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EXHIBIT 10.14
PURCHASE AGREEMENT
Seller: XXXXX X. XXXXXX
Buyer: NATIONAL GAMING COMPANIES, INC.
and NATIONAL LODGING COMPANIES, INC.
Effective Date: October 31, 1995
Property: XXXX 00, 00, XXX 00, XXXXX 00,
XXXXXXX (NOW CRIPPLE CREEK),
TELLER COUNTY (FORMERLY EL PASO),
COLORADO
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INDEX
Page
1. Sale of Property ................................................... 1
2. Xxxxxxx Money ...................................................... 1
3. Purchase Price and Payment ......................................... 1
4. Contemporaneous Transactions ....................................... 2
5. Title Examination .................................................. 2
6. Seller's Representations and Warranties ............................ 3
7. Buyer's and NLC's Representations and Warranties ................... 7
8. Conditions to Buyer's Obligations .................................. 10
9. Right of Entry ..................................................... 10
10. Cooperation ........................................................ 11
11. Closing ............................................................ 11
12. Seller's Closing Documents ......................................... 11
13. Buyer's Closing Documents .......................................... 12
14. Closing Costs and Prorations ....................................... 12
15. Condemnation ....................................................... 12
16. Default; Remedies .................................................. 12
17. Broker's Commission ................................................ 12
18. Indemnification .................................................... 13
19. Assignment ......................................................... 13
20. Memorandum of Purchase Agreement ................................... 13
21. Survival ........................................................... 14
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22. Notices ......................................... 14
23. Captions ........................................ 15
24. Entire Agreement: Modification ................. 15
25. Binding Effect .................................. 15
26. Controlling Law ................................. 15
EXHIBITS
Exhibit A - Xxxx/Xxxxxxxx Property Legal Description
Exhibit B - Survey Certification
Exhibit C - Disclosure Schedule
Exhibit D- Memorandum of Purchase Agreement
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PURCHASE AGREEMENT
THIS AGREEMENT is made as of October 31, 1995, (the "Effective Date")
between XXXXX X. XXXXXX ("Seller"), NATIONAL GAMING COMPANIES, INC., a
Minnesota corporation ("Buyer") and NATIONAL LODGING COMPANIES, INC., a
Minnesota corporation ("NLC"). The "Effective Date" shall be the date on which
this Agreement has been fully executed by all parties.
W I T N E S S E T H:
In consideration of the covenants and provisions hereinafter set forth and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, Seller and Buyer agree as follows:
1. SALE OF PROPERTY. Subject to the terms and on the conditions hereinafter
set forth, Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller,
that certain real property located in the town of CRIPPLE CREEK, in TELLER
COUNTY, COLORADO, is legally described as follows:
XXXX 00, 00, XXX 00, XXXXX 22, FREMONT,
(NOW CRIPPLE CREEK), TELLER (FORMERLY EL PASO) COUNTY, COLORADO
together with all easements, interests, rights and privileges benefiting or
appurtenant thereto including, but not limited to, all right, title and
interest of Seller in and to any land lying in the bed of any highway, street,
alley, road or avenue, existing or proposed, in front of or abutting or
adjoining such, and all right, title and interest of Seller in and to any
unpaid award for the taking by eminent domain of any part thereof or for damage
thereto (the "Property").
2. XXXXXXX MONEY. Intentionally deleted.
3. PURCHASE PRICE AND PAYMENT. Buyer shall deliver to Seller on the
date of closing as and for the total purchase price to be paid by Buyer to
Seller for the Property ("Purchase Price") (i) an amount equal to Three Hundred
Thousand Dollars ($300,000.00), by paying the principal balance of that certain
promissory note payable to Xxxxxx X. Xxxx by Seller, dated June 30, 1994, and
obtaining a release of the deed of trust securing said promissory note, and
(ii) 25,000 shares of the NLC's common stock (the "Shares").
4. CONTEMPORANEOUS TRANSACTIONS. Contemporaneously with the execution
of this Purchase Agreement, Xxxxxx and Xxxxx Xxxx, husband and wife and Xxxxxx
Xxxxxxxxx, BUyer and NLC are entering into a purchase agreement (the
"Xxxx/Xxxxxxxx Purchase Agreement") to acquire the premises described in Exhibit
A attached hereto (the "Xxxx/Xxxxxxxx Property") and 000 Xxxxx Xxxxxx Limited
Partnership (the "Partnership") and other individuals and entities and sellers,
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Buyer and NLC are entering into a partnership interest and stock acquisition
agreement (the "Jubilee Agreement") for Buyer to acquire a partnership interest
in the Partnership in Jubilee Casino in Cripple Creek, Colorado ("Jubilee").
The closing on the sale of the Property pursuant to this Purchase Agreement is
anticipated to contemporaneously close with (i) the sale to Buyer of the
Xxxx/Xxxxxxxx Property pursuant to the Xxxx/Xxxxxxxx Purchase Agreement and (ii)
the sale to Buyer of a partnership interest in the Partnership pursuant to the
Jubilee Agreement.
