AGREEMENT OF SALE
THIS AGREEMENT OF SALE (hereinafter referred to as
"this Agreement"), made as of this 24th day of November, 1997
(the "Effective Date"), by and between THE MIRAGE CASINO-HOTEL, a
Nevada corporation (the "Mirage"), TREASURE ISLAND CORP., a
Nevada corporation ("Treasure Island"), tenants in common (Mirage
and Treasure Island being hereinafter collectively referred to as
"Seller") and H-S LAS VEGAS ASSOCIATES, a general partnership
consisting of TRIZECHAHN CENTERS, INC., a California corporation
(formerly known as Xxxxxx X. Xxxx, Inc.) and XXXXXX XXXXXX
PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership,
as general partners ("Buyer");
STATEMENT OF BACKGROUND AND PURPOSE
Buyer is the owner, developer and operator of Fashion
Show Mall, a regional shopping center (the "Mall") located in Las
Vegas, Nevada. Seller owns a parcel of land more particularly
described in Exhibit A attached hereto (the "Property") which is
adjacent to the Mall but separated by a private road known as
Fashion Show Drive.
The State of Nevada (the "State") through the Nevada
Department of Transportation ("NDOT") is currently in the process
of constructing a highway project (the "Highway Project") known
as the I-15/Spring Mountain Road Interchange Project which will
affect portions of the Property and the Mall.
Seller and the State have previously entered into a
certain Public Highway Agreement, dated April 8, 1996, as amended
Exhibit 10(lll)
by Public Highway Agreement dated March 31, 1997 (such original
Public Highway Agreement as amended being referred to herein as
the "Public Highway Agreement") providing for certain land
conveyances and other matters affecting the Property in
connection with the Highway Project.
Buyer wishes to purchase the Property from Seller to
use the Property in connection with the expansion of the Mall
(the "Mall Expansion"). In order to accomplish the Mall
Expansion in a manner satisfactory to the State and Buyer, the
State and Buyer have agreed to make certain changes in the
alignment of various road systems located on the Property and the
Mall Property as affected by the Highway Project.
Seller, Buyer and the State wish to have the State
proceed with certain aspects of the construction of the Highway
Project prior to the conveyance of the Property from Seller to
Buyer and Seller has agreed to grant to the State certain
construction easements as hereinafter set forth.
As part of the sale of the Property, Buyer has agreed
to accept an assignment and assumption of all Seller's rights and
obligations under the Public Highway Agreement as the same relate
to the Property, as more specifically set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the mutual
covenants and agreements of the parties hereto, as are
hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby
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acknowledged by each party hereto, the parties hereto do hereby
covenant and agree as follows:
Section 1. Purchase and Sale of Property: Seller
hereby agrees to sell to Buyer and Buyer hereby agrees to
purchase from Seller, upon the terms and subject to the
conditions which are hereinafter set forth, a certain tract of
land in Xxxxx County, Nevada, containing 16.2 acres,
which parcel of land is legally described in
Exhibit A attached hereto. Said tract of
land, together with any and all improvements
thereon, outbuildings and fixtures, and any
and all rights, alleys, ways, waters,
easements, rights of way, privileges,
appurtenances and advantages, to the same
belonging or in any way appertaining,
including, but not limited to, easements and
rights to offsite storm water retention/
detention and appurtenances located on
adjacent property to be retained by Seller
(all of the foregoing real property,
improvements and appurtenances being
hereinafter together called "the Property").
The Property shall not include the light poles,
fixtures, equipment and fencing currently attached to the
Property which shall be removed by Seller as provided in Section
7.2 below.
Section 2. Survey: Seller has previously delivered to
Buyer a survey acceptable to Buyer which Survey conclusively
establishes the acreage of the Property as 16.2 acres.
Section 3. Purchase Price: Buyer shall pay to Seller
as the purchase price for the Property (hereinafter referred to
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as the "Purchase Price"), an amount equal to Twenty-Four Million
Three Hundred Thousand Dollars ($24,300,000).
