EXHIBIT NUMBER 1
Treasure Island
AGREEMENT OF PURCHASE AND SALE
Between
TREASURE ISLAND ASSOCIATES, Seller
and
VESTAR-ATHENS RESORTS, L.L.C., Buyer
TABLE OF CONTENTS
Section Page
1. Definitions......................................................... 1
2. Agreement to Purchase and Sell; Down Payment........................ 3
3. Other Property Included in Purchase and Sale........................ 4
4. Documents Furnished by Seller; Confidentiality...................... 5
5. Title............................................................... 5
6. Buyer's Inspection of the Property.................................. 7
7. Consultants; Development and Site Expenses.......................... 9
8. Coastal Commission Approval......................................... 10
9. Representations and Warranties...................................... 11
10. Joint Conditions Precedent.......................................... 13
11. Closing............................................................. 14
12. Prorations.......................................................... 15
13. Closing Expenses.................................................... 15
14. Risk of Loss; Casualty and Eminent Domain........................... 15
15. Broker's Commissions................................................ 16
16. Defaults............................................................ 17
17. Notices............................................................. 17
18. Assignment.......................................................... 19
19. General Provisions.................................................. 19
EXHIBITS
"A" - Legal Description
"B" - Purchase Price
"C" - Escrow Agreement
"D" - Review Materials
"E" - Existing Consultants
"F" - Coastal Approval Related Consulting Services
"G" - Extension Right
AGREEMENT OF PURCHASE AND SALE
.........THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") made as of
the 1st day of June, 1998, between TREASURE ISLAND ASSOCIATES, a California
general partnership, having an office at World Financial Center, South Tower,
000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 ("Seller"), and
VESTAR-ATHENS RESORTS, L.L.C., an Arizona limited liability company, having an
office at 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("Buyer").
.........1. Definitions
.........The following words and terms, when used in this Agreement, shall
have the respective meanings ascribed to them below unless the context otherwise
requires:
........."Additional Deposit" has the meaning set forth in Section 2.2.
........."Approval Period" means the period commencing on May 1, 1998 and
extending until the Closing or the earlier termination of this Agreement.
........."Buyer's Agents" has the meaning set forth in Section 4.
........."Buyer's Consultants" has the meaning set forth in Section 7.1.
........."Buyer's Title Premium" has the meaning set forth in Section 5.1.
........."City" means the City of Laguna Beach, California.
........."City Approval" means (i) the certification by the City Council of
the City of (X) the LCP pursuant to California Public Resources Code Section
30510 and (Y) the EIR and (ii) the expiration of all administrative appeal
periods and statutes of limitations for legal challenges without the filing of
an administrative appeal or a legal challenge with respect to such
certification.
........."Closing" has the meaning set forth in Section 11.
........."Closing Payment" has the meaning set forth in Section 2.2.
........."Coastal Approval" means (i) the certification by the Coastal
Commission of the LCP and the EIR, (ii) such certification has become final and
(iii) the expiration of all administrative appeal periods and statutes of
limitations for legal challenges without the filing of an administrative appeal
or a legal challenge with respect to such certification.
........."Coastal Commission" means the California Coastal Commission.
........."Deed" has the meaning set forth in Section 10.2.1.
........."Defect" has the meaning set forth in Section 5.3.
........."Defects Notice" has the meaning set forth in Section 5.3.
........."Down Payment" has the meaning set forth in Section 2.2.
........."EIR" means the Draft Environmental Impact Report for Treasure
Island Destination Resort Community (State Clearing House No. 96031023).
........."Escrow Agent" means First American Title Insurance Company of New
York, having an address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
........."Initial Deposit" has the meaning set forth in Section 2.2.
........."Laws and Regulations" has the meaning set forth in Section 8.1.4.
........."LCP" means the Treasure Island Destination Resort Community,
Local Coastal Program (Land Use Plan and Implementing Actions Program).
........."MLHIRP VI" means MLH Income Realty Partnership VI, a Delaware
limited partnership.
........."Permitted Exceptions" has the meaning set forth in Section 5.4.
........."Property" has the meaning set forth in Section 2.1.
........."Purchase Price" has the meaning set forth in Section 2.1.
........."Representation Termination Date" has the meaning set forth in
Section 9.2.
........."Review Materials" has the meaning set forth in Section 4.
........."Seller's Documents" has the meaning set forth in Section 6.4.
........."Seller's Title Premium" has the meaning set forth in Section 5.1.
........."Standard Survey Cost" means the cost to prepare a survey of the
Property satisfying the minimum standard detail requirements for ALTA/ACSM Land
Title Surveys.
........."Survey" has the meaning set forth in Section 5.2.
........."Surviving Indemnities" has the meaning set forth in Section 5.3.
........."Title Commitment" has the meaning set forth in Section 5.1.
........."Title Company" means First American Title Insurance Company.
........."Title Policy" has the meaning set forth in Section 5.1.
2. Agreement to Purchase and Sell; Down Payment
2.1 Agreement to Purchase and Sell. Subject to and upon the terms and
conditions contained in this Agreement, Seller agrees to sell and convey to
Buyer and Buyer agrees to purchase from Seller the real property described in
Exhibit "A" attached hereto known as The Treasure Island Destination Resort,
having a street address of 00000 Xxxxx Xxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx,
together with all buildings, structures and other improvements thereon
(collectively, the "Property"), for a total purchase price determined in
accordance with Exhibit "B" attached hereto (the "Purchase Price").
2.2 Down Payment: Payment of Purchase Price. Contemporaneously with the
execution and delivery of this Agreement, Buyer shall pay to Escrow Agent, in
its capacity as escrow agent, a good faith deposit in the amount of ONE HUNDRED
THOUSAND AND 00/100 DOLLARS ($100,000.00) (the "Initial Deposit") by wire
transfer of immediately available funds. No provision of this Agreement shall be
binding upon Seller unless and until Escrow Agent shall have received the
Initial Deposit. Within three (3) business days following City Approval,
provided Buyer shall not have terminated this Agreement pursuant to Section 6.2,
Buyer shall pay to Escrow Agent the additional amount of NINE HUNDRED THOUSAND
AND 00/100 DOLLARS (the "Additional Deposit") by wire transfer of immediately
available funds. The Initial Deposit and the Additional Deposit are hereinafter
collectively referred to as the "Down Payment." The Down Payment and all
interest earned thereon shall be paid to the party entitled to receive the Down
Payment. The Down Payment shall be invested and applied in accordance with the
terms and conditions of the Escrow Agreement attached hereto as Exhibit "C".
Buyer shall pay Seller by wire transfer of federal funds at the Closing an
amount (the "Closing Payment") equal to (i) the Purchase Price, (ii) plus or
minus net adjustments and prorations provided for in this Agreement, and
(iii) minus the Down Payment.
3. Other Property Included in Purchase and Sale
In addition to the Property, all right, title and interest of Seller, if
any, in and to the following, to the extent that the same apply to the Property
and are transferable or assignable, shall be included within the term "Property"
and shall be transferred from Seller to Buyer at Closing:
3.1 all rights, easements, rights of way, privileges, licenses, remainders,
appurtenances and other rights, titles, interests, claims and benefits running
with the Property;
3.2 all manufactured homes, fixtures, machinery, equipment and other
tangible personal property owned by Seller and attached and appurtenant to, or
forming part of, the Property (the "Personal Property");
3.3 all consents, authorizations, variances, licenses, permits and
certificates of occupancy, if any, issued by any governmental authority with
respect to the Property;
3.4 all logos, trade or business names and telephone numbers, if any, owned
and used by Seller with respect to its ownership and operation of the Property;
3.5 any and all rights of Seller in and to the LCP and the EIR and any and
all approvals or certifications thereof by the Planning Commission and City
Council of the City and the Coastal Commission;
3.6 any and all rights of Seller in and to land underlying highways,
streets and other public rights-of-way adjacent to the Property and rights of
access thereto;
3.7 any and all rights of Seller in and to strips and gores of land within
or adjoining the Property;
3.8 any and all air rights, excess floor area rights and other transferable
development rights, if any, belonging to or useable with respect to the
Property;
3.9 any and all rights of Seller to utility connections and hook-ups with
respect to the Property;
3.10 any and all water rights and riparian rights, if any, of Seller with
respect to the Property; and
3.11 any other rights that Seller may have, if any, in or with respect to
land adjoining the Property (including land that is separated from the Property
only by a public highway, street or other right-of-way). Seller shall not
transfer to any other party any rights it now has or acquires prior to the
Closing with respect to the Property, except in connection with the LCP or the
EIR and related matters or except as resulting from governmental or
quasi-governmental action.
4. Documents Furnished by Seller; Confidentiality
Seller shall deliver copies of or make available for inspection by Buyer
the materials listed in Exhibit "C" attached hereto (the "Review Materials") as
are within Seller's possession or subject to its control. The Review Materials
and all materials, books and records examined by or on behalf of Buyer pursuant
to this Agreement shall: (i) be held in strict confidence by Buyer; (ii) not be
used for any purpose other than the investigation and evaluation of the Property
by Buyer and its lenders, attorneys, employees, agents, engineers, consultants
and representatives (collectively, "Buyer's Agents"); and (iii) not be
disclosed, divulged or otherwise furnished to any other person or entity except
to Buyer's Agents or as required by law. If this Agreement is terminated for any
reason whatsoever, Buyer shall return to Seller all of the Review Materials in
the possession of Buyer and Buyer's Agents. The provisions of this Section shall
survive the termination of this Agreement.
5. Title
5.1 Title. Seller has caused the Title Company to issue to Buyer a
preliminary title report or title insurance commitment (with extended coverage)
for the Property (the "Title Commitment"), together with legible copies of the
documents shown as title exceptions therein. The title insurance policy to be
issued at the Closing by the Title Company pursuant to the Title Commitment (the
"Title Policy") shall be a standard form of ALTA owner's policy (with extended
coverage), together with such customary endorsements as Buyer may reasonably
require (provided same do not require any deliveries from Seller other than the
Survey (hereinafter defined) and standard title affidavits). Seller shall cause
the Title Policy to be issued to Buyer subject to the Permitted Exceptions
(hereinafter defined) and free and clear of all standard or general exceptions
contained in the Title Commitment which the Title Company is permitted by
applicable law to remove or modify upon delivery of the Survey (hereinafter
defined) and standard title affidavits from Seller. Seller and Buyer shall share
the premium for the Title Policy as follows: Seller shall pay such premium to
the extent of the cost of obtaining a standard CLTA Owner's Policy of Title
Insurance in the amount of the Purchase Price ("Seller"s Title Premium"), and
Buyer shall pay the remaining cost for the Title Policy ("Buyer's Title
Premium").
5.2 Survey. Seller shall obtain a current "as-built" ALTA survey of the
Property (the "Survey") (with a copy to Seller) certified to Buyer, Seller, the
Title Company and any other party specified by Buyer in a writing given to
Seller within five (5) days from the date of this Agreement.
