EXHIBIT 10.27
AGREEMENT TO PURCHASE AND SELL
This Agreement to Purchase and Sell is made and entered into
effective as of June 15, 2001, by and between JCC Canal Development, L.L.C., a
Louisiana limited liability company, and 3CP Associates, L.L.C., a Louisiana
limited liability company, on the following terms and conditions.
INTRODUCTION
A. JCC Xxxxxx Development, L.L.C., a Louisiana limited liability
company, and WI Acquisition Corporation, a Delaware corporation, entered into
that certain Agreement to Purchase and Sell (the "Original Agreement"), dated
February 14, 2000, pursuant to which JCC Xxxxxx Development, L.L.C. agreed to
sell to WI Acquisition Corporation the property more fully described therein,
including without limitation Xxx 0XX, Xxxxxx Xxxxxxxxx Xxxxxxxx, Xxxx of New
Orleans, State of Louisiana. WI Acquisition Corporation assigned all of its
right, title and interest in and to the Original Agreement, effective as of
April 17, 2000. By that certain Amendment to Agreement to Purchase and Sell,
dated July 20, 2000, the parties thereto made certain changes to the Original
Agreement, including without limitation recognizing 3CP Associates, L.L.C. as
the successor to WI Acquisition Corporation as the "Purchaser" under the
Original Agreement.
B. At the time of the execution of the Original Agreement and
continuing through the effective date of this Agreement, JCC Canal Development,
L.L.C., an affiliate of JCC Xxxxxx Development, L.L.C., owned Lot 3CP,
notwithstanding the obligation in the Original Agreement of JCC Xxxxxx
Development, L.L.C. to sell Lot 3CP to 3CP Associates, L.L.C.
C. JCC Xxxxxx Development, L.L.C. and 3CP Associates, L.L.C. desire to
terminate the Original Agreement without any claim or liability of either party
as a result thereof. In place of the Original Agreement, JCC Canal Development,
L.L.C. and 3CP Associates, L.L.C. desire to enter into a new agreement pursuant
to which, subject to and in accordance with the terms of this Agreement, JCC
Canal Development, L.L.C. agrees to sell to 3CP Associates, L.L.C. and 3CP
Associates, L.L.C. agrees to purchase from JCC Canal Development, L.L.C. the
Property as more fully described herein.
Article 1
Definitions
Definitions. As used in this Agreement, the following terms
have the meaning herein sot forth:
1.1 "Additional Deposit" means the sum of $300,000.00 together with any
accrued interest thereon.
1.2 "Agreement" means this Agreement for Purchase and Sale.
1.3 "Air Rights Agreement" means that certain Air Rights Agreement,
between Canal Development, L.L.C., a Louisiana limited liability company and
formerly known as CP Development, L.L.C., and Badine Land Limited, a Louisiana
limited partnership, dated December 17, 1998, a true and correct copy of which
was registered on June 9, 1999 in Conveyance Office Instrument # 179867, N.A. #
99-26294.
1.4 "Air Rights Option Agreement" means that certain Option Agreement
between the City of New Orleans and Badine Land, Ltd., registered on July 26,
1999 in Conveyance Office Instrument #182208, N.A, # 99-33282.
1.5 "Business Days" means Monday through Friday inclusive, excluding
national holidays.
1.6 "CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. Sections 9601 et seq.), as
amended.
1.7 "Claim" means any claim, liability, demand, loss, damage,
deficiency, litigation, cause of action, penalty, fine, judgment, defense,
imposition, fee, lien, bonding cost, settlement, disbursement, penalty, cost or
expenses of any and every kind and nature (including without limitation
Litigation Expenses), whether known or unknown, incurred or potential, accrued,
absolute, direct, indirect, contingent or otherwise and whether imposed by
strict liability, and consequential, punitive and exemplary damage claims.
1.8 "Closing" means the closing of the purchase and sale of the
Property pursuant to this Agreement.
1.9 "Closing Date" means the date on which the Closing occurs.
1.10 "Closing Documents" means the documents to be executed by the
Parties at Closing.
1.11 "Closing Effective Date" shall be 12:01 a.m. central standard time
on the date immediately following the Closing Date.
1.12 "Commitment" means an owner's title policy commitment issued by
the Title Company dated no earlier than the Effective Date.
1.13 "Days" refers to calendar days except as used in "Business Days."
1.14 "Default" means a breach of any provision of this Agreement by a
Party.
1.15 "Deposit" means the sum of $300,000.00 together with any accrued
interest thereon.
1.16 "Effective Date" is June 15, 2001.
1.17 "Encumbrances" means any lien, privilege, charge, servitude,
casement, option,
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right of first refusal, conditional sales contract, mortgage, security interest
or encumbrance, including liens, charges, security interests, or encumbrances
securing payment of Claims or payment of charges for labor, materials, supplies,
equipment, rent, or utilities.
1.18 "Environmental Requirements" means all Governmental Regulations
and all other agreements and other restrictions and requirements in effect on or
prior to the Closing Date of any Governmental Authority relating to the
regulation or protection of human health and safety, natural resources,
conservation, the environment, or the storage, treatment, disposal, processing,
release, discharge, emission, use, remediation, transportation, handling, or
other management of industrial, gaseous, liquid or solid waste, hazardous waste,
hazardous or toxic substances or chemicals, or pollutants. The term shall
specifically include, without limitation, the regulations of the federal Public
Health Service and Department of Transportation concerning the transport of
etiologic agents or similar agents, the regulations of the Nuclear Regulatory
Commission concerning radioactive materials and waste, the regulations of the
Occupational Safety and Health Administration, and the following environmental
laws: The Clean Air Act (42 U.S.C.A. Section 1857); the Federal Water Pollution
Control Act (33 U.S.C. Section 1251); the Resource Conservation and Recovery Act
of 1978, (42 U.S.C. Section 6901); the Resource Conservation and Recovery Act of
1976. (42 U.S.C. Section 6901); CERCLA, as amended by the Superfund Amendments
and Reauthorization Act of 1986 (Pub.L. 99-499, 100 Stat. 1613); the Toxic
Substance Control Act (15 U.S.C. Section 2601), the Clean Water Act (33 U.S.C.
Section 1251); the Safe Drinking Water Act (42 U.S.C. Section 30); the
Occupational Safety and Health Act (29 U.S.C. Section 651); the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 135); the
Louisiana Environmental Quality Act (La. R.S. 30:2001); and the Louisiana Air
Quality Regulations (La. C. 33:111.2595) including any amendments or extensions
thereof and any rules, regulations, standards or guidelines issued pursuant to
or promulgated under any of the foregoing.
1.19 "Governmental Authority" means any federal, State, parish,
regional, or local government, political subdivision, any governmental agency,
department, authority, instrumentality, bureau, commission, board, official, or
officer, any court, judge, examiner, or hearing officer, any legislative,
judicial, executive, administrative, or regulatory body or committee or official
thereof or private accrediting body.
1.20 "Governmental Regulation" means laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, writs, injunctions, rules, regulations,
restrictions, permits, plans, authorizations, concessions, investigation
reports, guidelines, and requirements or accreditation standards of any
Governmental Authority.
1.21 "Hazardous Substance" means (a) any "hazardous substance" as
defined in Section 101(14) of CERCLA or any regulations promulgated thereunder;
(b) petroleum and petroleum by-products; (c) asbestos or asbestos-containing
material ("ACM"); (d) polychlorinated biphenyls; (c) urea formaldehyde foam
insulation; or (f) any additional substances or materials which at any time are
classified, defined or considered to be explosives, corrosive, flammable,
infections, radioactive, mutagenic, carcinogenic, pollutants, hazardous or toxic
under any of the Environmental Requirements.
1.22 "Indemnified Party" means the Party entitled to indemnification
pursuant to this Agreement.
1.23 "Inspection Period" shall have the meaning provided in Section
8.1.
1.24 "Indemnifying Party" means the Party obligated to provide
indemnification pursuant to this Agreement.
