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EXHIBIT 10.4
AMENDED AND RESTATED OPTION AGREEMENT
WHEREAS, the undersigned, Martin J. Cable and Olga B. Cable, as
Trustees of the Cable Family Trust ("CABLE") and Grand Casinos Nevada I, Inc., a
Minnesota corporation ("GRAND") are parties to an Option Agreement dated as of
November 1, 1997 as amended by a letter agreement dated April 13, 1998,
("ORIGINAL OPTION AGREEMENT") and;
WHEREAS, under the Original Option Agreement Cable granted Grand an
option to acquire the Option Property and a right of first refusal with respect
to the Center Property (as such terms are defined in the Original Option
Agreement); and,
WHEREAS, the parties hereto desire to amend the Original Option
Agreement to extend the option with respect to the Option Property, to grant an
option with respect to the Center Property and in other respects;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is agreed that the Original Option Agreement is hereby amended
and restated in its entirety to read as follows:
THIS AMENDED AND RESTATED OPTION AGREEMENT made as of June 1, 2000, at
Las Vegas, Nevada by and between Martin J. Cable and Olga B. Cable, as Trustees
of the Cable Family Trust ("Cable") and Grand Casinos Nevada I. Inc., a
Minnesota corporation ("Grand").
W I T N E S S E T H:
WHEREAS, Cable is the owner of certain real property in Clark County,
Nevada, commonly known as the Cable Center located at 3755 Las Vegas Boulevard
South and legally described in Exhibit A attached hereto and incorporated herein
by reference (the "CABLE PROPERTY"). The Cable
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Property consists of approximately four and one-half (4.5) acres of gross land
area having the approximate dimensions of two hundred seventy (270) feet in
width and seven hundred thirty-five (735) feet in depth. The western portion
("CENTER PROPERTY") of Cable Property is improved with a single retail shopping
center building (the "CABLE CENTER"). The remainder of the Cable Property is
referred to herein as the REAR PROPERTY. The Center Property and Rear Property
are Parcels 1 and 2 respectively, as shown on that map recorded March 30, 1999,
at Page 0072, File 094, Office of the County Recorder, Clark County, Nevada.).
The Center Property includes all improvements thereon; all furniture, fixtures,
equipment and other tangible property thereon other than Tenant fixtures;
deposits, whether made by or with Cable, including, but not limited to, rent
deposits and utility deposits; any and all warranties relating to any
improvements or any materials incorporated therein; and all books and records of
Cable reasonably related to any other item included in the Center Property.
WHEREAS, Grand desires to obtain from Cable options to purchase the
Rear Property and the Cable Center Property;
WHEREAS, Cable is willing to grant to Grand options to purchase the
Rear Property and the Center Property on the terms and subject to the conditions
set forth herein; and,
WHEREAS, the parties hereto have reached an understanding with respect
to the grant by Cable to Grand of options to buy the Rear Property and the
Center Property.
NOW, THEREFORE, it is agreed as follows:
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SECTION 1
OPTION
1.01.1. Cable hereby grants Grand options (the "OPTIONS" and each an
"OPTION") to purchase the Rear Property or the entire Cable Property on the
terms and subject to the conditions set forth in this Agreement. The Rear
Property and the Center Property shall each be conveyed to Grand free and clear
of all security interests, liens and monetary encumbrances except non-delinquent
taxes and assessments.
1.01.2. In the event Grand exercises the Option with respect to only
the Rear Property, Cable shall, concurrently with the conveyance of the Rear
Property, convey to Grand a non-exclusive, permanent easement appurtenant to the
Rear Property for the purpose of vehicular and pedestrian ingress and/or egress
over the northerly most approximately forty (40) feet of the Center Property
(the "ACCESS EASEMENT"). The Access Easement is depicted on the map attached
hereto as Exhibit B and incorporated herein by reference Grand shall have no
right to use the Access Easement in any manner which materially interferes with
the operations of the Cable Center or the rights of the tenants occupying the
Cable Center, including, without limitation, the use of the easement by
construction equipment or the material impairment of traffic circulation by
customers of the Cable Center to and from the existing parking areas located on
the Center Property. Except as expressly set forth in this Section 1.01 and in
Section11.02 and Section 11.03, Grand shall not have any right to alter,
construct or modify the existing improvements located on the Access Easement,
without the prior written consent of Cable, which consent shall not be
unreasonably withheld or delayed. The failure of Cable to disapprove any
requested alteration, modification or improvement, or to specify the reasons for
such disapproval, within ten (10) days of a request for such approval shall be
deemed
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approval thereof. Without limiting Grand's rights to require Cable's approval of
other matters hereunder, the parties specifically acknowledge that Grand may
submit proposals to Cable pursuant to this Section prior to exercise of the
Option with respect to the Rear Property. Cable acknowledges that Grand must
alter the Access Easement in order to use the same for the purposes intended
herein. Grand acknowledges that such approval by Cable may be conditioned upon,
among other things, Grand's assumption of responsibility for maintaining the
improvements so constructed. The parties acknowledge that no parking spaces for
the Center Property are located in the Access Easement and agree that in
connection with development of the Access Easement Grand may not require any
parking spaces currently on the Center Property to be moved or removed. If the
Access Easement is developed by Grand in conjunction with the property
immediately to the north of the Access Easement (such property so developed
being referred to as the "NORTH EASEMENT") as a combined ingress/egress drive,
Cable shall have a non-exclusive easement over the North Easement for so long as
the North Easement is so developed for the purpose of vehicular ingress and/or
egress to or from the Center Property. Should a median be constructed in any
roadway over the Access Easement, or over the Access Easement and North
Easement, if applicable, a median break shall be located not more than one
hundred sixty (160) feet east of the west boundary of the Center Property
sufficient to allow cars traveling east on such roadway to take a u-turn into
the westbound lane(s) of such roadway. Should a roadway exist, in whole or in
part, over the Access Easement which allows customers of Grand access to the
remainder of the Center Property, upon the request of Cable, Grand will
undertake such measures as are reasonable in light of the circumstances
(including, without limitation, the magnitude of any problem) to prevent
customers of Grand parking on the Center Property if the same would interfere
with the ability of customers of the Center Property to park
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thereon. Grand shall have the right to locate subsurface utility lines beneath
the Access Easement, provided that such use does not materially interfere with
the operations of the Cable Center or the rights of tenants occupying the Cable
Center, Grand pays all costs associated therewith and restores the surface of
the Access Easement area to its condition prior to installation of such
utilities. Grand shall indemnify, defend and hold Cable and its successors and
assigns harmless from and against any liability, obligation, claim, damage, cost
or expense (including reasonable attorney's fees) that Cable or its successors
and assigns shall incur or suffer arising out of or in connection with the use
of the Access Easement by Grand and Grand's agents, contractors, and invitees or
any of Grand's activities in connection therewith. The terms and conditions of
Grand's use of the Access Easement as provided in this Section shall be set
forth in an Easement Agreement, in form and content reasonably satisfactory to
Cable and Grand, which shall be recorded as of the closing of the purchase of
the Rear Property.