3.1. Payment of Purchase Price: At the Closing, Buyer
shall deliver to Nevada Title Company ("Escrow Agent") the entire
Purchase Price, less the Deposit, in cash or other immediately
available funds.
3.2. Xxxxxxx Money Deposit:
3.2.1. Xxxxxxx Money Deposit. Within one (1) business
day following the Effective Date, Buyer shall deposit with Escrow
Agent an xxxxxxx money deposit of Two Hundred Fifty Thousand
Dollars ($250,000.00) (the "Deposit"). The Deposit shall be
invested in an interest-bearing account reasonably acceptable to
Buyer and Seller and all interest earned thereon shall become
part of the Deposit. The Deposit shall be applied to the
Purchase Price at the Closing.
Section 4. Closing, Title and Possession:
4.1. Closing: Escrow will close for the Property (the
"Closing") on March 31, 1998 (the "Closing Date") unless Buyer
elects to terminate pursuant to Section 5.1.2. or the parties
agree to extend the Closing Date pursuant to Section 4.6 below.
In no event shall Closing occur later than December 31, 1998
("Outside Closing Date").
The Closing shall take place at ten o'clock a.m., in
the offices of Nevada Title Company in Las Vegas, Nevada or at
such other time and place as Buyer and Seller may agree upon in
writing. The Closing shall be conducted by the Escrow Agent and
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shall follow customary procedures in the escrowing of funds and
documents, recording of documents and disbursement of funds to
Seller and other parties. At Buyer's option, a pre-closing
conference shall be held two business days preceding the Closing
Date at which time all documents will be executed and delivered
in escrow to the Escrow Agent so that funding by Buyer, updating
of the title report, recording of the deed, release of the
documents from escrow, and disbursement of funds to Seller and
other parties in accordance with the provisions of this Agreement
are the only events occurring on the Closing Date.
4.2. Title: Seller has delivered to Buyer a
preliminary title report dated February 18, 1997, referenced as
No. 97-02-0637 RMG for the Property prepared by Nevada Title
Company (the "Title Company"). Buyer acknowledges receipt of the
title report and agrees that the title exceptions disclosed in
Schedule B of the title report and listed on Exhibit C hereto
(the "Approved Exceptions") are acceptable to Buyer. At the
Closing, Seller shall convey to Buyer, or its designee or
designees, good and marketable title to the Property in fee
simple, by grant, bargain and sale deed. Title to the Property
to be conveyed to Buyer shall be free and clear of all liens,
encumbrances, easements, covenants, reservations, restrictions,
encroachments and defects of title of any nature, excepting only
the Approved Exceptions ("Clear Title"). At the Closing Seller
shall deliver to Buyer, at Seller's sole expense, a CLTA owner's
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policy of title insurance issued by the Title Company showing
Clear Title and in an amount not less than the Purchase Price.
The parties acknowledge that the Property is subject to
a Lease dated August 8, 1990 between the Mirage and Donrey
Outdoor Advertising Co. (the "Billboard Lease"). At Closing,
Seller shall deliver to Buyer an estoppel certificate from Donrey
Outdoor Advertising Co. ("Donrey") pursuant to which Donrey shall
acknowledge Buyer's right to terminate the Billboard Lease as
provided in Paragraph 3 of the Addendum to Lease dated May 8,
1997.
At the Closing, Seller shall execute such form of
"GAP", possession, and "no-lien" affidavits as shall be
reasonably acceptable to the Title Company for purposes of
deleting the related "standard exceptions" to the policy of title
insurance, and an affidavit in form reasonably acceptable to
Seller that Seller is not a "foreign person" as defined in
Section 1445 of the Internal Revenue Code, and such other
documents, certificates and instruments as are reasonably
necessary to effectuate the transfer to Buyer of all of Seller's
right, title and interest in the Property and all land use
permits, environmental permits and development rights associated
with the Property. Seller hereby agrees that, for so long as
this Agreement remains in effect except as set forth in Section
7.3, Seller shall not further encumber or permit or suffer to be
further encumbered the title to any or all of the Property by any
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lien, easement of record or in fact, without obtaining the
Buyer's prior, express written consent thereto.
