EXHIBIT 10.12
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is made effective as
of the 10th day of October, 1995, by and between NORTHLAND LAND COMPANY OF
ARIZONA, INC., a Minnesota corporation ("Seller"), and APOLLO GROUP, INC.,
an Arizona corporation ("Buyer").
RECITALS
A. Seller is the owner of certain real property located in Maricopa County,
Arizona, commonly referred to as Lots 4, 5 and a portion of Lot 6 of
Southbank, as more particularly described on Exhibit "A" attached hereto
(the "Property").
B. Seller desires to sell to Buyer, and Buyer desires to acquire from
Seller, the Property, subject to and in accordance with the terms,
covenants and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, the terms,
covenants and conditions contained herein, and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Agreement of Purchase and Sale. At the Closing (as defined in Paragraph
5.(c)) Seller shall sell to Buyer and Buyer shall buy from Seller, all of
Seller's right, title and interest in and to the Property, subject to the
terms, covenants and conditions of this Agreement.
2. Sales Price. The sales price (the "Sales Price") to be paid to Seller
for the Property shall be Two Million Nine Hundred Sixty-Three Thousand
Nine Hundred and Eight and 50/100 Dollars ($2,963,908.50) payable as
follows:
(a) Xxxxxxx Money. Contemporaneously with the execution of this
Agreement, Buyer shall deliver directly to Escrow Agent (as defined
in Paragraph 5.(a)) the sum of One Hundred Thousand Dollars
($100,000) in cash, cashier's check, or other immediately available
funds (the "First Deposit"). If Buyer has not canceled this
Agreement pursuant to its terms by such time, on or before the
Feasibility Expiration Date (as defined in Paragraph 4.(d)), Buyer
shall deliver directly to Escrow Agent the sum of One Hundred Fifty
Thousand Dollars ($150,000) in cash, cashier's check or other
immediately available funds (the "Additional Deposit"). If the
Escrow closes, the First Deposit and the Additional Deposit
(collectively, the "Xxxxxxx Money") shall be credited against the
Sales Price due from Buyer at the Closing. Except as otherwise
provided herein, the Xxxxxxx Money shall be non-refundable to Buyer.
(b) Credit in Lieu of Commission. In lieu of the payment by Seller of
a real estate broker's commission on behalf of Buyer, Buyer shall be
entitled to a credit against the sales price due from Buyer at the
Closing in the amount of three percent (3%) of the Sales Price.
(c) Cash at Closing. At or before the Closing, Buyer shall deposit
with Escrow Agent the balance of the Sales Price in cash, cashier's
check or by wire transfer of funds into the account of Escrow Agent.
(d) Interest on Deposits. The Xxxxxxx Money deposited by Buyer shall
be placed by Escrow Agent in a federally insured interest bearing
account or certificate of deposit, subject to immediate withdrawal
without penalty, with a bank acceptable to Buyer and Seller. If the
Escrow closes, all of the Xxxxxxx Money and all interest accrued
thereon, shall be credited against the Sales Price and shall be paid
to Seller. If the Escrow does not close, the party entitled to the
Xxxxxxx Money upon termination shall also be entitled to all
interest accrued thereon.
3. [INTENTIONALLY OMITTED]
4. Contingencies. The obligation of Buyer to buy the Property pursuant to
this Agreement, unless otherwise waived in writing by Buyer, shall be
conditioned upon the satisfaction of each of the following contingencies
(collectively, the "Contingencies"):
(a) Title Review. As soon as possible following the Escrow Opening
Date, Seller, at its sole cost, shall cause Escrow Agent to provide
Buyer with a current preliminary title report of the Property (the
"Title Report") leading to the issuance of an extended coverage
policy of title insurance in the amount of the Sales Price insuring
Buyer's interest in the Property, together with legible (if
available) copies of all instruments of record referred to on
Schedule B thereof. Buyer shall have until 5:00 p.m., Phoenix time,
on the twentieth (20th) day after the Escrow Opening Date to review
and approve the Title Report. If Buyer fails to disapprove in
writing the status of title by giving notice (specifically
identifying its objections) to Seller and Escrow Agent on or before
such date, Buyer shall be deemed to have approved the status of
title to the Property, and this Contingency shall be deemed to have
been satisfied. If Buyer timely objects to any matter disclosed by
the Title Report by giving written notice to Seller and Escrow Agent
on or before such date, Seller, without obligation or liability, may
attempt to remove or secure endorsements against the matters
objected to by Buyer. If Seller does not cure or agree in writing to
cure Buyer's objections by the Feasibility Expiration Date, Buyer
may cancel this Agreement and Escrow by giving written notice
thereof to Seller and Escrow Agent prior to the end of the
Feasibility Expiration Date, in which case this Agreement and the
Escrow shall terminate, the Xxxxxxx Money (and all interest earned
thereon) shall be returned to Buyer, and thereafter neither Buyer
nor Seller shall have any further obligation or liability under this
Agreement. If, subsequent to the Feasibility Expiration Date,
Escrow Agent issues any amendment to the Title Report disclosing any
additional title matters or material modifications to the previously
disclosed title matters, then Buyer shall be entitled to object to
any such matter disclosed on the amended Title Report by delivering
written notice of such objection to Seller and Escrow Agent on or
before five (5) business days after Escrow Agent has delivered to
Buyer the amendment to the Title Report together with legible (if
available) copies of all recorded documents disclosed for the first
time in such amendment. If Buyer fails to give notice of objection
to any matter set forth in any amendment to the Title Report within
the relevant time period described above, Buyer shall be
conclusively deemed to have approved such matter(s). If Buyer
timely delivers a notice of objection specifying in reasonable
detail its objection to any new matter(s) contained in the amendment
to the Title Report, Seller may, but shall not be obligated to,
attempt to cure the matter(s) objected to by Buyer. If Seller
elects to attempt to cure Buyer's objections, Seller shall notify
Buyer within five (5) business days following Seller's receipt of
Buyer's objection. If Seller fails to so notify Buyer within such
five (5) business day period, Seller shall be deemed to have elected
not to attempt to cure Buyer's objections. If Seller notifies Buyer
and Escrow Agent of its unwillingness, or inability, to cure such
objections, or fails to elect to cure such objections, then Buyer
shall, within five (5) business days following receipt of such
notice, or within five (5) business days after Seller's deemed
election not to cure, as applicable, elect to either (i) waive the
matters previously objected to by delivering written notice to
Seller and Escrow Agent and thereafter close the transaction
contemplated hereby in accordance with the terms hereof taking title
subject to all such matters waived by Buyer, or (ii) terminate this
Agreement by written notice to Seller and Escrow Agent, and upon
timely receipt of such notice, the Xxxxxxx Money shall be returned
to Buyer, this Agreement shall terminate, and thereafter neither
party shall have any further obligations or liabilities hereunder.
