FIRST AMENDMENT TO PURCHASE AGREEMENT WITH
ESCROW INSTRUCTIONS
DATED: To be effective as of May 18, 1998 (the "Effective Date").
PARTIES: The Parties to this First Amendment to Purchase Agreement With
Escrow Instructions (the "First Amendment") are:
(a) BRENTWOOD WEST PARTNERS, LLP, an Arizona registered limited
liability partnership ("Seller"); and,
(b) PARKBRIDGE CAPITAL GROUP, INC., an Oregon corporation,
and/or Assignee ("Buyer").
ESCROW AGENT: CHICAGO TITLE INSURANCE COMPANY
ESCROW NO.: 9804614-1
RECITALS:
A. Seller and Buyer entered into that certain Purchase
Agreement With Escrow Instructions dated to be effective as of April 14, 1998
(the "Purchase Agreement").
B. Seller and Buyer desire to amend the Purchase Agreement
generally to: (i) reduce the Purchase Price by $165,000.00; (ii) provide for
Buyer's waiver of Buyer's contingencies in the Purchase Agreement except the
Study Period with respect to matters of survey shall not expire until May 22,
1998; and, (iii) provide for immediate payment of the $300,000.00 Additional
Xxxxxxx Money, all as more particularly set forth in this First Amendment.
AGREEMENTS:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. INCORPORATION OF RECITALS. All of the foregoing Recitals
are incorporated herein as agreements of the Parties.
2. AMENDMENT TO PURCHASE AGREEMENT. Seller and Buyer hereby
amend the Purchase Agreement as follows:
2.1 The first two lines of Paragraph 4.A. of the
Purchase Agreement are hereby deleted in their entirety and restated as follows:
"A. Purchase Price. The Purchase Price
(herein so called) to be paid by Buyer to
Seller for the Property is $13,035,000.00
payable as follows:", and,
2.2 The first sentence of Paragraph 4.A.(2) is
hereby deleted in its entirety and restated as follows:
"(2) Additional Xxxxxxx Money. Upon the
earlier of : (i) expiration of the Study
Period (as defined below); or, (ii) Buyer's
written waiver of Buyer's contingencies in
Paragraphs 7 and 10 below, Buyer shall
deposit with Escrow Agent $300,000.00 in
cash or other immediately available funds
(the "Additional Xxxxxxx Money") to be held
by Escrow Agent until cancellation as
provided below or paid to Seller at Close of
Escrow.".
3. NO FURTHER AMENDMENTS. Except as set forth in Paragraph 2.
of this First Amendment, all of the terms and provisions of the Purchase
Agreement shall remain in full force and effect.
4. BUYER ACKNOWLEDGEMENT AND WAIVER. Buyer hereby: (i)
acknowledges receipt of all documents to be provided by Seller to Buyer in
accordance with Paragraphs 7 and 9 of the Purchase Agreement; and, (ii) waives
and releases any and all rights Buyer may have under the Purchase Agreement to
cancel the Purchase Agreement by virtue of the contingencies set forth in
Paragraphs 7 and 9 of the Purchase Agreement, it being hereby agreed that such
contingencies are hereby satisfied and otherwise waived by Buyer, except for
Study Period with respect to matters of survey shall not expire until May 22,
1998.
5. CONDITION PRECEDENT TO PRICE ADJUSTMENT. The decrease in
the Purchase Price as more particularly set forth in Paragraph 2.1 above, shall
only be effective and is wholly contingent upon Buyer's deposit of the
Additional Xxxxxxx Money, in immediately available funds, with Escrow Agent on
or before 5:00 p.m. MST on Friday, May 22, 1998.
6. Counterparts. This First Amendment may be executed in
counterparts and by facsimile signatures in accordance with Paragraphs 20.G. and
20.M. of the Purchase Agreement.
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IN WITNESS WHEREOF, the Parties have executed this First
Amendment as of the Effective Date.
SELLER: BRENTWOOD WEST PARTNERS LLP, an
Arizona registered limited liability
partnership,
By: H & E MESA PARTNERSHIP, a general
partnership, General Partner
By: /S/
------------------------------
Its: Authorized General Partner
By: L & F INVESTMENTS LIMITED
PARTNERSHIP, an Arizona limited
partnership, General Partner
By: XXXXXXXXXX REVOCABLE
TRUST, General Partner
By: /S/
-------------------------
Xxxxxxx X. Xxxxxxxxxx,
as Trustee
By: TRUSTEE OF THE EIF TRUST U/T/A
DATED 3/13/95, General Partner
By: /S/
------------------------------
Xxxxx Xxxx, Trustee
BUYER: PARKBRIDGE CAPITAL GROUP, INC., an
Oregon corporation
By: /S/
----------------------------
Its: President
542859/10169-0003
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PURCHASE AGREEMENT WITH
ESCROW INSTRUCTIONS
THIS PURCHASE AGREEMENT WITH ESCROW INSTRUCTIONS (this "Agreement"), is
entered into effective as of April 14, 1998 (the "Effective Date"), by and
between BRENTWOOD WEST PARTNERS, LLP, an Arizona registered limited liability
partnership ("Seller"), and PARKBRIDGE CAPITAL GROUP, INC., an Oregon
corporation, or Assignee ("Buyer").