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1.25 "IRC" means the Internal Revenue Code of 1986, as amended, and any
and all regulations and rulings promulgated thereunder,
1.26 "Litigation Expenses" means all out-of-pocket costs and expenses
incurred as a result of a Default, including the expenses of accountants,
experts, consultants, attorneys, legal assistants, paralegals, law clerks, and
others under such attorney's supervision and control, and all court costs and
expenses.
1.27 "Original Agreement" means the Agreement for Purchase and Sale
dated as of February 14, 2000, by and between JCC Xxxxxx Development, L.L.C., a
Louisiana limited liability company, and WI Acquisition Corporation, a Delaware
corporation, as assigned by WI Acquisition Corporation to 3CP Associates,
L.L.C., a Louisiana limited liability company, and as amended by certain
Amendment to Agreement to Purchase and Sell, dated July 20, 2000 together with
any letter agreements extending the due diligence period.
1.28 "Other Parties" means any Person other than a Party.
1.29 "Party" or "Parties" means Seller and Purchaser, individually and
collectively.
1.30 "Person" means all juridical persons, whether corporate or
natural, including individuals, firms, trusts, corporations, associations, joint
ventures and partnerships.
1.31 "Property" means all of Seller's right, title and interest in and
to the immovable property more fully described on Exhibit 1 attached hereto,
including without limitation the following described property:
(a) All of the improvements thereon;
(b) Any rights, title and interest of Seller in and to
adjacent streets, roads, alleys and rights of way;
(c) All the rights, ways, easements, privileges,
servitudes, and advantages belonging or in anywise
appertaining to such land, buildings, improvements,
and other real property; and
(d) All intangible (incorporeal) property related to
Seller's use and ownership of the real property,
including all rights of Seller under any agreements
with Badine Land, Limited, including specifically the
Air Rights Agreement.
1.32 "Purchaser" means 3CP Associates, L.L.C., and/or its successors
and assigns.
1.33 "Purchaser Group" means Purchaser and its affiliates,
subsidiaries, owners, representatives, agents, servants, officers, attorneys and
employees, individually and collectively.
1.34 "Purchaser's Inspections" means the inspections, review,
observations, studies, examinations, probes and research conducted by Purchaser
in connection with its inspections of the Property as provided for in Article 8.
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1.35 "Seller" moans JCC Canal Development, L.L.C. and its successors
and assigns, individually and collectively.
1.36 "Seller Group" means Seller, and its affiliates, subsidiaries,
owners, representatives, agents, servants, officers, attorneys and employees,
individually and collectively.
1.37 "State" means the State of Louisiana.
1.38 "Survey" means a survey of the Property in form satisfactory to
Purchaser that contains, without limitation, the following characteristics:
(a) Be staked on the ground; and
(b) Show the:
(i) Location of all Improvements (both those
completed and those under construction,
highways, streets, roads, driveways, parking
areas, railroads, fences, easements, and
rights-of-way,
(ii) Location of all utilities servicing the
Property or easements on the Property;
(iii) The gross number of square feet contained in
the Property.
(iv) Reference bench xxxx utilized by the
surveyor.
(v) Any encroachments upon the Property; and
(c) Contain a metes and bounds description of the land
comprising the Property. The beginning point of the
metes and bounds description should be established by
a monument or by reference to a nearby monument, and
such description should refer to all streets, roads,
alleys, and other rights-of-way that abut the
Property and recite the width thereof; and
(d) Contain the surveyor's certification addressed to
Purchaser and the Title Company stating, among other
things, that there are no encroachments across the
boundary lines of the Property, and that the Property
has adequate access to public rights-of-way.
1.39 "Title Agent" means Key Title Agency, New Orleans, Louisiana.
1.40 "Title Company" means First American Title Insurance Company.
1.41 "Transaction" means the transaction contemplated under this
Agreement.
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Article 2.
Purchase and Sale
2.1 Sale of Property. At the Closing, Seller agrees to sell, convey,
transfer, assign, and deliver to Purchaser, and Purchaser agrees to purchase
from Seller, the Property, with limited warranty of title, Seller warranting
title for the duration of its ownership of the Property, but not otherwise, for
the sum of Six Million and No/100 ($6,000,000.00) Dollars cash ("Cash
Consideration").
Each of Seller and Purchaser acknowledge and agree that no
representations or warranties have been made by Seller with respect to the
Property, or the transaction contemplated by this Agreement other than those
expressly set forth in Article 4 of this Agreement. Purchaser acknowledges that
Purchaser will undertake an independent inspection of the Property and agrees
that, subject to the representations and warranties of Seller set forth in said
Article 4, Purchaser is purchasing the Property absolutely "AS IS, WHERE IS" in
its present state of condition, with all faults, including latent defects, and
Seller makes no representations or warranties of any kind, express, implied or
statutory, as to the condition of the Property. Purchaser is not relying on any
representations or warranties of Seller except as may be expressly set forth in
this Agreement. The act of sale transferring the Property shall contain the
following provisions:
THIS PROPERTY IS SOLD by Vendor and. purchased by Purchaser
"AS IS, WHERE IS" and "WITH ALL FAULTS," with no warranty of condition
whatsoever, either expressed or implied, even for the return of the
purchase price with Purchaser expressly waiving any and all other
warranties, including those pertaining to fitness for a particular use,
soil conditions, zoning or other use restrictions, compliance with the
provisions of the Americans with Disabilities Act, or any environmental
matters, as well as those warranties against hidden, latent, or
redhibitory defects. Without limitation of the generality of the
foregoing, Purchaser hereby expressly waives and renounces any and all
rights or claims which it has or may have for redhibition, reduction of
the purchase price, and/or quanti minoris, whether under articles 2520
et seq. of the Louisiana Civil Code or otherwise. Purchaser has
inspected the property to the extent it deems necessary and is
satisfied with the condition thereof. Purchaser acknowledges and
declares that neither the Vendor nor any party, whomsoever, acting or
purporting to act in any capacity whatsoever on behalf of the Vendor
has made any direct, indirect, explicit or implicit statement,
representation or declaration, whether by written or oral statement or
otherwise, and upon which Purchaser has relied, concerning the
existence or non-existence of any quality, characteristic or condition
of the property herein conveyed. Purchaser has had lull, complete and
unlimited access to the property heroin convoyed for all tests and
inspections which Purchaser, in its sole discretion deems sufficiently
diligent for the protection of its interests. Purchaser acknowledges
and agrees that the foregoing disclaimer and waiver of warranties have
been fully explained to Purchaser and that Purchaser understands the
same. Purchaser and Vendor jointly acknowledge and agree that the
foregoing waivers and disclaimers are of the essence of this
transaction and the same would not otherwise have been entered into or
consummated. By its signature Purchaser expressly acknowledges all such
waivers, and its exercise of Purchaser's right to waive warranty
pursuant to Louisiana Civil Code Articles 2503 and 2548.
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/s/ DBB [ILLEGIBLE] Purchaser hereby acknowledges that the waiver of
Purchaser's warranty contained in this document has been
Initials fully explained to Purchaser by Purchaser's
attorney and/or the closing notary, and Purchaser
understands that by completing the sale
containing these terms Purchaser is giving up its
rights to get any money back or compensation from
the Vendor in the event Purchaser discovers
problems with the property, or any part of or
equipment located or used on the property.
Understanding this, Purchaser agrees to this
provision
2.2 Payment of Cash Consideration. The Cash Consideration shall be due
and payable at Closing by wire transfer of immediately available funds or as
Seller shall otherwise designate in writing. At the Closing, the Cash
Consideration due from Purchaser to Seller shall be reduced by the amount of the
Deposit and Additional Deposit, if any.
2.3 Apportionment. Notwithstanding the foregoing provisions of this
Article 2, the actual amount to be paid to Seller at the Closing will be subject
to adjustment based on the apportionments and costs and expenses which the
Parties are required to pay at the Closing pursuant to this Agreement.
