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XXXXX XXXXXX XXXXXX XXXXXXXX
XXX XXXXXXXXX, XXXXXXXXXX
PURCHASE AND SALE AGREEMENT
Between
XXXXXXXXXX REALTY GROUP, INC.,
a Nevada corporation,
AS SELLER
and
XX. XXXXXX XXXXXX
AS PURCHASER
As of June 29, 2005
================================================================================
PURCHASE
AND
SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (hereinafter the "Agreement") is
entered into effective June 29, 2005 (hereinafter the "Effective Date"), by and
between XX. XXXXXX XXXXXX, A MARRIED MAN AS HIS SOLE AND SEPARATE PROPERTY
(hereinafter the "Buyer") and (hereinafter the "Equitable Beneficiary") and
XXXXXXXXXX REALTY GROUP, INC., A NEVADA CORPORATION (hereinafter the "Seller")
and is based upon the following facts and representations:
R E C I T A L S
A. Seller owns that certain real property consisting of
approximately 0.14 acres of land and is commonly
known as 000-000 Xxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxx
of Xxx Xxxxxxxxx, Xxxxx xx Xxxxxxxxxx, 00000, and
more particularly described on Exhibit "A" attached
hereto (hereinafter the "Property").
B. The Property consists of restaurant and office space.
The ground floor and basement is leased to
Xxxxxxxxx'x Restaurant and the office space on the
upper floors is vacant, awaiting renovation of the
building so that the space can be leased, together
with all appurtenances, improvements, buildings,
fixtures, and personal property associated therewith.
C. Buyer wishes to purchase the Property and Seller
wishes to sell the Property on the price and terms
set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, Seller and Buyer agree as follows:
AGREEMENT
1. Assets Included in Sale. Seller hereby agrees to sell and convey to
Buyer, and Buyer hereby agrees to purchase from Seller, the following:
(a) Real Property. That certain parcel of real property
commonly known as 000-000 Xxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxx of Xxx Xxxxxxxxx,
Xxxxx xx Xxxxxxxxxx, 00000 and situated on approximately 0.14 acres of land and
more particularly described in Exhibit "A" attached hereto.
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(b) Appurtenances. Any and all rights, privileges, and
easements appurtenant to the Property, including, without limitation, all
minerals on and under the Property, all oil, gas or hydrocarbon drilling rights,
as well as all development rights and credits, air rights, solar rights, water,
water rights, whether within or without the Property, and any easements,
rights-of-way, or other appurtenances used in connection with the beneficial use
and enjoyment of the Property, including, but not limited to, all existing
licenses, authorizations, approvals, zoning permits, together with any
development permits, subdivision map applications, surveys, or similar rights
which may accrue to the benefit of the Property from the date this Agreement is
entered into until the closing date, as the same may be incidental to or
appurtenant to the Property (hereinafter, collectively, the "Appurtenances");
(c) Improvements. Any and all buildings and improvements
together with fixtures and articles of attached or appurtenant to or used in
connection with the Property, including, but not limited to, all apparatus,
equipment and appliances used in connection with the operation and occupancy
thereof and facilities used to provide any utility services, ventilation, or
other services thereto, together with all plumbing, lighting, electrical, and
related fixtures, to the extent that they are located in or on the premises
herein described (all of which hereinafter, collectively, the "Improvements").
(d) Personal Property. Any and all personal property of Seller
located on or in or used in connection with the operation of the Property. The
personal property that will be transferred by Xxxx of Sale at the closing is
more fully set forth on a completed inventory list attached hereto as Exhibit
"C" (hereinafter the "Personal Property").
(e) Intangibles. Seller shall assign to Buyer any and all
interest of Seller in any and all leases and/or rights of first refusal as the
same may be connected with the Property, together with any and all development
applications, permits, maps, surveys, studies, or other rights that may
currently exist or which may arise between the date this contract is executed
and the closing date (hereinafter, collectively, the "Intangibles"). Seller
shall convey all Intangibles that it has in and to all development rights and
other intangibles, including, but not limited to, certificates of occupancy,
licenses, authorizations, approvals, permits, and signage rights relating to or
affecting the Property to the extent the same may be owned controlled by Seller
and are assignable to Buyer which intangibles are listed in Exhibit "D".
(f) Leases and Security Deposits. Seller shall assign and
Buyer shall assume all tenant leases in effect at the Closing date pursuant to
the Assignment and Assumption of Lease Agreement set forth on Exhibit "E"
attached hereto.
(g) Other Contracts. Seller shall assign such maintenance
contracts, service contracts, and similar matters as Buyer may chose to assume.
Buyer and Seller shall determine which contracts Buyer wishes to assume and
Buyer and Seller shall execute an Assignment and Assumption Agreement as to said
contracts in the form substantially similar to that set forth on Exhibit "F"
attached hereto. As to all maintenance, service, and similar contracts which
Buyer does not wish to assume, Seller shall use reasonable commercial efforts to
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terminate said contracts effective as of the Closing date. The tenant leases,
together with the maintenance, service, and related contract rights that Buyer
elects to assume are hereinafter, collectively, the "Contract Rights."
All of the items described in subsections (a), (b), (c), (d),
(e), (f), and (g) above are intended to be consistent with each other and in
furtherance of the parties objective that Buyer is purchasing all of Seller's
interests in the Property itself so as to own and control such interests to the
same extent that Seller owns and controls them except as to those rights are
non-assignable, related to adjacent properties, or specifically excepted by
other provisions of this Agreement.
2. Purchase Price. The Purchase Price of the Property is Four Million
Seven Hundred Thousand Dollars ($4,700,000) (hereinafter the "Purchase Price").
The Purchase Price shall be paid all cash at the Closing.
3. Buyer's Deposit.
(a) Concurrently with the opening of the Escrow Buyer shall
deliver a check into Escrow in the amount of Ten Thousand Dollars ($10,000)
(hereinafter the "Deposit"). If Buyer does not remove its title contingencies as
set forth in Section 5 below, or its property due diligence conditions as set
forth in Section 6 below, within the time limits set forth therein, then Escrow
Agent shall return to Buyer the Deposit, together with interest thereon, if any.
(b) In the event of Buyer's material breach of this Agreement,
then Seller shall be entitled to the Deposit as liquidated damages.
THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE
EVENT OF A DEFAULT BY BUYER, WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR
INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT
AMOUNT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE
PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS
SELLER'S EXCLUSIVE REMEDY AGAINST BUYER, AT LAW OR IN EQUITY,
IN THE EVENT OF A DEFAULT UNDER THIS AGREEMENT SOLELY ON THE
PART OF BUYER.
Seller: _______ Buyer: ______
(c) Notwithstanding any provision of this Agreement to the
contrary, in the event this Agreement terminates for any reason within the first
twenty (20) days from the Effective Date of this Agreement, all deposits,
including interest which are held in escrow, shall be refunded to Buyer
(together with interest thereon, if any) and neither Buyer nor Seller shall have
any further obligation under this Agreement.
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4. Transfer of the Property.
(a) Real Property. At the Closing, Seller shall convey to
Buyer (or assignee) marketable and insurable fee simple title to the Real
Property by duly executed and acknowledged grant deed in a form acceptable to
Buyer. Evidence of delivery of marketable and insurable fee simple title shall
be the issuance by: First American Title Insurance Company, 0000 Xx. Xxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx 00000, Escrow Number 170529;
attention: Xx. Xxx Xxxxxxxx (hereinafter the "Escrow Agent" and/or "Title
Company"), in the full amount of the Purchase Price insuring fee simple title to
the Real Property in Buyer, subject only to those exceptions as Buyer approves
pursuant to Section 5 below. Said policy shall provide full coverage against
mechanics' or materialmen's liens and shall contain such special endorsements as
Buyer may reasonably require. The Title Company shall obtain, if requested by
Buyer, such endorsements and/or reinsurance agreements from such companies and
in such amounts as Buyer may request.
(b) Personal Property. At the Closing, Seller shall transfer
title to the personal property by a xxxx of sale in the form attached hereto as
Exhibit "C", such title to be free of any liens and encumbrances.
