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EXHIBIT 10.91
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into on this ____ day
of December, 1995, by and between OVERLOOK LODGE LIMITED LIABILITY COMPANY, a
Colorado limited liability company ("Seller"), and PREFERRED EQUITIES
CORPORATION, a Nevada corporation ("Purchaser"). In consideration of the
mutual covenants and promises herein set forth, the parties agree as follows:
1. PURCHASE AND SALE. Seller agrees to sell to Purchaser and
Purchaser agrees to purchase from Seller that certain parcel of real property
(the "Land") commonly known as Overlook Lodge located at 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx Xxxxxxx, Xxxxx County, Colorado, as more particularly described on
Exhibit "A" attached to this Agreement, together with all of Seller's right,
title and interest in and to all of the following property and rights:
(a) All improvements located on the Land, including buildings,
structures and other facilities (the "Improvements"). The
Land and the Improvements are hereinafter collectively
referred to as the "Realty";
(b) All fixtures, equipment, furniture and items of personal
property used in the operation, repair and maintenance of the
Realty, and situated on the Realty (the "Personalty");
(c) All trademarks, tradenames including but not limited to
"Overlook Lodge", licenses, leases, permits, franchise
agreements, authorizations and approvals, if any, pertaining
to ownership and/or operation of the Realty which are
separable and transferable, including but not limited to the
Contracts, Insurance Policies, Licenses, Plans and Studies, as
defined in Section 6. hereof; and
(d) All strips and gores of land lying adjacent to the Realty (but
which are not otherwise part of the Property, as hereafter
defined), together with all easements, privileges,
rights-of-way, riparian and
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other water rights, and appurtenances pertaining to or
accruing to the benefit of the Realty that are owned or
controlled by Seller, if any.
The Realty and all of the other property and rights described in this Section
1. and Section 6. to the extent Contracts acceptable to Purchaser are assigned
to Purchaser pursuant to 14(f) hereof are hereinafter collectively called the
"Property".
2. PURCHASE PRICE. The purchase price to be paid by Purchaser
to Seller for the Property is Three Million Two Hundred Fifty Thousand and
No/100 ($3,250,000.00) Dollars (the "Purchase Price").
3. TERMS OF PAYMENT. The Purchase Price shall be paid to Seller
as follows:
(a) $25,000 deposit as part down payment (hereinafter referred to,
together with any additional down payments and any interest
earned thereon, as the "Xxxxxxx Money"), delivered to the
Escrow Agent, (defined in Section 4.), on November 21, 1995;
(b) An additional $75,000 in Xxxxxxx Money, payable to the Escrow
Agent upon execution of this Agreement; and
(c) The balance of the Purchase Price will be payable in cash to
Seller at Closing (defined in Section 4.).
4. CLOSING DATE. The sale of the Property from Seller to
Purchaser will be closed (the "Closing") through an escrow (the "Escrow"), in
accordance with customary escrow closings for Routt County, Colorado,
established with Eagle County Title Corporation, 000 Xxxxx Xxxxxxxx Xxxx Xxxx,
Xxxxx 000, Xxxx, Xxxxxxxx 00000, Attn: Xxxxxx Xxxxxxx ("Escrow Agent"). The
Escrow Agent shall deposit the Xxxxxxx Money in an interest-bearing account
with a federally insured Colorado commercial bank (the "Xxxxxxx Money Deposit")
until the expiration of the Inspection Period at which time the Escrow Agent
shall either (i)
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deliver the Xxxxxxx Money to Seller if Purchaser does not terminate this
Agreement or (ii) return the Xxxxxxx Money to Purchaser if Purchaser elects to
terminate this Agreement pursuant to Section 7. If Purchaser elects not to
terminate this Agreement on or before the expiration of the Inspection Period,
then prior to such delivery of the Xxxxxxx Money Deposit to Seller, the Escrow
Agent shall record in the Routt County Colorado real property records, pursuant
to an escrow instruction executed contemporaneously herewith, a memorandum of
this Agreement against the Land (the "Lien"), and thereafter, other than for
non-performance by Seller, the Xxxxxxx Money Deposit shall be considered
non-refundable, so long as Seller continues to be in compliance with all of its
obligations under this Agreement. Purchaser shall provide Seller and Escrow
Agent with written notice of the date of Closing (the "Closing Date") not later
than thirty (30) calendar days prior to the Closing Date. If Purchaser does
not terminate the Agreement and the Xxxxxxx Money is delivered to Seller, the
Xxxxxxx Money will be credited against the Purchase Price at Closing. The
Xxxxxxx Money to be credited against the Purchase Price will be increased by a
per diem accrual of imputed interest on the Xxxxxxx Money calculated from the
date of disbursement to Seller to and including the Closing Date, by dividing
the annual rate of interest paid by the depository holding the Xxxxxxx Money
Deposit on the date of disbursement to Seller by 360, times the number of days
from the Xxxxxxx Money delivery date to Seller to and including the Closing
Date.
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The Closing Date shall occur on or before April 30, 1996 unless
extended as provided herein; however, in no event shall the Closing occur prior
to April 15, 1996 or later than September 30, 1996 (the "Outside Closing
Date").
4A. EXTENDED CLOSING DATE. Purchaser shall have five (5) options to
extend the Closing Date from the last business day of the month commencing
April 30, 1996 (each hereinafter referred to respectively as a "Monthly
Extension") to the last day of the next following month; however, in no event
shall the closing occur later than the Outside Closing Date. Each Monthly
Extension shall be exercised by delivery to the Seller of $25,000.00 paid by
check, on or before the last day of the month for the ensuing monthly
extension. Monthly Extension payments shall not be credited against the
Purchase Price and shall be a payment made directly to Seller in consideration
for the extension of the Closing Date.