5.3 Title Defects. Prior to the later of (i) the expiration of the Due
Diligence Period (hereinafter defined) or (ii) the date that is ten (10) days
after the date on which Buyer is in receipt of both the Title Commitment and the
Survey, Buyer shall give Notice to Seller (the "Defects Notice") of any claim,
lien or exception materially and adversely affecting title to the Property and
which Buyer is not willing to waive (a "Defect"). Seller shall have the right,
but not the obligation, to cure any Defect within thirty (30) days after its
receipt of the Defects Notice, or in the case of any Defect which cannot with
due diligence be cured within such 30-day period, such later date by which such
Defect can reasonably be cured, provided that Seller commences to cure such
Defect within such 30-day period and thereafter continues diligently and in good
faith to cure the Defect. In the event that Seller elects not to cure any such
Defect, Seller shall notify Buyer of such election within five (5) business days
after its receipt of the Defects Notice. Seller shall have no obligation to cure
any Defect created solely by any acts or omissions of Buyer, and Seller's
failure to cure any such Defect shall not relieve Buyer from its obligation to
close under this Agreement. If Seller elects not to cure any Defect as set forth
above or, if by the expiration of the cure period provided for above, Seller has
failed to cure all Defects (other than any Defects created solely by any acts or
omissions of Buyer), Buyer may, at its option, either (i) proceed to close
subject to any such Defects, with no offset against, or reduction in, the
Purchase Price or (ii) terminate this Agreement by written notice given to
Seller within five (5) business days after the expiration of the cure period or
Seller's notice of election not to cure any Defect, as the case may be. In the
event this Agreement is so terminated by Buyer, the Down Payment shall be
returned to Buyer and the parties shall be released from all further obligations
and liabilities hereunder, except with respect to the covenants and indemnities
set forth in Sections 4, 6.1, 6.3, 7.1 and 15 (the "Surviving Indemnities").
Notwithstanding anything to the contrary contained in this Section 5.3, in the
event that any Defect(s) is a mechanic's or materialmen's lien or other
encumbrance securing the payment in the aggregate of a readily ascertainable sum
of money of up to $250,000 or a deed of trust or mortgage granted by Seller (but
not including any lien resulting from Buyer's failure to make any of the
payments required under Section 7.1), Seller shall satisfy such Defect(s) of
record or, as an alternative to causing such Defect(s) to be satisfied of record
and provided that the Title Company agrees to omit such Defect(s) from the Title
Policy: (i) bond or cause to be bonded such Defect(s); (ii) deliver or cause to
be delivered to Buyer or the Title Company, on the date of the Closing,
instruments in recordable form and sufficient to satisfy such Defect(s) of
record, together with the appropriate recording or filing costs; (iii) deposit
or cause to be deposited with the Title Company sufficient monies, acceptable to
and reasonably requested by the Title Company, to assure the obtaining and
recording of a satisfaction of the Defect(s); or (iv) otherwise cause the Title
Company to omit such Defect(s) from the Title Policy. In addition, Seller shall
use all reasonable efforts to satisfy all of Seller's requirements set forth in
the Title Commitment. During the term of this Agreement, Seller shall not grant
any easement or restriction encumbering the Property or any part thereof unless
provided for in the LCP or any governmental approval relating thereto.
5.4 Permitted Title Exceptions. All items set forth in the Survey and the
Title Commitment, other than Defects specified in the Defects Notice, shall be
deemed "Permitted Exceptions."
6. Buyer's Inspection of the Property
6.1 Inspection and Examination. During the period extending to and
including July 15, 1998 (the "Due Diligence Period"), Buyer and Buyer's Agents
will be given the right to (i) perform nondestructive physical tests (except
that Buyer may perform minor intrusive testing to determine the presence of
asbestos-containing materials, termites and other wood destroying insects,
provided that all damage resulting therefrom is promptly repaired by Buyer at
its sole expense) and (ii) conduct any and all necessary engineering,
environmental and other inspections at the Property and examine and evaluate the
Review Materials and all other relevant agreements and documents within the
possession of Seller or subject to its control, as Buyer may reasonably request.
No soil and/or ground water sampling shall be performed unless and until the
location, scope and methodology of such sampling and the environmental
consultant selected by Buyer to perform such sampling have all been approved by
Seller, which approval shall not be unreasonably withheld or delayed. Prior to
conducting any such sampling, Buyer shall have a utility xxxx-out performed for
the Property. Copies of all environmental and engineering reports prepared by or
on behalf of Buyer with respect to the Property shall be provided promptly to
Seller. With respect to Buyer's right to inspect the Property, Buyer agrees that
(i) Seller shall receive not less than forty-eight (48) hours prior notice of
each inspection, (ii) each inspection shall be performed during normal business
hours or at such other times as Seller and Buyer shall mutually agree and
(iii) Buyer and Buyer's Agents shall use all reasonable efforts to minimize any
disruption to the tenants, guests, employees, occupants of the Property and the
operation thereof. Seller or its designee shall have the right, but not the
obligation, to accompany Buyer or Buyer's Agents during each such inspection or
examination. Buyer's repair obligation set forth in the first sentence of this
Section and its obligation to provide environmental and engineering reports set
forth in the fourth sentence of this Section shall survive the termination of
this Agreement.
6.2 Right of Termination. Except as otherwise provided herein, Buyer's
obligations under this Agreement shall be contingent, only during the Due
Diligence Period, upon Buyer being satisfied in its sole and absolute discretion
with the results of its investigation and evaluation of the Property (the "Due
Diligence Condition"). In the event that the Due Diligence Condition is not so
satisfied, Buyer shall notify Seller in writing (the "Termination Notice") prior
to the expiration of the Due Diligence Period. If Buyer shall give the
Termination Notice to Seller prior to the expiration of the Due Diligence Period
or if Buyer fails to pay the Additional Deposit to Seller within three (3)
business days following City Approval, the Initial Deposit and all interest
earned thereon shall be promptly returned to Buyer, this Agreement shall
terminate and the parties hereto shall be released from all further obligations
and liabilities hereunder, except with respect to the Surviving Indemnities.
6.3 Inspection Indemnity. Notwithstanding anything to the contrary
contained in this Agreement, any investigation or examination of the Property,
the Review Materials or other materials with respect to the Property performed
by Buyer or Buyer's Agents prior to the Closing shall be performed at the sole
risk and expense of Buyer, and Buyer shall be solely responsible for the acts or
omissions of any of Buyer's Agents brought on, or to, the Property by Buyer. In
addition, Buyer shall defend, indemnify and hold Seller harmless from and
against all loss, expense (including, but not limited to, reasonable attorneys'
fees and court costs arising from the enforcement of this indemnity), damage and
liability resulting from claims for personal injury, wrongful death or property
damage against Seller or any of the Property arising from or as a result of, any
act or omission of Buyer or Buyer's Agents in connection with any inspection or
examination of the Property or the books and records with respect thereto by
Buyer or Buyer's Agents. The provisions of this Section 6.3 shall survive the
Closing or the earlier termination of this Agreement.
6.4 Condition. As a material inducement to Seller to execute this
Agreement, Buyer acknowledges, represents and warrants that, upon the
satisfaction or waiver of the Due Diligence Condition, (i) Buyer will have fully
examined and inspected the Property, including the development status, permits
and approvals, zoning classification and construction of improvements and other
facilities, together with the Review Materials and such other documents and
materials with respect to the Property which Buyer deems necessary or
appropriate in connection with its investigation and examination of the
Property, (ii) Buyer will have accepted and will be fully satisfied in all
respects with the foregoing and with the physical condition, value,
presence/absence of hazardous or toxic materials, financing status, use,
operation, tax status of the Property, (iii) the Property will be purchased by
Buyer "AS IS" and "WHERE IS" and with all faults and, upon Closing, Buyer shall
assume responsibility for the physical and environmental condition of the
Property and (iv) Buyer will have decided to purchase the Property solely on the
basis of its own independent investigation. Except as expressly set forth herein
or in any document executed by Seller and delivered to Buyer pursuant to Section
11.2 ("Seller's Documents"), Seller has not made, does not make, and has not
authorized anyone else to make any representation as to the present or future
physical condition, value, presence/absence of hazardous or toxic materials,
financing status, operation, use, tax status, development status, permits and
approvals, zoning classification or any other matter or thing pertaining to the
Property, and Buyer acknowledges that no such representation or warranty has
been made and that in entering into this Agreement it does not rely on any
representation or warranty other than those expressly set forth in this
Agreement or in Seller's Documents. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT OR IN SELLER'S DOCUMENTS, SELLER MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED OR ARISING BY OPERATION OF LAW, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE OF THE PROPERTY. Seller shall not be liable for or
bound by any verbal or written statements, representations, real estate broker's
"setups" or information pertaining to the Property furnished by any real estate
broker, agent, employee, servant or any other person unless the same are
specifically set forth in this Agreement or in Seller's Documents. The
provisions of this Section 5.4 shall survive the Closing.
7. Consultants; Development and Site Expenses
7.1 Attached hereto as Exhibit "E" is a list of all consultants presently
engaged by Seller in connection with the LCP and EIR (the "Existing
Consultants"). Promptly following the payment of the Initial Deposit to the
Escrow Agent, Seller shall terminate the services of the Existing Consultants
and provide written notice thereof to Buyer. Upon its receipt of such notice,
Buyer shall engage and continue to employ throughout the Approval Period, at
Buyer's sole cost and expense (and without any reimbursement from Seller or
credit against the Purchase Price), all consultants necessary or appropriate to
provide such submissions, analyses, reports, presentations, studies and tests
with respect to the development of the Property contemplated in the LCP as may
be required under the rules and regulations governing the LCP or as otherwise
requested by the Coastal Commission. Without limiting the generality of the
foregoing, Buyer shall engage consultants providing those services described in
Exhibit "F" attached hereto. As and when any consultant is engaged or terminated
by Buyer, Buyer shall give written notice thereof to Seller. With respect to all
consultants engaged by Buyer hereunder (collectively, "Buyer's Consultants"):
(i) the terms of their engagement shall specify that Buyer (and not Seller) is
solely responsible for payment of their services, (ii) Buyer shall indemnify,
defend and hold Seller harmless from and against all loss, expense (including
reasonable attorneys' fees and court costs), damage and liability resulting from
the claims of any of such consultants for payment of services rendered to Buyer
and (iii) the terms of their engagement shall require that (X) Seller shall
receive copies of all work product, documents, plans, studies and other writings
concurrent with Buyer and (Y) each of Seller and Buyer shall be entitled to use
such work product, documents, plans, studies and other writings produced by the
consultant. If this Agreement is terminated for any reason, Buyer hereby assigns
to Seller, conditional upon such termination, all rights Buyer then has to the
work product, documents, plans, studies and other writings prepared by Buyer,
Buyer's Consultants and the Existing Consultants (to the extent not already
owned by Seller). The provisions of items (ii) and (iii) contained in the
immediately preceding sentence shall survive the Closing or the earlier
termination of this Agreement.
