AGREEMENT OF PURCHASE AND SALE
AND
JOINT ESCROW INSTRUCTIONS
To: First American Title Insurance Company Escrow No.
Escrow Officer:
Address:
Title Order No.
Title Officer:
This Agreement of Purchase and Sale and Joint Escrow Instructions
("Agreement") is dated the 27 day of May, 1998 and entered into by and
between NEVADA INVESTMENT HOLDINGS, INC., a Nevada corporation ("Seller") and
EAGLE HARDWARE & GARDEN, INC., a Washington corporation, or assigns as may be
allowed herein ("Buyer") for purchase and sale of certain real property
situate in Los Angeles County, California, consisting of approximately It is
estimated that the Property contains approximately 425,100 square feet.
improved real property and located at the southwest corner of Azusa Avenue
and Xxxxxxxx Street in Covina, California, together with any improvements
thereon and all rights appurtenant thereto (the "Property"). The Property is
shown in approximate location on Buyer's proposed site plan dated February
20, 1998 and numbered X467-A (the "Site Plan") and attached hereto as Exhibit
A. The legal description of the Property is attached to this Agreement as
Exhibit B and made a part hereof.
Seller agrees to sell, and Buyer agrees to buy, the Property upon and
subject to the terms and conditions set forth below:
1. PURCHASE PRICE; PAYMENT. The total purchase price for the Property
shall be Five Million Dollars ($5,000,000.00).
2. XXXXXXX MONEY DEPOSIT/OPENING OF ESCROW. Within three (3) business
days after the Effective Date, Buyer will deliver a fully executed
counterpart original of this Agreement to First American Title Insurance
Company in Santa Xxx ("Escrow Holder") and deposit xxxxxxx money of one
hundred thousand dollars ($100,000) (the "First Deposit") with Escrow Holder.
For purposes of this Agreement, the Escrow shall be deemed opened ("Opening
of Escrow") on the date Escrow Holder has received the Initial Deposit from
Buyer and an executed counterpart of this Agreement. Escrow Holder shall
notify Buyer and Seller, in writing of such date. Escrow Holder shall place
the First Deposit (and Second and Third Deposits, if any, as defined in
Section 3.12 below) in an interest-bearing account, with interest to accrue
to Buyer's benefit. The First, Second and Third Deposits shall all be applied
against and credited to the purchase price. Except as set forth in Section
3.12, if this transaction does not close for any reason other than default by
Buyer under this Agreement, all the Deposits, and all interest accrued
thereon, shall be returned to Buyer. In the event of Buyer's default under
this Agreement, Seller shall have as its sole remedy the right to terminate
this Agreement and retain the Deposits, together with accrued interest
thereon, as liquidated damages.
3. CONTINGENCIES. Buyer's obligation to purchase the Property is
subject to Buyer's satisfaction or waiver, in writing, of the following
conditions precedent, in Buyer's sole and absolute discretion, on or before
expiration of the applicable time periods described below:
3.1 PRELIMINARY TITLE INSURANCE COMMITMENT. Within fifteen (15) days
after the Effective Date, Seller shall provide Buyer with a current
preliminary commitment for owner's title insurance with extended coverage
(ALTA Form 1970-B, as revised in 1984 or if unavailable,
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Form B-1987) issued by Escrow Holder ("Report"), with copies of all
documents listed as exceptions set forth therein.
3.2 ALTA/ACSM SURVEY. Within twenty (20) days after the Effective
Date, Seller shall provide Buyer with a new ALTA/ACSM survey with land area
certification of the Property ("Survey").
3.3 TITLE AND SURVEY APPROVAL PERIODS. Buyer shall have fifteen (15)
days from the latter of the receipt of the Report and Survey ("Title Review
Period") to notify Seller of its disapproval or conditional approval of any
exceptions shown in the Report or any items shown on the Survey ("Buyer Title
Notice"). The failure of Buyer to give Buyer's Title Notice on or prior to
the expiration of the Title Review Period shall be deemed to constitute
Buyer's approval of the Report and Survey. If the Buyer Title Notice is so
given, Seller, in its sole discretion, may elect to attempt to cause all or
any of such disapproved or conditionally approved exceptions or items to be
removed or insured over on or before closing. If Seller makes such election,
Seller shall give notice of same to Buyer ("Seller Title Notice") within
twenty (20) days after the receipt of the Buyer Title Notice. If Seller does
not send the Seller Title Notice, or if Seller sends the Seller Title Notice
but does not elect to cause all such disapproved or conditionally approved
exceptions or items to be removed or insured over to Buyer's reasonable
satisfaction on or before closing, Buyer may elect to either waive its
objections or to give notice that Buyer elects to terminate this Agreement
("Buyer Termination Notice"). The Buyer Termination Notice shall be given
prior to Buyer either receiving a reasonably acceptable Seller Title Notice
or receiving notification from the Title Insurance Company that all
exceptions to which it objected will be deleted or insured over. If Buyer and
Seller reach agreement on an approved state of title and title is not in such
condition on or before the closing, then Buyer shall have the right, by a
writing delivered to Seller and Escrow Holder, to either accept title in the
condition at closing or to terminate this Agreement. On any such termination
as set forth above, Escrow Holder shall refund the Deposits and all interest
accrued thereon to Buyer and all rights and obligations of Seller and Buyer
under this Agreement shall terminate and be of no further force or effect
except as otherwise provided herein.