Seller at its expense shall take all actions, if
necessary, needed to convey Clear Title to the Property to Buyer
in accordance with and without violating any applicable state,
local or other statute, ordinance or regulation governing the
subdivision of land, and, if necessary for conveyancing, the
Property shall constitute a separate subdivided lot for purposes
thereof; however, if the Buyer designates that the Seller convey
separate parcels to separate designees of the Buyer (e.g. certain
portions to the Buyer and other portions to department store
operators or others), the Buyer at its expense shall be
responsible for additional costs resulting from multiple
conveyances, including, without limitation, any platting,
subdivision, or other governmental approvals as may be required
in connection with such separate conveyances, provided that the
Seller shall cooperate in good faith with the Buyer in satisfying
any such platting, subdivision and other governmental approvals.
In the event Seller is unable to convey Clear Title to the
Property in all respects as provided in this Subsection 4.2,
Buyer shall have the option of: (i) taking such title as Seller
can give without abatement in the Purchase Price except for the
amount of any lien or encumbrance which solely encumbers the
Property, and the costs for the satisfaction thereof; or (ii)
requiring Seller to cure any such defect at Seller's cost and
expense within a reasonable period of time following notice from
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Buyer to Seller of such defect (provided that Seller shall
commence such cure within twenty (20) days following Buyer's
notice to Seller and shall thereafter diligently pursue such cure
to completion). If Buyer makes an election under clause (ii)
above and Seller in good faith is unable to cure the defect
within a reasonable period of time, then as Buyer's sole remedy,
Buyer shall have the right to rescind this Agreement and to
receive the immediate return of the Deposit.
4.3. Possession and Burden of Risk: At the Closing, Seller
shall deliver to Buyer possession of the Property, free of any and
all tenancies and other rights to its use or occupancy, except for
the Approved Exceptions. Until the Closing, Seller shall bear
the risk of any damage to or destruction of any improvements on
the Property.
4.4. Closing Costs, Taxes and Adjustments:
4.4.1. Closing Costs: At Closing, Buyer will pay (i)
the fees for recording the deed and (ii) one-half (1/2) of the
escrow fee,(collectively, "Buyer's Closing Costs"). Seller will
pay (i) the premium for the owner's title policy, (ii) the real
property transfer tax imposed on the deed pursuant to NRS chapter
375, and (iii) one-half (1/2) of the escrow fee ("Seller's Closing
Costs").
4.4.2. Real Estate Taxes and Special Assessments: Real
estate taxes and any assessments on the Property which have been
approved by Buyer, which are due and payable for the year in
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which the Closing occurs, shall be prorated between Seller and
Buyer to the Closing Date.
Seller represents that it has no knowledge of any new
public improvement project from any governmental assessing
authority, the costs of which project may be assessed against the
Property.
The provisions of this Section 4.4.2 shall survive
Closing.
4.4.3. No Further Adjustments: Except as provided in
Subsections 4.4.1 and 4.4.2 there shall be no adjustment or
proration of costs or expenses related to the Property.
4.5. Additional Documents. At Closing, Buyer and
Seller shall also execute the Assignment Agreement as described
in Section 7.1 hereof and the Limited License and Right of Entry
Agreement described in Section 7.2 hereof.
