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EXHIBIT 99.10.B
DRAFT 12/19/97
AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE
THIS AGREEMENT ("Agreement") is made as of the ___ day of December, 1997
by and between BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC., a Colorado
corporation ("Buyer"), and GILPIN GOLD INC., a Colorado corporation ("Seller").
In consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer, intending to be
legally bound, agree as follows:
ARTICLE I
AGREEMENT
1.1 AGREEMENT TO SELL AND PURCHASE; DESCRIPTION OF THE PROPERTY.
Subject to the terms and provisions of this Agreement, Seller hereby agrees to
sell and Buyer hereby agrees to buy all of Seller's right, title and interest
in certain real property located in the County of Gilpin, State of Colorado,
which is more particularly described in Exhibit "A" attached hereto and
incorporated herein by this reference, together with all of Seller's right,
title and interest in and to all appurtenant easements and rights-of-way,
appurtenant interests in strips of land, streets and alleys abutting or
adjoining the same, water and well rights (and shares of stock evidencing the
same) all mineral rights, reversions, remainders, tenements, hereditament and
other appurtenances thereto, all improvements, trees and plants located
thereon, and all fixtures of a permanent nature currently on any portion of
said real property and including Seller's interest in, that certain Lease dated
as of February 28, 1992 (as modified by that certain Memorandum of Lease dated
December __, 1997), between Buyer, Seller and Gilpin Hotel Venture ("GHV") (the
"Ground Lease") (all of the foregoing being hereinafter referred to
collectively as the "Property"). Such conveyance shall contain Seller's
warranties that no person or persons claiming by, or through, Seller, except
for Buyer, has acquired any interest in the Property.
ARTICLE II
DEFINITIONS
For purposes of this Agreement, certain terms used in this Agreement and
not otherwise defined herein shall have the meanings designated below:
2.1. AGREEMENT means all or any part of this Agreement, including
schedules, exhibits, and appendices, as any of the foregoing may be amended,
modified or supplemented and incorporated in this Agreement with the consent of
the parties, expressed in writing from time to time.
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2.2. AGREEMENT FOR PURCHASE AND SALE OF ASSETS means that agreement
dated December 31, 1997 among the Buyer, Gilpin Ventures, Inc., Golden Gamble,
Inc. and Gilpin Hotel Venture.
2.3. BASE PRICE is defined in subparagraph A. of Section 3.1.
2.4. CLOSING shall have the meaning specified in Section 9.1.
2.5. CLOSING DATE shall have the meaning specified in Section 9.1.
2.6. ENCUMBRANCES means any and all encumbrances, security interests,
liens, taxes, claims, liabilities, options, commitments, charges, restrictions
or other obligations of whatsoever kind, quantity or nature, whether accrued,
absolute, contingent or otherwise, excepting the lien for ad valorem taxes or
other taxes not yet due and payable.
2.7. GAMING ACT means the Colorado Limited Gaming Act, as amended, and
all rules and regulations promulgated thereunder.
2.8. GAMING APPROVAL means the issuance of the Gaming Commission of
its grant of consent to the succession by Buyer to full ownership in the
Property under Buyer's or GHV's existing license.
2.9. GAMING COMMISSION means the Colorado Limited Gaming Commission or
any other Colorado agency which succeeds in whole or in part to its
jurisdiction so far as the subject matter of this Agreement is concerned.
2.10. GROUND LEASE means that certain ground lease, dated as of
February 28, 1992, among the Buyer, the Seller and GHV. The Amended and
Restated Lease Agreement means that lease which supersedes the Ground Lease,
which is dated December 31, 1997.
2.11. KNOWLEDGE means actual knowledge after due inquiry of the person
referenced. Notwithstanding the foregoing, a person also has "knowledge" when
known facts and circumstances create a reasonable doubt as to the accuracy of
any covenant, representation, warranty, or other material statement made herein
and the person referenced (i) fails to disclose such facts and circumstances to
the other party or (ii) fails to conduct a due inquiry into such facts and
circumstances. If the person referenced is an entity, "knowledge" of the
representative of the entity having executive responsibility for the subject
matter referenced.
2.12. LAND means the real property owned by the land owner under the
Ground Lease.
