AGREEMENT OF PURCHASE AND SALE
(0000 Xxxxx XxXxxxxx Xxxxxxxxx)
This Agreement of Purchase and Sale ("Agreement"), dated for reference
purposes only March 8, 1999, is entered into by and between NORTH XXXXXXXX
INVESTMENTS NO. 1, a California limited partnership("N.M.I"), and Xxxx Xxxxxxx
("Xxxxxxx") (collectively, "Seller"), and XXXXX HOLDING CORPORATION, a
California corporation ("Buyer").
Recitals
A. Seller is the owner of two (2) separate parcels, one referred to as
"Real Property," consisting of approximately 3.64 acres, and the other "Vacant
Lot," consisting of approximately 23,450 square feet, located in Sonoma County
("County"), California ("State"), more particularly described in Exhibit A-1 and
Exhibit A-2 attached hereto. Xxxxxxx is the owner of the Vacant Lot and N.M.I.
is the owner of the Real Property and the provisions of this Agreement shall be
deemed to relate separately to Xxxxxxx and N.M.I concerning such parcels.
B. The Real Property has constructed thereon a certain building, containing
approximately fifty-three thousand seven hundred sixty (53,760) square feet, and
related improvements (collectively, "Improvements"). The Real Property, Vacant
Lot and Improvements are collectively referred to as the "Project," which is
commonly known as "1179 North XxXxxxxx Boulevard and Rand Street Industrial Lot,
Sonoma, California."
C. The Real Property, Vacant Lot, Improvements and Personal Property (as
hereinafter defined) are hereinafter collectively referred to as the "Property."
D. Buyer desires to purchase from Seller and Seller desires to sell to
Buyer the Property pursuant to the provisions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows:
Agreement
1. Purchase and Sale. Seller agrees to sell and convey to Buyer, and Buyer
agrees to purchase from Seller, the Property on the terms and subject to the
conditions set forth in this Agreement. For the purposes of this Agreement, the
date which the last party executes this Agreement and delivers it to the other
party shall hereinafter be referred to as the "Effective Date." The Recitals to
this Agreement are incorporated herein by this reference.
2. Purchase Price. The purchase price for the Property is equal to the
amount of Four Million Three Hundred Thousand and No/100ths Dollars
($4,300,000.00) ("Purchase Price"). The parties acknowledge and agree that a
portion of the Purchase Price, equal to One Hundred Sixty-Four Thousand One
Hundred Fifty and No/100ths Dollars ($164,150.00), is allocated to the Vacant
Lot, with the remaining portion of the purchase price, equal to Four Million One
Hundred Thirty-Five Thousand Eight Hundred Fifty and No/100ths ($4,135,850.00),
applicable to the Property and Improvements located at 0000 Xxxxx XxXxxxxx
Xxxxxxxxx.
3. Payment of Purchase Price. The Purchase Price for the Property shall be
payable by Buyer as follows:
(a) Deposit. On or before the third (3rd) day following the Effective Date,
Buyer shall deposit with Chicago Title Company ("Escrow Holder") the amount of
Two Hundred Fifty Thousand and No/100ths Dollars ($250,000.00) ("Deposit"). The
Deposit shall be invested by Escrow Holder with a financial institution
acceptable to Seller in a federally-insured interest-bearing demand account, and
the Deposit, and all interest accrued thereon, shall be credited to the Purchase
Price upon the Close of Escrow. On or before the expiration of the Contingency
Period (as hereinafter defined), unless this Agreement has been previously
terminated by Buyer pursuant to its rights set forth in this Agreement, Buyer
shall deliver to Escrow Holder unconditional escrow instructions directing the
immediate release of the Deposit and all interest accrued thereon to Seller, and
the Deposit shall become non-refundable, excepting a default by Seller.
(b) Cash at Close of Escrow. On or before three (3)business days prior to
the Close of Escrow, Buyer shall deposit with Escrow Holder the remaining
portion of the Purchase Price, in immediately available funds, which shall be
paid to Seller at Close of Escrow.
4. Escrow
(a) Opening of Escrow. Seller has opened an escrow ("Escrow"), Escrow No.
9560204, with Escrow Holder prior to the Effective Date. Buyer and Seller agree
to execute and deliver to Escrow Holder, in a timely manner, all escrow
instructions necessary to consummate the transaction contemplated by this
Agreement. Any such instructions shall not conflict with, amend or supersede any
portion of this Agreement. If there is any inconsistency between such
instructions and this Agreement, this Agreement shall control.
(b) Close of Escrow. For purposes of this Agreement, "Close of Escrow"
shall be defined as the date that the Grant Deed (as hereinafter defined) is
recorded in the Official Records of the County. The Close of Escrow shall occur
on or before sixty (60) days following the Effective Date ("Outside Date").
5. Conditions of Title. It shall be a condition to the Close of Escrow that
title to the Project be conveyed to Buyer by Seller by a Grant Deed, which shall
be in the form customarily used by Escrow Holder in the County ("Grant Deed"),
subject only to (a) a lien to secure payment of real estate taxes, bonds and
assessments not delinquent; (b) the lien of supplemental taxes, not delinquent;
(c) exceptions which are approved and/or accepted by Buyer in accordance with
this Agreement; (d) all applicable laws, ordinances, rules and governmental
regulations (including, but not limited to those relative to building, zoning
and land use) affecting the development, use, occupancy or enjoyment of the
Property; and (e) all matters apparent from the inspection of the Property and
all other title matters affecting the Project created by or with the written
consent of Buyer (collectively, "Approved Conditions of Title").
