EXHIBIT 10.115
HACIENDA ADVENTURE CLUB
ACQUISITION AND ASSIGNMENT AGREEMENT
This acquisition and assignment agreement and joint escrow instructions
("AGREEMENT") is made as of September 29, 1995 ("AGREEMENT DATE"), at Las
Vegas, Nevada by and between Hacienda Hotel, Inc. and Resort Marketing
International (jointly and severally, "HACIENDA") and Xxxxx Torino ("TORINO").
Recitals
A. Torino is the owner of an approximately 13.8 acre parcel of real property
located at the northwest corner of Wigwam and Xxxxxx (generally south of Blue
Diamond Highway and east of I-10) in Xxxxx County, Nevada, more particularly
described in EXHIBIT "A" ("PROPERTY"). The Property will be conveyed to a
limited liability company, to be formed pursuant to Section 23 below.
B. Hacienda Hotel, Inc. (having done business as Hacienda Resort Hotel and
Casino prior to September 1, 1995), a wholly owned second tier subsidiary of
Sahara Gaming Corporation ("SAHARA"), owns and (through Resort Marketing
International, another second tier wholly owned subsidiary of Sahara) operates a
recreational vehicle park at the Hacienda Resort Hotel and Casino on Las Vegas
Boulevard South (which hotel is now owned by Circus Circus Ent., Inc.) and has
sold memberships to the public under the name Hacienda Adventure ("CLUB"). The
Club is a non-equity club comprised of approximately 4,300 members. The Club
-----
memberships were purchased by contract, a standard copy of which (together with
Club rules and regulations) is attached hereto as EXHIBIT "B". Said contract
provides the right, subject to contract conditions, for Club members to stay in
the Hacienda recreational vehicle park, by reservation, on a first come first
serve basis. In addition to the Club membership contract purchase price,
members are required to pay annual dues to maintain membership in the Club.
C. The parties hereto have reached an understanding whereby Hacienda will pay
Torino the sum of $4,000,000.00 for Torino to assume the obligation of providing
a location and a completed recreational vehicle park on the Property ("NEW RV
PARK") for the Club and Club members. Hacienda shall assign to Torino the Club
and Club memberships, together with Club membership contracts and obligations,
including the obligation to operate and manage the Club on the New RV Park,
subject to Hacienda's indemnification described hereinafter. Hacienda shall
retain the contract note receivables ("MEMBERSHIP NOTES") due under the existing
Club membership sales contracts, and Hacienda and Torino will agree to a
procedure whereby Hacienda will keep Torino informed of the status of all
membership receivables. Hacienda has agreed to stop selling memberships in the
Club as of June 28, 1995. Any sales of memberships, proceeds or receivables
from contract sales for the Club after June 28, 1995, will be assigned to
Torino.
D. Torino shall provide Hacienda with a plan of development for the New RV Park
and a completion schedule for the improvement work depicted on the development
plan. The development plan will include floor plans and renderings of all
planned structural improvements and specifications for same. The development
plan for the New RV Park will include site improvement plans, specifications,
and a breakdown of features (i.e.; swimming pool, spa, entry features,
landscaping, fencing, together with recreational vehicle pad features and
specifications). During the Feasibility Period (defined in Section 3.01 below),
Torino will provide to Hacienda a performance and completion of improvements
guarantee acceptable to Hacienda.
Now therefore, in consideration of the mutual promises set forth in this
Agreement, it is agreed as follows:
-1-
Section 1
1.01 Hacienda's acceptance of this Agreement is subject to Sahara's Board of
Directors' approval within seven (7) days of the execution of this Agreement
("APPROVAL PERIOD"). Said Approval Period shall not delay or extend Torino's
Feasibility Period, subject to reimbursement by Hacienda of reasonable Torino
expenses in the event that Sahara's Board does not approve this Agreement within
the Approval Period. Hacienda shall promptly furnish to Torino written
notification of Sahara Board approval, together with a resolution of Sahara's
Board, in the form of EXHIBIT "C" hereto, confirming this Agreement, the
transfer to Torino, and Sahara's guaranty of Hacienda's obligations hereunder.
1.02 Torino agrees that at the Closing (defined in Section 6.01 below) Torino
shall accept the Club memberships and membership contracts, and shall assume the
obligations and liabilities that go therewith, except as hereinafter provided,
for the sum of $4,000,000.00, paid as hereinafter provided. As specified
herein, the Club and Club membership will be physically relocated to the New RV
Park on the Property, located approximately 3.5 miles south of the existing and
current location at the Hacienda Resort Hotel and Casino. Torino is obligated
to complete the improvements on the Property for the New RV Park, and Torino is
obligated to provide, and make available as needed, one RV space for every 15
Club members, the RV spaces being provided first in the New RV Park, and then,
as needed, by Torino's provision or rental of spaces (at no cost to Hacienda and
on the same terms to Club members) in the recreational vehicle park adjacent to
the Property on the north.
1.03 Subject to verification during the Feasibility Period of Hacienda's
representation that the cash flow from annual dues is regularly distributed
throughout the year, the annual Club membership dues will not be prorated.
