PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
JOINT
ESCROW INSTRUCTIONS
THIS
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ("Agreement") is made
and entered into on March ~ 2008, by and between RKD Holdings, L.L.C. a Nevada
limited liability company ("Seller"), and GameTech International Inc., a
Delaware corporation, or its permitted assignee ("Buyer'').
1.
Purchase and sale. Upon all the terms and conditions contained in this
Agreement, Buyer hereby agrees to purchase from Seller and Seller hereby agrees
to sell to Buyer, that certain real property known as 0000 Xxxxxx Xxxxxxx
Xxxxxxx, Xxxx, Xxxxxx, together with all improvements thereon and all rights and
appurtenances pertaining thereto, including any right, title, and interest of
seller in and to any rights of-way, easements, or strips of land, and any
entitlements, water rights, or development rights (collectively, the
"Property''). The Property includes an approximately. 102,918 square foot
industrial facility situated on approximately 5+/- acres, APN 000-000-00,
and is legally described in Exhibit A attached hereto and
incorporated herein (FINAL ACREAGE AND APN TO BE INPUT PER NEW PRELIMINARY TITLE
REPORT ORDERED MARCH 18, 2008).
2.
Escrow. "Escrow" shall be established with Xxxxxxx Title of Nevada, Inc., 0000
Xxxxxxx Xxxx, Xxxxx 000, Xxxx, Xxxxxx 00000, Attention: Xxxxxx Roma
("Escrowholder''), when Buyer delivers a fully executed copy of this Agreement
to Escrowholder. As used in this Agreement, the term "Escrow Opening Date" shall
mean the first (1st)
business day after the date Escrowholder receives a fully executed copy of this
Agreement. This Agreement shall serve as escrow instructions to Escrowholder,
and Escrowholder is authorized and instructed to act in accordance with the
terms of this Agreement. seller shall provide Buyer with copies of all relevant
information and studies, including without limitation, the documents and
materials listed on Exhibit B
attached hereto and incorporated herein, in Seller's possession or
control or that of its employees, consultants, agents and contractors, with
regard to the Property within three (3) business days of mutual execution of
this Agreement. If this Agreement is terminated, Buyer shall immediately return
the foregoing materials to Seller.
3.
Closing and Extension of Escrow. The terms "Closing" and "Close of Escrow" shall
mean the completion of the purchase, exchange of money and documents, recording
of the Grant, Bargain and Sale Deed and delivery of possession of the Property
to Buyer. The Closing shall take place through Escrow upon satisfaction (or
waiver by the appropriate party) of all conditions to Closing set forth herein
on or before the date which is ninety (90) days following the Escrow Opening
Date or such later date as the parties may mutually agree in
writing.
4.
Purchase Price. The purchase price ("Purchase Price'') for the Property shall be
Seven Million Two Hundred Thousand Dollars ($7,200,000.00). The Purchase Price
shall be paid into Escrow as follows:
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(a)
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Buyer
shall deliver to Escrowholder the sum of Fifty Thousand Dollars
($50,000.00) (the "Initial Deposit'') in the form of immediately available
funds within three (3) business days following the Escrow Opening Date.
The Initial Deposit is refundable to Buyer during the 60 day Due
Diligence
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Period.
In the event Buyer fails to deliver the Initial Deposit to Escrowholder within
three (3) business days following the Escrow Opening Date, the Escrow shall be
deemed automatically canceled and this Agreement shall terminate.
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(b)
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Provided
Buyer does not terminate this Agreement pursuant to Section 6 below, Buyer
shall deliver to Escrowholder an additional One Hundred and Fifty Thousand
Dollars ($150,000.00) (the "Additional Deposit", and together With the
Initial Deposit, the "Deposit") upon expiration of the Due Diligence
Period (below defined), which Additional Deposit shall become part of the
Deposit. Upon deposit, the Deposit of Two Hundred Thousand Dollars
($200,000.00) shall be deemed non-refundable to Buyer, except upon the
failure of Buyer's dosing conditions set forth in Section 6 or in the case
of a default by Seller as set forth in Section
12(a).
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Escrowholder
shall place the Deposit into a standard passbook interest-bearing savings
account at a financial institution acceptable to Buyer. All references in this
Agreement to the Deposit shall include the interest earned thereon. The Deposit
shall be applied to the Purchase Price at Close of Escrow.
(b) The
balance of the Purchase Price shall be paid in immediately available funds and
delivered to Escrow at, or prior to Closing.
