EXHIBIT 2.3
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made and entered into
on this May 8, 1998 by and between Epic Resort, Inc., a Delaware corporation
(hereinafter referred to as "Purchaser") and Westpark II Partnership, L.L.C.
(hereinafter referred to as "Seller").
RECITALS
Seller is the owner of a 153 apartment complex ("Apartment Complex")
known as the Westpark Phase II which is located at 0000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxxx, Xxxxxx 00000 the legal description of which is set
forth on Exhibit "A" attached hereto and made a part hereof (hereinafter
referred to as the "Land").
Seller has agreed to sell, and Purchaser has agreed to purchase, the
Land, including the Apartment Complex and all other improvements thereon, and
all other property associated therewith, for the price and on the terms and
conditions as more specifically set forth below.
NOW, THEREFORE, for and in consideration of the above stated premises
and other good and valuable considerations, the receipt and sufficiency of
which is hereby acknowledged; the parties hereto agree as follows:
1. PURCHASE AND SALE. Seller agrees to sell to Purchaser and
Purchaser agrees to purchase from Seller, upon all of the terms, covenants
and conditions hereinafter set forth, the following:
(a) The Land;
(b) The Apartment Complex, including, without limitation, the
buildings, parking areas, sign structures and other structures and
improvements on the Land (collectively referred to as the "Improvements");
(c) All furniture, furnishings, supplies, equipment and fixtures,
carpeting, inventory, appliances, water fountains, elevators and all other
tangible personal property of any type which is located on the Land and/or is
used or useful in connection with any business operations of the improvements
thereon, or the repair and maintenance of the Land and Improvements, all of
which are collectively referred to as the "Personal Property." A list of the
personal property is attached as Exhibit __;
(d) Easements and all other rights appurtenant to the Land
including, without limitation, easements and rights-of-way for access,
drainage, water, utilities and other purposes incident to the use of the Land
and Improvements (collectively referred to as the "Appurtenances");
(e) All rights of the Seller in all building permits, certificates
of occupancy and other permits, licenses, governmental approvals, and
agreements which have been or are being utilized in connection with the
ownership, operation, and maintenance of the Land and Improvements
(collectively referred to as the "Licenses and Permits");
(f) Leases, tenancy agreements (but excluding any employment
contracts) which exist with respect to the ownership, operation and
maintenance of the Land, Personal Property and Improvements (collectively
referred to as the "Leases and Contracts");
(g) Seller and Purchaser will mutually agree on the usage of the
name "Westpark" as well as any logos, signs, trademarks and other rights
relating to said name, telephone number(s). The Improvements and all
intangible personal property used or useful in the operation, repair and
maintenance of the Land, Improvements and Personal Property (collectively
referred to as the "Intangible Property");
(h) All records concerning the operation of the Property
including, but not limited to accounting books and records applicable thereto
(collectively referred to as the "Records");
(i) All architectural drawings of the Improvements and plans and
specifications (e.g., including, but not limited to structural, electrical,
plumbing, landscaping, etc.) utilized in the development of the Land and
construction of the Improvements (collectively referred to as the "Plans").
This is subject to the ownership of the above items by Seller;
(j) All manufacturers, sales and service warranties applicable to
the Land, Personal Property and Improvements (collectively referred to as the
"Warranties").
For purposes of this Agreement, the conveyance of the foregoing property
shall be deemed to be all inclusive and no Land, Improvements, Personal
Property, Appurtenances, Licenses and Permits, Leases and Contracts,
Intangible Property, Records, Plans and Warranties (collectively referred to
herein as the "Property") shall be excluded, except as may be excluded by
written consent of the Purchaser.
2. PURCHASE PRICE.
(a) The total purchase price ("Purchase Price") for the Property
shall be Fifteen Million Nine Hundred Sixty Thousand ($15,960,000) Dollars
payable in good funds by wire transfer at Closing as hereafter defined.
(b) Out of the Purchase Price, as a condition to the Closing, the
Seller shall pay and/or satisfy all obligations which are liens and
encumbrances against the Property, including without limitation the following:
(i) current and delinquent real estate taxes on the Property;
and
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(ii) all outstanding local and state tax obligations relating
to the Property.