1.02. The period during which the Options may be exercised (the "OPTION
PERIOD") commences June 1, 2000 and expires January 2, 2003. As consideration
for the Options, Grand shall pay to Cable the amount of One Hundred Thousand
Dollars ($100,000) per month. Such payments shall commence on June 1, 2000 and
continue on or before the first day of each and every month thereafter during
the Option Period for so long as Grand desires the Options to remain effective.
If, for any reason whatsoever, the full amount of any option payment is not made
by Grand within the time provided for herein, and such amount remains unpaid for
ten (10) days after written notice from Cable to Grand of such non-payment, the
Options shall automatically terminate without notice or further action by Cable,
and Cable shall be fully released and discharged from any further liability
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or obligation under this Agreement. Each option payment shall be tendered by
Grand to Cable within the time specific herein without reservation or condition.
1.03. All option payments paid to Cable by Grand pursuant to this
Agreement shall be absolutely non-refundable. Grand acknowledges and agrees that
the amount of the option payments constitute fair and reasonable consideration
for the granting of the Options and that Cable has the absolute right to retain
the option payments whether or not either of the Options is exercised and
whether or not the closing occurs. However, the parties acknowledge that the
fact that the option payments are non-refundable under this Agreement shall not
prejudice Grand's right to seek recovery thereof in an action against Cable in
the event that Cable commits a Breach (as hereinafter defined) of this
Agreement.
1.04. In the event Grand exercises the Option with respect to either
the Rear Property or the entire Cable Property, Grand shall be entitled to apply
against the Purchase Price thereof twenty percent (20%) of the option payment
due for the period commencing June 1, 2000, and each subsequent option payment
through, but excluding, the option payment due for the period commencing
November 1, 2000, and one half of the option payment due for the period
commencing November 1, 2000, and each subsequent option payment through, but
excluding, the option payment due for November, 2001. No portion of any option
payments for the period commencing November 1, 2001, through the end of the
Option Period shall be applied against the Purchase Price.
1.05. Grand may exercise the Option for the Rear Property or the Option
for the entire Cable Property by notice ("OPTION NOTICE") to Cable given any
time that the Options remains in effect. The Option Notice shall specify the
property to be acquired and time and date for closing of the purchase, which
date shall not be less than thirty (30) days after the date of the Option Notice
but
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no later than January 2, 2003; provided, however, Grand shall continue to be
obligated to make all option payments that are due between the date of such
exercise and the closing of the purchase. Should Grand exercise the Option with
respect to only the Rear Property, Grand shall have no further right to acquire
the Center Property. The Options shall remain in effect until the last day of
the last month for which Grand has made an option payment pursuant to Section
1.02, provided that in no event shall any Option remain in effect after January
2, 2003, unless specifically extended in writing by Cable. Should the Options
terminate and Grand has not exercised the same, Grand shall have no further
rights with respect to the Cable Property, except in the case of a Breach.
SECTION 2
PURCHASE PRICE
2.01. The total purchase price (the "PURCHASE PRICE") for the Rear
Parcel shall be Eighteen Million Dollars ($18,000,000). The Purchase Price for
the entire Cable Property shall be Thirty-Nine Million One Hundred Twenty
Thousand Dollars ($39,120,000). Cable and Grand acknowledge and agree that the
Purchase Price represents the net consideration to be received by Cable for the
Rear Parcel or Cable Property, as the case may be, and that, except as expressly
set forth in this Agreement, including, without limitation, Section 1.04, there
shall be no reductions to or credits against the Purchase Price.
2.02. The applicable Purchase Price, less any applicable credits,
shall be paid at the closing by Grand to Cable in immediately available funds.
2.03.1. Real estate taxes, assessments and deposits and rent under the
Leases shall be prorated as of the closing pursuant to a closing statement
prepared by Escrow Agent and approved by the parties. To the extent that such
adjustments can be made at the applicable closing date the
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same shall be done and Cable or Grand, as the case may be, shall pay the amount
due to the other. All other adjustments shall be paid by Cable to Grand or Grand
to Cable, as the case may be, promptly on demand when computed. In the case of
acquisition of the entire Cable Property, in lieu of prorating power, gas, water
and other utility fees and charges, to the extent not directly paid by the
tenants under the Leases, the appropriate utilities will be informed to take
meter readings as close as practicable to the closing date, to bill Cable for
service prior to such readings and to bill Grand for service thereafter. Said
readings may before or after the applicable closing date.
2.03.2. Any rental or other payments received by Grand from any tenant
under any Lease after the closing date of acquisition of the Cable Property
shall be applied first against any obligations of said tenant to Grand and only
if all obligations of said tenant to Grand are current shall Grand then remit
the excess to Cable in an amount not in excess of the amount, if any, certified
by Cable to Grand at the closing to be so due, provided that if such tenant is
so certified to be one (1) month or less in arrears in payment of rent the first
payments received by Grand from such tenant shall be remitted to Cable to the
extent of such delinquency. Cable shall not make any claim or take any action to
collect any sums owing Cable from such tenant which might adversely affect
Grand's rights and remedies under the any Lease. Nothing in this Section 2.03.2
shall constitute a waiver by Grand of any representation, warranty, term,
covenant or condition contained in this Agreement, including, without
limitation, Sections 4.01.1(f) and (g).