(c) Permits, Licenses and Intangibles. At the Closing, Seller
shall transfer all Intangibles together with other development rights by means
of Transfer and Assignment of Rights to Intangible Property attached hereto as
Exhibit "D".
(d) Assignment & Assumption of Leases. At the Closing, Seller
shall transfer to Buyer and Buyer shall assume all liability under all tenant
leases currently in effect at the Property. The Assignment and Assumption of
leases shall be done by written instrument substantially in the form attached
hereto as Exhibit "E".
(e) Assignment & Assumption of Service Contracts. At the
Closing, Seller shall transfer to Buyer and Buyer shall assume all liability
under those service contracts affecting the Property which Buyer elects to
assume. The Assignment and Assumption of Service Contracts shall be done by
written instrument substantially in the form attached hereto as Exhibit "F".
5. Title Inspection and Contingency Removal.
(a) Title. During the time periods set forth below, Buyer
shall review and approve title to the Real Property. Within five (5) days from
the execution date of this Agreement, at Seller's sole cost and expense, Seller
or Seller's agent shall deliver to Buyer:
(i) a current preliminary title report on the
Real Property issued by Title Company;
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(ii) at Buyer's request, and (except for
documents already in Seller's actual
possession) at Buyer's sole cost and
expense, Buyer may order copies of all
existing and proposed easements, covenants,
restrictions, agreements or other documents
as the same may relate to the Property from
the Title Company. However, to the extent
any of such documents are in Seller's actual
possession, Seller shall make copies of said
documents available to Buyer at Seller's
sole cost and expense. If Seller have no
such documents exist, Seller shall provide
to Buyer a certification of Seller to that
effect;
(iii) copies of the two (2) most recent property
tax bills for the property; and
(iv) at Buyer's request Seller shall cause Title
Company to issue, at Buyer's sole cost and
expense a chain of title report for the Real
Property.
Any exception to title is deemed rejected by Buyer unless
Buyer notifies Seller otherwise in writing. In any event, Seller hereby agrees
to remove all monetary liens, encumbrances, and judgments of any nature
whatsoever encumbering title to the Real Property on or before closing of
escrow.
(b) Buyer's Contingency Removal Period. Buyer shall have
twenty (20) business days from the receipt of the preliminary title report set
forth in Subsection 4(a) above to determine if, other than monetary liens which
will be paid off at the close of escrow; there are any exceptions to title to
which Buyer objects. Unless written acceptance of said objections is received
within twenty (20) days of delivery of said preliminary title report, Buyer
shall be deemed to have rejected all title matters. From the date of Buyer's
approval of title, Seller shall not permit any adverse change to arise to the
title (other than monetary encumbrances removable at the Closing) nor shall
Seller permit any cloud upon title not disclosed in the Preliminary Title Report
to arise so as to affect title at Closing. If Buyer objects to any title matter,
then Seller shall have five (5) days to advise Buyer that Seller can remove the
title matter prior to the close of escrow, or whether the title matter is not
curable by the Closing. Buyer shall have three (3) days from Seller's reply to
determine if Buyer will accept title as Seller has indicated. If Buyer elects
not to accept title as Seller has indicated this Agreement shall terminate and
neither party shall have any obligation to the other party and the Deposit shall
be returned to Buyer.
6. Property Due Diligence Conditions. Except for title matters as set
forth in Section 5 hereof, Buyer shall conduct its due diligence and either
terminate this Agreement or remove Buyer's due diligence contingencies and
proceed with this Agreement within twenty (20) business days after the Effective
Date of this Agreement (hereinafter "Buyer's due diligence period"). All of
Buyer's due diligence contingencies are set forth in this Section 6. To
facilitate Buyer's due diligence Seller shall allow Buyer reasonable access to
the Property and, to the extent reasonably available to Seller, Seller shall
provide Buyer with the documents as more fully set forth below.
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(a) Property Documents. Within two (2) days of the Effective
Date of this Agreement, Seller shall deliver to Buyer to the extent the same are
available to Seller and in Seller's actual possession, the documents set forth
in Subsection (c) below. Said documents shall be supplied at a single time
(except as otherwise agreed upon between Buyer and Seller) and shall be
delivered with a cover letter setting forth all documents delivered pursuant to
this Section 6. To the extent that Seller do not have any of the following
documents in their actual possession, Seller shall indicate in their cover
letter that it does not have any such documents.
(i) The documents to be provided by Seller to
Buyer shall include such other contracts or
documents of significance to the Property as
Buyer and Seller may agree upon.
(ii) Review and approval or disapproval of
reports generated is at the Buyer's sole
discretion.
(b) Survey. If Seller has a survey of the Property in his
actual possession it shall be delivered to Buyer together with the other
property due diligence documents. However, if Seller do not have a survey, or if
the survey is no sufficient to obtain an ALTA Title Policy or equivalent, then
Buyer may obtain an ALTA survey or equivalent of the Property. The ALTA Property
or equivalent survey shall be used for purposes of inducing Title Company to
issue to Buyer at the Closing an ALTA Owner's Policy of Title Insurance or
equivalent. Within Buyer's due diligence period, Buyer shall review and approve
all surveys and related issues relating to the Property.
(c) Documents to Be Provided. The documents to be provided by
Seller to Buyer shall be limited to those in Seller's actual possession (or
readily attainable by Seller's agents, brokers, property managers and title
company) and shall include the following:
(i) Access to all tenant lease files and
amendments thereto, as well as any other
agreement incident or related thereto which
affects the obligations of Seller and the
affected tenant with respect to such leases;
(ii) Copies of all outstanding third-party
service contracts and other agreements
affecting the operation and maintenance of
the Property, including any assignable
warrants;
(iii) At Seller's option, either copies of or
access to any engineering information and
property inspection reports;
(iv) All environmental information effecting the
Property, including a Phase I environmental
report if available;
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(v) Access to all plats, zoning ordinances and
compliance, business licenses; availability
of utilities and related matters;
(vi) Copies of any and all municipal, state or
federal Certificates of Occupancy, or
equivalent, issued to date for the Property;
(vii) Copies of operating statements for the
Property for the years 2003 through 2004,
inclusive, together with a year to date
statement for 2005;
(viii) A current rent roll for the Property in the
format currently used by Seller;
(ix) A list of pending evictions and related
legal matters effect tenant occupancy;
(x) A list of all tenant security and rent
deposits, together with any rent concessions
and other matters that may affect the
collection of rent;
(xi) Copies of any termite inspections, notices
of violation, including, but not limited to,
those effecting fire codes or health codes;
(xii) Disclosure of any pending legal matters
(other than evictions) affecting the
Property or collection of rents or deposits;
(xiii) Any plans and specifications regarding
Property;
(xiv) All real estate tax bills (or impound
reports) and personal property tax
statements, valuation notices, and related
matters;
(xv) All certificates of insurance and copies of
all insurance policies affecting the
Property (i.e., property, liability, and
umbrella policies);
(xvi) All building permits;
(xvii) All business licenses and permits;
(xviii) All liens, CC&R's, or other encumbrances of
record;
(xix) Access to all general ledger, cash receipts,
and disbursements journals and similar books
of original entry;
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(xx) Insurance loss runs for the period 2003 to
2005;
(xxi) Rental rate history from 2003 to 2005;
(xxii) Accounts receivable and aging;
(xxiii) Inventory of Personal Property to be
transferred pursuant to this Agreement;
(xxiv) Such other due diligence documents as Buyer
may request.
(d) Other Matters. Buyer shall review and approve within the
due diligence period all other matters relating to or effecting the Property.
(e) Cooperation of Seller. Seller shall cooperate with Buyer,
at no cost to Seller, to assist Buyer in Buyer's efforts to access to the
Property to conduct Buyer's due diligence investigation.