If Seller attempts to cure the matters objected to by Buyer, but
Seller is unable to cure such matters to Buyer's reasonable
satisfaction prior to the date which is five (5) days after Seller
notifies Buyer of its election to attempt to cure the objectionable
matters, Buyer may then elect to either (i) waive the matters
previously objected to by delivering written notice to Seller and
Escrow Agent and thereafter close the transaction taking title
subject to all such matters waived by Buyer, or (ii) terminate this
Agreement and the Escrow by written notice to Seller and Escrow
Agent delivered by 5:00 p.m., Phoenix time, on the date which is
five (5) business days after the date by which Seller was to have
cured the objectionable matters, and upon timely receipt of such
notice, the Xxxxxxx Money shall be returned to Buyer, this Agreement
and the Escrow shall terminate and thereafter neither party shall
have any further obligation or liability hereunder. In both
instances described above, if Buyer fails to timely notify Seller of
Buyer's election to either waive its objections and close this
transaction or terminate this Agreement, Buyer shall be deemed to
have elected to waive its objections and close this transaction. If
the operation of the various notice and cure periods described above
conflict with the then scheduled Closing Date, the Closing Date
shall be extended to the date that is two (2) business days after
the expiration of any applicable notice and cure periods. The
matters affecting title which are approved or deemed approved by
Buyer pursuant to this Paragraph 4.(a) shall be hereafter referred
to as the "Permitted Title Exceptions". Notwithstanding the above,
it is understood and agreed that the Property shall be conveyed to
Buyer free and clear of all monetary liens and encumbrances. Seller
shall cause, at Seller's expense, all monetary liens and
encumbrances to the released from the Property on or before Closing.
In addition, prior to the Closing, except as otherwise provided
below, Seller shall not, by its action or failure to take action,
allow the creation of any lien, encumbrance, easement, or
restriction on the Property or other matter that would affect title
to the Property. Notwithstanding the foregoing, Buyer understands
and acknowledges that, during the pendency of the Escrow, Buyer
intends to create a sign easement for the Project in the vicinity of
the southwest corner of Lot 4. Within twenty (20) days after the
Escrow Opening Date, Seller shall provide to Buyer a survey of the
Property identifying the location of the proposed sign easement. If
Buyer fails to terminate this Agreement on or before the Feasibility
Expiration Date, Buyer shall be deemed to have approved the location
of the sign easement, and such sign easement shall be deemed a
Permitted Title Exception.
(b) Environmental and Soil Condition Assessment. Seller hereby
authorizes Buyer and Buyer's engineers and/or other experts, at
Buyer's sole cost and expense, to go upon the Property at any
reasonable times for the purpose of conducting an environmental and
soil condition site assessment and appropriate tests thereof. Buyer
shall fill all holes produced by it and substantially restore the
Property to its condition prior to such tests. Furthermore, Buyer
agrees to indemnify, defend and hold harmless Seller for, from and
against all claims and liabilities for personal injury, physical
damage to property or mechanics' or materialmen's liens which may be
asserted against Seller or the Property as a result of any such
entry by Buyer, its agents or designees, except for claims and
liabilities resulting from Seller's negligence or intentional
misconduct. To assist Buyer with its assessment, as soon as
possible following the Escrow Opening Date Seller will provide to
Buyer a spiral-bound Information Booklet labeled Environmental
Conditions at Southbank which includes, among other things, a letter
dated July 1, 1991 from the law offices of Xxxxx & Xxxxxx to Xx.
Xxxx Xxxxxx and a copy of the environmental site assessment
pertaining to the Property prepared by Basin & Range (collectively,
the "Environmental Information Booklet"). Seller will also provide
Buyer reasonable access to soils reports, studies or written
information that Seller has in its possession or to which Seller has
reasonable access concerning the nature and origin of the fill
material placed on the Property, the method of compaction, or soil
conditions generally on the Property. Notwithstanding anything to
the contrary contained in this Agreement, the covenants contained in
this paragraph shall be continuing and shall survive the Closing or
termination of this Agreement. Buyer shall have until 5:00 p.m.,
Phoenix time, on the twentieth (20th) day after the Escrow Opening
Date, to review and approve the environmental condition of the
Property. If Buyer fails to disapprove in writing the environmental
condition of the Property by giving notice (specifically identifying
its objections) to Seller and Escrow Agent on or before such date,
Buyer shall be deemed to have approved the environmental condition
of the Property and this Contingency shall be deemed to have been
satisfied. If Buyer timely objects to any matter disclosed by its
environmental or soil condition site assessment by giving written
notice to Seller and Escrow Agent on or before the twentieth day
after the Escrow Opening Date, Seller, without obligation or
liability, may attempt to cure the matters objected to by Buyer. If
Seller does not cure or agree in writing to cure Buyer's objections
by the Feasibility Expiration Date, Buyer may cancel this Agreement
and Escrow by giving written notice thereof to Seller and Escrow
Agent prior to the end of the Feasibility Expiration Date, this
Contingency shall be deemed to have failed, and this Agreement and
the Escrow shall terminate, the Xxxxxxx Money (and all interest
earned thereon) shall be returned to Buyer, and thereafter neither
Buyer nor Seller shall have any further obligation or liability
under this Agreement.
(c) General Feasibility Study. Until the Feasibility Expiration Date,
Buyer may conduct feasibility studies with respect to the Property
including without limitation, physical site inspections and
drainage, environmental, soils, marketability and economic
feasibility studies. Seller hereby authorizes Buyer and Buyer's
engineers and/or other experts, at Buyer's sole cost and expense, to
go upon the Property at any reasonable times for the purpose of
making appropriate inspections tests thereof. Buyer agrees to
indemnify, defend and hold harmless Seller for, from and against all
claims and liabilities for personal injury, physical damage to
property or mechanics' or materialmen's liens which may be asserted
against, or suffered by, Seller or the Property as a result of any
such entry by Buyer, its agents or designees, except for the claims
and liabilities arising from Seller's negligence or intentional
misconduct. Notwithstanding anything to the contrary contained in
this Agreement, the covenants contained herein shall be continuing
and shall survive the termination of this Agreement. If Buyer
believes, in its sole and absolute discretion, that, on the basis of
any matters disclosed by its feasibility study, the Property is not
completely suitable for Buyer's purposes, or if for any other reason
Buyer believes in Buyer's sole and absolute judgment that the
Property is unacceptable, Buyer shall be entitled to terminate this
Agreement by written notice to Seller and Escrow Agent delivered
before the Feasibility Expiration Date, whereupon the Xxxxxxx Money
(and all interest xxxxxxx thereon) shall be returned to Buyer, the
Agreement shall terminate, and thereafter neither party shall have
any further obligation or liability hereunder. Upon the written
request of Buyer received prior to the Feasibility Expiration Date,
Seller agrees to provide to Buyer within forty-eight (48) hours
following request, to the extent available, of any additional
documents, materials or information requested by Buyer in connection
with its feasibility studies of the Property.
