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EXHIBIT 10.193
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is entered into as of this
6th day of October, 1999 by and between PREFERRED EQUITIES CORPORATION, a Nevada
corporation ("Seller"), and XXXXXXXXX NEVADA CORP., a Nevada corporation, or
assign(s) (as defined in Section 12.14 below) ("Buyer").
RECITALS:
A. Seller owns real property located in the City of Pahrump,
County of Xxx, State of Nevada, commonly known as Calvada Championship Golf
Course and Calvada Executive Golf Course ("Golf Courses" or "Clubs"), and more
particularly described in EXHIBIT A, attached hereto and incorporated herein by
this reference (the "Land"). The Land is currently improved by two (2) 18-hole
golf courses, clubhouse, maintenance building, driving range and other
improvements described in Section 1.2 of this Agreement.
B. Seller desires to sell to Buyer, and Buyer desires to
purchase from Seller, the "Property" (as defined in Article 1 below) upon the
terms, conditions and warranties set forth below.
C. Buyer currently intends to operate the Club as golf
facilities.
NOW THEREFORE, in consideration of the mutual covenants and promises
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree as follows:
TERMS OF AGREEMENT
ARTICLE 1 - AGREEMENT TO SELL AND PURCHASE; THE PROPERTY
Upon the terms and conditions contained in this Agreement, Seller agrees
to sell and convey the Property to Buyer, and Buyer agrees to purchase the
Property from Seller, free and clear of all encumbrances except the "Permitted
Encumbrances" (as defined in Section 4.3 of this Agreement).
The property to be purchased and sold pursuant to this Agreement is
described as follows (collectively, the "Property"):
1.1. LAND. The Land is more particularly described in EXHIBIT A, attached
hereto and incorporated herein by this reference.
1.2. BUILDINGS AND OTHER IMPROVEMENTS. All existing buildings, structures
and other improvements located upon the Land, including, without limitation, a
clubhouse building, a maintenance facility, two (2) eighteen (18) hole golf
courses, including the Calvada Championship Golf Course and the Calvada
Executive Golf Course with driving range and practice areas, landscaping
improvements, manmade lakes and water retention ponds, irrigation system,
parking facilities, and all other improvements located on the Land
(collectively, the "Improvements").
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1.3. WATER RIGHTS AND MINERAL RIGHTS. All water rights, riparian rights,
appropriative rights, water allocations and water stock, including all of
Seller's rights and interests under the "Water Documents" (as defined in Section
7.21, below) and all minerals, oil, gas and other hydrocarbons located in or
beneath the Land, along with all rights to surface and subsurface entry
(collectively, the "Water and Mineral Rights"). Notwithstanding anything herein
to the contrary, Buyer will be subject to the terms of the Tri-Partite Agreement
for Utility Services between Buyer, Seller and Central Nevada Utilities Company,
which is further described on EXHIBIT C, attached (the "Tri-Partite Agreement")
and Buyer acknowledges that such Tri-Partite Agreement must be executed by all
parties and delivered to the Escrow Holder on or before the end of the Due
Diligence Period (as defined in Section 6.2). Further, it is understood that the
combined total duty of water rights available for use on the Championship Golf
Course is approximately 1,319.94 acre-feet. The combined total duty of water
rights available for the Executive Golf Course is approximately 479.74
acre-feet. These water rights were previously conveyed by Seller to Central
Nevada Utilities Company (CNUC) and are "dedicated" for use on the Golf Courses.
1.4. APPURTENANCES. All appurtenances, hereditaments, easements,
reversionary rights and all other rights, privileges and entitlements belonging
to or running with the Land, all awards for damage to the Land or taking by
eminent domain, and all zoning and land use entitlements and development rights
pertaining to the Land (collectively, the "Appurtenances"). The Land, the
Improvements, the Water and Mineral Rights, and the Appurtenances are
collectively referred to herein as the "Real Property."
1.5. TANGIBLE PERSONAL PROPERTY. All of Seller's interest in the tangible
personal property located on or used in the operation, maintenance, repair or
ownership of the Real Property, including: (a) all fixtures, furniture,
furnishings, equipment, machinery, tools, repair parts, goods, supplies,
televisions, communications equipment, kitchen utensils, linen, glassware,
china, appliances, golf carts, equipment, motor vehicles, gasoline and
lubricants, fertilizer, seed, sand, chemicals, irrigations parts and supplies;
and (b) all food and beverage items and all professional shop merchandise, goods
and inventory, and further including, without limitation, the personal property
described in EXHIBIT B attached hereto and incorporated herein by this reference
(the foregoing shall collectively be referred to herein as the "Personal
Property").
1.6. INTANGIBLE PERSONAL PROPERTY. All of Seller's right, title and
interest in the intangible property that is appurtenant to the ownership,
operation and use of the Real Property and the Personal Property, including: (a)
all governmental permits, approvals, licenses and certificates of occupancy; (b)
all architectural and engineering drawings; (c) any proprietary rights Seller
may have with respect to the name "Calvada Championship Golf Course" and
"Calvada Executive Golf Course"; (c) tradenames, trademarks, services marks and
logos; (e) all product and service warranties and guaranties; (f) all rights to
the recovery of judgments, books and records, and telephone numbers; and (g) all
of "Seller's Receivables" (as defined below), (collectively, the "Intangible
Property"). As used in this Agreement, the term "Seller's Receivables" shall
mean: (1) delinquent or uncollected membership dues, charges, payments or fees
existing as of the Closing Date (as defined in Section 3.3); or (2) unpaid
amounts with respect to tournaments, banquets and other functions held at the
Golf Course prior to the Closing Date.
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ARTICLE 2 - PURCHASE AND SALE PRICE
The total purchase and sale price for the Property shall be Two Million
Two Hundred Fifty Thousand Dollars ($2,250,000.00) ("Purchase Price").
2.1. PAYMENT OF PURCHASE PRICE.
(a) Deposit. On or before three (3) business days after the "Escrow
Opening Date" (as defined in Section 3.1 of this Agreement), Buyer shall deposit
into the "Escrow" (as defined in Section 3.1 of this Agreement) the amount of
One Hundred Thousand Dollars ($100,000.00) in cash ("Deposit"). Immediately upon
receipt of the Deposit, the "Escrow Holder" (as defined in Section 4.1 of this
Agreement) shall invest these funds in insured money market funds or other
investments approved by Buyer, and shall confirm in writing to Seller and Buyer
that Escrow Holder has invested the funds. The Deposit shall be applied to the
Purchase Price or paid in accordance with Section 2.3 of this Agreement.
(b) Balance of Purchase Price. The balance of the Purchase Price in the
amount of Two Million One Hundred Fifty Thousand Dollars ($2,150,000.00) (less
the accrued interest imputed on the Deposit, and plus or minus the costs and
prorations as provided in Sections 3.10 and 3.11 of this Agreement) shall be
deposited by Buyer in cash into the Escrow not later than twenty-four (24) hours
prior to the Closing Date. As used in this Agreement, the term "cash" shall mean
immediately available United States funds transferred by certified check or wire
transfer.
(c) Inventory Amounts. Prior to the Closing Date, Seller shall maintain
the level of inventories at the Property similar to the level it carries as a
regular course of business (the "Inventory Amount"), and shall regularly
supplement such inventories and purge such inventories of obsolete items. Items
in the Inventory Amount owned by Seller shall be included as part of the
Purchase Price.
2.2. ALLOCATION OF PURCHASE PRICE.
2.2.1. Allocation. The Purchase Price shall be allocated to the Property
by the reasonable determination of Buyer, and Buyer shall provide Seller its
allocation on or prior to the Closing. The parties acknowledge and agree that
the allocations made by Buyer may be adjusted on or prior to the Closing in
order to reflect the valuations of the various categories of Property during the
Due Diligence Period (as defined in Section 7.2 below).
