EXHIBIT 10.1
REAL ESTATE PURCHASE AND SALE AGREEMENT
This Real Estate Purchase and Sale Agreement (together with
Addenda and Exhibits, the "Agreement") is made by and between GLS COAL COMPANY,
a Utah Limited Liability Company ("Purchaser") and PD Company, a Utah General
Partnership ("Seller"). The effective date of this Agreement ("Effective Date")
shall be the date most recent in time set forth below the signatures of the
executing Parties. The foregoing notwithstanding, this Agreement shall not
become effective until executed by all parties.
A. Seller desires to sell to Purchaser the 5,200 acres more or
less, of land, improvements, mineral and mining rights and personal property
situated thereon including the "COLUMBIA COAL MINE" described in EXHIBIT A
attached hereto and incorporated herein by this reference (the "Property").
B. Purchaser desires to purchase the Property from Seller on the
terms specified herein.
In consideration of the foregoing, the covenants and agreements of the
parties and other valuable consideration, the receipt of which is hereby
acknowledged, the parties agree:
1. PURCHASE AND SALE. On the Closing Date (as hereafter defined)
and subject to the conditions and on the terms specified herein, Seller shall
convey the Property to Purchaser by execution and delivery of a Special Warranty
Deed subject to conditions and exceptions as in the deed received by Seller when
Seller acquired the Property.
2. PRICE. The purchase price for the Property shall be the sum of
Twenty Million Dollars ($20,000,000.00) ("Purchase Price") including the
satisfaction and removal of the liens placed on the property by the Unties
States of America. The Purchase Price shall be paid as follows:
2.1. DEPOSIT. Concurrently with the Purchaser's execution of this
Agreement, Purchaser shall deposit a check payable to the client trust account
of the law firm of Seal and Xxxxxxx, a professional corporation, in the sum of
Ten Thousand Dollars ($10,000.00), as a deposit towards the Purchase Price. Such
amount shall be refundable to Purchaser if Seller timely receives Purchaser's
written notice of objection pursuant to Section 6. If Seller does not timely
receive such written notice, Purchaser's deposit shall be released by Seal and
Xxxxxxx and forwarded to Seller and shall become nonrefundable and shall be
retained by Seller, as Seller's liquidated damages, in the event of a default by
Purchaser which is subject to the provisions of Section 2.2.
2.2. LIQUIDATED DAMAGES. BY PLACING THEIR INITIALS BELOW THIS
PROVISION, PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT; (1) IN THE EVENT OF
A DEFAULT BY PURCHASER IN THE PERFORMANCE OF PURCHASER'S OBLIGATION TO TIMELY
CLOSE ESCROW (AND EXCLUDING DEFAULTS OF PURCHASER'S INDEMNITY OBLIGATIONS AND
ANY OTHER DEFAULTS NOT EXPRESSLY STATED TO BE SUBJECT TO THIS SECTION 2.2),
SELLER'S SOLE REMEDY FOR SUCH DEFAULT SHALL BE TERMINATION OF THIS AGREEMENT AND
RETENTION OF ALL CASH PAYMENTS MADE PRIOR TO SUCH DEFAULT BY PURCHASER; (2)
RETENTION BY SELLER OF CASH PAYMENTS MADE BY PURCHASER SHALL NOT CONSTITUTE A
FORFEITURE OR PENALTY, BUT SHALL, INSTEAD, CONSTITUTE LIQUIDATED DAMAGES TO
SELLER; (3) WITHOUT LIMITING THE GENERALITY OF CLAUSE (1), SELLER HEREWITH
EXPRESSLY WAIVES ANY RIGHT TO SPECIFIC PERFORMANCE OR ANY OTHER REMEDY FOR A
DEFAULT COVERED BY THIS SECTION 2.2; (4) IT WOULD BE IMPRACTICAL OR EXTREMELY
DIFFICULT TO FIX ACTUAL DAMAGES IN CASE OF A DEFAULT COVERED BY THIS SECTION
2.2; (5) THE AMOUNT OF SUCH LIQUIDATED DAMAGES HAS BEEN EXPRESSLY AND
PARTICULARLY NEGOTIATED BY PURCHASER AND SELLER; AND (6) SUCH AMOUNT IS
REASONABLE UNDER THE CIRCUMSTANCES EXISTING AT THE TIME THE AGREEMENT WAS MADE.
Purchaser's Initials GS Seller's Initials DB
2.3. PURCHASE PRICE. On the Closing Date Purchaser shall pay an
amount of $900,000.00 in cash, including the deposited amount in part 2.1 above.
