11/6/96
LIMITED PARTNERSHIP INTEREST
SALE AGREEMENT
This Agreement is made as of November 6, 1996 (the "Effective Date"),
between Xxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx (collectively "Seller") and
Xxxx X. Xxxxxxxxx ("Buyer").
Recitals
A. Seller owns units in the Xxxxxxxxx Family Partnership, Ltd., a
Colorado limited partnership (together with any successors, called the
"Partnership").
B. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, 2,056 units representing a limited partnership interest in the
Partnership and consisting of an approximate 20.56% of 100% interest in the
Partnership as a limited partner (including an approximate 20.56% of 100%
interest in the Partnership capital, net profits, net losses and distributions)
as of November 6, 1996 (the "Units"), upon the terms and conditions set forth in
this Agreement. Of these Units, 1,028 Units are being sold by Xxxxxx X.
Xxxxxxxxx, and 1,028 Units are being sold by Xxxxxx X. Xxxxxxxxx.
Agreement
Now, therefore, in consideration of the premises, the mutual promises and
covenants set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Buyer agree as follows:
(Blue Text is "hidden")
Article 1.
Sale of Units
Transfer of Units. Concurrently with the execution of this Agreement and as of
the Effective Date, Seller is selling and transferring to Buyer, and Buyer is
purchasing from Seller, the Units, free and clear of any and all liens, pledges,
options, encumbrances, adverse interests and claims of any kind (collectively,
"Liens"). Accordingly, Seller hereby assigns, transfers and conveys to Buyer,
its permitted successors and permitted assigns, all of Seller's right, title and
interest in and to the Units.
Purchase Price. The consideration for the Units is $234.06 per Unit. The total
purchase price shall be paid by Buyer, concurrently with execution of this
Agreement and as of the Effective Date, by delivery to Seller of the promissory
note in the form attached hereto in the total principal amount of $481,227.36,
which is equal to $234.06 per Unit multiplied by the total number of Units being
sold and purchased under this Agreement (the "Note").
Admission of Partner; Consent to Partnership Agreement. Buyer hereby assumes
Seller's obligations with respect to the Units transferred to Buyer and consents
to being a limited partner of the Partnership. Buyer hereby acknowledges that
it has become an additional or substitute partner of the Partnership and hereby
consents to be bound by all of the provisions of the Limited Partnership
Agreement of the Partnership, effective November 6, 1996, as it may be amended
from time to time (the "Partnership Agreement").
Further Assurances. At or after the Effective Date, each party hereto shall
promptly execute and deliver, or cause to be executed and delivered, all such
documents and instruments, in addition to those otherwise required by this
Agreement, in form and substance reasonably satisfactory to other parties, as
any such other party may reasonably request in order to carry out the
transactions stated in this Agreement or to carry out or evidence the terms of
this Agreement.
Article 2.
Representations and Warranties of Seller
Seller represents and warrants to Buyer, as of the Effective Date, the
following:
Authority. Seller has all requisite right, power, authority and capacity to
execute, deliver and perform this Agreement. This Agreement has been duly and
validly executed and delivered by Seller. This Agreement is the valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms, except as enforceability may be limited by (a) applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium, fraudulent conveyance,
redemption, reinstatement, and other laws affecting the rights or remedies of
creditors generally and (b) general principles of equity.
Ownership of Units. Seller is the owner of the Units. The Units are not
subject to, or bound or affected by, any liens, proxies, voting agreements or
other restrictions on the incidents of ownership thereof arising by, through or
under Seller, except as stated in the Partnership Agreement. Seller has not
taken any action to sell or otherwise transfer the Units or to pledge, mortgage,
hypothecate or otherwise encumber the Units, or to grant any proxy, voting
agreement or other restriction on the incidents of ownership of the Units,
except as stated in the Partnership Agreement.
