PURCHASE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS made this 16th day of
October, 1997, by and between Hilton Hotels Corporation, a Delaware corporation
(hereinafter "Seller") and Eagle Hardware & Garden, Inc. a Washington
corporation (hereinafter "Purchaser") (the "Agreement"). This Agreement
constitutes both an Agreement between Purchaser and Seller and joint escrow
instructions to Commonwealth Land Title Company ("Escrow Agent") with respect to
the transactions contemplated hereby.
WITNESSETH
For and in consideration of the mutual covenants and conditions herein
contained, Seller and Purchaser agree as follows:
1. PROPERTY. Seller agrees to sell and convey, and Purchaser agrees to
purchase and pay for that certain tract of land containing approximately 23
acres located in Washoe County, Nevada (the "Land"), described as tax
assessor parcel no. 000-000-00 ("Parcel 35") and tax assessor parcel no.
000-000-00 ("Parcel 36"), and more particularly described on Exhibit "A"
attached hereto and as generally shown on a reduced partial copy of an
assessor's map attached hereto as Exhibit "B", both of which are incorporated
herein by reference, together with all appurtenances thereto and improvements
thereon; provided, however, excluding any ditch, water or water rights except
for a portion of the Lake Ditch water rights owned by Seller equivalent to
twenty eight (28) acre feet (collectively, the "Property"). Purchaser
acknowledges that the exact description of the Land will be changing in
connection with the Zoning Application, as hereinafter defined.
2. PURCHASE PRICE. The total purchase price (the "Purchase Price") of
the Property shall be an amount equal to the sum of gross square footage (as
hereinafter defined) of Parcel 35 multiplied by $11.00 and the gross square
footage of Parcel 36 multiplied by $9.50. The estimated total Purchase Price
is Ten Million Five Hundred Seventeen Thousand Dollars ($10,517,00.00). Gross
square footage is the square footage of the Land as shown by
the Survey, as hereinafter defined. The Purchase Price shall be payable at
Closing, as hereinafter defined, in cash. At the Closing, the Deposit shall be
applied to payment of the Purchase Price.
3. DEPOSIT. Within ten (10) days after execution of this Agreement by
Seller, Purchaser shall deliver a deposit (such sum, together with all interest
earned thereon, the "Deposit") in the amount of Two Hundred Ten Thousand Dollars
($210,000.00) in immediately available funds to Escrow Agent, which shall be
deposited into an interest-bearing account by Escrow Agent and held during the
pendency of this Agreement. If Purchaser defaults under this Agreement, Seller
shall be entitled to receive the Deposit as liquidated damages as provided in
this Agreement. If Seller defaults under this Agreement, or if any of
Purchaser's Conditions For Closing (as hereinafter defined) are not satisfied,
or if Purchaser terminates this Agreement as provided herein, Purchaser shall be
entitled to receive a return of the Deposit (subject to the provisions of
Section 4 hereof relating to payment for the Survey and retention of a portion
of the Deposit).
4. FEASIBILITY PERIOD AND CONTINGENCY. For a period of sixty (60) days
after the Effective Date (as hereinafter defined) of this Agreement
("Feasibility Period"), Purchaser shall be entitled to inspect the Property, to
conduct such tests, surveys, analyses and feasibility studies of the Property as
Purchaser deems necessary, advisable or desirable, and to meet with governmental
entities regarding the feasibility of future use or development of the Property,
including, but not limited to, obtain all required governmental approvals and/or
permits to construct and operate Purchaser's desired facility on Parcel 35.