In the event the Closing occurs after April 30, 1996, on a Closing
Date other than the last day of a given month, then the Monthly Extension
payment for said month will be prorated as of the Closing Date.
5. TITLE. Within ten (10) days following execution of this
Agreement by both parties, Seller, at Seller's expense, shall deliver to
Purchaser a commitment (the "Commitment") for an owner's ALTA Form B
Marketability title insurance policy from Chicago Title Insurance Company (the
"Title Policy"). The Commitment is to be ordered through Commonwealth Land
Title Company of Dallas, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Maxus Energy
Tower, Xxxxxx, XX 00000, Attn: Xxx Xxxxxx ("Title Company") who shall utilize
Escrow Agent for the abstract/title work, in favor of Purchaser in the amount
of the Purchase Price. The Commitment shall be endorsed and updated at
Seller's expense within ten (10) days before Closing. The Title Policy will be
delivered to Purchaser at Seller's expense at Closing. The Commitment, any
endorsement or update thereof, and the Title Policy shall show Seller to be
vested with good, marketable and
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insurable fee simple title to the Realty, free and clear of all liens,
encumbrances and other matters, except only the following (the "Permitted
Exceptions"):
(a) Ad valorem real estate taxes for the year of Closing, provided
same are not then due and payable, and subsequent years;
(b) All applicable zoning ordinances and regulations, none of
which shall prohibit or otherwise interfere with all uses
presently being made of the Property and/or Purchaser's
intended use of the Property as an interval ownership
(timeshare) resort (the "Intended Use");
(c) Those matters acceptable to Purchaser as determined and shown
on Exhibit "B", to be attached prior to the expiration of the
Inspection Period; and
(d) Restrictions or matters appearing on the plat or otherwise
common to the subdivision of which the Property might be a
part, none of which shall prohibit or otherwise interfere with
all uses presently being made of the Property and/or
Purchaser's Intended Use of the Property.
Title shall be deemed good, marketable and insurable only if the
Commitment allows for issuance of the Title Policy effective as of Closing Date
at minimum promulgated risk rate premiums, without any guarantees and without
any exceptions, standard or otherwise, other than the Permitted Exceptions.
Purchaser shall have until the expiration of thirty (30) days (the "Title
Review Period") from receipt of the Commitment and hard copies of all items
noted as exceptions therein, within which to examine same. Purchaser, at its
expense, shall order a survey (the "Survey") immediately upon execution of this
Agreement and Purchaser shall have until the expiration of thirty (30) days
(the "Survey Review Period") from receipt of the Survey to examine same;
however, in no event shall the Title Review Period or the Survey Review Period
extend beyond the Inspection Period. If Purchaser finds title or the data
shown on the Survey to be defective, Purchaser
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shall, no later than the expiration of the Title Review Period or Survey Review
Period, notify Seller in writing specifying any such defect(s) (the "Defects")
(which Defects shall also include any UCC-1 Financing Statements filed against
any of the Personalty with the Colorado Secretary of State); provided that if
Purchaser fails to give Seller written notice of Defects before the expiration
of the Title Review Period or the Survey Review Period, then any such Defects
shown in the Commitment or Survey shall be described on Exhibit "B" and shall
be deemed to be waived as title objections to Closing. Purchaser may raise as
additional objections, however, any matters first shown by the endorsement of
the Commitment. If Purchaser has given Seller timely written notice of Defects
and the Defects cause title to the Property to be other than as represented in
this Agreement, Seller shall use its best efforts to cause such Defects to be
cured by the Closing Date, but shall be under no obligation to pay any sum of
money to obtain a cure, except for the removal by payment, bonding, or
otherwise of any lien against the Property capable of removal by the payment of
money or bonding. In the event that Seller is unable or not obligated
hereunder to cure a Defect, Seller shall give Purchaser written notice of any
such Defect(s) and Purchaser, within ten (10) days of receipt of such written
notice shall have the option of either: (i) waiving such Defect(s); or (ii)
cancelling this Agreement, in which event the Escrow Agent shall return the
Xxxxxxx Money Deposit to Purchaser. In the event that Seller does not
eliminate any Defects not waived by Purchaser pursuant to the preceding
sentence as of the Closing Date, Purchaser shall have the option of either: (i)
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Closing and accepting the title "as is," and deducting from the Purchase Price
the amount of any lien or encumbrance which can be satisfied by the payment of
money; or (ii) cancelling this Agreement in which event the Escrow Agent shall
return the Xxxxxxx Money Deposit to Purchaser, whereupon both parties shall be
released from all further obligations under this Agreement, except only for
those obligations which are intended to survive Closing and/or any earlier
termination of this Agreement, unless such Defects were caused by Seller's
willful act or willful omission subsequent to the execution hereof, in which
event Seller shall remain liable to Purchaser for damages caused thereby.
Seller shall execute appropriate documents as required for "gap coverage" by
the title insurer.
