Exhibit 10-1
PURCHASE AGREEMENT
DATE: February 22, 2005
SELLER: LEXINGTON PRECISION CORPORATION, a Delaware corporation
Address: 00 Xxxx 00xx Xxxxxx, Xxxxx 00
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SELLER'S
ATTORNEY: XXXXX & XXXXXX L.L.P.
Address: Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx Xxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BUYER: CITY OF CASA GRANDE, a political subdivision of the State of
Arizona
Address: 000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, City Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BUYER'S
ATTORNEY: CITY ATTORNEY, CITY OF CASA GRANDE
Address: 000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxxx, Xxxxxxx 00000
Attention: K. Xxxxx XxXxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ESCROW AGENT: FIDELITY NATIONAL TITLE AGENCY OF PINAL COUNTY, INC.
Address: 000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000 Ext. 8539
Facsimile: (000) 000-0000
Escrow Officer: Xxxx X. Xxxxxxx
PROPERTY: The real property described on EXHIBIT A, including all
improvements, personal property and fixtures currently located on
such real property and all rights and privileges appurtenant to
the real property, all of which are agreed to be and constitute a
part of the real property.
ARTICLE 1
AGREEMENT OF THE PARTIES
1.1 Agreement. In consideration of the mutual promises and covenants set
forth in this Agreement, Seller agrees to sell and Buyer agrees to buy the
Property on the terms and conditions set forth in this Agreement.
1.2 Effectiveness of Agreement; Opening Date. This Agreement shall be
effective when both Buyer and Seller have executed this Agreement. Within one
(1) day following the date of execution of this Agreement by both Buyer and
Seller, Buyer will deliver three (3) fully executed copies of this Agreement to
Escrow Agent, together with the xxxxxxx money deposit required by SECTION
2.2(a). The "OPENING DATE" shall be the date on which Escrow Agent receives the
fully executed copies and xxxxxxx money deposit. Promptly upon receipt of those
items, Escrow Agent shall notify Buyer and Seller in writing of the Opening
Date.
ARTICLE 2
PURCHASE PRICE AND PAYMENT TERMS
2.1 Purchase Price. The total purchase price for the Property is
$2,750,000.00 (the "PURCHASE PRICE").
2.2 Payment. The Purchase Price shall be paid by Buyer as follows:
(a) Initial Xxxxxxx Money. Within one (1) day following the date of
execution of this Agreement by both Buyer and Seller, Buyer agrees to
deposit in escrow by cashier's check payable to Escrow Agent or by wire
transfer of ready funds to the account of Escrow Agent the sum of
$50,000.00 as an xxxxxxx money deposit.
(b) Additional Xxxxxxx Money. On or before the expiration of the Due
Diligence Period, Buyer agrees to deposit in escrow by cashier's check
payable to Escrow Agent or by wire transfer of ready funds to the account
of Escrow Agent the sum of $50,000.00 as an additional xxxxxxx money
deposit.
(c) Cash Payment at Closing. On or before the Closing, Buyer agrees
to deposit in escrow by wire transfer of ready funds to the account of
Escrow Agent the balance of the Purchase Price.
2.3 Xxxxxxx Money Provisions.
(a) Manner of Payment; Deposit. All xxxxxxx money deposits required
by this Agreement shall be made by cashier's check payable to Escrow Agent
or by wire transfer of immediately available funds to the account of
Escrow Agent in the amount of the required xxxxxxx money deposit. Escrow
Agent is instructed to deposit all such payments in a federally-insured
money market or other similar account, subject to immediate withdrawal, at
a bank or savings and loan institution located in Pinal County, Arizona.
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(b) Interest. Interest earned on the xxxxxxx money deposits shall be
retained in the escrow until the Closing, at which time such interest
shall be paid to Seller, in addition to the Purchase Price; PROVIDED,
HOWEVER, that if this Agreement is cancelled, the interest shall be paid
to the party entitled to receive the xxxxxxx money.
(c) Disposition of Xxxxxxx Money.
(i) If the escrow closes, all xxxxxxx money deposits in
escrow, as well as any xxxxxxx money deposits previously released to
Seller, shall be credited against the Purchase Price.
(ii) If the Agreement is cancelled and pursuant to the terms
of this Agreement, Seller becomes entitled to receive and retain the
xxxxxxx money, Escrow Agent shall immediately pay to Seller all
xxxxxxx money deposits then in escrow. Seller shall also be entitled
to retain any xxxxxxx money previously released to Seller from
escrow.
(iii) If the Agreement is cancelled and pursuant to the terms
of this Agreement, Buyer becomes entitled to a return of the xxxxxxx
money deposits, Escrow Agent shall immediately refund to Buyer all
xxxxxxx money deposits then in escrow. Seller shall also immediately
return to Buyer any xxxxxxx money previously released to Seller from
escrow.
(d) Non-Refundable Nature of Xxxxxxx Money. All xxxxxxx money
deposits shall be non-refundable, except as otherwise expressly provided
in this Agreement.
(e) Release of Xxxxxxx Money. Upon the expiration of the Due
Diligence Period, all xxxxxxx money deposits previously made in escrow
shall be released from escrow and delivered to Seller.
2.4 Disbursements. At Closing, all amounts paid by Buyer on account of the
Purchase Price, less any closing costs payable by Seller, shall be disbursed to
Seller by wire transfer of ready funds.
ARTICLE 3
ESCROW
3.1 Establishment of Escrow; Escrow Instructions. Immediately upon
execution of this Agreement by both parties, Seller will deliver three (3) fully
executed copies of this Agreement to Escrow Agent. An escrow for this
transaction shall be established with Escrow Agent, and Escrow Agent is engaged
to administer the escrow. This Agreement constitutes escrow instructions to
Escrow Agent. Should Escrow Agent require the execution of its standard form
printed escrow instructions, Buyer and Seller agree to execute same; however,
such instructions shall be construed as applying only to Escrow Agent's
engagement, and if there are conflicts between the terms of this Agreement and
the terms of the printed escrow instructions, the terms of this Agreement shall
control.
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3.2 Acceptance; Escrow Agent Not a Party. By accepting this escrow, Escrow
Agent agrees to be bound by the terms of this Agreement as they relate to the
duties of Escrow Agent. However, such agreement does not constitute Escrow Agent
as a party to this Agreement and no consent or approval from Escrow Agent shall
be required to amend, extend, supplement, cancel or otherwise modify this
Agreement except to the extent any such action increases the duties of Escrow
Agent or exposes Escrow Agent to increased liability, in which case, such action
shall not be binding on Escrow Agent unless Escrow Agent has consented to the
same in writing.
3.3 Cancellation Charges. If the escrow fails to close because of Seller's
default, Seller shall be liable for all customary escrow cancellation charges.
If the escrow fails to close because of Buyer's default, Buyer shall be liable
for all customary escrow cancellation charges. If the escrow fails to close for
any other reason, Seller and Buyer shall each be liable for one-half of all
customary escrow cancellation charges.
