STANDARD OFFER, AGREEMENT AND ESCROW
INSTRUCTIONS FOR PURCHASE OF REAL ESTATE
(Non-Residential)
American Industrial Real Estate Association
October 23, 2000
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(Date for Reference
Purposes)
1. Buyer.
1.1 Xxxx Xxxxxxxx Xxxx , ( "Buyer") hereby offers to purchase the real
property, hereinafter described, from the owner thereof ("Seller")
(collectively, the "Parties" or individually" a "Party"), through an escrow
("Escrow") to close on or before December 20, 2000("Expected Closing Date") to
be held by Commonwealth Land Title Company, Attn. Xxxxx Xxxxx ("Escrow Holder")
whose address is 0000 Xxxxxx Xxxx, Xxx Xxxxx, XX 00000, Phone No. (000) 000-0000
Facsimile No. (000) 000-0000 upon the terms and conditions set forth in this
agreement ("Agreement"). Buyer shall have the right to assign Xxxxx's rights
hereunder, but any such assignment shall not relieve Buyer of Buyer's
obligations herein unless Seller expressly releases Buyer.
1.2 The term "Date of Agreement" as used herein shall be the date when by
execution and delivery (as defined in paragraph 20.2) of this document or a
subsequent counter-offer thereto, Buyer and Seller have reached agreement in
writing whereby Xxxxxx agrees to sell, and Xxxxx agrees to purchase, the
Property upon terms accepted by both Parties.
2. Property.
2.1 The real property ("Property") that is the subject of this offer
consists of (insert a brief physical description) An approximately 44,300 square
foot concrete building/warehouse, bowling alley with kitchen, office and
showroom is located in the City of El Cajon, County of San Diego, State of
California, is commonly known by the street address of 000 Xxxxx Xxx, Xx Xxx xx,
XX 00000 and is legally described as: (APN:387-121-44)o
2.2 If the legal description of the Property is not complete or is
inaccurate, this Agreement shall not be invalid and the legal description shall
be completed or corrected to meet the requirements of United Title Company
("Title Company"), which shall issue the title policy hereinafter described.
2.3 The Property includes, at no additional cost to Buyer, the permanent
improvements thereon, including those items which the law of the state in which
the Property is located provides is part of the Property, as well as the
following items, if any, owned by Seller and at present located on the Property:
electrical distribution systems (power panel, xxxx ducting, conduits,
disconnects, lighting fixtures); telephone distribution systems (lines, jacks
and connections only); space heaters; heating; ventilating; air conditioning
equipment ("HVAC"); air lines; fire sprinkler systems; security and fire
detection systems; carpets; window coverings; wall coverings; and All attached
fixtures except bowling alley mechanical fixtures associated with the bowling
mechanical aperatis. (collectively, the "Improvements").
2.4 Within the time period specified in paragraph 9.1(a), Seller and/or
Seller's Broker shall make to Buyer, through escrow, all of the applicable
disclosures required by law (See American Industrial Real Estate Association
("AIR") standard form entitled "Seller's Mandatory Disclosure Statement"). 3.
Purchase Price.
3.1 The purchase price ("Purchase Price") to be paid by Buyer to Seller for the
Property shall be $2,215,000.00, payable as follows:
(a) Cash down payment, including the Deposit as defined in
paragraph 4.3 (or if an all cash transaction, the
Purchase Price):........................................ $221,500.00
(b) Amount of "New Loan" as defined in paragraph 5.1, if any: $1,993,500.00
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Total Purchase Price $2,215,000.00
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4. Deposits.
4.1 Buyer hereby delivers a check in the sum of $ 15,000.00, payable to
Escrow Holder, to be held uncashed until the Date of Agreement. Such check shall
be deposited in accordance with paragraph 4.3 and applied toward the Purchase
Price of the Property at the Closing. Should Buyer and Seller not enter into an
agreement for purchase and sale, Buyer's check or funds shall, upon request by
Xxxxx, be promptly returned to Buyer.
4.2 Additional deposits:
(a) Within 5 (1) business days after the Date of Agreement, Buyer shall
deposit with Escrow Holder the additional sum of $15,000.00 to be applied to the
Purchase Price at the Closing. (b) Within 5 (1) business days after the
contingencies discussed in paragraph 9.1 (a) through (k) are approved or waived,
Buyer shall deposit with Escrow Holder the additional sum of $60, 000. 00 to be
applied to the Purchase Price at the Closing.
4.3 Escrow Holder shall deposit the funds deposited with it by Buyer
pursuant to paragraphs 4.1 and 4.2 (collectively the "Deposit"), in a State or
Federally chartered bank in an interest bearing account whose term is
appropriate and consistent with the timing requirements of this transaction. The
interest therefrom shall accrue to the benefit of Buyer, who hereby acknowledges
that there may be penalties or interest forfeitures if the applicable instrument
is redeemed prior to its specified maturity. Buyer's Federal Tax Identification
Number is . NOTE: Such interest bearing account cannot be opened until Xxxxx's
Federal Tax Identification Number is provided.
5. Financing Contingency. (Strike if not applicable)
5.1 This offer is contingent upon Buyer obtaining from an insurance company,
financial institution or other lender, a commitment to lend to Buyer a sum not
less than $1, 993, 500. 00, at terms reasonably acceptable to Buyer. Such loan
("New Loan") shall be secured by a first trust upon the Property. If this
Agreement provides for Seller to carry back junior financing, then Seller shall
have the right to approve the terms of the New Loan. Seller shall have 7 days
from receipt of the commitment setting forth the proposed terms of the New Loan
to approve or disapprove of such proposed terms. If Seller fails to notify
Escrow Holder, in writing, of the disapproval within said 7 days it shall be
conclusively presumed that Seller has approved the terms of the New Loan.
5.2 Buyer hereby agrees to diligently pursue obtaining the New Loan. If Buyer
shall fail to notify its Broker, Escrow Holder and Seller, in writing within 30
days following the Date of Agreement, that the New Loan has not been obtained,
it shall be conclusively presumed that Buyer has either obtained said New Loan
or has waived this New Loan contingency.
5.3 If, after due diligence, Buyer shall notify its Broker, Escrow Holder
and Seller, in writing, within the time specified in paragraph 5.2 hereof, that
Buyer has not obtained said New Loan, this Agreement shall be terminated, and
Buyer shall be entitled to the prompt return of the Deposit, plus any interest
earned thereon, less only Escrow Holder and Title Company cancellation fees and
costs, which Buyer shall pay.