6. DELIVERIES. Within ten (10) days following execution of this
Agreement by both parties (and thereafter, as applicable), Seller shall deliver
to Purchaser true, correct and complete copies of:
(b) All contracts, franchise agreements, pre-paid reservation
deposits or other reservation agreements, leases, tenancies,
arrangements, licenses, concessions, easements, service
arrangements, employment contracts or agreements, brokerage
agreements, and any and all other contracts or agreements,
either recorded or unrecorded, written or oral, affecting the
Property or any portion thereof, or the use thereof (the
"Contracts"), a true, correct and complete list of which
Contracts shall be attached hereto as Exhibit "C", and all new
Contracts hereafter entered into by Seller as, and solely to
the extent, permitted hereby;
(c) All insurance policies presently in effect relating to the
Property or any portion thereof or the use thereof, including
but not limited to fire and extended coverage, liability
insurance, workmen's compensation insurance and flood
insurance (the "Insurance Policies");
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(d) All certificates of occupancy, access permits, liquor
licenses, food and beverage licenses, permits, licenses,
authorizations or approvals (other than those which are no
longer in effect) issued by any governmental body or agency
having jurisdiction over the Property, related to the
ownership and/or operation of the Property (the "Licenses");
(e) The xxxx or bills issued for the years 1993, 1994 and 1995
when available for real estate and personal property taxes and
any subsequently issued notices pertaining to real estate or
personal property taxes or assessments applicable to the
Property;
(f) All engineering and architectural plans and as-built plans,
specifications, and drawings relating to the Property (the
"Plans") and all engineering and environmental studies or
audits relating to the Property ("Studies"), which are within
the control or possession of Seller.
Furthermore, following execution of this Agreement by both parties
(and thereafter, as applicable) Seller shall make available to Purchaser during
normal business hours at the offices of Seller on the Realty, all documents,
books and records, and other relevant information relating to the ownership and
operation of the Property, including but not limited to:
(aa) The xxxx or bills issued in the years 1993, 1994, and 1995 to
date for utility usage at the Property; and
(bb) Operating and financial statements for the Property, including
but not limited to, profit and loss statements, balance
sheets, and payroll records for the years 1993, 1994 and 1995
year to date.
7. CONDITIONS PRECEDENT. The obligation of Purchaser to proceed
to Closing shall be subject to the following conditions precedent to Closing:
(a) Purchaser shall have until March 1, 1996 (the "Inspection
Period") to examine the Contracts, the Insurance Policies, the
Licenses, the Plans and the Studies to decide whether they are
satisfactory to Purchaser and to make such physical, zoning,
land use, environmental, and other examinations, inspections
and investigations of the Property or the use or operation
thereof which Purchaser, in Purchaser's sole discretion, may
determine to make. In the event Purchaser is not satisfied
with any of the foregoing, determined in Purchaser's sole and
absolute discretion for any or no reason, Purchaser may cancel
this transaction as hereinafter provided.
(b) Purchaser shall have until the expiration of the
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Inspection Period to make a physical inspection(s) of the
Property by architects, engineers, and/or environmental
specialists, and/or other agents, and/or employees of
Purchaser's choice, for the purpose of determining the
condition and suitability of the Property. In the event that,
based upon such inspection, Purchaser is not satisfied with
the condition of the Property, determined in Purchaser's sole
discretion for any or no reason, Purchaser may cancel this
transaction as hereinafter provided.
(c) As of the Closing, there shall be no leases, contracts,
arrangements or any other agreements of any nature whatsoever,
whether oral or written, other than the Contracts that are
acceptable to Purchaser, affecting the Property, that cannot
be cancelled by Purchaser upon not more than thirty (30) days'
notice and without payment of premium or charge therefor.
(d) As of the Closing, there shall be no advance reservations for
post-Closing guest room occupancy and all guest rooms at the
Property shall be free and clear of any and all occupants.
(e) As of the Closing, all of Seller's employees employed at the
Property shall be re-assigned or terminated, and no such
employees shall have any claim whatsoever against Purchaser
and/or the Property for back wages, withholding taxes or any
other matter.
(f) At all times during the term of this Agreement and as of
Closing, all of the representations and warranties by Seller
contained in this Agreement shall be true and correct in all
material respects.
In the event any of the foregoing conditions precedent are not
fulfilled as of the Closing Date (or earlier date as specified in subsection
(a) and (b) above where written notice of cancellation must be given on or
before expiration of the Inspection Period), then Purchaser shall have the
option of either: (i) waiving the condition and closing "as is", without
reduction in the Purchase Price or claim against Seller therefor, or (ii)
cancelling this Agreement by written notice to Seller given by not later than
the Closing Date, in which event the Seller shall return the Xxxxxxx Money
Deposit to Purchaser,
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whereupon both parties shall be released from all further obligations under
this Agreement, except those obligations which are specifically stated to
survive termination or Closing of this transaction.
8. SELLER'S REPRESENTATIONS. As a specific inducement for
Purchaser to enter into this Agreement, Seller represents and warrants to
Purchaser and agrees with Purchaser as follows:
(a) Seller has not entered into any pre-paid or other reservation
agreements, leases, tenancies, occupancy agreements,
contracts, arrangements, licenses, concessions, easements, or
other agreements, including, without limitation, service
arrangements and employment agreements, either recorded or
unrecorded, written or oral, affecting the Property, or any
portion thereof or the use thereof, other than the Contracts
and the Insurance Policies. Each of the Contracts: (i) is in
good standing and not in default or would be in default
subject to the giving of notice or passage of time or both,
(ii) fully assignable to Purchaser without any change in the
terms and provisions thereof, and (iii) except as expressly
provided to the contrary on Exhibit "C", may be cancelled by
Purchaser upon not more than thirty (30) days notice without
payment of premium or penalty therefor. No tenant occupying
space under a lease or any other agreement (i) has prepaid any
rent or any other sums, (ii) is holding over contrary to the
wishes of Seller, (iii) is entitled to the construction of any
tenant improvements or common area improvements, (iv) has any
right to set off against any amount of rent due or to become
due, and (v) has no understanding or agreement with Seller
regarding occupancy or any other usage of the Property except
as expressly shown on Exhibit "C". Seller shall not modify
any of the Contracts, or the Insurance Policies nor shall
Seller cancel or permit the cancellation of any of the
Insurance Policies, and Seller shall not enter into any new
Contract or other agreement affecting the Property, or any
portion thereof or the use thereof, other than for month to
month tenancies cancelable at will and Property room
reservations for occupancy to the Closing Date, without the
prior written consent of Purchaser.