No Conflicts. The execution, delivery and performance by Seller of this
Agreement does not and will not: (a) conflict with, violate, result in a breach
of or constitute a default under any agreement, instrument or obligation to
which Seller is a party or by which Seller is bound; (b) conflict with or
violate any order, judgment, decree, statute, rule or regulation applicable to
Seller; (c) result in the creation or imposition of any Lien against or upon the
Units other than as expressly contemplated herein; or (d) require any consent,
approval or authorization of, or filing with, any governmental authority or any
other third party.
Litigation. There is no action, suit, proceeding or investigation pending, or
to Seller's knowledge threatened, against Seller or involving the Units which
questions or challenges the validity of this Agreement or any action taken or to
be taken by Seller pursuant to this Agreement, and, to Seller's knowledge, there
is no basis for any such action, suit, proceeding or investigation.
Article 3.
Representations and Warranties of Buyer
Buyer represents and warrants to Seller, as of the Effective Date, the
following:
Authority. Buyer has all requisite right, power, authority and capacity to
execute, deliver and perform this Agreement. This Agreement has been duly and
validly executed and delivered by Buyer. This Agreement is the valid and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms, except as enforceability may be limited by (a) applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium, fraudulent conveyance,
redemption, reinstatement, and other laws affecting the rights or remedies of
creditors generally and (b) general principles of equity.
Investment. Buyer is acquiring the Units for investment purposes, for Buyer's
own account and not with a view to distribution or resale thereof. Buyer will
not transfer, sell or offer for sale any Units unless there is compliance with
restrictions set forth in the Partnership Agreement.
No Conflicts. The execution, delivery and performance by Buyer of this
Agreement does not and will not: (a) conflict with, violate, result in a breach
of or constitute a default under any agreement, instrument or obligation to
which Buyer is a party or by which Buyer is bound; (b) conflict with or violate
any order, judgment, decree, statute, rule or regulation applicable to Buyer; or
(c) require any consent, approval or authorization of, or filing with, any
governmental authority or any other third party.
Litigation. There is no action, suit, proceeding or investigation pending, or
to Buyer's knowledge threatened, against Buyer which questions or challenges the
validity of this Agreement or any action to be taken by Buyer pursuant to this
Agreement, and, to Buyer's knowledge, there is no basis for any such action,
suit, proceeding or investigation.
Article 4.
Miscellaneous
Brokers. Each party represents to the other that it has not engaged any broker,
finder or intermediary in connection with the transactions contemplated by this
Agreement.
Expenses. All legal and other expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
Survival. Each of the covenants, representations and warranties of Seller and
Buyer made herein shall survive the Effective Date and shall not be merged in
the consummation of the transactions contemplated hereby.
Notices. All notices and other communications under this Agreement shall be in
writing and shall be sent by certified or registered mail, return receipt
requested, by personal delivery, or by facsimile addressed to the appropriate
party at the address or facsimile number set forth below under each signature or
such other address or facsimile number as the party may designate by notice
given in accordance with this Section. Notice shall be deemed validly given on
the date of receipt as shown on the return receipt if delivered by certified or
registered mail, on the date of delivery if done by personal delivery and upon
confirmation of receipt if sent by facsimile with receipt confirmed. Notice
shall also be deemed validly given on the date that a party rejects or refuses
to accept delivery or the date of an inability to effectuate delivery because of
a changed address or facsimile number of which no notice was given in accordance
with this Section.
Entire Agreement; Recitals; Amendments; Waivers. This Agreement constitutes the
entire agreement of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, with respect
thereto. The Recitals stated above constitute part of the binding provisions
and agreements of the parties in this Agreement. This Agreement may not be
modified orally, but only by an agreement in writing signed by the party against
whom any waiver or amendment may be sought to be enforced. No action taken
pursuant to this Agreement and no investigation by or on behalf of any party
hereto shall be deemed to constitute a waiver by such party of compliance with
any representation, warranty, covenant or agreement herein. The waiver by any
party hereto of any condition or of a breach of another provision of this
Agreement shall not be construed as a waiver of any other condition or
subsequent breach.
Binding Effect. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
permitted successors and permitted assigns.