3.4 IRS Reporting. Escrow Agent agrees to be the designated "reporting
person" under Section 6045(e) of the U.S. Internal Revenue Code of 1986 as
amended (the "CODE") with respect to the real estate transaction described in
this Agreement and to prepare, file and deliver such information, returns and
statements as the U.S. Treasury Department may require by regulations or forms
in connection with such requirements, including Form 1099-B.
3.5 Insured Closing Letter. If Escrow Agent does not issue its own title
insurance policies, but acts as an agent for an underwriter, as a condition to
Escrow Agent acting as such, Escrow Agent shall cause its underwriter to issue
to the parties a closing protection letter or insured closing service in written
form satisfactory to Seller, within five (5) days following the Opening Date.
ARTICLE 4
INFORMATION TO BE PROVIDED TO BUYER
4.1 Information and Other Items to Be Provided to Buyer. Within the time
periods set forth below, Seller will provide Buyer with the following (the "DUE
DILIGENCE MATERIALS"):
(a) Survey. No later than thirty (30) days after the Opening Date, a
current survey (the "SURVEY") of the Property prepared by Val-Tec, Inc.
The Survey will be an ALTA/ACSM survey, showing all easements,
encroachments, and other matters affecting the Property. The Survey will
be certified to be accurate, complete and correct to Seller, Buyer and
Escrow Agent. The cost of the Survey will be paid by Seller. The legal
description on the Survey shall be the description used in the deed
conveying the Property to Buyer.
(b) Title Report. As soon as reasonably possible following the
Opening Date, a current preliminary title report or commitment for title
insurance (the "TITLE REPORT") on the Property prepared by Escrow Agent.
The Title Report will show the status of title to the Property as of the
date of the Title Report and will be accompanied by legible copies of all
documents referred to in the Title Report.
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(c) Studies and Reports. During the period from the Opening Date
until the earlier of the Closing or cancellation of this Agreement, copies
of the Due Diligence Materials identified on EXHIBIT B shall be made
available to Buyer.
4.2 Retention or Return of Information. If this Agreement is cancelled,
all of the Due Diligence Materials will be returned to Seller; otherwise, Buyer
may retain such Due Diligence Materials.
4.3 Right to Enter and Inspect the Property. During the period from the
Opening Date until the earlier of the Closing or cancellation of this Agreement,
Seller grants Buyer the non-exclusive right and license for Buyer and Buyer's
representatives, agents, and contractors to enter upon the Property for the
purposes of investigating and inspecting the Property and performing tests,
studies and analyses with respect to the Property, including engineering studies
and tests with respect to the improvements that comprise a portion of the
Property. However, Buyer may not enter the Property without giving Seller at
least twenty-four (24) hours advance written notice of what tests, studies or
analyses Buyer intends to have performed and when and where such tests, studies
or analyses will be performed. Seller shall have the right to have a
representative present for all such activities, and Buyer, in making such entry
and conducting such tests, studies, and analyses, shall not damage the Property.
In addition to the foregoing, prior to permitting any third-party
representative, agent, contractor or consultant of Buyer (each of the foregoing,
a "BUYER CONSULTANT") to enter the Property, Buyer shall cause such Buyer
Consultant to provide to Seller proof of insurance satisfactory to Seller that
such Buyer Consultant has in effect, at all times when such Buyer Consultant is
authorized to come on the Property pursuant to this Agreement, commercial
general liability insurance in a minimum amount of $2,000,000, combined single
limit per occurrence, insuring such Buyer Consultant against claims for personal
injury, death, and property damage or destruction. Seller shall be named as an
additional insured on such policy. Buyer agrees to indemnify, defend, and hold
harmless Seller and its Related Parties for, from, and against any and all
Claims arising out of Buyer's exercise of the rights granted by this Section,
including, without limitation, any Claims relating to mechanics' or
materialmen's liens. If this Agreement is cancelled by either Buyer or Seller,
Buyer agrees, at its expense, to promptly refill holes dug and otherwise to
repair any damage to the Property as a result of its activities pursuant to this
Section.
ARTICLE 5
CONDITIONS TO CLOSING
5.1 Conditions to Buyer's Obligation to Close. Buyer's obligations to
close this transaction are subject to the satisfaction of the following
conditions on and as of the Closing, unless an earlier date is specified:
(a) Title Review. Buyer is satisfied with the status of title to the
Property as disclosed by the Title Report and the Survey. In that regard:
(i) Buyer shall have fifteen (15) days (the "REVIEW PERIOD")
following receipt of both the Title Report and the Survey in which
to review and to give Seller and Escrow Agent written notice of any
Survey matter or title
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exception which is unacceptable to Buyer, in Buyer's reasonable
judgment (each such matter or exception, a "DISAPPROVED MATTER").
If, prior to Closing, Escrow Agent issues a supplemental or amended
title report showing additional title exceptions (an "AMENDED TITLE
REPORT"), Buyer shall have a period of time (a "SUPPLEMENTAL REVIEW
PERIOD") equal to five (5) days from the date of receipt of the
Amended Title Report and a copy of each document referred to in the
Amended Title Report in which to give notice of dissatisfaction as
to any additional Disapproved Matters. If Buyer does not object to a
Survey matter or an exception to title as disclosed by the Title
Report or an Amended Title Report within the applicable time period,
such matter or exception shall be deemed to have been approved by
Buyer.
(ii) If Buyer gives timely notice of any Disapproved Matter,
Seller may, but shall have no obligation to, seek to remove such
matters or to obtain Escrow Agent's commitment to issue title
insurance endorsements satisfactory to Buyer against such matters,
on or before the date that is five (5) days prior to the expiration
of the Due Diligence Period.
(iii) If Seller does not eliminate all of the Disapproved
Matters or obtain title insurance endorsements against such
Disapproved Matters on or before the date that is five (5) days
prior to the expiration of the Due Diligence Period, Buyer's sole
and exclusive remedy shall be to either (A) cancel this Agreement by
giving written notice of cancellation to Seller and Escrow Agent on
or before the expiration of the Due Diligence Period, or (B) waive
its objections to the Disapproved Matters and proceed to close with
such Disapproved Matters thus being conclusively deemed to have been
approved by Buyer.
(iv) Notwithstanding anything in this Agreement to the
contrary, title to the Property shall be delivered to Buyer at the
Closing free and clear of all monetary liens and encumbrances (other
than the lien for current real property taxes not yet due and
payable) voluntarily placed on the Property by Seller or Seller's
predecessors-in-title and such monetary liens and encumbrances shall
be released from the Property by Seller at Seller's sole expense on
or before the Closing. All such liens and encumbrances are
disapproved for the purposes of this Section, and Buyer need not
give any further notice of disapproval as to those items.