2.4 Deposit. On the Effective Date of the Original Agreement,
Purchaser's predecessor, WI Acquisition Corporation, delivered to the Title
Agent by wire transfer or check the amount of Three Hundred Thousand Dollars and
No/100 ($300,000.00) as the Deposit under the Original Agreement. WI Acquisition
Corporation assigned all right, title and, interest in and to the Original
Agreement, including the Deposit, to Purchaser, JCC Xxxxxx Development, LL.C.
and Purchaser (as assignee of the rights of WI Acquisition Corporation under the
Original Agreement) shall authorize and direct the Title Agent to release the
Deposit under the Original Agreement, including all interest thereon, to or as
directed by Purchaser effective upon the execution of this Agreement. Purchaser
shall then immediately deliver to the Title Agent the sum of Three Hundred
Thousand Dollars and No/100 ($300,000.00) as the Deposit under this Agreement.
The Deposit shall be held in escrow by the Title Agent and disbursed in
accordance with the terms of this Agreement. The Deposit shall not be xxxxxxx
money, and Purchaser reserves the right to demand specific performance.
2.5 Additional Deposit. On the first Business Day after the end of the
inspection Period and provided Purchaser has not terminated this Agreement,
Purchaser shall deliver by wire transfer or check the amount of $300,000.00 to
the Title Agent as the Additional Deposit. The Additional Deposit will be
distinct from and in addition to the Deposit, but will be subject to all of the
same terms and conditions of this agreement as the Deposit.
Article 3
Liabilities
3.1 Purchaser Liabilities. Notwithstanding anything in this Agreement
to the contrary or in any other agreement or document executed by Purchaser in
connection with this Agreement or the Transaction, Purchaser Group shall not
incur any pecuniary, financial or personal liability or obligation whatsoever,
whether known or unknown, accrued, absolute, direct, indirect, contingent or
otherwise, for Claims accruing prior to the Closing Date, or which arises after
the Closing Date but are based on facts, circumstances, events, or actions of
Seller prior to the Closing Date, including but not limited to any pecuniary,
financial or personal liability or
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obligations for Claims arising out of or resulting from the ownership,
operation, leasing, use and maintenance through the Closing Date by Seller of
the Property.
If the Closing fails to occur solely as a result of an uncured
Default by Purchaser, Seller will be entitled to retain the Deposit and the
Additional Deposit, if any, as its sole and exclusive remedy for this Default.
Except as provided in the preceding sentence, Purchaser shall have no further
obligation to Seller under this Agreement as of the Closing Date, and under no
circumstances will Purchaser Group incur any pecuniary charge or financial
liability to Seller or any Person claiming by or through Seller with respect to
Purchaser's performance under this Agreement. Seller waives any right to
specific performance.
The Purchaser shall be liable for all Claims of Other Parties
arising after the Closing Date and arising out of or resulting from the
ownership, operation, leasing, use and maintenance of the Property including,
without limitation:
(a) Claims for taxes, assessments, fees and penalties due
or accrued with respect to the Property after the
Closing Effective Date to Governmental Authorities;
and
(b) Claims arising from or in connection with (i) the
presence of Hazardous Substances in, on, under, at,
or emanating from, the Property after the Closing
Effective Date; (ii) any violation of Environmental
Requirements by Purchaser or any other Person in
connection with the Property or the use of the
Property occurring after the Closing Effective Date.
except for (i) Claims arising after the Closing Date but that are based on
facts, circumstances, events or actions of Seller prior to the Closing Date or
(ii) Claims that the Seller is otherwise liable for pursuant to Section 3.2
below.
3.2 Notwithstanding anything in this Agreement to the contrary or any
other agreement or document executed by Seller in connection with this Agreement
or the Transaction, Seller Group shall not have any pecuniary, financial or
personal liability or obligation whatsoever, whether known or unknown, accrued,
absolute, direct, indirect, contingent or otherwise, for Claims accruing after
the Closing Date unless such Claims are based on facts, circumstances, events,
or actions of Seller prior to Closing Date, including but not limited to any
pecuniary, financial or personal liability or obligation for Claims arising out
of or resulting from the ownership, operation, leasing, use and maintenance
after the Closing Date by Purchaser of the Property.
3.3 Seller's Liabilities. Seller shall be solely liable for all Claims
of Other Parties, whether known or unknown, accrued, absolute, direct, indirect,
contingent or otherwise, accruing prior to the Closing Effective Date, or which
arise after the Closing Effective Date but are based on facts, circumstances,
events, or actions of Seller Group prior to the Closing Effective Date in
connection with the Property, including without limitation, the following:
(a) Claims for taxes, assessments, fees and penalties due
or accrued with respect to the Property prior to the
Closing Effective Date to Governmental Authorities;
and
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(b) Claims arising from or in connection with (i) the
presence of Hazardous Substances in, on, under, at,
or emanating from, the Property on the Closing
Effective Date; (ii) any violation of Environmental
Requirements by Seller or any other Person in
connection with the Property or the use of the
Property occurring prior to the Closing Effective
Date.
3.4 Acknowledgments. Seller and Purchaser each acknowledge the
provisions of this Article 3, and, particularly, the limitations on each party's
liability under this Agreement. Seller and Purchaser each hereby waive and
release any and all Claims each party may have against the other party
consistent with the provision of this Article 3, and each party's acts or
failure to act with respect to the matters set forth in this Article 3. The
provisions of this Article 3 shall survive Closing.
Article 4
Representations and Warranties of Seller
Seller represents and warrants to Purchaser as follows:
4.1 Agreement Not in Breach of Other Instruments. Neither the
execution, delivery, or performance of this Agreement or any other agreement
contemplated hereby, nor the compliance with the respective terms and provisions
hereof or thereof, nor the consummation of the Transaction, will: (a) conflict
with or result in a breach of any of the terms, conditions, or provisions of, or
constitute a default under, any agreement or instrument to which Seller is a
party or is subject; (b) conflict with, or result in a breach of any agreement
or instrument reflected in public records or, to the best of Seller's knowledge,
to which any predecessor of Seller is a party, or to which the Property is
subject; (c) violate any restriction to which Seller or, to the best of Seller's
knowledge, to which any predecessor of Seller is a party, or to which the
Property is subject; (d) to the best of Seller's knowledge, constitute a
violation of any Governmental Regulation; (e) result in the acceleration of any
Encumbrance pertaining to the Properly, or the cancellation of any agreement
pertaining to the Property; or (1) result in the creation of any Encumbrance
upon the Property.
4.2 Binding Obligation. This Agreement, to the extent permitted by
Governmental Authority and Governmental Regulation, constitutes the valid and
binding agreement of Seller, enforceable in accordance with its terms (except as
enforceability may be restricted or delayed by bankruptcy, insolvency,
moratorium or similar laws affecting or relating to the enforcement of
creditors' rights in general and by general principles of equity). Without
limiting the generality of the foregoing, Seller represents and warrants to
Purchaser that Seller's Plan of Reorganization was confirmed by the Court on
March 19, 2001, Case # 01-10088, U.S. Bankruptcy Court for the Eastern District
of Louisiana, and that this Agreement constitutes the valid, binding and
enforceable agreement of Seller without any further bankruptcy or other court or
governmental approval.
4.3 Environmental Matters. To Seller's knowledge and except as may be
reflected in that certain Phase I Environmental Site Assessment by X.X. Xxxxx
Group, Inc. dated March 10, 1992, designated as SGI Project Number 00-0000-000:
(a) the ownership and operation of the Property and any use, storage, treatment,
disposal, or transportation of Hazardous Substances that has occurred in or on
the Property prior to the date of this Agreement have been in compliance with
all applicable Environmental Requirements;(b) during the ownership and
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Operation of the Property by Seller, no release, leak, discharge, spill,
disposal, or omission of Hazardous Substances has occurred in, on, or under the
Property in a quantity or manner that violates or requires further investigation
or remediation under Environmental Requirements; and (c) the Property is free of
Hazardous Substances in unlawful quantities as of the date of this Agreement.
Seller represents and warrants that to Seller's knowledge there is no pending or
threatened litigation or administrative investigation or proceeding concerning
the Property involving Hazardous Substances or Environmental Requirements.
