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EXHIBIT 10.1
PURCHASE AGREEMENT
By and Between
Scout Development Corporation
a Missouri corporation,
("Scout"),
and
Fitzgeralds Reno, Inc.,
a Nevada corporation,
("Fitzgeralds").
October 8, 1999
Property Located At:
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇
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TABLE OF CONTENTS
Page
1. Definitions............................................................. 1
2. Purchase and Sale....................................................... 1
3. Due Diligence........................................................... 1
4. Deposit................................................................. 2
5. Rent and Purchase Price................................................. 2
6. Conditions to Agreement................................................. 3
6.1 Conditions Precedent............................................... 3
6.2 Waiver............................................................. 4
6.3 Termination........................................................ 4
7. Seller's Representations, Warranties, Covenants and Agreements.......... 4
7.1 Representations and Warranties..................................... 4
7.2 Covenants and Agreements........................................... 8
7.3 Breaches of Representations, Warranties and Covenants.............. 9
8 ...................................................................Deleted
8.1 ..............................................................Deleted
8.2 ..............................................................Deleted
9. Title, Escrow and Closing.............................................. 10
9.1 Conditions of Title............................................... 10
9.2 Title Insurance................................................... 10
9.3 Closing Date...................................................... 11
9.4 Deposits and Deliveries by Scout.................................. 11
9.5 Deposits and Deliveries by Fitzgeralds............................ 12
9.6 Closing........................................................... 12
9.7 Prorations........................................................ 13
9.8 Closing Costs..................................................... 14
9.9 Possession........................................................ 14
9.10 Filing of Reports................................................. 14
9.11 Cooperation....................................................... 14
10. Liquidated Damages..................................................... 15
11A. Damage and Destruction................................................. 15
11B. Condemnation........................................................... 15
12. Commissions............................................................ 16
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13. General Provisions..................................................... 16
13.1 Notices.......................................................... 16
13.2 Entire Agreement; No Modifications............................... 17
13.3 Time............................................................. 17
13.4 Attorneys' Fees.................................................. 18
13.5 Specific Performance............................................. 18
13.6 Successors and Assigns........................................... 18
13.7 Counterparts..................................................... 18
13.8 Construction..................................................... 18
13.9 Exculpation...................................................... 18
13.10 Expiration....................................................... 19
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULE 1 - Defined Terms
SCHEDULE 6.1(c) - Due Diligence Items
SCHEDULE 7.1 - Scout's Disclosures
EXHIBIT A - Legal Description
EXHIBIT B - Deleted
EXHIBIT C - List of Plans and Specifications
EXHIBIT D - List of Leases
EXHIBIT E - Title Commitment
EXHIBIT F - Form of Rental Income Certification
EXHIBIT G - Assignment and Assumption of Ground Lease Agreement
EXHIBIT H - Form of ▇▇▇▇ of Sale
EXHIBIT I - Form of Assignment of Leases
EXHIBIT J - Form of Assignment of Intangible Property and Contract
Obligations
EXHIBIT K - Form of Notice to Tenants
EXHIBIT L - Form of Non-Foreign Affidavit
EXHIBIT M - Form of Closing Certificate
EXHIBIT N - Form of Fitzgeralds Note
EXHIBIT O - Form of Deed of Trust and Security Agreement and to Secure
Performance
EXHIBIT P - Form of Tenant Estoppel Certificate
EXHIBIT Q - Form of Ground Lessor's Estoppel Certificate
EXHIBIT R - Deed
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made and entered into as
of October 8, 1999 by and between Scout Development Corporation, a Missouri
corporation ("Scout") and Fitzgeralds, Reno, Inc., a Nevada corporation
("Fitzgeralds").
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Scout and Fitzgeralds hereby agree as follows:
1. Definitions. Unless defined elsewhere in this Agreement, for the
purposes of this Agreement all words and phrases having their initial letters
capitalized herein shall have the meanings set forth in Schedule 1 attached
hereto.
2. Purchase and Sale. Subject to the terms and conditions of this
Agreement, Scout agrees to assign its entire interest (including, without
limitation, all air rights) in the Ground Lease and sell, grant and convey its
entire interest in the Improvements, the Personal Property, the Intangible
Property and all of Scout's interests as Landlord in and to the Tenant Occupancy
Leases to Fitzgeralds and Fitzgeralds agrees to accept such interest in the
Ground Lease and the Improvements, the Personal Property, the Intangible
Property and all of Scout's interests as Landlord in and to the Tenant Occupancy
Leases.
3. Due Diligence. From and after the date of this Agreement, subject to
the rights of tenants of the Property, Fitzgeralds and its agents shall have the
right to enter upon the Land and make any and all inspections, appraisals and
tests as Fitzgeralds deems prudent to determine whether it is feasible, in
Fitzgeralds sole and absolute discretion, to purchase the Property. Scout has
the right to approve in advance any inspection of the Property which will
involve the intrusive or destructive sampling or analysis of any portion of the
Property ("Phase 2 Investigation"). Scout shall have the right upon written
request to Fitzgeralds to obtain half of any samples, which Fitzgeralds may
obtain during any such Phase 2 Investigation. All such inspections and studies
shall be at Fitzgeralds' sole expense and Fitzgeralds shall furnish a copy of
any such inspections and studies to Scout upon Fitzgeralds receipt thereof.
Regardless of whether or not the transactions described in this Agreement shall
close, Fitzgeralds hereby indemnifies and holds Scout harmless from and against
all claims arising from or out of the presence of Fitzgeralds or its agents on
the Land or the exercise by Fitzgeralds of its rights in accordance with this
Section 3. In addition, Fitzgeralds shall keep the Land and Improvements free
from any and all liens that could arise as a result of the exercise of
Fitzgeralds' rights in accordance with this Section 3. Within ten (10) days of
the date of this Agreement, Scout shall provide to Fitzgeralds all of the items
listed on Schedule 6.1(c) attached to this Agreement (the "Due Diligence
Items"), provided such items are in the possession or control of Scout. The
provisions of this Section 3 shall survive the Closing or any termination or
cancellation of this Agreement notwithstanding any contrary provision hereof and
Fitzgeralds indemnification obligations (and Scout's right to enforce the same)
shall notwithstanding any contrary provision hereof, in no way be limited by the
limitations on Scout's remedies set forth in Section 10 hereof,
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Scout to have all rights and remedies at law or in equity in the enforcement of
Fitzgeralds indemnification obligation.
4. Deposit. Within three (3) days after the date this Agreement has
been executed by Scout and Fitzgeralds and Fitzgeralds has received a signed
copy thereof, Fitzgeralds shall deposit with the Title Company the sum of One
Hundred Thousand Dollars ($100,000.00) in immediately available funds as an
▇▇▇▇▇▇▇ money deposit (the "Deposit"). The Deposit shall be deposited in an
interest-bearing account mutually acceptable to Fitzgeralds and the Title
Company with interest accruing for the benefit of Fitzgeralds until disbursal to
Scout; provided, however, in the event that Fitzgeralds does not notify Scout in
writing on or before 5:00 p.m. (Central Time), December 27, 1999 (the "Outside
Date") of its election to proceed to Closing in accordance with this Agreement,
then the Title Company shall release the Deposit less the amount paid Scout, if
any, to Fitzgeralds and, with the exception of any terms that expressly survive
termination, this Agreement shall terminate and neither party shall have any
further liability to the other hereunder. Notwithstanding anything contained in
this Section 4 to the contrary, upon receipt of Ground Lessor's approval of the
Assignment and Assumption of Ground Lease Agreement as required by Section
12.01. of the Ground Lease ("Ground Lessor's Approval"), Fitzgeralds shall cause
the Title Company to deliver to Scout $50,000.00 in immediately available funds
in consideration of the rights granted to Fitzgeralds in this Agreement (the
"Independent Consideration"). The Independent Consideration is in addition to
and independent of any other consideration of payment provided in this
Agreement, is non-refundable and shall be retained by Scout notwithstanding any
other provision of this Agreement. The Independent Consideration shall be
credited against the Purchase Price (as defined below) at Closing. This
Agreement shall be of no force and effect until such time as (i) Fitzgeralds has
delivered the Deposit to the Title Company in accordance with the terms of this
Section 4., (ii) Scout and Fitzgeralds have executed this Agreement, and (iii)
the Deposit has been receipted by the Title Company. In the event the
Independent Consideration is not delivered to Scout within three (3) days after
the date of Fitzgeralds receipt of the Ground Lessor's Approval, this Agreement
shall terminate and neither party shall have any further liability to the other
hereunder.