2.2.2. Purchase of Personal Property. The parties acknowledge and agree
that on or prior to the Closing, Buyer may assign and transfer to third
party(ies) selected by Buyer ("Operator") Buyer's right to purchase the Personal
Property and Intangible Property. In the event of such transfer, Operator shall
purchase directly from Seller and Seller shall transfer directly to the Operator
all or a portion of the Personal Property and Intangible Property for a purchase
price equal to the agreed-upon value of such Personal Property and Intangible
Property, as set forth above.
2.3. TREATMENT OF DEPOSIT. The Deposit shall be applied to the Purchase
Price in the event that the Closing takes place at the time and in the manner
provided in this Agreement. The
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Deposit shall be paid to Seller as liquidated damages upon cancellation of the
Escrow by Seller, pursuant to Section 3.7(b) of this Agreement following a
"Buyer Default" (as defined in Section 3.7(b) of this Agreement). The Deposit
shall be immediately returned to Buyer upon cancellation of the Escrow by Buyer:
(a) pursuant to Section 3.7(a) of this Agreement following a "Seller Default"
(as defined in Section 3.7(a) of this Agreement); (b) Buyer's election not to
proceed with the Closing pursuant to Section 6.3 of this Agreement; or (c) after
any of the conditions precedent to Buyer's obligations under this Agreement are
not satisfied prior to the Closing.
ARTICLE 3 - ESCROW; CLOSING
3.1. JOINT INSTRUCTIONS; OPENING OF ESCROW. The purchase and sale of the
Property will be completed through an escrow (the "Escrow") at the office of
United Title Company (Xxxxx Xxxxxxx) ("Escrow Holder"). This Agreement will
constitute joint escrow instructions to the Escrow Holder in connection with the
escrow. Within two (2) business days after Seller and Buyer execute this
Agreement, which is to occur on or before October 5, 1999, the parties shall
open the Escrow with the Escrow Holder by delivering a fully executed copy of
this Agreement to the Escrow Holder. Escrow shall be deemed to be opened on the
date inserted herein: October 6, 1999. The Escrow Holder, upon its receipt of an
original of this Agreement duly executed by Seller and Buyer ("Escrow Opening
Date"), shall immediately notify Seller and Buyer in writing of the Escrow
Opening Date.
3.2. ADDITIONAL INSTRUCTIONS. Seller and Buyer hereby agree to execute
such additional instructions consistent with this Agreement as may be reasonably
required by the Escrow Holder.
3.3. CLOSING DATE. The delivery of the Deed (as defined in Section 3.4) to
Buyer (such event being referred to herein as the "Closing") shall occur on a
date on or prior to ten (10) calendar days after the expiration of the "Due
Diligence Period" (as defined in Section 6.2 of this Agreement), as the same may
be extended. The date on which the Closing takes place is hereinafter referred
to as the "Closing Date."
3.4. SELLER'S DELIVERIES PRIOR TO CLOSING. At least five (5) business days
prior to the Closing Date, Seller shall deliver to Buyer or the Escrow Holder
the following documents, all of which shall be in form and substance reasonably
acceptable to Buyer:
(a) A general warranty grant deed to the Real Property, duly
executed and acknowledged by Seller and in recordable form (the "Deed");
(b) A xxxx of sale with respect to the Personal Property and
Intangible Personal Property duly executed by Seller (the "Xxxx of Sale");
(c) Two (2) original counterparts of an assignment and
assumption of contracts and warranties duly executed by Seller, pursuant to
which Seller shall assign and Buyer shall assume certain contracts and
agreements approved by Buyer (the "Assignment of Contracts");
(d) Two (2) original counterparts of an assignment of the
"Water Documents" (as defined in Section 7.21) duly executed by Seller (the
"Assignment of Water Documents") and
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including the fully executed Tri-Partite Agreement, which shall have been
delivered to the Escrow Holder as described in Section 1.3 above;
(e) An affidavit of non-foreign status under the Internal
Revenue Code duly executed by Seller;
(f) A letter from Seller describing any pending or threatened
litigation or claims affecting the Property;
(g) An assignment of all trade names, including the names set
out in Section 2.6 above;
(h) A good standing letter from the appropriate state agency
regarding the payment of all taxes; and
(i) Any other documents, certificates or instruments necessary
to close the purchase and sale transaction contemplated by this Agreement.
3.5. BUYER'S DELIVERIES PRIOR TO CLOSING. Prior to the Closing Date, Buyer
shall deliver to Seller or the Escrow Holder the following documents:
(a) Two (2) original counterparts of the Assignment of
Contracts duly executed by Buyer (or Operator);
(b) Two (2) original counterparts of the Assignment of Water
Documents duly executed by Buyer; and
(c) All other documents necessary to carry out and close the
purchase and sale transaction contemplated by this Agreement.
3.6. ACTIONS AT CLOSING. At the Closing, the Escrow Holder shall do the
following:
(a) Cause the Deed (and such other documents as are
customarily filed for record) to be recorded in the real estate records of Xxx
County, State of Nevada;
(b) Deliver to Buyer the Xxxx of Sale, one complete original
counterpart of the Assignment of Contracts, the Assignment of Water Documents,
such other documents delivered by Seller to the Escrow Holder, and the "Title
Policy" (as defined in Section 4.3 of this Agreement) or commitment therefor;
and
(c) Deliver to Seller the Purchase Price (less any prorations
and costs to be paid by Seller pursuant to Sections 3.10 and 3.11 of this
Agreement) and one complete original counterpart of the Assignment of Contracts,
the Assignment of Water Documents, and a file-stamped conformed copy of the
Deed, showing the recording information thereon and a copy of the Xxxx of Sale.
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3.7. CANCELLATION OF ESCROW.
(a) If the Closing does not occur at the time and in the
manner provided in this Agreement due to the failure of Seller to comply with
any of its obligations under this Agreement ("Seller Default"), Buyer shall have
the right to cancel the Escrow by written notice to Seller and Escrow Holder.
Upon such cancellation, all title charges and costs of the Escrow shall be paid
by Seller, and Escrow Holder shall promptly return to Buyer the Deposit,
together with all interest accrued thereon.
(b)In the event that the Closing does not occur at the time
and in the manner provided in this Agreement due to the failure of Buyer to
comply with any of its obligations under this Agreement ("Buyer Default"),
Seller shall have the right to cancel the Escrow by written notice to Buyer and
the Escrow Holder. Upon such cancellation, all title charges and costs of the
Escrow shall be paid by Buyer, and the Deposit, together with all interest
thereon, shall be paid in accordance with Article 11.
(c) In the event that Closing does not occur due to Buyer's
election to terminate this Agreement pursuant to Section 6.3, the Escrow shall
automatically be cancelled, the Deposit shall be immediately returned to Buyer,
together with all interest thereon, and Buyer and Seller shall each pay one-half
(1/2) of the title charges and all costs for cancellation of the Escrow.
(d) Upon any cancellation of the Escrow, all instruments and
documents deposited with the Escrow Holder shall be returned to the parties who
deposited the same.
(e) The rights and remedies set forth in this Section 3.7
shall not be exclusive of any other rights or remedies which Buyer may have by
law or in equity in the event of breach of this Agreement, including, without
limitation, the right to specific performance.
3.8. POSSESSION. Possession and the right to possession of the Property
shall be delivered to Buyer on the Closing Date. The risk of loss or destruction
to any of the Property occurring as a result of any cause shall be upon Seller
until delivery of the Deed from Seller to Buyer. The risk of loss of and
destruction to any of the Property occurring as a result of any cause shall be
upon Buyer after Buyer takes possession of the Property.