7.2 As a material inducement for the execution of this Agreement by Seller,
Buyer agrees that, with respect to the Approval Period, Buyer shall pay (without
reimbursement from Seller) the following costs and expenses:
(a) All real property ad valorem taxes and special assessments, if any,
levied or imposed against the Property;
(b) All utility charges incurred at the Property;
(c) An "overhead" charge to Seller of $10,000 for each month during the
Approval Period, prorated for any portion of a month, payable in advance on the
first day of each such month. The first "overhead" charge due hereunder shall be
paid directly to Seller contemporaneously with the payment of the Initial
Deposit.
7.3 None of the payments made by Buyer under Sections 7.1 and 7.2 shall be
applied against the Purchase Price, it being understood that all such payments
are intended to compensate Seller for the extended term of this Agreement. With
respect to all invoices and bills received directly by Buyer from third parties,
the same shall be paid by Buyer when due and payable. With respect to all
payments required of Buyer under items (a) and (b) of Section 7.2, the same
shall be paid within ten (10) business days after delivery to Buyer of an
invoice therefor, together with supporting documentation, if applicable, in
reasonable detail. To the extent that any payment required of Buyer has not been
made as of the Closing, the same shall be paid at the Closing. Notwithstanding
the foregoing, if Buyer should fail to make any payment required of it under
Section 7.2 within five (5) business days following the date when due, the same
shall constitute a default by Buyer under this Agreement, entitling Seller to
exercise its rights and remedies set forth in Section 16.2.
8. Coastal Commission Approval
Promptly following City Approval, Seller shall submit the LCP and EIR to
the Coastal Commission for approval. Following such submission, Seller and Buyer
jointly shall exercise commercially reasonable efforts to obtain Coastal
Approval at the Coastal Commission's hearing scheduled for August 11-14, 1998 at
Huntington Beach, California. Seller shall be designated as the private property
owner applicant for all purposes and Buyer shall provide Seller with copies of
all plans, maps, reports, studies, LCP text revisions and other documents and
writings prepared by Buyer, Buyer's Consultants and the Existing Consultants
(collectively, "Coastal Commission Submittals") prior to submission to the City
and/or the Coastal Commission staff. Seller shall have the right for a period of
five (5) business days following its receipt thereof to approve/disapprove of
the Coastal Commission Submittals. Seller shall have the absolute right to
disapprove of any Coastal Commission Submittal, or any revision to the LCP, if
it would materially and adversely affect the use, density or intensity of use of
the Property as described in the LCP. Any Coastal Commission Submittal
disapproved by Seller must be revised to the satisfaction of Seller prior to
submission to the City and/or the Coastal Commission. Seller and Buyer jointly
shall appear at all hearings and meetings with the Coastal Commission and its
representatives regarding the LCP. Buyer shall make Xxx Xxxxxxxx available to
Seller for the purpose of generally coordinating with Seller regarding the LCP,
and Buyer promptly shall pay all filing fees and other charges due governmental
authorities with respect to Coastal Approval.
9. Representations and Warranties
9.1 Representations and Warranties of Seller. Seller makes the following
representations and warranties to Buyer, which representations and warranties
(i) are true and correct as of the date of this Agreement (not including
Sections 9.1.6 and 9.1.7) and (ii) shall be true and correct in all material
respects on the day of the Closing:
9.1.1 Seller is a general partnership duly organized, validly existing and
in good standing under the laws of the State of California. MLHIRP VI is the
managing general partner of Seller.
9.1.2 The execution, delivery and performance of this Agreement and all
other documents, instruments and agreements now or hereafter to be executed and
delivered by Seller pursuant to this Agreement are within the power of Seller
and have been duly authorized by all necessary or proper partnership action.
9.1.3 Seller is not a "foreign person" as defined in Section 1445(f)(3) of
the Internal Revenue Code of 1986, as amended.
9.1.4 As of the date hereof there is no pending suit or action against
Seller which, if adversely decided, would prevent the consummation of the
transaction contemplated by this Agreement. Without limiting the generality of
the foregoing, to the best of Seller's knowledge, except as hereinafter set
forth, as of the date hereof there are no actual or threatened suits, actions or
proceedings with respect to all or part of the Property (a) for condemnation or
(b) alleging any material violation of any applicable law, regulation, ordinance
or code (collectively, "Laws and Regulations"). A former resident of the
Property, Xx. Xxxxx, is claiming that he is entitled to damages from Seller
resulting from the involuntary sale of his mobile home coach. If, by the date of
the Closing, such claim has not been disposed of, at the Closing Seller shall
execute and deliver to Buyer an agreement by which Seller shall indemnify,
defend and hold Buyer harmless from and against all loss, expense (including
reasonable attorneys' fees and court costs), damage and liability resulting from
such claim.
9.1.5 Seller has not received any written notice (which remains uncured)
from any governmental authority stating that the Property violates any Laws and
Regulations in any material respect.
9.1.6 As of the Closing, there will be no tenant leases or tenancy
agreements affecting the Property or any portion thereof.
9.1.7 As of the Closing, there will be no equipment leases or service,
maintenance, management or other similar agreements affecting the Property or
any portion thereof (the foregoing does not include the services of consultants
engaged by Seller in connection with the LCP).
9.1.8 Seller is not prohibited from consummating the transaction
contemplated by this Agreement pursuant to any existing applicable law, rule or
regulation or, to its knowledge, any agreement, order or judgment binding upon
Seller.
9.1.9 There are no attachments, levies, executions, assignments for the
benefit of creditors, receivership, conservatorship, or voluntary or involuntary
proceedings in bankruptcy (or pursuant to any other applicable insolvency or
relief laws) filed by Seller or pending or threatened in writing against Seller.
9.2 Limitation of Seller's Representations. The representations and
warranties of Seller contained in Section 9.1 are made as of the date hereof.
Prior to the date of the Closing, Seller shall notify Buyer of any modifications
to such representations which are required to make such representations true in
all material respects. The representations and warranties set forth in
Subsections 9.1.1, 9.1.2 and 9.1.3 shall survive the Closing. The
representations and warranties set forth in Subsections 9.1.4 through 9.1.9,
inclusive, shall survive the Closing to the date (the "Representation
Termination Date") occurring six (6) months after the date of the Closing, at
which time such representations and warranties shall terminate and be of no
further force or effect. All other representations and warranties made by Seller
in this Agreement, unless expressly provided otherwise, shall not survive the
Closing. Where representations and warranties are made in this Agreement to the
"best of Seller's knowledge," such phrase shall mean and be limited to the
statement that there is no fact or circumstance contrary to such representation
or warranty within the actual knowledge of Xxxx X. Xxxxx and Xxxxxxxxx X. Xxxxx
whom Seller represents are the management level employees of the holding company
of MLH Property Managers Inc. who are primarily responsible for the day-to-day
oversight of the management and operation of the Property. For purposes of the
representations and warranties made by Seller in this Agreement and/or Seller's
Documents, (1) "Seller's knowledge" shall not include that of any independent
contractor hired by Seller or any former employee of the holding company of MLH
Property Managers Inc. and (2) notices received by any independent contractor
hired by Seller and not delivered by such contractor to Seller shall not be
deemed to have been received by Seller.
9.3 Representations and Warranties of Buyer. Buyer makes the following
representations and warranties to Seller, which representations and warranties
are (i) true and correct as of the date of this Agreement and (ii) shall be true
and correct in all material respects on the date of the Closing:
9.3.1 Buyer is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Arizona.
9.3.2 The execution, delivery and performance of this Agreement and all
other documents, instruments and agreements now or hereafter to be executed and
delivered by Buyer pursuant to this Agreement are within the partnership power
of Buyer and have been duly authorized by all necessary or proper [partnership]
action.
9.3.3 The transaction contemplated by this Agreement is an "all cash"
transaction and Buyer's obligations are not in any way conditioned upon or
qualified by Buyer's ability to obtain financing to consummate the purchase of
the Property.
The representations and warranties of Buyer contained in this Section 9.3
shall survive the Closing.
10. Joint Conditions Precedent
Seller's obligation to sell the Property to Buyer and Buyer's obligation to
purchase the Property from Seller is subject to the following conditions
precedent:
10.1 City Approval. The issuance of City Approval by December 31, 1998.
10.2 Coastal Approval. The issuance of Coastal Approval by December 31,
1998 (subject to the right of extension set forth in Exhibit "G" attached
hereto).
10.3 Minimum Purchase Price. The Purchase Price for the Property, as
determined in accordance with Exhibit "B" attached hereto, being not less than
$34,000,000.
If any of the conditions precedent set forth in Sections 10.1 and 10.2 is
not satisfied by the date set forth therein, unless Seller and Buyer have
extended such date by written amendment to this Agreement, either Seller or
Buyer may elect to terminate this Agreement, in which event the Down Payment
shall be returned to Buyer, this Agreement shall be deemed null and void and the
parties shall be released from all further obligations and liabilities
hereunder, except with respect to the Surviving Indemnities. If the condition
precedent set forth in Section 10.3 is not satisfied by the date set for the
Closing, either Seller or Buyer may elect to terminate this Agreement, in which
event the Down Payment shall be returned to Buyer, this Agreement shall be
deemed null and void and the parties shall be released from all further
obligations and liabilities hereunder, except with respect to the Surviving
Indemnities.
11. Closing
11.1 Time and Place. The closing contemplated by this Agreement (the
"Closing") shall take place within forty (40) days after Coastal Approval, at
the offices of the Title Company or at such other place as the parties shall
mutually agree. Time is of the essence with respect to the Closing.
11.2 Seller's Closing Documentation and Requirements. At the Closing,
Seller shall deliver the following to Buyer:
11.2.1 a grant deed (the "Deed"), duly executed and acknowledged and in
recordable form, conveying to Buyer fee simple title to the Property, subject to
the Permitted Exceptions;
11.2.2 a xxxx of sale, duly executed and acknowledged, transferring to
Buyer all of the Personal Property;
11.2.3 an assignment, duly executed and acknowledged, of those items
referred to in Sections 3.1 and 3.4 through and including 3.11;
11.2.4 an affidavit stating, under penalty of perjury, Seller's United
States taxpayer identification number and that Seller is not a "foreign person"
as defined in Section 1445(f)(3) of the Internal Revenue Code of 1986, as
amended, and otherwise in the form prescribed by the Revenue Service;
11.2.5 a certificate, dated as of the Closing, of the Secretary or an
Assistant Secretary of the corporate general partner of MLHIRP VI with respect
to (i) the resolutions adopted by the Board of Directors of the corporate
general partner of MLHIRP VI approving this Agreement and the transaction
contemplated hereby and (ii) the incumbency and specimen signature of each
officer of the corporate general partner of MLHIRP VI executing this Agreement
and the documents set forth in this Section 11.2; and
11.2.6 such other documents and instruments as Buyer may reasonably request
in order to consummate the transaction contemplated hereby.
11.3 Buyer's Closing Documentation and Requirements. At the Closing, Buyer
shall pay the Closing Payment in accordance with the provisions of this
Agreement and shall deliver the following to Seller:
11.3.1 a certificate, dated as of the Closing, of the Secretary or an
Assistant Secretary of the corporate general partner of Buyer with respect to
(i) the resolutions adopted by the managing member of Buyer approving this
Agreement and the transaction contemplated hereby and (ii) the incumbency and
specimen signature of the managing member of Buyer executing this Agreement and
the documents set forth in this Section 11.3; and
11.3.2 such other documents and instruments as Seller may reasonably
request in order to consummate the transaction contemplated hereby.