2.04. Grand shall withhold from the Purchase Price such amount as Grand
reasonably estimates is necessary to comply with the provisions of NRS 360.525
and 612.695 until such time as Cable furnishes Grand the receipts or
certificates provided for in said statutes or, if not so provided for, such
evidence as Grand may reasonably require to assure Grand that the applicable
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obligations have been paid. If Cable does not produce such receipts or
certificates within the time periods provided in said statutes, or if any lien
or other claim therefor is asserted against Grand or the property acquired by
Grand under this Agreement, Grand shall pay such withheld sums to the
appropriate authority.
2.05. Grand agrees to reasonably cooperate so as to qualify these
transactions under Section 1031 of the Internal Revenue Code provided Grand
incurs no additional liability, cost, delay or expense. Notwithstanding the
foregoing sentence, the sale of the Rear Parcel and the entire Cable Property
and the rights of Grand shall in no manner be contingent upon or affected by the
failure to qualify the transaction for such tax deferred exchange treatment,
regardless of the reasons or causes of such failure to qualify.
SECTION 3
TITLE
Grand acknowledges that, prior to the date of this Agreement, Grand has
conducted investigations with respect to the condition of title to the Cable
Property. Grand acknowledges that it has received and reviewed a preliminary
title report ("PTR") issued by Escrow Agent concerning the Cable Property,
together with legible copies of all documents referred to therein. A copy of the
PTR is attached hereto as Exhibit C and incorporated herein by reference. The
parties agree that, in the event that Grand exercises either Option, Cable will
be conveying title to the applicable parcel subject to, and only subject to, all
of the following matters affecting or which may affect the condition of title to
such parcel ("PERMITTED TITLE EXCEPTIONS"): (a) any and all covenants,
reservations, restrictions, easements and other title matters appearing of
record as of the date of the PTR (whether or not disclosed in the PTR), except
for delinquent taxes and assessments; (b) any lien
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for current year taxes and assessments not yet delinquent now or hereafter
assessed against the Cable Property; (c) any matters created or suffered in
connection with the filing, processing or recordation of the parcel map referred
to in the recitals to this Agreement; (d) any matter caused or created by Grand;
(e) in the case of acquisition of the entire Cable Property, any Leases
conforming to the representations and covenants in this Agreement; and (f) any
other non-monetary defect or exception to title that does not materially
adversely affect the value of the applicable parcel or Grand's intended use of
such parcel or, if applicable, the Access Easement. Grand shall be solely
responsible for obtaining such title commitments or title insurance as Grand may
desire in connection with the granting of the Options or the closing of the
purchase of either parcel, except that, and conditioned upon the closing of
either parcel, Cable shall pay the portion of the title insurance premium
described in Section 10.04. Grand acknowledges that title to the Rear Property
may be subject to a Covenant not to Compete for the benefit of McDonald's
Corporation ("MCDONALD'S COVENANT"). Except in the event of the creation of a
Material Title Defect (as defined herein) by Cable or a Breach, (i) Cable shall
have no responsibility or liability for the condition of title of the Rear
Parcel or Cable Property and (ii) no matter affecting condition of title to the
Rear Parcel or Cable Property shall form the basis for a claim by Grand against
Cable for default or breach of this Agreement or for the refund of any option
payments made by Grand to Cable pursuant to this Agreement. It shall, however,
be a condition precedent to Grand's obligation, upon exercise of an Option, to
consummate the closing of the purchase of the applicable parcel that Grand
obtains through Escrow Agent an ALTA Form B extended owner's policy of title
insurance in the amount of the applicable Purchase Price, and with such
endorsements as Grand may reasonably require, insuring that Grand has fee simple
title to the applicable parcel and, if applicable,
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an easement over the Access Easement as provided herein subject only to the
Permitted Title Exceptions.
SECTION 4
REPRESENTATIONS AND WARRANTIES
4.01.1. Cable represents and warrants to Grand as follows:
(a) Cable has full power and authority to enter into this
Agreement.
(b) The execution, delivery and performance of this Agreement by
the Persons executing the same on behalf of Cable have been duly and
validly authorized (and by their execution hereof such Persons so
represent and warrant) and this Agreement constitutes the legal, valid
and binding obligation of Cable enforceable in accordance with its
terms.
(c) Neither the execution, delivery or performance of this
Agreement by Cable 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 Cable or the Cable Property is subject or any agreement or
instrument to which it is a party or by which it or the Cable Property
is bound, or constitute a default thereunder.
(d) To Cable's actual knowledge, no labor has been performed or
material furnished for the Cable Property, or any part thereof, for
which Cable has not heretofore fully paid, or for which a mechanic's
or materialman's lien or liens, or any other lien, can be claimed by
any Person.
(e) Except as may be disclosed in the environmental reports
referred to in Exhibit D attached hereto and incorporated herein by
reference, Cable has not received any written notice or other written
communication from any government, agency thereof or any private
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party concerning any alleged violation of Environmental Laws or any
written notices or other written communications alleging against Cable
liability for Hazardous Materials in connection with the Cable
Property.
(f) Except for easements shown on the PTR, the McDonald's
Covenant (as to the Center Property and, possibly also as to the Rear
Property), and the Leases (as the Center Property only) Cable is not,
and prior to transfer of possession of the Cable Property will not be,
a party to any service contract, Lease or other agreement with respect
to or affecting the Cable Property, except for contracts and
agreements terminable on notice of thirty (30) days or less. Other
than the McDonald's Lease, the Narang Lease and the OPC Lease, (i) no
Lease has a term which expires or will expire later than June 30,
2002, and (ii) after June 30, 2002, all Leases may be terminated on
not more than ninety (90) days' notice. Upon exercise of the Option
with respect to the entire Cable Property the OPC Lease may be
terminated by the lessor on not more than thirty (30) days' notice.
