Exhibit 10.41
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), made
effective as of the 18th day of April, 2003, by and between JANUS HOTELS AND
RESORTS, INC., a Delaware corporation, having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Seller"), and JAGI SUBSIDIARY, INC., a Delaware
corporation, having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
("Purchaser").
WHEREAS, Seller is the sole member of each of the following,
all Delaware limited liability companies (collectively, the "Companies"): (i)
JAGI Elbe, LLC, (ii) JAGI BWKQ, LLC, (iii) JAGI Kings Quarters, LLC, (iv) JAGI
Sharonville, LLC, and (v) JAGI North Canton, LLC; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser
desires to purchase from Seller all of Seller's interest, as a member, in the
Companies; 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 Membership Interests. 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 as a member in the Companies (the "Membership
Interests").
1.2 Purchase Price and Payment. The purchase price for the
Membership Interest shall be Thirteen Million Two Hundred Forty Two Thousand
Thirty Two Dollars ($13,242,032.00) (the "Purchase Price"), which amount
reflects the aggregate net cash equity values of the hotel properties owned
directly or indirectly by the Companies, all as more fully described in the
chart attached hereto as Exhibit A. The Purchase Price shall be payable upon
Closing to Seller by the issuance to Seller of 13,242.032 shares of Purchaser's
Preferred Stock, Series A (the "Preferred Stock").
Section 2. Closing
2.1 Closing. The closing of the purchase and sale of the
Membership Interests contemplated by this Agreement shall take place upon the
execution of this Agreement (the "Closing").
2.2 Closing Deliveries. At the Closing, Seller shall deliver
to Purchaser Assignments of Membership Interest, duly executed by Seller, which
shall transfer to Purchaser good title to the Membership Interests, free and
clear of all claims, liens, security interests, charges, or other encumbrances
of any nature whatsoever. Upon Closing, Purchaser shall deliver to Seller a
certificate representing the Preferred Stock.
2.3 Legend. Each certificate or document representing the
Preferred Stock issued pursuant to this Agreement shall be imprinted with, among
others, a legend substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAW. THE SECURITIES MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933
OR ANY APPLICABLE STATE.
Section 3. Representations and Warranties of Seller.
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Exhibit 10.41
Seller hereby represents and warrants to Purchaser, knowing
and intending that Purchaser is relying hereon in entering into this Agreement,
that:
3.1 Membership Interests. Seller is the lawful owner of each
of the Membership Interests as the sole member of each of the Companies. Each
Membership 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 Membership Interest. No
third party has a right to claim a membership or other equity interest in any of
the Companies. Each of the Companies is a limited liability company, duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
3.2. Due Formation. Seller is a corporation duly organized,
validly existing and in good standing 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.
3.3 Authority. Seller has taken all necessary action to
authorize the transfer and delivery to Purchaser of the Membership Interests 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, except for consents which have been obtained.
3.5 Company Assets. The respective Companies own the
following:
(a) In the case of JAGI Elbe, LLC: 100% of the outstanding
stock of Beckelbe, Inc. and a 98% membership interest in Beckelbe, Ltd.;
(b) In the case of JAGI BWKQ, LLC: 100% membership interest in
JAGI Doswell LLC;
(c) In the case of JAGI Kings Quarters, LLC: 85% general
partnership interest in Kings Dominion Lodge, a Virginia general partnership;
(d) In the case of JAGI Sharonville, LLC: title to that
certain hotel property known as the Days Inn Sharonville; and
(e) In the case of JAGI North Canton, LLC: title to that
certain hotel property known as the Holiday Inn North Canton.
Section 4. Representations and Warranties of Purchaser.
Purchaser hereby represents and warrants to Seller, that:
4.1 Due Organization. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Prior to the date hereof, Purchaser has engaged in no business.
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
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Exhibit 10.41
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.
4.3 Purchase for Investment. Purchaser is acquiring the
Membership Interests for its own account and not with a view to distribution of
the Membership Interests. Purchaser has been afforded the opportunity to ask
questions of, and receive answers from Seller regarding the Companies and their
respective assets and businesses. Purchaser has been furnished with all
information and all documents that it has requested pertaining thereto.
4.4 Preferred Stock. The Preferred Stock represents legally
issued, fully paid and non-assessable capital stock of Purchaser.
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. Condition Precedent.
It is a condition precedent to Seller's obligations under this
Agreement that ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall have (i) purchased an
aggregate of 3,520.032 shares of the Common Stock of Purchaser in exchange for
cash in the aggregate amount of $35.20 and the delivery of promissory notes in
the aggregate principal amount of $3,519,996.80 and (ii) agreed to take all
actions as controlling stockholders of Seller and a stockholder of Purchaser to
cause Purchaser to have a Board of Directors comprised of the same individuals
who serve on Seller's Board of Directors.
Section 7. 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 8. 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 9. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
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Exhibit 10.41
Section 10. 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 11. 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 12. 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 13. 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 14. 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 15. 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.
[This Space Intentionally Left Blank]
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Exhibit 10.41
IN WITNESS WHEREOF, each party hereto has executed this
Purchase and Sale Agreement as of the day and year first above written.
PURCHASER:
JAGI SUBSIDIARY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice Chairman of the Board
SELLER:
JANUS HOTELS AND RESORTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman of the Board
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