5. Purchase Price. The total purchase price for the Property (the
"Purchase Price") shall be the sum of Three Million Dollars ($3,000,000.00)
which, subject to all prorations and adjustments provided in this Agreement,
shall be paid by Fitzgeralds to Scout through escrow on the Closing Date (except
the Deposit and the Independent Consideration which will be paid as provided in
Section 4 above) by payment to Scout of Six Hundred Fifty Thousand Dollars
($650,000.00) in immediately available funds with the remainder of the Purchase
Price (taking into account the credit for the Deposit and the Independent
Consideration) in the form of a note in the principal amount of the remainder of
the Purchase Price, bearing interest at ten percent (10%) per annum with monthly
payments of principal and interest amortized over twenty (20) years, the entire
unpaid balance due ten (10) years from the Closing Date and in the form
substantially identical to that set forth on Exhibit N attached hereto and made
a part hereof (the "Fitzgeralds Note"). The Fitzgeralds Note shall be secured by
a deed of trust and security agreement and to secure performance encumbering
Fitzgeralds, interest in the Ground Lease, the Improvements, the Personal
Property, the Intangible Property and all of Fitzgeralds' interests as
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Landlord in and to the Tenant Occupancy Leases and securing Fitzgeralds'
performance under the Ground Lease and the Assignment and Assumption of Ground
Lease Agreement in a form substantially similar to that set forth on Exhibit O
attached hereto and made a part hereof (the "Deed of Trust"). The Deed of Trust
will contain a "due on sale" clauses and a "due on encumbrance" clauses.
Additionally, Fitzgeralds agrees to deliver such other loan documents,
including, without limitation, an assignment of rents and leases, security
agreement and financing statement, as may be reasonably required by Scout.
6. Conditions to Agreement.
6.1 Conditions Precedent. Fitzgeralds' obligation to purchase
the Property or otherwise to perform any obligation provided in this Agreement
(with the exception of Fitzgeralds' obligation to pay the Deposit and the
Independent Consideration pursuant to Section 4 above) shall be conditioned
expressly upon the fulfillment to Fitzgeralds' satisfaction (as determined by
Fitzgeralds in its good faith business judgment) of each of the following
conditions precedent:
(a) The due and timely performance by Scout and/or third
parties of each and every covenant, undertaking and agreement to be performed by
Scout and/or such third parties as provided in this Agreement; and the truth,
accuracy and completeness in all respects of each representation and warranty
made in this Agreement by Scout both at the time made and on the Closing Date.
(b) Fitzgeralds' review and approval of: (i) the Title
Commitment including, without limitation, the exceptions to title and legal
description of the Land contained therein; (ii) the Survey; (iii) Tenant
Estoppel Certificates executed by all tenants of the Property; and (iv) Ground
Lessor's Estoppel Certificate.
(c) Fitzgeralds' approval of all of the Due Diligence
Items.
(d) Fitzgeralds' inspection, testing and approval of the
physical condition of the Property including, without limitation, inspection and
testing for the presence of asbestos, polychlorinated biphenyls or other
Hazardous Substances, and of the structural, mechanical, seismic, electrical and
other physical or environmental conditions or characteristics of the Property,
subject to the terms of Section 3. above.
(e) The receipt by Fitzgeralds of Ground Lessor's
Approval.
(f) The delivery to Fitzgeralds not less than ten (10)
days prior to the Outside Date, and Fitzgeralds' approval, of an updated, final
and complete inventory of all Personal Property to be sold to Fitzgeralds
pursuant to this transaction.
(g) As of the Closing Date, there shall have been no
material adverse change in the condition of the Property, or any portion
thereof, or in any document, Laws and Restrictions, contractual relations, or
other circumstances affecting the Property previously approved by Fitzgeralds.
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(h) Completion and approval in writing by Fitzgeralds
not more than ten (10) days prior to the Outside Date of Fitzgeralds', and
Fitzgeralds' approval, of an updated final inspection and review of Scout's
books, records, accounts and leases relating to the Property.
6.2 Waiver. At any time or times on or before the Closing
Date, at Fitzgeralds' election, Fitzgeralds may waive any of the foregoing
conditions by written notice to Scout. Other than Fitzgeralds' close of escrow
pursuant to this Agreement which shall waive all such unfulfilled conditions, no
waiver shall be effective unless made in writing specific as to the conditions
or matters so waived. No such waiver shall be inferred or implied by any act or
conduct of Fitzgeralds or reduce the rights or remedies of Fitzgeralds arising
from any breach of any undertaking, agreement, covenant, warranty, or
representation of Scout under this Agreement. It is agreed and understood that
in no event shall Scout have any obligation or responsibility to cure, correct,
repair or otherwise remedy any matter to which Fitzgeralds objects or otherwise
does not approve.
6.3 Termination. In the event any of the foregoing conditions
or other conditions to this Agreement which are for the benefit of Fitzgeralds
are neither fulfilled, nor waived as provided above, Fitzgeralds, at its
election by written notice to Scout, may terminate this Agreement and be
released from all obligations under this Agreement. In the event of termination
by Fitzgeralds, Scout shall authorize the Deposit and all interest accrued on
the Deposit to be returned immediately to Fitzgeralds, and all documents
deposited in escrow by Fitzgeralds or Scout shall be returned to the depositing
party.
7. Representations, Warranties, Covenants and Agreements.
7.1 Scout's Representations and Warranties. Each of the
following representations and warranties (i) is material and being relied upon
by Fitzgeralds, (ii) is made as an inducement to Fitzgeralds to enter into this
Agreement and consummate the transaction contemplated hereby, (iii) is true in
all respects as of the date of this Agreement, (iv) shall be true in all
respects on the Closing Date, and (v) shall survive the Closing for a period of
six (6) months. For the purposes of this Agreement, matters shall be deemed to
be within "Scout's knowledge" only if matters are within the actual current
knowledge of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ without performing any review or inspection of
any file or matter relating to the Property. Fitzgeralds acknowledges and agrees
that in making available to Fitzgeralds all Property documents which are in
Scout's possession or control, Scout does not represent that Scout or its
authorized agents have undertaken (and Scout and its duty authorized agent shall
have no duty or obligation whatsoever to undertake) any investigation with
respect to the Property or the Property documents or any matter set forth or
referred to therein. Scout represents and warrants to Fitzgeralds that, except
as disclosed in Schedule 7.1 to this Agreement:
(a) Scout has and will convey to Fitzgeralds, good,
marketable, and insurable leasehold title to the Property, pursuant to the
Ground Lease, free and clear of all liens, claims, covenants, conditions,
restrictions, rights of way, easements, options, licenses, judgments and
encumbrances of any kind, except the Conditions of Title (as defined in Section
9.1 below).
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(b) Scout has not received any notice that the
Property, including its present use and operation, is not in compliance with and
authorized by all Laws and Restrictions, including, without limitation, all
applicable building codes and the Americans With Disabilities Act of 1990, and
all amendments thereto, and Scout has not received notice that Scout has not
performed all conditions to, and paid all fees or other sums due with respect
to, any and all permits, licenses or other approvals relating to the Property.
To Scout's knowledge no zoning or land use variance, conditional use permit or
other special permission has been obtained or is required to be maintained for
the present, intended and continued use and operation of the Property. The
Property is located within an earthquake zone.
(c) Deleted.
(d) To Scout's knowledge; (i) there is not present,
nor was there present at any time in the past, upon, in or at the Property any
asbestos or polychlorinated biphenyls, or any structures, fixtures, equipment or
other objects or materials containing asbestos or polychlorinated biphenyls,
(ii) there is present or suspected to be present, upon, in, at or about the
Property, or the soil or groundwater thereof, Hazardous Substances, and (iii) no
portion of the Property is presently nor was at any time during Scout's
possession of the Property, used, operated or occupied for the generation,
manufacture, treatment, storage, transportation, discharge or disposal (whether
intentional or accidental) of any Hazardous Substances. Scout has not performed
or caused to be performed any independent inspection or investigation with
respect to the matters set forth in this subsection 7.1(d); and provided
further, in making the representation set forth in this subsection 7.1(d), Scout
is relying upon the information, including, without limitation, the groundwater
contamination addressed on page 5 thereof, provided by that one certain
"Proposed Re-Trac Project Plan" prepared by ▇▇▇▇▇ ▇▇▇▇▇▇, P. E., Director of
Public Works, City of Reno, published on the WWW: May 14, 1999, which report is
incorporated herein in its entirety as though repeated verbatim. Scout hereby
notifies Fitzgeralds that pursuant to the Proposed Re-Trac Project Plan the
railroad tracks currently in place on the Land will be lowered and the
construction activity may affect the operation of the Improvements.
