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EXHIBIT 10.1
AGREEMENT FOR SALE AND PURCHASE OF REAL AND PERSONAL PROPERTY
THIS AGREEMENT, effective on this 2nd day of June, 2003, is made between
PRESIDENT XXXXXXXXXX HOTEL, LLC, a Mississippi limited liability company
("Seller"), and A. D. JULDEN ENTERPRISES, LLC, a Mississippi limited liability
company ("Purchaser") for the sale and purchase of the real property commonly
known as the Xxxxxxxxxx Beach Sun Course, 000 Xxxxxxxx Xxxx, Xxxxxx,
Xxxxxxxxxxx 00000, and the tangible and intangible personal property
associated with said golf course, being more particularly set forth as
follows:
ARTICLE 1
AGREEMENT FOR PURCHASE AND SALE
Seller agrees to sell and cause to be conveyed to Purchaser, and Purchaser
agrees to purchase, the following property (collectively, the "Project"):
(a) The real property generally described as the Xxxxxxxxxx Beach Sun
Course, 000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000, and the tangible and
intangible personal property associated with said golf course, being more
particularly described on EXHIBIT 1.1 (the "Land") together with the existing
improvements thereon situated (together, the "Property");
(b) The Seller's interest in any leases affecting the Property (but
excluding Seller's leasehold interest in property leased from the United Sons
of Confederate Veterans);
(c) Seller's right, if any, to the use of the name "Xxxxxxxxxx" in
connection with the Property; and
(d) All fixtures and articles of personal property attached or
appurtenant to or used in connection with the Property which are owned by
Seller and located at the Property, free from all liens and encumbrances
except those permitted by this Agreement.
ARTICLE 2
PURCHASE PRICE
2.1 The purchase price (the "Purchase Price") for the Project is Thirteen
Million Dollars ($13,000,000.00), payable in immediately available funds to
Seller on the Closing Date, in such manner, place and account as Seller may,
by prior notice, instruct.
2.2 (a) Upon the execution of this Agreement, Purchaser shall deliver
the sum of One Hundred Thousand Dollars ($100,000.00) to Commonwealth Title
Insurance Company of Louisiana, Inc. ("Escrow Agent") to be held in escrow
pursuant to the terms of this Agreement. In addition, within ninety days
after the effective date of this Agreement, Purchaser shall deliver an
additional One Hundred Thousand Dollars ($100,000.00) to the Escrow Agent to
be held in escrow pursuant to the terms of this Agreement.
(b) As used in this Agreement, the term "Deposit" shall mean any
sums and instruments and accrued interest thereon, if any, held by Escrow
Agent hereunder. If Purchaser desires to terminate this Agreement pursuant to
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a specific right granted to Purchaser in any section of this Agreement,
Purchaser shall effect such termination by giving written notice thereof to
Seller and Escrow Agent within any applicable time period provided therefor in
this Agreement, and upon receipt of such notice, the Escrow Agent shall return
the Deposit to Purchaser, this Agreement shall wholly cease and terminate, no
party to this Agreement shall have any further claim against, or obligation
to, any other party to this Agreement, and the lien, if any, of Purchaser
against the Project shall automatically cease and terminate.
ARTICLE 3
PHYSICAL CONDITION OF PROJECT
Purchaser will inspect the Project during the hereinafter described
Inspection Period to the extent Purchaser deems necessary in connection with
the transactions contemplated by this Agreement. Purchaser acknowledges that
Seller has not made and does not make and is unwilling to make any express or
implied representations or warranties as to the present, past or future
physical condition, income, expenses, operation, legality of occupancy or any
other matter affecting or related to the Project except as specifically set
forth in this Agreement. No representation, warranty or covenant made by
Seller in this Agreement or any document delivered pursuant hereto shall
survive the Closing except as expressly provided in this Agreement. Purchaser
agrees to purchase the Project in its "AS IS" condition. Purchaser has not
relied upon, and Seller is not liable or bound in any manner, by any verbal or
written statements, representations, real estate brokers' "setups" or
information pertaining to the Project furnished by any real estate broker,
agent, employee, servant or other persons unless the same are expressly set
forth in this Agreement. Unless certain conditions survive the closing date
of this transaction, the delivery of the deed by Seller, and the acceptance of
the deed by Purchaser, shall be deemed to be the full performance and
discharge of every obligation of Seller to be performed under this Agreement
prior to the Closing Date and the truth or waiver of every representation or
warranty made by Seller in this Agreement or in any Exhibit attached hereto or
in any document, certificate, affidavit or other instrument delivered by
Seller or its agents at or in connection with the Closing, except for those
warranties, representations and obligations of Seller which this Agreement
expressly provides are to survive the Closing.