3.4 SITE SUITABILITY. Buyer's determination that the Property is
feasible in all respects for Buyer's intended use, including but not limited
to, the following: determining that Buyer's selected building configuration
plan can be satisfactorily adapted to the site utilizing as much of the
existing buildings as possible: and that Buyer's proposed parking plan, on
site vehicle and pedestrian circulation plan and street access plan for the
Property all meet or exceed Buyer's minimum criteria; and that the local
governmental requirements for landscaping, open area, building to land ratio,
set-backs and parking can be satisfied within Buyer's plans as shown on
Exhibit A and that all utilities are available of adequate capacity to serve
Buyer's needs.
3.5 STUDIES. Satisfactory results of all soils, engineering,
environmental, topography, hazardous waste, geotechnical, hydrology, wetlands
and other studies ("Studies") that may be deemed necessary by Buyer or
required by any governmental agency in connection with the Property and
Buyer's planned development and use of the Property. During the Feasibility
Period, Buyer and its agents, contractors and employees may enter on the
building currently occupied by Kids "R" Us ("Kids Building"), on two (2)
business days prior written notice to Seller, for the purpose of conducting
any of the applicable studies referenced above and an asbestos survey and
removal estimate, provided that such entry shall be subject to the rights of
the tenant occupying the Kids Building. Any investigations or tests shall be
at Buyer's expense and performed by properly licensed and qualified persons.
Any proposed physical testing or drilling requires Seller's approval which
shall not be unreasonably withheld or delayed. Seller may have a
representative accompany Buyer and its agents, contractors or employees while
they are on the Property; and, prior to any entry involving physical testing
or other physical disturbance, Seller may require Buyer to provide proof of
comprehensive general liability insurance naming Seller and the tenant
occupying the Kid's Building as an additional insured in an amount and with
coverage reasonably satisfactory to Seller. Within ten (10) days from the
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Effective Date, Seller shall deliver to Buyer information contained in
Seller's files or available to Seller with respect to the Property and, more
specifically, to the extent Seller has same in its files, construction and
engineering plans, drawings and specifications for the existing buildings,
and all other material, data, filings, applications, P.U.D. information,
wetland mitigations, topographic surveys, soils tests, environmental
assessments, environmental remediation and other information or data with
respect to the Property that Seller may have in its files. Seller, at no
expense to Seller, shall also cooperate and assist Buyer in obtaining from
Xxxxxx Xxxxxx corporation, Target Stores division ("Target") or Kids "R" Us
("Kids"), to the extent they may have same, all such information that is not
in Seller's files. Seller makes no express or implied warranty or
representation of any kind as to the accuracy or completeness of any such
documents. Buyer shall indemnify and defend Seller against, and hold Seller
harmless from, any and all liabilities, losses, damages, claims, liens,
attorneys' fees, court costs, and litigation expenses of any kind or nature
arising directly from the entry of Buyer, its agents, contractors or
employees onto the Property; except that this provision is not intended to
apply to the mere discovery of asbestos or other hazardous or toxic
substances or materials or any consequences as a result of such mere
discovery. If Buyer conducts any physical analysis on the Property, and if
this transacation does not close, Buyer shall return the Property to the
condition it was in before Buyer conducted the analysis and Buyer shall
deliver copies of all studies to Seller. The provisions of this Section 3.5
shall survive Close of Escrow.
3.6 APPROVALS AND PERMITS. Issuance, (at not cost to Seller,
obligation of Seller or condition placed upon the Property), of any and/or
all applicable required governmental approvals (city, county, state, federal)
including but not limited to the following: (i) PUD and/or replat, parcel
consolidation and lot line adjustment of the Property; (ii) Los Angeles
Department of Public Works re: San Dimas Wash (Channel)(see Section 3.7
below); (iii) subdivision approvals and/or rezoning approvals; (iv)
California Department of Transportation highway access and traffic signal
approvals; (v) City and/or County approvals, i.e.; building permits, use
permits, sign permits, design review approvals, site plan approvals, parking
variances and street vacancies; (vi) any other approvals, as applicable, of
any kind from any and all governmental agencies having jurisdiction over the
Property; necessary for Buyer to develop and construct its store building,
garden yard, greenhouse and any other improvements that Buyer deems necessary
in its sole determination to conduct its selected business operations on the
Property as shown on Exhibit A. The timing, conditions and cost of the
permits and approvals (including any mitigation fees) must be acceptable to
Buyer.
3.7 SAN DIMAS WASH LAND USE. Acquisition (at no cost to Seller,
obligation of Seller or condition placed upon the Property), from the Los
Angeles Department of Public Works by means of a long term ground lease or
access and use easement agreement prior to the end of the Contingency Period
(as described below) for the approximately .769 acres (33,500 square feet) of
vacant bare ground (approximately 50 feet wide by approximately 670 feet
long) which is a part of the San Dimas Wash drainage channel right-of-way.
The area lies on the north side of the concrete channel and abuts the full
length of the south side of the Property. The area is to be used exclusively
for parking and vehicular circulation with appropriate landscaping and a six
foot high chainlink safety fence along the channel edge all as shown on
Exhibit A.