Without limiting the generality of the foregoing, no Person other than
Cable, the beneficiaries of the easements shown on the PTR and
possibly the beneficiary of the McDonald's Covenant has any rights
whatsoever with respect to the Rear Property. Cable has no actual
knowledge of any exception to title to the Cable Property other than
those described in the PTR.
(g) All agreements (including all extensions, amendments and
other modifications thereof, the "LEASES") pursuant to which a Person
may occupy any part of the Cable Property are listed on Exhibit E
attached hereto and incorporated herein by reference. Cable has
furnished Grand true, correct and complete copies of the Leases. The
amount of any security deposit made by any such tenant is set forth on
Exhibit E. No rent under any
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Lease has been paid more than one (1) month in advance. There has been
no application of any security deposit to a tenant's default under any
Lease, except as described on Exhibit E. Cable has not received or
given any written notice with respect to any default by any party
under any Lease which remains uncured, except for notices, copies of
which have previously been given to Grand.
(h) No consent, approval or authorization of any private party is
required in connection with the execution, delivery and performance of
this Agreement by Cable.
(i) Cable has made available to Grand all material reports,
studies and surveys concerning the Cable Property in Cable's
possession or under Cable's control (collectively the "PROPERTY
INFORMATION"). Grand acknowledges that Cable has neither verified the
accuracy of any information contained in the Property Information nor
the qualifications of the Persons preparing the Property Information.
Grand acknowledges and agrees that Cable makes no representations or
warranties, expressed or implied, with respect to the accuracy or
completeness of the Property Information or its fitness for a
particular purpose.
(j) Cable is not and has not been a foreign person, as defined in
the Internal Revenue Code of 1986, as amended, and Cable will deliver
to Grand at the closing affidavit(s) under penalty of perjury and
otherwise in the form and substance necessary to satisfy the
requirements under the Internal Revenue Code of 1986 relating to
withholding of a portion of the purchase price, stating the U.S.
taxpayer identification number of Cable and that such Person is not a
foreign person.
4.01.2. Grand acknowledges and agrees that, prior to Grand's execution
of this Agreement, Grand was given the full opportunity to inspect and
investigate each and every aspect of the Cable
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Property either independently or through Grand's agents. Grand acknowledges and
agrees that, except for Cable's express representations and warranties set forth
in this Agreement, if Grand elects to purchase either the Rear Parcel or the
entire Cable Property it is purchasing such parcel based solely upon Grand's
inspection and investigation of the applicable parcel, or its opportunity to do
so, and Grand is purchasing the applicable parcel in its "AS IS" condition,
without relying upon any representations or warranties, express or implied, of
any kind, except as expressly set forth in this Agreement. Without limiting the
above, Grand expressly acknowledges and agrees that, except for Cable's express
representations and warranties set forth in this Agreement, neither Cable nor
Cable's agents has made any representations or warranties as to any matters
concerning the Cable Property, including, but not limited to, its intended use,
the condition of the Cable Property, square footage, layout, development rights
and exactions, permissible uses, utilities, zoning, soil, subsoil, drainage,
title, compliance with applicable laws, rules and regulations (including
Environmental Laws), the presence of Hazardous Materials on or under the Cable
Property or any other matters. The closing of the purchase of either parcel by
Grand hereunder shall be conclusive evidence that Grand accepts such parcel in
its present condition with all patent and latent defects, other than breaches of
the express representations and warranties contained herein.
4.02. Grand represents and warrants to Cable as follows:
(a) Grand has full power and authority to enter into this
Agreement.
(b) The execution, delivery and performance of this Agreement by
the Person executing the same on behalf of Grand have been duly and
validly authorized (and by his execution hereof such Person so
represents and warrants) and this Agreement constitutes the legal,
valid and binding obligation of Grand enforceable in accordance with
its terms.
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(c) Neither the execution, delivery or performance of this
Agreement by Grand 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 Grand is subject or any agreement or instrument to which it is a
party or by which it is bound, or constitute a default thereunder.
(d) No consent, approval or authorization of any private party is
required in connection with the execution, delivery and performance of this
Agreement by Grand.
4.03. No specific warranty or representation contained herein shall be
deemed to modify or limit any general warranty or representation.
4.04. The representations and warranties contained herein are made with
the knowledge and expectation that Grand and Cable, as the case may be, are
placing complete reliance thereon. However, notwithstanding any other provision
of this Agreement, any knowledge of matters concerning the Cable Property which
actually came to the attention of Grand prior to the execution of this Agreement
(whether through Cable or due to Grand's own investigations) shall be deemed to
limit (and be an exception to) any and all representations and warranties made
by Cable in this Agreement so as to reduce or eliminate any liability which
Cable may otherwise have had with respect to such matter as a result of such
representations and warranties, provided that Grand's awareness that it may be
unclear whether the Leases affect the Rear Property shall not be a limitation
of, or exception to, Section 4.01.1(f). Grand acknowledges receipt of the
reports and other information referred to in Exhibit D and Grand's awareness of
the matters set forth in such reports and other information.
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4.05. The representations and warranties in this Agreement shall be true
and correct in all material respects as of the date of execution hereof and as
of the closing and shall survive the closing for a period of one (1) year. Any
and all liability of Cable or Grand, as the case may be, for breach of any of
the representations and warranties in this Agreement shall terminate as to such
representation and warranty if no written claim of breach (specifying such
representation or warranty allegedly breached and the supporting evidence for
the alleged breach) has been delivered to such party on or before the expiration
of such one (1) year period, and notwithstanding the existence of a claim of
breach with respect to any one or more representations or warranties within such
period, the remaining representations and warranties for which no claim of
breach has been delivered within the applicable period shall expire and be of no
further force or effect.