(b) To the best of Seller's knowledge, Seller has received no
written notice of: (i) any pending improvement liens to be
made by any governmental authority with respect to the
Property; (ii) any violations of building codes and/or zoning
ordinances or other governmental regulations with respect to
the Property; (iii) any
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pending or threatened lawsuits with respect to the Property;
(iv) any pending or threatened condemnation proceedings with
respect to the Property; or (v) any defects or inadequacies in
the Property which would adversely affect the insurability of
the Property or increase the cost thereof.
(c) To the best of Seller's knowledge, Seller has received no
written notice of any fact or condition which would result in
the termination or impairment of access to the Property or the
discontinuation of necessary sewer, water, electric, gas,
telephone or other utilities or services to the Property.
(d) To the best of Seller's knowledge, all of the structural
elements, mechanical systems, utility systems and roofs of the
Property, and all of the Personalty included in this
transaction, are in good working order as of the Closing Date
and as of the Closing Date are not in need of repair or
replacement, ordinary wear and tear and routine maintenance
excepted. This Seller representation and warranty shall
terminate at Closing.
(e) During the period between the date of this Agreement and
Closing, Seller shall continue to operate and manage the
Property in a prudent, businesslike and responsible manner
consistent with its operation and management prior to the date
of this Agreement, except for the restrictions herein on
advance reservations, and keep same clear of accumulations of
trash, debris or overgrowth of vegetation. Seller shall: (i)
continue to maintain all of the present services to the
Property, (ii) make all repairs and replacements in the
ordinary course of business to the Property, (iii) not remove
any of the Personalty from the Property except in replacement
of same, and (iv) maintain the Insurance Policies in full
force and effect. In addition, Seller shall make all payments
due prior to Closing in connection with the Property,
including all utility payments and payments on any other
obligations affecting the Property. Any alterations,
installations, decorations, repairs (other than emergencies)
and other work to be performed by Seller prior to Closing,
must be first approved by Purchaser.
(f) Except only for those Defects which are to be satisfied and
released at Closing, Seller is vested with good, marketable
and insurable fee simple title to the Realty subject only to
the Lien, if and when recorded and the Permitted Exceptions as
provided herein; and Seller is vested with good and marketable
title to all of the Personalty free of all financing and other
liens or encumbrances (except only for those which are to be
satisfied and released at Closing).
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(g) Seller shall comply prior to Closing with all laws, rules,
regulations, and ordinances of all governmental authorities
having jurisdiction over the Property. Seller shall be
responsible for and shall promptly pay all amounts owed for
labor, materials supplied, services rendered and/or any other
bills or amounts related to Seller and Seller's ownership
and/or operation of the Property prior to Closing. Prior to
Closing Seller shall cooperate with Purchaser in obtaining, or
filing to obtain, any and all licenses and governmental
approvals deemed necessary by Purchaser for Purchaser's
Intended Use of the Property, including executing any and all
applications as may be required or necessary.
(h) Prior to Closing, no portion of the Property nor any interest
therein, beneficial or otherwise, shall, except for any
existing debt that is to be repaid at Closing, be alienated,
encumbered (other than by the Lien, if and when recorded),
conveyed or otherwise transferred. In addition, Seller shall
not initiate any negotiations for the potential sale of the
Property with any third party during the term hereof.
(i) Seller is a limited liability company duly formed and validly
existing under the laws of the State of Colorado. The
execution, delivery and performance of this Agreement by
Seller have been duly authorized and no consent of any other
person or entity to such execution, delivery and performance
is required to render this document a valid and binding
instrument enforceable against Seller in accordance with its
terms. Neither the execution of this Agreement or the
consummation of the transactions contemplated hereby will: (i)
result in a breach of, or default under, any agreement to
which Seller is a party or by which the Property is bound, or
(ii) violate any restrictions to which Seller is subject.
(j) Seller is not a "foreign person" within the meaning of the
United States tax laws and to which reference is made in
Internal Revenue Code Section 1445(b)(2).
(k) To the best of Seller's knowledge, without any independent
investigation or inquiry, but excluding the review of a Phase
I Environmental Assessment which may be supplied to Seller by
and through Purchaser, there has not been and there is not
now: (i) any Hazardous Substance (as hereinafter defined)
present on the Realty, (ii) any present or past generation,
recycling, reuse, sale, storage, handling, transport and/or
disposal of any Hazardous Substance on the Realty, or (iii)
any failure to comply with any applicable local, state or
federal environmental laws, regulations,
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ordinances or administrative or judicial orders relating to
the generation, recycling, reuse, sale, storage, handling,
transport and/or disposal of any Hazardous Substance. Seller
has not received any notice from any governmental authority
regarding the presence of any Hazardous Substance, any present
or past generation, recycling, reuse, sale, storage, handling,
transport and/or disposal of any Hazardous Substance or any
failure to comply with any applicable local, state or federal
environmental laws, regulations, ordinances or administrative
or judicial orders relating to the generation, recycling,
reuse, sale, storage, handling, transport and/or disposal of
any Hazardous Substance. As used herein, the term "Hazardous
Substance" means any substance or material defined or
designated as a hazardous or toxic waste material or
substance, or other similar term by any federal, state or
local environmental statute, regulation or ordinance presently
or hereinafter in effect, as such statute, regulation or
ordinance may be amended from time to time.
(l) Except as is disclosed on Exhibit "C", there will be no
pre-paid reservation deposit agreements allowing for guest
room occupancy later than April 15, 1996, leases or other
occupancy agreements, either written or oral, which affect the
Property and Seller will have exclusive possession of the
Property as of the Closing Date.