(v) The matters shown in the Title Report and any Amended
Title Report (other than standard printed exceptions and exclusions
that will be included in the title policy) that are approved or
deemed approved by Buyer in accordance with this SECTION 5.1, the
Survey matters that are approved or deemed approved by Buyer, and
any other matters approved by Buyer in writing, are referred to in
this Agreement as the "APPROVED TITLE EXCEPTIONS."
(b) Buyer's Investigations. Buyer is satisfied with Buyer's
investigations and inspections of the Property and this transaction,
including, without limitation, with Buyer's review of all Due Diligence
Materials (other than the Title Report and Survey),
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and with the results of Buyer's physical inspection of the Property,
including all electrical, plumbing, mechanical, heating and air
conditioning equipment and all furnishings, furniture, equipment,
appliances, and personal property to be conveyed to Buyer under this
Agreement. In that regard, for a period ending at 5:00 o'clock p.m. (local
time) on the date that is thirty (30) days after the Opening Date (the
"DUE DILIGENCE PERIOD"), Buyer will have the absolute right to cancel this
Agreement for any reason whatsoever, in Buyer's sole and absolute
discretion. However, until Buyer cancels, Buyer will proceed in good faith
with Buyer's preliminary investigatory steps with respect to this
transaction. Unless Buyer gives written notice of cancellation prior to
the expiration of the above-described time period, then Buyer will be
deemed to have elected not to cancel the Agreement under this provision
(c) Escrow Agent Prepared to Close and Issue Title Policy. Escrow
Agent is prepared to close the transactions contemplated by this Agreement
and Title Insurer is unconditionally prepared to issue the Title Policy in
the form required by this Agreement.
(d) Truthfulness of Representations. Seller's representations and
warranties set forth in this Agreement are true, complete and correct on
and as of the Closing PROVIDED, HOWEVER, that if Buyer receives actual
knowledge that any representation or warranty of Seller in SECTION 7.1(c)
is not true, complete and correct in any material respect as of the
Closing and does not elect to cancel the Agreement as permitted by this
SECTION 5.1, then the representation or warranty will be deemed to have
been amended to conform to the knowledge of Buyer; PROVIDED, FURTHER,
HOWEVER, that if the change is due to the acts or omissions of Seller, any
of its Related Parties, or Seller's contractors, the representation or
warranty shall not be deemed to have been amended but to have been
breached, and Buyer shall have all of its rights and remedies under this
Agreement with respect to the representation or warranty that has been
breached
(e) Full Compliance. Seller has fully performed all of its
obligations to be performed by Seller on or before Closing.
If any of the foregoing conditions is not fulfilled on or before the date by
which such contingency is to have been satisfied and such condition has not
otherwise been waived by Buyer in writing, Buyer may, in addition to any right
or remedy otherwise available to Buyer, by written notice to Seller given at any
time prior to Closing, cancel this Agreement. Upon such cancellation, Buyer
shall be entitled to a return of all xxxxxxx money deposits.
5.2 Conditions to Seller's Obligation to Close. Seller's obligation to
close this transaction is subject to the satisfaction of the following
conditions on and as of the Closing, unless an earlier date is specified:
(a) Escrow Agent Prepared to Close and Issue Title Policy. Escrow
Agent shall be prepared to close the transactions contemplated by this
Agreement and Title Insurer is unconditionally prepared to issue the
lender's title policy in the form required by this Agreement.
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(b) Truthfulness of Representations. Buyer's representations and
warranties set forth in this Agreement are true, complete and correct on
and as of the Closing.
(c) Full Compliance. Buyer has fully performed all of its
obligations to be performed by Buyer on or before Closing.
If any of the foregoing conditions is not fulfilled on or before the date by
which such contingency is to have been satisfied and such condition has not
otherwise been waived by Seller in writing, Seller may, in addition to any right
or remedy otherwise available to Seller, by written notice to Buyer, cancel this
Agreement. Upon such cancellation, Seller shall be entitled to receive and
retain all xxxxxxx money deposits.
5.3 Delivery of Certain Items to Seller. If this Agreement is cancelled by
either party for any reason other than a default by Seller, Buyer shall provide
to Seller, at no cost to Seller, copies of all feasibility studies, reports,
surveys, correspondence, or any other items obtained or created by or on behalf
of Buyer in connection with its investigations, inspections, and reviews of the
Property.
ARTICLE 6
CLOSING
6.1 Time of Closing. The Closing of this transaction and escrow (referred
to in this Agreement as the "CLOSING") shall occur promptly following the
expiration of the Due Diligence Period on such date as the parties agree in
writing, but in no event later than the date that is forty-five (45) days after
the expiration of the Due Diligence Period, in the offices of Escrow Agent,
except that if the date of Closing would otherwise occur prior to expiration of
a Supplemental Review Period, the date of Closing shall automatically be
extended to the day following expiration of the Supplemental Review Period.
6.2 Closing Statement. Prior to Closing, Escrow Agent will prepare a
consolidated closing settlement statement for Seller and Buyer, reflecting the
various charges, prorations and credits applicable to each party, as provided in
this Agreement, and provide each party with a copy of the closing settlement
statement. Prior to Closing, each party shall have the right to review and
approve the closing settlement statement to insure that such settlement
statement conforms to the terms of this Agreement. The settlement statement, as
approved by each party, is referred to in this Agreement as the "CLOSING
SETTLEMENT STATEMENT".
6.3 Seller's Closing Documents. On or before the Closing, Seller shall
deposit into escrow the following documents for delivery to Buyer at the
Closing, each of which shall have been duly executed and, where appropriate,
acknowledged:
(a) A special warranty deed (the "DEED") conveying the Property to
Buyer, subject to current taxes and assessments, reservations in patents,
all easements, rights-of-way, encumbrances, liens, covenants, conditions,
restrictions, obligations and liabilities as may appear of record, and all
matters which an accurate survey of the Property or a physical inspection
of the Property would disclose. Water rights, if any, shall be
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excluded from the coverage of the Deed warranties and shall be transferred
by quitclaim only;
(b) An affidavit of value as required by law;
(c) A xxxx of sale conveying the personal property to Buyer free and
clear of all liens and encumbrances, "as is", in its present condition and
state of repair, with all defects and liabilities, latent or apparent, and
without representation or warranty as to condition, merchantability or
fitness for a particular purpose;
(d) A certification to Buyer and Escrow Agent, signed and
acknowledged by Seller under penalties of perjury, certifying that Seller
is not a nonresident alien, foreign corporation, foreign partnership,
foreign trust, foreign estate, or other foreign person within the meaning
of Section 1445 and 7701 of the Internal Revenue Code of 1986 and the
related Treasury Regulations; and
(e) Such other documents as may be necessary or appropriate to
transfer and convey all of the Property to Buyer and to otherwise
consummate this transaction in accordance with the terms of this
Agreement.