11.4 Form. All documents and instruments required hereby shall be in form
and substance reasonably acceptable to Seller and Buyer.
12. Prorations
Except with respect to any charges predating the Approval Period, at the
Closing there shall not be any prorations of real estate taxes, utility charges
or other items of income or expense relating to the Property.
13. Closing Expenses
13.1 Expenses of Buyer. Buyer shall pay (a) Buyer's Title Premium; (b) any
cost of the Survey in addition to the Standard Survey Cost; (c) all recording
fees on any document recorded pursuant to this Agreement; (d) one-half (1/2) of
the escrow fees charged by the Title Company; and (e) except as set forth
herein, all other costs incidental to the Closing.
13.2 Expenses of Seller. Seller shall pay: (a) all state and county
transfer taxes with respect to the transaction contemplated hereby; (b) one-half
(1/2) of the escrow fees charged by the Title Company; (c) the Standard Survey
Cost; and (d) Seller's Title Premium.
13.3 Attorney's Fees. Each party shall pay its own attorney's fees and all
of its other expenses, except as otherwise expressly set forth herein.
14. Risk of Loss; Casualty and Eminent Domain
14.1 Casualty. The parties waive the provisions of The Uniform Vendor and
Purchaser Risk Act as adopted in the State of California. If, prior to the
Closing, the Property is damaged by fire, vandalism, acts of God or other
casualty or cause and the same shall materially and adversely affect the use,
density or intensity of use of the Property as described in the LCP, Seller
shall promptly give Buyer notice of any such damage (the "Damage Notice"),
together with Seller's estimate of the cost and period of repair and
restoration. In any such event: (a) in the case of damage to the Property of
less than $500,000 and from a risk covered by insurance maintained with respect
to the Property, Buyer shall take the Property at the Closing as it is together
with any applicable insurance proceeds or the right to receive the same; or
(b) in the case of either (i) damage to the Property of $500,000 or more or
(ii) damage to the Property from a risk not covered by insurance, Buyer shall
have the option of (x) taking the Property at the Closing in accordance with
item (a) above or (y) terminating this Agreement. If, pursuant to the preceding
sentence, Buyer is either obligated or elects to take the Property as it is
together with any applicable insurance proceeds or the right to receive the
same, Seller agrees to cooperate with Buyer in any loss adjustment negotiations,
legal actions and agreements with the insurance company, and to assign to Buyer
at the Closing its rights to any such insurance proceeds with respect to such
claim and, prior to the Closing, will not settle any insurance claims or legal
actions relating thereto without Buyer's prior written consent, which consent
shall not be unreasonably withheld or delayed.
14.2 Eminent Domain. If, prior to the Closing, all or substantially all of
the Property is taken by eminent domain, this Agreement shall be terminated
without further act or instrument. If a material part of the Property is so
taken, Buyer shall have the option, by written notice given to Seller within
fifteen (15) days after receiving notice of such taking, to terminate this
Agreement. If Buyer does not elect to terminate this Agreement, it shall remain
in full force and effect and Seller shall assign, transfer and set over to Buyer
at the Closing all of Seller's right, title and interest in and to any awards
that may be made for such taking. Notwithstanding anything to the contrary
contained herein, if less than a material part of the Property is so taken,
Buyer shall proceed with the Closing and take the Property as affected by such
taking, together with all awards or the right to receive same. For the purposes
of this Section, a part of the Property shall be deemed "material" if it
(i) would result in the Purchase Price being less than $34,000,000 or
(ii) otherwise (on a permanent basis) limits or restricts ingress and egress to
and from the Property.
14.3 Termination. If this Agreement is terminated pursuant to this Section,
the Down Payment shall be promptly returned to Buyer and the parties hereto
shall be released from all further obligations and liabilities hereunder, except
with respect to the Surviving Indemnities.
15. Broker's Commissions
Buyer and Seller represent and warrant to each other that neither they nor
their affiliates have dealt with any broker, finder or the like in connection
with the transaction contemplated by this Agreement. Buyer and Seller each
agrees to indemnify, defend and hold the other harmless from and against all
loss, expense (including reasonable attorneys' fees and court costs), damage and
liability resulting from the claims of any broker or finder (including anyone
claiming to be a broker or finder) on account of any services claimed to have
been rendered to the indemnifying party in connection with the transaction
contemplated by this Agreement. The provisions of this Section shall survive the
Closing or the earlier termination of this Agreement.
16. Defaults
16.1 By Buyer. IF, PRIOR TO THE CLOSING, BUYER IS IN DEFAULT WITH RESPECT
TO, OR BREACHES OR FAILS TO PERFORM ONE OR MORE OF THE REPRESENTATIONS,
COVENANTS, WARRANTIES OR OTHER TERMS OF THIS AGREEMENT, AND SUCH DEFAULT, BREACH
OR FAILURE IS NOT CURED OR REMEDIED WITHIN TEN (10) BUSINESS DAYS AFTER RECEIPT
OF WRITTEN NOTICE THEREOF GIVEN BY SELLER TO BUYER, SELLER MAY TERMINATE THIS
AGREEMENT AND, AS ITS SOLE REMEDY, RETAIN THE DOWN PAYMENT (TO THE EXTENT THEN
HELD BY ESCROW AGENT), AS LIQUIDATED DAMAGES, IN WHICH EVENT THIS AGREEMENT
SHALL BE DEEMED NULL AND VOID AND THE PARTIES SHALL BE RELEASED FROM ALL FURTHER
OBLIGATIONS AND LIABILITIES UNDER THIS AGREEMENT, EXCEPT WITH RESPECT TO THE
SURVIVING INDEMNITIES. IT IS RECOGNIZED BY SELLER AND BUYER THAT THE DAMAGES
SELLER WILL SUSTAIN BY REASON OF BUYER'S DEFAULT, BREACH OR FAILURE WILL BE
SUBSTANTIAL, BUT DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN. THE DOWN PAYMENT
HAS BEEN DETERMINED BY THE PARTIES AS A REASONABLE SUM FOR DAMAGES. BUYER AGREES
NOT TO INTERPOSE ANY DEFENSE OR OTHERWISE SEEK TO INTERFERE WITH SELLER'S
RETENTION AND OWNERSHIP OF THE DOWN PAYMENT.
SELLER'S APPROVAL _____ BUYER'S APPROVAL _____
16.2 By Seller. IF, PRIOR TO THE CLOSING, SELLER IS IN DEFAULT WITH RESPECT
TO, OR BREACHES, OR FAILS TO PERFORM ONE OR MORE OF THE REPRESENTATIONS,
COVENANTS, WARRANTIES OR OTHER TERMS OF THIS AGREEMENT, AND SUCH DEFAULT, BREACH
OR FAILURE IS NOT CURED OR REMEDIED WITHIN TEN (10) BUSINESS DAYS AFTER RECEIPT
OF WRITTEN NOTICE THEREOF GIVEN BY BUYER TO SELLER, BUYER MAY EITHER
(A) TERMINATE THIS AGREEMENT, IN WHICH EVENT THE DOWN PAYMENT SHALL BE RETURNED
TO BUYER AND THE PARTIES SHALL BE RELEASED FROM ALL FURTHER OBLIGATIONS AND
LIABILITIES UNDER THIS AGREEMENT, EXCEPT WITH RESPECT TO THE SURVIVING
INDEMNITIES, OR (B) XXX FOR SPECIFIC PERFORMANCE. THE REMEDIES SET FORTH ABOVE
SHALL BE BUYER'S SOLE REMEDIES ARISING FROM A DEFAULT, BREACH OR FAILURE TO
PERFORM BY SELLER.
SELLER'S APPROVAL _____ BUYER'S APPROVAL _____
17. Notices
Any notice, demand, consent, authorization or other communication
(collectively, a "Notice") which either party is required or may desire to give
to or make upon the other party pursuant to this Agreement shall be effective
and valid only if in writing, signed by the party giving such Notice, and
delivered personally (upon an officer of the other party or to such individual
as may be noted in the addresses stated below) to the other party or sent by
express courier or delivery service or by registered or certified mail of the
United States Postal Service, return receipt requested, and addressed to the
other party as follows (or to such other address or person as either party or
person entitled to notice may by Notice to the other specify) or sent by
facsimile transmission to the facsimile number shown below and simultaneously
mailed by first-class mail of the United States Postal Service:
To Seller: Treasure Island Associates
c/o MLH Income Realty Partnership VI
World Financial Center, South Tower
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx
President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Treasure Island Associates
c/o MLH Income Realty Partnership VI
World Financial Center, South Tower
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxx
Executive Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Xxxx Xxxx Xxxx Freidenrich LLP
000 X Xxxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Buyer: Vestar-Athens Resorts, L.L.C.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Squire, Xxxxxxx & Xxxxxxx L.L.P.
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Unless otherwise specified, notices shall be deemed given when received,
but if delivery is not accepted, on the earlier of the date delivery is refused
or the third day after the same is deposited with the United States Postal
Service.
18. Assignment
This Agreement and all rights of Buyer arising hereunder shall not be
assigned, sold, pledged or otherwise transferred by Buyer in whole or in part,
without the prior written consent of Seller. Notwithstanding the foregoing,
Buyer shall have the right to assign this Agreement and all of its rights and
obligations hereunder to any entity controlled by Buyer and ERE Yarmouth. Any
assignment permitted or consented to hereunder shall be effected by a written
assignment and assumption agreement between Buyer and its assignee.
19. General Provisions
19.1 Successors and Assigns. This Agreement shall bind and inure to the
benefit of the respective successors and permitted assigns of the parties
hereto.
19.2 Gender and Number. Whenever the context so requires, the singular
number shall include the plural and the plural the singular, and the use of any
gender shall include all genders.
19.3 Entire Agreement. This Agreement contains the complete and entire
agreement between the parties respecting the transaction contemplated herein and
supersedes all prior negotiations, agreements, representations and
understandings, if any, between the parties respecting such matters.
19.4 Counterparts. This Agreement may be executed in any number of original
counterparts, all of which evidence only one agreement and only one of which
need be produced for any purpose.
19.5 Modifications. This Agreement may not be modified, discharged or
changed in any respect whatsoever, except by a further agreement in writing duly
executed by Buyer and Seller. However, any consent, waiver, approval or
authorization shall be effective if signed by the party granting or making such
consent, waiver, approval or authorization.
19.6 Exhibits. All exhibits referred to in this Agreement are incorporated
herein by reference and shall be deemed part of this Agreement for all purposes
as if set forth at length herein.
19.7 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
19.8 No Recordation. This Agreement shall not be recorded. Violation of
this provision by Buyer shall automatically terminate this Agreement and entitle
Seller to receive the Down Payment without further action, consent or release
from Buyer first being required, and to such other remedies available at law or
in equity.
19.9 Captions. The captions of this Agreement are for convenience and
reference only and in no way define, describe, extend or limit the scope,
meaning or intent of this Agreement.
