Exhibit 10.51
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AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
This Agreement and Joint Escrow Instructions ("Agreement") is made and
entered into as of January 24, 2001, by and between Crystal Park Hotel and
Casino Development Company, LLC, a California limited liability company
("Crystal Park"), and The Community Redevelopment Agency of the City of ▇▇▇▇▇▇▇,
a public body, corporate and politic (the "Agency"), with reference to the
following facts:
A. Crystal Park and the Agency are parties to that certain Amended and
Restated Disposition and Development Agreement, Agreement of Purchase and Sale,
and Lease with Option to Purchase, dated April 4, 1995, as amended (the "DDA"),
pursuant to which Agency owns and leases certain real property in the City of
▇▇▇▇▇▇▇ (the "City"), County of Los Angeles (the "County"), State of California,
as more particularly described on Exhibit A attached hereto (collectively,
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"Property"). For the purposes of this Agreement, the Property consists of the
(i) "Owned Property"; (ii) "Option Property" also described as the Hotel and
Parking Property in the DDA; and (iii) "Relinquished Property," as identified on
Exhibit A. Crystal Park and the Agency are also parties to those agreements
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described on Exhibit B attached hereto (the "Related Agreements").
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B. The terms and conditions of this Agreement and the instructions to
First American Title Company ("Escrow Holder") with regard to the escrow
("Escrow") created hereby are as set forth below.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained in this Agreement, and other good and valuable
consideration, Crystal Park and the Agency hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein but not defined herein shall
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have the meanings ascribed to such terms in the DDA.
2. PURCHASE AND SALE.
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2.1 Exercise of Option. Crystal Park hereby exercises its option to
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purchase the Option Property pursuant to paragraph 30 of DDA. Agency shall sell
and convey to Crystal Park and Crystal Park shall acquire and purchase from
Agency, the Option Property.
2.2 Purchase Price.
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2.2.1 Purchase Price. The Purchase Price for the Option Property shall
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be Three Million Four Hundred Thousand Dollars ($3,400,000.00), all cash (the
"Purchase Price").
3. TERMINATION OF DDA. Effective on the Closing Date, as hereinafter defined,
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the DDA, including, without limitation, Crystal Park's lease of the Relinquished
Property,
shall terminate and be of no further force and effect. On the Closing Date,
Crystal Park shall pay to the Agency a termination fee ("Termination Fee") in
the amount of Six Hundred Thousand Dollars ($600,000.00). Concurrently
therewith, the parties respective obligations under the Related Agreements shall
also terminate and be of no further force and effect. Notwithstanding the
foregoing, the parties respective obligations under Sections 10(b) and 10(c) of
the DDA shall survive the termination of the DDA:
DDA Section 10(b): Environmental Conditions of Property Prior to
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Commencement of Lease. Agency shall be solely responsible for the costs of
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clean up or remediation of any deposit or discharge of Hazardous Materials
on or from the Property which occurred prior to the Effective Date, and
Agency shall indemnify, hold harmless and defend Redeveloper against any
and all loss, cost or obligation with respect thereto (including attorneys
fees and costs), provided, however, that Agency shall not be liable to
Redeveloper for any consequential damages suffered by Redeveloper by reason
of the existence of any Hazardous Waste on the Property which existed prior
to the Effective Date and which could have reasonably been discovered by a
competent environmental assessment of the Property.
DDA Section 10(c): Environmental Condition of the Property During Lease
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Term. Redeveloper shall indemnify, protect, defend and hold harmless Agency
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from and against any and all claims, liabilities, suits, losses, costs,
expenses and damages, including but not limited to attorneys' fees and
costs, arising out of any claim for loss or damage to any property,
including the Property (including both the Convention Center Parcel and the
Leasehold Parcels), injuries to or death of persons, or for the cost of
cleaning up the Property, and removing hazardous or toxic substances,
materials and waste therefrom, by reason of contamination or adverse
effects on the environment, or by reason of any statutes, ordinances,
orders, rules or regulations of any governmental entity or agency requiring
the clean-up of the Property caused by or resulting any hazardous material,
substance or waste introduced to the Property during the Term of this
Lease. The foregoing indemnity shall survive the expiration or termination
of this Lease, and the close of escrow in the event of Redeveloper's
exercise of the option to purchase the Leasehold Parcels set forth below.
Moreover, upon the expiration of this Lease, if Redeveloper has not
purchased the Leasehold Parcels, then Redeveloper shall not thereafter be
liable on account of this indemnity as a result of hazardous or toxic
substances, materials, or waste that were located on the Leasehold Parcels
prior to the Effective Date, except to the extent such hazardous or toxic
substances, materials, or waste were deposited on the Property prior to the
Effective Date by Redeveloper or Redeveloper's agents, officers, employees,
contractors, sublessees, or assignees.
4. COVENANT TO OPERATE. Notwithstanding the provisions of Section 3 hereof,
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Crystal Park agrees and covenants that all current uses and operations,
including, without limitation, the card club casino and related uses, will be
operated on the Option Property and the Owned Property until and through June
30, 2001 (the "Continued Operations Date"), when such restriction shall
automatically expire without the need for any further action under the DDA.