3.9. DAMAGE AND DESTRUCTION; CONDEMNATION. If, prior to the Closing, there
is any damage to or destruction of any part of the Property, Seller shall
repair, restore or replace such damaged Property in a good and workmanlike
manner to a condition at least as good and useful as that in which it existed
prior to such damage or destruction. If Seller is unable to repair, restore or
replace such damage or destruction prior to the Closing, then at Buyer's option:
(a) the Closing shall be extended in order to permit Seller to complete such
repair, restoration or replacement prior to the Closing; (b) the Closing shall
occur on the Closing Date as the same may have been extended pursuant to clause
(a) of this Section, and Seller shall deposit into Escrow prior to the Closing
or Escrow Holder shall retain from the sale proceeds an amount equal to one
hundred ten percent (110%) of the amount reasonably estimated by Buyer and
Seller to complete the required repairs,
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restorations or replacements for application to the costs incurred by Buyer to
complete such repairs, restorations or replacements, with the balance of such
retention (together with any interest earned on the retention) being paid over
to Seller following the completion of such repairs, restorations or
replacements; or (c) this Agreement shall terminate upon written notice to
Seller and the Escrow Holder, in which case neither party shall have any further
rights or obligations under this Agreement, the Deposit shall be immediately
returned to Buyer, and Seller shall pay all title charges and all costs for
cancellation of the Escrow.
In the event the Property or any portion thereof is taken by eminent
domain or any condemnation proceedings are commenced prior to the Closing, then
Buyer may elect either: (i) to proceed with the transaction, in which case Buyer
shall receive an assignment of any condemnation award; or (ii) to terminate this
Agreement upon written notice to Seller and the Escrow Holder, in which case
neither party shall have any further rights or obligations under this Agreement,
the Deposit shall be immediately returned to Buyer, and Seller shall pay all
title charges and all costs for cancellation of the Escrow.
3.10. FEES AND CLOSING COSTS. The fees and costs incidental to the Closing
shall be paid as follows:
(a) Seller shall pay: (i) the cost of releasing any encumbrance
affecting the Property; (ii) all real estate transfer, documentary and excise
taxes payable in connection with conveying the Property to Buyer or otherwise in
connection with recording the Deed; (iii) any sales, use or equivalent tax in
connection with the transfer to Buyer (or Buyer's assignee) of the Personal
Property or in connection with Seller's operation of the Property; and (iv) the
cost of the preliminary title report, the title commitment and the Uniform
Commercial Code search report furnished pursuant to Section 4.1 of this
Agreement; (v) the cost of the premium for the "Title Policy" as defined in
Section 4.3 of this Agreement and endorsements thereto; and (vi) one-half of the
escrow fees and charges of the Escrow Holder plus any fees and charges relating
to the reconveyance of existing liens or encumbrances.
(b) Buyer shall pay: (i) the cost of recording the Deed; (ii) the
cost to update or upgrade the "Survey" (as defined in Section 4.2 of this
Agreement); (iii) the cost of a Phase I environmental site assessment report
("Phase I Report"); (iv) the cost of an engineering report for the inspection of
the improvements to the Property; and (v) one-half of the escrow fees and
charges of the Escrow Holder exclusive of any fees and charges relating to the
reconveyance of existing liens or encumbrances.
(c) Buyer and Seller shall each pay their own legal fees and other
incidental expenses related thereto incurred in connection with the transaction
contemplated by this Agreement.
3.11. PRORATIONS. Prorations between Seller and Buyer shall be made at the
Closing as follows:
(a) All taxes and assessments on the Property for all prior years
and all current year taxes and assessments that are due and payable on or before
the Closing shall have been paid
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in full by Seller or Seller's predecessor in interest on or before the Closing.
Accrued but not yet payable general real estate, personal property and ad
valorem taxes and assessments for the current year only shall be prorated on the
basis of the most recent available information, as adjusted by any known changes
relating to the period during which the Closing occurs.
(b) All charges for gas, electricity, water, telephone, sewer and
other utilities shall be prorated on the basis of the most recent available
information, as reasonably adjusted to account for known variances from usage
that would not otherwise be reflected in such information.
(c) Any income or expense items under the Contracts shall be
prorated as of the Closing Date.
(d) All prepaid membership dues or other membership charges shall be
prorated as of the Closing Date, which will result in Buyer receiving a credit
to the Purchase Price for such prorated amount.
(e) All membership dues that were billed (regardless of whether or
not they were collected) for the month during which the Closing occurs shall be
prorated as of the Closing Date, which will result in Buyer receiving a credit
to the Purchase Price for such prorated amount.
(f) Buyer shall receive a credit to the Purchase Price in the
aggregate amount of all refundable membership deposits.
(g) Buyer shall receive a credit to the Purchase Price for all
merchandise gift certificates sold before the Closing, but not redeemed as of
the Closing.
(h) Any other costs or expenses in connection with the transaction
contemplated by this Agreement shall be apportioned between the parties in the
manner customary in Xxx County, Nevada.
For purposes of calculating prorations, Buyer shall be entitled to the
income from the Property and responsible for the expenses of the Property, for
the entire day upon which the Closing occurs. All such prorations shall be made
on the basis of the actual number of days of the month which shall have elapsed
as of the day of the Closing and based upon a three hundred sixty (360) day
year. The amount of such prorations shall be subject to adjustment in cash after
Closing outside of Escrow, as and when more complete and accurate information
becomes available. Seller and Buyer agree to cooperate and use their best
efforts to make such adjustments not later than sixty (60) days after the
Closing Date (which cooperation may include permitting reasonable inspections of
Seller's or Buyer's books and records). Except as set forth in this Section
3.11, all items of income and expense for the period prior to the Closing Date
will be for the account of Seller, and all items of income and expense for the
period on and after the Closing Date will be for the account of Buyer, all as
determined by the accrual method of accounting. Bills and invoices received
after the Closing which relate to expenses incurred, services performed, goods
or materials delivered, or other amounts applicable to the period prior to the
Closing shall be paid by Seller.
At least three (3) business days prior to the Closing Date, Seller shall
deliver to
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Buyer a tentative statement of prorations (the "Statement of Prorations")
setting forth a preliminary determination of all items to be prorated, pursuant
to this Section 3.11, and supported by all detail reasonably necessary to make
such determination. Prior to the Closing, Buyer and Seller shall agree on the
Statement of Prorations.
ARTICLE 4 - TITLE
4.1. TITLE COMMITMENT AND UCC SEARCH. Buyer shall arrange for United Title
Company ("Title Company") to furnish to Seller and Buyer a current preliminary
title report ("PTR") and/or title commitment for the purpose of issuing title
insurance covering the Real Property, together with copies of all documents
shown as exceptions in the PTR and/or title commitment for title insurance.
Buyer shall obtain the results of a search of the Uniform Commercial Code
financing statement indices of the Secretary of State of Nevada and the Xxx
County Clerk, under the name of Seller and any tradename used by Seller in
connection with the operation of the Golf Course, together with copies of any
financing statements or fixture filings referenced in the search report.
4.2. SURVEY. Within five (5) business days after the Escrow Opening Date,
Seller shall furnish to Buyer and the Title Company the existing survey
("Survey") of the Real Property. At Seller's expense, Buyer may elect to have
the Survey updated or upgraded to an ALTA survey with certifications acceptable
to Buyer and/or as required to enable the Title Company to issue the Title
Policy. The term "Survey," as used in this Agreement, shall include any such
updates or upgrades to the Survey.
4.3. TITLE INSURANCE. At the Closing, the Title Company shall furnish to
Buyer an ALTA owner's policy of title insurance ("Title Policy"), together with
endorsements reasonably required by Buyer, or a commitment by the Title Company
to issue the Title Policy with such endorsements. The Title Policy shall be in
the amount of the Purchase Price, and shall insure title to the Real Property to
be vested in Buyer free and clear of all liens, assessments, taxes,
indebtedness, and other encumbrances except non-delinquent taxes and
assessments, the matters disclosed by the Survey, and the exceptions approved or
deemed approved by Buyer pursuant to Article 6 of this Agreement (collectively,
the "Permitted Encumbrances").