The $900,000.00 in cash is an amount subject to adjustment for prorations made
pursuant to Section 12, and shall be wire transferred or otherwise delivered to
Seller on the Closing Date pursuant to instructions, which Seller shall give to
the Escrow Holder prior to the Closing Date.
Seller shall deliver escrow instructions to Escrow Holder to pay
$850,000 out of escrow at closing to the United States Air Force in
consideration of the full satisfaction and removal of all liens placed on the
property by the Unties States Air Force. Seller will cooperate to ensure that
the liens are removed as soon as possible.
Within 60 days of closing, an amount of $900,000.00 shall be paid to
Seller at the address of record then existing.
Purchaser shall also execute a non-interest bearing promissory note in
the amount of $18,200,000.00 dollars, secured by a first Trust Deed. The note
shall not become due and payable unless and until the Columbia Coal Mine can be
brought back into production. Purchaser may pay the full amount of the note in
advance without penalty. The note shall be paid as follows:
Within 24 calendar months of the date of closing $ 5,000,000.00
Within 36 calendar months of the date of closing $ 7,500,000.00
Within 48 calendar months of the date of closing $ 5,700,000.00
Seller shall also retain a royalty interest in the ongoing production
of the Columbia Coal Mine in the amount of 1.5% Net Overriding Royalty Interest
on the gross sales price of the ore removed and sold.
3. PRELIMINARY REPORT. Upon execution of this Agreement by both
parties, Seller shall order, at Seller's cost, a preliminary title report from
South Eastern Utah Title Company, 000 Xxxx, 000 Xxxxx, Xxxxx, Xxxx 00000, for
delivery as soon as possible to Purchaser. Purchaser shall thereafter be solely
responsible for obtaining such updates of such initial preliminary report, as
Purchaser may from time to time desire. The initial preliminary report and all
updates are hereafter collectively referred to as the "Preliminary Report".
4. SELLER'S DELIVERY OF DOCUMENTS. Within ten (10) business days
of the date an original of this Agreement as fully executed by all parties is in
Seller's possession, Seller shall deliver to Purchaser copies of the items
identified in Section 4.1 and Section 4.2. In the event this Agreement is
terminated, Purchaser agrees to return to Seller at the time of termination all
documents delivered to Purchaser, in the same condition as received, and all
copies of such documents (or of any documents made available to Purchaser for
Purchaser's inspection) made by or on behalf of Purchaser or at Purchaser's
direction. Purchaser herewith agrees to indemnify Seller (and all parties
identified as a "Releasee" in Section 7.2) from and against any Claims (as
defined in Section 7.4) arising from or related to Purchaser's breach of
confidentiality, the foregoing covenants, and/or Seller's enforcement of any of
the same.
4.1. All leases/licenses/agreements for the Property or the
mineral rights situated thereon, if any, and any amendments thereto; and
4.2. Copies of each of the following, or, if no items are
identified in this Section prior to execution by the parties, such items as
Seller may specify in writing to Purchaser within the time period set forth in
the first paragraph of this Section 4 (Section 4 documents to be delivered
within 10 business days of a fully executed Agreement.)
References in this Agreement to "Section 4.2 matters" shall include all
disclosures and/or documents (other than those specified in Section 4. 1) made,
delivered or made available to Purchaser, whether (a) prior to execution of this
Agreement, and/or (b) within or after the time period specified in the first
paragraph of this Section 4. All Section 4.2 matters are disclosed, delivered
and/or made available to Purchaser with the understanding that the same are
being disclosed, delivered and/or made available without any representation or
warranty (express or implied) as to reliability, accuracy, completeness or
suitability for any particular purpose or use.
