Attached files
| file | filename |
|---|---|
| S-1 - WINDGATE ACQUISITION LTD | v210183_s1.htm |
| EX-3.2 - WINDGATE ACQUISITION LTD | v210183_ex3-2.htm |
| EX-2.1 - WINDGATE ACQUISITION LTD | v210183_ex2-1.htm |
| EX-3.1 - WINDGATE ACQUISITION LTD | v210183_ex3-1.htm |
| EX-4.1 - WINDGATE ACQUISITION LTD | v210183_ex4-1.htm |
| EX-2.2 - WINDGATE ACQUISITION LTD | v210183_ex2-2.htm |
| EX-23.1 - WINDGATE ACQUISITION LTD | v210183_ex23-1.htm |
Addendum
to Purchase and Sale Agreement
This Addendum (“Addendum”) is
made and entered into on this 28th day of January, 2011 and is attached to and
made a part of that certain Purchase and Sale Agreement (“PSA”) dated January
27, 2011 by and between JM Daniel, LLC, a Montana limited liability company as
Seller and Windgate Capital Partners, LLC, a Delaware limited liability company
and/or assigns as Buyer. In the event of a conflict between this Addendum
and the PSA, the terms and conditions of this Addendum shall
prevail.
|
1.
|
The
Effective Date is January 28, 2011.
|
|
2.
|
The
Inspection Period shall commence on the date on which the Buyer actually
receives the last of the Due Diligence Materials, as that term is defined
below.
|
|
3.
|
The
Closing shall take place on the last of (a) the thirtieth (30th)
day following last day of the Inspection Period or (b) the tenth (10th)
day following the satisfaction, if at all, of the Financing Contingency as
the Financing Contingency may be extended as set forth in the
PSA.
|
|
4.
|
The
term “Due Diligence Materials” shall mean and refer to all things that are
set forth in the PSA that the Seller is required to provide to the Buyer
so that Buyer may inspect the financial, environmental and physical
condition of the Property and all of the following, to the extent that
they exist:
|
|
I.
|
Accounting
Records
|
|
|
A.
|
Property
tax bills for the preceding three years, together with the latest value
renditions from any taxing
authorities
|
|
|
B.
|
Assessments
from private jurisdictions having authority regarding the
Property
|
|
|
C.
|
Development
budgets for the improvements (PIP
report)
|
|
|
D.
|
Documentation
of land costs
|
|
|
E.
|
Summary
of costs incurred to date with supporting documentation for development of
the Property
|
|
|
F.
|
Property
tax bills / assessments
|
|
|
G.
|
Property
tax assessment appeal history
|
|
|
H.
|
All
appraisals performed on the
Property
|
|
|
I.
|
Operating
statements pertaining to the Property for the current year and preceding
three years inclusive of profit and loss statements and general
ledgers
|
|
II.
|
Environmental
Records
|
|
|
A.
|
All
environmental reports related to the Property and a schedule listing such
reports
|
|
|
B.
|
All
notices from or to government authorities regarding hazardous substances
at the Property
|
1
|
III.
|
Land/Development
Records
|
|
|
A.
|
All
existing:
|
|
|
1.
|
Plans
(including without limitation building, site, development and
landscape)
|
|
|
2.
|
Specifications
|
|
|
3.
|
Permits,
licenses and certificates of
occupancy
|
|
|
4.
|
Approvals
(and any applications for permits or
approvals)
|
|
|
5.
|
Maps
and Surveys (including without limitation, archeological, as-built,
boundary, topographic and tree
surveys)
|
|
|
B.
|
Information
relating to the availability and location of
utilities
|
|
|
C.
|
Warranties
and guaranties
|
|
IV.
|
Subdivision
Records
|
|
|
A.
|
All
subdivision reports
|
|
V.
|
Title
Records
|
|
|
A.
|
All
title reports, commitments or
policies
|
|
|
B.
|
All
covenants, conditions, restrictions and other exceptions to
title
|
|
|
C.
|
All
unrecorded agreements to which the Buyer would be subject to
post-closing
|
|
VI.
|
Architectural/Engineering
Reports
|
|
|
A.
|
Geotechnical
reports
|
|
|
B.
|
Traffic
reports
|
|
|
C.
|
Endangered
species reports
|
|
|
D.
|
Archeological
reports
|
|
|
E.
|
Building
calculations
|
|
|
F.
|
Change
orders, RFIs, Architect’s Supplemental
Instructions
|
|
|
G.
|
Other
engineering reports related to the
Property
|
|
VII.
|
Communications
with Governmental Authorities
|
|
|
A.
|
All
written notices, reports, citations, orders, restrictions, decisions,
correspondence or memoranda from any governmental authority regarding the
Property (including, but not limited to any zoning
letters)
|
|
VIII.
|
Approvals
from Governmental Authorities
|
|
|
A.
|
All
agreements with or applications to any governmental authority or public
body with respect to any annexation, zoning, modification, variance,
exception, platting or other matter relating to the annexation, zoning,
use, development, subdivision, or platting of the
Property
|
|
|
B.
|
Zoning
letters
|
|
IX.
|
Endangered
Species
|
|
|
A.
|
Copies
of all agreements, studies, reports, correspondence and other documents
relating to the presence or absence of any endangered species or
environmentally sensitive areas on the
Property
|
2
|
X.
|
Contracts
|
|
|
A.
|
A
list, together with copies, of all vendor contracts and all other
contracts or agreements relating to the Property or services being
provided or to be provided to the
Property
|
|
XI.
|
Maintenance/Capital
Improvements
|
|
|
A.
|
All
available maintenance records and work orders for the 36 months preceding
the Effective Date
|
|
|
B.
|
A
list of all capital improvements performed on the Property within the 36
months preceding the Effective Date
|
|
XII.
|
Personal
Property
|
|
|
A.
|
An
inventory of the equipment, fixtures and other Tangible Personal Property
to be transferred and delivered to Buyer at
Closing
|
|
XIII.
|
Flag
Hotel Agreement
|
|
|
A.
|
All
current agreements and agreement for the 36 months preceding the Effective
Date
|
|
XIV.
|
STAR
Report and any feasibility and financial
reports
|
|
XV.
|
Miscellaneous
|
|
|
A.
|
Insurance
loss history report for the Property for the 36 months preceding this the
Effective Date
|
|
|
B.
|
Documents
or materials relating to any litigation, condemnation or other
proceedings
|
|
XVI.
|
List
of all employees, hire dates, pay rates, position, &
garnishments
|
|
XVII.
|
Hotel
reports
|
|
|
A.
|
Reservations
on the books
|
|
|
B.
|
Group
blocks and agreements
|
|
|
C.
|
Advance
Deposits
|
|
|
D.
|
Key
client list and negotiated rates
|
IN
WITNESS WHEREOF, the parties hereto have executed this Addendum of the date and
year written above
|
Seller:
|
Buyer:
|
|||
|
JM
Daniel, LLC
|
Windgate
Capital Partners LLC
|
|||
|
By:
|
/s/ John Daniel
|
|||
|
John
Daniel, Managing Member
|
By:
|
/s/ Michael B. Elliott
|
||
|
Michael
B. Elliott, President
|
||||
|
By:
|
/s/ Jere Daniel
|
|||
|
Jere
Daniel, Managing Member
|
||||
3