(e) To Scout's knowledge, Scout has not received any
threatened, proposed or contemplated litigation, action, administrative
proceeding or assessment (including, without limitation, eminent domain
proceedings, public improvement assessments, development or special benefit
assessments, zoning changes or variances, and property tax increases) which in
any way relates to, arises out of or which would or may in any way affect the
Property or Scout's ability to perform its obligations under this Agreement or
any documents executed by Scout pursuant to this Agreement. Except as expressly
set forth in a written list, if any, which Scout has previously delivered to
Fitzgeralds, there have been no insurance claims, incident reports, suits,
actions or proceedings filed by, on behalf of, or against Scout within the
preceding three (3) year period, whether or not still pending, settled or
otherwise completed, which in any way arise or arose out of, relate or related
to, or affect or affected the Property or Scout's ownership, management or
operation thereof.
(f) To Scout's knowledge, the Property has been
constructed, completed, modified and maintained in accordance with (i) all
required permits and approvals, all required permits and approvals,
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(ii) all Laws and Restrictions, (iii) accepted standards of good materials and
competent work, (iv) the Plans and Specifications, and (v) the recommendations
contained in any soils report or seismic study prepared in connection with
construction of the Improvements. To Scout's knowledge all development
obligations with respect to or arising out of the development and/or
construction of the Property (including, without limitation, construction of any
required off-site improvements, dedications and payment of in-lieu or other
development fees or exactions) have been fully satisfied and discharged.
Fitzgeralds acknowledges that Scout did not plan, build or otherwise construct,
the Property and that, as a result, Scout does not possess the knowledge and
information it might possess if it had planned or built the Property. Scout
hereby notifies Fitzgeralds that the "walkway" referenced in Section 9.1(c)
hereinafter is presently in the process of being removed and this activity may
affect the operation of the Improvements.
(g) Except for the retail area occupied by a tenant, the
sprinkler system is dry and is not charged. Also, there is an obstruction in the
toilet facility on the first level of the Property. The Property includes two
elevators and ticket spitters.
(h) To Scout's knowledge, the Property is connected to
and serviced by water, solid waste and sewage disposal, storm drainage,
telephone and electricity facilities and all other utilities and services which
are necessary or customary for the use, operation and occupancy of the Property.
To Scout's knowledge Scout has not received any notice that the Property is not
in compliance with any Laws and Restrictions.
(i) There is no personal property, including without
limitation, furniture, appliances, equipment, fixtures or supplies owned by
Scout and/or utilized by Scout on a substantially exclusive basis in connection
with the use, operation and occupancy of the Property except as set forth on the
Personal Property Inventory.
(j) Scout has delivered to Fitzgeralds true and complete
copies of all Tenant Occupancy Leases all of which are listed accurately in the
Rent Roll. Except as specifically set forth in the Rent Roll or the documents
listed therein, (i) there are no oral or written leases, work letter agreements,
improvement agreements, or other rental, use or occupancy agreements affecting
the Property in force, (ii) no person has any right of possession, use or
occupancy of the Property or any part of it, (iii) no unsatisfied rent or other
concessions have been granted any tenant, (iv) no rent has been paid in advance
by any tenant, (v) no tenant has any claim against Scout for any improvement or
relocation credit or payment, or for any security deposits or other deposits nor
for interest on any security deposits or other amounts, (vi) no tenant has any
defense or offset to rent or other charges accruing after the Closing Date,
(vii) all of the Tenant Occupancy Leases have been executed, are in full force
and effect and full rent is accruing thereunder, (viii) no default or breach
exists and no event has occurred which, with the giving of notice, the passage
of time, or both, would constitute a default on the part of Scout or any tenant
under the Tenant Occupancy Leases, (ix) no continuing tenant under any Tenant
Occupancy Lease failed to timely pay rent at any time during the immediately
preceding six (6) month period, (x) Scout has not received any notice nor has
any reason to believe that any tenant intends to terminate, breach or fail to
renew its lease, or is or may become unable to perform its obligations under its
Tenant Occupancy Lease, or that any guarantors under any Tenant
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Occupancy Lease have become subject to any bankruptcy proceeding or have been
released or discharged, voluntarily, involuntarily, or by operation of law, from
any obligation with respect to or relating to any Tenant Occupancy Lease, and
(xi) no brokerage or leasing commission or other similar payment or fee is due
or unpaid or partially paid or may become due in the future with respect to any
Tenant Occupancy Lease.
(k) Scout will deliver to Fitzgeralds true and complete
copies of all Contract Obligations, all of which are listed accurately in the
List of Contract Obligations. Except to the extent specifically identified in
the List of Contract Obligations, no default or breach exists under any such
Contract Obligations, nor has any event occurred which, but for the giving of
notice or passage of time, or both, would constitute a default by any party
thereto. The Property has been managed, maintained, operated, and serviced,
pursuant to the Contract Obligations and otherwise, consistent with standards in
the industry for the operation of similar projects of comparable quality in the
same area as the Property is located.
(l) Except for the existing Tenant Occupancy Leases and
the Contract Obligations, Scout has not entered into or undertaken, and there do
not exist, any written or oral commitments, arrangements, agreements or
obligations of any kind affecting the Property that are not cancelable on not
more than thirty days' notice and which will be canceled by Scout on or before
the Closing Date.
(m) To Scout's knowledge, neither Scout's execution of
this Agreement nor performance by Scout of any of its obligations hereunder
including, without limitation, the transfer, assignment and sale of the Property
contemplated by this Agreement (i) violates or shall violate any written or oral
contract, agreement or instrument to which Scout is a party or is bound or which
affects the Property or any part of it, or (ii) shall constitute or result in
violation or breach by Scout of any judgment, order, writ, injunction or decree
issued or imposed upon Scout, or result in violation of any Laws and
Restrictions; and to Scout's knowledge no approval, consent, order,
authorization, designation, filing (other than recording), registration,
notification of, by or with any judicial or governmental authority is required
in conjunction with Scout's execution of this Agreement and performance of its
obligations hereunder.
(n) To Scout's knowledge, none of the representations or
warranties in this Agreement, nor any descriptive information concerning the
Property set forth in this Agreement, nor any document, statement, certificate,
schedule or other information furnished or to be furnished by or on behalf of
Scout to Fitzgeralds in connection with this Agreement (including, without
limitation, operating and financial statements) contains, or will as of the
Closing Date contain, any untrue statement of a material fact or omits, or will
as of the Closing Date omit, to state a material fact necessary to make the
statements of facts contained therein not misleading.
(o) Scout is not a "foreign person" as defined in
Internal Revenue Code Section 1445 and any related regulations.
(p) There is no union contract affecting the Property or
the employees of Scout or its property manager.
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(q) Deleted
(r) Prior to Closing Scout will execute and cause to
be executed and filed in the official records of Washoe County, Nevada that
certain Deed of Correction and Reformation and Boundary Line Adjustment
Agreement ("Deed of Correction"), a copy of which has previously been delivered
to Fitzgeralds and the attendant Record of Survey.
7.2. Fitzgeralds' Representations and Warranties. Fitzgeralds'
represents and warrants to Scout that the following statements are true as of
the date hereof and shall continue to be true on the Closing Date:
(a) Both Fitzgeralds and the individual executing
this Agreement on behalf of Fitzgeralds have the full right, power and authority
to enter into this Agreement and such documents as are contemplated herein, and
to cause the same to create a legal and binding obligation of Fitzgeralds.
(b) Neither the execution of this agreement nor will
the Closing of the sublease and purchase of the Property violate any agreement,
governmental regulation or judicial decree affecting Fitzgeralds.
(c) Fitzgeralds is not aware that any of Scout's
representations and warranties are untrue on the date hereof.