(d) Feasibility Expiration Date. For purposes of this Agreement, the
"Feasibility Expiration Date" shall be the first business day that
is thirty (30) days after the Escrow Opening Date.
(e) Lot Membership Agreement. Buyer understands and acknowledges that,
because it is acquiring a portion of Lot 6, it is necessary to
allocate the total votes in the Association allocated to Lot 6 to
that portion of Lot 6 being acquired by Buyer and the remaining
portion of Lot 6. Buyer understands that the allocation will be
based on a pro rata allocation based on the total square footage
contained in the portion of Lot 6 being acquired as compared to the
total square footage contained in Lot 6. At least twenty (20) days
prior to the Feasibility Expiration Date, Seller shall provide to
Buyer, for its review and approval, a modified form of Lot
Membership Agreement in substantially the form attached hereto as
Exhibit "D". If Buyer fails to terminate this Agreement on or
before the Feasibility Expiration Date, Buyer shall be deemed to
have approved the form of Lot Membership delivered to it by Seller.
5. The Escrow.
(a) Escrow Instructions. Buyer and Seller shall establish an escrow
(the "Escrow") with Transamerica Title Insurance Company, 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxx
Xxxxx (the "Escrow Agent") to facilitate the consummation of the
transaction contemplated by this Agreement. The standard form
escrow instructions of Escrow Agent (the "Instructions"), modified
and attached hereto as Exhibit "B", together with the provisions of
this Agreement applicable to Escrow Agent, shall together constitute
Escrow Instructions between Seller, Buyer and Escrow Agent. If any
conflict or inconsistency exists between the provisions of the
Instructions and this Agreement or any deed, instrument or document
executed or delivered in connection with the transaction
contemplated hereby, the provisions of this Agreement, or such deed,
instrument or document shall control in resolving such conflict or
inconsistency.
(b) Escrow Opening Date. The parties agree that the date Escrow Agent
acknowledges receipt of a fully signed copy (or signed counterparts)
of this Agreement and the Xxxxxxx Money shall constitute the opening
of escrow (the "Escrow Opening Date"). Escrow Agent shall inform
Buyer and Seller in writing of the Escrow Opening Date.
(c) Closing. The consummation of the transaction contemplated hereby
(the "Closing") shall occur at the office of Escrow Agent at 10:00
a.m. on the date that is 15 days after the Feasibility Expiration
Date. Escrow Agent shall inform Buyer and Seller in writing of the
date set for the Closing.
(d) Action at the Closing by Seller. On or before the Closing, and as
a condition to Buyer's obligations hereunder, Seller shall deliver
or cause to be delivered to the Escrow Agent all of the following
instruments dated as of the Closing Date, fully executed and
acknowledged by Seller as appropriate:
(i) The Special Warranty Deed to the Property in the form
attached hereto as Exhibit "C";
(ii) An Affidavit of Property Value as required by law;
(iii) An appropriate Affidavit of Non-Foreign Person;
(iv) The Lot Membership Agreement in the form agreed upon on or
before the Feasibility Expiration Date; and
(v) Such other instruments, or documents as may be reasonably
necessary to fulfill the covenants and obligations to be
performed by Seller pursuant to this Agreement.
(e) Action at the Closing by Buyer. On or before the Closing, and as a
condition to Seller's obligations hereunder, Buyer shall deliver or
cause to be delivered to Escrow Agent all of the following, and with
respect to any instruments or documents referred to below, all such
items shall be dated as of the Closing Date, fully executed and
acknowledged by Buyer as appropriate:
(i) All funds referred to in Paragraph 2 necessary to pay the
Sales Price together with all other sums to be paid by Buyer
as required by the provisions of this Agreement;
(ii) An Affidavit of Property Value as required by law;
(iii) The Lot Membership Agreement in the form agreed upon on or
before the Feasibility Expiration Date; and
(iv) Such other funds, instruments, or documents as may be
reasonably necessary to fulfill the covenants and obligations
to be performed by Buyer pursuant to this Agreement.
(f) Closing Costs. The Escrow fee payable to Escrow Agent in respect
of the conveyance of the Property shall be shared equally by the
parties. Unless otherwise provided in this Agreement, all other
fees, recording costs, charges or expenses incidental to the sale of
the Property shall be paid according to the standard custom and
practice of Escrow Agent.
(g) Real Estate Taxes and Assessments; Southbank Owners' Association.
Buyer shall receive a credit for all accrued real estate taxes
which, as of the Closing Date, remain unpaid. Real estate taxes
which are due but not yet delinquent shall be prorated through
Escrow between Seller and Buyer as of the Closing Date based upon
the latest available information and on the basis of a thirty (30)
day month. If as of the Closing Date the actual amount of real
estate taxes for the year in which the Closing Date occurs has not
been fixed, then Escrow Agent shall prorate based on the prior
year's assessment and as soon as the actual tax amount becomes
known, the parties shall, outside of Escrow, adjust the estimated
proration of real estate taxes based upon actual information. As of
the Closing Date, the obligation to pay any taxes which are not yet
due and payable shall be assumed and, following the Closing Date,
paid by Buyer. Seller shall pay all general and special assessments
which are a lien against the Property as of the Closing Date.
Because the property tax statement for the Property likely will
include other adjoining real property owned by Seller (the remaining
portion of Lot 6), real estate taxes in respect of Lot 6 shall be
prorated based on an allocation of the parties' respective
percentage ownership ratio (determined on a gross acreage basis) of
the applicable tax parcel(s) within which all or any portion of Lot
6 is included. All assessments levied by the Southbank Property
Owners' Association, an Arizona nonprofit corporation (the
"Association") shall be prorated through Escrow between Seller and
Buyer as of the Closing Date on the basis of a thirty (30) day
month. Buyer acknowledges that, as the owner of the Property, it
shall be responsible for all assessments assessed against the
Property after the Closing. Buyer understands that Lot 6 is
currently allocated six (6) memberships in the Association; however,
at the Closing, Buyer and Seller shall cause the Lot Membership
Agreement in the form attached hereto as Exhibit "D" to be recorded
against the Property for the purpose of reflecting that one and one-
tenth (1.1) of the votes attributable to a membership in the
Association is attributable to the portion of Lot 6 to be acquired
by Buyer pursuant to this Agreement, and the other four and nine-
tenths (4.9) votes attributable to the membership are attributable
to the remaining portion of Lot 6. The Property shall be assessed a
proportionate amount of all assessments based upon a fraction, the
numerator of which is the number of votes in the Association
attributable to the Property, and the denominator of which is the
total number of votes available to all members of the Association.