6. Conditions to Close of Escrow
(a) Conditions to Buyer's Obligations. The Close of Escrow and Buyer's
obligations to consummate the transactions contemplated by this Agreement are
subject to the satisfaction of the following conditions (or Buyer's waiver
thereof) which are for Buyer's sole benefit, on or prior to the dates designated
below for the satisfaction of such conditions, or the Close of Escrow in absence
of a specified date:
(i) Title. Buyer shall have the right to approve any and all matters of and
exceptions to title of the Project, including the legal description, as
disclosed by the following documents and instruments (collectively, "Title
Documents"): (A) a Preliminary Report ("Preliminary Report") issued by Escrow
Holder with respect to the Project and all matters referenced therein; and (B)
legible copies of all documents, whether recorded or unrecorded, referred to in
such Preliminary Report. Seller shall cause Escrow Holder to deliver the Title
Documents to Buyer within five (5) calendar days following the Effective Date.
Buyer shall have ten days following its receipt of the Title Documents to give
Seller and Escrow Holder written notice ("Buyer's Title Notice") of Buyer's
approval or disapproval, which shall be made in Buyer's sole and absolute
discretion, of the legal description and every item or exception disclosed by
the Title Documents. The failure of Buyer to give Buyer's Title Notice to Seller
within the specified time period shall be deemed Buyer's approval of title to
the Project. In the event that Buyer's Title Notice disapproves of any matter of
title shown in the Title Documents, Seller shall, within seven (7) calendar days
after Buyer's Title Notice is received by Seller, give Buyer written notice
("Seller's Title Notice") of those disapproved title matters, if any, which
Seller is unable or unwilling to have eliminated from title to the Project by
Close of Escrow. In the event that Seller is unable to remove all of the title
matters objected to by Buyer in Buyer's Title Notice, Buyer shall have three (3)
calendar days from receipt of Seller's Title Notice to notify Seller in writing
that either (1) Buyer is willing to purchase the Project subject to such
disapproved exceptions, or (2) Buyer elects to cancel this transaction. Failure
of Buyer to take either one of the actions described in Subsection (1) or (2)
above shall be deemed to be Buyer's election to take the action described in
Subsection (1) above. In the event this Agreement is canceled or deemed canceled
pursuant to this Section, except as otherwise provided herein, the parties shall
have no further obligations, liabilities or claims under this Agreement, and all
monies delivered to Escrow Holder, including any accrued interest thereon, by
Buyer shall immediately be returned to Buyer.
(ii) Inspections and Studies. From the Effective Date until April 26, 1999,
expiring at 5:00 p.m. P.T. on such date ("Contingency Period"), Buyer shall have
the right to review and approve the (A) Documents and Materials (as hereinafter
defined), and (B) conduct any and all inspections, investigations, tests and
studies (including, without limitation, investigations with regard to zoning,
building codes and other governmental regulations, architectural inspections,
engineering tests, economic feasibility studies, soils, seismic and geologic
reports and environmental testing) with respect to the Property as Buyer may
elect to make or maintain. Prior to the expiration of the Contingency Period,
Buyer shall deliver to Seller and Escrow Holder written notice of its approval
or disapproval, which shall be made in Buyer's sole and absolute discretion, of
the Property and the Documents and Materials. The failure of Buyer to deliver
such notice prior to the expiration of the Contingency Period shall be deemed to
constitute Buyer's approval of such matters. The cost of any such inspections,
tests and/or studies shall be borne by Buyer. Between the Effective Date and the
Close of Escrow, Buyer, its agents, contractors and subcontractors shall have
the right to enter upon the Project at reasonable times during ordinary business
hours to make any and all inspections and tests as may be necessary or desirable
in Buyer's sole judgment and discretion. Buyer shall indemnify, defend (with
counsel reasonably satisfactory to Seller) and hold Seller, its agents,
employees, trustee, directors and officers, and the Property harmless from any
and all damage arising out of or in connection with such entry and/or activities
upon the Project by Buyer, its agents, employees or contractors. In the event
Buyer disapproves of the condition of the Property and/or the Documents and
Materials prior to the expiration of the Contingency Period, except as otherwise
provided herein, the parties shall have no further obligations under this
Agreement, all monies delivered to Escrow Holder, including any accrued interest
thereon, by Buyer shall be immediately returned to Buyer, and Buyer shall
deliver to Seller copies of any and all reports, studies, inspections, or other
materials Buyer caused to be prepared pursuant to its inspection right set forth
in this Section.
(iii) Title Insurance. As of the Close of Escrow, Title Company (as
hereinafter defined) shall have issued or shall have committed to issue the
Title Policy (as hereinafter defined) to Buyer.
(iv) Seller's Obligations. As of the Close of Escrow, Seller shall have
performed all of the obligations required to be performed by Seller under this
Agreement.
(v) Seller's Representations. As of the Close of Escrow, all
representations and warranties made by Seller to Buyer in this Agreement shall
be true and correct.