Annual dues which become due and payable (by membership agreement) on, or after,
the date of Closing shall belong to Torino, regardless of the date such dues are
actually paid by the member. Annual dues which become due and payable (by
membership agreement) before the date of Closing shall belong to Hacienda,
regardless of the date such dues are actually paid by the member. At Closing,
and once each month thereafter, for as long as necessary, Hacienda and Torino
shall account for the collections of annual dues, and each party shall reimburse
the other any dues it has collected on behalf of the other party. Within ten
(10) days of the Agreement Date, Hacienda shall: (a) furnish to Torino copies of
all records pertaining to members' dues, and (b) prepare and furnish a synopsis
of the status of each member's dues, whether current or delinquent (and if
delinquent, an aging schedule). After Closing, Hacienda shall be solely
responsible and liable for collection of all delinquent dues of members not yet
terminated, and Torino shall be reasonably entitled to review Hacienda
collection procedures pertaining to Club members. During the Feasibility Period,
Hacienda shall furnish to Torino copies of all communications previously sent by
Hacienda to Club members in connection with this Agreement or the subject matter
contemplated herein, and all communications of Club members to Hacienda in
connection therewith. Any and all notices or communications sent by Hacienda to
Club members after the Agreement Date shall be subject to the reasonable prior
approval of Torino. At Closing, the parties shall provide joint written notices
to all Club members, in form and content reasonably agreeable to the parties,
advising the members of post-Closing collection procedures.
Section 2
Price
2.01 The assignment price paid by Hacienda to Torino shall be $4,000,000.00,
paid as follows:
(a) Within eight (8) business days after the Escrowee (defined in Section
6.01 below) receives a fully executed and approved copy of this
Agreement containing original signatures of Torino and Hacienda,
Hacienda shall deposit the sum of Two Hundred Fifty Thousand Dollars
($250,000.00) into escrow. The Escrowee shall invest the $250,000.00
deposit into an interest bearing account as instructed by Hacienda,
with interest accruing to Hacienda. If, after the
-2-
Feasibility Period (described hereinafter), Hacienda, for any reason
other than good cause, cancels this transaction, then the deposit
money held in escrow shall be released to Torino. Good cause shall be
defined as a material misrepresentation by Torino or the failure of
Torino to perform any obligations under this Agreement. Upon rezoning
of the Property to RVP by the Xxxxx County Commission and upon the
receipt of all approvals required to construct the New RV Park, the
$250,000.00 deposit shall become non-refundable and shall be released
from escrow to Torino.
(b) The additional sum of $3,750,000.00 in cash shall be paid into escrow,
either (1) within five (5) business days of receipt by Torino of all
approvals required to construct the New RV Park, including the
rezoning of the Property to RVP, or (2) on September 30, 1995,
whichever date is later. Prior to September 30, 1995, Hacienda may
extend the September 30, 1995, date by thirty-one (31) days, to
October 31, 1995, by depositing an additional One Hundred Thousand
Dollars ($100,000.00) into escrow along with written notice of intent
to extend the date. The additional $100,000.00 shall be treated as
non-refundable deposit, in addition to the $250,000.00 deposit
described herein before, and said additional $100,000.00 deposit shall
be credited toward the $3,750,000.00 due from Hacienda, reducing the
amount due on October 31, 1995, to $3,650,000.00. The $3,750,000.00
or the $3,650,000.00, as the case may be, shall be deposited into a
construction trust account with the Escrowee, and upon rezoning of the
Property to RVP by the Xxxxx County Commission and upon the receipt of
all approvals required to construct the New RV Park, $2,150,000.00 of
this sum shall be released from escrow to pay for the Property. The
remainder of the funds held in escrow shall be incrementally released
to pay for costs of construction of the New RV Park, as construction
progresses. Torino shall make written requests from time to time for
disbursements from a construction account, and Hacienda shall approve
each such request within three (3) business days after receipt
thereof. In the even that construction is not progressing, due to
alleged bad faith of Torino or other comparable reason, then any
immediate draw request then pending shall be paid by Hacienda, and the
parties shall immediately undertake good faith efforts to immediately
resolve the situation by mutual agreement (or, if mutual agreement
cannot be reached promptly, then through mediation by a mutually
acceptable third party, who shall be instructed to render a mediation
decision within twenty (20) days).
2.02 Performance of Torino's obligations hereunder (not to exceed in amount the
$4,000,000.00 paid by Hacienda) shall be secured by a first deed of trust
on the Property ("HACIENDA TRUST DEED"), subject to the following:
(a) At Torino's request, Hacienda shall subordinate the Hacienda Trust
Deed to a new lien which will secure additional funds loaned to
Torino: (1) to complete construction of the New RV Park ("CONSTRUCTION
LOAN"), not to exceed Two Million Dollars ($2,000,000.00) (subject to
upward adjustment as provided below); (2) to comprise permanent
financing for the New RV Park ("PERMANENT LOAN"), not to exceed Three
Million Dollars ($3,000,000.00) (subject to upward adjustment as
provided below).
(b) The authorized maximum amount of the Construction Loan and/or
Permanent Loan ("AUTHORIZED LOAN") shall be increased, based upon
reduction of Club members, as follows:
(1) The baseline number of Club members ("BASELINE NUMBER") shall be
that number of Club members initially assigned from Hacienda to
Torino, subject to upward adjustment for members cancelled by
Hacienda prior to assignment, but subsequently reinstated,
pursuant to Section 2.02(b)(4), below.