ARTICLE 5 - DELIVERY OF DOCUMENTS BY SELLER
Within three (3) business days after the Escrow Opening Date, Seller shall
deliver to Buyer the documents listed on SCHEDULE 1 (the "Due Diligence Request
List"), attached hereto, and incorporated herein. Within three (3) business days
after the Escrow Opening Date, Seller shall attach a detailed and itemized list
of all items requested and delivered pursuant to the heading "Operational
Contracts" of the Due Diligence Request List (collectively, the "Contracts") as
EXHIBIT C, which is incorporated herein by reference.
Seller shall promptly deliver to Buyer a copy of any tax bills received by
Seller after the date of this Agreement, even if received after the Closing. All
changes in the Inventory of the Personal Property shall be made only in the
normal and ordinary course of business. Not earlier
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than five (5) business days or later than two (2) business days prior to the
Closing, Seller shall certify as to the accuracy of the Inventory Amount as of
the Closing. If such Inventory shall reflect that any of the Inventory has been
removed other than in the ordinary course of business, Seller shall replace such
item of Inventory with an item of like kind, character and quality, or, at
Buyer's election, the Purchase Price shall be reduced by the fair market value
of the item of Inventory so missing. The certified inventory of the Personal
Property shall be attached to the Xxxx of Sale.
ARTICLE 6 - BUYER'S DUE DILIGENCE
6.1. BUYER'S INSPECTION. With prior notification to Seller and with
minimal interference to or interruption of Golf Course operations, Buyer, its
agents and representatives shall be entitled: (a) to enter onto the Property to
perform customary inspections and tests of the Property and the structural and
mechanical systems within the Improvements, (b) to examine and copy books and
records maintained by Seller or its agents relating to receipts and expenditures
pertaining to the Property; and (c) to interview the managers and employees of
Seller having management roles with respect to the operation of the Property.
After making such tests and inspections, Buyer agrees to promptly restore the
Property to the condition in which it existed prior to such tests and
inspections. Buyer shall indemnify and hold harmless Seller against any claims
related to such tests and inspections of the Property.
6.2. DUE DILIGENCE PERIOD. This Agreement and each of Buyer's obligations
under this Agreement are expressly conditioned upon Buyer's approval of the
Property and all conditions or matters related thereto (the granting or
withholding of such approval shall be in the sole and absolute discretion of
Buyer) on or before thirty (30) days after the delivery of all documents by
Seller to Buyer, including all of the items required under Schedule 1 pursuant
to Article 5 ("Due Diligence Period"). Buyer's approval of the Property shall
constitute a condition precedent to Buyer's obligations under this Agreement and
the consummation of the transactions contemplated hereby. If Buyer fails to give
written notice to Seller of Buyer's disapproval of any condition or matter
related to the Property on or before the last day of the Due Diligence Period,
then this condition precedent shall be deemed satisfied.
6.3. BUYER'S DISAPPROVAL. The following provisions shall apply if Buyer
disapproves any condition or matter related to the Property during the Due
Diligence Period.
(a) If Buyer disapproves any condition or matter related to
the Property, then Buyer shall elect either (i) to terminate this Agreement upon
written notice to Seller and the Escrow Holder, in which case neither party
shall have any further rights or obligations under this Agreement, the Deposit
shall be immediately returned to Buyer, and Buyer shall pay all title charges
and costs for cancellation of Escrow, or (ii) to give written notice to Seller
on or before the last day of the Due Diligence Period of such disapproval, which
notice shall specify the matters disapproved by Buyer.
(b) If Buyer gives notice to Seller of any disapproved matters
pursuant to Section 6.3(a)(ii) above, then Seller shall elect either (i) to cure
the disapproved items to Buyer's reasonable satisfaction prior to the Closing,
or (ii) not to cure the disapproved items. Unless Seller notifies Buyer in
writing, on or before five (5) business days following Seller's receipt of
Buyer's
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disapproval notice, of Seller's election not to cure some or all of the
disapproved items, it shall be conclusively presumed that Seller has elected to
cure the disapproved items.
(c) If Seller elects not to cure some or all of the disapproved
items pursuant to Section 6.3(b)(ii) above, then for a period of five (5)
business days after Seller's written notice to Buyer of Seller's election, Buyer
shall have the right either (i) to waive Buyer's disapproval and proceed with
the Closing, or (ii) to terminate this Agreement upon written notice to Seller
and Escrow Holder. If Buyer terminates this Agreement, neither party shall have
any further rights or obligations under this Agreement, the Deposit shall be
immediately returned to Buyer, and Buyer and Seller shall each pay one-half
(1/2) of the title charges and costs for cancellation of Escrow.
6.4. EXTENSION OF DUE DILIGENCE PERIOD. In the event: (a) the Survey to be
furnished by Seller to Buyer pursuant to Section 4.2 of this Agreement has not
been completed to the reasonable satisfaction of Buyer; (b) any of the documents
to be delivered to Buyer pursuant to Article 5 of this Agreement are not
provided to Buyer within the time periods set forth in the respective Sections
and in the form required by such Sections; (c) the issuance of a Alcohol License
satisfactory to Buyer is not completed; (d) soil test results including
representative sampling of greens, including greens number 13 and 14 have not
been obtained; or (e) Buyer is making a diligent, persistent and good faith
effort to pursue its inspection of the Property and through no fault of Buyer,
such inspection is reasonably delayed, then the Due Diligence Period shall be
extended for such period of time as designated by Buyer, not, however, to exceed
one hundred twenty (120) days. If Seller has elected to cure any matter or
condition disapproved by Buyer, the Due Diligence Period shall be extended for
the period of time necessary for Seller's cure of such disapproved matter or
condition.
6.5. TERMINATION OF DISAPPROVED CONTRACTS. On or before the Closing,
Seller shall terminate those Contracts which Buyer has disapproved pursuant to
Section 6.3 of this Agreement, other than any Contracts which would subject
Seller to a cost or penalty in excess of One Thousand Dollars ($1,000.00)
("Penalty Contracts"). Penalty Contracts shall be specifically identified on
Exhibit C. Except for Penalty Contracts, Seller acknowledges that Buyer shall
have no obligation to assume any Contracts except the approved Contracts and
that Buyer shall have no obligation to hire or otherwise engage any employee of
Seller except as otherwise approved by Buyer.
6.6. REMOVAL OF EQUIPMENT, TRASH, ETC.. As a condition of Closing, Seller
shall remove prior to Closing any equipment, trash or other items (collectively,
the "Removal Items") which Buyer may reasonably determine. Buyer shall notify
Seller of any Removal Items in writing during the Due Diligence Period.
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties, each of
which is material to this transaction, and upon which Buyer is relying in
entering into this Agreement. Seller acknowledges that Article 8 of this
Agreement also contains covenants of Seller in addition to the representations
and warranties set forth below. Seller recognizes that Buyer is relying upon
said representations and warranties as part of Buyer's due diligence
investigation of the Property.
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7.1. CAPACITY OF SELLER. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada, and is
qualified to do business in the State of Nevada. Seller has the requisite right,
power, legal capacity, and authority to enter into this Agreement and to fully
perform each and all of its obligations under this Agreement. Seller has
obtained all necessary approvals, releases or consents from third parties in
order to enter into this Agreement and consummate the transactions contemplated
by this Agreement.
7.2. SELLER NOT A "FOREIGN PERSON". Seller is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986,
as amended.