(d) Fitzgeralds is financially able to perform all of
its obligations under this Agreement, including, without limitation, payment of
the Fitzgeralds' Note and performance of its obligations under the Deed of
Trust, all as more fully described hereinafter.
7.3 Covenants and Agreements. Scout and Fitzgeralds hereby
specifically covenant and agree that, on and after the date of this Agreement:
(a) Scout shall timely deliver and provide to
Fitzgeralds all of the documents and things required to be provided by or on
behalf of Scout to Fitzgeralds as provided in Section 6.1 above; and Scout shall
use commercially reasonable efforts to fulfill prior to the Closing Date, and to
assist Fitzgeralds in fulfilling, on a timely basis and with all due diligence,
each of the conditions precedent set forth in Section 6.1 above and all other
conditions to this Agreement.
(b) Fitzgeralds shall have the right to enter onto
and inspect and test the Property, to interview tenants and personnel, and to
inspect and have complete access to all documents in Scout's possession or under
Scout's control relating thereto (including, without limitation, all books and
records, leases, maintenance records and structural information), provided that
Fitzgeralds shall timely pay for all such inspections and tests, discharge all
liens which may arise therefrom and repair or restore any and all damage or
injury to the Property resulting from such inspections and tests subject to the
terms of Section 3. above.
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(c) Scout shall (i) manage, maintain, insure, lease,
operate, and service the Property, or cause the Property to be managed,
maintained, insured, leased, operated and serviced, consistent with past
practices of Scout in its operation of the Property, (ii) keep the Property and
every portion thereof in good working order and repair as that existing on the
date hereof, except for normal use, wear and tear, (iii) maintain a sufficient
inventory of supplies, materials, equipment and other personal property for the
proper management, maintenance, operation and servicing of the Property, (iv)
not remove or permit the removal of any Personal Property or any fixtures from
the Property unless such items are replaced immediately with Personal Property
or fixtures of equal or greater value, (v) timely perform all its obligations
under all Contract Obligations, including, without limitation, the Ground Lease,
Tenant Occupancy Leases and Laws and Restrictions including, without limitation,
the payment of all bills, charges, invoices, salaries, benefits, and other
expenses arising in connection with the Property, (vi) not modify, terminate,
cancel, extend, or amend any existing Contract Obligations, nor enter into any
new contracts or arrangements which will affect the Property on or after the
Closing Date without Fitzgeralds' consent, which consent shall not be
unreasonably withheld or delayed, (vii) not modify, terminate, cancel, extend or
amend any existing Tenant Occupancy Lease, nor accept any payment of rent or
other charges from any tenant of the Property applicable to a period exceeding
one month in advance, nor apply any security deposit to rent due from any tenant
of the Property, nor grant any material consent relating to any existing Tenant
Occupancy Lease, nor enter into any new lease, work letter agreement,
improvement agreement, or other rental agreement affecting the Property without
Fitzgeralds' prior written approval except in the ordinary course of business,
and (viii) not employ any additional person(s) at the Property or change the
terms of or terminate any existing employee's employment at the Property without
Fitzgeralds' prior written consent.
(d) Scout shall promptly notify Fitzgeralds in
writing of any event or circumstance which adversely affects Scout's ability to
perform its obligations under this Agreement in a timely manner, or the
likelihood of timely satisfaction of the conditions precedent set forth above,
or the truth of any representation or warranty contained herein.
(e) Deleted.
(f) Each party shall promptly notify the other in
writing of any event or circumstance which adversely affects such party's
ability to perform its obligations under this Agreement in a timely manner, or
the likelihood of timely satisfaction of the conditions precedent set forth
above, or the truth of any representation or warranty contained herein.
7.4 Breaches of Representations, Warranties and Covenants. It
will be a condition to Fitzgeralds' obligation to consummate the Closing that
all above representations, warranties and covenants of Scout is accurate as of
the Closing Date. If any representation, warranty or covenant above is known by
Fitzgeralds, prior to the Closing, to be untrue and is not remedied by Scout
prior to Closing, Fitzgeralds may, as Fitzgeralds sole and exclusive remedy on
account thereof, either (i) terminate this Agreement in which case Scout shall
authorize the Deposit to be refunded to Fitzgeralds and neither party shall have
any further rights or obligations pursuant to this Agreement, or (ii) waive its
objections and close the transaction with
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no reduction in the Purchase Price. In the event Fitzgeralds breaches its
representations, warranties and covenants, Fitzgeralds shall be in default under
this Agreement and Scout shall be entitled to terminate this Agreement, receive
the Deposit, and neither party shall have any further rights or obligations
pursuant to this Agreement.
8. Deleted
9. Title, Escrow and Closing.
9.1 Conditions of Title. Scout shall convey good and
marketable leasehold interest in the Land and good and marketable title to the
Improvements at Closing subject to no exceptions other than the following (the
"Conditions of Title"):
(a) The lien for local real estate taxes and
assessments not yet due or payable;
(b) The Ground Lease;
(c) That certain Mutual Estoppel Certificate and
Agreement for Removal of Walkway between Scout and Shamrock Holdings Group,
Inc., a Delaware corporation;
(d) Items 6, 7, 8, 9, 10, 11 and 12 set forth in
Schedule B of the Title Commitment;
(e) Interests of tenants pursuant to Tenant Occupancy
Leases approved by Fitzgeralds; and
(f) Such other exceptions arising after the date of
the Title Commitment as shall have been approved by Fitzgeralds in writing in
its sole discretion.
9.2 Title Insurance. Fitzgeralds' obligation to purchase the
Property shall be subject to the irrevocable commitment of the Title Company to
issue upon payment of its normal premium at Closing its ALTA Extended Coverage
Owner's Policy of Title Insurance (Form B, Rev. 10/17/70), together with such
endorsements as Fitzgeralds may reasonably require [(including, without
limitation, CLTA endorsements numbered 100 (modified), 100.6, 103.4, 103.7, 116,
116.1, 116.4, 116.7 and 123.2),] insuring Fitzgeralds' leasehold interest in the
Ground Lease in the amount of Three Million Dollars ($3,000,000) subject only to
the Conditions of Title, with reinsurance (including direct access rights) in
the current ALTA form, with companies and in such amount as Fitzgeralds shall
reasonably require, all as set forth in a pro-forma policy of title insurance to
be delivered to and approved by Fitzgeralds at least three (3) business days
before the Closing Date. Scout's obligation to sell the Property shall be
subject to the irrevocable commitment of the Title Company to issue upon payment
of the Title Company's normal premium at Closing its Mortgagee Policy of Title
Insurance in the amount of Fitzgeralds' Note.
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9.3 Closing Date. Through an escrow established with the Title
Company, Fitzgeralds and Scout shall consummate this transaction on the Closing
Date or such earlier date designated by Fitzgeralds upon not less than three (3)
business days prior written notice to Scout.
9.4 Deposits and Deliveries by Scout. Scout shall deposit or
cause to be deposited into escrow with the Title Company, or deliver directly to
Fitzgeralds outside of escrow, on or before the Closing Date, the following
documents duly executed and acknowledged as required:
(a) Two (2) counterpart originals of the Assignment
and Assumption of Ground Lease Agreement in the form attached hereto as Exhibit
G.
(b) A ▇▇▇▇ of Sale in the form attached hereto as
Exhibit H transferring the Personal Property to Fitzgeralds (the "▇▇▇▇ of
Sale").
(c) An Assignment of Leases in the form attached
hereto as Exhibit I transferring to Fitzgeralds all of Scout's interest as
landlord under the Tenant Occupancy Leases (the "Assignment of Leases").
(d) An Assignment of Intangible Property and Contract
Obligations in the form attached hereto as Exhibit J transferring all of the
Intangible Property and Contract Obligations to Fitzgeralds (the "Assignment of
Intangible Property").
(e) A letter to each of the tenants under the Tenant
Occupancy Leases in form attached hereto as Exhibit K (the "Notice To Tenants").
(f) An Affidavit of Non-Foreign Status in form
attached hereto as Exhibit L (the "Non-Foreign Affidavit").
(g) Ground Lessor's Approval and Ground Lessor's
Estoppel Certificate.
(h) A Deed in the form attached hereto as Exhibit R
transferring the Improvements to Fitzgeralds (the "Deed").