5. TITLE EXAMINATION. Title Examination will be conducted as follows:
(a) Title Evidence. Promptly after the Effective Date, Seller shall,
at Seller's expense, furnish Buyer with the following
(collectively, the "Title Evidence"):
(i) Title Insurance Commitment. A commitment for an ALTA Owner's
policy of title insurance for the Property dated subsequent to
the date hereof (the "Commitment") which shall be issued by
Ticor Title Insurance Company (the "Title Company"). The
Commitment shall show all exceptions to title including, but
not limited to, all covenants, conditions, restrictions,
reservations, easements, rights and rights-of-way, liens and
other matters of record, and shall include proper searches for
bankruptcies, judgments and State and Federal tax liens
affecting the Property or Seller and endorsements for access,
zoning, contiguity and such other matters as Buyer may
reasonably request.
(ii) Exception Documents. Complete and legible copies of all
documents or instruments which are listed in the Commitment as
affecting the Property (the "Exception Documents").
(iii) Survey. An ALTA survey of the Property dated subsequent to
the date hereof which shall be certified in the manner set
forth on Exhibit B attached hereto by a land surveyor who is
registered in the State of Colorado (the "Survey").
(iv) UCC Searches. A report of UCC Searches for any filings
against the Property or Seller made by a search firm
acceptable to Buyer (the "UCC Search").
(b) Buyer's Objections. Buyer shall be allowed 10 days after
receiving the last of the Title Evidence in which to notify
Seller in writing of any objections based on the form of or the
matters disclosed by the Title Evidence ("Objections"). Buyer's
failure to make Objections within such time period will
constitute a waiver of Objections. Any matter shown on such
Title Evidence and not objected to by Buyer shall be a "Permitted
Encumbrance" hereunder. Seller agrees to diligently proceed
to cure any Objections. If the Objections are not cured
within 30 days after Buyer delivers written notice
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of the Objections to Seller, Buyer will have the right to do any
of the following:
(i) Waive the Objection; or
(ii) Terminate this Agreement by delivering written notice
thereof to Seller.
If, prior to Closing, Buyer learns of any lien or encumbrance against
the Property or any other title defect that was not disclosed on the
Title Evidence (a "Later Objection"), Seller shall be obligated to
cure such Later Objection within five (5) days after receiving written
notice of such Later Objection from Buyer. If Seller fails to so cure
any Later Objection, Buyer shall have the right to take any of the
actions specified above in (i) and (ii) of this Subsection 5(b).
(c) Warranty Deed. At Closing, Seller shall convey good and
marketable title to the Property to Buyer by Warranty Deed
subject only to (i) reservation of minerals or mineral rights by
the State of Colorado, if any; (ii) building, zoning and
subdivision laws and regulations; (iii) the lien of real estate
taxes, including special assessments, which are payable in 1996
and subsequent years; and (iv) Permitted Encumbrances.
(d) Policy of Title Insurance. At the Closing, the Title Company
shall issue in Buyer's favor, at Buyer's cost, an ALTA extended
coverage Owner's Policy of Title Insurance (the "Title Policy"),
in an amount not less than the Purchase Price, insuring Buyer's
title to the Property in fee simple absolute, subject only to the
Permitted Exceptions.
6. SELLER'S REPRESENTATIONS AND WARRANTIES. Except as disclosed on the
Disclosure Schedule attached hereto as Exhibit C, Seller represents and warrants
to Buyer and NLC as follows:
(a) Authority. This Agreement has been duly executed and delivered;
all of Seller's Closing Documents to be signed by Seller will
have been duly executed and delivered at Closing; such execution,
delivery and performance by Seller does not conflict with or
result in a violation of any judgment, order, or decree of any
court or arbiter to which Seller is a party or by which it is
bound; this Agreement and those of Seller's Closing Documents to
be signed by Seller will contain the valid and binding
obligations of Seller, and be enforceable in accordance with
their terms.
(b) Title to Property. Seller owns the Property in fee
simple absolute, free and clear of all defects, liens or
encumbrances except Permitted Encumbrances.
(c) Leases. As of the Effective Date and the Closing
Date, the Property is not, and will not be, subject to any
lease or occupancy agreement.
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(d) Assessments. Seller has received no notice of actual or
threatened special assessments or reassessments of the
Property.
(e) Environmental Laws. Seller has no knowledge, after
exercising due diligence in reviewing its files,
correspondence and other relevant information concerning the
Property currently in its possession, that any toxic or
hazardous substances or wastes, pollutants or contaminants
(including, without limitation, asbestos, urea formaldehyde,
the group of organic compounds known as polychlorinated
biphenyls, petroleum products including gasoline, fuel oil,
crude oil and various constituents of such products, and any
hazardous substance as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), 42 U.S.C. Section 9601-9657, as amended)
have been generated, treated, stored, released or disposed
of, or otherwise placed, deposited in or located on the
Property, nor does Seller have any knowledge, after
exercising due diligence as described above, of any activity
having been undertaken on the Property that would cause or
contribute to (i) the Property becoming a treatment, storage
or disposal facility within the meaning of, or otherwise
bring the Property within the ambit of, the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C.