7.3. MARKETABLE TITLE TO PERSONAL PROPERTY. Seller shall convey to Buyer
good and marketable title to the Personal Property and Intangible Property, free
and clear of all liens and encumbrances, except the Permitted Encumbrances. None
of the Personal Property or Intangible Property is subject to claims by third
parties pursuant to any contracts, including contracts set out on Exhibit C.
7.4. IMPROVEMENTS AND EQUIPMENT IN GOOD CONDITION. To the best of Seller's
knowledge: (a) all Improvements were constructed or installed in conformity with
applicable local, state and federal laws, regulations, permits and requirements;
(b) all Improvements were constructed or installed in a good and workmanlike
manner with materials of good quality and all Improvements are free of any
design or construction defects; (c) all Improvements and Personal Property are
in good and operable condition and will remain so through the Closing Date; and
(d) there are no present violations of applicable state, county and city
building, electrical, plumbing or heating, ventilation and air conditioning
codes, and Seller has not received any notice from any governmental agency or
any other third party of the violation of any of the foregoing.
7.5. NO CONDITIONS AFFECTING INSURABILITY. Seller has not received from
any insurance carrier of (or is otherwise not aware of) any defects or
inadequacies in the Property which would adversely affect the insurability of
the Property or the cost of such insurance.
7.6. UTILITIES; ACCESS. To the best of Seller's knowledge: (a) all water,
sewer, gas, electric, telephone, and drainage facilities and all other utilities
required by law for the present use and operation of the Property are installed
across public property or valid easements to the boundary lines of the Land, and
are connected pursuant to valid permits, and such facilities are adequate to
service the Property and are in good operating condition; and (b) there are no
conditions that will result in the termination of the present availability to
the Property of such utility services or the termination of access to the
Property. Seller has not received any notice from any governmental agency or any
other third party regarding the termination of such utility services or the
termination of access to the Property.
7.7. LICENSES AND EASEMENTS. To the best of Seller's knowledge: (i) Seller
has obtained all licenses, permits, easements and rights-of-way, including proof
of dedication, required from all governmental authorities having jurisdiction
over the Property or from private parties for the present use and operation of
the Property and to assure vehicular and pedestrian ingress to and egress from
the Property at all access points currently being used; and (ii) Seller has
obtained adequate easements benefiting the Real Property to accommodate water
run-off and drainage from
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the Real Property, including, without limitation, easements for the use of water
lines, pipes, ditches, drainage channels, or other drainage facilities which are
located outside of the Real Property and are connected to any storm drain or
other water run-off facility located within the Real Property.
7.8. CONTRACTS. Seller has delivered to Buyer true, complete and correct
copies of all Contracts. The Contracts are in full force and effect, without
default by any party thereto and without any claims made for off-set, except as
set forth on EXHIBIT D, which exhibit shall be attached hereto and incorporated
herein by this reference by Seller within three (3) business days of the Escrow
Opening Date. The Contracts constitute the entire agreement with such third
parties and have not been amended, modified, or supplemented except for such
amendments, modifications and supplements delivered to Buyer. No verbal or
written contracts or agreements (other than the Contracts) with vendors,
suppliers or any other third parties relating to the operation, management,
maintenance or use of the Property will survive the Closing. Seller has neither
entered into any contracts or agreements nor made any verbal or written
commitments to any entity relating to the Property which will survive the
Closing, imposing upon the Property any obligation to contribute property, to
pay money, or to construct, install, or maintain any improvements on or off the
Property.
7.9. COMPLIANCE WITH APPLICABLE LAWS. To the best of Seller's
knowledge: (i) the Real Property is properly zoned for its present and intended
use as a golf course and for all existing associated uses, and Seller has
received no notices from any governmental authority or any other third party
advising Seller of a violation of any zoning laws, ordinances, general or
specific plans or other governmental requirements; and (iv) the transfer of the
Property to Buyer will comply with all subdivision, zoning and land use laws,
ordinances, codes and legal requirements.
7.10. ABSENCE OF CLAIMS AND ACTIONS. Except as set forth on EXHIBIT E, to
be attached hereto by Seller and incorporated herein by this reference within
three (3) business days of the Escrow Opening Date, there are no pending or to
the best of Seller's knowledge threatened claims, actions, suit, litigation,
governmental investigations, or judicial or administrative proceedings involving
the Property or Seller's rights to the Property, or which might impede the
Closing or which would interfere with Buyer's intended use of, and benefit from,
the Property. If there are any such claims, actions, suits or judicial or
administrative proceedings (including those set forth on EXHIBIT E), Seller
agrees it will bear sole responsibility for the defense of such claims, actions,
suits or judicial or administrative proceedings, including without limitation
any awards, judgments, damages, costs of relief, payments made in settlement,
costs, expenses and attorneys' fees.
7.11. ABSENCE OF CONDEMNATION PROCEEDINGS. To the best of Seller's
knowledge, there is presently no pending or threatened eminent domain or
condemnation proceeding affecting the Property or any portion thereof.
7.12. NO UNRECORDED ENCUMBRANCES. To the best of Seller's knowledge, there
are no unrecorded liens, encumbrances, easements, options or rights of first
refusal that affect the Property.
7.13. NO HAZARDOUS MATERIALS. There has been no generation, treatment,
discharge or storage on the Land or in the Improvements or in any groundwater or
aquifer below the surface of
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the Land by Seller, or to the best of Seller's knowledge, by any prior owner or
occupant of the Property or any other person, of any hazardous or toxic
substance, material or waste in violation of any applicable federal, state or
local environmental laws, ordinances, restrictions, permits or regulations.
Seller has not received any notices or demands from any governmental agency or
other third party regarding the existence of any hazardous or toxic substance,
material or waste on the Property or in the Improvements or requiring the
removal, clean-up or remediation of any environmental condition relating to the
Property. To the best of Seller's knowledge, the Property is not subject to any
enforcement action by any governmental agency regarding the environmental
condition of the Property and the Property has not been assigned an
identification number, nor is the Property the subject of an environmental
report by the State of Nevada. Seller further represents and warrants that with
respect to any underground or above-ground storage tanks located on the Real
Property, Seller has obtained all necessary permits and licenses and renewals
thereof for such tanks. Seller has no knowledge of any leaks or discharge of
fluids from any underground or above-ground storage tanks.
7.14. LABOR MATTERS. Seller has no collective bargaining agreement
affecting the Property. To the best of Seller's knowledge, there have been no
demands for collective bargaining by any union or labor organization or other
organization of Seller's employees, and no arbitration proceedings are pending
or threatened against or affecting Seller.
7.15. MEMBERSHIPS. Seller has delivered to Buyer or made available to
Buyer at the Golf Course (or will deliver to Buyer prior to the Closing) all
membership applications and contracts and agreements between Seller and members
of the Golf Course. EXHIBIT F, attached hereto and incorporated herein by this
reference is a true, complete and correct list of all members of the Golf Course
and includes: (a) the member's name; (b) the type of memberships; (c) the
effective date of the membership; (d) the amount of the initiation deposit that
has been paid in cash (with respect to those members that elected an installment
plan for payment of the initiation deposit, this amount includes both the
initial cash down payment plus any amount paid under the "Member Note," as
defined below); (e) the outstanding principal balance of any promissory note
executed by a member with respect to the initiation deposit (the "Member Note");
and (f) any terms of the membership or any rights, privileges or obligations of
the member which are different from other memberships in that category (for
example, pre-paid dues). Seller has delivered to Buyer copies of the rules and
regulations, by-laws, and all other documents and information pertaining to the
rights and obligations of the members. No representations or statements (either
verbally or in writing) have been made by Seller to any member of the Golf
Course that: (i) memberships in the Golf Course are equity memberships; (ii)
members have a right to participate in the ownership, management or operation of
the Golf Course; (iii) members have a right to share in any profits from the
refinancing or sale of the Golf Course; (iv) memberships in the Golf Course are
perpetual or non-terminable; (v) members have a right to receive a refund or
return of their initiation fee or security deposit; or (vi) members enjoy
contractual rights other than the right to use the Golf Course in accordance
with the by-laws and the rules and regulations. Seller has not made and agrees
not to make any solicitations of members of the Golf Course, nor use or sell the
membership list in any way or form. There are no outstanding complimentary,
gratuitous or reduced rate passes, reserved tee times or other special rights,
coupons, promises, representations, statements or agreements, verbal or written,
for any golf privileges or services or rights to use the Property.
