EX-10.1 2 dex101.htm AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTION AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
EXHIBIT 10.1
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS (this “Agreement”) is made and entered into as of this 11 day of August, 2011 (the “Effective Date”), by and between KIRKHILL-TA CO., a California corporation (“Seller”), and ABSOLUTE SCREENPRINT, INC., a California corporation (“Buyer”).
1. | Agreement of Purchase and Sale; Designation of Escrow Holder. |
1.1. Purchase and Sale. Subject to and on the terms and conditions herein set forth, Seller hereby agrees to sell, assign and convey to Buyer, and Buyer hereby agrees to purchase and acquire from Seller that certain real property situated in the City of Brea, County of Orange, State of California, located at the address commonly known as 000 Xxxxxxxxx Xxxx Xxxxxx, Xxxx, Xxxxxxxxxx 00000, and more particularly described on Exhibit A attached hereto, including all appurtenances thereto and improvements thereon (the “Property”).
2. |
The purchase price which Buyer shall pay to Seller for the Property shall be Six Million Seven Hundred Thousand and No/100 Dollars ($6,700,000.00) (the “Purchase Price”), which Buyer shall pay to Seller through Escrow at Closing as follows:
2.1. |
2.1.1. Within two (2) business days following full execution and delivery of this Agreement by the parties hereto, Buyer shall deposit with Escrow Holder by certified or cashier’s check or by wire transfer the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) (the “Initial Deposit”).
2.1.2. Within two (2) business days following the fulfillment or waiver by Buyer of the conditions precedent set forth in Sections 3.4.1 through 3.4.4 of this Agreement, Buyer shall deposit with Escrow Holder by certified or cashier’s check or by wire transfer the additional amount of One Hundred Thousand and No/100 Dollars ($100,000.00) (the “Additional Deposit” and, together with the Initial Deposit, the “Xxxxxxx Money Deposit”).
2.1.3. Escrow Holder shall forthwith deposit all portions of the Xxxxxxx Money Deposit in a federally-insured financial institution in an account in the name of Buyer. All interest earned on the Xxxxxxx Money Deposit shall be and become a part of the Xxxxxxx Money Deposit and shall be handled in the same manner as the Xxxxxxx Money Deposit as provided for herein.
3. |
time period by giving written notice to the other party and Escrow Holder specifying the unsatisfied condition or conditions. Notwithstanding anything to the contrary contained herein, Buyer may, in its sole and absolute discretion, for any reason or no reason whatsoever, terminate this Agreement during the Study Period (as defined below) by providing written notice thereof to Seller. In the event of any such termination pursuant to this Section 3.3, Escrow Holder shall terminate the Escrow and return the Xxxxxxx Money Deposit to Buyer, and, except as otherwise expressly provided in this Agreement, neither party shall have any further rights or obligations under this Agreement. Buyer and Seller shall each be responsible for payment to Escrow Holder of one-half (1/2) of the Escrow fees and charges related to termination, if any.
3.4.1. Buyer shall have thirty (30) days from the date that Buyer receives a current Preliminary Report or Commitment for the Property (the “Title Report”) and copies of all documents constituting exceptions to title of record which are specified in Schedule B of the Title Report (the “Title Review Period”) to approve or disapprove title to the Property as shown on the Title Report and all matters shown on a current ALTA land survey of the Property (the “Survey”) if Buyer elects, at Buyer’s sole cost and expense, to obtain the Survey. If Buyer elects to obtain the Survey, Buyer shall, at its sole cost and expense, order the Survey within three (3) business days after the Effective Date. Buyer’s failure to timely obtain the Survey shall not extend the Title Review Period set forth above.
3.4.2. Within sixty (60) days after the Effective Date, Buyer shall have obtained from a lending institution of its choice (“Lender”) a written commitment for a loan secured by a first deed of trust or mortgage on the Property on terms satisfactory to Buyer, in Buyer’s sole and absolute discretion.