5. PURCHASER'S INSPECTION RIGHTS.
5.1. Purchaser and Purchaser's representatives shall have the
right until 12:00 noon, March 20, 2005, to examine the condition of title, to
review any existing leases/licenses/agreements for the Property, to review and
investigate each of the Section 4.2 matters, and to make such other and
additional inspections and investigations of the Property and all matters
related thereto as Purchaser and Purchaser's representatives desire. Seller
agrees to make the Property available to Purchaser and Purchaser's
representatives at all reasonable times for inspection, subject to the
requirements of Section 5.2, if applicable, the rights of any tenants of the
Property under any provisions of such tenants' leases, and in addition to any
such rights of tenants, the requirements: (a) that Purchaser and Purchaser's
representatives give Seller at least two business day's advance notice of
Purchaser's need for access to the Property; (b) that Purchaser and Purchaser's
representatives not unreasonably interfere with the business, operations and
personnel of an existing tenant or occupant of the Property; (c) that except as
otherwise authorized pursuant to Section 5.2, the Property remain in the
condition which existed prior to any such inspections/investigations; (d) that
Purchaser and Purchaser's representatives at all times proceed in compliance
with all applicable Legal Requirements; and (e) that Purchaser herewith agrees
to indemnify and hold Seller (and all other parties identified as a "Releasee"
in Section 7.2) and any tenant or occupant of the Property harmless from and
against any and all claims or loss defined in Section 7.4, and including,
without limitation, mechanics and design professionals here claims, directly or
indirectly arising from or related to any inspections, investigations or other
activities conducted by Purchaser and/or Purchaser's representatives or the
agents, employees or independent contractors of any of the same, whether or not
authorized by Seller and without regard to coverage by insurance carried by
seller, Purchaser or any other party.
5.2. If Purchaser desires to include in its inspections and
investigations any activity which would require any drilling, excavation,
gathering of samples, or disturbance of the Property or any improvement thereon,
or which could result in either Seller, Purchaser or any other party having to
make a report of the results of the activity to any administrative of regulatory
body, the following provisions shall apply.
5.2.1. Prior to undertaking any such activity, Purchaser shall
provide Seller, in writing, with full details of the proposed activity and its
purpose and shall not undertake such activity without obtaining Seller's prior
written consent. If consent is requested for any such activity to be conducted
during the time period governed by Section 5.1, Seller shall not unreasonably
withhold consent. If consent is requested for any such activity to be conducted
during the time period governed by Section 5.3, Seller may grant or withhold
consent in Seller's sole discretion and without regard to reasonableness.
5.2.2. Without limiting the grounds upon which Seller may
reasonably withhold consent, the parties agree that Seller shall expressly not
be deemed to have unreasonably withheld consent if consent is withheld because
the person or entity proposed by Purchaser to perform the activity lacks
substantial experience in performing the activity, fails to enjoy a good
business reputation for performing the activity, and/or is not financially
reliable.
5.2.3. If Purchaser reasonably requests such consent for any
activity to be conducted within the time governed by Section 5.1, and if Seller
fails to give written consent within five (5) business days of having received
full written details of the proposed activity and its purpose, Purchaser shall
have the right to terminate this Agreement by giving Seller written notice of
termination within five (5) business days of the expiration of the time for
Seller's written consent. If Purchaser timely terminates, Purchaser's Section
2.1 deposit shall be returned upon satisfaction of the conditions set forth in
Section 17. If Purchaser fails to timely terminate, Purchaser shall be deemed to
have waived any right to terminate and shall acquire the Property without
undertaking the proposed activity and without impairing or limiting the effect
of Section 7.
5.3. In the event that Purchaser waives Purchaser's Section 6
right to object and thereafter desires entry to the Property, Seller agrees that
so long as this Agreement continues in effect and so long as Purchaser is not in
default of any term or condition of this Agreement, Purchaser and Purchaser's
representatives shall have the right of entry subject to each and every of the
requirements and indemnities set forth in Sections 5.1 and 5.2 and the
additional requirements that: (a) no demolition, grading, site preparation,
development or other work of improvement shall take place prior to the Closing
Date, without the prior written consent of Seller, which Seller may, in Seller's
sole, discretion arid without regard to reasonableness, grant or withhold; and
(b) that neither the withholding (whether reasonable or unreasonable) by Seller
of any consent of Seller required by this Section 5.3 or by Section 5.2, if
applicable to any entry governed by this Section 5.3, nor any matters discovered
by Purchaser as a result of any entry provided for in this Section 5.3, shall
entitle Purchaser to terminate this Agreement, or excuse Purchaser from
performance of any obligation of Purchaser under this Agreement.
6. PURCHASER'S RIGHT TO OBJECT. If Purchaser objects to the
condition of title, the existing agreements, the Section 4.2 matters, or the
condition of the Property or any other matter relating to the Property,
Purchaser shall give Seller written notice of Purchaser's objection within the
time and in the manner set forth in the next sentence, and this Agreement shall
thereupon automatically terminate. To be effective, Purchaser's notice of
objection must be actually received by Seller (at the Section 16 address then in
effect for delivery of notices) by 12:00 noon on the date set forth in Section
5.1.
7. "AS IS" SALE; RELEASE AND INDEMNITY.