(f) Due Diligence Conditions. The foregoing conditions in this
Section 6 are all of Buyer's due diligence conditions precedent, and these
conditions precedent are intended solely for the benefit of Buyer. If within
Buyer's due diligence period, Buyer does not give Seller written notice of
approval of the due diligence contingencies, Buyer shall be deemed to have
elected to terminate this Agreement and the Deposit shall be returned to Buyer
(together with interest thereon, if any). In the event Buyer gives written
notice of Buyer's acceptance and/or waiver of all said due diligence
contingencies, then this Agreement shall continue in full force and effect and
Buyer shall increase its deposit as set forth in Section 3 above. Once Buyer has
approved and/or waived its due diligence contingencies, Buyer may not cancel
this Agreement.
7. Buyer's Investigations of Property Condition.
(a) Reasonable Access. Seller shall afford authorized
representatives of Buyer reasonable access to the Property for the purposes of
satisfying Buyer with respect to Buyer's due diligence inspections and the
representations and warranties of Seller herein, and with respect to
satisfaction of any conditions precedent to the Closing herein. Buyer shall also
have access to the Property for the purpose of conducting environmental surveys,
property condition investigations, market studies, other investigations, surveys
or other physical inspections or studies, including, but not limited to, the
roof, plumbing, heating, and air conditioning systems, structural integrity of
the improvements and any environmental or geologic conditions, or other matters
that Buyer may wish to include in its due diligence inquiry of the Property.
Seller shall cooperate with Buyer in providing access to the Property and
satisfying the conditions contained herein.
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(b) Cost of Inspection. Buyer shall bear the cost of any
inspections or studies undertaken. Buyer shall indemnify and hold Seller free
and harmless from all claims and liability with respect to such physical
inspection or study or any costs arising in connection with respect to such
physical inspection or study or any costs arising in connection with the same
prior to the Closing herein except to the extent any claim or liability arises
from the willful misconduct or gross negligence of Seller, or their agents,
contractors, or employees. Buyer shall repair any damages to the Property caused
by such inspection or study, and shall otherwise restore the Property to
substantially the condition which existed prior to conduct of the same.
8. Financing Contingency. Buyer shall have twenty (20) business days
from the effective date of this Agreement to advise Seller that Buyer has, at
Buyer's sole cost and expense, arranged for either: (a) to acquire the Property
subject to the existing loans, with Buyer to assume said loans; or (b) to
arrange for new acquisition financing for the purchase contemplated herein. If
Buyer fails to give such notice or to waive this contingency, this Agreement
shall terminate and neither party hereto shall have any further obligation
hereunder.
9. Conditions Precedent to Closing.
(a) Buyer's Contingencies. This Agreement is expressly
contingent upon satisfaction of the following conditions (hereinafter "Buyer's
Contingencies") and Buyer shall have no obligation to close under this Agreement
unless all the following conditions have been satisfied or have been waived by
Buyer.
(b) Buyer's Title Contingencies. Approval by Buyer of all
title contingencies set forth in Section 5 of this Agreement within the time
periods set forth therein.
(c) Buyer's Property Due Diligence. Approval by Buyer of all
contingencies set forth in Section 6 above, during Buyer's due diligence period
as set forth herein.
(d) Buyer's Financing Contingency. Approval by Buyer of its
financing contingency as set forth in Section 8 hereof, during Buyer's
contingency period as set forth herein.
(e) Commitment to Issue Buyer's Title Insurance. Escrow Agent
shall have agreed to issue to Buyer, Buyer's Title Insurance Policy, which
policy may not actually be received until after the Close of Escrow.
After the satisfaction or waiver of Buyer's contingencies,
failure by either Seller or Buyer to conclude this Agreement shall constitute a
material breach by said party of this Agreement.
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10. Closing and Escrow.
(a) Closing Date. The closing date (hereinafter the "Closing
Date") hereunder shall be on such date that is selected by Buyer, which date
shall not later than July 29, 2005. Close of escrow shall constitute transfer of
possession.
(b) Escrow Funds. If, after the waiver of Buyer's
contingencies as set forth in Sections 5, 6, and 8 above or the Closing does not
occur on or before the Closing Date without fault by the Seller, then the Title
Company as escrow holder shall within two (2) business days after the scheduled
Closing Date, pay the Buyer's Deposit over to the Seller as liquidated damages.
(c) Escrow Instructions. Buyer and Seller shall each submit to
the Title Company, not less than three (3) days prior to the Closing Date,
additional escrow instructions consistent with the provisions of this Agreement.
(d) Seller's Documents. At least two (2) business days prior
to the Closing, Seller shall deliver to Title Company as escrow, the following:
(i) a duly executed and acknowledged grant deed
conveying to the Buyer the Real Property and
all rights, privileges and easements
appurtenant thereto;
(ii) a duly executed xxxx of sale covering the
Personal Property, in the form attached
hereto as Exhibit "C";
(iii) a Certificate from the California Secretary
of State (or a commercial reporting service
satisfactory to Buyer) that indicates that
as of the Certificate Date there are no
filings against Seller in the office of the
Secretary of State under California
Commercial Code (or similar statute) that
would be a lien on any of the items
specified in said Xxxx of Sale above (other
than such filings, if any, as are being
released at the time of the Closing);
(iv) an assignment and assumption of all rights
to the various tenant leases affecting the
Property, in the form attached hereto as
Exhibit "E";
(v) an assignment and assumption of service
contracts affecting the Property, in the
form attached hereto as Exhibit "F";
(vi) originals of all, plans, specifications,
reports and similar documents of
significance as the same relate to the
Property, if any;
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(vii) originals or copies of all service
contracts, maintenance contracts, and
management contracts, if any, affecting the
Property (hereinafter, collectively,
"Service Contracts") to be continued by
Buyer, as determined by Buyer in its sole
discretion, after the Closing, and any
warranties or guaranties received by Seller
from any contractors, subcontractors,
suppliers, materialmen, consultants,
architects, engineers, and others who have
performed work on the Property;
(viii) to the extent available to Seller originals
of all architectural plans, designs,
permits, studies, reports, or similar
documents of significance relating to the
Property;
(ix) an affidavit of Seller that Seller are not a
"foreign person" within the meaning of 26
U.S.C. ss. 1445 duly executed by Seller in
the form attached hereto as Exhibit "F";
(x) closing statement in form and content
satisfactory to Buyer and Seller;
(xi) a certified statement that the signatures on
all transfer documents, Deed, Xxxx of Sale,
Assignment & Assumption agreements, and
related documents are duly authorized
signatures; and
(xii) any other documents, instruments or
agreements called for hereunder which have
not previously been delivered.
Buyer may waive compliance on Seller's part under any of the
foregoing items by an instrument in writing.
(e) Buyer's Documents and Funds. At least one (1) business day
prior to the Closing, Buyer shall deliver to Title Company as escrow, the
following:
(i) the Purchase Price in immediately available
funds;
(ii) immediately available funds sufficient to
pay all title insurance and other Closing
costs allocable to Buyer as provided for
herein;
(iii) execution of the Assignment and Assumption
of Lease form attached hereto as Exhibit
"E";
(v) execution of the Assignment and Assumption
of Service Contracts in form attached hereto
as Exhibit "F";
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(vi) Buyer's acceptance of Buyer's assumptions
and obligation; and
(vii) any other documents, instruments or
agreements called for hereunder which have
not previously been delivered.
Seller may waive compliance on Buyer's part under any of the
foregoing items by an instrument in writing.
(f) Other Documents. Seller and Buyer shall each deposit such
other instruments as are reasonably required by the Title Company as escrow
holder or otherwise required to close the escrow and consummate the purchase of
the Property in accordance with the terms hereof.
(g) Prorations. The Title Company shall prorate all rents,
non-delinquent real property taxes, water, sewer, and utility charges, amounts
payable under the Service Contracts, annual permits and/or inspection fees
(calculated on the basis of the period covered), insurance premiums (as to those
policies, if any, that Buyer determines will be continued after the Closing),
and other expenses normal to the operation and maintenance of the Property on
the basis of a 365-day year as of 12:01 a.m. on the date the grant deed is
recorded. Seller shall endeavor to have all meters for serving utilities,
including, but not limited to, water, sewer, gas, and electricity read on the
day before the Closing Date for proration purposes.
