EXHIBIT 10.1
AGREEMENT FOR PURCHASE AND SALE OF
REAL PROPERTY AND ESCROW INSTRUCTIONS
This AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW
INSTRUCTIONS (the "AGREEMENT") is made and entered into as of September 5, 2003,
by and between AMERICAN CARE GROUP, INC., a Nevada corporation ("SELLER") and
CENTEX HOMES, a Nevada general partnership, doing business as Real Homes
("BUYER").
R E C I T A L S
A. Seller is the owner of certain real property located in the City of
North Las Vegas (the "CITY"), County of Xxxxx (the "COUNTY"), State of Nevada
(the "STATE"), comprised of approximately 40 gross acres identified as
Assessor's Parcel Nos. 124-26-701-005 and 124-26-701-006 and more particularly
described on EXHIBIT "A" attached hereto (the "PROPERTY").
B. For the purposes of this Agreement, the term (a) "LOT" shall mean
and refer to a single-family detached residential lot, and the term "LOTS" shall
mean and refer to collectively all of the single-family detached residential
lots created or to be created as part of the subdivision of the Property and (b)
"PARCEL" shall mean and refer to the legal parcels into which the Property is to
be divided by Buyer pursuant to the PARCEL MAPS (described in Section 3.5.6
below) prior to subdividing the Property into LOTS.
C. Seller desires to sell the Property to Buyer, and Buyer desires to
purchase the Property from Seller, in accordance with the terms and conditions
contained in this Agreement.
A G R E E M E N T
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained in this Agreement, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, Buyer
and Seller hereby agree as follows:
1. PURCHASE AND SALE.
1.1 PURCHASE AND SALE OF THE PROPERTY. Subject to the terms
and conditions set forth herein, Seller agrees to sell and convey to Buyer, and
Buyer hereby agrees to acquire and purchase from Seller, the Property. As used
herein, the term "PROPERTY" shall include the Property and all of Seller's
rights, title and interest in and to all entitlements, easements, rights in and
to all permits, licenses, authorizations, approvals, maps, studies and plans,
mineral rights, oil and gas rights, water, water rights, air rights, development
rights and privileges appurtenant thereto and any improvements located thereon.
The Property is comprised of the following Xxxxx County Assessor Parcel Nos.:
124-26-701-005 and 124-26-701-006.
1.2 PURCHASE PRICE. The total purchase price payable by Buyer
to Seller for the Property (the "PURCHASE PRICE") shall be Seven Million and
No/100 Dollars ($7,000,000.00). The Purchase Price (including the components
thereof) is payable as follows:
1.2.1 DEPOSIT. As of the opening of "ESCROW" (as defined in
Section 2.1), Buyer shall deposit by its company check the sum of One Hundred
Thousand Dollars ($100,000.00) (the "INITIAL DEPOSIT") into Escrow. "ESCROW
HOLDER" (as defined in Section 2.1) shall invest the Initial Deposit in an
interest-bearing account, subject to immediate withdrawal without penalty, at a
financial institution in Las Vegas, Nevada with interest accruing for the
benefit of the party entitled to the Initial Deposit or applicable to the
Purchase Price at the Close of Escrow. The Initial Deposit shall be refunded to
Buyer if prior to the expiration of the "FEASIBILITY PERIOD" (as defined in
Section 3.3.2) Buyer delivers to Seller the Termination Notice (as defined in
Section 1.2.3). If Buyer does not deliver the Termination Notice to Seller prior
to the expiration of the Feasibility Period, Buyer shall be deemed to have
approved the transaction and the Initial Deposit shall be non-refundable except
as otherwise set forth in Sections 1.2.3, 2.3.1, 2.6.2, 3.1.3, 3.1.4 or 3.5.5.
Provided that this Agreement has not previously been terminated by Buyer's
delivery to Seller of the Termination Notice prior to the expiration of the
Feasibility Period, Buyer shall deposit by its company check the sum of One
Hundred Thousand Dollars ($100,000.00) (the "SECOND DEPOSIT") into Escrow within
one (1) business day after the expiration of the Feasibility Period. The Escrow
Holder shall invest the Second Deposit in an interest-bearing account, subject
to immediate withdrawal without penalty, at a financial institution in Las
Vegas, Nevada with interest accruing for the benefit of the party entitled to
the Second Deposit or applicable to the Purchase Price at the Close of Escrow.
The First Deposit and the Second Deposit are collectively referred to as the
"DEPOSIT." Following the expiration of the Feasibility Period, if Buyer has not
delivered the Termination Notice to Seller the Deposit shall become
non-refundable except as otherwise expressly set forth in Sections 1.2.3, 2.3.1,
2.6.2, 3.1.3, 3.1.4 or 3.5.5, and shall be applicable to the Purchase Price at
Close of Escrow unless otherwise released to Seller.
1.2.2 PURCHASE PRICE BALANCE. As provided in Section 2.4.1,
provided that all conditions to Buyer's obligations have been satisfied or
expressly waived by Buyer in writing, on or before one (1) business day prior to
the "CLOSING DATE" (as defined in Section 2.3.1), Buyer shall deposit with
Escrow Holder funds (via certified check, bank cashier's check or wire transfer)
in the amount of the Purchase Price less the Deposit and all interest accrued
thereon (the "PURCHASE PRICE BALANCE").
1.2.3 TERMINATION. If prior to the expiration of the
Feasibility Period, Buyer delivers written notice to Seller of Buyer's intent to
terminate the Agreement ("TERMINATION NOTICE"), then (a) the Deposit, or such
portion then held by Escrow Holder, and all interest accrued thereon shall be
returned to Buyer, (b) this Agreement and the Escrow shall terminate, and (c)
the parties shall have no further obligation to one another with respect to this
Agreement, except for those indemnity obligations which expressly survive the
termination of this Agreement. In the event that Buyer does not deliver the
Termination Notice prior to the expiration of the Feasibility Period, but
subsequently elects to terminate this Agreement for any reason other than a
default by Seller hereunder or any of the "CONDITIONS TO CLOSING" (as defined in
Section 3.5) not being satisfied or waived in writing by Buyer, (a) the Deposit,
together with all interest accrued thereon, shall serve as consideration to
Seller for its entry into and performance of this Agreement and as liquidated
damages to Seller pursuant to the terms of Section 6, (b) this Agreement and the
Escrow shall terminate, and (c) the parties shall have no further obligation to
one another with respect to this Agreement, except for those indemnity
obligations which expressly survive the termination of this Agreement.
2. ESCROW AND CLOSING.
2.1 OPENING DATE OF ESCROW. Within three (3) business days after the
date of the mutual execution and delivery of this Agreement (the "AGREEMENT
DATE"), Buyer shall open an escrow (the "ESCROW") with Nevada Title Company
("ESCROW HOLDER") by depositing with Escrow Holder a copy of the fully executed
Agreement. Escrow for the Property shall be deemed open on the date (the
"OPENING DATE OF ESCROW") when one (1) fully executed copy of this Agreement and
the Initial Deposit have been delivered to the Escrow Holder. Escrow Holder
shall prepare and submit to Seller and Buyer for approval escrow instructions
incorporating this Agreement as part thereof, and containing such other standard
provisions as may be requested by Escrow Holder and approved by Seller and Buyer
in writing; provided, however, that no escrow instructions shall modify or amend
any provision of this Agreement. In the event there is a conflict between any
such standard provisions and the provisions of this Agreement, the provisions of
this Agreement shall control. As used in this Agreement, the "CLOSE OF ESCROW"
shall mean the date a grant, bargain and sale deed in the form of EXHIBIT "B"
attached hereto (the "GRANT DEED") is recorded in the office of the County
Recorder of Xxxxx County (the "OFFICIAL RECORDS").