Seller represents and warrants that to Seller's knowledge there are no
asbestos-containing material within the Property, whether friable or
non-friable.
4.4 Leases. To the best of Seller's knowledge, and except as may be
shown in the First American Title Insurance Company Policy No. D102642 dated
October 30, 1998, and the survey by Xxxxxxxx Xxxx & Associates dated October 20,
1998, that there are no leases, subleases, licenses or rights of occupancy
affecting the Property other than short term parking agreements and a kiosk
lease, all of which arc terminable without expense on no more than thirty (30)
days notice.
4.5 Parties in Possession. To the best of Seller's knowledge, and
except as may be shown in the First American Title Insurance Company Policy No.
D102642 dated October 30, 1998, and the survey by Xxxxxxxx Xxxx & Associates
dated October 20, 1998, there are no parties in possession of any portion of the
Property as tenants, possessors or trespassers, other than the occupants under
the short term parking agreements and the kiosk lease.
4.6 Tax Status. Seller and all persons holding beneficial interests in
the Property are "United States Persons", as defined by Section 1445(f)(3) and
Section 7701(g) of the IRC, and the purchase of the Property by Purchaser
pursuant to this Agreement is not subject to the withholding requirements of
Section 1445(a) of the IRC.
4.7 Condemnation. Seller has no knowledge of any pending, contemplated,
or threatened condemnation or similar proceeding or of any litigation affecting
the Property or any part thereof.
4.8 Seller's Knowledge. The Parties hereby acknowledge and agree that
references in this Agreement to "Seller's knowledge" or "to the best of Seller's
knowledge" shall be deemed to mean the actual subjective knowledge of Seller,
its respective representatives, and attorneys, without any investigation and/or
inquiry whatsoever.
4.9 Termination of Representations and Warranties. The representations
and warranties set forth in this Article 4 shall be continuing and shall be true
and correct on and as of the Closing Date with the same force and effect as if
made at that time, provided, however, and all such representations and
warranties shall not survive the Closing.
Article 5
Representations of Purchaser
Purchaser represents to Seller as follows:
5.1 Binding Obligation of Purchaser. This Agreement, to the extent
permitted by Governmental Authority and Governmental Regulation, constitutes a
legal, valid, and binding
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obligation of Purchaser, enforceable against Purchaser in accordance with its
terms.
5.2 Execution and Delivery by Purchaser. On the Closing Date Purchaser
shall have taken or caused to be taken all actions necessary to authorize the
execution and delivery of this Agreement by Purchaser and the performance by
Purchaser of its obligations under this Agreement, all approvals, consents, and
authorizations required by the applicable laws of the State for Purchaser to
enter into and perform its obligations under this Agreement shall have been
obtained and/or complied with, and no further authorization shall be necessary
or required for due execution, delivery, or performance by Purchaser of this
Agreement, and Purchaser's authorization to enter into this Agreement shall not
have been repealed, or materially altered, modified, or amended.
5.3 Status and Authority of Purchaser. Purchaser has the legal right,
power and authority to enter into this Agreement, and to perform the obligations
imposed upon it under this Agreement.
5.4 Agreement Not in Breach of Other Instruments. Neither the
execution, delivery, or performance of this Agreement or any other agreement
contemplated hereby, nor the compliance with the respective terms and provisions
hereof or thereof, nor the consummation of the Transaction, will: (a) conflict
with or result in a breach of any of the terms, conditions, or provisions of, or
constitute a default under, any agreement or instrument to which Purchaser is a
party or is subject; (b) conflict with, or result in a breach of any agreement
or instrument reflected in public records or, to the best of Purchaser's
knowledge, to which any predecessor of Purchaser is a party, or to which the
Property is subject; or (c) violate any restriction to which Purchaser is
subject.
5.5 Preservation of Accuracy of Representations and Warranties.
Purchaser shall take all action necessary to prevent any representation or
warranty contained in Article 5 of this Agreement from becoming inaccurate as of
the Closing Effective Date. Purchaser promptly will notify Seller of any
lawsuits, Claims, administrative actions or other proceedings asserted or
commenced against Purchaser involving the Property. Purchaser will promptly
notify the Seller of any facts or circumstances which come to Purchaser's
attention and which cause, or through the passage of time may cause, any of
Purchaser's representations and warranties to be inaccurate, untrue or
misleading at any time from the date of this Agreement to the Closing Effective
Date.
5.6 Termination of Representations and Warranties. The representations
and warranties set forth in this Article 5 shall be continuing and shall be true
and correct on and as of the Closing Date with the same force and effect as if
made at that time, provided, however, and all such representations and
warranties shall not survive the Closing.
Article 6
Covenants of Seller
Seller covenants and agrees with Purchaser as follows:
6.1 Access and Information. At all times prior to the Closing Effective
Date, Seller shall afford to Purchaser and its agents, employees and authorized
representatives, access, during normal business hours, to the Property and to
Seller's books, accounts and records and all other
-11-
relevant documents and information with respect to the Property, as may be
reasonably requested. If this Agreement is terminated prior to Closing for any
reason, all such information shall be returned to Seller within five (5)
Business Days.
6.2 Acts Affecting the Property. During the period between the
execution of this Agreement and the Closing Effective Date, Seller will refrain
from (a) performing any grading or excavation, or construction to the Property,
or making any substantial change or improvements on or about the Property; (b)
creating any Encumbrance affecting the Property; (c) committing any waste or
nuisance upon the Property, and (d) consenting to the acquisition by Badine Land
Limited, its successors or assigns, of air rights adjacent to Lot 3CP under the
Air Rights Option Agreement or otherwise unless the air rights will be
transferred to the City of New Orleans as provided under Section 1.1 of the Air
Rights Agreement, waiving any right with respect to the Air Rights Agreement or
transferring or assigning any rights with respect to the Air Rights Agreement.
6.3 Preservation of Accuracy of Representations and Warranties. Seller
shall take all action necessary to prevent any representation or warranty
contained in Article 4 of this Agreement from becoming inaccurate as of the
Closing Effective Date. Seller promptly will notify Purchaser of any lawsuits,
Claims, administrative actions or other proceedings asserted or commenced
against Seller involving the Property. Seller will promptly notify the Purchaser
of any facts or circumstances which come to Seller's attention and which cause,
or through the passage of time may cause, any of Seller's representations and
warranties to be inaccurate, untrue or misleading at any time from the date of
this Agreement to the Closing Effective Date.
Article 7
Indemnification
7.1 Indemnification of Seller. Seller hereby indemnifies and holds
harmless Purchaser Group in respect of any and all Claims (including Litigation
Expenses for investigating or defending any Claims or threatened Claims)
incurred by or asserted against Purchaser Group arising out of any or all
Seller's liabilities set out in Section 3.2 or elsewhere in this Agreement. The
indemnification contained in this Section shall be in addition to, and not in
place of, any other remedies, whether at law or in equity, that Purchaser Group
may have against Seller.
7.2 Indemnification of Purchaser. Purchaser hereby indemnifies and
holds harmless Seller Group in respect of any and all Claims (including
Litigation Expenses for investigating or defending any Claims or threatened
Claims) incurred by or asserted against Seller Group arising out of any or all
Purchaser's liabilities set out in Section 3.1 or elsewhere in this Agreement.
The indemnification contained in this Section shall be in addition to, and not
in place of, any other remedies, whether at law or in equity, that Seller Group
may have against Purchaser.
7.3 Claims for Indemnification. Whenever any Claim shall arise for
indemnification hereunder, the Indemnified Party shall promptly notify the
Indemnifying Party of the Claim and, when known, the facts constituting the
basis for such Claim. In the event of any Claim for indemnification hereunder
resulting from any Claim by any Other Party, the notice to the Indemnifying
Party shall specify, if known, the amount or an estimate of the amount of the
liability arising therefrom. The Indemnified Party shall not settle or
compromise any Claim by an Other Party for which the Indemnified Party is
entitled to indemnification hereunder without the
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prior written consent of the Indemnifying Party (which consent shall not be
unreasonably withheld) unless suit shall have been instituted against the
Indemnified Party and the Indemnifying Party shall have failed to take control
of such suit after notification thereof as provided in this Agreement.