ARTICLE 4
PERMITTED ENCUMBRANCES TO TITLE
Purchaser agrees to accept title to the Property subject to the following
matters (collectively, the "Permitted Encumbrances"):
(a) Leases and tenancies affecting the Property, which Purchaser has
knowledge of and has not objected to on or before the termination of the
Inspection Period;
(b) Liens securing payment of all ad valorem, intangible and other real
and personal property taxes, special and general assessments, school taxes,
and water and sewer charges against the Property or the personal property
covered by this Agreement for the tax year in which the Closing Date occurs
and subsequent years, and the lien of any special taxes not entered of record
against the Property on the Closing Date;
(c) Any state of facts which an accurate survey or inspection of the
Property would disclose; and
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(d) Matters approved or deemed approved pursuant to Article 5.
ARTICLE 5
ACCEPTANCE OF AGREEMENT, CONDITION OF TITLE, TITLE INSURANCE
5.1 Within ten days from the effective date of this Agreement, Purchaser
shall obtain from First American Title Insurance Company (the "Title Company")
a preliminary title report or commitment (the "Title Commitment") to issue an
Owner's Policy of Title Insurance (the "Title Policy") insuring Purchaser's
title to the Property to be good and indefeasible in the amount of the
Purchase Price, subject only to the Permitted Encumbrances and other liens and
encumbrances not constituting objections to title in accordance herewith. A
copy of Seller's existing survey and a copy of that portion of Seller's latest
owner's title insurance policy relating to the Property shall be furnished to
the Purchaser. Within thirty days after the effective date of this agreement,
Purchaser shall give written notice (the "Objection Notice") to Seller of any
conditions of title to which Seller objects subject to which Purchaser is not
obligated to take the Property pursuant to the provisions of this Agreement
(the "Objections"), separately specifying and setting forth each of such
Objections. If Seller receives an Objection Notice, but Seller has not cured
the exception during the first ninety days of the Inspection Period, Purchaser
shall have the right to void this agreement and receive a refund of all of its
Deposit. If Purchaser fails to timely give Seller an Objection Notice, then
all matters disclosed on the Title Commitment shall be deemed to be Permitted
Encumbrances.
5.2 Seller shall not be required, however, to expend a material amount of
money or bring any action or proceeding or do any other thing in order to
deliver the Project or title to the Property as required by this Agreement.
If Seller gives Purchaser notice (the "Response Notice") that Seller is unable
to convey the Project or title to the Property as required by this Agreement,
Purchaser may, as its exclusive remedy, elect by written notice given to
Seller within five (5) days after the Response Notice is given, either (a) to
accept such title as Seller is able to convey without any reduction or
abatement of the Purchase Price or (b) to terminate this Agreement in which
event the Deposit shall be returned to Purchaser. If Purchaser fails to give
notice of its election to terminate this Agreement within such five (5) day
period, Purchaser shall be deemed to have waived said objections and to have
elected to proceed to close the transactions contemplated by this Agreement.
5.3 The existence of liens or encumbrances other than the Permitted
Encumbrances or those which are permitted by this Agreement shall be deemed to
be Permitted Encumbrances if the Title Company will insure Purchaser's title
clear of the matter or will insure against the enforcement of such matter out
of the Property. Unpaid liens for real estate and personal property taxes for
years prior to the fiscal year in which the Closing Date occurs and any other
matter which Seller is obligated to pay and discharge at the Closing shall not
be deemed objections to title, but the amount thereof chargeable to Seller,
plus interest and penalties thereon, if any, shall be deducted from the
Purchase Price on the Closing Date and paid to the Title Company for the
payment of such matters.