(i) Scout's written escrow instructions to close
escrow in accordance with the terms of this Agreement.
(j) Evidence reasonably acceptable to Fitzgeralds'
counsel that the documents delivered to Fitzgeralds by Scout at Closing have
been duly authorized by Scout, duly executed on behalf of Scout and when
delivered constitute valid and binding obligations of Scout.
(k) Such other documents, resolutions, consents and
affidavits necessary or advisable to effect the valid consummation of the
transaction evidenced by this Agreement.
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9.5 Deposits and Deliveries by Fitzgeralds. Fitzgeralds shall
deposit or cause to be deposited into escrow with the Title Company, or deliver
directly to Scout outside of escrow, on or before the Closing Date, each of the
following documents duly executed and acknowledged as required and funds:
(a) Cash, wire transfer or other immediately
available funds (the "Purchase Funds") in the amount of Six Hundred Fifty
Thousand Dollars ($650,000), as provided in Section 5 hereunder.
(b) Two (2) counterpart originals of the Assignment
and Assumption of Ground Lease Agreement.
(c) The Fitzgeralds' Note.
(d) The Deed of Trust and such other loan documents
as are referenced in Section 5 above.
(e) A counterpart original of the Assignment of
Leases.
(f) Deleted.
(g) A counterpart original of the Assignment of
Intangible Property.
(h) Fitzgeralds' written escrow instructions to close
escrow in accordance with the terms of this Agreement.
(i) Evidence reasonably acceptable to Scout's counsel
that the documents delivered to Scout by Fitzgeralds at Closing have been duly
authorized by Fitzgeralds, duly executed on behalf of Fitzgeralds and when
delivered constitute valid and binding obligations of Fitzgeralds.
9.6 Closing. The Title Company shall close escrow on the
Closing Date when and if it is irrevocably committed to issue the title
insurance described in Section 9.2 above and has received all of the documents
and funds listed in Sections 9.4 and 9.5 above. The Title Company shall close
escrow by:
(a) Recording the Assignment and Assumption of Ground
Lease Agreement, the Assignment of Leases, and the Deed of Trust, in that order.
(b) Issuing to Fitzgeralds the owner's leasehold
policy of title insurance described in Section 9.2 above.
(c) Delivering to Fitzgeralds an original of the
Assignment and Assumption of Ground Lease Agreement, ▇▇▇▇ of Sale, the
Assignment of Intangible Property, the Notice to Tenants, the Non-Foreign
Affidavit and the Closing Certificate each duly executed by Scout.
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(d) Delivering to Scout an original of the Assignment and
Assumption of Ground Lease Agreement and the Fitzgeralds' Note each duly
executed by Fitzgeralds and the Purchase Funds after deducting Scout's share of
closing cost and perorations.
(e) Issuing to Scout the mortgagee's policy of title
insurance described in Section 9.2 above.
(f) Delivering to Fitzgeralds and Scout of copies of all
other documents and things deposited and/or delivered through escrow, the
originals of which are not being delivered by the Title Company to such parties,
together with Title Company's final closing statement for the subject
transaction.
9.7 Prorations.
(a) Rents and other income, current taxes, insurance
premiums and management, service, operating and maintenance expenses shall be
prorated between Scout and Fitzgeralds as of the Closing Date. All bonds,
assessments, encumbrances and other charges against the Property levied on or
before the Closing Date shall be paid in full by Scout. Rent shall be prorated
on the basis of the actual number of days in the month on the basis of the final
Rent Roll, regardless of whether of not such rent has actually been paid to
Scout. Income and expenses shall be prorated on the basis of the actual number
of days in a month. All rents and other sums received by Fitzgeralds on or after
the Closing Date shall be applied first to rent and other obligations accrued or
due on or after the Closing Date, then to Fitzgeralds' costs of collection, if
any, including attorneys' fees, and any excess paid by tenants for rent or other
obligations owed prior to the Closing Date shall be paid to Scout, provided that
Fitzgeralds shall have no obligation to collect delinquent rents for Scout's
account.
(b) All deposits made by tenants of the Property as
security for rent, cleaning or any other purpose (whether identified as
refundable or non-refundable) and prepaid rents and all interest accrued or due
on such sums (whether under applicable law or by agreement) shall, at the sole
option of Fitzgeralds, be paid to Fitzgeralds in cash on the Closing Date or
credited against the Purchase Price to be paid by Fitzgeralds.
(c) All items subject to proration pertaining to the period
prior to the Closing dated shall be credited to Scout, and all such prorations
pertaining to the period on or following the Closing Date shall be credited to
Fitzgeralds. No later than three (3) business days prior to the Closing Date,
Scout and Fitzgeralds shall mutually agree upon, and provide to Title Company, a
schedule of prorations to be made as of the Closing Date as complete and
accurate as reasonably possible. All prorations which can be determined
accurately or reasonably estimated as of the Closing Date shall be made in
escrow on the Closing Date. All other expenses of the Property through the end
of the calendar month in which the Closing Date shall occur shall be paid by
Scout, subject to adjustment as provided below. All other prorations, and
adjustments to initial estimated prorations or other non-prorated expenses,
shall be made by Fitzgeralds and Scout with due diligence and cooperation within
thirty (30) days following the Closing Date, or such later time as may be
required to obtain necessary information for proration or adjustment, by cash
payment to the party yielding a net credit from such prorations or
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adjustments from the other party. Such cash payment shall be made within ten
(10) business days of demand for payment by the party entitled to receive such
payment and, if not timely paid, such amount due shall bear interest from the
date due until the date of actual payment at the interest rate set forth in
Section 7.3 above.
(d) Scout agrees that benefits or compensation with
respect to employees of Scout in connection with the Property accrued on or
prior to the Closing Date due or claimed to be due either before or after the
Closing Date to employees or former employees of Scout who will be employed by
Fitzgeralds shall constitute, be and remain the sole obligation of Scout. All
employees with respect to the Property, whether or not such employees will be
retained by Fitzgeralds, shall be paid in full by Scout or Scout's management
company on or prior to the Closing Date, including all accrued vacation pay and
other fringe benefits through the day prior to the Closing Date.
9.8 Closing Costs. Fitzgeralds shall pay the cost of all
transfer, sales and conveyance taxes imposed by any governmental authority upon
this transaction, title insurance and endorsement premiums for the title
insurance described in Section 9.2 above, survey costs, recording fees, escrow
fees and Fitzgeralds' legal fees and costs incurred in connection with the
contemplated transaction. Scout shall be solely responsible for the cost
(including payment of prepayment fees or other charges) to pay off in full and
have canceled and discharged of record, all liens, encumbrances and other
instruments of record other than the approved Conditions of Title. In addition,
Scout shall pay Scout's legal fees and costs incurred in connection with the
contemplated transaction.
9.9 Possession. The possession of the Property shall be
delivered to Fitzgeralds at funding, in its "AS IS", "WHERE IS" condition with
all faults and without warranties of any kind, express or implied, or arising by
operation of law, except only the title warranties expressly set forth in the
deed and subject to the rights or parties in possession of the Property. Right
to possession of the Land and title to the Property shall transfer to
Fitzgeralds on the Closing Date, subject to the rights of the tenants under the
approved Tenant Occupancy Leases. Scout shall transfer and deliver to
Fitzgeralds on the Closing Date the originals of all approved Tenant Occupancy
Leases, all approved written Contract Obligations, all instruments and documents
evidencing or relating to the Intangible Property and all other documents
transferred to Fitzgeralds by this Agreement which have not yet been delivered
to Fitzgeralds.
9.10 Filing of Reports. Title Company shall be solely
responsible for the timely filing of any reports or returns required pursuant to
the provisions of Section 6045(e) of the Internal Revenue Code of 1986 (and any
similar reports or returns required under any state or local laws) in connection
with the closing of the transaction contemplated in this Agreement.
9.11 Cooperation. Without further consideration, Scout and
Fitzgeralds shall execute, acknowledge and deliver to each other on or after the
Closing Date any and all other instruments or documents, and do and perform any
other acts which may be required or which Fitzgeralds or Scout may reasonably
request in order to fully assign, transfer and or convey to
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Fitzgeralds, and vest in Fitzgeralds, good and marketable title to the Property
and a leasehold interest in the Land, and each and every part and component
thereof.