Section 6901 et seq., or any similar state law or local
ordinance, (ii) a release or threatened release of toxic or
hazardous wastes or substances, pollutants or contaminants
from the Property within the ambit of CERCLA or any similar
state law or local ordinance, or (iii) the discharge of
pollutants or effluents into any water source or system, the
dredging or filling of any waters or the discharge into the
air of any emissions, that would require a permit under the
Federal Water Act, 33 U.S.C. Section 1251 et seq., or the
Clean Air Act, 42 U.S.C. Section 7401 et seq., or any
similar state law or local ordinance. After exercising due
diligence as described above, Seller knows of no substances
or conditions in or on the Property that may support a claim
or cause of action under RCRA, CERCLA or any other federal,
state or local environmental statutes, regulations,
ordinances or other environmental regulatory requirements.
After exercising due diligence as described above, Seller
knows of no above ground or under ground tanks that have been
located under, in or about the Property which have been
subsequently removed or filled. To the extent storage tanks
exist on or under the Property, such storage tanks have been
duly registered with all appropriate regulatory and
governmental bodies and are, to the best of Seller's
knowledge after due inquiry, otherwise in compliance with
applicable Federal, state and local statutes, regulations,
ordinances and other regulatory requirements.
(f) Rights of Others to Purchase Property. Seller has not
entered into any other contracts for the sale of the
Property, nor are there any rights of first refusal or
options to purchase the Property or any other rights of
others that might prevent the consummation of this Agreement.
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(g) Seller's Defaults. Seller is not in default concerning any of
its obligations or liabilities regarding the Property.
(h) FIRPTA. Seller is not a"foreign person", a "foreign partnership",
"foreign trust" or "foreign estate" as those terms are defined in
Section 1445 of the Internal Revenue Code.
(i) Proceedings. There are no claims, actions, suits, proceedings or
investigations pending or, to Seller's knowledge, threatened by
any governmental department or agency, or any corporation,
partnership, entity or person, which in any manner or to any
extent may affect (i) the Property, (ii) Seller's right, title
and interest in and to any part or all of the Property, or (iii)
Seller's ability to vest in Buyer a fee simple ownership interest
in the Property free and clear of any and all liens, claims,
encumbrances and rights of redemption.
(j) Access. The Property has public access by roadways duly
dedicated and accepted by the public bodies having jurisdiction
thereof and said roadways provide access to the public roadway
system of the State of Colorado.
(k) Encroachments. No structures of any kind encroach on the
Property.
(l) Wetlands. The Property is not in a designated wetland, flood
plain or flood insurance area.
(m) Notices. Seller has received no notice of, nor has Seller reason
to believe there exists
(1) any violation of any law, ordinance or other governmental
requirement affecting the Property;
(2) any condemnation proceedings affecting the Property;
(3) any claim for which a mechanic's lien may be filed against
the Property; or
(4) any right claimed by a third party in the Property adverse
to Seller's interest therein.
(n) Subscription for Shares.
(i) Seller has been given access to full and complete
information regarding NLC (including the opportunity to meet
with NLC's officers and review such other documents as
Seller may have requested in writing).
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(ii) Seller is experienced and knowledgeable in financial
and business matters, capable of evaluating the
merits and risks of investing in the Shares, and does
not need or desire the assistance of a knowledgeable
representative to aid in the evaluation of such risks.
(iii) Seller understands that an investment in the Shares is
highly speculative and involves a high degree of
risk. Seller believes the investment is suitable for
Seller based on Seller's investment objectives and
financial needs. Seller can bear the economic risk of
an investment in the Shares for an indefinite period of
time and can afford a complete loss of such investment.
(iv) Seller understands that there will be no market for the
Shares, that there are significant restrictions on the
transferability of the Shares, and that for these and
other reasons, Seller may not be able to liquidate an
investment in the Shares for an indefinite period.
(v) Seller represents and warrants that Seller is acquiring
the Shares for Seller's own account, for
long-term investment and without the intention of
reselling or redistributing the Shares. Seller has
made no arrangement or agreement with others regarding
any of the Shares, and Seller's financial condition is
such that it is not likely that it will be necessary
for Seller to dispose of any of the Shares in the
foreseeable future.
(vi) Seller understands that the Shares have not been
registered under the Securities Act of 1933, as
amended, (the "1933 Act"), or applicable state
securities laws, and are being offered and sold
pursuant to exemptions from registration under the 1933
Act and applicable state securities laws. Seller
understands that NLC's reliance on such exemptions is
predicated in part on Seller's representations and
warranties contained herein.
(vii) Seller understands that the Shares may not be sold by
Seller except pursuant to an effective registration
statement under the 1933 Act and applicable state
securities laws, or an opinion of counsel that such
registration is not required. Seller understands that
NLC does not have any obligation to file a registration
statement covering securities of NLC, including the
Shares.
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(viii) Seller understands that any transfer of the Shares by
Seller will be further restricted by a legend placed
on the certificate(s) representing the Shares
containing substantially the following language:
"The securities represented by this
certificate have not been registered under
the Securities Act of 1933 or applicable
state securities laws. No transfer of
such shares or any interest therein may be
made except pursuant to registration under
said laws unless the Company has received
an opinion of counsel acceptable to the
Company stating that such transfer does
not require registration under said laws."