Seller shall transfer to Buyer at the Closing all security
deposits and other sums held for tenants and shall supply Buyer with an updated
list of all tenants, security deposit amounts and the originals of all tenant
leases together with the tenant files. At Closing, Seller shall transfer
possession of the Property so that Buyer or its assignee may immediately
continue with ongoing leasing operations and Seller shall cooperate with Buyer
in providing all information that pertains to: delinquent rents, late fees,
evictions, damages to retail units, and all similar matters.
Seller and Buyer hereby agree that if any of the aforesaid
prorations cannot be calculated accurately on the Closing Date, then the same
shall be calculated within thirty (30) days after the Closing Date and either
party owing the other party a sum of money based on such subsequent proration(s)
shall promptly pay said sum to the other party, together with interest thereon
at the rate of ten percent (10%) per annum from the Closing Date to the date of
payment if payment is not made within ten (10) days after delivery of a xxxx
therefore.
(h) Closing Expenses. Buyer shall pay the fee for the policy
of title insurance. Buyer shall pay the cost of all transfer taxes, if any,
applicable to the sale as well as the full amount of any assessments or bonds on
the Real Property. Buyer shall pay all escrow charges, document processing fees
and other charges (other than attorneys fees) as the same may relate to the
closing of this transaction.
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(i) Closing. Upon satisfaction and completion of all other
matters set forth in this Section 10, escrow shall close and Seller's grant deed
shall be delivered to Buyer and recorded and all of Seller's other documents as
set forth above shall be delivered by Title Company to Buyer. At the Closing
Buyer's funds shall be paid to Seller, as Seller may so designate, and Buyer's
documents as set forth above shall be delivered to Seller.
11. Warranties and Representations by Seller.
(a) Seller hereby makes the following representations,
covenants and warranties and acknowledges that the execution of this Agreement
by Buyer has been made and the acquisition by Buyer of the Property will have
been made in material reliance by Buyer on such covenants, representations and
warranties:
(i) Warranties True. Each and every undertaking
and obligation of the Seller under this
Agreement shall be performed by the Seller
timely when due; and that all
representations and warranties of the Seller
under this Agreement and its exhibits shall
be true at the Closing as though they were
made at the time of Closing.
(ii) Title. Seller is now and at all times
between the date hereof and Closing,
inclusive, will be the owner (either of
record or beneficially) of (and Buyer will
acquire hereunder) the entire right, title
and interest in and to the Property to
effectively vest in the Buyer good and
marketable fee simple title to the Property.
Except for the Existing Agreement of Sale,
there are no conditional sales contracts,
options, rights of first refusal or similar
agreements affecting the Property.
(iii) No Infringement. To the best of Seller's
actual knowledge, the use by Buyer of any
name, trademark, trade style or trade name
assigned to Buyer hereunder will not
infringe upon any copyright or any United
States or State trademark existing on the
Closing Date, or constitute unfair
competition or actionable appropriation of
rights with respect to any other person,
business or entity.
(iv) Zoning and Use. Seller has not received
written notice from any governmental
authority that the Property is not in
compliance with or violates applicable
environmental building and zoning laws,
rules or regulations or governmental rules
or regulations. Seller has not requested,
applied for, given its consent to nor has
knowledge of any pending zoning variances or
change with respect to the Property. To the
best of Seller's knowledge, there is no
13
plan, study, or effort by any governmental
authority or agency or any nongovernmental
person or entity which in any way affects or
would affect, the use of the Real Property
or the Property. To the best of Seller's
knowledge, there is no existing, proposed,
or contemplated plan to widen, modify or
realign any street or highway adjoining the
Property which would affect access thereto,
or any existing proposed or contemplated
eminent domain proceeding that would affect
the Real Property in any way whatsoever.
(v) Governmental Inspection. To the best of
Seller's knowledge, there is no ruling,
ordinance, regulation, or statute that
requires any governmental agency to inspect
the Property and/or issue any documents
affecting the continued occupancy and
specifications of the apartment project as a
result of the sale of the Property to Buyer.
(vi) No Litigation. Except as specifically
disclosed to Buyer on Exhibit "I", there are
no pending or, to the best of Seller's
knowledge, threatened claims, allegations or
lawsuits of any kind, whether for personal
injury, property damage, landlord-tenant
disputes, property taxes or otherwise, that
could materially and adversely affect the
operation or value of the Property or
prohibit the sale thereof, nor to the best
of Seller's knowledge, is there any
governmental investigation of any type or
nature pending or threatened against or
relating to the Property or the transactions
contemplated hereby; and Seller will hold
Buyer harmless from all liability, loss,
cost and expense resulting from claims
arising or becoming applicable during or as
a result of Seller's ownership of the
Property.
(vii) Insurance Indemnifications. Seller has not
received notices by any insurance company
which has issued a policy with respect to
any portion of the Property, or by any board
of fire underwriters, or from any
governmental authority, of zoning, building,
fire, or health code violations in respect
to the Property.
(viii) Enforceability of Agreement. The person
executing any instruments for or on behalf
of the Seller was fully authorized to act on
behalf of Seller and that the Agreement is
valid and enforceable against Seller in
accordance with its terms and each
instrument to be executed by Seller pursuant
14
hereto or in connection therewith will, when
executed, be valid and enforceable against
Seller in accordance with its terms. No
approval, consent, order or authorization
of, or designation, registration or
declaration with, any governmental
authority, including, but not limited to,
subdivision approval, is required in
connection with the valid execution and
delivery of and compliance with this
Agreement by Seller.
(ix) Rent Roll. The Rent Roll and Certified Rent
Roll delivered to Buyer contain a complete
and correct list of all Leases. Except as
set forth in the Rent Roll, each Lease is on
the Form Lease and is valid and subsisting
and in full force and effect, has not been
amended, modified or supplemented, and the
tenant, licensee or occupant thereunder is
in actual possession.
(x) Rental Concessions. Except as set forth on
the Rent Roll and the Certified Rent Roll,
no tenant, under any of the Lease is, or as
of the Closing will be, entitled to any free
rent, concessions, allowances, rebates or
refunds and no tenant under any of the
Leases has, or as of the Closing will have,
prepaid any rent or other charges for more
than one (1) month in advance.
(xi) Leasing Commissions. As of the Closing, no
brokerage or leasing commissions or other
compensation will be due or payable to
anyone with respect to or on account of any
of the Leases.
(xii) Service Contracts. Except as set forth on
the list of Contracts attached hereto as
Exhibit "F", there is no agreement, in
writing or otherwise, between the Seller and
any other person or persons for service,
supply, maintenance, management or the
operation of the Property or any portion of
the business conducted thereon or thereat,
which is not cancelable upon thirty (30)
days notice, without payment of any penalty
or premium.
(xiii) Hazardous Waste. To the best of Seller's
actual knowledge, the Property has not at
any time been used for the purposes of
storing, manufacturing, releasing or dumping
Hazardous Materials or Substances, except
for normal quantities of Hazardous Materials
or Substances utilized in connection with
the normal maintenance and operation of the
Property in compliance with all
Environmental Laws (as hereinafter defined)
and so-called household Hazardous Materials
utilized by tenants of the Property. No
underground storage tanks, pipelines or
clarifiers have been or are located on the
Property. "Hazardous Materials" or
"Substances" shall mean (1) hazardous
wastes, hazardous materials, hazardous
substances, hazardous constituents, toxic
15
substances or related materials, whether
solids, liquids or gases, including, but not
limited to, substances deemed as "hazardous
wastes," "hazardous materials," "hazardous
substances," "toxic substances,"
"pollutants," "contaminants," "radioactive
materials," or other similar designations
in, or otherwise subject to regulation
under, the Comprehensive Environmental
Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), 42 U.S.C. ss.
