EXHIBIT 10.1
CONTRACT FOR THE SALE AND
PURCHASE OF REAL ESTATE
This CONTRACT FOR THE SALE AND PURCHASE OF REAL ESTATE (hereinafter
referred to as "Contract") is made and entered into this the 11th day of May,
2006, by and between the Three Affiliated Tribes of the Fort Berthold Indian
Reservation, acting by and through its governing body, the Tribal Business
Council (hereinafter referred to as "Purchaser") and Myriad World Resorts Of
Tunica, LLC, a Mississippi limited liability company, by and through Xxxxxx
Xxxxxx, its Manager (hereinafter referred to as "Seller"), collectively referred
to as "Parties".
WHEREAS, Seller has contracted to purchase the following described property
in Tunica County, Mississippi, to wit:
TRACT I
The West Half (W ) of Section Six (6) less the right of way to the Board
of Commissioners to the Yazoo-Mississippi Levee Board containing 315.3 acres,
more or less.
TRACT II
The North Half (N ) of Section Seven (7) west of the right of way to the
Board of Commissioners to the Yazoo-Mississippi Levee Board containing 242.5
acres, more or less.
TRACT III
The north 180 feet of the North Half (N ) of Section Seven (7) east of the
right of way to the Board of Commissioners to the Yazoo-Mississippi Levee
Board. (TRACTS I, II AND III SHALL COLLECTIVELY BE REFERRED TO AS THE "RESORT
PROPERTY"); and,
WHEREAS, Seller is working on a comprehensive plan to develop a world class
resort on the Resort Property which may include i) up to six (6) 80,000(+/-)
square foot casinos with each having an adjoining hotel of approximately 500
rooms, ii) a 1,200 (+/-) room convention center hotel, iii) appropriate meeting
rooms, iv) appropriate restaurants, v) an eighteen hole golf course which may be
an indoor facility, vi) a five acre or larger water park, vii) an 1,800 (+/-)
seat indoor entertainment amphitheater, viii) a multipurpose and/or outdoor
venue for concerts, sporting events, trade shows and entertainment acts with
seating for up to 20,000 persons, ix) a 375,000 square foot convention and trade
show facility, x) a 120,000 square foot shopping and commercial center and xi) a
health spa with surrounding botanical environment, WHICH COLLECTIVELY SHALL
HEREINAFTER BE REFERRED TO AS THE "IMPROVEMENTS"; and,
WHEREAS, Purchaser desires to purchase that portion of the Resort Property
(hereinafter referred to as Casino-Hotel #3) for the purpose of constructing
and operating up to six Las Vegas style casinos with maximum of an 80,000 sq ft
casino floor or a minimum 50,000 sq ft casino floor along with a 500 room hotel
on approximately 4.5 acres more or less of land located in Tunica County,
Mississippi ("Casino Sites") ; provided that in order for the Purchaser to
secure funding either in the form of loans and/or equity investments that (1)
the necessary approvals have been obtained from the Tunica County Board of
Commissioners and the Mississippi Gaming Commission for the construction and
operation of a casino, hotel and ancillary facilities (restaurants and bars)-
which approval was received on March 16, 2006, and (2) sufficient funding in
place to build the Resort Property, including the infrastructure (roads, sewer,
lights and parking) necessary to service the Resort Property and Casino-Hotel #3
which will be incorporated into and part of the Improvements on the Resort
Property; and,
WHEREAS, the site (approximately 4.5 acres more or less) upon which
Casino-Hotel #3 will be located on is approximately 140.00 acres located within
Section 0, Xxxxxxxx 0 Xxxxx, Xxxxx 11 West, in Tunica County, State of
Mississippi is described below:
"Being 140.00 acres of land consisting of all of the Northwest Quarter (NW ) of
Section Six (6), Township Four (4) South, Range Eleven (11) West, Tunica County,
State of Mississippi (excepting the right-of-way for the Yazoo-Mississippi Delta
Levee Board) and a portion of the Southwest Quarter (SW ) of Section Six (6),
Township Four (4) South, Range Eleven (11) West, Tunica County, State of
Mississippi collectively being described as follows:
BEGINNING at a found 1" Iron Pipe accepted as representing the Northwest Corner
of Section Six (6), Township Four (4) South, Range Eleven (11) West, Tunica
County, State of Mississippi; thence along the north line of said Section Six
(6), North 89 degrees 55 minutes 19 seconds East a distance of 2299.12' to the
intersection with the west line of the Yazoo-Mississippi Delta Levee Board
property, said intersection being South 89 degrees 55 minutes 19 seconds West a
distance of 2972.12' along said north line from a found Cotton Picker Spindle
accepted as representing the Northeast Corner said Section Six (6); thence
departing from said north line along said west line of the Yazoo-Mississippi
Delta Levee Board property the following three (3) calls: (1) South 02 degrees
12 minutes 00 seconds West a distance of 552.76', (2) South 20 degrees 13
minutes 00 seconds East a distance of 1022.00', (3) South 23 degrees 18 minutes
00 seconds East a distance of 40.70' to a point intersecting the east line of
the Northwest Quarter (NW ) of said Section Six (6); thence departing from said