7. BUYER'S AND NLC'S REPRESENT AND WARRANTIES. Buyer and NLC to Seller
represent and warrant to Seller as follows:
(a) Corporate Organization. Buyer is a corporation duly
organized, validly existing and in good standing under
the law of the State of Minnesota. Accurate and
complete copies of the articles of incorporation and by-laws
of Buyer have heretofore been delivered to the Seller. NLC
is a corporation duly organized, validly existing and in good
standing under the law of the State of Minnesota. Accurate
and complete copies of the articles of incorporation and
by-laws of NLC have heretofore been delivered to the Seller.
(b) Financial Statements. True, correct and complete copies of
the unaudited financial statements of NLC as of and for the
year ended December 31, 1994, audited financial statements of
NLC as of and for the year ended December 31, 1993, and of
the unaudited financial statements of NLC as of and for the
eight month period ending August 31, 1995 (together, the
"Financial Statements") have been furnished to Seller. The
Financial Statements fairly present the financial position of
NLC as of that date and the results of operations for the
period then ended, and have been prepared in accordance with
generally accepted accounting principles, consistently
applied, and in a manner substantially consistent with prior
financial statements of NLC. Except as contemplated by or
permitted under this Agreement, there are no adjustments that
would be required on review of the Financial Statements that
would, individually or in the aggregate, have a material
negative effect upon NLC's reported financial condition.
(c) Ordinary Curse of Business. Since August 31, 1995, NLC has
not incurred or become subject to, or agreed to incur
or become subject to, any obligation or liability, absolute
or contingent, except current liabilities incurred, and
obligations under contracts entered into, in the ordinary
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course of business, the performance of which will not,
individually or in the aggregate, have a material adverse
effect on the financial condition or results of operations of
its business.
(d) No Undisclosed Liabilities. NLC does not have any material
liability (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated, and whether
due or to become due, including any liability for taxes),
except for such as have been disclosed to Seller.
(e) Returns and Audits. All required federal, state and local
tax returns or appropriate extension requests of NLC
have been filed, and all federal, state and local taxes
required to be paid with respect to such returns have been
paid or due provision for the payment thereof has been made.
NLC is not delinquent in the payment of any such tax or in
the payment of any assessment or governmental charge. NLC
has not received notice of any tax deficiency proposed or
assessed against it, and has not executed any waiver of any
statute of limitations on the assessment or collection of any
tax. Except as disclosed to Seller, NLC's tax returns have
not been audited by governmental authorities in a manner to
bring such audits to the NLC's attention. NLC does not have
any tax liabilities, except those incurred in the ordinary
course of business since December 31, 1994.
(f) Litigation. There are no legal or governmental proceedings
pending or threatened to which NLC is or may be party
which (i) if determined adversely would have a material
adverse effect upon the business, financial condition or
operations of NLC, or (ii) which question the validity or
enforceability of this Agreement.
(g) Capitalizaion. The authorized capital stock of NLC consists
of an aggregate 25,000,000 shares of common stock, of which
5,413,245 are authorized, issued and outstanding and
5,000,000 shares of Preferred Stock, of which 300,000 shares
have been designated as Series A Convertible Preferred Stock
(the "Series A Preferred Stock"), of which 266,250 are
authorized, issued and outstanding and of which 346,444
shares have been designated as Series B Redeemable
Convertible Preferred Stock, of which 346,444 shares are
authorized, issued and outstanding (the "Series B Preferred
Stock" and collectively with the Series A Preferred Stock,
the "Preferred Stock"). The Preferred Stock terms have been
provided to the Seller. Except as indicated on Annex A,
there are no outstanding securities of NLC which are
convertible into or exchangeable for any shares of capital
stock of NLC or containing any capital appreciation or profit
participation features, there are no outstanding
subscriptions, options, warrants, contracts, calls,
commitments or any purchase rights of any nature or
character (including preemptive rights) relating to NLC's
capital stock or
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any other securities of NLC and there is no stock
appreciation rights or phantom stock plan.
(h) Binding Obligation. All proceedings required by law, by
the articles and by-laws of Buyer, or by the provisions of
this Agreement to be taken by Buyer in connection with
this Agreement and the transactions contemplated hereby have
been duly and validly taken. This Agreement constitutes the
legal, valid and binding obligation of Buyer in accordance
with the terms hereof. All proceedings required by law, by
the articles and by-laws of NLC, or by the provisions of this
Agreement to be taken by NLC in connection with this
Agreement and the transactions contemplated hereby have been
duly and validly taken. This Agreement constitutes the
legal, valid and binding obligation of NLC in accordance with
the terms hereof.
(i) Corporate Power. Buyer has the requisite power and authority
(corporate or otherwise) to own and operate its properties,
to carry on its business as now being conducted, to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby. NLC has the requisite power and
authority (corporate or otherwise) to own and operate its
properties, to carry on its business as now being conducted,
to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
(j) Authorization for NLC'S Common Stock. NLC has taken all
necessary action to permit it to issue the number of
Shares required to be issued pursuant to this Agreement. The
Shares required to be issued pursuant hereto will, when
issued, be validly issued, fully paid and nonassessable and
no shareholder of NLC will have any preemptive right of
subscriptions or purchase in respect thereof.