6.4 Buyer's Closing Documents. On or before the Closing, Buyer shall
deposit into escrow the following documents for delivery to Seller at the
Closing, each of which shall have been duly executed and, where appropriate,
acknowledged:
(a) An affidavit of value as required by law; and
(b) Such other documents as may be necessary or appropriate to
consummate this transaction in accordance with the terms of this
Agreement.
6.5 Title Policies.
(a) Standard Owner's Coverage. Promptly following the Closing,
Seller shall provide Buyer with a standard owner's policy of title
insurance issued by Fidelity National Title Insurance Company (the "TITLE
INSURER") in the full amount of the Purchase Price, effective as of the
Closing, insuring Buyer that fee simple title to the Property is vested in
Buyer, subject only to the usual printed exceptions and exclusions
contained in such title insurance policies and to the Approved Title
Exceptions. The premium for a standard owner's title insurance policy
shall be paid by Seller at Closing.
(b) Extended Coverage. At any time prior to Closing, Buyer may elect to
receive an extended coverage owner's policy and may request title
insurance endorsements not otherwise provided by Seller in accordance with
SECTION 5.1(a)(ii), in which case Buyer shall be responsible for
satisfying, at its cost and prior to Closing, Escrow Agent's requirements
for such additional coverage or endorsements, and at Closing, Buyer shall
pay the difference between the premium for such policy and any special
endorsements requested by Buyer and the premium for a standard coverage
policy in the amount of the Purchase Price. In no event shall the Closing
be conditional upon or extended because of Buyer's election of extended
coverage or such special endorsements.
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6.6 Closing Costs and Prorations.
(a) Escrow Charges. Upon the Closing, Seller and Buyer each agree to
pay one-half of the escrow charges.
(b) Recording Fees. Seller and Buyer each agree to pay one-half of
the fees for recording the Deed. All other recording fees will be paid by
Buyer.
(c) Documentary Taxes and Transfer Taxes; Sales Taxes. Buyer will
pay any documentary transfer tax, stamp tax, real estate conveyance tax or
similar tax or fee due and payable in connection with this transaction.
Buyer will pay any transaction privilege tax, sales tax, or use tax
payable on account of the sale of any portion of the Property.
(d) Prorations. Real estate taxes and assessments, utility charges,
and any property owners' association assessments shall be prorated in
escrow as of the Closing, based upon the latest available information.
Seller shall be responsible for payment of all taxes due and payable prior
to the Closing, and Buyer shall be responsible for payment of all taxes
due and payable from and after the Closing. Improvement liens and other
special assessments shall be prorated as of the Closing.
(e) Miscellaneous Closing Costs. Any other closing costs not
provided for above or elsewhere in this Agreement shall be paid by Buyer
and Seller according to the usual and customary practice in Pinal County,
Arizona.
(f) Method of Payment. All closing costs and commissions payable by
Seller shall be deducted from Seller's proceeds at the Closing. On or
before the Closing, Buyer shall deposit with Escrow Agent cash in an
amount sufficient to pay all closing costs payable by Buyer.
6.7 Payments and Disbursements to Be Handled through the Escrow. The
various charges, credits and prorations contemplated by this Agreement will be
handled by Escrow Agent through the escrow by appropriate charges and credits to
Buyer and Seller and will be reflected in the Closing Settlement Statement. All
amounts payable pursuant to this Agreement will be paid to Escrow Agent for
disposition through the escrow. Escrow Agent is authorized to make all
disbursements to the parties and to third parties contemplated by this Agreement
from funds deposited for those purposes, as necessary or appropriate to close
this transaction and as set forth in the Closing Settlement Statement.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
7.1 Seller's Representations.
(a) Nature of Seller's Representations. Each of the representations
and warranties of Seller contained in this SECTION 7.1 constitutes a
material part of the consideration to Buyer, and Buyer is relying on the
correctness and completeness of these representations and warranties in
entering into this transaction. Each of the
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representations and warranties is true and accurate as of the date of
execution of this Agreement by Seller, will be true and accurate as of the
Closing and will survive the Closing, subject to the provisions of SECTION
5.1(d) and SECTION 11.8(c).
(b) Representations and Warranties as to Seller and the Transaction.
Seller represents and warrants to Buyer as follows:
(i) Organizational Status. Seller is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware, is qualified to do business in the State of
Arizona, and has full power and authority to enter into and to
perform its obligations under this Agreement. The persons executing
this Agreement on behalf of Seller have full power and authority to
do so and to perform every act and to execute and deliver every
document and instrument necessary or appropriate to consummate the
transactions contemplated by this Agreement.
(ii) Entity Action. All entity action on the part of Seller
and its constituents which is required for the execution, delivery
and performance by Seller of this Agreement and each of the
documents and agreements to be delivered by Seller at the Closing
has been duly and effectively taken.
(iii) Enforceable Nature of Agreement. This Agreement and each
of the documents and agreements to be delivered by Seller at the
Closing, constitute legal, valid and binding obligations of Seller,
enforceable against Seller in accordance with their respective
terms, except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium, or similar laws affecting the enforcement of creditors'
rights generally, and subject, as to enforceability, to general
principles of equity, regardless of whether enforcement is sought in
a court of law or equity.
(iv) Violations; Consents; Defaults. Neither the execution of
this Agreement nor the performance by Seller of its obligations
under this Agreement will result in any breach or violation of (A)
to Seller's knowledge, the terms of any law, rule, ordinance, or
regulation; or (B) any decree, judgment or order to which Seller or
any constituent member of Seller is a party now in effect from any
court or governmental body. There are no consents, waivers,
authorizations or approvals from any third party necessary to be
obtained by Seller in order to carry out the transactions
contemplated by this Agreement. The execution and delivery
of this Agreement and performance by Seller of its obligations under
this Agreement will not conflict with or result in a breach or
default (or constitute an event which, with the giving of notice or
the passage of time, or both, would constitute a default) under
Seller's organizational documents or any indenture, mortgage, lease,
agreement, or other instrument to which Seller is a party or by
which Seller or any of its assets may be bound. The execution and
delivery of this Agreement and performance by Seller of its
obligations under this Agreement will not result in the creation of
any new, or the acceleration of any existing, lien, charge, or
encumbrance upon the Property.
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(c) Representations and Warranties Relating to the Property. Seller
represents and warrants to Buyer that, except as disclosed in the Due
Diligence Materials:
(i) Litigation. Neither Seller nor any of its constituent
members is a party to any pending action, suit, proceeding or
investigation, at law or in equity or otherwise, in, for or by any
court or governmental board, commission, agency, department or
officer arising from or relating to this transaction or the
Property. No litigation, administrative or other proceeding
(including any condemnation proceeding), or order or judgment is
pending or outstanding, or to Seller's knowledge, threatened against
or relating to any portion of the Property or which could affect the
performance by Seller of any of its obligations under this
Agreement.
(ii) Unrecorded Documents. There are no unrecorded leases,
arrangements, agreements, understandings, options, contracts, or
rights of first refusal to which Seller is a party affecting or
relating to the Property in any way.