-3-
(2) The Authorized Loan shall be increased by the sum of $250.00 for
each Club member reduced from the Baseline Number, by attrition,
cancellation, or consent of the Club member (such as, for
example, consensual transfer of the Club member to a new,
successor club of Torino); however, under no circumstances shall
Hacienda subordinate to an amount greater than 50% of the fair
market value of the New RV Park. The foregoing is subject to
Section 2.03 below, providing that Torino may furnish a bond in
lieu of the Authorized Loan.
(3) Subject to reinstatement, as set forth in Section 2.02(b)(4)
below: prior to assignment of Club memberships to Torino,
Hacienda shall cancel Club memberships, and after assignment,
Torino may cancel Club memberships, for: (1) Membership Notes
which are delinquent for more than 180 days in payment of
principal and interest ("DELINQUENT NOTES"), or (2) dues which
are delinquent for more than one year ("DELINQUENT DUES").
(4) Club members who are cancelled by Hacienda prior to assignment,
pursuant to Section 2.02(b)(3) above, but who subsequently bring
their memberships current (i.e., who remove all delinquencies in
their Delinquent Notes and Delinquent Dues) within 120 days after
cancellation, or if ordered by action of law, shall be reinstated
as Club members. The number of such reinstated Club members shall
be added to and included within the Baseline Number.
(5) Notwithstanding any other provision: (A) Torino's obligation to
provide and make available one RV space for every 15 Club members
shall be computed initially on the basis of the Baseline Number;
and (B) thereafter, said number of RV spaces from time to time
shall be: (1) adjusted upward, by one RV space for every 15
reinstated Club members, and (2) adjusted downward, by one RV
space for every 15 Club members reduced by attrition,
cancellation, or consent.
(c) Hacienda shall execute, acknowledge, and deliver to Torino a full
reconveyance of the Hacienda Trust Deed promptly upon the earlier of:
(1) receipt of evidence satisfactory to Hacienda that the then-current
Club membership has been reduced, by attrition, cancellation, or
consent, to five hundred (500) Club members or less.
(d) The Hacienda Trust Deed shall, upon Event of Default (as defined
below), allow Hacienda to take title to and possession of the
Property, and to operate the New RV Park. "EVENT OF DEFAULT" shall be
written complaints or legal action ("COMPLAINTS") filed by 33% or more
of the then-current Club membership alleging material breach of the
Club sponsor's obligations under the Club membership contracts, with a
finding of such material breach by a court of law or arbitrator, based
on objective standards and supported by credible evidence, subject to
the following exceptions. There shall be no Event of Default for any
complaints: (1) caused by or attributable to failure of any Hacienda
representation or warranty or otherwise caused by or attributable to
Hacienda; or (2) which are cured by Torino within 180 days; or (3)
based on the fact of this relocation of the Club; or (4) resulting
from any termination of Club members for Delinquent Notes and/or
Delinquent Dues.
(e) If Torino (or assigns) should ever relocate all of the Club facilities
from the New RV Park to a successor RV park, in accordance with the
terms and conditions of the Club membership contracts, then Hacienda
shall execute, acknowledge and deliver a full reconveyance of the
Hacienda Trust Deed, provided the following conditions are satisfied:
(1) the successor RV
-4-
park shall contain at least one RV space for each fifteen valid Club
members plus 20 additional spaces, (2) the successor RV park shall be
constructed on property owned in fee by Torino or assigns, (3) Torino,
or assigns, shall execute a new first deed of trust in favor of
Hacienda, or assigns, to secure the Club sponsor's performance under
this Agreement, and (4) the new deed of trust shall be a first deed of
trust and Hacienda, or assigns, shall not be obligated to subordinate
said deed of trust to any other liens on the property, other than a
construction loan and/or permanent loan with the same limits as the
Authorized Loans as set forth above. In no event shall Hacienda
subordinate its deed of trust to an amount greater than 50% of the
fair market value of the successor park.
2.03 Torino shall have the option, in its sole discretion, in lieu of or in
substitution for the Hacienda Trust Deed, at any time to furnish to
Hacienda a performance bond ("PERFORMANCE BOND") denominating Hacienda
Hotel, Inc. as the insured, and guaranteeing performance of Torino's
obligations hereunder (not to exceed in insured amount the sum of
$4,000,000.00 paid by Hacienda), subject to the following:
(a) The Performance Bond shall be structured to remain in full force and
effect from date of issue until such time as the then-current Club
membership has been reduced by attrition, cancellation, or consent, to
one thousand (1,000) or fewer original Hacienda Adventure Club
members.
(b) The Performance Bond shall be substituted in lieu of the Hacienda
Trust Deed. In the event that the Hacienda Trust Deed is of record at
the time the Performance Bond is delivered to Hacienda, the Hacienda
Trust Deed shall be immediately released and reconveyed of record.
(c) After delivery to Hacienda of the Performance Bond, Torino shall be
entitled to encumber the Property with the liens of such financing or
loans in such amounts, without limitation, as Torino, in its sole
discretion, may elect.
(d) The Performance Bond insured amount shall be decreased from time to
time by the sum of $1,000.00 for each Club member reduced from the
Baseline Number, by attrition, cancellation, or consent of the Club
member.
