Nevada-Las Vegas-Travelodge Purchase Agreement - Grand Casinos Nevada I Inc. and Metroflag BP LLC
PURCHASE AGREEMENT
BY AND AMONG
GRAND CASINOS NEVADA I, INC.,
A MINNESOTA CORPORATION
as Seller
and
Metroflag BP, LLC,
a Nevada limited liability company
as Buyer
Effective Date: December 28, 2001
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("AGREEMENT") is entered into this 28th day of
December, 2001, by and between GRAND CASINOS NEVADA I, a Minnesota corporation
("GCN") (hereafter referred to as "GCN" or "SELLER") and METROFLAG BP, LLC, a
Nevada limited liability company ("BUYER").
RECITALS:
1. Seller is the tenant under that certain Lease Agreement originally by
and between Brooks Family Trust and Nevada Brooks Cook, as Landlord, and
Cloobeck Enterprises, a California corporation ("CLOOBECK") and GCN, as Tenant,
dated June 17, 1996 (the "BROOKS LEASE"), covering the real property located in
Las Vegas, Nevada which is improved with a motel operating under the name of
"Travelodge" and which real property is legally described on EXHIBIT A attached
hereto (the "TRAVELODGE PARCEL").
2. Buyer desires to purchase the Seller's interest in the Travelodge
Parcel, including Seller's leasehold interest under the Brooks Lease,
Seller's option to purchase the Travelodge Parcel as provided in the
Brooks Lease (collectively, the "TRAVELODGE PROPERTY"), and any personal
property owned by Seller and physically located on the Travelodge Property
("PERSONAL PROPERTY") all in accordance with the terms and conditions
hereinafter set forth. the travelodge property and any personal property
pertaining thereto and any appurtenant rights to the foregoing shall
collectively be hereafter referred to as the "PROPERTY."
3. Seller is willing to grant and extend to Buyer such purchase
right.
4. Seller is also the fee owner of real property located in Las
Vegas, Nevada, which is improved with an underground parking structure and
a retail shopping center known as the "Polo Plaza" and which real property
is legally described on EXHIBIT B attached hereto (the "POLO PROPERTY").
5. Simultaneously herewith, Metroflag Polo, LLC, a Nevada limited
liability company ("METROFLAG POLO") and Seller have entered into that
certain Purchase Agreement (the "POLO PURCHASE AGREEMENT") whereby
Metroflag Polo has agreed to purchase and Seller has agreed to sell to
Metroflag Polo the Polo Property.
NOW, THEREFORE, in consideration of the agreements hereinafter provided
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by Buyer and Seller, Seller agrees to sell to Buyer, and
Buyer agrees to purchase from Seller the Property in its "As-Is, Where-Is, with
All Faults" condition (except as otherwise specifically provided or represented
in this Agreement) as more particularly set forth in this Agreement.
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SECTION I
PURCHASE PRICE; REDEVELOPMENT/CONSTRUCTION LOAN
AND DEFICIT NOTE
(a) It is hereby agreed that the purchase price for the Property shall be
Eight Million and 00/100 Dollars ($8,000,000.00) (the "PURCHASE PRICE"). THE
PURCHASE PRICE SHALL BE PAID BY BUYER TO SELLER AS FOLLOWS:
(i) $500,000.00 cash (the "DOWN PAYMENT"), subject to prorations,
payable by Buyer at Closing (as hereinafter defined).
(ii) Buyer shall execute and deliver to Seller at the Closing (i) a
promissory note in the original principal amount of $7,500,000.00 (the "NOTE")
substantially in the form of EXHIBIT C attached hereto payable to the order of
Seller in such amount, and (ii) a first priority Deed of Trust (the "DEED OF
TRUST") on the Property securing the Note, substantially in the form of EXHIBIT
D attached hereto. The Note shall provide that the principal balance thereunder
shall not accrue interest. The entire outstanding principal balance under the
Note shall become due and payable on June 28, 2004 (the "MATURITY DATE").