4.06. Notwithstanding any other provision of this Agreement, Cable shall
not be considered or deemed to be in default or breach of any representation,
warranty or covenant of this Agreement unless and until Cable has committed a
Breach (as hereinafter defined).
SECTION 5
NAME
Commencing on the closing of the sale of the Cable Property, Cable hereby
grants Grand a non-exclusive, royalty free, license to use the mark and name
CABLE CENTER and any variant thereof on signage at, or otherwise reasonably in
connection with, the Cable Property for so long as Grand continues to operate
the Cable Center in substantially the same way as it is operated as of the date
hereof.
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SECTION 6
CONDITIONS PRECEDENT TO CLOSING
6.01. Following the exercise of either Option by Grand, the obligations of
Grand hereunder to consummate the closing are subject to the fulfillment, prior
to or at such closing, as required, of each of the following conditions, subject
to no reservations, restrictions, conditions or limitations unsatisfactory to
Grand:
(a) All conditions precedent to Grand's obligations provided for
in any other section of this Agreement have been satisfied.
(b) On the closing date no litigation or action shall be pending
or threatened, or have been brought, and remain undismissed, alleging the
illegality, invalidity of, or seeking to enjoin the performance of this
Agreement.
(c) All consents, approvals, authorizations, agreements, estoppel
certificates and beneficiary statements of any third party required or
reasonably requested by Grand in connection with the consummation of the
transactions contemplated hereby shall have been delivered to Grand.
(d) The representations and warranties of Cable contained in this
Agreement shall be true at the closing as though such representations and
warranties were made at such time.
(e) Cable shall have performed and complied with all agreements
and conditions required by this Agreement to be performed or complied with
by it prior to or at the closing.
(f) No material adverse change with respect to the Center
Property, Rear Property or Access Easement, as applicable, has occurred
since the date of the Option Notice.
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(g) Cable shall have terminated any and all agreements, other
than the Leases, with respect to the applicable property as of the closing
and, in the case of the acquisition of the entire Cable Property, if Grand
has so requested, Cable shall, within five (5) days after any such
request, have given notice of termination under those Leases (including,
without limitation, the OPC Lease and the Sign Lease) which are then
terminable on not more than ninety (90) days' notice with respect to which
such request is made terminating such Leases on the earliest possible
date, provided that no Lease termination need be effective prior to the
closing.
(h) The tenant under the McDonald's Lease and beneficiary of the
McDonald's Covenant has agreed that Grand may terminate such Person's
parking rights on the Cable Property provided that there is loading
ingress and egress, and pedestrian ingress and egress, from Las Vegas
Boulevard South to such premises and that such Person's employees are
provided parking in a reasonable location.
6.02. Cable, at no cost to Cable, shall render Grand its reasonable
cooperation in satisfying the conditions precedent to Grand's purchase of the
Cable Property.
6.03. In the event of failure of any condition precedent to Grand's
obligations hereunder, if Grand so elects by written notice to Cable, this
Agreement shall cease and terminate as to the applicable parcel and neither
party shall have any rights against the other by reason of such termination,
except that Cable shall remain liable for any Breach of this Agreement by Cable.
Except for the Breach of this Agreement by Cable, the failure of any condition
precedent to Grand's obligations hereunder shall not form the basis for any
claim by Grand against Cable, including a claim for the recovery of the option
payments made to Cable.
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6.04. Any and all terms, covenants, conditions, representations and
warranties contained herein which are for the benefit of Grand including, but
not limited to, all conditions precedent and Cable's representations and
warranties, may be waived by Grand in its sole and absolute discretion.
SECTION 7
RISK OF LOSS
In the event of any material destruction, damage or condemnation of the
Rear Parcel, and/or the Center Property (including any improvements thereon),
Cable shall promptly notify Grand in writing. In such event, Grand may, by
written notice to Cable, elect to terminate this Agreement. If there is such
destruction, damage or condemnation and Grand does not terminate this agreement
and Grand exercises either Option, Grand shall acquire the applicable parcel as
herein provided (with no offset to or reduction of the applicable Purchase
Price) and all insurance and condemnation proceeds attributable to the acquired
parcel shall be paid to Grand. In the event Grand is not acquiring the entire
Cable Property, Cable shall be entitled to receive and retain all insurance and
condemnation proceeds with respect to the Center Property (including, without
limitation, in the case of condemnation, severance damages and loss of business
goodwill). This Section 7 is intended as an express provision with respect to
destruction and eminent domain which supersedes the provisions of the Nevada
Uniform Vendor and Purchaser Risk Act. No destruction, damage or condemnation
shall form the basis of a claim by Grand for the recovery of the option payments
made to Cable.
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SECTION 8
CONDUCT PENDING CLOSING
Until either Grand's Options terminate or the closing occurs.
(a) Cable shall continue to operate the Cable Property in the
ordinary and regular course consistent with past practice. Without
limiting the generality of the foregoing (i) Cable shall use commercially
reasonable efforts to maintain the Cable Property in good working order
and condition, ordinary wear and tear excepted; and (ii) Cable shall keep
the Cable Property insured at substantially the same levels of coverage
and against substantially the same risks as provided by the insurance
which is currently in place.
(b) Cable shall enforce all the terms, covenants and conditions
of the Leases. Cable shall promptly provide Grand with copies of all
notices and other communications Cable gives or receives with respect to
the Leases.