Without limiting the generality of the foregoing, Purchaser (and persons
authorized by Purchaser) shall have the right and authority to go upon the
Property, from time to time on one or more occasions, for feasibility
determinations including, without limitation (1) determining the adequacy, cost
and availability of utilities, access, zoning and other restrictions on the use
of the Property; (2) performing environmental, soils and subsoil tests,
engineering and drainage studies; and (3) determining the economic feasibility
of future development of the Property as related to Purchaser's intended use of
the Property. Purchaser hereby agrees to indemnify and hold harmless Seller, its
successors and assigns, against all
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claims, costs loss or damage, including, without limitation, attorneys' fees
and mechanic's liens, arising out of or in any way connected with the
activities of Purchaser, its agents or contractors on or about the Property;
provided, however, that this provision is not intended to apply to the mere
discovery of underground storage tanks or hazardous material (as defined in
section 7.a.10 herein) on or under the Property by Purchaser or its
consultants, or any consequences of such mere discovery. Purchaser shall
immediately repair any condition to the Property resulting from Purchaser's
investigation or testing on the Property which creates or poses a health or
safety hazard or an unreasonable nuisance on the Property, and in the event
Purchaser does not purchase the Property in accordance with this Agreement,
Purchaser shall restore the Property to its condition immediately prior to
any testing or other investigation by Purchaser. The foregoing obligations to
indemnify Seller and restore the Property shall survive the Closing or
termination of this Agreement.
Seller agrees to cooperate with Purchaser in connection with the tests,
investigation and inspection of the Property, and to furnish Purchaser with
copies of any and all surveys, test reports, engineering studies and all
other documents and materials (excluding appraisals) in Seller's possession
or control relating to the Property that may be necessary or appropriate to
complete such investigation and inspection. If Purchaser determines, in
Purchaser's sole and absolute judgment that the Property is suitable for
Purchaser's intended use, Purchaser shall notify Seller and Escrow Agent on
or before expiration of the Feasibility Period, as the same may be extended
as herein provided. Should Purchaser fail to give such notice, this Agreement
shall automatically terminate upon expiration of the Feasibility Period,
Escrow Agent shall return the Deposit to Purchaser, less the cost of the
Survey provided for in Section 5.b below, which amount shall be delivered to
Seller by Escrow Agent, and, except as otherwise provided herein, neither
party shall have any further rights or obligations hereunder.
Notwithstanding, the foregoing, in the event the Zoning Application is fully
approved in all aspects by the Truckee Xxxxxxx Regional Planning Commission
and the Handbook, as hereinafter defined, is fully approved by the Reno City
Council, and all appeal periods with respect thereto have expired without an
appeal having been filed, during the Feasibility Period and thereafter
Purchaser elects to terminate this Agreement upon
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expiration of the Feasibility Period, Purchaser shall only be entitled to
receive a return of one-half of the Deposit and the remainder of the Deposit
shall be delivered to Seller as additional consideration for entering into this
Agreement.
5. TITLE REPORT AND SURVEY.
a. TITLE REPORT. Within twenty (20) days after the Effective Date
of this Agreement, Seller, at Seller's sole cost and expense, shall deliver or
cause to be delivered to Purchaser a preliminary title report covering the
Property issued by the Escrow Agent, together with true, complete and legible
copies of all documents referred to in such preliminary title report (the
preliminary title report and such documents are referred to collectively as
"Title Report").
b. SURVEY. Within forty-five (45) days after the Effective Date of
this Agreement, at Seller's sole cost and expense (subject to the provisions of
Section 4 above), Seller shall deliver or cause to be delivered to Purchaser a
current ALTA survey of the Property prepared by a licensed surveyor acceptable
to Purchaser and Escrow Agent and in accordance with the 1988 Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys ("Survey"). The Survey
shall show the total gross square footage of the Property.
c. REVIEW OF TITLE REPORT AND SURVEY. Purchaser shall have ten (10)
days from Purchaser's receipt of both the Title Report and the Survey (and any
amendments, supplements and revisions to either in which new or revised
exceptions or items first appear) in which to examine those documents and to
specify to Seller those items reflected thereupon which Purchaser will accept as
permitted exceptions to title ("Permitted Exceptions"), and those items which
Purchaser finds objectionable ("Title Objections"). Notwithstanding the
foregoing, the Zoning Application, as hereinafter defined, shall be a Permitted
Exception. Seller shall use all reasonable efforts to correct or remove all
Title Objections, give Purchaser written notice thereof and deliver at or prior
to Closing an amended Title Report and Survey reflecting the correction or
deletion of such matters. If Purchaser does not deliver to Seller a written
notice specifying those items which are Permitted Exceptions and Title
Objections
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within the above-stated time period, then all of the items reflected on the
Title Report shall be considered to be Permitted Exceptions. Any liens affecting
the Property, other than liens specifically provided for in this Agreement,
shall be Title Objections, and Seller shall cause the liens to be released at or
prior to Closing.