3.4.3. Within the period ending forty-five (45) days after the Effective Date (the “Study Period”), Buyer shall have conducted or obtained, at its sole cost and expense, all surveys, tests, audits and studies, including economic feasibility studies, and conducted such physical inspections as Buyer deems necessary to enable Buyer to approve all aspects of the Property, including without limitation the economic advisability of acquiring fee title to the Property, the structural condition of the building and the soils and ground water conditions in and about the Property. Buyer and its agents may enter onto the Property to make such inspections, audits, studies, tests and surveys thereof (collectively, the “Inspections”) as Buyer deems necessary, in Buyer’s sole discretion, to bring about the satisfaction of this condition, and Seller shall reasonably cooperate with Buyer (at no cost to Seller) to complete any and all such Inspections; provided, however, that Buyer shall not conduct any invasive Inspections without Seller’s prior written consent. Buyer shall keep in strict confidence the results of any such Inspections, and shall disclose the results thereof only (a) to its professional advisors and potential lenders for purposes of evaluating and/or underwriting Buyer’s acquisition of the Property, or (b) if and as required by law or legal process, and then, if permissible under applicable law, only after delivering ten (10) days notice of such requirement to Seller. Buyer shall keep the Property free and clear of any liens resulting from any such entry onto the Property; Buyer shall repair any damage to the Property resulting from such entry; and Buyer shall defend Seller with counsel
reasonably satisfactory to Seller and protect, hold harmless and indemnify Seller from and against any and all claims, demands, damages, liabilities or costs of any kind whatsoever (including attorneys’ fees) arising out of or connected with any such entry onto the Property or the disclosure of the results of any such Inspections, in contravention of Buyer’s confidentiality obligations contained in this Section 3.4.3. In the event Buyer terminates this Agreement for failure of any condition precedent as provided in this Section 3, Buyer shall immediately deliver to Seller all Property Records previously delivered to Buyer and copies of the Inspections Results (as defined in Section 5.4) as required under Section 5.4. The foregoing covenants of Buyer shall survive and be enforceable following consummation or termination of this Agreement.
3.4.4. Within five (5) days after the Effective Date, Seller shall either (i) deliver to Buyer copies of, or (ii) make available to Buyer and those professional advisors and potential lenders of Buyer whose names and contact information have been provided to Seller in writing prior to any review by such professional advisors and potential lenders of Buyer, at the office of Seller at 000 Xxxx Xxxxxxx Xxxxxx, Xxxx, XX 00000, and Buyer may review and make and retain copies of, the following materials, papers and things concerning the Property that are in Seller’s possession; All files, reports, documents, correspondence, lease documents, service contracts, maintenance contracts, improvement contracts, license agreements, warranties, soils reports, environmental reports, correspondence related to hazardous materials, income and expense statements, property tax bills for the most recent five (5) years, year end financial statements for the Property, if any; reports issued in connection with any insurance inspections, if any; engineer’s reports and/or plans with respect to the mechanical, electrical and other physical characteristics of the Property, if any; copies of any and all reports or studies prepared by Seller or Seller’s representatives or by any third party in the possession of Seller, all plans, specifications, drawings and similar documents, all guaranties and warranties related to the Property, if any; all certificates of compliance, governmental permits and approvals, if any, relating to the construction, operation, use or occupancy of any part of the Property and any and all other papers contained in the files maintained by Seller in the ordinary course of business for the Property. All such materials are hereinafter sometimes collectively referred to as the “Property Records,” Notwithstanding the foregoing, Seller’s only obligation hereunder shall be to use its reasonable best efforts to assemble all such Property Records and Buyer acknowledges that Seller makes no warranty as to the completeness of such Property Records as presented to Buyer and shall not rely on the information contained in any report or analysis included in such Property Records. Buyer shall review and approve or disapprove all such Property Records on or prior to the expiration of the Study Period.
3.4.6. Prior to the expiration of the Study Period, Seller shall complete the work and remediation of the Property described on Exhibit B (the “Seller Work”).
3.4.7. As of Closing, Seller shall have performed each and all of the obligations to be performed by Seller under this Agreement prior to Closing.
4. |
4.1.1. Seller is duly organized, validly existing and in good standing under the laws of the State of California.
4.1.2. This Agreement has been duly executed and delivered by Seller and is a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms.
4.1.3. Other than this Agreement, as shown in the Title Report or as disclosed in the Property Records, (i) Seller has not entered into any contract or agreement other than this Agreement which gives any person, firm or entity any right to acquire the Property, any rights or estates in or to the Property or any portion thereof or otherwise affects or pertains to the Property and (ii) to the best of Seller’s knowledge, no person, firm or entity has any right to acquire the Property or any rights or estates in and to the Property or any portion thereof.
4.1.4. To the best of Seller’s knowledge, there is no condemnation or eminent domain proceeding pending or threatened against the Property.
