EXHIBIT 10.30
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "AGREEMENT") is made this 9th
day of December, 2003, between Meritage Hospitality Group, Inc., a Michigan
corporation ("SELLER"), whose address is 0000 Xxxx Xxxxxxxx Xxx., X.X., Xxxxx
000, Xxxxx Xxxxxx, Xxxxxxxx 00000, and Xxxxxx X. Xxxxxxxx, Xx., a Michigan
resident ("PURCHASER"), whose address is 000 Xxxx, X.X., Xxxxx Xxxxxx, Xxxxxxxx
00000.
1. Purchase and Sale. For valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, Seller's 19% interest
in 0000 00xx Xxxxxx Associates, L.L.C., a Michigan limited liability company,
together with all rights, privileges, hereditaments and appurtenances thereunto
belonging or in any way appertaining, and all improvements and fixtures located
thereon, if any, (collectively, the "INTEREST"), on the terms, and subject to
all the conditions, contained in this Agreement. A copy of the Amended and
Restated Operating Agreement for 0000 00xx Xxxxxx Associates, L.L.C. is attached
hereto as EXHIBIT A.
2. Purchase Price. The purchase price for the Interest shall be
One Hundred Ninety Thousand Dollars ($190,000.00) (the "PURCHASE PRICE"). The
Purchase Price will be paid in cash (by check, money order or wire transfer) at
Closing (as defined below) upon execution and delivery of all documents
necessary to fully transfer and assign the Interest to Purchaser.
3. Survey, Title Insurance and Environmental Investigations. Any
survey, title insurance, environmental reports or other information needed to
investigate the Interest or the real estate and improvements underlying the
Interest, are the sole responsibility of the Purchaser. Any costs to obtain such
reports and information shall be at the sole cost of the Purchaser. Seller will
make copies of any existing documents that are in its possession available to
Purchaser upon execution.
4. Due Diligence. During the period that expires ten (10) days
after execution of this Agreement (this period hereinafter defined as the "DUE
DILIGENCE PERIOD"), Purchaser shall have the right to investigate all aspects of
the Interest.
5. Closing. The closing for Purchaser's purchase of the Interest
(the "CLOSING") shall take place within twelve (12) days after the end of the
Due Diligence Period, at a location and time to be agreed upon by the parties.
6. Conveyance. At Closing, Seller shall convey the Interest to
Purchaser by a fully executed Xxxx of Sale for the Interest, along with such
other documents and instruments as may be reasonably required to fully effect
and consummate the transaction contemplated by this Agreement.
7. Closing Costs. All closing fees or costs (if any) shall be
divided evenly between Seller and Purchaser.
8. Brokers. Both parties represent that they have not dealt with
a broker, realtor or agent in connection with this transaction. Each party
indemnifies and holds the other party harmless from all loss, cost and expense
(including reasonable attorneys' fees) arising out of a breach of the
representations or undertaking set forth in this Paragraph.
9. Contingencies Relating to Purchaser. Purchaser's obligation to
consummate the transactions described in this Agreement is subject to
satisfaction of the following conditions.
(a) The representations and warranties of Seller
contained herein shall be accurate in all material
respects as of Closing.
(b) Seller shall have observed and performed all of the
obligations contained in this Agreement.
(c) No action, suit or proceeding before any court or
other governmental authority shall be pending or
threatened wherein an unfavorable judgment or outcome
would prevent the carrying out of this Agreement or
any of the transactions described herein.
If any of the preceding cannot be obtained at a cost or within a time period
that is acceptable to Purchaser, then Purchaser shall have the right to
terminate this Agreement by written notice to Seller given at any time prior to
the expiration of the Due Diligence Period. Immediately upon Seller's receipt of
such notice of termination, this Agreement shall be null and void (except as
expressly set forth herein). Purchaser shall have the right to waive any or all
of the foregoing obligations.
11. Contingencies Relating to Seller. Seller's obligation to
consummate the transactions described in this Agreement is subject to
satisfaction of the following conditions.
(a) The representations and warranties of Purchaser
contained herein shall be accurate in all material
respects as of Closing.
(b) Purchaser shall have observed and performed all of
the obligations contained in this Agreement.
(c) At Closing, Purchaser shall obtain a full and
complete discharge, termination and release of
Seller's Guaranty under the Loan Agreement, Note,
Mortgage and related documents all dated June 27,
2003, between 0000 00xx Xxxxxx Associates, L.L.C. (as
borrower) and Mercantile Bank Mortgage Company (as
lender).
(d) At Closing, Purchaser shall obtain a full and
complete discharge and release of Seller as a Member
of 0000 00xx Xxxxxx Associates, L.L.C., such that no
liabilities to 0000 00xx Xxxxxx Associates, L.L.C.
remain.
(e) No action, suit or proceeding before any court or
other governmental authority shall be pending or
threatened wherein an unfavorable judgment or outcome
would prevent the carrying out of this Agreement or
any of the transactions described herein.
If any of the preceding cannot be obtained at a cost or within a time period
that is acceptable to Seller, then Seller shall have the right to terminate this
Agreement by written notice to Purchaser given at any time prior to the
expiration of the Due Diligence Period. Immediately upon Purchaser's receipt of
such notice of termination, this Agreement shall be null and void (except as
expressly set forth herein). Seller shall have the right to waive any or all of
the foregoing obligations.
12. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller the truth and accuracy of each of the
following:
(a) Purchaser has all requisite power and authority to
enter into this Agreement and to perform its
obligations hereunder.
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(b) Purchaser shall make a good faith effort to satisfy
all conditions to Closing.
(c) Purchaser shall indemnify and hold Seller, and its
beneficiaries, employees, directors, officers,
shareholders, agents, subsidiaries, affiliated
companies, successors and assigns, harmless from and
against any claims, proceedings, demand, judgments,
awards, penalties, liabilities, suits, settlements,
damages, losses, fines, costs and expenses of any
nature whatsoever, including reasonable attorneys'
fees, arising out of or in any way related to a
breach of any of the aforesaid representations. The
indemnity obligations provided in this Paragraph
shall survive the execution of this Agreement.
13. Representations and Warranties of Seller. Seller represents
and warrants to Purchaser the truth and accuracy of each of the following:
(a) Seller has all requisite power and authority to enter
into this Agreement and to perform its obligations
hereunder. Seller has not entered into any contract
(other than this Agreement) whereby the Interest may
be sold, conveyed, assigned or otherwise disposed of.
(b) Seller shall make a good faith effort to satisfy all
conditions to Closing.
(c) Seller represents and warrants to Purchaser that, as
of the date of this Agreement, Seller alone owns the
Interest, free and clear of any restrictions or
limitations. Prior to Closing, Seller shall not, by
act or omission, permit any change to occur in the
status of the Interest. Notwithstanding the
foregoing, Purchaser acknowledges that the real
estate underlying the Interest is encumbered by a
$2,404,147.17 first mortgage to Mercantile Bank
Mortgage Company, of which the Seller has guaranteed
$535,000 of such loan.
(d) Seller shall indemnify and hold Purchaser, and its
beneficiaries, employees, directors, officers,
shareholders, agents, subsidiaries, affiliated
companies, successors and assigns, harmless from and
against any claims, proceedings, demands, judgments,
awards, penalties, liabilities, suits, settlements,
damages, losses, fines, costs and expenses of any
nature whatsoever, including reasonable attorneys'
fees, arising out of or in any way related to a
breach of any of the aforesaid representations. The
indemnity obligations provided in the Paragraph shall
survive the execution of this Agreement.
14. Performance. Time is of the essence in this Agreement. If
either party defaults in the due observance or performance of its obligations
hereunder, the other party may (i) terminate this Agreement, (ii) seek specific
performance, and (iii) pursue whatever other legal or equitable remedies which
may be available.
15. Entire Agreement, Amendments, and Waivers. This Agreement, and
all exhibits thereto, contain the entire agreement and understanding of the
parties, supersede all prior oral or written agreements (if any) between the
parties, and may not be amended or modified except by written consent of both
parties.
16. Further Assurances. The parties each agree to execute,
acknowledge, deliver and do all such further acts, instruments, and assurances,
and to take all such further action before or after the Closing as shall be
necessary or desirable to fully carry out this Agreement and to fully consummate
and effect the transactions contemplated hereby.
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17. Interpretation.
(a) The headings and captions herein are inserted for convenient
reference only and the same shall not limit or construe the
paragraphs or sections to which they apply or otherwise affect
the interpretation hereof.
(b) This Agreement and any document or instrument executed
pursuant hereto may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan.
(d) The obligations of the parties shall survive the Closing.
18. Notices. All notices hereunder shall be in writing and either
delivered personally, by facsimile, or by documentable delivery (such as
overnight or express mail delivery like Federal Express) to the address
specified on the first page, or to such other address as a party may designate
from time to time by giving notice in accordance with this Paragraph. Any such
notice shall be deemed given on the date of such delivery.
19. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
20. Third Parties. There are no third-party beneficiaries to this
Agreement.
21. Expiration of Agreement. The parties agree that if they fail
to execute and deliver this Agreement by 5:00 p.m. on December 10, 2003, then
this Agreement, along with the offer, terms and conditions contained herein,
shall be null and void.
This Agreement has been executed and delivered on behalf of Seller and
Purchaser to be effective as of the date first set forth above.
SELLER PURCHASER
MERITAGE HOSPITALITY GROUP INC.
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
---------------------------------- ----------------------------------
Vice President Xxxxxx X. Xxxxxxxx, Xx.
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FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
This is the First Amendment to the Purchase and Sale Agreement dated
December 9, 2003 (the "AGREEMENT") between Meritage Hospitality Group Inc., a
Michigan corporation ("SELLER"), whose address is 0000 Xxxx Xxxxxxxx Xxx., X.X.,
Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxx 00000, and Xxxxxx X. Xxxxxxxx, Xx., a Michigan
resident ("PURCHASER"), whose address is 000 Xxxx, X.X., Xxxxx Xxxxxx, Xxxxxxxx
00000.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is
hereby acknowledged, the parties agree to the following amendment to the
Agreement:
1. In order to provide for additional time to satisfy Purchaser's
contingencies, Paragraph 5 of the Agreement is amended such that the Closing
shall take place on or before January 30, 2004.
2. All remaining terms and conditions of the Agreement shall remain in
full force and effect.
This First Amendment has been executed and delivered on behalf of
Purchaser and Seller to be effective on the date set forth below.
SELLER PURCHASER
MERITAGE HOSPITALITY GROUP INC.
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
---------------------------------- ----------------------------------
Vice President Xxxxxx X. Xxxxxxxx, Xx.
Dated: December 31, 2003 Dated: December 31, 2003