5. Costs
and Prorations.
(a) Buyer
and Seller each shall pay one-half (1/2) of all Escrow fees, recording costs,
and real property transfer taxes.
(b)
Seller shall pay the cost of the standard coverage portion of the premium for an
ALTA owner's policy of title insurance referred to in Section 6(a) below. If
Buyer or Buyer's lender desire or require ALTA extended coverage, a survey of
the Property or any endorsements to a policy of title insurance, such costs
shall be incurred solely by Buyer.
(c) Buyer
and Seller shall each pay their own respective legal and accounting costs
outside of Escrow.
(d) All
non-delinquent real property taxes (including any non-delinquent general
and special bonds and assessments) on the Property (based upon the latest
available tax information), shall be prorated through Escrow between Buyer and
Seller as of the Closing using the customary escrow procedures of
Escrowholder.
(e) All
other costs or expenses of the Property, including without limitation,
utilities, sewer and service contracts, shall be apportioned or allocated
between Buyer and Seller using the customary escrow procedures of
Escrowholder.
Prior to
the Closing, Buyer and Seller shall review and approve the above prorations. If
the actual amounts to be prorated are not then known, or if any additional
expenses are incurred or income received after the date the prorations are made,
the prorations shall be made on the basis of the best evidence then available.
When actual figures are later received, a cash settlement will be made between
Seller and Buyer. All utility bills shall be prorated when the last xxxx
incurred by Seller is received. The provisions of this paragraph shall survive
the Closing.
6.
Conditions to Closing of Buyer. The obligations of Buyer to complete the
purchase and sale of the Property are subject to satisfaction (or waiver by
Buyer in its sole discretion) of the following conditions at or prior to
Closing.
(a)
Title. Escrowholder shall be irrevocably committed to issue to Buyer a standard
or extended coverage (at Buyer's sole election) ALTA Owner's policy of title
insurance, dated as of the Closing, insuring Buyer in an amount equal to the
Purchase Price, and insuring fee simple title vested in Buyer subject only
to:
(i)
Non-delinquent real property taxes (including and non-delinquent general
and special bonds or assessments);
(ii) The
pre-printed exceptions contained in the foregoing title insurance
policy;
(iii) All
other matters expressly approved in writing by Buyer; and
(iv) the
Permitted Exceptions. As used herein, the term "Permitted Exceptions" shall mean
those conditions of title and matters disclosed by a commitment or preliminary
title report, and survey, if any, which are accepted or deemed accepted by Buyer
pursuant to the following paragraphs.
Within
thirty (30) days of Buyer's receipt of a commitment or preliminary title report
for the Property together with all supporting materials and exceptions (the
"Report"), Buyer shall notify Seller and Escrowholder in writing which
exceptions to title shown in the Report, if any, will not be accepted by Buyer
(collectively, the "Disapproved Title Matters"), all other matters and
exceptions to title shown in the Report and conditions disclosed by any survey
shall be deemed approved by Buyer. If Buyer fails to notify Seller and Escrow
Holder within the required time period of any Disapproved Title Matters, Buyer
shall be deemed to have approved the condition to the Property as to such title
matters. If Buyer notifies Seller of any Disapproved Title Matters, Seller shall
have until 5:00 p.m., pacific time, on the fifth (5th)
business day after Seller's receipt of such notice to notify Buyer and
Escrowholder in writing that:
(i)
Seller shall use its reasonable efforts to either (A) cause any Disapproved
Title Matters to be removed by the Closing, or (B) obtain, at Seller's expense,
an endorsement or other curative effect acceptable to Buyer in Buyer's sole and
absolute discretion (in which case, Seller may extend the Closing for such
period as shall be required to effect such cure, but not beyond ten (10)
calendar days); or
(ii)
Seller elects not to cause any such Disapproved Title Matters to be
removed.
If Seller
gives Buyer and Escrowholder notice under subsection (ii) above, or if Seller
gives notice under subsection (i) above, but later provides notice to Buyer that
Seller has been unable to cure or remove the applicable Disapproved Title
Matter, then Buyer shall have until 5:00 p.m., pacific time, on the fifth (5th)
business day after Buyer's receipt of either such notice to notify Seller and
Escrowholder that (x) Buyer revokes its disapproval of such exceptions) and will
proceed with the purchase without any reduction in the Purchase Price and take
title to the Property subject to such exceptions), or (y) Buyer will terminate this
Agreement, in which case this Agreement shall terminate, Buyer shall have no
further obligations hereunder (except for obligations which expressly survive
termination), Escrowholder shall immediately return the Deposit to Buyer and the
costs of the Escrowholder shall be borne equally by Buyer and Seller. If Buyer
fails to notify Seller and Escrowholder within the required time period of such
election, Buyer shall be deemed to have elected to proceed in accordance
subsection (x) above. The foregoing procedure shall also be applicable to any
new matters which are disclosed in any updates, supplements or amendment to the
Report or to any survey ("Newly Discovered Title Matters").