RECITALS:
A. Seller is the owner of that certain real property located at 0000
Xxxx Xxxxxxxx, Xxxx, Xxxxxxx, which is more particularly described on Exhibit A
(the "Real Property"). The Real Property is currently operated as a mobile home
park known as "Brentwood West Mobile Home Park".
B. Buyer desires to purchase the Property (as defined below) from
Seller, and Seller desires to sell the Property to Buyer, on the terms and
conditions set forth below.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants set forth in this Agreement, and for other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Seller and Buyer (collectively, the "Parties"; individually a "Party") agree as
follows:
1. Agreement to Buy and Sell. Subject to the terms and conditions set
forth below, Buyer agrees to purchase the Property from Seller, and Seller
agrees to sell the Property to Buyer.
2. Description of Property. The term "Property" shall include the
following:
A. The Real Property;
B. The mobile home that is currently being used as the
residence of the manager of the Real Property ("Manager's Mobile Home") and the
equipment and other personal property that is listed on Exhibit B (collectively,
the "Personal Property").
C. All of Seller's interest, to the extent transferable, in
any permits and licenses related to the ownership, maintenance, use and
occupancy of the Property (collectively, the "Permits"), the name "Brentwood
West Mobile Home Park", the current phone number for the Property, any and all
contracts related to the ownership, maintenance, use and operation of the Real
Property and/or the Personal Property, including, but not limited to, the
contracts listed on Exhibit C (collectively, the "Contracts"; each,
individually, a "Contract") and the leases for mobile home spaces on the
Property and any and all other leases related to the ownership, maintenance, use
and operation of the Property, a detailed list of which shall be attached as
Exhibit "A" to the Assignment (as defined below) at Close of Escrow
(collectively, the "Leases"; each, individually a "Lease").
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3. Escrow.
A. Opening of Escrow. Escrow No. 9804614-41 (the "Escrow")
shall be opened when: (i) 3 fully executed counterpart originals of this
Agreement executed by Seller and Buyer have been delivered to Chicago Title
Insurance Company, a Missouri corporation, 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000, Attn: Xxx Xxxxxx (the "Escrow Agent"); and (ii) Buyer
shall have deposited the Initial Xxxxxxx Money (as defined below) with Escrow
Agent (the "Opening of Escrow"). Escrow Agent shall advise Seller and Buyer, in
writing, of the Opening of Escrow and the date thereof.
B. Escrow Cancellation Charges. If Escrow fails to close
because of Seller's default, Seller shall be liable for any cancellation of
Escrow Agent charges. If Escrow fails to close because of Buyer's default, Buyer
shall be liable for any cancellation charges of Escrow Agent. If Escrow fails to
close for any other reason, Seller, on the one hand, and Buyer, on the other,
shall each be liable for one-half of any cancellation charges of Escrow Agent.
4. Consideration From Buyer.
A. Purchase Price. The Purchase Price (herein so called) to be
paid by Buyer to Seller for the Property is $13,200,000.00 payable as follows:
(1) Initial Xxxxxxx Money. Upon the Opening of
Escrow, Buyer shall deposit with Escrow Agent $200,000.00 in cash or other
immediately available funds (the "Initial Xxxxxxx Money") to be held by Escrow
Agent until cancellation as provided below or paid to Seller at Close of Escrow
(as defined below).
(2) Additional Xxxxxxx Money. Upon the expiration of
the Study Period (as defined below), Buyer shall deposit with Escrow Agent
$300,000.00 in cash or other immediately avail able funds (the "Additional
Xxxxxxx Money") to be held by Escrow Agent until cancellation as provided below
or paid to Seller at Close of Escrow. The Initial Xxxxxxx Money and the
Additional Xxxxxxx Money shall sometimes be referred to collectively or
alternatively as the "Xxxxxxx Money".
(3) Closing Funds. On or before the Close of Escrow,
Buyer shall deposit with Escrow Agent, in the form of cash or other immediately
available funds, the balance of the Purchase Price to be paid to Seller upon the
Close of Escrow (collectively, the "Closing Funds").
(4) No Reduction for Brokerage Fees. There shall be
no reduction of Purchase Price for any brokerage fees, finders fees, or similar
fees, payable to any person. Any such fees payable shall be paid by Buyer from
separate funds in addition to the Purchase Price.
B. Distribution of Purchase Price. If Seller elects, Seller
may dissolve prior to the Closing, in which event, Seller shall cause its
partners to sell the Property to Buyer and the Purchase Price and the closing
costs shall be allocated among each of the partners as follows:
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1) H&E Mesa Partnership, a general partnership: 54.5%
2) L&F Investments Limited Partnership, an Arizona
limited partnership: 40.0%
3) Xxxxx Xxxx, as Trustee of the EJF Trust U/T/A
Dated March 3, 1995: 5.5%
5. Xxxxxxx Money. Seller and Buyer hereby instruct Escrow Agent to put
the Xxxxxxx Money in a federally insured daily interest-bearing passbook account
on behalf of Seller and Buyer. The Xxxxxxx Money, and interest accrued thereon,
shall be applied as follows:
A. Cancellation By Buyer. If Seller defaults or if Buyer
cancels this Agreement pursuant to the terms of this Agreement, the Xxxxxxx
Money and all interest accrued thereon less $100.00 representing the fair
consideration paid by Buyer to Seller for this Agreement (the "Fair
Consideration") shall be paid immediately to Buyer.