Further, Crystal Park agrees and covenants that if it ceases operating the card
club casino and related uses, in whole or in part, prior to the Continued
Operations Date, that Crystal Park shall pay to City an amount equal to the
gaming tax that would be
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due on the discontinued operations through the Continued Operations Date, based
on the previous year's receipts for the same time period. It is understood,
however, that Crystal Park shall remain subject to all other laws, regulations
and policies governing land use in the City through and after the Continued
Operations Date. Crystal Park shall not be obligated to pay or shall be entitled
to receive a refund or rebate of that portion of any possessory interest taxes
or real property taxes allocable to the Owned Property and Option Property, to
the extent payable or allocable to the Agency or the City during the period from
the Closing through the earlier of (i) the date a card club casino ceases to be
operated on the Owned Property and Option Property; and (ii) August 2, 2005.
5. MEMORANDUM OF UNDERSTANDING. Pursuant to that certain Memorandum of
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Understanding dated September 30, 1996, between the Agency and Crystal Park,
Crystal Park has usage rights to that certain sign owned by the City located
between the east and westbound lanes of the 91 Freeway between Acacia Avenue and
Alameda Street (the "Sign"). The parties agree that the Memorandum of
Understanding shall continue to govern Crystal Park's use of the Sign after the
Close of Escrow for so long as a casino is operated on the Owned Property and
the Option Property. At Closing, the parties shall execute an Amendment of
Memorandum of Understanding, a copy of which is attached as Exhibit C, to
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provide for Crystal Park's continued right to use the Sign after card club
casino and hotel uses cease on the Owned Property and Option Property (the "MOU
Amendment").
6. ESCROW AND CLOSING.
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6.1 Opening of Escrow. For purposes of this Agreement, the Escrow shall be
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deemed opened on the date Escrow Holder shall have received a mutually executed
copy of this Agreement. Escrow Holder shall promptly notify Crystal Park and
Agency, in writing, at the addresses noted in Section 11.14, of the date Escrow
is opened ("Opening of Escrow"). In addition, Crystal Park and Agency agree to
execute, deliver and be bound by any reasonable and customary supplemental
escrow instructions of Escrow Holder or other instruments as may reasonably be
required by Escrow Holder in order to consummate the transaction contemplated by
this Agreement. Any such supplemental instructions shall not conflict with,
amend or supercede any portions of this Agreement. If there is any conflict or
inconsistency between such supplemental instructions and this Agreement, this
Agreement shall control.
6.1.1 Costs and Prorations.
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a) Costs. Costs in connection with the Close of Escrow shall
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be allocated as follows:
i) Agency shall pay:
(1) the cost of a CLTA Policy of Title Insurance (as
defined below),
(2) one-half ( 1/2) of the Escrow holder's fees,
(3) the documentary transfer taxes, if any.
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ii) Crystal Park shall pay
(1) one-half ( 1/2) of the Escrow Holder's fees, and
(2) if elected by Crystal Park, the increased cost of
obtaining an ALTA Policy of Title Insurance and any endorsements thereto
requested by Crystal Park (over and above the CLTA Policy of Title
Insurance that Agency is required to pay for).
(3) recording fees payable in connection with the
Recordable Documents, as hereinafter defined, and
iii) All other costs related to the transaction shall be
paid by the parties in the manner consistent with common practice in the County
of Los Angeles, California.
b) Prorations. All real and personal property taxes and special
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assessments, if any, assessed against the Option Property and the Relinquished
Property for the period of time prior to the Closing Date, whether payable in
installments or not, shall be paid by Crystal Park as of the Closing Date.
i) Other Items. Except as otherwise provided in this
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Paragraph 6.1.2(b), all other items as are normally prorated and adjusted in the
sale of property similar to the Option Property and the Relinquished Property
shall be prorated as of the Closing Date in the manner consistent with common
practice in the County of Los Angeles, California.
6.2 Closing Date.
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6.2.1 The Close of Escrow shall occur on or before the date that is
ten (10) days after the effective date of this Agreement (the "Closing Date").
6.2.2 As used in this Agreement, the "Close of Escrow" shall mean the
date the Recordable Documents are recorded in the Official Records of the
County. The Close of Escrow shall take place on the Closing Date at the offices
of the Escrow Holder.
6.3 Conditions Precedent to Close of Escrow.
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6.3.1 Conditions to Crystal Park's Obligations. The Close of Escrow
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and Crystal Park's obligation to purchase the Option Property, are subject to
the satisfaction of the following conditions or Crystal Park's written waiver of
such conditions on or before the Closing Date.