(b) Conditions to Seller's Obligations. The Close of Escrow and Seller's
obligations to consummate the transaction contemplated by this Agreement are
subject to the satisfaction of the following conditions (or Seller's waiver
thereof) which are for Seller's sole benefit, on or prior to the dates
designated below for the satisfaction of such conditions, or the Close of Escrow
in absence of a specified date:
(i) Buyer's Obligations. As of the Close of Escrow, Buyer shall have timely
performed all of the obligations required by the terms of this Agreement to be
performed by Buyer.
(ii) Buyer's Representations. As of the Close of Escrow, all
representations and warranties made by Buyer to Seller in this Agreement shall
be true and correct as of the Close of Escrow.
(iii) Outside Date. The Close of Escrow shall occur on or before the
Outside Date.
(iv) Office Lease. Buyer, as tenant, shall not be in default under the
terms and conditions of that certain Office Lease, dated September 26, 1996, as
amended, entered into with N.M.I.
(c) Failure of Condition to Close of Escrow. In the event any of the
conditions set forth in Section 6(a) or 6(b) are not timely satisfied or waived
by the appropriate benefited party, for a reason other than the default of Buyer
or Seller, this Agreement shall terminate, and if applicable, the Deposit, and
all interest accrued thereon, and all other monies delivered to Escrow Holder by
Buyer shall be immediately be returned to Buyer, and, except as otherwise
provided herein, the parties shall have no further obligations hereunder.
7. Deposits by Seller. Unless otherwise provided in this Section, at least
three (3) business day prior to the Close of Escrow, Seller shall deposit with
Escrow Holder the following documents:
(a) Grant Deed. The Grant Deed, duly executed and acknowledged in
recordable form by Seller, conveying fee title to the Project to Buyer subject
only to the Approved Conditions of Title.
(b) FIRPTA Certificate. A certification, acceptable to Escrow Holder and
duly executed by Seller under penalty of perjury setting forth Seller's address
and federal tax identification number in accordance with and/or for the purpose
of the provisions of Sections 7701 and 1445, as may be amended, of the Internal
Revenue Code of 1986, as amended, and any regulations promulgated thereunder.
(c) California Franchise Tax Withholding. Evidence satisfactory to Buyer
and Escrow Holder that Seller is exempt from the provisions of the withholding
requirements of the California Revenue and Taxation Code, as amended, and that
neither Buyer nor Escrow Holder is required to withhold any amounts from the
Purchase Price pursuant to such provisions.
(d) Xxxx of Sale. A xxxx of sale ("Xxxx of Sale") duly executed and
acknowledged by Seller in favor of Buyer, assigning and conveying to Buyer all
of Seller's right, title and interest in and to the Personal Property. The Xxxx
of Sale shall be in the form of, and upon the terms contained in, Exhibit C
attached hereto.
8. Deposits by Buyer. At least one (1) business day prior to the Close of
Escrow, Buyer shall deposit or cause to be deposited with Escrow Holder (a) the
required funds which are to be applied towards the payment of the Purchase
Price; (b) a counterpart of the Xxxx of Sale executed and acknowledged by Buyer;
and (c) a counterpart of the Tenant Lease Assignment executed and acknowledged
by Buyer.
9. Issuance of Title Insurance. At the Close of Escrow, Escrow Holder's
title insurer ("Title Company"), shall issue to Buyer its standard form
California Land Title Association ("CLTA") Owner's Policy of Title Insurance
showing fee title to the Project vested in Buyer subject only to the Approved
Conditions of Title ("Title Policy"). The Title Policy shall be issued with
liability in an amount equal to the Purchase Price. Seller shall pay for the
expense of the Title Policy. If Buyer elects to have Title Company issue its
American Land Title Association ("ALTA") Owner's Policy of Title Insurance,
Buyer shall pay for the expense of such ALTA premium increment, any endorsement
thereto and any survey costs.
10. Costs and Expenses. Except as otherwise specified in this Agreement,
Seller and Buyer shall equally divide (a) all escrow fees and costs, and (b) any
document recording charges. Seller shall pay all documentary taxes charged by
the County and City as a result of the transaction described herein. All other
costs and expense of escrow and title shall be shared pursuant to the custom in
the County. Buyer and Seller shall each pay all legal and professional fees and
fees of other consultants incurred by Buyer and Seller, respectively.
11. Prorations
(a) Revenues. Rentals, revenues, and other income, if any, from the Project
shall be prorated as of 11:59 p.m. on the day following the Close of Escrow.
"Rentals" as used herein include fixed monthly rentals and any other sums and
charges payable by Tenant under the Lease.
(b) Taxes/Assessments. All non-delinquent real estate taxes on the Project
shall be prorated as of 11:59 p.m. on the day following the Close of Escrow
based on the actual current tax xxxx, but if such tax xxxx has not yet been
received by Seller by the Close of Escrow, then the current year's taxes shall
be deemed to be one hundred two percent (102%) of the amount of the previous
year's tax xxxx for the Project. All delinquent taxes and all assessments, if
any, on the Project shall be paid at the Close of Escrow from funds accruing to
Seller.
(c) Other Expenses. All other expenses for the Property shall be prorated
as of 11:59 p.m. on the day following to the Close of Escrow between the parties
based upon the latest available information.