2.2 ESCROW FEES AND OTHER CHARGES. In connection with the Close of
Escrow, Buyer shall pay (a) the premium cost attributable to the ALTA portion of
the "TITLE POLICY" (as defined in Section 3.2), (b) all of Escrow Holder's fees,
(c) all County and City transfer taxes and fees and (d) recording fees for the
Grant Deed. In connection with the Close of Escrow, Buyer shall also pay (a) the
premium cost of the CLTA portion of the Title Policy. All other Escrow and any
other closing costs related to the transaction shall be paid by the Buyer to
ensure that Seller will receive $7,000,000 net under this Agreement.
2.3 CLOSING DATE; APPROVALS.
2.3.1 CLOSING DATE. Except as otherwise provided herein, the Close of
Escrow shall occur on the first to occur of (i) 10 days after Tentative Map
approval; (ii) ten (10) days after written waiver by Buyer of all conditions
precedent to Closing or (iii) January 15, 2004, or such other date as the
parties may agree upon in writing (the "CLOSING DATE"). Buyer is required to
prepare a proposed Tentative Map and deliver it for Seller's approval within 30
days after the Opening of Escrow. Once approved by Seller, Buyer is required to
use its commercially reasonable efforts in order to have the Tentative Map
approved on or before December 31, 2003. In the event Buyer is unable to obtain
final approval of the Tentative Map on or before 5:00 p.m., Las Vegas Time, on
December 31, 2003 (the "APPROVAL DEADLINE"), despite its commercially reasonable
efforts to do so, Buyer shall have the right to terminate the Agreement by
delivering written notice to Seller and Escrow Holder prior to the Approval
Deadline. Failure of Buyer to deliver notice of termination shall be deemed a
waiver of the Tentative Map approval. If Buyer timely delivers its written
termination notice to Seller and Escrow Holder prior to the Approval Deadline
due to Seller's inability to obtain the Tentative Map approval, despite Seller's
commercially reasonable efforts to do so, then (a) the Deposit and all interest
accrued thereon shall be returned to Buyer, (b) this Agreement and the Escrow
shall terminate, and (c) the parties shall have no further obligation to one
another with respect to this Agreement, except as otherwise expressly provided
herein in Sections 3.4.1 and 7 Buyer may, in its sole and absolute discretion by
delivery of written notice to Seller and Escrow Holder, elect to waive any or
all of such conditions precedent and proceed with the Close of Escrow prior to
the occurrence of the condition(s) so waived. Written notice from Buyer waiving
the Tentative Map contingency must be received by no later than ten (10) days
prior to the Closing.
2.3.2 APPROVALS. For purposes of this Agreement, and in the context of
the approval of Buyer's product design and any other matter relating to the
subdivision of the Property and Buyer's proposed development of the Property,
the term "APPROVED" or "APPROVAL" shall mean that the City, the County and any
other applicable governmental or quasi-governmental agency, body or authority
(individually, an "AUTHORITY"; collectively, the "AUTHORITIES") having
jurisdiction over the Property voted to approve such item or matter and all
administrative and judicial appeal periods for such approval, and all periods
for the filing of an application for a referendum or other challenge regarding
any such approval, have expired without the filing of an appeal or application,
or if an appeal or application is filed, that the appeal or application is
resolved on terms satisfactory to Buyer in its sole and absolute discretion.
Buyer shall use its commercially reasonable efforts to prepare, process and
obtain approval of the Tentative Map.
2.4 CLOSING DOCUMENTS. Upon at least five (5) business days prior
notice from one of the parties that Closing is set to occur, the parties shall
deposit the following with Escrow Holder prior to the Close of Escrow:
2.4.1 BUYER'S DELIVERIES. Buyer shall deposit (a) the Purchase Price
Balance, and (b) Buyer's share of closing costs and prorations as provided in
Sections 2.2 and 2.5.2.
2.4.2 SELLER'S DELIVERIES. Seller shall deposit:
(a) the Grant Deed conveying fee simple title to the Property,
subject only to the "PERMITTED EXCEPTIONS" (as defined in Section 3.1.4);
(b) a non-foreign certification in accordance with the
requirements of Section 1445 of the Internal Revenue Code of 1986, as amended,
and the regulations thereunder in the form attached hereto as EXHIBIT "C" (the
"NON-FOREIGN AFFIDAVIT");
(c) an assignment of all of Seller's right, title and interest
in and to any and all contracts, licenses, permits, entitlements, plans and
other intangible property pertaining to the Property comprising the applicable
portion of the Property in the form attached hereto as EXHIBIT "D" (the
"ASSIGNMENT").
2.4.3 ADDITIONAL INSTRUMENTS. Seller and Buyer shall each deposit such
other instruments as are reasonably required by Escrow Holder or otherwise
required to proceed to the Close of Escrow and consummate the sale of the
Property in accordance with the terms of this Agreement.
2.5 CLOSING.
2.5.1 ACTIONS BY ESCROW HOLDER. On the Closing Date, provided each of
the conditions to the obligations of the parties have been satisfied or waived,
Escrow Holder shall undertake and perform the following acts in the following
order:
(a) record the Grant Deed in the Official Records (with
transfer tax information to be affixed AFTER recording) and obtain a conformed
copy thereof for delivery to Buyer;
(b) pay any transfer taxes;
(c) distribute to Seller, or as Seller may instruct, the
Purchase Price Balance less Seller's share of closing costs and prorations as
provided in Sections 2.2 and 2.5.2 or any other amounts required to be paid by
Seller under this Agreement; and
(d) deliver to Buyer (i) the conformed copy of the recorded
Grant Deed, (ii) the original executed Non-Foreign Affidavit, (iii) the original
executed Assignment, and (iv) the Title Policy.
2.5.2 PRORATIONS. All non-delinquent general and special real property
taxes, bonds and assessments with respect to the Property shall be prorated
through Escrow between Buyer and Seller as of the Close of Escrow based upon the
latest available tax bills using customary escrow procedures. Prorations shall
be based on a thirty (30) day month. If the regular tax xxxx or bills for the
Property for the fiscal year in which the Escrow closes are not available as of
the Close of Escrow, Buyer and Seller shall re-prorate all such general and
special real property taxes, bonds and assessments for the Property between
themselves outside of Escrow based upon the then current fiscal year's regular
tax xxxx(s) within thirty (30) days after the date such regular tax xxxx(s) are
actually received by the parties.
2.5.3 POSSESSION. Upon the Close of Escrow, exclusive possession of and
title to the Property shall be conveyed to the Buyer subject only to the
Permitted Exceptions.
2.5.4 IRS FORM 1099-S. For purposes of complying with Section 6045 of
the Code, as amended by Section 1521 of the Code, Escrow Holder shall be deemed
the "person responsible for closing the transaction," and shall be responsible
for obtaining the information necessary to file and shall file within the time
specified with the Internal Revenue Service Form 1099-S, "Statement for
Recipients of Proceeds from Real Estate, Broker and Barter Exchange
Transactions."
2.6 FAILURE TO CLOSE; TERMINATION.
2.6.1 BUYER'S DEFAULT. In the event of Buyer's default under
or breach of this Agreement after the Feasibility Period where such default or
breach is not cured by Buyer within ten (10) days after Buyer's receipt from
Seller of written notice of such default or breach, the Deposit shall constitute
liquidated damages as provided in Section 6 and Buyer shall be responsible for
all Escrow cancellation charges as set forth in Section 2.6.3. Further, in the
event Closing does not occur for any reason other than default by Seller or a
failure of a condition precedent to Buyer's obligation to close, Seller shall
have the right to terminate the Agreement and obtain the Deposit.