a) As of the Closing Date, Agency shall have performed all of
the material obligations required to be performed by Agency under this
Agreement;
b) All representations made by Agency to Crystal Park in this
Agreement shall be true and correct in all material respects as of the Closing
Date;
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c) The Title Company shall be committed to issue to Crystal
Park, as of the Closing Date, the Title Policy (defined below) covering the
Option Property subject only to the Permitted Exceptions (defined below);
d) Old Republic Title shall be committed to issuing the
endorsements described in Section 7 below;
e) As of the Closing Date, Agency shall have delivered to
Crystal Park written certification (the "Certification") that the Property has
all necessary land use entitlements, including without limitation zoning
permits, development permits, conditional use permits, and subdivision approvals
required for the development and operation of the hotel and casino thereon,
including ancillary facilities which may include, without limitation,
restaurants, a night club, a sports bar and other entertainment facilities, as a
lawfully permitted conforming use under all applicable City laws, including,
without limitation, the current City of ▇▇▇▇▇▇▇ General Plan, Community
Redevelopment Plan, and Zoning Code;
f) As of the Closing Date, the City Council of the City of
▇▇▇▇▇▇▇ shall have adopted an Ordinance amending Section 9-10 of the Compton
Municipal Code relative to the regulation of card clubs reasonably acceptable to
Crystal Park and California Casino Management, Inc. ("CCM").
6.3.2 Conditions to Agency's Obligations. The Close of Escrow and
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Agency's obligation to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of the following conditions:
a) As of the Closing Date, Crystal Park shall have performed all
of the material obligations required to be performed by Crystal Park under this
Agreement; and
b) All representations made by Crystal Park to Agency in this
Agreement shall be true and correct in all material respects as of the Closing
Date.
6.4 Closing Documents. The parties shall deposit the following with
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Escrow Holder prior to the Close of Escrow:
6.4.1 Crystal Park shall deposit:
a) the Purchase Price;
b) the Termination Fee;
c) Crystal Park's Escrow and other cash charges required in
Section 6.1.2;
d) a Preliminary Change of Ownership Statement in form
suitable for filing with the tax collector for the County; provided, however,
that the delivery of this instrument shall not be a condition precedent to the
Close of Escrow nor a default by Crystal Park;
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e) a Quitclaim Deed ("Quitclaim Deed") for the Relinquished
Property, executed by Crystal Park, with Crystal Park's signature acknowledged,
the form of which is attached hereto as Exhibit D;
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f) a counterpart Termination of Reciprocal Easement
Agreement and Amended and Restated Disposition and Development Agreement,
Agreement of Purchase and Sale and Lease with Option to Purchase, the form of
which is attached hereto as Exhibit E (the "REA/DDA Termination"), executed by
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Crystal Park with Crystal Park's signature acknowledged, with respect to that
certain Reciprocal Easement Agreement, dated as of January 30, 1997, and
recorded as Instrument No. 97-574466 in the office of the County Recorder for
the County of Los Angeles, California (the "REA") and the DDA; and
g) a counterpart MOU Amendment executed by Crystal Park.
6.4.2 Agency shall deposit:
a) a Grant Deed conveying fee title to the Option Property,
the form of which is attached hereto as Exhibit F ("Grant Deed"), subject only
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to the Permitted Exceptions, executed by Agency with Agency's signature
acknowledged;
b) an affidavit or qualifying statement, which satisfies
the requirements of Paragraph 1445 of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder, and a Form 590(RE) to satisfy the
requirements of California Revenue and Taxation Code Sections 18662(e) and 18668
(collectively, the "Non-Foreign Affidavits");
c) a counterpart REA/DDA Termination, executed by Agency,
with Agency's signature acknowledged;
d) a Quitclaim Deed ("CC&R Termination"), in form attached
hereto as Exhibit G, eliminating the covenants, conditions and restrictions
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described in that certain Grant Deed recorded on August 3, 1995 as Instrument
Number ▇▇-▇▇▇▇▇▇▇ (the "Casino Parcel Deed"), executed by Agency, with Agency's
signature acknowledged;
e) a Reconveyance of that certain Deed of Trust, Assignment
of Rents, Security Agreement and Fixture Filing, dated as of July 31, 1995,
recorded as Instrument No. ▇▇-▇▇▇▇▇▇▇ (the "Deed of Trust"), executed by the
trustee thereunder, the form of which is attached as Exhibit H (the
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"Reconveyance");
f) a UCC-2 Termination of Financing Statement terminating
the UCC-1 Financing Statement dated July 31, 1995, recorded as Instrument No.
▇▇-▇▇▇▇▇▇▇ (the "UCC-1 Financing Statement"), executed by Agency ; and
g) a counterpart MOU Amendment executed by Agency.
The "Recordable Documents" shall mean the documents described in Sections
6.4.1(e), (f) and Sections 6.4.2(a), (c), (d), (e) and (f).
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6.4.3 Additional Documents. Agency and Crystal Park shall each
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deposit such other instruments as are reasonably required by Escrow Holder or
otherwise required to proceed to the Close of Escrow and consummate the sale of
the Option Property and release of the Relinquished Property, in accordance with
the terms of this Agreement.