west line of the Yazoo-Mississippi Delta Levee Board property along said east
line of the Northwest Quarter (NW ) of Section Six (6), South 00 degrees 25
minutes 39 seconds East a distance of 1089.33' to the Southeast corner of said
Northwest Quarter (NW ) of Section Six (6); thence along the east line of the
Southwest Quarter (SW ) of said Section Six (6), South 00 degrees 25 minutes 39
seconds East a distance of 287.50' to a point; thence departing from said east
line along a line being 287.50' south of and parallel with the south line of
said Northwest Quarter (NW ) of Section Six (6), South 89 degrees 53 minutes 09
seconds West a distance of 982.37' to a point; thence North 15 degrees 15
minutes 38 seconds West a distance of 297.84' to a point on said south line of
the Northwest Quarter (NW ) of Section Six (6); thence departing from said
south line, North 14 degrees 44 minutes 45 seconds West a distance of 550.87' to
a point; thence along a line being 533.00' north of and parallel with said south
line of the Northwest Quarter (NW ) of Section Six (6), South 89 degrees 53
minutes 09 seconds West a distance of 1466.40' to a point on the west line of
said Northwest Quarter (NW ) of Section Six (6), said point being North 00
degrees 16 minutes 12 seconds East a distance of 3173.30' from a found Rail Road
Iron accepted as representing the Southwest corner of said Section Six (6);
thence along said west line, North 00 degrees 16 minutes 12 seconds East a
distance of 2107.27' to said TRUE POINT OF BEGINNING.
Said described portion containing 6,098,250 square feet or 140.00 acres, more or
less."
WHEREAS, Seller is willing to sell to Purchaser the site upon which
Casino-Hotel #3 as described below shall be located on the Resort Property is
marked out and identified on the Parcelization Map as Casino-Hotel #3, a copy of
which is attached and incorporated as Exhibit "A". (hereinafter "Casino-Hotel
#3"); and,
WHEREAS, the parties desire to reduce their Agreement to writing,
NOW THEREFORE, based on the above and foregoing, and for and in
consideration of the mutual covenants, conditions and promises contained herein
the parties do hereby agree and contract as follows:
1) REPRESENTATIONS OF AUTHORITY TO SIGN AND WILLINGNESS TO BE LEGALLY BOUND:
The undersigned parties represent and warrant that each has the authority and is
willing to enter into this legally binding Contract:
A) XXXXXX XXXXXX of Xxxxxxxxx & Associates, LLC, with registered address at
00 Xxxxx Xxxxxxx Xxxx, Xxxxxxxx, XX 00000 has the authority to represent the
Myriad Group of Companies including: Myriad World Resorts of Tunica, LLC; Myriad
Entertainment & Resorts, Inc; and Myriad Golf Resorts, Inc ("Myriad") for the
purpose of selling various parcels of real estate for the purpose of
constructing and building a casino and a hotel on each separate parcel,
including the authority to enter into this Contract to sell Casino-Hotel #3 to
Purchaser
B) XXXXX XXXXX CALFE, in his capacity as Treasurer of the Three Affiliated
Tribes, with registered address at 000 Xxxxxxxx Xxxx, Xxx Xxxx, Xxxxx Xxxxxx
00000 represents that he has the authority under the Constitution of the Three
Affiliated Tribes and by authority granted by Resolution No. __________ of the
Tribal Business Council, to enter into this Contract to purchase Casino-Hotel #3
from Myriad World Resorts of Tunica, LLC.
C) XXXXXX XXXX, in his capacity as Secretary of the Tribal Business Council
of the Three Affiliated Tribes, with registered address at 000 Xxxxxxxx Xxxx,
Xxx Xxxx, Xxxxx Xxxxxx 00000 represents that he has the authority under the
Constitution of the Three Affiliated Tribes and by authority granted by
Resolution No. _______of the Tribal Business Council, to execute this Contract
to purchase Casino-Hotel #3 from Myriad World Resorts of Tunica, LLC.
2) PROPERTY: Seller hereby agrees to sell and Purchaser hereby agrees to
purchase Casino-Hotel Lot #3 as described in the Parcelization Map, containing
4.5 acres more or less under the terms hereof.
3) PURCHASE PRICE: The consideration shall be as follows:
A) CASH CONSIDERATION: Purchaser shall pay Seller FORTY MILLION AND
NO/100S DOLLARS ($40,000,000) in cash or certified check for Casino-Hotel #3
payable as follows:
I) $25,000 on or before June 1, 2006 which represents all expenses,
including licensing and legal fees, for forming a Mississippi corporation,
making application to the Mississippi Gaming Commission for a gaming license and
taking all other action necessary to obtain a gaming license from the
Mississippi Gaming Commission for Casino-Hotel Site #3 on behalf of the
Purchaser on or before September 1, 2006. The Seller agrees to take all
action necessary to procure such license on behalf of the purchaser on or before
September 1, 2006. The parties agree and understand that securing the license
for Casino-Hotel #3 is necessary in order for the Purchaser to obtain the funds
required to construct Casino-Hotel #3. The parties also agree and understand
that the Seller may assign the Seller's interest in this Contract in order to
secure funding for the Resort Property.