5.4 Purchaser shall pay the cost of obtaining the Title Commitment and
Title Policy. Seller shall pay the cost of recording the deed. Any other
recording costs and expenses in connection with the Closing shall be allocated
in accordance with the custom of the county in which the Project is located.
Purchaser and Seller shall each pay one half of the Title Company's escrow
fees.
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ARTICLE 6
CLOSING
6.1 The consummation of the transactions described in this Agreement (the
"Closing") shall occur on or before October 28, 2003 (the "Closing Date"), and
the closing shall be held at the offices of Allen, Vaughn, Xxxx & Hood, P.A.
(the "Closing Attorney") in Gulfport, Mississippi. TIME IS OF THE ESSENCE IN
REGARD TO THE PERFORMANCE BY PURCHASER AND SELLER OF ALL OF THE PROVISIONS OF
THIS AGREEMENT.
6.2 Upon the execution of all required documents and instruments at
closing and Purchaser's delivery of the Purchase Price, and other amounts
required herein, to the Closing Attorney on or before the closing date. At or
within a reasonable time following the closing, Closing Attorney shall do the
following:
(a) Record the deed.
(b) Deliver to Seller and Purchaser or other appropriate party the
documents and payments delivered to it as escrow holder for delivery to such
party.
(c) Pay all recording taxes and transfer fees and all filing fees
reflected on the closing statement.
ARTICLE 7
DOCUMENTS REQUIRED ON CLOSING DATE
7.1 At or prior to the Closing, Seller shall execute and/or deliver the
following to the Closing Attorney:
(a) Special Warranty Deed in form sufficient to convey the Property
to Purchaser.
(b) Xxxx of Sale and Assignment of Leases, Warranties and Service
Contracts, pursuant to which Seller assigns and conveys to Purchaser (i) all
personal property covered by this Agreement, (ii) all service contracts and
all other service agreements relating to the Project, and (iii) Seller's
interest as landlord in and to all tenant leases of portions of the Property.
(c) Plans and specifications for the Property, if in the possession
of Seller, which shall be delivered to Purchaser at the Property.
(d) A rent roll for the Property (the "Rent Roll"), listing all
tenants, the monthly base rent payable, lease expiration date and unapplied
security deposit as of the Closing Date.
(e) The originals or copies of the leases described in the Rent
Roll, which shall be delivered to Purchaser at the Property.
(f) All other documents reasonably required by Closing Attorney to
consummate the transaction and issue owner's title insurance.
(g) All costs and fees required to be paid by Seller pursuant to
this Agreement.
(h) Such other documents and instruments as may be required by this
Agreement or by the Closing Attorney in order to consummate the transactions
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described in this Agreement and to issue the Title Policy to Purchaser.
(i) A non foreign affidavit for Seller complying with the
requirements of Internal Revenue Code Section 1445(f)(3) and the regulations
promulgated thereunder.
7.2 At or prior to the Closing, Purchaser shall execute and/or deliver
the following to the Closing Attorney:
(a) The Purchase Price.
(b) Assumption by Purchaser of Seller's obligations under the
leases and service contracts being assigned from and after Closing, if any.
(c) Organization and authority documents of Purchaser satisfactory
to the Closing Attorney.
(d) All costs and fees required to be paid by Purchaser pursuant to
this Agreement.
(e) A written notice of the acquisition of the Property by
Purchaser, originally executed by Seller and Purchaser, which Seller shall
transmit to all tenants and to other parties affected by the sale and purchase
of the Property. Such notice shall be prepared by the Seller, and shall
inform the addressees of the sale and transfer of the Property to Purchaser
and contain appropriate instructions relating to the payment of future
rentals, the giving of future notices, and other matters reasonably required
by Purchaser. The said notices shall specify that unapplied security deposits
under the tenant leases have been delivered to the Purchaser and _that the
Purchaser is responsible for the refund thereof and shall be adequate under
local law to relieve Seller of all liability for return of such deposits.
(f) Such other documents and instruments as may be required in
this Agreement or by the Title Company in order to consummate the transactions
described in this Agreement.