7.1. If Purchaser fails to give Seller timely written notice of
Purchaser's objection pursuant to Section 6, Purchaser shall be deemed to have
waived the right to object. In such event, or in the event Purchaser
unconditionally waives Purchaser's right to object in a writing actually
received by Seller prior to expiration of the time set forth In Section 6,
Purchaser herewith expressly agrees, effective as of the date of Seller's
receipt of such written waiver or of the expiration of the time set forth in
Section 6:
7.1.2. That Purchaser and Purchaser's representatives have been
afforded the opportunity to make and have made such inspections of the title to
the Property and all matters related thereto as Purchaser and Purchaser's
representatives desire and that Purchaser agrees to accept delivery of a deed of
title of the same quality as the deed received by Seller when Seller acquired
the Property and to accept title to the Property in the condition and subject to
all exceptions shown, on such deed and in the Preliminary Report and any
additional exceptions arising from or related to any acts or emissions of
Purchaser; bonds, taxes and assessments not shown on the Preliminary Report to
the extent not delinquent; all matters shown or which would be shown by an
accurate survey of the Property; all encumbrances, including encroachments and
other rights of third parties, whether physical, open and notorious, or not,
excepting only encumbrances expressly consented to during Seller's ownership and
not disclosed or otherwise known to Purchaser; and all other matters, whether or
not of record, which do not materially interfere with the use of the Property;
7.1.3. To accept the Property subject to all Section 4.2 matters;
7.1.4. That Purchaser and Purchaser's representatives have been
afforded the opportunity to make, and have made such inspections of the Property
and all matters related thereto as Purchaser and Purchaser's representatives
desire; and that Purchaser assumes the risk that adverse physical and
environmental conditions, surface or subsurface, may not have been revealed by
Purchaser's own investigation;
7.1.5. That there are no other conditions to Purchaser's
performance of this Agreement; and
7.1.6. Buyer acknowledges that Seller and Seller's agents have
made no representations of any material facts concerning the Property; that
Buyer has had an opportunity to inspect and investigate said Property; that
Buyer has made a through independent examination and inspection of said Property
and Buyer is relying solely upon his own examination and inspection thereof;
and, that Buyer is acquiring the Property "AS-IS". Buyer further acknowledges
that Seller has made no representations or warranties as to whether or not the
boundary lines of said Property are accurate, nor any representations as to the
number of acres contained in the legal description of the Property. Without
limiting the generality of the foregoing, Buyer acknowledges further that Buyer
has been informed and understands that the Property has not been surveyed and
that Seller is not responsible or liable to obtain or provide a survey of said
Property. Buyer has been provided a legal description of the Property, which is
the same description as that used in this Real Estate Purchase and Sale
Agreement. Buyer has had adequate opportunity to examine and inspect the
boundaries of said Property and has made its own determination as to acreage and
whether the fence lines and boundaries are accurate and is purchasing said
Property in reliance upon Buyer's own determination thereof the regardless of
whether or not said fence lines and boundaries are accurate.
8. TITLE. Title to the Property shall be conveyed to Purchaser on
the Closing Date subject to: (a) all existing leases/licenses/agreements and
amendments thereto; and (b) in the condition and subject to the exceptions
described in Section 7.1.
9. TITLE INSURANCE. On the Closing Date, the Escrow Holder shall,
at Seller's expense, issue to Purchaser, in the amount of the Purchase Price of
the Property of $20,000,000 an ALTA owner's policy of title insurance insuring
Purchaser's interest in the Property subject to the exceptions and conditions of
title specified in Section 8.
10. 1031 AVAILABILITY. Seller desires that the availability to
enter into this transaction and sell the property as a "relinquished property"
under section 1031 of the Internal Revenue Code. Accordingly Buyer agrees to
fully cooperate with the seller in completing the 1031 exchange, at no expense
or liability to Buyer for a 1031 exchange on this sale.
11. CLOSING COSTS; CANCELLATION FEES. At Close of Escrow, all
closing and escrow costs shall be shared equally between Seller and Purchaser.
At the Closing Date, Purchaser shall assume all outstanding charges of any
governmental agencies or special assessment districts (whether or not of record)
related to the Property, if any, including, without limitation, sewer
installation and hook-up charges.
12. PRORATIONS. Delinquent Rents; Insurance. Real property taxes,
rents and other items of expense and income related to the Property shall be
prorated as of the Closing Date. Any sums held by Seller as refundable and
nonrefundable security and cleaning deposits and fees and impound accounts from
tenants of the Property (to the extent any of the same have not already been
consumed pursuant to the terms of any applicable lease) shall be credited in
escrow to Purchaser and Purchaser hereby agrees to become responsible for the
same.