10. Liquidated Damages. In the event that (i) all of the conditions to
this Agreement shall have been satisfied, or waived in writing by Fitzgeralds,
(ii) Scout shall have fully and timely performed all of its obligations under
this Agreement, and (iii) Fitzgeralds shall default in performance of its
obligations under this Agreement, then the Deposit shall be paid by Title
Company to Scout as liquidated damages. FITZGERALDS AND SCOUT HEREBY ACKNOWLEDGE
AND AGREE THAT SCOUT'S DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND
THE AMOUNT OF THE DEPOSIT IS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE
DAMAGES SCOUT WOULD SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS
AGREEMENT FAILS TO CLOSE UNDER THE FOREGOING CONDITIONS, AND IS REASONABLE UNDER
THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, FITZGERALDS AND
SCOUT AGREE THAT THE SCOUT'S RIGHT TO RETAIN THE DEPOSIT SHALL BE THE SOLE AND
EXCLUSIVE REMEDY OF SCOUT IN THE EVENT OF A BREACH OF THIS AGREEMENT BY
FITZGERALDS.
---------------------------- ----------------------------
FITZGERALDS SCOUT
11.A. Damage and Destruction. In the event that the Property shall be
damaged or destroyed by reason of fire, storm, accident, or other casualty, and
the cost of repair thereof shall not exceed $50,000.00, Scout shall, at Scout's
option, either repair said damage or pay to Fitzgeralds the insurance proceeds
received by Scout from the insurance company protecting Scout against such
casualty. If Scout shall elect to pay the insurance proceeds to Fitzgeralds, but
such proceeds are not sufficient to repair the Property, Fitzgeralds may
terminate this Agreement by written notice to Scout within five (5) days of
receipt of Scout's election to pay over the insurance proceeds. In the event the
cost of repair exceeds the sum of $50,000.00, either Fitzgeralds or Scout may
cancel this Agreement upon written notice to the other of them within ten (10)
days after the insurance claim has been settled, and Title Company shall return
the Deposit to Fitzgeralds and neither party shall have any further rights or
liabilities hereunder. If neither Scout nor Fitzgeralds gives the other such
notice of termination, Fitzgeralds shall take title to the Property, provided,
however, Scout shall either repair such damage or pay to Fitzgeralds the
insurance proceeds received by Scout. Fitzgeralds shall have the right if fire
damage exceeds $50,000.00 to close and accept an assignment of insurance
proceeds.
Scout shall exercise its option as to whether or not Scout shall repair
the Property or pay the insurance proceeds to Fitzgeralds no later than thirty
(30) days after the occurrence of the casualty.
11.B. Condemnation. In the event that the entire Property or a part
thereof having a value in excess of $50,000.00 shall have been taken by eminent
domain or shall be in the process of being so taken, as of the Closing Date,
either party shall have the option to terminate this Agreement on written notice
to the other party, whereupon Title Company shall return the
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Deposit to Fitzgeralds and neither party shall have any further rights or
liabilities hereunder. In the event any such taking shall not include a part of
the Property having a value in excess of $50,000.00 or in the event that neither
party shall terminate this Agreement pursuant to the preceding sentence,
Fitzgeralds accepts the Property in the condition in which it is left following
such taking, with an abatement of the Purchase Price measured by the net
proceeds of any condemnation award to Scout. In the event the award has not been
made or collected by Scout at the time of Closing, Scout shall assign to
Fitzgeralds at Closing all rights of Scout to the collection of such award, and
Fitzgeralds shall accept the Property without abatement of the Purchase Price.
12. Commissions. Each party to this Agreement warrants to the other
that except as provided in this Section 12, no person or entity can properly
claim a right to a real estate commission, real estate finder's fee, real estate
acquisition fee or other real estate brokerage-type compensation (collectively,
"Real Estate Compensation") based upon the acts of that party with respect to
the transaction contemplated by this Agreement, and each party hereby agrees to
indemnify, defend and protect the other against and to hold the other harmless
from any loss, cost or expense (including but not limited to attorneys' fees and
returned commissions) resulting from any claim for Real Estate Compensation by
any person or entity based upon such acts except as follows: [No brokers were
involved in this transaction.]
13. General Provisions.
13.1 Notices. Any notice required or permitted to be given
under this Agreement shall be in writing and (i) personally delivered, (ii) sent
by United States mail, registered or certified mail, postage prepaid, return
receipt requested, (iii) sent by Federal Express or similar nationally
recognized overnight courier service, or (iv) transmitted by facsimile with a
hard copy sent within one (1) business day by any of the foregoing means, and in
all cases addressed as follows, and such notice shall be deemed to have been
given upon the date of actual receipt or delivery (or refusal to accept
delivery) at the address specified below (or such other addresses as may be
specified by notice in the foregoing manner) as indicated on the return receipt
or air ▇▇▇▇:
To Seller: Scout Development Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Executive Vice
President and Chief Operating Officer
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Phone No. (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇ ▇. ▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Phone No. (▇▇▇) ▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
To Fitzgeralds: Fitzgeralds Reno, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice
President and Chief Financial Officer
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Phone No. (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇ & Silver, Ltd.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Phone No. (▇▇▇) ▇▇▇-▇▇▇▇
13.2 Entire Agreement; No Modifications. This Agreement,
together with the schedules and exhibits attached hereto, incorporates all
agreements, warranties, representations and understandings between the parties
to the Agreement with respect to the subject matter hereof and constitutes the
entire agreement of Scout and Fitzgeralds with respect to the purchase and sale
of the Property. Any prior or contemporaneous correspondence, memoranda,
understandings, offers, negotiations and agreements, oral or written, are merged
herein and replaced in total by this Agreement and the exhibits hereto and shall
be of no further force or effect. This Agreement may not be modified or amended
except in a writing signed by Scout and Fitzgeralds.
13.3 Time. Time is of the essence in the performance of the
parties' respective obligations set forth in this Agreement.
13.4 Attorneys' Fees. In the event any action or proceeding at
law or in equity between Fitzgeralds and Scout (including an action or
proceeding between Fitzgeralds and Scout or the trustee or debtor in possession
while either is a debtor in a proceeding under the Bankruptcy Code (Title 11 of
the United States Code or any successor statute to such Code) to enforce or
interpret any provision of this Agreement or to protect or establish any right
or remedy of either Fitzgeralds or Scout hereunder, the unsuccessful party to
such action or proceeding shall pay to the prevailing party all costs and
expenses including, without limitation, reasonable attorneys' and paralegals'
fees and expenses, incurred by such prevailing party, in such action or
proceeding and in any appeal in connection therewith, whether or not such
action, proceeding or
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appeal is prosecuted to judgment or other final determination, together with all
costs of enforcement and/or collection of any judgment or other relief.
13.5 Specific Performance. The parties understand and agree
that the Property is unique and for that reason, among others, Fitzgeralds will
be irreparably damaged in the event that this Agreement is not specifically
enforced. Accordingly, in the event of any breach or default in or of this
Agreement or any of the warranties, terms or provisions hereof by Scout,
Fitzgeralds shall have as its sole and exclusive remedies: return of the Deposit
or specific performance of this Agreement, provided that Fitzgeralds irrevocably
waives any and all rights that it may have to specifically enforce this
Agreement, in the event that Scout's default arises out of an inability to
convey good, indefeasible and insurable title to Fitzgeralds. All other remedies
not specifically enumerated herein are waived by Fitzgeralds
13.6 Successors and Assigns. This Agreement may be assigned by
Scout without the prior written consent of Fitzgeralds provided Scout's assignee
assumes in writing all the obligations of Scout under this Agreement. Subject to
the foregoing provision, this Agreement shall inure to the benefit of and be
binding upon the parties to this Agreement and their respective successors and
assigns. Fitzgeralds shall have the right to assign its rights under this
Agreement to any partnership or entity of which Fitzgeralds owns or controls,
directly or indirectly, fifty percent (50%) or more of the total equity interest
of such entity provided; however, (i) any such assignment shall not relieve
Fitzgeralds of its obligations under this agreement, and Fitzgeralds will
guarantee in writing the performance of the obligations of such assignee, (ii)
Fitzgeralds delivers to Scout prior written notice of such assignment and (iii)
Fitzgeralds' assignee assumes in writing all of the obligations of Fitzgeralds
under this Agreement.
