EXHIBIT 10.12.1
FIRST AMENDMENT TO PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT ("First Amendment") is made
and entered into as of this 7th day of November, 2001, by and between STARBUCKS
MANUFACTURING CORPORATION, a Washington corporation ("Purchaser"), and CVBP, A
NEVADA LIMITED LIABILITY COMPANY ("Seller").
W I T N E S S E T H
A. Seller and Purchaser entered into that certain Purchase Agreement
("Agreement") dated June 14, 2001, for the purchase by Purchaser of that certain
property owned by Seller in Xxxxxxx County, Nevada, as more particularly
described on Exhibits A and A-2 attached to the Agreement. Capitalized terms
used herein and not defined shall be given the meanings assigned to them in the
Agreement.
B. In accordance with the terms of the Agreement, Seller and Purchaser
have opened an escrow with First American Title Insurance Company in Walnut
Creek, California.
C. Purchaser and Seller have determined that this First Amendment is
necessary in light of changed circumstances which have arisen since the
execution of the Agreement.
D. Purchaser and Seller desire to amend the Agreement as set forth herein
in order to address such newly discovered matters.
NOW, THEREFORE, for valuable consideration, including the promises and
covenants contained herein, Purchaser and Seller hereby agree as follows:
1. TITLE MATTERS
Purchaser and Seller have received copies of the Preliminary Title Report
issued by First American Title Company of Nevada (the "Title Company") dated
August 14, 2001 (Commitment for Title Insurance No.
2001-47684-T02(A)/2001-47684-WDB(A) (the "Preliminary Title Report"), which
contains various exceptions to the Title Policy
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which will be issued by the Title Company at the Closing. In connection with
such exceptions, the parties hereto agree as follows:
a. Exception Nos. 7, 8, and 9. Seller shall obtain and record a
release agreement by Xxxxxxxx Holdings, LLC, the successor-in-interest to the
ownership of property which was previously owned by the grantors under the
documents referenced in said exceptions 7, 8 and 9, whereby as of the Closing
Date, all such exceptions shall be released from the official records of Xxxxxxx
County, Nevada. A copy of that Release Agreement, which is acknowledged by
Purchaser to be acceptable and to satisfy Seller's obligations, is attached
hereto as EXHIBIT A. Notwithstanding the foregoing, in no event shall Seller be
deemed to have satisfied its obligation contained in this Paragraph 1 (a) until
such time that the Title Company shall deem all such documentation sufficient to
affirmatively remove all such exceptions from the Title Policy.
b. Exception No. 10. Seller shall cause an abandonment by Xxxxxxx
County of the easements running across the Northern portion of the Property and
the Southern portion of the Property (the "North and South Easements") (both of
which are more particularly described in Exception No. 10) to be recorded in the
official records of Xxxxxxx County on or before the Closing Date. Seller shall
cause the Title Company to amend Exception No. 10 on the Title Policy to reflect
the fact that the North and South Easements no longer affect the Property.
c. Exception Nos. 11 and 12. Seller agrees to provide Title
Company with any and all required documentation, including without limitation an
indemnity agreement, in order to cause the Title Company to affirmatively agree
to remove such exceptions from the Title Policy.
d. Exception No. 15. Seller agrees to obtain an estoppel
certificate from the Association in the form attached hereto as EXHIBIT C.
Seller further agrees to indemnify Purchaser as to the conformance of the
Property with the recorded CC&Rs on or before the Closing of escrow in the form
of an indemnity agreement attached hereto as EXHIBIT D.
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e. Exception Nos. 16 and 17. Seller agrees to obtain an estoppel
certificate from Xxxxxxx County acknowledging that the agreements referenced in
Exceptions Nos. 16 and 17 are currently fully performed and that no breach
exists thereunder. Said estoppel certificate shall be in the form attached
hereto as EXHIBIT B. Seller also agrees to provide Purchaser with an indemnity
agreement to ensure that Purchaser is protected from any current breach or
obligation based on non-performance by Seller under both such agreements, in the
form attached hereto as EXHIBIT D.
