EXHIBIT 10.33
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made this 30th day of October, 2003, by and between
XXXXXX TRAVEL CENTERS, INC., (formerly known as Xxxxxx Outdoor Advertising &
Travel Centers Incorporated), a Nevada corporation, currently of 000 Xxxxxxxxx
Xxxx., X.X., Xxxxxxxxxxx, Xxx Xxxxxx 00000, hereinafter called the SELLER, and
XXXXXXX X. XXXXXX and XXXXXX FAST FOODS, INC., a New Mexico corporation,
currently of 000 X. Xxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000, hereinafter collectively
called the BUYER, WITNESSETH:
1. For the total consideration of One Hundred Sixty Thousand and 00/100
Dollars ($160,000.00), referred to as the "PRICE", to be paid as hereinafter
specified, Seller does hereby contract and agree to sell to Buyer by good and
sufficient warranty deed, free and clear of all liens and encumbrances, and
Buyer does hereby contract, covenant and agree to purchase by warranty deed from
Seller, for the Price, the real estate described on the attached EXHIBIT A which
is incorporated herein by reference.
The real estate described in the attached EXHIBIT A shall be conveyed
together with all improvements thereon, if any, and all water rights appurtenant
thereto, if any.
The real estate described in the attached EXHIBIT A shall be conveyed
subject to reservations contained in the patent and all covenants, easements and
restrictions, if any, of record or apparent from an inspection of the property.
The real estate described in the attached EXHIBIT A is commonly known as a
Dairy Queen restaurant business located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx.
The sale of the real estate and any improvements thereon described above and
more particularly described in EXHIBIT A includes the sale of the furniture,
fixtures and equipment used in the operation of the Dairy Queen restaurant
business. The real estate and its improvements and the furniture, fixtures and
equipment are collectively referred to herein as the "PROPERTY". Seller will
convey the furniture, fixtures and equipment to Buyer at closing by xxxx of
sale.
2. Buyer shall pay the Price to Seller in the following manner:
One Hundred Fifty Thousand and 00/100 Dollars ($150,000) of the Price shall
be paid to Seller, in cash or cashier's check at the time of closing.
The balance of the Price shall be paid by Buyer under a promissory note in
favor of Seller which note shall be unsecured and shall be financed at a rate of
seven percent (7%) per annum with one BALLOON PAYMENT of the principal and
interest due and payable on the one (1) year anniversary of the date of Closing
(the "NOTE" herein).
3. Closing of this transaction shall occur at the office of Xxxx County
Title Company on October 30, 2003 or at such earlier time as is mutually
convenient to the Buyer and the Seller.
4. Seller shall furnish to Buyer an owners policy of title insurance
reflecting merchantable title vested in Buyer, subject only to: (1) the
recording of deed from Seller to Buyer, and (2) the reservations contained in
the patent, covenants, conditions, restrictions and easements of record, if any,
or apparent from an inspection of the property; and with only the usual and
normal exceptions appearing in title insurance policies commonly issued in Xxxx
County, New Mexico.
If at the time of closing Seller is unable to furnish title insurance
reflecting merchantable title because of a title defect, then Seller shall be
allowed an additional fifteen (15) days in which to cure the defect(s). If the
defect(s) is cured within that time then the transaction shall be closed as soon
as is possible thereafter and there shall be no adjustment of any other
provision of this contract but if the defect(s) is not cured at the end of that
time, then the Buyer at the Buyer's own sole election may either: (1) accept the
title in the condition in which it then exits in which case Seller shall convey
the title to Buyer as it then exists and Seller, and Seller's heirs, personal
representative and estate shall have no liability for breech of any warranty as
concerns the defect accepted by Buyer and there shall be no adjustment to the
price or any other provision of this contract; or, (2) terminate this contract
in which case this contract shall then be null and void and of no further force
and effect.