9601 et seq.; the Toxic Substance Control
Act ("TSCA"), 15 U.S.C. ss. 2601 et seq.;
the Hazardous Materials Transportation Act,
49 U.S.C. ss. 1802; the Resource
Conservation and Recovery Act ("RCRA"), 42
U.S.C. ss. 9601, et seq.; the Clean Water
Act ("CWA"), 33 U.S.C. ss. 1251 et seq.; the
Safe Drinking Water Act, 42 U.S.C. ss. 300
et seq.; the Clean Air Act ("CAA"), 42
U.S.C. ss. 7401 et seq.; the Hazardous Waste
Control Law, California Health and Safety
Code ss. 25025 et seq., the
Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance
Account Act, California Health and Safety
Code, Division 20, Chapter 6.8, the
Hazardous Materials Release Response Plans
and Inventory Act, California Health and
Safety Code, Division 20, Chapter 6.95, The
Underground Storage of Hazardous Substances
Act, California Health and Safety Code,
Division 20, Chapter 6.7, the Xxxxxx-Cologne
Act, California Water Code ss. 13050 et
seq., and in any permits, licenses,
approvals, plans, rules, regulations or
ordinances adopted, or other criteria and
guidelines promulgated pursuant to the
preceding laws or other similar federal,
state or local laws, regulations, rules or
ordinances now or hereafter in effect
relating to environmental matters
(collectively, the "Environmental Laws");
and (ii) any other substances, constituents
or wastes subject to any applicable federal,
state or local law, regulation, ordinance or
common law doctrine, including any
Environmental Law, now or hereafter in
effect, including, but not limited to, (A)
petroleum, (B) refined petroleum products,
(C) waste oil, (D) waste aviation or motor
vehicle fuel, (E) asbestos, (F) lead in
water, paint or elsewhere, (G) radon, (H)
polychlorinated biphenyls (PCB's) and (I)
urea formaldehyde.
(xiv) Financial Statements. The financial
statements delivered to Buyer present fairly
the financial condition of the Property at
such date and the result of its operations
for the period then ended.
(xv) Structural Defects. The Seller has no actual
knowledge of any structural defects in any
of the Improvements.
(xvi) Property Fully Taxed. The Property and all
parts thereof were fully assessed for
general tax purposes and there has not been,
at any time, a tax break, concession or
16
adjustment (in the condition factor,
assessed valuation or otherwise) given or
applied, and that no portion of the Property
is, or as of the Closing will be subject to
or affected by special assessments, whether
or not a lien thereon. Seller has not
received any notice or information of any
contemplated increase of the assessments
affecting the Property.
(xvii) Adequacy of Utilities. As of the Closing
Date, the water supply and water purity, the
sewer, the sewage and waste disposal systems
and all of the utility services now
servicing the Property are to the best of
Seller's knowledge sufficient for the
operation of the Property.
(xviii) Compliance with Laws. Seller has not
received any notices from any governmental
authority of zoning, building, environmental
protection, clean air, pollution, fire, or
health code violations with respect to the
Property, or violations pertaining to the
use and occupancy of the Property,
including, without limitation,
discrimination on any prohibited basis.
(xix) Employees. With reference to the Property,
no employees of Seller are under contracts
which are not terminable as of the Closing
Date. There are no employee benefit plans in
effect and there are no unfunded liabilities
with respect to employee fringe benefits.
(xx) Special Studies Zone. To the best of
Seller's actual knowledge, the Property is
not located within either a designated
earthquake fault zone or a designated area
that is particularly susceptible to ground
shaking, liquefaction, landslides or other
ground failure during an earthquake.
If Seller becomes aware of any act or circumstance which would
change or render incorrect, in whole or in part, any representation or warranty
made by Seller under this Agreement, whether as of the date given or any time
thereafter through the Closing Date and whether or not such representation or
warranty was based upon Seller's knowledge and/or belief as of a certain date,
Seller will give immediate written notice of such changed fact or circumstance
to Buyer, but such notice shall not release Seller of its liabilities or
obligations with respect thereto. Seller shall issue the Certificate regarding
Representations and Warranties at the Closing Date stating that all the
representations and warranties contained in this Section 10 are true and correct
as of said date, or setting forth in detail which of such matters are not true
and correct.
17
12. "AS IS" Sale. Notwithstanding any other provision of this Agreement
to the contrary, Buyer agrees to buy the Property "AS IS" and not have recourse
to Seller as to the condition of the Property, its suitability for as a retail
and office center, its financial suitability or any other matter. Seller's
representations and warranties will be true as of the Closing, but shall sunset
thereafter.
13. Covenants of Seller. During the pendency of Escrow, Seller
covenants and agrees as follows:
(a) Insurance. Seller will keep all Property conveyed
hereunder fully insured against all usual risks and will maintain in effect all
insurance policies now maintained on the same, up to and including the Closing
Date.
(b) Performance Under the Leases. From and after receipt of
the Rent Roll by Buyer until the Closing Date, Seller agrees that it will
continue to perform all of its obligations as landlord under all of such Leases
and shall, immediately upon obtaining knowledge of a change in facts or
circumstances which renders any information contained on the Rent Roll
inaccurate, promptly notify Buyer of said facts or circumstances.
(c) Further Tenancies. Between the date of the execution of
this Agreement and the Closing Date, without the prior written consent of the
Buyer, none of the Leases will be amended to reduce the rents or other charges
thereunder or will be renewed for rents or other charges which are less than
those payable prior to such renewal; and no new Lease or extension to an
existing Lease will be made unless it is approved by Buyer in writing.
(d) Operation and Condition Pending Closing. Between the date
of this Agreement and the Closing Date, Seller will continue to manage, operate
and maintain the Property in the same manner as existed prior to the execution
of this Agreement.
(e) Condition of Property. On the Closing Date, Seller shall
deliver the Property clean, in good condition and repair, and in the same or
better condition than that which existed during the due diligence period,
ordinary wear and tear excepted.
(f) Required Repairs. Subject to Buyer's approval of the due
diligence provisions of Section 6 above and Buyer's acceptance of the physical
condition of the Property as a "renovation project" (which may require
substantial renovation costs) Seller will, prior to the Close of Escrow, perform
such repairs as to maintain the Property in its current condition until the
Close of Escrow.
(g) Transfer of Property. Seller will not transfer any
interest in the Property to any other person or entity.
(h) Property Management Agreements and Employees. Except as
provided herein, Seller shall terminate as of the Closing any property
management agreement affecting the Property and Seller shall terminate any
18
existing lease (whether written, oral or otherwise) on the Property between
Seller and any employee of the existing property management firm or Seller under
which rent is waived or is discounted and assure that the subject apartment is
vacated effective as of the Closing Date. Seller shall be solely responsible for
the payment of any and all wages, salaries, vacation and/or sick leave
compensation, pension or profit sharing benefits and other benefits or
compensation inuring to the benefit of any and all employees of Seller, any
affiliate or agent, employed at the Property through the Closing Date, and all
such employees shall, at Seller's cost and expense, be terminated or otherwise
employed by Seller effective as of the Closing Date.
14. Tenant Income Certifications. After the expiration of the Due
Diligence Period, Buyer may contact tenants under the leases to complete income
certifications for qualification of the Property for Buyer's new loan. Buyer
shall promptly notify Seller at prior to contacting any tenant of the Property
to obtain an income certification. Seller agrees to reasonably cooperate with
Buyer in obtaining the income certifications.
15. Representations by Seller. All documents executed by Seller which
are to be delivered to Buyer at the Closing are to be or at the time of Closing
will be duly executed and delivered by Seller (or assignee), and are or at the
Closing will be legal, valid and binding obligations of Seller, and do not and
at the time of Closing will not violate any provisions of any agreement,
mortgage, deed, note or other document or instrument to which Seller is a party
or to any court order to which Seller is subject.
16. Representations and Warranties of Buyer. All documents executed by
Buyer which are to be delivered to Seller at the Closing are to be or at the
time of Closing will be duly executed and delivered by Buyer (or assignee), and
are or at the Closing will be legal, valid and binding obligations of Buyer, and
do not and at the time of Closing will not violate any provisions of any
agreement, mortgage, deed, note or other document or instrument to which Buyer
is a party or to any court order to which Buyer is subject.