Purchaser assumes no liabilities, mortgages, obligations or indebtedness
relating to the Property. All liabilities, mortgages, obligations or
indebtedness which are, or can, with the passage of time, become a lien or
encumbrance on the Property or which otherwise relate to or can affect the
Property shall be satisfied in full by Seller on or before the date of
Closing.
(c) Within five (5) days after execution of this Agreement by both
parties, Purchaser will deposit with United Title of Las Vegas, Nevada (the
"Escrow Agent"), the sum of One Hundred Fifty Thousand ($150,000.00) to serve
as an escrow deposit and to secure Purchaser's performance hereunder. The
One Hundred Fifty Thousand Dollars is hereafter referred to as the "Deposit."
The Deposit shall be held in an interest bearing account with a commercial
bank or savings and loan association with all earnings to accrue to
Purchaser's benefit, unless Seller retains the Deposit as a result of a
default by Purchaser hereunder in which event the Deposit, together with
interest thereon, shall be paid to Seller. The Deposit shall be paid to
Seller and credited to Purchaser against the Purchase Price, at Closing.
3. INSPECTION RIGHTS OF PURCHASER. From the date this Agreement is
executed through the Closing Date, Purchaser shall have the right to inspect
all of Seller's records and documents relating to the ownership, construction
and condition of the Property, and to physically inspect the Property,
including any environmental, asbestos and radon testing, and to otherwise
satisfy itself as to the acceptability of the Property for Purchaser's
intended use. Purchaser and Purchaser's agents shall have the right of
ingress and egress to the Property for the inspections contemplated herein.
If for any reason the condition of the Property is not satisfactory to
Purchaser, in Purchaser's sole discretion, Purchaser may terminate this
Agreement by sending written notice of termination to the Seller within
thirty (30) days of the date this Agreement is executed by both Purchaser and
Seller ("Due Diligence Period"), whereupon the Deposit with all interest
shall be returned to Purchaser and the parties shall thereafter have no
further responsibilities or obligations to each other.
4. CONDITION OF TITLE.
(a) At Settlement, Seller shall convey to Purchaser by special
warranty deed good and marketable fee simple title to the Land and title to
the other Property by a Xxxx of Sale by an Assignment of Contracts and
Warranties. Title to the Land shall further be (i) free and clear of all
liens, restrictions, easements, encumbrances, claims or liens by contractors,
subcontractors, mechanics and materialmen, leases [except as permitted in 4(c)],
tenancies and other title objections except for those listed on Schedule 4(a)
attached (the "Permitted Exceptions"); and (ii) insurable as aforesaid at
ordinary rates by any reputable title insurance company licensed to do business
in the State of Nevada. Title to the Property other than the Land shall be
conveyed free of all security interests, debts and claims by third parties.
(b) If title to the land cannot be conveyed to Purchaser at the
time of Settlement in accordance with the requirements of this Agreement,
then Purchaser shall have the option of:
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(i) taking such title as Seller can convey without
abatement of the Purchase Price provided, however, that if there are liens,
encumbrances, defects or other objections to title (other than the Permitted
Exceptions) which are or have been or reasonably can be reduced to a monetary
amount, Seller shall pay and discharge same and shall deliver to Purchaser at
Closing all instruments, in recordable form, sufficient to satisfy of record
such liens, encumbrances, defects or other objections to title together with
the cost of recording or filing said instrument; or
(ii) terminating this Agreement by giving written notice to
Seller, in which case the Deposit and all Interest earned thereon shall be
returned to Purchaser whereupon, neither party shall have further rights,
liabilities or obligations hereunder. Nothing contained herein shall
preclude Purchaser from maintaining an action for specific performance and/or
damages against Seller for a breach of this Agreement, if title to the
Property cannot be conveyed by Seller to Buyer at Closing in accordance with
the requirements of this Agreement by reason of Seller's affirmative act or
intentional omission with respect only to those matters set forth in 4(c)
below resulting in a failure to comply with any term, covenant, condition or
provision contained herein relating to the condition of title.
(c) Seller warrants that at all times while this Agreement remains
in effect, Seller will not, except to the extent specifically set forth
herein, (i) execute any easements, covenants, conditions, restrictions, or
rights-of-way with respect to the Land; (ii) mortgage or encumber the Land;
(iii) enter into any recorded or unrecorded contracts or leases with respect
to the Land; (iv) lease more than fifty five apartments contained in the
Apartment Complex; (v) execute any lease for an apartment in the Apartment
Complex for a term in excess of six months; (vi) seek any zoning changes or
other governmental approvals with respect to the Land; or (vii) do, or
voluntarily permit to be done, anything which would adversely affect the
condition of title to the Land from and after the date of this Agreement
through the completion of Settlement.