If Seller shall be vested with merchantable title but shall refuse to
execute a warranty deed or complete the closing, then Buyer at Buyer's election
and upon ten (10) days written notice to Seller may pursue any remedy afforded
by law, including an action for specific performance hereof, all cost of which,
including reasonable attorney's fees, shall be recovered by the prevailing
party.
5. All state and county taxes, together with all other lawful assessments
to and including December 31, 2002 shall be paid by Seller. For the year 2003
all such taxes and assessments, including any applicable EBID charges, shall be
prorated between Seller and Buyer as of the date of closing with each party
paying those taxes and assessments applicable to their period of record title.
Buyer shall be solely responsible for all state and county taxes and assessments
accruing after the date of closing.
6. Seller shall furnish Buyer with a copy of the latest legal description
of the Property which is in the possession of the Seller. Buyer shall pay for
any survey of the property desired by Buyer.
7. Buyer shall be entitled to possession of the Property after the closing
and the delivery of the deed to Buyer and the Price to Seller as is contemplated
herein; provided, however, if the deed and Price are delivered to the Title
Company at the closing and if the Title Company will hold the Price pending
clearing of funds, recording of the deed or other documents, then the delivery
of the deed and the Price to the Title Company shall be the "closing" as is
described herein and Buyer shall then be entitled to immediate possession. All
risk of loss shall pass to Buyer at the time when Buyer is entitled to
possession.
8. Buyer acknowledges that Buyer has examined the Property, and any
improvements thereon, and is purchasing and accepting the Property in "AS IS"
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condition upon Buyer's own examination, inspection and judgment and not through
any representations or warranties made to Buyer by Seller or any agent of
Seller, except that Seller has and will warrant Seller's title to the Property.
Buyer further acknowledges that Seller is selling the Property subsequent
to Seller's termination of a Real Estate Escrow Contract between Seller and
another party for the purchase of the Property. Said termination was effective
as of April 21, 2003. Buyer acknowledges that Seller has not been actively
involved in the operation of the business and that Seller is making no
representations or warranties concerning the Property or its prior operation
including issues of liens that may attach as a result of the prior operation of
the business. Seller shall provide good and merchantable title at the time of
Closing, but in no way represents or warrants that future liens will not be
asserted against the Property as a result of the prior operation. Seller
represents that there may be New Mexico gross receipts tax due as a result of
the prior operation and Seller agrees to be responsible for the payment of such
gross receipts tax should they become due and a payment for same be demanded.
The Parties acknowledge that Buyer has put substantial work and improvements in
the Property since the beginning of these contract negotiations and Buyer
represents that no liens have attached to the Property as a result of such work
and that no liens will attach to the Property in the future as a result of such
work or improvements or through any other act of Buyer until the Note is paid in
full and the franchise transfer is complete - both as are more fully set out
herein. These provisions shall survive the closing of this transaction.
9. At closing Seller will convey the furniture, fixtures and equipment to
Buyer by xxxx of sale.
10. Buyer and Seller shall cooperate in effectuating the timely transfer of
the Dairy Queen franchise license from Seller to Buyer. A copy of Dairy Queen's
Steps to Complete Transfers is attached hereto as EXHIBIT B and incorporated
herein by reference. Seller agrees to pay the transfer fees of Dairy Queen
involved therewith. This duty of cooperation shall survive the closing of this
transaction.
11. Seller shall pay the cost of title insurance policy referred to above.
Seller shall pay the fees of the Title Company for the closing.
Seller shall pay the fees for preparation of the Contract for Sale and
Purchase and all other documents associated with the Closing of this
transaction, including, but not limited to, the warranty deed, xxxx of sale and
franchise transfer documents (hereinafter collectively referred to as "Other
Documents").
Seller shall pay all recording costs.
Buyer shall pay all costs associated with any financing acquired by Buyer
to effectuate this purchase including, without limitation, appraisal fees, loan
document preparation, and recording costs for any security documents required by
Buyer's lender, if any.