2.6.2 SELLER'S DEFAULT. In the event the Close of Escrow does
not occur on the Closing Date due to a breach of this Agreement by Seller where
such default or breach is not cured by Seller within ten (10) days after
Seller's receipt from Buyer of written notice of such default or breach, this
Agreement shall not be terminated automatically and Seller shall be responsible
for all Escrow cancellation charges as set forth in Section 2.6.3, but only upon
delivery to Escrow Holder and Seller of written notice of termination from
Buyer, in which event Buyer shall be entitled to pursue one and only one of the
following remedies: (a) request a return of the Deposit from the Escrow Holder
in which event the Escrow Holder shall automatically return all sums (including
the Deposit and all interest earned thereon) deposited by Buyer and then held by
Escrow Holder or if the Deposit has been released to Seller, Seller shall
automatically return the Deposit to Buyer and pursue an action for damages to
recover Buyer's reasonable, documented out-of-pocket expenses attributable to
Seller's breach or default and incurred in connection with this Agreement, but
not including in-house counsel fees, provided that such award shall not exceed
One Hundred Thousand Dollars ($100,000.00), or (b) forego receipt of the Deposit
or any action for damages and pursue an action for specific performance of this
Agreement.
2.6.3 CANCELLATION CHARGES. In the event the failure to close
the Escrow is due to the default of one of the parties, the defaulting party
shall be solely responsible and liable for paying any customary Escrow and title
cancellation fees and charges.
2.6.4 RETURN OF DOCUMENTS. In any event of termination or
cancellation, Escrow Holder shall return all documents to the party who supplied
the documents, and Buyer shall deliver to Seller all reports, studies, plans,
surveys, drawings, plats, specifications, filings, and all other documents in
its possession or control concerning the Property prepared by or at the request
of Seller and provided to the Buyer in connection with the Property. The
satisfaction by Buyer of its obligations under this Section 2.6.4 shall be a
condition precedent to the release of the Deposit by Escrow Holder.
3. ACTIONS PENDING CLOSING.
3.1 TITLE.
3.1.1 TITLE REPORT. Within five (5) days after the Opening
Date of Escrow, Buyer, at its sole cost and expense, shall cause Nevada Title
Company, Attn. Xxxx Xxxxxxxx (the "TITLE COMPANY") to furnish Buyer AND BUYER'S
COUNSEL by separate cover with a commitment to issue an ALTA (1970 Form B)
Extended Coverage Owner's policy of title insurance in favor of Buyer on the
Property in the amount of the Purchase Price for the Property dated on or after
the date of mutual execution of this Agreement by the parties, together with
complete and legible stapled copies of all documents referenced therein as
exceptions to title (collectively, the "COMMITMENT"). At its cost, Buyer shall
furnish the ALTA survey within thirty (30) days of the Opening of Escrow
required by the Title Company to issue the Title Policy (as defined in Section
3.2 below) which survey ("SURVEY") shall be certified to Buyer, Escrow Holder,
the Title Company and Seller.
3.1.2 TITLE NOTICES. Buyer shall have the right, within twenty
(20) days following receipt of the later of the Commitment and, if applicable,
the Survey ("TITLE REVIEW PERIOD"), to object in writing to any liens or other
exceptions reflected on the Commitment or the Survey. All liens and other
exceptions to which Buyer so objects are herein after referred to as
"DISAPPROVED EXCEPTIONS." If no written notice of Disapproved Exceptions is
given by Buyer to Seller during the Title Review Period, then it shall be deemed
that all matters reflected by the Commitment and, if applicable, the Survey are
"PERMITTED EXCEPTIONS." Seller shall have the right, but not the obligation, at
its sole cost, to elect to cure, release or remove, on or before Closing, any or
all Disapproved Exceptions and to deliver to Buyer written notice of such
election to cure within ten (10) days after the end of the Title Review Period
("SELLER'S ELECTION PERIOD"); provided however, Seller at its sole cost, shall
be obligated to cure, release or remove, at or before closing, all mortgages,
deeds of trust and other monetary encumbrances caused or acquiesced in by Seller
whether or not Buyer objects thereto during the Title Review Period. If, prior
to the expiration of Seller's Election Period, Seller does not provide Buyer
with written notice of this election to cause all of the Disapproved Exceptions
to be removed, released, or cured, on or before Closing, Buyer shall have the
right to either (i) terminate this Agreement by delivering written notice to
Seller before the expiration of the Feasibility Period, whereupon the Escrow
Holder shall immediately return the Deposit to Buyer or (ii) elect to purchase
the Property subject to the Disapproved Exceptions, other than the liens that
Seller is obligated to cure or remove. If Buyer fails to give timely notice
electing either (i) or (ii), Buyer shall be deemed to have elected alternative
(ii).
3.1.3 [Intentionally Omitted]
3.1.4 PERMITTED EXCEPTIONS. "PERMITTED EXCEPTIONS"
shall mean all exceptions appearing on the Commitment which are: (a) standard
printed exceptions in the Title Policy issued by Title Company other than the
"creditors' rights" exception, which Seller shall cause to be removed or
endorsed over; (b) general real property taxes and assessments, a lien not yet
due and payable; and (c) any other liens, easements, encumbrances, covenants,
conditions and restrictions of record approved or deemed approved by Buyer
pursuant to Section 3.1.2. In the event that an amendment to the Title Policy is
issued shortly before Closing, and the amendment reveals an additional exception
(other than the Permitted Exceptions or any exception caused by Buyer) affecting
any Lot(s) to be purchased at Closing, the deadline for such Closing shall be
extended if (and to the minimum extent) necessary: (a) to provide Buyer five (5)
business days to deliver written notice of Disapproved Exceptions; (b) to
provide Seller five (5) business days to deliver a response, if Buyer delivers
written notice of its objection; and (c) to provide Buyer five (5) business days
following the expiration of such five (5) day period for Seller's reply to
deliver or be deemed to have delivered a reply pursuant to Section 3.1.2, if
Seller delivers (or is deemed to have delivered) a response which does not
include a commitment to remove all of the matters to which Buyer has objected.
3.2 TITLE POLICY. Buyer's obligation to proceed to Close of
Escrow shall be conditioned upon the irrevocable commitment by Title Company to
issue an ALTA (Form B, 1970) Extended Coverage Owner's Policy of Title Insurance
(the "TITLE POLICY") showing title to the Property vested in Buyer with
liability in the amount of the Purchase Price subject only to the Permitted
Exceptions. ESCROW HOLDER SHALL PROVIDE BUYER AND BUYER'S COUNSEL WITH AN
UPDATED TITLE POLICY AT LEAST TEN DAYS PRIOR TO THE SCHEDULED CLOSING.
3.3 INVESTIGATION OF THE PROPERTY.
3.3.1 DELIVERY OF DOCUMENTS. Within three (3)
business days after the Opening Date of Escrow as defined in Section 2.1, Seller
shall cause the Escrow Holder to provide Buyer with complete copies of all of
the following documents and materials in Seller's possession or available to
Seller concerning the Property and the improvement, development and operation
thereof (collectively, the "REPORTS"): surveys, including boundary, topographic
and tree surveys; correspondence or other materials; title policies; maps; soils
reports; environmental studies and reports; engineering and architectural
studies; tentative map designs together with improvement plans, agreements and
bonds; public subdivision report; traffic studies; government zoning letters;
specific plans and conditions of approval; "will-serve" letters; development
agreements; grading, improvement and landscape plans and similar data; all
material relating to earthquake faults and flood zones; all service,
maintenance, management, brokerage, consulting, advertising and other
agreements; all licenses, permits, certificates, entitlements and approvals;
property tax bills, utility bills and similar records; any other existing
contractual obligations; any additional agreements between Seller and community
residents that may obligate Buyer in any way; and all feasibility studies,
appraisals and marketing studies. Buyer acknowledges and agrees that all such
Reports are provided without representation or warranty of any kind and are
provided by Seller as an accommodation to Buyer. Buyer is required to perform
its own investigation of the Property.