ARTICLE 8
APPORTIONMENTS AND ADJUSTMENTS
8.1 Seller shall be responsible for and pay all accrued expenses with
respect to the Project accruing up to 11:59 P.M. on the day prior to the
Closing Date (the "Adjustment Date") and shall be entitled to receive and
retain all revenue from the Project accruing up to the Adjustment Date.
8.2 On the Closing Date, the following adjustments and apportionments
shall be made in cash as of the Adjustment Date:
(a) (i) Rents and additional rents for the month in which the
Closing Date occurs (the "Closing Month"). If past due rents or other sums
are owing by tenants for any period prior to the Closing Month (the "Rent
Arrearages"), then promptly after the Closing Date Purchaser shall xxxx all
tenants for such sums and shall use its reasonable efforts to collect all Rent
Arrearages. Rents collected after Closing shall be applied first to current
rents due and then to Rent Arrearages. In determining the amounts required to
be paid to Seller pursuant to the immediately preceding sentence, Purchaser
shall not be permitted to accept any rentals or other amounts from tenants in
advance of the due dates therefor. If, as and when the Purchaser collects
payments from a tenant on account of Rent Arrearages, Purchaser shall hold
such funds as trustee for Seller and shall pay an amount equal to the Rent
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Arrearages to Seller within ten (10) days after Purchaser or its agent
receives each such payment.
(ii) After the Closing, Purchaser shall deliver to Seller a
monthly collection report showing the sum, if any, paid by each tenant at the
Property with Rent Arrearages and the unpaid balance owed by such tenant
pursuant to its lease through the end of such calendar month; such collection
report shall be delivered to Seller within ten (10) days after the last day of
the Closing Month and each calendar month thereafter until Seller has received
all Rent Arrearages. The Seller shall have the right to review and audit the
Purchaser's records with respect to the Rent Arrearages payable to or
collected by Purchaser.
(b) Real estate taxes, ad valorem taxes, school taxes, assessments
and personal property, intangible and use taxes, if any.
(c) Charges under service contracts affecting the Project on the
Closing Date and utility charges and deposits relating to the Project.
(d) Water and sewer charges on the basis of the period for which
assessed.
(e) Income from users of vending machines and tenant services, if
any. Laundry, lease decoration allowances, bonus money and non-recurring
additional income shall not be prorated.
(f) Sole commission shall be deducted from the amount due seller
and paid to broker(s) entitled thereto.
8.3 At the Closing, Purchaser will receive a credit against the Purchase
Price in an amount equal to all unapplied security deposits payable to tenants
under leases in effect on the Closing Date against Purchaser's receipt and
indemnification therefor. Upon making such credit, Purchaser will be deemed
to have received all such security deposits and shall be fully responsible for
the same as if a cash amount equal to such security deposits were actually
delivered to Purchaser. Prior to the Closing, Seller reserves the right to
apply all security deposits as provided under the respective leases.
8.4 The provisions of this ARTICLE 8 shall survive the Closing.
ARTICLE 9
REMEDIES
9.1 If Purchaser fails to purchase the Project pursuant to this Agreement
because of Purchaser's failure to perform its obligations hereunder, then
Seller shall have the right, in lieu of any other remedies available to it at
law or in equity, to terminate this Agreement by giving Purchaser and the
Escrow Agent written notice thereof and, upon receipt of such notice, the
Escrow Agent shall deliver the Deposit to Seller which shall retain the same
as liquidated damages (Seller and Purchaser hereby acknowledging that the
amount of damages resulting from a breach of this Agreement by Purchaser would
be difficult or impossible to accurately ascertain and that Seller's damages
would, in any event, be substantial and would exceed the Deposit) and upon
Seller's receipt of the Deposit, this Agreement shall wholly cease and
terminate, no party to this Agreement shall have any further claim, agreement,
or obligation to any other party to this Agreement, and any lien of Purchaser
against the Project shall automatically cease, terminate and be released.
9.2 If the sale contemplated by this Agreement is not consummated because
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of Seller's failure to perform its obligations hereunder, Purchaser shall be
entitled, as its exclusive remedies, to elect either (a) to terminate this
Agreement and have the Deposit returned to it or (b) to enforce specific
performance of Seller's obligations under this Agreement; provided, however,
that Seller shall not be required to expend any money other than the amounts
provided in this Agreement, or take any action other than delivery of the
items provided in this Agreement, in connection with such specific
performance.