2.13. LIQUOR ACT means the Colorado Liquor Code and the municipal
liquor ordinance as amended and the rules and regulations issued thereunder.
2.14. LIQUOR AUTHORITY means the Colorado Liquor License Division of
the Department of Revenue and the local Liquor Licensing Authority.
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2.15. LIQUOR CONSENT means the issuance of any Liquor Authority
consents necessary in connection with the transactions contemplated herein.
2.16. PURCHASE PRICE shall have the meaning specified in Section 3.1.
2.17. TAXES means any and all taxes, sums or amounts assessed or
assessable, levied and due or which may be levied and become due by any
federal, state or county or other local governmental authority or agency,
including interest and penalties in respect thereof, whether disputed or not,
and whether accrued, contingent, due, absolute, deferred, unknown or other,
together with any and all penalties, interests and additions on or to all such
taxes, sums or amounts.
2.18. TRANSACTION means the transaction contemplated by this Agreement.
ARTICLE III
SALE AND PURCHASE OF PROPERTY
3.1. PURCHASE PRICE, PAYMENT ALLOCATIONS AND ADJUSTMENTS.
A. BASE PRICE. The Purchase Price to be paid by Buyer for
the Property shall be a total of Four Million Seven Hundred and Fifty Thousand
Dollars ($4,750,000) (the "Base Price"), plus or minus the adjustments, if any,
specified in Section 3.1.C.
B. PAYMENT OF BASE PRICE. The Base Price, as adjusted, shall
be payable to Seller at the Closing by bank wire transfer of immediately
available funds.
C. ADJUSTMENTS. Any adjustments to the Base Price shall be
calculated as of midnight of the date immediately preceding the Closing Date.
In order to account for all expenses and income attributable to the period
prior to the Closing Date for the benefit of Seller and those attributable to
the period on or after the Closing Date for the benefit of Buyer, the Base
Price shall be increased or decreased, as appropriate, to reflect the proration
of the following, as of the Closing Date: (a) rentals and other charges that
are paid or payable in respect of leasehold interests affecting the Property;
and (b) charges for which Lessee is not responsible under the Ground Lease and
deposits for utilities, including, without limitation, electricity, fuel,
water, snow removal, sanitation and trash disposal, and other services and
goods furnished to, or in connection with, any of the Property.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Notwithstanding any statement in this Article IV or otherwise in this
Agreement to the contrary, the representations and warranties of Seller shall
not be deemed to cover the Business as defined in the Agreement for Purchase
and Sale of Assets, or any matter affecting the casino
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industry generally and, further, shall not be deemed to cover any assets or
properties not solely used by GHV in its business. Subject to the foregoing
qualifications, Seller represents and warrants to Buyer as follows:
4.1. ORGANIZATION AND GOOD STANDING. Seller is a corporation duly
organized, validly existing and in good standing under the laws of Colorado,
with all requisite power and authority to own, operate and lease its properties
and to carry on its business as presently conducted.
4.2. AUTHORIZATION OF AGREEMENT. The execution and delivery of this
Agreement by Seller, the consummation of the Transaction, and the performance
by Seller of its obligations hereunder are within its power and authority, will
not contravene or constitute a material default under any provision of its
organizational documents, and, to Seller's knowledge, will not result in any
material breach of any term, condition or provision of, or constitute a
material default under, any note, mortgage, indenture, contract, agreement,
judgment or order and, to Seller's knowledge, will not contravene any provision
of applicable law or regulation. All actions required by Seller's articles of
incorporation or bylaws necessary to authorize the execution, delivery and
performance of this Agreement by Seller and the consummation of the Transaction
including the approval of Seller's Board of Directors and Shareholders have
been duly and validly taken on or prior to the date hereof.
4.3. NO AUTHORIZATION REQUIRED. No authorization or approval of, or
filing with, any governmental agency, authority or other body or any other
third persons will be required in connection with Seller's execution and
delivery of this Agreement or its consummation of the Transaction, except as
expressly referred to in this Agreement.