(d) Corrections. If any errors or omissions are made regarding adjustments
and prorations as set forth herein, the parties shall make the appropriate
corrections promptly upon discovery thereof. If any estimates are made at the
Close of Escrow regarding adjustments or prorations, the party shall make the
appropriate correction promptly when accurate information becomes available. Any
corrected adjustment or proration shall be paid in cash to the party entitled
thereto.
12. Review of Documents and Materials. Within ten (10) calendar days
following the Effective Date, Seller shall make available to Buyer at Seller's
property management office, the following documents and materials relating to
the Property, which includes the Vacant Lot (collectively, "Documents and
Materials") to the extent in Seller's possession, without representation or
warranty:
(a) Licenses. Any and all licenses, permits and agreements affecting or
relating to the ownership and operation of the Property.
(b) Surveys. Copies of the most recent survey(s), if any, pertaining to the
Project or any portion thereof.
(c) Plans and Permits. Any and all building plans, site plans, building
permits, certificates of occupancy, specifications or any other governmental
approvals or processed documents relating to the Property and the construction
of the Improvements (collectively, "Plans and Permits").
(d) Tax Statements. Any and all property tax statements pertaining to the
Project for the past three (3) years.
(e) Personal Property. A list of personal property ("Personal Property"),
if any, located at the Project.
13. Condition and Inspection of Property. Notwithstanding any other
provision of this Agreement to the contrary, Seller makes no representation or
warranty regarding the condition of the Property, its past use, or its
suitability for Buyer's intended use.
(a) Without limiting the generality of the foregoing, Buyer hereby
acknowledges and agrees that it is purchasing the Property in its present
"as-is, where is, with all faults," condition and with all defects and, unless
otherwise expressly provided in this Agreement, neither Seller nor any employee
or agent of Seller has made or will make, either expressly or impliedly, any
representations, guaranties, promises, statements, assurances or warranties of
any kind concerning any of the following matters (collectively referred to
herein as the "Property Conditions"): (i) the suitability or condition of the
Property for any purpose or its fitness for any particular use, (ii) the
profitability and/or feasibility of owning, developing, operating and/or
improving the Property, (iii) the physical condition of the Property, including,
without limitation, the current or former presence or absence of environmental
hazards or hazardous materials, asbestos, radon gas, underground storage tanks,
electromagnetic fields, or other substances or conditions which may affect the
Property or its current or future uses, habitability, value or desirability,
(iv) the rentals, income, costs or expenses thereof, (v) the net or gross
acreage, usable or unusable, contained therein, (vi) the zoning of the Property,
(vii) the condition of title, (viii) the compliance by the Property with
applicable zoning or building laws, codes or ordinances, or other laws, rules
and regulations, including, without limitation, environmental and similar laws
governing or relating to environmental hazards or hazardous materials, asbestos,
radon gas, underground storage tanks, electromagnetic fields, or other
substances or conditions which may affect the Property or its current or future
uses, habitability, value or desirability, (ix) water or utility availability or
use restrictions, (x) geologic/seismic conditions, soil and terrain stability,
or drainage, (xi) sewer, septic, and well systems and components, (xii) other
neighborhood or Property conditions, including, schools, proximity and adequacy
of law enforcement and fire protection, crime statistics, noise or odor from any
sources, landfills, proposed future developments, or other conditions or
influences which may be significant to certain cultures or religions, or (xiii)
any other past, present or future matter relating to the Property which may
affect the Property or its current or future use, habitability, value or
desirability;
(b) Buyer is strongly encouraged to conduct its own inspection and
investigation of the Property Conditions referred to above and is further
encouraged to obtain, at its expense, expert advice as to such matters from
professional inspectors and others. Buyer acknowledges that as of the Close of
Escrow, it has been given the full opportunity to inspect and investigate such
Property Conditions to its own satisfaction or cause such an inspection and
investigation by experts engaged by Buyer. Buyer represents to Seller that it is
relying solely upon such inspection and investigation in connection with its
purchase of the Property and not upon any express or implied representations,
guaranties, promises, statements, assurances or warranties of Seller or any of
Seller's employees or agents as to such Property Conditions, unless otherwise
expressly provided under this Agreement. Buyer also understands and agrees that
it is purchasing the Property without any obligation on the part of Seller to
make any repairs, changes or alterations with respect to the Property or any of
the Property Conditions; and
(c) Property Condition Waiver. Following the Close of Escrow, excepting a
breach of any express representation or warranty provided in this Agreement,
fraud, willful misconduct, or any latent defect in Seller's construction of the
Improvements, Buyer waives its right to recover from Seller, and the directors,
officers, employees and agents of Seller, any and all damages, losses,
liabilities, costs or expenses whatsoever (including attorneys' fees and costs)
and claims therefor, whether direct or indirect, known or unknown, foreseen or
unforeseen, which may arise on account of or in any way growing out of or
connected with the physical condition of the land of the Property or any law or
regulation applicable thereto, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Sections 9601 et seq.), the Resource Conservation and Recovery Act of
1976 (42 U.S.C. Section 6901 et seq.), the Clean Water Act (33 U.S.C. Sections
466 et seq.), the Safe Drinking Water Act (14 U.S.C. Sections 1401-1450), the
Hazardous Materials Transportation Act (49 U.S.C. Sections 2601-2629), the
California Hazardous Waste Control Law (California Health and Safety Code
Sections 25100-25600), and the Xxxxxx-Cologne Water Quality Control Act
(California Health and Safety Code Sections 13000 et seq.), excepting in all
cases those losses, liabilities, damages, costs or expenses, and claims
therefor, arising from or attributable to a material finding known to Seller and
not disclosed to Buyer. Seller's obligation to disclose matters "known to
Seller" or words of like import shall be deemed breached only if Seller, as of
the Effective Date had actual current knowledge (as opposed to imputed or
constructive knowledge) of such material finding not disclosed to Buyer. Buyer
expressly waives the benefits of Section 1542 of the California Civil Code,
which provides as follows:
"A general release does not extend to claims which the
creditor does not know or expect to exist in his favor at the
time of executing the release, which if known to him must have
materially affected the settlement with the debtor."