4.6. Construction of Garage. Seller and Buyer
acknowledge that Seller intends to proceed with the construction
of a parking garage (the "Garage") to provide parking spaces for
Seller to replace the surface level parking spaces currently
located on the Property. If the Garage is not completed by the
Closing Date but Buyer requires immediate possession of the
Property to begin construction or to fulfil any contractual
obligation, then the Closing shall occur on the Closing Date, but
Buyer shall negotiate in good faith with Seller to provide
parking spaces for Seller's use either on the Property or on
other property owned by Buyer. If the Garage is not completed by
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the Closing Date but Buyer does not require immediate possession
of the Property, then the Closing Date shall be extended until
the earlier of (i) the completion of the Garage or (ii) the date
Buyer requires possession of the Property. Seller shall not be
obligated to pay Buyer for the use of such spaces other than for
Buyer's out-of-pocket costs incurred in providing such spaces.
Seller's right to use any such spaces shall continue until the
Garage is completed.
Section 5. Conditions Precedent to Closing.
5.1. Conditions Precedent: Buyer's obligation
hereunder to complete the Closing shall be conditioned upon the
satisfaction, in a manner acceptable to Buyer in Buyer's sole and
absolute discretion, or the Buyer's written waiver, of each of
the conditions hereinafter set forth (the "Conditions Precedent")
within the time periods hereinafter set forth.
5.1.1. NDOT Agreements. Buyer and NDOT intend,
simultaneously with the execution of this Agreement to enter into
an agreement (the "NDOT Agreement"), providing for a revised
realignment of Fashion Show Drive as shown on Exhibit "B",
attached hereto. It shall be a condition to Buyer's obligation
to close that NDOT not be in material default under the NDOT
Agreement.
5.1.2. Feasibility Analysis.
(a) Pursuant to that certain letter of intent dated
February 3, 1997 between Seller and Buyer (the "Letter of
Intent") Buyer has begun a feasibility analysis of the Property.
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Buyer shall have the right to continue to enter upon the Property
and to perform such soil and engineering tests, feasibility
studies, and other physical examination of the Property as Buyer
shall deem necessary to determine if the Property is physically
suitable for Buyer's intended Mall Expansion. Buyer shall have
the right to continue its feasibility analysis until 90 days
after the Effective Date. Buyer shall have the right to
terminate this Agreement if, on or before (same date as above)
Buyer delivers written notice (the "Termination Notice") to
Seller of its intention to terminate the Agreement. Buyer may
only deliver the Termination Notice if Buyer discovers any
conditions with respect to the Property which, in Buyer's sole
and absolute judgment, would materially adversely affect the
development or financing of the Property in connection with the
expansion of Mall Expansion. If Buyer delivers the Termination
Notice on or before (same date as above), then this Agreement
shall be automatically terminated and the Deposit shall be
returned to Buyer. Notwithstanding the foregoing, Buyer
acknowledges that it has completed its environmental analysis of
the Property and has determined that the Property is acceptable
with regard to the presence of any hazardous or toxic materials.
(b) Buyer shall coordinate the entry of its agents or
employees onto the Property with Seller's representatives. Prior
to any such entry by Buyer, its agents or employees on the
Property, Buyer will provide Seller with a certificate of Buyer's
liability insurance policy designating Seller as an additional
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insured, and such certificate will evidence coverage in the
amount of $2,000,000 to protect Seller against any loss, damage,
or injury which may occur as a result of Buyer's use of the
Property. Buyer hereby agrees to indemnify, defend and hold
Seller, its officers, directors, employees, agents and
affiliates, and the Property free and harmless from and against
all liens, demands, liabilities, causes of action, judgments,
costs, claims, damages, suits, losses, and expenses of any
nature, kind or description, or any combination thereof,
including attorneys' fees as they are incurred, arising from such
activities of Buyer, its agents and employees, upon the Property,
and from all mechanic's, materialmen's and other liens resulting
from any such conduct. Notwithstanding anything in this
Agreement to the contrary, Buyer's obligations under this
Subsection (b) shall survive the termination of or Closing under
this Agreement.
5.1.3. Representations; No Changed Conditions: At
Closing, receipt by Buyer of evidence satisfactory to Buyer
(e.g. certificates from Seller) that Seller's representations and
warranties set forth in this Agreement remain true and correct;
and receipt of evidence satisfactory to Buyer that there have
been no changes in facts or circumstances (e.g., a change with
respect to title, physical characteristics or zoning) which would
render any Condition Precedent unfulfilled as of the Closing Date
(it being the intent hereof that all Conditions Precedent shall
remain satisfied as of the Closing Date).
