Exhibit 5
REAL ESTATE PURCHASE AGREEMENT
This Real Estate Purchase Agreement ("Agreement") is made and
entered into as of December 8, 1997, by and between WMR Investment
Company, L.L.C., a Utah limited liability company, as Seller, and Alpine
Resort Properties, Inc., a Maine corporation and a subsidiary of
American Skiing Company, as Buyer.
1. Purchase and Sale of Property. Buyer hereby agrees to purchase
and Seller hereby agrees to sell that certain unimproved real property
commonly known as Parcel A-2 at the Canyons Resort Summit County, Utah,
as more particularly described in Exhibit "A" attached hereto (the
"Property"), on the terms and conditions set forth in this Agreement,
together with all water rights of any nature associated therewith,
whether appurtenant to the Property or owned by Seller.
2. Purchase Price. The Purchase Price for the Property is Seven
Million and no/100 Dollars ($7,000,000), which shall be paid as follows:
(a) $250,000 cash, as an Xxxxxxx Money Deposit, paid to Xxxx
X. Xxxxxxx, as escrow agent ("Escrow Agent") concurrently with the
execution of this Agreement. The Xxxxxxx Money Deposit will be
held in the Escrow Agent's Client Trust Account and applied by the
Escrow Agent as follows: (i) at closing to be paid to Seller as a
portion of the purchase price, (ii) in the event the sale does not
close due to Buyer's failure to perform its obligations hereunder,
to be paid to Seller as liquidated damages in full satisfaction of
any claims hereunder; and (iii) in the event the sale does not
close due to Seller's failure to satisfy or perform its obligations
hereunder, to be refunded in full to Buyer. Any interest earnings
on the Xxxxxxx Money Deposit shall be paid to the recipient of the
principal.
(b) $3,230,000 cash to be paid to Seller at the Closing.
(c) Buyer will assume the existing first, second, third and
fourth priority trust deed loans on the Property at the Closing
pursuant to the terms of the Agreement of Assumption, Release and
Modification Re: Notes and Trust Deeds in the form attached hereto
as Exhibit "B," which shall be executed by all the parties thereto
concurrently with the execution of this Agreement. Any and all
costs and expenses related to Buyer's assumption and extension of
such loans shall be paid solely by Buyer. All accrued interest on
the loans to the date of Closing shall be paid by Seller.
3. Special Condition. Buyer's and Seller's obligation to close
the transaction described herein shall be conditioned upon C and M
Properties, L.L.C. executing and delivering the documents and materials
required under the C and M Easement Agreement attached hereto as Exhibit
C.
4. Other Consideration. As additional consideration for the
transaction described herein. Seller hereby grants to Buyer the right
to use the Property during the interim period from the date hereof
through Closing for the following purposes:
(i) Parking of motor vehicles for resort staff and guests; and
(ii) Access to Buyer's property located generally westerly of the
Property for both resort staff and guests.
The Buyer shall have the right to perform surface grading on the
Property to facilitate the foregoing uses.
Buyer indemnifies and holds Seller harmless from and against all
costs, expenses, and liability incurred as a result of Buyer's
activities on the Property exercised pursuant to this paragraph. Buyer
agrees to name Seller as an additional insured on Buyer's general
liability insurance policy with coverage of at least $5 million to be
evidenced by an insurance certificate with a 30"day cancellation clause.
5. Non-Contingent Transaction. Except as otherwise specifically
set forth in this Agreement, the purchase of the Property by Buyer is
not conditioned or contingent upon Buyer's approval of any inspection,
test or evaluation of the Property, any appraisal or other report
concerning the Property, any governmental approval relating to the
Property, or any act or event under the control of any third party.