3.3.2 FEASIBILITY PERIOD. Seller acknowledges that
there are several contingencies to Buyer's acquisition of the Property,
including, but not limited to, Buyer's determination of the economic feasibility
for the development of the Property. Buyer shall have the period from the date
of mutual execution of this Agreement until 5:00 p.m., Las Vegas Time, on the
date that is ninety (90) days following the Opening Date of Escrow (the
"FEASIBILITY PERIOD"), to:
(a) review, in Buyer's sole and absolute
discretion, the suitability of the Property for Buyer's use and development,
including, without limitation, the number of Lots in which the Property will be
subdivided, the size and dimensions of the Lots, any governmental land
regulations, zoning ordinances, architectural and design approvals, development
costs, financial and market feasibility, the status of the entitlements of the
Property (including, without limitation, the status of the subdivision map), the
presence of "HAZARDOUS SUBSTANCES" (as defined in EXHIBIT "E" attached hereto),
existing or potential assessments imposed against the Property and the physical
condition of the Property (collectively, the "FEASIBILITY MATTERS"); and
(b) approve or disapprove of the Feasibility
Matters; and
(c) deliver to Seller and Escrow Holder written notice of
Buyer's approval, conditional approval or disapproval of any of the Feasibility
Matters.
Buyer's failure to deliver the Termination Notice prior to the
expiration of the Feasibility Period shall be deemed Buyer's approval of the
Property and its decision to proceed with closing of the transactions
contemplated herein, subject only to the Tentative Map approval. If Buyer does
not deliver the Termination Notice prior to the expiration of the Feasibility
Period, the Second Deposit shall be deposited into Escrow on the date the
Feasibility Period expires as set forth in Section 1.2.1 above.
3.4 ACCESS AND PROCESSING.
3.4.1 ACCESS. Subject to Buyer providing Seller with a certificate
evidencing Buyer's having obtained General Commercial Liability Insurance in an
amount of not less than Five Million Dollars ($5,000,000) covering any damage or
injury to persons or property occurring on the Property, which certificate must
evidence that Seller is an additional insured under such insurance coverage,
from and after the Opening Date of Escrow through the Close of Escrow, Buyer,
its agents, representatives, employees, contractors and consultants shall have
the right to enter the Property for the purposes of conducting such
investigations, inspections and tests of the Property, as Buyer deems necessary
or desirable for purposes of reviewing the Feasibility Matters. Buyer shall
indemnify and hold harmless Seller from and against any and all loss, expense,
claim, damage and injury to person or property resulting from the willful or
negligent acts of Buyer, its authorized agents, representatives, employees,
contractors and consultants on the Property in connection with such entry on the
Property as contemplated herein; provided, however, Buyer shall not be
responsible or liable for any act or omission of Seller or Seller's agents,
representatives, employees, contractors or consultants or for any adverse
condition or defect on or affecting the Property not caused by Buyer, its
agents, representatives, employees, contractors and consultants, but discovered
or impacted during such inspections.
3.4.2 PROCESSING. From and after the Agreement Date through the Close
of Escrow, Buyer shall have the right to process all applications, plans, maps,
agreements, documents, and other instruments or entitlements necessary or
appropriate for the subdivision and development of the Property as contemplated
by Buyer in Xxxxx County, including, without limitation, to the extent deemed
necessary or advisable by Buyer, revisions to any tentative map, the Final Map,
the engineering and design for the Final Map, grading and improvement plans, and
home designs and floor plans. Buyer shall proceed with such processing in a
diligent manner at its sole cost and expense. Upon written request by Seller,
Buyer shall advise Seller of the status of any entitlement processing it
performs. Seller shall, at no cost or expense to Seller, other than general
overhead costs and expenses, cooperate with and assist Buyer in the processing
of such items, including, without limitation, attending meetings with
Authorities relating to the same, and to the extent necessary or appropriate,
executing all such items and materials. Commencing on the earlier of the
expiration of the Feasibility Period or Buyer's written waiver of its right to
deliver the Termination Notice, Seller agrees to promptly review, execute and
process all applications, plans, maps, agreements, documents and other
instruments reasonably necessary or appropriate for the subdivision and
development of the Property as contemplated by Buyer.
3.5 CLOSING CONDITIONS. The obligation of Buyer to purchase
the Property is subject to the satisfaction of the following conditions
precedent as of the Closing Date (collectively, the "CONDITIONS TO CLOSING"),
any of which may be waived in whole or in part by Buyer at or prior to the
Closing Date.
3.5.1 TITLE POLICY. The Title Company shall have
irrevocably committed to issue the Title Policy.
3.5.2 REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller shall be true and correct in all
material respects as of the Closing Date with the same force and effect as if
such representations and warranties were made as of the Closing Date.
3.5.3 NO MORATORIUM OR GOVERNMENTAL ACTION. There
shall be no pending moratorium or other governmental action or proceeding, or
any similar restriction imposed by a private entity, which would prohibit or
restrict utility service to the Property or the issuance of building permits
related to the construction of homes on the Property or other development of the
Property with single-family residences.
3.5.4 TENTATIVE MAP APPROVAL. The Tentative Map shall
have been approved by applicable Authorities and such approval
shall remain in full force and effect. The Tentative Map approval shall provide
for a minimum of 4.5 dwelling units per acre or at least 180 units unless Buyer
is willing, in its sole discretion and without any obligation to do so, to
accept a lesser number of units . If the Tentative Map has not been approved on
or before the Approval Deadline and Buyer has not otherwise terminated this
Agreement, this condition shall be deemed waived.
3.5.5 PARCEL MAPS. Buyer shall have obtained the
approval of the applicable Authorities of all parcel maps ("Parcel Maps" and
each "Parcel Map") required by Buyer to divide the Property into legal Parcels
for the Closings contemplated hereunder and all such Parcel Maps shall have been
recorded in the Official Records.
If this Agreement is terminated prior to the Buyer's
acquisition of the Property due to a default by Seller or because any of the
Conditions to Closing set forth in Section 3.5 ("Closing Conditions") is not
satisfied, or waived in writing by Buyer, Escrow Holder shall return to Buyer
the Deposit and interest earned thereon while in Escrow, and any other funds
deposited by Buyer into Escrow and then held by Escrow Holder, and thereafter
neither party shall have any further obligation hereunder, except for those
indemnity obligations which survive the termination hereunder. Notwithstanding
the foregoing, if such failure of a Condition or Conditions to Closing is the
result of a breach or default by Seller under this Agreement, Buyer shall have
the rights and remedies available to Buyer as provided in Section 2.6.2.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
4.1 SELLER'S REPRESENTATIONS, WARRANTIES AND
COVENANTS. In addition to any other representations, warranties and covenants of
Seller contained in this Agreement, Seller hereby represents, warrants and
covenants to Buyer as follows, all of which shall survive the Close of Escrow
for a period of six (6) months:
(a) "Seller" is a Nevada corporation in good
standing under the laws of the State of Nevada. Seller is the sole owner in fee
simple of the Property and has the full right, capacity, power and authority to
enter into and perform the terms of this Agreement. Seller has not alienated,
encumbered, transferred, leased, assigned or otherwise conveyed its interest in
the Property or any portion thereof except as set forth in the Preliminary Title
Report, and shall not enter into any such agreement prior to the Close of
Escrow. Neither the execution and delivery of this Agreement nor the performance
or consummation of the transactions contemplated by this Agreement will result
in any breach of or constitute a default under or conflict with any agreement,
covenant or obligation binding upon Seller. Seller has the requisite right,
legal capacity and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby. No
approvals, authorizations or consents of any public body or of any person other
than Seller's members are necessary in connection herewith. This Agreement and
all other agreements, documents and instruments to be executed in connection
herewith have been effectively authorized by all necessary action including,
without limitation, authorizations of Seller's members, as applicable, which
authorizations remain in full force and effect, have been duly executed and
delivered by Seller, and no other proceedings on the part of Seller are required
to authorize this Agreement and the transactions contemplated hereby. This
Agreement constitutes the legal, valid and binding obligation of Seller and is
enforceable in accordance with its terms against Seller subject only to
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or
equitable principles affecting or limiting the rights of contracting parties
generally.