(c)
Buyer's Investigation. Buyer shall have sixty (60) days following the Escrow
Opening Date (the "Due Diligence Period") to satisfy itself about any and all
conditions and aspects of the Property, including without limitation, the
physical and economic feasibility of the Property for Buyer's intended purposes
and uses, to conduct feasibility and other studies at Buyer's sole cost, and
conduct any inspections desired by Buyer. Except as set forth in Section 13(a),
the cost of Buyer's investigation of the Property shall be borne solely by
Buyer. Additionally, Buyer shall indemnify, defend and hold harmless Seller from
and against any and all damage to the Property incurred as a result of Buyer's
investigation. If for any reason Escrow does not close, Buyer shall, at its sole
cost, restore the Property as commercially reasonably as possible to its
condition existing immediately prior to the activities undertaken by Buyer or on
Buyer's behalf. If Buyer determines that Buyer does not wish to proceed with the
purchase of the Property for any reason whatsoever, (a decision which may be
made in Buyer’s sole and absolute discretion), Buyer may cancel this Agreement
by written notice to Seller and Escrowholder prior to the expiration of the
sixty (60) day Due Diligence Period, in which case this Agreement shall
terminate, Buyer shall have no further obligations hereunder (except for
obligations which expressly survive termination), Escrowholder shall immediately
return the Deposit to Buyer and the costs of the Escrowholder shall be
borne equally by Buyer and Seller. If Buyer does not cancel this Agreement
within the time period set forth above, then Buyer shall be deemed to have
approved the condition of the Property in all respects (except for Newly
Discovered Title Matters). For purposes of facilitating the investigation,
Seller grants to Buyer and Buyer's agents, employees and contractors a
non-exclusive right and license to enter upon the Property, at reasonable times
for the purpose of conducting the investigation, provided that Buyer notifies
Seller at least two (2) days in advance of any tests and/or inspections,
specifying the time and nature of any tests and/or inspections. During the
pendency of this Agreement, Seller shall make available to Buyer, and Buyer and
its representatives, agents and contractors shall have a continuing right of
reasonable access to and the right to examine and make copies of, all
construction plans, correspondence, documents, contracts, agreements and other
materials relating to the Property in Seller's possession or control, including,
without limitation, the right to conduct a "walkthrough" of the Property
prior to the Closing.
In the
course of its due diligence, Buyer may make inquiries to third parties
including, without limitation, contractors, property managers, municipal, local,
and other government officials and representatives, and Seller consents to such
inquiries. If this Agreement is terminated, and provided such termination is not
as a result of Seller's default hereunder, Buyer shall deliver to Seller copies,
for informational purposes only, of any similar documents or reports prepared by
or on Buyer's behalf in connection with Buyer's due diligence as provided in
Section 2 hereof. Any invasive testing, such as (Without limitation) boring or
drilling, shall require the prior written consent of Seller, which shall not be
unreasonably Withheld, conditioned or delayed.
(d)
Compliance by Seller. Seller shall have complied with each and every covenant,
undertaking and agreement to be kept or performed by Seller as provided in this
Agreement; and each representation and warranty made in this Agreement by Seller
shall remain true and accurate in all material respects both at the time made
and at Closing.
(e) No
Material Adverse Change in Physical Condition. As of Closing, there shall have
been no material adverse change in the condition of the Property or any material
portion thereof, excepting any event(s) of destruction, damage, or condemnation
described in Section 15.
(f)
Improvement Costs. All costs and expenses for any and all improvements relative
to the Property shall have been paid and satisfied, and such improvements shall
have been substantially completed, notices of completion shall have been
recorded for such improvements, and final certificates of occupancy issued
therefor.
(g)
Termination. If any of the foregoing Buyer conditions are neither fulfilled, nor
waived as provided above, Buyer, at its election by written notice to Seller,
may terminate this Agreement and be released from all obligations under this
Agreement (except for obligations which expressly survive termination). In the
event of such termination by Buyer, the Deposit shall be returned immediately to
Buyer, and all documents deposited in Escrow by Buyer or Seller shall be
returned to the depositing party, the costs of the Escrowholder shall be borne
equally by Buyer and Seller.