(iii) Upon either, the satisfaction of all the Post-Closing
Conditions (as hereinafter defined), or Buyer's waiver of any unsatisfied
Post-Closing Conditions, Buyer shall pay to Seller $500,000.00 (the "SECOND
PAYMENT") and the Down Payment and the Second Payment shall become
non-refundable. The Second Payment shall be deemed to be a partial prepayment of
the Note and shall reduce the outstanding principal balance of the Note
accordingly.
(b) Buyer contemplates obtaining financing of up to $4,000,000.00 (the
"REDEVELOPMENT/CONSTRUCTION LOAN") for certain redevelopment and construction on
the Property (the "LIMITED IMPROVEMENTS") which financing would be secured by a
deed of trust on the Property. Provided that (i) Buyer can reasonably
demonstrate to Seller that the Limited Improvements and the leasing of the
Property at prevailing market rates can reasonably be expected to enhance the
value of the Property by not less than an amount equal to one hundred and fifty
percent (150%) of the principal amount of the Redevelopment/Construction Loan,
(ii) Buyer provides Seller with assurances reasonably acceptable to Seller of
the cost of construction and that any construction financed by the
Redevelopment/Construction Loan shall be completed, (iii) the
Redevelopment/Construction Loan is assumable by Seller, and (iv) the Limited
Improvements are bonded and on a guaranteed maximum general contract, Seller
agrees to subordinate the Deed of Trust to any deed of trust securing a
Redevelopment/Construction Loan and shall execute and deliver to any lending
institution providing such Redevelopment/Construction Loan any and all
reasonable and customary subordination agreements and other agreements required
in connection therewith.
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(c) During the term of the Note, Seller acknowledges and agrees that
Seller shall advance to Buyer on a monthly basis an amount equal to one-half
(1/2) of the monthly cash operating deficit from the operation of the Property
for the prior calendar month; provided, however, that Seller shall not be
obligated to advance more than $3,000,000.00 in the aggregate for such cash
operating deficits. Buyer shall be obligated to repay any such amounts advanced
to Buyer pursuant to the form of Deficit Note attached hereto as EXHIBIT I (the
"DEFICIT NOTE").
SECTION II
BUYER'S PUT RIGHT
(a) In the event that: (i) (A) one or more of the representations and
warranties set forth in Section III is breached, (B) Buyer notifies Seller
thereof within the Post Closing Conditions Period, and (C) the aggregate
reasonably foreseeable damages which Buyer could incur resulting therefrom could
be expected to exceed $250,000.00 (either singly or in the aggregate for all
such breaches), and (D) Seller fails to cure such breaches by the expiration of
the Post-Closing Conditions Period; or (ii) Seller does not satisfy all of the
Post-Closing Conditions set forth in Section V hereof by the expiration of the
Post-Closing Conditions Period, then, at Buyer's option, Seller shall be
obligated to repurchase the Property from Buyer (the "REPURCHASE") on the terms
and conditions set forth below. Buyer shall provide written notice to Seller of
its election to either require the Seller to consummate the Repurchase (the
"REPURCHASE NOTICE") within five (5) business days after the expiration of the
Post-Closing Conditions Period. The closing of such repurchase shall occur not
later than fifteen (15) days after the date that the Repurchase Notice is
delivered to Seller.