II) $500,000 in the form of a letter of credit within ten days of receipt of
formal notice by the Mississippi Gaming Commission that Casino-Hotel #3 is
approved for the construction of a 80,000 square foot casino floor and Purchaser
has procured all necessary gaming licenses to operate Casino-Hotel #3;
III) $500,000 in the form of a letter of credit within ten days from written
receipt of sufficient documentation and financial assurances confirming Seller's
ability to design, construct and install the infrastructure for the Resort
Property, including Casino-Hotel #3;
IV) $38,975,000 (the balance) wired to an account of Seller's choosing at
Closing as defined in the paragraph addressing the Closing.
4) CLOSING DATE: This transaction shall close at the Xxxxxxx Law Firm,
L.L.P., 000 Xxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxx, XX 00000, or other such place
as is mutually agreed upon by the parties under the following terms:
A) PROJECTED CLOSING DATE: The parties agree to a projected closing date of
June 1, 2007 or earlier as follows provided that all the conditions under
paragraph 3 have been satisfied:
I) PURCHASER'S OPTION TO CLOSE EARLIER: The Purchaser may close this
transaction prior to the closing date by giving the Seller written notice at
least ninety (90) days prior to the desired closing date which notice shall
state the desired closing date.
II) COMPLETION OF INFRASTRUCTURE: The closing date may be accelerated from
the June 1, 2007 date if the Seller has completed the infrastructure as required
by paragraph 7. The parties agree that upon receipt of written notice and
confirmation by a Professional Engineer (P.E.) that all necessary
infrastructures are in place so as to allow the Purchaser to begin construction
of Casino-Hotel #3 and then the closing date may occur within 60 days of the
date of receipt of the notice.
B) FAILURE TO CLOSE BY CLOSING DATE: If this transaction does not close on
or before the closing date for any reason, then this Contract shall be deemed
null and void and the provisions set out in paragraph 14 regarding failure of
performance and payment of the amounts paid in escrow shall apply.
C) PAYMENT OF CLOSING COSTS:
I) Seller shall pay for the preparation of the Deed.
II) Purchaser shall pay for the cost of recording the Deed.
III) Seller and Purchaser shall each pay their own attorney's fees and other
expenses incurred in connection with this transaction except for those costs
(application for gaming licenses, etc.) mentioned in paragraph 3(a)(i).
D) PRORATING OF PROPERTY TAXES: The parties will prorate the property taxes
for the year in which the Closing occurs based on the Closing Date.
5) INSPECTIONS AND TESTS: Purchaser, or its designees, may, at any time
after Seller's and Purchaser's execution of this Contract, enter on the Property
to make engineering studies, surveys, and other such tests, examinations and
inspections as Purchaser may desire as long as such tests, examinations and
inspections, do not reasonably interfere with the operations or any current use
of the Property.
A) TIME PERIOD FOR INSPECTIONS AND TESTING: Purchaser will have all soil
test borings, environmental studies, and other reports completed as soon as
possible (within 180 days) and will provide Seller with a copy.
B) REMEDIATION OF PROPERTY: If the closing does not occur, Purchaser will
make such repairs as necessary to leave the Property in the same condition as it
existed prior to entry by Purchaser or his agents.
C) RIGHT TO TERMINATE CONTRACT: If Purchaser discovers a condition which
materially impacts on the suitability of the Property for a development and use
pursuant to its inspection of the Property as provide in paragraph 8, Purchaser
may terminate this Contract.
D) NOTICE OF INTENT TO INSPECT: Purchaser will notify Seller in advance
each time of Purchaser's entering the Property for purposes contemplated herein
and shall make suitable arrangements for entering the property for inspections
and testing.
6) CONTINGENCIES: Notwithstanding anything to the contrary contained
elsewhere in this Contract the closing of this transaction is conditioned on the
following:
A) APPROVAL OF CASINO-HOTEL #3: Seller represents that the necessary
approvals have been or will be obtained from the Tunica County Board of
Commissioners and the Mississippi Gaming Commission for the construction and
operation of a casino, hotel and ancillary facilities (restaurants and bars),
etc on or before September 1, 2006.
B) SELLER'S ABILITY TO PERFORM: Seller represents on or before AUGUST 1,
2006 Seller will have sufficient funding in place to build the Resort Property,
including the infrastructure (roads, sewer, lights and parking) necessary to
service the Resort Property including Casino-Hotel #3, including actual
improvements as agreed upon by Purchaser and Seller.
C) PURCHASER'S ABILITY TO PERFORM: Purchaser represents on or before
SEPTEMBER 1, 2006, Purchaser will provide Seller with proof of Purchaser's
ability to finance the purchase and construction of Casino-Hotel #3. In the
event, Purchaser fails to secure adequate funding; then, the parties agree this
Contract may be assigned to mutually acceptable purchaser who is able to meet
the terms of this Contract.