7.
Transfer and Possession. Seller shall deliver into Escrow an executed and
recordable Grant, Bargain and Sale Deed in the form attached hereto as Exhibit C, and non-foreign
affidavit pursuant to Section 1445 of the IRS Code on Escrowholder's standard
form. When all required funds and instruments have been deposited into Escrow by
the appropriate parties, and when all other conditions to Closing have been
fulfilled (or waived by the appropriate party), Escrowholder shall cause to be
recorded such Grant, Bargain and Sale Deed, whereupon Seller shall deliver
possession of the Property to Buyer.
8.
Changes During Transaction. During the pendency of this Agreement, Seller (i)
shall keep the Property in good working order and repair, (ii) shall maintain
the present services provided to the Property, (iii) shall not enter into any
lease, license or other occupancy agreement for all or any portion of the
Property, (iv) shall not, except with Buyer's prior written consent (which shall
not be unreasonably withheld, conditioned or delayed) (A) make or permit any
substantial or material alteration, repair or improvement to the Property, or
(B) allow the cancellation of or a material reduction of the amount or scope of
coverage under any insurance currently maintained with respect to the
Property.
9.
Seller's Representations and Warranties. Seller represents and warrants to Buyer
that:
(a)
Standing. Seller is a Nevada limited liability company duly organized, validly
existing, and in good standing under the laws of Nevada. seller has full power
and authority to enter into this Agreement, perform the terms of this Agreement
and complete the sale of the Property.
(b)
Title. To Seller's actual knowledge, there are no unrecorded agreements, liens,
easements or encumbrances which may affect title to the Property; from and after
the Escrow Opening Date Seller shall not enter into, grant or suffer to be
created any further lien or encumbrance against or affecting the Property
without Buyer's consent.
(c)
Binding Agreement. Upon Seller's execution of this Agreement, this Agreement
shall be binding and enforceable against Seller in accordance with its
terms.
(d) No
Other Agreements. Seller has not entered into any contract, agreement or
undertaking with any other person or entity for the sale, transfer, conveyance,
exchange or other conveyance of the Property.
(e)
Bankruptcy. Seller has not made a general assignment for the benefit of
creditors, filed any voluntary petition in bankruptcy or received notice of the
filing of any involuntary petition in bankruptcy against Seller.
(f)
Environmental Matters. To Seller's actual knowledge, the Property has never been
utilized for the treatment, storage, or disposal of hazardous substances,
materials, wastes or petroleum products, and no hazardous substance, material,
waste, or petroleum products have ever been brought upon, kept or located on the
Property, other than in compliance with applicable law. During Seller's
ownership of the Property, Seller has not received any notice of any violations
of any local, state, or federal statutes or laws governing the generation,
treatment, storage, disposal or clean-up of hazardous substances. For purposes
of this Section g(f), "Seller's actual knowledge" is limited to the actual
knowledge (not implied or constructive and without inquiry or investigation) of
RKD Holdings, L.L.C.
(g)
Litigation. To the best of Seller's knowledge, there is no action, suit,
proceeding or investigation pending, nor to Seller's knowledge threatened,
before any agency, court, or other governmental authority which relates to the
Seller or the ownership, maintenance, or operation of the Property.
(h).
Possessory Rights. To Seller's actual knowledge, no person except Seller has any
right to possession of the Property or any portion thereof.
(i)
Special Assessment or Condemnation. Seller has not received notice of, and has
no actual knowledge of, any pending or current special assessments against, or
any pending or threatened condemnation affecting, all or any part of the
Property.
(j)
Governmental Authorities. To Seller's actual knowledge, the Property is in
compliance with all applicable laws, ordinances, rules, regulations and
requirements of all governmental authorities having jurisdiction, including
without limitation, those pertaining to zoning, land use, subdivision, building,
safety, fire and health. In addition, Seller has received no notice of any
failure of the Seller to comply with any applicable governmental requirements in
respect of the use, occupation and construction of the Property, including but
not limited to environmental, zoning, platting and other land use requirements
which have not been heretofore corrected to the satisfaction of the appropriate
governmental authority, and Seller has received no notice of and has no
knowledge of any violations or investigations relating to any such governmental
requirement.
(k) HVAC.