5. SURVEY. If Seller does not have a current ALTA survey of the
Property available, Purchaser may, obtain, at Purchaser's expense, a current
survey of the Property, prepared and certified by a duly licensed land
surveyor acceptable to Purchaser. Seller will cooperate with Purchaser in
obtaining a survey.
6. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller and each of its
partners, hereby make the representations and warranties set forth in this
Section 6. All of Seller's representations and warranties shall be true and
correct, as of the date of closing, shall be deemed ratified by Seller's act
of Closing, and any Schedules, documents or information to be furnished by
Seller shall be updated and furnished to Purchaser at Closing. From and
after the date of this Agreement, and until Closing, Seller shall not take
any action or make any admission, which would have the effect of violating
any of the representations or warranties of Seller contained in this
Agreement. The delivery and disclosure of any Schedule, document or
information by Seller shall constitute Seller's and its partners' certificate
and warranty that the same, and all information reflected therein, are
completely accurate and current in all respects. All of the warranties and
representations of Seller and its partners shall survive closing and the
conveyance of the Property to Purchaser.
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(a) The execution of this Agreement and the fulfillment of
Seller's obligations hereunder shall not constitute or result in a breach of
any term or provision of any existing mortgage, lease or other agreement to
which Seller is a party or by which Seller is bound. All persons or entities
whose joinder in the Deed would be necessary to convey title to Buyer
hereunder have been identified herein as "Seller." This Agreement and all
other instruments and documents to be executed and delivered by Seller to
Purchaser hereunder or pursuant hereto have been or will be duly executed and
delivered by Seller and constitute (or will constitute, as to those
instruments and documents to be executed and delivered) the legal, valid and
binding obligations of Seller and enforceable against Seller in accordance
with their respective terms.
(b) Seller has received no written official notice, nor any
informal written or oral notice of any contemplated condemnation proceedings
against the whole or any part of the Property.
(c) There are no current violations of any building, zoning or
other requirements of any applicable governmental authority affecting the
Property.
(d) Seller has no knowledge of any fact or condition which would
result in the termination or reduction of the current access from the Land
and Improvements on existing public streets; and Seller has no knowledge of
any proposed road widening or other construction activity within the vicinity
of the Land.
(e) Seller has no knowledge of any latent or patent defect or
design deficiency in the foundation, structure, roof, paved areas or
mechanical systems of the Improvements, including, without limitation, the
heating, ventilation and cooling systems, the electrical system, the plumbing
system or the elevators.
(f) There are no lawsuits presently pending nor have any lawsuits
been threatened concerning the Property or any portion thereof, or Seller's
title or right to convey the Property or any portion thereof hereunder, nor
has Seller any knowledge of any claims or liens existing or threatened
against the Property or any part thereof, other than those filed of record
prior to the execution date of this Agreement.
(g) Seller is in sole and undisputed possession of the Property
and no other person or entity is entitled to possession of all or any portion
of the Property. There are no leases with respect to the Property other than
the leases set forth on Schedule 6(g).
(h) There are no other contracts, leases, agreements,
understandings or other obligations existing with respect to the Property or
any portion thereof, other than as are reflected in this Agreement and the
schedules and other information to be furnished hereunder.
(i) No person, firm, corporation, or other entity has any right or
option to acquire the Property, or any part thereof.
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(j) Seller has received no notice and has no knowledge of any
pending liens, increased assessments or tax rates, or any special assessments
to be made against the Property by governmental authority.
(k) Seller is current in all sales and use tax obligations
relating to the Property.
(l) Seller is neither a "foreign person" nor "foreign corporation"
as those terms are defined in the United States Internal Revenue Code, as
amended, and Seller shall ratify this warranty by affidavit at the time of
closing.
(m) Public water, public sanitary sewer, electricity, and
telephone services have been installed to the Improvements through
appropriate easements.
(n) Except as disclosed on Schedule 6(n):
(i) To the best of Seller's knowledge, the Land and
Improvements ("Premises") do not contain any Hazardous Materials.