All representations and warranties made herein by Seller shall
be continuing and shall be true and correct on and as of the Closing
Date with the same force and effect as if made at that time, and all
of such representations and warranties shall survive the Closing
(except as to Section 8 (d) above which shall terminate at Closing,
and except to the extent the party relying on such representation or
warranty has knowledge or notice of a defect prior to the Closing but
nevertheless elects to consummate the Closing); provided, however,
that all representations and warranties (other than those expressed in
the Closing Documents as defined in Section 14), to the extent not the
basis of litigation instituted within six (6) months after the Closing
(time being of the essence), shall automatically expire and be of no
further force or effect.
PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS SET FORTH IN SECTION
8 HEREOF AND THE SPECIAL WARRANTY DEED, THE XXXX OF SALE AND OTHER CLOSING
DOCUMENTS TO BE DELIVERED BY SELLER AT THE CLOSING, SELLER HAS NOT MADE, AND
SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTY, GUARANTY OR
REPRESENTATIONS, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR
CONCERNING (i) THE NATURE AND CONDITION OF THE PROPERTY,
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INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, AND THE SUITABILITY
THEREOF AND OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
MAY ELECT TO CONDUCT THEREON AND (ii) THE COMPLIANCE OF THE PROPERTY OR ITS
OPERATION WITH ANY LAWS, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT OR OTHER
BODY. PURCHASER ACKNOWLEDGES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT
THE PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE
PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER EXCEPT
TO THE EXTENT SET FORTH IN THIS AGREEMENT OR IN DOCUMENTS OR INFORMATION
DELIVERED BY SELLER TO PURCHASER PURSUANT TO THIS AGREEMENT. EXCEPT AS
OTHERWISE SET FORTH IN THIS AGREEMENT, PURCHASER FURTHER ACKNOWLEDGES THAT ANY
INFORMATION PROVIDED AND TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS
OBTAINED FROM A VARIETY OF SOURCES AND SELLER (i) HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND (ii) MAKES NO
REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION EXCEPT TO THE EXTENT SET FORTH IN THIS AGREEMENT OR IN DOCUMENTS OR
INFORMATION DELIVERED BY SELLER TO PURCHASER PURSUANT TO THIS AGREEMENT.
SUBJECT TO SECTION 8 HEREOF, PURCHASER AGREES TO ACCEPT THE PROPERTY, AND
ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE BY
SELLER, ON AN "AS IS, WHERE IS, AND WITH ALL FAULTS" BASIS. PURCHASER
EXPRESSLY ACKNOWLEDGES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN SECTION 8 HEREOF AND ANY WARRANTY OF TITLE CONTAINED IN THE
SPECIAL WARRANTY DEED, XXXX OF SALE OR OTHER CLOSING DOCUMENTS TO BE DELIVERED
BY SELLER TO PURCHASER AT CLOSING, SELLER MAKES NO WARRANTY OR REPRESENTATION
OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF
LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, WITH RESPECT TO THE
PROPERTY.
FURTHER, EXCEPT AS SET FORTH IN SECTION 8 HEREOF, SELLER MAKES NO
REPRESENTATION OR WARRANTY WITH RESPECT TO THE PRESENCE ON OR BENEATH THE
PROPERTY (OR ANY PARCEL IN PROXIMITY THERETO) OF HAZARDOUS SUBSTANCES OR
MATERIALS WHICH ARE CATEGORIZED AS HAZARDOUS OR TOXIC UNDER ANY LOCAL, STATE OR
FEDERAL LAW, STATUTE, ORDINANCE, RULE OR REGULATION PERTAINING TO ENVIRONMENTAL
OR SUBSTANCE REGULATION, CONTAMINATION, CLEANUP OR DISCLOSURE AND SHALL HAVE NO
LIABILITY TO PURCHASER THEREFORE. BY ACCEPTANCE OF THIS AGREEMENT AND THE
SPECIAL WARRANTY DEED TO BE DELIVERED BY SELLER AT THE CLOSING, PURCHASER
ACKNOWLEDGES THAT PURCHASER'S OPPORTUNITY FOR
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INSPECTION AND INVESTIGATION OF THE PROPERTY (AND OTHER PARCELS IN PROXIMITY
THERETO) WILL BE ADEQUATE TO ENABLE PURCHASER TO MAKE PURCHASER'S OWN
DETERMINATION WITH RESPECT TO THE PRESENCE ON OR BENEATH THE PROPERTY (AND
OTHER PARCELS IN PROXIMITY THERETO) OF SUCH HAZARDOUS SUBSTANCES OR MATERIALS,
AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, PURCHASER ACCEPTS THE RISK
OF THE PRESENCE OF ANY SUCH SUBSTANCES OR MATERIALS. NOTHING CONTAINED HEREIN
IS INTENDED TO (i) RELIEVE SELLER FROM ANY LIABILITY IT MAY HAVE TO PURCHASER
OR TO THIRD PARTIES WITH RESPECT TO ENVIRONMENTAL MATTERS ARISING UNDER LOCAL,
STATE, OR FEDERAL ENVIRONMENTAL LAW, STATUTE, RULE OR REGULATION OR (ii) IMPOSE
UPON PURCHASER ANY IMPLIED INDEMNITY TO SELLER WITH RESPECT TO SUCH
ENVIRONMENTAL MATTERS.
IF DESIRED BY SELLER, THE LANGUAGE CONTAINED IN THIS SECTION OF THE
AGREEMENT SHALL BE INCORPORATED INTO ANY AND ALL DOCUMENTS EXECUTED IN
CONNECTION WITH THE CLOSING OF THE SALE OF THE PROPERTY TO PURCHASER.