D) PURCHASER TO FORM A CORPORATION: Purchaser shall form a corporation
and/or limited liability company to receive a Mississippi gaming license to
construct and operate Casino-Hotel #3;
E) REQUIREMENT FOR APPROVAL OF CASINO MANAGEMENT: Purchaser understands
that the management of Casino-Hotel #3 must be qualified to be approved by the
Mississippi Gaming Commission. If the purchaser is unable to provide an approved
management team prior to the projected date of the opening of Casino-Hotel #3,
the parties agree that they may enter into a separate agreement for management
of the Casino, the terms of which will be addressed in such agreement.
F) REQUIREMENT THAT OTHER CASINO SITES ARE TO BE BUILT UPON: This agreement
is contingent on the Seller selling two other Casino Sites or having sufficient
funds in place to build on two Casino Sites. This Contract is also contingent
upon the Purchaser obtaining sufficient funding commitments to build and operate
a casino with a minimum of a 50,000 square foot gaming floor and a 500 room
hotel.
7) SELLER'S REPRESENTATIONS AND WARRANTIES:
A) SURVEY AND RECORDED PLAT: In order for the Purchaser to have a warranty
deed for purposes of securing financing; Seller shall, at its own expense,
survey and plat out the exact boundaries of Casino-Hotel #3 so as to include 4.5
acres more or less with the intent of recording the plat in the Tunica County
Register of Deeds and shall provide such legal description along with any plats
to the Purchaser within 15 days after completion of the survey and platting.
B) ZONING: The Resort Property shall be zoned to allow construction of
casino with a minimum 50,000 sq ft casino floor and a license for a minimum of
1,600 slot machines and 26 gaming tables along with a 500 room hotel on
approximately 4-6 acres of land located in Tunica County, Mississippi.
C) UTILITIES, ETC.: All utilities including sewer and water are to be made
available at the site by Seller. The utilities are to be stubbed to the site
and shall be designed to accommodate multiple buildings (casino, hotel,
maintenance buildings, etc.).
D) PAVING: Seller shall be responsible for the cost and work of paving to
the entrance of the Casino-Hotel #3.
E) STORM SEWER: Seller shall be responsible for all storm sewer management
such that Purchasers will bear no cost relating to its property except for that
which is required to be located within the exterior boundaries of the site for
Casino-Hotel #3.
F) GRADE FOR GROUNDS AND PARKING LOTS: Seller shall level and grade the
property site such so that grade for Casino-Hotel #3's grounds and parking lots
meets Mississippi's building code, requirements for flood plains located in
Tunica County; unless, otherwise agreed to in writing by the parties.
G) GRADE FOR BUILDINGS COMPRISING CASINO-HOTEL #3: Seller shall level and
grade the property site such so that grade for Casino-Hotel #3's buildings meets
Mississippi's building code, requirements for flood plains located in Tunica
County; unless; unless, otherwise agreed to in writing by the parties.
H) TOPOGRAPHICAL DRAWINGS: Seller shall furnish topographical drawings of
the leveled site plan for use by the Purchaser's architectural team.
I) COMPLETION DATE FOR GRADING, STORM SEWER AND UTILITIES: Such
improvements shall be completed by May 1, 2007, except for rough grading which
shall be completed by May 15, 2007; unless, otherwise agreed to in writing by
the Parties.
J) IMPROVEMENTS TO CASINO-HOTEL #3: The parties agree that any documented
improvements to Casino-Hotel #3 approved by purchaser which are beyond those
listed in paragraphs a-h of this section and which are paid for by the Seller
shall be reimbursed to the Seller at the time of closing unless other repayment
arrangements are made.
8) ENVIRONMENTAL COMPLIANCE: Seller represents and warrants to Purchaser
that to Seller's knowledge:
A) There is no pending claim, lawsuit, proceeding or other legal,
quasi-legal, or administrative challenge concerning the Premises or the
operation thereof or any condition thereon, and no such claim, lawsuit,
proceeding or challenge is threatened by any person or entity.
B) No asbestos-containing materials have been installed in or affixed to the
structures on the Premises at any time during or prior to Seller's ownership
thereof.
C) No electrical transformers, fluorescent light fixtures or other
electrical equipment containing PCBs are or have been installed in or affixed to
the Premises at any time during or prior to Seller's ownership thereof.
D) The Premises and all operations thereon are not in violation of
applicable law, and no governmental authority has served upon Seller any notice
claiming any violation of any statute, ordinance or regulation or noting any
need for repair, construction, alteration or installation with respect to the
Premises or requiring any change in the means or methods of those conducting
operation thereon.
E) There are no hazardous wastes, substances, underground tanks or
contaminants on, in, under or about the subject property.
