PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (hereinafter the "Agreement") is
entered into effective August 4, 2006 (hereinafter the "Effective Date"), by and
between The Xxxxxxxx Family Trust (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 commonly known as the
Ashdale Gardens Apartment complex, located at 0000 Xxxxxx
Xxxxx, Xxxxxx, Xxxxx, and more particularly described on
Exhibit "A" attached hereto (hereinafter the "Property").
B. The Property consists of five (5) two-story buildings with a
total of fifty-eight (58) apartments, a pool/storage room, and
laundry room on approximately 2.285 acres of land.
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
Section 1
Assets Included in Sale
1.1 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 the Ashdale Gardens Apartment complex, located at
0000 Xxxxxx Xxxxx, Xxxx xxx Xxxxxx Xxxxxx, Xxxxx and situated on
approximately 2.285 acres of land and more particularly described in
Exhibit "A" attached hereto.
(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 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.
Section 2
Purchase Price
2.1 The Purchase Price of the Property is Two Million One Hundred Fifty
Thousand Dollars ($2,150,000) (hereinafter the "Purchase Price"). The Purchase
Price shall be paid all cash at the Closing.
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Section 3
Buyer's Deposit
3.1 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.
3.2 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: ______ Buyer: ______
3.3 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.
Section 4
Transfer of the Property
4.1 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
Xxxxxxx Title Austin, Inc., located at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000; attention: Xx. Xxxxxxx X. Xxxxxxx, telephone number (512)
000-0000, facsimile number (000) 000-0000 (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.
4.2 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.
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4.3 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".
4.4 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".
4.5 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".
Section 5
Title Inspection and Contingency Removal
5.1 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:
(a) a current preliminary title report on the Real Property
issued by Title Company;
(b) 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;
(c) copies of the two (2) most recent property tax bills for
the property;
and
(d) 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.
5.2 Buyer's Contingency Removal Period. Buyer shall have twenty (20)
business days from the receipt of the preliminary title report set forth in
Section 4.1 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
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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.
5.3 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 5. 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.
5.4 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.
(a) 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.
(b) Review and approval or disapproval of reports generated is
at the Buyer's sole discretion.
5.5 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.
5.6 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:
(a) 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;
(b) Copies of all outstanding third-party service contracts
and other agreements affecting the operation and maintenance of the
Property, including any assignable warrants;
(c) At Seller's option, either copies of or access to any
engineering information and property inspection reports;
(d) All environmental information effecting the Property,
including a Phase I environmental report if available;
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(e) Access to all plats, zoning ordinances and compliance,
business licenses; availability of utilities and related matters;
(f) Copies of any and all municipal, state or federal
Certificates of Occupancy, or equivalent, issued to date for the
Property;
(g) Copies of operating statements for the Property for the
years 2003 through 2004, inclusive, together with a year to date
statement for 2005;
(h) A current rent roll for the Property in the format
currently used by Seller;
(i) A list of pending evictions and related legal matters
effect tenant occupancy;
(j) A list of all tenant security and rent deposits, together
with any rent concessions and other matters that may affect the
collection of rent;
(k) Copies of any termite inspections, notices of violation,
including, but not limited to, those effecting fire codes or health
codes;
(l) Disclosure of any pending legal matters (other than
evictions) affecting the Property or collection of rents or deposits;
(m) Any plans and specifications regarding Property;
(n) All real estate tax bills (or impound reports) and
personal property tax statements, valuation notices, and related
matters;
(o) All certificates of insurance and copies of all insurance
policies affecting the Property (i.e., property, liability, and
umbrella policies);
(p) All building permits;
(q) All business licenses and permits;
(r) All liens, CC&R's, or other encumbrances of record;
(s) Access to all general ledger, cash receipts, and
disbursements journals and similar books of original entry;
(t) Insurance loss runs for the period 2003 to 2005;
(u) Rental rate history from 2003 to 2005;
(v) Accounts receivable and aging;
(w) Inventory of Personal Property to be transferred pursuant
to this Agreement;
(x) Such other due diligence documents as Buyer may request.