17. Loss by Casualty; Condemnation. Until the date of Closing
hereunder, the risk of loss of, or damage to, the Property by fire or other
casualty, and the risk of its being taken in whole or in part by eminent domain,
shall be on Seller. If the Property or any part thereof is damaged by fire or
other casualty, one of the following shall apply:
(a) Repairable. If the damage can be repaired, Seller shall
have the option of restoring the damaged property to its condition immediately
prior to the occurrence causing the damage, in which event Buyer shall complete
the transaction as originally planned; provided that Seller shall be required to
exercise this option if the damage amounts to Two Hundred Thousand Dollars
($200,000) or less, the amount of the damage to be determined by independent
appraisal if the parties cannot agree.
(b) Non-Repairable. If the damage cannot reasonably be
repaired, or if Seller elect not to repair damage as provided above, or if the
Property is entirely or substantially destroyed, Buyer shall have the option of
19
taking the Property as is, together with the proceeds of all insurance payable
with respect to the damage or destruction, and paying the Purchase Price
therefore. Alternatively, Buyer may elect to rescind this Agreement, in which
event all amounts theretofore paid by Buyer to or for the account of Seller
shall be returned to Buyer.
(c) Condemnation. If the Property or any material part thereof
is taken or threatened by eminent domain, Buyer shall have the option of taking
what is left of the Property, together with the proceeds of any award made to
Seller on account of the taking, and paying the Purchase Price therefore.
Alternatively, Buyer may elect to rescind this Agreement, in which event all
amounts theretofore paid by Buyer to or for the account of Seller shall be
returned to Buyer. For purposes of this paragraph, a "material part of the
property" means Two Hundred Thousand Dollars ($200,000); if less than a material
part of the Property is taken; Buyer shall complete the transaction under its
original terms and shall be credited with the amount of the award made to Seller
for such taking.
18. Possession. Possession of the Property shall transfer to the Buyer
at the Closing.
19. Maintenance of the Property. Between the date of mutual execution
of this Agreement and the Closing, Seller shall maintain the Property in good
order, condition and repair, reasonable wear and tear excepted and Seller shall
otherwise operate the Property in the same manner as before the making of this
Agreement, the same as though Seller were retaining the Property.
20. Buyer's Consent to New Contracts Affecting the Property. Seller
shall not, after the date of Seller's execution of this Agreement, enter into
any lease, amendment of lease, contract or agreement or permit any tenant of the
Property to enter into any sublease, assignment of lease, contract or agreement
pertaining to the Property without obtaining Buyer's prior written consent
thereto, which consent shall not unreasonably be refused.
21. Permitted Assignee. Buyer may assign this Agreement to Xxxxxxxxxx
Realty Group, Inc. or such other assignee as Buyer may select.
22. Miscellaneous.
(a) Notices. Any notice, consent, approval, waiver, or other
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered personally or
five (5) days after deposited in the United States mail, certified mail, postage
prepaid, return receipt required, and addressed as follows:
If to Seller: Xxxxxxxxxx Realty Group, Inc.
A NEVADA CORPORATION
000 XXXXXX XXXXX XXXX. XXX. 000
XX. XXX XXXXXXXXX, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
20
With a copy to: Xxxxx X. Xxxxxxx, Esq.
CRAIGIE, XXXXXXXX & XXXX
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Buyer: Xx. Xxxxxx Xxxxxx
000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxx X. Xxxxx, Esq.
000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as either party may from time to time specify by notice
hereunder to the other.
(b) Brokers and Finders. Seller shall be responsible for the
payment of brokerage fees and/or commissions relating to this transaction in
such an amount as are set forth in a separate agreement. Said commissions shall
be paid from escrow at the closing. If any other broker or finder perfects a
claim for a commission or finder's fee based on any contact, dealings or
communication with any party hereto, the party through whom the broker or finder
makes such claim shall be responsible for said commission or fee and all costs
and expenses (including reasonable attorneys' fees) incurred by the other party
in defending against the same. Nothing in this Section or Agreement shall create
any third party beneficiary rights in favor of any broker. The provisions of
this paragraph shall survive the Closing.
(c) Successors and Assigns. This Agreement shall bind and
inure to the benefit of the parties hereto and their respective successors,
heirs, administrators and assigns. Without being relieved of any liability under
this Agreement, Buyer reserves the right to take title to the Property in a name
or assignee other than Buyer.
(d) Assignment. Except as provided in this Section, neither
party to this Agreement may assign this Agreement to another party, except that
Seller may assign this Agreement to an IRC ss. 1031 exchange accommodator.
21
(e) Amendments. Except as otherwise provided herein, this
Agreement may be amended or modified by, and only by, a written instrument
executed by Seller and Buyer.
(f) Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of
California.
(g) Merger of Prior Agreements. This Agreement contains the
entire agreement of the parties and supersedes all prior negotiations,
correspondence, understandings and agreements between the parties, relating to
the subject matter hereof.
(h) Enforcement. If either party fails to perform any of its
obligations under this Agreement or if a dispute arises concerning the meaning
or interpretation of any provision of this Agreement, the defaulting party or
the party not prevailing in such dispute, as the case may be, shall pay any and
all costs and expenses incurred by the other party in enforcing or establishing
its rights hereunder, including, without limitation, court costs and reasonable
attorneys' fees. Both Seller and Buyer mutually agree that the venue shall be in
the State of California, County of San Francisco.
(i) Venue. Except for a lawsuit for specific performance,
Seller and Buyer mutually agree that in the event any lawsuit is commenced
regarding this Agreement or the Property's condition, use management, or related
matters, then the venue shall be in the State of California, County of San Mateo
and both Seller and Buyer waive their rights to trial of such action in the
State and County where the Property is situated.
(j) Time of the Essence. Time is of the essence of this
Agreement.
(k) Exchange Transaction. In the event that Seller elect to
consummate the transaction contemplated herein by virtue of an exchange
transaction under Section 1031 of the Code, Buyer shall cooperate with Seller in
so effecting Seller's consummation of such transaction subject to the following
conditions:
(i) The period for the Closing shall not be
extended by such exchange transaction;
(ii) Buyer shall not take title to any property
as part of any such exchange transaction;
and/or
(iii) Buyer shall not be required to advance any
funds whatsoever or incur any obligation or
liability whatsoever in connection with any
such exchange transaction.
(l) Breach by Seller. In the event that Seller breaches its
obligations under this Agreement Buyer may either (i) terminate this Agreement,
22
and the Deposit shall be immediately returned to Buyer or (ii) Buyer may bring
an action for specific performance of this Agreement, provided that if specific
performance is not available due to the actions of Seller, then Buyer may bring
an action for damages. Seller and Buyer hereby acknowledge and agree that the
Property, given its location, entitlements, density, size, condition, access,
proximity to other amenities and other factors, is unique to Buyer and,
therefore, Buyer shall be entitled to the remedy of specific performance in the
event of a breach by Seller. Further, Seller hereby agrees that in the event of
a breach or alleged breach by Seller of this Agreement, Seller hereby covenants
and agrees that Buyer may record a lis pendens against the Property
(m) Attorneys' Fees. Seller and Buyer shall each bear their
own attorneys' fees in the performance of this Agreement; provided, however,
that in the event of a dispute between Buyer and Seller regarding enforcement or
interpretation of this Agreement, the prevailing party in such dispute shall be
entitled to recover from the other party all reasonable attorneys' fees costs
and expenses generated by reason of said dispute.
(n) Headings. The headings of the various sections of this
Agreement are for the convenience of the parties and shall not be used in the
interpretation of this Agreement.
(o) Interpretation. This Agreement shall be construed
according to the normal meaning of words and phrases, and shall not be read
against either party to this Agreement. In any dispute regarding interpretation
of this Agreement, the Court shall seek to base its interpretation on the normal
meaning of such words and phrases.
(p) Days and Business Days. As used in this Agreement, the
term "day" shall refer to a calendar day and the term "business day" shall refer
to any calendar day other than a federal holiday, Saturday or Sunday.
(q) Other Construction. As used herein the term "may" is
permissive and the term "shall" is mandatory. The term "will" means the
statement of an intention and not an obligation. The singular shall include the
plural and the neuter, the masculine and feminine.