d. UNCORRECTED TITLE OBJECTIONS. If Seller fails to cause all of
the Title Objections to be corrected or removed prior to Closing, Purchaser
shall have the following rights:
(1) Purchaser may terminate this Agreement by giving Seller
written notice thereof, in which event the entire Deposit shall be returned to
Purchaser, and both parties shall be released from all further obligations under
this Agreement; or
(2) Purchaser may elect to purchase the Property subject to any
Title Objections not so corrected or removed.
6. ZONING. Purchaser acknowledges that Seller has filed an application
for approval of a Planned Unit Development (the "Zoning Application") affecting
the Property and other property owned by Seller with the Reno City Council, a
copy of which has been provided to Purchaser. Purchaser acknowledges that Seller
shall have the right to modify the Zoning Application in Seller's sole and
absolute discretion except that no modification which has a material adverse
impact on the Property or Purchaser's intended use thereof shall be made without
the prior consent of Purchaser. In the event the Zoning Application is modified
in a manner which has a material adverse impact on the Property or Purchaser's
intended use thereof, Purchaser shall be entitled to terminate this Agreement by
written notice to Seller in which case the Deposit shall be refunded to
Purchaser, and except as otherwise expressly provided herein, neither party
shall have any further rights or obligations hereunder. Purchaser acknowledges
that the terms and conditions of the Zoning Application will affect the Property
and Purchaser's use of the Property and Purchaser agrees to accept the Property
subject to all such terms and conditions, and to perform all terms and
conditions thereof as the same relate to the Property. Without limiting the
foregoing, Purchaser acknowledges that Seller shall have no obligation to
perform any terms or conditions contained in the Zoning Application or any
approval
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thereof, including, without limitation, the installation or construction of
any street, access, sidewalk, utilities, traffic signals or other
improvements which may be required or necessary in connection with the Zoning
Application, the approval thereof, or Purchaser's use of the Property and
Purchaser agrees that it shall be responsible for the construction of any
on-site or off-site improvements which may be required in connection with its
use, ownership and/or development of the Property including, without
limitation, streets, sidewalks, access roads, utilities and traffic signals.
Seller shall use reasonable diligence in pursuing approval of the Zoning
Application. Purchaser and Seller acknowledge that Purchaser intends to seek
separate approvals from the city of Reno for Purchaser's intended use on the
Property. Purchaser shall have no right to amend the Zoning Application or
otherwise affect any other property subject to the Zoning Application in
connection with seeking the approvals for its use of the Property without the
prior written consent of Seller, which consent will not be unreasonably
withheld or delayed.
7. REPRESENTATIONS AND WARRANTIES.
a. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller hereby expressly
represents and warrants to Purchaser as follows:
1. SELLER'S AUTHORITY. The person signing this Agreement as Seller
on or behalf of Seller has the full right, power, and authority to enter into
this Agreement as Seller, and to carry out Seller's obligations, including the
conveyance of the Property to Purchaser as provided in this Agreement, without
the joinder of any other person.
2. PARTIES AND POSSESSION. There are no parties claiming adverse
possession of the Property. Other than those items described on Exhibit C
attached hereto and incorporated herein by reference, to Seller's actual
knowledge, Seller is the only party in possession of the Property, and there are
no outstanding written or oral leases or agreements relating to the use or
possession of the Property.
3. COMPLIANCE WITH REGULATIONS. To Seller's actual knowledge, there
is no condition existing with respect to the Property or the operation of the
Property that violates any
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restrictive covenant, or any city, county, state or federal regulation,
ordinance, or statute, including the violation of any zoning ordinance or use
restriction, and to Seller's actual knowledge, Seller has not received any
notice relating to any such violation.