6. Deleted
7. Real Estate Brokers.
7.1 The following real estate broker(s) ("Brokers") and brokerage
relationships exist in this transaction and are consented to by the Parties
(check the applicable boxes):
S.D. Commercial Real Estate Services represents
Seller exclusively ("Seller's Broker");
Xxxx Xxxxx represents Buyer exclusively ("Buyer's Broker"); or
N/A represents both Seller and Buyer ("Dual Agency").
The Parties acknowledge that Brokers are the procuring cause of this Agreement.
See paragraph 24 for disclosures regarding the nature of a real estate agency
relationship. Buyer shall use the services of Xxxxx's Broker exclusively in
connection with any and all negotiations and offers with respect to the property
described in paragraph 2.1 for a period of one year from the date above.
7.2 Buyer and Seller each represent and warrant to the other that he/she/it
has had no dealings with any person, firm, broker or finder in connection with
the negotiation of this Agreement and/or the consummation of the purchase and
sale contemplated herein, other than the Brokers named in paragraph 7.1, and no
broker or other person, firm or entity, other than said Brokers is/are entitled
to any commission or finder's fee in connection with this transaction as the
result of any dealings or acts of such Party. Xxxxx and Seller do each hereby
agree to indemnify, defend, protect and hold the other harmless from and against
any costs, expenses or liability for compensation, commission or charges which
may be claimed by any broker, finder or other similar party, other than said
named Brokers by reason of any dealings or act of the indemnifying Party.
8. Escrow and Closing.
8.1 Upon acceptance hereof by Seller, this Agreement, including any
counter-offers incorporated herein by the Parties, shall constitute not only the
agreement of purchase and sale between Buyer and Seller, but also instructions
to Escrow Holder for the consummation of the Agreement through the Escrow.
Escrow Holder shall not prepare any further escrow instructions restating or
amending the Agreement unless specifically so instructed by the Parties or a
Broker herein. Subject to the reasonable approval of the Parties, Escrow Holder
may, however, include its standard general escrow provisions.
8.2 As soon as practical after the receipt of this Agreement and any relevant
counter-offers, Escrow Holder shall ascertain the Date of Agreement as defined
in paragraphs 1.2 and 20.2 and advise the Parties and Brokers, in writing, of
the date ascertained.
8.3 Escrow Holder is hereby authorized and instructed to conduct the Escrow
in accordance with this Agreement, applicable law and custom and practice of the
community in which Escrow Holder is located, including any reporting
requirements of the Internal Revenue Code. In the event of a conflict between
the law of the state where the Property is located and the law of the state
where the Escrow Holder is located, the law of the state where the Property is
located shall prevail.
8.4 Subject to satisfaction of the contingencies herein described, Xxxxxx
Holder shall close this escrow (the "Closing") by recording a general warranty
deed (a grant deed in California) and the other documents required to be
recorded, and by disbursing the funds and documents in accordance with this
Agreement.
8.5 Buyer and Seller shall each pay one-half of the Escrow Holder's charges
and Seller shall pay the usual recording fees and any required documentary
transfer taxes. Seller shall pay the premium for a standard coverage owner's or
joint protection policy of title insurance.
8.6 Escrow Holder shall verify that all of Xxxxx's contingencies have been
satisfied or waived prior to Closing. The matters contained in paragraphs 9.1
subparagraphs (b), (c), (d), (e), (g), (i), (n), and (o), 9.4, 9.5, 12, 13, 14,
16, 18, 20, 21, 22, and 24 are, however, matters of agreement between the
Parties only and in no way constitute instructions to Escrow Holder.
8.7 f this transaction is terminated for non-satisfaction and non-waiver of a
Buyer's Contingency, as defined in paragraph 9.2, then neither of the Parties
shall thereafter have any liability to the other under this Agreement, except
to the extent of the breach of any affirmative covenant or warranty in this
Agreement. In the event of such termination, Buyer shall be promptly refunded
all funds deposited by Buyer with Escrow Holder, less only Title Company and
Escrow Holder cancellation fees and costs, all of which shall be Buyer's
obligation.
8.8 The Closing shall occur on the Expected Closing Date.
8.9 Except as otherwise provided herein, the termination of Escrow shall not
relieve or release either Party from any obligation to pay Escrow Holder's fees
and costs or constitute a waiver, release or discharge of any breach or default
that has occurred in the performance of the obligations, agreements, covenants
or warranties contained therein.
8.10 If this Escrow is terminated for any reason other than Seller's breach
or default, then at Seller's request, and as a condition to the return of
Buyer's deposit, Buyer shall within 5 days after written request deliver to
Seller, at no charge, copies of all surveys, engineering studies, soil reports,
maps, master plans, feasibility studies and other similar items prepared by or
for Buyer that pertain to the Property. Provided, however, that Buyer shall not
be required to deliver any such report if the written contract which Xxxxx
entered into with the consultant who prepared such report specifically forbids
the dissemination of the report to others. 9. Contingencies to Closing.
9.1 The Closing of this transaction is contingent upon the satisfaction or
waiver of the following contingencies. IF BUYER FAILS TO NOTIFY ESCROW HOLDER,
IN WRITING, OF THE DISAPPROVAL OF ANY OF SAID CONTINGENCIES WITHIN THE TIME
SPECIFIED THEREIN, IT SHALL BE CONCLUSIVELY PRESUMED THAT BUYER HAS APPROVED
SUCH ITEM, MATTER OR DOCUMENT. Buyer's conditional approval shall constitute
disapproval, unless provision is made by the Seller within the time specified
therefore by the Buyer in such conditional approval or by this Agreement,
whichever is later, for the satisfaction of the condition imposed by the Buyer.
Escrow Holder shall promptly provide all Parties with copies of any written
disapproval or conditional approval which it receives. With regard to
subparagraphs (a) through (I) the pre-printed time periods shall control unless
a different number of days is inserted in the spaces provided.
(a) Disclosure. Seller shall disclose to Buyer any matters required by
applicable law (see paragraph 2.4) and provide Buyer with a completed Property
Information Sheet ("Property Information Sheet") concerning the Property, duly
executed by or on behalf of Seller in the current form or equivalent to that
published by the AIR within 5 days following the Date of Agreement. Buyer has 10
days from the receipt of said disclosures to approve or disapprove the matters
disclosed.
(b) Physical Inspection. Buyer has 10 days from the receipt of the
Property Information Sheet or the Date of Agreement, whichever is later, to
satisfy itself with regard to the physical aspects and size of the Property.