(c) Cable shall not amend, modify, enter into or terminate any
Lease without Grand's prior written consent, which may be withheld in
Grand's sole and absolute discretion, provided that Cable may, without
Grand's consent, extend the term of now existing Leases so long as (i)
Cable promptly provides Grand a copy of such extension agreement, and (ii)
such extension does not result in the breach of any term, covenant,
condition, representation or warranty contained in this Agreement. Cable
may also enter into a lease ("SIGN LEASE") of a portion of the Center
Property for a billboard. The Sign Lease shall be subject to the approval
of Grand, which shall not be unreasonably withheld. The Sign Lease shall
provide that it may be terminated on and after June 30, 2002, on not more
than thirty (30) days' notice. Cable shall not enter into any other new
agreements affecting the Cable Property
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other than agreements terminable by Cable within thirty (30) days and
which shall be terminated prior to closing. Cable shall provide Grand
reasonable notice of any meetings or other negotiations that Cable will
have with any tenants under the now existing Leases regarding the
extension of the term of such Leases and shall allow a representative of
Grand to participate in such negotiations. Should any such tenant, other
than the tenant under the OPC Lease, refuse to extend its Lease solely
because such extended Lease term is subject to termination on ninety (90)
days' notice as provided elsewhere in this Agreement, Grand shall lease
the subject premises from Cable for a term commencing on the termination
date of such Lease and ending January 31, 2003. Such lease shall be for
the rental payable under the applicable Lease immediately preceding its
termination and shall otherwise be on the terms and conditions of the
terminated Lease, except that there shall be no use restriction (other
than (i) restrictions on "adult" and similar objectionable uses, (ii)
restrictions necessary to comply with now existing exclusive uses
provisions in the Leases or similar provisions hereafter approved by Grand
and (iii) restrictions on any use not permitted by the applicable Lease
which use would directly compete with a material portion of the business
then being conducted by another tenant in the Cable Center) and there
shall be no limitations on Grand's ability to assign and/or sublease.
(d) Cable shall not do, or suffer to be done, any act or event
which, if in existence on the date hereof or the closing date, would
breach any warranty, representation or covenant made by, or to be observed
or performed by, Cable hereunder.
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SECTION 9
ACCESS AND INFORMATION
From the date hereof, through and including the termination of the Options
or the closing of the purchase of the Rear Parcel or the entire Cable Property,
as applicable, Grand shall be entitled to inspect the Cable Property and to
conduct such tests, surveys, analysis and feasibility studies of the Cable
Property as Grand deems necessary, advisable or desirable, provided Grand
notifies Cable of any entry onto the Cable Property in connection therewith and
obtains any required consent of the tenant in the case of entry into space
occupied by a tenant under a Lease. Grand shall maintain insurance for any such
work performed on the Cable Property, shall indemnify and hold Cable harmless
from any loss arising out of Grand's work on the Cable Property pursuant hereto
and shall restore the affected Cable Property to its condition prior to any such
tests in the event the applicable closing does not occur. Cable shall render
Grand Cable's full and complete cooperation in connection with any of such
inspections, tests, surveys, analyses, studies, and meetings, provided that such
cooperation shall be at no cost, expense or liability to Cable. It is
specifically acknowledged and agreed that in connection with the foregoing
inspections Grand may meet with tenants under the Leases, provided that Grand
provides Cable with notice of such meetings and allows Cable to attend the same,
and provided further that Grand shall not meet with such tenants prior to June
30, 2001, without Cable's prior consent, which shall not be unreasonably
withheld or delayed. In addition to the foregoing, Cable shall permit Grand and
its representatives full access to the books and records with respect to the
Cable Property, provided that the exercise of such access shall not unreasonably
interfere with the normal business and operations of the Cable Property.
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SECTION 10
CLOSING
10.01. The closings shall occur at the offices of Nevada Title Company, a
Nevada corporation ("ESCROW AGENT"), 3320 West Sahara Avenue, Suite 200, Las
Vegas, Nevada 89102, at the time and date specified in the Option Notice,
provided that if Cable shall breach any representation, warranty or covenant of
this Agreement made by, or required to be performed or observed by, Cable which
breach has not been cured by such date Grand may extend such date to a date not
more than ten (10) days after the last date Cable may cure such breach pursuant
hereto. In such event, Grand shall not be required to make any option payments
during such extension period.
10.02.1. At the closing Cable shall deliver to Grand the
following:
(a) A grant, bargain and sale deed conveying the Rear Parcel or
Cable Property, as the case may be, to Grand subject to the Permitted
Title Exceptions.
(b) In the case of the sale of the entire Cable Property, the
originals of all Leases (to the extent in Cable's possession or control),
other than any Leases which Cable is required to terminate hereunder,
together with a written assignment, in recordable form, of all of the
landlord's right, title and interest therein to Grand, in form
satisfactory to Grand.
(c) All files, correspondence, memoranda, books and records
pertaining to the applicable parcel, provided that in the case where Grand
is acquiring only the Rear Parcel, if any such records relate partly to
the Rear Parcel and partly to the remainder of the Cable Property, Cable
need only deliver copies of the portions thereof relating to the Rear
Parcel.
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(d) A written assignment to Grand of Cable's right, title and
interest in any applicable warranties.
10.02.2. At the closing Grand shall deliver to Cable the following:
(a) The applicable Purchase Price in immediately available
funds, less any permitted credits.
(b) In the case of the sale of the entire Cable Property, an
assumption of all liabilities under the assigned Leases accruing after the
closing in form satisfactory to Cable.
10.02.3. The closing with respect to the Purchase Price and recorded
documents shall be conducted through an escrow with Escrow Agent. At the closing
Grand and Cable shall execute such escrow instructions not in conflict with the
terms hereof as either of them or Escrow Agent may require to fully effectuate
the terms, covenants and conditions hereof.
10.03. Cable agrees that at the closing and any time thereafter, upon
request of Grand, Cable shall execute, acknowledge and deliver to Grand such
deeds, assignments, conveyances, transfers, and other instruments and documents
and perform such acts as Grand shall from time to time require for the better
perfecting, assuring, conveying, assigning, transferring and confirming unto
Grand the property and rights herein conveyed or assigned or intended now or
hereafter so to be.
10.04. At and conditioned on the closing, Cable shall pay that portion of
the premium for title insurance regarding the applicable parcel referred to in
Section 3 equal to the amount of the standard premium which would have been paid
for a CLTA owner's policy of title insurance in the same amount, including
refunding to Grand any commitment fee, title insurance premium or similar charge
previously paid by Grand, if necessary, so that Cable pays an amount equal to
such standard
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premium. All additional premiums shall be paid by Grand. All other closing costs
shall be allocated in accordance with the prevailing practice in Las Vegas,
Nevada.