7.4 Defense by Indemnifying Party. In connection with any Claim giving
rise to indemnification hereunder resulting from any Claim by any Other Party,
the Indemnifying Party at its sole cost and expense may, upon written notice to
the Indemnified Party, assume the defense of any such Claim if the Indemnifying
Party acknowledges to the Indemnified Party in writing the Indemnifying Party's
obligation to indemnify the Indemnified Party with respect to all elements of
such Claim. The Indemnified Party shall be entitled to participate in (but not
control) the defense of any such action with its counsel and at its own expense.
If the Indemnifying Party does not assume the defense of any such Claim (a) the
Indemnified Party may defend against such Claim in such manner as it may deem
appropriate, including, but not limited to, settling such Claim, on such terms
as the Indemnified Party may deem appropriate after giving two (2) Business
Days' notice of the terms of the proposed settlement to the Indemnifying Party,
and (b) the Indemnifying Party shall be entitled to participate in (but not
control) the defense of such Claim with its counsel and at its own expense. If
the Indemnifying Party thereafter seeks to question the manner in which the
Indemnified Party defended such Claim or the amount or nature of any such
settlement, the Indemnifying Party shall have the burden to prove by a
preponderance of the evidence that the Indemnified Party, after taking into
consideration the potential amount of an adverse judgment, did not defend or
settle such Claim in a reasonably prudent manner.
7.5 Manner of Indemnification. All amounts indemnified hereunder shall
be paid in cash or by delivery of a check in the amount of the indemnified
liability.
Article 8
Purchaser's Due Diligence
8.1 Purchaser's Inspections. Seller agrees that Purchaser shall have a
sixty (60) day due diligence period starting on Friday, June 15, 2001, to
conduct inspections of the Property ("Inspection Period"), including, without
limitation, environmental audits, wetlands determinations, appraisals, zoning,
economic and engineering feasibility studies, soil tests, and such other
inspections as Purchaser deems necessary to satisfy itself with respect to
Seller's title and the condition of the Property. Seller understands and agrees
that Purchaser and its respective employees, agents, and representatives may
find it appropriate to contact Governmental Authorities in connection with the
result of Purchaser's Inspections to the Property. Purchaser's sole remedy for
any defects in the Property discovered during the Inspection Period will be its
termination rights established in Section 8.5.
8.2 Survey. Seller, at Seller's sole cost and expense, shall cause to
have prepared the Survey. Seller shall deliver the survey to Purchaser within 45
days of the Effective Date.
8.3 Title Commitment. Seller, at Seller's sole cost and expense, shall
order the Commitment to be issued by the Title Company through the Title Agent,
accompanied by copies of all recorded documents relating to restrictions,
servitudes, easements, rights-of-way, and other matters affecting the Property.
The Commitment will be in a form satisfactory to Purchaser and will commit the
Title Company to issue at the Closing an ALTA form of Owner's Title
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Insurance Policy to Purchaser, such policy to be in an amount equal to the Cash
Consideration and shall be paid for by Seller.
8.4 Inspection Procedure. Purchaser shall make Purchaser's Inspections
in good faith, with due diligence, and at Purchaser's sole risk. All inspection
fees, wetlands determinations, environmental studies, appraisal fees,
engineering fees and other expenses of any kind incurred by Purchaser relating
to Purchaser's Inspections will be solely Purchaser's expense except as set
forth in Sections 8.2 and 8.3. Seller shall cooperate with Purchaser in all
reasonable respects in making Purchaser's Inspections. Purchaser shall notify
Seller not less than one (1) Business Day in advance of making any of
Purchaser's Inspections. Purchaser agrees to indemnify and hold Seller and its
employees harmless, to the extent permitted by Governmental Authority and
Governmental Regulation, from any and all Claims sustained by Seller which arise
out of the Purchaser's Inspections and to pay the cost of repair for any damage
to the Property in connection with any of Purchaser's Inspection by or on behalf
of Purchaser.
8.5 Right to Terminate. Notwithstanding anything in this Agreement to
the contrary, in the event Purchaser determines as a result of Purchaser's
Inspections that title to and/or any condition of the Property is deficient in
any respect in Purchaser's sole and absolute discretion, or if for any other
reason Purchaser elects to terminate this Agreement, Purchaser may elect to
terminate this Agreement by delivering written notice thereof to Seller prior to
the expiration of the Inspection Period, in which event the Deposit will be
immediately refunded to Purchaser and the Parties shall have no further rights
or obligations hereunder except as provided in Article 3 and Section 8.4.
Article 9
Conditions Precedent to Obligations of Purchaser
The obligations of Purchaser under this Agreement to
consummate the Transaction are, at the option of Purchaser (which may be waived
specifically in writing by Purchaser, in whole or in part), subject to the
satisfaction, on or prior to the Closing Date, of the following conditions:
9.1 Execution and Delivery of Closing Documents. Seller shall have
executed and delivered each of the Closing Documents to which Seller is a Party.
9.2 No Changes to Condition of Property. There shall have been, between
the Effective Date and the Closing Effective Date, no material adverse change in
the condition of the Property.
9.3 No Misrepresentation or Breach of Covenants, Representations and
Warranties. There shall have been no material breach by Seller in the
performance of any of its covenants heroin, each of the representations and
warranties of Seller contained or referred to in this Agreement shall be true
and correct in all material respects on the Closing Effective Date as though
made on the Closing Effective Date.
9.4 Obstructive Proceedings. No suit, pleading, action, or Claim shall
have been alleged, filed or instituted by any Person (excluding Purchaser)
seeking injunctive relief or damages in a material amount, and no order, decree
or judgment shall have been rendered by any Governmental Authority, which seeks
to void or would prevent the consummation of, or render it
-14-
unlawful for, Purchaser to enter into this Agreement, or acquire and/or operate
the Property.
9.5 Order Prohibiting Transaction. No order shall have been entered in
any action or proceeding before any court or Governmental Authority, and no
temporary, preliminary or permanent injunction by any court shall have been
issued which would have the effect of (a) making the Transaction unenforceable
or illegal; (b) otherwise preventing consummation of such transactions; (c)
imposing material limitations on the ability to Purchaser effectively to acquire
or hold the Property or to exercise full rights of ownership of the Property.
Article 10
Conditions Precedent to Obligations of Seller
The obligations of Seller under this Agreement to consummate
the Transaction are, at the option of Seller (which may be waived specifically
in writing by Seller, in whole or in part), subject to the satisfaction, on or
prior to the Closing Date, of the following conditions:
10.1 Execution and Delivery of Closing Documents. Purchaser shall have
executed and delivered each of the Closing Documents to which Purchaser is a
party and paid the Cash Consideration.
10.2 No Misrepresentation or Breach of Covenants, Representations and
Warranties. There shall have been no material breach by Purchaser in the
performance of any of its covenants herein, each of the representations and
warranties of Purchaser contained or referred to in this Agreement shall be true
and correct in all material respects on the Closing Effective Date as though
made on the Closing Effective Date.
10.3 Obstructive Proceedings. No suit, pleading, action, or Claim shall
have been alleged, filed or instituted by any Person (excluding Seller) seeking
injunctive relief or damages in a material amount, and no order, decree or
judgment shall have been rendered by any Governmental Authority, which seeks to
void or would prevent the consummation of, or render it unlawful for, Seller to
enter into this Agreement or sell the Property.
Article 11
Closing and Closing Date
11.1 Closing. The Closing shall occur no later than 120 days from
Friday, June 15, 2001. Anything herein to the contrary notwithstanding, this
Agreement may be terminated and abandoned at any time:
(a) on or prior to the Closing Date by the mutual consent
of the Parties; or
(b) for a reason otherwise permitted in this Agreement
which does not constitute a Default by the
terminating Party.