(h) Owner's Insurance Policy. At the Closing, Seller shall cause
Escrow Agent to deliver to Buyer an extended coverage policy of
title insurance issued by Escrow Agent or its principal, or the
unconditional commitment of the title insurer to issue such policy,
insuring title to the Property in Buyer in the amount of the Sales
Price, the policy to be subject to the usual printed exclusions,
exceptions, conditions and stipulations set forth in the printed
form policy, the Permitted Title Exceptions and such other matters
approved in writing by Buyer or resulting from Buyer's actions.
Seller shall only be responsible for paying the portion of the title
insurance premium relating to standard owner's coverage; Buyer shall
pay the additional portion of the premium and any other costs
relating to extended coverage, and the cost of any endorsements
request by Buyer. Notwithstanding anything to the contrary
contained in this Agreement, Seller shall have no obligation to
satisfy any title company requirements associated solely with the
issuance of an extended coverage policy, except as relates to
parties in possession or mechanic's liens not caused by Buyer.
Additionally, concurrently with the issuance of the owner's policy
of title insurance to Buyer, Escrow Agent shall issue to Seller, at
Buyer's expense (not to exceed $200), an extended coverage owners
policy of title insurance in the amount of the Sales Prices insuring
Seller that, immediately prior to the recordation of the Special
Warranty Deed to Buyer, title to the Property is vested in Seller
subject only to the specific items described on Exhibit "B" attached
to the Special Warranty Deed and any such other matters described in
the subject to clause of the Special Warranty Deed.
6. Representations and Warranties of Buyer. Buyer acknowledges, represents
and warrants to Seller that the following are true as of the date of this
Agreement and will be true as of the Closing Date, and in entering into
this Agreement Seller is relying upon, the following:
(a) Due Organization, Etc. Buyer is a corporation duly incorporated
and validly existing and in good standing under the laws of the
state of its incorporation. Buyer has taken all necessary action to
duly authorize the transaction contemplated by this Agreement and
Buyer's execution and delivery of all documents required herein, and
its performance hereunder. Buyer's execution and delivery of this
Agreement, and the consummation of the transaction contemplated and
required hereby, will not result in any violation of, or default
under the Articles of Incorporation or Bylaws of Buyer or any term
or provision of any agreement, instrument, mortgage, loan agreement
or similar document to which Buyer is a party or by which Buyer is
bound. Buyer further represents that it is not a partner or joint
venturer with Seller in connection with the transactions
contemplated by this Agreement, and that it is entering into this
Agreement and any other contract, instrument and document
contemplated hereby, voluntarily and solely for its own profit and
benefit.
(b) No Litigation. There is no litigation, investigation or proceeding
pending or, to the best of Buyer's knowledge, contemplated or
threatened against Buyer which would impair or adversely affect
Buyer's ability to perform its obligations under this Agreement or
any other instrument or document related hereto.
(c) No Warranties. Except as expressly provided in this Agreement,
Seller, its employees, agents, representatives and attorneys have
not made, nor has Buyer relied on, any representations, warranties,
guarantees, or promises, oral or written, regarding the condition of
the Property, or the suitability of the Property for Buyer's
intended use or any other use. Buyer further acknowledges that any
information provided it with respect to the Property was obtained
from a variety of sources and that, except as expressly provided in
this Agreement, Seller (i) has not made any independent
investigation or verification of such information; and (ii) does not
make any representations as to the accuracy or completeness of such
information.
(d) Interstate Land Sales Full Disclosure Act. To qualify for
exemption from the Interstate Land Sales Full Disclosure Act (the
"Act"), Buyer represents and warrants that: (i) Buyer is a validly
existing corporation; (ii) Buyer is purchasing the Property for its
own use and development and is acquiring the Property for commercial
purposes; (iii) Buyer has been represented in the negotiations
regarding the subject purchase by a representative of its own
choosing; and (iv) to Buyer's knowledge, without any duty of
inquiry, Buyer believes and intends that this transaction is exempt
from the Act.
(e) Planning. Buyer hereby acknowledges that the Property is a part of
a larger parcel which has been planned for development by Seller and
is known as Southbank. Seller has not made, and Buyer is not
relying on, any representations or warranties pertaining to the
larger parcel and/or the planned development thereof, except as may
otherwise be agreed upon in a written Amendment of this Agreement.
(f) Southbank Property Owner's Association. Buyer hereby acknowledges
that the governing body for the Southbank development is the
Association. Buyer understands and acknowledges that, prior to
commencing the construction of any improvements on the Property,
Buyer must first submit plans to, and obtain the approval of the
Architectural Development Control Committee of the Association. On
or before the date of this Agreement, Buyer has received a copy of
the Southbank Development Guidelines.
7. Representations and Warranties of Seller. Seller acknowledges,
represents and warrants to Buyer that the following are true as of the
Agreement Date and will be true as of the Closing Date, and in entering
into this Agreement Buyer is relying upon, the following:
(a) Due Organization, Etc. Seller is a duly organized and validly
existing corporation, and is qualified to do business in the State
of Arizona. The transactions contemplated by this Agreement and the
execution and delivery of all documents required herein, and its
performance hereunder have been duly authorized by Seller's Board of
Directors. The execution and delivery of this Agreement and any
other document required herein and the consummation of the
transactions contemplated hereby and thereby will not result in any
violation of, or default under, the Articles of Incorporation by
Bylaws of Seller or any term or provision of any agreement,
instrument, mortgage, loan agreement or similar document to which
Seller is a party of or by which Seller is bound.
(b) No Litigation. There is no litigation, investigation or proceeding
pending or, to the knowledge of Seller, contemplated or threatened
against Seller or the Property which would impair or adversely
affect Seller's ability to perform its obligations under this
Agreement or under any contract, instrument or document related
hereto or, to Seller's knowledge, would materially and adversely
affect the developments of the Property for commercial office use.
(c) Foreign Person. Seller is not a Foreign Person as such term is
defined under section 1445 of the Internal Revenue Code of 1986, as
amended (the "Code").