To seller's actual knowledge, the heating, ventilation, air conditioning,
mechanical, electrical and other systems and equipment forming a part of or used
in connection with the Property are operative and in good working condition and
in compliance with all applicable laws, ordinances, regulations and
requirements.
(I)
Utilities. To Seller's actual knowledge, all water, sewer, gas, electric,
telephone and drainage facilities and all other utilities required by law or by
the normal use and operation of the Property are and at the time of Closing will
be installed to the property lines of the Property, are and at the time of
Closing will be connected and operating pursuant to valid permits, and are and
at the time of Closing will be adequate to service the Property and to permit
full compliance with all requirements of law and normal usage of the Property.
To Seller's actual knowledge, all public utilities required for the operation of
the Property either enter the Property through adjoining public streets, or if
they pass through adjoining private land do so in accordance with valid public
easements or private easements which will inure to the benefit of Buyer at
Closing and thereafter.
(m)
Foreign Person. Seller is not a foreign person as defined in Section 1445(f) (3)
of the Internal Revenue Code of 1986, as amended.
The truth
of the foregoing representations and warranties in all material respects on and
as of the date hereof and on and as of the Close of Escrow shall be a condition
precedent to Buyer's obligations to purchase the Property and otherwise perform
under this Agreement. All representations and warranties by seller set forth in
this Agreement shall survive the execution and delivery of this Agreement, the
recordation of the Grant, Bargain and Sale Deed and the Close of Escrow for a
period of one (1) year. All claims for breach of representation and warranty
shall be made in writing prior to the expiration of the one-year period or such
claims shall be deemed waived.
No
examination or investigation of the Property by or on behalf of the Buyer prior
to the Closing shall in any way modify, affect, or diminish Seller's obligation
under the representations, warranties, covenants, and agreements contained in
this Agreement.
10.
Buyer's Representations and Warranties. Buyer represents warrants and
acknowledges to Seller that:
(a)
Standing. Buyer has full power and authority to enter into this Agreement and
complete the sale of the Property.
(b)
Binding Agreement. Upon Buyer's execution of this Agreement, this Agreement
shall be binding and enforceable against Buyer in accordance with its
terms.
(c) No
Further Warranties; "AS IS". Except as specifically set forth above in Section
9, Buyer agrees that Buyer is not relying on any representations, warranties,
inducements, promises, agreements, assurances or statements, oral or written,
made by Seller or made by any other party on Seller's behalf, as to (without
limitation) the condition of the Property, any restrictions related to the
Property, or the suitability of the Property for any purpose
whatsoever.
As a
material inducement to Seller to enter into this Agreement and convey the
Property to Buyer, Buyer agrees and acknowledges that, except as specifically
set forth above in Section 9, the Property is sold in its existing condition,
"AS IS, WHERE-IS, WITH ALL FAULTS", and Buyer hereby acknowledges and agrees,
and understands that except as specifically set forth above in Section 9, Seller
is making no warranties, expressed or implied, regarding the Property. If this
Agreement required Seller to make any representations or warranties other than
those specifically set forth above in Section 9, seller would have required a
materially higher Purchase Price for the Property or refused to sell the
Property.
This
Section 1D(c) will
survive the Closing.
By
initialing this provision, Buyer acknowledges that this provision has been read
and fully understood and that Buyer has had the opportunity to seek advice from
his or her counsel about its meaning and significance as part of this Agreement
and the transaction
_________
Buyer’s
Initials
The truth
of the foregoing representations and warranties in all material respects on and
as of the date hereof and on and as of the Close of Escrow shall be a condition
precedent to Seller's obligations to sell the Property and otherwise perform
under this Agreement. All representations and warranties by Buyer set forth in
this Agreement shall survive the execution and delivery of this Agreement and
the Close of Escrow for a period of one (1) year. All claims for breach of
representation and warranty shall be made in writing prior to the expiration of
such one-year period or shall be deemed waived.
11.
Assignability. Buyer shall have the right to assign its rights hereunder to one
or more nominees, provided that any such nominees are first approved by Seller
(which approval shall not be unreasonably withheld, conditioned or delayed) and
shall assume all of the obligations contained herein.
12. Time
of Essence and Escrow Cancellation. Time is of the essence of every provision of
this Agreement in which time is an element. If the date for any performance
under this Agreement is a weekend or holiday in the State of Nevada, then
performance shall be due on the next business day.
13.