(e) The Performance Bond shall provide for payment of amount(s) thereunder
equal to proven damages upon Event of Default.
(f) The original Performance Bond shall be returned to Torino, and shall
be fully released and exonerated, promptly upon receipt of evidence
satisfactory to Hacienda that the then-current Club membership has
been reduced, by attrition, cancellation or consent, to one thousand
(1,000) or fewer Club members.
(g) The foregoing Performance Bond provisions shall apply equally with
regard to any Hacienda trust deed in connection with a successor RV
park, as set forth in Section 2.02(e), above.
Section 3
Feasibility Period
3.01 Torino shall have thirty (30) days, from the date of receipt of materials
required, to complete Torino's review of the Club and the Hacienda Adventure RV
park operations ("FEASIBILITY PERIOD"). All books, dues records, contracts,
documents, ledgers, registers, and computer records that exist, relating to the
Club, shall be made available to Torino so that Torino may determine if Torino
will proceed with the transaction
-5-
described in this Agreement. Hacienda shall use its best efforts to produce all
documentation within 72 hours of the full execution of this Agreement. Hacienda
represents that, to Hacienda's best knowledge, all documents, contracts,
exhibits, and other materials supplied to Torino will be correct, accurate, and
complete, except as may otherwise be disclosed by Hacienda in writing.
3.02 Torino may deliver to Hacienda a written termination notice at any time
during the Feasibility Period, if in Torino's sole and independent discretion
the transaction contemplated in this Agreement is not feasible. In the event of
such written termination notice given by Torino during the Feasibility Period,
the $250,000.00 deposit held in escrow shall be immediately returned to Hacienda
and this Agreement shall cease and terminate and be of no further force and
effect, and neither party hereto shall have any further rights against or
obligations to the other by reason of this Agreement or such termination.
Section 4
Representations and Warranties
4.01 Hacienda represents and warrants to Torino as follows:
(a) Acceptance of this Agreement by Hacienda is subject to Sahara's Board
of Directors' approval within seven (7) days of the date of execution
of this Agreement.
(b) Hacienda is a duly organized and validly existing corporation under
Nevada law, and Hacienda which, until September 1, 1995, did business
at 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx as the Hacienda Resort Hotel and
Casino, and which previously did and currently does business at said
address as Hacienda Adventure Club. The Club is a non-equity
membership club that was organized to allow sales of non-equity
membership rights for qualified buyers/members to stay in the
recreational vehicle park area of the Hacienda Resort Hotel and
Casino. The Club has general rules and regulations which may be
amended from time to time by the Club sponsor, said sponsor being
Hacienda. At and after the Closing, Torino shall replace Hacienda as
the Club sponsor. The Club has approximately 4,300 members who
-----
purchased rights to use RV sites at the Hacienda Adventure RV park in
accordance with the terms and conditions of the Club membership
agreements. The dues-paying status of the members is reflected in the
computer report attached hereto as EXHIBIT "D". The Club contract
provides that members may use the Hacienda Adventure RV park, subject
to rules and regulations and other members' use of the facilities.
Current Club rules provide for a maximum stay of 14 consecutive days.
Then members must remove their RV from the park for at least 7 days
before returning, or at the sole discretion of management and subject
to availability, management may allow a member to stay as a public
customer, paying the normal daily rent for 7 days in lieu of leaving
the park; thereafter the member may stay in the park for another 14
days as a Club member, subject to space availability. Any exceptions
to Club rules and regulations, and any exceptions to the standard Club
contract, known to Hacienda, are in writing, and a copy of such is in
the individual member's file. Within ten (10) days of the Agreement
Date, Hacienda shall prepare and furnish to Torino a summary or
abstract of the members' files (to the extent any file is materially
different from the standard Club contract), which summary or abstract
shall be attached hereto as EXHIBIT "E". Hacienda represents and
warrants that, to the best of its knowledge and belief, there are no
exceptions to the standard Club contract or to the Club rules and
regulations except as specifically set forth in said Exhibit "E". If
any material deviation from the standard Club contract is undocumented
or not set forth on Exhibit "E", and such deviation imposes conditions
or restrictions on Torino greater than the exceptions set forth on
Exhibit "E", Hacienda shall indemnify and hold Torino harmless from
any and all reasonable damages. The camping and use of the Hacienda
Adventure RV park is offered by reservation on a space available
basis.
-6-
The Club is a Camp Coast to Coast ("CCC") affiliate, and is therefore
obligated to allow members of other CCC affiliated RV parks to use RV
spaces at the Club RV park in accordance with CCC rules and
regulations. Hacienda represents and warrants that it does not have a
current written agreement with CCC; that Hacienda operates by mutual
informal understanding with CCC, as set forth in a CCC letter to
Hacienda dated 8-25-95 ("CCC LETTER"); and that true, correct and
complete copies of the CCC Letter and the current CCC rules and
regulations are attached hereto as EXHIBIT "F". Club members are
comprised of two classes of memberships, known as Campers and
Resorters. Resorter members are entitled to discounts on services and
facilities at some CCC affiliated resorts, which discounts are not
available to Camper members. Torino shall not be obligated by this
Agreement or the existing CCC agreement or rules and regulations to
offer or provide facilities or services for Resorter members beyond
those provided to Camper members; however, this Agreement shall not
preclude Torino from doing so in the future if Torino deems it to be
in Torino's best interest.