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5.2. Satisfaction of Conditions Precedent: Buyer
(and, where applicable, Seller) shall proceed in good faith with
reasonable diligence to satisfy the Conditions Precedent. To the
extent prudent and practicable, Buyer further shall notify Seller
periodically as and when Conditions Precedent have been met.
All costs of satisfying the Conditions Precedent shall,
unless otherwise specified herein, be borne solely by Buyer;
provided, however, Seller shall render such cooperation and
assistance, without payment of money, as Buyer shall reasonably
request in connection with satisfaction of the Conditions
Precedent.
Section 6. Representations:
6.1. Representations of Seller: To induce Buyer to
enter into this Agreement, Seller hereby represents and warrants
to Buyer, each of which representations and warranties shall
survive the Closing, that, on the date hereof and on the Closing
Date:
6.1.1. Title: The title to the Property is held in
fee simple by Seller and is subject to no tenancy or occupancy
which will remain in effect at or after Closing except as
expressly provided for herein.
6.1.2. Condemnation: Except for the matters disclosed
in the Public Highway Agreement Seller has no actual knowledge
of, and has not received any actual formal or informal notice of,
any threatened or pending condemnation proceeding or other
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litigation relating to or otherwise affecting all or any part of
the Property.
6.1.3. Waste Disposal on the Property: Seller has not
used, or permitted to be used, Hazardous Materials on, from or
affecting the Property in any manner which violates federal,
state or local law, ordinances, rules, regulations or policies
governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production, or disposal of
Hazardous Materials, nor (to the best of Seller's knowledge) have
any Hazardous Materials been disposed of by Seller on the
Property. As used herein, the term "Hazardous Materials" means
(i) any substance defined as a "hazardous substance" under the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. 9601 et seq., as amended, (ii) petroleum,
petroleum products, natural gas, natural gas liquids, liquefied
natural gas, and synthetic gas and (iii) any other substance or
material deemed to be hazardous, dangerous, toxic, or a pollutant
under any federal, state or local law, code, ordinance or
regulation.
6.1.4. No Contractual Obligations: Other than the
Public Highway Agreement, the Billboard Lease and this Agreement,
there are no other options, contracts, agreements or
understandings presently existing for the sale of all or a
portion of the Property. There are no outstanding contracts for
the performance of any work upon or with respect to the Property,
and Seller will not enter into any contracts or agreements which
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could give rise to any mechanic's or materialmen's liens against
the Property or any portion thereof, without Buyer's prior
written consent, such consent not to be unreasonably withheld or
delayed. At Closing Seller shall execute and deliver such
affidavits or other instruments as the Title Company may
customarily require to insure that title at Closing is not
subject to any mechanic's or materialmen's claims (or to the
right of any person to obtain the same on account of work done or
materials supplied before Closing) or to the lien of any judgment
obtained against Seller.
6.1.5. Persons Constituting "Seller": The entities
described herein as constituting "Seller" are all of the persons
or entities having any legal or beneficial ownership interest in
the Property.
6.2. Mutual Representations: To induce each other to
enter into this Agreement, each party hereto hereby represents to
the other that it has been duly authorized and empowered to enter
into this Agreement and to perform fully its obligations
hereunder, that this Agreement constitutes a valid, binding and
enforceable obligation of such party and, except as provided
herein, no further approvals are required to be obtained from any
court, governmental agency or other third party in order for the
obligations of such party to be fully effective.
6.3. Continuation of Representations: At the Closing,
Buyer and Seller each shall be deemed to have represented and
warranted to the other that its respective representations and
15
warranties are true and accurate as of the Closing, which
representations and warranties, as well as the respective rights
and obligations of such parties under the provisions of this
Section, shall survive the Closing.