/s/ JC /s/ DAS
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Seller Buyer
14. Seller's Representations and Warranties. In consideration of Buyer
entering into this Agreement, Seller makes representations and warranties set
forth in this Section, which is material and is being relied upon by Buyer (the
continued truth and accuracy of which shall constitute a condition precedent to
Buyer's obligations hereunder). For the purpose of this Agreement, usage of "to
the best of Seller's knowledge," or words to such effect, shall mean the actual
current knowledge of Seller, excluding constructive knowledge or duty of
inquiry, existing as of the Effective Date, which representations and warranties
shall also be true and correct as the Close of Escrow. To the extent that Seller
becomes aware of any conflict with the representations and warranties set forth
herein after the Effective Date and prior to the Close of Escrow, Seller shall
provide Buyer with written notice thereof, in which case Buyer, within five (5)
calendar days following receipt of such notice, shall have the right to either
(i) terminate this Agreement, in which case the provisions of Sections 6(c)
shall apply, or (ii) proceed with the transaction described herein, waiving such
inconsistent representation(s) and warranty(ies). If Buyer becomes aware of any
inconsistency regarding such representations and warranties and thereafter
elects to complete the transaction described herein, Buyer shall be deemed to
have waived any and all damages, claims, liabilities and expenses relating to
and as a result of such inconsistency(ies).
(a) Seller's Authority. Seller has the legal power, right and authority to
enter into this Agreement and the instruments referenced herein, and to
consummate the transaction contemplated hereby.
(b) Proceedings. To the best of Seller's knowledge, except as disclosed in
writing by Seller prior to the expiration of the Contingency Period, there are
no actions, suits, proceedings or governmental investigations pending or
threatened against or affecting the Property, in law or equity.
(c) Compliance with Laws. To the best of Seller's knowledge, Seller has not
received any violation of any applicable law, ordinance, rule, regulation or
requirement of any governmental agency, body or subdivision affecting or
relating to the Property.
(d) Condemnation. To the best of Seller's knowledge, there is no pending or
threatened proceedings in eminent domain or otherwise which would affect the
Property.
(e) Hazardous Materials. To the best of Seller's knowledge, except as
otherwise provided in the Documents and Materials, there is no contamination,
hazardous waste, toxic substance or petroleum based products in existence on or
before the surface of the Property, including, without limitation, contamination
of the soil, subsoil or ground water, which constitutes a violation of any law,
rule or regulation of any governmental entity having jurisdiction thereof.
15. Buyer's Representations and Warranties. In consideration of the Seller
entering into this Agreement, Buyer makes the representations and warranties set
forth in this Section.
(a) Buyer's Authority. Buyer has the legal power, right and authority to
enter into this Agreement and the instruments referenced herein, and to
consummate the transaction contemplated hereby.
(b) Actions. All requisite action (corporate, trust, partnership or
otherwise) has been taken by Buyer in connection with the entering into this
Agreement, the instruments referenced herein, and the consummation of the
transaction contemplated hereby. No consent of any partner, shareholder,
trustee, trustor, beneficiary, creditor, investor, judicial or administrative
body, governmental authority or other party is required.
(c) Signatory. The individuals executing this Agreement and the instruments
referenced herein on behalf of Buyer and the partners of Buyer, if any, have the
legal power, right, and actual authority to bind Buyer to the terms and
conditions hereof and thereof.
(d) Enforceability. This Agreement and all documents required hereby to be
executed by Buyer are and shall be valid, legally binding obligations of and
enforceable against Buyer in accordance with their terms.
(e) Conflicting Documents. Neither the execution and delivery of this
Agreement and the documents and instruments referenced herein, nor the
occurrence of the obligations set forth herein, nor the consummation of the
transaction contemplated herein, nor compliance with the terms of this Agreement
and the documents and instruments referenced herein conflict with or result in
the materials breach of any terms, conditions or provisions of, or constitute a
default under, any bond, note, or other evidence of indebtedness or any
contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease
or other agreement or instrument to which Buyer is a party or affecting the
Property.