4. MECHANIC'S LIEN. At the Closing, there will be no unpaid bills
for labor or materials furnished to Seller in connection with the Property that
would cause a mechanic's or materialmen's lien to be filed on the Property.
5. CONDEMNATION. To Seller's actual knowledge, there is no pending
or threatened condemnation or similar proceeding affecting the Property or any
portion thereof, nor has Seller knowledge that any such action is presently
contemplated. Seller agrees to give Purchaser prompt notice of any actual or
threatened condemnation or similar proceeding between the date hereof and the
Closing.
6. ACTIONS. There is no action, suit, proceeding or claim affecting
Seller or the Property or any portion thereof relating to or presently being
prosecuted for an increase of the assessed valuation or taxes or other
impositions payable in respect to any portion of the Property. Other than the
Zoning Application, there is no action, suit or proceeding pending or, to
Seller's actual knowledge, threatened affecting the Property or seeking to
enjoin the Seller's performance of this Agreement.
7. EVENTS. Seller will promptly notify Purchaser in writing of the
occurrence of any events or happenings which to Seller's knowledge may, would or
could change or vary the state of facts of any warranty or representation made
herein.
8. TRANSFER. The execution and delivery of this Agreement and sale
by Seller and the consummation of the transaction contemplated hereby will not
result in any breach of the terms and conditions of, or constitute a default
under any mortgage, note or other instrument or obligation to which the Seller
or the Property is now party or by which the Seller or the Property herein is
bound or affected or violate any order, writ, injunction or decree of any court
and any litigation to which Seller or the Property is a party or violate any
law.
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9. NON-FOREIGN STATUS. Seller is not a "foreign person" as defined
under Section 1445(f) of the Internal Revenue Code; and, at Closing, Seller
shall furnish Purchaser an affidavit confirming same in such form as Purchaser's
attorney may reasonably require.
10. HAZARDOUS MATERIAL. As used in this section, the term "Hazardous
Material" means:
A. Those substances defined as "hazardous substances",
"hazardous material", "toxic substances", "regulated substances", or "solid
waste" in the Toxic Substance Control Act, 15 U.S.C. Section 2601 ET. SEQ.,
as now existing or hereafter amended ("TSCA"), the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.
Section 9601 ET. SEQ., as no existing or hereafter amended ("RCRA"), the
Federal Hazardous Substances Act, 15 U.S.C. Section 1261 ET. SEQ., as now
existing or hereafter amended ("FHSA"), the Occupational Safety and Health
Act of 1970, 29 U.S.C. Section 651 ET. SEQ., as now existing or hereafter
amended ("OSHA"), the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801 ET. SEQ., as now existing or hereafter amended ("HMTA"), and the
rules and regulations now in effect or promulgated hereafter pursuant to each
law referenced above;
B. Those substances defined as "hazardous waste", "hazardous
material", or "regulated substances" in Nev. Rev. Stat. ch. 459, 1989 Nev. Stat.
ch. 598 and 1989 Nev. Stat. ch. 363, or in the regulations now existing or
hereafter promulgated pursuant thereto or in the Uniform Fire Code, 1988
edition;
C. Those substances listed in the United States Department of
Transportation table (49 CFR Section 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto); and
D. Such other substances, mixtures, materials and waste which
are regulated under applicable local, state or federal law, or which are
classified as hazardous or toxic under federal, state or local laws or
regulations, including without limitation oil, gas and other petroleum and
petroleum related materials (all laws, rules and regulations referenced in
paragraphs (a), (b), (c)
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and (d) are collectively referred to as "Environmental Laws").