F) Further, no hazardous substances have ever been disposed of in, on or
above the property, nor has Seller or Seller's affiliates ever used the property
for the storage, manufacture, disposal, handling, transportation or use of any
hazardous substances or wastes. For the purposes of this paragraph, the term
"hazardous substances" shall mean and refer to asbestos, urea formaldehyde,
polychlorinated biphenyls, nuclear fuels or materials, radioactive materials,
explosives, known carcinogens, petroleum products and by-products and any
pollutant, contaminant, chemical, material or substance defined as hazardous or
as a pollutant or a contaminant in, or the release or disposal of which is
regulated by any environmental law.
G) All underground storage tanks located on the property, if any, have been
properly registered with all appropriate regulatory and governmental bodies and
are otherwise in compliance with all Federal, State and local statutes,
regulations, ordinances and other regulatory requirements.
9) FORM OF DEED: The Seller shall deliver to Purchaser at Closing, a
general warranty deed, conveying good and marketable fee simple title to the
Property, subject only to such easements and restrictions of record specifically
approved by Purchaser and subject to the following:
A) Taxes for the year in which the Closing occurs, which the Parties will
prorate.
B) Zoning, subdivision and sign regulations of Tunica County, Mississippi,
and
C) Those certain restrictions, covenants and conditions which Seller causes
to be prepared and recorded in the Chancery Clerk's office of Tunica County,
Mississippi which will govern the overall development of the Resort Property and
payment of certain fees and royalties (the "Covenants").
10) COVENANTS: The Covenants shall include the following, in addition, to
other issues relating to the governance of the Resort Property which the Parties
mutually agree to negotiate in good faith:
A) DESIGN CONTROL: Seller's approval of the design and layout of all
aspects of the Improvements to be constructed on the Resort Property.
B) LIMITATION ON THE NUMBER OF CASINOS: The number of casinos/hotels to be
located on or adjacent to the Resort Property shall be limited to six.
C) ROYALTY: The Parties agree that the Seller shall be entitled to
receive a royalty of four per cent (4%) of the gross gaming revenues reported to
the Mississippi Gaming Commission pursuant to the Mississippi Gaming Control
Act, as now written unless the parties both agree to accept and adopt any
subsequent amendment of that statute.
I) PAYMENT OF ROYALTY: The Royalty shall be paid to Seller on a monthly
basis at the same time Purchaser is required, pursuant to Mississippi law and
the rules and regulations of the Mississippi State Tax Commission and the
Mississippi Gaming Commission, to pay the Mississippi State Tax
Commission/Mississippi Gaming Commission the gaming tax but in no event shall
each month's rent be paid later than the 20th day of the following month. Each
Royalty payment shall be accompanied by written statement signed by Purchaser
showing the Gross Revenues of Purchaser as set forth above. ALL PAYMENTS SHALL
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BE DELIVERED TO SELLER AT THE ADDRESS LISTED IN PARAGRAPH 8 OF THIS CONTRACT.
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(1) LATE PAYMENT PENALTY: If any Royalty is not paid within twenty (20)
days of the date when due, Purchaser agrees to pay and will be obligated to pay
as additional Percentage Compensation for that month an amount equal to five
percent (5%) of the amount otherwise payable.
(2) ENFORCEMENT OF PAYMENT OF ROYALTY. Enforcement of the payment of the
percentage due hereunder shall be by separate agreement between the parties
addressing all covenants on the property. Failure to pay the Royalty shall in
no way effect the purchaser's title to the property purchased hereunder.
(3) PAYMENTS SUBJECT TO PURCHASER OBTAINING A GAMING LICENSE: The payments
required under this Paragraph 4 are based upon the condition that the Purchaser
and its assignees obtain a gaming license from the Mississippi Gaming Commission
and receipt of adequate funding to carry out Purchaser's duties under this
Contract.
II) RIGHT TO OBTAIN REPORTS: Purchaser gives its written and irrevocable
consent for Seller to obtain copies of any and all reports of revenue filed with
the Mississippi State Tax Commission or the Mississippi Gaming Commission
derived from the operation of any and all gaming business conducted on
Casino-Hotel #3. Purchaser will cooperate to assist Seller in obtaining any
information desired by Seller from the Mississippi Gaming Commission or
Mississippi State Tax Commission.
III) CONFIDENTIALITY OF INFORMATION OBTAINED: Seller will hold all
information gathered through such examination or reports and statements in
confidence and will not disclose such information to anyone without Purchaser's
written approval, provided, however, that if litigation ensues concerning the
payments, Seller may disclose any information necessary for said litigation to
any parties necessary and may disclose all such information to its attorneys,
CPA's, and any government agency which requires Seller to do so.
IV) COMMON AREA MAINTENANCE (CAM) FEES: The Purchaser acknowledges it will
benefit financially from having physical access to the Resort Property's
amenities that will include a transportation system connecting each casino and
hotel, the convention facility, and other resort facilities. This will allow
the Purchaser access to the Seller's customer base. The Purchaser agrees to pay
for its share of the cost of operating and maintaining the common areas and
common facilities as follows, hereinafter referred to as the "Base CAM Fee":
(1) CASINO, INCLUDING BACK OF HOUSE CASINO OPERATIONS: $11.00 per square
foot is the Annual `Base CAM Fee for the Casino.