16. Liquidated Damage. BUYER RECOGNIZES THAT THE PROPERTY WILL BE REMOVED
BY THE SELLER FROM THE MARKET DURING THE EXISTENCE OF THIS AGREEMENT, AND THAT
IF THIS AGREEMENT IS NOT CONSUMMATED BECAUSE OF BUYER'S DEFAULT, IT WOULD BE
EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE EXTENT OF THE DETRIMENT TO
SELLER. THE PARTIES HAVE DETERMINED AND AGREED THAT THE ACTUAL AMOUNT OF DAMAGES
THAT WOULD BE SUFFERED BY SELLER AS A RESULT OF ANY SUCH DEFAULT IS DIFFICULT OR
IMPRACTICABLE TO DETERMINE AS OF THE DATE OF THIS AGREEMENT AND THAT THE DEPOSIT
AND THE EXTENSION FEE, IF APPLICABLE, IS A REASONABLE ESTIMATE OF THE AMOUNT OF
SUCH DAMAGES. FOR THESE REASONS, THE PARTIES AGREE THAT IF THIS PURCHASE AND
SALE IS NOT CONSUMMATED BECAUSE OF BUYER'S DEFAULT, SELLER SHALL BE ENTITLED TO
RETAIN OF THE DEPOSIT AND THE EXTENSION FEE, AS LIQUIDATED DAMAGES. THE PAYMENT
OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY
WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL
CODE SECTIONS 1671, 1676 AND 1677. SELLER HEREBY WAIVES THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 3389. SELLER AGREES THAT THESE LIQUIDATED DAMAGES
SHALL BE IN LIEU OF ANY OTHER MONETARY RELIEF OR OTHER REMEDY, INCLUDING,
WITHOUT LIMITATION, SPECIFIC PERFORMANCE, TO WHICH SELLER MIGHT OTHERWISE BE
ENTITLED UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, AND SHALL BE SELLER'S SOLE
AND EXCLUSIVE RIGHT AND REMEDY. NOTHING CONTAINED HEREIN SHALL IN ANY MANNER
LIMIT THE AMOUNT OF DAMAGES OBTAINABLE BY SELLER PURSUANT TO AN ACTION UNDER ANY
HOLD HARMLESS, DEFENSE OR INDEMNIFICATION PROVISION HEREOF.
Seller /s/ JC Buyer /s/ DAS
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17. Condemnation and Destruction
(a) Eminent Domain or Taking. If, prior to the Close of Escrow, any
material portion of the Real Property or Improvements is taken by eminent domain
or otherwise, Seller shall immediately notify Buyer of such fact. If such taking
is "material," Buyer shall have the option, in its reasonable discretion, to
terminate this Agreement upon written notice to Seller given not later than ten
(10) days after receipt of Seller's notice. If this Agreement is terminated
pursuant to this Section, the provisions of Section 6(c) shall govern. If Buyer
does not exercise this option to terminate this Agreement, or if there has not
been a material taking by eminent domain or otherwise to give rise to such
option, neither party shall have the right to terminate this Agreement, but the
Seller shall assign and turn over, and the Buyer shall be entitled to receive
and keep, all awards for the taking by eminent domain which accrue to Seller and
the parties shall proceed to the Close of Escrow pursuant to the terms hereof,
without modification of the terms of this Agreement and without any reduction in
the Purchase Price. For the purpose hereof, "material" shall be deemed to be any
diminution in the value of the Property as a result of a taking by eminent
domain or otherwise which exceeds Five Hundred Thousand and No/100ths Dollars
($500,000.00), as determined by Seller using its good faith judgment.
(b) Fire or Casualty. Prior to the Close of Escrow, the entire risk of loss
or damage by earthquake, flood, landslide, fire or other casualty shall be borne
and assumed by Seller, except as otherwise provided in this Section. If, prior
to the Close of Escrow, any part of the Improvements are damaged or destroyed by
earthquake, flood, landslide, fire or other casualty, Seller shall immediately
notify Buyer of such fact. If such damage or destruction is "material", Buyer
shall have the option to terminate this Agreement upon written notice to the
Seller given not later than ten (10) days after receipt of Seller's notice. For
purposes hereof, "material" shall be deemed to be any uninsured damage or
destruction to the Project or any insured damage or destruction where the cost
of repair or replacement is estimated to be Five Hundred Thousand and No/100ths
Dollars ($500,000.00) or more or shall take more than ninety (90) days to
repair, in Seller's good faith judgment; provided, however, in the case of
uninsured damage or destruction, Seller may, at Seller's option, elect to repair
such damage and destruction and keep this Agreement in full force and effect so
long as such repair can be and is completed by Seller prior to the Close of
Escrow. If this Agreement is so terminated, the provisions of Section 6(c) shall
govern. If Buyer does not exercise this option to terminate this Agreement, or
if the casualty is not material, neither party shall have the right to terminate
this Agreement but Seller shall assign and turn over, and Buyer shall be
entitled to receive and keep, all insurance proceeds payable to it with respect
to such destruction, and the parties shall proceed to the Close of Escrow
pursuant to the terms hereof without modification of the terms of this Agreement
and without any reduction in the Purchase Price.
18. Notices. All notices or other communications required or permitted
hereunder shall be in writing, and shall be personally delivered or sent by
registered or certified mail, postage prepaid, return receipt requested, or sent
by electronic facsimile and shall be deemed received upon the earlier of (i) if
personally delivered, the date of delivery to the address of the person to
receive such notice, (ii) if mailed, three (3) days following the date of
posting by the United States Post Office, (iii) if by nationally recognized
overnight courier on the next business day, or (iv) if given by electronic
facsimile, when received by the other party.