6. Closing and Closing Costs. This transaction shall be closed on
January 15, 1998 (the "Closing" or the "Closing Date"), through Old
Republic Title Company of Utah, 0000 Xxxxxxxxxx Xxxxx, Xxxx Xxxx, Xxxx
00000 (the "Closing Office"). Upon demand, Buyer and Seller shall
deposit with the closing office all documents necessary to complete the
purchase and sale of the subject property in accordance with this
Agreement. Closing shall occur when: (x) Buyer and Seller have signed
and delivered to each other all documents required by this Agreement;
(y) the monies required to be paid under this Agreement have been
delivered to the closing office in the form of a cashier's check,
collected or cleared funds; and (z) all required documents have been
recorded. Buyer and Seller shall each pay one-half of the fee charged
by the Closing Office to act as escrow holder for this transaction.
Real estate taxes shall be prorated through the Closing Date. Seller
shall purchase an ALTA Owners standard title insurance policy to be
isssued by Old Republic Title Company of Utah in the name of Buyer
insuring Buyer in the full amount of the purchase price. Buyer and
Seller shall each pay such other closing costs, such as recording fees,
as is customary in Summit County, Utah, for real estate transactions.
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7. Representations and Warranties.
(a) Seller hereby represents and warrant, as follows:
(i) Seller has full power and authority to
execute and deliver this Agreement and to sell the
Property to Buyer on the terms and conditions set of
herein. The person or persons signing this Agreement on
behalf of Seller have full power and authority to bind
Seller to the terms of this Agreement.
(ii) Seller has fee title to the subject property
and will convey good and marketable title to Buyer at the
Closing by General Warranty Deed free of all liens,
encumbrances and restrictions except those easements,
deed restrictions, covenants, conditions and
restrictions, rights-of-way and other matters of record
as shown on Title Commitment No. 971100361, Effective
Date: November 4, 1997, issued by Old Republic Title
Company of Utah, and such liens as are specifically
assumed by Buyer pursuant to paragraph 2(c) hereof.
(iii) Seller shall vacate the existing plat and
road filed with Summit County at Closing.
(b) Buyer represents and warrants that Buyer has full power
and authority to execute and deliver this Agreement and to purchase
the Property from Seller on the terms and conditions set forth
herein. The person or persons signing this Agreement on behalf of
Buyer have full power and authority to bind Buyer to the terms of
this Agreement.
8. Unavoidable Delay; Time is of the Essence. In the event that
this sale cannot be closed by the Closing Date, or any act performed
within the time period provided herein, solely due to the interruption
of transport, strikes, fire, flood extreme weather, government
regulations, acts of God, or similar occurrences beyond the control of
Buyer and Seller, then the Closing Date or such other time period
provided herein shall be extended beyond the cessation of such
condition, but in no event by more than three (3) days of such
cessation. Thereafter, time is of the essence. Other than as stated in
this paragraph, al extensions of time must be agreed to in writing by
the parties.
9. Possession. Seller shall deliver possession of the Property
upon recording of the General Warranty Deed to Buyer.
10. No Changes During Transaction. During the pendency of this
Agreement, Seller agrees not to make any alterations or improvements to
the Property without the written consent of Buyer.
11. Right of Entry. Buyer and its engineers and other agents
shall have access to the Property at reasonable times after execution of
this Agreement for the purpose of conducting geological, soil, drainage,
engineering, building inspection environmental tests and other studies
and surveys which Buyer, in its reasonable discretion , deems necessary
in connection with the development of the Property. All such activities
shall be at Buyer's sole cost and expense. Buyer shall indemnify and
hold Seller harmless from and against all costs, expenses, and liability
incurred as a result of Buyer's activities on the Property exercised
pursuant to this paragraph. Any activities undertaken by Buyer as
described in this paragraph and Buyer's satisfaction or dissatisfaction
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with the results and findings resulting therefrom shall not constitute
or be deemed to represent a condition or contingency to Buyer's
obligations under this Agreement.