(2) HOTEL: $2.50 per square foot for all hotel space is the Annual Base
CAM Fee for the Hotel.
V) TRANSPORTATION FEE: The Purchaser agrees that in order to have access to
the transit system to be built upon the Resort Property and which is part of the
infrastructure required for Casino-Hotel #3 that a fee equal to 2% of the gross
revenues generated from Casino-Hotel #3 may be charged for the operation and
maintenance of the transportation facility, hereinafter referred to as the "Base
Transportation Fee".
11) MERCHANTABILITY OF TITLE: In the event a title search reveals defects in
the title, other than those listed in Paragraph 8(a) and 8(b), and the Covenants
indicated by Paragraph 8(c) which will materially and adversely affect the
Purchaser's use of the property for the development of a casino and hotel,
Purchaser shall notify Seller in writing of the specific defects within 60 days
of the last execution hereof and thereupon Seller shall have 120 days to cure
said defects. In the event a defect arises and Purchaser notifies Seller of the
same within 30 days of closing, the closing, at the request of Seller, may be
extended to provide Seller with a full 120 days to cure the same. The Seller
will take no action to allow any defects to arise.
12) COLLECTION COSTS: In the event any action is commenced by either party
against the other in connection herewith, the prevailing party shall be entitled
to its costs and expenses, including reasonable attorney's fees.
13) NOTICE: Any and all notices and demands by any party to the other
party, required or desired to be given hereunder shall be in writing and shall
be validly given or made only if deposited in the United States mail, certified
or registered, postage prepaid, return receipt requested or if made by Federal
Express or similar delivery service keeping records of deliveries and attempted
deliveries or if made by telecopy. Service by United States mail or delivery
service shall be conclusively deemed made on the first business day delivery is
attempted or upon receipt, whichever is sooner. Service by facsimile copy or
telecopy shall be deemed made upon confirmed transmission.
A) PURCHASER: Any notice or demand to Purchaser shall be addressed to the
Three Affiliated Tribes, Attn: Chairman and Secretary, Tribal Administration
Building, 000 Xxxxxxxx Xxxx, Xxx Xxxx XX 00000; telephone number 000-000-0000,
fax 000-000-0000.
B) SELLER: Any notice or demand to Seller shall be addressed to Myriad
World Resorts of Tunica, LLC, Attn: Xxxxx Hawrelechko or Xxxxxx Xxxxxx, Xxxxx
0000, 00xx Xxxxx, 00000-000 Xxxxxx, Xxxxxxxx, Xxxxxxx Xxxxxx X0X0X0; telephone
number 000-000-0000, fax 000-000-0000.
Any party hereto may change its address for the purpose of receiving notices or
demands as herein provided by a written notice given in the manner aforesaid to
the other party hereto, which notice of change of address shall not become
effective, however, until the actual receipt thereof by the other party.
14) FAILURE OF PERFORMANCE: If either Party fails to perform pursuant to
the terms of this Contract, the Initial Deposit of $25,000 shall remain the
property of the Seller. THE $1,000,000 LINE OF CREDIT SHALL REMAIN THE PROPERTY
OF THE PURCHASER. The amounts retained by the Seller shall be considered
liquidated damages, as consideration for the execution of this Contract and in
full settlement of any claims, causes of action at law or in equity, whereupon
Purchaser and Seller shall be relieved of all obligations under this Contract.
15) ENTIRE CONTRACT: AMENDMENTS: This Contract and its exhibits contain the
entire Contract between the parties with regard to the sale and purchase of the
Property except as provided for herein, and no promise, representation,
warranty, covenant, agreement or understanding not specifically set forth in
this Contract shall be binding upon, or inure to the benefit of, either party.
This Contract may not be amended, altered, modified or supplemented in any
manner except by an instrument in writing duly executed by the parties. The
parties hereto represent, covenant and agree that any promise, representation,
warranty, covenant, agreement or understanding which either deems material is
included in and made a part of this Contract.
16) SPECIFIC LIMITED WAIVER OF SOVEREIGN IMMUNITY:
A) GOVERNING LAW: INTERPRETATION: This Contract shall be construed and
enforced in accordance with the laws of the State of North Dakota. The fact
this Contract shall have been prepared by an attorney for either the Seller or
Purchaser shall not be used to construe or interpret this Contract for or
against either party; the parties intend that the provisions of this Contract
shall be given their fair meaning and no court shall construe this Contract more
stringently against one party than against the other. Further, both parties
represent that they are represented by counsel and have been fully advised of
the affects and ramifications of all terms, conditions, covenants, and
obligations contained in this Contract.