(c) Hazardous Substance Conditions Report. Buyer has 15 days from the
Date of Agreement, whichever is later, to satisfy itself with regard to the
environmental aspects of the Property. Seller recommends that Buyer obtain a
Hazardous Substance Conditions Report concerning the Property and relevant
adjoining properties. Any such report shall be paid for by Buyer. A "Hazardous
Substance" for purposes of this Agreement is defined as any substance whose
nature and/or quantity of existence, use, manufacture, disposal or effect,
render it subject to Federal, state or local regulation, investigation,
remediation or removal as potentially injurious to public health or welfare. A
"Hazardous Substance Condition" for purposes of this Agreement is defined as the
existence on, under or relevantly adjacent to the Property of a Hazardous
Substance that would require remediation and/or removal under applicable
Federal, state or local law.
(d) Soil Inspection. Buyer has 15 days from the Date of Agreement,
whichever is later, to satisfy itself with regard to the condition of the soils
on the Property. Seller recommends that Buyer obtain a soil test report. Any
such report shall be paid for by Buyer. Seller shall provide Buyer copies of any
soils report that Seller may have within 49 (5) days of the Date of Agreement.
(e) Governmental Approvals. Buyer has 15 days from the Date of Agreement
to satisfy itself with regard to approvals and permits from governmental
agencies or departments which have or may have jurisdiction over the Property
and which Buyer deems necessary or desirable in connection with its intended use
of the Property, including, but not limited to, permits and approvals required
with respect to zoning, planning, building and safety, fire, police, handicapped
and Americans with Disabilities Act requirements, transportation and
environmental matters.
(f) Conditions of Title. Escrow Holder shall cause a current commitment
for title insurance ("Title Commitment") concerning the Property issued by the
Title Company, as well as legible copies of all documents referred to in the
Title Commitment ("Underlying Documents") to be delivered to Buyer within 5 days
following the Date of Agreement. Buyer has 10 days from the receipt of the Title
Commitment and Underlying Documents to satisfy itself with regard to the
condition of title. The disapproval of Buyer of any monetary encumbrance, which
by the terms of this Agreement is not to remain against the Property after the
Closing, shall not be considered a failure of this contingency, as Seller shall
have the obligation, at Seller's expense, to satisfy and remove such disapproved
monetary encumbrance at or before the Closing.
(g) Survey. Buyer has 15 days from the receipt of the Title Commitment
and Underlying Documents to satisfy itself with regard to any ALTA title
supplement based upon a survey prepared to American Land Title Association
("ALTA") standards for an owner's policy by a licensed surveyor, showing the
legal description and boundary lines of the Property, any easements of record,
and any improvements, poles, structures and things located within 10 feet of
either side of the Property boundary lines. Any such survey shall be prepared at
Xxxxx's direction and expense. If Xxxxx has obtained a survey and approved the
ALTA title supplement, Buyer may elect within the period allowed for Buyer's
approval of a survey to have an ALTA extended coverage owner's form of title
policy, in which event Buyer shall pay any additional premium attributable
thereto.
(h) Existing Leases and Tenancy Statements. Seller shall within 5 days
of the Date of Agreement provide both Buyer and Escrow Holder with legible
copies of all leases, subleases or rental arrangements (collectively, "Existing
Leases") affecting the Property, and with a tenancy statement ("Estoppel
Certificate") in the latest form or equivalent to that published by the AIR,
executed by Seller and/or each tenant and subtenant of the Property. Seller
shall use its best efforts to have each tenant complete and execute an Estoppel
Certificate. If any tenant fails or refuses to provide an Estoppel Certificate
then Seller shall complete and execute an Estoppel Certificate for that tenancy.
Buyer has 10 days from the receipt of said Existing Leases and Estoppel
Certificates to satisfy itself with regard to the Existing Leases and any other
tenancy issues.
(i) Other Agreements. Seller shall within 5 days of the Date of
Agreement provide Buyer with legible copies of all other agreements ("Other
Agreements") known to Seller that will affect the Property after Closing. Buyer
has 10 days from the receipt of said Other Agreements to satisfy itself with
regard to such Agreements.
(j) Financing. If paragraph 5 hereof dealing with a financing
contingency has not been stricken, the satisfaction or waiver of such New Loan
contingency.
(k) Deleted
(I) Personal Property. In the event that any personal property is
included in the Purchase Price, Buyer has 10 days from the Date of Agreement to
satisfy itself with regard to the title condition of such personal property.
Seller recommends that Buyer obtain a UCC-1 report. Any such report shall be
paid for by Buyer. Seller shall provide Buyer copies of any liens or
encumbrances affecting such personal property that it is aware of within 10 days
of the Date of Agreement.
(m) Destruction, Damage or Loss. There shall not have occurred prior to
the Closing, a destruction of, or damage or loss to, the Property or any portion
thereof, from any cause whatsoever, which would cost more than $10,000.00 to
repair or cure. If the cost of repair or cure is $10,000.00 or less, Seller
shall repair or cure the loss prior to the Closing. Buyer shall have the option,
within 10 days after receipt of written notice of a loss costing more than
$10,000.00 to repair or cure, to either terminate this transaction or to
purchase the Property notwithstanding such loss, but without deduction or offset
against the Purchase Price. If the cost to repair or cure is more than
$10,000.00, and Buyer does not elect to terminate this transaction, Buyer shall
be entitled to any insurance proceeds applicable to such loss. Unless otherwise
notified in writing, Escrow Holder shall assume no such destruction, damage or
loss has occurred prior to Closing.
(n) Material Change. Buyer shall have 10 days following receipt of
written notice of a Material Change within which to satisfy itself with regard
to such change. "Material Change" shall mean a change in the status of the use,
occupancy, tenants, or condition of the Property that occurs after the date of
this offer)and prior to the Closing. Unless otherwise notified in writing,
Escrow Holder shall assume that no Material Change has occurred prior to the
Closing.
(o) Seller Performance. The delivery of all documents and the due
performance by Seller of each and every undertaking and agreement to be
performed by Seller under this Agreement.
(p) Warranties. That each representation and warranty of Seller herein be
true and correct as of the Closing. Escrow Holder shall assume that this
condition has been satisfied unless notified to the contrary in writing by any
Party prior to the Closing.
(q) Brokerage Fee. Payment at the Closing of such brokerage fee as is
specified in this Agreement or later written instructions to Escrow Holder
executed by Seller and Brokers ("Brokerage Fee"). It is agreed by the Parties
and Escrow Holder that Brokers are a third party beneficiary of this Agreement
insofar as the Brokerage Fee is concerned, and that no change shall be made with
respect to the payment of the Brokerage Fee specified in this Agreement, without
the written consent of Brokers.