Upon any termination as above provided, written notice shall be given to the
other Party, and thereupon this Agreement shall become void and of no effect and
there shall be no liability on the part of any Party to any other Party and the
Deposit and Additional Deposit, if any, will be refunded to Purchaser.
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11.2 Place. The Closing shall be held at the offices of Stone, Pigman,
Walther, Xxxxxxxx & Xxxxxxxxxx, L.L.P., 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxx 00000 or such other place as the Parties may mutually agree.
11.3 Tax Deferred Exchange. Purchaser may structure the transfer of the
Property as a tax deferred exchange pursuant to Internal Revenue Code Section
1031, and Seller agrees to cooperate with Purchaser, and to take such action as
Purchaser may reasonably request in order to consummate such transfer. In
connection with the foregoing, Purchaser shall have the right, without the
consent of Seller, to assign or transfer all or any portion of its right, title
and interest in, to, under or pursuant to this Agreement to any entity that may
acquire or hold title to the Property for subsequent conveyance of the Property
to Purchaser pursuant to the provisions of this Agreement.
Article 12
Obligations of Parties at Closing
12.1 Seller's Obligations to Purchaser at Closing. At the Closing,
Seller shall execute, acknowledge, deliver or cause to be delivered to
Purchaser, each of which must be in a recordable form satisfactory to Purchaser:
(a) Act of Cash Sale. An Act of Cash Sale in
substantially the same form as Exhibit 3 attached
hereto and made a part hereof, conveying to Purchaser
all of Seller's right, title and interest in and to
the Property with limited warranty of title, Seller
warranting title for the duration of its ownership of
the Property, but not otherwise, subject only to
matters acceptable to Purchaser following its due
diligence review of the Property and with full
substitution and subrogation in and to any Claims
and/or causes of action which Seller has or may have
against all preceding owners.
(b) Consents. Any consents of third Persons which are
necessary to effectively transfer the Property to
Purchaser.
(c) Air Rights Agreements. (i) An assignment by Seller,
without warranty, of all right, title and interest of
Seller under the Air Rights Agreement; and (ii) a
mutually acceptable agreement by and between Seller
and Purchaser that provides that (1) to the extent
Seller may have any continuing rights to do so under
the Air Rights Agreement or otherwise, Seller agrees
that it will not approve the acquisition by Badine
Land Limited, its successors or assigns, of air
rights adjacent to Lot 3CP under the Air Rights
Option Agreement or otherwise unless the air rights
will be transferred to the City of New Orleans as
provided under Section 1.1 of the Air Rights
Agreement; (2) except to Purchaser, Seller will not
transfer or assign its rights under the Air Rights
Agreement; and (3) for the remaining term of the Air
Rights Option Agreement, as it may be extended, the
owner of the membership interest(s) in Seller will
not sell, assign, transfer or convey ownership or
control of Seller to the holder of the option under
the Air Rights Option Agreement or to a Person who,
to Seller's knowledge, is an affiliate thereof.
Purchaser's rights under the foregoing agreement
shall be
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specifically enforceable and Purchaser shall have the
right to obtain a preliminary injunction without the
necessity of posting a bond or proving irreparable
injury.
(d) Possession. Possession of the Property.
(e) Owner's Affidavit. An owner's affidavit or affidavits
in form and substance reasonably satisfactory to the
Title Company and sufficient to cause the Title
Company to issue an owner's policy (at Purchaser's
sole cost) on the Property with a policy date no
earlier than the Closing Date and without standard
exceptions, including matters of survey and
mechanic's liens.
(f) Non Resident Certificate. A certificate made under
penalty of perjury by Seller stating that Seller is
not a foreign Person as defined by the IRC.
(g) 1099 Information. Any information in connection with
the conveyance of the Property by the Seller required
by the IRC in connection with the preparation and
filing of Treas. Form 1099.
(h) Additional Documentation. All documents to be
provided executed and delivered by Seller to
Purchaser as required by any other provision of this
Agreement or as may be reasonably requested by
Purchaser.
12.2 Purchaser's Obligations to Seller at Closing. On the Closing Date,
Purchaser shall deliver to Seller:
(a) Funds. The Cash Consideration by wire transfer of
funds.
(b) Release of Deposits. Instructions to the Title Agent
authorizing Title Agent to deliver the Deposit and
the Additional Deposit to Seller, provided Purchaser
shall get credit against the Cash Consideration for
the amount of the Deposit, the Additional Deposit and
any interest thereon delivered to Seller.
(c) Authority. Evidence of the Purchaser's authority to
consummate the transaction.
(d) Additional Documentation. All documents to be
provided, executed and delivered by Purchaser to
Seller as required by any other provision of this
Agreement or as may be reasonably requested by
Seller.
12.3 Closing Expenses and Apportionments:
(a) Closing Expenses. Seller and Purchaser shall each
bear their respective costs and expenses incurred or
to be incurred in negotiating and preparing this
Agreement. Seller shall bear the cost of preparing
and recording the Act of Sale.
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(b) Proration of Taxes and Other Income. All ad valorem
taxes, property taxes, and other taxes and other
assessments and other items of current income or
expense, for the current year, if any, shall be
apportioned between Seller and Purchaser as of the
Closing Effective Date; provided, however, that if
the current year's tax assessment is not available at
the time of Closing, the apportionment shall be based
upon the most recent assessment available and shall
be corrected so as to be accurate with monetary
adjustment made within thirty (30) days after actual
taxes are known.
(c) Transfer Taxes. All documentary, stamp, transfer,
recording, gains, sales and other taxes or
assessments incident to the sale of the Property must
be paid in full by Seller prior to Closing.
Article 13
Default
13.1 Breach by Seller. If Seller Defaults in the due and timely
performance of any of the terms to be performed by Seller hereunder, makes any
misrepresentation or is unable or unwilling to consummate the sale of the
Property for any reason except Purchaser's Default or the termination of this
Agreement pursuant to any of the termination provisions hereof (including
Section 6.4), Purchaser may, at its option, and as its sole and exclusive
remedy, either (i) terminate this Agreement by written notice to Seller and
demand the immediate return of the Deposit and Additional Deposit, if any, plus
an equal sum from Seller as liquidated damages or (ii) seek specific performance
of this Agreement.
13.2 Breach by Purchaser. If Purchaser Defaults in the due and timely
performance of any of Purchaser's obligations hereunder, the conditions to
Purchaser's obligations set forth in this Agreement having been satisfied and
Purchaser's being in Default and Seller not being in Default hereunder, Seller
as its sole and exclusive remedy may terminate this Agreement by written notice
to Purchaser and receive the Deposit and the Additional Deposit, if any. Seller
shall not have the right to demand specific performance.
13.3 Waiver. No delay or omission in the exercise of any right or
remedy accruing to one Party upon any breach by another Party under this
Agreement shall impair such right or remedy or be construed as a waiver of any
such breach theretofore or thereafter occurring. The waiver by a Party of any
condition or of any subsequent breach of the same or any other term, covenant,
or condition herein contained shall not be deemed to be a waiver of any other
condition or of any subsequent breach of the same or any other term, covenant,
or condition herein contained. Except as specifically excepted in this
Agreement, all rights, powers, options, or remedies afforded to any Party either
hereunder or by law shall be cumulative and not alternative and the exercise of
one right, power, option or remedy shall not bar other rights, powers, options,
or remedies allowed herein or by law.
Article 14
Miscellaneous
14.1 Broker's Fees. Seller agrees to hold Purchaser harmless from and
against any and all claims and demands by any real estate agent and/or broker
engaged by Seller with respect to
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the purchase and sale contemplated under this Agreement. Purchaser warrants and
represents to Seller that neither Xxxxx XX. Xxxxx, Xxxxxx X. Xxxxxx nor any
affiliate or company for which either may be an agent has a claim against Seller
for a broker or real estate fee or commission. Purchaser agrees to hold Seller
harmless from and against any and all claims and demands by any real estate
agent and/or broker engaged by Purchaser with respect to the purchase and sale
contemplated under this Agreement.