4.4. STATUS OF TITLE AND TITLE INSURANCE.
A. In connection with the current owner's ALTA title policy
on the Property issued by Chicago Title of Colorado, Inc. as agent for Chicago
Title Insurance Company (the "Title Company"), on which Seller and Buyer are
the insured, Seller agrees that within twenty (20) days after execution of this
Agreement, Seller shall deliver to Buyer an updated commitment for such policy
(the "Initial Commitment"), at Seller's expense, if any. The Initial
Commitment shall be delivered by Title Company, and shall be accompanied by
copies of all recorded documents creating the exceptions to title listed
therein. Within ___ days prior to Closing, Seller shall instruct the Title
Company to deliver an additional updated title commitment on the Property (the
"Updated Commitment"). The Updated Commitment shall have no exceptions to title
set forth on Schedule B-2 thereof other than as set forth in the Initial
Commitment, unless resulting from the actions or inactions of Buyer as a one-
half undivided interest owner of the Property.
B. All exceptions reflected in the Updated Commitment not
previously set forth in the Initial Commitment, or not resulting from any
action or inaction of Buyer as a one-half undivided interest owner of the
Property (the "New Exceptions"), must be in form and substance satisfactory to
Buyer in its discretion. All exceptions set forth in the Updated Commitment
shall be deemed satisfactory to Buyer except for those set forth in any notice
of objection which Buyer gives to Seller within thirty (30) days after Buyer's
actual receipt of the Title Commitment (or any
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subsequent endorsement thereto reflecting additional exceptions). Buyer's
obligations under this Agreement are hereby made expressly contingent upon (i)
the deletion of any objectionable New Exceptions, or (ii) the provision of
affirmative title insurance protection against such New Exceptions which is
satisfactory to Buyer in its sole discretion. If Seller fails to provide for
such title insurance protection for the objectionable New Exceptions within
twenty (20) days after Buyer gives its notice of objection, Buyer, at Seller's
expense to be deducted from Closing proceeds, may obtain such title insurance
protection.
C. Notwithstanding any other terms and provisions hereof,
Seller shall be obligated to not take any actions which would have a material
adverse impact on the merchantable title to the Property, including no actions
causing any liens, encumbrances or other clouds on title whatsoever, except
that Buyer acknowledges that title to the Property may be subject to (i) taxes
and assessments for 1997 and subsequent years not yet due and payable, (ii)
recorded restrictive covenants reflected in the Initial Commitment, (iii)
recorded easements or other agreements reflected in the Initial Commitment, and
(iv) zoning, building and other public land use regulations (hereinafter the
"Permitted Encumbrances")
4.5. DISCLAIMER OF FRAUDULENT INTENT. The Transaction has been
undertaken in good faith, considering Seller's obligations to any person or
entity to whom Seller owes a right to payment, whether or not the right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured
(collectively such persons with such claims are called "creditors" under this
Section), and has undertaken the Transaction without any intent to hinder,
delay or defraud any such creditors, and either has disclosed in the ordinary
course of business or will undertake to disclose to all such creditors the
existence of this Transaction, and has not and will not conceal this
Transaction or the proceeds of this Transaction from any such creditors.
4.6. ACCURATE INFORMATION. No representation and warranty made by
Seller in this Agreement nor any statement or certificate furnished or to be
furnished by it pursuant to this Agreement contains or will contain any untrue
statement of a fact or omits or will omit any material fact the omission of
Which would be materially misleading.
4.7. ENVIRONMENTAL COMPLIANCE. To the best of Seller's knowledge, the
Property is not in violation of any federal, state or local law, ordinance or
regulation relating to industrial hygiene or to the environmental conditions
on, under or about the Property including, but not limited to, soil and
groundwater conditions. To the best of Seller's knowledge, neither the Seller
nor any third party has used, generated, manufactured, produced, stored or
disposed of on, under or about the Property or transported to or from the
Property any flammable explosives, asbestos, radioactive materials, hazardous
wastes, toxic substances or related injurious materials, whether injurious by
themselves or in combination with other materials (collectively, "Hazardous
Materials"). To the best of Seller's knowledge, there is no proceeding or, to
the best of Seller's knowledge, inquiry by any governmental authority with
respect to the presence of Hazardous Materials on the Property or the migration
thereof from or to other property. For the purpose of this Agreement,
Hazardous Materials shall include but not be limited to substances defined as
"hazardous substances," "hazardous materials," or "toxic substances" in the
Comprehensive
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Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Section 9601 et seq.); the Resource Conservation and Recovery Act of
1976 (42 U.S.C. Section 6901 et seq.); the Safe Drinking Water Act (33 U.S.C.