(ii) To the best of Seller's knowledge, there are no
underground or above-ground storage tanks on or under the Premises, and
Seller has no knowledge of the removal of any underground or
above-ground storage tanks from the Premises.
(iii) To the best of Seller's knowledge, there are no
transformers containing or contaminated with Hazardous Materials on the
Premises, and Seller has no knowledge of the removal of any such
transformers from the Premises.
(iv) Seller has not engaged in or permitted any Hazardous
Materials Use in, at, under, or in connection with the Premises nor, to
Seller's knowledge, has any previous owner or tenant of the Premises
engaged in or permitted any Hazardous Materials Use in, at, under, on or
in connection with the Premises.
(v) Seller has not received notice or actual knowledge of:
(1) any claim, demand, investigation, enforcement, response, removal,
remedial or other governmental or regulatory action instituted or
threatened, against Seller or the Premises pursuant to any Hazardous
Materials Law; (2) any claim, demand, suit or action made or threatened
by any person against Seller or the Premises relating to any form of
damage, loss or injury resulting from or claimed to result from, any
Hazardous Materials on, about, beneath or arising from the Premises or
any alleged violation of any Hazardous Materials Law; and (3) any
communication to or from any governmental or regulatory agency arising
out of or in connection with Hazardous Materials on, about, beneath,
arising from or generated at the Premises, including without limitation,
any notice of violation, citation, complaint, order directive, request
for information or response thereto, notice letter, demand letter or
compliance schedule. If discovered prior to Settlement, Seller shall
immediately advise Buyer of any of the claims or communications listed
in clauses (1) through (3) above and also shall immediately advise Buyer
of the discovery of any Hazardous Materials on, about, beneath, or
arising from the Premises or the discovery of any conditions on, arising
from the Premises or the discovery
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of any condition on, about, beneath, or arising from the Premises which
might give rise to liability, the imposition of a statutory lien or
require response, removal or remedial action under any Hazardous
Materials Law.
(vi) As used, in this Agreement, "Hazardous Materials" shall
mean (i) asbestos in any form; (ii) urea formaldehyde foam insulation;
(iii) transformers or other equipment which contain dialectic fluid
containing levels of polycholorinated biphenyls (PCB's) in excess of 50
parts per million; (iv) lead paint; (v) any substance or residual deemed
hazardous or toxic, or required to be disclosed, reported treated
removed, disposed of or cleaned up by any applicable Hazardous Materials
Law, and (vi) any other substance residual or material to which exposure
is prohibited, limited or regulated by any federal, state or local
authority, or which, even if not so regulated, is known to pose a hazard
to the health and safety of the occupants of the Premises or of property
adjacent to the Premises.
(vii) As used in this Agreement, "Hazardous Materials Law"
shall mean a federal, state, or local statute, law, ordinance, code,
regulation, rule, order or decree (whether by court or by a governmental
or quasi-governmental entity or agency having authority), in effect on
the date hereof or hereafter enacted promulgated or issued.
(viii) As used in this Agreement, "Hazardous Materials Use"
shall mean activities involving, directly or indirectly, the
manufacture, leak, spill, emission, deposit, discharge, release, use,
transportation, generation, treatment, storage, disposal or handling of
Hazardous Materials.
7. CLOSING. Closing shall be held on or before June 30, 1998. The
exact date and time of Closing shall be designated by Purchaser on not less
than five (5) days notice (which for purposes hereof may be verbally
communicated by Purchaser's counsel to Seller's counsel). Closing shall take
place at the office of Escrow Agent at United Title of Las Vegas, Nevada (the
"Closing").