13. CLOSING DATE. The Closing Date referred to herein shall mean
on or before April 20, 2005. Seller and Purchaser shall execute and deposit into
escrow not later than two (2) business days after closing: (1) Note in the
amount of $18,200,000.00; (2) Note in the amount of $900,000.00; (3) First Trust
Deed for $19,100,000.00; (4) Royalty Agreement; (5) Deed; (6) Deed of Release
and Reconveyance executed by Seller and released for filing upon satisfaction of
the terms of this agreement by Purchaser.
14. CLOSING. On the Closing Date, Seller shall deliver to
Purchaser the following:
14.1. An executed and duly acknowledged deed to Purchaser of the
same quality as the deed received by Seller when Seller purchased the Property;
14.2. Possession of the Property;
14.3. If there are any existing leases/licenses/agreements, and on
condition that Purchaser also execute the same, an executed Assignment of
Leases/Licenses/Agreements and Lease Guaranties together with all
leases/licenses/agreements and amendments, extensions or modifications then in
Seller's possession, and all books and records related to the Property;
15. ATTORNEYS FEES. In the event legal action or other proceedings
are instituted to enforce any of the provisions of this Agreement, or any
party's rights hereunder, or as a result of any alleged dispute, breach, default
or misrepresentation in connection with any of the provisions of this Agreement
or related to the subject matter of this Agreement, the prevailing party shall
be entitled, whether or not such action is prosecuted to judgment or such other
proceeding is prosecuted to an award or decision, to all costs and expenses of
such litigation or other proceeding, including reasonable attorneys fees,
interest, costs of suit, costs of investigation, and costs, expenses and fees
Incurred in appellate proceedings, in enforcing any judgment, or in any action
or participation in, or in connection with, any case or proceeding under the
United States Bankruptcy Code or any successor statutes. The provisions of this
Section 15 providing for post-judgment attorneys fees shall survive any judgment
and shall not be deemed merged into any judgment.
16. NOTICES. Any notices to be given hereunder shall be in writing
and, except where actual receipt by a specified date and time is otherwise
required by any provision of this Agreement, shall be deemed given upon personal
delivery to Purchaser or Seller, as the case may be, or upon deposit in any
United States Mail receptacle, first class mail, postage prepaid, certified or
registered, return receipt requested, or upon delivery to a
nationally-recognized delivery service for overnight, next-day delivery,
provided the sender retains a written receipt provided by such service showing
the date sender delivered the notice to the service for overnight, next-day
delivery, or, if a facsimile number is given with a party's address below, at
the time of transmission by facsimile to such facsimile number, provided the
sender's facsimile prints a record of the fact, and the time of such
transmission and such record is retained by the sender, and, in each case,
addressed as follows:
TO SELLER: TO PURCHASER:
PD Company/ATTN: Xxxx X. Xxxxx GLS Coal Company, L.L.C.
0000 X. Xxxxxx-Xxxxxxxx Xxxx 0000 X. Xxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000 Xxxxx, Xxxx 00000
or to such other address as the parties may from time to time designate in
writing pursuant to this Section.
17. EFFECT OF TERMINATION. In the event this Agreement is
terminated pursuant to any inspection conducted within the time period provided
for in Section 5.1, or Sections 6, each party shall be deemed released from any
obligation under this Agreement, except the indemnity obligations of Sections 4,
and 5. Each party agrees to promptly execute all documents necessary to cancel
the escrow. Purchaser agrees: (a) to return to Seller all Section 4 documents
and to deliver to Seller any Section 5 activity results; and (b) to deliver and
assign to Seller free of any liens or claims of those who prepared or obtained
any of the same, all of Purchaser's rights in and to (i) all architectural,
engineering, surveying, and other plans, specifications, reports and studies,
and (ii) to the extent desired by Seller, all governmental or other approvals,
permits, licenses or grants of rights or privileges obtained by Purchaser and
relating to development of the Property. In the case of a termination entitling
Purchaser to a refund of Purchaser's Section 2.1 deposit, the same shall be
returned to Purchaser upon satisfaction of the requirements of this Section. In
the case of all other terminations Purchaser's Section 2.1 deposit shall either
belong to Seller as liquidated damages if such termination constitutes a default
covered by Section 2.2, or shall be held as a deposit against Seller's actual
damages, attorneys fees and costs.
