FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
This FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW
INSTRUCTIONS ("Amendment") is made and entered into this 13th day of July,
1998, by and between NEVADA INVESTMENT HOLDINGS, INC., a Nevada corporation
("Seller") and EAGLE HARDWARE & GARDEN, INC., a Washington corporation, or
assigns as may be allowed herein ("Buyer")
R E C I T A L S:
A. Seller and Buyer entered into that certain Agreement of
Purchase and Sale and Joint Escrow Instructions dated May 27, 1998,
("Agreement") pursuant to which Seller agreed to sell and Buyer agreed to
buy that certain real property more particularly described in the Agreement
("Property").
B. Pursuant to the Agreement, Seller and Buyer have opened Escrow No.
98-6872JD ("Escrow") with First American Title Insurance Company of San Diego
("Escrow Holder").
C. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to such terms in the Agreement.
D. Seller and Buyer desire to amend the Agreement as hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Seller and Buyer hereby agree to amend the Agreement and the Escrow
Instructions to Escrow Holder as follows:
1. SUPPLEMENTAL DEPOSIT. Within three (3) business days of the date of
this Amendment, Buyer shall deposit into Escrow the amount of $25,000.00
("Supplemental Deposit"). The Supplemental Deposit shall be invested by
Escrow Holder in the same manner as the Deposit. The Supplemental Deposit
shall be applied against and credited to the Purchase Price. In the event of
Buyer's default under this Agreement, the Supplemental Deposit shall be
considered the same as the other Deposit(s) and, together with accrued
interest thereon, shall be released and delivered to Seller as liquidated
damages. In the event that (i) Seller deposits into Escrow a fully executed
counterpart original of an agreement with TRU Properties, Inc., terminating
their lease in the Shopping Center (for the Kids R Us store) as of September
30, 1998, and (ii) the Closing of this transaction does not take place within
the time period set forth in the Agreement for any reason whatsoever other
than default of Seller, the Supplemental Deposit, (together with any other
Deposit, First, Second or Third, which may be required to be delivered or
released to Seller) shall be released and delivered by Escrow Holder to Seller
without need of any further instruction.
2. JOINT PREPARATION. This Amendment is to be deemed to have been
prepared jointly by the parties. Any uncertainty or ambiguity regarding the
provisions of this Amendment shall not be interpreted against any party as a
draftsman of such document, but shall be resolved by application of all other
principles of law regarding interpretation of contracts.
3. COUNTERPARTS.
4. EFFECT OF AMENDMENT. Except as expressly amended hereby, all terms
and conditions of the Agreement shall continue in full force and effect. The
Agreement, as amended hereby, constitutes the entire agreement of the parties
and no further modification of the Agreement shall be binding and effective
unless evidenced by an agreement, in writing, signed by both Seller and Buyer.
2
IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as of
the date first above written.
BUYER: EAGLE HARDWARE & GARDEN, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President and C.E.O.
By: /s/ [ILLEGIBLE]
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Typed name: [ILLEGIBLE]
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Its: Executive Vice President - Administration
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SELLER: NEVADA INVESTMENT HOLDINGS, INC.
By: /s/ [ILLEGIBLE]
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Typed name: [ILLEGIBLE]
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Its: Authorized Signatory
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By: /s/ Xxxxxxx X. Xxxxxx
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Typed name: Xxxxxxx X. Xxxxxx
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Its: Authorized Signatory
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ACCEPTANCE BY ESCROW HOLDER:
First American Title Insurance Company hereby acknowledges that it has
received a fully executed original of the foregoing FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS and
agrees to be bound by and perform the terms thereof as such terms apply to
Escrow Holder.
FIRST AMERICAN TITLE INSURANCE COMPANY
By: /s/ [ILLEGIBLE]
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Typed name: [ILLEGIBLE]
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Its: Certified Escrow Officer
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