9. REPRESENTATIONS OF PURCHASER. As a specific inducement for
Seller to enter into this Agreement, Purchaser, to the best of its knowledge
and belief, represents that the execution, delivery and performance of this
Agreement by Purchaser, subject to review and approval of the Board of
Directors, or Executive Committee thereof, of Purchaser, which review and
approval will be completed by the end of the Inspection Period, shall be the
legal, valid and binding agreement of the Purchaser.
10. DEFAULT PROVISIONS. In the event of the failure or refusal of
the Purchaser to close this transaction on or before the Closing Date as same
may be extended pursuant to the terms hereof, without fault on Seller's part
and without failure of title or any conditions precedent to Purchaser's
obligations hereunder, Seller shall receive or retain the Xxxxxxx Money Deposit
as agreed upon liquidated damages for said breach and as Seller's sole and
exclusive remedy for default of Purchaser, whereupon the parties shall be
relieved of all further
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obligations hereunder, except those obligations which are specifically stated
herein to survive the termination or Closing of this transaction.
In the event of a default by Seller under this Agreement, Purchaser at
its option shall have the right to: (i) receive the return of the Xxxxxxx Money
Deposit from Seller whereupon the parties shall be released from all further
obligations under this Agreement, except those obligations which are
specifically stated herein to survive the termination or Closing of this
transaction, unless the default was caused by the willful act, willful
omission, or the material misrepresentation of Seller in which event Seller
shall continue to be liable for damages caused thereby, anything to the
contrary notwithstanding, or, alternatively, (ii) seek specific performance of
the Seller's obligations hereunder and/or any other equitable remedies, without
thereby waiving damages.
Notwithstanding the foregoing, in the event of a default by either
party of any obligation which specifically survives Closing, then the
non-defaulting party shall be entitled to seek any legal redress permitted by
law or equity. The provisions hereof shall survive Closing.
11. PRORATIONS. Real estate and personal property taxes,
Insurance Policies (if assignable and assumed by Purchaser), rents (whether or
not actually collected), interest, costs and revenues, Monthly Extension
payment, if any, and all other proratable items shall be prorated as of the
Closing Date. Seller shall be responsible for the payment of all utility bills
and shall receive credit for any prepaid utility deposits as of
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the Closing Date. Seller shall pay all sales and/or use tax due on revenues
received and purchases made at or prior to the Closing Date and shall comply
with all statutory provisions necessary for Purchaser to avoid transferee
liability for same. In the event the taxes for the year of Closing are
unknown, the tax proration will be based upon the taxes for the prior year, and
at the request of either party, the taxes for the year of Closing shall be
reprorated and adjusted when the tax xxxx for such year is received and the
actual amount of taxes is known. The provisions of this section shall survive
the Closing.
12. IMPROVEMENT LIENS. Certified, confirmed or ratified liens for
governmental improvements as of the Closing Date, if any, shall be paid in full
by Seller, and pending liens for governmental improvements as of the Closing
Date shall be assumed by the Purchaser, provided that where the improvement has
been substantially completed as of the Closing Date, such pending lien shall be
considered certified.
13. CLOSING COSTS. The parties shall bear the following costs:
(a) The Purchaser shall be responsible for payment of the
following: (i) the cost of examining the Commitment and
updating and/or obtaining the Survey, (ii) any and all costs
and expenses of architectural, engineering and other
inspection and feasibility studies and reports incident to
Purchaser's inspections, and (iii) clerk's recordation fees
for recording the special warranty deed.
(b) The Seller shall be responsible for payment of the following:
(i) any costs associated with issuance of the Commitment
(including the premium for the Title Policy); and (ii) any
transfer taxes in connection with the delivery of the deed and
xxxx of sale including documentary stamp tax and surtax, and
(iii) recording costs on documents necessary to clear title.
(c) Each party shall pay its own legal fees except as
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provided in Section 22(c) below.
(d) The parties shall equally share the cost of Escrow.
14. CLOSING. The Closing shall be held at the offices of the
Escrow Agent.
At Closing, Seller shall execute and deliver to Purchaser through
Escrow the following Closing Documents:
(a) a good and sufficient special warranty deed subject only to
the Permitted Exceptions;
(b) an appropriate mechanic's lien affidavit, sufficient in form
and content for any title insurance company to delete the
standard exceptions for mechanic's liens, and, to the extent
of work performed in the ninety (90) days prior to Closing,
appropriate releases and indemnities to allow Purchaser to
obtain title insurance coverage over any unfiled liens;
(c) an affidavit of exclusive possession;
(d) an appropriate xxxx of sale with special warranty of title for
the Personalty;
(e) a non-foreign affidavit and/or certificate pursuant to Section
8(j) above;
(f) appropriate assignments and originals of all Contracts
acceptable to Purchaser pursuant to Section 7(c) hereof
including leases, deposits, Licenses, easements, and
rights-of-way;
(g) assignments and originals of any of the Insurance Policies,
contract rights, guarantees and warranties, intangible rights
and other property and rights included in this transaction
that Purchaser elects to take by assignment;
(h) appropriate evidence of Seller's formation, existence and
authority to sell and convey the Property;
(i) an appropriate "gap" affidavit and/or indemnity as required by
the title insurer;
(j) The Title Policy;
(k) estoppel certificates and attornment agreements acceptable to
Purchaser for all leases acceptable to Purchaser that are not
cancelable upon the giving of thirty (30) days notice or less;
(l) proof, satisfactory to Purchaser, of payment of all
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employee wages and associated payroll taxes; and
(m) such other items as may be required by Escrow Agent to
consummate the Closing.
At Closing, Purchaser shall deliver through Escrow to the Seller:
(a) The balance of the Purchase Price in cash; and
(b) Such other documents as may be required by Escrow Agent to
consummate the Closing.