8. CONDITIONS TO BUYER'S OBLIGATIONS. Buyer's obligation to close on
the purchase of the Property under this Agreement is contingent upon the
occurrence of each of the following as soon as possible, no later than October
31, 1995:
(a) Buyer shall have reviewed and approved the condition of title
to the Property; and
(b) Buyer shall have conducted and approved an environmental
review of the Property.
Any and all of the foregoing conditions are for the sole benefit of Buyer and
may be waived, in writing, by Buyer. In the event Buyer desires to terminate
this Agreement by reason of the failure of the foregoing conditions, it shall
do so by delivering written notice thereof to Sellers with a Quit
Claim Deed to the Property duly executed by Buyer, on or before October 31,
1995. If the notice is timely received, this Agreement shall be null and void.
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9. RIGHT OF ENTRY. Seller shall allow Buyer, and Buyer's agents, access
to the Property without charge and at all reasonable times for the purpose of
Buyer's investigation of the same and the physical condition thereof,
including, without limitation, topographic and soil conditions, test pits, soil
borings, market and engineering studies, feasibility studies, environmental
investigations and such other tests, studies or investigation with respect to
the Property desired by Buyer. Buyer shall immediately repair any damage to
the Property caused by such inspections and studies and shall indemnify and
defend Seller against and hold Seller harmless from any loss, cost, damage or
expense, including without limitation, reasonable attorneys' fees, arising from
or in connection with Buyer's entry upon the Property for the foregoing
inspection, testing and related purposes.
10. COOPERATION. During the term of this Agreement and prior to Closing,
Seller shall, at no cost to Seller and without charge to Buyer,
cooperate in Buyer's attempts to obtain all governmental approvals necessary in
Buyer's judgment in order to make use of the Property for Buyer's purposes.
Seller shall further execute such documents as may be required by governmental
bodies to accomplish the foregoing.
11. CLOSING. The closing of the purchase and sale contemplated by this
Agreement (the "Closing") shall occur as soon as possible after all conditions
have been fulfilled or October 31, 1995, which ever is earlier. Any reference
herein to the "Closing Date" shall mean the actual date of Closing as described
in this Section. The Closing shall take place at such place as may be mutually
agreed upon by the parties hereto. Seller agrees to deliver possession of the
Property to Buyer on the Closing Date.
12. SELLER'S CLOSING DOCUMENTS. On the Closing Date, Seller shall execute
and/or deliver to Buyer the following (collectively, the "Seller's Closing
Documents"):
(a) Deed. A statutory warranty deed, in form
satisfactory to Buyer, conveying the Property to Buyer
subject only to Permitted Exceptions.
(b) Title Policy. The Title Policy, or a suitably
marked up Commitment for the Title Policy signed by the Title
Company in form satisfactory to Buyer.
(c) Seller's Affidavit. An Affidavit of Title duly
executed by Seller indicating that on the Closing Date there
are no outstanding unsatisfied judgments, tax liens or
bankruptcies against or involving Seller or the Property;
that there has been no skill, labor or material furnished to
the Property for which payment has not been made or for which
mechanics' liens could be filed; and that there are no other
unrecorded interests in the Property, together with whatever
standard owner's affidavit and/or indemnity (ALTA Form) which
may be required by the Title Company to issue the Title
Policy required by this Agreement.
(d) FIRPTA Affidavit. A non-foreign affidavit, properly
executed and in recordable form, containing such
information as is required by IRC Section 1445(b)(2) and its
regulations.
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(e) IRS Reporting Form. The appropriate Federal Income
Tax reporting form, if any if required.
(f) Other Documents. All other documents reasonably
necessary to transfer the Property to Buyer free and clear of
all encumbrances except the Permitted Exceptions.
13. BUYER'S CLOSING DOCUMENTS. On the Closing Date, Buyer will execute
and/or deliver to Seller the following (collectively, the "Buyer's Closing
Documents"):
(a) Purchase Price. The Purchase Price as provided in
paragraph 3 above.
(b) Title Documents. Such documents as may be
reasonably required by the Title Company to record the
Seller's Closing Documents and issue the Title Policy
required by this Agreement.
14. CLOSING COSTS AND PRORATIONS. Real estate taxes payable in 1995 and
prior years shall be paid by Seller. Seller shall pay or cause to be paid
all pending or levied assessments. Buyer shall pay document and recording fees,
the premium for the Title Policy and all costs associated with Buyer's
financing. Buyer and Seller shall each pay one-half of the Title Company's
closing fee.