Default and Remedies.
a)
Seller's Failure. If Seller shall fail to fully and timely perform any of its
obligations hereunder, or if any warranty or representation made by Seller
herein is not true and correct in all material respects, and such failure shall
continue for five (5) business days following notice thereof in writing from
Buyer, then Buyer may either, (i) terminate this Agreement and the Deposit shall
be returned to Buyer and Buyer shall be entitled to collect from Seller all
costs and expenses incurred by Buyer in connection with the transaction
contemplated by this Agreement (and specifically excluding any consequential or
punitive damages or lost profits), or, (ii) seek specific performance of this
Agreement.
(b)
Buyer's Failure. If Buyer shall fail to fully and timely perform any of its
obligations hereunder, or if any warranty or representation made by Buyer herein
is not true and correct in all material respects, and such failure shall
continue for five (5) business days following notice thereof in writing from
Seller, as Seller's sole and exclusive remedy in such event, then Seller shall
be entitled to the Deposit as liquidated damages for Buyer's failure to complete
the purchase, it being acknowledged by Buyer and Seller that the damages which
Seller would sustain would be impracticable or extremely difficult to fix or
determine. Buyer and Seller agree that Seller's economic detriment resulting
from the removal of the Property from the real estate market and other
activities in furtherance of this Agreement would be extremely difficult to
ascertain. Accordingly, the parties acknowledge that the actual damages caused
Seller by the failure to close Escrow would be extremely difficult to establish.
In addition, Buyer desires to have a limitation on its potential liability to
Seller if this transaction fails to close. Therefore, in order to induce Seller
to waive all other remedies Seller may have in the event of breach by Buyer of
its obligations hereunder, Buyer and Seller have agreed to the concept of
liquidated damages as set forth herein, with the amount and timing of the
payment having been the subject of negotiation between the parties. By placing
their initials below, Buyer and Seller acknowledge that they have read,
understood, and agreed to be bound by this provision.
____________ ____________
Seller’s
Initials Buyer’s
Initials
14.
Further Documents and Acts. Each of the parties hereto agrees to reasonably
cooperate in good faith with the other, and to execute and deliver such further
documents and perform such other acts as may be reasonably necessary or
appropriate to consummate and carry into effect the transaction contemplated
under this Agreement.
15.
Eminent Domain Proceedings; Damage.
(a) If at
any time during the Escrow period the Property or any portion thereof is
threatened with condemnation, or legal proceedings are commenced under the power
of eminent domain, Seller shall forthwith notify Buyer in writing. Thereupon, if
(i) a substantial portion (i.e. at least ten (10) percent). of the Property is
so threatened, or (ii) a portion of the Property is so threatened that, in
Buyer's reasonable judgment, will materially or adversely affect Buyer's
intended use, occupancy or enjoyment of the Property, Buyer may terminate this
Agreement and cancel Escrow by giving written notice to Escrowholder and Seller.
If there be no such termination, then each of the parties shall cooperate with
the other during the course of any such proceedings or threat thereof, and shall
furnish to the other full copies of all pleadings, correspondence, documents,
and other data concerning the same. Seller shall make all commercially
reasonable efforts to postpone any definitive proceedings, including, without
limitation, a trial on the merits of the case, until after the Closing. Buyer at
its expense shall be in control of any such condemnation proceedings or threat
thereof during the Escrow period, but shall deal through Seller or consult with
Seller prior to making any substantial negotiations or communications with
public agencies or any substantial decisions affecting such proceedings or
threat thereof. Any award by a court shall be paid to Buyer and Buyer shall be
entitled to retain all condemnation proceeds in the event that Close of Escrow
occurs.
(b) If at
any time during the Escrow period the Property or any portion thereof is damaged
or destroyed, Seller shall forthwith notify Buyer in writing. Thereupon, if (i)
a substantial portion (Le., at least ten (10) percent) of the Property is so
damaged or destroyed, or (ii) any portion of the Property is so damaged or
destroyed that, in Buyer's reasonable judgment, will materially or adversely
affect Buyer's intended use, occupancy or enjoyment of the Property, Buyer may
terminate this Agreement and cancel Escrow by giving written notice to
Escrowholder and Seller. If Buyer does not give such notice, then this Agreement
shall remain in full force and effect; provided, however, Buyer shall be
entitled to a credit against the Purchase Price equal to the lesser of (i) the
cost to repair the damage or destruction, and (ii) the amount of the deductible
under Seller's casualty insurance policy (provided that Seller shall assign to
Buyer all insurance proceeds payable with respect to such damage under Seller's
casualty insurance policy). If Buyer and Seller cannot agree as to the cost of
repair, then the same shall be determined by a licensed and bonded neutral
general contractor (who has had no personal or business relationship with either
Seller or Buyer), with at least five (5) years of full time experience in the
construction and/or reconstruction of properties similar to the Property,
appointed by two (2) other licensed and bonded general contractors nominated one
(1) each by Seller and Buyer. The expense of the neutral general contractor
shall be borne equally by Buyer and Seller. If Buyer elects to proceed to close
Escrow under this Section, all casualty insurance proceeds from Seller's
casualty insurance policy shall be assigned by Seller to Buyer at the Closing
and forwarded to Buyer immediately upon receipt thereof by Seller.