4.1.5. To the best of Seller’s knowledge, there is no litigation pending or threatened which affects the Property or which would or might affect the transaction contemplated hereby or the ability of Seller to satisfy all of its obligations hereunder.
4.1.6. Seller has not received any written notification from any insurance company, Board of Insurance Underwriters or any governmental authority specifying any non-compliance of the Property or any portion thereof with applicable codes, statutes, ordinances or regulations which remains uncured.
4.1.7. To the best of Seller’s knowledge, there is no lien or special assessment, other than ad valorem taxes, pending or threatened against the Property by any governmental authority.
4.1.8. Seller is not a foreign person as defined in Internal Revenue Code Section 1445(f)(3).
4.5.1. If Buyer is notified or otherwise first becomes aware of a breach of any of the foregoing Seller representations and warranties prior to or at the Closing, Buyer’s sole right and remedy with respect to such breach shall be to terminate this Agreement within five (5) days after Buyer is so notified or otherwise first becomes aware of such breach. In the event of such termination, the Escrow Holder shall terminate the Escrow and return the Xxxxxxx Money Deposit to Buyer and, except as otherwise expressly provided in this Agreement, neither party shall thereafter have any further rights or obligations under this Agreement; Seller shall be responsible for payment to the Escrow Holder of the Escrow fees and charges related to termination, if any. Buyer shall have no right to seek damages for any breach of any Seller representations and warranties of which Buyer is notified or otherwise first becomes aware prior to or at the Closing.
4.5.2. If Buyer is notified or otherwise first becomes aware of a breach of any of the foregoing Seller representations and warranties during the relevant period of time after the Closing as specified in Section 4.1, Buyer’s sole rights and remedies with respect to such breach
shall be to compel Seller to take such action at Seller’s expense as may be necessary to cure the breach, which right of Buyer (and the concomitant obligations of Seller discussed below) following any such breach of representation or warranty shall survive the consummation of this Agreement and to seek actual damages caused by Seller’s breach of representation or warranty under this Section 4.5.2; in no event will Buyer have any right to rescind the transaction contemplated herein on or after the Closing or to seek consequential damages. To the extent that Seller is required to take any action to cure a breach of any Seller representations and warranties pursuant to this Section 4.5.2, Seller shall commence such curative action within fifteen (15) days following receipt by Seller of notice from Buyer of the relevant breach and shall diligently pursue such curative action to completion.
5. |
5.1. As Is Purchase. Seller makes no representation or warranty whatsoever with respect to the physical condition of the Property. Buyer acknowledges that:
5.1.1. Buyer has entered into this Agreement and if Buyer purchases the Property hereunder, Buyer will do so on the basis of its own investigation of the physical condition of the Property, including the building and other improvements and the soils and ground water conditions of the Property and its immediate environs; and
5.1.2. Buyer will acquire the Property in an “AS IS” condition and shall assume the risks that adverse physical conditions may not have been revealed by its investigation.
5.3. Buyer Waiver and Release.
5.3.1. Effective as of Close of Escrow (as defined in Section 8), Buyer hereby waives, releases, acquits and forever discharges Seller and its officers, directors, partners, employees, members, agents, and any other person acting on behalf of Seller, from and against any and all claims, actions, causes of action, demands, rights, damages, costs, expenses or compensation whatsoever, direct or indirect, known or unknown, foreseeable or unforeseeable, which Buyer now has or which may arise in the future on account of or in any way growing out of or connected with the ADA, zoning or land use regulations or laws and with the presence in or on the Property, or any building or other improvement thereon, or under the surface of the Property, of underground storage tanks, asbestos-containing materials, transformers or other equipment containing polychlorinated biphenyls, or any hazardous or toxic waste, substance or
material as defined in any Federal, State or Local law, rule, ordinance or regulation which may now or hereafter be applicable (collectively, the “Hazardous Materials”) (the “Released Claims”). The foregoing covenants of Buyer shall survive and be enforceable in accordance with their terms following the consummation of this transaction and shall not be merged with or into the Deed delivered by Seller to Buyer through Escrow at Close of Escrow.
5.3.2. To the extent of Buyer’s waiver and release as set forth in this Section 5.3, Buyer hereby specifically waives the provisions of Section 1542 of the California Civil Code (“Section 1542”) and any similar law of any other state, territory or jurisdiction. Section 1542 provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. |
Buyer hereby specifically acknowledges that Buyer has carefully reviewed this section and discussed its import with legal counsel and that the provisions of this section are a material part of this Agreement.