15. CONDEMNATION. If, prior to the Closing Date, eminent domain
proceedings are commenced against all or any part of the Property, Seller
shall immediately give Buyer written notice of such fact and Buyer shall have
the right (to be exercised within 30 days after receipt of Seller's notice) to
terminate this Agreement. If this Agreement is so terminated, neither party
will have further obligations under this Agreement. If Buyer does not so
terminate this Agreement, the Purchase Price shall be reduced by any
condemnation awards paid to Seller prior to Closing and Seller shall, at
Closing, assign to Buyer all of Seller's right, title and interest in and to
any award made or to be made in the condemnation proceedings. Prior to the
Closing Date, Seller shall not designate counsel, appear in, or otherwise act
with respect to the condemnation proceedings without Buyer's prior written
consent.
16. DEFAULT; REMEDIES. If Buyer defaults under this Agreement, Seller
shall have the right to terminate this Agreement by giving written notice to
Buyer. If Buyer fails to cure such default within the time period specified by
law or thirty (30) days, whichever is earlier, this Agreement will terminate.
Upon such termination, Seller shall have the right to seek and recover damages
from Buyer for nonperformance of this Agreement. If Seller defaults under this
Agreement, Buyer shall have the right to seek and recover damages from Seller
for nonperformance or specific performance of this Agreement.
17. BROKER'S COMMISSION. Seller and Buyer represent and warrant to each
other that they have dealt with no brokers, finders or the like in
connection with this transaction. Seller agrees to indemnify and hold the Buyer
harmless against all claims, damages, costs or expenses of or for any such
brokerage fees or commissions resulting from Seller's actions or agreements
regarding the execution or performance of this Agreement, and to pay all costs
of defending any action or lawsuit
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brought to recover any such fees or commissions incurred by the Buyer (including
reasonable attorneys' fees) or in enforcing such right to indemnification.
18. INDEMNIFICATION.
a. INDEMNIFICATION BY SELLER. Seller shall indemnify and hold Buyer and
NLC harmless at all times from and after the date of this Agreement, against and
in respect of all damages, losses, costs and expenses (including reasonable
attorneys' fees) which Buyer or NLC may suffer or incur in connection with the
breach by Seller of any of its representations, warranties or covenants in this
Agreement.
b. INDEMNIFICATION BY BUYER AND NLC. Buyer and NLC shall indemnify and
hold Seller harmless at all times from and after the date of this Agreement,
against and in respect of all losses, damages, costs and expenses (including
reasonable attorneys' fees) which Seller may suffer or incur in connection with
the breach by Buyer or NLC any of their representations, warranties or covenants
in this Agreement.
c. THIRD PARTY CLAIMS. If a claim by a third party is made against any
of the indemnified parties, and if any of the indemnified parties intends to
seek indemnity with respect to such claim under this Section, such indemnified
party shall promptly notify the indemnifying party of such claim. The
indemnifying party shall have thirty (30) days after receipt of the
above-mentioned notice to undertake, conduct and control, through counsel of
such party's own choosing (subject to the consent of the indemnified party, such
consent not to be unreasonably withheld) and at such party's expense, the
settlement or defense of it, and the indemnified party shall cooperate with the
indemnifying party in connection with such efforts; provided that: (i) the
indemnifying party shall not by this Agreement permit to exist any lien,
encumbrance or other adverse charge upon any asset of any indemnified party,
(ii) the indemnifying party shall permit the indemnified party to participate in
such settlement or defense through counsel chosen by the indemnified party,
provided that the fees and expenses of such counsel shall be borne by the
indemnified party, and (iii) the indemnifying party shall agree promptly to
reimburse the indemnified party for the full amount of any loss resulting from
such claim and all related expense incurred by the indemnified party pursuant to
this Article. So long as the indemnifying party is reasonably contesting any
such claim in good faith, the indemnified party shall not pay or settle any such
claim. If the indemnifying party does not notify the indemnified party within
thirty (30) days after receipt of the indemnified party's notice of a claim of
indemnity under this Section that such party elects to undertake the defense of
such claim, the indemnified party shall have the right to contest, settle or
compromise the claim in the exercise of the indemnified party's exclusive
discretion at the expense of the indemnifying party. The indemnification
provisions of this Agreement shall not apply to claims which individually are
less than $5,000 or, in the aggregate with other claims, do not exceed $25,000.
19. ASSIGNMENT. Buyer shall have the right to assign its rights
hereunder.
20. MEMORANDUM OF PURCHASE AGREEMENT. Simultaneously with the execution
of this Purchase Agreement, the parties hereto are executing that certain
Memorandum of Purchase Agreement attached hereto as Exhibit D, which Memorandum
of Purchase Agreement may be recorded by Buyer, at Buyer's expense, against the
Property. Buyer agrees, however, not to record
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16
this Purchase Agreement. If Buyer does not close on the purchase of the
Property, Buyer agrees to execute and deliver to Seller a Quit Claim Deed for
the Property by December 1, 1995.
21. SURVIVAL. All of the terms of this Agreement will survive and be
enforceable after the Closing and will not merge into the warranty deed to be
delivered by Seller to Buyer.
22. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed given upon (i) personal service, (ii)
three (3) business days following deposit in the United States first class mail,
postage prepaid, and addressed as set forth below, or (iii) facsimile
transmission (confirmation received) at the facsimile numbers listed below.
Said addresses and numbers may be changed by written notice.