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12. The Price for the Property shall be allocated by the parties in
accordance with the allocation method required by Section 1060 of the Internal
Revenue Code of 1986, as amended (the "CODE"). The parties shall cooperate to
comply with all substantive and procedural requirements of Section 1060 of the
Code and any regulations thereunder, and the allocation shall be adjusted if,
and to the extent, necessary to comply with the requirements of Section 1060 of
the Code.
The Parties anticipate the following allocation:
Real Property - $50,000
Franchise - $25,000
Furniture, Fixtures & Equipment - $85,000
Buyer will take title of the real property under the name Xxxxxxx X. Xxxxxx
and will take title of the other assets under the name Deming Fast Foods, Inc.
13. Buyer and Seller each represent to the other that neither has engaged
the services of any Realtor or other agent and that no fee, commission or
compensation of any other kind is due any agent, finder or anyone else on
account of this transaction. Each of the parties hereby agrees to indemnify and
hold the other harmless from any claim or demand by anyone alleging to be their
agent and claiming a fee, commission or other compensation by reason of this
transaction.
14. Time is of the essence hereof. This Agreement shall be binding on the
parties hereto, their heirs, personal representatives, administrators and
assigns. This Agreement constitutes the entire agreement between the parties
with respect to the Property and it supersedes and replaces any prior agreement,
whether written or oral. This agreement may not be modified except in writing.
The validity of this Agreement and any of its terms or provisions, as well as
the rights and duties of the parties under this Agreement, shall be construed
pursuant to and in accordance with the laws of the State of New Mexico without
regard to conflict of laws principals. This Agreement may be executed in
multiple counterparts.
15. This offer shall expire unless it is accepted prior to 5:00 PM on
October 30, 2003. This offer shall be accepted by Buyer delivering to Seller or
Seller's attorney a copy of this agreement with the original signature of the
Buyer; PROVIDED HOWEVER that a copy of the executed original may be faxed to
Seller or Seller's attorney within the allowable time. If accepted by fax, Buyer
shall promptly deliver to Seller or Seller's attorney the copy of this Agreement
bearing the original signature of Buyer. Seller's attorney is Xxxx X. Xxxx of
the Firm of XXXXXX STRATVERT P.A., Las Cruces, New Mexico, whose fax number is
(000)-000-0000 and whose telephone number is (000)-000-0000.
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IN WITNESS WHEREOF, the parties hereto have executed the same in triplicate
on the day and year herein first written.
SELLER: BUYER:
XXXXXX TRAVEL CENTERS, INC.
By: /s/ Xxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxx
-------------------------------- ------------------------------------
Xxx Xxxxxxx, Director of Operations Xxxxxxx X. Xxxxxx
SS# for identification of Buyer:
XXX-XX-XXXX
AND
DEMING FAST FOODS, INC.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx, President
STATE OF NEW MEXICO )
)ss.
COUNTY OF XXXX )
On this 30th day of October, 2003, before me personally appeared Xxx
Xxxxxxx, Director of Operations of Xxxxxx Travel Centers, Inc., to me known to
be the person described in and who executed the foregoing instrument, and
acknowledged that he executed the same as his free act and deed.
My Commission Expires:
July 14, 2006 /s/ Xxxxx X. Xxxxx
---------------------- ------------------------------------
Notary Public
STATE OF NEW MEXICO )
)ss.
COUNTY OF XXXX )
On this 30th day of October, 2003, before me personally appeared Xxxxxxx X.
Xxxxxx to me known to be the person described in and who executed the foregoing
instrument, and acknowledged that he executed the same as his free act and deed.
My Commission Expires:
July 14, 2006 /s/ Xxxxx X. Xxxxx
---------------------- ------------------------------------
Notary Public
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STATE OF NEW MEXICO )
)ss.