(c) The Club is duly organized and validly existing under the laws of the
State of Nevada, and is a non-equity club comprised of approximately
4,300 members.
-----
(d) The execution, delivery, and performance of this Agreement by the
persons executing the same on behalf of Hacienda have been duly and
validly authorized (and by their execution hereof such persons
individually represent and warrant that they are so authorized) to
execute this Agreement.
(e) Neither the execution, delivery, or performance of this Agreement will
conflict with or result in a breach of any of the terms, conditions,
or provisions of any judgment, order, injunction, decree, or ruling of
any court or governmental authority to which Hacienda or the Club is
subject or any agreement or instrument to which any of them is a party
or by which any of them is bound, or will constitute a default
thereunder.
(f) To the best of Hacienda's knowledge and belief, no consent, approval,
or authorization of any governmental authority or private party is
required in connection with the execution, delivery, or performance of
this Agreement by Hacienda. In the event that any such consent,
approval or authorization is required, then it is Hacienda's
responsibility, at its sole expense, to promptly obtain the same.
Hacienda acknowledges that a rezoning and a parcel map must be filed
with and approved by Xxxxx County in connection with the performance
of this Agreement by Torino. Torino shall be responsible for the
rezoning application and process; however, Hacienda agrees that the
application may be made in the name of Hacienda, at the option of
Torino. Failure by Torino to obtain zoning to RVP on the Property
will terminate this Agreement and all deposit money paid by Hacienda
will be returned to Hacienda.
(g) Hacienda has full legal and corporate authority to complete this
transaction and relocate all of the Club and membership to the new
location outlined in this Agreement, and the transaction and
relocation contemplated herein do not violate any laws or breach any
contracts of Hacienda or the Club. Hacienda agrees to indemnify,
defend, and pay legal costs for Torino if any legal action relating to
this transaction or the relocation is brought against Torino,
Hacienda, and/or the Club, by: the Club, Club members, any party
having a current or previous contractual relationship with Hacienda or
the Club, or any governmental agency (including, without limitation,
the State of Nevada Real Estate Division). In the event of such legal
action, Hacienda and Torino agree to work together to provide a
satisfactory resolution to any claim, and Hacienda and Torino will use
reasonable efforts to complete the transaction contemplated in this
Agreement. Hacienda agrees to indemnify and hold Torino
-7-
harmless from any claims by Club members, or any other parties,
against the Club, or its sponsor, which result from the actions of
Hacienda, or from operation or management of the Club, during the time
prior to Closing, or which result from collection by Hacienda of
Delinquent Notes after Closing.
(h) Hacienda shall provide to Torino, by not later than the end of the
Approval Period, Sahara's guaranty of Hacienda's performance under
this Agreement, duly executed by Sahara, in the form and content
attached hereto as EXHIBIT "G".
(i) The terms of the Club membership agreement provide that the nature and
extent of the Club facilities are subject to change and the Club
sponsor may add, remove, or relocate any or all facilities as it deems
desirable, but the sponsor must employ its best efforts to provide
equal or similar facilities for any facility removed.
(j) There are no known investigations by any governmental agencies or any
claims, suits, counterclaims, or proceedings in law or in equity
against the Club, or against Hacienda, relating to the Club. Any
lawsuits or claims against the Club, or against the sponsor relating
to the Club, which become known, will be presented to Torino prior to
Closing.
(k) To the best of Hacienda's knowledge, the Club is not operating in
violation of any federal, state, or local statute, law, ordinance,
rule or regulation.
(l) Hacienda agrees to indemnify Torino against any lawsuits brought
against the Club as a result of the discharge of hazardous substances
on the Hacienda Resort Hotel and Casino property or any contiguous
real property.
(m) Between the Agreement Date and Closing, Hacienda shall operate the
Club in the ordinary course of business, subject to ordinary wear and
tear and deterioration.
(n) After June 28, 1995, Hacienda will not sell new memberships in the
Club.
(o) True, correct and complete copies of the Club's original, subsequent,
and current public offering statements are attached hereto as EXHIBIT
"H".
(p) True, correct and complete copies of all permits for or pertaining to
the Club, and all amendments, conditions and restrictions of and to
such permits (including, without limitation, any and all permits
required by or under NRS Chapter 119B), are attached hereto as EXHIBIT
"I".
(q) Other than Club membership contracts, there are no Club contracts,
obligations, or liabilities.
(r) There is no membership association (including, without limitation, any
membership association formed pursuant to NRS Chapter 119B) of or in
connection with the Club.
(s) Exhibits "B" through "J" inclusive hereto are true, correct and
complete representations or copies of what each purports to be.
(t) Casino Properties, Inc. has been fully merged into Hacienda Hotel,
Inc., which is the current holder of all of the Membership Notes, and
no Membership Note is or has been sold.
-8-
(u) The representations or warranties by Hacienda in this Agreement are
true and correct in all material regards. There are no
representations or warranties of Hacienda other than as specifically
set forth in this Agreement.
(v) Any and all exhibits not attached hereto as of the Agreement Date
shall be furnished by not later than the end of the Approval Period,
unless earlier required pursuant to the Agreement.