(b) In the event Seller is required to repurchase the Property as
described above, (i) Buyer shall convey the Property to Seller by the same form
of assignment of the Brooks Lease in its "AS-IS" - "WHERE-IS" condition subject
to all matters affecting title thereto present on the Closing Date and any
additional matters which may have arisen after the Closing Date (subject to
Buyer's Post-Closing Covenants as defined below), (ii) the purchase price for
such repurchase shall be $500,000.00 payable in cash (by certified check or wire
transfer of immediately available funds), (iii) Seller shall assume any
Redevelopment and Construction Loan, (iv) the Note and Deficit Note shall be
cancelled and Buyer shall no longer have any liability to Seller thereunder, (v)
Seller shall assume the general contract and any other agreements or contracts
entered into by Buyer in related to the planning, design and construction of the
Limited Improvements, including, without limitation, any contracts with any
architects, engineers, consultants, contractors, suppliers and materialmen and,
subject to Buyer's Post-Closing Covenants, any leases entered into by Buyer
affecting the Property (the "POST-CLOSING AGREEMENTS"), (vi) Seller shall have
the option (but not the obligation) to assume all of Buyer's obligations under
any contracts, agreements and obligations entered into by Buyer after the
Closing Date other than the Post-Closing Agreements, (vii) subject to Buyer's
Post-Closing Covenants, Buyer shall assign to Seller at the Closing of the
Repurchase all of Buyer's right, title and interest to any plans, drawings,
sketches, renderings and other work product of any architects, engineers,
contractors or consultants engaged by Buyer after the Closing hereunder, and
(viii) Seller shall indemnify Buyer from any and all claims, damages or
liabilities
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whatsoever in connection with any Post-Closing Agreements which accrue on and
after the date of the Repurchase and Buyer shall indemnify Seller from any and
all claims, damages or liabilities whatsoever in connection with any
Post-Closing Agreements which accrue prior to the date of the Repurchase.
(c) Buyer contemplates commencing pre-development activities, including,
without limitation, planning, pre-leasing, surveying, demolition and
construction on the Property (the "PRE-DEVELOPMENT ACTIVITIES") before the
expiration of the Post-Closing Conditions Period. Buyer covenants to Seller that
Buyer shall (i) not execute any leases affecting the Property unless such leases
contain a provision allowing the landlord to terminate the lease upon ninety
(90) days notice to the tenant, and (ii) not enter into any contracts or
agreements with a term in excess of one (1) year affecting the Property other
than the Post-Closing Agreements. The foregoing covenants in (i) and (ii) are
collectively refereed to as "BUYER'S POST-CLOSING COVENANTS".
SECTION III
EXISTING LEASES
Seller hereby represents and warrants to Purchaser that attached to this
Agreement as composite EXHIBIT E is a complete and correct list of all written
leases (other than the Brooks Lease) and subleases (and all amendments thereto,
if applicable), tenancies or other occupancy arrangements affecting the
Travelodge Property (collectively, the "Leases"), setting forth the name of the
tenant, the space affected, the rent, the term (including any options to renew),
the security deposit, if any, and any special concessions, prepaid rent, options
to purchase or rights of first refusal. Seller represents and warrants to
Purchaser that:
a. No other parties have any rights of occupancy or possession of the
Property or any portions thereof except as set forth in EXHIBIT E
attached hereto and no tenant of any portion of the Property has any
option to purchase the Property or any portion thereof, nor any
rights of first refusal with respect to same (other than rights of
Seller under the Brooks Lease).
b. Seller has not received security deposits under any of the Leases
except the security deposits listed in EXHIBIT E, and Seller has not
accepted payment of any rent under any of the Leases for more than
one (1) month in advance.
c. There are no modifications, understandings or agreements with
respect to the Leases except as set forth in the Leases.
d. All of the Leases are in good standing and without default on the
part of Seller as of the date hereof. Seller has not delivered any
notice of default to any of the tenants under the Leases and except
as described in EXHIBIT E, Seller is not aware of any tenant
defaults thereunder. This representation shall survive the Closing.
e. There are no rental commissions due with respect to any of the
Leases nor for
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the renewal of same.
f. Except for the Leases and the contracts and agreements listed on
EXHIBIT F attached hereto, to the best of Seller's knowledge, Seller
has not entered into (and the Property is not subject to) any
contracts, arrangements, licenses, concessions, easements, or other
agreements, including, without limitation, service arrangements and
employment agreements, either recorded or unrecorded, written or
oral, affecting the Property, or any portion thereof or the use
thereof. Seller represents that it has provided Buyer with true,
complete and correct copies of all contracts and agreements listed
in EXHIBIT F.