(b) To Seller's actual knowledge, without
investigation, there are no mechanic's or materialman's liens or similar claims
or liens now asserted against the Property for work performed or commenced prior
to Agreement Date other than as described in the Preliminary Title Report.
(c) Except as disclosed on that certain Phase I
Environmental Site Assessment prepared by Western Technologies, Inc. and dated
April 4, 1994, a copy of which is attached hereto as Exhibit "G" (the "Phase
I"), neither Seller nor, to Seller's actual knowledge, without investigation,
any third party has used, generated, manufactured, stored or disposed any
Hazardous Substance in, at, on, under or about the Property or transported any
Hazardous Substance to or from the Property. To Seller's actual knowledge,
without
investigation, the Property is not in violation, nor has been or is currently
under investigation for violation of any federal, state or local law, ordinance
or regulation relating to industrial hygiene, worker health and safety, or to
the environmental conditions in, at, on, under or about the Property including,
but not limited to, soil and groundwater conditions. To Seller's actual
knowledge, without investigation, the Property has not been subject to, and is
not within 2,000 feet of, a deposit of any Hazardous Substance. To Seller's
actual knowledge, without investigation, there has been no discharge, migration
or release of any Hazardous Substance from, into, on, under or about the
Property, and there is not now, nor has there ever been on or in the Property
underground storage tanks or surface or below-grade impoundments, any
asbestos-containing materials or any polychlorinated biphenyls used in hydraulic
oils, electrical transformers or other equipment. Seller hereby assigns to Buyer
as of the Close of Escrow all claims, counterclaims, defenses or actions,
whether at common law, or pursuant to any other applicable federal or state or
other laws which Seller may have against any third parties relating to the
existence of any Hazardous Substance in, at, on, under or about the Property.
(d) To Seller's actual knowledge, without
investigation, there are no animals, plants or other living things within the
Property or 2000 feet thereof which have been designated or which are being
considered for designation as an endangered or threatened species (or as a
published candidate for either such status) by any Authority. To Seller's actual
knowledge, without investigation, there are no habitats for any of the foregoing
within or adjacent to the Property and no areas that are or could be designated
as wetlands within or adjacent to the Property.
(e) To Seller's actual knowledge, without
investigation, there is no pending or threatened suit, action, arbitration,
legal, administrative or other proceeding or governmental investigation, formal
or informal, including, without limitation, eminent domain, condemnation,
assessment district or zoning change proceeding, or any judgment, moratorium or
other government policy or practice which affects the Property or Buyer's
anticipated development of the Property.
(f) Except as disclosed on the Phase I, to Seller's
actual knowledge, without investigation, the Property is not located within a
100-year flood plain as designated by the Federal government.
(g) To Seller's actual knowledge, without
investigation, Seller and any entity or person that owns or controls Seller are
not bankrupt or insolvent under any applicable Federal or state standard, have
not filed for protection or relief under any applicable bankruptcy or creditor
protection statute and have not been threatened by creditors with an involuntary
application of any applicable bankruptcy or creditor protection statute.
(h) To Seller's actual knowledge, without
investigation, no seismic safety problem relating to the Property would prevent
or impair residential development of the Property.
Each of the representations and warranties made by Seller in this
Agreement, or in any Exhibit or on any document or instrument delivered pursuant
hereto, shall be true and correct in all material respects on the date hereof,
and shall be deemed to be made again as of the Close of Escrow, and shall then
be true and correct in all material respects. The truth and accuracy of each of
the representations and warranties, and the performance of all covenants of
Seller contained in this Agreement, are conditions precedent to the release of
the Deposit to Seller and to the Close of Escrow. Seller shall notify Buyer
immediately of any facts or circumstances, which are contrary to the foregoing
representations and warranties contained in this Section 4.1 through the date of
Closing. As used in this Agreement, "Seller's actual knowledge" shall mean
within the actual knowledge of Xxx X. Xxxxx, Esq.
4.2 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer
represents and warrants that it is a general partnership duly organized and
validly existing in the State of Nevada, and has the capacity and full right,
capacity, power and authority to enter into and carry out the agreements
contained in, and the transactions contemplated by, this Agreement, and that
this Agreement has been duly authorized and executed by Buyer and, upon delivery
to and execution by Seller, shall be a valid and binding Agreement of Buyer.
Neither the execution and delivery of this Agreement nor the performance or
consummation of the transaction contemplated by this Agreement will result in
any breach of or constitute a default under or conflict with any agreement,
covenant or obligation binding upon Buyer. Buyer has the requisite right, legal
capacity and authority to enter into this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. No approvals, authorizations or consents of
any public body or of any person other than Buyer's authorized representatives
are necessary in connection herewith. This Agreement and all other agreements,
documents and instruments to be executed in connection herewith have been
effectively authorized by all necessary action including, without limitation,
authorizations of Buyer's authorized representatives, as applicable, which
authorizations remain in full force and effect, have been duly executed and
delivered by Buyer, and no other proceedings on the part of Buyer are required
to authorize this Agreement and the transactions contemplated hereby. This
Agreement constitutes the legal, valid and binding obligation of Buyer and is
enforceable in accordance with its terms against Buyer subject only to
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or
equitable principles affecting or limiting the rights of contracting parties
generally.
4.3 Condition of Property.
(a) Except for the representations and warranties expressly set
forth in this Agreement (i) Buyer agrees that the Property is to be sold to and
accepted by Buyer at Closing in its then condition "AS-IS" and with all faults;
(ii) no person acting on behalf of Seller is authorized to make, and by
execution hereof, Buyer acknowledges that no person has made any representation,
agreement, statement, warranty, guarantee or promise regarding the Property or
the transaction contemplated herein or the zoning, construction, physical
condition or other status of the Property; and (iii) Buyer understands and
acknowledges that after the Closing the Buyer is solely responsible for the
performance of all work Buyer desires to be performed to develop the Property
and Seller will not be responsible for any work related to the Property.
(b) Except as expressly set forth herein, Seller
makes no representation or warranty, express or implied, with respect to the
Property or the surrounding properties owned by Seller. No representation,
warranty, agreement, statement, guaranty or promise, if any, made by any person
acting on behalf of Seller which is not contained in this Agreement will be
valid or binding on Seller. Without limiting the generality of the foregoing,
Seller disclaims (i) any obligation to construct any improvements, (ii) any
obligation to construct any public utilities or utility connections, and (iii)
any obligation to develop or cause the development of any portion of the
surrounding properties owned by Seller or any other person or entity.
(c) Buyer acknowledges that Buyer will be solely
responsible for ascertaining and complying with all governmental requirements
which pertain to the development and operation of the Property and that Seller,
except to the extent expressly set forth in this Agreement, has made no
representation or warranty whatsoever with regard to such requirements.