To Seller's actual knowledge, Seller has received no written notice from
any governmental agency or authority regarding the presence of Hazardous
Material on the Property or of any violation of any Environmental Law with
respect to the Property.
b. ACTUAL KNOWLEDGE. As used in this Section 7, "actual knowledge" means
the present actual knowledge of Xxx Xxxxx, Director or Corporate Planning for
Seller.
c. PROPERTY "AS-IS". Purchaser hereby acknowledges and agrees that by
accepting a deed to the Property on the Closing date: (a) Purchaser and its
agents have examined and are satisfied with the Property, the boundaries of
the Property, the soils on the Property, any existing easements effecting the
Property, utility availability, and all laws, ordinances, regulations,
permitted uses and other matters relating to the Property; and (b) except and
only to the extent of Seller's express representations and warranties set
forth herein, (i) Purchaser is accepting the Property in its "as is"
condition and confirming that the same is satisfactory for the uses and
purposes intended by Purchaser; (ii) Purchaser is acknowledging that Seller
has not made, does not make, and has not authorized anyone else to make any
representation as to the past, present and future condition or use of the
Property; and (iii) Purchaser is assuming all risks with respect to the
Property.
d. PURCHASER'S WARRANTIES AND REPRESENTATIONS. Purchaser hereby
expressly represents and warrants to Seller that the person signing this
Agreement as Purchaser on behalf of Purchaser has the full right, power, and
authority to enter into this Agreement as Purchaser, and to carry out
Purchaser's obligations without the joinder of any other person.
8. CLOSING
a. DATE AND PLACE. The Closing of the sale of the Property by
Seller to Purchaser (the "Closing") shall occur in the offices of Escrow Agent
at 10:00 a.m. and shall occur no later than thirty (30) days after the later of
(i) the end of the Feasibility Period or (ii) approval of the Zoning Application
and Handbook as provided in Section 8(C)(1); provided, however, in the event
such
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approval has not been obtained by March 1, 1998, either party may terminate this
Agreement by notice to the other, the Deposit shall be returned to Purchaser
and, except as otherwise expressly provided herein, neither party shall have any
further rights or obligations hereunder.
b. SELLER'S OBLIGATIONS AT CLOSING. At the Closing, Seller shall
deliver, or cause to be delivered, to Purchaser the following:
(1) GRANT BARGAIN AND SALE DEED. Seller shall execute and
deliver to Escrow Agent for recording a Grant, Bargain and Sale Deed, fully
executed and acknowledged by Seller, conveying fee simple title to the Property
to Purchaser.
(2) OWNER'S TITLE POLICY. Seller shall cause the Escrow Agent
to issue and deliver to Purchaser an ALTA extended coverage owner's policy of
title insurance with such customary endorsements as Purchaser shall reasonably
require ("Owner's Title Policy") from Commonwealth Title Insurance Company, in
the amount of the Purchase Price, insuring that Purchaser is owner of the
Property, subject only to any Permitted Exceptions.
(3) OTHER INSTRUMENTS. Seller shall execute and deliver such
other documents as are customarily executed in the State of Nevada in connection
with the conveyance of real property, including all required closing statements,
releases, affidavits, evidences of authority to execute the documents, and any
other instruments that may be required by the Escrow Agent.
(4) POSSESSION. Seller shall deliver possession of the Property
to Purchaser at Closing.
c. PURCHASER'S OBLIGATIONS AT CLOSING.
(1) CONDITIONS FOR CLOSING. Purchaser shall not be obligated to
close this transaction unless at or prior to the Closing the following
conditions have been satisfied: (i) all material representations and/or
warranties herein shall be true and correct as of the Closing; (ii) Seller shall
have performed all conditions and agreements of it herein; and (iii) the Zoning
Application shall have received final approval from the Truckee
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Xxxxxxx Regional Planning Commission and the PUD Handbook in connection with the
Zoning Application (the "Handbook") shall have received final approval from the
Reno City Council and the time for appeal shall have expired without an appeal
having been filed.