(r) Further Assurances. Each party agrees to cooperate with
the other party and to execute such additional instruments and documents as may
be reasonably necessary or proper in order to carry out the provisions of this
Agreement.
(s) No Waiver. The waiver by either party of the performance
of any covenant, condition or promise shall not invalidate this Agreement and
shall not be considered a waiver of any other covenant, condition or promise.
The waiver shall not constitute a waiver of time for performing any other act or
any identical act required to be performed at a later time. The exercise of any
remedy provided in this Agreement shall not be a waiver of any remedy provided
by law, and the provisions in this Agreement for any remedy shall not exclude
any other remedy unless such remedy is expressly excluded.
23
(t) Invalid Provisions. If any one or more of the provisions
of this Agreement shall for any reason be held to be invalid, unenforceable or
illegal in any respect, such invalidity, illegality or unenforceability shall
not affect any other provisions of this Agreement, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provisions had never been
set forth.
(u) Exhibits. All exhibits attached are incorporated into this
Agreement.
(v) Confidentiality. Buyer and Seller shall keep the terms and
conditions of the transaction contemplated by this Agreement confidential and
shall not disclose any information regarding the same prior to the Closing;
provided, however, that both Buyer and Seller shall have the right to disclose
the terms of this Agreement and other information to their respective directors,
officers, employees, attorneys, consultants and such other persons or entities
from whom consent to transfer is required. Buyer shall have the right to make
inquiries regarding the Property of governmental officials and current and
former service providers, contractors, tenants and other persons having
knowledge of the Property and shall have the right to state as the basis for any
such inquiries that Buyer has entered into this Agreement with Seller for the
purchase and sale of the Property. This confidentiality provision applies to any
and all environmental studies, which studies shall become the sole property of
Seller if Seller terminates this Agreement.
SIGNATURE PAGE FOLLOWS
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SELLER:
XXXXXXXXXX REALTY GROUP, INC.,
A NEVADA CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Corporate Secretary
Xxxxxxxxxx Realty Group, Inc.,
a Nevada corporation
BUYER:
By: /s/ Xxxxxx Xxxxxx
-------------------------------
XX. XXXXXX XXXXXX a
married man, as his
sole and separate
property
25
EXHIBIT "A"
DESCRIPTION OF REAL PROPERTY
26
EXHIBIT "B"
LIST OF PERSONAL PROPERTY
TO BE DELIVERED AT THE CLOSING
To be determined during the twenty (20) day period following the
Effective Date of this Agreement.
00
XXXXXXX "X"
XXXXXXXX XXXX OF SALE
For and in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt of which is hereby acknowledged,
XXXXXXXXXX REALTY GROUP, INC., A NEVADA CORPORATION (hereinafter the "Seller")
do hereby sell, transfer, and convey to XX. XXXXXX XXXXXX, A MARRIED MAN, AS HIS
SOLE AND SEPARATE PROPERTY (hereinafter the "Buyer") (or assignee), the
following personal property which Seller warrant to be free and clear of all
encumbrances, to wit, the personal property is itemized on the Schedule of
Personal Property attached hereto and incorporated herein by this reference.
Seller do hereby covenant with Buyer that the undersigned is the lawful
owner of such personal property, and that the undersigned has good right to sell
the same as aforesaid and will warrant and defend the title thereto unto Buyer,
its successors and assigns, against the claims and demands of all persons
whomsoever. All such personal property is sold in its "as is" condition.
SELLER:
XXXXXXXXXX REALTY GROUP, INC.,
A NEVADA CORPORATION
By:____________________________
Xxxxx X. Xxxxxxx
Corporate Secretary
Xxxxxxxxxx Realty Group, Inc.,
a Nevada corporation
BUYER:
By:____________________________
Xx. Xxxxxx Xxxxxx
a married man, as his sole and
separate property
28
EXHIBIT "D"
LIST OF INTANGIBLES, PERMITS AND RIGHTS
To be determined during the twenty (20) day period following the
Effective Date of this Agreement.
29
EXHIBIT "E"
TRANSFER AND ASSIGNMENT
OF RIGHTS TO INTANGIBLE PROPERTY
XXXXXXXXXX REALTY GROUP, INC., A NEVADA CORPORATION ("Transferor"), as
owners of the rights, permits, authorizations, and other intangibles, as set
forth on Exhibit "D", do hereby assign, convey, transfer, and deliver without
reservation all of its rights in said items to XXXXXX XXXXXX, A MARRIED MAN, AS
HIS SOLE AND SEPARATE PROPERTY or assignee ("Transferee").
Transferor warrant that said rights, permits and authorization were
lawfully obtained and represents the rights and authorizations are as set forth
in the documents.
The parties recognize that some of the "intangibles" listed on Exhibit
"D" of the Purchase and Sale Agreement may not be assignable, either by their
terms or by operation of law. Accordingly, Seller makes no warranty to Buyer as
to Buyer's ability to operate under such intangibles.
TRANSFEROR:
XXXXXXXXXX REALTY GROUP, INC.,
A NEVADA CORPORATION
By:____________________________
Xxxxx X. Xxxxxxx
Corporate Secretary
Xxxxxxxxxx Realty Group, Inc.,
a Nevada corporation
30
EXHIBIT "F"
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
disposition of a U.S. real property interest by THE XXXXXXXXXX REALTY GROUP,
INC., A NEVADA CORPORATION ("Seller"); the undersigned hereby certifies the
following on behalf of itself:
Seller is not a foreign corporation, a foreign partnership, a foreign
trust, or a foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations); and
Seller understand that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury, the undersigned declare that they have
examined this certification and to the best of their knowledge and belief it is
true, correct and complete, and they further declares that they have authority
to sign this document on behalf of themselves.
IN WITNESS WHEREOF, Xx. Xxxxx X. Xxxxxxx has executed this certificate.
XXXXXXXXXX REALTY GROUP, INC.,
A NEVADA CORPORATION
By:____________________________
Xxxxx X. Xxxxxxx
Corporate Secretary
Xxxxxxxxxx Realty Group, Inc.,
a Nevada corporation
31
EXHIBIT "G"
ASSIGNMENT OF LEASES
THIS ASSIGNMENT OF LEASES ("Assignment"), dated June _____, 2005, is
entered into by and between XXXXXXXXXX REALTY GROUP, INC., A NEVADA CORPORATION
("Assignor") and XXXXXX XXXXXX, A MARRIED MAN, AS HIS SOLE AND SEPARATE PROPERTY
("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor is the lessor under certain leases executed with
respect to that certain real property commonly known as 000-000 Xxxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxx of San Francisco, State of California, APN
_____________________ which leases are described in Schedule "I" attached hereto
(the "Leases");
WHEREAS, Assignor desire to assign its interest as lessors in the
Leases to Assignee, and Assignee desires to accept the assignment thereof;
NOW, THEREFORE, in consideration of the promises and conditions
contained herein, the parties hereby agree as follows:
1. Assignor hereby assigns to Assignee all of their rights, title, and
interest in and to the Leases herein described together with all security
deposit amounts held for tenants.
2. Assignor warrant and represent that as of the date hereof:
(a) The attached list includes all of the Leases affecting the
property being acquired by Assignee from Assignor. As of the date hereof, there
are no assignments or agreements to assign the Leases to any other party.
(b) The Leases are in full force and effect and there exists
no default on the part of Assignor thereunder, nor does Assignor have any actual
knowledge of any defaults or any acts or events which with the passage of time
or the giving of notice could become defaults thereunder on the part of any
tenant thereunder.
3. Assignor hereby agree to indemnify Assignee against and hold
Assignee harmless from any and all cost, liability, loss, damage or expense,
including, without limitation, reasonable attorneys' fees, originating prior to
the date hereof and arising out of the lessor's obligations under the Leases
described in Schedule I.
4. Assignee hereby assumes all of the Property's or lessor's
obligations under the Leases described in Schedule 1 and agrees to indemnify
Assignor against and hold Assignor harmless from any and all cost, liability,
loss, damage, or expense, including, without limitation, reasonable attorney's
32
fees, originating subsequent to the date hereof and arising out of the lessor's
obligations under the Leases.