12. Finder's Fee. In the event that Buyer, or any affiliate of
Buyer, sells, or enters into any agreement to sell all, any portion of,
or any interest in the Property (the "Transaction") to the Aspen Group,
L.L.C., a Utah limited liability company, or its principals, including,
without limitation, X. Xxxx Fadan, or to any affiliated entity, or to
Westin Hotels and Resorts, or to any principals or affiliates thereof,
within twenty (20) months of the Closing Date, Seller agrees to pay to
Buyer a finder's fee equal to ten percent (10%) of the total sales price
or other value of the Transaction concurrently with the closing thereof
in consideration of Seller having introduced said parties to Buyer.
13. Complete Agreement - No Oral Agreements. This Agreement
constitutes the complete and entire agreement between the parties and
supersedes and cancels any and all prior negotiations, representations,
warranties, understandings or agreement between the parties. There are
no oral agreements which modify or affect this Agreement. This
Agreement cannot be changed, altered modified or amended except by
mutual written agreement of the parties.
14. Agreement Not Assignable By Buyer. Buyer shall have no right
to assign its rights or duties under this Agreement without the prior
written consent of Seller first had and obtained. Any attempted
assignment by Buyer shall render this Agreement void.
15. Risk of Loss. All risk of loss or damage to the Property
shall be borne by Seller until the Closing.
16. No Brokerage. Neither Buyer nor Seller are represented by a
real estate broker in this transaction and each party agrees to
indemnify and hold harmless the other from any claims, cost and expense,
including attorney's fees, made through such party against the other for
a real estate brokerage commission or other fee related to this
transaction.
17. Facsimile (FAX) Documents. Facsimile transmission of any
signed original document, and the retransmission of any signed facsimile
transmission, shall be the same as delivery of an original.
18. Notices. All notices under this Agreement shall either hand
delivered or be sent by certified mail, return receipt requested,
addressed as follows:
If to seller: WMR Investment Company, L.L.C.
00 Xxxxxxxx Xxxxx
Xxxx Xxxx, Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx,
Manager
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with a copy to:
Xxxx X. Xxxxxxx
Attorney At Law
0000 Xxxxx 000 Xxxx
Xxxx Xxxx, Xxxx 00000
If to Buyer: Alpine Resort Properties, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxx, Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Vice President
19. Default: Attorney's Fees.
(a) In the event of default by Buyer under this Agreement,
Seller shall retain the Xxxxxxx Money Deposit as liquidated
damages, and this Agreement shall be canceled without any further
action or consent of Buyer. In the event of default by Seller under
this Agreement, Buyer may elect to either accept from Seller, as
liquidated damages, a sum equal to the Xxxxxxx Money Deposit and
cancel this Agreement without any further action or consent of
Seller, or to xxx Seller for specific performance and/or damages.
If Buyer elects to accept liquidated damages, Seller agrees to pay
the liquidated damages to Buyer upon demand.
(b) Both parties agree that should either party default in
any of the covenants and agreements herein contained, the
defaulting party shall pay all costs and expenses, including
reasonable attorney's fees, which may arise or accrue from
enforcing or terminating this Agreement, or in pursuing any remedy
provided hereunder or by applicable law, whether such remedy is
pursued by filing suit or otherwise.
20. Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Utah without
regard to its conflicts o flaws provisions.
21. Survival. Except as otherwise provided herein, all covenants,
agreements, representations and warranties set forth in this Agreement
shall survive the Closing and shall not merge into any deed, assignment
or other instrument executed or delivered pursuant to this Agreement.
22. Non-Foreign Entity. Seller shall execute and deliver to Buyer
at the Closing an affidavit as required by Internal Revenue Code Section
1145(b)(2) setting forth Seller's taxpayer identification Number,
Seller's address, and stating that Seller is not a foreign person for
purposes of said Section.
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23. Countersignature. This Agreement may be executed in separate
copies, which together shall constitute a single, integrated document.
Executed by Buyer and Seller as of the date first above written.
WMR INVESTMENT COMPANY, L.L.C.,
a Utah limited liability company
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx, Manager
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, Manager
ALPINE RESORT PROPERTIES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Its Senior Vice President
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