9.3 The non breaching party shall also be entitled to recover against the
breaching party its costs and expenses, including reasonable attorneys fees
and court costs, incurred by such non breaching party in enforcing any of the
its remedies hereunder.
ARTICLE 10
DAMAGE, DESTRUCTION OR CONDEMNATION
10.1 Seller agrees to maintain its present policies of fire insurance
covering the Project in full force and effect from the date of this Agreement
through and including the Closing Date.
10.2 If on or before the Closing Date either (a) all or a substantial
part of the improvements on the Land is damaged or destroyed by fire or the
elements or by any other cause and such damage is not repaired, or (b) all or
a substantial part of the Property is taken by condemnation or other power of
eminent domain, Purchaser or Seller may, by written notice given to the other
within ten (10) days after Purchaser shall have notice of the occurrence or
the taking (but in no event after the Closing Date), elect to terminate this
Agreement.
10.3 If either (a) a substantial part of the improvements on the Land is
damaged or destroyed or a substantial part of the Property is taken by
condemnation or other power of eminent domain but this Agreement is not
canceled as provided in Section 10.2, or (b) on or before the Closing Date, an
insubstantial part of the improvements on the Land is damaged or destroyed and
such damage is not repaired, or an insubstantial part of the Property is so
taken, then neither Seller nor Purchaser shall have the right to terminate
this Agreement based upon such damage, destruction or taking, and on the
Closing Date,
(i) Seller shall credit the Purchase Price with an amount equal to
any sums of money collected by Seller under its policies of insurance or
renewals thereof insuring against the loss in question (after deducting (1)
any expenses incurred by Seller in collecting such insurance and (2) any
amount that Seller shall have paid, agreed to pay, or shall have been
obligated to pay for repairs or restoration of the damage), and Seller shall
assign, transfer and set over to Purchaser all of Seller's right, title and
interest in and to said policies with respect to the Property and any further
sums payable under said policies (provided that in no event shall the credits
and insurance proceeds assigned exceed the cost of unrepaired damage), and
(ii) Seller shall assign, transfer and set over to Purchaser all of
Seller's right, title and interest in and to any awards that may be made for
any taking by condemnation or other power of eminent domain.
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ARTICLE 11
BROKER
11.1 Except as provided herein, Purchaser represents and warrants to
Seller that neither Purchaser nor any entity related to Purchaser has dealt
with any broker or other person or entity who would be entitled to a
commission or other brokerage fee from Seller claiming by, through or under
Purchaser, in connection with the transactions described in this Agreement.
Purchaser acknowledges that an amount will be due from it to Coldwell-Xxxxxx
Xxxxxxx Realty, which shall be mutually agreed to between Purchaser and Xxx
Xxxx and shall be paid at closing. Purchaser agrees to indemnify, defend and
hold the Seller harmless of and from any loss, cost, _damage or expense
(including reasonable attorneys' fees and court costs) arising out of any
inaccuracy in the representation or warranty made by Purchaser in the
preceding sentence.
11.2 Except as herein provided, Seller represents and warrants to
Purchaser that neither Seller nor any entity related to Seller has dealt with
any broker or other person or entity who would be entitled to a commission or
other brokerage fee from Purchaser claiming by, through or under Seller, in
connection with the transactions described in this Agreement. Seller shall
pay a fee equal to 3% of the Purchase Price unto Appraisal Associates, LLC,
if, as, and when Closing occurs and the Purchase Price is paid to Seller, but
not otherwise. Seller agrees to indemnify, defend and hold the Purchaser
harmless of and from any loss, cost, damage or expense (including reasonable
attorneys' fees and court costs) arising out of any inaccuracy in the
representation or warranty made by Seller in the preceding sentences.
11.3 Notwithstanding any other provision of this Agreement to the
contrary, the provisions of this Article shall survive the Closing and any
prior termination of this Agreement for any reason whatsoever.