If to Seller: Xxxxx X. Xxxxxx
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Fax No. 000-000-0000
with a copy to: Xxxx X. Xxxxxxxx
Xxxxxx & Efron, P.A.
000 Xxxxxx Xxxxxx Xxxxx
0000 Title Insurance Building
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax No. 000-000-0000
If to Buyer: National Gaming Companies, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Fax No. 000-000-0000
or to: National Gaming Companies, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxx Xxxxxxx
Fax No. 000-000-0000
With a copy to: Xxxxxxx X. Xxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxx & Brand
a Professional Limited Liability Partnership
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax No. 000-000-0000
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17
If to Title Company: Pikes Peak Title Service, Inc.
X.X. Xxx 0000
000 X. Xxx. 00
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Fax No. 000-000-0000
23. CAPTIONS. The paragraph headings or captions appearing in this
Agreement have been inserted for convenience only, are not part of this
Agreement and are not to be considered in interpreting this Agreement.
24. ENTIRE AGREEMENT: MODIFICATION. This written Agreement together with
the Exhibits attached hereto constitutes the complete agreement between the
parties and supersedes any prior or contemporaneous oral or written agreements
between the parties regarding the Property. There are no verbal agreements that
change this Agreement and no waiver of any of its terms will be effective unless
in a writing executed by the parties.
25. BINDING EFFECT. This Agreement binds and benefits the parties and
their successors and assigns.
26. CONTROLLING LAW. This Agreement has been made under the substantive
laws of the State of Colorado, and such laws will control its interpretation.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the day and year first above written.
SELLER
/s/ Xxxxx X. Xxxxxx
-----------------------------------
XXXXX X. XXXXXX
BUYER
NATIONAL GAMING COMPANIES, INC., a
Minnesota corporation
By: /s/ X.X. Xxxxxxx
-------------------------------
Its: President
-------------------------------
NLC
NATIONAL LODGING COMPANIES, INC., a
Minnesota corporation
By: /s/ Xxxxxxxx X. XxXxxxx
-------------------------------
Its: President
-------------------------------
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18
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was executed and acknowledged before me this 31st
day of October, 1995, by XXXXX X. XXXXXX, a married person.
/s/ Xxxx X. Xxxxxxxx
-----------------------------
Notary Public
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was executed and acknowledged before me this 31st
day of October, 1995, by X.X. Xxxxxxx, the President of NATIONAL GAMING
COMPANIES, INC., a Minnesota corporation, on behalf of the corporation.
/s/ Xxxxxx Xxx Xxxxx
-----------------------------
Notary Public
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was executed and acknowledged before me this 31st
day of October, 1995, by Xxxxxxxx X. XxXxxxx, the President of NATIONAL LODGING
COMPANIES, INC., a Minnesota corporation, on behalf of the corporation.
/s/ Xxxxxx Xxx Xxxxx
-----------------------------
Notary Public
This Instrument Was Drafted By:
Xxxxxx Xxxxxxx Xxxxxx & Brand
a Professional Limited Liability Partnership
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
37019-5
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19
EXHIBIT A
TO THAT CERTAIN PURCHASE AGREEMENT BETWEEN
XXXXX X. XXXXXX, AS SELLER
NATIONAL GAMING COMPANIES, INC., AS BUYER
AND
NATIONAL LODGING COMPANIES, INC.
XXXX/XXXXXXXX PROPERTY
Legal Description: Xxxx 00, 00, 00, 00, 00, 00 xxx 00, Xxxxx 22, Fremont (Now
Cripple Creek), Teller (Formerly El Paso) County;
Property Owner: Xxxxxx Xxxx and Xxxxx Xxxx, husband and wife, Xxxxxx
Xxxxxxxx (marital status)
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20
EXHIBIT B
TO THAT CERTAIN PURCHASE AGREEMENT BETWEEN
XXXXX X. XXXXXX, AS SELLER
NATIONAL GAMING COMPANIES, INC., AS BUYER
AND
NATIONAL LODGING COMPANIES, INC.
SURVEY CERTIFICATION
I hereby certify to National Gaming Companies, Inc., a Minnesota
corporation, and Ticor Title Insurance Company that on the ____ day of
_______________, 1995, I surveyed the following described Property:
Xxxx 00, 00, xxx 00, Xxxxx 00, Xxxxxxx (Now Cripple Creek), Teller
(Formerly El Paso) County, Colorado;
and that:
(a) This survey made was on the ground as per the field notes shown on
this survey and correctly shows (i) the legal description of the Property, (ii)
the boundaries and areas of the Property and the size, location and type of any
foundation, buildings and improvements thereon and the distance therefrom to the
nearest facing exterior boundary lines of the Property, the area of the Property
to the nearest one 1,000th of an acre and the area of the Property to the
nearest one 1,000th of an acre net of any roadway easements or rights-of-way,
(iii) the location of all rights-of-way, easements, servitudes and any other
matters of record (or which are discernable, whether or not of record) affecting
or benefiting the Property, (iv) the location of any parking areas on the
Property showing the number of parking spaces provided thereby, (v) all abutting
dedicated public streets providing access to the Property, together with the
width and name thereof and any limitation of access, (vi) the location of storm
sewers, sanitary sewers and water lines located upon the Property and service
lines thereof from their respective main lines, (vii) whether or not the
Property is located in an area designated by any agency of the United States of
America as being subject to flood hazards or flood risks, and (viii) all other
significant items on the Property.