2. INFRASTRUCTURE AND UTILITY REQUIREMENTS
Seller has the responsibility under the Agreement to provide a water line
to the Property. Purchaser's development plans for the Property contemplated a
ten inch (10") water line size. Xxxxxxx County has required that all water lines
be upgraded to fourteen inch (14") water lines. In connection with such
compulsory increase in water line size, the parties hereto agree as follows:
(a) Seller will pay for the cost of installation of all water
lines to the Property from Xxxxxxx Xxxx to the south end of Starbucks Way, which
are required in connection with Purchaser's Project on the Property;
(b) Purchaser shall reimburse Seller for the cost of the upsizing
of such lines from eight inches (8") to fourteen inches (14") from Xxxxxxx Lane
to Aviation Way ("Section 1") and from ten inches (10") to fourteen inches (14")
from Aviation Way to the south end of Starbucks Way ("Section 2") (collectively,
the "Sections 1 & 2 Work");
(c) Purchaser shall also reimburse Seller for the costs of
designing, permitting, and installation of the water line extension from the
south end of Starbucks Way to a location beyond the Property ("Section 3") that
is for Purchaser's use, as separately agreed with Xxxxxxx County (the "Section 3
Work"); and
(d) Attached hereto as EXHIBIT E is a map indicating the location
of the water lines and a summary of anticipated costs and payments. Purchaser's
added costs to reimburse Seller for the Sections 1 & 2 Work shall not exceed a
total sum of Seventy Seven Thousand Dollars ($77,000), and Purchaser's costs to
reimburse Seller for the
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Section 3 Work shall not exceed the total amount of the water-rights and
water-connection-fee credits which Xxxxxxx County has committed to providing to
Purchaser at the Closing without Purchaser's prior written consent. Purchaser's
obligation to reimburse Seller for both the Sections 1 & 2 Work and the Section
3 Work shall be limited to reimbursement for Seller's out-of-pocket third-party
expenses only, and all such amounts shall be paid to Seller at or after the
Closing, provided that all work and invoices in connection therewith have been
completed, reviewed and approved by Purchaser.
3. ADJUSTMENT TO PURCHASE PRICE
The Property is subject to a roadway easement which is twenty-five feet
(25') wide and located along the entire length of the east side of the Property,
identified as Exception No. 10 on the Preliminary Title Report, which burdens
the Property and will not currently be released by Xxxxxxx County. Seller and
Purchaser agree that the Purchase Price shall be reduced by the amount of Thirty
Six Thousand Three Hundred Twenty Three Dollars and Ninety Six Cents
($36,323.96), in recognition of the potential impact to Purchaser as a result of
said easement.
4. PURCHASER'S REMEDIES
Seller's complete compliance with the terms of this First Amendment shall
be a condition precedent to Purchaser's obligations under the Purchase
Agreement, including without limitation Purchaser's obligation to proceed with
the Closing. In addition, in the event that Seller does not comply fully with
the terms of this First Amendment, such failure shall be deemed a breach of the
Agreement and an "Event of Default" under that certain Escrow Agreement dated as
of October 8, 2001, by and between Seller, the Title Company and Purchaser (the
"Escrow Agreement"), and Purchaser shall have all of the rights and remedies
available to it under the Agreement and under the Escrow Agreement.
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5. INCORPORATION OF AGREEMENT
As Amended by this First Amendment, the Agreement remains in full force
and effect and is ratified, confirmed, and approved.
6. COUNTERPARTS AND FACSIMILE
This First Amendment may be executed in counterparts (which may be by
fax, followed up with hard copy, but effective upon fax), each of which shall be
deemed to be an original, and all of such counterparts shall together constitute
one instrument. The headings to sections of this First Amendment are for
convenient reference only and shall not be used in interpreting this First
Amendment.
IN WITNESS WHEREOF, the parties have executed this First Amendment the
day and year first above written.
CVBP, A NEVADA LIMITED LIABILITY COMPANY
By: /s/ XXXX XXXX
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XXXX XXXX, MANAGING MEMBER
By: /s/ XXXXXXX XXXXXXX
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XXXXXXX XXXXXXX, MEMBER
STARBUCKS MANUFACTURING CORPORATION, a Washington corporation
By:
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Its:
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As Amended by this First Amendment, the Agreement remains in full
force and effect and is ratified, confirmed, and approved.
6. COUNTERPARTS AND FACSIMILE
This First Amendment may be executed in counterparts (which may be by
fax, followed up with hard copy, but effective upon fax), each of which shall be
deemed to be an original, and all of such counterparts shall together constitute
one instrument. The headings to sections of this Second Amendment are for
convenient reference only and shall not be used in interpreting this Second
Amendment.
IN WITNESS WHEREOF, the parties have executed this First Amendment the
day and year first above written.
CVBP, LLC, a Nevada limited liability company
By:
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Xxxx Xxxx, Managing Member
STARBUCKS MANUFACTURING CORPORATION, a Washington corporation
By: /s/ [ILLEGIBLE SIGNATURE]
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Its: /s/ [ILLEGIBLE SIGNATURE]
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