8. CLOSING DOCUMENTS.
(a) At the Closing, Seller shall execute and/or deliver the
following documents all in form and content acceptable to Purchaser:
(i) A Statutory Warranty Deed free and clear of all
mortgages, liens and encumbrances and subject only to the Permitted
Exceptions;
(ii) Xxxx of Sale for all Personal Property;
(iii) An assignment of Seller's right, title and interest in
and to all Appurtenances, Licenses and Permits, those Leases and
Contracts which Purchaser has elected to assume, Intangible Property,
Records, Plans and Warranties;
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(iv) An Affidavit reciting that there are no contractor's
liens against the Land and that, within the past ninety (90) days, there
have been no improvements, alterations or repairs for which the costs
thereof remain unpaid, with the exception of anything caused by
Purchaser; that, except as previously disclosed to Purchaser, the Land
is free and clear of all liens, taxes, encumbrances and claims
whatsoever, with the exception of real estate taxes for the year of
closing; that there are no parties in possession or with a right or
claim to possession; and that affiant has received no notice of any
violations of County or municipal ordinances pertaining to the Property;
(v) A Standard FIRPTA affidavit acknowledging that Seller
is not a "foreign person" as defined and set forth in Section 1445 of
the Internal Revenue Code (or, in the event Seller is a "foreign
person," providing Purchaser with sufficient information for Purchaser
to comply with the withholding requirements thereof);
(vi) A standard "gap" affidavit in the form required by the
title company issuing a title insurance policy to Purchaser;
(vii) Appropriate certificates or resolutions of authority
confirming the authority of the individual(s) executing the closing
documents; and
(viii) Such other and further documents as may be reasonably
appropriate to consummate the transaction in accordance with the
provisions of this Agreement.
(b) At the Closing, Purchaser shall pay Seller the Purchase Price
and execute and/or deliver such documents as may be reasonably appropriate to
consummate the transaction in accordance with the provisions of this
Agreement.
9. ACCESS; CONDUCT PRIOR TO CLOSING.
(a) At all times prior to Closing, Purchaser shall have complete
access to the Property for any purpose deemed necessary or appropriate by
Purchaser, provided that Purchaser shall not damage the Property or interfere
with the conduct of business thereon, and shall indemnify Seller for any loss
or damages thereby caused.
(b) Prior to Closing, Seller shall not enter into any new
contracts or other agreements affecting the Property without obtaining the
prior written consent of Purchaser. Seller agrees to finish construction of
the Improvements in accordance with the Plans and obtain a Certificate of
Occupancy for the Improvements, prior to Closing. Seller shall also
continuously maintain every part of the Property in good condition, ordinary
wear and tear excepted, and to continue the conduct of business therein, in
accordance with a standard of operation and quality consistent with present
condition of the Property. Seller further agrees to maintain all existing
insurance in place through the date of Closing.
10. CONDITIONS TO CLOSING.
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(a) Purchaser's obligation to close shall be subject to the
satisfaction, in advance of Closing, of the following:
(i) All of the representations and warranties of Seller set
forth in this contract shall be true and correct in all respects on and
as of the date of closing as though made at that time.
(ii) Seller shall have performed, satisfied and complied
with all of the covenants, agreements, and conditions required by this
contract to be performed or complied with by it on or before the date of
Closing, including, without limitation, the completion of the
construction of the Improvements in accordance with the Plans and the
obtaining of a Certificate of Occupancy for the Improvements.
(iii) Seller shall not be in receivership or dissolution or
have made any assignment for the benefit of creditors or admitted in
writing its inability to pay its debts as they mature or have been
adjudicated as bankrupt or have filed a petition in voluntary bankruptcy
or a petition or answer seeking reorganization under the Bankruptcy Act
or any other similar law or statute of the United States or any state,
and no such petition shall have been filed against it.
(b) Seller's obligation to close shall be subject to the
satisfaction, in advance of Closing, of the following:
(i) All of the representations and warranties of Purchaser
set forth in this contract shall be true and correct in all respects on
and as of the date of closing as though made at that time.
(ii) Purchaser shall have performed, satisfied and complied
with all of the covenants, agreements, and conditions required by this
contract to be performed or complied with by it on or before the date of
Closing.
(iii) Purchaser shall not be in receivership or dissolution
or have made any assignment for the benefit of creditors or admitted in
writing its inability to pay its debts as they mature or have been
adjudicated as bankrupt or have filed a petition in voluntary bankruptcy
or a petition or answer seeking reorganization under the Bankruptcy Act
or any other similar law or statute of the United States or any state,
and no such petition shall have been filed against it.
(iv) Purchaser will negotiate an agreement with Seller with
terms satisfactory to Purchaser regarding the leasing of a building
currently under construction adjacent to the Land which will be used as
sales and administration offices.
