EXHIBIT 10.1
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REAL ESTATE SALE AND PURCHASE AGREEMENT
By and Between
OASIS GROUP, INC.
and
▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Date: February , 2001
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TABLE OF CONTENTS
Page
1. Agreement of Purchase and Sale..........................................................................1
2. ▇▇▇▇▇▇▇ Money...........................................................................................1
3. Purchase Price..........................................................................................1
4. Feasibility Period......................................................................................2
5. Due Diligence Documents.................................................................................2
6. Survey..................................................................................................3
7. Title...................................................................................................3
8. Property Inspection.....................................................................................4
9. Condition of the Property and Operation of the Property Prior to Closing................................5
10. Seller's Representations and Warranties.................................................................5
11. Purchaser's Representations and Warranties..............................................................6
12. Seller's Obligations Pending Closing....................................................................7
13. Closing.................................................................................................8
14. Conveyance..............................................................................................8
15. Possession..............................................................................................9
16. Settlement Costs and Adjustments........................................................................9
17. Condemnation...........................................................................................10
18. Seller's Remedy........................................................................................10
19. Purchaser's Remedies...................................................................................10
20. Real Estate Commissions................................................................................11
21. Escrow Agent...........................................................................................11
22. Time Period............................................................................................12
23. Notices................................................................................................12
24. Assignment of Interest.................................................................................13
25. Survival...............................................................................................13
26. Construction...........................................................................................13
27. Persons Bound..........................................................................................13
28. Modification/Amendment.................................................................................13
29. Counterparts...........................................................................................13
30. Waiver.................................................................................................14
31. Captions...............................................................................................14
32. Pronouns...............................................................................................14
33. Severability...........................................................................................14
34. Exhibits...............................................................................................14
35. Use of the Word "Herein"...............................................................................14
36. Third Parties..........................................................................................14
37. Confidentiality........................................................................................14
38. Attorney's Fees........................................................................................14
REAL ESTATE SALE AND PURCHASE AGREEMENT
This REAL ESTATE SALE AND PURCHASE AGREEMENT ("Agreement") is made and
entered into as of the ____ day of February, 2001 (the "Effective Date"), by and
between OASIS GROUP, INC., a Georgia corporation, or any wholly owned subsidiary
that Oasis organizes to purchase the property ("Purchaser" or "Oasis"), and ▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual resident of California or assignee (the "Seller").
1. AGREEMENT OF PURCHASE AND SALE. Seller hereby agrees to sell
to Purchaser, and Purchaser hereby agrees to purchase from Seller, the land
(hereinafter called the "Land") located in California and Arizona, as more
specifically described in attached Exhibit A, together with all right, title and
interest of Seller in and to any trade or business name (hereinafter
collectively called the "Trade Name") used in connection with the operation of
the business conducted by Seller at the Land; and all easements, appurtenances,
rights, privileges, reservations, tenements and hereditaments belonging or
pertaining to any of the foregoing. The foregoing items are hereinafter
collectively called the "Property".
2. ▇▇▇▇▇▇▇ MONEY. On the Effective Date, Purchaser will deposit
Ten Thousand Dollars ($10,000) (the "▇▇▇▇▇▇▇ Money") with First American Title
Company (the "Escrow Agent") to be held in trust on the terms herein set forth
for the mutual benefit of the parties hereto. The ▇▇▇▇▇▇▇ Money will be invested
by Escrow Agent in a money market fund or a federally-insured interest-bearing
account. Interest on the ▇▇▇▇▇▇▇ Money will for all purposes become and
constitute part of the ▇▇▇▇▇▇▇ Money. Notwithstanding the foregoing, a portion
of the ▇▇▇▇▇▇▇ Money in the amount of One Hundred Dollars ($100) will be
independent consideration for the agreements of Seller set forth herein. The
▇▇▇▇▇▇▇ Money shall be refunded to the Purchaser if Purchaser decides, for any
reason, to not proceed with the purchase of the Property at any time prior to
the expiration of the Feasibility Period (as defined herein). Upon expiration of
the Feasibility Period, and upon written notice of the satisfaction of the
Feasibility Analysis (as defined herein), if Purchaser shall decide to proceed
with the purchase of the Property, then Purchaser shall deposit an additional
Ninety Thousand Dollars ($90,000) with the Escrow Agent, increasing the total
▇▇▇▇▇▇▇ Money to One Hundred Thousand Dollars ($100,000). After Purchaser
deposits the additional $90,000 with the Escrow Agent, the ▇▇▇▇▇▇▇ Money will
become non-refundable and be held by the Escrow Agent until the Closing. At the
Closing the ▇▇▇▇▇▇▇ Money shall be applied to the Purchase Price. As used in
this Agreement, the term "Refund" shall mean the ▇▇▇▇▇▇▇ Money, with interest,
shall be returned to Purchaser except for the $100, which Escrow Agent shall
deliver to Seller as consideration for Seller's entering into this Agreement.