B) CONSTRUCTION. Whenever possible, each provision of this Contract and any
other statement, instrument or transaction contemplated hereby or thereby or
relating hereto or thereto shall be interpreted in such manner as to be
effective and valid under such applicable law, but, if any provision of the
Contract or any other statement, instrument or transaction contemplated hereby
or thereby or relating hereto or thereto shall be held to be prohibited or
invalid under such applicable law, such provision shall be ineffective only of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of the Contract or any other statement,
instrument or transaction contemplated hereby or thereby relating hereto or
thereto. The parties shall endeavor in good-faith negotiations to replace any
invalid, illegal or unenforceable provisions with a valid provision the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provision. The provisions of this Section are irrevocable and may
not be rescinded, revoked or amended without the prior written consent of the
Seller. The Tribe acknowledges the Seller has relied upon them in entering into
this Contract.
C) LIMITED WAIVER OF SOVEREIGN IMMUNITY. Nothing in this Limited Waiver of
Sovereign Immunity shall be deemed to be a waiver of the Tribe's sovereign
immunity from suit, except to the extent that the Tribe hereby provides a
limited waiver of its sovereign immunity and consents to be sued should an
action be commenced to determine and enforce the obligations of the parties
under any Contract; and provided further that the Tribe's consent to suit is
only as to arbitration and to court action initiated consistent with this
Limited Waiver of Sovereign Immunity and Contract. The Tribe expressly submits
to and consents to the jurisdictions of the Tribal Court of the Three Affiliated
Tribes of the Fort Berthold Reservation in the first instance and, after seeking
relief in such Tribal Court, to the United States District Court for the
District of North Dakota, in connection with any injunctive relief sought prior
to arbitration, or to give effect to any relief ordered or award obtained in any
arbitration proceedings.
D) INTENT OF LIMITED WAIVER OF SOVEREIGN IMMUNITY: This Limited Waiver of
Sovereign Immunity is intended to allow the Seller or its assigns to only
recover any amounts due and owing under the Contract upon the unlikely event of
default. The Limited Waiver of Sovereign Immunity shall be strictly limited to
allow the Seller or its assigns to recover said amounts in the event of default.
17) ARBITRATION: The parties agree to arbitrate any disputes which may
arise under this Contract, if permitted by the State of Mississippi, and further
agree to use the arbitration protocol established by the American Arbitration
Association.
18) BINDING EFFECT: The provisions of this Contract shall be binding upon,
and shall inure to the benefit of, the parties and respective heirs, executors,
administrators, personal and legal representatives, successors and assigns.
19) NO WAIVER: The failure of Seller or Purchaser to insist upon strict
performance of any of the terms, conditions, covenants and obligations contained
in this Contract shall not be deemed a waiver of any rights or remedies for any
subsequent breach or default in the terms, conditions, covenants and obligations
herein contained.
20) SECTION HEADINGS: The Section headings hereof are intended for
convenience and reference purposes only and shall not be used to construe or
interpret this Contract.
21) SEVERABILITY: If any provisions of this Contract shall be determined by
any court to be invalid, illegal or unenforceable to any extent, then the
remainder of this contract shall not be affected, and this Contract shall be
construed as if the invalid, illegal, or unenforceable provision had never been
contained in this Contract.
22) TIME IS OF THE ESSENCE: Time is of the essence as to this Contract and
failure of either party to timely comply with the provisions of this Contract
may result in the other party canceling this Contract which decision will be in
that party's sole discretion.
23) CONDEMNATION OR CASUALTY: If the Property or any portion thereof shall
be condemned, prior to closing, or any proceeding for the condemnation of the
Property, or any portion thereof, is filed, or an Contract of sale is negotiated
in lieu thereof, or if the Property shall sustain any casualty damage, Purchaser
may elect to terminate this Contract and receive a full refund of Purchaser's
xxxxxxx money deposit. If Purchaser does not terminate and elects to proceed
hereunder, any condemnation award or casualty insurance proceeds shall be
accredited against the Purchase Price.
24) NON-PERFORMANCE: If Seller fails to deliver the Deed or meet any of the
conditions hereof, Purchaser, at Purchaser's sole option, may terminate this
Contract whereupon the funds previously paid to Seller pursuant to Paragraph 3
shall be returned to Purchaser within three (3) days, or Purchaser may demand
specific performance. Upon return of previously paid money to Purchaser, Seller
will be released from all liability to Purchaser related to this Contract, such
return of money paid to Purchaser by Seller being Purchaser's sole remedy, if
specific performance is not elected. If Purchaser fails to perform and close as
called for herein, then Seller may retain all money previously paid otherwise
provided in this Contract and may demand and enforce specific performance of the
terms hereof including unless, but not limited to, demanding restoration of the
property as called for by Paragraph 4.
25) BROKERS AND AGENT: Purchaser represents and warrants to Seller that no
broker or agent is due a commission from the proceeds of the Closing. Seller
represents and warrants that Seller may have entered into a brokerage agreement
and that Seller and Broker will agree in a separate document as to the amount of
commission and procedure for payment, including the payment at Closing. Seller
will provide such information at time of Closing as to payment. Each Party
agrees to indemnify and hold the other and the Property harmless from the claims
of any agent or broker for the payment of a commission.