3.8 STREET RIGHT OF WAY REDUCTION. Approval (at no cost to Seller,
obligation of Seller or condition placed upon the Property), by the City of
Covina, prior to the end of the Contingency Period, (i) for the
reconfiguration and right of way reduction of Xxxxxxxx Street as shown on
Exhibit A; and (ii) that all vacated R.O.W. area lying south of the
reconfigured R.O.W. shall become part of the Property at no expense to Buyer
or Seller and (iii) that all R.O.W. reconfiguration work shall be completed
in concert with the completion of all Buyer's on site work and building
remodel; and (iv) that Buyer, at its cost, can construct the proposed
neighborhood entry feature and identity monument sign (as shown on Exhibit
A), including sign wall and island landscaping; and that (v) maintenance of
the neighborhood entry feature landscaping and sign after completion shall be
the responsibility of the neighborhood community or the City of Covina.
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3.9 ENVIRONMENTAL MITIGATION. Within fifteen (15) days of the
Effective Date, Seller shall deliver to Buyer a current Phase 1 environmental
report on the Property and an asbestos report on the vacant building
currently still under lease by Xxxxxx Xxxxxx Corporation ("Target Building").
Within forty-five (45) days of the Effective Date, Seller shall deliver to
Buyer an asbestos report, prepared by a certified environmental consultant,
and a written estimate of the costs of the asbestos removal from a certified
asbestos removal contractor on the Kids Building. Seller makes no express or
implied warranty or representation of any kind as to the accuracy or
completeness of any such reports. No later than thirty (30) days prior to
the end of the Contingency Period, Seller at its own cost and expense shall
remove all asbestos from the Target Building as indicated by the asbestos
report for the Target Building. Seller shall provide Buyer with a report
from the asbestos contractor indicating the completion of such work. Not
later than fifteen (15) days prior to the end of the Contingency Period,
Seller shall obtain at least two (2) bids for the removal of asbestos from
the Kids Building and shall deliver copies of such bids to Buyer. Buyer and
Seller shall work together in good faith to reach agreement on the selection
of one (1) such bid. At Closing, the cost of removal of asbestos from Kids
Building per the bid so selected by Seller and Buyer shall be a credit
against the Purchase Price. Other than as set forth above, Buyer shall
satisfy itself as to the environmental condition of the Property and Seller
makes no representations as to same.
3.10 VACATION OF KIDS "R" US AND THE TARGET BUILDINGS. Not more
than thirty (30) days prior to the end of the Contingency Period, Buyer shall
have successfully completed negotiations (on terms acceptable to Buyer) with
Kids, the current occupant and any other occupants, ("tenants(s)") of the
Kids Building for the leasehold termination and vacation of the premises by
the tenant(s) on or before the Closing Date. It shall be Seller's duty to
deliver the Target Building free of any leasehold tenancies or other
occupancies and vacated by any occupants on or before the Closing Date.
3.11 TIME PERIODS. Buyer shall have until 5:00 P.M. PST on June
14, 1998, to waive the contingencies set forth in Sections 3.4 and 3.5 (the
"Feasibility Period"). If Buyer does not waive the contingencies set forth
in Sections 3.4 and 3.5 in writing to Seller on or before the expiration of
the Feasibility Period, the First Deposit, with interest, shall be refunded
by Escrow Holder to Buyer and this Agreement shall terminate and be null and
void except as otherwise provided herein. Buyer shall have until 5:00 P.M.
PST on October 12, 1998 (the "Contingency Period") from the end of the
Feasibility Period to waive the contingencies set forth in Sections 3.6, 3.7,
3.8, 3.9. and 3.10. If Buyer does not waive the contingencies set forth in
Sections 3.6., 3.7, 3.8, 3.9. and 3.10 in writing to Seller on or before the
expiration of the Contingency Period and does not extend the Contingency
Period as allowed in Section 3.12 below, the First Deposit, with interest,
shall be refunded by Escrow Holder to Buyer and this Agreement shall
terminate and be null and void except as otherwise provided herein.
3.12 EXTENSION PERIODS. If Buyer has satisfied or waived the
contingencies set forth in Sections 3.4 and 3.5 within the time period
allowed and is diligently pursuing the applicable required approvals,
agreements and permits set forth in Sections 3.6, 3.7, 3.8, 3.9 and 3.10,
Buyer shall be allowed a first thirty (30) day extension of the Contingency
Period ("First Extension Period"), upon performing the following prior to the
end of the Contingency Period: (i) depositing with Escrow Holder an
additional fifty thousand dollar ($50,000.00) deposit ("Second Deposit")
which deposit shall be non refundable to Buyer upon deposit unless Seller is
in default under this Agreement; and (ii) sending written notification to
Seller of such deposit. If Buyer does not waive the contingencies set forth
in Sections 3.6, 3.7, 3.8, 3.9 and 3.10 in writing to Seller on or before the
expiration of the First Extension Period and does not extend the Contingency
Period a second time as allowed below, the First Deposit, with accrued
interest, shall be refunded by Escrow Holder to Buyer and the Second Deposit,
with accrued interest, shall be released by the Escrow Holder to the Seller
and the Purchase Agreement shall terminate and be null and void except as
otherwise provided herein. If Buyer is diligently pursuing the applicable
required approvals, agreements and permits set forth in Sections 3.6, 3.7,
3.8, 3.9 and
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3.10, Buyer shall be allowed a second thirty (30) day extension of the
Contingency Period ("Second Extension Period"), upon performing the following
prior to the end of the First Extension Period: (i) depositing with Escrow
Holder an additional fifty thousand dollar ($50,000.00) deposit ("Third
Deposit"), which deposit shall be non refundable to Buyer upon deposit,
unless Seller is in default under this Agreement; and (ii) sending written
notification to Seller of such deposit. If Buyer does not waive the
contingencies set forth in Sections 3.6, 3.7, 3.8, 3.9 and 3.10 in writing to
Seller on or before the expiration of the Second Extension Period, the First
Deposit, with accrued interest, shall be refunded by the Escrow Holder to
Buyer and the Second Deposit and Third Deposit, with accrued interest, shall
be released by Escrow Holder to Seller and this Agreement shall terminate and
be null and void except as otherwise provided herein.