Headings and Exhibits. The section and other headings in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts,
each of which, when executed, shall be deemed to be an original and all of which
together shall be deemed to be one and the same Agreement.
Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Colorado in the United States of America, without
giving effect to the principles of conflicts of law of such state.
Attorneys' Fees. If any litigation between Seller and Buyer with respect to
this Agreement or the transaction contemplated hereby shall be adjudicated by a
judgment, writ, order, injunction, award or decree of any court of competent
jurisdiction, the party or parties prevailing thereunder shall be entitled, as
part of such judgment, writ, order, injunction, award or decree, to recover from
the other party or parties its reasonable attorneys' fees and costs and expenses
of litigation.
Other New Partners. Buyer understands that Seller is selling additional Units
of the Partnership to other persons as of the Effective Date. These persons are
children, a brother and nieces and nephews of Seller. Buyer hereby consents to
the transfer of units in the Partnership to each such person selected by Seller
(which transfer is a sale stated to be effective as of the Effective Date),
waives any rights that Buyer may have under Article X of the Partnership
Agreement with respect to a transfer of such units in the Partnership, and
agrees to the continuation of the Partnership.
The parties have executed and delivered this Agreement effective as of
November 6, 1996.
BUYER:
Xxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Fax: (000) 000-0000
SELLER:
Xxxxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Fax: (000) 000-0000
Xxxxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Fax: (000) 000-0000
Consent to Transfer of Units
Xxxxxxxxx Family Corporation, Xxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx
are partners of the Xxxxxxxxx Family Partnership, Ltd. and hereby consent to the
transfer of the above-described Units in the Partnership as provided above in
this Agreement, waive any rights that they may have under Article X of the
Partnership Agreement with respect to a transfer of Units in the Partnership,
and agree to the continuation of the Partnership.
Date: November 6, 1996
XXXXXXXXX FAMILY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, President
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
PROMISSORY NOTE
$481,227.36
Principal Sum November 6, 1996
FOR VALUE RECEIVED, Xxxx X. Xxxxxxxxx ("Maker"), whose address is 0000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000-0000, promises to pay to the order of
Xxxxxx X. Xxxxxxxxx and Xxxxxx Xxxxxxxxx (as tenants in common) ("Payee"), at
Payee's principal place of business, 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000,
or such other place designated in writing by Payee, the principal sum of
$481,227.36, together with interest on the unpaid principal sum from time to
time outstanding at the rate of 6.60% per annum. Interest, based on a 365-day
year, shall be accrued for the number of days the principal sum (or any portion
thereof) is actually outstanding.
This Note is given to Payee in connection with units in the Xxxxxxxxx
Family Partnership, Ltd., a Colorado limited partnership (together with any
successor called the "Partnership"), sold by Payee to Maker. The units sold to
Maker consist of 1,028 Units sold by Xxxxxx X. Xxxxxxxxx and 1,028 Units sold by
Xxxxxx Xxxxxxxxx. Therefore, 50% of any amounts paid under this Note are for
Xxxxxx X. Xxxxxxxxx and 50% of any amounts paid under this Note are for Xxxxxx
Xxxxxxxxx. The term "Units" as used below means all such units sold to Payee.
1. Payments. Interest accrued since any preceding payment of
interest (or, in the case of the first payment of interest, since the date of
this Note) shall be paid annually commencing November 6, 1997 and continuing on
the same day of each succeeding year, with the final payment due and payable no
later than November 6, 2005. Any interest due and owing under this Note but not
paid shall be compounded annually on November 6 of each year if not paid on the
due date or within the 10-day grace period allowed below under "Events of
Default." The entire principal amount of this Note, plus any accrued and unpaid
interest, shall be due and payable on November 6, 2005. All payments on this
Note shall be applied first to the payment of accrued interest, and, after all
such interest has been paid, any remainder shall be applied to reduction of the
principal balance. All amounts payable hereunder are payable in lawful money of
the United States of America.