9.2 All of the contingencies specified in subparagraphs (a) through (p) of
paragraph 9.1 are for the benefit of, and may be waived by, Buyer, and may be
elsewhere herein referred to as "Buyer Contingencies." 9.3 If any Buyer's
Contingency or any other matter subject to Xxxxx's approval is disapproved as
provided for herein in a timely manner ("Disapproved Item"), Seller shall have
the right within (5) days following the receipt of notice of Xxxxx's disapproval
to elect to cure such Disapproved Item prior to the Expected Closing Date
("Seller's Election"). Seller's failure to give to Buyer within said (5) day
period, written notice of Seller's commitment to cure such Disapproved Item on
or before the Expected Closing Date shall be conclusively presumed to be
Seller's Election not to cure such Disapproved Item. If Seller elects, either by
written notice or failure to give written notice, not to cure a Disapproved
Item, Xxxxx shall have the election, within (5) days after Seller's Election to
either accept title to the Property subject to such Disapproved Item, or to
terminate this transaction. Xxxxx's failure to notify Seller in writing of
Xxxxx's election to accept title to the Property subject to the Disapproved Item
without deduction or offset shall constitute Buyer's election to terminate this
transaction. Unless expressly provided otherwise herein, Seller's right to cure
shall not apply to the remediation of Hazardous Substance Conditions or to the
Financing Contingency. Unless the Parties mutually instruct otherwise, if the
time periods for the satisfaction of contingencies or for Seller's and Xxxxx's
said Elections would expire on a date after the Expected Closing Date, the
Expected Closing Date shall be deemed extended to coincide with the expiration
of 3 business days following the expiration of: (a) the applicable contingency
period(s), (b) the period within which the Seller may elect to cure the
Disapproved Item, or (c) if Seller elects not to cure, the period within which
Buyer may elect to proceed with this transaction, whichever is later.
9.4 Buyer understands and agrees that until such time as all Xxxxx's
Contingencies have been satisfied or waived, Seller and/or its agents may
solicit, entertain and/or accept back-up offers to purchase the subject
Property.
9.5 The Parties acknowledge that extensive local, state and Federal
legislation establish broad liability upon owners and/or users of real property
for the investigation and remediation of Hazardous Substances. The determination
of the existence of a Hazardous Substance Condition and the evaluation of the
impact of such a condition are highly technical and beyond the expertise of
Brokers. The Parties acknowledge that they have been advised by Brokers to
consult their own technical and legal experts with respect to the possible
presence of Hazardous Substances on this Property or adjoining properties, and
Buyer and Seller are not relying upon any investigation by or statement of
Brokers with respect thereto. The Parties hereby assume all responsibility for
the impact of such Hazardous Substances upon their respective interests herein.
10. Documents Required at or before Closing:
10.1 Five days prior to the Closing date Escrow Holder shall obtain an
updated Title Commitment concerning the Property from the Title Company and
provide copies thereof to each of the Parties.
10.2 Seller shall deliver to Escrow Holder in time for delivery to Buyer at the
Closing, an original ink signed:
(a)___Grant or general warranty deed, xxxx executed and in recordable form,
conveying fee title to the Property to Buyer.
(b) Deleted
(c) If applicable, the Existing Leases and Other Agreements together with
duly executed assignments thereof by Xxxxxx and Xxxxx. The assignment
of Existing Leases shall be on the most recent Assignment and
Assumption of Lessor's Interest in Lease form published by the AIR or
its equivalent.
(d) If applicable, Estoppel Certificates executed by Seller and/or the
tenant(s) of the Property.
(e) An affidavit executed by Seller to the effect that Seller is not a
"foreign person" within the meaning of Internal Revenue Code Section
1445 or successor statutes. If Seller does not provide such affidavit
in form reasonably satisfactory to Buyer at least 3 business days
prior to the Closing, Escrow Holder shall at the Closing deduct from
Seller's proceeds and remit to Internal Revenue Service such sum as is
required by applicable Federal law with respect to purchases from
foreign sellers.
(f) If the Property is located in California, an affidavit executed by
Seller to the effect that Seller is not a "nonresident" within the
meaning of California Revenue and Tax Code Section 18662 or successor
statutes. If Seller does not provide such affidavit in form reasonably
satisfactory to Buyer at least three business days prior to the
Closing, Escrow Holder shall at the Closing deduct from Seller's
proceeds and remit to the Franchise Tax Board such sum as is required
by such statute.
(g) If applicable, a bill of sale, duly executed, conveying title to any
included personal property to Xxxxx.
(h) If the Seller is a corporation, a duly executed corporate resolution
authorizing the execution of this Agreement and the sale of the
Property.
10.3 Buyer shall deliver to Seller through Escrow:
(a) The cash portion of the Purchase Price and such additional sums as
are required of Buyer under this Agreement for prorations, expenses and
adjustments. The balance of the cash portion of the Purchase Price,
including Buyer's Escrow charges and other cash charges, if any, shall be
deposited by Buyer with Escrow Holder, by federal funds wire transfer, or
any other method acceptable to Escrow Holder as immediately collectable
funds, no later than 2:00 P.M. on the business day prior to the Expected
Closing Date.
(b) If a Purchase Money Note and Purchase Money Deed of Trust are
called for by this Agreement, the duly executed originals of those
documents, the Purchase Money Deed of Trust being in recordable form,
together with evidence of fire insurance on the improvements in the amount
of the full replacement cost naming Seller as a mortgage loss payee, and a
real estate tax service contract (at Buyer's expense), assuring Seller of
notice of the status of payment of real property taxes during the life of
the Purchase Money Note.
(c) The Assignment and Assumption of Lessor's Interest in Lease form
specified in paragraph 10.2(c) above, duly executed by Xxxxx.
(d) Assumptions duly executed by Xxxxx of the obligations of Seller
that accrue after Closing under any Other Agreements. (e) If applicable, a
written assumption duly executed by Xxxxx of the loan documents with
respect to Existing Notes.
(f) If the Buyer is a corporation, a duly executed corporate
resolution authorizing the execution of this Agreement and the purchase of
the Property.
10.4 At Closing, Escrow Holder shall cause to be issued to Buyer a standard
coverage (or ALTA extended, if elected under paragraph 9.1(g)) owner's form
policy of title insurance effective as of the Closing, issued by the Title
Company in the full amount of the Purchase Price, insuring title to the Property
vested in Buyer, subject only to the exceptions approved by Buyer. In the event
there is a Purchase Money Deed of Trust in this transaction, the policy of title
insurance shall be a joint protection policy insuring both Buyer and Seller.