6.5 Close of Escrow.
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6.5.1 On the Close of Escrow, Escrow Holder shall (a) record the
Recordable Documents in the Office of the County Recorder of the County, (b) pay
any transfer taxes, (c) instruct the County Recorder to return the Grant Deed,
the REA/DDA Termination, the CC&R Termination and the Reconveyance to Crystal
Park, (d) instruct the County Recorder to return the Quitclaim Deed to the
Agency, (e) deliver to Agency the Purchase Price and the Termination Fee, less
Agency's escrow and cash charges, and an original MOU Amendment executed by
Crystal Park, and (f) deliver to Crystal Park the Non-Foreign Affidavit and the
Title Policy covering the Option Property subject only to the Permitted
Exceptions, and an original MOU Amendment executed by Agency.
6.5.2 Upon the Close of Escrow, title to the Option Property shall
be conveyed to Crystal Park, subject only to the Permitted Exceptions, free and
clear of any rights of parties in possession, other than CCM, pursuant to that
certain Amended and Restated Lease dated February 14, 2000, between Crystal Park
and CCM.
7. TITLE POLICY. It shall be a condition to Crystal Park's obligations
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hereunder that, on the Closing Date, (i) the Title Company be prepared and
committed to issue to Crystal Park an ALTA Policy of Title Insurance (the "Title
Policy") in the amount of the Purchase Price, showing fee title vested in
Crystal Park, subject only to a lien to secure payment of taxes, not delinquent,
the Title Company's standard and customary exceptions set forth in said Title
Policy, matters affecting the condition of title created by or with the consent
of Crystal Park or as a result of Crystal Park's (or any party on behalf of
Crystal Park) acts or omissions, and those title matters described on Exhibit I
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hereto ("Permitted Exceptions"); and (ii) Old Republic Title Insurance Company
shall be prepared and committed to issue such endorsements to Crystal Park's
Title Insurance Policy No. SV 2205382, eliminating the REA, DDA, the Memorandum
of Lease dated July 31, 1995, the restrictive covenants set forth in the Casino
Parcel Deed (other than the nondiscrimination covenants), the Deed of Trust and
the UCC-1 Financing Statement from Schedule B thereto.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS.
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8.1 Agency's Representations, Warranties. Agency hereby represents and
warrants as follows:
8.1.1 Valid. This Agreement constitutes a valid and binding obligation
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of Agency and is enforceable against Agency in accordance with its
terms;
8.1.2 Authorization. The execution and delivery of all instruments and
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documents required hereunder to be obtained or authorized by Agency in order to
consummate this transaction have been or will be obtained and authorized as so
required;
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8.1.3 Governmental Records. Agency has received no written notice of
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any governmental proceeding or investigation pending against the Option Property
which has not been disclosed to Crystal Park. Agency has delivered to Crystal
Park all files in the possession of the City and/or Agency planning, zoning and
building and safety departments applicable to the Option Property and on the
Closing Date, the zoning applicable to the Owned Property and the Option
Property shall be M-H (Heavy Manufacturing); and
8.1.4 Foreign Person. Agency is not a "foreign person" within the
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meaning of the Internal Revenue Code of 1954, as amended (the "Code"), the
transaction contemplated hereby does not constitute a disposition of a U.S. real
property interest by a foreign person, and at the Close of Escrow no person,
including, without limitation, Crystal Park, its counsel and the Title Company,
will be subject to the withholding requirements of Section 1445 of the Code;
8.1.5 Eminent Domain. To Agency's actual knowledge, there are no
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actions, litigation or proceedings pending to take all or a portion of the
Option Property, or any interest therein, by eminent domain;
8.1.6 Acquire Property. To Agency's actual knowledge, there are no
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persons or entities claiming, through Agency, any rights to acquire the Option
Property;
8.1.7 Entitlements. The Property has all necessary land use
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entitlements, including without limitation, zoning approvals, development
permits, conditional use permits, and subdivision approvals required for the
development and operation of the hotel and casino thereon, including ancillary
facilities which may include, without limitation, restaurants, a night club, a
sports bar and other entertainment facilities, as a lawfully permitted
conforming use under all applicable City laws, including without limitation, the
current City of ▇▇▇▇▇▇▇ General Plan, Community Redevelopment Plan, and Zoning
Code.
The representations and warranties of Agency set forth in this Agreement
shall be true on and as of the Close of Escrow as if those representations and
warranties were made on and as of such time, subject to any qualifications
thereof made by Agency in a written notice delivered to Crystal Park within ten
(10) days after Agency obtains new knowledge during Escrow of information with
respect thereto that would cause Agency to change such representation or
warranty.
8.2 Crystal Park's Representations and Warranties. Crystal Park represents
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and warrants to Agency as follows, all of which shall survive the Close of
Escrow:
8.2.1 Valid. This Agreement constitutes a valid and binding obligation
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of Crystal Park and is enforceable against Crystal Park in accordance with its
terms;
8.2.2 Authorization. The execution and delivery of all instruments and
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documents required hereunder to be obtained or authorized by Crystal Park in
order to consummate this transaction have been or will be obtained and
authorized as so required; and
The representations and warranties of Crystal Park set forth in this
Agreement shall be true on and as of the Close of Escrow as if those
representations and warranties were
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made on and as of such time, subject to any qualifications thereof made by
Crystal Park in a written notice delivered to Agency within ten (10) days after
Crystal Park obtains new knowledge during Escrow of information with respect
thereto that would cause Crystal Park to change such representation or warranty.