11. CLOSING EXPENSES. Purchaser shall be responsible for payment, at
Closing, of the following: the costs of recording the Deed; title insurance
premium; documentary stamps, including any local surtax, applicable to the
Deed. Seller shall be responsible for payment, at Closing, of the costs of
recording any corrective instruments and any transfer taxes.
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12. PRORATIONS AND ADJUSTMENTS. The following shall be prorated and
adjusted as of the date of Closing:
(a) Real and personal property taxes shall be prorated based upon
the current year's tax with due allowance made for the maximum allowable
discount and exemptions if allowed for said year. If the current year's
assessment is not available, then taxes will be prorated based upon the tax
assessment for the Property for the immediately preceding year, with due
allowance made for the maximum allowable discount and exemptions if allowed
for said year. The tax proration shall be subsequently readjusted upon
receipt of the actual tax xxxx within ten (10) days after written request of
either party hereto. This provision shall survive the termination of this
Agreement and the conveyance of the Property to Purchaser.
(b) Certified governmental liens or special assessment liens, if
any, will be paid by the Seller. Pending governmental liens, if any, will be
assumed by the Purchaser unless the improvement for which the lien has been
levied has been substantially completed as of the date of Closing, in which
event Seller shall pay for such pending liens.
(c) Security deposits, if any, from tenant's leases and other
contracts, deposits, including advance booking deposits, prepaid rent and
escrows held in connection with tenancies of the Property shall be
transferred to Purchaser.
(d) Rents and other revenues shall be prorated. Proration of rents
shall be of those actually received and Purchaser shall be entitled to all
rents and other income accruing from and after the date of Closing. Any
rentals or other sums due Seller before closing, but not yet collected as of
the date of Closing, shall be Seller's exclusive responsibility to collect.
(e) All utility charges, including but not limited to, telephone
service, gas, water and sewer, and electric power shall be prorated as of the
date of Closing. At least ten (10) days prior to Closing, Seller shall
notify all utilities servicing the Property of the contemplated change in
ownership, and direct that current xxxxxxxx for services rendered up to the
date of Closing be directed to Seller and that all future xxxxxxxx for
services rendered on or after the Closing Date be directed to Purchaser with
no interruption of service. Such notice shall be provided in writing and
copies of same furnished by Seller to Purchaser. Only deposits, standby
charges and other prepayments which may be assignable and are assigned to
Purchaser shall be paid for by Purchaser at Closing. Non-assignable deposits
and other charges shall be refunded to Seller and replaced by Purchaser with
appropriate adjustment to the proration.
(f) All other income, receivables, claims and rights to revenue
derived from the Property accruing or relating to the period up to the date
of Closing shall belong to the Seller and it shall be Seller's exclusive
responsibility to collect same if it has not done so by Closing. All other
income relating to the Property shall be paid to the Purchaser.
(g) Insurance premiums relating to the Property shall be prorated
if Purchaser elects to assume such Insurance.
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(h) Any unpaid operating expenses incurred during the month of
Closing shall be prorated; provided that Purchaser's responsibility shall not
exceed $5,000.
13. EMPLOYEES. On or after closing, Purchaser will not solicit
Seller's employees to change their employment without prior written consent
of Seller; provided however, that Purchaser shall not assume any payroll or
payroll tax obligations of Seller or the cost of any employee benefits which
may be afforded by Seller to its employees. Notwithstanding the foregoing,
Purchaser acknowledges that all employees of Seller are employees at will,
without written employment agreements, and without any collective bargaining
agreements and that Seller can make no representation or warranty that any
one or more of their existing employees will accept or continue employment
with the Seller.
14. RISK OF LOSS; POSSESSION. Risk of loss shall remain with Seller
pending completion of the Closing. Seller shall deliver possession of the
Property to Purchaser at Closing. If the Property, or any portion thereof,
is damaged by fire or other casualty prior to Closing, Purchaser shall have
the option of either taking the Property as damaged, together with either a
credit against the cash to close in the amount of any insurance proceeds
payable by virtue of such loss or damage, or of canceling this Agreement and
receiving a return of the Deposit, together with any interest earned thereon.
15. INDEMNIFICATION. Seller, and each of its partners, shall indemnify
Purchaser and hold and save Purchaser harmless of and from any and all loss,
cost, damage, injury or expense, including attorney's fees, arising out of or
in any way related to:
(a) Any inaccuracy in the representations and warranties of Seller
hereunder; and
(b) Any claims for injury to or death of persons, damage to
property, contract liabilities, taxes, expenses or claims of any kind,
whether direct or contingent, associated with the ownership, operation,
management or control of the Property or any part thereof, arising due to or
out of events or transactions occurring prior to the Closing hereunder,
except as otherwise provided in this Agreement.