B. Default By Buyer. If Buyer defaults, the Xxxxxxx Money and
all interest accrued thereon shall be paid to Seller.
C. Close of Escrow. If Escrow closes, the Xxxxxxx Money and
all interest accrued thereon to Close of Escrow shall be credited to Buyer,
automatically applied against the Purchase Price and paid to Seller at Close of
Escrow.
6. Close of Escrow; Conveyance of Title; Title Insurance.
A. Close of Escrow. Consummation of the purchase of the
Property (the "Close of Escrow" or "Closing") and recordation of the appropriate
Transfer Documents (as defined below) shall take place on or before the 30th day
after the expiration of the Study Period (as defined below), or such later date
mutually agreed to in writing by and between Buyer and Seller (the "Closing
Date"). At or before Closing, each Party shall execute and deliver such
documents and perform such acts as are provided for in this Agreement. The
Closing shall be extended for a period not to exceed an additional thirty-five
(35) days if necessary to prevent a prepayment default on the indebtedness
referred in Item 4, under Schedule B - Section 1 of the Commitment for Title
Insurance (as defined below).
B. Closing Costs. All recording fees shall be paid by Seller,
all escrow service fees shall be paid one-half by Seller and one-half by Buyer
and all other escrow closing costs shall be charged by Escrow Agent to, and paid
by, the respective Parties in accordance with local custom as determined by
Escrow Agent unless payment of such costs is specifically provided for in this
Agreement or the Transfer Documents (as defined below). Real property taxes,
improvement liens and other assessments affecting the Property shall be prorated
to the Close of Escrow. The real property taxes shall be prorated on the basis
of the latest available tax statement; provided, however, that if, after
Closing, the actual tax xxxx for the Property varies from Escrow Agent's
pro-ration figures, a new pro-ration shall be completed and the Party in whose
favor any difference exists after pro-ration shall be entitled to recover such
difference from the other Party. Except as provided in this Section, Seller and
Buyer shall each bear their own costs in regard to the Purchase Transaction (as
defined below). Seller agrees that all closing costs
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payable by Seller shall be deducted from Seller's proceeds otherwise payable to
Seller at Close of Escrow. Buyer shall deposit with Escrow Agent sufficient cash
to pay all of Buyer's closing costs.
All rent and other monthly sums due from the tenants and others under
the Leases shall be pro rated as of the Close of Escrow. All charges for gas,
electricity, water and any other utilities serving the Property and not charged
directly to the tenants and all other operating expenses of the Property shall
be prorated as of the Close of Escrow outside of Escrow and paid to Buyer within
30 days after the Close of Escrow in cash, by check or by wire transfer. With
regard to utilities, upon Close of Escrow, Seller shall cancel all utility
accounts which may then be in Seller's name and Seller shall be entitled to
receive and collect any utility deposits which may be due Seller as of Close of
Escrow.
C. The Transfer Documents. On or prior to the Close of Escrow,
Seller and Buyer, as applicable, shall duly execute, acknowledge and deliver the
following to Escrow Agent for recordation, if appropriate, and delivery upon
Close of Escrow:
(1) A Special Warranty Deed, in form and content
identical to Exhibit D (the "Deed"), executed and acknowledged by Seller,
conveying title to the Property to Buyer;
(2) An Affidavit of Property Value, required by
A.R.S. ss.42-1612, in form and content identical to Exhibit E (the "Affidavit");
(3) An Assignment and Assumption Agreement, in form
and content identical to Exhibit F (the "Assignment"), executed by Seller,
assigning to Buyer Seller's interest in the Permits, the Leases and the
Contracts and executed by Buyer assuming all of Seller's obligations under the
Permits, the Leases and the Contracts; and
(4) A Xxxx of Sale (herein so called), in form and
content identical to Exhibit G, executed by Seller, assigning to Buyer Seller's
interest in the Personal Property.
The Deed, the Affidavit, the Assignment, the Xxxx of Sale and all other
documents, if any, which may be necessary to consummate the Purchase Transaction
are collectively referred to as the "Transfer Documents".
D. Title Insurance. Escrow Agent, at Seller's cost, shall
issue or cause to be issued a standard coverage owner's policy of title
insurance (the "Owner's Policy") in the amount of the Purchase Price. If Buyer
elects to obtain an extended coverage lender's policy of title insurance, any
endorsements, any inspection reports or any survey, Buyer shall pay the
additional premiums and costs for each.
E. IRS Section 1445. Seller shall furnish to Buyer in Escrow
by Close of Escrow a sworn affidavit, in the form of Exhibit H (the "Non-Foreign
Affidavit") in accordance with Section 1445(f)(3) of the Internal Revenue Code
of 1986, as amended (the "Code").
F. Delivery of Possession. Seller shall vacate and deliver
possession of the Property to Buyer at Close of Escrow, subject to the rights of
the tenants under the Leases.