3.13 INDEMNITY. Buyer shall defend, indemnify and hold Seller
harmless from and against any and all claims, actions, loss, cost, fee,
assessment or similar charge, damage (including, without limitation, any
diminution in the market value of the Property) and expense (including
reasonable attorneys' fees) resulting from Buyer obtaining any governmental
approvals, authorizations, actions, acquisitions, leases or permits as set
forth in Sections 3.6 through 3.9 above. This provision shall survive the
closing of this transaction or termination of this Agreement.
3.14 AS IS. If this Agreement remains in existence after the
Contingency Period, Buyer shall be deemed to have represented to Seller that
(A) Buyer has concluded whatever studies, tests, and investigations
concerning the Property Buyer desires and (B) Buyer has examined and approved
the condition and all other aspects of the Property and (C) the Property
shall be sold, and shall be received by Buyer, at Close of Escrow, in its
then condition AS-IS and WITH ALL FAULTS, including any faults mentioned in
this Agreement and (D) except as may be specifically set forth herein, Seller
has made no representations or warranties whatsoever concerning the Property
including but not limited to any representations or warranties concerning:
(i) the value, physical condition, condition of title, suitability,
merchantability, or fitness for a particular use or purpose of the Property;
(ii) the area, shape, size, configuration, location, capacity, square
footage, acreage, dimensions, or zoning of the Property; (iii) the soils
condition, topography, geology, or drainage of the Property; (iv) the
existence of any flood plain, floodway, flood hazard area special studies
zone, seismic safety zone, or geological fault affecting the Property; (v)
the availability of utilities to the Property, or access to the Property by
public road or otherwise; (vi) the nature or quality of any materials, labor,
workmanship construction, design, engineering, or composition of any
improvements affixed to the Property; (vii) and development agreements with
cities, counties, or other governmental agencies; (viii) the environmental
condition of the Property; and (ix) any law, statute, regulation, rule,
ordinance, decree, or court order (including without limitation, any zoning
law or ordinance) affecting the Property.
4. CLOSING.
4.1 TIME FOR CLOSING; TERMINATION DATE. This sale shall be closed
in the office of the Escrow Holder within fifteen (15) days after all of
Buyer's conditions precedent have been satisfied or waived by Buyer on a date
mutually agreeable to Buyer and Seller. Buyer and Seller shall deposit in
escrow with Escrow Holder all instruments, documents and monies necessary to
complete the sale in accordance with this Agreement. As used herein,
"closing", "Closing", "Closing Date" "date of closing" or Close of Escrow"
means the date on which all appropriate documents are recorded and proceeds
of sale are available for disbursement to Seller. Funds held in reserve
accounts pursuant to escrow instructions shall be deemed, for purposes of this
definition, as available for disbursement to Seller.
4.2 INTENTIONALLY DELETED.
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4.3 PRORATIONS; CLOSING COSTS; DISBURSEMENTS. Taxes and
assessments for the current year and utilities constituting liens shall be
prorated as of the date of closing. Seller shall pay the premium for the CLTA
title insurance policy, real estate excise, transfer and/or conveyance taxes,
the cost of conveyance tax stamps, if any, and one-half of Escrow Holder's
escrow fee. Buyer shall pay the cost of recording the deed, one-half of
Escrow Holder's escrow fee and the difference in the cost of the premium
between CLTA owner's and ALTA owner's extended coverage. Buyer shall receive
a credit at closing for the cost of the asbestos removal from the Kids
Building as provided in Section 3.9 above. Rent for the month of the Closing
shall be prorated on a per diem basis as of the Closing. CAM charges under
the Leases shall, if paid monthly by the tenants, not be prorated and any
refund to which a tenant may be entitled as a result of overpayment shall be
assumed by, and shall be the responsibility of Buyer. Seller shall not be
responsible for any underpayment of CAM charges, but shall assign to Buyer
any and all CAM funds it is holding as of the Close of Escrow. Upon the Close
of Escrow, the Escrow Holder shall promptly undertake all of the following in
the manner indicated: (a) prorate all matters referenced above based upon the
statement delivered into Escrow signed by the parties; (b) cause for Grant
Deed and any other documents which the parties hereto may mutually direct, to
be recorded in the Official Records of Los Angeles County, California; (c)
disburse from funds deposited by Buyer with Escrow Holder towards payment of
all items chargeable to the account of Buyer pursuant hereto in payment of
such costs, including, without limitation, the payment of the Purchase Price
to Seller, and disburse the balance of such funds, if any, to Buyer; and (d)
direct the Title Company to issue the Title Policy to Buyer.
