EXHIBIT 10.6
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT is made this ____ day of December,
1998, (the Effective Date") by and between Napa Main Street Investors, a
California limited partnership, ("Seller"), and Napa National Bank, a California
Corporation ("Buyer") who agree as follows:
1. PURCHASE AND SALE OF THE PROPERTY.
Subject to the terms and conditions set forth below, Seller agrees to sell
to Buyer and Buyer agrees to purchase from Seller the real property located at
000 Xxxx Xxxxxx, Xxxx, Xxxx Xxxxxx, Xxxxxxxxxx, known as Assessors Parcel Number
000-000-000 ("Bank Parcel"), more particularly described in, EXHIBIT "A"
attached hereto (the "Property").
2. PURCHASE PRICE.
(a) PURCHASE PRICE. The purchase price for the Property (the
"Purchase Price") to be paid by Buyer to Seller is One Million Three Hundred
Seventy-Five Thousand Dollars ($1,375,000.00) subject to adjustment as set forth
in paragraph 2(b) below.
(b) PAYMENT OF PURCHASE PRICE. Within three (3) days of the Effective
Date, Buyer and Seller shall open an escrow (the "Escrow") with First American
Title Company in Napa, California (the "Title Company"), 0000 Xxxxxx Xxxxxx,
Xxxx, Xxxxxxxxxx. The purchase price shall be adjusted on the close of escrow so
as to create Two Hundred Thousand Dollars ($200,000.00) of net cash proceeds
payable to Seller after payment of the principal amount of indebtedness owing to
Napa National Bank under loan number 0000000 in the amount of One Million Forty-
One Thousand Ninety-Seven Dollars and Thirty-Four Cents ($1,041,097.34), loan
interest in the amount of Seventy-two Thousand Four Hundred Dollars
($72,400.00), unpaid real property taxes for the Bank Parcel, Assessor's Parcel
Nos. 000-000-000 and 000-000-000 prorated as of the close of escrow in the
approximate amount of Forty-Six Thousand Five Hundred Dollars ($46,500.00),
transfer taxes, escrow fees, and title insurance and other expenses arising out
of the "Approved Exceptions", and closing costs in the estimated amount of
Fifteen Thousand Dollars ($15,000.00).
One day prior to the Close of Escrow, Buyer shall deposit into Escrow in
cash the balance of the Purchase Price in excess of the principal owing to Napa
National Bank under loan number 0000000.
3. CONDITION PRECEDENT.
(a) As a condition precedent to Buyer's obligations to purchase the Bank
Parcel, Buyer and Seller shall have entered into a Lease (in the form attached
hereto as Exhibit "B"), for Assessor's Parcel No. 000-000-000 and Assessor's
Parcel No. 000-000-000 which two parcels constitute the
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parking lot adjoining the Property ("Parking Lot Parcels"). The Lease shall
provide that Lessee (Buyer) shall have an option to purchase the Parking Lot
Parcels on the terms and conditions therein provided.
(b) The Buyer and Seller acknowledge that Buyer's agreement to purchase the
Property for the total purchase price set forth in paragraph 2(b) constitutes
material consideration for the Lease and Option to Purchase the Parking Lot
Parcels granted by Seller.
(c) As a further condition precedent to Buyer's obligations to purchase
the Bank Parcel, the Seller shall obtain all authorizations from the State of
California Water Resources Quality Control Board as may be required to record a
Covenant and Environmental Restriction on Property ("Covenant") in the form
attached hereto as Exhibit "C". Seller and Buyer acknowledge that said Covenant
was recorded on the Napa County Records on November 25, 1998, and the condition
precedent has been satisfied.
(d) As a further condition precedent to Buyer's obligations to purchase
the Bank Parcel, Buyer and Seller shall execute a Settlement Agreement and
Mutual General Release in the form attached hereto as Exhibit "D".
4. TITLE.
(a) CONDITION OF TITLE. At the Close of Escrow, Seller shall convey fee
simple title to the Property to Buyer by grant deed, subject only to the
following matters (the "Permitted Exceptions"): (i) a lien for current real
property taxes; (ii) matters of title respecting the Property permitted by Buyer
in accordance with Subparagraph 4(b), below; and (iii) matters affecting the
condition of title to the Property created by or with the consent of Buyer.
(b) PERMITTED TITLE EXCEPTIONS. Attached hereto and incorporated by
reference as Exhibit "E" is the Preliminary Report issued by Title company under
Order No. 115940 dated as of November 9, 1998. Buyer hereby approves said
Preliminary Report together with exceptions 1 through 10, and 12 through 17,
which exceptions shall constitute the Permitted Title Exceptions.
5. ESCROW.
(a) ESCROW. To accomplish the purchase and sale of the Property, the
parties shall establish an escrow with the Title Company (the "Escrow"). Each
party shall execute such instructions to the Title Company which are consistent
with this Agreement and deliver such instructions within two (2) days prior to
the Close of Escrow of the Bank Parcel, as defined below. On the day before the
Close of Escrow, as defined below, Seller and Buyer shall make the deliveries
into Escrow set forth in Subparagraphs 5(b) and 5(c).