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G. Escrow Instructions. This Agreement, when deposited with
Escrow Agent, shall constitute instructions to Escrow Agent, as escrow agent,
for the consummation of the Purchase Transaction. Attached as Exhibit I is
Escrow Agent's printed form conditions of escrow (the "Escrow Instructions")
which, together with this Agreement, shall constitute all of the instructions to
Escrow Agent with respect to the Purchase Transaction. It is provided, however,
that in the event of a conflict between the terms and conditions of the Escrow
Instructions and the terms and conditions of this Agreement, the terms and
conditions of this Agreement shall prevail. Without limiting the generality of
the foregoing, in no event shall Escrow Agent be indemnified or held harmless
for any liability or claim arising from its own negligence or its own
intentional misconduct or act of malfeasance and the so-called "13-day notice"
provision, if any, in the Escrow Instructions is hereby deleted.
7. Buyer's Contingencies. Buyer's obligation to consummate the
transaction contemplated by this Agreement (the "Purchase Transaction") is
subject to the satisfaction of the following conditions precedent (any or all of
which may be waived by Buyer):
A. The Study Period. Buyer shall have approved the condition
of the Property. Buyer shall have until 5:00 p.m. Arizona time on the 30th day
after the Opening of Escrow (the "Study Period"), at Buyer's sole cost, within
which to review the Property Documents (as defined below) and to conduct and/or
approve any investigations, studies or tests deemed necessary by Buyer to
determine the feasibility of acquiring and developing the Property, including,
but not limited to, environmental studies (collectively, the "Studies"; each a
"Study"). Buyer agrees to immediately provide a copy of each Study to Seller,
including, but not limited to, a copy of any environmental assessment report of
the Property. Seller hereby grants to Buyer and Buyer's agents, employees or
contractors the right to enter upon the Property during the Study Period to
conduct the Studies during normal business hours, after reasonable notice. In
consideration of Seller granting Buyer the right of entry to the Property, Buyer
shall and does hereby agree to hold harmless Seller and Seller's agents,
employees and partners and such partners' respective partners, trustees,
beneficiaries, employees and agents (collectively, the "Indemnified Parties";
each an "Indemnified Party") for, from and against any and all liabilities,
claims, losses or damages, including, but not limited to, court costs and
attorneys' fees, which may be incurred by an Indemnified Party because of the
Studies and to restore the Property to the condition existing immediately prior
to any such Study. Buyer's obligations as provided in the preceding sentence
shall survive the cancellation of this Agreement and the Close of Escrow, as
applicable. If the results of any of the Studies are not acceptable to Buyer and
Buyer so notifies Seller and Escrow Agent in writing on or before the end of the
Study Period (the "Cancellation Notice"), this Agreement shall be canceled.
Buyer's failure, for any reason, to give the Cancellation Notice before the
expiration of the Study Period automatically shall be deemed to be Buyer's
election to close the Escrow.
B. Failure of Condition Precedent. If Buyer elects to cancel
this Agreement pursuant to the foregoing provisions of this Section 7, the
Initial Xxxxxxx Money plus interest accrued thereon (less the Fair
Consideration) shall be refunded immediately by Escrow Agent to Buyer and,
except as otherwise provided in this Agreement, neither Seller nor Buyer shall
have any further liability or obligation under this Agreement. If Buyer does not
elect to cancel the Agreement pursuant to the foregoing provisions of this
Section 7, the Xxxxxxx Money (the Initial Xxxxxxx Money and the Additional
Xxxxxxx Money), plus interest accrued thereon, shall be non-refundable.
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C. Delivery to Seller. In the event Buyer performs an
environmental assessment of the Property, Buyer hereby agrees to provide a copy
of any data, draft, final report or other information that is prepared by any
environmental consultant engaged by Buyer (hereinafter collectively referred to
as "Information") within 48 hours after the preparation of said Information.
Buyer also hereby agrees that Seller shall receive the benefit of any and all
representations and warranties that may be made by the above environmental
consultant.
8. Acceptance of Title. Buyer hereby approves and accepts the condition
of title to the Property as set forth in the Commitment for Title Insurance
issued by Escrow Agent, Escrow Title No. 9804614, dated effective March 3, 1998
("Commitment of Title Insurance") a copy of which is attached hereto as Exhibit
J.
9. Review of Property Documents. During the Study Period, Seller,
without warranty as to the accuracy or content thereof, agrees to permit Buyer
to inspect and review all information in Seller's possession or control relating
to the operation of the Property for the last 3 years, a current rent roll, the
Leases and the Contracts (collectively, the "Property Documents"). Buyer
acknowledges that the Property Documents and other information of any kind or
nature relating to the Property which Buyer has reviewed or received or may
review or receive from Seller or Seller's respective agents, is, will be or has
been furnished on the express condition that Buyer shall make Buyer's own
independent verification of their accuracy. Buyer further acknowledges that the
information provided and to be provided with respect to the Property was
obtained from a variety of sources and Seller and Seller's partners, employees
and agents: (1) have not made any independent investigation or verification of
such information; and (2) do not make any representations as to the accuracy or
completeness of such infor mation. Buyer agrees that Buyer shall not attempt to
assert any liability against any Indemnified Party by reason of Seller or
Seller's partners, employees or agents having furnished such information or by
reason of any such information becoming or proving to have been incorrect or
inaccurate in any respect, and Buyer does hereby covenant and agree to defend,
pay, indemnify and hold harmless the Indemnified Parties for, from and against
any and all such claims of liability by any person or entity.