5. In the event of any litigation between Assignor and Assignee arising
out of the obligations of the parties under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses or such litigation,
including, without limitation, reasonable attorney's fees.
6. This Assignment shall be binding on and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors in interest
and assigns.
IN WITNESS WHEREOF, the Assignor and Assignee have executed this
Assignment the day and year first above written.
ASSIGNOR:
XXXXXXXXXX REALTY GROUP, INC.,
A NEVADA CORPORATION
By:_____________________________
Xxxxx X. Xxxxxxx
Corporate Secretary
Xxxxxxxxxx Realty Group, Inc.,
a Nevada corporation
ASSIGNEE:
By:_____________________________
XX. XXXXXX XXXXXX a
married man, as his
sole and separate
property
33
EXHIBIT "H"
Assignment of Service Contracts Warranties
and
Guaranties and Other Intangible Property
THIS ASSIGNMENT OF SERVICE CONTRACTS WARRANTIES AND GUARANTIES AND
OTHER INTANGIBLE PROPERTY is made and entered into this _______ day of June
2005, by XXXXXXXXXX REALTY GROUP, INC., A NEVADA CORPORATION ("Assignor"), in
favor of XXXXXX XXXXXX, A MARRIED MAN, AS HIS SOLE AND SEPARATE PROPERTY
("Assignee").
For Good and Valuable Consideration, the receipt of which is hereby
acknowledged, Assignor hereby assigns and transfers unto Assignee all of its
right, title, claim, and interest in and under:
(A) all warranties and guaranties set forth in "Schedule 1" attached
hereto, made by or received from any third party with respect to any building,
building component, structure, fixture, machinery, equipment, or material
situated on, contained in any building or other improvement situated, or
comprising a part of any building or other improvement situated on, any part of
that certain real property described in Exhibit "A" to the Purchase and Sale
Agreement;
(B) all of the Service Contracts listed in "Schedule 2" attached
hereto; and
(C) any intangible property now or hereafter owned by Assignor in
connection with the real property described in Exhibit "A" to the Purchase and
Sale Agreement or any improvements or personal property located thereon,
including, without limitation, the right to use any trade name now used in
connection with said real property and any governmental permits or licenses,
agreements, utility contracts, or other rights relating to the ownership, use or
operation of said real property.
ASSIGNOR AND ASSIGNEE FURTHER HEREBY AGREE AND COVENANT AS FOLLOWS:
1. Assignor covenant that the Warranties and Guaranties described in
Schedule 1 and the Service Contracts described in Schedule 2 are in full force
and effect and there exist no defaults thereunder, nor any acts or events which
with the passage of time or the giving of notice could become defaults
thereunder, on the part of any party thereto.
2. In the event of any litigation between Assignor and Assignee arising
out of the obligations of Assignor under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing, without limitation, reasonable attorney's fees.
34
3. This Assignment shall be binding on and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors in interest,
and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
the day and year first above written.
ASSIGNOR:
XXXXXXXXXX REALTY GROUP, INC.,
A NEVADA CORPORATION
By:____________________________
Xxxxx X. Xxxxxxx
Corporate Secretary
Xxxxxxxxxx Realty Group, Inc.,
a Nevada corporation
ASSIGNEE:
By:____________________________
XX. XXXXXX XXXXXX a
married man, as his
sole and separate
property
35
EXHIBIT "I"
PENDING OR THREATENED LITIGATION AND/OR LAWSUITS
36
TABLE OF CONTENTS
1. Assets Included in Sale..............................................1
(a) Real Property...............................................1
(b) Appurtenances...............................................2
(c) Improvements................................................2
(d) Personal Property...........................................2
(e) Intangibles.................................................2
(f) Leases and Security Deposits................................2
(g) Other Contracts.............................................2
2. Purchase Price.......................................................3
3. Buyer's Deposit......................................................3
4. Transfer of the Property.............................................4
(a) Real Property...............................................4
(b) Personal Property...........................................4
(c) Permits, Licenses and Intangibles...........................4
(d) Assignment & Assumption of Leases...........................4
(e) Assignment & Assumption of Service Contracts................4
5. Title Inspection and Contingency Removal.............................4
(a) Title.......................................................4
(b) Buyer's Contingency Removal Period..........................5
6. Property Due Diligence Conditions....................................5
(a) Property Documents..........................................6
(b) Survey......................................................6
(c) Documents to Be Provided....................................6
(d) Other Matters...............................................8
(e) Cooperation of Seller.......................................8
(f) Due Diligence Conditions....................................8
7. Buyer's Investigations of Property Condition.........................9
(a) Reasonable Access...........................................8
(b) Cost of Inspection..........................................8
8. Financing Contingency................................................9
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9. Conditions Precedent to Closing......................................9
(a) Buyer's Contingencies.......................................9
(b) Buyer's Title Contingencies.................................9
(c) Buyer's Property Due Diligence..............................9
(d) Buyer's Financing Contingency...............................9
(e) Commitment to Issue Buyer's Title Insurance.................9
10. Closing and Escrow..................................................10
(a) Closing Date................................................9
(b) Escrow Funds...............................................10
(c) Escrow Instructions........................................10
(d) Seller's Documents.........................................10
(e) Buyer's Documents and Funds................................11
(f) Other Documents............................................12
(g) Prorations.................................................12
(h) Closing Expenses...........................................12
(i) Closing....................................................13
11. Warranties and Representations by Seller............................13
(a) Representations, Covenants, and Warranties.................13
12. "AS IS" Sale........................................................17
13. Covenants of Seller.................................................18
(a) Insurance..................................................18
(b) Performance Under the Leases...............................18
(c) Further Tenancies..........................................18
(d) Operation and Condition Pending Closing....................18
(e) Condition of Property......................................18
(f) Required Repairs...........................................18
(g) Transfer of Property.......................................18
(h) Property Management Agreements and Employees...............18
14. Tenant Income Certifications........................................19
15. Representations by Seller...........................................19
16. Representations and Warranties of Buyer.............................19
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17. Loss by Casualty; Condemnation......................................19
(a) Repairable.................................................19
(b) Non-Repairable.............................................19
(c) Condemnation...............................................20
18. Possession..........................................................20
19. Maintenance of the Property.........................................20
20. Buyer's Consent to New Contracts Affecting the Property.............20
21. Permitted Assignee..................................................20
22. Miscellaneous.......................................................20
(a) Notices....................................................20
(b) Brokers and Finders........................................21
(c) Successors and Assigns.....................................21
(d) Assignment.................................................21
(e) Amendments.................................................21
(f) Governing Law..............................................22
(g) Merger of Prior Agreements.................................22
(h) Enforcement................................................22
(i) Venue......................................................22
(j) Time of the Essence........................................22
(k) Exchange Transaction.......................................22
(l) Breach by Seller...........................................22
(m) Attorneys' Fees............................................22
(n) Headings...................................................23
(o) Interpretation.............................................23
(p) Days and Business Days.....................................23
(q) Other Construction.........................................23
(r) Further Assurances.........................................23
(s) No Waiver..................................................23
(t) Invalid Provisions.........................................23
(u) Exhibits...................................................24
(v) Confidentiality............................................24
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Exhibits List:
Exhibit "A": DESCRIPTION OF REAL PROPERTY
Exhibit "B": LIST OF PERSONAL PROPERTY TO BE DELIVERED AT THE CLOSING
Exhibit "C": WARRANTY XXXX OF SALE
Exhibit "D": LIST OF INTANGIBLES, PERMITS AND RIGHTS
Exhibit "E": TRANSFER AND ASSIGNMENT OF RIGHTS TO INTANGIBLE PROPERTY
Exhibit "F": NON-FOREIGN AFFIDAVIT
Exhibit "G": ASSIGNMENT OF LEASES
Exhibit "H": Assignment of Service Contracts Warranties and
Guaranties and Other Intangible Property
Exhibit "I": PENDING OR THREATENED LITIGATION AND/OR LAWSUITS
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