At Closing, Seller and Purchaser shall each execute counterpart
Closing statements and such other documents as are reasonably necessary to
consummate this transaction.
15. NO BROKERAGE COMMISSION OR FINDER'S FEE. Except for Seller's
separate agreement with Colorado Group Realty, Inc. (the "Broker") and Broker's
separate agreement with any other broker or finder with respect to the
splitting of any of Broker's fee, each party hereto represents to the other
that it has not authorized any broker or finder to act on its behalf in
connection with the sale and purchase hereunder and that it has not dealt with
any broker or finder purporting to act on behalf of any other party, other than
for any sums owed Broker by Seller which are the sole and specific
responsibility of Seller, and each party hereto agrees to indemnify and hold
harmless the other party from and against any and all claims, losses, damages,
costs or expenses of any agreement, arrangement, or understanding alleged to
have been made by such party or on its behalf with any broker or finder in
connection with this Agreement or the transaction contemplated hereby.
16. ASSIGNABILITY. Purchaser shall be entitled to assign its
rights hereunder to any affiliate of Purchaser, provided that
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upon any such assignment the assignee assumes all obligations of Purchaser
hereunder, and Purchaser shall not be released from its obligations hereunder.
17. INSPECTIONS. With respect to the inspections contemplated under
Sections 6 and 7 of this Agreement, Seller agrees to allow Purchaser and
Purchaser's agents complete access to the Property to conduct engineering,
environmental and other studies or tests on the Property, provided, however,
that (i) the cost and expenses of Purchaser's investigations and tests shall be
borne solely by Purchaser, (ii) prior to the expiration of the Inspection
Period, Purchaser shall restore the Property to the condition which existed
prior to Purchaser's entry thereon and investigation thereof, (iii) in the
event the Closing does not occur and Seller is not in breach of this Agreement,
Purchaser shall deliver to Seller copies of all tests, reports and inspections
owned by Purchaser and conducted by Purchaser with respect to the Property, and
(iv) Purchaser shall not permit any mechanic's or materialmen's liens to attach
to the Property by reason of the performance of any work or the purchase of any
materials by Purchaser or any other party in connection with any studies or
tests conducted pursuant to this section. The foregoing covenants and
agreements of Purchaser shall survive any termination of this Agreement. All
information furnished by Seller to Purchaser in accordance with this Agreement
or obtained by Purchaser in the course of its investigations shall be treated
as confidential information by Purchaser and prior to Closing, Purchaser will
use its best efforts to prevent its agents and employees from divulging such
information except to parties
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reasonably necessary to analyze and investigate such information including, but
not limited to, Purchaser's attorneys and representatives and prospective
lenders. Purchaser shall indemnify, defend, and hold Seller harmless from and
against any claims, liabilities, causes of action, damages, losses and
expenses(including reasonable attorneys' fees) incident to, resulting from or
in any way arising out of any tests or inspections conducted by Purchaser on
the Property. The language contained in this section shall survive Closing and
any termination of this Agreement.
18. ESCROW AGENT. The Escrow Agent and Title Company shall not be
liable for any actions taken in good faith, but only for its gross or willful
negligence. Purchaser and Seller hereby agree to indemnify and hold the
Escrow Agent and Title Company harmless from and against any loss, liability,
claim or damage whatsoever (including reasonable attorney's fees and court
costs at trial and all appellate levels) the Escrow Agent and Title Company may
incur or be exposed to in its capacity as escrow agent hereunder except for
that caused by Escrow Agent's or Title Company's gross negligence or willful
misconduct. If there be any dispute as to disposition of any proceeds held by
the Escrow Agent pursuant to the terms of this Agreement, the Escrow Agent is
hereby authorized to interplead said amount or the entire proceeds with any
court of competent jurisdiction and thereby be released from all obligations
hereunder. So long as the Xxxxxxx Money Deposit is deposited with a federally
insured Colorado commercial bank, the Escrow Agent shall not be liable for any
failure of the Xxxxxxx Money Deposit depository.
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19. NOTICES. Any notices required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been given if
delivered by hand, sent by recognized overnight courier (such as Federal
Express), sent by facsimile transmission or mailed by certified or registered
mail, return receipt requested, in a postage prepaid envelope, and addressed as
follows:
If to the Purchaser: Preferred Equities Corporation
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxx,
Executive Vice President
Fax No. (000) 000-0000
With a copy to: Preferred Equities Corporation
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxx X. Xxxxxx, Esq.
Fax No. (000) 000-0000
and a copy to: Xxxx X. Xxxxxxxx, Xx., Esq.
000 Xxxxx Xxxxxxx, #000
P.O. Box 770908
Xxxxxxxxx Xxxxxxx, XX 00000
Fax No. (000) 000-0000
If to the Seller: Overlook Lodge Limited Liability Co.
c/o EFO Holdings, Inc.
0000 Xxxx Xxxxxxxxxxx Xxxx,#0000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Manager
Fax No. (000) 000-0000
With a copy to: Mr. Xxx Xxxx
Colorado Group Realty, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
P.O. Box 880045
Xxxxxxxxx Xxxxxxx, XX 00000
Fax No. (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx, P.C.
0000 Xxxxx Xxxxxx, Xxx. 0000
Xxxxxx, XX 00000
Fax No. (000) 000-0000
If to Escrow Agent: Eagle County Title Corporation
000 Xxxxx Xxxxxxxx Xxxx Xxxx, #000
Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Fax No. (000) 000-0000
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Notices personally delivered or sent by overnight courier shall be deemed given
on the date of delivery, notices transmitted by facsimile shall be deemed given
on the date sent provided that the transmitting machine confirms transmission
in writing (or otherwise, upon actual receipt by the other party) and notices
mailed in accordance with the foregoing shall be deemed given three (3) days
after deposit in the U.S. mails. Signatures on documents transmitted via
facsimile shall be binding as if an original signature. A copy of all notices
shall be provided to the Escrow Agent.