19.10 Severability. The invalidation or unenforceability in any particular
circumstance of any of the provisions of this Agreement shall in no way affect
any of the other provisions hereof, which shall remain in full force and effect.
19.11 No Joint Venture. This Agreement shall not be construed as in any way
establishing a partnership, joint venture, express or implied agency, or
employer-employee relationship between Buyer and Seller.
19.12 No Third Party Beneficiaries. This Agreement is for the sole benefit
of the parties hereto, their respective successors and permitted assigns, and no
other person or entity shall be entitled to rely upon or receive any benefit
from this Agreement or any term hereof.
19.13 Survival. Except as otherwise expressly set forth herein, the
covenants, warranties, representations and indemnities of Seller and Buyer
contained in this Agreement shall not survive the Closing.
19.14 No Personal Liability. No general or limited partner of Seller, no
officer, director, stockholder or partner of a partner of Seller, no disclosed
or undisclosed principal of Seller, and no person or entity in any way
affiliated with Seller shall have any personal liability with respect to this
Agreement, any instrument delivered by Seller at Closing, or the transaction
contemplated hereby, nor shall the property of any such person or entity be
subject to attachment, levy, execution or other judicial process.
19.15 Execution. The submission of this Agreement for examination does not
constitute an offer by or to either party. This Agreement shall be effective and
binding only after due execution and delivery by the parties hereto.
19.16 Tax Reporting. Escrow Agent, as the party responsible for closing the
transaction contemplated hereby within the meaning of Section 6045(e)(2)(A) of
the Internal Revenue Code of 1986, as amended (the "Code"), shall file all
necessary information, reports, returns and statements (collectively, the "Tax
Reports") regarding this transaction as required by the Code, including without
limitation the Tax Reports required pursuant to Section 6045 of the Code. Escrow
Agent further agrees to indemnify and hold Buyer, Seller and their respective
attorneys and brokers harmless from and against all claims, costs, liabilities,
penalties or expenses resulting from Escrow Agent's failure to file the Tax
Reports.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed
as of the date first above written.
SELLER:
TREASURE ISLAND ASSOCIATES, a
California general partnership
By: MLH Income Realty Partnership VI,
a New York limited partnership,
managing general partner
By: MLH Property Managers Inc.,
a Delaware corporation,
managing general partner
By:/s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: President
BUYER:
VESTAR-ATHENS RESORTS, L.L.C.,
an Arizona limited liability company
By: ____________________________, a
_________________, ________________
By:
Name:
Title:
Tax Reporting obligation
agreed to:
FIRST AMERICAN TITLE INSURANCE
COMPANY OF NEW YORK
By:__________________________
Name:
Title:
EXHIBIT "A"
Legal Description
ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE,
DESCRIBED AS FOLLOWS:
PARCELS 1, 2 AND 3 AS SHOWN ON A MAP FILED IN BOOK 187, PAGES 39, 40 AND 41 OF
PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING ANY PORTION OF THE DESCRIBED PROPERTY BELOW THE LINE OF NATURAL
ORDINARY HIGH WATER XXXX WHERE IT WAS LOCATED PRIOR TO ANY ARTIFICIAL OR
AVULSION CHANGES IN THE LOCATION OF THE SHORELINE.
EXHIBIT "B"
Purchase Price
The Purchase Price for the Property shall be based on the maximum number of
units of each land use type permitted by the LCP approved by the Coastal
Commission increased by the amount determined under subsection (v) below.
Capitalized terms used in this Exhibit "B" shall have the same meanings given
them in the LCP. The Purchase Price shall equal the sum of the following: (i)
the number of Residential Estates multiplied by $1,000,000; (ii) the number of
hotel rooms and suites contained in the Resort Center (including, without
limitation, the number of rooms and suites in the Resort Villas that may be
owned by persons other than the owner of the Resort Center, multiplied by
$50,000; (iii) the number of Residence Villas multiplied by $300,000; (iv) the
number of Resort Villas that may be owned by persons other than the owner of the
Resort Center, multiplied by $200,000; and (v) 75% of the aggregate amount of
zoning, planning and building permit fees for the Resort Center, Residential
Estates and Residence Villas, drainage fees and building construction tax waived
by the City as a result of a voluntary reduction of the number of units shown in
the example set forth below.
Set forth below is an example of the calculation of the Purchase Price
based upon the LCP as of 05/29/98:
(i) 18 X $1,000,000 = $18,000,000
(ii) 250 X $ 50,000 = $12,500,000
(iii) 19 X $ 300,000 = $ 5,700,000
(iv) 12 X $ 200,000 = $ 2,400,000
(v) 75% X $ 0 = $ 0
Total Purchase Price = $38,600,000
EXHIBIT "C"
Escrow Agreement
ESCROW AGREEMENT made as of the ___ day of June, 1998 by and among TREASURE
ISLAND ASSOCIATES, a California general partnership, having an office at World
Financial Center, South Tower, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000 ("Seller"), VESTAR-ATHENS RESORTS, L.L.C., an Arizona limited
liability company, having an office at 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx ("Buyer"), and FIRST AMERICAN TITLE INSURANCE COMPANY OF NEW
YORK, having an office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000
("Escrow Agent").
RECITALS:
A. Pursuant to Section 2.2 of that certain Agreement of Purchase and Sale
dated June 1, 1998 (the "Agreement"), between Seller and Buyer, Buyer has
deposited by wire transfer of immediately available funds into an escrow account
maintained by Escrow Agent a good faith deposit in the amount of $100,000 (the
"Initial Deposit").
B. Section 2.2 of the Purchase Agreement also provides that within three
(3) business days following City Approval, provided Buyer has not terminated the
Agreement pursuant to Section 6.2 of the Agreement, Buyer shall pay to Escrow
Agent the additional amount of $900,000 (the "Additional Deposit") by wire
transfer of immediately available funds.
C. Buyer and Seller desire that Escrow Agent hold the Initial Deposit and
the Additional Deposit (if any) in escrow until the Closing (as defined in the
Agreement) or the sooner termination of the Agreement, on the terms and subject
to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Definitions
Unless otherwise defined in this Escrow Agreement, all capitalized terms
used herein shall have the same meanings as set forth in the Agreement.
2. Investment of Down Payment
Escrow Agent hereby acknowledges receipt of the Initial Deposit and,
immediately upon receipt thereof, shall acknowledge to Seller and Buyer receipt
of the Additional Deposit. Escrow Agent shall promptly invest the Initial
Deposit and the Additional Deposit (hereinafter collectively referred to as the
"Down Payment") in accordance with the instructions set forth in Exhibit "A"
attached hereto and made a part hereof. All interest earned on the Down Payment
shall be paid to the party entitled to receive the Down Payment pursuant to the
Agreement.
Each of Seller and Buyer has contemporaneously delivered to Escrow Agent a
completed Form W-9 to be held by Escrow Agent and submitted on behalf of the
applicable party to the Internal Revenue Service following disbursement of the
Down Payment.
3. Disbursement of Down Payment
Escrow Agent shall hold and disburse the Down Payment upon the following
terms and conditions:
3.1 Escrow Agent shall disburse the Down Payment and all interest earned
thereon to Seller upon receipt of a Notice (as hereinafter defined) signed by
Seller and Buyer and stating that the Closing has been consummated.
3.2 Escrow Agent shall disburse the Down Payment and all interest earned
thereon to Buyer promptly upon receipt of a Notice demanding disbursement
thereof signed by Buyer and stating that either Seller has defaulted in the
performance of its obligations under the Agreement or that Buyer is otherwise
entitled to the return of the Down Payment and interest thereon pursuant to the
terms of the Agreement; provided, however, that Escrow Agent shall not comply
with such demand until at least ten (10) business days after the date on which
Escrow Agent shall have given a copy of such Notice to Seller, nor thereafter
following such ten (10) business day period if Escrow Agent shall have received
a Notice of objection from Seller given within such ten (10) business day period
in accordance with the provisions of Section 3.4.
3.3 Escrow Agent shall disburse the Down Payment and all interest earned
thereon to Seller promptly upon receipt of a Notice demanding disbursement
thereof signed by Seller and stating that Buyer has defaulted in the performance
of its obligations under the Agreement; provided, however, that Escrow Agent
shall not comply with such demand until at least ten (10) business days after
the date on which Escrow Agent shall have given a copy of such Notice to Buyer,
nor thereafter following such ten (10) business day period if Escrow Agent shall
have received a Notice of objection from Buyer given within such ten (10)
business day period in accordance with the provisions of Section 3.4.
3.4 Upon receipt of a Notice demanding disbursement of the Down Payment and
interest thereon made by Buyer or Seller pursuant to Sections 3.2 or 3.3, Escrow
Agent shall promptly give a copy thereof to the other party. The other party
shall have the right to object to the disbursement of the Down Payment and
interest thereon by giving Notice of objection to Escrow Agent within ten (10)
business days after the date on which Escrow Agent gives such copy of the Notice
to the other party, but not thereafter. Upon receipt of such Notice of
objection, Escrow Agent shall promptly give a copy thereof to the party who made
the written demand.
4. Disputes
4.1 If (i) Escrow Agent shall have received a Notice of objection as
provided for in Section 3.4 within the time therein prescribed or (ii) any other
disagreement or dispute shall arise among the parties or any other persons
resulting in adverse claims and demands being made for the Down Payment and
interest thereon whether or not litigation has been instituted, then and in any
such event, Escrow Agent shall refuse to comply with any claims or demands for
the Down Payment and shall continue to hold the same and all interest earned
thereon until it receives either (x) a Notice executed by Buyer and Seller and
directing the disbursement of the Down Payment and all interest earned thereon
or (y) a final nonappealable order of a court of competent jurisdiction, entered
in an action, suit or proceeding in which Buyer and Seller are parties,
directing the disbursement of the Down Payment and all interest earned thereon,
in either of which events Escrow Agent shall then disburse the Down Payment and
all interest earned thereon in accordance with such direction. Escrow Agent
shall not be or become liable in any way or to any person for its refusal to
comply with any such claims and demands unless and until it has received such
direction. Upon compliance with such direction, Escrow Agent shall be released
of and from all liability hereunder, except for the bad faith, gross negligence
or willful misconduct of Escrow Agent.
4.2 Escrow Agent may institute or defend any action or legal process
involving any matter referred to herein which in any manner affects it or its
duties and liabilities hereunder, but Escrow Agent shall not be required to
institute or defend such action or process unless or until requested to do so by
both Buyer and Seller and then only upon receipt of an indemnity in such amount,
and of such character, as it may reasonably require against any and all claims,
liabilities, judgments, reasonable attorneys' fees and other expenses of every
kind in relation thereto. All reasonable costs and expenses incurred by Escrow
Agent in connection with any such action or process are to be paid by the
non-prevailing party.
5. Fees of Escrow Agent
Except as set forth in Section 4.2, Buyer and Seller shall each pay
one-half (1/2) of all fees and expenses, if any, of Escrow Agent hereunder.