Section 7. Additional Agreements:
7.1. At the Closing, Buyer and Seller shall enter into
an Assignment Agreement in the form of Exhibit D attached hereto
relating to the assignment to Buyer of Seller's right, title and
interest in the Public Highway Agreement.
7.2. At the Closing, Buyer and Seller shall enter into
a Limited License and Right of Entry Agreement in the form
attached hereto as Exhibit E which shall permit Seller to enter
onto the Property after the Closing to remove light poles,
fixtures, equipment and fencing which is currently located on the
Property.
7.3. Grant of Temporary Easements: Seller and Buyer
agree that NDOT may proceed with construction of the Highway
Project on portions of the Property and other property owned by
Seller prior to the Closing. Such construction shall include,
without limitation, the following described work, all of which is
shown on the plan attached hereto as Exhibit B.
(i) The construction of a temporary bypass for
Spring Mountain Road.
(ii) The widening of the north edge of
Industrial Road including the relocation of
utility lines within the road right-of-way.
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(iii) The construction of Fashion Show Lane
between Industrial Road to connect with Dio
Drive at existing Fashion Show Drive.
Seller hereby agrees, without additional cost or
expense to NDOT or Buyer, to grant to NDOT and/or such parties as
NDOT shall designate, such temporary construction easements,
rights of entry or other agreements as NDOT shall reasonably
request in order to perform the foregoing construction. Buyer
agrees that it shall take title to the Property subject to any
such easements or agreements.
7.4. Confidentiality: Buyer shall maintain
confidential and secret and shall not divulge, disclose or use,
any information obtained or created by Buyer as a result of its
investigations on the Property or of the books and records of
Seller to the extent such information is not generally known to
the public except in connection with Buyer's evaluation of the
property, Buyer's efforts to finance Mall Expansion, Buyer's
discussions with governmental officials for purposes of
completing due diligence, and except to employees, agents and
consultants of Buyer actively involved with Buyer in the
development of expansion of Mall Expansion and who agree to the
foregoing confidentiality provisions. In the event either Buyer
or Seller terminates this Agreement, or upon the Closing Buyer
shall promptly deliver to Seller, at no cost to Seller, all
tangible forms of any information provided to Buyer by Seller
regarding Seller's business or the Property.
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Section 8. Condemnation: If before the Closing any of
the Property is taken by condemnation or the exercise of any
power of eminent domain, or if any formal notice of such a
condemnation is issued to Seller, other than the transactions
contemplated under Section 5.1.1 hereof, Seller shall promptly
notify Buyer thereof; and if, in Buyer's reasonable
determination, such a condemnation would adversely affect the
development of the Mall in any material respect, Buyer may, not
later than the tenth (10th) day after receiving such notice,
terminate this Agreement by giving Seller written notice thereof,
in which event the Deposit shall be returned to Buyer and the
parties hereto shall thereafter have no liability to each other
hereunder, other than Buyer's liability, if any, accrued under
the provisions of Sections 5.1.2 and 7.4, which shall survive
such termination. If Seller gives such notice to Buyer and Buyer
does not terminate this Agreement, (a) the Purchase Price shall
not be reduced, but at the Closing Seller shall (i) pay to Buyer
any award made for such condemnation which is received by Seller
before the Closing, and (ii) assign to Buyer all of Seller's
right, title and interest in and to any award made for such
condemnation after the Closing, and (b) Buyer may after the
Closing receive all of the proceeds of such condemnation and
contest, in Seller's and/or Buyer's names, the validity of such
condemnation and/or the amount of the proceeds offered or awarded
therein, and (c) so long as this Agreement remains in effect
Buyer shall have the right to participate in any such
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condemnation proceeding, and the Seller shall not enter into any
agreement settling such condemnation proceeding without Buyer's
prior written consent, which shall not be unreasonably withheld
or delayed.