SECTION IV
TITLE EVIDENCE
Buyer has received and reviewed a title insurance commitment prepared by
Lawyers Title of Nevada, Inc. (the "Title Company") and that certain preliminary
survey dated June 23, 2000, prepared by G. C. Wallace, Inc. (the "Survey") and
has determined that the matters set forth in EXHIBIT G attached hereto are not
acceptable to Buyer (the "Unacceptable Exceptions"). Any additional matters
shown on any endorsement to the Commitment or an updated Survey arising prior to
the Closing Date which, in Buyer's exclusive (but reasonable) discretion,
adversely affect Buyer's ability to own, use and develop the Property in any
material respect shall be deemed to be Unacceptable Exceptions.
Seller has elected to satisfy or remove to Buyer's reasonable satisfaction (and
that of Title Company) all Unacceptable Exceptions so that such matters may be
eliminated as exceptions to the Commitment. Seller shall use its reasonable best
efforts to satisfy, remove by payment, bonding, or otherwise all of the
Unacceptable Exceptions, including bringing suit, if necessary, to cure any such
Unacceptable Exceptions.
SECTION V
POST-CLOSING CONDITIONS
Buyer and Seller acknowledge that the conditions set forth below in this
Section were expected to be satisfied prior to the Closing but because of Buyer
and Seller's desire to close the transaction contemplated hereby on the Closing
Date, Buyer and Seller have agreed that such conditions are to be satisfied as
set forth in this Section. Consequently, Seller acknowledges and agrees that
Seller shall be obligated to complete or satisfy the following conditions
(collectively, the "POST CLOSING CONDITIONS") within one hundred eighty (180)
days after the Closing Date (the "POST CLOSING CONDITIONS Period"):
(a) the form of Amended and Restated Grant of Reciprocal Easements
and Declaration of Covenants, Conditions and Restrictions (the "AMENDED REA")
attached hereto as EXHIBIT H which form has been approved by Buyer and Seller
(or substantially the same form
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thereof with only such changes as may be acceptable to Buyer in its discretion)
shall have been approved by all necessary parties (including, without
limitation, the legal approval by any condominium or time share associations
pertaining to the Towers Parcel (as defined in the Amended REA) in full
compliance with their respective constituent and governing documents (the
"ASSOCIATIONS")), and all conditions precedent therein shall have been
satisfied, executed by all parties thereto (including all holders of deeds of
trust or mortgages, to the extent legally required, consented to by the fee
owner of the Travelodge Property and the signature by the Brooks Fee Owners of
the Consent and Joinder of Brooks Fee Owners attached thereto), and filed for
record, which will have the effect of amending and restating the 1996 REA and
the 1998 REA (as those terms are defined in the Amended REA), superceding the
1996 REA and the 1998 REA in all respects and any easement affecting the
Property as reasonably required by Buyer; and
(b) Seller shall satisfy and/or remove all Unacceptable Exceptions.
SECTION VI
CLOSING CONDITIONS
Buyer and Seller acknowledge and agree that the closing of the transaction
contemplated under the Polo Purchase Agreement shall occur simultaneously with
the Closing hereunder.
SECTION VII
"AS-IS", "WHERE-IS" CONDITION
Buyer acknowledges that it is purchasing the Property in its "as is", "where
is", with all faults condition (except as specifically provided for or
represented herein) relying otherwise solely on its own existing knowledge and
inspection of the Property. Except as set forth herein, Seller makes no
representations or warranties as to any matters affecting the Property or as to
the quality and quantity of the Property, including, without limitation, to the
condition of any improvements thereto.
SECTION VIII
CLOSING
The closing of Buyer's purchase of the Property (the "CLOSING") shall
occur simultaneously with the execution of this Agreement by the parties hereto
and such date shall be referred to herein as the "CLOSING DATE".