14.2 Risk of Loss. The risk of loss or damage to the Property or any
part thereof by fire or other casualty shall from the date hereof until the
Closing Effective Date be borne by Seller.
14.3 Notices. All notices or other communications required or permitted
hereunder shall be in writing, shall be delivered personally or sent by
facsimile electronic transmission (receipt confirmed), certified mail or by an
overnight delivery service that operates on a nationwide basis, and routinely
issues receipts, and shall be considered given upon the earlier of actual
receipt or forty-eight (48) hours after mailing postage prepaid. All such
notices shall be addressed as follows:
IF TO PURCHASER:
3CP Associates, L.L.C.
c/o Xxxxxx Xxxxxx Companies, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Fax No.: (000) 000-0000
with copies to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Stone, Pigman, Walther, Xxxxxxxx & Xxxxxxxxxx, L.L.P.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Fax No.: (000) 000-0000
IF TO SELLER:
JCC Canal Development, L.L.C
c/o Jazz Casino Company
Xxx Xxxxx Xxxxx, Xxxxx 000
000 Xxxxx Xxxxxx 70130
Attn: President and Vice-President of Finance
with copies to:
Xxxxxx'x Entertainment, Inc.
Xxx Xxxxxx'x Xxxxx
Xxx Xxxxx, XX 00000
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IF TO TITLE COMPANY:
Key Title Agency
000 Xx. Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Fax No.; (000) 000-0000
or to such other addresses as the parties may specify in writing.
14.4 Further Assurances. Following the Closing, each of the Parties
will take such further actions and execute and deliver such additional documents
arid instruments as may be reasonably requested by any other Party in order to
perfect and complete the purchase and sale of the Property as set forth herein,
and the other transactions specifically contemplated herein.
14.5 Waiver of Terms. Any of the terms or conditions of this Agreement
may be waived at any time by the Parties which are entitled to the benefit
thereof but only by a written notice signed by the Parties waiving such terms or
conditions. The waiver of any term or condition shall not be construed as a
waiver of any other term or condition of this Agreement.
14.6 Amendment of Agreement. This Agreement may be amended,
supplemented or modified only by a written instrument duly executed by Seller
and by Purchaser.
14.7 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Louisiana.
14.8 Partial Invalidity. If any one or more of .the provisions
contained herein shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein.
14.9 Assignment. Either Purchaser or Seller may assign any and all of
its rights and interests under this Agreement to an entity which (i) controls,
is controlled by, or is under common control with Seller or Purchaser, or (ii)
results from a merger or consolidation with Seller or Purchaser.
14.10 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Parties, their respective successors, and permitted
assignees.
14.11 Execution in Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original agreement, but all of which together shall constitute one and the same
instrument.
14.12 Titles and Headings. Titles and headings to sections herein are
for purposes of reference only, and shall in no way limit, define, or otherwise
affect the provisions herein.
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14.13 Entire Agreement. This Agreement constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written and
oral, among the Parties or any of them, with respect to the subject matter
hereof.
14.14 Litigation Expenses. If a Party litigates (a) any provision of
this Agreement; (b) the subject matter of this Agreement; or (c) to enforce any
warranty, representation or covenant of this Agreement, the Parties hereto agree
that the unsuccessful litigant shall pay to the successful litigant all of its
Litigation Expenses; provided, however, Litigation Expenses in connection with a
claim for indemnification shall be governed by Article 7.
14.15 Escrow Instructions. Seller and Purchaser agree that the Deposit
and the Additional Deposit, if any (collectively, the "Deposits") shall be held
by the Title Agent who shall invest the Deposits in an interest-bearing account
or otherwise invest the same upon joint written instructions from Purchaser and
Seller. By acceptance of the Deposits and a fully executed copy of this
Agreement, Title Agent shall have agreed to the terms and conditions of this
Agreement regarding the investment, holding, and disbursement of the Deposits.
Title Agent shall disburse the Deposits in accordance with the terms of this
Agreement. If a dispute arises concerning the disbursement of the Deposits,
Title Agent shall have the right to hold the same until it is directed (a) by a
court, arbitrator or other entity having authority to determine the entitlement
of the Deposits as between Seller and Purchaser, (b) joint instructions of both
Seller and Purchaser; and shall thereafter deliver the same in accordance with
such direction. Seller and Purchaser jointly and severally agree to indemnify
and hold harmless Title Agent from and against any and all losses, costs,
expenses, liabilities, and claims, including reasonable attorney's fees, which
may be incurred by Title Agent in connection with its duties as Title Agent
hereunder, absent the willful default or gross negligence of Title Agent. Title
Agent shall not incur any liability with respect to (i) any action taken or
omitted in good faith upon the advice of its counsel or of counsel for any of
the parties hereto, given with respect to any question relating to the duties
and responsibilities of the Title Agent under this Agreement, or (ii) any action
taken or omitted in reliance upon any instrument, including the written advice
provided for herein, not only as to due execution, or identity and authority of
any person executing such instrument, its validity and effectiveness, but also
as to the truth and accuracy of any information contained therein which the
Title Agent shall in good faith believe to be genuine, to have been signed by
the proper person and which conforms to the provisions of this Agreement.
14.16 Original Agreement. JCC Xxxxxx Development, L.L.C. and 3CP
Associates, L.L.C., the parties under the Original Agreement do hereby intervene
in this Agreement for the sole purpose of consenting to the termination of the
Original Agreement effective as of the effective date of this Agreement. Except
for the rights of 3CP Associates, L.L.C. to the Deposit and all interest thereon
as described above in Section 2.4 of this Agreement, (a) JCC Xxxxxx Development,
L.L.C. and 3CP Associates, L.L.C. do hereby release and waive any Claim (as
defined in this Agreement) arising under, with respect to or in connection with
the Original Agreement, including without limitation the negotiation, execution
and termination thereof, and (b) neither JCC Xxxxxx Development, L.L.C. nor 3CP
Associates, X.XX. shall have any further rights or obligations under the
Original Agreement. JCC Xxxxxx Development, L.L.C. and 3CP Associates, L.L.C.,
if necessary, agree to cause their respective counsel to file appropriate
pleadings in Case # 01-10089, U.S. Bankruptcy Court for the Eastern District of
Louisiana, to dismiss as moot the pending Motion by JCC Xxxxxx Development.
L.L.C. to reject the Original Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement as of the dates written below.
SELLER
JCC Canal Development, L.L.C
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Date: August 9, 2001
PURCHASER
3CP Associates, X.XX.
By: 3CP Investors, L.L.C., sole member
By: Xxxxxx Xxxxxx Companies, Inc.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Date: August 8, 2001
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx
Date: August 8, 2001
TITLE AGENT
For Purposes of Section 14.15
Key Title Agency
By: /s/ Xxxxxx X. Wats
---------------------------------
Name: Xxxxxx X. Wats
Title: Agent
Date: August 10, 2001
SELLER UNDER ORIGINAL AGREEMENT
For purposes of Sections 2.4 and 14.16
JCC Xxxxxx Development, L.L.C.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President Finance
Date: August 9, 2001
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Exhibit 1
PROPERTY DESCRIPTION
Xxx 0XX, Xxxxxx Xxxxxxxxx Xxxxxxxx, Xxxx of New Orleans, State of Louisiana
-23-
Exhibit 2
CASH SALE OF PROPERTY UNITED STATES OF AMERICA
By: JCC Canal Development, L.L.C. STATE OF LOUISIANA
To: 3CP Associates, X.XX. PARISH OF ORLEANS
* * * * * * * * * * * * * * * * * * * * * *
BE IT KNOWN, that on this ______ day of ________________,
____________;
BEFORE ME, the undersigned Notary Public, duly commissioned
and qualified, in and for the Parish and State aforesaid, and in the presence of
the witnesses hereinafter named and undersigned,
PERSONALLY CAME AND APPEARED:
JCC Canal Development, X.XX., TIN _______________, a Louisiana
limited liability company, represented herein by and through _________________,
its _____________ duly authorized pursuant to ________________;
mailing address:
(hereinafter referred to as "Vendor");
and who declared that it does by these presents grant, bargain, sell, convey,
transfer, assign, set over, abandon and deliver, with warranty of title by,
through and under Vendor, but not otherwise, Vendor hereby warranting title to
the property only from the date Vendor acquired title to the property to the
date of this sale, but with fall substitution and subrogation in and to all the
rights and actions of warranty which it has or may have against all preceding
owners, unto:
3CP Associates, L.L.C., TIN _______________ , a Louisiana
limited liability company, represented herein by and through its undersigned
officer, duly authorized pursuant to a Resolution of the Board of Directors of
said corporation, a certified copy of which is annexed hereto and made a part
hereof;
mailing address:
(hereinafter referred to as "Purchaser");
here present, accepting and purchasing for itself, its successors and assigns,
and acknowledging due delivery and possession thereof, all and singular the
following described property, to-wit;
[PROPERTY DESCRIPTION]
Ex.2-1
To have and to hold the above described property unto the said
Purchaser, its successors and assigns forever.