ARTICLE 12
NOTICES
Any notice given or required to be given pursuant to any provision of this
Agreement shall be in writing and shall either be personally delivered or sent
by telecopy or by a reputable commercial courier service guaranteeing
overnight delivery, and shall be deemed to have been given upon receipt if
personally delivered or sent by telecopy, or upon delivery to such courier,
with delivery charges prepaid, if sent by such a courier, in either case
addressed as follows:
Purchaser: A. D. Julden Enterprises, LLC
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Mr. Xxxxxx Xxxxx, Managing Member
fax: 228-___-_____
phone: 000-000-0000
with a copy to: Xxxx Xxxxxx, Esq.
Allen, Vaughn, Xxxx & Hood, P.A.
Xxx Xxxxxxx Xxxxx, Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
fax: 000-000-0000
phone: 000-000-0000
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Seller: President Casinos, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxxxxxx
fax: 000-000-0000
phone: 000-000-0000
with a copy to: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxx LLP
One XX Xxxx Xxxxx
Xx. Xxxxx, XX 00000
fax: 000-000-0000
phone: 000-000-0000
Either party may, by giving notice to the other in the manner set forth
above, change the address to which notices shall be sent to it, provided that
any such change of address shall be effective three (3) days after it is
given. The attorney for each party to this Agreement may give notices on
behalf of his client with the same force and effect as if such notice was
given directly by such party.
ARTICLE 13
ASSIGNMENT
Neither the rights of Purchaser hereunder, nor any portion thereof, may be
assigned; provided, however, that by notice to Seller given at least ten days
prior to Closing, Purchaser may assign all of its interest in this Agreement
and the Deposit to an entity controlled by Purchaser or Purchaser's
principals.
ARTICLE 14
INSPECTION PERIOD
Within ten business days after the effective date of this agreement,
Seller shall deliver to Purchaser all documents in its possession regarding
the Project, including (but not limited to) site plans, building plans,
surveys, permits, studies (including all environmental and wetlands phases),
reports, leases, contracts, and other agreements which affect the Project.
Purchaser intends to complete its physical inspection of the Project on or
before October 27, 2003 ("Inspection Period"), which inspection shall be at
the sole cost and expense of Purchaser. Until 5:00 p.m. September 5, 2003,
Purchaser has the right to terminate this agreement for any reason. If
Purchaser does not give Seller written notice on or before September 5, 2003,
of Purchaser's election to terminate this Agreement and Purchaser intends to
keep this Agreement in effect, Purchaser shall deposit the second One Hundred
Thousand Dollar ($100,000.00) xxxxxxx money deposit with the Escrow Agent on
or before said ninetieth day. Upon deposit of the second xxxxxxx money
deposit, all xxxxxxx money shall become non-refundable, except as provided in
Article 5. From September 6 ,2003, through the end of the Inspection Period,
Purchaser shall have the right to terminate this agreement and the right to
receive a refund of all the xxxxxxx money only if Seller has not cured the
"Objections" set forth in Article 5 to Purchaser's reasonable satisfaction.
Regulatory approvals and zoning charges or variances are not conditions to
closing.
Seller shall, in all ways, fully cooperate with Purchaser in the pursuit
of the Governmental Approvals, including, without limitation, executing any
application necessary to obtain each and every Governmental Approval.
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Purchaser shall pursue the applications and processing to completion and
Seller shall execute all necessary and appropriate instruments reasonably
requested by Purchaser which are related to the same. Seller shall assist
with such inspection, shall execute such documents, and appear before the
appropriate regulatory commissions or boards, to apply for the permits and
zoning variances necessary to convert the Property from a golf course to
commercial retail and dense residential site, including the filling in of a
manmade pond; however, Seller shall not be obligated to incur any cost or
expense or to furnish any information other than at the place where same is
maintained in connection therewith. It is understood that no changes in
zoning shall be effective until closing. All information received by
Purchaser relating to the Project, Seller or its affiliates shall be kept in
strict confidence and used solely for the purpose of determining the
advisability of proceeding with the transaction described in this Agreement.