10.05. Possession of the applicable parcel shall be delivered to Grand as
of the closing, subject to the rights of the tenants under assigned Leases, if
applicable.
10.06. The terms, covenants and conditions hereof shall not merge with any
deed or conveyance, shall survive the closing and shall continue in full force
and effect until such time, if any, as provided herein.
10.07. At the closing of the sale of the entire Cable Property, Cable and
Grand shall execute a written notice of Grand's acquisition of the Cable
Property and sufficient copies for transmittal to all tenants and other parties
affected by the sale, properly addressed to all such tenants and other parties.
The notices shall be prepared by Cable and shall be in form and content
satisfactory to Grand, shall notify the addressees of the sale and shall contain
appropriate instructions relating to the payment of future rentals, the giving
of future notices, and other matters reasonably required by Grand or required by
law. Cable agrees to transmit, or cause to be transmitted, such notices to the
addressees promptly after such closing.
SECTION 11
POST CLOSING COVENANTS
11.01. Should any easements serving the Center Property be located on the
Rear Property and should Grand acquire only the Rear Property, Grand may
relocate the same and any utility lines located therein at its sole cost and
expense. In connection with such relocation of easements and utility lines,
Grand shall not materially adversely interfere with the operations of the Cable
Center.
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11.02. Conditioned upon and following the occurrence of the closing of the
purchase of the Rear Property, Grand shall have the right to remove, at Grand's
sole expense, the public parking sign located within the area of the Access
Easement. In connection with such removal, Grand shall, at
Grand's sole expense, reroute the existing electrical line that runs from the
public parking sign to the McDonalds sign located in front of the Cable Center.
Should Grand acquire only the Rear Property, in connection with the demolition
and removal of any improvements located on the Rear Property (such as light
standards), Grand shall, at Grand's expense, conduct such demolition and removal
in such a manner as not to damage or render inoperable the other improvements
located on the Center Property.
11.03. Conditioned upon and following the occurrence of the closing of the
purchase of only the Rear Property, Grand shall, at Grand's sole expense, remove
the guard gate currently located on the Access Easement.
11.04. The parties acknowledge that certain assessments levied against the
Cable Property (such as Special Assessment District No. 97B) are assessed
against the Cable Property based upon the front footage along Las Vegas
Boulevard. The parties agree that, from and after the closing of the purchase of
only the Rear Parcel, amounts due under such assessment obligations existing on
such closing date which are payable after such date shall be allocated
sixty-seven percent (67%) to the Rear Property and thirty-three percent (33%) to
the Center Property. In such event, the parties shall use their best efforts to
cause the Rear Property and the Center Property to be separately assessed to
reflect the foregoing allocation.
SECTION 12
BROKERAGE FEES
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Each of Cable and Grand agree to indemnify, hold and save the other
harmless from any brokerage or similar fees, compensation or expenses which may
be suffered by reason of any agreement or purported agreement for the payment
thereof by the indemnifying party.
SECTION 13
MEMORANDUM OF AGREEMENT
This Agreement shall not be recorded, but concurrently with the execution
hereof the parties shall execute, acknowledge and record a memorandum hereof. In
the event of the termination or expiration of the Options, Grand shall, within
five (5) business days thereof, execute, acknowledge and record a quitclaim deed
acknowledging the termination of all rights of Grand hereunder in connection
with the Cable Property.
SECTION 14
NOTICES
14.01. Any and all notices and demands by any party hereto to the other
party, required or desired to be given hereunder 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, if made by Federal
Express or other similar courier service keeping records of deliveries and
attempted deliveries or when served by telecopy or similar facsimile
transmission. Service by mail or courier shall be conclusively deemed made on
the first business day delivery is attempted or upon receipt, whichever is
sooner. Facsimile transmissions received during business hours during a business
day shall be deemed made on such business day. Facsimile transmissions received
at any other time shall be deemed received on the next business day.
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14.02. Any notice or demand to Cable shall be addressed to Cable at 32
Sawgrass Court, Las Vegas, Nevada 89113, fax (702) 876-8434, with a copy to
Demetriou, Del Guercio, Springer & Moyer, 801 South Grand Avenue, 10th Floor,
Los Angeles, California 90017-4613, Attention: Stephen Del Guercio, fax (213)
624-0174.
14.03. Any notice or demand to Grand shall be addressed to Grand at Lakes
Gaming, Inc., 130 Cheshire Lane, Minneapolis, Minnesota 55305, Attention:
President, fax (612) 449-8509, with a copy to Lionel Sawyer & Collins, 1700 Bank
of America Plaza, 300 South Fourth Street, Las Vegas, Nevada 89101, Attention:
Jeffrey P. Zucker, fax (702) 383-8845.
14.04. Any party may change its 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 15
CONSTRUCTION
The laws of the State of Nevada shall govern the validity, construction,
performance and effect of this Agreement.
SECTION 16
BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their permitted successors and assigns. Neither party may
assign this Agreement prior to the closing, except that Grand may assign this
Agreement to any Person controlled by Grand and/or Brett Torino and Cable may
assign this Agreement to an exchange intermediary to the extent necessary for
purposes of effectuating a Section 1031 exchange as provided in Section 2.05
hereof and that, in
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connection with a conveyance of the Cable Property, Cable may assign this
Agreement to the grantee of the Cable Property. Without limiting Grand's rights
hereunder, such grantee shall acknowledge that its rights in the Cable Property
are subject to this Agreement and the Options and shall assume all of Cable's
obligations hereunder. This Agreement shall not inure to the benefit of any
Person other than the parties hereto and their permitted successors and assigns.
Without limiting the generality of the foregoing, no tenant under any Lease
shall have any rights hereunder.
SECTION 17
PARTIAL INVALIDITY
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, 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 18
ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties and
cannot be changed or terminated orally.