4.02 Torino represents and warrants to Hacienda as follows:
(a) Xxxxx Torino is an individual, resident in the State of Nevada, who
has full capacity and authority to enter into this Agreement.
(b) The execution, delivery, and performance of this Agreement by the
persons executing the same by or on behalf of Torino, or assigns, have
been duly and validly authorized (and by their execution hereof such
persons individually represent and warrant that they are so
authorized) and this Agreement and the other agreements and
instruments contemplated hereby constitute legal, valid and binding
obligations of Torino, enforceable in accordance with their respective
terms.
(c) Torino agrees to indemnify and hold Hacienda harmless from any claims
by Hacienda Adventure members, or any other parties, against the Club,
or its sponsor, which result from the actions of Torino, or Torino's
management of the Club, during the time after Closing.
(d) The representations or warranties by Torino in this Agreement are true
and correct in all material regards. There are no representations or
warranties of Torino other than as specifically set forth in this
Agreement.
(e) Upon Closing, Torino shall be responsible for the management of the
Club at the New RV Park and shall perform all duties and meet all
obligations of the Club sponsor for as long as there are valid members
in the Club. Torino shall construct to completion the New RV Park, in
a workmanlike manner in accordance with Xxxxx County Code and
ordinances and the approved development plans and specifications
provided to Hacienda and Xxxxx County. The site plan specifications
and construction schedule shall be approved by Hacienda prior to the
end of Torino's Feasibility Period. Torino shall provide to Hacienda
a performance and completion guarantee for the planned improvements to
the Property, and such guarantee shall be secured by the Property.
(f) Torino, upon Closing, warrants to Hacienda that as long as there
exists one or more valid Club members, Torino shall own, operate, and
maintain, or provide, an RV park to accommodate the Club and its
members, at a ratio of at least one (1) RV space for each fifteen (15)
Club members. Torino shall abide by all the material terms, covenants,
conditions, and warranties contained in the contract agreements
executed by the Club members and Hacienda, and Torino is assuming the
contract obligations and contract conditions of those agreements on
behalf of Hacienda as part of this Agreement.
4.03 The representations and warranties contained herein are made with the
knowledge and expectation that Hacienda and Torino are placing complete reliance
thereon. The representations and warranties contained herein shall be true and
correct as of the date of execution hereof, or such other date as specified
herein, and shall survive the Closing.
-9-
Section 5
Access and Information; Pre-Closing Period
5.01 Throughout the Feasibility Period, Hacienda shall give Torino and Torino's
counsel, accountants, and other representatives, full access to Hacienda's
books, contracts, and records with respect to the Club. Torino shall treat
all such books, contracts, and records as confidential information.
5.02 During the period immediately following the Feasibility Period and prior to
Closing ("PRE-CLOSING PERIOD"), Hacienda and Torino shall cooperate in good
faith regarding all matters pertaining to the Club (including, but not
necessarily limited to, collection of Membership Notes; training of Torino
representatives in RV park and Club management and operations; sharing of
information; transfer of records, computer systems, permits, and so on).
If requested by Torino, Hacienda will cooperate to help to preserve any
grandfathered or favorable conditions outlined in the Nevada Real Estate
Division permit held by Resort Marketing International, subject to approval
by the Nevada Real Estate Division.
5.03 Hacienda promptly shall pay all costs incurred by Torino during the Pre-
Closing Period for engineering plans, hydrology studies, traffic studies,
landscape plans, and other similar plans or studies, connected with the
Property and/or the New RV Park. Such amounts paid by Hacienda during the
Pre-Closing Period shall be credited against any and all amounts to be paid
by Hacienda to Torino at Closing.
5.04 During the Pre-Closing Period and for a period of up to one (1) year after
Closing, Torino, in its sole discretion, may elect to have produced,
printed, and mailed or delivered to Club members, a sophisticated marketing
package (up to and including 4-color process) pertaining to the Club and
the New RV Park, to encourage Club members to voluntarily relinquish their
Club membership in favor of membership in a new, Torino-sponsored club
(subject to Torino receiving necessary permit(s) in connection with any
such new club). In the event that Torino so elects, Hacienda promptly
shall pay to Torino amounts equal to one-half of the costs incurred in
connection with such marketing package. Such payment by Hacienda shall be
in addition to any and all other amounts required to be paid by Hacienda
under this Agreement.
Section 6
Closing
6.01 The consummation of Hacienda's assignment of the Club to Torino and the
execution of the transfer, in accordance with the provisions of this Agreement
(the "CLOSING"), shall occur at the offices of First American Title Company
("ESCROWEE"), Las Vegas, Nevada. Closing shall be accomplished within two (2)
business days after all of the following have occurred:
(a) Torino has successfully completed construction of the New RV Park in
accordance with the approved plans and specifications.
(b) Torino has caused a certificate of occupancy to be issued for the New
RV Park and Torino is duly licensed to conduct business on the
Property.
(c) The New RV Park is open for business and can begin to accommodate Club
members.
(d) Fulfillment by Hacienda of its obligations as set forth in Section
6.02 below.