4.4 POSSESSION. Buyer shall be entitled to possession upon
closing.
5. CONVEYANCE OF TITLE. On closing, Seller shall execute and deliver
to Buyer a grant deed ("Grant Deed") conveying title to the Property free and
clear of any defects or encumbrances except for the lien of real estate taxes
for the current calendar year not yet due and payable, those defects or
encumbrances appearing on the Report that were approved or deemed approved by
Buyer (the "Permitted Exceptions"), and other encumbrances or defects
approved by Buyer in writing.
As soon as available after closing, Seller shall provide to Buyer a CLTA
policy of title insurance pursuant to the preliminary commitment, dated as
of the closing date and insuring Buyer in the amount of the purchase price
against loss or damage by reason of defect in Buyer's title to the Property
subject only to the printed exclusions and general exceptions appearing in
the policy form; and Permitted Exceptions; the exceptions specified in the
Report which Buyer has not disapproved of (or conditionally approved unless
the condition has been satisfied) as provided herein; and real property taxes
and assessments that are not delinquent.
6. RISK OF LOSS; CONDEMNATION. Risk of loss of or damage to the
Property shall be borne by the Seller until the date of closing. Thereafter,
Buyer shall bear the risk of loss. In the event of material loss of or damage
to the Property prior to the date upon which Buyer assumes the risk, Buyer
may terminate this Agreement by giving notice of such termination to Seller
and Escrow Holder, and such termination shall be effective and the Deposits
and interest thereon shall be refunded ten (10) days thereafter, provided,
however, that such termination shall not be effective if Seller agrees in
writing within such ten (10) day period to restore the Property substantially
to its present condition by the closing date.
If the Property is or becomes the subject of a condemnation proceeding
prior to closing, Buyer may, at its opinion, terminate this Agreement by
giving notice of such termination to Seller, and upon such termination the
Deposits and accrued interest shall be returned to Buyer and this Agreement
shall be of no further force or effect except as otherwise provided herein;
provided, however, that Buyer may elect to purchase the Property, in which
case the total purchase price shall be reduced by the total of any
condemnation award received by Seller. On closing, Seller shall assign to
Buyer all of Seller's rights in and to any future condemnation awards or other
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proceeds payable or to become payable by reason of any taking. Seller agrees
to notify Buyer of eminent domain proceedings within five (5) days after
Seller learns thereof.
7. SELLER'S REPRESENTATIONS AND WARRANTIES. Other than as set forth
below, Buyer acknowledges that neither Seller nor its agents have made, do
make, or will make, and each hereby disclaims any representation or warranty,
whether express, implied, or statutory, whether oral or written, with respect
to the Property.
In addition to other representations herein, Seller represents and warrants
to Buyer as of the date of closing that:
7.1 Seller has full power and authority to execute this Agreement
and perform Seller's obligations and duties hereunder;
7.2 The Property is not subject to any lease or tenancies except the
leases with Target and Kids.
7.3 The employees of Seller's agent listed below as "Representing
Employees" have not received any notice and are not aware of any notice that
the Property, the sale of the Property or the use occupancy or condition of
the Property violates any applicable statute, ordinance or regulation, or any
order of any court or any governmental authority or agency;
7.4 Seller is not a "foreign person" for purposes of Section 1445 of
the Internal Revenue Code. Prior to closing, Seller shall execute and deliver
to Escrow Holder an affidavit in order to meet the Foreign Investment in
Real Property Tax Act ("FIRPTA") requirements of I.R.C. # 1445; and
7.5 The employees of Seller's agent listed below as "Representing
Employees" represent that, without having done any investigation whatsoever
(other than Phase 1 and asbestos reports referenced in Section 3.9), they
have received no notice and are not aware of (other than as might be shown in
the Phase 1 and asbestos reports referenced in Section 3.9)(i) any notice
from any agency suggesting that the Property is or may be targeted for a
Superfund or similar type of cleanup, or (ii) that the Property has ever been
used for the storage of oil, solvents, fuels or chemicals in violation of any
governmental law, order or regulation. However, Seller advises Buyer to
review the Phase 1 referenced in Section 3.9 to satisfy itself as to the
history of such uses, if any on the Property.
7.6 The "Representing Employees" as used in this Section 7 are the
following individuals, who are all employed by Su elt Management Company,
Seller's agent, and whose titles reference their titles with Su elt
Management Company: Xxxxxxx X. Xxxxxx, President; Xxxxxxx X. Xxxxxxx, Xx.
Vice President; Xxxxxxx X. Xxxxxx, Vice President, Western Region; and Xxxxxx
X. Xxxxxxx, Vice President, Property Management.
8. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants
to Seller that; (i) at the Effective Date and at the date of closing Buyer,
and the person signing on behalf of Buyer, has full power and authority to
execute this Agreement and to perform Buyer's obligations hereunder; and (ii)
Buyer is a sophisticated and experienced buyer of properties such as the
Property. In deciding to purchase the Property and to enter into this
Agreement, Buyer has investigated and researched (or will investigate and
research) the Property, through consultants or otherwise, to the extent Buyer
deems prudent.