IMPORTANT: IN A PURCHASE OR EXCHANGE OF REAL PROPERTY, IT MAY BE ADVISABLE TO
OBTAIN TITLE INSURANCE IN CONNECTION WITH THE CLOSE OF ESCROW SINCE THERE MAY BE
PRIOR RECORDED LIENS AND ENCUMBRANCES WHICH AFFECT YOUR INTEREST IN THE PROPERTY
BEING ACQUIRED. A NEW POLICY OF TITLE INSURANCE SHOULD BE OBTAINED IN ORDER TO
ENSURE YOUR INTEREST IN THE PROPERTY THAT YOU ARE ACQUIRING.
11. Prorations and Adjustments.
11.1 Taxes. Real property taxes and special assessment bonds payable
by the owner of the Property shall be prorated through Escrow as of the
date of the Closing, based upon the latest tax bill available. The Parties
agree to prorate as of the Closing any taxes assessed against the Property
by supplemental bill levied by reason of events occurring prior to the
Closing. Payment shall be made promptly in cash upon receipt of a copy of
any such supplemental bill of the amount necessary to accomplish such
proration.
11.2 Insurance. WARNING: The insurance coverage which Seller
maintained on the Property will terminate on the Closing. Buyer is advised
to obtain appropriate insurance to cover the Property.
11.3 Rentals, Interest and Expenses. Collected rentals, interest on
Existing Notes, utilities, and operating expenses shall be prorated as of
the date of Closing. The Parties agree to promptly adjust between
themselves outside of Escrow any rents received after the Closing.
11.4 Security Deposit. Security Deposits held by Seller shall be given
to Buyer as a credit to the cash required of Buyer at the Closing.
11.5 Post Closing Matters. Any item to be prorated that is not
determined or determinable at the Closing shall be promptly adjusted by the
Parties by appropriate cash payment outside of the Escrow when the amount
due is determined.
11.6 Deleted
11.7 Variations in New Loan Balance. In the event Buyer is obtaining a
New Loan and in the event that the amount of the New Loan actually obtained
is greater than the amount set forth in paragraph 5.1 hereof, the Purchase
Money Note, if one is called for in this transaction, shall be reduced by
the excess of the actual face amount of the New Loan over such amount as
designated in paragraph 5.1 hereof.
12. Representation and Warranties of Seller and Disclaimers.
12.1 Seller's warranties and representations shall survive the Closing and
delivery of the deed for a period of three years, and, are true, material and
relied upon by Xxxxx and Brokers in all respects. Seller hereby makes the
following warranties and representations to Buyer and Brokers:
(a) Authority of Seller. Seller is the owner of the Property and/or
has the full right, power and authority to sell, convey and transfer the
Property to Buyer as provided herein, and to perform Seller's obligations
hereunder.
(b) Maintenance During Escrow and Equipment Condition At Closing.
Except as otherwise provided in paragraph 9.1(m) hereof, Seller shall
maintain the Property until the Closing in its present condition, ordinary
wear and tear excepted. The HVAC, plumbing, elevators, loading doors and
electrical systems shall be in good operating order and condition at the
time of Closing.
(c) Hazardous Substances/Storage Tanks. Seller has no knowledge,
except as otherwise disclosed to Buyer in writing, of the existence or
prior existence on the Property of any Hazardous Substance, nor of the
existence or prior existence of any above or below ground storage tank.
(d) Compliance. Seller has no knowledge of any aspect or condition of
the Property which violates applicable laws, rules, regulations, codes or
covenants, conditions or restrictions, or of improvements or alterations
made to the Property without a permit where one was required, or of any
unfulfilled order or directive of any applicable governmental agency or
casualty insurance company requiring any investigation, remediation,
repair, maintenance or improvement be performed on the Property.
(e) Changes in Agreements. Prior to the Closing, Seller will not
violate or modify any Existing Lease or Other Agreement, or create any new
leases or other agreements affecting the Property, without Buyer's written
approval, which approval will not be unreasonably withheld.
(f) Possessory Rights. Seller has no knowledge that anyone will, at
the Closing, have any right to possession of the Property, except as
disclosed by this Agreement or otherwise in writing to Buyer.
(g) Mechanics' Liens. There are no unsatisfied mechanics' or
materialmens' lien rights concerning the Property.
(h) Actions, Suits or Proceedings. Seller has no knowledge of any
actions, suits or proceedings pending or threatened before any commission,
board, bureau, agency, arbitrator, court or tribunal that would affect the
Property or the right to occupy or utilize same.
(i) Notice of Changes. Seller will promptly notify Buyer and Brokers
in writing of any Material Change (see paragraph 9.1(n)) affecting the
Property that becomes known to Seller prior to the Closing.
(j) No Tenant Bankruptcy Proceedings. Seller has no notice or
knowledge that any tenant of the Property is the subject of a bankruptcy or
insolvency proceeding.
(k) No Seller Bankruptcy Proceedings. Seller is not the subject of a
bankruptcy, insolvency or probate proceeding.
(I) Personal Property. Seller has no knowledge that anyone will, at
the Closing, have any right to possession of any personal property included
in the Purchase Price nor knowledge of any liens or encumbrances affecting
such personal property, except as disclosed by this Agreement or otherwise
in writing to Buyer.
12.2 Buyer hereby acknowledges that, except as otherwise stated in this
Agreement, Buyer is purchasing the Property in its existing condition and will,
by the time called for herein, make or have waived all inspections of the
Property Buyer believes are necessary to protect its own interest in, and its
contemplated use of, the Property. The Parties acknowledge that, except as
otherwise stated in this Agreement, no representations, inducements, promises,
agreements, assurances, oral or written, concerning the Property, or any aspect
of the occupational safety and health laws, Hazardous Substance laws, or any
other act, ordinance or law, have been made by either Party or Brokers, or
relied upon by either Party hereto.
12.3 In the event that Xxxxx learns that a Seller representation or warranty
might be untrue prior to the Closing, and Xxxxx elects to purchase the Property
anyway then, and in that event, Buyer waives any right that it may have to bring
an action or proceeding against Seller or Brokers regarding said representation
or warranty.
12.4 Any environmental reports, soils reports, surveys, and other similar
documents which were prepared by third party consultants and provided to Buyer
by Seller or Seller's representatives, have been delivered as an accommodation
to Buyer and without any representation or warranty as to the sufficiency,
accuracy, completeness, and/or validity of said documents, all of which Xxxxx
relies on at its own risk. Xxxxxx believes said documents to be accurate, but
Xxxxx is advised to retain appropriate consultants to review said documents and
investigate the Property.