TO BUYER: Xxxxx Holdings Corporation
-----------------------
-----------------------
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TO SELLER: Xxxx Xxxxxxx and North XxXxxxxx Investments, No. 1
c/x Xxxxxxx Associates
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
WITH COPY TO: Xxxxxxx Xxxxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxxxxxxxx
TO ESCROW HOLDER: Chicago Title Company
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxx
Notice of change of address shall be given by written notice in the manner
described in this Section.
19. Indemnification. Buyer hereby agrees to indemnify, defend (with counsel
acceptable to Seller) and hold Seller, its successors and assigns, partners,
shareholders, officers, directors, trustees and/or employees harmless from and
against any and all obligations, liabilities, claims, liens, encumbrances,
losses, damages, costs and expenses, including, without limitation, attorneys'
fees, whether direct, contingent or consequential, incurred or suffered by, or
asserted or awarded against, Seller, its successors and assigns, partners,
shareholders, officers, directors, trustees and/or employees relating to or
arising from (i) the ownership or operation of the Property by Buyer subsequent
to the Close of Escrow, (ii) the use subsequent to the Close of Escrow of the
Property by Buyer, its agents, employees, contractors, and subcontractors, or
(iii) the violation of any federal, state or local law, ordinance or regulation,
occurring or allegedly occurring with respect to the Property subsequent to the
Close of Escrow by Buyer, its agents, employees, contractors, and
subcontractors.
20. Brokers. The parties represent and warrant that there are no brokers
involved in this transaction. If any additional claims for brokers' or finders'
fees for the consummation of this Agreement arise, then Buyer hereby agrees to
indemnify, hold harmless and defend Seller from and against such claims if they
shall be based upon any statement, representation or agreement by Buyer, and
Seller hereby agrees to indemnify, hold harmless and defend Buyer if such claims
shall be based upon any statement, representation or agreement made by Seller.
21. Exchange. The parties to this Agreement acknowledge that either party
may desire to structure the sale and/or the purchase of the Property as an
exchange for like-kind property pursuant to Section 1031 of the Internal Revenue
Code of 1986, as amended, in order to defer recognition of income from the
disposition of the Property and other properties. The parties agree to
reasonably cooperate with each other to accomplish such exchange(s) and each
party hereby agrees that any and all costs associated with said exchange shall
be borne solely by the exchanging party and shall in no way be attributable to
the non-exchanging party. In no event shall (i) the non-exchanging party be
required to take title to the exchanged property(ies) to effectuate the tax
deferred exchange contemplated by this Section, and (ii) shall the Close of
Escrow be extended as a result of such exchange.
22. Miscellaneous
(a) Partial Invalidity. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
such term and provision of this Agreement shall be valid, and shall be enforced
to the fullest extent permitted by law.
(b) Waivers. No waiver of any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed an extension of
time for performance of any other obligation or act except those of the waiving
party, which shall be extended by a period of time equal to the period of the
delay.
(c) Survival of Representations. The indemnification, defense and hold
harmless obligations, and the representations and warranties made by each party
herein shall survive (1) the Close of Escrow and shall not merge into the Grant
Deed and the recordation thereof, and (2) the termination and/or cancellation of
this Agreement; provided, that such representations and warranties shall expire
six (6) months after the Close of Escrow.
(d) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the permitted successors and assigns of the parties
hereto.
(e) Professional Fees. If either party commences an action against the
other to interpret or enforce any of the terms of this Agreement or because of
the breach by the other party of any of the terms hereof, the losing party shall
pay to the prevailing party reasonable attorneys' fees, costs and expenses and
court costs and other costs of action incurred in connection with the
prosecution or defense of such action, whether or not the action is prosecuted
to a final judgment. For the purpose of this Agreement, the terms "attorneys'
fees" or "attorneys' fees and costs" shall mean the fees and expenses of counsel
to the parties hereto, which may include printing, photostating, duplicating and
other expenses, air freight charges, and fees billed for law clerks, paralegals,
librarians and others not admitted to the bar but performing services under the
supervision of an attorney. The terms "attorneys' fees" or "attorneys' fees and
costs" shall also include, without limitation, all such fees and expenses
incurred with respect to appeals, arbitrations and bankruptcy proceedings, and
whether or not any action or proceeding is brought with respect to the matter
for which said fees and expenses were incurred. The term "attorney" shall have
the same meaning as the term "counsel."
(f) Entire Agreement. This Agreement (including all Exhibits attached
hereto) is the final expression of, and contains the entire agreement between,
the parties with respect to the subject matter hereof and supersedes all prior
understandings with respect thereto. This Agreement may not be modified,
changed, supplemented, superseded, canceled or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by the
party to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein. The parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the parties hereto and
lawful assignees.
(g) Assignment. Buyer may not assign its right, title or interest in this
Agreement to any other party without the prior written consent of Seller, which
determination may be withheld in Seller's sole and absolute discretion. Any
attempted assignment without the prior written consent of Seller shall be void
and be deemed a default of Buyer hereunder. Any permitted assignment shall not
relieve the assigning party from any liability under this Agreement.