(d) Buyer acknowledges that it is an experienced
real estate developer with expertise and experience sufficient to enable Buyer
to reach an informed conclusion regarding the suitability of the Property for
Buyer's purposes. Nothing contained herein shall be deemed to limit Buyer's
right to terminate this Agreement during the Feasibility Period for any reason
or for no reason.
5. CONDEMNATION.
If, prior to the Close of Escrow, any portion of the Property is
taken by any entity by condemnation or under the power of eminent domain, or if
the access thereto is reduced or restricted thereby (or is the subject of a
pending taking which has not yet been consummated), Seller shall promptly notify
Buyer of such fact. In such event, Buyer shall have the right, in Buyer's sole
and absolute discretion, to terminate this Agreement and Escrow upon written
notice to Seller and Escrow Holder not later than seven (7) days after receipt
of Seller's notice thereof. If Buyer elects to terminate this Agreement and
Escrow, all documents and funds, including the Deposit, shall be returned by
Escrow Holder to each party who so deposited the same (or if the Deposit has
been released to Seller, Seller shall immediately return the Deposit to Buyer),
and neither party shall have any further rights or obligations hereunder, except
for payment of Escrow and title cancellation fees which shall be borne equally
by Buyer and Seller. If Buyer elects not to terminate this Agreement and Escrow,
Buyer and Seller shall proceed to consummate the transaction contemplated
herein, and Seller shall assign and deliver to Buyer any and all awards made or
to be made in connection with such condemnation or eminent domain proceeding not
to exceed the Purchase Price herein.
6. LIQUIDATED DAMAGES.
BUYER AND SELLER EACH AGREE THAT IN THE EVENT OF A MATERIAL DEFAULT OR
BREACH HEREUNDER BY BUYER, THE DAMAGES TO SELLER WOULD BE EXTREMELY DIFFICULT
AND IMPRACTICABLE TO ASCERTAIN. THEREFORE, IN THE EVENT OF A MATERIAL DEFAULT OR
BREACH BY BUYER HEREUNDER, WHICH DEFAULT OR BREACH IS NOT CURED WITHIN THIRTY
(30) DAYS AFTER WRITTEN NOTICE OF SUCH DEFAULT OR BREACH IS RECEIVED BY BUYER
FROM SELLER, THE DEPOSIT SHALL SERVE AS LIQUIDATED DAMAGES FOR SUCH BREACH OR
DEFAULT BY BUYER, AS A REASONABLE ESTIMATE OF THE DAMAGES TO SELLER, INCLUDING
COSTS OF NEGOTIATING AND DRAFTING THIS AGREEMENT, COSTS OF COOPERATING IN
SATISFYING CONDITIONS TO CLOSING, COSTS OF SEEKING ANOTHER BUYER, OPPORTUNITY
COSTS IN KEEPING THE PROPERTY OUT OF THE MARKETPLACE, AND OTHER COSTS INCURRED
IN CONNECTION HEREWITH. DELIVERY TO AND RETENTION OF THE DEPOSIT BY SELLER AND
ANY INDEMNITY RIGHTS PURSUANT TO SECTION 3.4.1 SHALL BE SELLER'S SOLE AND
EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF A MATERIAL DEFAULT OR BREACH BY
BUYER HEREUNDER. SELLER WAIVES ANY AND ALL OTHER RIGHTS AND REMEDIES AGAINST
BUYER, INCLUDING WITHOUT LIMITATION, SPECIFIC PERFORMANCE. THE PAYMENT AND
RETENTION OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE
OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. UPON ANY
SUCH BREACH OR DEFAULT BY BUYER HEREUNDER, THIS AGREEMENT SHALL BE TERMINATED
AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH
TO THE OTHER, EXCEPT FOR THE RIGHT OF SELLER TO RETAIN SUCH LIQUIDATED DAMAGES.
SELLER'S INITIALS: ________ BUYER'S INITIALS:________
7. BROKERS: Buyer shall be responsible for the payment of a
commission in the amount of Five Hundred Thousand and No/100 Dollars
($500,000.00) to Landcor Properties and Investments, Inc., Attn. Xxxxxx Xxxxxx
located at 0000 Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000, Phone: (000) 000-0000;
Fax: (000) 000-0000 and E-Mail: xxxxxxx000@xxx.xxx ("BROKER") pursuant to a
separate agreement between Buyer and Broker, if applicable. Buyer and Seller
each represents and warrants to the other that it has not engaged any other real
estate broker or finder in connection with this transaction except as expressly
provided herein. Seller shall indemnify, defend and hold Buyer harmless against
any Claims incurred by reason of any brokerage fee, commission or finder's fee
which is payable or alleged to be payable to Broker or any other broker or
finder by or on the basis of any alleged acts by Seller. Buyer shall indemnify,
defend and hold Seller harmless against any Claims incurred by reason of any
brokerage fee, commission or finder's fee which is payable or alleged to be
payable to any broker or finder by or on the basis of any alleged acts by Buyer.
The representations, warranties, indemnities and agreements contained in this
Section 7 shall survive the Close of Escrow or earlier termination of this
Agreement.
8. GENERAL PROVISIONS.
8.1 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which, taken together,
shall constitute one and the same instrument.
8.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement (together with all
Exhibits attached hereto) contains all of the agreements of the parties hereto
with respect to the matters contained herein and no prior or contemporaneous
agreement or understanding, oral or written, pertaining to any such matters
shall be effective for any purpose. No provision of this Agreement may be
modified, waived, amended or added to except by writing signed by the party
against which the enforcement of such modification, waiver, amendment or
addition is or may be sought.
8.3 INCORPORATION OF EXHIBITS. All exhibits attached hereto and
referred to herein are incorporated in this Agreement as though fully set forth
herein.
8.4 PARTIAL INVALIDITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of the Agreement shall continue in full force and effect and shall in
no way be impaired or invalidated, and the parties agree to substitute for the
invalid or unenforceable provision a valid and enforceable provision that most
closely approximates the intent and economic effect of the invalid or
unenforceable provision.
8.5 GOVERNING LAW. This Agreement and each and every related
document are to be governed by, and construed in accordance with, the laws of
the State of Nevada.
8.6 WAIVER OF COVENANTS, CONDITIONS OR REMEDIES. The waiver by one
party of the performance of any covenant, condition or promise, or of the time
for performing any act, under this Agreement shall not invalidate this Agreement
nor shall it be considered a waiver by such party of any other covenant,
condition or promise, or of the time for performing any other act required,
under this Agreement. The exercise of any remedy provided in this Agreement
shall not be a waiver of any consistent remedy provided by law, and the
provisions of this Agreement for any remedy shall not exclude any other
consistent remedies unless they are expressly excluded.
8.7 LEGAL ADVICE. Each party has received independent legal advice
from its attorneys with respect to the advisability of executing this Agreement
and the meaning of the provisions hereof. The provisions of this Agreement shall
be construed as to the fair meaning and not for or against any party based upon
any attribution of such party as the sole source of the language in question.
8.8 TIME OF THE ESSENCE. Time shall be of the essence as to all
dates and times of performance, whether they are contained herein or contained
in any escrow instructions to be executed pursuant to this Agreement, and all
escrow instructions shall contain a provision to this effect. Notwithstanding
the foregoing, in the event the date for the performance of an action or the
giving of a notice falls on a Saturday, Sunday or holiday, then the date for the
performance of such action or giving of such notice shall be automatically
extended to the next succeeding business day.