Section 9. Default:
9.1. Buyer's Default: If Buyer shall default in the
performance of its obligation to pay the Purchase Price at the
Closing hereunder, Seller shall be entitled, as its sole and
exclusive remedy on account of such default, after such
declaration of default, to terminate this Agreement and retain
the Deposit as liquidated damages, and upon such termination, the
parties shall thereafter have no further obligation to each other
hereunder, except for the Buyer's liability, if any, accrued
under the provisions of Sections 5.1.2 and 7.4, which shall
survive such termination. The parties hereto hereby agree that
in the event of such a default by the Buyer, the actual damages
thereby incurred by the Seller would be difficult to measure, and
that the Seller's retention of the Deposit would in such
circumstances represent reasonable compensation to the Seller on
account thereof.
9.2. Seller's Default: If Seller shall default in the
performance of its obligation to convey the Property to Buyer at
the Closing hereunder, the Buyer shall be entitled after such
declaration of default to (i) seek specific performance and/or
other injunctive relief, or (ii) terminate this Agreement, in
which event the Deposit shall immediately be returned to the
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Buyer, whereupon this Agreement shall automatically terminate and
the parties hereto shall thereafter have no further obligation
hereunder, except for the Buyer's liability, if any, under the
provisions of Sections 5.1.2 and Section 7.4, which shall survive
such termination. Notwithstanding the foregoing, in the event
the Seller defaults in its obligation to convey the Property at
Closing or commits a default hereunder intentionally or in bad
faith, and Buyer elects to terminate the Agreement as provided in
(ii) above, Buyer shall be entitled to receive liquidated damages
from Seller in the amount of $250,000.
9.3. Notice and Opportunity to Cure: Anything
contained in the foregoing provisions of this Section to the
contrary notwithstanding, no party hereto shall be entitled to
exercise any right or remedy hereunder, or at law or in equity,
on account of any default by any other party hereto (other than a
failure by such party to complete the Closing in accordance with
the provisions of this Agreement) unless it gives the defaulting
party written notice of its intention to take such action at
least ten (10) business days prior thereto, and unless during
such period the defaulting party has not (i) cured such default,
or (ii) (if such default is not a failure to pay money and is not
reasonably capable of being cured within such period) commenced
curing such default, and thereafter diligently proceeded to
complete such cure.
Section 10. Notices: Any notice, demand, consent,
approval, request or other communication or document to be
20
provided hereunder to a party hereto (i) shall be in writing;
(ii) shall be (a) sent as certified or registered mail in the
United States mails, postage prepaid, return receipt requested,
or by overnight courier, to the address of such person which is
set forth below or to such other address in the United States of
America as such person may designate from time to time by notice
to the other, or (b) given by hand or other actual delivery to
such person.
If to Seller: Treasure Island Corp.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
If to Buyer: H-S Las Vegas Associates
c/o The Xxxxx Company
00000 Xxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
and to: H-S Las Vegas Associates
c/o TrizecHahn Centers, Inc.
0000 XxXxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
Senior Vice-President and
General Counsel
Section 11. Brokerage Commissions: Each party
warrants and represents to the other that no broker, finder or
other intermediary hired or employed by it is entitled to a
commission, finder's fee or other compensation based upon the
transaction contemplated hereby and each party (the "Indemnitor")
shall indemnify and hold harmless the other party from and
against any and all liens, demands, liabilities, causes of
action, judgments, costs, claims, damages, suits, losses and
21
expenses, or any combination thereof, including attorneys' fees,
of any nature, kind or description, caused by or arising out of
the claim of any broker, finder or other intermediary alleging to
have been employed or hired by the Indemnitor, to a commission,
finder's fee or other compensation based upon the transactions
contemplated hereby.
Section 12. Miscellaneous:
12.1. Effectiveness and Effective Date: This
Agreement shall become effective on and only on its execution and
delivery by each person named herein as a party hereto. The
Effective Date of this Agreement shall be the last date as of
which both parties have fully executed this Agreement.
