EXHIBIT 10.10.1
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COMMERCIAL/INVESTMENT REAL ESTATE PURCHASE AND SALE AGREEMENT
1. REAL ESTATE OFFICES: LISTING AGENCY is For Sale By Owner
SELLING AGENCY is Xxxxxxx Financial Services, Inc.
2. BUYER: Xxxxxxx Real Estate Investment #I, LLC., and/or Assignees
3. PROPERTY ADDRESS AND LEGAL DESCRIPTION: The property commonly known as 0000
X. Xxxxxx Xxx. (Approximately 7.74 acres ), City of Boise, County of Ada,
Idaho legally described as a: See Alta Survey and Legal Description
4. PRICE/TERMS: Total purchase price is $4,800,000 - cash down payment,
including Xxxxxxx Money deposit.
5. XXXXXXX MONEY: Buyer hereby deposits $10,000 as Xxxxxxx Money evidenced by
a personal check and a receipt is hereby acknowledged. Xxxxxxx Money to be
deposited in trust account upon acceptance by all parties and shall be held
by Selling Broker for the benefit of the parties hereto, and Xxxxxxx
Financial Services (Broker) shall hold the completely executed Broker's
copy of this Agreement. This responsible Broker shall be Xxxxxxx Xxxxxxx.
6. INCLUDED ITEMS:
(a) All attached floor coverings, attached television antennae, satellite dish
(es) and receiving equipment, attached plumbing, bathroom lighting
fixtures, window screens, screen doors, storm windows, storm doors, window
coverings, exterior trees, plants or shrubbery, water heating apparatus and
fixtures, attached fireplace equipment, awnings, ventilating cooling and
heating systems, built-in and "drop-in" ranges (but excepting all other
ranges), fuel tanks that are now on or used in connection with the premises
shall be included in the sale unless otherwise provided herein.
(b) Irrigation fixtures and equipment, and any and all, if any, water and water
rights, and any and all, if any, ditches and ditch rights that are
appurtenant thereto that are now on or used in connection with the premises
shall be included in the sale unless otherwise provided herein.
(c) Other items specifically included in this sale: All land, building, and
site improvements contained within the said legal description to be
conveyed.
(d) Items specifically excluded in this sale: 2-satellite dishes and air
conditioners that were installed by the tenant for the Data Closet. In
addition, all equipment and wiring located within the Data Closet is
excluded from the sale.
7. ADDITIONAL TERMS, CONDITIONS AND/OR CONTINGENCIES: The closing of this
transaction is contingent upon written satisfaction or waiver of conditions
outlined in the attached addendum #1,2,3,4. Buyer will have until September
10, 2003 to satisfy or waive all conditions and/or contingencies.
8. TITLE COMPANY/CLOSING AGENCY: A) The parties agree that First American
Title Company shall provide any required Title Policy and preliminary
report of commitment. B) The Closing Agency for this transaction shall be
First American. Each party agrees to pay one-half of the Closing Agency's
fee.
9. TITLE INSURANCE: Seller agrees to pay for a standard Owner's or Purchaser's
Title Policy premium for this transaction. Purchaser's Extended Coverage
Title Policy is not requested. Additional premium to be paid by buyer.
Title Company to provide all parties to this Agreement with a preliminary
Title Report on or before September 5, 2003. Buyer shall have until
September 10, 2003 to object in writing to the condition of the title as
set for in the report. In the event buyer makes written objection the
title,
seller shall have reasonable time, not to exceed 3 business day(s), to cure
any defects of title or provide affirmative Title Insurance coverage. In
the event that Seller refuses to cure defects of title, buyer may elect, as
its sole remedy, to either terminate this Agreement or cure the defects at
Buyer's expense, or proceed to closing, taking title subject to such
defects. If Buyer does not so object, Buyer shall be deemed to have
accepted the condition of the title. In the event Buyer elects to terminate
the Agreement due to unsatisfactory title conditions, Buyer shall be
entitled to the return of all refundable deposits made by Buyer, but that
such return of deposits shall not constitute a waiver of other remedies
available to the Buyer. The Title Company shall deliver the final Title
Insurance policy to Buyer as soon as possible after closing.
10. ESCROW/COLLECTION: If a long-term escrow/collection is involved, then the
escrow/collection holder shall be N/A. Each party agrees to pay one-half of
escrow/collection fees and escrow setup fees.