(d) Environmental and Soil Condition. Seller has no actual knowledge
(without having made any investigation or inquiry) based only on its
limited investigation described in Paragraph 4.(b)) of the
existence of any hazardous substances or adverse environmental or
soil conditions affecting the Property which are not disclosed in
the documentation provided to Buyer or to which Buyer has been
allowed access. Seller has not, during its ownership of the
Property, released or discharged any hazardous substances on the
Property in violation of any applicable laws or regulations, but if
any such release or discharge of hazardous substances occurred
during such time period, Seller has caused the release or discharge
to be fully remediated in accordance with all applicable laws, rules
or regulations. For purposes of this Agreement, "hazardous
substances" shall mean (a) petroleum, asbestos, flammable
explosives, radioactive materials, hazardous wastes, toxic wastes,
and related materials identified as such in any applicable
provisions of Arizona state law; (b) the substances defined as
"hazardous substances", "hazardous materials", or "toxic substances"
in (i) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Article 9601, et seq.;
(ii) the Hazardous Material Transportation Act, 49 U.S.C. Article
1801, et seq.; (iii) the Reserve and Conservation Recovery Act, 42
U.S.C. Article 6901, et seq.; and the regulations adopted in
publications promulgated pursuant to said laws.
(e) No Violation. Seller has not received any written notice from any
governmental agency or authority having jurisdiction over the
Property advising Seller of the existence of, any violation of, or
any non-compliance with, any applicable environmental law statute,
regulation or ordinance in effect as of the date hereof, and Seller
has no actual knowledge, without having made any investigation or
inquiry, that the Property is not in compliance with any other
applicable laws and regulations or that any violations of such other
laws or regulations exist.
(f) No Condemnation. To Seller's knowledge, there are no existing or
threatened eminent domain, condemnation or similar proceedings
against or involving the Property.
(g) Governmental Agreements. Seller has no knowledge of any commitments
to or agreements with any governmental authority or agency (federal,
state or local) affecting the Property which have not been disclosed
by Seller to Buyer in writing.
(h) Contracts. There are no contracts, options, rights of refusal,
leases, licenses, or other arrangements or agreements affecting the
Property that are not recorded or which Seller has not disclosed to
Buyer in writing, and no person or entity has any right of
possession or occupancy in part of the Property.
8. Broker's Commission. Seller shall pay, pursuant to a separate
agreement, a real estate broker's commission to CB Commercial Real Estate
Group, Inc. ("Broker") in the amount of 3% of the Sales Price, but only
if, as and when Escrow closes. If for any reason the Closing does not
occur, Broker shall not be entitled to any compensation whatsoever.
Escrow Agent is hereby instructed and authorized to disburse the above-
referenced sums from Seller's proceeds directly out of Escrow upon the
occurrence of the Closing. Each party represents and warrants to the
other that it has not engaged or dealt with any other broker, agent,
finder or any other person who would be entitled to any brokerage,
advisory or finder's fees or commissions concerning the purchase of the
Property. Each party hereby agrees to indemnify and hold the other
entirely free and harmless on demand for, from and against any liability
or expense, including, without limitation, attorneys' fees, arising from
any claim by any broker, agent, finder or any other person for brokerage,
advisory or finder's fees or commissions, or any similar charges, because
of any act of such party or its representatives that results in a claim
by such person. Each party hereto further agrees to defend the other at
its sole cost and expense from any such claims.
9. Assignment. Buyer may assign or otherwise transfer all or any of its
rights under this Agreement or the Escrow to Buyer's assignee provided
that Buyer first delivers to Seller written notice of such assignment,
together with an executed copy of all documents pursuant to which such
assignee assumes all of Buyer's covenants and obligations under this
Agreement, and wherein such assignee agrees to be bound by all the terms,
conditions and provisions hereof and of any other documents executed by
Buyer in connection herewith. Any purported assignment of Buyer's rights
hereunder that does not comport with the foregoing shall be strictly
prohibited and shall be deemed void.
10. Seller's Remedies. If Buyer shall breach any of the terms or provisions
of this Agreement or otherwise defaults at or prior to the Closing,
Seller may, as its exclusive remedy, terminate this Agreement and retain
the Xxxxxxx Money (and all interest earned thereon) as liquidated
damages and as consideration for the acceptance of this agreement and for
taking the Property off the market, and not as a penalty. Buyer and
Seller acknowledge that it would be extremely difficult and impractical,
if not impossible, to ascertain with any degree of certainty the amount
of damages which would be suffered by Seller if Buyer fails to purchase
the Property in accordance with the terms or provisions of this
Agreement; accordingly, Buyer and Seller agree that the Xxxxxxx Money
(and all interest earned thereon) is a reasonable estimate of the damages
which Seller may suffer under the circumstances. Notwithstanding any
other terms or conditions of this Agreement, Buyer shall not be deemed to
be in default hereunder unless the breach or default complained of by
Seller has not been cured within five (5) days after written notice
thereof has been given to Buyer. Nothing contained in this Paragraph 10
shall limit or prevent Seller from enforcing Buyer's obligations and
liabilities which survive the Closing or a termination of this Agreement.
11. Buyer's Remedies. If Seller breaches any of the terms or provisions of
this Agreement or otherwise defaults hereunder, Buyer may either (i)
terminate this Agreement and the Escrow by written notice to Seller and
Escrow Agent, whereupon the Xxxxxxx Money (and all interest earned
thereon) shall be immediately returned to Buyer, this Agreement and the
Escrow shall terminate and thereafter neither party shall have any
further obligation or liability to the other hereunder; (ii) waive such
default and consummate the transaction contemplated hereby in accordance
with the terms or provisions hereof; or (iii) institute all proceedings
necessary to specifically enforce the terms or provisions of this
Agreement and cause title to the Property to be conveyed to Buyer; Buyer
hereby specifically waiving its right to seek monetary damages of any
kind for any default of Seller; provided however, that if Seller by its
intentional acts (such as sale of the Property) has rendered specific
performance impossible to enforce, Buyer shall have the right to an
action for damages against Seller. Notwithstanding any other terms or
conditions of this Agreement, Seller shall not be deemed to be in default
hereunder unless the breach or default complained of by Buyer has not
been cured within thirty (30) days after written notice thereof has been
given to Seller; however, if the breach or default cannot be reasonably
cured within thirty (30) days, then Seller shall have a reasonable period
of time to effectuate such cure so long as Seller has commenced such cure
with such thirty (30) day period and Seller thereafter diligently pursues
such cure to completion.