16.
Broker's Commissions. The parties acknowledge that the sale of the Property is
subject to a brokerage commission of three percent (3%) of the Purchase Price.
Seller shall be solely responsible for the payment of said brokerage commission.
Said commission shall be payable in full upon Close of Escrow one-half (1/2) to
Xxxxx & Xxxxxxx, Seller's Representative, and one-half (1/2) to Century 21
Miner Realty, Buyer's Representative. Escrowholder is hereby instructed to make
such payments by Seller at Close of Escrow out of the sale
proceeds.
Except as
expressly set forth above, Seller and Buyer each represent to the other that, to
the best of their knowledge, no brokerage commission, finder's fee or other
compensation of any kind is due or owing to any person or entity in connection
with the transactions covered by this Agreement. Each party agrees to and does
hereby indemnify and hold the other harmless from and against any and all costs,
liabilities, losses, damages, claims, causes of action or proceedings which may
result from any broker, agent or finder, licensees or otherwise, claiming
through, under or by reason of the conduct of the indemnifying party in
connection with this transaction.
17.
Waiver. Consent and Remedies. Either party may specifically and expressly waive
in writing any portion of this Agreement or any breach thereof, but no such
waiver shall constitute a further or continuing waiver of any preceding or
succeeding breach of the same or any other provision. The consent by one party
to any act by the other for which such consent was required shall not be deemed
to imply consent or waiver of the necessity of obtaining such consent for the
same or any similar acts in the future. All rights, remedies, undertakings,
obligations, options, covenants, conditions, and agreements contained in this
Agreement shall be cumulative and no one of them shall be exclusive of the
other.
18.
Attorney's Fees. In the event of any declaratory or other legal or equitable
action instituted between Seller, Buyer and/or Escrowholder in connection with
this Agreement, then as between Buyer and Seller the prevailing party shall be
entitled to recover from the losing party all of its or his costs and expenses
including but not limited to court costs and reasonable attorney's
fees.
19.
Notices. Any notice, request, demand, consent, approval or other communication
required or permitted hereunder or by law shall be validly given or made only if
in writing, addressed to the parties at the addresses set forth below, and
delivered by personal service, by Federal Express or other reputable overnight
delivery service, or by facsimile transmission:
If to
Seller: RKD
Holdings, L.L.C.
0000
Xxxxxx Xxxxx
Xxxxxx,
Xxxxxx 00000
Attn: Xxxxxxx
Xxxx
Telephone
No.: ______________
Facsimile
No. : ______________
If to
Buyer: GameTech
International Inc.
000
Xxxxxxxx Xxxx
Xxxx, XX
00000
Attn: Xxxx
Xxxxxx
Telephone
No.: ______________
Facsimile
No. : ______________
With copy
to: Xxxxx
Xxxxxx
000 Xxxx
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxx,
Xxxxxx 00000
Attn:
Xxxxxxxxx Xxxxxxx
Telephone
No.: ____________
Facsimile
No.: _____________
With copy
to: Century
21 Miner Realty
0000 X.
Xxxxxxxx Xxxxxx
Xxxx, XX
00000
Attn:
Skip Xxxx
Telephone
No.: ____________
Facsimile
No.: _____________
Any party
may from time to time, by written notice to the other, designate a different
address which shall be substituted for that specified above. Any such notice
shall be deemed delivered as follows: (a) if personally delivered, the date of
delivery to the address of the person to receive such notice; (b) if sent by
Federal Express or other reputable overnight courier service, the date of
delivery to the address of the person to receive such notice; or (c) if sent by
facsimile transmission, on the business day transmitted to the person to receive
such notice if sent by 5:00 p.m., pacific time, on such business day, and the
next business day if sent after 5:00 p.m., pacific time, or on a day other than
a business day. Any notice sent by facsimile transmission must be confirmed by
sending by Federal Express or other reputable overnight delivery service a copy
of the notice sent by facsimile transmission.