6. Duties of Escrow Agent
It is agreed that the duties of Escrow Agent are only as herein
specifically provided, and that Escrow Agent shall not be liable for any error
in judgment or for any act done or step taken or omitted by it in good faith, or
for any mistake of fact or law, or for any thing which it may do or refrain from
doing in connection therewith, except for the bad faith, gross negligence or
willful misconduct of Escrow Agent. Escrow Agent shall not be obligated to
inquire as to the performance of any obligation described in the Agreement.
Escrow Agent shall not incur any liability for acting upon any Notice, consent,
waiver or document which appears to be signed by Buyer and/or Seller, not only
as to its due execution and validity and the effectiveness of its provisions,
but also as to the truth of any information therein contained, which Escrow
Agent in good faith believes to be genuine and what it purports to be. Buyer and
Seller, jointly and severally, agree to indemnify and hold Escrow Agent harmless
from and against any loss, damage, claim or expense, including reasonable
attorneys' fees, resulting from this Escrow Agreement, except for the bad faith,
gross negligence or willful misconduct of Escrow Agent. Escrow Agent shall not
be bound by any modification to this Escrow Agreement, unless the modification
shall be in writing and signed by Buyer and Seller, and, if the duties of Escrow
Agent hereunder are affected, unless Escrow Agent shall have given its prior
written consent thereto.
7. No Third-Party Beneficiaries
The terms and provisions of this Escrow Agreement shall create no right in
any person, firm or corporation other than the parties and their respective
successors and permitted assigns of the Agreement and no third party shall have
the right to enforce or benefit from the terms hereof.
8. Notices
Any notice, demand, consent, authorization or other communication
(collectively, a "Notice") which any party is required or may desire to give to
or make upon any other party pursuant to this Escrow Agreement shall be
effective and valid only if in writing, signed by the party giving such Notice,
and delivered personally (upon an officer of the other party or to such
individual as may be noted in the addresses stated below) to the other party or
sent by express courier or delivery service or by registered or certified mail
of the United States Postal Service, return receipt requested, and addressed to
the other party as follows (or to such other address or person as any party or
person entitled to Notice may by Notice to the other parties specify) or sent by
facsimile transmission to the fax number shown below and simultaneously mailed
by first-class mail of the United States Postal Service:
To Buyer: Vestar-Athens Resorts, L.L.C.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Squire, Xxxxxxx & Xxxxxxx L.L.P.
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Seller: Treasure Island Associates
c/o MLH Income Realty Partnership VI
World Financial Center, South Tower
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Treasure Island Associates
c/o MLH Income Realty Partnership VI
World Financial Center, South Tower
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxx
Executive Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Escrow Agent: First American Title Insurance Company
of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Unless otherwise specified, Notices shall be deemed given when received,
but if delivery is not accepted, on the earlier of the date delivery is refused
or the third day after the same is deposited with the United States Postal
Service.
9. Governing Law
This Escrow Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York without regard to principles of
conflict of law.
10. Counterparts
This Escrow Agreement may be executed in any number of original
counterparts, all of which evidence only one agreement and only one of which
need be produced for any purpose.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Escrow Agreement as of
the date first above written.
SELLER:
TREASURE ISLAND ASSOCIATES, a
California general partnership
By: MLH Income Realty Partnership VI,
a New York limited partnership,
managing general partner
By: MLH Property Managers Inc.,
a Delaware corporation,
managing general partner
By: __________________________
Name:
Title:
BUYER:
VESTAR-ATHENS RESORTS, L.L.C.,
an Arizona limited liability company
By: ____________________________, a
_________________, ________________
By: ________________________________
Name:
Title:
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
OF NEW YORK
By: ___________________________________
Name:
Title:
EXHIBIT "A"
INVESTMENT INSTRUCTIONS
Re: Vestar-Athens Resorts, L.L.C. ("Buyer") and
Treasure Island Associates ("Seller")
Escrow Agent shall promptly invest the Down Payment into the following
investment unless otherwise instructed in writing by Seller and Buyer: A money
market account with Chase Manhattan Bank.
EXHIBIT "D"
Review Materials
Engineering or architectural drawings of the improvements made, or proposed
to be made, to the Property, or along the perimeter of the Property; all soils
and other reports; topographic, ALTA, boundary or other surveys; studies;
calculations; governmental, quasi-governmental or utility approvals; drawings;
plats; specifications; zoning ordinances, stipulations and data; development
guidelines and studies; drainage and grading information and materials; soil and
flood control conditions, information and materials; environmental, hazardous
waste, insecticide and other similar studies and reports; information concerning
minerals and all naturally occurring elements or compounds in the ground
(including, without limitation, reports, studies and other information regarding
or related to uranium deposits and/or radon gas generation); and all other
writings or information in Seller's possession or subject to its control
regarding the development, redevelopment and use of the Property. Seller has
previously furnished Buyer with the following engineering reports:
1. Xxxxxxxxx, Xxxxxx & Associates, Architects, Evaluation Report, dated June
6, 1989.
2. Nachant Environmental Inc., Limited Assessment, dated June 18, 1989.
3. Xxxx-Xxxxxxxx
a. Prioritization Asbestos Assessment Study, dated July 26, 1989,
together with letter dated July 31, 1989 regarding removal of
asbestos.
b. Construction Management Report, dated September, 1989.
4. Xxxxx & Xxxxx, Preliminary Geologic and Soils Investigation, dated March 7,
1980.
5. California Management Consultants, Xxxxx Xxxxx, Inspection Reports, dated
January 2, 1991 and February 17, 1992.
6. Phase I Environmental Site Assessment, dated March 3, 1998, prepared by
Xxxxxx-Xxxxxx-Recon, together with transmittal letter, dated March 3, 1998.
EXHIBIT "E"
Existing Consultants
X.X. Xxxxx
Scientific Resource Survey
PKF Consulting
AGRA Earth & Environmental
Xxxxxxxx Law & Xxxxxxxxx
Xxxxxxxx, Xxxxxxx, Xxxx & Goo
Xxxxx-Xxxxxxx, Inc.
Xxxxxx Xxxxxxxx & Associates
Gladstone International
FORMA
Rosewood Hotels & Resorts
RHC Communities
Xxxxxxx & Xxxxxx
InterCommunications Inc.
Xxxx Xxxx Xxxx & Freidenrich
EXHIBIT "F"
Coastal Approval Related Consulting Services
1. Architectural
2. Land Planning
3. Economic Analysis
4. Traffic Studies
5. Environmental
6. Geotechnical
7. Legal
8. Other professional services
EXHIBIT "G"
Extension Right
Buyer shall have the unilateral right to extend the date for issuance of
Coastal Approval (as set forth in Section 10.2) from December 31, 1998 to March
31, 1999. The exercise of such right must be made by written notice given to
Seller on or before December 31, 1998.
FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE dated as of December
24, 1998 (this "First Amendment"), between TREASURE ISLAND ASSOCIATES, a
California general partnership ("Seller"), and VESTAR-ATHENS RESORTS, L.L.C., an
Arizona limited liability company ("Buyer").
RECITALS:
A. Seller and Buyer have entered into that certain Agreement of Purchase
and Sale dated as of June 1, 1998 (the "Agreement"), providing for the sale and
purchase of certain property known as the Treasure Island Destination Resort and
located in Laguna Beach, California.
B. Seller and Buyer now desire to amend the Agreement as set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the agreements and mutual covenants set
forth herein and notwithstanding anything in the Agreement to the contrary,
Seller and Buyer hereby agree as follows:
1. A new definition is hereby added to Section 1 of the Agreement to read as
follows:
"Xxxxxxxx Petition" means that certain pending Petition for Writ of Mandate
filed by Xxxxxx X. Xxxxxxxx, M.D. against the City of Laguna Beach Council
Members and others in the Superior Court of the State of California, County
of Orange (Xxxxxxxx v. City of Laguna Beach, et al., Action No. 796478),
seeking a Writ of Mandate vacating the City Council's resolution approving
the master plan for the Property.
2. Section 2.1 of the Agreement is hereby deleted in its entirety and the
following is substituted therefor:
"2.1 Agreement to Purchase and Sell. Subject to and upon the terms and
conditions contained in this Agreement, Seller agrees to sell and convey to
Buyer and Buyer agrees to purchase from Seller the real property described
in Exhibit "A" attached hereto known as The Treasure Island Destination
Resort, having a street address of 00000 Xxxxx Xxxxxxx, Xxxxxx Xxxxx,
Xxxxxxxxxx, together with all buildings, structures and other improvements
thereon (collectively, the "Property"), for a total purchase price of
Thirty-Seven Million ($37,000,000) Dollars (the "Purchase Price")."
Commencing on June 1, 1999 and continuing to the date of the Closing, the
Purchase Price shall be increased at the rate of ten (10%) percent per
annum.
3. Exhibit "B" to the Agreement is hereby deleted in its entirety.
4. Section 2.2 of the Agreement is hereby amended as follows:
The Additional Deposit shall be paid in two installments as follows: (i) a
first installment of $100,000 shall be paid simultaneously with the
execution and delivery of this First Amendment and (ii) a second
installment of $800,000 shall be paid upon the dismissal of the Xxxxxxxx
Petition, or, if the Xxxxxxxx Petition is not dismissed prior to the
Closing, at the Closing.
5. Section 7.3 of the Agreement is hereby modified by adding a new sentence
thereto as follows:
" With respect to any item required to be paid by Buyer under item (a) of
Section 7.2, but which is due less often than monthly, Buyer shall pay such
item to Seller, in advance, on a monthly basis based on an estimate of the
installment next due."
6. Seller and Buyer hereby agree that, notwithstanding the Xxxxxxxx Petition,
the condition precedent set forth in Section 10.1 has been satisfied. It is
understood and agreed that the Xxxxxxxx Petition does not affect
satisfaction of the condition precedent set forth in Section 10.2.
7. Section 11.1 of the Agreement is hereby deleted in its entirety and the
following is substituted therefor:
"11.1 Time and Place. The closing contemplated by this Agreement (the
"Closing") shall take place on the earlier of (A) September 15, 1999, or
(B) the later of (i) June 1, 1999, (ii) the date that is forty (40) days
after Coastal Approval, and (iii) the date that is ninety (90) days after
the non-qualification or defeat or judicial declaration of invalidity of
both (a) the Referendum of Resolution No. 98.075 (amending the City's
General Plan to implement the LCP) and (b) the Referendum of Ordinance No.
1349 (amending the City of Laguna Beach's zoning ordinance to implement the
LCP); provided, however, that in no event shall the Closing take place
after September 15, 1999. The Closing shall take place at the offices of
the Title Company or at such other place as the parties shall mutually
agree. Time is of the essence with respect to the Closing."