12. Waiver of Claims. Prior to the Closing Date, Buyer shall have made its
own examination, inspection and investigation of the condition of the
Property (including, without limitation, the subsurface thereof, all
soil, engineering and all other conditions which may affect construction
thereon) and all matters affecting the development thereof as it deems
necessary or appropriate. Except as expressly provided in this
Agreement, Buyer agrees that Seller shall not be responsible or liable to
Buyer for any conditions affecting the Property, as Buyer is purchasing
the Property AS-IS, WHERE-IS and WITH ALL FAULTS. Other than with
respect to claims arising from the breach of Seller's representations,
warranties and covenants contained in this Agreement, Buyer or anyone
claiming, by, through or under Buyer, hereby fully releases Seller, its
partners, its employees, officers, directors, representatives and agents
from any and all claims that it may now have or hereafter acquire against
Seller, its partners, its employees, officers, directors, representatives
and agents for any cost, loss, liability, damage, expense, demand, action
or cause of action arising from or related to the condition of the
Property except for claims arising as a result of the acts of Seller or
its partners, employees, representatives and agents after the Closing
which affects the condition of the Property. Buyer further acknowledges
and agrees that this release shall be given full force and effect
according to each of its expressed terms and provisions, including, but
not limited to, those relating to unknown and unsuspected claims, damages
and causes of action. This waiver and release of claims shall survive
the Closing.
13. Attorneys' Fees. If any action is brought by either party in respect of
its rights under this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees and court costs as determined by the court.
14. Successors and Assigns. Subject to Paragraph 9, this Agreement shall be
binding on and shall inure to the benefit of the parties hereto and their
respective heirs, executors, permitted assigns, successors and
representatives.
15. Entire Agreement; Amendment; Waiver. This Agreement, together with all
exhibits attached hereto, constitutes the entire Agreement between the
parties pertaining to the subject matter hereof and all prior and
contemporaneous agreements, representations and understandings of the
parties hereto, whether oral or written, are hereby superseded and merged
herein. The exhibits attached hereto are fully incorporated into this
Agreement, and any reference to "Agreement" shall also include all
exhibits. No supplement, modification or amendment of this Agreement
shall be binding unless in writing and executed by the parties hereto.
No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions, whether or not
similar, nor shall any waiver be a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
16. Governing Law. This Agreement and all documents, instruments and
agreements executed in furtherance hereof, shall be construed in
accordance with, and governed by, the laws of the State of Arizona.
17. Notices. All notices, requests, demands and other communications under
this Agreement to a party hereto or to Escrow Agent shall be in writing
and shall be sent and delivered (i) by the United States Postal Service,
postage pre-paid, certified, return receipt requested, or (ii) by any
nationally recognized overnight delivery service, or (iii) by courier or
in person, or (iv) by telephone facsimile transmission ("Fax"). All
notices shall be deemed to have been duly delivered and received on the
date of receipt if served personally or delivered by courier or overnight
mail, or sent by Fax, or two (2) business days following the date of
deposit of such notice in the United States mail. All notices shall be
properly addressed as follows:
To Seller: Northland Land Company of Arizona, Inc.
c/o Denro, Ltd.
0000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Fax No.: 000-000-0000
With a copy to: Xxxx X. Xxxxxxx, Esq.
O'Connor, Cavanagh, Anderson,
Westover, Xxxxxxxxxxxxx & Xxxxxxxx
Xxx Xxxx Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
000-000-0000
To Buyer: Apollo Group, Inc.
0000 Xxxx Xxxxxx Xxxxxx
P.O. Box 52069
Phoenix, Arizona 85072-2069
Attention: Xxxxxx X. XxXxxxxxx
Fax No.: 000-000-0000
With a copy to: Xxxxx X. Xxxxxx
Xxxxx & Xxxxxx
One Arizona Center
000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Fax No.: 000-000-0000
To Escrow Agent: Transamerica Title Insurance Company
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx, Escrow Officer
Fax No.: 000-000-0000
18. Headings and Counterparts. The headings of this Agreement are for
purposes of reference only and shall not limit or define the meaning of
the provisions of this Agreement. This Agreement may be executed in any
number of counterparts, each of which shall be an original but all of
which shall constitute one and the same instrument.
19. Calculations of Time Periods. In calculating any time period in this
Agreement which commences upon the receipt of any notice, request, demand
or document, or on the happening of a certain event, such as the opening
of escrow, the date on which such receipt is had or on which such event
occurs shall not be included within such time period, but such time
period shall commence to run on the date immediately following such date,
and any such time period shall include the full amount of days specified
by the applicable provision hereof and end at 5:00 p.m. (Phoenix time) on
the applicable day. If the time for performance of any obligation
hereunder expires on a Saturday, Sunday or legal holiday, the time for
performance shall be extended to the next day which is not a Saturday,
Sunday or legal holiday.
20. Construction. The parties agree that each party and its counsel have
reviewed and revised this Agreement and that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party
shall not apply in the interpretation of this Agreement or any amendments
or exhibits hereto.
21. Time of the Essence. Time is of the essence in the performance of the
covenants and obligations contained in this Agreement. The parties
hereby waive any so-called "thirteen day notice requirement" contained in
the Instructions.
22. Further Assurances. Each party, promptly upon the request of the other
or upon the request of Escrow Agent, shall execute and have acknowledged
and delivered to the other or to Escrow Agent, as may be appropriate, any
and all further instruments reasonably requested or appropriate to
evidence or give effect to the provisions of this Agreement and which are
consistent with the provisions hereof.
23. IRS Real Estate Sales Reporting. Buyer and Seller hereby appoint Escrow
Agent as, and Escrow Agent agrees to act as, "the person responsible for
closing" the transaction which is the subject of this Agreement pursuant
to section 6045(e) of the Code. Escrow Agent shall prepare and file all
informational returns, including, without limitation, IRS Form 1099-S and
shall otherwise comply with the provisions of section 6045(e) of the Code.
Escrow Agent shall indemnify, protect, hold harmless and defend Seller,
Buyer and their respective attorneys for, from and against any and all
claims, actions, costs, loss, liability or expense arising out of or in
connection with the failure of Escrow Agent to comply with the provisions
of this Paragraph 23.
24. Survival of Warranties. All of the representations, warranties,
covenants and other terms and provisions of this Agreement shall be
continuing and shall survive the Closing and the delivery by Seller to
Buyer of the Special Warranty Deed to the Property.
25. Possession. Possession of the Property shall be transferred to Buyer at
the Closing.
26. Recordation. This Agreement shall not be recorded.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
SELLER:
NORTHLAND LAND COMPANY OF ARIZONA, INC.,
a Minnesota corporation
By: /s/ Xxxxx Xxxxx
----------------------------------
Its: Vice President
----------------------------------
BUYER:
APOLLO GROUP, INC., an Arizona corporation
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Its: Chairman and President
----------------------------------
ESCROW AGENT ACCEPTANCE:
By its execution hereof, Transamerica Title Insurance Company hereby
accepts this Agreement as its escrow instructions and agrees to perform the
acts applicable to Escrow Agent in accordance with the terms of this
Agreement. Specifically, Escrow Agent understands, acknowledges and agrees
to the provisions of Paragraph 23 above. Escrow Agent acknowledges its
receipt of a fully executed original of this Agreement and the Xxxxxxx Money
as of the date set forth below.