(b) There are no apparent (i) encroachments upon the Property, (ii)
encroachments on any adjacent property, streets or alleys by any improvements
on the Property, (iii) party walls, and (iv) conflicts or protrusions except as
follows (if none, so state):
(c) Adequate ingress to and egress from the Property as provided by (name
of streets), the same being paved, dedicated public right(s)-of-way maintained
by (name of maintaining authority).
(d) All required building setback lines on the Property are located as
shown herein (or stating that there are none affecting the Property).
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21
(e) This survey shows all matters reflected on the Commitment for Title
Insurance dated _________________, 1995, issued by _____________________ and
bearing the Commitment No. ________________.
(f) This survey is made in accordance with the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys" jointly established and as
adopted by the American Land Title Association and American Congress on
Surveying and Mapping in 1992 and that meets the accuracy requirements of a
Class A Urban survey as defined therein.
______________________________
(Signature of Surveyor)
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22
EXHIBIT C
TO THAT CERTAIN PURCHASE AGREEMENT BETWEEN
XXXXX X. XXXXXX, AS SELLER
NATIONAL GAMING COMPANIES, INC., AS BUYER
AND
NATIONAL LODGING COMPANIES, INC.
DISCLOSURE SCHEDULE
Section 6(b): Title to the Property: Except that certain encroachment by the
Jubilee Casino building.
Section 6(c) Leases: Except that certain month to month verbal lease agreement
with Jubilee Casino.
Section 6(f) Rights of Others to Purchase Property: Except for Memorandum of
Agreement dated October 21, 1994 which will be cancelled at closing.
Section 6(g) Seller's Default: Except pursuant to the Promissory Note
referenced in Section 3 of the Purchase Agreement to Xxxxxx Xxxx.
Section 6(k) Encroachments: See disclosure regarding Section 6(b) above.
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23
EXHIBIT D
TO THAT CERTAIN PURCHASE AGREEMENT BETWEEN
XXXXX X. XXXXXX, AS SELLER
NATIONAL GAMING COMPANIES, INC., AS BUYER
AND
NATIONAL LODGING COMPANIES, INC.
MEMORANDUM OF PURCHASE AGREEMENT
This Memorandum of Purchase Agreement has been executed as of the ____ day
of _______________, 1995 between Xxxxx X. Xxxxxx (hereinafter referred to as
"Seller"), NATIONAL GAMING COMPANIES, INC., a Minnesota corporation
("Buyer"), and NATIONAL LODGING COMPANIES, INC., a Minnesota corporation
("NLC").
W I T N E S S E T H:
WHEREAS, Seller and Buyer have executed that certain Purchase Agreement
dated _______________ (the "Purchase Agreement") with respect to certain real
property located in CRIPPLE CREEK, TELLER COUNTY, COLORADO, which is legally
described as follows (the "Property"):
Xxxx 00, 00, xxx 00, Xxxxx 00, Xxxxxxx (Now Cripple Creek), Teller
(Formerly El Paso) County, Colorado;
WHEREAS, Buyer desires to place this Memorandum of Purchase Agreement of
record in order to memorialize its rights to purchase the Property;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree and acknowledge as follows:
1. Buyer has certain rights to purchase the Property that are described in
the Purchase Agreement.
2. If Buyer does not exercise its rights to purchase the Property, the
termination of the Purchase Agreement and Buyer's rights to purchase the
Property will be evidenced by a Quit Claim Deed which will be executed by Buyer
and placed of record against the Property.
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24
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of
the date and year first above written.
SELLER
----------------------------------
XXXXX X. XXXXXX
BUYER
NATIONAL GAMING COMPANIES, INC., a
Minnesota corporation
By:
--------------------------------
Its:
-------------------------------
NLC
NATIONAL LODGING COMPANIES, INC., a
Minnesota corporation
By:
--------------------------------
Its:
-------------------------------
STATE OF ______________)
)ss.
COUNTY OF______________)
The foregoing instrument was executed and acknowledged before me this ___
day of __________, 1995, by Xxxxx X. Xxxxxx, a single person.
-----------------------------------
Notary Public
-21-
25
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was executed and acknowledged before me this ___
day of __________, 1995, by ________________________________, the
_________________ of NATIONAL GAMING COMPANIES, INC., a Minnesota corporation,
on behalf of the corporation.
_____________________________________
Notary Public
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was executed and acknowledged before me this ___
day of __________, 1995, by ________________________________, the
_________________ of NATIONAL LODGING COMPANIES, INC., a Minnesota corporation,
on behalf of the corporation.
_______________________________________
Notary Public
This Instrument Was Drafted By:
Xxxxxx Xxxxxxx Xxxxxx & Brand
a Professional Limited Liability Partnership
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
37019-5
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