8. Seller and Buyer shall mutually agree on a general strategic plan (the
"Strategic Plan") to contest the Referendum of Resolution No. 98.075 and
the Referendum of Ordinance No. 1349 (together, the "Referendum"). Seller
will be solely responsible for the day-to-day execution of the Strategic
Plan. In this regard, Xxxx X. Xxxxx, Chairman of Xxxxxxx Xxxxx, Xxxxxxx
Inc., because of his unique knowledge of the political and historical
aspects of the Property, will be made available by Seller to personally
execute, or cause to be executed, the Strategic Plan. Seller shall be
responsible for the payment of all reasonable out-of-pocket costs that are
incurred by Seller or any employee or independent contractor engaged by
Seller to contest the Referendum. Notwithstanding anything herein to the
contrary, Seller shall have no liability whatsoever to Buyer or to any
other person or entity in the event that the governmental entitlements
available to the Property are rescinded or otherwise diminished by the
passage of the Referendum. If, prior to the Closing, the Referendum is
passed, Buyer shall have the option, by written notice given to Seller
within ten (10) days after passage, to terminate this Agreement and, upon
the giving of such notice of termination, the Down Payment shall be
promptly returned to Buyer and the parties shall be released from all
further obligations and liabilities under the Agreement, except with
respect to the Surviving Indemnities. If Buyer chooses not to terminate
this Agreement, Closing shall take place no later than sixty (60) days
following the approval of the Referendum, but in no event later than
September 15, 1999.
9. Unless otherwise defined herein, all capitalized terms set forth herein
shall have the same meanings as set forth in the Agreement. The Agreement,
as amended hereby, embodies the entire agreement between the parties
hereto, supersedes all prior agreements and understandings, if any,
relating to the subject matter hereof, and may be amended or supplemented
only by an instrument in writing executed by the party against whom
enforcement is sought.
10. This First Amendment is being executed in counterparts by facsimile
transmissions and accepted by the parties as duplicate originals.
11. The submission of this First Amendment for examination does not constitute
an offer by or to either party. This First Amendment shall be effective and
binding only after due execution and delivery by the parties hereto.
12. All of the terms, covenants and conditions of the Agreement, as hereby
amended, are ratified and confirmed and shall remain in full force and
effect. The parties hereto hereby ratify and affirm the Agreement in all
respects.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed
as of the date first above written. SELLER
TREASURE ISLAND ASSOCIATES, a
California general partnership
By: MLH Income Realty Partnership VI,
a New York limited partnership,
managing general partner
By: MLH Property Managers Inc.,
a Delaware corporation,
managing general partner
By: /s/Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx
President
BUYER:
VESTAR-ATHENS RESORTS, L.L.C.,
an Arizona limited liability company
By: /s/ Xxx X. Xxxxxxxx
---------------------------
Name: Xxx X. Xxxxxxxx
Title: _________________
SECOND AMENDMENT
TO AGREEMENT OF PURCHASE AND SALE
THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE dated as of July 27,
1999 (this "Second Amendment"), between TREASURE ISLAND ASSOCIATES, a California
general partnership ("Seller") and VESTAR-ATHENS RESORTS, L.L.C., an Arizona
limited liability company ("Buyer").
RECITALS:
Seller and Buyer have entered into that certain Agreement of Purchase and Sale
dated as of June 1, 1998, as amended by a First Amendment to Agreement of
Purchase and Sale dated as of December 24, 1998 (the "First Amendment")
(collectively the "Agreement"), providing for the sale and purchase of certain
property known as Treasure Island Destination Resort and located in Laguna
Beach, California.
B. Under the First Amendment, the Additional Deposit was payable as follows:
(i) a first installment of $100,000 (the "First Installment") and (ii) a
second installment of $800,000 (the "Second Installment"). The First
Installment has been paid by Buyer.
C. Seller and Buyer now desire to further amend the Agreement as set forth
herein.
AGREEMENTS:
NOW, THEREFORE, in consideration off the agreements and mutual covenants set
forth herein and notwithstanding anything in the Agreement to the contrary,
Seller and Buyer hereby agree as follows:
Section 2.2 of the Agreement is hereby amended as follows: The Second
Installment shall be paid by the execution by Buyer, Xxx Xxxxxx and Xxx
Xxxxxxxx of a promissory note in the original principal amount of $800,000
due and payable on August 10, 1999, the form of which is attached hereto as
Exhibit "H" (the "Promissory Note"). The Promissory Note, as so executed,
shall be delivered to Seller simultaneously with the execution of this
Second Amendment. Seller agrees that upon the maturity of the Promissory
Note, Buyer may pay the indebtedness due thereunder directly to the Escrow
Agent and such payment shall constitute payment of the Second Installment.
Buyer represents and warrants to Seller that Xxx Xxxxxx and Xxx Xxxxxxxx
are members of Buyer and have a direct financial interest in Buyer.
2. Section 11.1 of the Agreement is hereby deleted in its entirety and the
following is substituted therefor:
"11.1 Time and Place. The closing contemplated by this Agreement (the
"Closing") shall take place on August 31, 1999, at the offices of the Title
Company or at such other place as the parties shall mutually agree. Time is
of the essence with respect to the Closing."
The following sentence is hereby added to Section 16.1 of the Agreement.
"Notwithstanding anything herein to the contrary, if the Promissory Note is
not paid when due and payable, the same shall constitute a default by Buyer
under this Agreement, thereby entitling Seller, without further notice
and/or demand and in addition to its rights and remedies under the
Promissory Note, to terminate this Agreement and exercise all of its rights
and remedies under this Section 16.1."
Unless otherwise defined herein, all capitalized terms set forth herein
shall have the same meanings as set forth in the Agreement. The Agreement,
as amended hereby, embodies the entire agreement between the parties
hereto, supersedes all prior agreements and understandings, if any,
relating to the subject matter hereof, and may be amended or supplemented
only by an instrument in writing executed by the party against whom
enforcement is sought.
5. This Second Amendment is being executed in counterparts by facsimile
transmissions and accepted by the parties as duplicate originals.
6. All of the terms, covenants and conditions of the Agreement as hereby
amended, are ratified and confirmed and shall remain in full force and
effect. The parties hereto hereby ratify and affirm the Agreement in all
respects.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed as of
the date first above written.
SELLER:
TREASURE ISLAND ASSOCIATES,
a California general partnership
By: MLH Income Realty Partnership VI,
a New York limited partnership,
its managing general partner
By: MLH Property Managers Inc.,
a Delaware corporation,
its managing general partner
By: _____________________________
Xxxx X. Xxxxx
Its: President
BUYER:
VESTAR-ATHENS RESORTS, L.L.C.,
an Arizona limited liability company
By: ___________________________________
Name: ___________________________________
Its: ___________________________________
EXHIBIT "H"
PROMISSORY NOTE
$800,000.00 July 27 1999
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to Treasure
Island Associates, a California general partnership, ("Holder"), or order, the
principal sum of Eight Hundred Thousand and No/100 Dollars ($800,000.00). All
amounts are due and payable in lawful money of the United States of America at
First American Title Insurance Company, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000-0000, Escrow No. 135CA23593 ("Escrow Agent").
The entire unpaid principal balance and all other amounts payable hereunder
shall be due and payable on August 10, 1999 and constitutes the Second
Installment of the Additional Deposit described in that certain Second Amendment
to Agreement of Purchase and Sale dated as of July 27, 1999 (the "Second
Amendment") between Holder and Vestar-Athens Resorts, L.L.C., an Arizona limited
liability company ("Vestar"). Deposit of the Second Installment described in the
Second Amendment with Escrow Agent shall constitute payment in full of the
unpaid principal balance and all other amounts payable under this Note.
If the due date of any payment is on a day other than a business day, such
payment shall be due and made on the next succeeding business day.
The occurrence of any one or more of the following events shall constitute
an "Event of Default" hereunder, and upon the occurrence of any such Event of
Default, all sums evidenced hereby, including the entire principal sum and all
other amounts due hereunder, shall, at the election of Holder, become
immediately due and payable, upon written notice to Maker: (i) Maker fails to
pay any amount when due under this Note; (ii) Maker applies for, consents to, or
acquiesces in, the appointment of a trustee, receiver, sequestrator or other
custodian for Maker, or makes a general assignment for the benefit of creditors;
or (iii) Maker permits or suffers to exist the commencement of bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, except for any involuntary proceeding initiated or
consented to by Holder, or dissolution, winding up or liquidation proceeding in
respect of Maker. Upon the occurrence of an Event of Default by Maker, the
unpaid principal balance due hereunder shall bear interest at the rate of twelve
percent (12%) per annum (the "Default Rate") from the date of Event of Default .
Upon the occurrence of an Event of Default, Holder shall have all rights and
remedies available at law or in equity.
Maker shall have the right to prepay all or any portion of this Note at any
time without penalty or premium.
All fees, including attorneys' fees, charges, goods, things in action, or
any other sums or things of value or other contractual obligations
(collectively, the "Additional Sums") paid by Maker to the Holder of this Note,
whether pursuant to this Note or otherwise with respect to the indebtedness
evidenced hereby, or any other document or instrument in any way pertaining to
such indebtedness, which, under the law of the State of New York may be deemed
to be interest with respect to such indebtedness, shall, for the purpose of any
laws of the State of New York which may limit the maximum rate of interest to be
charged with respect to such indebtedness, be payable by Maker as, and shall be
deemed to be, interest, and for such purposes only, Maker agrees to an effective
contracted for rate of interest equal to the rate of interest resulting from the
payment of any Additional Sums. Maker understands and believes that this
transaction complies with the usury laws of New York; however, if any interest
or other charges are ever deemed to exceed the maximum amount permitted by law,
then: (a) the amount of interest or charges payable hereunder by Maker shall be
reduced to the maximum amount permitted by law; and (b) any excess amount
previously collected from Maker which exceed the maximum amount permitted by law
will be credited against the outstanding principal indebtedness. If the
principal indebtedness has already been paid, the excess amount paid will be
refunded to Maker.
Except as otherwise provided herein, Maker waives demand, diligence,
presentment for payment and protest, notice of extension, dishonor, maturity,
and protest and all other notices in connection with the delivery, acceptance,
performance, default, or enforcement of this Note. Maker agrees that the Holder
may accept late or partial payments even though they are marked "payment in
full," without losing, prejudicing or waiving any rights hereunder.
Maker shall pay all costs of collection, including reasonable attorneys'
fees and all costs of suit and preparation for such suit (whether at trial or
appellate level), in the event the unpaid amounts of this Note are not paid when
due, or if at any time the Holder should incur any attorneys' fees in any
proceeding under the Federal Bankruptcy Act (or any similar laws for the
protection of debtors generally) in order to collect any indebtedness hereunder
whether suit be brought or not, and whether through courts of original
jurisdiction, as well as in court of appellate jurisdiction, or through a
Bankruptcy Court or other legal proceedings.
In the event of any court proceeding with respect to this Note, attorneys'
fees shall be set by the court and not be the jury and shall be included in any
judgment obtained by the prevailing party.
No amendment, modification, change, waiver or discharge shall be effective
unless evidenced by an instrument in writing and signed by the party against
whom enforcement of any waiver, amendment, change, modification or discharge is
sought. If any provision hereof is invalid or unenforceable, the other provision
hereof shall remain in full force and effect and shall be liberally construed in
favor of the Holder hereof in order to effectuate the provision hereof. The
provisions of this Note shall be binding upon and inure to the benefit of the
heirs, personal representatives, successors and assigns of the parties hereto.
A waiver by Holder or failure to enforce any covenant or condition of this
Note or to declare any default hereunder shall not operate as a waiver of any
subsequent default or affect the right of Holder to exercise any right or remedy
not expressly waived in writing.