(h) Time of Essence. Seller and Buyer hereby acknowledge and agree that
time is strictly of the essence with respect to each and every term, condition,
obligation and provision hereof and that failure to timely perform any of the
terms, conditions, obligations or provisions hereof by either party shall
constitute a material breach of and a non-curable (but waivable) default under
this Agreement by the party so failing to perform.
(i) Relationship of Parties. Nothing contained in this Agreement shall be
deemed or construed by the parties to create the relationship of principal and
agent, a partnership, joint venture or any other association between Buyer and
Seller.
(j) Construction. Headings at the beginning of each paragraph and
subparagraph are solely for the convenience of the parties and are not a part of
the Agreement. Whenever required by the context of this Agreement, the singular
shall include the plural and the masculine shall include the feminine and vice
versa. This Agreement shall not be construed as if it had been prepared by one
of the parties, but rather as if both parties had prepared the same. Unless
otherwise indicated, all references to paragraphs, sections, subparagraphs and
subsections are to this Agreement. All exhibits referred to in this Agreement
are attached and incorporated by this reference.
(k) Governing Law. The parties hereto acknowledge that this Agreement has
been negotiated and entered into in the State of California. The parties hereto
expressly agree that this Agreement shall be governed by, interpreted under, and
construed and enforced in accordance with the laws of the State of California.
(l) Possession of Property. Buyer shall be entitled to the possession of
the Property immediately following the Close of Escrow.
(m) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, together, shall
constitute one and the same instrument.
(n) Days of Week. If any date for performance herein falls on a Saturday,
Sunday or holiday, as defined in Section 6700 of the California Government Code,
the time for such performance shall be extended to 5:00 p.m. on the next
business day.
(o) Representation by Counsel. Notwithstanding any rule or maxim of
construction to the contrary, any ambiguity or uncertainty shall not be
construed against either Seller or Buyer based upon authorship of any of the
provisions hereof. Seller and Buyer each hereby warrant, represent and certify
to the other as follows: (a) that the contents of this Agreement have been
completely and carefully read by the representing party and counsel for the
representing party; (b) that the representing party has been separately
represented by counsel and the representing party is satisfied with such
representation; (c) that the representing party's counsel has advised the
representing party of, and the representing party fully understands, the legal
consequences of this Agreement; and (d) that no other person (whether a party to
this Agreement or not) has made any threats, promises or representations of any
kind whatsoever to induce the execution hereof, other than the performance of
the terms and provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates set forth below.
BUYER: N.M.I.:
XXXXX HOLDING CORPORATION, NORTH XXXXXXXX INVESTMENTS
a California corporation NO. 1, a California limited
partnership
By: /s/ Xxxxx X. Xxxx
----------------------------
Its: CFO By: /s/ Xxxx Xxxxxxx
--------------------------- ----------------------------
Date: 3/15/99 Its: General Partner
-------------------------- ---------------------------
Date: 3/15/99
--------------------------
XXXXXXX:
/s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx
Date: 3/18/99
--------------------------
EXHIBIT LIST
Exhibit A-1 - Description of Real Property
Exhibit A-2 - Description of Vacant Lot
Exhibit B - Xxxx of Sale
EXHIBIT A-1
DESCRIPTION OF REAL PROPERTY
EXHIBIT A-2
DESCRIPTION OF VACANT LOT
EXHIBIT B
XXXX OF SALE
THIS XXXX OF SALE ("Xxxx of Sale"), is made this ____ of
_____________________, 1999, by and between NORTH XXXXXXXX INVESTMENTS NO. 1, a
California limited partnership ("Buyer"), and XXXXX HOLDING CORPORATION, a
California corporation ("Seller").
W I T N E S S E T H :
Seller and Buyer entered into that certain Agreement of Purchase and Sale
dated as of _____________, 199_ ("Agreement") respecting the sale of certain
"Property" (as defined in the Agreement).
Under the Agreement, Seller is obligated to transfer to certain personal
property ("Personal Property"), which is described in Exhibit A attached hereto
and incorporated herein by this reference, which is used in connection with the
operation of the improvements, commonly known as _______________________,
Petaluma, California, located on the real property described in Exhibit B
attached hereto.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller does hereby absolutely and
unconditionally give, grant, bargain, transfer, sell, set over, assign, convey,
release, confirm and deliver to Buyer all of the Personal Property.
Seller makes no representation or warranty regarding the condition, fitness
or usefulness of the Personal Property, and Buyer acknowledges and agrees that
is acquiring the Personal Property in its AS-IS, WHERE-IS CONDITION, WITHOUT
WARRANTY, EITHER EXPRESS OR IMPLIED.
This Xxxx of Sale shall be binding upon and inure to the benefit of the
successors, assigns, personal representatives, heirs and legatees of Buyer and
Seller.
This Xxxx of Sale shall be governed by, interpreted under, and construed
and enforced in accordance with, the laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this Xxxx of Sale as of the
dates below.
BUYER: SELLER:
XXXXX HOLDING CORPORATION, NORTH XXXXXXXX INVESTMENTS
a California corporation NO. 1, a California limited
partnership
By:___________________________
By:____________________________
Its:__________________________
Its:___________________________
Date:_________________________
Date:__________________________