Section 1251 et seq. ); the Hazardous Materials Transportation Act (49 U.S.C.
Section 1801 et seq.); the Toxic Substances Control Act (15 U.S.C. Section 2601
et seq.); and in the regulations adopted and publications promulgated pursuant
to such laws.
4.8. IMPROVEMENTS. To the best of Seller's knowledge, the
improvements on the Property have been and are being operated in accordance
with all laws, rules, regulations, ordinances, orders, decrees and private use
restrictions applicable to such operation. The Property is supplied with all
utilities services and other services necessary for the operation of said
improvements.
4.9 LITIGATION. To the best of Seller's knowledge, there is no
litigation or proceeding pending or threatened against or relating to the
Property, nor does Seller know or have reasonable grounds to know of any basis
for any such action, including, without limitation, condemnation or eminent
domain proceedings.
4.10 ASSESSMENTS. To the best of Seller's knowledge, there exist no
assessments for improvements against the Property, of which Buyer is not aware,
which remain unpaid, including, without limitation, those for the construction
of sewer and water lines and mains, streets, sidewalks and curbs.
4.11 ENVIRONMENTAL REPORTS. Seller is not in possession of any Phase
I or Phase II environmental reports prepared by any third party which have not
been previously provided to Buyer.
4.12 GROUND LEASE. To Seller's knowledge, the Ground Lease is in full
force and effect and there are no defaults currently existing thereunder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer hereby represents and warrants to Seller as follows:
5.1. CURRENT OWNERSHIP. Buyer is the owner of a one-half undivided
interest in the Property and has full knowledge of the history and current
conditions of the Property and the uses thereon from and after February 28,
1992.
5.2. ORGANIZATION, GOOD STANDING AND QUALIFICATION. Buyer is a
Colorado corporation duly organized, validly existing and in good standing
under the laws of the State of Colorado. Buyer possesses all requisite power
and authority to own, operate and lease its properties and carry on its
business as presently conducted, to acquire and own the Property, and to enter
into this Agreement and complete the Transaction subject to obtaining
applicable
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consents and approvals.
5.3. AUTHORIZATION OF AGREEMENT. All actions required by the
organizational documents of the Buyer or the laws of its formation, necessary
to authorize the execution, delivery and performance of this Agreement by Buyer
and the consummation of the Transaction, have been duly and validly taken on or
prior to the date hereof or, with respect to performance and consummation, will
be taken prior to Closing.
5.4. LITIGATION. There is no action, suit or proceeding pending or,
to the knowledge of Buyer, threatened against Buyer which might interfere with
Buyer's ability to consummate the Transaction. Buyer is not in default with
respect to any judgment, order, writ, injunction, decree, demand or assessment
issued by any court or of any federal, state, municipal or other governmental
agency, board, commission, bureau, instrumentality or department. Buyer is not
charged or, to the knowledge of Buyer, threatened with or under investigation
with respect to, any violation of any provision of any federal, state,
municipal or other law or administrative rule or regulation.
5.5. NO APPROVALS REQUIRED. No authorization or approval of, or
filing with, any governmental agency, authority or other body or any other
third persons will be required in connection with Buyer's execution and
delivery of this Agreement or its consummation of the transactions contemplated
hereby and thereby, except Gaming Approval and Liquor Consent as expressly
referred to in this Agreement. The execution and delivery of this Agreement
and the consummation of the Transaction are not events which of themselves or
with the giving of notice or the passage of time or both would constitute, on
the part of Buyer, a violation of or conflict with or result in any breach of,
or default under the terms, conditions or provisions of, any order, writ,
injunction, decree, judgment, law or regulation, relating to Buyer, or of the
organizational documents of Buyer or any agreement or instrument to which Buyer
is a party or by or to which it or any of its assets or properties are bound or
subject.