9. DEFAULT. If Seller defaults hereunder, Buyer may seek specific
performance of this Agreement, damages or rescission and Buyer shall be
entitled to return of the Deposit with accrued interest, on demand.
IF BUYER BREACHES THE OBLIGATION TO COMPLETE THE PURCHASE OF THE PROPERTY,
THEN SELLER, BY NOTICE TO BUYER, MAY TERMINATE BUYER'S
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RIGHTS TO PURCHASE THE PROPERTY AND, AS SELLER'S SOLE REMEDY FOR THE DEFAULT
BY BUYER, SELLER SHALL RECEIVE AND RETAIN THE DEPOSIT UNDER THIS AGREEMENT
AS LIQUIDATED AND AGREED UPON DAMAGES. BY INITIALING THE SPACES WHICH FOLLOW,
BUYER AND SELLER SPECIFICALLY AND EXPRESSLY AGREE TO ABIDE BY THE TERMS AND
PROVISIONS OF THIS PARAGRAPH CONCERNING LIQUIDATED DAMAGES. BUYER AND SELLER
ACKNOWLEDGE THE IMPRACTICALITY AND EXTREME DIFFICULTY OF FIXING THE ACTUAL
DAMAGES SELLER WOULD SUSTAIN AS A RESULT OF THE BREACH OF BUYER'S OBLIGATION
TO COMPLETE THE PURCHASE OF THE PROPERTY, AND THAT UNDER THE CIRCUMSTANCES
EXISTING AS OF THE EFFECTIVE DATE, THE LIQUIDATED DAMAGES PROVIDED FOR IN
THIS SECTION REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WILL
INCUR AS A RESULT OF BUYER'S FAILURE TO COMPLETE THE PURCHASE. HOWEVER, THIS
SECTION SHALL NOT LIMIT SELLER'S RIGHTS UNDER THE INDEMNITY OBLIGATIONS OR
ATTORNEY'S FEES PROVISIONS OF THIS AGREEMENT.
SELLER'S INITIALS [ILLEGIBLE] BUYER'S INITIALS [ILLEGILE]
------------------- ---------------------
If any legal action or other proceeding is brought for the enforcement of
this Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be
entitled. If any party makes a written settlement offer which is not accepted
by the other party, then if the amount recovered by such other party is less
than the amount of the settlement offer, the party making the settlement
offer shall be considered the prevailing party.
10. NOTICES. All notices, waivers, elections, approvals and demands
required or permitted to be given hereunder shall be in writing and shall be
personally delivered (by overnight courier service or other means of personal
service) or sent by United States certified mail, return receipt requested,
to the addressee's mailing address set forth on the signature page:
and, in the case of Buyer, a copy to: Xxxxxxx X. Xxxxxxx
0000 XX Xxxx Xx.
Xxx xxxxx Xxxxxx, XX 00000
and, in the case of Seller, a copy to: Su elt Management Company
000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Tel. No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and:
Su elt Management Company
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx Xx 00000
Attention: Xxxxxxx X. Xxxxxx
Tel. No. (000) 000-0000
Facsimile No. (000) 000-0000
Either party hereto may, by proper notice to the other, designate any other
address for the giving of notice. Any notice shall be effective when
personally delivered or, if mailed as provided herein, on the date of actual
receipt.
8
11. NO NEGOTIATIONS WITH THIRD PARTY. Seller shall not negotiate nor
commit to sell, lease or otherwise transfer the Property or any portion
thereof to any other person or party as long as Buyer is proceeding in good
faith to perform its duties under this Agreement; provided, however, Seller
may accept back-up offers subject to this transaction but this proviso shall
not relieve Seller of its duty of confidentiality pursuant to Section 15
below. This covenant shall remain in full force and effect and be legally
binding upon Seller until termination of this Agreement.
12. GENERAL. This is the entire agreement of Buyer and Seller with
respect to the matters covered hereby and supersedes all prior agreements
between them, written or oral. This Agreement may be modified only in
writing, signed by Buyer and Seller. Any waivers hereunder must be in
writing. No waive of any right or remedy in the event of default hereunder
shall constitute a waiver of such right or remedy in the event of any
subsequent default. This Agreement is for the benefit only of the parties
hereto and shall inure to the benefit of and bind the heirs, personal
representatives, successors and assigns of the parties hereto, provided that
this Agreement may not be assigned by Buyer without the prior written consent
of Seller, which Seller may grant or withhold in its sole and absolute
discretion except to any entity of which Buyer is affiliated. However, no
assignment shall be effective until the assignee entity assumes in writing
the obligations of Buyer under this Agreement. Buyer shall remain obligated
unless specifically released by Seller. Any purported assignment made without
satisfying the requirements of this Section shall be null and void, not
merely voidable. Additionally, at Seller's election, the purported assignment
shall constitute a default by Buyer under this Agreement, for which Seller
may terminate this Agreement and retain the Deposit as liquidated damages. If
the date for performance or giving notice under this Agreement is a Saturday,
Sunday or banking holiday in California, the date for performance or notice
shall be extended until the next day that is not a Saturday, Sunday or
banking holiday.