Buyer’s initials |
5.4.1. If Buyer elects to terminate this Agreement pursuant to the terms and conditions of this Agreement, Buyer shall immediately deliver to Seller copies of the Inspections Results at no cost or expense to Seller;
5.4.2. If the sale of the Property is not consummated because of the default of Buyer, Buyer shall immediately deliver to Seller copies of the Inspections Results at no cost or expense to Seller; and
5.4.3. Following the Closing, if Seller desires copies of any Inspections Results, Buyer shall deliver to Seller copies of the Inspections Results requested by Seller in writing immediately following receipt of Seller’s written request therefor and payment by Seller of fifty percent (50%) of the out of pocket costs paid by Buyer to obtain the Inspections Results for which Seller has requested copies, up to a maximum aggregate payment by Seller to Buyer under this Section 5.4.3 equal to Ten Thousand and No/100 Dollars ($10,000.00).
Buyer’s obligations under this Section 5.4 shall survive the Closing or the termination of this Agreement.
6. |
Buyer hereby makes the following representations and warranties, each of which (i) shall survive Closing, regardless of what investigations Seller shall have made with respect thereto prior to Closing, (ii) is true in all respects as of the Effective Date, and (iii) shall be true as of Closing except to the extent that Buyer obtains knowledge or notice of any fact or facts which would make any representation and warranty untrue or misleading in any material respect and discloses such fact or facts to Seller in writing prior to Closing:
6.1. Organization. Buyer is duly organized, validly existing and in good standing under the laws of the State of California.
7. |
Buyer’s title to the Property at Close of Escrow shall be evidenced by the issuance of a standard owner’s policy of title insurance (the “Buyer’s Title Insurance Policy”) at Closing in favor of Buyer or its nominee insuring that fee simple title to the Property is vested in Buyer or its nominee, subject only to (i) the lien to secure payment of real estate taxes and assessments not delinquent; (ii) exceptions to title approved by Buyer pursuant to Section 3 of this Agreement; (iii) if Buyer does not elect to obtain the Survey pursuant to Section 3.4.1 sufficient to remove the following exception, all matters that would be disclosed by a physical inspection or survey of the Property; (iv) all matters that are actually known to Buyer; (v) any additional exceptions or matters created by Buyer, its agents, employees or authorized representatives; (vi) the printed conditions, restrictions, exceptions, stipulations and other provisions contained in Buyer’s Title Insurance Policy; and (vii) such other exceptions as Buyer, in its sole discretion, may approve in writing (collectively, the “Permitted Exceptions”). If elected by Buyer at Buyer’s sole cost and expense, the Buyer’s Title Insurance Policy shall include extended coverage. All matters concerning title to the Property shall merge in the Deed to be delivered by Seller to Buyer at Closing. Seller’s obligation with respect to the condition of title to the Property at Closing shall be completely satisfied and fulfilled upon the issuance by Escrow Holder of Buyer’s Title Insurance Policy. Absent fraud on the part of Seller, or the breach of any representation, warranty or covenant of Seller set forth in this Agreement of which Buyer is not aware and that is not cured on or prior to the Closing, in the event of any defect in or other matter adversely affecting title to the Property which appears following Closing, Buyer shall look solely to Buyer’s Title Insurance Policy to obtain any redress or relief for any damages incurred by Buyer as a result of said defect or matter and Buyer hereby releases Seller from any and all cost, damage, claim or liability arising out of any such defect or matter.
8. |
“Closing”) shall take place as soon as possible on that date that is ten (10) days after the last of the conditions precedent set forth in Sections 3.4.1 through 3.4.4 hereof has been satisfied, waived or deemed waived by Buyer, provided that in any event the Closing shall take place on or prior to October 19, 2011 (the “Closing Date”) at or through the office of Escrow Holder. If the Closing Date is a Saturday, Sunday or business holiday, the Closing shall take place on the next regularly scheduled business day. “Close of Escrow” shall mean the delivery to Buyer of (i) the Deed vesting title to the Property in Buyer by recordation thereof in the Official Records in the county where the Property is located, and (ii) the disbursement to Seller in accordance with its instructions of the proceeds in Escrow in Seller’s account at Closing.