9. CONDEMNATION. If prior to the Close of Escrow the Option Property is taken
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by any entity by condemnation or with the power of eminent domain, or if the
access thereto is reduced or restricted thereby (or is the subject of a pending
taking which has not yet been consummated), Agency shall immediately notify
Crystal Park of such fact. In such event, Crystal Park shall have the right, in
Crystal Park's sole discretion, to (a) terminate this Agreement and the Escrow
upon written notice to Agency and Escrow Holder not later than seven (7) days
after receipt of Agency's notice thereof or (b) Crystal Park may proceed to
consummate the transaction provided for herein at Crystal Park's sole election,
in which event Agency shall assign and turn over, and Crystal Park shall be
entitled to receive and keep, any and all awards made or to be made in
connection with such condemnation or eminent domain proceeding, and the parties
shall proceed to the Close of Escrow pursuant to the terms hereof, without any
reduction in the Purchase Price.
10. BROKERS. Agency and Crystal Park each represents and warrants to the other
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that they have not dealt with or been represented by any brokers or finders in
connection with this Agreement. Crystal Park and Agency each agree to indemnify
and hold harmless the other against any loss, liability, damage, cost, claim or
expense (including reasonable attorneys' fees) incurred by reason of any
brokerage fee, commission or finder's fee which is payable or alleged to be
payable to any broker or finder, by the indemnifying party. Notwithstanding
anything to the contrary contained herein, the representations, warranties,
indemnities and agreements contained in this Section 10 shall survive the Close
of Escrow or earlier termination of this Agreement.
11. GENERAL PROVISIONS.
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11.1 Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which, taken together, shall
constitute one and the same instrument.
11.2 Further Assurances. Each of the parties agrees to execute and deliver
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such other instruments and perform such acts, in addition to the matters herein
specified, as may be appropriate or necessary to effectuate the agreements of
the parties, whether the same occurs before or after the Close of Escrow.
11.3 Entire Agreement. This Agreement, together with all Exhibits hereto
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and documents referred to herein, to which Agency and Crystal Park are parties,
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede all prior understandings or agreements. This
Agreement may be modified only by a writing signed by both parties. All exhibits
to which reference is made in this Agreement are deemed incorporated in this
Agreement whether or not actually attached.
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11.4 Headings. Headings used in this Agreement are for convenience or
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reference only and are not intended to govern, limit, or aid in the construction
of any term or provision hereof.
11.5 Choice of Law. This Agreement and each and every related document are
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to be governed by, and construed in accordance with, the laws of the State of
California.
11.6 Severability. If any term, covenant, condition or provision of this
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Agreement, or the application thereof to any person or circumstance, shall to
any extent be held by a court of competent jurisdiction or rendered by the
adoption of a statute by the State of California or the United States invalid,
void or unenforceable, the remainder of the terms, covenants, conditions or
provisions of this Agreement, or the application thereof to any person or
circumstance, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
11.7 Waiver of Covenants, Conditions or Remedies. The waiver by one party
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of the performance of any covenant, condition or promise, or of the time for
performing any at, under this Agreement shall not invalidate this Agreement nor
shall it be considered a waiver by such party of any other covenant, condition
or promise, or of the time for performing any other act required, under this
Agreement. The exercise of any remedy provided in this Agreement shall not be a
waiver of any other remedy provided by law, and the provisions of this Agreement
for any remedy shall not exclude any other remedies unless they are expressly
excluded.
11.8 Legal Advice. Each party has received independent legal advice from
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its attorneys with respect to the advisability of executing this Agreement and
the meaning of the provisions hereof. The provisions of this Agreement shall be
construed as to the fair meaning and not for or against any party based upon any
attribution to such party as the sole source of the language in question.
11.9 Time of the Essence. Time shall be of the essence as to all dates and
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times of performance, whether they are contained herein or contained in any
escrow instructions to be executed pursuant to this Agreement, and all escrow
instructions shall contain a provision to this effect. Any obligation that falls
due on a Saturday, Sunday or legal holiday, shall be deemed to fall due on the
next business day.
11.10 Relationship of Parties. The parties agree that their relationship
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is that of seller and buyer, and that nothing contained herein shall constitute
either party the agent or legal representative of the other from any purpose
whatsoever, nor shall this Agreement be deemed to create any form of business
organization between the parties hereto, nor is either party granted the right
or authority to assume or create any obligation or responsibility on behalf of
the other party, nor shall either party be in any way liable for any debt of the
other.
11.11 No Obligations to Third Parties. Except as otherwise expressly
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provided herein, the execution and delivery of this Agreement shall not be
deemed to confer any rights upon, nor obligate any of the parties hereto, to any
person or entity other than the parties hereto.
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11.12 Successors and Assigns. This Agreement shall be binding upon and
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shall inure to the benefit of the respective successors and assigns of the
parties hereto (as permitted pursuant to the provisions of this Agreement).