13.7 Counterparts. This Agreement may be executed in one or
more counterparts and each such counterpart shall be deemed to be an original;
all counterparts so executed shall constitute one instrument and shall be
binding on all of the parties to this Agreement notwithstanding that all of the
parties are not signatory to the same counterpart.
13.8 Construction. This Agreement shall be governed by and
construed under the laws of the State of Nevada. The parties acknowledge that
each party and its counsel have reviewed and revised this Agreement and that no
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall be employed in the interpretation of this
Agreement or any schedules or exhibits to it or any document executed and
delivered by either party in connection with this Agreement. All captions in
this Agreement are for reference only and shall not be used in the
interpretation of this Agreement or any related document. If any provision of
this Agreement shall be determined to be illegal or unenforceable, such
determination shall not affect any other provision of this Agreement and all
such other provisions shall remain in full force and effect.
13.9 Exculpation. Scout will look solely to the net assets of
Fitzgeralds for satisfaction of any claims or obligations of Fitzgeralds to
Scout, whether under this Agreement or otherwise, and not to any assets of any
of the partners of Fitzgeralds (or any of the officers,
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directors, shareholders or partners of such officers, directors, shareholders or
partners), and Scout hereby agrees that for these purposes a deficit capital
account of a partner of or in Fitzgeralds shall not be deemed an asset of
Fitzgeralds.
*13.10 Expiration. See Below.
IN WITNESS WHEREOF, Fitzgeralds and Scout have executed this Agreement as
of the date and year first written above:
SCOUT: FITZGERALDS:
SCOUT DEVELOPMENT CORPORATION, FITZGERALDS RENO, INC.,
a Missouri corporation a Nevada corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------- -------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President Title: Executive Vice President/CFO
*13.10 Expiration. The execution of this Agreement by Scout constitutes
an offer to sell the Property on the terms described herein. In the event
Fitzgeralds does not accept Scout's offer to sell by signing this Agreement, and
returning an executed counterpart of this Agreement to Scout and the Title
Company by 5:00 P.M. Central Standard Time, October 13, 1999, this offer will
automatically terminate.
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▇▇▇▇▇▇▇ MONEY RECEIPT
The Title Company hereby acknowledges receipt of this fully executed
Agreement and the ▇▇▇▇▇▇▇ Money in the amount of $100,000.00 on the 10th day of
October, 1999.
FIRST AMERICAN TITLE COMPANY OF NEVADA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Escrow Officer
-------------------------------
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SCHEDULE 1
DEFINED TERMS
For the purposes of this Agreement, the following words and phrases shall have
the following meanings unless the context otherwise specifies or requires:
"Assignment of Intangible Property" means that document set forth on
Exhibit J of this Agreement, attached hereto and made a part hereof.
"Closing" shall mean the close of escrow pursuant to this Agreement of
the transacting contemplated by this Agreement.
"Closing Certificate" means that document set forth on Exhibit M of
this Agreement, attached hereto and made a part hereof.
"Closing Date" shall mean March 31, 2000, which is the agreed outside
date for closing of the contemplated transaction.
"Conditions of Title" shall have the same meaning as set forth in
Section 9.1 of this Agreement.
"Contract Obligations" shall mean those contracts, agreements,
commitments, employment agreements, service contracts, utility contracts,
construction contracts, maintenance agreements, leasing and brokerage agreements
and all other contracts, agreements and obligations, whether or not in writing,
which relate to the ownership, operation, management, maintenance, use or
occupancy of the Property.
"Deed" means that document set forth on Exhibit R of this Agreement.
"Deed of Trust" means that document set forth on Exhibit O of this
Agreement.
"Due Diligence Items" shall have the same meaning as set forth in
Section 3 of this Agreement.
"Environmental Laws" shall mean any and all presently existing federal,
state and local laws (whether under common law, statute, rule, regulation or
otherwise), requirements under permits issued with respect thereto, and other
requirements of any federal, state or local governmental agency, court, board,
bureau or other authority having jurisdiction with respect to or relating to the
environment, to any Hazardous Substance or to any activity involving Hazardous
Substances, and shall include, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. Section 9601,
et seq., the Federal Resource Conservation and Recovery Act (42 U.S.C. Section
6901, et seq.) and all amendments thereto in effect as of the Closing Date.
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"Fitzgeralds" shall have the same meaning as set forth in the opening
paragraph of this Agreement.
"Fitzgeralds' Note" means that document set forth on Exhibit N of this
Agreement.
"Ground Lease" shall mean that certain Ground Lease dated as of March
1, 1978 between Southern Pacific Transportation Company, a Delaware corporation
("Southern Pacific") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇"), as amended by that
certain (i) Supplemental Agreement dated February 22, 1979 between Southern
Pacific and ▇▇▇▇▇▇▇▇▇, (ii) Supplemental Agreement dated July 16, 1984 between
Southern Pacific and Plaza Investments, a Nevada general partnership (by and
through ▇▇▇▇▇▇▇▇▇), (iii) Memorandum Confirming Rent Adjustment dated January 1,
1989 between Southern Pacific and Plaza Investments, and (iv) Deed of Correction
and Reformation and Boundary Line Adjustment Agreement dated ________________,
1999 between Union Pacific Railroad, G and S Investment Company, a Nevada
limited partnership, and Scout and the Record of Survey.
"Ground Lessor" shall mean G and S Investment Company, a Nevada limited
partnership.
"Ground Lessor's Estoppel Certificate" shall mean that document set
forth on Exhibit Q of this Agreement.
"Hazardous Substances" shall mean and include any chemical, compound,
material, mixture, waste or substance that is now or hereafter defined or listed
in, or otherwise classified pursuant to, any Environmental Laws as a "hazardous
substance", "hazardous material," "hazardous waste," "extremely hazardous
waste," "infectious waste," "toxic substance," "toxic pollutant" or any other
formulation intended to define, list, or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, or toxicity including any petroleum, natural gas, natural gas
liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixture of
natural gas and such synthetic gas). "Hazardous Substances" shall include,
without limitation, any hazardous or toxic substance, material or waste or any
chemical, compound or mixture which is (i) asbestos, (ii) designated as a
"hazardous substance" pursuant to Section 1317 of the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), (iii) defined as a "hazardous
waste" pursuant to Section 6903 of the Federal Resource Conservation and
Recovery Act, (42 U.S.C. Section 6901 et seq., (iv) defined as "hazardous
substances" pursuant to Section 9601 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.), or
(v) listed in the United States Department of Transportation Table (49 CFR
172.101) or by the Environmental Protection Agency as hazardous substances (40
CFR part 302); or in any and all amendments thereto in effect as of the Closing
Date; or such chemicals, compounds, mixtures, substances, materials or wastes
otherwise regulated under any applicable local, state or federal Environmental
Laws.
"Improvements" shall mean all improvements and fixtures now or
hereafter located on the Land including, without limitation, the existing
building constructed on the Land together with all appurtenances thereto and all
apparatus, equipment and appliances located on the Land
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and used in connection with the operation and occupancy thereof such as systems
or facilities for heating, ventilation, air conditioning, climate control,
utility services, parking services, garbage disposal, irrigation, and all
landscaping and residual interests in leasehold improvements under the Tenant
Occupancy Leases.
"Intangible Property" shall mean all property other than the Personal
Property, the Land, and the Improvements now or hereafter owned or held by Scout
and used in connection with the ownership, operation or occupancy thereof
including, without limitation, the name ("Plaza Street Garage") and all other
names under which the Land, the Improvements and/or the Personal Property are
operated or commonly known, all copyrights, trademarks, trade names and service
marks used in the operation of the Land, the Improvements or the Personal
Property, the Plans and Specifications, all appraisal, engineering, soils, pest
control and other studies or reports relating to the Land, the Improvements
and/or the Personal Property, all catalogues, customer lists, correspondence
with present or prospective tenants, customers or suppliers, all advertising and
promotional materials, all telephone exchange numbers identified with the Land,
the Improvements, and/or the Personal Property, all awards or payments made or
to be made for or with respect to any taking in condemnation or eminent domain
(including awards or payments for damage resulting from change of grade or
impairment of access) of any part of the Land, the Improvements and/or the
Personal Property prior to, on or after the date hereof, all rents, issues and
profits therefrom and to the extent, if any, approved by Fitzgeralds pursuant to
the terms of this Agreement, all consents, licenses, franchises, permits,
utility and/or subdivision bonds or deposits, purchase or construction
warranties or guarantees and other rights owned by Scout relating to the
operation, ownership or occupancy of the Land, the Improvements and/or the
Personal Property.