16. EMINENT DOMAIN. If all or any portion of the Property shall be
taken through the exercise of the power of eminent domain prior to the
Closing, then in such event, the Purchaser shall have the option either:
(a) To take title at the Closing without any abatement or
adjustment in the Purchase Price, in which event the Seller shall assign its
rights in any condemnation award to the Purchaser, or the Purchaser shall
receive the condemnation award from the Seller if it is paid prior to the
Closing by means of a credit against the cash to close and any excess shall
be paid in cash to Purchaser at Closing; or
(b) To cancel this Agreement and obtain an immediate and
unqualified refund of the Deposit, together with any interest earned thereon,
whereupon each party shall be released from any and all further obligations
hereunder.
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17. DEFAULT BY PURCHASER. If Purchaser fails to perform the covenants
of this Agreement, Seller's remedies shall be limited to the retention of the
Deposit, together with any interest earned thereon, as agreed and liquidated
damages in full settlement of any claims, whereupon the parties shall be
relieved and released from all further obligations under this Agreement. The
parties agree that this provision for liquidated damages in a bona fide
attempt by the parties to resolve the amount of the damages which would be
sustained by the Seller in the event of the breach of this Agreement by the
Purchaser, and the parties recognize that the actual amount of such damages,
if any, would be speculative and extremely difficult of ascertainment.
Notwithstanding the foregoing, Purchaser shall be entitled to written notice
and ten (10) days opportunity to cure any default, and any deadline shall be
extended for the period of cure.
18. DEFAULT BY SELLER. If Purchaser fails to perform the covenants of
this Agreement and/or fails to close as provided herein and/or any of the
conditions of closing set forth in Section 10(a) have not taken place by June
30, 1998 the Purchaser may: (a) proceed to close or (b) rescind this
Agreement in which event Purchaser shall be entitled to an immediate and
unqualified refund of the Deposit, together with any interest earned thereon;
or (c) obtain specific performance of Seller's obligations hereunder;
notwithstanding the foregoing, Seller shall be entitled to written notice and
ten (10) days opportunity to cure any default, and any deadline shall be
extended for the period of cure.
19. WAIVER. The waiver of any condition or provision of this Agreement
or of any breach or default under any of the terms of this Agreement by
either party must be in writing and shall not be deemed to be nor shall the
same constitute a waiver of any subsequent condition, provision, breach or
default.
20. NOTICES. Any notice required or permitted to be given by this
Agreement shall be given or made in writing, and shall be served personally
by messenger or courier service, or mailed in the United States by prepaid,
registered or certified mail return receipt requested, as follows:
If to Seller: Westpark II Partnership, L.L.C.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax: 702/000-0000
Attn: Xxx X. Xxxx
If to Purchaser: Epic Resorts, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Fax: 610/000-0000
Attn: Xxxxxx X. Xxxxxxx
Any notice given in accordance with the provisions of this
subparagraph shall be deemed to be effective: (i) if personally delivered,
on the date of such delivery with such delivery to be confirmed by a signed
receipt, (ii) if mailed, two days after same is postmarked, postage prepaid,
or (iii) by telecopier, if telecopied to a telecopier number provided by the
other
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party. Each party may give notice to the other party of a change of its
address, or telecopy number, for the purposes of giving notice under this
Agreement.
21. BROKERAGE. Each party represents and warrants to the other that
neither he, nor it, nor any of their agents has directly or indirectly dealt
with, been shown or otherwise consulted any broker or agent thereof in
connection with this transaction, and that no real estate brokerage
commission is due in connection with this transaction. Each party hereby
indemnifies and holds the other party harmless against any claim or loss
(including attorneys' fees) which may be asserted against the other by reason
of any claims or determinations in contravention of the representations and
warranties contained in this Paragraph.