11.13 Attorneys' Fees. If any party hereto institutes an action or
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proceeding for a declaration of the rights of the parties under this Agreement,
for injunctive relief, for an alleged breach or default of, or any other action
arising out of, this Agreement, or the transactions contemplated hereby, or if
any party is in default of its obligations pursuant thereto, whether or not suit
is filed or prosecuted to final judgment, the non-defaulting party or prevailing
party shall be entitled to its actual attorneys' fees and to any court costs
incurred, in addition to any other damages or relief awarded.
11.14 Notices. All notices and demands which either party is required or
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desires to give to the other shall be given in writing by U.S. certified mail,
return receipt requested with appropriate postage paid, by personal delivery, by
facsimile or by private overnight courier service to the address or facsimile
number set forth below for the respective party, provided that if any party
gives notice of a change of name or address or number, notices to that party
shall thereafter be given as demanded in that notice. All notices and demands
so given shall be effective upon receipt by the party to whom notice or demand
is being given, except that any notice given by certified mail shall be deemed
delivered three (3) days after deposit in the United States mail.
If to Crystal Park: Crystal Park Hotel and Casino Development Company, LLC
c/o Pinnacle Entertainment, Inc
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇ ▇▇▇▇-▇▇▇▇
Attention: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to: Irell & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
If to Agency: The Community Redevelopment Agency
of the City of ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Executive Director
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11.15 Cooperation in Exchange. Agency acknowledges that Crystal Park may
-----------------------
acquire the Property from Agency as part of a tax-deferred exchange by Crystal
Park pursuant to Section 1031 of the Internal Revenue Code of 1986 ("Code"), and
that Crystal Park has the right to restructure all or a part of the within
transaction as provided in Internal
-11-
Revenue Code (S) 1031 as a concurrent or delayed (non-simultaneous) tax deferred
exchange for the benefit of Crystal Park. Agency agrees to cooperate, and if
requested by Crystal Park, to accommodate Crystal Park in any such exchange,
provided that (i) such cooperation and/or accommodation shall be at no further
cost or liability to Agency and Crystal Park hereby indemnifies Agency in
connection therewith; and (ii) the restructuring of the within transaction shall
not prevent or delay the Closing Date. Crystal Park, in electing to structure
the sale as an exchange, shall have the right to substitute another entity or
person, in Crystal Park's place and stead. Agency and Crystal Park acknowledge
and agree that such substitution will not relieve the herein named Crystal Park
of any liability or obligation hereunder, and Agency shall have the right to
look solely to said herein named Crystal Park with respect to the obligations of
Crystal Park under this Agreement.
[Signatures follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
ATTEST: "AGENCY"
The Community Redevelopment Agency of the
City of ▇▇▇▇▇▇▇, a public body, corporate
___________________________________________ and politic
CLERK OF THE AGENCY
APPROVED AS TO FORM AND LEGALITY: By:_________________________________________
Title:______________________________________
____________________________________________ "CRYSTAL PARK"
CITY ATTORNEY
Crystal Park Hotel and Casino
Development Company, LLC,
a California limited liability company
By: HP/Compton, Inc.,
its sole member
By:__________________________________
Title:_______________________________
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EXHIBIT A
---------
PROPERTY DESCRIPTION
(Owned Property, Option Property and Relinquished Property)
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EXHIBIT B
---------
1. Assignment, Assumption and Consent Agreement dated as of July 31, 1995.
2. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
dated as of July 31, 1995 and recorded August 3, 1995 as Instrument No. 95-
1265414 ("Agency Deed of Trust").
3. Offset Agreement dated as of July 31, 1995.
4. Reciprocal Easement Agreement dated as of January 30, 1997 and recorded
April 16, 1997 as Instrument No. 97-574466.
5. Representations and Warranties Agreement dated as of August 2, 1995.
6. Assignment, Assumption and Consent Agreement, dated July 18, 1996.
7. Memorandum of Understanding, dated as of September 30, 1996.
8. Memorandum of Lease and Option to Purchase recorded August 3, 1995 as
Instrument No. ▇▇-▇▇▇▇▇▇▇
9. Financing Statement Recorded August 3, 1995 as Instrument No. ▇▇-▇▇▇▇▇▇▇
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EXHIBIT C
---------
Form of MOU Amendment
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EXHIBIT D
---------
Form of Quitclaim Deed
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RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
Irell & ▇▇▇▇▇▇▇ LLP
1800 Avenue of the Stars
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DOCUMENTARY TRANSFER TAX IS $______0__________
____ computed on full value of interest orproperty
conveyed, or
____ computed on full value less value of lienor
encumbrances remaining at time of sale
-------------------------------------------------------------------------------
QUITCLAIM DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
CRYSTAL PARK HOTEL and CASINO DEVELOPMENT COMPANY,LLC,
a California limited liability company
does hereby REMISE, RELEASE AND FOREVER QUITCLAIM to
THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF ▇▇▇▇▇▇▇,
a public body, corporate and politic
the real property in the City of ▇▇▇▇▇▇▇, County of Los Angeles, State of
California, described in Exhibit A attached hereto and incorporated herein
---------
by this reference.