(2) PAYMENT OF PURCHASE PRICE. At the Closing, Purchaser shall
pay the Purchase Price in cash (or by Certified Check, Cashier's Check, wire
transfer of funds into a local bank account indicated by Seller, all of which
shall constitute "cash" for purposes of this Agreement), less the amount of the
Deposit to be paid to Seller at the Closing or previously delivered to Seller,
and subject to any adjustments for prorations and other credits provided for in
this Agreement.
d. PRORATIONS. All real estate taxes relating to the Property for
the year of the Closing shall be prorated as of the date of Closing between
Seller and Purchaser. If the amount of taxes for that year are not known at the
time of Closing, the prorations shall be based on an estimate of the taxes for
the year of Closing, and when the tax information becomes available, Seller or
Purchaser may request reimbursement from the other party for any excess amount
charged to that party at the Closing. Likewise, any other amounts normally
prorated between Seller and Purchaser, such as rents, insurance premiums, and
utility bills, if any, shall be prorated between Seller and Purchaser as of the
date of Closing.
e. CLOSING COSTS. Seller and Purchaser each agree to pay the
following costs at the Closing:
(1) PAID BY SELLER. Seller agrees to pay the cost of preparing
the Grant, Bargain and Sale Deed; the premium for the Owner's Title Policy
calculated as though it were a CLTA owner's policy of title insurance; the cost
of the Survey; real property transfer taxes or documentation taxes; the cost of
preparing and recording any releases and other documents necessary to convey the
Property in accordance with this Agreement; one-half (1/2) of any escrow or
closing fee charged by the Escrow Agent; Seller's attorney's fees and any other
similar closing costs customarily paid by a seller of real property.
(2) PAID BY PURCHASER. Purchaser agrees to pay the recording
fee for the Grant, Bargain and Sale Deed; the additional
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premium cost for an ALTA Extended Coverage policy of title insurance in excess
of the premium for a CLTA owner's policy; one-half (1/2) of any escrow or
closing fee charged by the Escrow Agent; Purchaser's attorney's fees and any
other similar closing costs customarily paid by a purchaser of real property.
9. DEFAULT AND REMEDIES.
(a) SELLER'S DEFAULTS. Seller shall be deemed to be in default under this
Agreement (a "Seller Default") if all conditions to Seller's obligations
hereunder have been satisfied and Seller fails or refuses to perform Seller's
obligations at Closing for any reason other than a default by Purchaser or
termination by Seller under some provision of this Agreement and Seller does not
cure such default within ten (10) days after written notice thereof from
Purchaser.
(b) PURCHASER'S REMEDIES. In the event of a Seller Default Purchaser may,
at Purchaser's sole option and as Purchaser's sole and exclusive remedy, either:
(1) Terminate this Agreement by written notice delivered to Seller on
or before the date of Closing and receive a refund of the Deposit; or
(2) Enforce specific performance of this Agreement against Seller.
(c) PURCHASER'S DEFAULT. Purchaser shall be in default under this
Agreement if all of Purchaser's Conditions For Closing have been satisfied and
Purchaser fails or refuses to perform Purchaser's obligations at Closing for any
reason other than a default by Seller or termination by Purchaser under some
provision of this Agreement.
(d) SELLER'S REMEDIES. If Purchaser defaults under this Agreement,
Seller, as Seller's sole and exclusive remedy for such default, shall be
entitled to receive the Deposit from Escrow Agent. It is agreed between
Purchaser and Seller that such amount shall be liquidated damages for a default
of Purchaser under this Agreement because of the difficulty, inconvenience and
uncertainty
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of ascertaining actual damages for such default. The foregoing provisions shall
not limit Purchaser's indemnity and restoration obligations contained in Section
4 of this Agreement.
10. BROKERS. At Closing, Seller agrees to pay a brokerage commission in
the total amount of four percent (4%) of the Purchase Price ("Seller's
Commission") to Ekman Properties and Xxxx & Associates, Inc. (collectively, the
"Brokers"). Purchaser shall be responsible, and shall pay in full, any
commissions owing to Brokers in excess of Seller's Commission, if any. Seller
agrees to indemnify and hold harmless Purchaser from all loss, damages, cost,
expense and liability relating to any claim for a commission or compensation
asserted against Purchaser by brokers and any other party making such claim in
connection in connection with this transaction, claiming by, through or under
Seller. Purchaser agrees to indemnify and hold harmless Seller from all loss,
damage, cost, expense and liability relating to any claim for a commission with
this transaction, claiming by, through or under Purchaser, including, without
limitation, any claim by Brokers in excess of Seller's Commission.