ARTICLE VI
COVENANTS AND OBLIGATIONS OF SELLER
Seller covenants and agrees that between the date of this Agreement and
Closing:
6.1. ACCESS TO INFORMATION AND FACILITIES. Seller will afford Buyer
and its representatives full access during normal business hours to all
facilities, properties, books, accounts, records, contracts and documents of or
relating to the Property in Seller's possession or control. To the extent not
already in the possession of Buyer, and upon request from Buyer, Seller shall
furnish or cause to be furnished to Buyer and its representatives all data and
information concerning the Property as shall reasonably be requested by Buyer,
including but not limited to the following:
A. Copies of the Ground Lease and all other existing leases,
subleases, and other occupancy arrangements affecting the Property;
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B. Copies of any outstanding executory contracts to which
Seller is a party or to which the Property is subject, related to the operation
of the improvements on the Property (Seller to provide at closing an assignment
of the same to Buyer except to the extent the same are terminated pursuant to
the terms of this Agreement);
C. Copies of all reports in Seller's possession related to
the soil, seismological, geological and drainage conditions of the Property;
D. Copies of fire and extended coverage insurance policies
and certificates for public liability insurance policies, if any, presently
maintained by Seller (Seller to deliver at closing an approved assignment
satisfactory to Buyer of Seller's rights under the latter policies or any of
them, if such an assignment is requested by Buyer and the policies so permit);
E. An assignment by Seller to Buyer all of the Seller's
right, title and interest under the Ground Lease.
6.2. CONTINUED EFFORTS. Seller will use its continual reasonable
efforts to (a) cause to be fulfilled and satisfied all of the conditions to the
Closing; (b) cause to be performed all of the matters required upon the
Closing; and (c) take such steps and do such acts as may be necessary to make
all of its warranties and representations true and correct as of the Closing
Date with the same effect as if the same had been made, and this Agreement had
been dated, as of the Closing Date.
6.3. SELLER'S ACTIVITIES.
A. From and after the date hereof until the Closing Date,
Seller shall not grant or convey any easement, license, permit or any other
legal or beneficial interest in and to the Property without the prior written
consent of the Buyer, nor shall Seller violate or allow the violation of any
ordinance, rule, regulation or private use restriction affecting the Property.
Seller shall do or cause to be done all things reasonably within its control to
preserve intact and unimpaired any and all easements, grants, appurtenances,
privileges and licenses in favor of or constituting any portion of the
Property.
B. From and after the date hereof until the Closing Date,
Seller shall perform promptly all of the Seller's obligations under or in
connection with each present and future lease affecting the Property
(including, without limitation, the Ground Lease) and executory contracts for
the operation of the Property which are not terminated pursuant to Buyer's
instructions. Seller shall neither do nor neglect to do anything which may
cause or permit the withholding or abatement of any rent payable under any such
lease or performance under any such executory contract.
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ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATION OF BUYER TO CLOSE
The obligations of Buyer to purchase the Property to be sold, assigned,
transferred and delivered to Buyer hereunder are, unless waived in writing by
Buyer, subject to the satisfaction, on the Closing Date, of the following
conditions:
7.1. ACCURACY OF REPRESENTATIONS AND PERFORMANCE OF SELLER.
A. The representations and warranties of Seller contained in
this Agreement shall be true and correct in all material respects at and as of
the Closing Date with the same force and effect as though made on and as of
such date, except to the extent that such representations and warranties shall
be incorrect as of the Closing Date because of events or changes occurring in
the ordinary course of business of Seller or as otherwise permitted by this
Agreement.
B. Seller shall have performed and satisfied in all material
respects the covenants and conditions required by this Agreement to be
performed or satisfied by it at or prior to the Closing.
7.2. NO PROCEEDING OR LITIGATION. No order restraining, preventing or
challenging this Agreement or the Transaction shall be in effect.
7.3. DELIVERIES PRECEDENT TO BUYER'S OBLIGATIONS TO CONSUMMATE THE
PURCHASE. Seller shall deliver to Buyer each of the following items:
A. CONVEYANCES AND OTHER DOCUMENTS. (1) All instruments of
transfer and assignment with good and marketable title as are required
hereunder and the Title Commitment, and (2) all agreements, documents,
instruments and certificates in the form required by this Agreement.
B. CERTIFICATES OF SELLER. The certificates of an officer of
Seller stating material compliance with the requirements of Section 7.1.A. and
B. and that Seller has no knowledge of any breach or of any event which of
itself or with the giving of notice or the passage of time or both would
constitute any breach by Seller of any of the representations, warranties,
agreements or covenants of Seller under this Agreement.