(d) Seller's Knowledge. For purposes of this SECTION 7.1, the term
"KNOWLEDGE" shall mean and be limited to the actual (as distinguished from
implied, imputed or constructive) knowledge of Xxxxxx Xxxxxx, without such
individual having any obligation to make an independent inquiry or
investigation.
7.2 Buyer's Representations.
(a) Nature of Buyer's Representations. Each of the representations
and warranties of Buyer contained in this SECTION 7.2 constitutes a
material part of the consideration to Seller and Seller is relying on the
correctness and completeness of these representations and warranties in
entering into this transaction. Each of the representations and warranties
is true and accurate as of the date of execution of this Agreement by
Buyer, will be true and accurate as of the Closing, and will survive the
Closing.
(b) Representations and Warranties as to Buyer and the Transaction.
Buyer represents and warrants to Seller as follows:
(i) Organizational Status. Buyer is a political subdivision of
the State of Arizona duly organized, validly existing and in good
standing under the laws of the State of Arizona, is qualified to do
business in the State of Arizona, and has full power and authority
to enter into and to perform its obligations under this Agreement.
The persons executing this Agreement on behalf of Buyer have full
power and authority to do so and to perform every act and to execute
and deliver every document and instrument necessary or appropriate
to consummate the transactions contemplated by this Agreement.
(ii) Entity Action. All entity action on the part of Buyer and
its constituents which is required for the execution, delivery and
performance by Buyer of this Agreement and each of the documents and
agreements to be delivered by Buyer at the Closing has been duly and
effectively taken.
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(iii) Enforceable Nature of Agreement. This Agreement and each
of the documents and agreements to be delivered by Buyer at the
Closing, constitute legal, valid and binding obligations of Buyer,
enforceable against Buyer in accordance with their respective terms,
except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium, or similar laws affecting the enforcement of creditors'
rights generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in
a court of law or equity).
(iv) Violations; Consents; Defaults. Neither the execution of
this Agreement nor the performance by Buyer of its obligations under
this Agreement will result in any breach or violation of (A) to
Buyer's actual knowledge, the terms of any law, rule, ordinance, or
regulation or of (B) any decree, judgment or order to which Buyer or
any constituent member of Buyer is a party now in effect from any
court or governmental body. There are no consents, waivers,
authorizations or approvals from any third party necessary to be
obtained by Buyer in order to carry out the transactions
contemplated by this Agreement. The execution and delivery of this
Agreement and performance by Buyer of its obligations under this
Agreement will not conflict with or result in a breach or default
(or constitute an event which, with the giving of notice or the
passage of time, or both, would constitute a default) under Buyer's
organizational documents or any indenture, mortgage, lease,
agreement, or other instrument to which Buyer is a party or by which
Buyer or any of its assets may be bound.
7.3 Release.
(a) Release; As Is Nature of Transaction. Except for any express
warranties and representations set forth elsewhere in this Agreement or in
any closing documents delivered by Seller:
(i) Seller and Seller's Related Parties are released from all
responsibility and liability regarding the Property, including the
development potential of the Property; the condition, valuation or
utility of the Property, or its suitability for any purpose
whatsoever; title and survey matters with respect to the Property;
and any responsibility or liability with respect to the presence in
the soil, air, structures, and surface and subsurface waters, of
Hazardous Substances; and
(ii) Buyer expressly acknowledges that Buyer has not relied on
any warranties, promises, understandings or representations, express
or implied, oral or written, of Seller or any of Seller's Related
Parties, relating to the Property or any other aspect of the
transactions contemplated by this Agreement and that Buyer is
acquiring the Property in its present condition and state of repair,
"AS IS" and "WHERE IS", with all defects and liabilities, latent or
apparent.
(b) Information Provided by Seller. Buyer acknowledges that any
information of any type which Buyer has received or may receive from
Seller or Seller's agents is
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furnished on the express condition that Buyer shall make an independent
verification of the accuracy of such information, all such information
being furnished without any representation or warranty whatsoever.
(c) Buyer's Due Diligence; Waivers. No later than expiration of the
Due Diligence Period, Buyer will have inspected and investigated all
aspects of the Property as Buyer deems necessary or appropriate to Buyer's
complete satisfaction and will have observed the physical characteristics
and existing conditions of the Property, the structural character,
soundness and state of repair of the buildings and other structures and
improvements on the Property, the condition and state of repair of all
equipment, fixtures, furnishings, furniture, equipment, appliances, and
personal property constituting part of the Property, and the operations on
the Property and on adjacent areas. Except as arising from the express
warranties and representations of Seller, Buyer waives any and all
objections to, complaints about, or claims regarding the Property and its
physical characteristics and existing conditions, including, without
limitation, objections to, complaints about, or claims regarding
subsurface soil and water conditions, solid and hazardous waste and
hazardous substances, and endangered or protected plant or animal species
on, under or adjacent to the Property (including federal, state or common
law based actions and any private right of action under state and federal
law, including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act, and any state or local
equivalent). Buyer further assumes the risk of changes in applicable laws
and regulations relating to past, present and future environmental
conditions on the Property and, except as arising from the express
warranties and representations of Seller, the risk that adverse physical
characteristics and conditions, including, without limitation, the
presence of hazardous substances or other contaminants, may not have been
revealed by its investigation.
(d) Acknowledgments. Buyer agrees that the matters released pursuant
to this SECTION 7.3 are not limited to matters which are known or
disclosed. In this connection, Buyer acknowledges that factual matters now
unknown to it may have given or may hereafter give rise to causes of
action, claims, demands, controversies, damages, costs, losses or expenses
which are presently unknown, unanticipated and unsuspected, and Buyer
further acknowledges that the release contained in this Section has been
negotiated and agreed upon in light of the foregoing. Buyer expressly
waives any provision of statutory or decisional law to the effect that a
general release does not extend to claims which the releasing party does
not know or suspect to exist in such party's favor at the time of
executing the release, which, if known by such party, must have materially
affected such party's settlement with the released parties.
ARTICLE 8
ADDITIONAL COVENANTS
8.1 Possession. Possession of the Property shall be delivered to Buyer
upon the Closing.
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8.2 Condemnation. If, prior to Closing, more than 15% of the total square
footage of the Property is taken by or under threat of condemnation or eminent
domain (including by deed in lieu of condemnation) or Buyer receives notice from
any governmental agency or other person with the power of eminent domain
threatening the taking of more than 15% of the total square footage of the
Property (any such event being referred to as a "CONDEMNATION EVENT"), Buyer
may, at its election, cancel this Agreement by giving written notice of
cancellation to Seller and Escrow Agent within five days of occurrence of the
Condemnation Event. If Buyer so elects to cancel this Agreement, then all
xxxxxxx money deposits will be returned to Buyer and the Agreement shall be
cancelled. If, prior to Closing, there is a Condemnation Event with respect to
15% or less of the total square footage of the Property or if Buyer elects to
close the escrow notwithstanding the taking of more than 15% of the total square
footage of the Property, Buyer shall receive all awards or payments made to
which Seller is entitled for such taking, and Buyer shall proceed to close the
escrow and pay the total Purchase Price.
