto agree as
follows:
Section 1. Sale and Purchase.
1.1 Sale of Partnership Interest. Subject to the terms and
conditions of this Agreement, Seller hereby sells, transfers and delivers to
Purchaser, and Purchaser hereby purchases and acquires from Seller, all right,
title and interest of Seller in and to the Partnership Interest.
1.2 Purchase Price and Payment. The purchase price for the
Partnership Interest shall be Six Hundred Thousand Dollars ($600,000) (the
"Purchase Price"). The Purchase Price shall be payable upon Closing to Seller by
delivery of a demand note (the "Note"), made by the Purchaser in favor of the
Seller, payable on demand and in the form of the Note attached hereto as Exhibit
A.
Section 2. Closing
2.1 Closing. The closing of the purchase and sale of the
Partnership Interest contemplated by this Agreement shall take place upon the
execution of this Agreement (the "Closing").
2.2 Closing Deliveries. At the Closing, the Seller shall
deliver to the Purchaser an Assignment of Partnership Interest, duly executed by
the Seller, which shall transfer to the Purchaser good title to the Partnership
Interest, free and clear of all claims, liens, security interests, charges, or
other encumbrances of any nature whatsoever. Upon Closing, the Purchaser shall
deliver to the Seller the Note.
Section 3. Representations and Warranties of Seller.
Seller hereby represents and warrants to Purchaser, knowing
and intending that Purchaser is relying hereon in entering into this Agreement,
that:
3.1 Partnership Interest. Seller is the lawful owner of the
Partnership Interest as a general partner in the Partnership. The Partnership
Interest is free and clear of any lien, pledge, encumbrance, security interest
or claim of any kind or character and of any rights of any third parties to
purchase or assert any claim against such Partnership Interest.
3.2. Due Formation. Seller is a general partnership duly
formed under the laws of the State of Ohio and has all requisite power and
authority to own, lease and operate its business as now being conducted.
3.3 Authority. Seller has taken all necessary action to
authorize the transfer and delivery to Purchaser of the Partnership Interest and
has the legal power and authority to execute, deliver and carry out the terms of
this Agreement and all instruments delivered by Seller pursuant to or in
connection herewith. The signing, delivery and performance of this Agreement
does not constitute a breach or default under any agreement or other restriction
to which Seller is a party or by which Seller or its property is bound. This
Agreement has been duly executed and delivered by Seller and constitutes the
legal, valid and binding obligation of Seller and is enforceable against Seller
in accordance with its terms.
3.4 Consents. The execution and delivery of this Agreement and
the consummation of the transactions contemplated herein do not violate or
require the consent of any person under any agreement to which Seller is a
party.
Section 4. Representations and Warranties of Purchaser.
Purchaser hereby represents and warrants to Seller, that:
4.1 Due Organization. Purchaser is a limited liability company
duly organized under the laws of the State of Delaware, and has all requisite
power and authority to own, lease and operate its business as now being
conducted.
4.2 Authority. Purchaser has the legal power and authority to
execute, deliver and carry out the terms of this Agreement and all instruments
delivered by Purchaser pursuant to or in connection herewith. The signing,
delivery and performance of this Agreement does not constitute a breach or
default under any agreement or other restriction to which Purchaser is a party
or by which Purchaser or its property is bound. This Agreement has been duly
executed and delivered by Purchaser and constitutes the legal, valid and binding
obligation of Purchaser and is enforceable against Purchaser in accordance with
its terms.
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4.3 Purchase for Investment. Purchaser is acquiring the
Partnership Interest for its own account and not with a view to distribution of
the Partnership Interest. Purchaser has been afforded the opportunity to ask
questions of, and receive answers from Seller regarding an investment in the
Partnership. Purchaser has been furnished with all information and all documents
that it has requested pertaining thereto. Purchaser is relying solely on its own
investigation in determining whether to invest in the Partnership.
Section 5. Indemnification; Survival
5.1 Indemnification by the Seller. The Seller shall indemnify,
defend and hold Purchaser harmless against any and all liabilities, loss, cost
or damage, together with all reasonable costs and expenses related thereto
(including legal and accounting fees and expenses) arising from, relating to, or
connected with the untruth, inaccuracy or material breach of any statements,
representations, or warranties of Seller contained in Section 3 hereof.
5.2 Indemnification by Purchaser. Purchaser shall indemnify,
defend and hold the Seller harmless against any and all liabilities, loss, cost
or damage, together with all reasonable costs and expenses related thereto
(including legal and accounting fees and expenses), arising from, relating to,
or connected with the untruth, inaccuracy or material breach of any statements,
representations, or warranties of the Buyer contained in Section 4 hereof.
5.3 Survival. This Agreement and all representations,
warranties, and agreements made herein and pursuant hereto shall survive the
Closing and will be true and correct as of the date of the Closing as if made on
that date.
Section 6. Prior Agreements.
Seller and Purchaser agree that each and every term and
condition of this Agreement shall supersede any other agreement by and between
Seller and Purchaser, whether oral or written, regarding the terms and
conditions of the sale and purchase of the Partnership Interest, and all prior
agreements shall be declared null and void.
Section 7. Further Assurances.
Seller agrees to take such further action, and to execute and
deliver such further documents, agreements, certificates and instruments as may
be necessary or as any other party shall reasonably request from time to time to
give full effect to or to evidence the transactions which are the subject of
this Agreement.
Section 8. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to principles
of conflicts of laws.
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Section 9. Notice.
Whenever under the provisions of this Agreement notice is
required to be given, it shall be in writing and shall be deemed given when
either served personally or mailed, return receipt requested, to the parties at
their respective addresses as set forth herein.
Section 10. Waiver.
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
Section 11. Severability.
In the event any provision of this Agreement shall be held
invalid or unenforceable by any court, such holding shall not invalidate or
render unenforceable any other provision of this Agreement, and each and every
other provision of this Agreement shall continue in full force and effect.
Section 12. Entire Agreement; Binding Effect; Amendment.
This Agreement contains the entire agreement of the parties,
and shall inure to the benefit of and be binding upon the parties hereto and
upon their successors in interest of any kind whatsoever, including, but not
limited to, their heirs, executors, administrators, guardians, trustees,
attorneys-in-fact and legal and personal representatives (except as herein
otherwise provided). This Agreement may not be amended, supplemented or modified
except in a writing executed by the parties hereto. This Agreement may not be
waived orally, but only by an agreement in writing, signed by the party against
whom enforcement of any waiver is sought.
Section 13. Section Headings.
Section headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section 14. Counterparts.
This Agreement may be executed in one or more counterparts, in
which event all of said counterparts shall be deemed to be originals of this
Agreement.
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IN WITNESS WHEREOF, each party hereto has executed this Purchase Agreement
as of the day and year first above written.
PURCHASER:
JAGI DOSWELL, L.L.C.
By:
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Name: Xxxxxxx X. Xxxxxx
Title: Manager
SELLER:
ELBE PROPERTIES
By:
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Name: Xxxxx X. Xxxx
Title: Partner
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