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10. |
10.2.1. The balance of the Purchase Price as specified in Section 2.2 hereof; and
10.2.2. Such amount as may be reasonably estimated by Escrow Holder to cover any net obligations of Buyer arising out of the prorations and apportionment of closing costs pursuant to Sections 11 and 12 of this Agreement.
11. |
The following matters shall be prorated as of the Closing Date: current real property taxes and assessments and utilities.
12. |
Seller shall pay the following Closing costs: one-half of the Escrow Holder’s fees and expenses; any and all transfer and other transaction taxes; any search or other costs for the title report and the premium for Buyer’s Title Insurance Policy (standard coverage only); the costs of any title policy endorsements offered by Seller to cure any title objection raised by Buyer; and the recording costs of any instrument recorded to correct any defect in title. Buyer shall pay the following Closing costs: one-half of the Escrow Holder’s fees and expenses; the recording fee for the Deed and any instruments evidencing or securing Buyer’s financing; the increase in premium for Buyer’s Title Insurance Policy if Buyer elects to obtain extended coverage and the costs of any endorsements obtained by Buyer. All other Closing costs shall be apportioned to and paid by the parties, respectively, in accordance with the prevailing local custom as determined by Escrow Holder. In the absence of any such custom, all such costs shall be apportioned to and paid by the parties equally.
13. |
such commission shall be paid at Close of Escrow as a split between Seller’s Broker (two and a half percent (2.5%) of the gross sales price as defined above) and Xxxx Commercial Brokerage (Xxx Xxxxxx) (“Buyer’s Broker”) (two and a half percent (2.5%) of the gross sale price as defined above).
14. |
terminate this Agreement pursuant to the immediately preceding sentence or in the event the proceeds from such condemnation or other proceedings are estimated to be less than One Hundred Thousand and No/100 Dollars ($100,000.00), the Purchase Price due to Seller from Buyer at Closing shall be reduced by the amount of any condemnation proceeds arising out of such condemnation proceedings with respect to the Property which have actually been received by Seller prior to Closing (except to the extent such proceeds have been used by Seller for rebuilding in connection with the condemnation or similar proceedings) and, to the extent any such condemnation proceeds have not actually been received by Seller prior to Closing, Seller shall assign to Buyer any rights to collect such proceeds and shall reasonably cooperate with Buyer, at no cost to Seller, to collect such proceeds. As used herein, “Material Condemnation” shall mean any condemnation or other proceedings are instituted or maintained with respect to the Property (a) for which the proceeds are estimated to equal or exceed One Hundred Thousand and No/100 Dollars ($100,000.00), or (b) that results in Lender terminating its commitment or otherwise refusing to finance Buyer’s acquisition of the Property.
15. |
To Seller: | Kirkhill-TA Co. Attn: Xxxxx Xxxxxxxx 000 Xxxx Xxxxxxx Xxxxxx Xxxx, XX 00000 Telephone: 000-000-0000 x0000 Fax: 000-000-0000 Email: xxxxx.xxxxxxxx@xxxxxxxxx.xxx |
With a copy to: | Xxxxxxx Coie LLP Attn: Xxxxxxx X. Day 0000 XX Xxxxx Xxxxxx, Xxxxx Xxxxx Xxxxxxxx, XX 00000-0000 Telephone: 000-000-0000 Fax: 000-000-0000 Email: xxxx@xxxxxxxxxxx.xxx | |||
To Buyer: | Absolute Screenprint, Inc. 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxxx 00000 Attn: Xx. Xxxxxx Xxxxxx Xxxxxxx Telephone: 000-000-0000 Fax: 000-000-0000 Email: xxxxxx@xxxxxxxxxxxxxxxxxxx.xxx | |||
With a copy to | Xxxxxx Xxxxxxxxx Xxxxxx & Xxxxxx LLP 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx Xxxxx, XX 00000 Attn: Xxxxx X. Xxxxxx Telephone: 000-000-0000 Fax: 000-000-0000 Email: xxxxxxx@xxxxxxxxx.xxx |
15.2. Delivery of Notice. Notices shall be sent by any of the following means: (i) by delivery in person; (ii) by certified U.S. mail, return receipt requested, postage prepaid; or (iii) by Federal Express or other reputable “overnight” delivery service, provided that next-business-day delivery is requested by the sender. Notices delivered in person shall be deemed effective immediately upon receipt (or refusal of delivery or receipt). Notices sent by certified mail shall be deemed given three (3) days after the date on which the notice was deposited with the U.S. Postal Service. Notices sent by Federal Express or other reputable “overnight” delivery service shall be deemed given on the date deposited with the delivery service. Either party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified.