20. RISK OF LOSS. Seller shall continue to bear the risk of loss
up to and including the Closing Date. The Property shall be conveyed to
Purchaser in the same condition as on the date of this Agreement, ordinary wear
and tear excepted. Seller shall not remove anything from the Property between
now and Closing except for replacements in the ordinary course of business. In
the event that the Property or any material portion thereof is taken by eminent
domain prior to Closing, Purchaser shall have the option of either: (i)
cancelling this Agreement and receiving a refund of the Xxxxxxx Money Deposit
whereupon both parties shall be relieved of all further obligations under this
Agreement, except those obligations which are specifically stated herein to
survive the termination or Closing of this transaction, or (ii) Purchaser may
proceed with Closing in which case Purchaser shall be entitled to all
condemnation awards and settlements. In the event that the Improvements and/or
Personalty are damaged or destroyed by fire or other casualty prior to Closing,
Seller shall have the option to repair and
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restore the Property to the same condition as before the fire or casualty and
the Closing Date shall be deferred for up to sixty (60) days to permit such
repair and restoration. If Seller elects not to repair and restore or if
Seller is unable to repair and restore within such sixty (60) day period, then
Purchaser shall have the option of either: (i) cancelling this Agreement and
receiving a refund of the Xxxxxxx Money Deposit, whereupon both parties shall
be released from all further obligations under this Agreement, except those
obligations which are specifically stated herein to survive the termination or
Closing of this transaction, or (ii) proceeding with Closing in which case
Purchaser shall be entitled to all insurance proceeds and to a credit equal to
the insurance deductibles.
21. INDEMNITY. Seller shall indemnify and hold Purchaser harmless
from any and all liability, including costs and attorneys' fees (at trial and
all appellate levels) for:
(a) Any sales tax due on any rentals or sales prior to the
Closing;
(b) Any charges under contracts for services to the Property
existing now or at any time prior to Closing;
(c) Any security deposits of tenants received by Seller prior to
Closing;
(d) Any personal property taxes remaining unpaid for calendar
years prior to the year of Closing;
(e) Any claims made against Purchaser or the Property by Seller's
employee(s) employed at the Property;
(f) Any claims made against Purchaser by persons who claim to have
pre-paid lodging expenses in association with post-Closing
reservations;
(g) Any claims made against Purchaser or the Property by persons
or governmental agencies who claim monies due, for periods
prior to Closing, for wages or other payments for employee(s)
benefits and any and all payroll taxes, including but not
limited to, federal, state, local and other tax withholdings
and federal
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and state unemployment taxes; and
(h) Any material misrepresentations made by Seller, except for the
representation under Section 8(d) which shall be accurate at
Closing, but which shall not survive Closing.
Purchaser shall indemnify and hold Seller harmless from any and all
liability, including cost and attorneys' fees (at trial and all appellate
levels) and claims which might be made against the Seller relating to the
ownership and operation of the Property after the Closing.
The provisions of this section shall survive the Closing, except the
provisions in section 21 (h) above which shall terminate 180 days from the Date
of Closing.
22. MISCELLANEOUS.
(a) This Agreement shall be construed and governed in accordance
with the laws of the State of Colorado. All of the parties to
this Agreement have been represented by competent counsel and
have participated fully in the negotiation and preparation
hereof; and, accordingly, this Agreement shall not be more
strictly construed against any one of the parties hereto.
(b) In the event any term or provision of this Agreement be
determined by appropriate judicial authority to be illegal or
otherwise invalid, such provision shall be given its nearest
legal meaning or be construed as deleted as such authority
determines, and the remainder of this Agreement shall be
construed to be in full force and effect.
(c) In the event of any litigation between the parties under this
Agreement, the prevailing party shall be entitled to
reasonable attorney's fees and court costs at all trial and
appellate levels. The provisions of this subsection shall
survive the Closing coextensively with other surviving
provisions of this Agreement.
(d) Time is of the essence of this Agreement. If any date upon
which, or by which, action required under this Agreement is a
Saturday, Sunday or legal holiday recognized by the Federal
government and/or the State of Colorado, then the date for
such action shall be extended to the first day that is after
such date and is not a Saturday, Sunday or legal holiday
recognized
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by the Federal government and/or the State of Colorado.
(e) In construing this Agreement, the singular shall be held to
include the plural, the plural shall include the singular, the
use of any gender shall include every other and all genders,
and captions and section headings shall be disregarded.
(f) All of the exhibits attached to this Agreement are
incorporated in, and made a part of, this Agreement.
23. ENTIRE AGREEMENT. This Agreement and the Exhibits attached
hereto constitute the entire agreement between the parties and there are no
other agreements, representations or warranties other than as set forth herein.
This Agreement may not be changed, altered or modified except by an instrument
in writing signed by the party against whom enforcement of such change would be
sought. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns.
EXECUTED as of the date first above written in several counterparts, each
of which shall be deemed an original, but all constituting only one agreement.
SELLER:
OVERLOOK LODGE LIMITED LIABILITY
COMPANY, A Colorado limited
liability company
By:____________________________________
Name:__________________________________
Title:_________________________________
Witnessed by:
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_____________________________
PURCHASER:
PREFERRED EQUITIES
CORPORATION, a Nevada
corporation
By: ________________________
Name: Xxxxxxxxx X. Xxxxx
Title: Executive Vice President
Witnessed by:
_____________________________
Exhibit "A"
Title Description
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Exhibit "B"
Permitted Exceptions
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Exhibit "C"
Contracts
29