13. Possession. See Addendum, Paragraph 27
14. Buyer's Entry.
At any time during the Escrow period, Buyer, and its agents and representatives,
shall have the right at reasonable times and subject to rights of tenants, to
enter upon the Property for the purpose of making inspections and tests
specified in this Agreement. No destructive testing shall be conducted, however,
without Seller's prior approval which shall not be unreasonably withheld.
Following any such entry or work, unless otherwise directed in writing by
Seller, Buyer shall return the Property to the condition it was in prior to such
entry or work, including the recompaction or removal of any disrupted soil or
material as Seller may reasonably direct. All such inspections and tests and any
other work conducted or materials furnished with respect to the Property by or
for Buyer shall be paid for by Buyer as and when due and Buyer shall indemnify,
defend, protect and hold harmless Seller and the Property of and from any and
all claims, liabilities, losses, expenses (including reasonable attorneys'
fees), damages, including those for injury to person or property, arising out of
or relating to any such work or materials or the acts or omissions of Buyer, its
agents or employees in connection therewith.
15. Further Documents and Assurances.
The Parties shall each, diligently and in good faith, undertake all actions and
procedures reasonably required to place the Escrow in condition for Closing as
and when required by this Agreement. The Parties agree to provide all further
information, and to execute and deliver all further documents, reasonably
required by Xxxxxx Holder or the Title Company.
16. Attorneys' Fees.
If any Party or Broker brings an action or proceeding (including arbitration)
involving the Property, to enforce the terms hereof, or to declare rights
hereunder, the Prevailing Party (as hereafter defined) in any such proceeding,
action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such
fees may be awarded in the same suit or recovered in a separate suit, whether or
not such action or proceeding is pursued to decision or judgment. The term
"Prevailing Party" shall include, without limitation, a Party or Broker who
substantially obtains or defeats the relief sought, as the case may be, whether
by compromise, settlement, judgment, or the abandonment by the other Party or
Broker of its claim or defense. The attorneys' fees award shall not be computed
in accordance with any court fee schedule, but shall be such as to fully
reimburse all attorneys' fees reasonably incurred.
17. Prior Agreements/Amendments.
17.1 This Agreement supersedes any and all prior agreements between
Seller and Xxxxx regarding the Property.
17.2 Amendments to this Agreement are effective only if made in writing
and executed by Xxxxx and Seller.
18. Broker's Rights.
18.1 If this sale is not consummated due to the default of either the
Buyer or Seller, the defaulting Party shall be liable to and shall pay to
Brokers the Brokerage Fee that Brokers would have received had the sale
been consummated. If Buyer is the defaulting party, payment of said
Brokerage Fee is in addition to any obligation with respect to liquidated
or other damages.
18.2 Upon the Closing, Brokers are authorized to publicize the facts
of this transaction.
19. Notices.
19.1 Whenever any Party, Escrow Holder or Brokers herein shall desire
to give or serve any notice, demand, request, approval, disapproval or
other communication, each such communication shall be in writing and shall
be delivered personally, by messenger or by mail, postage prepaid, to the
address set forth in this Agreement or by facsimile transmission.
19.2 Service of any such communication shall be deemed made on the
date of actual receipt if personally delivered. Any such communication sent
by regular mail shall be deemed given 48 hours after the same is mailed.
Communications sent by United States Express Mail or overnight courier that
guarantee next day delivery shall be deemed delivered 24 hours after
delivery of the same to the Postal Service or courier. Communications
transmitted by facsimile transmission shall be deemed delivered upon
telephonic confirmation of receipt (confirmation report from fax machine is
sufficient), provided a copy is also delivered via delivery or mail. If
such communication is received on a Saturday, Sunday or legal holiday, it
shall be deemed received on the next business day.
19.3 Any Party or Broker hereto may from time to time, by notice in
writing, designate a different address to which, or a different person or
additional persons to whom all communications are thereafter made.
20. Duration of Offer.
20.1 If this offer is not accepted by Seller on or before 5:00 P.M.
according to the time standard applicable to the city of San Diego, CA on
the date of October 23, 2000, it shall be deemed automatically revoked.
20.2 The acceptance of this offer, or of any subsequent counteroffer
hereto, that creates an agreement between the Parties as described in
paragraph 1.2, shall be deemed made upon delivery to the other Party or
either Broker herein of a duly executed writing unconditionally accepting
the last outstanding offer or counteroffer.
21. LIQUIDATED DAMAGES. (This Liquidated Damages paragraph is applicable
only if initialed by both Parties). THE PARTIES AGREE THAT IT WOULD BE
IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, PRIOR TO SIGNING THIS AGREEMENT,
THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED BY SELLER IF BUYER FAILS TO PERFORM
ITS OBLIGATIONS UNDER THIS AGREEMENT. THEREFORE, IF, AFTER THE SATISFACTION OR
WAIVER OF ALL CONTINGENCIES PROVIDED FOR THE BUYER'S BENEFIT, BUYER BREACHES
THIS AGREEMENT, SELLER SHALL BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF
$75, 000. 00. UPON PAYMENT OF SAID SUM TO SELLER, BUYER SHALL BE RELEASED FROM
ANY FURTHER LIABILITY TO SELLER, AND ANY ESCROW CANCELLATION FEES AND TITLE
COMPANY CHARGES SHALL BE PAID BY SELLER.
Buyer Initials __ Seller initials __
22. ARBITRATION OF DISPUTES. (This Arbitration of Disputes paragraph is
applicable only if initialed by both Parties.)
22.1 ANY CONTROVERSY AS TO WHETHER SELLER IS ENTITLED TO THE
LIQUIDATED DAMAGES AND/OR BUYER IS ENTITLED TO THE RETURN OF DEPOSIT MONEY,
SHALL BE DETERMINED BY BINDING ARBITRATION BY, AND UNDER THE COMMERCIAL
RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("COMMERCIAL RULES").