12.2. Complete Understanding: This Agreement
represents the complete understanding between the parties hereto
as to the subject matter hereof, and supersedes all prior written
or oral negotiations, representations, guaranties, warranties,
promises, statements or agreements between the parties hereto as
to the Property, the condition thereof or any other matter
whatsoever, made or furnished by any real estate broker, agent,
employee or other person representing or purporting to represent
any party hereto. Without limiting the generality of the
foregoing, the parties hereto agree that this Agreement
supersedes the Letter of Intent and that the Letter of Intent is
of no further force and effect whatsoever.
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12.3. Amendment: This Agreement may be amended by and
only by an instrument, in writing, executed and delivered by each
person named herein as a party hereto.
12.4. Waiver: No party hereto shall be deemed to have
waived the exercise of any right which it holds hereunder unless
such waiver is made expressly and in writing (and no delay or
omission by any party hereto in exercising any such right shall
be deemed a waiver of its future exercise). No such waiver made
as to any instance involving the exercise of any such right shall
be deemed a waiver as to any other such instance, or any other
such right.
12.5. Applicable Law: This Agreement shall be given
effect and construed by application of the law of the State of
Nevada.
12.6. Headings: The headings of the Sections,
subsections, paragraphs and subparagraphs hereof are provided
herein only for convenience of reference and shall not be
considered in construing their contents.
12.7. Assigns: This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and
assigns in interest hereunder.
12.8. Severability: No determination by any court,
governmental or administrative entity or otherwise that any
provision of this Agreement or any amendment hereof is invalid or
unenforceable in any instance shall affect the validity or
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enforceability of (a) any other such provision, or (b) such
provision in any circumstance not controlled by such
determination. Each such provision shall be valid and
enforceable to the fullest extent allowed by, and shall be
construed wherever possible as being consistent with, applicable
law.
12.9. Time of Essence: Time is of the essence of this
Agreement.
12.10. Disclaimer of Partnership Status: Nothing in
the provisions of this Agreement shall be deemed in any way to
create between the parties hereto any relationship of
partnership, joint venture or association, and the parties hereto
hereby disclaim the existence of any such relationship.
12.11. Foreign Investment in Real Property Tax Act of
1980: An affidavit in the form attached hereto as Exhibit D
shall be executed by Seller and shall be provided to Buyer at the
Closing.
12.12. Assignment: Buyer may assign its interest in
this Agreement at any time hereafter only with the consent of
Seller, which consent shall not be unreasonably withheld, to a
corporation, partnership, joint venture or other entity which
directly or indirectly is controlled by The Xxxxx Company and/or
TrizecHahn Centers, Inc. ("Affiliate"), and, if such Affiliate
shall assume all of the obligations of Buyer hereunder by an
agreement in form and substance reasonably satisfactory to
Seller, upon such assignment and assumption Buyer shall be
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released from its obligations hereunder. Seller shall not assign
its interest in this Agreement.
IN WITNESS WHEREOF, each party hereto has executed this
Agreement or caused it to be executed on its behalf by its duly
authorized representatives, as of the day and year first above
written.
WITNESS or ATTEST: SELLER:
THE MIRAGE CASINO-HOTEL
XXXXXX XXXXXX By: XXXXX XXXXXXXX
TREASURE ISLAND CORP.
XXXXX XXXXX By: XXXX XXXXXXX
BUYER:
H-S LAS VEGAS ASSOCIATES
By: TRIZECHAHN CENTERS, INC.,
General Partner
XXXX XXXXX By: XXXXXXX X. XXXXXXX
Senior Vice President and
General Counsel
By: XXXXX XXXXXX
Xx. Vice President,
Development
By: XXXXXX XXXXXX PROPERTIES
LIMITED PARTNERSHIP,
General Partner
XXXXX X. XXXXXXXXXX By: THE XXXXXX
XXXXXX CORPORATION,
General Partner
By: XXXXXXX X. XXXXXXX
Vice-President
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