11. LIKE-KIND EXCHANGE. Purchaser herein acknowledges that it is the
intention of Seller to create an IRS Code Section 1031 Tax Deferred Exchange and
that Seller's rights and obligations under this Agreement may be assigned to The
National 1031 Exchange Corporation, or other accommodator, to facilitate such
exchange. Purchaser shall cooperate with Seller in a manner necessary to enable
Seller to qualify for such exchange at no additional cost or liability to
Purchaser.
12. MISCELLANEOUS.
a. ASSIGNMENT OF CONTRACT. This Agreement may not be assigned by
Purchaser without the prior written consent of Seller, in its discretion.
b. NOTICES.
(1) Any and all notices and demands by any party hereto to any
other party or Escrow Agent, required or desired to be given hereunder shall be
in writing and shall be validly given or made only if personally delivered or
deposited in the United
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States mail, certified or registered, postage prepaid, return receipt requested
or if made by Federal Express or other similar delivery service keeping records
of deliveries and attempted deliveries. Service shall be conclusively deemed
made upon receipt if personally delivered or, if delivered by mail or delivery
service, on the first business day delivery is attempted or upon receipt,
whichever is sooner.
(2) Any notice or demand to Seller shall be addressed to Seller
at:
Hilton Corporate Plaza
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxx Xxxxx
(3) Any notice or demand to Purchaser shall be addressed to
Purchaser at:
Eagle Hardware & Garden, Inc.
000 Xxxxxx Xxxxxx, X.X.
Xxxxxx, XX 00000
Attention: President
with a copy to:
Xxxxxxx X. Xxxxxxx
0000 X.X. Xxxx Xx
Xxxxxxxxxx Xxxxxx, XX 00000
(4) Any notice or demand to Escrow Agent shall be addressed to
Escrow Agent at:
Commonwealth Land Title Company
000 Xxxx 0xx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
(5) The parties and Escrow Agent may change their address for
the purpose of receiving notices or demands as herein provided by a written
notice given in the manner aforesaid to the
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others, which notice of change of address shall not become effective, however,
until the actual receipt thereof by the others.
d. PARTIES BOUND. This Agreement shall be binding upon and inure to
the benefit of the parties to this Agreement and their respective heirs,
executors, administrators, legal representatives, successors and assigns.
e. SEVERABILITY. If any of the terms and conditions hereof shall
for any reason by held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect any other of
the terms and conditions hereof and the terms and conditions hereof thereafter
shall be construed as if such invalid, illegal, or unenforceable term or
conditions had never been contained herein.
f. ENTIRE AGREEMENT. The terms and conditions hereof relating to
the subject matter described herein (i) constitute the entire agreement and
understanding between the Seller and the Purchase, (ii) supersede all prior
agreements, and understandings, written or oral, between the Purchaser and the
Seller, and (iii) may not be modified or amended except by an instrument
mutually executed and delivered by the Seller and the Purchaser.
g. TIME. Time is of the essence to the performance of any provision
of this Agreement. If the date for performance of any provisions of the
Agreement is a Saturday, Sunday, or banking holiday (in the State of Nevada),
the date for performance shall be extended until the next day that is not a
Saturday, Sunday or banking holiday.
h. INTERPRETATION. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the singular
number shall be held to include the plural, and vice versa, unless the context
requires otherwise.
i. WAIVER. Either the Purchaser or the Seller may specifically
waive any breach of the terms and conditions hereof by the other party, but no
waiver specified in this Section shall constitute a continuing waiver of similar
or other breaches of the terms and conditions hereof. All remedies, rights,
undertaking, obligations, and agreements contained herein shall be cumulative
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and not mutually exclusive.
j. ATTORNEY'S FEES. Should either the Purchaser or the Seller
employ an attorney or attorneys to enforce any of the terms and conditions
hereof, or to protect any right, title, or interest created or evidenced
hereby, the non-prevailing party in any action pursued in courts of competent
jurisdiction shall pay to the prevailing party all reasonable costs, damages,
and expenses, including attorneys' fees, expended or incurred by the prevailing
party.