11. CLOSING DATE: On or before the closing date, Buyer and Seller shall deposit
with the Closing Agency all funds and instruments necessary to complete the
sale. The closing date shall be no later than September 24, 2003. "Closing
Date" means the date on which all documents are either recorded or accepted
by an escrow/collection agency and the sale proceeds are available to
Seller.
12. POSSESSION/PRORATION: Buyer shall be entitled to possession on the day of
closing or N/A. Taxes and water assessments (using the last available
assessment as a basis), rents, insurance premiums, interest and reserve on
liens, encumbrances or obligations assumed and utilities shall be prorated
as of the day of closing or (Must Be Paid Current). Any tenant deposits
held by Seller shall be credited to Buyer at closing.
13. DEFAULT: If Buyer defaults in the performance of this Agreement, Seller has
the option: (1) accepting the Xxxxxxx Money as liquidated damages, or (2)
pursuing any other lawful right or remedy to which Seller may be entitled.
If Seller elects to proceed under (1), Seller shall make demand upon the
holder of the Xxxxxxx Money, upon which demand said holder shall pay from
the Xxxxxxx Money the costs incurred by Seller's Broker on behalf of Seller
and Buyer related to the transaction, including, without limitation, the
costs of title insurance, escrow fees, credit report fees, inspection fees
and attorney's fees; and said holder shall pay any balance of the Xxxxxxx
Money, one-half to Seller and one-half to Seller's Broker, provided that
the amount to be paid to Seller's Broker shall not exceed the Broker's
agreed to commission. Seller and Buyer specifically acknowledge and agree
that if Seller elects to accept the Xxxxxxx Money as liquidated damages,
such shall be the Seller's sole and exclusive remedy, and such shall not be
considered a penalty or forfeiture. If Seller elects to proceed under (2),
the holder of the Xxxxxxx Money shall be entitled to pay the cost incurred
by Seller's Broker on behalf of Seller and Buyer related to the
transaction, including, without limitation, the costs of Brokerage fee,
title insurance, escrow fees, credit report fees, inspection fees, and
attorney's fees, with any balance of the Xxxxxxx Money to be held pending
resolution of the matter. If Seller defaults, having approved said sale and
fails to consummate the same as herein agreed, Buyer's Xxxxxxx Money
deposit shall be returned to him/her and Seller shall pay for the costs of
title insurance, escrow fees, credit report fees, inspection fees,
Brokerage fees and attorney's fees, if any. This shall not be considered a
waiver by Buyer of any other lawful right or remedy to which Buyer may be
entitled.
14. ATTORNEY'S FEES: If either party initiates or defends any arbitration or
legal action or proceedings, which are in any way connected with this
Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party reasonable costs and attorney's fees, including such
costs and fees on appeal.
15. XXXXXXX MONEY DISPUTE/INTERPLEADER: Notwithstanding any termination of this
contract, Buyer and Seller agree that in the event of any controversy
regarding the Xxxxxxx Money and things of value held by Broker or closing
agency, unless mutual written instructions are received by the holder of
the Xxxxxxx Money and things of value, Broker or closing agency shall not
be required to take any action, but may await any proceeding, or at
Broker's or closing agency's option and sole discretion,
may interplead all parties and deposit any moneys or things of value into a
court of competent jurisdiction and shall recover court costs and
reasonable attorney's fees.
16. TITLE CONVEYANCE: Title of Seller is to be conveyed by warranty deed and is
to be marketable and insurable except for rights reserved in federal
patents, building or use restrictions, building and zoning regulations and
ordinances of any governmental unit, rights of way and easements
established or of record and any other liens, encumbrances or defects
approved by Buyer.
17. RISK OF LOSS: Should the Property be materially damaged by fire or other
cause prior to closing, unless Buyer has taken possession prior to closing
by Agreement, this Agreement shall be voidable at the option of Buyer.
18. CONDITION OF PROPERTY AT CLOSING: Buyer agrees to purchase the Property in
as-is-condition, where is, with all faults. Buyer will assume all
obligations with respect to the Property. Seller shall maintain the
Property until the closing in its present condition, ordinary wear and tear
excepted, and loss by casualty.
19. INSPECTION: Buyer shall have the right to conduct inspections,
investigations, tests, surveys and other studies at Buyer's expense. Buyer
shall, within 7 business days of acceptance, complete these inspections and
give to Seller written notice of items disapproved of. Buyer is strongly
advised to exercise these rights and to make Buyer's own selection of
professionals with appropriate qualifications to conduct inspections of the
entire property. Buyer's acceptance of the condition of the property is a
contingency of this Agreement. Buyer chooses to have inspection.