COUNTY OF XXXX )
On this 30th day of October, 2003, before me personally appeared
Xxxxxxx X. Xxxxxx, President of Deming Fast Foods, Inc., a New Mexico
corporation, on behalf of said corporation, to me known to be the person
described in and who executed the foregoing instrument, and acknowledged that he
executed the same as his free act and deed.
My Commission Expires:
July 14, 2006 /s/ Xxxxx X. Xxxxx
---------------------- ------------------------------------
Notary Public
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XXXX OF SALE
KNOW ALL MEN BY THESE PRESENT:
That the undersigned, XXXXXX TRAVEL CENTERS, INC., formerly known as XXXXXX
OUTDOOR ADVERTISING & TRAVEL CENTERS INCORPORATED, a Nevada corporation, of X.X.
Xxx 0000, Xxxxxxx Xxxx, Xxx Xxxxxx 00000, County of Xxxx, State of New Mexico,
"Seller" herein (whether singular or plural, masculine, feminine, or neuter, and
referred to herein by the masculine singular pronoun) for and in good and
adequate consideration as identified in the Purchase Agreement entered into by
and between Seller and XXXXXXX X. XXXXXX and DEMING FAST FOODS, INC., a New
Mexico corporation, dated October 30, 2003, the receipt and sufficiency of which
is hereby acknowledged, has granted, bargained and sold, and by these presents
does grant, bargain and sell unto DEMING FAST FOODS, INC., a New Mexico
corporation, of 000 Xxxxx Xxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000, County of Xxxx,
State of New Mexico, all of the personal property, including, without
limitation, the furniture, fixtures and equipment, which is used in the
operation of the Dairy Queen business located at 0000 Xxxx Xxxxxx, Xxxxxx, Xxx
Xxxxxx, and which is presently located at such property, all of which is free
and clear of any lien or encumbrance.
Buyer acknowledges that Buyer has inspected the personal property which is
the subject of this Xxxx of Sale and accepts it in its current condition without
any representation or warranties of Seller.
TO HAVE AND TO HOLD, all singular, the goods and chattels above bargained
and sold unto the said Buyer, its successors and assigns, forever. The Seller,
for itself, its heirs, executors, administrators and assigns, all and singular,
the said goods and chattels above bargained and sold unto the said Buyer, its
successors and assigns, against the Seller and against all and every person
whomsoever, shall and will warrant and forever defend.
IN WITNESS WHEREOF, The Seller has hereunto set its hand and seal this 30th
day of October, in the year 2003.
XXXXXX TRAVEL CENTERS, INC.
By: /s/ Xxx Xxxxxxx
--------------------------------------
Xxx Xxxxxxx, Director of Operations
EXHIBIT A
TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION OF DEMING PROPERTY
The east 97.00 feet of the south 10.00 feet of the north 150.00 feet, of the
un-numbered Block of the XXXXXXXXXXX SUBDIVISION, an addition to Deming, Xxxx
County, New Mexico, further described as follows:
Commencing at the northeast corner of the Un-numbered Block of the
Xxxxxxxxxxx Subdivision, which point is 50.00 feet south and 295.00 feet east of
the N1/4 corner of Section Thirty-Five (35), Township Twenty-Three (23) South,
Range Nine (9) West, N.M.P.M., as shown on the plat of the Xxxxxxxxxxx
Subdivision:
Thence southerly on the east line of the Un-numbered Block, a distance of
140.00 feet to the Northeast corner of this tract and NEW POINT OF BEGINNING;
Thence continuing southerly, a distance of 10 feet to the Southeast corner
of this tract;
Thence westerly, on a line parallel with the north line of the Un-numbered
Block, a distance of 97.00 feet, to the southwest corner of this tract;
Thence northerly, on a line parallel with the east line of the Un-numbered
Block, a distance of 10.00 feet to the northwest corner of this tract;
Thence easterly, on a line parallel with the north line of the Un-numbered
Block, a distance of 97.00 feet to the point of beginning.