(b) SELLER'S DELIVERIES INTO ESCROW. Seller hereby covenants and agrees
to deliver or cause to be delivered to Title Company prior to the Close of
Escrow of the Bank Parcel, as defined below,
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the following instruments and documents, the failure of delivery of which shall
constitute a default by Seller hereunder:
(i) A good and sufficient grant deed properly executed and
acknowledged by Seller in favor of Buyer, the delivery and recordation of which
shall vest in Buyer fee title in and to the Bank Parcel, subject only to the
Permitted Exceptions;
(ii) A certificate duly and validly executed by Seller in favor of
Buyer, certifying that Seller is not a "foreign person," as that term is defined
in Section 1445(f) of the Internal Revenue Code of 1986, as amended;
(iii) A certificate duly executed by Seller in favor of Buyer as
required by California Revenue and Taxation Code Sections 18805 and 26131; and
(iv) Such proof of Seller's authority to enter into this Agreement
and the transactions contemplated hereby, and such proof of the power and
authority of the individual(s) executing and/or delivering any instruments,
documents or certificates on behalf of Seller to act for and bind Seller as may
be reasonably required by Title Company written documentation of the
substitution of Xxxxxxx X. Xxxx, Trustee of the Xxxx Family Trust as general
partner of Napa Main Street Investors.
(vi) Lease attached hereto as Exhibit "B" executed by Seller.
(vi) Executed Covenant and Environmental Restriction on Property
together with written evidence of authorization from the State of California
Water Resources Control Board authorizing recordation of the Covenant.
(vii) Settlement Agreement and Mutual General Release (Exhibit "D")
executed by Seller.
(c) BUYER'S DELIVERIES INTO ESCROW. Buyer hereby covenants and agrees to
deliver or cause to be delivered to Title Company on or prior to the Close of
Escrow, as defined below, the following instruments and documents, the failure
of delivery of which shall constitute a default of Buyer hereunder:
(i) The Purchase Price in accordance with Paragraph 2 above; and
(ii) Such proof of Buyer's authority and authorization to enter into
this Agreement and the transaction contemplated hereby, and such proof of the
power and authority of the individuals(s) executing and/or delivering any
instruments, documents or certificates on behalf of Buyer to act for and bind
Buyer as may be reasonably required by Seller or the Title Company.
(iii) Lease attached hereto as Exhibits "B" executed by Buyer.
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(iv) Settlement Agreement and Mutual General Release (Exhibit "D")
executed by Buyer.
(d) CLOSE OF ESCROW. The Close of Escrow shall occur on December 7, 1998,
by 5:00 p.m.
6. DELIVERY OF POSSESSION; COSTS AND PRORATIONS.
(a) POSSESSION. The Bank will have sole and exclusive possession of the
Bank Parcel effective upon The Close of Escrow.
(b) COSTS AND PRORATIONS. The following costs and expenses shall be borne
or prorated at the Close of Escrow as follows:
(i) All property taxes for the Bank Parcel and the parking lot
parcels, shall be paid by Buyer, and shall be prorated at the Close of Escrow of
the Bank Parcel based on the most current real property tax xxxx available,
including any escaped property taxes which may be assessed after Close of Escrow
pertaining to the period prior to transfer of title to Buyer, regardless of when
notice thereof is delivered or who receives such notice;
(ii) Any bond or assessment which become a lien after the execution
of the contract (determined as of the Close of Escrow) shall be assumed by Buyer
at Close of Escrow;
(iii) All title insurance premiums charged in connection with the
issuance of the Title Policy shall be paid by Buyer at the Close of Escrow;
(iv) Any transfer taxes due as a result of the transfer of title to
Buyer shall be paid by Buyer at the Close of Escrow;
(v) All escrow fees shall be paid by Buyer;
(vi) All other costs and expenses shall be paid by Buyer in
accordance with customary practice in Napa County, California; and
(vii) Any legal fees and expenses incurred in connection with the
transaction contemplated herein shall be paid by the Party incurring such fees
and expenses.
7. WARRANTIES.
(a) SELLER WARRANTIES. Seller hereby warrants:
(i) There are no known violations of any statutes, ordinances,
regulations, or administrative or judicial order or holding, whether or not
appearing in public records, existing with respect to such improvements or
with respect to the Property;
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(ii) At the Close of Escrow, no leases of the Property are or will be
in force, except otherwise specifically stated herein.
(iii) There is no litigation threatened by third parties or pending
respecting the ownership, possession, use or operation of the Property or
the leased premises described on Exhibit AE@ attached hereto;
(iv) To the best of Seller's knowledge, the Bank Parcel has not been
the site of a disposal, release, threatened release or transportation of
any materials or substances defined as "hazardous" or "toxic" under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 41 U.S.C. Section 9601, et. seq.; the Resource
Conversation and Recovery Act, 42 U.S.C. Section 6901, et seq.; or Sections
25115, 25117 25122.7, 25140, 25249.5, 25249.8, 25281, 25316 or 25501 of the
California Health and Safety Code, except as may be disclosed in that
certain Remedial Investigation and Risk Analysis Report for Napa Main
Street Investors dated April 20, 1998, prepared by Faultline Associates,
Inc. and the Assessment of Suspected Asbestos-Containing Materials dated
March 13, 1991, prepared by Xxxxxxx Environmental Consultants;
(v) Seller is a limited partnership duly and validly existing under
the laws of the State of California. It shall be a further condition
precedent to the obligations of Buyer under this Agreement that Seller
provide to Buyer, and Buyer approve in its discretion the documents
presented by Seller to Buyer relating to the substitution of Xxxxxxx X.