13. SURVIVAL. The representations, indemnities, releases and
warranties shall not merge in the deed of conveyance, but shall survive
closing and shall survive the termination of this Agreement.
14. BROKER'S FEE. All real estate commissions and/or broker's fees
shall be payable by Seller at closing to Xxxxx & Partners, Inc. (the
"Broker") and Xxxxx and Xxxxx (the "Co-Broker"). Said commission and/or
broker's fee shall be as agreed upon in a separate agreement between Seller
and the Broker. Said agreement shall hold Buyer harmless from any obligation
for payment of any real estate commissions and/or broker's fees and shall
survive closing.
15. CONFIDENTIALITY. Seller and Buyer as of the Effective Date agree
not to directly or indirectly provide any information about the Property
and/or the sale of the Property or to discuss any of the terms of this
Agreement and the timing of the project or any other items regarding the
transaction with any other person or entity other than their employees,
agents and attorneys (who shall be directed as to the same by Seller and
Buyer), unless and until Buyer notifies Seller in writing that this
transaction cannot be consummated.
16. EXHIBITS. Exhibits A and B attached hereto are incorporated as if
fully set forth.
Exhibit A - Site Plan
Exhibit B - Legal Description of the Property
17. EFFECTIVE DATE. The later of the Buyer's signature date and the
Seller's signature date, as set forth below, shall be the "Effective Date" of
this Agreement.
18. ESCROW HOLDER. The parties appoint Escrow Holder to consummate the
purchase described in and consistent with this Agreement. Buyer and Seller
agree to execute, deliver and be bound by any reasonable or customary
supplemental escrow instructions of Escrow Holder or
9
other instruments as may reasonably be required by Escrow Holder in order to
consummate the transaction contemplated by this Agreement. Any such
supplemental instructions shall not conflict with, amend or supersede any
portions of this Agreement. If there is any inconsistency between such
supplemental instructions and this Agreement, this Agreement shall control.
In addition, Seller and Buyer designate Escrow Holder as the "real estate
reporting person" for the transaction under Section 6045(e) of the Internal
Revenue Code.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of signature dates set forth below.
BUYER: EAGLE HARDWARE & GARDEN, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Typed name: Xxxxxxx X. Xxxxxx
Its: President and C.E.O.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Typed Name: Xxxxxx Xxxxxxxxx
--------------------
Its: Executive Vice President - Finance and C.F.O.
--------------------
Buyer's signature date May 15, 1998
---------------------------
SELLER: NEVADA INVESTMENT HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Typed name: Xxxxxxx X. Xxxxxx
---------------------
Its: Authorized Signatory
---------------------
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Typed name: Xxxxxxx X. Xxxxxx
---------------------
Its: Authorized Signatory
---------------------
Seller's signature date May 27, 1998
---------------------
10
ACCEPTANCE BY ESCROW HOLDER
First American Title Insurance Company hereby acknowledges that it has
received a fully executed original of the foregoing Agreement of Purchase
and Sale and Joint 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.
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
---------------------------------
Typed name:
-----------------------
Its:
-----------------------
---------------------------------, 1998
Escrow Holder's signature date
11
EXHIBIT "A"
[GRAPHIC MAP]
Purchased load....................... 392,000 SF = 9.0 AC
San Dimas Wash land use.............. 33,600 SF = 0.769 AC
Vacated Xxxxxxxx 91 R.O.W............ 13,975 SF = 0.31 AC
---------------------
439,015 SF = 10.08 AC
PROJECT DATA
------------
TOTAL LAND AREA................................. 439,015 S.F./=10.8 AC
-----------------------------------------------------
TOTAL BUILDING FOOTPRINT........................ 160,272 S.F.
-----------------------------------------------------
EAGLE BUILDING SHELL....................... 129,472 S.F.
EAGLE GARDEN DEPT.......................... 30,800 S.F.
PARKING REQUIRED................................ 686 spaces
-----------------------------------------------------
EAGLE BUILDING (129,472 S.F. @ 1/200....... 647 spaces
EAGLE GARDEN (30,800 S.F. @ 1/800)......... 39 spaces
PARKING PROVIDED (with a variance).............. 569 spaces
-----------------------------------------------------
EAGLE BUILDING & GARDEN.................... 569 spaces
(incl. 7 HDCP, 10 Load Lanes & 14 contract)
PROPOSED:
---------
EAGLE HARDWARE & GARDEN
----------------------------------
EWC OF AZUSA AVE. AND GRONDAHL
COVINA CALIFORNIA
----------------------------------
DRAWING NO. X467.A DATED - 2/20/98
Eagle Hardware & Garden, Inc.
Store Development Dept.
EXHIBIT "B"
LEGAL DESCRIPTION
THE ITEM NUMBERS LISTED BELOW ARE REFERENCED FROM FIRST AMERICAN TITLE
INSURANCE COMPANY AS PRELIMINARY REPORT DATED MARCH 21, 1997. FIRST AMERICAN
TITLE INSURANCE COMPANY ORDER NUMBER 9706544-52
TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN:
NEVADA INVESTMENT HOLDINGS, INC., A NEVADA CORPORATION.
THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO
COVERED BY BY THIS REPORT IS:
A FEE, AS TO PARCEL(S): 1
AN EASEMENT, AS TO PARCEL(S): 2
THE LAND REFERRED TO HEREIN IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF THE NORTHEAST QUARTER OF SECTION 10, TOWNSHIP 1 SOUTH, RANGE
10 WEST, RANGE 10 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF COVINA.
ACCORDING TO THE OFFICIAL PLAY OF SAID LAND ON FILE IN THE DISTRICT LAND
OFFICE ON OCTOBER 31, 1873. DESCRIBED AS FOLLOWS:
BEGINNING AT THE XXXXXXXXX XXXXXX XX XXX 00 XX XXXXX 00000, AS SHOWN ON MAP
RECORDED IN BOOK 618 PAGE 69 TO 72 INCLUSIVE OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDED OF SAID COUNTY; THENCE ALONG THE EASTERLY BOUNDARY OF SAID
TRACT, NORTH 175'00" WEST 450.00 FEET AND NORTH 21'23'26" WEST 163.72 FEET;
AND NORTH 30'00'00" WEST 6.01 FEET TO THE SOUTHERLY LINE OF XXXXXXXX STREET,
AS SHOWN ON MAP OF SAID TRACT 22813; THENCE ALONG SAID XXXXXXXX XXXXXX, XXXXX
00'00'00" XXXX 0.46 FEET TO THE BEGINNING OF A TANGENT CURVE IN SAID XXXXXXXX
STREET, CONCAVE TO THE SOUTH AND HAVING A RADIUS OF 520.00 FEET; THENCE
EASTERLY ALONG SAID CURVE 225.53 TO THE END OF SAME; THENCE CONTINUING XXXXX
XXXX XXXXXX XXXXX 00'00'00" XXXX 396.99 FEET TO A POINT IN THE SOUTHERLY LINE
OF SAID XXXXXXXX ST. DISTANT WESTERLY, MEASURED AT RIGHT ANGLES ALONG SAID
SOUTHERLY LINE AND THE EASTERLY PROLONGATION OF THE TANGENT PORTION THEREOF.
125.00 FEET FROM THE WESTERLY LINE OF AZUSA AVE, AS SHOWN MAP OF SAID TRACT
22813; THENCE LEAVING SAID SOUTHERLY LINE AND PARALLEL WITH SAID XXXXXXXX
XXXX XX XXXXX XXXXXX, XXXXX 0'00'00" WEST 125.00 FEET; THENCE PARALLEL WITH
SAID SOUTHERLY LINE AND THE EASTERLY PROLONGATION OF THE TANGENT PORTION OF
SAID SOUTHERLY LINE, SOUTH 89'38'51" EAST 125.00 FEET TO SAID WESTERLY LINE
OF AZUSA AVE; THENCE ALONG SAID WESTERLY LINE SOUTH 0'21'09" WEST 464.86 FEET
TO THE NORTHERLY LINE OF THE RIGHT OF WAY OF THE SAN DIMAS WASH, AS SHOWN ON
MAP OF SAID TRACT 22813; THENCE ALONG SAID NORTHERLY LINE SOUTH 84'39'04"
WEST 670.02 FEET TO THE POINT OF BEGINNING.
PARCEL C:
THAT PORTION OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 10,
TOWNSHIP 1 SOUTH RANGE 10 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF
COVINA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND FILED IN THE DISTRICT
LAND OFFICE, DESCRIBED AS FOLLOW:
BEGINNING AT A POINT IN THE SOUTHERLY LINE OF XXXXXXXX STREET AS SHOWN ON THE
MAP OF TRACT 22813, RECORDED IN BOOK 618 PAGES 69 TO 72 INCLUSIVE OF MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID POINT BEING THE
EASTERLY TERMINUS OF THAT COURSE DESCRIBED ON SAID MAP AS HAVIN A BEARING OF
NORTH 89'38'51" WEST AND A LENGTH OF 496.99 FEET. SAID POINT ALSO BEING THE
BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTHWEST. HAVING A RADIUS OF
25.00 FEET, WHICH CURVE AT ITS OTHER TERMINUS IS ALSO TANGENT TO THE WESTERLY
LINE OF AZUSA AVENUE 100.00 FEET WIDE; HENCE SOUTHEASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 90'00'00" AN ARC DISTANCE OF 39.27 FEET TO ITS
POINT OF TANGENCY WITH SAID WESTERLY LINE OF AZUSA AVENUE; THENCE ALONG SAID
WESTERLY LINE SOUTH 0'21'09" WEST 100.00 FEET; THENCE AT RIGHT ANGLE TO SAID
WESTERLY LINE NORTH 59'38'51" WEST 123.00 FEET; THENCE PARALLEL WITH SAID
WESTERLY LINE OF AZUSA AVENUE NORTH 0'21'09" EAST 125.00 FEET TO A POINT IN
THE SAID SOUTHERLY LINE OF XXXXXXXX STREET; THENCE ALONG SAID SOUTHERLY LINE
SOUTH 89'38'51" EAST 100.00 FEET TO THE POINT OF BEGINNING.