18. ENTIRE AGREEMENT, MODIFICATION. This Agreement and all Addenda
and Exhibits attached hereto constitute the entire agreement between Seller and
Purchaser, and no agreement, understanding, offer or counter-offer made prior to
or contemporaneously with this Agreement, whether oral or written, and, if
written, whether signed or not, shall have any force or effect. This Agreement
may not be modified except by an instrument in writing signed by both parties.
19. SUCCESSORS AND ASSIGNS. Other than an assignment by Purchaser
prior to the Closing Date (which assignment may be made without approval of
Seller), Purchaser may not assign its rights hereunder or vest title after the
Closing Date, or at anytime prior to full payment of the amounts due Seller
herein, in anyone other than Purchaser, except with Seller's prior written
consent. Subject to the preceding sentence, the terms, covenants and conditions
of this Agreement shall be binding upon and shall inure to the benefit of the
heirs, personal representatives, successors and assigns of Seller and Purchaser.
20. DEFINITIONS.
20. 1. "HAZARDOUS MATERIALS". The term "Hazardous Materials" shall
include but not be limited to substances defined as "hazardous substances",
"hazardous materials", "hazardous wastes", or "toxic substances" in, or which
are otherwise the subject of, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 USC, pursuant to any of
the foregoing; and all amendments or successors to any of the foregoing.
Hazardous Materials shall also include petroleum and petroleum by-products,
asbestos, and those asbestos-containing materials defined and described in
Environmental Protection Agency Report No. 0000-00-000 (June 1985), the
substances listed in the U.S. Department of Transportation Table (49 CFR 172.1
01, as amended), or any related or successor report, or other government
regulations defining or describing such materials.
20.2. "BUSINESS DAY". If the date for receipt of any notice,
payment of any consideration, or performance of this Agreement falls on a day
which is not a business day, the time for such receipt or any other term or
condition payment or performance shall be on the next day which is a business
day, The term "business day" shall mean any Monday through Friday which is not a
day designated as a holiday in the State of Utah.
20.3. "LEGAL REQUIREMENTS". The term "Legal Requirements" shall
mean all federal, state and local laws, codes, statutes, ordinances, orders,
rules, regulations, permits, and permit conditions and requirements.
21. CAPTIONS; CONSTRUCTION. Captions and headings in this
Agreement are for convenience only and shall not be taken into consideration in
construing any term or provision of this Agreement. Each party acknowledges that
such party has reviewed this Agreement, and that any rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or any amendments or
exhibits hereto.
22. FURTHER ASSURANCES. Each party agrees, at the request of the
other, to do such other acts and to execute, acknowledge if appropriate, and
deliver such additional documents that may be reasonably required to accomplish
the intent and purposes of this Agreement.
23. GOVERNING LAW. This Agreement shall be governed by the common
and statutory law of the State of Utah.
24. SURVIVAL. This Agreement and all of its terms, covenants,
conditions, releases, Indemnities, and provisions shall survive the close of
this transaction and delivery of any deed.
25. SELLER NOT A "FOREIGN PERSON" Seller is not a "foreign person"
as defined in Section 1.445-IT(e) of the IRS Regulations.
26. COMMISSIONS. Neither Buyer nor Seller has engaged or are
otherwise liable for any amount due or to become due to any broker or sales
agent in regards to the transaction giving rise to and evidenced hereby. In the
event that any claim (other than those described in the preceding sentence) is
asserted by any person claiming a commission with respect to this Agreement
arising from any act, representation or promise of a party or its
representatives, such party shall indemnify, save, defend and hold every other
party harmless from and against any and all such claims, as well as against all
costs and expenses related thereto, including attorney's fees and costs.
27. SELLER'S ACCEPTANCE. This Agreement is not an offer to sell
and shall in no way be binding upon Seller unless and until such time as this
Agreement is executed by both Purchaser and Seller.
28. TIME OF ESSENCE. Time is of the essence of this Agreement and
the parties have expressly and actively bargained for and negotiated the
inclusion of this provision in this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement
on the dates set forth below their signatures.
SELLER: PURCHASER:
BY: /S/ PD COMPANY B DAVIES BY: /S/ XXXXXXX X. XXXX
ITS: GENERAL PARTNER ITS: MANAGER
EXECUTED: MARCH 4, 2005 EXECUTED: MARCH 4, 2005
AT: Xxxx Xxxx Xxxx, Xxxx XX: Xxxx Xxxx Xxxx, Xxxx