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7.16. PUBLIC IMPROVEMENT OBLIGATIONS. To the best of Seller's knowledge,
there are no pending or threatened governmental proceedings, lawsuits,
investigations, bond issuances or proposals for public improvement assessments,
pay-back agreements, road extension or improvement agreements, utility
moratoriums, use moratoriums, or improvement moratoriums affecting the Property.
7.17. USE OF GOLF COURSE. Except for the memberships listed on EXHIBIT F,
to be attached hereto by Seller within three (3) business days of the Escrow
Opening Date, Seller has made no representations, statements, promises or
agreements (either verbally or in writing) to any person or entity, including,
without limitation, home builders, prospective home buyers, owners, or occupants
of the land surrounding the Golf Course, regarding any of the following: (a) the
right to membership in the Golf Course or the intent to operate the Golf Course
as a private or semi-private country club; (b) the right to play golf on the
Golf Course or any other use of the Property, except on the same terms and
conditions as offered to the public; (c) the right to participate in the
operation or management of the Property; or (d) the manner in which the Golf
Course will be operated, managed, maintained or improved.
7.18. OPERATING STATEMENTS. All of the financial information for the
Property provided pursuant to the Due Diligence Request List (the "Operating
Statements") are complete, true and correct in all material respects, and they
accurately describe the financial condition of the Property as of the date
prepared. Since the date of the Operating Statements, there has been no material
change in the financial condition of the Property.
7.19. CORRECT AND COMPLETE DOCUMENTATION. The documents delivered to Buyer
pursuant to this Agreement are true, correct and complete. To the best of
Seller's knowledge, Seller has provided or made available to Buyer all documents
and information in Seller's possession or in the possession of Seller's agents
or consultants regarding matters which affect the operation of the Property or
the physical and environmental condition of the Property.
7.20. THIS AGREEMENT NOT IN CONFLICT. Neither this Agreement nor the
consummation of the transactions contemplated by this Agreement will result in a
breach of or constitute a default under any other agreement, commitment or
obligation to which Seller or the Property is bound.
7.21. WATER RIGHTS. Seller has delivered to Buyer true, correct and
complete copies of all documents, agreements and permits (and amendments or
modifications thereto) evidencing Seller's entitlement to a water supply
adequate for the continued operation and maintenance of the Golf Course in the
same manner as the Golf Course is being operated and maintained as of the Escrow
Opening Date (collectively, the "Water Documents"). There are no other
agreements or documents concerning the supply of water to irrigate the Golf
Course and Seller is not in default under or in breach of any of the Water
Documents. Except for the Tri-Partite Agreement, Seller has not previously
assigned or transferred any of its water rights or interests under the Water
Documents. Further, it is understood that the combined total duty of water
rights available for use on the Championship Golf Course is approximately
1,319.94 acre-feet. The combined total duty of water rights available for the
Executive Golf Course is approximately 479.74 acre-feet. These water rights were
previously conveyed by Seller to Central Nevada Utilities Company (CNUC) and are
"dedicated" for use on the Golf Courses.
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7.22. PAYMENT OF TAXES. Seller has filed all federal, state, municipal,
county and local tax returns and reports required by law and has paid all taxes,
assessments, penalties and other charges due and payable relating to the
Property or the use and operation thereof, including sales taxes. There are no
pending lawsuits, actions, claims, proceedings, disputes, examinations or audits
as to taxes or assessments of any nature relating to the Property or the use and
operation thereof.
7.23. SELLER'S FINANCIAL CONDITION. Seller has not: (a) filed any
voluntary petition in bankruptcy (liquidation or reorganization) or suffered the
filing of any involuntary petition by its creditors; (b) made a general
assignment for the benefit of creditors; (c) suffered the appointment of a
receiver or trustee to take possession of all or substantially all of Seller's
assets; (d) suffered the attachment or other judicial seizure of all or
substantially all of its assets; or (e) admitted in writing its inability to pay
its debts as they come due.
7.24. WARRANTIES SURVIVE CLOSING. The representations and warranties made
in this Agreement by Seller shall be continuing and shall be deemed remade by
Seller as of the Closing with the same force and effect as if in fact made at
that time. The representations and warranties made in Sections 7.4(d), 7.6, 7.7,
7.8, 7.13 and 7.15 shall survive for a period of one (1) year after the Closing
Date. The representations and warranties of Section 7.10 shall survive the
Closing Date with respect to all claims, actions, suits and proceedings that
either: (a) seek relief not covered totally by insurance; or (b) seek relief
based on misrepresentation or similar tort; or (c) are threatened or pending as
of the Closing Date. The covenant set forth as the last sentence of Section 7.10
shall survive indefinitely. The effect of the representations and warranties
made in this Agreement shall not be diminished or deemed to be waived by any
inspections, test or investigations made by Buyer or its agents.
ARTICLE 8 - REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to Seller to enter into this Agreement, Buyer hereby
makes the following representations and warranties, each of which is material to
this transaction, and upon all of which Seller is relying in entering into this
Agreement.
8.1. CAPACITY OF BUYER. Buyer has the requisite right, power, legal
capacity and authority to enter into this Agreement and to fully perform each
and all of its obligations under this Agreement. All of the documents to be
executed by Buyer which are to be delivered to Seller or the Escrow Holder will
be duly authorized, executed and delivered by Buyer and will be the legal, valid
and binding obligations of Buyer enforceable against Buyer in accordance with
their respective terms, and will not violate any provisions of any agreement to
which Buyer is a party or to which Buyer is subject. In addition, if Buyer
elects to close, Buyer agrees to honor all existing membership agreements and
discounts, provided it has received notice and details pursuant to the terms
hereof, Buyer acknowledges that an independent discount has been offered by
Seller in materials provided to Seller.
ARTICLE 9 - COVENANTS OF SELLER
9.1. NO NEW CONTRACTS. Seller shall not, without the prior written consent
of Buyer, enter into any Contract with respect to the Property that will survive
the Closing or will otherwise affect the use, operation or enjoyment of the
Property after Closing.
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9.2. INSURANCE TO REMAIN IN FORCE THROUGH CLOSING. The insurance policies
covering the Property which are in existence as of the date of this Agreement,
or equivalent coverage, shall remain continuously in force through the Closing
Date.
9.3. MAINTENANCE OF PROPERTY. Prior to the Closing, Seller shall operate,
manage and maintain the Property in a manner sufficient to prevent any material
diminution of its present condition or value, and shall maintain present
services and sufficient inventory for the efficient operation and management of
the Property in the same manner and level as the Property is being operated and
managed as of the date of this Agreement.
9.4. PAYMENT OF BILLS. Seller has paid, or will pay all bills and invoices
for labor, goods, materials and services relating to the Property, utility
charges, and employee salary and all other accrued benefits and entitlements
relating to the period prior to the Closing Date.
9.5. NO ENCUMBRANCES OR TRANSFERS. No part of the Property, or any
interest in the Property, will be alienated, liened, encumbered or otherwise
transferred, except that easements may be recorded pursuant to the Tri-Partite
Agreement. If Seller is under contract to purchase the Property (or any portion
thereof) from a third party, Seller shall not amend or modify such contract to
the detriment of Buyer's interests hereunder.