5.7 Other Matters. Buyer shall review and approve within the due
diligence period all other matters relating to or effecting the Property.
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5.8 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.
5.9 Due Diligence Conditions. The foregoing conditions in this Section
5 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.
Section 6
Buyer's Investigations of Property Condition
6.1 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.
6.2 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.
Section 7
Financing Contingency
7.1 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.
Section 8
Conditions Precedent to Closing
8.1 Buyer's Contingencies. This Agreement is expressly contingent upon
satisfaction of the following conditions (hereinafter "Buyer's Contingencies")
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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.
8.2 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.
8.3 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.
8.4 Buyer's Financing Contingency. Approval by Buyer of its financing
contingency as set forth in Section 7 hereof, during Buyer's contingency period
as set forth herein.
8.5 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.
Section 9
Closing and Escrow
9.1 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 ___________, 2006. Close of escrow shall constitute transfer of
possession.
9.2 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.
9.3 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.
9.4 Seller's Documents. At least two (2) business days prior to the
Closing, Seller shall deliver to Title Company as escrow, the following:
(a) a duly executed and acknowledged grant deed conveying to
the Buyer the Real Property and all rights, privileges and easements
appurtenant thereto;
(b) a duly executed xxxx of sale covering the Personal
Property, in the form attached hereto as Exhibit "C";
(c) 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);
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(d) an assignment and assumption of all rights to the various
tenant leases affecting the Property, in the form attached hereto as
Exhibit "E";
(e) an assignment and assumption of service contracts
affecting the Property, in the form attached hereto as Exhibit "F";
(f) originals of all, plans, specifications, reports and
similar documents of significance as the same relate to the Property,
if any;
(g) 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;
(h) to the extent available to Seller originals of all
architectural plans, designs, permits, studies, reports, or similar
documents of significance relating to the Property;
(i) 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";
(j) closing statement in form and content satisfactory to
Buyer and Seller;
(k) 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
(l) 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.
9.5 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:
(a) the Purchase Price in immediately available funds;
(b) immediately available funds sufficient to pay all title
insurance and other Closing costs allocable to Buyer as provided for
herein;
(c) execution of the Assignment and Assumption of Lease form
attached hereto as Exhibit "E";
(d) execution of the Assignment and Assumption of Service
Contracts in form attached hereto as Exhibit "F";
(e) Buyer's acceptance of Buyer's assumptions and obligation;
and
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(f) 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.
9.6 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.
9.7 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.
9.8 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.
9.9 Closing. Upon satisfaction and completion of all other matters set
forth in this Section 9, 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.
Section 10
Warranties and Representations by Seller
10.1 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:
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(a) 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.
(b) 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.
(c) 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.
(d) 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 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.
(e) 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.
(f) 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.
(g) 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.
11
(h) 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 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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
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.
12
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.
(n) 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.
(o) Structural Defects. The Seller has no actual knowledge of
any structural defects in any of the Improvements.
(p) 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 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.
(q) 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.
(r) 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.
(s) 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.
(t) 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
13
warranties contained in this Section 9 are true and correct as of said date, or
setting forth in detail which of such matters are not true and correct.
Section 11
"As Is" Sale
11.1 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.
Section 12
Covenants of Seller
12.1 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
14
management agreement affecting the Property and Seller shall terminate
any 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.
Section 13
Tenant Income Certifications
13.1 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.
Section 14
Representations by Seller
14.1 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.
Section 15
Representations and Warranties of Buyer
15.1 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.
Section 16
Loss by Casualty; Condemnation
16.1 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.
15
(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 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.
Section 17
Possession
17.1 Possession of the Property shall transfer to the Buyer at the
Closing.
Section 18
Maintenance of the Property
18.1 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.
Section 19
Buyer's Consent to New Contracts Affecting the Property
19.1 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.