20.
Gender and Number. In this Agreement (unless the context requires otherwise),
the masculine, feminine and neither genders and the singular and the plural
shall be deemed to include one another as appropriate.
21.
Entire Agreement. This Agreement and its exhibits, if any, constitute the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and the final, complete and exclusive expression of the terms and conditions
thereof. All prior agreements, representations, negotiations, and understandings
of the parties hereto, oral or written, express or implied, are hereby
superseded and merged herein.
22.
Captions. The captions used herein are for convenience only and are not a part
of this Agreement and do not in any way limit or amplify the terms and
provisions hereof.
23.
Governing Law. This Agreement and the exhibits attached hereto, if any, have
been negotiated and executed in the State of Nevada and shall be governed and
construed under the laws of the State of Nevada.
24.
Invalidity of Provision. If any provision of this Agreement as applied to either
party or to any circumstance shall be adjudged by a court of competent
jurisdiction to be void or unenforceable for any reason, the same shall in no
way affect (to the maximum extent permissible by law) any other provision of
this Agreement, the application of any such provision under circumstances
different from those adjudicated by the court, or the validity or enforceability
of the Agreement as a whole.
25.
Amendments. No addition to or modification of any provision contained in the
Agreement shall be effective unless fully set forth in writing by both Buyer and
Seller.
26.
Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute but one
and the same instrument. Signatures delivered by facsimile or electronic
transmission are binding for purposes of this Agreement.
27.
Survival of Obligations. In addition to terms which by their express provision
are to survive the Closing, all other terms and provisions which by their nature
are to be performed or be applicable after Closing shall survive the
Closing.
28.
Mediation. If a dispute arises out of or relates to this Agreement or its
breach, the parties agree to first try in good faith to settle the dispute by
voluntary nonbinding mediation before resorting to court action or
litigation. The fees of the mediator will be shared equally between all parties
to the dispute.
29. 1031
Tax-Deferred Exchange. Buyer agrees to reasonably cooperate with Seller in
effecting a tax-deferred like kind exchange with respect to Seller's sale of the
Property; provided, however, in no event shall Buyer be required to incur any
additional costs or risk of ownership, title or conveyance in connection with
said cooperation, nor shall Close of Escrow be delayed as a result of Buyer's
cooperation or Seller's 1031 tax-deferred exchange transaction. The exchange
transaction shall be structured by Seller such that the Buyer shall have no
obligation to acquire or enter into the chain of title to any property other
than the Property. Buyer's sole obligation in connection with the exchange
transaction shall be to review and execute documentation reasonably acceptable
to the Buyer necessary to effectuate the exchange in accordance with the
foregoing and the applicable rules governing such exchanges. Buyer shall not by
this Agreement or acquiescence to the exchange have its rights under this
Agreement modified or diminished in any manner or be responsible for compliance
with or be deemed to have warranted to the exchangor that the exchange in fact
complies with Section 1031 of the IRS Code. Seller shall indemnify and hold
Buyer harmless from and against any and all claims, liabilities, losses,
damages, costs and expenses (including, without limitation, reasonable
attorneys' fees but excluding costs incurred to review the exchange documents)
arising from the exchange transaction (other than what would have been
applicable under this Agreement without the exchange) which indemnification
agreement shall expressly survive the Closing.
30.
Confidentiality. Buyer and Seller agree that, to the extent reasonably
practical, they shall keep the contents of this Agreement confidential and that
no publicity or press release to the general public or otherwise with respect to
this transaction shall be made by either party without the prior written consent
of the other party (which consent may be given or denied in the other party's
sole and absolute discretion), except that Buyer is hereby authorized to prepare
and issue a press release to the general public announcing its purchase of the
Property at the Closing. Otherwise, the confidentiality provisions of this
Section shall survive the Closing.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
|
BUYER
|
SELLER
|
|
GameTech
International, Inc., a Delaware corporation
|
RKD
Holdings, L.L.C. a Nevada limited liability company
|
|
By:__________________________
|
By:
_________________________
|
|
Its:
__________________________
|
Its:
_________________________
|
This
Agreement and the Deposit are accepted this _____ day of _______________,
2009.
|
ESCROW
HOLDER:
Xxxxxxx
Title of Nevada
By:
Name:
Title:
|