9.6. CHANGES IN CONDITIONS. Seller shall promptly notify Buyer of any
material change in any condition, event or circumstance with respect to the
Property or of any event or circumstance which makes any representation or
warranty of Seller hereunder materially untrue or misleading, or any covenant of
Seller hereunder incapable or less likely of being performed.
9.7. TERMINATION OF CONTRACTS. Except for the Contracts approved by Buyer
pursuant to Article 6 hereof, Seller shall terminate prior to the Closing Date
all other contracts and agreements relating to the Property.
9.8. TERMINATION OF EMPLOYEES; OBLIGATION FOR BENEFITS. Seller shall
terminate the employment of all Golf Course employee salaries, vested and
non-vested benefits, vacation pay and seniority rights due and owing as of the
Closing Date. Seller shall have paid and remains liable for all salaries,
compensation, benefits and vacation compensation for all employees and
independent contractors up to the date of Closing.
9.9. USE OF NAME. Without the prior written consent of Buyer, Seller shall
not itself, nor shall Seller authorize or permit any affiliated entity of Seller
or any other person or entity to: (a) use the name "Calvada Championship Golf
Course" or "Calvada Executive Golf Course" in any promotional or marketing
information and materials relating to the sale of land around the Golf Course;
or (b) make any statements or representations (either verbally or in writing) as
to the right to play golf or to otherwise use the Golf Course.
9.10. ALCOHOL LICENSE. Buyer agrees to take such actions and act with due
diligence in connection with the Alcohol License and make such filings as are
necessary to obtain an Alcohol License. Seller shall reasonably cooperate with
Buyer.
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9.11. EXPENSES. Other than Buyer's costs associated with Buyer's due
diligence and as otherwise provided for in this Agreement, Seller covenants to
pay all expenses incurred prior to Closing, even if the invoicing and/or payment
of the expenses are received or due after Closing.
9.12. WEEKLY FINANCIAL REPORTS. Seller agrees to deliver weekly financial
reports from the Escrow Opening Date until the Closing.
9.13. SURVIVAL OF COVENANTS. The liability of Seller for a breach of any
of the covenants contained in this Agreement to be performed after the Closing
shall survive the Closing and shall not be merged into any instrument of
conveyance delivered at the Closing.
ARTICLE 10 - CONDITIONS PRECEDENT TO BUYER'S DUTY
TO CLOSE THIS TRANSACTION
In addition to the conditions precedent set forth in Article 6 of this
Agreement, the following are conditions precedent to Buyer's obligations under
this Agreement.
10.1. SELLER'S PERFORMANCE OF COVENANTS. Seller's timely performance in
full of all covenants and duties to be performed by Seller under this Agreement
on or prior to the Closing.
10.2. SELLER'S REPRESENTATIONS ARE TRUE. The representations and
warranties made by Seller to Buyer in this Agreement shall be true and correct
on the Closing with the same force and effect as though those representations
and warranties had been made on the Closing Date. If requested by Buyer, Seller
shall execute and deliver to Buyer or the Escrow Holder prior to the Closing a
certificate updating the representations and warranties of Seller through
Closing and disclosing any new matters relating to the Property.
10.3. SELLER'S CURE OF DISAPPROVED CONTINGENCY ITEMS. Prior to the
Closing, Seller shall have cured to Buyer's reasonable satisfaction those
matters or conditions that were disapproved by Buyer and which Seller elected to
cure, pursuant to Section 6.3(b)(i).
10.4. ALCOHOL LICENSE. The receipt of satisfactory confirmation that
Alcohol License will be available for use on the Property at Closing.
ARTICLE 11 - LIQUIDATED DAMAGES
BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IN THE EVENT BUYER
DEFAULTS AFTER THE EXPIRATION OF THE DUE DILIGENCE PERIOD ON ITS OBLIGATIONS
UNDER THIS AGREEMENT, SELLER WILL SUFFER DAMAGES IN AN AMOUNT WHICH WILL, DUE TO
THE SPECIAL NATURE OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT, BE
IMPRACTICAL OR EXTREMELY DIFFICULT TO ASCERTAIN. IN ADDITION, BUYER WISHES TO
HAVE A LIMITATION PLACED UPON THE POTENTIAL LIABILITY OF BUYER TO SELLER IN THE
EVENT BUYER DEFAULTS AFTER THE EXPIRATION OF THE DUE DILIGENCE PERIOD ON ITS
OBLIGATIONS UNDER THE AGREEMENT, AND BUYER WISHES TO INDUCE SELLER TO WAIVE
OTHER REMEDIES WHICH SELLER MAY HAVE IN THE EVENT OF SUCH A DEFAULT. BUYER AND
SELLER, AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND AGREE THAT THE AMOUNT OF
THE DEPOSIT, AS THE SAME EXISTS FROM TIME TO TIME UNDER THIS AGREEMENT,
REPRESENTS A
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REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL SUSTAIN IN THE EVENT OF
SUCH A DEFAULT BY BUYER. BUYER AND SELLER HEREBY AGREE THAT SELLER MAY, IN THE
EVENT OF A BUYER DEFAULT, TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO BUYER
AND ESCROW HOLDER, CANCEL THE ESCROW, AND RETAIN THE DEPOSIT AS LIQUIDATED
DAMAGES. FOLLOWING TERMINATION OF THIS AGREEMENT, CANCELLATION OF THE ESCROW,
AND RETENTION OF THE DEPOSIT AS LIQUIDATED DAMAGES PURSUANT TO THIS ARTICLE 11,
ALL OF THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER UNDER THIS AGREEMENT SHALL
BE TERMINATED. SELLER HEREBY AGREES THAT ITS RETENTION OF THE DEPOSIT AS
LIQUIDATED DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF SELLER UPON THE
OCCURRENCE OF A BUYER DEFAULT, AND SELLER HEREBY WAIVES AND RELINQUISHES ALL
OTHER RIGHTS AND REMEDIES SELLER MAY HAVE BY LAW OR IN EQUITY IN THE EVENT OF A
BUYER DEFAULT.
BUYER AND SELLER HEREBY ACKNOWLEDGE THAT EACH OF THEM HAS READ AND
UNDERSTANDS THE TERMS AND PROVISIONS OF THIS ARTICLE 11 AND BY THEIR INITIALS
IMMEDIATELY BELOW, BUYER AND SELLER HEREBY AGREE TO BE BOUND BY THESE TERMS AND
PROVISIONS.
/s/ CGB
----------------- -------------------
SELLER'S INITIALS BUYER'S INITIALS
ARTICLE 12 - MISCELLANEOUS
It is further agreed by and between the parties as follows:
12.1. RECIPROCAL INDEMNITY.
12.1.1. Seller's Indemnity of Buyer. Seller shall indemnify,
protect, defend and hold harmless Buyer and Operator and their owners, lessees,
operators, officers, directors, members, partners, employees and agents from and
against all claims, demands, lawsuits, actions, proceedings, liabilities,
damages, losses and expenses, including reasonable attorneys' fees
(collectively, "Claims") relating to: (a) the ownership, use, operation,
maintenance and improvement of the Property prior to the Closing; and (b) the
generation, treatment, discharge or storage prior to the Closing of any
hazardous wastes, substances or materials on the Property or in any groundwater
or aquifer below the Property in violation of applicable laws.
12.1.2. Buyer's Indemnity of Seller. Buyer shall indemnify,
protect, defend and hold harmless Seller and Seller's owners, officers,
directors, members, partners, employees and agents from and against all Claims
relating to: (a) the ownership, use, operation, maintenance and improvement of
the Property on or after the Closing; and (b) the generation, treatment,
discharge or storage first occurring on or after the Closing of any hazardous
wastes, substances or materials on the Property or in any groundwater or aquifer
below the Property in violation of applicable laws.