8.3 Risk of Loss. Except as provided in this Section and except as
otherwise provided in SECTION 4.3, the risk of loss or damage to the Property
and all liability to third persons until the Closing shall be borne by Seller.
In case of loss or damage to the Property prior to the Closing, Seller shall
have the option to fully restore the Property, and if Seller elects to restore,
the Closing shall be extended for a reasonable period of time following the loss
or damage in order to permit Seller to fully restore the Property. If, however,
Seller does not restore the Property prior to the Closing, as extended, then
Buyer, at Buyer's option and as Buyer's sole and exclusive remedy, may either:
(a) Cancel this Agreement by giving written notice to Seller and
Escrow Agent, in which case Buyer will be entitled to a return of all
xxxxxxx money deposits; or
(b) Proceed with the Closing, and, at Buyer's option, either receive
a mutually agreed abatement of the Purchase Price or be entitled to
Seller's rights to insurance. If the parties cannot agree to an acceptable
abatement to the Purchase Price, then Buyer will pay the full Purchase
Price for the Property, less the deductible payable with respect to the
loss and, at the Closing, all of the insurance proceeds payable to Seller
with respect to the loss and all rights with respect to the loss under the
insurance policy covering the loss will be assigned by Seller to Buyer and
any moneys received by Seller at any time in connection with the loss will
be paid to Buyer.
8.4 Buyer's Indemnity. Buyer shall defend, indemnify, save and hold Seller
and its Related Parties harmless for, from and against any and all Claims:
(a) Directly or indirectly relating in any way to the Property and
accruing from and after the Closing;
(b) Accruing at any time before or after the Closing as the result
of the acts or omissions of Buyer, any of Buyer's Related Parties, or any
of Buyer's consultants, representatives, or contractors; and
(c) Subject to any limitations imposed by SECTION 10.1, arising as a
result of the breach by Buyer of any of Buyer's obligation under this
Agreement or under any
15
other agreement or document delivered by Buyer in accordance with this
Agreement, or as a result of the inaccuracy of any representation or
warranty made by Buyer in this Agreement or in any other agreement or
document delivered by Buyer pursuant to this Agreement or in connection
with the transactions contemplated by this Agreement;
except, in the case of Claims under both SECTIONS 8.4(a) and 8.4(b), to the
extent arising from any actions, activities, or omissions of Seller, its Related
Parties, or any of Seller's consultants, representatives, or contractors.
8.5 Scope. The indemnity obligations of Buyer under SECTION 8.4 are in
addition to and not in lieu of any other indemnification obligations of such
party set forth elsewhere in this Agreement.
ARTICLE 9
BROKERAGE
9.1 Brokerage. Seller warrants that Seller has not dealt with any broker
in connection with this transaction other than Xxxxx & Xxxxx/BRE Commercial, LLC
("BROKER"). Buyer warrants that Buyer has not dealt with any broker in
connection with this transaction other than Broker. If any other person shall
assert a claim to a finder's fee, brokerage commission or other compensation on
account of alleged employment as a finder or broker or performance of services
as a finder or broker in connection with this transaction, the party under whom
the finder or broker is claiming shall indemnify, defend, and hold harmless the
other party and such party's Related Parties for, from and against any and all
Claims in connection with such claim or any action or proceeding brought on such
claim.
ARTICLE 10
DEFAULTS AND REMEDIES
10.1 Defaults by Buyer.
(a) Buyer's Default. The occurrence of any of the following will
constitute a default by Buyer under this Agreement:
(i) If, by the time set for the Closing, Buyer has failed to
pay the balance of the Purchase Price into escrow, to deposit into
escrow the documents and other items to be deposited by Buyer in
escrow by the time set for Closing, or to perform any other
obligation of Buyer to be performed by the time set for Closing (all
such obligations being referred to collectively as the "BUYER
CLOSING OBLIGATIONS");
(ii) If Buyer makes an unauthorized assignment of this
Agreement; or
(iii) If Buyer fails to observe or perform any of the other
covenants or agreements contained in this Agreement to be observed
or performed by Buyer, but such failure, if of a type that can be
cured or corrected by Buyer, will not be a
16
default unless such failure continues for fifteen (15) days after
written notice of breach is given by Seller to Buyer except that if
such failure is of such a character as to require more than fifteen
(15) days to correct, Buyer will not be in default if Buyer
commences actions to correct such failure within the fifteen (15)
day period and thereafter, using reasonable diligence, cures such
failure. In no event, however, will the cure period be extended
beyond the time set for Closing.
(b) Seller's Remedies.
(i) If Buyer is in default with respect to the Buyer Closing
Obligations, Seller's sole and exclusive remedy with respect to such
default shall be to cancel this Agreement and the escrow, such
cancellation to be effective immediately upon Seller giving written
notice of cancellation to Buyer and Escrow Agent. Upon such
cancellation, Seller shall be entitled to receive and retain all
xxxxxxx money deposits as liquidated damages for such failure and
not as a penalty, the parties agreeing and stipulating that the
exact amount of damages would be extremely difficult to ascertain
and that the xxxxxxx money deposits constitute a reasonable and fair
approximation of such damages.
(ii) If Buyer is in default with respect any of its
obligations under this Agreement, other than the Buyer Closing
Obligations, including any indemnity obligation, Seller shall have
all rights and remedies at law or in equity in connection with such
default.
(iii) Seller irrevocably waives any right to damages or any
other remedies or form of relief, except as specifically set forth
in this SECTION 10.1(b).
10.2 Default by Seller.
(a) Seller's Default. The occurrence of any of the following will
constitute a default by Seller under this Agreement:
(i) If, by the time set for the Closing, Seller has failed to
deposit into escrow the documents and other items to be deposited by
Seller in escrow by the time set for Closing, or to perform any
other obligation of Seller to be performed by the time set for
Closing (all such obligations being referred to collectively as the
"SELLER CLOSING OBLIGATIONS"); or
(ii) If Seller fails to observe or perform any of the other
covenants or agreements contained in this Agreement to be observed
or performed by Seller, but such failure, if of a type that can be
cured or corrected by Seller, will not be a default unless such
failure continues for fifteen (15) days after written notice of
breach is given by Buyer to Seller except that if such failure is of
such a character as to require more than fifteen (15) days to
correct, Seller will not be in default if Seller commences actions
to correct such failure within the fifteen (15) day period and
thereafter, using reasonable diligence, cures such failure. In such
event, the time for Closing will automatically be extended to permit
such cure within the time period above provided.
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(b) Buyer's Remedies.