SATISFACTION/REMOVAL OF INSPECTION CONTINGENCIES:
1. If Buyer does not within the strict time period specified give to
Seller written notice of items disapproved of, Buyer shall
conclusively be deemed to have: (a) completed all inspections,
investigations, review of applicable documents and disclosures; (b)
elected to proceed with the transaction and (c) assumed all liability,
responsibility and expense for repairs or corrections other than for
items with Seller has otherwise agreed in writing to repair or
correct.
2. If Buyer does within the strict time period specified give to Seller
written notice of items disapproved of, Buyer shall provide to Seller
pertinent section(s) of written inspection reports. Seller shall have
5 business days in which to respond in writing. The Seller, at their
option, may correct the items as specified by the Buyers in their
letter or may elect not to do so. If the Seller agrees to correct the
items asked for in the Buyers letter, then both parties agree that
they will continue with the transaction and proceed to closing. This
will remove the Buyers inspection contingency.
3. If the Seller elects not to correct the disapproved items, then the
Buyer has the option of either continuing the transaction without the
Seller being responsible for correcting these deficiencies or give the
Seller written notice within 5 business days that they will not
continue with the transaction and will receive their Xxxxxxx Money
back.
4. If Seller does not respond within the strict time period specified,
Buyer shall have the right to cancel this agreement in writing.
5. If Buyer does not give such written notice of cancellation within the
strict time periods specified, Buyer shall conclusively be deemed to
have elected to proceed with the transaction without repairs or
corrections other than for items which Seller has otherwise agreed in
writing to repair or correct. Seller shall make the property available
for all Inspections. Buyer shall keep the property free and clear of
liens; indemnify and hold Seller harmless from all liability, claims,
demands, damages and costs; and repair any damages arising from the
Inspections. No Inspections may be made by any governmental building
or zoning inspector or government employee without the prior consent
of Seller, unless required by local law.
20. ANNEXATION AND CITY SERVICES: The property is located in the city limits
now.
21. ENTIRE AGREEMENT: This Agreement, including any Addendums or exhibits,
constitutes the entire Agreement between the parties and no warranties,
including any warranty of habitability, Agreements or representations have
been made or shall be binding upon either party unless herein set forth.
22. TIME IS OF THE ESSENCE IN THIS AGREEMENT.
23. REPRESENATION CONFIRMATION: The broker working with the Buyer is acting as
an Agent for the Buyer. The broker working with the Seller is acting as a
nonagent for the seller. Each party signing this document confirms that he
or she has received read and understood the Agency Disclosure Brochure and
has elected the relationship confirmed above. In addition, each party
confirms that the broker's agency office policy was made available for
inspection and review. EACH PARTY UNDERSTANDS THAT HE OR SHE IS A
"CUSTOMER" AND IS NOT REPRESENTED BY A BROKER UNLESS THERE IS A SIGNED
WRITTEN AGREEMENT FOR AGENCY REPRESENTATION. Each party signing this
document understand that the above confirmation DOES NOT create an agency
relationship between the Broker and the Buyer and Seller and they are a
CUSTOMER and NOT REPRESENTED by a Broker UNLESS there is a SEPARATE signed
written agreement as required by Idaho Statute to create that relationship.
24. AUTHORITY OF SIGNATORY: If Buyer or Seller is a corporation, partnership,
trust, estate, or other entity, the person executing this agreement on its
behalf warrants his or her authority to do so and to bind Buyer and Seller.
25. ACCEPTANCE: Buyer's offer is made subject to the acceptance of Seller on or
before September 4, 2003 at 5:00 p.m. If Seller does not accept this
Agreement within the time specified, the entire Xxxxxxx Money shall be
refunded to Buyer on demand.
26. BUYER'S SIGNATURES: I/We further acknowledge receipt of a true copy of this
Agreement.
SEE ATTACHED BUYER'S ADDENDUMS: 1,2,3,4
Buyer Signature /s/ Xxxxx Xxxxxxx
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Real Estate Investment #I, LLC, and or Assignees
September 3, 2003
27. SELLERS SIGNATURES: On this date, I/We hereby approve and accept the
transaction set forth in the above Agreement and agree to carry out all the
terms thereof on the part of the Seller. I/We further acknowledge receipt
of a true copy of this Agreement signed by both parties.