10. Seller's Representations and Warranties. Seller hereby represents
and warrants to Buyer, that to Seller's actual knowledge, without inquiry, as of
the Effective Date and as of Close of Escrow, and agree (with the understanding
that Buyer is relying on these warranties, representations and covenants) as
follows:
A. Authority; Binding Nature of Agreement. This Agreement has
been authorized by all necessary entity action on behalf of Seller, the person
executing this Agreement on behalf of Seller has the authority to do so, when so
executed this Agreement shall be the legal, valid and binding obligation of
Seller and, upon fulfillment of all conditions described herein, this Agreement
shall not breach any of the organizational documentation of Seller.
B. Personal Property. Seller does not own any mobile homes
currently located on the Property, except the Manager's Mobile Home, or hold any
interest in any other mobile homes currently located on the Property, directly
or indirectly, by lease, sublease, sale/leaseback or other agreement, other than
those, if any, specifically disclosed to Buyer in writing, prior to the Closing
Date.
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C. Notice Obligations. Should Seller receive notice or
knowledge of any information that would have a material adverse effect on any of
the matters set forth in this Section 10 after the Opening of Escrow and prior
to the Close of Escrow, Seller will notify Buyer of the same in writing.
D. Limitation of Seller's Representations and Warranties.
Except as otherwise ex pressly set forth in this Section 10, Seller makes no
guarantees, warranties or representations, express or implied, with respect to
the Property, the condition of title, the suitability of the Property for any in
tended purpose or habitability, the size, location, physical condition,
encroachments, access, availability of utilities, zoning, value, future value,
income potential, productivity, rights to, adequacy of or quality of the water
supply or water transaction. Without limiting the foregoing, except as set forth
in this Agreement, Seller makes no warranties or representations of any kind
regarding the environmental condition of the Property or the presence or absence
of hazardous wastes or toxic materials or any other warranties or
representations of any kind regarding the environmental condition of the
Property, including, but not limited to, the presence or absence of asbestos,
radon gas, formaldehyde, oil, PCB'S, underground storage tanks, or any other
hazardous or toxic waste or materials. No Seller warranty of any kind shall
survive the Close of Escrow or the cancellation or termination of the Escrow and
this Agreement.
11. Buyer's Representations, Warranties and Covenants. Buyer hereby
represents and warrants to Seller, as of the Effective Date and as of the Close
of Escrow, and agree (with the understanding that Seller is relying on these
representations, warranties and covenants) as follows:
A. Authority; Binding Nature of Agreement. This Agreement has
been authorized by all necessary entity action on behalf of Buyer, the person
executing this Agreement on behalf of Buyer has the authority to do so, when so
executed this Agreement shall be the legal, valid and binding obligation of
Buyer and, upon fulfillment of all conditions described herein, this Agreement
shall not breach any of the organizational documentation of Buyer.
B. No Oral Representations and Warranties. Buyer acknowledges
that no person act ing on behalf of Seller is authorized to make, and by
execution of this Agreement Buyer acknowledges that no person has made, any
representation, warranty, guaranty or promise, whether oral or written, except
as expressly set forth in this Agreement; and any agreement, statement,
representation or promise made by any person which is not contained in this
Agreement may not be relied upon and shall not be valid or binding upon Seller.
The only representations or warranties outstanding with respect to the subject
matter of the Purchase Transaction, either express or implied by law, are
expressly set forth in this Agreement.
C. Limitation of Seller's Representations; "As-Is Sale". Buyer
acknowledges and agrees that the Property shall be purchased in an "as-is,"
"where is" condition, and, except as otherwise specifically stated in this
Agreement, Seller and Seller's partners, agents or employees make no warranty or
representation of any kind, type or nature, express or implied, or arising by
operation of law, including, but not limited to, any warranty of condition,
habitability, merchantability or fitness for a particular purpose, in respect of
the Property. Buyer accepts the Property in its present condition, with all
faults, any warranties of merchantability or fitness for a particular purpose
being hereby expressly disclaimed. Buyer acknowledges and agrees that Buyer will
inspect the Property and that Buyer is
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purchasing the Property solely upon the basis of such investigation and not on
the basis of any repre sentation, express or implied, written or oral, made by,
or on the basis of any information provided or to be provided by, Seller or
Seller's partners, agents or employees. Seller is hereby released from all
responsibility regarding the valuation or condition of all or any portion of the
Property. Seller shall have no responsibility to remove, remedy or repair any
existing improvements, materials or conditions located or existing on the
Property.
12. Commissions. Seller and Buyer warrant that they have not dealt with
any finder, broker or realtor in connection with the transaction embodied by
this Agreement except as described in Exhibit "K." If any person shall assert a
claim to a finder's fee or brokerage commission on account of alleged employment
as a finder or broker in connection with the Purchase Transaction, the Party
under whom the finder or broker is claiming shall indemnify and hold harmless
the other Party for, from and against any such claim and all costs, expenses and
liabilities incurred in connection with such claim or any action or proceeding
brought on such claim, including, but not limited to, counsel and witness fees
and court costs in defending against such claims. Seller shall have no
obligation to pay any commission due or alleged to be due to Buyer's broker. The
Parties' obligations under this Section 12 shall survive the cancellation of
this Agreement and the Close of Escrow, as applicable.
13. Remedies.
A. Pre-Closing Seller's Default. If Seller defaults (provided
there is no pre-existing default by Buyer), Buyer may elect in writing, as
Buyer's sole remedy, to: (i) waive such breach and close Escrow; (ii) cancel the
Escrow and this Agreement; or (iii) file an action for specific performance.