(i) If Seller is in default with respect to the Seller Closing
Obligations, Buyer may, by written notice to Seller and Escrow
Agent, given within ten (10) days following the date that the
default by Seller occurs, elect to exercise either the Termination
Right or the Specific Enforcement Right as described below, but not
both, unless prior to such notice being given, Seller otherwise
cures the default, in which case Buyer and Seller shall proceed to
close the transaction within five (5) days following such cure.
(A) Buyer may terminate this Agreement (the "TERMINATION
RIGHT"), effective as of the date Buyer gives the notice to
Seller and Escrow Agent electing to exercise the Termination
Right. If Buyer exercises the Termination Right, all xxxxxxx
money deposits will be returned to Buyer.
(B) Buyer may elect to pursue specific performance of
this Agreement (the "SPECIFIC PERFORMANCE RIGHT"); PROVIDED,
HOWEVER, that the amount payable by Buyer at Closing shall be
reduced by the amount of damages incurred by Buyer as a result
of Seller's default, including any and all reasonable costs
and expenses incurred by Buyer and paid to third parties,
including outside counsel, in enforcing its rights and
remedies under this Agreement.
If Buyer fails to elect the Specific Performance Remedy within the
ten (10) day period described above, Buyer shall have no further
right to demand specific performance and shall be conclusively
presumed to have exercised the Termination Right.
(ii) If Seller is in default with respect any of its
obligations under this Agreement, other than the Seller Closing
Obligations, including any indemnity obligation, Buyer shall have
all rights and remedies at law or in equity in connection with such
default.
(iii) Buyer irrevocably waives any right to damages or any
other remedies or form of relief, except as specifically set forth
in this SECTION 10.2(b).
ARTICLE 11
GENERAL PROVISIONS
11.1 Certain Definitions. As used in this Agreement, certain capitalized
terms are defined as follows:
(a) "CLAIMS" means any and all obligations, debts, covenants,
conditions, representations, costs, and liabilities and any and all
demands, causes of action, and claims, of every type, kind, nature or
character, direct or indirect, known or unknown,
18
absolute or contingent, determined or speculative, at law, in equity or
otherwise, including attorneys' fees and litigation and court costs.
(b) "RELATED PARTIES" means, with respect to any person or entity,
the officers, directors, shareholders, partners, members, employees,
agents, attorneys, elected officials, managers, successors, personal
representatives, heirs, executors, or assigns of any such person or
entity.
11.2 Assignment.
(a) General Prohibition. Buyer may not assign or otherwise transfer
any of its rights under this Agreement without the prior written consent
of Seller, which consent may be given or withheld in Seller's sole
discretion. Any such assignment or transfer without such consent shall be
absolutely null and void and shall constitute a default by Buyer under
this Agreement.
(b) Assignment by Operation of Law; Bankruptcy. In no event will
this Agreement or any interest in this Agreement or the Property be
assigned or assignable by operation of law or by voluntary or involuntary
bankruptcy proceedings without the prior written consent of Seller. In no
event will this Agreement or any rights or privileges of Buyer under this
Agreement be deemed an asset of Buyer under any bankruptcy, insolvency or
reorganization proceedings.
11.3 Binding Effect. Except as limited by the provisions of SECTION 11.2,
the provisions of this Agreement are binding upon and shall inure to the benefit
of the parties and their respective heirs, personal representatives, successors
and assigns.
11.4 Attorneys' Fees. If either party to this Agreement initiates or
defends any legal action or proceeding with the other party in any way connected
with this Agreement, the prevailing party in any such legal action or
proceeding, in addition to any other relief which may be granted, whether legal
or equitable, shall be entitled to recover from the losing party in any such
legal action or proceeding its reasonable costs and expenses of suit, including
reasonable attorneys' fees and expert witness fees. If either party to this
Agreement initiates or defends any legal action or proceeding with a third party
because of the violation of any term, covenant, condition or agreement contained
in this Agreement by the other party to this Agreement, then the party so
litigating shall be entitled to recover its reasonable costs and expenses of
suit, including reasonable attorneys' fees and expert witness fees, incurred in
connection with such litigation from the other party to this Agreement. All such
costs and attorney's fees shall be deemed to have accrued on commencement of any
such legal action or proceeding and shall be enforceable whether or not such
legal action or proceeding is prosecuted to judgment. Attorneys' fees under this
Section include attorneys' fees on any appeal and in any bankruptcy or similar
or related proceeding in federal or state courts. Any dispute as to the amounts
payable pursuant to this Section shall be resolved by the court and not by a
jury.
11.5 Waivers. No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provision, whether or not similar, nor shall
any waiver be a continuing waiver. Except as expressly provided in this
Agreement, no waiver shall be binding unless
19
executed in writing by the party making the waiver. Either party may waive any
provision of this Agreement intended for its benefit; PROVIDED, HOWEVER, such
waiver shall in no way excuse the other party from the performance of any of its
other obligations under this Agreement.
11.6 Notices. All notices shall be in writing and shall be made by hand
delivery, facsimile, express delivery service, freight prepaid, or by certified
mail, postage prepaid, return receipt requested. Notices will be delivered or
addressed to Seller and Buyer at the addresses or facsimile numbers set forth on
the first page of this Agreement or at such other address or number as a party
may designate to the other party in writing. Any such notice shall be deemed to
be given and received and shall be effective (a) on the date on which the notice
is delivered, if notice is given by hand delivery; (b) on the date of actual
receipt, if the notice is sent by express delivery service; (c) on the date on
which it is received or rejected as reflected by a receipt if given by United
States mail, addressed and sent as aforesaid; and (d) when transmitted properly,
in the case of facsimile transmission, with a facsimile being deemed to have
been properly transmitted as of the date of successful transmission of the
entire notice, as confirmed by return transmission; PROVIDED, HOWEVER, that if
successful transmission is completed after 5:00 p.m., local time for the
recipient on such day, then the facsimile transmission will be deemed to have
been given and received and become effective on the next succeeding day.
11.7 Further Documentation. Each party agrees in good faith to execute
such further or additional documents as may be necessary or appropriate to fully
carry out the intent and purpose of this Agreement.
11.8 Survival. The following obligations of the parties will survive the
Closing or cancellation of this Agreement, whether contained in this Agreement
or in any agreement, instrument, or other document given by a party in
connection with the transactions contemplated by this Agreement:
(a) Post-Closing Covenants. Any and all obligations of the parties
that are to be performed following the Closing;
(b) Indemnification Obligations. All indemnity obligations of the
parties;
(c) Warranties. Any and all warranties or representations of the
parties; PROVIDED, HOWEVER, that any claim for a breach of any of the
representations and warranties of Seller contained in SECTION 7.1(c) must
be brought in a court of competent jurisdiction within one (1) year
following the Closing; and
(d) Other Obligations. Any other obligation with respect to which it
is expressly provided that it will survive the Closing or cancellation of
this Agreement.