The Closing shall take place in the office of Seller's counsel in Las
Vegas, Nevada on or before Closing Date. Possession of the Property shall be
deemed to have been given by Seller to Buyer coincident with the Closing. The
following procedure shall govern the Closing:
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(a) At the Closing, Seller shall deliver to Title Company an
appropriate form of Assignment and Assumption of Lease Agreement and
Landlord Consent assigning the Brooks Lease (the "ASSIGNMENT") BY SELLER
AND THE CURRENT OWNERS OF THE LANDLORD'S INTEREST UNDER THE BROOKS LEASE
TO BUYER, WHICH ASSIGNMENT WILL NOT BE RECORDED AND A MEMORANDUM OF SAID
ASSIGNMENT (THE "MEMORANDUM") WHICH SHALL BE IN RECORDABLE FORM AND SHALL
CONVEY GOOD AND MARKETABLE RECORD TITLE TO THE SELLER'S INTEREST IN THE
TRAVELODGE PARCEL (USING THE LEGAL DESCRIPTION SET FORTH ON THE
COMMITMENT) TO BUYER, SUBJECT ONLY TO CURRENT REAL ESTATE TAXES AND ANY
ENCUMBRANCES WHICH ARE NOT UNACCEPTABLE EXCEPTIONS.
(b) On the Closing Date Seller shall deliver the following:
(i) the Assignment and the Memorandum properly executed and
acknowledged along with a standard form Seller's
Affidavit if required by the County Recorder;
(ii) current real estate tax statements;
(iii) properly executed assignments of Seller's interest in
and to the Leases and any other documents necessary to
transfer Seller's interest in such Leases to Buyer;
(iv) a Quit Claim Bill of Sale to Personal Property;
(v) a FIRPTA Affidavit;
(vi) properly executed form of Post-Closing Agreement
attached hereto as EXHIBIT J (the "POST CLOSING
AGREEMENT");
(vii) such funds as may be required by Seller to pay Closing
costs or charges properly allocable to Seller; and
(viii) notices to tenants of the Travelodge Property directing
future rentals to be paid to Buyer.
(c) On the Closing Date, Buyer shall deliver the following:
(i) the balance of the cash due at Closing;
(ii) properly executed Assignment (as same pertains to the
assumption by Seller of the obligations of tenant
thereunder);
(iii) the Note, Deficit Note, the Deed of Trust and the
Indemnity Deed of Trust attached hereto as EXHIBIT K
(the "INDEMNITY DEED OF
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TRUST"), all properly executed and, with respect to the
Deed of Trust and Indemnity Deed of Trust, in
recordable form, along with all applicable fees, taxes
and recording fees necessary to record the Deed of
Trust and the Indemnity Deed of Trust;
(iv) the Option Agreement (and a memorandum thereof, if
necessary) in the form attached hereto as EXHIBIT L
(the "OPTION AGREEMENT")
(v) properly executed Post-Closing Agreement; and
(vi) such funds as may be required to pay Closing costs or
charges properly allocable to Buyer, including but not
limited to the cost of the Buyer's title insurance
policy.
Seller shall pay all installments of real estate taxes and installments of
special assessments due and payable in calendar year 2001 and prior years. Buyer
shall pay all installments of real estate taxes and installments of special
assessments due and payable in calendar year 2002 and thereafter.
Insurance and rents with respect to the Property will be pro-rated at the
Closing as of December 31, 2001. All other charges normal and customary in
similar transactions shall be paid by the appropriate party who so customarily
pays such charges.
All rents collected by Buyer after Closing shall be deposited in Buyer's
cash account and applied first to current rents due Buyer, second to delinquent
rents due Buyer, and third to delinquent rents due Seller. With respect to any
delinquent rents due Seller, Buyer shall make reasonable efforts to collect the
same after Closing in the usual course of operation of the Property and such
collections (less Buyer's costs of collection, including attorneys' fees and
costs, and reasonable management and administrative fees) shall be remitted to
Seller promptly after receipt by Buyer.
At Closing, Seller shall also give Buyer a credit against the Purchase
Price, or shall transfer and deliver to Purchaser a sum equal to the aggregate
of any security deposits shown on EXHIBIT E, and, if applicable interest, if
any, earned thereon to the Date of Closing and any advance rents paid on behalf
of any tenant, which advance rents shall be prorated to the Date of Closing.
SECTION IX
EXPENSE OF ENFORCEMENT
If either party brings an action at law or in equity to enforce or
interpret this Agreement, the prevailing party in such action shall be entitled
to recover reasonable attorneys' fees and court costs in addition to any other
remedy granted.
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SECTION X
NOTICE
All notices, demands and requests required or permitted to be given under
this Agreement must be in writing and shall be deemed to have been properly
given or served either by personal delivery or by depositing the same in the
United States mail, addressed to Seller or to Buyer, as the case may be, prepaid
and registered or certified mail, return receipt requested, at the following
addresses:
TO SELLER: Grand Casinos Nevada I, Inc.
130 Cheshire Lane
Minnetonka, Minnesota 55305
Attn: Chief Financial Officer
WITH COPY TO: Maslon Edelman Borman & Brand, LLP
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402
Attention: Neil I. Sell, Esq.
TO BUYER: Metroplex, LLC
6430 Schirlls Avenue
Las Vegas, Nevada 89118
Attention: Brett Torino
and
Flag Luxury Properties, LLC
1370 Avenue of the Americas, 29th Floor
New York, NY 10019
Attention: Paul C. Kanavos
WITH COPY TO: Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, FL 33131
Attention: Juan P. Loumiet, Esq.
and
Gordon & Silver, Ltd.
3960 Howard Hughes Parkway, 9th Floor
Las Vegas, Nevada 89109
Attention: Stephen B. Yoken, Esq.
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Rejection or refusal to accept or the inability to deliver any notice
hereunder because of a changed address of which no notice was given shall be
deemed to be receipt of the notice, demand or request. Any party shall have the
right from time to time and at any time upon at least ten (10) days' written
notice thereof, to change their respective addresses, and each shall have the
right to specify as its address any other address within the United States of
America.
SECTION XI
MERGER/BINDING AGREEMENT; SURVIVAL
All previous negotiations and understandings between Seller and Buyer or
their respective agents and employees with respect to the purchase of the
Property hereunder are merged in this Agreement, which alone fully and
completely express the parties' rights, duties and obligations with respect to
such purchase. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, assigns, heirs and personal
representatives. The parties hereto agree that all covenants, representations
warranties and any other obligations shall survive the Closing hereunder.
SECTION XII
GOVERNING LAW
This Agreement shall be deemed to be a contract made under the laws of the
State of Nevada and for all purposes shall be governed and construed in
accordance with the laws of said State.
SECTION XIII
DAMAGES
Notwithstanding any other provision hereof to the contrary, Buyer hereby
waives any claim against Seller, including, but not limited to, any claim for
damages, for breach by Seller of any covenant, agreement, warranty or
representation made hereunder, it being understood that the only remedy afforded
Buyer for any such breach shall be the right afforded Buyer under Section II
hereof to require Seller to consummate the Repurchase. Seller shall, however,
continue to be liable hereunder to Buyer for third party claims that have been
the subject of the indemnity provision of Sections II(b)(viii).
SECTION XIV
CONFIDENTIALITY
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Neither party hereto will make any public disclosure or publicity release
pertaining to the existence of this Agreement or the subject matter contained
herein without the consent of the other party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
intending to be bound by the provisions herein contained.
SELLER:
GRAND CASINOS OF NEVADA I, INC.
a Minnesota corporation
By:
---------------------------------
Its:
---------------------------------
BUYER:
METROFLAG BP, LLC,
a Nevada limited liability company
By: Metro Two, LLC, a Nevada limited
liability company, its member
By:
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Brett Torino, Manager
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EXHIBIT A Legal description of Travelodge Property
EXHIBIT B Legal description of Polo Property
EXHIBIT C Note
EXHIBIT D Deed of Trust on the Travelodge Property
EXHIBIT E List of Leases
EXHIBIT F Contracts and Agreements
EXHIBIT G Unacceptable Exceptions
EXHIBIT H Amended REA
EXHIBIT I Deficit Note
EXHIBIT J Post-Closing Agreement
EXHIBIT K Indemnity Deed of Trust
EXHIBIT L Option Agreement
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EXHIBIT E
LIST OF LEASES
1.
2.
3.
4.