-10-
6.02 At the Closing, and in addition to other items required under the terms of
this Agreement, Hacienda shall deliver to Escrowee, for delivery to Torino, the
following:
(a) A Bargain and/or Sale Document as appropriate between the parties, in
the form of EXHIBIT "J" attached hereto, transferring sponsor
responsibility for the Club from Hacienda to Torino.
(b) All money required to be paid by Hacienda to Torino pursuant to this
Agreement, which has not already been paid.
6.03 Unless otherwise specifically provided for herein, this Agreement shall
serve, for both parties hereto, as the indemnification, warranty, or guarantee
required under any section of this Agreement.
6.04 Possession of the Club shall be delivered to Torino as of Closing. It is
the intent of this Agreement that Hacienda shall, at the Closing, convey to
Torino all rights, contracts, title and interest to the Club membership and all
rights presently held by Hacienda in the Club, excluding any Membership Notes
which are not paid in full. Hacienda agrees that at the Closing, and at any
time thereafter, upon request from Torino, Hacienda shall, at Hacienda's cost
and expense, cause to be executed, acknowledged and delivered to Torino such
assignments, conveyances, transfers, and other instruments and documents and
shall cause to be performed such acts as Torino shall from time to time require
for the perfecting, assuring, conveying, assigning, transferring and confirming
unto Torino of the rights herein conveyed or assigned or intended, now or
hereafter, so to be.
6.05 All costs, fees, and expenses in connection with transfer taxes and
conveyances, if any, shall be paid by Hacienda. All escrow fees shall be paid
equally by Torino and Hacienda.
6.06 Torino shall deliver to Hacienda, through escrow, completion and
performance guarantees for the construction of the New RV Park, together with
the approved rezoning of the Property to RVP and the approved site and
development plan for all improvements to the Property. The completion date of
improvements will be guaranteed by Torino by separate document which document
will be part of this escrow.
6.07 The terms, covenants, and conditions hereof shall not merge with any
conveyance, and shall survive the Closing and shall continue in full force and
effect as long as the Club, or its successor, remains in operation.
Section 7
Brokerage Fees
Each of the parties hereto represents to the other that it has not entered into
any agreement for the payment of any fees, compensation, or expenses to any
person, firm, or corporation in connection with the transactions provided for
herein. Hacienda and Torino each agrees to hold and save the other harmless
from any such fees, compensation, or expenses which may be suffered by reason of
any other agreements, or purported agreements, by the parties to pay any
brokerage fees.
Section 8
Notices
Any and all notices and demands by any party hereto and any notices required or
desired to be given hereunder by any other party shall be in writing and shall
be validly given or made only if deposited in the United States mail, certified
or registered, postage prepaid, return receipt requested, or if made by Federal
-11-
Express or other similar delivery service keeping records of deliveries and
attempted deliveries, or if sent by telecopy. Service by United States mail or
by Federal Express or other similar delivery service shall be conclusively
deemed made on the first business day delivery is attempted, or upon receipt,
whichever is sooner. Service by telecopy shall be deemed made upon confirmed
transmission. Any notice or demand to Torino shall be addressed to:
__________________________ LLC
Attention: Xxxxx Torino and Xxxxxxx Xxxxx
0000 Xxxxxx Xxxxx #X-000
Xxx Xxxxx, XX 00000
with a copy to:
Xxxxx X. Xxxxx, Esq.
Goold, Patterson, XxXxxx & Xxxxxxx
000 Xxxxx Xxxxxx Xxxxxx
000 Xxxx xx Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Any notice or demand to Hacienda shall be addressed to:
Hacienda Hotel, Inc.
Resort Marketing International
Attention: Xxxxx Xxxxxx
Santa Fe Hotel and Casino
0000 X. Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000.
with a copy to:
Sahara Gaming Corporation
Attention: Xxxx Xxxxxx
Santa Fe Hotel and Casino
0000 X. Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000.
The parties may change their address for the purpose of receiving notices or
demands as herein provided by a written notice given in the manner aforesaid to
the others, which notice of change of address shall not become effective,
however, until the actual receipt thereof by the others.
Section 9
Governing Law
This Agreement shall be deemed to be made under the laws of the State of Nevada
and for all purposes shall be governed by and construed in accordance with the
laws thereof. Xxxxx County, Nevada shall be the exclusive venue for any action
brought by the parties in any way related to this Agreement.
-12-
Section 10
Binding Effect
Subject to any limitation on assignment set forth in this Agreement, this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns. It is specifically agreed that
Torino may not assign, transfer, or convey any or all of its rights and
obligations hereunder, without the consent of Hacienda, which shall not be
unreasonably withheld. Hacienda may not assign or transfer its rights and
obligations under this Agreement without the prior consent of Torino, which
shall not be unreasonably withheld. This Agreement is not intended to, and
shall not, create any rights in any person or entity, whatsoever, except Torino
and Hacienda or their consented assigns. Any assignment consented to hereunder
shall not operate to relieve the assigning party of its warranties and
indemnities hereunder, unless and to any extent specifically set forth in the
assignment document approved by the non-assigning party hereto.
Section 11
Severability
If any term, provision, covenant or condition of this Agreement, or any
application thereof, should be held by a court of competent jurisdiction to be
invalid, void or unenforceable by the laws applicable thereto, such provision
shall be deemed severable from, and shall in no way affect the enforceability
and validity of the remaining provisions of this Agreement. All provisions,
covenants, and conditions of this Agreement, and all applications thereof, not
held invalid, void, or unenforceable, shall continue in full force and effect
and shall in no way be affected, impaired or invalidated thereby.