B. Pre-Closing Buyer's Default. If Buyer defaults, Seller may
either: (i) waive such breach and close Escrow; or (ii) by written notice to
Buyer and Escrow Agent, cancel this Agreement whereupon the Xxxxxxx Money
(Initial Xxxxxxx Money and Additional Xxxxxxx Money) plus interest thereon shall
be paid immediately by Escrow Agent to Seller. Seller and Buyer agree that it
would be impractical or extremely difficult to fix actual damages in case of the
Buyer's default; that the amount of the Xxxxxxx Money paid by Buyer is a
reasonable estimate of the Seller's damages in case of Buyer's default; and that
Seller shall retain the Xxxxxxx Money as Seller's damages and, thereafter,
except as otherwise provided in this Agreement, neither Party shall have any
further obligation to the other under this Agreement.
C. Post-Closing Default. If a breach or default of an
obligation becomes known after Closing, Buyer and Seller shall be entitled to
all remedies available to them at law or in equity, except for the right of
rescission and the right to receive consequential and/or punitive damages which
Buyer and Seller both hereby expressly waive.
14. Notices.
A. Addresses. Except as otherwise required by law, any notice
required or permitted under this Agreement shall be in writing and shall be
given by personal delivery, or by deposit in the United States mail, certified
or registered, return receipt requested, postage prepaid, addressed to the
Parties at the addresses set forth below, or at such other address as a Party
may designate in writing
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pursuant to the terms of this Section, or any express or overnight delivery
service [e.g. Federal Express], delivery charges prepaid:
If to Seller: Xxxxx Xxxxxx and Xxxx Xxxxxxxx
0000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
and
Xxxxxxx Xxxxxxxxxx
0000 Xxxxx 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
and
Xxxxx Xxxx, CPA
0000 Xxxx Xxxxxxxx Xxxx
Xxxx, Xxxxxxx
With a copy to:
Mariscal, Weeks, XxXxxxxx & Xxxxxxxxxxx, P.A.
Attn: Xxx Xxxxx, Esq.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If to Buyer: Parkbridge Capital Group, Inc.
Attn: Xxx Xxxxxxxx
00000 Xxxxxx Xxxxx Xxxx, xxxxx 000
Xxxx Xxxxxx, XX 00000
If to Escrow Agent: Chicago Title Insurance Company
Attn: Xxx Xxxxxx
0000 Xxxx Xxxxxxxxx Xxxx, #000
Xxxxxxx, Xxxxxxx 00000
B. Effective Date of Notices. Notice shall be deemed to have
been given on the date on which notice is delivered, if notice is given by
personal delivery, and on the date of deposit in the mail, if mailed or
deposited with the overnight carrier, if used. Notice shall be deemed to have
been received on the date on which the notice is received, if notice is given by
personal delivery, and on the 2nd day following deposit in the mail, if notice
is mailed. Notwithstanding the foregoing, no payment shall be deemed made until
actually received by the intended payee. If Escrow has opened, a copy of any
notice given to a Party shall also be given to Escrow Agent by regular mail or
by any other method provided for in this Section.
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15. Further Assurances. Each Party, promptly upon the request of the
other or upon the request of Escrow Agent, shall do such further acts and shall
execute and have acknowledged and delivered to the other Party or to Escrow
Agent, as may be appropriate, any and all further documents or instruments as
may be reasonably requested or appropriate in connection with the Purchase
Transaction to carry out the intent and purpose of this Agreement.
16. Indemnification. Buyer shall and hereby does, indemnify and agree
to pay, defend (with counsel acceptable to Seller) and hold harmless the
Indemnified Parties for, from and against any liability, obligation, action,
suit, judgment, fine, award, loss, claim, demand or expense (including
attorneys' fees) arising from any act or omission of Buyer pertaining in any
manner to the Property for the period of time during Buyer's ownership after the
Close of Escrow.
17. Recourse. Notwithstanding anything to the contrary contained in
this Agreement, recourse for any liability or obligation of Seller under this
Agreement shall be limited to Seller's interest in the Property only, and in no
event shall Seller or Seller's partners or the spouses of any of them, or any of
their respective heirs, successors, personal representatives, or assigns, or any
of their respective separate properties or assets, be subject to any claim,
obligation or liability of the Seller arising under this Agreement or otherwise
in connection with the actions or transactions provided for in this Agreement.
18. Risk of Loss. Seller shall bear all risk of loss or damage to the
Property which may occur prior to the Close of Escrow, subject to the terms of
Section 7(A) of this Agreement.