8.9 ATTORNEYS' FEES. In the event that any party hereto institutes
an action or proceeding for a declaration of the rights of the parties under
this Agreement, for injunctive relief, for an alleged breach or default of, or
any other action arising out of this Agreement or the transactions contemplated
hereby, or in the event any party is in default of its obligations pursuant
thereto, whether or not suit is filed or prosecuted to final judgment, the
non-defaulting party or prevailing party shall be entitled to its actual
attorneys' fees and to any court costs incurred, in addition to any other
damages or relief awarded
8.10 ASSIGNMENT. Buyer, in its sole discretion, may assign this
Agreement and its rights and obligations hereunder provided that such assignee
expressly assumes the obligations of Buyer hereunder. Upon any such assignment
by Buyer, Buyer shall be fully relieved from any further liability hereunder.
This Agreement shall be binding upon and shall inure to the benefit of the
successors and permitted assigns of the parties to this Agreement with the
consent of Seller.
8.11 NOTICES. All notices required or permitted by this Agreement
shall be in writing and may be delivered in person (by hand delivery or
professional messenger service) to either party or may be sent by registered or
certified mail, with postage prepaid, return receipt requested or delivered by
Express Mail of the U.S. Postal Service or Federal Express or any other courier
service guaranteeing overnight delivery, charges prepaid, or may be transmitted
by facsimile transmission (provided a hard copy of such transmission is
thereafter delivered in one of the foregoing prescribed methods) and addressed
as follows:
If to Seller: American Vantage Companies
0000 Xxxx Xxxx Xxxx Xxxx., Xxxxx 000
Xxx Xxxxx, XX 00000
Attn.: Xxxxxx Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxx@xxxxxxxxxxxxxxx.xxx
With a copy to: Snow Xxxxxx Xxxxxx P.C.
Attn: Xxxxxx Xxxxxxxx, Esq.
000 Xxxxx Xxxxxx, 00xx
Xxx Xxxx, Xxx Xxxx 00000
Phone: () (000) 000-0000
Fax: () (000) 000-0000
E-Mail: xxxxxxx@xxxxxx.xxx
If to Buyer: Centex Homes dba Real Homes
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxx@xxxxxxxxxxx.xxx
With a copy to: Centex Homes
0000 Xxxx Xxxxxxxx, #000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, General Counsel
c/o Xxxxxx Xxxxxxx, Paralegal
Telephone: (000) 000-0000; (000) 000-0000
Telecopier: (000) 000-0000
E-Mail: XXXXXXXX@XXXXXXXXXXX.XXX
xxxxxxxx@xxxxxxxxxxx.xxx
PLEASE ALWAYS SEND TO BOTH E-MAIL ADDRESSES
If to Escrow Holder: Nevada Title Company
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-Mail: xxxxxxxxx@xxxxxxxxxxx.xxx
Any such notice sent by registered or certified
mail, return receipt requested, shall be deemed to have been duly given and
received seventy-two (72) hours after the same is so addressed and mailed with
postage prepaid. Notices delivered by overnight service shall be deemed to have
been given twenty-four (24) hours after delivery of the same, charges prepaid,
to the U.S. Postal Service or private courier. If any notice is transmitted by
facsimile transmission or similar means, the same shall be deemed served or
delivered upon confirmation of transmission thereof. Any notice or other
document sent by any other manner shall be effective only upon actual receipt
thereof. Any party may change its address for purposes of this Section 8.11 by
giving notice to the other party as provided herein.
8.12 CONSTRUCTION OF AGREEMENT. The agreements contained herein
shall not be construed in favor of or against either party, but shall be
construed as if both parties prepared this Agreement.
8.13. GENDER AND NUMBER. Wherever in this Agreement the context so
requires, references to the masculine shall be deemed to include the feminine
and neuter, and reference to the singular shall be deemed to include the plural.
8.14 SURVIVAL; NON-MERGER. Except as specifically
set forth herein, the representations, warranties, indemnities and other
provisions set forth herein shall survive the Close of Escrow and shall not be
merged into the Grant Deed.
8.15 EASEMENTS. Seller agrees to reasonably cooperate with Buyer
to grant any temporary construction easements or other easements over the
Property, which are reasonably necessary for Buyer's development of the
Property; provided however that the location of such easements shall not
interfere with Buyer's proposed development of the Property.
9. [INTENTIONALLY OMITTED]
10. COOPERATION WITH EXCHANGE. Buyer agrees to accommodate and
cooperate with Seller in structuring the transfer of Property from Seller to
Buyer as an exchange of property held for productive use in a trade or business
or for investment within the meaning of Section 1031 of the Internal Revenue
Code of 1986, as amended (the "CODE"). In connection with such tax deferred
exchange, Buyer shall execute such documents as may be reasonably required to
effect such exchange and also allow Seller to extend the Close of Escrow for a
period of Thirty (30) days. In no event shall Buyer be required to take title to
any real property other than the Property or to incur any additional expense or
liability. Buyer shall have no liability pursuant to any documents executed in
connection with such exchange. Seller shall indemnify, defend, protect and hold
harmless Buyer, its partners, officers, directors, employees, agents,
representatives, successors and assigns from and against any and all Claims
arising from or in connection with (i) structuring the transaction contemplated
by this Agreement as an exchange under Section 1031 of the Code or (ii) the
execution of any documents in connection with the exchange. Seller shall pay all
costs, if any, incurred by Buyer as a result of structuring the transfer of the
Property as an exchange under Section 1031 of the Code, including, without
limitation, attorneys' fees (including in-house counsel) and other costs
incurred by Buyer in connection with document review, litigation or threats of
litigation, or governmental audits arising from such exchange or related
thereto, and any other resulting costs and expenses. Under no circumstances
shall structuring the transaction contemplated by this Agreement as an exchange
under Section 1031 of the Code delay the Close of Escrow. The failure of the
contemplated transaction to qualify as a tax-deferred exchange under Section
1031 of the Code shall in no way defeat or otherwise compromise the sale of the
Property from Seller to Buyer. The rights and obligations of Buyer and Seller
pursuant to this Section 10 shall survive the conveyance of the Property
contemplated hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
"BUYER"
CENTEX HOMES, a Nevada general partnership, doing business as Real Homes
By: CENTEX REAL ESTATE CORPORATION,
a Nevada corporation, Managing General Partner
By: /s/ XXXX XXXXX
---------------
Xxxx Xxxxx, Division President
"SELLER"
AMERICAN CARE GROUP, INC.
a Nevada corporation
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------
Xxxxxx X. Xxxxxxxxx, President
ACCEPTANCE BY ESCROW HOLDER:
Escrow Holder hereby acknowledges that it has received a fully
executed counterpart of the foregoing Agreement for Purchase and Sale of Real
Property and Escrow Instructions and agrees to act as Escrow Holder thereunder
and to be bound by and perform the terms thereof as such terms apply to Escrow
Holder.
Dated: September 5, 2003 NEVADA TITLE COMPANY
By: /s/ XXXX XXXXXXXX
-----------------
Xxxx Xxxxxxxx, Commercial Escrow Officer
EXHIBIT "A"
LEGAL DESCRIPTION
THAT PORTION OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4)
OF SECTION 26, TOWNSHIP 19 SOUTH, RANGE 61 EAST.
PARCELS ONE (1) AND TWO (2) AS SHOWN BY THE MAP THEREOF ON FILE 83 OF PARCEL
MAPS, PAGE 28, IN THE OFFICE OF THE COUNTY RECORDED OF XXXXX COUNTY, NEVADA.