ESCROW AGENT:
TRANSAMERICA TITLE INSURANCE COMPANY
By: /s/ Xxxx Xxxxx
----------------------------------
DATED: October 13, 1995
(Escrow Opening Date) Its: Escrow Officer
----------------------------------
LIST OF EXHIBITS
A - Legal Description
B - Form Escrow Instructions
C - Form of Special Warranty Deed
D - Form of Lot Membership Agreement
EXHIBIT A
LEGAL DESCRIPTION
PARCEL DESCRIPTION
XXXX 0, 0 XXX XXXX XX 0 XX XXXXXXXXX
A parcel of land lying within Sections 23 and 24, Township 1 North,
Range 3 East, of the Gila and Salt River Meridian, Maricopa County, Arizona,
more particularly described as follows:
Commencing at the easternmost northeast corner of Lot 4 of Southbank as
recorded in Book 306, page 44 M.C.R., said point being the POINT OF BEGINNING
of the herein described parcel;
THENCE along the east line of said Xxx 0, Xxxxx 00 degrees 50 feet 38
inches West, a distance of 723.30 feet, to the southeast corner of said Lot 4
and the beginning of a non-tangent curve;
THENCE along the southwesterly line of Xxxx 0, 0 xxx 0 xx xxxx
Xxxxxxxxx, northwesterly along said curve, having a radius of 1305.06 feet,
concave northeasterly, whose radius bears North 50 degrees 35 feet 42 inches
East, through a central angle of 7 degrees 53 feet 56 inches, a distance of
179.92 feet, to a point of intersection with a non-tangent line;
THENCE North 31 degrees 30 feet 30 inches West, a distance of 473.70
feet, to the beginning of a non-tangent curve;
THENCE northwesterly along said curve, having a radius of 5718.58 feet,
concave northeasterly, whose radius bears North 58 degrees 29 feet 25 inches
East, through a central angle of 2 degrees 39 feet 36 inches, a distance of
265.49 feet, to a point of intersection with a non-tangent line;
THENCE North 28 degrees 50 feet 54 inches West, a distance of 6.42 feet,
to the beginning of a curve;
THENCE northwesterly along said curve, having a radius of 3830.72 feet,
concave southwesterly through a central angle of 1 degree 42 feet 51 inches,
a distance of 114.61 feet, to a point that is 62.01 feet southeasterly of the
southernmost corner of Xxx 0 xx Xxxx-Xxxxxxxxx Xxxx 0, as recorded in Book
390, page 21, M.C.R., as measured along the southwesterly line of said Lot 6
and a point of intersection with a non-radial line;
THENCE leaving said southwesterly line, parallel with the southeasterly
line of said Xxx 0, Xxxxx 00 degrees 58 feet 52 inches East, a distance of
353.45 feet;
THENCE North 41 degrees 50 feet 38 inches East, a distance of 100.22
feet, to the said southeasterly line;
THENCE along said southeasterly line, South 48 degrees 9 feet 22 inches
East, a distance of 99.51 feet, to the southerly right-of-way line of Xxxxxx
Street and the beginning of a non-tangent curve;
THENCE leaving said southeasterly line along said right-of-way line,
southerly along said curve, having a radius of 60.00 feet, concave
northeasterly, whose radius bears South 78 degrees 9 feet 22 inches East,
through a central angle of 101 degrees 24 feet 35 inches, a distance of
106.20 feet, to a point of reverse curvature;
THENCE easterly along said curve, having a radius of 60.00 feet, concave
southerly through a central angle of 41 degrees 24 feet 35 inches, a distance
of 43,36 feet, to the curve's end;
THENCE South 48 degrees 9 feet 22 inches East, a distance of 521.73
feet;
THENCE South 34 degrees 39 feet 37 inches East, a distance of 51.42
feet;
THENCE South 48 degrees 9 fee 22 inches East, a distance of 95.68 feet,
to the POINT OF BEGINNING.
Containing 12.9604 acres or 564554 square feet of land, more or less.
Subject to existing rights-of-way and easements.
EXHIBIT B
FORM ESCROW INSTRUCTIONS
BUYER AND SELLER AGREE THAT:
1. They will deposit with Escrow Agent the necessary documents to complete
the sale as established by the terms of these instructions; authorize
Escrow Agent to deliver or record said documents at the appropriate time;
all money payable shall be paid to Escrow Agent unless otherwise
specified; authorize Escrow Agent to pay from funds held for said purpose
amounts necessary to procure the documents and to pay charges and
obligations necessary to consummate this transaction.
2. The indemnify and save harmless Escrow Agent against all costs, damages,
attorneys' fees, expenses and liabilities which it may incur or sustain
in connection with these instructions, including any interpleader action
brought by Escrow Agent, but excluding any such matters caused or created
by the negligence or intentional misconduct of Escrow Agent.
3. When the Agreement has been complied with by all parties, Escrow Agent
shall deliver by recording in the appropriate public office all necessary
documents, disburse all funds, and issue the title insurance policy.
4. The Agreement shall be of no effect unless and until signed by all
parties. No amendments to the Agreement shall be of any effect until
made in writing, signed by all parties and delivered to Escrow Agent.
The Agreement and any amendments hereto, as provided above, shall
constitute the sole and entire agreement between Escrow Agent and the
parties hereto.
5. They authorize Escrow Agent in the event of any conflicting demands made
upon it concerning these instructions or this escrow, at its election, to
hold any money and documents deposited hereunder until it receives mutual
instructions by all parties or until a civil action shall have been
finally concluded in a court of competent jurisdiction, determining the
rights of all parties. Deposit with the court by Escrow Agent of all
documents and funds (after deducting therefrom its charges and expenses
and attorneys' fees incurred in connection with any such court action)
liability and responsibility.
6. They hereby grant to Escrow Agent the right to execute on behalf of the
Seller and Buyer herein, the Affidavit of Value, using the total
consideration for the established value, unless instructed by Seller and
Buyer to the contrary.
7. Should Escrow Agent be closed on any day of compliance with the
Agreement, the requirements may be met on the next succeeding day Escrow
Agent is open for business.
EXHIBIT C
FORM OF SPECIAL WARRANTY DEED
WHEN RECORDED MAIL TO:
Apollo Group, Inc.