ARBITRATION HEARINGS SHALL BE HELD IN THE COUNTY WHERE THE PROPERTY IS
LOCATED. ANY SUCH CONTROVERSY SHALL BE ARBITRATED BY THREE ARBITRATORS WHO
SHALL BE IMPARTIAL REAL ESTATE BROKERS WITH AT LEAST 5 YEARS OF FULL TIME
EXPERIENCE IN BOTH THE AREA WHERE THE PROPERTY IS LOCATED AND THE TYPE OF
REAL ESTATE THAT IS THE SUBJECT OF THIS AGREEMENT. THEY SHALL BE APPOINTED
UNDER THE COMMERCIAL RULES. THE ARBITRATORS SHALL HEAR AND DETERMINE SAID
CONTROVERSY IN ACCORDANCE WITH APPLICABLE LAW, THE INTENTION OF THE PARTIES
AS EXPRESSED IN THIS AGREEMENT AND ANY AMENDMENTS THERETO, AND UPON THE
EVIDENCE PRODUCED AT AN ARBITRATION HEARING. PRE-ARBITRATION DISCOVERY
SHALL BE PERMITTED IN ACCORDANCE WITH THE COMMERCIAL RULES OR STATE LAW
APPLICABLE TO ARBITRATION PROCEEDINGS. THE AWARD SHALL BE EXECUTED BY AT
LEAST TWO OF THE THREE ARBITRATORS, BE RENDERED WITHIN 30 DAYS AFTER THE
CONCLUSION OF THE HEARING, AND MAY INCLUDE ATTORNEYS' FEES AND COSTS TO THE
PREVAILING PARTY PER PARAGRAPH 16 HEREOF. JUDGMENT MAY BE ENTERED ON THE
AWARD IN ANY COURT OF COMPETENT JURISDICTION NOTWITHSTANDING THE FAILURE OF
A PARTY DULY NOTIFIED OF THE ARBITRATION HEARING TO APPEAR THEREAT.
22.2 BUYER'S RESORT TO OR PARTICIPATION IN SUCH ARBITRATION
PROCEEDINGS SHALL NOT BAR SUIT IN A COURT OF COMPETENT JURISDICTION BY THE
BUYER FOR DAMAGES AND/OR SPECIFIC PERFORMANCE UNLESS AND UNTIL THE
ARBITRATION RESULTS IN AN AWARD TO THE SELLER OF LIQUIDATED DAMAGES, IN
WHICH EVENT SUCH AWARD SHALL ACT AS A BAR AGAINST ANY ACTION BY BUYER FOR
DAMAGES AND/OR SPECIFIC PERFORMANCE.
22.3 NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE
THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE
BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL,
UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING
TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF
THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION
PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION TO NEUTRAL ARBITRATION.
Buyer Initials __ Seller Initials __
23. Miscellaneous.
23.1 Binding Effect. This Agreement shall be binding on the Parties
without regard to whether or not paragraphs 21 and 22 are initialed by both
of the Parties. Paragraphs 21 and 22 are each incorporated into this
Agreement only if initialed by both Parties at the time that the Agreement
is executed.
23.2 Applicable Law. This Agreement shall be governed by, and
paragraph 22.3 is amended to refer to, the laws of the state in which the
Property is located.
23.3 Time of Essence. Time is of the essence of this Agreement.
23.4 Counterparts. This Agreement may be executed by Xxxxx and Seller
in counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument. Escrow Holder,
after verifying that the counterparts are identical except for the
signatures, is authorized and instructed to combine the signed signature
pages on one of the counterparts, which shall then constitute the
Agreement.
23.5 Waiver of Jury Trial. The Parties hereby waive their respective
rights to trial by jury in any action or proceeding involving the Property
or arising out of this Agreement.
24. Disclosures Regarding The Nature of a Real Estate Agency Relationship.
24.1 The Parties and Brokers agree that their relationship(s) shall be
governed by the principles set forth in the applicable sections of the
California Civil Code, as summarized in paragraph 24.2.
24.2 When entering into a discussion with a real estate agent
regarding a real estate transaction, a Buyer or Seller should from the
outset understand what type of agency relationship or representation it has
with the agent or agents in the transaction. Xxxxx and Xxxxxx acknowledge
being advised by the Brokers in this transaction, as follows:
(a) Seller's Agent. A Seller's agent under a listing agreement
with the Seller acts as the agent for the Seller only. A Seller's
agent or subagent has the following affirmative obligations: (1) To
the Seller. A fiduciary duty of utmost care, integrity, honesty, and
loyalty in dealings with the Seller. (2) To the Buyer and the Seller.
a. Diligent exercise of reasonable skills and care in performance of
the agent's duties. b. A duty of honest and fair dealing and good
faith. c. A duty to disclose all facts known to the agent materially
affecting the value or desirability of the property that are not known
to, or within the diligent attention and observation of, the Parties.
An agent is not obligated to reveal to either Party any confidential
information obtained from the other Party which does not involve the
affirmative duties set forth above.
(b) Xxxxx's Agent. A selling agent can, with a Xxxxx's consent,
agree to act as agent for the Buyer only. In these situations, the
agent is not the Sellers agent, even if by agreement the agent may
receive compensation for services rendered, either in full or in part
from the Seller. An agent acting only for a Xxxxx has the following
affirmative obligations. (1) To the Buyer: A fiduciary duty of utmost
care, integrity, honesty, and loyalty In dealings with the Buyer . (2)
To the Buyer and the Seller a. Diligent exercise of reasonable skills
and care in performance of the agent's fair dealing and good faith. c.
A duty to disclose all facts known to the agent materially affecting
the value or desirability of the Property that are not known to, or
within the diligent attention and observation of, the Parties. An
agent is not obligated to reveal to either Party any confidential
information obtained from the other Party which does not involve the
affirmative duties set forth above.
(c) Agent Representing Both Seller and Buyer. A real estate
agent, either acting directly or through one or more associate
licenses, can legally be the agent of both the Seller and the Buyer in
a transaction, but only with the knowledge and consent of both the
Seller and the Buyer. (1) In a dual agency situation, the agent has
the following affirmative obligations to both the Seller and the
Buyer: a. A fiduciary duty of utmost care, integrity, honesty and
loyalty in the dealings with either Seller or the Buyer. b. Other
duties to the Seller and the Buyer as stated above in their respective
sections (a) or (b) of this paragraph 24.2. (2) In representing both
Seller and Buyer, the agent may not without the express permission of
the respective Party, disclose to the other Party that the Seller will
accept a price less than the listing price or that the Buyer will pay
a price greater than the price offered. (3) The above duties of the
agent in a real estate transaction do not relieve a Seller or Buyer
from the responsibility to protect their own interests. Buyer and
Seller should carefully read all agreements to assure that they
adequately express their understanding of the transaction. A real
estate agent is a person qualified to advise about real estate. If
legal or tax advice is desired, consult a competent professional.
(d) Further Disclosures. Throughout this transaction Buyer and
Seller may receive more than one disclosure, depending upon the number
of agents assisting in the transaction. Buyer and Seller should each
read its contents each time it is presented, considering the
relationship between them and the real estate agent in this
transaction and that disclosure. Brokers have no responsibility with
respect to any default or breach hereof by either Party. The liability
(including court costs and attorneys' fees), of any Broker with
respect to any breach of duty, error or omission relating to this
Agreement shall not exceed the fee received by such Broker pursuant to
this Agreement; provided, however, that the foregoing limitation on
each Broker's liability shall not be applicable to any gross
negligence or willful misconduct of such Broker.