19. Confidentiality. Buyer agrees with Seller as follows:
A. Buyer shall retain in confidence all Confidential
Information transmitted to Buyer by Seller. Buyer shall not disclose any
Confidential Information except to their employees or agents who need to know
such information, provided that such employees and agents are informed by Buyer
of the confidential nature of such information and that by receiving such
information they are agreeing to be bound by this Agreement, which shall be
fully enforceable against them as if they signed a counterpart of this
Agreement. Buyer hereby agrees to pay, defend, indemnify and hold harmless
Sellers and Sellers' members, managers, partners, trustees, beneficiaries,
employees and agents (collectively, the "Indemnified Parties", each an
"Indemnified Party") for, from and against any cost, damage, loss, or expense
caused by or arising out of the unauthorized disclosure by Buyer, or any such
employee or agent of Buyer, of any Confidential Information. Any Confidential
Information disclosed by Sellers or Buyer pursuant to this Agreement shall be
disclosed solely for the purpose of determining whether to enter into the
Purchase Transaction and shall not be used by Buyer for any other purpose. If
Buyer is legally compelled to disclose any Confidential Information or else
stand liable for contempt or suffer other censure or penalty, Buyer may disclose
such information solely for such purpose without liability under this Agreement
provided that Buyer shall have used reasonable efforts to obtain an order or
other reasonable assurance that confidential treatment will be accorded to such
information.
B. In the event that any Seller or Buyer terminates
discussions of the Purchase Transaction for any reason: (i) Buyer shall promptly
deliver to Seller (without retaining copies) any documents or other written
information obtained from Seller in connection with such discussions and Buyer
shall promptly deliver to Seller, or at Seller's request, Buyer shall destroy
any notes, extracts,
10
summaries or other materials derived in any way from Confidential Information;
and (ii) Buyer shall continue to maintain the confidentiality of all
Confidential Information previously received. For purposes of this Agreement,
the term "documents" shall be construed to include all tangible materials
containing any Confidential Information, including, without limitation, all
computer disks, tapes, electronic or magnetic media or storage of any kind.
C. Neither Buyer nor Seller shall, without the prior written
consent of the other, make any statement, public announcement or release to any
publication or the press or make any statement to any competitor, employee,
customer, supplier or third party with respect to such discussions or the
Purchase Transaction (including the identity of each other), except as may be
necessary to comply with the requirements of any applicable law, governmental
order or regulation.
D. The term "Confidential Information" shall mean, any
confidential non-public information provided by Sellers, including, but not
limited to, financial information, know-how, products, and other intellectual
property, customer and supply resource lists, financial and/or operating (income
and/or expense) data and trade secrets. The term "Confidential Information"
shall exclude information which: (i) is generally available to the public at the
time of its receipt by Buyer; (ii) was known to Buyer prior to its disclosure to
Buyer as evidenced by documents in Buyer's possession prior to disclosure by
Sellers; or (iii) is disclosed to Buyer by a third party that is not bound by
any similar confidentiality agreement.
20. Miscellaneous.
A. Modification and Waiver. Except as expressly provided
herein to the contrary, no supplement modification or amendment of any term of
this Agreement shall be deemed binding or effective unless in writing and signed
by the Parties. No waiver of any of the provisions of this Agree ment shall
constitute or be deemed a waiver of any other provision, nor shall any waiver be
a continuing waiver. Except as otherwise expressly provided in this Agreement,
no waiver shall be binding unless executed in writing by the Party making the
waiver.
B. Exhibits; Recitals. All Exhibits and Recitals referenced in
this Agreement are incorporated in, shall constitute a part of, this Agreement.
C. Entire Agreement. This Agreement and the Transfer Documents
contain the entire agreement and understanding of the Parties with respect to
the subject matter of this Agreement. All agreements and understandings entered
into prior to the date of this Agreement with respect to the subject matter of
this Agreement are revoked and superseded by this Agreement and the Transfer
Documents. No representations, warranties, inducements, promises, agreements, or
understandings not contained in the Transfer Documents regarding the subject
matter of this Agreement shall be of any force or effect after the Close of
Escrow unless in writing, executed by the Party to be bound and dated the
Closing Date.
D. Attorneys' Fees. If either Party breaches any provision of
this Agreement, the breaching Party shall pay to the non-breaching Party all
actual and reasonable attorneys' fees and other costs and expenses incurred by
the non-breaching Party in enforcing this Agreement or preparing for legal
11
or other proceedings, regardless of whether suit is instituted. If it becomes
necessary for either Party to employ legal counsel or to bring an action at law
or other proceeding to enforce any of the terms, covenants or conditions of this
Agreement, the prevailing Party in any such action or proceeding shall be
entitled to recover its costs and expenses incurred in such action from the
other Party, including, but not limited to, reasonable attorneys' fees set by
the Court (and not by a jury) at both trial and appellate levels, and if any
judgment is obtained by the prevailing Party, all such costs, expenses and fees
shall be included in the judgment.
E. Severability. If any term or provision of this Agreement is
declared void, invalid or unenforceable, or the application thereof to any
person or circumstance shall, to any extent, be de clared void, invalid or
unenforceable, by a court of competent jurisdiction, then such term or provision
shall be deemed amended and reformed to delete therefrom that portion thus
adjudicated void, invalid or unenforceable and to the extent such term or
provision is deemed unenforceable by virtue of its scope, but may be made
enforceable by limiting the scope of such term or provision, each Party agrees
that such term or provision shall be enforceable to the fullest extent
permissible and 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 term and
provision of this Agreement shall be valid and shall be enforced to the fullest
extent permitted by law.
F. Successors and Assigns. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by and against the Parties to
this Agreement and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
G. Counterparts. This Agreement may be executed in multiple
counterparts, but all such counterparts shall constitute but one and the same
Agreement. If counterparts are employed, then, upon the Opening of Escrow and
the Close of Escrow, as applicable, Escrow Agent shall assemble all counterpart
signature pages into a single document, and copies of this document shall be
delivered to Seller and Buyer. The Parties agree that this Agreement may be
transmitted between them via facsimile. The Parties intend that the faxed
signatures constitute original signatures and that a faxed agreement containing
the signatures (original or faxed) of all the Parties is binding upon the
Parties.
H. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal substantive laws of the State of
Arizona. Any action brought to interpret or enforce any provisions of this
Agreement, or otherwise relating to or arising from this Agreement, shall be
commenced and maintained in the Superior Court of the State of Arizona, in and
for the County of Maricopa and each of the Parties consents to jurisdiction and
venue in such court for such purposes.
I. Captions. The captions of the paragraphs of this Agreement
are inserted for convenience only and shall not define, limit extend, control or
affect the meaning or construction of any provision hereof.
J. Time of the Essence; Computation of Time. Time is of the
essence in each and every provision of this Agreement. In computing any period
of time under this Agreement, the date of the act or event from which the
designated period of time begins to run shall not be included. The last day of
the period so completed shall be included unless it is Saturday, Sunday or legal
holiday. The time
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for performance of any obligation or taking any action under this Agreement
shall be deemed to expire at 5:00 p.m. Phoenix time, on the last day of the
applicable time period provided in this Agreement.
K. Interpretations and Definitions. The Parties agree that
each Party and such Party's counsel have reviewed and revised this Agreement (or
have had the opportunity to do so) and that any rule of construction to the
effect that ambiguities are to be resolved against the drafting Party shall not
apply in the interpretation of this Agreement.
L. Code Section 6045. Escrow Agent, as the Party responsible
for closing the transaction contemplated herein within the meaning of Section
6045(e)(2)(A) of the Internal Revenue Code, shall file all necessary
information, reports, returns, and statements (collectively, the "Reports")
regarding the transaction as may be required by the Code including, but not
limited to, the Reports required pursuant to Section 6045 of the Code.
M. Telecopy Signatures. Signatures may be exchanged by
telecopy, with the original signature to follow. Each Party agrees to be bound
by its own telecopied signature and to accept the telecopied signature of the
other Parties, provided an original of such signature is provided within a
reasonable time thereafter.
N. Waiver. Failure of any Party to exercise any right or
option arising out of a breach of this Agreement shall not be deemed a waiver of
any right or option with respect to any subsequent or different breach, or the
continuance of any existing breach.
O. No Recordation or Filing. Neither this Agreement nor any
memorandum of this Agreement shall be recorded. Prior to Closing, Buyer shall
make no filing of any kind with the City of Mesa or with Maricopa County,
without the prior written consent of Seller, which consent may be withheld in
Seller's sole discretion. Any attempted recordation or filing by Buyer in
violation of this Section shall constitute a default by Buyer.
P. Expiration of Offer. This offer shall expire unless Seller
accepts it on or before 5:00 p.m. Phoenix time on April 14, 1998. Seller shall
accept this offer by executing three (3) copies of this Agreement and delivering
the same to Escrow Agent along with Buyer's Xxxxxxx Money on or before the
expiration of this offer. Escrow Agent shall thereupon open the Escrow, execute
all copies of this Agreement, and promptly provide Buyer and Seller each with a
copy of this Agreement executed by each of the Parties.
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BUYER:
--------------------------------------
SELLER: BRENTWOOD WEST LLP, an Arizona registered
limited liability partnership,
By: H & E MESA PARTNERSHIP, a general
partnership, General Partner
By:_________________________________
Its: Authorized General Partner
By: L & F INVESTMENTS LIMITED
PARTNERSHIP, an Arizona limited
partnership, General Partner
By: XXXXXXXXXX REVOCABLE
TRUST, General Partner
By:__________________________
Xxxxxxx X. Xxxxxxxxxx,
as Trustee
By: TRUSTEE OF THE EJF TRUST U/T/A
DATED 3/13/95, General Partner
By:_______________________________
Xxxxx Xxxx, Trustee
14
ACCEPTANCE
This Agreement is accepted as of this _____ day of April, 1998, by
Escrow Agent, which date is deemed to be the date of Opening of Escrow for the
purposes of this Agreement, and Escrow Agent agrees to perform the acts
applicable to Escrow Agent in accordance with the terms of this Agreement.
Escrow Agent acknowledges its receipt of a fully executed original of this
Agreement as of the date set forth above.
ESCROW AGENT: CHICAGO TITLE INSURANCE COMPANY,
a Missouri corporation
By:__________________________________________
Its:________________________________
F:\USERS\TLT\BRNTWOOD\2166001S.20C
15
Legal Description
See Exhibit "A-1" attached hereto.
EXHIBIT A TO
PURCHASE AGREEMENT
PERSONAL PROPERTY
TO BE SUPPLIED BY SELLER ON OR BEFORE CLOSE OF ESCROW
EXHIBIT B TO
PURCHASE AGREEMENT
CONTRACTS
TO BE SUPPLIED BY SELLER ON OR BEFORE CLOSE OF ESCROW
EXHIBIT C TO
PURCHASE AGREEMENT
BROKERS
1. BROKERS ENGAGED BY SELLER: NONE.
2. BROKERS ENGAGED BY BUYER:
Saguaro Properties
(Xxxx Xxxxxxxx)
EXHIBIT K TO
PURCHASE AGREEMENT