"Land" shall mean the real property described in Exhibit A to this
Agreement, including all easements, riparian or other water rights, rights of
way and other interests appurtenant thereto, and all right, title and interest
of Scout in and to any land lying in the bed of any street, road, highway or
avenue, open or proposed, in front of, adjacent to or adjoining such real
property and in all strips and gores.
"Laws and Restrictions" shall mean all applicable federal, state, local
and other laws, statutes, regulations, codes, orders, ordinances and rules
including, without limitation, those relating to fire, safety, building,
construction, land use, subdivision, health, labor, environmental protection,
seismic design, conservation, parking, handicapped access, zoning and building,
and all restrictive covenants (if any), other title encumbrances and other
obligations affecting the Property, all Environmental Laws, all applicable
provisions of the Fair Housing Act of 1968 and the Americans With Disabilities
Act of 1990, and all amendments thereto, and all requirements under Tenant
Occupancy Leases.
"Non-Foreign Affidavit" means that document set forth on Exhibit L of
this Agreement.
Notice to Tenants" means that document set forth on Exhibit K of this
Agreement.
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"Outside Date" shall have the same meaning as set forth in Section 4 of
this Agreement.
"Personal Property" shall mean those items of personal property listed
the Personal Property Inventory to be delivered as provided in Section 3 of this
Agreement and all other personal property now or hereafter owned or held by
Scout and used in connection with the Land, the Improvements and/or the
Intangible Property or the ownership, operation or occupancy thereof including,
without limitation, all furniture, fixtures, machinery, appliances and equipment
located on the Property, other than personal property owned by tenants of the
Property.
"Plans and Specifications" shall mean the final plans and
specifications for construction of the Improvements as listed in Exhibit C to
this Agreement.
"Property" shall mean collectively (i) all of Scout's leasehold
interests in the Land, (ii) the Improvements, (iii) the Personal Property, (iv)
the Intangible Property and (v) all of Scout's interest, as landlord, in and to
the Tenant Occupancy Leases.
"Purchase Price" shall have the same meaning as set forth in Section 5
of this Agreement.
"Recordation Date" means the date on which the Assignment and
Assumption of Ground Lease Agreement is recorded in the Official Records of the
County in which the Land is located.
"Rent Roll" shall mean a listing of all leases of any portion of the
Property in form acceptable to Fitzgeralds and setting forth, among other
things, with respect to each lease: (1) the name of the tenant; (2) the date of
the lease, and the date(s) of any amendment(s) or modification(s) thereof; (3)
the date the tenant is scheduled to take possession if the tenant is not in
possession; (4) the date the tenant is scheduled to or intends to vacate if such
fact is known to Scout; (5) the current monthly rental (including charges, if
any, payable by the tenant under the lease and detailing all rent concessions),
or if the unit is not leased, the monthly rental which would be charged if a new
lease were entered into (including a list of the above additional charges for
such unit and all rent concessions which would be allowed); (6) the lease
expiration date, if any; (7) the amount of the security deposit required under
the lease, if any, and the amount of the security applied or returned to the
tenant, if any; (8) any commission liability in respect of the lease (and a copy
of the commission agreement); (9) a description of any agreement or
understanding between Scout (or any predecessor of Scout) and the tenant which
is at variance with the form of lease used for the Property whether such
agreement or understanding results from a modification or addition to the form
or is contained in a separate writing or oral understanding; and (10) a
description of any rental payment delinquency during the preceding six (6) month
period.
"Scout" shall have the same meaning as set forth in the opening
paragraph of this Agreement.
"Survey" means an ALTA survey of the Land on an "as-built" basis in
form and substance acceptable to Fitzgeralds and Title Company.
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"Tenant Estoppel Certificate" means that document set forth on Exhibit
P of this Agreement.
"Tenant Occupancy Leases" shall mean all leases, work letter
agreements, improvement agreements, and other rental agreements listed in
Exhibit D to this Agreement with respect to occupancy or use of the Property by
tenants, and such other leases, work letter agreements, improvement agreements,
and other rental agreements as may be approved by Fitzgeralds in accordance with
the terms of this Agreement.
"Title Commitment" shall mean the Commitment for Title Insurance with
respect to the Land and Improvements dated as of July 12, 1999, and issued by
the Title Company under its Order No. 16269-RB, a copy of which is attached to
this Agreement as Exhibit E.
"Title Company" shall mean First American Title of Nevada as agent for
First American Title Insurance Company whose address for this transaction is as
follows:
First American Title of Nevada
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Escrow No. 1999-16269RB
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Phone No. (▇▇▇) ▇▇▇-▇▇▇▇
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SCHEDULE 6.1(c)
DUE DILIGENCE ITEMS
Copies of all documents noted as exceptions in the Title Commitment.
Original of the Rent Roll certified by Scout as true and correct. Fitzgeralds
acknowledges receipt of this item; provided, however that the Rent Roll shall be
updated by Scout within ten (10) days prior to Closing.
Past 3 years Property operating statements and capital expenditures summaries.
Fitzgeralds acknowledges receipt of this item.
Capital improvement summary for current period.
Original of a Rental Income Certification executed by Scout in form of Exhibit F
attached hereto.
Copies of all existing Tenant Occupancy Leases and correspondence files relating
thereto. Fitzgeralds acknowledges receipt of this item.
Any other information concerning the Property which Fitzgeralds may reasonably
request in writing.
Copies of the most recent tax bills and assessments for the Property.
ALTA Survey of the Land on an "as-built" basis in form and substance acceptable
to Fitzgeralds and Title Company, obtained by Fitzgeralds. Scout will provide
only the most current survey in its possession or control.
Complete set of the most recent "building" Plans and Specifications.
Scout does not have a termite and pest control report in its possession or
control.
Scout does not have copies, if any, of existing soils reports, geologic or
seismic studies and environmental reports in its possession or control.
List of Contract Obligations.
Copies of all existing insurance policies or acceptable certificates of
insurance.
Copies of Contract Obligations. Fitzgeralds acknowledges receipt of this item.
Copies of all purchase and construction warranties or guarantees.
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List of all employees engaged with respect to the Property, setting forth in
respect of each employee: (1) his or her name and address; (2) his or her
position; (3) his or her current salary or wages and fringe benefits including
vacation time and free or reduced rent; (4) and his or her Christmas or other
bonus, if any.
Past 3 years insurance claims, incidents reports, litigation and proceedings
summary.
Personal Property Inventory.
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SCHEDULE 7.1
SCOUT'S DISCLOSURES
The Property is located within an earthquake zone.
Scout has provided to Fitzgeralds that one certain "proposed Re-Trac
Project Plan" prepared by ▇▇▇▇▇ ▇▇▇▇▇▇, P. E., Director of Public Works, City of
Reno, published on the WWW: May 14, 1999. This report states that on page 5
thereof the ground water is contaminated. Also, the proposed Re-Trac Project
Plan provides that the railroad track currently in place on the Land will be
lowered and the construction activity may affect the operation of the
Improvements.
Scout has provided to Fitzgeralds a copy of that one certain letter
dated July 14, 1999 from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, attorneys for Tarianna Nazieux,
notifying Scout Development Corporation of injuries sustained as the result of
an accident which occurred on May 16, 1998.
Fitzgeralds acknowledges that Scout did not plan, build or otherwise
Construct the Property and that, as a result, Scout does not possess the
knowledge and information it might possess if it had planned or built the
Property. Scout hereby notifies Fitzgeralds that the "walkway" referenced in
Section 9.1(c) hereinafter is presently in the process of being removed and
this activity may affect the operation of the Improvements.
Except for the retail area occupied by the tenant area, the sprinkler
system is dry and is not charged. Also, there is an obstruction in the toilet
facility in the first level of the Property. The Property includes two elevators
and ticket spitters.
The Deed of Correction and the Record of Survey must be executed by
parties other than Scout in order to be completed and filed in the official
records of Washoe County, Nevada. Fitzgeralds acknowledges receipt of a copy of
the Deed of Correction and Record of Survey.
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EXHIBITS A-R are intentionally omitted.