Xxxx, Trustee of the Xxxx Family Trust, as general partner of Napa Main
Street Investors, Fairfield Mortgage Corporation, a California corporation,
the former general partners of Napa Main Street Investors.
(b) PARTIES' WARRANTIES CONCERNING AUTHORITY. The parties hereby warrant
and represent that the persons executing this Agreement on their behalf are
authorized to do so and upon his or her execution of this Agreement, this
Agreement shall be valid and binding upon and enforceable against Buyer or
Seller, as the case may be, in accordance with the terms and conditions herein
set forth.
8. COMMISSION.
Each party is free to employ a real estate broker of its choice. The party
engaging said broker shall be responsible for the payment of any broker's
commission and agrees to indemnify the other party from any liability or claims,
including reasonable attorneys fees and costs, for payment of said commission.
9. NOTICES.
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Any notice required or permitted to be given under this Agreement shall be
in writing, shall be personally delivered or sent by registered or certified
mail, postage pre-paid, return receipt requested, telecopy or similar means,
addressed as follows:
BUYER: Napa National Bank
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxx, XX 00000
Tel No.: (000)000-0000
Fax No.: (000)000-0000
WITH COPY TO: Xxxxxxxxx, Xxxxxxx & Xxxxxxx
Xxxxx X. Xxxxx
000 Xxxxxx Xxxxxx
Xxxx, XX 00000
Tel No.: (000)000-0000
Fax No.: (000)000-0000
SELLER: Xxxxxxx X. Xxxx
Napa Main Street Investors
0000 Xxxxxxx Xxxxxx, Xxxxx 000
X.X. Xxx 00000
Xxxx, XX 00000
WITH COPY TO: Xxxx X. Xxxxxxx
Attorney at Law
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx, XX 00000
10. MISCELLANEOUS PROVISIONS.
(a) ENTIRE AGREEMENT. This Agreement, including all the attached Exhibits,
contains the entire agreement of the parties; any previous understandings of the
parties regarding the subject matter hereof are expressly declared null and void
and are superseded hereby.
(b) ASSIGNMENT. This agreement shall not be assigned by Buyer without the
express written consent of Seller which consent Seller may grant or withhold in
its reasonable discretion.
(c) SEVERABILITY. If any term or provision of this Agreement shall, to any
extent, be held invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby.
(d) ATTORNEYS' FEES. In the event any legal action is commenced between
the parties
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hereto to enforce the terms of this Agreement, the prevailing party in any such
action and in any appeals therefrom shall be entitled to recover from the non-
prevailing party all reasonable attorneys' fees and costs incurred by the
prevailing party. "Prevailing party" shall include without limitation (i) a
party who dismisses an action in exchange for sums allegedly due; (ii) the party
which receives performance from the other party of an alleged breach of covenant
or a desired remedy where such is substantially equal to the relief sought in an
action; or (iii) the party determined to be the prevailing party by a court of
law.
(e) WAIVERS. No waiver or any breach of any covenant or provision herein
contained shall be deemed a waiver of any other covenant or provision herein
contained, and no waiver shall be valid unless in writing and executed by the
waiving party. No extension of time for performance of any obligation or act
shall be deemed an extension of the time for performance of any other obligation
or act.
(f) INTERPRETATION. Headings at the beginning of each section and
subsection are solely for the convenience of the parties and are not a part of
and shall not be used to interpret this Agreement. This Agreement is the product
of negotiations and shall not be construed as if it had been prepared by one of
the parties, but rather as if both parties have prepared the same. Unless
otherwise indicated, all references to Paragraphs are to this Agreement. All
exhibits referred to in this Agreement are attached hereto and incorporated
herein by this reference.
(g) NO MERGER. Each and every representation, warranty, covenant and
obligation of Seller and Buyer shall not merge with transfer of title, but shall
survive the Close of Escrow subject to any expressed survivability limitations
set forth in this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute but one and the same instrument. The execution of
this Agreement shall be deemed to have occurred, and this Agreement shall be
enforceable and effective, only upon the complete execution of this Agreement by
Seller and Buyer.
(i) TIME OF THE ESSENCE. Time is of the essence of each and every
condition herein, and of each term and provision herein.
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(j) GOVERNING LAW. This Agreement shall be governed and construed in
accordance
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with California law.
WHEREFORE, the parties have executed this Agreement on or as of the date
first written above.
SELLER: NAPA MAIN STREET INVESTORS
A California Limited Partnership
By:_______________________________________________
Xxxxxxx X. Xxxx, Trustee, Xxxx Family Trust,
General Partner
BUYER: NAPA NATIONAL BANK
a California corporation
By: ______________________
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