Seller will request the holder of the first deed of trust encumbering the
Property to approve the release of such encumbrance for an amount equal to the
Purchase Price less closing costs, commissions and prorations. If Seller is
unable to obtain such approval during the first sixty (60) days of the
inspection period, Seller has the right to terminate this Agreement in which
case Purchaser's Deposit shall be returned and neither party shall have any
obligation to the other. If such holder approves thereafter, but before
October 28, 2003, Seller shall promptly notify Purchaser and Purchaser may at
its option by notice to Seller within five (5) days after receipt of such
notice reinstate this Agreement by redepositing the initial Deposit with the
Escrow Agent and contemporaneously giving notice to Seller. The ninety (90)
day period shall resume and at the end thereof Purchaser shall make the second
Deposit, if it shall not have terminated this Agreement. Anything herein to
the contrary, the Closing shall occur on October 28, 2003.
ARTICLE 15
MISCELLANEOUS
15.1 This Agreement is binding upon and shall inure to the benefit of the
parties hereto, their respective heirs, successors, legal representatives and
permitted assigns.
15.2 Wherever under the terms and provisions of this Agreement the time
for performance falls upon a Saturday, Sunday or legal holiday, such time for
performance shall be extended to the second business day thereafter.
15.3 This Agreement may be executed in one or more counterparts, all of
which when taken together shall constitute one and the same agreement, and
shall become effective when one or more counterparts have been executed by
each of the parties hereto and delivered to each of the other parties hereto.
15.4 The captions at the beginning of the several paragraphs, Sections
and Articles are for convenience in locating the context, but are not part of
the context. Unless otherwise specifically set forth in this Agreement to the
contrary, all references to Exhibits contained in this Agreement refer to the
Exhibits which are attached to this Agreement, all of which Exhibits are
incorporated in, and made a part of, this Agreement by reference. Unless
otherwise _specifically set forth in this Agreement to the contrary, all
references to Articles, Sections, paragraphs and clauses refer to portions of
this Agreement.
15.5 If any term or provision of this Agreement shall be held to be
illegal, invalid, unenforceable or inoperative as a matter of law, the
remaining terms and provisions of this Agreement shall not be affected
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thereby, but each such remaining term and provision shall be valid and shall
remain in full force and effect.
15.6 This Agreement and the other writings referred to in, or delivered
pursuant to, this Agreement, embody the entire understanding and contract
between the parties hereto with respect to the Project and supersede any and
all prior agreements and understandings between the parties hereto, whether
written or oral, formal or informal, with respect to the subject matter of
this Agreement. This Agreement has been entered into after full investigation
by each party and its professional advisors, and neither party is relying upon
any statement, representation or warranty made by or on behalf of the other
which is not expressly set forth in this Agreement.
15.7 No extensions, changes, waivers, modifications or amendments to or
of this Agreement, of any kind whatsoever, shall be made or claimed by Seller
or Purchaser, and no notices of any extension, change, waiver, modification or
amendment made or claimed by Seller or Purchaser shall have any force or
effect whatsoever, unless the same is contained in a writing and is fully
executed by the party against whom such matter is asserted.
15.8 This Agreement shall be governed and interpreted in accordance with
the laws of the State of Mississippi.
15.9 Each party hereto shall pay all charges specified to be paid by them
pursuant to the provisions of this Agreement and their own attorney's fees in
connection with the negotiation, drafting and closing of this Agreement.
15.10 Purchaser warrants and represents to Seller that, subject to any
provisions hereof to the contrary, Purchaser has full power and authority to
enter into this Agreement and to perform all of Purchaser's obligations under
this Agreement, and that the person executing this Agreement on Purchaser's
behalf has been duly authorized and is empowered to bind Purchaser to this
Agreement.
15.11 Purchaser and Seller agree that this Agreement has been entered
into solely for the benefit of Purchaser and Seller and no other person or
entity, it being the intention of Purchaser and Seller that no person or
entity not a party to this Agreement shall have any right or standing to (a)
bring any action against Purchaser or Seller based on this Agreement, or (b)
assume that any provision of this Agreement will be enforced or remain
unmodified or unwaived, or (c) assert that it or he is or should be or was
intended to be a beneficiary of any provision of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement, effective
upon the last date of execution.
PRESIDENT XXXXXXXXXX HOTEL, LLC
By XXXXXXXXXX HOTEL, INC.,
Managing Member
Date: June 2, 2003
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
SELLER
A. D. JULDEN ENTERPRISES, LLC
Date: June 2, 2003
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, Managing Member
PURCHASER
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