C. SELLER'S APPROVAL. Certified copies of the resolutions of
the shareholders and Board of Directors of Seller, pertaining to the
authorization of this Agreement and the consummation of the Transaction and a
certificate executed by the secretary or assistant secretary of Seller, as to
the due election, qualification and incumbency and valid signature of its
officers authorized to sign this Agreement or any document, instrument or
certificate to be delivered under it.
7.4. REGULATORY APPROVALS. Buyer shall have received the Liquor
Consent and the Gaming Consent.
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7.5. CLOSING OF ASSET PURCHASE AGREEMENT. That certain Agreement for
Purchase and Sale of Assets dated as of December 31, 1997 between and among the
Buyer, Gilpin Ventures, Inc., a Colorado corporation, Golden Gamble, Inc. and
Gilpin Hotel Venture, shall have been closed.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATION OF SELLER TO CLOSE
The obligations of Seller to sell, assign, transfer and deliver the
Property to Buyer hereunder are, unless waived in writing by Seller, subject to
the satisfaction at or prior to the Closing Date of the following conditions:
8.1. ACCURACY OF REPRESENTATIONS AND PERFORMANCE OF CONDITIONS. The
representations and warranties of Buyer contained in this Agreement shall be
true and correct in all material respects at and as of the Closing Date with
the same force and effect as though made on and as of such Date, except to the
extent that such representations and warranties shall be incorrect as of the
Closing Date because of events or changes occurring or arising after the date
hereof in the ordinary course of business of Buyer or as otherwise permitted by
this Agreement; each and all of the conditions and covenants to be performed or
satisfied by Buyer hereunder at or prior to the Closing Date shall have been
duly performed or satisfied in all material respects; and Buyer shall have
furnished Seller with Buyer's certificate to that effect.
8.2. CLOSING OF ASSET PURCHASE AGREEMENT. That certain Agreement for
Purchase and Sale of Assets dated as of December 31, 1997 between and among the
Buyer, Gilpin Ventures, Inc., a Colorado corporation, Golden Gamble, Inc., a
Colorado corporation, and Gilpin Hotel Venture ("GHV"), shall have been closed
and neither Buyer nor GHV shall have committed any material default under the
Agreement for Purchase and Sale of Assets.
8.3. PAYMENT. Buyer shall have delivered the Purchase Price for the
Property as provided in Section 2.1.
8.4 APPROVAL. Certified copies of all Buyer's resolutions pertaining
to the authorization of this Agreement and the consummation of the Transaction,
and a certificate executed by the secretary or assistant secretary of each
corporation constituting Buyer as to the due election, qualification and
incumbency and valid signatures of its officers authorized to sign this
Agreement or any document or certificates to be delivered under it shall have
been delivered to Seller.
8.5 CERTIFICATE OF BUYER. Buyer shall have delivered to Seller a
certificate of Buyer in form reasonably satisfactory to Seller that, as of the
Closing Date, Buyer has no knowledge of any breach or of any event which of
itself or with the giving of notice or the passage of time or both would
constitute any breach by Buyer of any of the representations, warranties,
agreements or covenants of Buyer under this Agreement.
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8.6. NO PROCEEDING OR LITIGATION. No order restraining, preventing or
challenging this Transaction shall be in effect.
ARTICLE IX
THE CLOSING
9.1. CLOSING AND CLOSING PROVISIONS. The Closing Date shall be
January 2, 1999, or earlier if the Buyer so elects upon 10 days prior written
notice, or such other date as may be agreed to by Seller and Buyer. The
Closing shall take place on the Closing Date commencing at 10:00 a.m. at the
offices of Jones & Keller, P.C., 1625 Broadway, Suite 1600, Denver, Colorado
80202, or at such other place as the parties may agree in writing.
9.2. DELIVERIES BY SELLER. At or prior to the Closing, Seller shall
deliver to Buyer all of the matters designated as conditions precedent and
deliveries precedent to Buyer's obligation to close under this Agreement.
Seller shall also deliver such further instruments of sale, transfer,
conveyance, assignment or delivery covering the property or any part thereof as
Buyer may reasonably require to assure the full and effective sale, transfer,
conveyance. assignment or delivery to Buyer of the Property.