CRYSTAL PARK HOTEL and CASINO
DEVELOPMENT COMPANY, LLC
a California limited liability company
Dated _________________ By: HP/Compton, its sole member
By: ____________________________
Its:____________________________
MAIL TAX STATEMENTS TO:
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On ______________________ before me, _____________________________________,
a notary public for the State of California, personally appeared
___________________________ _________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature ____________________________________
Notary Public
EXHIBIT E
---------
Form of REA/DDA Termination
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Irell & ▇▇▇▇▇▇▇ LLP
1800 Avenue of the Stars
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
SPACE ABOVE LINE FOR RECORDER'S USE
TERMINATION OF RECIPROCAL EASEMENT AGREEMENT AND AMENDED AND RESTATED
DISPOSITION AND DEVELOPMENT AGREEMENT, AGREEMENT OF PURCHASE AND SALE AND LEASE
WITH OPTION TO PURCHASE
A. This Termination of Reciprocal Easement Agreement and Amended and Restated
Disposition and Development Agreement, Agreement of Purchase and Sale and
Lease with Option to Purchase (this "Termination Agreement") is made and
entered into as of ________________, 2001, by and between Crystal Park Hotel
and Casino Development Company, LLC ("Crystal Park") and The Community
Redevelopment Agency of the City of ▇▇▇▇▇▇▇ ("Agency") with reference to
the following facts.
B. Crystal Park is the owner in fee simple of that certain parcel of real
property located in the City of ▇▇▇▇▇▇▇, State of California, more
particularly described on Exhibit A attached hereto and incorporated herein
---------
by this reference ("Crystal Park Property").
C. Agency is the owner in fee simple of those certain parcels of real property
located in the City of ▇▇▇▇▇▇▇, State of California, more particularly
described on Exhibit B attached hereto and incorporated herein by this
---------
reference ("Agency Property").
D. The Crystal Park Property and a portion of the Agency Property are subject
to that certain Reciprocal Easement Agreement, dated as of January 30, 1997,
and recorded as Instrument No. 97-574466 in the office of the County
Recorder for the County of Los Angeles (the "REA"), pursuant to which the
Crystal Park Property and the Agency Property are subject to certain
easements.
E. Crystal Park and Agency are parties to that certain Amended and Restated
Disposition and Development Agreement, Agreement of Purchase and Sale, and
Lease with Option to Purchase dated as of April 4, 1995 (the "DDA") and
referenced in that certain Memorandum of Lease and Option to Purchase
recorded August 3, 1995 as Instrument No. ▇▇-▇▇▇▇▇▇▇.
F. Crystal Park and Agency are parties to that certain Agreement and Joint
Escrow Instructions dated January __, 2001, between Crystal Park and the
Agency (the "Agreement"), whereby Crystal Park agreed to purchase a portion
of the Agency Property. Pursuant to the Agreement, the parties agreed to
terminate the REA and the DDA as of the Closing Date (as defined in the
Agreement).
NOW THEREFORE, for good and valuable consideration, Crystal Park and Agency
hereby agree as follows.
1. Effective as of the date hereof, the REA and the DDA shall terminate and be
of no further force and effect.
2. Agency and Crystal Park each agree, upon the other party's request at any
time and from time to time after the date hereof and without further
consideration, to execute and deliver such other instruments and perform
such acts, in addition to the matters herein specified, as may be reasonably
considered by the requesting party as appropriate or necessary to better
effectuate the agreements of the parties to terminate the REA and the DDA.
3. This Termination Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first written above.
Crystal Park Hotel and Casino Development Company,
LLC,
a California limited liability company
By: HP/Compton, Inc., its sole member
By:______________________
Title:___________________
The Community Redevelopment Agency of the ATTEST:
City of ▇▇▇▇▇▇▇,
a public body, corporate and politic __________________________
CLERK OF THE AGENCY
By:______________________________ APPROVED AS TO FORM
AND LEGALITY
Title:____________________________
__________________________
CITY ATTORNEY
-2-
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On ______________________ before me, _____________________________________,
a notary public for the State of California, personally appeared
___________________________ _________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature _________________________________
Notary Public
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On ______________________ before me, _____________________________________,
a notary public for the State of California, personally appeared
___________________________ _________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________
Notary Public
EXHIBIT F
---------
Form of Grant Deed
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RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
Irell & ▇▇▇▇▇▇▇ LLP
1800 Avenue of the Stars
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DOCUMENTARY TRANSFER TAX IS $3740.00
___X_ computed on full value of interest or property conveyed, or
____ computed on full value less value of liens or encumbrances
remaining at time of sale
--------------------------------------------------------------------------------
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF ▇▇▇▇▇▇▇,
a public body, corporate and politic ("Grantor")
hereby GRANTS to
CRYSTAL PARK HOTEL and CASINO DEVELOPMENT COMPANY, LLC,
a California limited liability company ("Grantee")
the real property in the City of ▇▇▇▇▇▇▇, County of Los Angeles, State of
California, described in Exhibit A attached hereto and incorporated herein by
---------
this reference.