11.9 Counterparts. This Agreement may be executed in counterparts (and by
different parties to this Agreement in different counterparts), each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy to the other party shall be effective as
delivery of a manually executed counterpart of this Agreement.
20
11.10 Construction. Unless the context of this Agreement clearly requires
otherwise or unless otherwise expressly stated in this Agreement, this Agreement
shall be construed in accordance with the following:
(a) Use of Certain Words. References to the plural include the
singular and to the singular include the plural and references to any
gender include any other gender. The part includes the whole; the terms
"include" and "including" are not limiting; and the term "or" has, except
where otherwise indicated, the inclusive meaning represented by the phrase
"and/or." The words "hereof," "herein," "hereby," "hereunder," and similar
terms in this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement.
(b) References. References in this Agreement to "Articles,"
"Sections," or Exhibits are to the Articles and Sections of this Agreement
and the Exhibits to this Agreement. Any reference to this Agreement
includes any and all amendments, extensions, modifications, renewals, or
supplements to this Agreement. The headings of this Agreement are for
purposes of reference only and shall not limit or define the meaning of
any provision of this Agreement.
(c) The Recitals. Buyer and Seller acknowledge that the Recitals are
accurate and that they are a part of this Agreement.
(d) Construing the Agreement. Each of the parties to this Agreement
acknowledges that such party has had the benefit of independent counsel
with regard to this Agreement and that this Agreement has been prepared as
a result of the joint efforts of all parties and their respective counsel.
Accordingly, all parties agree that the provisions of this Agreement shall
not be construed or interpreted for or against any party to this Agreement
based upon authorship or any other factor but shall be construed and
interpreted according to the ordinary meaning of the words used so as to
fairly accomplish the purposes and intentions of all parties to this
Agreement.
(e) Partial Invalidity. If any portion of this Agreement is
determined to be unconstitutional, unenforceable or invalid, such portion
of this Agreement shall be stricken from and construed for all purposes
not to constitute a part of this Agreement, and the remaining portion of
this Agreement shall remain in full force and effect and shall, for all
purposes, constitute the entire Agreement.
(f) Governing Law. This Agreement shall be construed according to
the laws of the State of Arizona, without giving effect to its conflict of
laws principles.
(g) Time of Essence; Time Periods. Time is of the essence of this
Agreement. The time for performance of any obligation or taking any action
under this Agreement shall be deemed to expire at 5:00 o'clock p.m. (local
time) on the last day of the applicable time period provided for in this
Agreement. If the time for the performance of any obligation or taking any
action under this Agreement expires on a Saturday, Sunday or legal
holiday, or any other day that Escrow Agent is closed for business, the
time for performance or taking such action shall be extended to the next
succeeding day which is
21
not a Saturday, Sunday or legal holiday or day on which Escrow Agent is
closed for business.
(h) Entire Agreement. This Agreement, which includes EXHIBIT A,
constitutes the entire agreement between the parties pertaining to the
subject matter contained in this Agreement. All prior and contemporaneous
agreements, representations and understandings of the parties, oral or
written, are superseded by and merged in this Agreement. No supplement,
modification or amendment of this Agreement shall be binding unless in
writing and executed by Buyer and Seller.
11.11 Acceptance. This Agreement shall be of no force and effect unless
Buyer shall have executed and delivered three fully executed originals, together
with the xxxxxxx money deposit, to Escrow Agent on or before 5:00 o'clock p.m.
on February 28, 2005.
EXECUTED as of the date written on the first page of this Agreement.
SELLER:
LEXINGTON PRECISION CORPORATION, a
Delaware corporation
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Its: President
BUYER:
CITY OF CASA GRANDE, a political
subdivision of the State of Arizona
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Its: Acting City Manager
22
The undersigned Escrow Agent hereby accepts employment to handle the escrow
established by this Agreement in accordance with the terms set forth in this
Agreement.
FIDELITY NATIONAL TITLE AGENCY OF PINAL COUNTY, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Its: Escrow Officer
Date: February 25, 2005
"Escrow Agent"
23
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL NO 1:
Xxx 00, XXXX XXXXXX XXXXXXXXX XXXXXXX XXXXXXXXXX XXXX, according to the plat of
record in the office of the County Recorder of Pinal County, Arizona, in Cabinet
A, Slide 20;
EXCEPT therefrom all mineral deposits and rights together with the right to
prospect for, mine and remove the same, as reserved by the State of Arizona in
instrument recorded March 15, 1947, in Book 80 of Deeds, page 251, records of
Pinal County, Arizona.
PARCEL NO 2:
Xxx 00, XXXX XXXXXX XXXXXXXXX XXXXXXX XXXXXXXXXX XXXX, according the plat of
record in the office of the County Recorder of Pinal County, Arizona in Cabinet
A, Slide 20;
EXCEPT therefrom all mineral deposits and rights together with the right to
prospect for, mine and remove the same, as reserved by the State of Arizona in
instrument recorded March 15, 1947, in Book 80 of Deeds, page 251, records of
Pinal County, Arizona.
PARCEL NO. 3:
Xxx 00, XXXX XXXXXX XXXXXXXXX XXXXXXX XXXXXXXXXX XXXX, according to the plat of
record in the office of the County Recorder of Pinal County, Arizona, in Cabinet
A, Slide 20;
EXCEPT therefrom all mineral deposits and rights together with the right to
prospect for, mine and remove the same, as reserved by the State of Arizona in
instrument recorded March 15, 1947, in Book 80 of Deeds, page 251, records of
Pinal County, Arizona.
EXHIBIT B
DUE DILIGENCE MATERIALS PER SECTION 4.1(c)
INSTALL/INSTRUCTION DOCUMENTS: BUILDING PLANS:
Safety shower 1989 Set of building plans
ARO pumps 1989 plumbing
Bus way 1989 mechanical
Cutting oil pump out stations 1989 electric
Digital clock display 1989 site survey
Hand rails 1996 Set of building plans 11" x 14"
Knight fire alarm panel 1997 Set of progress prints
Lighting information 1996 structural
Overhead crane (3) 1996 improvements 2nd floor
Mop water system 1996 landscaping
Xxxxxxx Motion sensor 1996 electrical
Overhead door 1996 master package
Power rewind reels 1996 plumbing
Trane tracker 1996 mechanical
Building mgmt system 1996 xxxxxx bldg
Thermostats office 1996 as built
Utility plan 1996 electrical copies
Water filters 1996 sprinkler system
MCG surge protection 1997 office sprinklers
HVAC spec sheet (original bldg) 1997 grading and drainage
Honeywell thermostats 1997 furniture plans & invoice
Xxxxx mechanical A/C install docs
Carpet
Security system (2)
Subcontractor master docs (7 binders)
Expansion master schedule
Oil distribution system
REPORTS:
8/16/96 Geotechnical Exploration
7/29/02 Western Tech Phase I
10/28/02 Western Tech Phase II
2