0000 Xxxx Xxxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxx, Xxxxxxx 00000-0000
Attention:
SPECIAL WARRANTY DEED
FOR THE CONSIDERATION of Ten Dollars ($10.00) and other valuable
consideration, NORTHLAND LAND COMPANY OF ARIZONA, INC., a Minnesota
corporation (hereinafter referred to as "Grantor"), does hereby convey to
APOLLO GROUP, INC., an Arizona corporation, its successors and assigns
(hereinafter referred to as "Grantee") the following real property situated
in Maricopa County, Arizona, the exact legal description of which is
contained on Exhibit "A" attached hereto and made a part hereof (hereinafter
referred to as the "Property").
SUBJECT TO: All taxes and other assessments, reservations in patents,
water rights, claims or title to water and all matters described on Exhibit
"B" or which an accurate ALTA survey, or physical inspection, of the Property
would disclose.
Subject to the foregoing, Grantor hereby binds itself and its successors
to warrant and defend title as against all acts of Grantor and no other.
DATED this 8th day of December, 1995.
NORTHLAND LAND COMPANY OF ARIZONA, INC.,
a Minnesota corporation
By: /s/Xxxxx Xxxxx
Its: VP
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 8th day of
December, 1995, by Xxxxx Xxxxx, the Vice-President of NORTHLAND LAND COMPANY OF
ARIZONA, INC., a Minnesota corporation, for and on behalf thereof.
Notary Public
My Commission Expires:
EXHIBIT C
FORM OF LOT MEMBERSHIP AGREEMENT
WHEN RECORDED MAIL TO:
Southbank Property Owners' Association
c/o 0000 X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
LOT MEMBERSHIP AGREEMENT
This Lot Membership Agreement (this "Agreement") is made as of this 13th
day of December, 1995, by and between NORTHLAND LAND COMPANY OF
ARIZONA, INC., a Minnesota corporation ("Northland"), and APOLLO GROUP, INC.,
an Arizona corporation ("Buyer").
Recitals
A. Buyer is the owner of certain real property (the "Buyer Property")
located in Maricopa County, Arizona, more particularly described on
Exhibit "A" hereto.
B. Northland is the owner of certain real property (the "Northland
Property") located in Maricopa County, Arizona, more particularly
described on Exhibit "B" hereto.
C. The Buyer Property and the Northland Property together constitute all of
Xxx 0, XXXXXXXXX, according to Book 306 of Maps, Page 44, Official
Records of Maricopa County, Arizona.
D. Xxx 0, XXXXXXXXX, is subject to that certain Declaration of Covenants,
Conditions and Restrictions - SOUTHBANK, dated January 27, 1987, and
recorded as Instrument No. 87-050970, Official Records of Maricopa
County, Arizona, as amended (the "Declaration").
E. Buyer and Northland desire to confirm their mutual agreement regarding
the apportionment of votes and the obligation for payment of assessments
between the Buyer Property and the Northland Property, which are
otherwise allocated to Lot 6 pursuant to the Declaration.
Agreement
In consideration of the foregoing recitals, the accuracy of which each
party hereby warrants to the other, and the covenants and agreements
contained in this Agreement, the receipt and sufficiency of which are hereby
mutually acknowledged, Buyer and Northland, intending to be legally bound,
hereby agree as follows:
1. Pursuant to Article II, Section 3 of the Declaration, Buyer and the Buyer
Property shall hereinafter be entitled to two (2) votes.
Northland and the Northland Property shall be entitled to nine-tenths
(0.9) votes. Xxxx and the Xxxx Property shall be entitled to thirteen and
three-tenths (13.3) votes.
2. Pursuant to Article III, Section 8 of the Declaration, the Buyer Property
and the Northland Property shall each be charged with "Regular
Assessments" and "Capital Assessments" (as both terms are defined in the
Declaration) based upon the number of votes attributable to each Lot as
compared to the total number of votes available to all members of the
Association.
3. Except as set forth in this Agreement, Buyer and the Buyer Property and
Northland and the Northland Property shall be and remain subject to all
of the terms, provisions and conditions of the Declaration, as may be
amended from time to time.
4. For all other purposes, the Buyer Property and the Northland Property
each shall be deemed to be a "Lot" pursuant to the Declaration.
5. Northland and Buyer hereby agree and declare that the agreements and
restrictions contained in this Agreement shall respectively run with
title to, create a benefit for, and constitute a burden upon both the
Buyer Property and the Northland Property, and shall be binding upon all
parties having or acquiring any right, title or interest in or to the
Buyer Property or the Northland Property or any portion thereof.
Buyer and Northland have executed this Agreement as of the date and year
first written above.
NORTHLAND:
NORTHLAND LAND COMPANY OF ARIZONA, INC.,
a Minnesota corporation
By: /s/ Xxxxx Xxxxx
Its: VP
BUYER:
APOLLO GROUP, INC., an Arizona Corporation
By: /s/ Xxxx X. Xxxxxxxx
Its: Chairman and President
By its execution of this Agreement, the Southbank Property Owners'
Association (the "Association") hereby acknowledges the existence of this
Agreement regarding the Buyer Property and the Northland Property and hereby
agrees to abide by and reflect in the records of the Association the effect
of the agreements contained in this Agreement.
SOUTHBANK PROPERTY OWNERS' ASSOCIATION,
an Arizona non-profit corporation
By: Xxxx Xxxxxxxxxxxx
Its: VP
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 8th day of
Decmeber, 1995, by Xxxxx Xxxxx, the Vice President of NORTHLAND LAND COMPANY OF
ARIZONA, INC., a Minnesota corporation, for and on behalf thereof.
Xxxx Xxxxxxx
Notary Public
My Commission Expires:
March 17, 1997
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 13th day of
December, 1995, by Xxxx X. Xxxxxxxx, the Chairman and President of
Apollo Group, Inc., an Arizona corporation, for and on behalf thereof.
Xxxxxxx Xxxxxx
Notary Public
My Commission Expires:
August 17, 1996
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 13th day of
December, 1995, by Xxxx X. Xxxxxxxxxxxx, the Vice President of Xxxx Properties,
Inc., a Minnesota Corporation, the __________________ of XXXX SOUTHBANK ONE,
L.L.C., a Minnesota Limited Liability Company, for and on behalf thereof.
Xxxx Xxxxxxx
Notary Public
My Commission Expires:
March 17, 1997
STATE OF ARIZONA )
)ss
County of Maricopa )
The foregoing instrument was acknowledged before me this 8th day of
December, 1995 by Xxxxx Xxxxx, the Vice President of SOUTHBANK PROPERTY
OWNERS' ASSOCIATION, an Arizona non-profit corporation, for and on behalf
thereof.
Xxxx Xxxxxxx
Notary Public
My Commission Expires: March 17, 1997
26