SIGNATURES SUBJECT TO THE ATTACHED ADDENDUMS: 1 to 4
Seller Signature /s/ Xxxxx X. Xxxx
Extended Systems of Idaho, Incorporated
September 3, 2003
ADDENDUM/AMENDMENT #1
This is an ADDENDUM to the Real Estate Purchase and Sale Agreement and Receipt
for Xxxxxxx Money.
Xxxxxxx Money Dated: September 3, 0000 XX # XXX#0000-0000
ADDRESS: 0000 X. Xxxxxx Xxx. Xxxxx, XX 00000
BUYER: Xxxxxxx Real Estate Investment #I, LLC. and/or Assignees
SELLER: Extended Systems of Idaho, Incorporated and/or Assignees
The undersigned Parties hereby agree as follows:
1) Xxxxx Xxxxxxx is a licensed real estate broker in the State of Idaho and a
managing member of the purchasing LLC.
2) Buyer will disburse directly to the seller $10,000.00 of non-refundable and
applied toward the purchase xxxxx xxxxxxx money after receipt of the
seller's signed acceptance of this agreement.
3) This offer is contingent upon the Seller paying for, assigning, and
delivering the following original reports on or before September 4, 2003
for the buyer's written review and approval on or before September 10,
2003: Legal Description/Plat map of the 7.74 acres and any lien waivers
and/or receipts from recent tenant improvements to the building.
4) The seller agrees to pay for all closing costs incurred from the closing of
this transaction (I.E.: Standard Owners Policy, All Closing Fees, and a
3.0% ($144,000.00) R.E. Commission Payable to Xxxxxxx Financial Services,
Inc.).
5) This agreement is subject to the Seller's approval of obtaining both a Lot
Split and Release from Skyline Corporation.
6) Buyer and Seller agree to record the Option at the Ada County's recorder's
office using the property's legal description that will be provided within
the agreement.
7) Upon removal of all contingencies on September 10, 2003, the buyer agrees
to disburse directly to the seller an additional $25,000 of non-refundable
and applied toward the purchase xxxxx xxxxxxx money to the seller.
The herein agreement upon its execution by both parties, is made an integral
part of the aforementioned Agreement.
/s/ Xxxxx Xxxxxxx
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Buyer
September 3, 2003
/s/ Xxxxx X. Xxxx
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Seller
September 3, 2003
ADDENDUM/AMENDMENT #2
This is an ADDENDUM to the Real Estate Purchase and Sale Agreement and Receipt
for Xxxxxxx Money.
Xxxxxxx Money Dated: September 3, 0000 XX # XXX#0000-0000
ADDRESS: 0000 X. Xxxxxx Xxx. Xxxxx, XX 00000
BUYER: Xxxxxxx Real Estate Investment #I, LLC. and/or Assignees
SELLER: Extended Systems of Idaho, Incorporated and/or Assignees
The undersigned Parties hereby agree as follows:
This offer is subject to and contingent upon the buyer's written approval of the
following on or before September 10, 2003 or this offer is null and void:
1) The buyer obtaining an investment group to purchase seller's property.
2) Upon closing, the Seller simultaneously agrees to sign/execute a triple net
master lease of the property for 10-year from the Buyer. (For example:
Based upon the sales price of $4,800,000.00, the Seller agrees to triple
net master lease the building for 10-years at $441,600.00 [$36,800.00
Monthly]). See Addendum #3 for the additional terms and conditions of the
Triple Net Master Lease.
3) Upon closing, the buyer simultaneously agrees to grant the Seller/Lessee, a
10-year Option to Purchase the property back. See Addendum #4 for the terms
and conditions.
4) Both the Buyer's and Seller's Legal Counsel's review and approval of the
Purchase and Sale Agreement, Lease, and Option to Buy Documents. Seller
acknowledges that they are in receipt of these documents for their legal
counsels review and approval.
The herein agreement upon its execution by both parties, is made an integral
part of the aforementioned Agreement.
/s/ Xxxxx Xxxxxxx
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Buyer
September 3, 2003
/s/ Xxxxx X. Xxxx
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Seller
September 3, 2003
ADDENDUM/AMENDMENT #3
This is an ADDENDUM to the Real Estate Purchase and Sale Agreement and Receipt
for Xxxxxxx Money.