24.3 Confidential Information: Buyer and Seller agree to identify to
Brokers as "Confidential" any communication or information given Brokers
that is considered by such Party to be confidential.
25. Construction of Agreement. In construing this Agreement, all headings
and titles are for the convenience of the Parties only and shall not be
considered a part of this Agreement. Whenever required by the context, the
singular shall include the plural and vice versa. Unless otherwise specifically
indicated to the contrary, the word "days" as used in this Agreement shall mean
and refer to calendar days. This Agreement shall not be construed as if prepared
by one of the parties, but rather according to its fair meaning as a whole, as
if both Parties had prepared it.
26 Additional Provisions: Additional provisions of this offer, if any, are
as follows or are attached hereto by an addendum consisting of paragraphs 27
through 30. (If there are no additional provisions write "NONE".)
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY,
LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS AGREEMENT OR THE TRANSACTION TO WHICH
IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS
AGREEMENT.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION
OF THE PROPERTY. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO:
THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY,
THE INTEGRITY AND CONDITION OF ANY STRUCTURES AND OPERATING SYSTEMS, AND
THE SUITABILITY OF THE PROPERTY FOR BUYER'S INTENDED USE.
WARNING: IF THE PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN
PROVISIONS OF THIS AGREEMENT MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF
THE STATE IN WHICH THE PROPERTY IS LOCATED.
NOTE:
1. THIS FORM IS NOT FOR USE IN CONNECTION WITH THE SALE OF RESIDENTIAL PROPERTY.
2. IF THE BUYER IS A CORPORATION, IT IS RECOMMENDED THAT THIS AGREEMENT BE
SIGNED BY TWO CORPORATE OFFICERS.
The undersigned Xxxxx offers and agrees to buy the Property on the terms and
conditions stated and acknowledges receipt of a copy hereof.
Broker: Buyer:
Xxxx Xxxxx Xxxx Xxxxxxxx Xxxx
By: /S/ XXXXXXXXX XXXX
27. Acceptance.
27.1 Seller accepts the foregoing offer to purchase the Property and
hereby agrees to sell the Property to Buyer on the terms and conditions therein
specified.
27.2 Seller acknowledges that Brokers have been retained to locate a Buyer
and are the procuring cause of the purchase and sale of the Property set forth
in this Agreement. In consideration of real estate brokerage service rendered by
Xxxxxxx, Xxxxxx agrees to pay Brokers a real estate Brokerage Fee in a sum equal
to 6% of the Purchase Price divided in such shares as said Brokers shall direct
in writing. This Agreement shall serve as an irrevocable instruction to Escrow
Holder to pay such Brokerage Fee to Brokers out of the proceeds accruing to the
account of Seller at the Closing.
27. Seller acknowledges receipt of a copy hereof and authorizes Brokers to
deliver a signed copy to Buyer.
NOTE: A PROPERTY INFORMATION SHEET IS REQUIRED TO BE DELIVERED TO BUYER BY
SELLER UNDER THIS AGREEMENT.
-
BROKER: SELLER:
San Diego Commercial Real Estate Services Bowling Properties, Inc.
By: By: /S/ Xxxxxx X. Xxxxx
Xxxx Xxxxxxxxx Xxxxxx X. Xxxxx, President
ADDENDUM TO PURCHASE AGREEMENT AND ESCROW INSTRUCTION FOR PURCHASE OF REAL
ESTATE DATED OCTOBER 23, 2000 BY AND BETWEEN XXXX XXXXXXXX XXXX (BUYER) AND
BOWLING PROPERTIES, INC. (SELLER)
26. PERSONAL PROPERTY:
Seller shall remove bowling lanes, pinsetters and other equipment
related to the bowling alley operation from the property and deliver the
premises in a broom clean condition, within fifteen (15) days from close
of escrow and subject to paragraph 27.
27. POSSESSION:
Seller shall deliver to Buyer possession of property fifteen (15) days
after close of escrow provided escrow closes on December 20, 2000. In the
event that the Buyer wishes to close escrow prior to the scheduled close
of escrow date, the Buyer shall deliver a written notice to the Seller
ten (10) days prior to the early closing date. Should Seller not deliver
possession of property fifteen (15) days after closing, subject to the
above notification, Seller will pay daily rent to the Buyer based on a
thirty (30) day proration incorporating Buyers debt service, property
taxes and building insurance.
28. FENCED PARKING CONTINGENCY:
Within ten (10) days of execution of purchase agreement Seller will
deliver to Buyer written approval or denial from the appropriate owners
necessary for Buyer to obtain a fenced vehicle parking area at the north
east portion of the parking lot, west of the Xxxx Xxxxxxx paint store.
(Approximately 125'longx67'wide). Upon Seller obtaining necessary
approval Seller shall have Title record the approval allowing Xxxxx to
fence said parking area. Xxxxx will agree to screen said area if
necessary to gain approval. If approval is not achieved, Buyer shall
either waive the fenced parking contingency or agree to cancel escrow
immediately, subject to the provisions of the purchase agreement.
29. CONTINGENCY REMOVAL:
With exception of the Buyer obtaining an SBA loan commitment from the
SBA and the property appraising for the $2,215,000.00 purchase price,
Buyer will remove all other Buyer contingencies within fifteen (15) days
from full execution of the purchase agreement (Friday, November 6,
2000). Buyer shall have thirty (30) days from full execution of the
purchase agreement to remove the SBA loan commitment and property
appraisal contingencies.
(November 21, 2000)
30. NON-REFUNDABLE SECURITY DEPOSIT:
The security deposit shall be increased to Seventy-five Thousand and
00/100 Dollars ($75,000.00) on November 6, 2000 and shall be refundable
only under the following contingencies not being met:
A. The Buyer does not obtain a SBA loan commitment for the purchase
price of $2,215,000.00.
B. The property does not appraise at or above the purchase price of
$2,215,000.00.
Upon satisfaction and removal of the above contingencies and subject to
the Seller not defaulting under the terms of the purchase agreement, the
security deposit of Seventy-five Thousand and 00/100 Dollars
($75,000.00) shall become non-refundable.
BUYER: XXXXXXXX XXXX
/S/ XXXXXXXX XXXX DATE: OCTOBER 23, 2000
SELLER: BOWLING PROPERTIES, INC.
BY: /S/ XXXXXX X. XXXXX DATE: OCTOBER 20, 2000
Xxxxxx X. Xxxxx, President