The Grantee herein covenants by and for himself, his heirs, executors,
administrators and assigns, and all persons claiming under or through them, that
there shall be no discrimination against or segregation of, any person or group
of persons on account of sex, marital status, race, age, handicaps, color,
religion, creed, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor
shall Grantee himself or any person claiming under or through him, establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants,
lessees, sublessees or vendees in the land herein conveyed. The foregoing
covenant shall run with the land.
Moreover, Grantee shall refrain from restricting the rental, sale or
lease of the Property, or any portion thereof, on the basis of sex, age,
handicap, marital status, race, color, religion, creed, ancestry or national
origin of any person. All deeds, leases or contracts of sale shall contain or
be subject to substantially the following nondiscrimination or nonsegregation
clauses:
1. In deeds: "The grantee herein covenants by and for himself, his
heirs, executors, administrators and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of sex, marital status, race, age,
handicaps, color, religion, creed, national origin or ancestry in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the grantee himself or any person claiming under or
through him, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the
land herein conveyed. The foregoing covenants shall run with the land."
2. In leases: "The lessee herein covenants by and for himself, his
heirs, executors, administrators and assigns, and all persons claiming under or
through him, and this lease is made and accepted upon and subject to the
following conditions:
"That there shall be no discrimination against or segregation of any person
or group of persons on account of sex, marital status, race, age, handicap,
color, religion, creed, national origin or ancestry, in the leasing, subleasing,
transferring, use, or enjoyment of the land herein leased, nor shall the lessee
himself, or any person claiming under or through him, establish or permit any
such practice or practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy, of tenants, lessees,
sublessees, subtenants or vendees in the land herein leased."
3. In contracts relating to the sale or transfer of the Property or any
interest therein: "There shall be no discrimination against or segregation of
any person or group of persons on account of sex, marital status, race, age,
handicap, color, religion, creed, national origin or ancestry in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor
shall the transferee himself or any person claiming under or through him,
establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy,
of tenants, lessees, subtenants, sublessees or vendees of the land."
THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF ▇▇▇▇▇▇▇,
a public body, corporate and politic
Dated __________________________ By:___________________________________
Its:__________________________________
ATTEST: APPROVED AS TO FORM AND LEGALITY
________________________________ ________________________________
CLERK OF THE AGENCY CITY ATTORNEY
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On ______________________ before me, _____________________________________,
a notary public for the State of California, personally appeared
___________________________ _________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature _______________________________
Notary Public
assign, and all persons claiming under or through them, that there shall be no
discrimination against or aegregation of, any person or group of persons on
account of sex, marital status, race, age, handicaps, color, religion, creed,
national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein conveyed, nor shall the
grantee himself or any person claiming under or through him, establish or permit
any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land herein conveyed. The foregoing
covenants shall run with the land."
2. In leases: "The lessee herein covenants by and for himself, his heirs,
executors, administrators and assigns, and all persons claiming under or
through him, and this lease is made and accepted upon and subject to the
following conditions:
"That there shall be no discrimination against or segregation of any person
or group of persons on account of sex, marital status, race, age, handicap,
color, religion, creed, national origin or ancestry, in the leasing, subleasing,
transferring, use, or enjoyment of the land herein leased, nor shall the lessee
himself, or any person claiming under or through him, establish or permit any
such practice or practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy, of tenants, lessees,
sublessees, subtenants or vendees in the land herein leased."
3. In contracts relating to the sale or transfer of the Property or
any interest therein: "There shall be no discrimination against or segregation
of any person or group of persons on account of sex, marital status, race, age,
handicap, color, religion, creed, national origin or ancestry in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor
shall the transferee himself or any person claiming under or through him,
establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy,
of tenants, lessees, subtenants, sublessees or vendees of the land."
THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF ▇▇▇▇▇▇▇,
a public body, corporate and politic
Dated __________________________ By:___________________________________
Its:__________________________________
ATTEST: APPROVED AS TO FORM AND LEGALITY
________________________________ _________________________________
CLERK OF THE AGENCY CITY ATTORNEY
-2-
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On ______________________ before me, _____________________________________,
a notary public for the State of California, personally appeared
___________________________ _________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________
Notary Public
EXHIBIT H
---------
Form of Reconveyance
-21-
EXHIBIT I
---------
PERMITTED EXCEPTIONS
The following exceptions as identified in Schedule B-Section 2 of the Title
Commitment No. 2027230-21 dated November 28, 2000 shall be "Permitted
Exceptions":
2 Easement for flood control recorded March 28, 1931
3 Easement for pipe lines recorded December 8, 1953
4 The fact that the said land is within the Walnut Industrial Park
Redevelopment Area as recorded May 20, 1977 as Instrument No. 77-531842
5 Easement for public utilities recorded September 25, 1987 as
Instrument No. ▇▇-▇▇▇▇▇▇▇
6 Easement for public utilities recorded October 29, 1987 as Instrument
No. ▇▇-▇▇▇▇▇▇▇
7 Certificate of Exemption recorded August 3, 1995 as Instrument No.
▇▇-▇▇▇▇▇▇▇
9 Only that Unrecorded Lease dated December 19, 1997 between Crystal
Park Hotel and Casino Development Company, LLC and California Casino Management
-22-