EXHIBIT "B"
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO,
AND MAIL TAX STATEMENTS TO:
Centex Homes dba Real Homes
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxx
-------------------------------------------------------------
(Above Space for Recorder's Use Only)
Parcel No(s). 124-26-701-005 and 124-26-701-006
GRANT, BARGAIN & SALE DEED
--------------------------
[Statement of Tax Due and Request that Stamps not be made part of the Permanent
Record to be filed separate from the Deed]
FOR VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, AMERICAN CARE GROUP, INC., a Nevada corporation hereby GRANTS,
BARGAINS and SELLS to CENTEX HOMES, a Nevada general partnership, doing business
as Real Homes, the real property located in the County of Xxxxx, State of
Nevada, more particularly described in EXHIBIT "1" attached hereto and
incorporated herein by this reference;
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances thereunto belonging, or in anywise appertaining, and the
reversion and reversions, remainder and remainders, rents, issues and profits
thereof.
Subject to Permitted Exceptions as defined in that certain
Agreement for Purchase and Sale between AMERICAN CARE GROUP, INC. and CENTEX
HOMES dated September 5, 2003 and more particularly described in Exhibit "2"
attached hereto and incorporated herein by this reference.
IN WITNESS WHEREOF, the undersigned has executed this
document as of the day and year indicated.
Dated: _______________ __, 200___
"SELLER"
AMERICAN CARE GROUP, INC.
a Nevada corporation
By:__________________________________
Name:________________________________
Title: ________________________________
EXHIBIT "C"
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
To inform CENTEX HOMES, a Nevada general partnership, doing business as
Real Homes ("TRANSFEREE"), that withholding of tax under Section 1445 of the
Internal Revenue Code of 1986, as amended, ("CODE") will not be required upon
the transfer of certain real property to the Transferee by AMERICAN CARE GROUP,
INC., a Nevada corporation (the "TRANSFEROR"), the undersigned hereby certifies
the following on behalf of the Transferor:
1. The Transferor is not a foreign corporation,
foreign partnership, foreign trust, foreign estate or foreign person (as those
terms are defined in the Code and the Income Tax Regulations promulgated
thereunder); and
2. The Transferor's U.S. employer or tax (social
security) identification number is
The Transferor understands that this Certification
may be disclosed to the Internal Revenue Service by the Transferee and that any
false statement contained herein could be punished by fine, imprisonment, or
both.
The Transferor understands that the Transferee is
relying on this Certification in determining whether withholding is required
upon said transfer.
Under penalty of perjury I declare that I have
examined this Certification and to the best of my knowledge and belief it is
true, correct and complete, and I further declare that I have authority to sign
this document on behalf of the Transferor.
Dated: _______________ __, 200___
"TRANSFEROR"
AMERICAN CARE GROUP, INC.,
a Nevada corporation
By:__________________________________
Name:________________________________
Title: ________________________________
EXHIBIT "D"
BLANKET ASSIGNMENT OF CONTRACTS, LICENSES, PERMITS, PLANS AND
SPECIFICATIONS AND OTHER INTANGIBLE PROPERTY
Reference is hereby made to (a) that certain
property located in the City of North Las Vegas, County of Xxxxx, Nevada, and
more particularly described in Recital A of that certain Agreement for Purchase
and Sale of Real Property and Escrow Instructions between Seller and Buyer (as
such parties are defined below) dated as of September __, 2003, (b) the
improvements located thereon, and (c) the rights, privileges and entitlements
incident thereto (collectively, the "PROPERTY").
For good and valuable consideration, receipt of
which is hereby acknowledged, the undersigned, AMERICAN CARE GROUP, INC., a
Nevada corporation ("SELLER") does hereby, give, grant, bargain, sell, transfer,
assign, convey and deliver to CENTEX HOMES, a Nevada general partnership, doing
business as Real Homes ("BUYER"), all of Seller's right, title and interest in
all assets, rights, materials and/or claims used, owned or held in connection
with the use, management, development or enjoyment of the Property, including,
without limitation: (i) all entitlements, subdivision agreements and other
agreements relating to the development of the Property; (ii) all plans,
specifications, maps, drawings and other renderings relating to the Property;
(iii) all warranties, claims and any similar rights relating to and benefiting
the Property or the assets transferred hereby; (iv) all intangible rights,
goodwill and rights benefiting the Property; (v) all development rights
benefiting the Property; (vi) all rights, claims or awards benefiting the
Property; and (vii) all rights to receive a reimbursement, credit or refund from
the applicable agency or entity of any deposits or fees paid in connection with
the development of the Property.
Seller shall, upon written request therefor, execute
and deliver to Buyer, its nominees, successor and/or assigns, any new or
confirmatory instruments and do and perform any other acts which Buyer, its
nominees, successors and/or assigns, may request in order to fully transfer
possession and control of, and protect the rights of Buyer, its nominees,
successors and/or assigns in the assets of Seller intended to be transferred and
assigned hereby.
Dated: _______________ ____, 200___
"SELLER"
AMERICAN CARE GROUP, INC.
a Nevada corporation
By:__________________________________
Name:________________________________
Title: ________________________________
EXHIBIT "E"
DEFINITION OF HAZARDOUS SUBSTANCES
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The term "HAZARDOUS SUBSTANCE" as used in this
Agreement shall mean a material amount of those substances, materials or wastes
regulated now or in the future under any of the statutes or regulations listed
below and any and all of those substances included within the definitions of
"hazardous substances", "hazardous materials", "hazardous waste", "hazardous
chemical substance or mixture", "imminently hazardous chemical substance or
mixture", "toxic substances", "hazardous air pollutant", "toxic pollutant" or
"solid waste" in the statutes or regulations listed below. Hazardous Substances
shall also mean a material amount of (i) trichloroethylene, tetrachloroethylene,
perchloroethylene and other chlorinated solvents, (ii) any petroleum products or
fractions thereof, (iii) asbestos, (iv) polychlorinated biphenyls, (v) flammable
explosives, (vi) urea formaldehyde, and (vii) radioactive materials and waste.
A Hazardous Substance shall include a material
amount of:
(1) a "Hazardous Substance", "Hazardous Material",
"Hazardous Waste", or "Toxic Substance" under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C.ss.ss.9601, ET SEQ.,
the Hazardous Materials Transportation Act, 49 U.S.C.ss.ss.1801, ET SEQ., or the
Resource Conservation and Recovery Act, 42 U.S.C.ss.ss.6901, ET SEQ.;
(2) "Oil" or a "Hazardous Substance" listed or
identified pursuant toss.311 of the Federal Water Pollution Control Act, 33
U.S.C.ss.1321, as well as any other hydrocarbonic substance or by-product;
(3) a material which due to its characteristics or
interaction with one or more other substances, chemical compounds, or mixtures,
damages or threatens to damage, health, safety, or the environment, or is
required by any law or public agency to be remediated, including remediation
which such law or public agency requires in order for the property to be put to
any lawful purpose;
(4) pesticides regulated under the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.ss.ss.136 ET SEQ.;
(5) asbestos, PCBs, and other substances regulated
under the Toxic Substances Control Act, 15 U.S.C. ss.ss.2601 ET SEQ.;
(6) any radioactive material including, without
limitation, any "source material", "special nuclear material", "by-product
material", "low-level wastes", "high-level radioactive waste", "spent nuclear
fuel" or "transuranic waste", and any other radioactive materials or radioactive
wastes, however produced, regulated under the Atomic Energy Act, 42
U.S.C.ss.ss.2011 ET SEQ. or the Nuclear Waste Policy Act, 42 U.S.C.ss.ss.10101
ET SEQ.; and/or
(7) industrial process and pollution control wastes,
whether or not "hazardous" within the meaning of the Resource Conservation and
Recovery Act, 42 U.S.C.ss.ss.6901 ET SEQ.
All regulations, administrative rules, policies and
orders, promulgated pursuant to said foregoing statutes and regulations or any
amendments or replacement thereof, provided such amendments or replacements
shall in no way limit the original scope and/or definition of Hazardous
Substance defined herein.