SECTION 19
ATTORNEYS' FEES
In the event any action is commenced by either party against the other in
connection herewith, including, but not limited to, any bankruptcy proceeding,
the prevailing party shall be entitled to its costs and expenses, including
reasonable attorneys' fees.
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SECTION 20
INTERPRETATION
20.01. 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 or describe the scope or intent of this
Agreement, nor in any way affect this Agreement.
20.02. Personal pronouns 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.
20.03. Unless otherwise specified all references herein to Sections shall
mean sections of this Agreement and all references to Exhibits shall mean
exhibits to this Agreement.
20.04. The parties agree that neither party shall be deemed to be the
drafter of this Agreement and that in the event this Agreement is ever construed
by a court of law or equity, such court shall not construe this Agreement or any
provision hereof against either party as the drafter of the Agreement.
SECTION 21
DEFINITIONS
As used in this Agreement the following terms have the following meanings:
Access Easement is defined in Section 1.01.2.
Breach means the breach by Cable of an express representation, warranty or
covenant made by, or required to be performed or observed by, Cable which
breach materially adversely affects either (i) Grand's ability to acquire
the Rear Parcel or Cable Property as contemplated herein, (ii) the value
of the Rear Property or Cable Property or (iii) Grand's intended use of
the Rear Property,
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Access Easement or Cable Property (including, without limitation, any breach
which materially delays Grand's development of the applicable parcel or
materially increases the cost thereof) and which breach is not cured by Cable
within twenty (20) days following Cable's receipt of written notice from Grand
of such breach (specifying in reasonable detail the nature of such breach) or
within forty-five (45) days following receipt of such notice if due to the
nature of such breach it cannot reasonably be cured within such twenty (20) day
period so long as Cable commences such cure within such twenty (20) day period
and diligently prosecutes such cure to completion within such forty-five (45)
day period.
Cable is defined in the preamble hereto.
Cable Center is defined in the recitals hereto.
Cable Property is defined in the recitals hereto.
Center Property is defined in the recitals hereto.
Environmental Laws means all federal, state and local laws and ordinances
now or hereafter governing the environment or health and safety, including those
related to toxic or hazardous substances and other contaminants.
Escrow Agent is defined in Section 10.01.
Grand is defined in the preamble hereto.
Hazardous Materials means all substances now or hereafter designated or
otherwise considered toxic, hazardous or otherwise deleterious under any
Environmental Law.
Lease and Leases are defined in Section 4.01.1(g).
Material Title Defect means a defect in the condition of title of the Rear
Parcel or the Center Property created by Cable subsequent to the date of the PTR
other than a Permitted Title Exception,
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which is not cured by Cable in accordance with the provisions regarding notice
and opportunity to cure as set forth in the definition of Breach.
McDonald's Covenant is defined in Section 3.
McDonald's Lease means that Store Lease dated January 1, 1994 between
Martin Cable and McDonald's Corporation, as amended May 12, 1994.
Narang Lease means that Shopping Center Lease dated , 19 ,
between Martin Cable and Sartja Narang.
North Easement is defined in Section 1.01.2.
OPC Lease means a lease for an OPC kiosk on a portion of the Center
Property. The OPC Lease shall be in substantially the same form as that Lease
between Cable and Resort Management Solutions, LLC, dated May 18, 2000
previously delivered by Cable to Grand.
Option and Options are defined in Section 1.01.1.
Option Notice is defined in Section 1.05.
Option Period is defined in Section 1.02.
Permitted Title Exceptions is defined in Section 3.
Person means any person or entity or any combination thereof.
PTR is defined in Section 3.
Purchase Price is defined in Section 2.01.
Rear Parcel means the Access Easement and the Rear Property.
Rear Property is defined in the recitals hereto.
Sign Lease is defined in Section 8(c).
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SECTION 22
COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which when executed and delivered shall be an original, but all such
counterparts shall constitute one and the same Agreement. Any signature page of
this Agreement may be detached from any counterpart without impairing the legal
effect of any signatures thereon, and may be attached to another counterpart,
identical in form thereto, but having attached to it one or more additional
signature pages.
Nothing herein shall be deemed to modify or amend any obligation or right
under the Original Option Agreement which accrued prior to the effective date of
this Amended and Restated Option Agreement or to release any party from, or deny
any party the benefit of, any provision of said Original Option Agreement or to
waive any provision thereof or default thereunder. No option payments made for
periods prior to June, 2000, shall be applied against the Purchase Price. Each
party hereby represents and warrants to the other party that it has no knowledge
of any breach of the Original Option Agreement by such other party.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Option Agreement as of the day and year written above.
Cable: Grand:
Cable Family Trust Grand Casinos Nevada I, Inc.,
a Minnesota corporation
By: Martin J. Cable By:
------------------------ -----------------------
Martin J. Cable, Trustee
Its:
-----------------------
By: Olga B. Cable
-----------------------
Olga B. Cable, Trustee
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MEMORANDUM OF THE
AMENDED AND RESTATED OPTION AGREEMENT
Concurrently herewith the undersigned have entered into an Amended and
Restated Option Agreement pursuant to which the Trustees of the Cable Family
Trust have granted to Grand Casinos Nevada I, Inc. the option to purchase that
property described on Exhibit A attached hereto and incorporated herein by
reference ("Option Parcel").
The option expires if it has not been exercised by January 2, 2003.
This Memorandum may be executed in any number of counterparts, each of
which when executed and delivered shall be an original, but all such
counterparts shall constitute one and the same document. Any signature page of
this Memorandum may be detached from any counterpart without impairing the legal
effect of any signatures thereon, and may be attached to another counterpart,
identical in form thereto, but having attached to it one or more additional
signature pages.
Dated as of June 1, 2000.
CABLE FAMILY TRUST
By: Martin J. Cable, Trustee
------------------------
Martin J. Cable, Trustee
By: Olga B. Cable, Trustee
------------------------
Olga B. Cable, Trustee
GRAND CASINOS NEVADA I, INC.,
a Minnesota corporation
By:
------------------------
Its:
-----------------------
Lyle Berman, CEO