16. |
performance of this Agreement, In the event Seller interferes with the release of the Xxxxxxx Money Deposit to Buyer, then Seller shall be liable for all reasonable attorneys’ fees and other costs and expenses which Buyer may incur in connection with Buyer’s enforcement of this Section 16.1. Except for the return of the Xxxxxxx Money Deposit and Buyer’s Reimbursable Costs as provided above, Seller shall in no event be liable to Buyer for any actual, punitive, speculative, consequential or other damages. Notwithstanding the foregoing, nothing contained herein shall limit the remedies Buyer shall have to enforce any rights it has against Seller under the indemnity provisions of Sections 13 and 34.
UNDER THIS AGREEMENT (IN WHICH CASE THE XXXXXXX MONEY SHALL BE PAID TO SELLER) OR IN THE EVENT THE CLOSING OCCURS (IN WHICH CASE THE XXXXXXX MONEY DEPOSIT SHALL BE APPLIED AGAINST THE PURCHASE PRICE), THE XXXXXXX MONEY DEPOSIT SHALL IN ALL OTHER INSTANCES BE RETURNED TO BUYER IN THE EVENT THAT THIS AGREEMENT IS TERMINATED OR THE TRANSACTIONS CONTEMPLATED HEREIN FAIL TO CLOSE.
| /s/ ASY | |||||
Buyer’s initials | Seller’s initials |
17. |
This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior representations, understandings and agreements, whether written or oral. No supplement, modification or waiver of any provision of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
18. |
Time is of the essence of each and every provision hereof. If the final date of any period of time set forth herein occurs on a Saturday, Sunday or legal holiday, then in such event, the expiration of such period of time shall be postponed to the next day which is not a Saturday, Sunday or legal holiday.
19. |
In the event that any party shall bring an action to enforce its rights under this Agreement, the prevailing party in any such proceeding shall be entitled to recover its reasonable attorneys’, witness and expert fees and costs of the proceeding, including any appeal thereof. The provisions of this Section 19 are separate and severable and shall survive a judgment on this Agreement.
20. |
Except as provided in this Section 20 or in Section 34, neither party hereto may assign its respective rights and obligations hereunder, in whole or in part, without the prior written consent of the other party hereto (except that Seller shall have the right without the consent of Buyer to convey the Property to any partner or affiliate of Seller provided such party assumes each and all of the obligations thereafter to be performed by Seller under this Agreement and except that Buyer shall have the right without the consent of Seller to (i) assign this Agreement to an affiliate of Buyer that is wholly owned by either Buyer or the shareholders of Buyer or (ii) designate a nominee to take title to all or any portion of the Property at Closing that is wholly owned by either Buyer or the shareholders of Buyer). To the extent consent is required hereunder to effect an assignment of this Agreement, any assignment without such prior written consent shall be
deemed null and void. No assignment shall limit or relieve any assignor’s obligations under the terms and conditions of this Agreement. Subject to and without limiting the preceding two sentences, this Agreement and every provision hereof shall bind and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns.
21. |
This Agreement (including, without limitation, title matters and the effectiveness of any conveyance to be made pursuant hereto) shall be construed and interpreted and the rights of the parties determined in accordance with the laws of the State of California.
22. |
Seller and Buyer each agree to cooperate with each other and to execute such additional documents and instruments as are reasonably acceptable to such party, including supplemental escrow instructions, as may be reasonably required to consummate the transaction contemplated hereby.
23. |
The headings and captions of the sections of this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.
24. |
This Agreement shall not be binding or effective until properly executed and delivered by both Seller and Buyer.
25. |
As used in this Agreement, the neuter shall include the feminine and masculine, the singular shall include the plural, and the plural shall include the singular, except where expressly provided to the contrary.
26. |
In the event that any paragraph, section, sentence, clause or phrase contained in this Agreement becomes or is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining paragraphs, sections, sentences, clauses or phrases contained in this Agreement shall not be affected thereby.
27. | Counterparts; Electronic Mail and/or Facsimile Transmission. |
This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement or any counterpart may be executed and delivered by electronic mail and/or facsimile transmission with an executed hard copy to follow via overnight courier.