k. GOVERNING LAW. The terms and conditions hereof shall be governed
by and construed in accordance with the laws of the State of Nevada. The
exclusive venues for any action in connection with this Agreement shall be Xxxxx
or Washoe County, Nevada.
l. HEADINGS. The headings herein are for reference purposes only
and shall not affect the meaning or interpretation of the terms and conditions
hereof.
m. EFFECTIVE DATE. The Effective Date of this Agreement shall be
the date that this Agreement is fully executed by both Buyer and Seller.
n. MUTUAL CONTRIBUTION. This Agreement has been drafted on the
basis of mutual contribution of language and is not to be construed against any
party hereto as being the drafter or causing the same to be drafted.
o. CONFIDENTIALITY. Except as may otherwise be required by law, the
parties agree that the terms of the proposed sale, including, without
limitation, the terms of this Agreement shall remain confidential and no party
shall disclose any such terms without the prior consent of each other party.
Nothing herein shall prevent a party from disclosing the existence of the
proposed transaction or this Agreement, so long as the terms of the transaction
are not disclosed, or to prevent disclosures which are essential to consummate
the transaction described herein such as disclosure of the purchase price to a
lender or an escrow holder or
16
on a declaration of value form delivered in connection with the deed to the
Property.
Executed by Purchaser on October 14, 1997.
PURCHASER:
Eagle Hardware & Garden, Inc.
a Washington corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------
Title: President and CEO
-----------------------------------
Executed by Seller on October 16, 1996, 1997.
SELLER:
Hilton Hotels Corporation,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Executive Vice President-Hilton
-----------------------------------
Hotels Corporation and
President-Hilton Gaming
17
EXHIBIT A
All that property located in Washoe County, Nevada LYING WESTERLY OF THE WEST
LINE OF HIGHWAY 395 SOUTH and described as follows:
APN# 000-000-00 AND 36
Beginning at the intersection of the West line of South Virginia Road with
the South line of a road extending Westerly along the North line of Xxxxxxx
00, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx; thence Westerly and along the South
boundary of said road 1980 feet to a post; thence Southerly and along a line
deflected 98 DEG. left from the South line of said East and West road
protracted, 1217.5 feet to the stake on the South bank of a ditch extending
Easterly; thence Easterly along the South bank of said ditch 2166.5 feet,
more or less, to the West line of South Virginia Road; thence Northerly and
along the West line of said Xxxxx Xxxxxxxx Xxxx 000 feet to the place of
beginning, situate in the NW 1/4 of NW 1/4 of Section 31, Township 19 North,
Range 20 East, M.D.B. & M., and N 1/2 of NE 1/4 of Section 36, Township 19
North, Range 19 East, M.D.B. &M.
EXCEPTING THEREFROM the parcel of land conveyed to the State of Nevada for
highway and purposes, by Deed recorded in Book 238, Page 313, File No.
176175, Deed Records.
ALSO EXCEPTING THEREFROM the parcel of land conveyed to the State of Nevada
for highway purposes, by Deed recorded March 21, 1978 in Book 1213, Page 8 as
Document No. 520703.
FURTHER EXCEPTING THEREFROM those certain parcels of land condemned to the State
of Nevada by Final Order of Condemnation recorded August 27, 1986 in Book 2395,
Page 334 as Document No. 1095756 and recorded September 17, 1986 in Book 2407,
Page 506 as Document No. 1100934, Official Records.
AND FURTHER EXCEPTING THEREFROM any portion lying within Meadowood Mall Circle
as shown and dedicated by Map recorded January 20, 1993 as Instrument Xx.
0000000, Xxx Xx. 0000 of Official Records.
AND FURTHER EXCEPTING therefrom APN # 000-000-00, more particularly described as
that portion of the foregoing described property which lies easterly of the east
line of Highway 395 South.
EXHIBIT B
[MAP]
EXHIBIT C
Grazing lease between Hilton Hotels Corporation and Xxxxxxx Xxxx.
19