9.3. DELIVERIES BY BUYER. At the Closing Buyer shall deliver to
Seller the Base Price, subject to adjustments as permitted by this Agreement,
in the manner and form provided for in this Agreement, and all the certificates
and other documents designated as deliveries and conditions precedent to
Seller's obligation to close under this Agreement.
ARTICLE X
TERMINATION
10.1. NON-PERFORMANCE. Should either party fail to perform its
obligations hereunder, the following shall occur:
A. 1. If Buyer fails to pay the Purchase Price at
Closing, the Amended and Restated Ground Lease and the Amended Tenancy in
Common Agreement compromising part of the Agreement for Purchase and Sale of
Assets referred to in Sections 5.5 and 7.2 herein shall remain effective. In
such event the Seller shall have no other remedies at law or in equity.
2. If Buyer breaches any other obligations under this
Agreement except under Section 11.9 hereof, Seller shall have the right to
terminate this Agreement and shall have available to it all remedies at law or
in equity; provided however that in the event Buyer breaches its obligations
under Section 11.9 hereof, Seller shall have the option to pay any material
economic or tax expenses to which Buyer would be subject as a result of a
Section 1031 exchange and to require specific performance of Buyer's
obligations under this Agreement.
B. If Seller is in default, Buyer may elect:
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1. To treat this Agreement as terminated, and Buyer
may recover such damages as may be proper; or
2. To treat this Agreement as being in full force and
effect, and Buyer shall have the right to an action for specific performance.
The remedies under subparagraphs 1. and 2. above shall be
cumulative with and in addition to all other rights and remedies provided Buyer
at law or in equity.
10.2. CASUALTY OR CONDEMNATION. Except as resulting from or relating
to the negligence or willful misconduct of Buyer after the date of this
Agreement, if, prior to the Closing or the termination of this Agreement, all
or part of the Property shall be destroyed, substantially damaged, subjected to
a bona fide threat of condemnation or shall become the subject of any
proceedings, judicial, administrative, or otherwise, with respect to a taking
by eminent domain or condemnation, Buyer, at its option, may within ten (10)
days after receipt of such notice elect to terminate this Agreement by giving
written notice thereof, in which event the parties hereto shall be relieved and
released of and from any further duties, obligations, rights or liabilities
hereunder. If the date for the Closing of this Agreement is within the
aforesaid ten-day period, then the Closing shall be extended to the next
business day following the end of said ten-day period. If Buyer elects to
close this Agreement, this Agreement shall remain in full force and effect, and
the purchase contemplated herein, less any portion of the Property taken by
eminent domain or condemnation, shall be consummated with no further adjustment
or modification, and upon the closing of this Agreement, Seller shall assign,
transfer and set over to Buyer all the right, title and interest of Seller in
and to any insurance proceeds resulting from any casualty or any awards that
have been or may thereafter be made for any taking or condemnation.
10.3. ATTORNEYS FEES AND COSTS. In the event of any litigation arising
out of this Agreement, the Court may award the prevailing party all reasonable
costs and expenses incurred in connection therewith.
ARTICLE XI
ADDITIONAL COVENANTS
11.1. SURVIVAL. All covenants, obligations, warranties, and
representations of each of the parties hereunder which are not performed or
fully discharged by or through the Closing provided for herein shall survive
the Closing and remain enforceable and of full force and effect after Closing.
11.2. ASSIGNMENT. Buyer, at its option, may assign this Agreement, but
such assignment shall not relieve Buyer of its obligations under this
Agreement. Seller shall accept performance by any such assignee of the Buyer's
obligations hereunder in lieu of performance by the original Buyer named in
this Agreement.
11.3. SEVERABILITY. If any term, covenant, condition or provision of
this Agreement or
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the application thereof to any person or circumstance shall, at any time or to
any extent, be invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to persons or circumstances other than
those to which it is held invalid or unenforceable, shall not be affected
thereby, and each provision of this Agreement shall be valid and shall be
enforced to the fullest extent permitted by law.