Section 20
Permitted Assignee
20.1 Buyer may assign this Agreement to Xxxxxxxxxx Realty Group, Inc.
or such other assignee as Buyer may select.
Section 21
Miscellaneous
21.1 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:
16
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
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
If to Buyer:
With a copy to:
or such other address as either party may from time to time specify by notice
hereunder to the other.
21.2 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.
21.3 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.
21.4 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.
21.5 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.
21.6 Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of California.
21.7 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.
17
21.8 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.
21.9 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.
21.10 Time of the Essence. Time is of the essence of this Agreement.
21.11 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:
(a) The period for the Closing shall not be extended by such
exchange transaction;
(b) Buyer shall not take title to any property as part of any
such exchange transaction; and/or
(c) Buyer shall not be required to advance any funds
whatsoever or incur any obligation or liability whatsoever in
connection with any such exchange transaction.
21.12 Breach by Seller. In the event that Seller breaches its
obligations under this Agreement Buyer may either (i) terminate this Agreement,
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
21.13 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.
21.14 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.
21.15 Interpretation. This Agreement shall be construed according to
the normal meaning of words and phrases, and shall not be read against either
18
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.
21.16 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.
21.17 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.
21.18 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.
21.19 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.
21.20 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.
21.21 Exhibits. All exhibits attached are incorporated into this
Agreement.
21.22 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.
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/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Chief Executive Officer
19
BUYER:
The Xxxxxxxx Family Trust
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, M.D., Trustee
By: /s/ Xxx Xxxxxxxx
Xxx Xxxxxxxx, Trustee
20
EXHIBIT "A"
DESCRIPTION OF REAL PROPERTY
Lot 1, XXXXX AND HOMER'S SUBDIVISION, a subdivision in Xxxxxx County, Texas,
according to the map or plat thereof, recorded in Volume 80, page(s) 283 of the
Plat Records of Xxxxxx County, Texas.
EXHIBIT "B"
LIST OF PERSONAL PROPERTY
TO BE DELIVERED AT THE CLOSING
None
EXHIBIT "C"
WARRANTY 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 The Xxxxxxxx Family Trust (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: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Chief Executive Officer
BUYER:
The Xxxxxxxx Family Trust
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, M.D., Trustee
By: /s/ Xxx Xxxxxxxx
Xxx Xxxxxxxx, Trustee
21
EXHIBIT "D"
LIST OF INTANGIBLES, PERMITS AND RIGHTS
None
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 The Xxxxxxxx Family Trust 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:_____________________________
Xxxxxx Xxxxxx
Chief Executive Officer
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.
22
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. Xxxxxx Xxxxxx has executed this certificate.
Xxxxxxxxxx Realty Group, Inc.,
a Nevada corporation
By:________________________________
Xxxxxx Xxxxxx
Chief Executive Officer
EXHIBIT "G"
ASSIGNMENT OF LEASES
This Assignment of Leases ("Assignment"), dated ______________, 2006,
is entered into by and between Xxxxxxxxxx Realty Group, Inc., a Nevada
corporation ("Assignor") and The Xxxxxxxx Family Trust ("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 Ashdale Gardens
Apartment complex, located at 0000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx, and more
particularly described on Exhibit "A" attached hereto (hereinafter the
"Property").
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.
23
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 "A".
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
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: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Chief Executive Officer
ASSIGNEE:
The Xxxxxxxx Family Trust
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, M.D., Trustee
By: /s/ Xxx Xxxxxxxx
Xxx Xxxxxxxx, Trustee
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 _______
2006, by Xxxxxxxxxx Realty Group, Inc., a Nevada corporation ("Assignor"), in
favor of The Xxxxxxxx Family Trust ("Assignee").
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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.
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.
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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: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Chief Executive Officer
ASSIGNEE:
The Xxxxxxxx Family Trust
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, M.D., Trustee
By: /s/ Xxx Xxxxxxxx
Xxx Xxxxxxxx, Trustee
EXHIBIT "I"
PENDING OR THREATENED LITIGATION AND/OR LAWSUITS
None
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