12.2. ADDRESSES FOR NOTICES. All notices, demands, requests or replies
(collectively, the "Notices") provided for or permitted by this Agreement shall
be in writing and may be delivered by any one of the following methods: (a) by
personal delivery; (b) by deposit with the United States Postal Service as
certified or registered mail, return receipt requested, postage prepaid to the
addresses stated below; (c) by prepaid telegram; (d) by prepaid deposit with an
overnight express
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delivery service; or (e) by means of electronic facsimile transmission ("fax").
Notice deposited with the United States Postal Service in the manner described
above shall be deemed effective three (3) business days after deposit with the
Postal Service. Notice by telegram or overnight express delivery service shall
be deemed effective one (1) business day after transmission to the telegraph
company or after deposit with the express delivery service. Notice by personal
delivery shall be deemed effective at the time of personal delivery. Notice by
fax shall be deemed effective at the time the fax transmission is confirmed to
have been received by the recipient.
For purposes of Notices, the address of Seller shall be:
Preferred Equities Corporation
Attention: Xxx X. Xxxxxx
General Counsel
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Telefax: 702/369.4398
With a copy to:
Xxxxxx Xxxxx
0000 XX 000xx Xxxxxx #000
Xxxxx Xxxxx, Xxxxxxx 00000
Telefax: 305/899.1824
and the address of Buyer shall be:
Xxxxxxxxx Nevada Corp.
Attention: Xxxxxxx Sheer
0000 Xx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Telefax: 702/257.7694
With copy to:
Cohen, Todd, Kite & Stanford, LLC
Attention: Xxxxxx X. Xxxxxxx, Esq.
000 Xxxx Xxxxxx 00xx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Telefax: 513/421.3919
12.3. OTHER DOCUMENTS. Seller and Buyer agree that they will, at any
time and from time to time after the Closing, upon the request of the other
party, execute, acknowledge and deliver all such further deeds, assignments,
transfers, advances and other documents as may be reasonably required for the
consummation of the transaction hereunder.
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12.4. AMENDMENT. No amendment or modification of this Agreement shall be
valid unless the amendment or modification is in writing and signed by both
parties.
12.5. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties and incorporates all prior agreements and understandings. No
previous agreement or understanding, verbal or written, of the parties or any of
their agents shall be binding or enforceable, unless specifically incorporated
in this Agreement.
12.6. NO PRESUMPTION REGARDING DRAFTER. Seller and Buyer acknowledge and
agree that the terms and provisions of this Agreement have been negotiated and
discussed between Seller and Buyer, and that this Agreement reflects their
mutual agreement regarding the subject matter of this Agreement. Because of the
nature of such negotiations and discussions, it would not be appropriate to deem
either Seller or Buyer to be the drafter of this Agreement, and therefore no
presumption for or against the drafter shall be applicable in interpreting or
enforcing this Agreement.
12.7. TIME OF THE ESSENCE. Time is of the essence of this Agreement. The
parties understand that the time for performance of each obligation has been the
subject of negotiation by the parties.
12.8. ENFORCEABILITY OF ANY PROVISION. If any agreement, condition,
obligation, covenant, warranty or other provision of this Agreement shall be
determined to be unenforceable, invalid or void, such determination shall not
affect, impair, invalidate or render unenforceable any other agreement,
condition, obligation, covenant, warranty or other provision of this Agreement.
12.9. COUNTERPARTS. This Agreement and any amendment may be executed in
counterparts, and upon all counterparts being so executed, each counterpart
shall be considered as an original and all counterparts shall be considered as
one agreement.
12.10. EFFECT OF TITLES. The title of the various articles and sections of
this Agreement are solely for the purpose of convenience and shall not be relied
upon in construing any provision of this Agreement.
12.11. BROKERS' COMMISSIONS. Pursuant to IRS 645 Nevada Real Estate
License Law and Rules and Regulations, it is hereby disclosed that Americor
Realty (Xxxxxxx Sheer), UK America Corp. (Xxxxx X. Xxxxxx) and Vestar &
Associates (Xxxxxx X. Xxxxx) represent Buyer, and VGA Industrial Property Group
(Xx Xxxxxxx) represents Seller. No other brokers are hereby recognized in this
transaction. Buyer and Seller shall be responsible for the compensation of their
respective Brokers.
12.12. ATTORNEYS' FEES. In the event of a dispute in connection with this
Agreement involving the non-performance by a party of its obligations, the
prevailing party shall be entitled to reasonable attorneys' fees and all other
expenses reasonably incurred in connection with such dispute, whether or not
litigation is commenced, in addition to all other relief to which the party is
entitled. If the successful party recovers judgment in any legal action or
proceeding, the attorneys' fees and all other expenses of litigation shall be
included in and made part of any such judgment.
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12.13. APPLICABLE LAW. The laws of the State of Nevada shall be applied in
interpreting and enforcing this Agreement.
12.14. ASSIGNMENT BY BUYER. Buyer shall have the right to assign Buyer's
rights and to delegate Buyer's obligations under this Agreement to an affiliate
of Buyer or of Buyer's general partner or any entity principally owned or
controlled by Xxxxx Xxxx, Xxxxxx Xxxxxx or Xxxxxxx Sheer (collectively, the
"assignee(s)"), provided that Buyer shall not be released from any liability
under this Agreement.
12.15. 1031 EXCHANGE. Buyer may desire, at its sole and absolute
discretion, to acquire the Property as "replacement property" for purposes of a
delayed tax-deferred exchange involving like-kind and/or like-class property
which qualifies under Section 1031 of the Internal Revenue Code, as amended, and
similar state statutes ("Exchange"). Seller agrees to cooperate with Buyer, at
no added cost or expense to Seller, in effecting an Exchange, provided the same
shall not extend the Closing Date.
12.16. CONFIDENTIALITY. Buyer and Seller shall keep confidential the
existence and the terms of this Agreement, except as to their employees,
consultants, attorneys, accountants and other agents that may be involved in
conducting the due diligence related to the transactions contemplated by this
Agreement. Notwithstanding the previous sentence, upon the Closing Buyer shall
be permitted to make public announcements and disclosures regarding the terms of
the transaction.
12.17. OTHER OFFERS. Upon execution of this Agreement by Seller, Seller
shall not discuss or negotiate the sale of the Property with third parties, nor
provide financial or other information with respect to the Property to such
third parties, nor accept other offers to purchase or transfer the Property or
any part thereof.
12.18. BULK SALES. Seller agrees to pay or otherwise discharge, and Seller
shall indemnify, defend and hold harmless Buyer and Buyer's partners, owners,
officers, directors, partners, employees and agents from and against all claims
or liabilities asserted or arising by reason of any failure on the part of
Seller to comply with the provisions of the Nevada Uniform Commercial Code, and
any other statutes relating to the bulk transfer of property in connection with
the transactions contemplated by this Agreement.
12.19. RIGHTS GRANTED HEREIN. Seller acknowledges and agrees that the
rights granted to Buyer herein shall run in favor of Operator, and such rights
may be enforced by Buyer or Operator in accordance with the terms and conditions
hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
SELLER:
PREFERRED EQUITIES CORPORATION
By: [SIGNATURE ILLEGIBLE]
------------------------------------
Its: VP/CAO
-----------------------------------
BUYER:
XXXXXXXXX NEVADA CORP.
By:
------------------------------------
Its:
-----------------------------------
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EXHIBIT A
DESCRIPTION OF LAND
25
EXHIBIT B
DESCRIPTION OF PERSONAL PROPERTY
26
EXHIBIT C
LIST OF CONTRACTS
27
EXHIBIT D
OFF-SET AND DEFAULTED CONTRACTS
28
EXHIBIT E
PENDING CLAIMS, ACTIONS, SUITS, LITIGATIONS, GOVERNMENTAL INVESTIGATIONS
AND JUDICIAL OR ADMINISTRATIVE PROCEEDINGS