This sale is made and accepted for and in consideration of the
price and sum of SIX MILLION DOLLARS ($6,000,000.00), cash, which the said
Purchaser has well and truly paid, in ready and current money to the said
Vendor, who hereby acknowledges the receipt thereof and grants full acquaintance
and discharge therefor.
THIS PROPERTY IS SOLD by Vendor and purchased by Purchaser "AS
IS, WHERE IS" and "WITH ALL VAULTS," with no warranty of condition whatsoever,
either expressed or implied, even for the return of the purchase price, with
Purchaser expressly waiving any and all other warranties, including those
pertaining to fitness for a particular use, soil conditions, zoning or other use
restrictions, compliance with the provisions of the Americans with Disabilities
Act, or any environmental matters, as well as those warranties against hidden,
latent, or redhibitory defects. Without limitation of the generality of the
foregoing, Purchaser hereby expressly waives and renounces any and all rights or
claims which it has or may have for redhibition, reduction of the purchase
price, and/or quanti monoris, whether under articles 2520 et seq. of the
Louisiana Civil Code or otherwise. Purchaser has inspected the property to the
extent it deems necessary and is satisfied with the condition thereof. Purchaser
acknowledges and declares that neither the Vendor nor any party, whomsoever,
acting or purporting to act in any capacity whatsoever on behalf of the Vendor
has made any direct, indirect, explicit or implicit statement, representation or
declaration, whether by written or oral statement or otherwise, and upon which
Purchaser has relied, concerning the existence or non-existence of any quality,
characteristic or condition of the Property herein conveyed. Purchaser has had
full, complete and unlimited access to the property herein conveyed for all
tests and inspections which Purchaser, in its sole discretion deems sufficiently
diligent for the protection of its interests. Purchaser acknowledges and agrees
that the foregoing disclaimer and waiver of warranties have been fully explained
to Purchaser and that Purchaser understands the same. Purchaser and Vendor
jointly acknowledge and agree that the foregoing waivers and disclaimers are of
the essence of this transaction and the same would not otherwise have been
entered into or consummated. By its signature Purchaser expressly acknowledges
all such waivers, and its exercise of Purchaser's right to waive warranty
pursuant to Louisiana Civil Code Articles 2503 and 2548.
___________ Purchaser hereby acknowledges that the waiver of warranty
Purchaser's contained in this Purchaser's document has been fully
Initials explained to Purchaser by Purchaser's attorney and/or Initials
the closing notary, and Purchaser understands that by
completing the sale containing these terms Purchaser is giving
up its rights to get any money back or compensation from the
Vendor in the event Purchaser discovers problems with the
property, or any part of or equipment located or used on the
property. Understanding this, Purchaser agrees to this
provision
All City and State taxes up to and including the taxes due
and exigible in 2000 are paid. Future tax payments shall be the responsibility
of the Purchaser.
Ex.2-2
The parties waive the products of the mortgage, conveyance,
UCC and tax research certificates, and relieve and release me, Notary, from all
responsibility by reason thereof.
This sale is made and accepted subject to the following:
[Permitted Encumbrances]
Reference is made to these restrictive covenants and
conditions for notation purposes only and is not to be construed as a renewal or
recreation of such in any manner whatsoever.
The parties hereto take cognizance of the following:
THUS DONE AND PASSED in New Orleans, Louisiana, on the day,
month and year herein first above written, in the presence of the undersigned
competent witnesses, who hereunder sign their names with the said appearers, and
me, Notary, after reading of the whole.
WITNESSES: JCC CANAL DEVELOPMENT, X.XX.
By:
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Name:
--------------------------------- -----------------------------
Title:
----------------------------
3CP ASSOCIATES, X.XX.
--------------------------------- By: 3CP Investors, L.L.C., sole member
Name:
-----------------------------
Title:
----------------------------
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NOTARY PUBLIC
Ex.2-3
JCC CANAL DEVELOPMENT, LLC.
000 XXXXX XXXXXX XXXXXX
XXX XXXXXXX, XX 00000
August 8, 2001
3CP Associates, L.L.C.
c/o Xxxxxx Xxxxxx Companies, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Re: Proposed purchase of Xxx 0XX, Xxxxx Xxxxxxxxx Xxxxxxxx,
Xxxx of New Orleans, State of Louisiana
Gentlemen:
JCC Canal Development, L.L.C., a Louisiana limited liability
company ("Seller"), and 3CP Associates, L.L.C., a Louisiana limited liability
("Purchaser"), entered into that certain Agreement to Purchase and Sell (the
"Purchase Agreement") dated as of June 15, 2001, pursuant to which Seller agreed
to sell to Purchaser and Purchaser agreed to buy from Seller the property
described therein, including Xxx 0XX, Xxxxx Xxxxxxxxx Xxxxxxxx, Xxxx of New
Orleans, State of Louisiana ("Lot 3CP").
In connection with Purchaser's due diligence review under the
Purchase Agreement and at your request, Seller advises you that Seller's only
current business is the ownership of Lot 3CP, the potential commercial
development of Lot 3CP, parking on Lot 3CP and short term rental of space to a
kiosk operator located on a portion of Lot 3CP. Seller owns no other material
assets and operates no other material businesses.
This letter is submitted by Seller at Purchaser's request to
assist Purchaser in its decision whether to proceed with the purchase of
Seller's assets as a going concern. However, this letter does not amend the
Purchase Agreement. Furthermore, the statements in this letter are not
representations or warranties under the Purchase Agreement, in connection with
the sale of Lot 3CP or otherwise. Purchaser shall not have the right to
terminate the Purchase Agreement, rescind the sale of Lot 3CP or recover damages
as a result of this letter.
Sincerely,
JCC Canal Development, LL.C.
By: /s/ Xxxxxxx Xxxxxx
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August 8, 2001
Key Title
c/o Xxxxxx X. Xxxxx
Xxxxxxxxxx, Xxxxxx & Gianna
000 Xx. Xxxxxxx Xxxxxx, Xxx. 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Re: Agreement for Purchase and Sale dated as of February
14, 2000 by and between JCC Xxxxxx Development,
L.L.C. and WI Acquisition Corporation, as assigned by
WI Acquisition Corporation to 3CP Associates, L.L.C.
and as amended by the Amendment to Agreement for
Purchase and Sell dated July 20, 2000 (the "Original
Purchase Agreement")
Dear Xxxxx:
JCC Xxxxxx Development, L.L.C. and 3CP Associates, L.L.C. (as
assignee of the rights of WI Acquisition Corporation under the Original
Agreement) terminated the Original Agreement. You are hereby authorized and
directed to release the Deposit (as defined in the Original Agreement),
including all interests thereon, to or as directed by 3CP Associates, L.L.C.
Thank you for your cooperation.
Sincerely,
JCC Xxxxxx Development, L.L.C. 3CP Associates, X.XX.
By: 3CP Investors, L.L.C., us member
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
By: Xxxxxx Xxxxxx Companies, Inc.
By: /s/ Xxxxxx X. Xxxxxx
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By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
MRS/lm