Xxxxxxx Money Dated: September 3, 0000 XX # XXX#0000-0000
ADDRESS: 0000 X. Xxxxxx Xxx. Xxxxx, XX 00000
BUYER: Xxxxxxx Real Estate Investment #I, LLC. and/or Assignees
SELLER: Extended Systems of Idaho, Incorporated and/or Assignees
The undersigned Parties hereby agree as follows:
Buyer/Lessor and Seller/Lessee agree to the following terms and conditions of
the triple net master lease. The master lease will be prepared by the buyer's
attorney and will be available for both the seller and their legal counsel's
review and approval on or before September 10, 2003:
1) A triple net master leasing the property at a 9.2% Lease Rate with the
Lessee's ability to Sub-Lease the property to other tenants.
2) The Lessee will be responsible for ALL property expenses, including but not
limited to taxes, insurance, exterior & interior maintenance, grounds
maintenance of landscaping, snow removal, asphalt maintenance, etc...
3) Proper notification to Lionbridge as to the change of ownership. Proper
acknowledgement from all parties including Lionbridge of the triple net
leaseback to Extended Systems Inc. from the new owner. Upon closing,
Lionbridge's existing lease will become a sub-lease with Extended Systems
of Idaho, Inc.
The herein agreement upon its execution by both parties, is made an integral
part of the aforementioned Agreement.
/s/ Xxxxx Xxxxxxx
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Buyer
September 3, 2003
/s/ Xxxxx X. Xxxx
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Seller
September 3, 2003
ADDENDUM/AMENDMENT #4
This is an ADDENDUM to the Real Estate Purchase and Sale Agreement and Receipt
for Xxxxxxx Money.
Xxxxxxx Money Dated: September 3, 0000 XX # XXX#0000-0000
ADDRESS: 0000 X. Xxxxxx Xxx. Xxxxx, XX 00000
BUYER: Xxxxxxx Real Estate Investment #I, LLC. and/or Assignees
SELLER: Extended Systems of Idaho, Incorporated and/or Assignees
The undersigned Parties hereby agree as follows:
The terms of the Option to buy back the building for the lessee/seller -
(Extended Systems) from the buyer/lessor are as follows:
1) This Option can be exercised at any time after the closing date and
10-years thereafter by the Lessee/Buyer (Extended Systems, Inc.), by
delivering proper written notice to purchase to the Lessor/Seller at Xxx
000; Xxxxxxxx, Xx 00000. If said notice to exercise such option is not
received in accordance with the terms of the 10-year option, the Option to
Purchase Agreement becomes Null and Void.
2) Upon exercise of the Option to Purchase the Lessor/Seller agrees to pay the
following closing costs: Standard Owners Title Insurance Policy, and
one-half of the closing fee. The balance of the closing expenses will be
paid by the lessee/buyer (Extended Systems, Inc.).
3) The option to purchase price is as follows $5,100,000.00.
4) It is understood that no party to the option will be obligated to pay
and/or collect any commissions or fees upon exercise of the Option.
The herein agreement upon its execution by both parties, is made an integral
part of the aforementioned Agreement.
/s/ Xxxxx Xxxxxxx
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Buyer
September 3, 2003
/s/ Xxxxx X. Xxxx
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Seller
September 3, 2003
ADDENDUM/AMENDMENT #5
This is an ADDENDUM to the Real Estate Purchase and Sale Agreement and Receipt
for Xxxxxxx Money.
Xxxxxxx Money Dated: September 3, 0000 XX # XXX#0000-0000
ADDRESS: 0000 X. Xxxxxx Xxx. Xxxxx, XX 00000
BUYER: Xxxxxxx Real Estate Investment #I, LLC. and/or Assignees
SELLER: Extended Systems of Idaho, Incorporated and/or Assignees
The undersigned Parties hereby agree as follows:
1) The buyer will have until September 19, 2003 to formally remove all
contingencies in writing.
2) The seller acknowledges receipt of the additional $25,000.00 Non-Refundable
Xxxxxxx Money, which will be applied towards the purchase price.
3) The buyer formally assigns the Xxxxxxx Money Agreement to Xxxxxxx Financial
Real Estate Investments, LLC., an Idaho Limited Liability Company.
4) All other terms and conditions of the original contract are to remain the
same.
The herein agreement upon its execution by both parties, is made an integral
part of the aforementioned Agreement.
/s/ Xxxxx Xxxxxxx
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Buyer
September 9, 2003
/s/ Xxxxx X. Xxxx
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Seller
September 9, 2003