28. |
All Exhibits attached to, and referenced in this Agreement are hereby incorporated into, and shall be deemed a part of this Agreement. The following Exhibits are attached hereto and incorporated herein by this reference:
Exhibit A | Legal Description of the Property | |||
Exhibit B | Description of Seller Work |
29. |
If more than one (1) person or entity is included within the party designated hereinabove as Buyer, each and all of the obligations imposed upon such party under this Agreement shall be the joint and several obligations of each of such persons or entities.
30. |
Each party hereby agrees, within ten (10) days after receipt of a written request from the other party, to furnish to the other party such evidence as shall reasonably establish that the execution of this Agreement by the party furnishing such evidence and the performance by such party of its obligations hereunder have been duly authorized and that the person or persons executing this Agreement and any document or instrument pursuant to this Agreement has been duly authorized and empowered to do so.
31. |
All provisions of this Agreement have been negotiated by Seller and Buyer at arm’s length and neither party shall be deemed the scrivener of this Agreement. This Agreement shall not be construed for or against either party by reason of the authorship or alleged authorship of any provision hereof or by reason of the status of the respective parties as Seller or Buyer.
32. |
Buyer and Seller (each as the “Representing Party”) represents and warrants to the other party that the Representing Party is not and shall not become a person or entity with whom the other party is restricted from doing business under any current or future regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including, but not limited to, those named on OFAC’s Specially Designated and Blocked Persons list) or under any current or future statute, executive order (including, but not limited to, the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and shall not engage in any dealings or transaction or be otherwise associated with such persons or entities.
33. |
All persons dealing with Seller must look solely to the property and assets of Seller for the payment of any claim against Seller or for the performance of any obligation of Seller as neither the joint venturers, general partners, limited partners, members, employees, nor agents (as
the case may be) of Seller assume any personal liability for obligations entered into on behalf of Seller (or its predecessors in interest) and their respective properties shall not be subject to the claims of any person in respect of any such liability or obligation. As used herein, the words “property and assets of Seller” exclude any rights of Seller for the payment of capital contributions or other obligations to it by any joint venturer, general partner, limited partner or member (as the case may be) in such capacity.
34. |
[signatures on following page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the Effective Date.
SELLER: | BUYER: | |||||||||
KIRKHILL-TA CO., | ABSOLUTE SCREENPRINT, INC., | |||||||||
a California corporation | a California corporation | |||||||||
By: | /s/ Xxxxxx X. Xxxx | By: |
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Name: | Xx XXXX | Name: |
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Its: | Director | Its: |
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EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF BREA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
XXX 0 XX XXXXX XX. 0000, XX XXX XXXX XX XXXX, XXXXXX OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 340, PAGES 25 THROUGH 28, INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT 50 PERCENT OF ALL OIL, GAS, HYDROCARBONS AND ALL MINERALS, IN, ON OR UNDER SAID PARCELS OF LAND BUT WITH NO RIGHT OF ENTRY UPON THE SURFACE OF SAID LAND, AS RESERVED IN THE DEED FROM XXXXXXX X. XXXXX AND XXXXX X. XXXXX, HUSBAND AND WIFE, RECORDED APRIL 13, 1956 IN BOOK 3472, PAGE 550 OF OFFICIAL RECORDS.
APN: 000-000-00,02
EXHIBIT B
DESCRIPTION OF SELLER WORK
1. Repair all damage caused by the removal from the Property of the rack system, silo and other machinery owned by Seller.
2. Repair of the penetrations located in certain portions of the roof and walls of the building comprising a portion of the Property and more particularly shown in the photos attached hereto and incorporated herein (eight (8) photos in total), as follows:
- | One (1) large roof penetration – If required by Buyer (which requirement shall be confirmed by Buyer in writing to Seller at least twenty (20) days prior to the expiration of the Study Period), Seller shall engage a roofing contractor to cover this penetration using whatever materials are recommended by the roofing contractor. Buyer has indicated their intent to install a vent over this penetration which would eliminate the need for covering this penetration. | |||
- | One (1) small roof penetration – Seller shall engage a roofing contractor to cover this penetration using whatever materials are recommended by the roofing contractor. | |||
- | Three (3) large wall penetrations – Seller shall close these penetrations using wood, drywall and stucco. | |||
- | Nine (9) small wail penetrations (estimated 1 – 5 inches in diameter each) – Seller shall close these penetrations using newspaper, spackle and stucco. |