26) TAX FREE EXCHANGE: Notwithstanding the provisions contained above
relating to the sale of the Property, the parties acknowledge the possible
desire and intention of Seller, if possible, to exchange the Property for
property of a like kind or to utilize proceeds from a conveyance of other
property in an exchange qualifying as a tax free exchange under Section 1031 of
the Internal Revenue Code of 1986 (as amended), Purchaser and Seller shall each
cooperate fully to implement such exchange as hereinafter provided (at no
additional expense to the other party).
27) DEFERRED EXCHANGE: In order to permit Seller to implement a deferred
(or non-simultaneous) exchange pursuant to I.R.S. regulation Section 1.1031
(k)-1 (the Deferred Exchange Regulations), the parties acknowledge and agree
that Seller may cause the Property to be conveyed, or this Contract to be
assigned, to a Qualified Intermediary pursuant to the Deferred Exchange
Regulations and that at closing, the Property will be conveyed to Purchaser and
the Purchase Price will be paid by Purchaser to the Qualified Intermediary. In
the event Purchaser desires to effectuate acquisition using proceeds from a
deferred exchange involving other land presently vested in Purchaser, Seller
shall accept funds from Purchaser's Qualified Intermediary and shall recognize
that Purchaser's interest may be assigned to such Qualified Intermediary. Any
deferred exchanges will be completed to the closing of this transaction so as to
vest title in Purchaser at closing upon the payment of the balance of the
Purchase Price. A material part of the consideration to the purchaser for
purchasing is that the Purchaser has the option to qualify this transaction as
part of a tax-deferred exchange under Section 1031 of the Internal Revenue Code
of 1986. Seller agrees that Purchaser may assign this Contract to an exchange
intermediary of Purchaser's choice.
28) ASSIGNMENT AND SALE: Purchaser, in order to comply with Mississippi law
for ownership of casino property, shall be allowed to assign this Contract to a
Mississippi entity without the prior written consent of Seller. Further,
Purchaser reserves the right to sell this Contract to third party who is
qualified to own and operate a Mississippi casino; provided, the Seller is given
the first right to repurchase this Contract and to meet or match any purchase
offer. The parties agree to enter into a breakaway agreement.
29) LIENS AND ENCUMBRANCES OF TITLE: Seller agrees not to convey, mortgage,
allow creation of liens, or do any act to diminish or encumber the title to
Seller's property while this Contract remains in force.
30) ABILITY TO EXECUTE: Seller warrants and represents that it possesses
full right, power and authority to execute, deliver and perform this Contract.
Purchaser warrants and represents that it possesses full right, power and
authority to execute, deliver, and perform this Contract.
WITNESS OUR SIGNATURES on the day and year as first above written and by signing
this 17 page Contract each party represents to the Party opposite that this
contract has been read in its entirety and all terms, conditions covenants and
obligations are fully understood.
THREE AFFILIATED TRIBES MYRIAD WORLD RESORTS OF TUNICA, LLC
XXXXXXXXX & ASSOCIATES, LLC
By /S/Xxxxx Xxxxx Xxxxx By /S/Xxxxxx Xxxxxx
-------------------------- --------------------------
Name: Xxxxx Xxxxx Xxxxx Name: Xxxxxx Xxxxxx
Its: Treasurer Its: MANAGER
By /S/Xxxxxx Xxxx
--------------------------
Name: Xxxxxx Xxxx
Its: Secretary
STATE OF --NORTH DAKOTA
COUNTY OF MOUNTRAIL
Personally appeared before me, the undersigned authority in and for said
County and State, the above named Xxxxx Xxxxx Xxxxx, Treasurer of the above
named Three Affiliated Tribes and acknowledged that on behalf of said nation,
and in its name, being duly authorized so to do, he signed the foregoing
instrument and delivered said instrument on the day and year therein mentioned.
GIVEN under my hand and official seal, this the _____ day of May, 2006.
(SEAL) By ____________________________
----------------------------
Name of Notary Public
My Commission Expires:
STATE OF --NORTH DAKOTA
COUNTY OF MOUNTRAIL
Personally appeared before me, the undersigned authority in and for said
County and State, the above named Xxxxxx Xxxx, Secretary of the above named
Three Affiliated Tribes and acknowledged that on behalf of said nation, and in
its name, being duly authorized so to do, he signed the foregoing instrument and
delivered said instrument on the day and year therein mentioned.
GIVEN under my hand and official seal, this the _____ day of May, 2006.
(SEAL) By ____________________________
----------------------------
Name of Notary Public
My Commission Expires:
STATE OF ARKANSAS )
) ss
COUNTY OF PULASKI )
Personally appeared before me, the undersigned authority in and for said
County and State, the above named Xxxxxx Xxxxxx, Manager of the above named
Myriad World Resorts of Tunica, LLC and acknowledged that on behalf of said
limited liability company, and in its name, being duly authorized so to do, he
signed the foregoing instrument and delivered said instrument on the day and
year therein mentioned.
GIVEN under my hand and official seal, this the _____ day of May, 2006.
(SEAL) By ____________________________
----------------------------
Name of Notary Public
My Commission Expires:
