Exhibit 10.1
REAL ESTATE PURCHASE AGREEMENT
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THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement") is made and entered into
effective as of the 18th day of April, 2011 (the "Effective Date"), by and
between ▇▇▇▇▇▇▇▇▇▇ Motels II of Las Vegas, Inc., a Nevada Corporation ("Seller")
and Voyager Entertainment International, Inc., a Nevada corporation
("Purchaser"). Seller and Purchaser may sometimes be referred to herein
individually as a "Party" or collectively as the "Parties."
PRELIMINARY STATEMENTS. Seller is the owner of fee simple title to the that
certain real property located in the ▇▇▇▇▇ County, Nevada, legally described on
Exhibit A, attached hereto which consists of a 3 acre parcel of land (the
"Primary Parcel") and a 1.89 acre parcel of land (the "Secondary Parcel"). The
Primary Parcel and Secondary Parcel are collectively referred to herein as the
"Property." As used herein, the term "Property" also includes all improvements
and fixtures situated therein, all right, title and interest of Seller in and to
all easements and other appurtenances in favor of, benefiting any part thereof.
Purchaser desires to purchase the Property for purposes of constructing an
observation wheel open to the public (the "Observation Wheel"). Seller is
willing to sell the Property, pursuant to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises, and the mutual covenants
and agreements contained herein, and such other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the Parties agree as
follows:
1. Definitions. Capitalized terms used herein shall have the meanings
specified herein.
2. Purchase and Sale. Subject to the provisions of this Agreement, at the
Closing, and in exchange for the agreed upon purchase price, Purchaser shall
purchase and Seller shall sell, transfer and convey to Purchaser, all of
Seller's entire right, title and interest in and to the Property, free and clear
of all liens and encumbrances of any kind or nature except the Permitted
Exceptions as hereinafter defined.
3. Purchase Price; Deposit; Payment and Financing.
(a) The total consideration to be paid to Seller by Purchaser for the
Property is Thirty Million and No/100 Dollars ($30,000,000) (the "Purchase
Price"). The Purchase Price shall be allocated as follows: (i) Twenty Million
Nine Hundred Thousand and No/100 Dollars ($20,900,000) for the purchase of the
Primary Parcel (the "Primary Parcel Purchase Price"); and (ii) Nine Million One
Hundred Thousand and No/100 Dollars ($9,100,000) for the purchase of the
Secondary Parcel (the "Secondary Parcel Purchase Price").
(b) Simultaneously with the execution of this Agreement, Purchaser shall
deliver the following to Seller One Thousand and No/100 Dollars ($1,000) in the
form a check (the "Cash Deposit").
(c) Upon the expiration of the Due Diligence Period, Purchaser shall
deliver to Seller an additional Six Hundred Thousand and No/100 Dollars
($600,000) in the form of immediately available funds (the "Additional
Deposit"). The Additional Deposit and the Cash Deposit shall be referred to
collectively as the "Deposit." Upon the expiration of the Due Diligence Period,
the Deposit shall be non-refundable except as provided for in Section 18 of the
Agreement.
(d) Upon the Effective Date of this Contract, Purchaser shall deliver to
Seller the following as additional consideration:
(i) 2,500,000 shares of Preferred "Series C" Stock in Purchaser issued
to Stashick Asset Management, which shall have a minimum value of $100,000
upon the expiration of the Due Diligence Period. In lieu of the stock
certificate, VEII shall attach the corporate resolution as an exhibit
indicating the authorization of stock at the time of the execution of this
Agreement in form and substance acceptable to Seller; and
(ii) 5,000,000 shares of Preferred "Series C" stock in Purchaser
issued to Seller, which shall have a minimum value of $200,000 upon the
expiration of the Due Diligence Period. In lieu of the stock certificate,
VEII shall attach the corporate resolution as an exhibit indicating the
authorization of stock at the time of the execution of this Agreement in
form and substance acceptable to Seller.
(e) The Primary Parcel Purchase Price shall be paid at Closing in cash by
wire transfer in immediately available funds, at which time Purchaser shall
receive credit for the following amounts to determine the balance Purchase Price
due and payable:
(i) The Deposit;
(ii) $100,000 for the 2,500,000 shares of Preferred "Series C" Stock
in Purchaser issued to Stashick Asset Management; and
(iii) $200,000 for the 5,000,000 shares of Preferred "Series "C" Stock
in Purchaser issued to Seller.
(f) The Secondary Parcel Purchase Price shall be paid at Closing in cash by
wire transfer in immediately available funds.
(g) As additional consideration, Purchaser shall provide to Seller and
Stashick Asset Management an option to purchase additional Preferred "Series C"
Stock in Seller (the "Preferred Stock Options") which may be exercised no later
than 60 days following the opening of the Observation Wheel to the general
public.
4. Due Diligence Period. (a) The Parties agree that Purchaser shall have
the right to review certain matters affecting the Property (collectively
referred to as the "Due Diligence Conditions") as described in Paragraphs
4(a)(i) through 4(a)(v) below. This period of review shall be referred to in
this Agreement as the "Due Diligence Period." The Due Diligence Period shall
commence as of the date of this Agreement and continue thereafter for a period
of forty five (45) days. During such Due Diligence Period, Purchaser, at its
sole expense, shall have the right to examine and review the following Due
Diligence Conditions:
(i) Purchaser may obtain, at its expense, a current and accurate ALTA
survey ("ALTA Survey") of the Property prepared and certified by a
registered land surveyor, unless a recent survey exists, (within 90 days).
If such Survey discloses any matters that, in the absolute discretion of
Purchaser, render the Property not suitable for purchase, and Purchaser
notifies Seller that Purchaser has determined such matters to be
"Objectionable Conditions" (as defined in Paragraph 4(b) below), then
Seller may elect to, but shall not be obligated to, cure such Objectionable
Conditions as provided in Paragraph 4(c), or Purchaser may exercise any of
the remedies provided in Paragraph 4(d).
(ii) Seller shall deliver to Purchaser a current commitment for title
insurance (on an ALTA form), issued by the _____________________ ("Escrow
Agent") which shows marketable fee simple title to the Property in Seller,
free and clear of all liens (other than such liens which will be removed by
Seller prior to Close of Escrow), assessments, charges, claims, actions,
encumbrances, easements, rights-of-way, restrictions, and title exceptions
of any kind, except real estate taxes not yet delinquent, pursuant to which
the Escrow Agent commits to issue its ownership title insurance policy in
favor of Purchaser in the amount of the Purchase Price (the "Title
Policy"). If such title commitment discloses any matters that, in the
absolute discretion of Purchaser, render the Property not suitable for
purchase, and Purchaser notifies Seller that Purchaser has determined such
matters to be Objectionable Conditions, then Seller may cure such
Objectionable Conditions as provided in Paragraph 4(c), or Purchaser may
exercise any of the remedies provided in Paragraph 4(d). Any exceptions or
other matters listed on the title commitment to which Purchaser does not
object, identify or list in the Objectionable Conditions shall be deemed
"Permitted Exceptions."
(iii) Seller agrees to provide to Purchaser, at no expense to
Purchaser, within five days following the Effective Date, any and all
engineering studies, zoning information, soil investigations and reports,
water and sewer studies, topographical maps, platting and all other
materials and documents concerning the Property owned by Seller or in
Seller's possession.
(iv) Purchaser shall review, at its expense, all necessary licenses,
permits, approvals and zoning with respect to or affecting the Property. If
such review discloses any matters that, in the absolute discretion of
Purchaser, render the Property not suitable for purchase, Purchaser may
terminate this Agreement without liability except as set forth in Section 5
by delivering written notice of such termination to Seller on or before the
expiration of the Due Diligence Period.
(b) With respect to each of the Due Diligence Conditions set forth in
Paragraphs 4(a)(i) through 4(a)(iv) above, Purchaser shall deliver written
notice to Seller on or before the expiration of the Due Diligence Period as to
whether (i) such Due Diligence Condition is satisfied and accepted by Purchaser
(an "Accepted Due Diligence Condition"), or (ii) such Due Diligence Condition is
not satisfied and not accepted by Purchaser. If Purchaser does not accept any
one or more of the Due Diligence Conditions, then Purchaser shall deliver
written notice to Seller on or before the expiration of the Due Diligence Period
of any such Due Diligence Conditions determined by Purchaser to be objectionable
conditions (the "Objectionable Conditions").
(c) Seller shall have the right, but not the obligation, to cure any
Objectionable Conditions. Seller may exercise such right by delivering written
notice to Purchaser within five (5) days after receipt of the notice of an
Objectionable Condition pursuant to Paragraph 4(b) above. If Seller elects to
cure such Objectionable Condition, then Seller shall do so in good faith and
with reasonable diligence. Seller shall promptly notify Purchaser when Seller
has successfully cured the Objectionable Condition. Within five (5) days after
receipt of such notice from Seller, Purchaser shall either accept the Due
Diligence Condition as an Accepted Due Diligence Condition or continue its
objection to the condition if it, in the absolute discretion of Purchaser,
continues to render the Property not suitable for purchase. If Purchaser
continues its objection, then Purchaser may elect to terminate this Agreement as
provided in Paragraph 4(d) below, or Purchaser may allow Seller to continue its
attempt to cure the condition as provided in this Paragraph 4(c).
(d) If Seller fails to deliver notice to Purchaser that it will cure the
Objectionable Condition, or if Seller has failed to cure the Objectionable
Condition as determined by Purchaser as provided in Paragraph 4(c) above, then
Purchaser may either (i) waive the Objectionable Condition and continue to
purchase the Property pursuant to this Agreement, or (ii) terminate this
Agreement without liability by delivering written notice of such termination to
Seller. If Purchaser waives the Objectionable Condition, then the condition
shall become an Accepted Due Diligence Condition. If Purchaser elects to
terminate this Agreement, then this Agreement shall thereupon terminate and be
of no further force or effect
(e) In the event Purchaser disapproves or finds unacceptable, in
Purchaser's sole and absolute discretion, any matters reviewed by Purchaser
during the Due Diligence Period pursuant to this Section 4 hereof, Purchaser may
elect to terminate this Agreement pursuant to the provisions of Section 4 hereof
and the Cash Deposit required hereunder shall be returned to Purchaser.
5. Entry Prior to Closing. Purchaser and its employees, agents, and
consultants will have the right, to enter upon the Property to inspect, examine,
survey, perform physical and environmental tests, and otherwise do whatever
Purchaser deems necessary or appropriate to investigate any matter which
Purchaser deems appropriate in order to evaluate the Property. Seller shall
reasonably cooperate with Purchaser in conducting the foregoing activities.
Prior to entry upon the Property for purposes of conducting physical testing of
the improvements or test drilling on the Property as may permitted under this
Section 5, Purchaser shall have procured general liability insurance in an
amount of at least Two Million Dollars ($2,000,000) per occurrence and insuring
Seller as an additional insured, all of which shall be in form and substance
reasonably satisfactory to Seller. Purchaser shall not cause or permit any
mechanic's liens, materialmen's liens, or other liens to be filed against the
Property as a result of the inspections. Purchaser shall promptly repair and
restore any damage to the Property caused by entry upon the Property by
Purchaser. Purchaser shall indemnify, defend, and hold harmless Seller and
Seller's officers, directors, shareholders, customers, invitees, members,
partners, tenants, agents, and employees (collectively, the "Indemnified
Parties"), from and against any and all actions, losses, costs, damages, claims,
liabilities, and expenses (including court costs and reasonable attorneys' fees)
brought, sought, or incurred by or against any of the Indemnified Parties to the
extent caused by the activities of Purchaser or its representatives as permitted
hereunder while on the Property. Notwithstanding anything to the contrary
recited herein, the foregoing indemnification and repair and restoration
obligations (collectively, "Purchaser's Indemnity") shall expressly survive
Closing or earlier termination of this Agreement for a period of twelve (12)
months thereafter.
6. Conditions to Obligation of Purchaser. Purchaser's obligations to
purchase the Property and to pay the Purchase Price are subject to the following
conditions precedent having been fully satisfied or waived by Purchaser at or
prior to the Closing:
(a) The representations and warranties of Seller contained in this
Agreement must have been true, accurate and correct on the date of this
Agreement and must be true, accurate and correct in all material respects on the
date of Closing;
(b) The Seller shall have performed and complied with all agreements,
covenants, acts, undertakings and conditions required by this Agreement prior to
or at the Closing;
(c) Other than the Permitted Exceptions, the Property shall be free and
clear of all liens, debts, leases, licenses, tenancies, and other occupancies
however they may be derived or claimed and there shall be no unpaid bills,
charges, costs, or expenses of any kind which could create or permit the filing
of any lien of any kind against the Property; except to the extent relating to
the real property contiguous to the Property for which Purchaser has an option
to purchase.
7. Conditions to Obligation of Seller. Seller's obligations to sell the
Property are subject to the following conditions precedent having been fully
satisfied or waived by Seller at or prior to the Closing:
(a) The representations and warranties of Purchaser contained in this
Agreement must have been true, accurate and correct on the date of this
Agreement and must be true, accurate and correct in all material respects on the
date of Closing; and
(b) The Purchaser shall have performed and complied with all agreements,
covenants, acts, undertakings and conditions required by this Agreement prior to
or at the Closing.
8. Representations and Warranties.
(a) Seller represents and warrants to Purchaser the following:
(i) To Seller's knowledge, Seller is not in violation of any federal,
state or local laws, ordinances or governmental authorities with respect to
the Property;
(ii) To Seller's knowledge, no person or entity has the right to
possession of the Property (and there are no actions pending or threatened
pursuant to which any person or entity claims the right to possession of
the Property);
(iii) To Seller's knowledge, and other than the Permitted Exceptions,
no person or entity has any right or option to purchase, lease, use, or
otherwise occupy or enter upon the Property;
(iv) To Seller's knowledge, and other than the Permitted Exceptions,
there are no licenses, liens or encumbrances affecting the Property;
(v) Neither Seller, nor any of its agents, employees or partners, has
received written notice (A) from any federal, state or local agency or
authority alleging any safety, pollution, environmental, zoning, or other
violation of law with respect to the Property or any part thereof which has
not been satisfactorily corrected or resolved, (B) concerning the possible
or anticipated condemnation of any part of the Property or the widening or
change of grade of streets abutting the Property or concerning any special
taxes or assessments levied or to be levied against the Property, (C)
concerning any change in the zoning classification of the Property, or (D)
proposing or announcing a material change in the tax assessment of the
Property or any part thereof;
(vi) Seller is a limited liability company, duly organized and validly
existing under the laws of the State of Delaware;
(vii) Seller has the power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The parties signing
this Agreement on behalf of Seller have the full legal power, authority and
right to execute and deliver this Agreement. This Agreement constitutes a
valid and legally binding agreement enforceable against Seller in
accordance with its terms;
(viii) For purposes of two Agreements, "Seller's Knowledge" or "the
Knowledge of Seller" or other similar phrases shall mean solely the actual
knowledge (as opposed to "constructive" or "implied" knowledge") of Seller,
including without limitation the knowledge of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇▇. In no event shall "Seller's Knowledge" include any knowledge
imputed to Seller by any other person or entity.
(b) Purchaser represents and warrants to Seller the following:
(i) Purchaser is an Officer, duly organized and validly existing under
and pursuant to the laws of the State of Nevada; and
(ii) Purchaser has all requisite power and authority to enter into
this Agreement, and to consummate the transactions contemplated hereby and
to fulfill its obligations under this Agreement. The parties signing this
Agreement on behalf of Purchaser have the full legal power, authority and
right to execute and deliver this Agreement. This Agreement constitutes a
valid and legally binding agreement enforceable against Purchaser in
accordance with its terms.
(a) All of the representations and warranties contained in this Paragraph 8
shall be true and correct as of the date of this Agreement.
(b) No Warranties. EXCEPT AS SET FORTH IN SECTION 8(A), THE PROPERTY IS
BEING PURCHASED AND SOLD "AS IS", WHERE IS" AND WITH "ALL FAULTS", INCLUDING
WITHOUT LIMITATIONS, ALL MATTERS DISCLOSED, DISCOVERED OR DISCOVERABLE BY BUYER
AND ANY LATENT DEFECTS AND OTHER MATTERS NOT DETECTED IN BUYER'S INSPECTIONS.
PURCHASER SPECIFICALLY ACKNOWLEDGES AND CONFIRMS THAT SELLER HAS NOT MADE AND
SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN AS TO, CONCERNING, OR WITH RESPECT TO THE
PROPERTY EXCEPT AS SET FORTH IN SECTION 8(A). THE PURCHASE PRICE AND THE TERMS
AND CONDITIONS SET FORTH HEREIN ARE THE RESULT OF ARM'S-LENGTH BARGAINING
BETWEEN PARTIES FAMILIAR WITH TRANSACTIONS OF THIS KIND AND NATURE, AND THE
AGREED UPON PURCHASE PRICE, AND THE TERMS AND CONDITIONS SET FORTH HEREIN
REFLECT THE FACT THAT PURCHASER SHALL HAVE THE BENEFIT OF, AND IS RELYING UPON,
NO STATEMENTS, REPRESENTATIONS OR WARRANTIES WHATSOEVER, MADE BY OR ENFORCEABLE
AGAINST SELLER (OTHER THAN THE EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLER
SET FORTH IN SECTION 8(A))
EXCEPT TO THE EXTENT CAUSED BY A BREACH OF ANY OF SELLER'S EXPRESS
REPRESENTATIONS, PURCHASER, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, RELEASES
SELLER AND SELLER'S AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, BROKERS, CONTRACTORS
AND REPRESENTATIVES FROM, AND WAIVES ANY AND ALL CAUSES OF ACTION OR CLAIMS
AGAINST ANY OF SUCH PERSONS FOR (I) ANY AND ALL LIABILITY ATTRIBUTABLE TO ANY
PHYSICAL CONDITION OF OR AT THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
PRESENCE ON, UNDER OR ABOUT THE PROPERTY OF ANY HAZARDOUS SUBSTANCES; (II) ANY
AND ALL LIABILITY RESULTING FROM THE FAILURE OF THE PROPERTY TO COMPLY WITH ANY
APPLICABLE LAWS, CODES, OR REGULATIONS INCLUDING, WITHOUT LIMITATION, ANY
ENVIRONMENTAL LAW; AND (III) ANY LIABILITIES, DAMAGES OR INJURY ARISING FROM,
CONNECTED WITH OR OTHERWISE CAUSED BY STATEMENTS, OPINIONS OR INFORMATION
OBTAINED FROM ANY OF SUCH PERSONS WITH RESPECT TO THE PROPERTY.
AS USED HEREIN, THE TERM "HAZARDOUS SUBSTANCES" SHALL MEAN ANY MATERIAL OR
SUBSTANCE THAT, WHETHER BY ITS NATURE OR USE, IS NOW OR HEREAFTER DEFINED AS A
HAZARDOUS WASTE, HAZARDOUS SUBSTANCE, POLLUTANT OR CONTAMINANT UNDER ANY LOCAL,
STATE OR FEDERAL LAW, RULE OR REGULATION, OR WHICH IS TOXIC, EXPLOSIVE,
CORROSIVE, FLAMMABLE, INFECTIOUS, RADIOACTIVE, CARCINOGENIC, MUTAGENIC OR
OTHERWISE HAZARDOUS AND WHICH IS NOW OR HEREAFTER REGULATED UNDER ANY LOCAL,
STATE, OR FEDERAL LAW, RULE OR REGULATION OR WHICH IS OR CONTAINS PETROLEUM,
GASOLINE, DIESEL FUEL OR ANOTHER PETROLEUM HYDROCARBON PRODUCT.
AS USED HEREIN, THE TERM "ENVIRONMENTAL LAW" SHALL MEAN ANY LAW, RULE OR
REGULATION RELATING TO ANY HAZARDOUS SUBSTANCES.
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SELLER'S INITIALS PURCHASER'S INITIALS
9. Seller Covenants. Seller hereby covenants and agrees with Purchaser:
(a) To furnish Purchaser with true and correct copies of any instruments or
documents in Seller's possession, whether of record or not, which affect or
which reasonably relate to the Property or the ability of Purchaser to utilize
the Property, within seven (7) days from the date of this Agreement, including,
without limitation, engineering and geological studies;
(b) Until Closing, to maintain the Property (in Seller's possession) in its
current condition subject to normal wear and tear;
(c) That it will not sell, lease, mortgage, subject to lien or otherwise
transfer, dispose of the Property, or enter into any contract affecting the
Property, except such leases as are in affect on the date of this Agreement; and
(d) To execute such documents and instruments as reasonably requested by
the Escrow Agent sufficient for the Escrow Agent to issue the Title Policy.
10. Coordination with Master Plan and Future Development. The Property is
subject to that master plan known as the Cityview/Desert Express Approved Master
Plan which was approved by ▇▇▇▇▇ County, Nevada (the "Master Plan"), a copy of
which has been provided to Purchaser. To best coordinate the development of the
overall site subject to the Master Plan, the Parties agree to the following:
(a) The proposed Observation Wheel is not a permitted use under the Master
Plan, and Purchaser will be required to obtain a special use permit from ▇▇▇▇▇
County to commence construction on the Observation Wheel. Purchaser agrees that
while it is purchasing approximately 4.89 acres from Seller, it will limit the
construction of the Observation Wheel to a building envelope of approximately
2.37 acres as depicted on Exhibit B attached hereto (the "Observation Wheel
Site").
(b) Future development under the Master Plan will require roads, public
rights-of-way and other infrastructure to completed on portions of the Property
which are not located within the Observation Wheel Site (the "Excess Property").
At the time of such development, Purchaser will transfer the Excess Property to
Seller or its designee in exchange for the rights to utilize parking spaces
within the Master Plan property in an amount equivalent to the number of parking
spaces as existed on the Excess Property on the date of such transfer.
(c) The full development of the Master Plan will require cross easements,
rules and regulations, use restrictions and certain other agreements between the
property owners subject to Master Plan. These agreements may be reflected in
various documents, including a comprehensive set of Covenant, Conditions and
Restrictions for the development. Purchaser and Seller shall mutually agree to
any such documents provided that such documents do not materially impact
Purchaser's ability to construct and operate the Observation Wheel.
(d) The understanding of the Parties provided in this Section 10 shall
survive Closing and will be set forth in further detail through a separate and
potentially multiple agreements to be executed upon Closing. Seller, in its
discretion, may elect to record any such agreement against the Property at the
time of Closing.
11. Closing.
(a) Provided that all conditions of the Parties respective obligations
hereunder have been satisfied, and unless Purchaser has exercised any of its
rights to terminate this Agreement, the closing of the purchase and sale of the
Primary Parcel (the "Primary Parcel Closing") shall take place on
_______________, 2011 [six months from the Effective Date] ("Primary Parcel
Closing Date"), at the offices of the Escrow Agent, or at such time and such
place as otherwise mutually agreed upon by the Parties. Purchaser shall be
entitled to one six month extension of the Primary Parcel Closing Date, provided
that no less than 15 days prior to the Primary Parcel Closing Date, Purchaser
(i) delivers written notice of such extension to Seller, (ii) issues 1,250,000
shares of Preferred "Series C" Stock in Purchaser to Stashick Asset Management,
which shall have a minimum value of $50,000 at the time of transfer, and (iii)
issues 2,500,000 shares of Preferred "Series C" Stock in Purchaser to Seller,
which shall have a minimum value of $100,000 at the time of transfer. Seller
shall have right to cause a third party review of stock purchase to confirm that
proper stock is being transferred.
(b) Provided that all conditions of the Parties respective obligations
hereunder have been satisfied, and unless Purchaser has exercised any of its
rights to terminate this Agreement, the closing of the purchase and sale of the
Secondary Parcel (the "Secondary Parcel Closing") shall take place at the
offices of the Escrow Agent upon the earlier of (i) one year from the Effective
Date or (ii) ten business days following the issuance of debt necessary for
Purchaser to purchase the Secondary Parcel ("Secondary Parcel Closing Date"), or
at such time and such place as otherwise mutually agreed upon by the Parties.
(c) The term "Closing" or "Closing Date" may be used in this Agreement to
refer to the Primary Parcel Closing or Secondary Parcel Closing and the Primary
Parcel Closing Date or Secondary Parcel Closing Date as shall be appropriately
applicable.
12. Deliveries at Closing. At the Closing:
(a) Seller shall execute, acknowledge and/or deliver to the Escrow Agent
and/or Purchaser, at Seller's cost and expense:
(i) Seller's executed Grant, Bargain and Sale Deed ("Deed"), conveying
the Property to Purchaser, duly acknowledged and in form for recording,
which Deed shall convey to Purchaser, good and marketable title to the
Property, free and clear of all liens, assessments, charges, claims,
actions, encumbrances, easements, rights-of-way, restrictions, and title
exceptions except Permitted Exceptions and real estate taxes not yet
delinquent;
(ii) An affidavit, under penalty of perjury, stating that Seller is
not a "foreign person" as defined in Section 1445 of the of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder, and
stating Seller's United States Taxpayer Identification Number;
(iii) A State of Nevada Declaration of Value which shall list the
Purchase Price as the fair market value of the Property;
(iv) Such documents or instruments required to transfer and assign to
Purchaser all of the Seller's right, title and interest in and to the
Property otherwise reasonably necessary to be executed or delivered for
consummation of the transactions contemplated hereby or to satisfy Seller's
obligations hereunder.
(v) In the event Purchaser elects to assume any of the leases
affecting the Property, Seller shall execute an Assignment and Assumption
of Leases.
(vi) Any documentation required under Section 10 of this Agreement.
(b) Purchaser shall execute, acknowledge and/or deliver to the Escrow
Agent, at Purchaser's cost and expense:
(i) Any documents or instruments required to be executed pursuant to
this Agreement, or otherwise reasonably necessary to be executed or
delivered for consummation of the transactions contemplated hereby.
(ii) Purchaser shall deliver the documentation necessary to issue the
Preferred Stock Options.
(iii) In the event Purchaser elects to assume any of the leases
affecting the Property, Purchaser shall execute an Assignment and
Assumption of Leases.
(iv) Any documentation required under Section 10 of this Agreement.
13. Possession. The Purchaser shall be entitled to exclusive possession of
the Property at the Closing.
14. Costs and Expenses. Seller agrees to pay the cost of all charges
incurred by Seller for the procurement, preparation and recording of any
releases, waivers, consents, and other instruments required to clear Seller's
title to the Property in accordance with the provisions hereof, including the
Deed, the cost of the Title Policy, one-half of the escrow fee, any and all
taxes that may become due and owing by reason of the sale of the Property.
Purchaser agrees to pay the cost of any endorsements to the Title Policy,
one-half of the escrow fee, and the cost of inspections performed by Purchaser.
Each Party agrees to pay its own attorneys' fees. Additionally, Seller agrees to
pay all brokerage fees associated with this transaction.
15. Prorations. Real estate taxes on the Property for the year of the
Closing shall be prorated through the date of Closing. If such taxes are not
known at Closing, then the parties agree to prorate real estate taxes for the
year of Closing based on the 2010 real estate tax amount.
16. Taxes. Purchaser shall pay any transfer and use tax that may be
assessed. The amount of any real estate conveyance tax, excise tax, or other
similar fees or taxes (other than normal recording fees) which may become
payable in connection with the sale of the Property or the recording of the Deed
shall be paid by Purchaser.
17. Risk of Loss. Risk of loss with respect to the Property shall be on
Seller until the Closing. In the event of any damage to or destruction to the
Property prior to the Closing, Purchaser, at its exclusive election, exercisable
in its absolute discretion either (a) may complete the purchase of the Property
in its existing condition and receive from Seller at the Closing any insurance
proceeds relating to such damage or destruction which have been received by
Seller and not expended to repair or restore the Property (or an assignment of
the right to receive such proceeds from the insurance company if they have not
yet been paid, but only to the extent such rights exist), or (b) at any time
prior to Closing, may elect to terminate this Agreement. This Section is
intended as an express provision with respect to casualty of the Property which
supersedes the provisions of the Nevada Uniform Vendor and Purchaser Risk Act.
18. Remedies. In the event Seller shall be deemed to be in default
hereunder following the expiration of the Due Diligence Period, Purchaser, at
Purchaser's option shall have the following limited rights to either (i)
terminate this Agreement, whereupon Purchaser shall be entitled to an immediate
refund of the Deposit, and the Parties hereto shall have no further obligations
to one another hereunder, or (ii) seek enforcement of specific performance of
this Agreement. Provided, however, that Purchaser's ability to pursue an action
for specific performance for Seller's failure to complete the Closing shall be
conditioned upon Purchaser's filing in court a lawsuit for specific performance
no later than sixty (60) days after the Closing Date or the right to seek
specific performance shall be waived by Purchaser. Seller shall have no
liability for damages. In the event the purchase and sale contemplated hereby is
not closed by reason of Purchaser's inability, failure or refusal to perform
Purchaser's obligations hereunder, then Seller shall retain the Deposit as full
liquidated damages, whereupon no party hereto shall have any further rights,
claims or liabilities hereunder. Purchaser and Seller hereby specifically
acknowledge and agree that the damage to Seller from Purchaser's breach
hereunder would be difficult or impossible to accurately determine, that the
Deposit is a reasonable estimate of Seller's damages, and that the retention by
Seller of the Deposit does not constitute a penalty.
19. Condemnation. In the event that any action is initiated prior to the
Closing by any governmental entity to acquire all or a substantial portion of
the Property by condemnation or eminent domain proceedings, then Purchaser at
its exclusive election may elect to terminate this Agreement by giving written
notice of the exercise of such election to Seller within twenty (20) days after
Seller furnishes written notice of the commencement of such condemnation or
eminent domain proceedings to Purchaser or, if no such notice is furnished by
Seller, at any time prior to the Closing. For purposes of this paragraph, "a
substantial portion of the Property" shall mean such portion of the Property
whose taking would make the remaining portion of the Property unsuitable or
uneconomical in Purchaser's reasonable business judgment for its intended use
for the Property. In the event that such condemnation or eminent domain
proceedings involve the taking of less than a substantial portion of the
Property, then Purchaser shall have no right to terminate this Agreement, but at
the Closing, Seller shall pay over or assign to Purchaser the proceeds of any
award made to or received by, or which may be made to or received by, Seller in
such condemnation or eminent domain proceedings and all of Seller's rights
thereto. Under no circumstances shall Seller have the right to terminate this
Agreement as a result of anything contained in this Paragraph 19. This Section
is intended as an express provision with respect to condemnation of the Property
which supersedes the provisions of the Nevada Uniform Vendor and Purchaser Risk
Act.
20. Multiple Copies. The Parties may execute multiple copies of this
Agreement, each of which shall be an original for all purposes.
21. Binding Agreement. This Agreement shall run with the land which is the
subject of this Agreement and shall be binding upon and inure to the benefit of
the Parties and their respective successors and assigns.
22. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, sent by
facsimile transmission or sent by certified, registered or express mail, postage
prepaid. Any such notice shall be deemed given when so delivered personally, or
sent by facsimile transmission or, if mailed, two (3) days after the date of
deposit in the United States mails, addressed as follows:
If to Seller: ▇▇▇▇▇▇▇▇▇▇ Motels II of Las Vegas, Inc.
---------------------------------------
---------------------------------------
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax:
---------------------------------
With a copy to: Stashick Asset Management
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax:
---------------------------------
With a copy to: ▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
If to Purchaser: Voyager Entertainment International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Fax: ▇▇▇.▇▇▇.▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇ ▇▇▇ ▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Fax: 801. 523.0375
Any Party may change its address for purposes of this Paragraph by
giving notice to the other Party, as provided in this Paragraph.
23. Assignment. Purchaser shall not assign Purchaser's rights under this
Agreement, in part or whole, to any third party without the prior written
consent of Seller, which may be withheld in its sole discretion.
24. No Third Party Beneficiaries. No party other than the Parties shall
have or acquire any rights to the Property or to this Agreement or any provision
hereof by virtue of the Parties' entering into this Agreement.
25. Publicity. No press release or other public announcement concerning
this Agreement or the transactions contemplated hereby shall be made without
advance approval thereof by Seller, except as required by law for publicly
traded companies. Purchaser shall not use the following names associated in any
materials, correspondence, submittal, documents or other promotional items of
Purchaser without the prior written consent of Seller: Cityview, Desert Train,
▇▇▇▇▇▇▇▇▇▇ Finance, ▇▇▇▇▇▇▇▇▇▇ Lodging, ▇▇▇▇▇▇▇▇▇▇ Motels II of Las Vegas, Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Equilibrium Resorts, Strategic Real Estate Group, Stashick
Asset Management, ▇▇▇▇ ▇▇▇▇▇▇▇▇, or any other Stashick related or ▇▇▇▇▇▇▇▇▇▇
related company or organization.
26. Consents and Approvals. Except where expressly provided as being in the
discretion of a Party, where agreement, approval, acceptance, consent, or
similar action by either Party is required under this Agreement, such action
shall not be unreasonably delayed, conditioned or withheld.
27. Attorney's Fees. In any action between the Parties seeking enforcement
of any of the terms and provisions of this Agreement, or in connection with the
Property, the prevailing Party in those actions shall be awarded, in addition to
costs, damages, injunctive or other relief, its actual costs and expenses
incurred in that action including, but not limited to, its reasonable attorneys'
fees.
28. Governing Law. This Agreement shall be governed by the laws of the
State of Nevada.
29. Waiver of Jury Trial. To the fullest extent permitted by law, Buyer and
Seller hereby forever waive the right to trial by jury in the event of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
instruments delivered in connection therewith, and agree that any such suit,
action, or proceeding shall be tried by the court.
30. Paragraph Headings. The paragraph headings in this Agreement are solely
for convenient reference and shall not be considered in the interpretation or
application of this Agreement.
31. Time of the Essence. Time is of the essence of this Agreement.
32. Number and Gender. Where the context requires, all singular words in
this Agreement shall be construed to include their plural and all words of
neuter gender shall be construed to include the masculine and feminine forms of
such words.
33. Entire Agreement. This Agreement contains the entire agreement between
Seller and Purchaser with respect to the subject matter of this Agreement; and
there are no agreements, promises, assurances, representations, warranties,
undertakings, or understandings, either written or oral, between the Parties
concerning the purchase and sale of the Property. No amendment of this Agreement
shall be effective or binding unless it is in writing and has been signed by
each of the Parties.
34. Incorporation of Exhibits. This Agreement shall be deemed to have
incorporated by reference all Exhibits referred to herein to the same extent as
if such Exhibits were fully set forth herein. Each reference to "this Agreement"
shall be construed to include each such Exhibit.
IN WITNESS WHEREOF, the Parties or their duly authorized representatives have
executed this Agreement, all as of the date first above written.
SELLER:
THARALDSON MOTELS II OF LAS VEGAS, INC., a Nevada Corporation
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
PURCHASER:
VOYAGER ENTERTAINMENT INTERNATIONAL INC., a Nevada Corporation
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
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EXHIBIT A
Legal Description
Property Location:
The subject Property is located on ▇▇▇▇ ▇▇▇▇▇▇ Drive between Flamingo and ▇▇▇▇▇▇
north of Panorama Towers and adjacent to the Bellagio and MGM Project City
Center
Parcel Numbers:
16220204002, 16220210001-002- ▇▇▇-▇▇▇-▇▇▇
Total Parcel Size:
4.89+/- Acres of land for this mixed use Hotel/Casino mixed use site. NOTE:
Existing leases have early termination rights
[AERIAL VIEW OF PROPERTY APPEARS HERE]
EXHIBIT B
Observation Wheel Site
[OVERHEAD VIEW OF OBSERVATION WHEEL SITE APPEARS HERE]
[OBSERVATION WHEEL SITE APPEARS HERE]