2. Mandatory Prepayment. Notwithstanding the foregoing provisions,
Maker shall be obligated to make a mandatory prepayment of the entire principal
of this Note and any interest accrued thereon no later than 10 days after the
following event occurs: The Partnership no longer owns stock of Xxxxx'x Liquid
Gold-Inc., a Colorado corporation, and has distributed to the partners of the
Partnership all or any part of the net proceeds (whether cash, stock or other
property) from the disposition of Xxxxx'x Liquid Gold-Inc. stock owned by the
Partnership at the date of this Note.
3. Voluntary Prepayment. The privilege to prepay all or any part of
the principal sum from time to time without penalty is hereby reserved to Maker,
provided that any such principal prepayment shall be accompanied by all interest
then accrued on the amount prepaid, if any.
4. Late Charge. If any payment under this Note, or any part
thereof, is not paid within 10 days after the same becomes due, Maker agrees, at
the option of Payee, to pay a "late charge" of one percent (1%) of the
installment due.
5. Events of Default; Attorneys' Fees. As used in this Note, an
"Event of Default" means any one of the following events (whatever the reason of
such Event of Default, and whether it be voluntary or be effected by operation
of law):
Maker defaults in the payment of any interest on or principal of this
Note when it becomes due and payable, and such default continues for a period of
10 days;
Maker defaults in the performance of any other obligation of Maker
hereunder;
Maker shall be unable, or admit in writing its inability, to pay its
debts, or shall not pay its debts generally as they come due, or shall make any
assignment for the benefit of creditors;
Maker shall commence, or there shall be commenced against Maker, any
case, proceeding, or other action seeking to have an order for relief entered
with respect to Maker, or to adjudicate Maker as a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, liquidation, dissolution, or
composition under any law relating to bankruptcy, insolvency, reorganization, or
relief of debtors or seeking appointment of a receiver, trustee, custodian, or
other similar fiduciary, with respect to any part of Maker's property;
Maker takes any action in contemplation of any of the matters set
forth in the previous subparagraphs (c) or (d) (in which case Maker is obligated
to advise Payee within forty-eight (48) hours of the occurrence of such action);
or
Maker defaults on any other debts or liabilities to either Payee.
If an Event of Default occurs and is continuing, then Payee may
declare the principal of this Note and the interest accrued thereon to be due
and payable immediately, by a notice in writing to Maker, and upon any such
declaration, such amount shall become immediately due and payable. Maker hereby
agrees to pay reasonable attorneys' fees and all other reasonable costs and
expenses incurred, after an Event of Default, in the enforcement of this Note,
the enforcement of any security interest with respect to this Note, and the
collection of amounts due hereunder, whether such enforcement or collection is
by court action or otherwise.
If the principal of this Note becomes due prior to its stated maturity
because of acceleration by Payee as provided above because of Event of Default,
then any part of the principal sum and any accrued interest then due and unpaid
shall, from and after the date of such Event of Default, bear interest at the
rate per annum equal to five (5) percentage points in excess of the rate of
interest herein provided for at the time of default, thereafter compounded
annually at each November 6.
6. Miscellaneous; Jurisdiction. Maker waives demand for payment,
presentment for payment, notice of dishonor, protest and notice of protest.
This Note shall be governed as to validity, interpretation, construction, effect
and in all other respects by the laws and decisions of the State of Colorado.
Maker agrees that the federal and state courts located in the State of Colorado
shall have subject matter jurisdiction to entertain any action brought to
enforce or collect upon this Note and, by execution hereof, voluntarily submits
to personal jurisdiction of such courts; provided, however, such jurisdiction
shall not be exclusive and, at Payee's option, Payee may commence such action in
any other court which otherwise has jurisdiction. No delay or omission by Payee
in exercising any power or right hereunder shall impair such right or power or
be construed to be a waiver of any default, nor shall any single or partial
exercise of any power or right hereunder preclude any or full exercise thereof
or the exercise of any other right or power. Each legal holder hereof shall
have and may exercise all the rights and powers given to Payee herein.
The date of this Note is November 6, 1996.
MAKER:
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