11.4. ENTIRE AGREEMENT. This Agreement and the other agreements
specifically referred to herein represent the entire agreement between the
parties hereto with respect to the subject matter hereof and all prior
agreements, understandings or negotiations shall be deemed merged herein. No
amendments or modifications to this Agreement shall be made or deemed to have
been made unless in writing executed by the party or parties to be bound
thereby.
11.5 NOTICES. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party
to whom notice is to be given, or on the third day after mailing if mailed to
the party to whom notice is to be given, by first class mail, registered or
certified, return receipt requested, postage prepaid, and properly addressed as
following:
To Buyer:
Black Hawk Gaming & Development Company, Inc.
17301 West Colfax Avenue, Suite 170
Golden, Colorado 80401
Attention: Mr. Stephen R. Roark, President
With a copy (which shall not constitute notice) to:
Jones & Keller, P.C.
Attention: Samuel E. Wing, Esq.
1625 Broadway, Suite 1600
Denver, Colorado 80202
(303) 573-1600
To Seller:
Gilpin Gold, Inc.
c/o Robert W. Dunlap, President
32391 Horseshoe Drive
Evergreen, Colorado 80439
With a copy (which shall not constitute notice) to:
Philip A. Rouse, Jr., Esq.
303 East Seventeenth Avenue, Suite 800
Denver, Colorado 80203
(303) 813-9333
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Any party may change its address for purposes of this paragraph by giving the
other parties written notice of the new address in the manner set forth above.
11.6. RECORDATION. Buyer shall have the right to record a memorandum
of this Agreement (which Seller agrees to execute) in the real estate records
of any county where any portion of the Property is situate.
11.7. GOVERNING LAW. This Agreement and all the terms and provisions
hereof shall be governed by and construed in accordance with the laws of the
State of Colorado.
11.8 BROKERAGE COMMISSIONS. Each party hereto warrants and represents
that neither party has incurred any liability for the payment of any brokerage
fee or commission in connection with the transaction contemplated herein. If
either of the parties shall breach the foregoing warranty and representation,
it shall indemnify the other party and hold the other party harmless from and
against any damage, liability, loss, claim, or expense suffered by the other
party as a result of such breach.
11.9 1031 EXCHANGE. In the event that Seller desires to sell the
Property as part of a Section 1031 exchange, Buyer agrees to cooperate with
Gold and use good faith efforts to close the purchase and sale of the Property
in compliance with the requirements of Section 1031; provided however that in
no event shall such Section 1031 requirements cause any unreasonable delay in
the consummation of the Closing as contemplated hereunder or any material
economic or tax detriment to Buyer.
IN WITNESS WHEREOF, the parties have set their hands and seals on the
date first above written.
BUYER:
BLACK HAWK GAMING &
DEVELOPMENT COMPANY, INC.
By: /s/ STEPHEN R. ROARK
-------------------------
Its President
SELLER:
GILPIN GOLD, INC.
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By: /s/ ROBERT W. DUNLAP
--------------------------
Its President
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EXHIBIT A
to
AGREEMENT FOR PURCHASE AND SALE
OF REAL ESTATE
Legal Description
EXHIBIT A
Covering the Land in the State of Colorado, County of Gilpin
Described as:
PARCEL NO. 1:
A parcel of ground in the CITY OF BLACK HAWK, described as follows:
Beginning at a point which lies N. 48 degrees 06' W., 10 feet from the
Southeast Corner of Lot 6, Block 40, City of Black Hawk; thence N. 43 degrees
33' E., 100.05 feet: thence S. 48 degrees 06' E., 10 feet; thence N. 43 degrees
33' E., 48.12 feet; thence S. 51 degrees 34' E., 93.30 feet; thence S. 38
degrees 20' W., 152.36 feet; thence N. 57 degrees 59' W., 10 feet; thence N.
48 degrees 06' W., 106.66 feet to the place of beginning, sometimes described as
the East 10 feet of Lot 6, Block 40, part of Mill Site No. 29 and the West 10
feet of Mill Site No. 30 and tract.
PARCEL NO. 2:
The East 15 feet of Lot 11, all of Lot 12, Block 35; and Lot 1, Block 37,
CITY OF BLACK HAWK
PARCEL NO. 3:
Und. 1/3 Interest in "99" Lode (City Title)
All in the CITY OF BLACK HAWK
A-1