22. INTERPRETATION; SEVERABILITY. This Agreement shall be construed
and enforced in accordance with the laws of the State of Nevada. The article
headings in this Agreement are for convenient reference only and shall not
have the effect of modifying or amending the expressed terms and provisions
of this Agreement, nor shall they be used in connection with the
interpretation hereof. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the personal liability or obligation with respect to same. In
case anyone or more of the provisions of this Agreement or the application
thereof shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions hereof and
any other application thereof shall in no way be affected or impaired. Any
reference herein to time periods of less than six (6) days shall in the
computation thereof exclude Saturdays, Sundays and legal holidays, and any
time period provided for herein which shall end on a Saturday, Sunday or
legal holiday shall extend to 5:00 p.m. of the next full business day.
23. COSTS; ESCROW AGENT. All costs, including attorneys' fees, paid by
either party in the enforcement or defense of this Agreement, including
proceedings in appellate courts, shall be paid to the prevailing party. In
the event of any dispute among the parties with respect to disbursement of
the Deposit, the Escrow Agent shall have the right to tender same into a
court of appropriate jurisdiction and to interplead both parties hereto and
thereafter be free from further liability to the parties or hereunder.
Except for willful misconduct, the Escrow Agent shall be excused from all
responsibility, including insolvency of any depository, absolutely.
24. ENTIRE AGREEMENT, AMENDMENT. This Agreement and the documents and
information to be furnished pursuant hereto, contain the entire agreement
between the parties with respect to this transaction, and no representation,
warranties or agreements have been made or, if made, have not been relied
upon by either party except those specifically referred to herein. This
Agreement may only be amended, modified or supplemented by written instrument
signed by the parties hereto.
25. BINDING EFFECT. All of the terms, covenants and conditions herein
contained are and shall be binding upon and inure to the benefit of both
parties, their personal representatives, heirs, successors and assigns.
26. ASSIGNABILITY. This Contract may be assigned by Purchaser to an
affiliate or other entity.
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27. RECORDING. Each party agrees not to record this Contract or any
notice or memorandum thereof in the public records.
28. COUNTERPART. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall be an
original, but all counterparts shall together constitute one and the same
instrument.
29. EFFECTIVE DATE. This Agreement shall be binding on the date when
this Purchase and Sale Agreement has been fully executed by the Purchaser and
Seller.
30. ACCEPTANCE. At the option of Purchaser, this Agreement shall be
void unless Seller has delivered to Purchaser a signed original counterpart
hereof no later than 5:00 P.M., _________________, 1998.
31. CONFIDENTIALITY. The parties hereto agree to keep this Agreement
and its terms confidential and not to disclose any terms to any third parties
until Closing, except to potential lenders, surveyors, title agent and other
parties requiring information in connection with Purchaser's inspection or
other rights under this Agreement.
32. JOINDER OF PARTNERS. By their execution of this Agreement, each of
the partners of the Seller do hereby, in their individual capacities, ratify
and confirm the accuracy of each of Seller's representations and warranties
contained herein and without limiting the provisions of Section 15 of this
Agreement, do hereby agree to indemnify Purchaser from any loss, cost,
damage, injury or expense, including attorney's fees, arising out of or in
any way related to any inaccuracy in the representations and warranties of
Seller hereunder.
IN WITNESS WHEREOF, the parties have hereunto caused this Agreement to
be executed on the day and year indicated below:
SELLER:
Witness: WESTPARK II PARTNERSHIP, L.L.C.
By:/s/illegible
----------------------------- -------------------------------
-------------------------------
Date: May 9, 1998
-----------------------------
PURCHASER:
EPIC RESORTS, INC.
By: /s/X.X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx, President
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JOINDER OF OWNERS OF MEMBER INTERESTS ("OWNERS")
OF THE WESTPARK II PARTNERSHIP, L.L.C.
For value received, the receipt and sufficiency of which is hereby
acknowledged, and as a material inducement to Purchaser's offer to purchase
the Property, the undersigned owners of the Westpark II Partnership, L.L.C.
joins in the execution of the foregoing Purchase and Sale Agreement by
Westpark II Partnership, L.L.C.
Specifically, the undersigned owners hereby represents and warrants to
Purchaser that they/it are personally familiar with Seller's operation of the
Property and that each of Seller's representations and warranties contained
therein are accurate. Further, the owners do hereby agree to be bound by the
provisions of Section 15 of the Agreement as though they were a party thereto.
Westpark II Partnership, L.L.C.
Owners:
/s/Illegible
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