This Note shall be construed in accordance with and governed by the law of
the State of New York.
Time is of the essence of this Note and each and every term hereto.
Payments shall be credited only when actually received in immediately available
funds.
Xxx X. Xxxxxx and Xxx X. Xxxxxxxx are joining in the execution of this Note
as they are principals of Vestar.
This Note may be executed in counterparts and by facsimile signature.
IN WITNESS WHEREOF, Maker has executed this Promissory Note this 27th day of
July, 1999.
MAKER:
XXX X. XXXXXX and XXX X. XXXXXXXX
________________________________
Xxx X. Xxxxxx
________________________________
Xxx X. Xxxxxxxx
VESTAR-ATHENS RESORTS, L.L.C., an
Arizona limited liability company
By:
Xxx X. Xxxxxx
Its: Managing Member
Address of Maker:
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into as of August 9,
1999 (the "Agreement") by and between VESTAR-ATHENS RESORTS, L.L.C., an Arizona
limited liability company ("Assignor") and MI LAGUNA, LLC, a Delaware limited
liability company ("Assignee").
RECITALS
A. Assignor, as buyer, and Treasure Island Associates, a California general
partnership (the "Seller") as seller, are parties to that certain Agreement
of Purchase and Sale dated as of June 1, 1998, as amended by that certain
First Amendment to Agreement of Purchase and Sale dated as of December 24,
1998 and that certain Second Amendment to Agreement of Purchase and Sale
dated as of July 27, 1999 (as amended, the "Purchase Agreement") providing
for the sale to Assignor of that certain real property described on Exhibit
A attached hereto and by this reference incorporated herein (the
"Property").
B. Assignor has agreed to assign to Assignee all of Assignor's right, title
and interest as buyer under the Purchase Agreement. NOW THEREFORE, for good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Assignment. Effective as of the date of execution by Seller of the Consent
attached hereto, Assignor hereby assigns, transfers, sets over and conveys
to Assignee all of Assignor's right, title and interest in and to the
Purchase Agreement.
2. Assumption. Assignee hereby accepts the foregoing assignment and, effective
as of the date of execution by Seller of the Consent attached hereto,
agrees to assume and be bound by all covenants, obligations, terms and
conditions of the Purchase Agreement.
3. Representations and Warranties. Assignor hereby represents and warrants to
Assignee that (a) the Purchase Agreement is in full force and effect and
there are no defaults thereunder either by Assignor or Seller, (b) other
than the restrictions on assignment set forth in Section 18 of the Purchase
Agreement, no conditions exist, or with notice or passage of time would
exist, that would give Seller the right to terminate the Purchase Agreement
or otherwise refuse to convey the Property to Assignee, as successor in
interest to Assignor, (c) all conditions precedent to the conveyance of the
Property by Seller as set forth under the Purchase Agreement have been met
other than the delivery of documents set forth in Section 11 of the
Purchase Agreement, the issuance of a policy of title insurance as set
forth in Section 5 of the Purchase Agreement and the payment of the
purchase price of the Property, (d) the Purchase Agreement is the only
agreement between Assignor and Seller (whether written or oral) relating to
the sale of the Property, (e) to the best of Assignor's knowledge, upon the
close of escrow and delivery of the deed and assignment referenced in
Sections 11.2.1 and 11.2.3, respectively, of the Purchase Agreement,
Assignor will obtain full right, title and interest in all currently
existing entitlements, permits, licenses and agreements relating to the
development of the Property as a resort hotel, and (h) Assignor has full
right, title and interest, as buyer, in the Purchase Agreement, subject to
no other assignment, right, claim or interest of any other party.
Notwithstanding anything to the contrary set forth herein, nothing
contained in this Section 3 shall be deemed to constitute a representation
or warranty with respect to any rights Lend Lease Real Estate Investments,
Inc., Lend Lease Development (U.S.), Inc. or any of the their managed
funds, including Value Enhancement Fund III and Lend Lease Global Property,
or any Lend Lease-related company or fund, may have in the Purchase
Agreement.
4. Successors and Assigns; Survival. This Assignment shall be binding upon and
shall inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, successors and assigns. The representations and
warranties set forth herein shall survive the execution, delivery and
effectiveness of this Assignment.
5. Governing Law. This Assignment shall be governed by, interpreted under and
construed in accordance with the internal laws of the State of California,
without reference to conflict of laws principals.
6. Attorneys' Fees. In the event of any litigation arising out of or in
connection with this Assignment, the prevailing party in any action or
proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' fees and costs, incurred by the
prevailing party in connection with such action or proceeding.
7. Further Assurances. Assignor and Assignee shall promptly execute,
acknowledge and deliver such instruments and documents and perform such
further acts as may be reasonably necessary or desirable to carry out the
intent and purpose of this Assignment.
8. Counterparts. This Assignment may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall be
construed as one and the same document. Any signature signed in counterpart
by facsimile shall be deemed an original signature.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the day and
year first above written.
ASSIGNOR
VESTAR-ATHENS RESORTS, L.L.C.,
an Arizona limited liability company
By:
Title:
ASSIGNEE
MI LAGUNA, LLC,
a Delaware limited liability company
By: MARRIOTT INTERNATIONAL, INC.,
a Delaware corporation
By:
Title:
CONSENT
Treasure Island Associates, as Seller under the Purchase Agreement, hereby
(a) consents to the foregoing assignment and agrees to recognize Assignee as the
buyer thereunder, (b) agrees that Assignee may, without Seller's further
consent, assign its interest under the Purchase Agreement to an affiliate
controlled by Assignee, (c) agrees that Assignee may designate a nominee to take
title to the Property and (d) represents and warrants that (1) the Purchase
Agreement is in full force and effect, no default exists thereunder, and no
conditions exist, or with notice or passage of time would exist, that would give
Seller the right to terminate the Purchase Agreement or refuse to convey the
Property to Assignee, (2) other than the Purchase Agreement, there are no other
agreements between Assignor and Seller (oral or written) relating to the
purchase of the Property and (3) all conditions precedent to the conveyance of
the Property by Seller as set forth under the Purchase Agreement have been met
other than the delivery of documents set forth in Section 11 of the Purchase
Agreement, the issuance of a policy of title insurance as set forth in Section 5
of the Purchase Agreement and the payment of the purchase price of the Property.
DATE: TREASURE ISLAND ASSOCIATES,
a California general partnership
By: MLH Income Realty Partnership VI
a New York limited partnership
Managing General Partner
By: MLH Property Managers Inc.
a Delaware corporation
Managing General Partner
By:
Title:
EXHIBIT A
LEGAL DESCRIPTION
All that certain land situated in the State of California, County of Orange,
City of Laguna Beach, described as follows:
PARCELS 1, 2 AND 3 AS SHOWN ON A MAP FILED IN BOOK 187, PAGES 39, 40 AND 41 OF
PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING ANY PORTION OF THE DESCRIBED PROPERTY BELOW THE LINE OF NATURAL
ORDINARY HIGH WATER XXXX WHERE IT WAS LOCATED PRIOR TO ANY ARTIFICIAL OR
AVULSION CHANGES IN THE LOCATION OF THE SHORELINE.
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into as of August ___,
1999 (the "Agreement") by and between MI LAGUNA, LLC, a Delaware limited
liability company ("Assignor"), and FIVE STAR RESORT LLC, a Delaware limited
liability company ("Assignee").
RECITALS
C. Vestar-Athens Resorts, L.L.C., an Arizona limited liability company
("Vestar"), as buyer, and Treasure Island Associates, a California general
partnership (the "Seller"), as seller, are parties to that certain
Agreement of Purchase and Sale dated as of June 1, 1998, as amended by that
certain First Amendment to Agreement of Purchase and Sale dated as of
December 24, 1998 and that certain Second Amendment to Agreement of
Purchase and Sale dated as of July 27, 1999, and as assigned by Vestar to
Assignor, as buyer, pursuant to that certain Assignment and Assumption
Agreement, dated as of August 9, 1999 (as amended and assigned, the
"Purchase Agreement") providing for the sale to Assignor of that certain
real property described on Exhibit A attached hereto and by this reference
incorporated herein (the "Property").
D. Pursuant to a Consent executed August 19, 1999, Seller agreed that Assignor
could, without Seller's further consent, assign its interest under the
Purchase Agreement to an affiliate controlled by Assignor. Assignor is the
managing member of Assignee, and owns a 99% interest in Assignee.
E. Assignor has agreed to assign to Assignee all of Assignor's right, title
and interest as buyer under the Purchase Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Assignment. Effective as of the date hereof, Assignor hereby assigns,
transfers, sets over and conveys to Assignee all of Assignor's right, title
and interest in and to the Purchase Agreement.
2. Assumption. Assignee hereby accepts the foregoing assignment and, effective
as of the date hereof, agrees to assume and be bound by all covenants,
obligations, terms and conditions of the Purchase Agreement.
3. Representations and Warranties. Assignor hereby represents and warrants to
Assignee that Assignor has full right, title and interest, as buyer, in the
Purchase Agreement, subject to no other assignment, right, claim or
interest of any other party.
4. Successors and Assigns; Survival. This Assignment shall be binding upon and
shall inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, successors and assigns. The representations and
warranties set forth herein shall survive the execution, delivery and
effectiveness of this Assignment.
5. Governing Law. This Assignment shall be governed by, interpreted under and
construed in accordance with the internal laws of the State of California,
without reference to conflict of laws principles.
6. Attorneys' Fees. In the event of any litigation arising out of or in
connection with this Assignment, the prevailing party in any action or
proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' fees and costs, incurred by the
prevailing party in connection with such action or proceeding.
7. Further Assurances. Assignor and Assignee shall promptly execute,
acknowledge and deliver such instruments and documents and perform such
further acts as may be reasonably necessary or desirable to carry out the
intent and purpose of this Assignment.
8. Counterparts. This Assignment may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall be
construed as one and the same document. Any signature signed in counterpart
by facsimile shall be deemed an original signature.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the day and
year first above written.
ASSIGNOR
MI LAGUNA, LLC,
a Delaware limited liability company
By: MARRIOTT INTERNATIONAL, INC.,
a Delaware corporation
By:
Title:
ASSIGNEE
FIVE STAR RESORT LLC,
a Delaware limited liability company
By: MI LAGUNA, LLC,
a Delaware limited liability company
By: MARRIOTT INTERNATIONAL, INC.,
a Delaware corporation
By:
Title:
EXHIBIT A
LEGAL DESCRIPTION
All that certain land situated in the State of California, County of Orange,
City of Laguna Beach, described as follows:
PARCELS 1, 2 AND 3 AS SHOWN ON A MAP FILED IN BOOK 187, PAGES 39, 40 AND 41 OF
PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING ANY PORTION OF THE DESCRIBED PROPERTY BELOW THE LINE OF NATURAL
ORDINARY HIGH WATER XXXX WHERE IT WAS LOCATED PRIOR TO ANY ARTIFICIAL OR
AVULSION CHANGES IN THE LOCATION OF THE SHORELINE.