Section 12
Interpretation
This Agreement is an agreement between financially sophisticated and
knowledgeable parties and is entered into by the parties in reliance upon the
economic and legal bargains contained herein and shall be interpreted and
construed in a fair and impartial manner without regard to such factors as the
party who prepared (or caused the preparation of) this instrument or the
relative bargaining power of the parties.
Section 13
Joint Escrow Instructions
This Agreement shall constitute joint escrow instructions of the parties hereto.
The parties shall execute such escrow instructions, not in conflict with the
terms hereof, as may be required to fully effectuate the terms, covenants and
conditions hereof.
Section 14
Calculation of Time Periods
If any date, herein set forth for the performance of any obligation by Hacienda
or Torino or for the delivery of any instrument or notice provided for herein,
should be a Saturday, Sunday, or legal holiday, such performance or delivery may
be made on the next business day following such Saturday, Sunday, or legal
holiday. As used herein, the term "LEGAL HOLIDAY" means any state or federal
holiday for which financial
-13-
institutions or post offices are closed, in the local jurisdiction in which the
Property is located, for observance thereof, and the term "BUSINESS DAY" means
any day which is not Saturday, Sunday, or a legal holiday.
Section 15
Exhibits
All exhibits and schedules referred to herein and attached hereto are hereby
made a part of this Agreement and are incorporated herein by this reference.
Section 16
Entire Agreement
This Agreement contains the entire agreement between the parties relating to the
transactions contemplated hereby, and all prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged
herein. No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by the party
against which the enforcement of such modification, waiver, amendment, discharge
or change is or may be sought.
Section 17
Attorneys' Fees
In the event any action or proceeding is commenced by any party against any
other in connection herewith, including but not limited to any proceeding in
bankruptcy, the prevailing party shall be entitled to recover from the other
party all costs and expenses, including, without limitation, reasonable
attorneys' fees and costs, incurred in such action or proceeding, in addition to
any other relief awarded by the court.
Section 18
Time of Essence
Time is of the essence of this Agreement and all of the terms, provisions,
covenants and conditions hereof.
Section 19
Captions and Pronouns
The captions appearing at the commencement of the sections hereof are
descriptive only and for convenience in reference to this Agreement and in no
way whatsoever define, limit, amplify or describe the scope or intent of this
Agreement, nor in any way shall they be used in interpreting the terms of this
Agreement, nor shall they affect this Agreement. Personal pronouns used herein
shall be construed as though of the gender and number required by the context,
and the singular shall include the plural and the plural the singular as may be
required by the context.
Section 20
Reporting Person
Escrowee is hereby designated as the Reporting Person (as defined in Section
6045(e) of the United States Internal Revenue Code and the regulations
promulgated thereunder) as permitted by Treasury Regulation Section 1.6045-
4(e)(5).
-14-
Section 21
Joint and Several Liability
If any party consists of more than one person or entity, the liability of such
person or entity signing this Agreement shall be joint and several.
Section 22
Counterparts
This Agreement may not be executed in counterparts. This Agreement is not
binding until fully executed copies of this Agreement by all the parties hereto
are deposited into escrow with receipt of copies acknowledged by Torino and
Hacienda.
Section 23
Signature by Torino
Any other provision herein notwithstanding, the parties hereby acknowledge and
agree that Xxxxx Torino is executing this Agreement individually, subject to the
following: (a) Xxxxx Torino will cause to be formed a limited liability company
("company"), of which he will have a principal interest; (b) when such company
is formed, all interest, rights and obligations of Torino hereunder will be
assigned and delegated to the company, and Hacienda hereby consents to such
assignment and delegation; (c) the company will execute and deliver to Hacienda
a document reasonably acceptable to Hacienda, agreeing to be bound by the terms,
conditions and covenants of the Agreement, as the sole "Torino" party hereunder;
and (d) at the time the limited liability company executes and delivers such
document to Hacienda, Xxxxx Torino shall be fully released from any and all
personal liability hereunder, and thereafter, Xxxxx Torino shall have no
personal liability whatsoever.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as
of the date first above written.
HACIENDA: HACIENDA HOTELS, INC.
By: /s/ Xxxx X. Xxxxxx
_________________________________
Xxxx X. Xxxxxx, Chairman
RESORT MARKETING INTERNATIONAL
By: /s/ Xxxx X. Xxxxxx
_________________________________
Xxxx X. Xxxxxx, Chairman
TORINO:
By: /s/ Xxxxx Torino
_________________________________
Xxxxx Torino
-15-
LIST OF EXHIBITS
----------------
A - Property Description
B - Club Membership Contract (standard form); Club Rules & Regulations
C - Dues Paying Status of Club Members (computer report)
D - Sahara Resolution (Approval)
E - Summary or Abstract of Club Members' Files
F - CCC Agreement; CCC Rules & Regulations
G - Sahara Guaranty
H - Club Public Offering Statement and amendments
I - Club Permits
J - Bargain/Sale Instrument from Hacienda to Torino
-16-