3. PURCHASE PRICE. In consideration for the Property, Purchaser
shall pay Seller the sum of Ten Million Dollars ($10,000,000) as follows: (a) At
the Closing, Purchaser shall pay to Seller the sum of One Million Five Hundred
Thousand Dollars ($1,500,000) less the ▇▇▇▇▇▇▇ Money (the "Down Payment") and
(b) at the Closing, Purchaser shall deliver to Seller a Promissory Note in the
amount of Eight Million Five Hundred Thousand Dollars ($8,500,000) in a form
mutually agreeable to the Parties prior to the Closing (the "Note") and a Deed
of Trust in a form mutually agreeable to the Parties prior to the Closing (the
"Deed of Trust"). The Note
shall be for a term of six (6) years and shall bear interest at a rate of four
percent (4%) for the first two (2) years and at a rate of six percent (6%)
thereafter. Payments on the Note shall be paid quarterly beginning on the first
day of the twenty-fifth (25th) month after the Closing. The Note shall provide
for releases in amounts mutually agreeable to the Parties.
4. FEASIBILITY PERIOD. The "Feasibility Period" shall begin upon
receipt of all of the Due Diligence Information by Purchaser. The Feasibility
Period shall last for the greater of: (a) ninety (90) days; or (b) thirty (30)
days from the expiration of any appeal periods after the execution of a
development agreement. During the Feasibility Period, the Purchaser shall review
the Due Diligence Documents, the Survey, the Preliminary Title Report, perform
any Property Inspections deemed necessary by Purchaser, and perform any other
reviews or inspections deemed necessary by Purchaser to complete its Feasibility
Analysis. During the Feasibility Period, Purchaser shall hold meetings with
County and local officials to confirm the key issues necessary to develop the
Property.
5. DUE DILIGENCE DOCUMENTS. Seller shall, prior to the beginning
of the Feasibility Period or as soon as commercially practicable after the
Effective Date, provide to Purchaser the following:
(a) Any and all environmental reports, site assessments
or governmental notices relating to the environmental condition of the
Property which are in the possession of Seller (collectively, the
"Environmental Report");
(b) Any and all surveys pertaining to the Property
including boundary topographic and tree surveys;
(c) Copies of any and all correspondence or notices
regarding the Property's compliance or failure to comply with any
governmental ordinance, code or regulation pertaining thereto;
(d) A copy of any and all permits, licenses and similar
documents relating to the Property;
(e) Current agreement(s) with owner/partner(s) and
preliminary title reports;
(f) Current property tax bills;
(g) Subdivision maps, with conditions;
(h) All current covenants, conditions and restrictions
relating to the Property including public subdivision;
(i) Any soil, biological, geological and engineering
reports;
(j) EIR, specific plan(s) and conditions of approval;
(k) Governmental zoning letter, will serve letters and
development agreements;
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(l) Plans/costs regarding grading, improvements,
landscape and building architecture;
(m) Any other obligations of the ultimate lot buyers,
including fees, design guidelines, bonds, or dues, plus limitations for
the Purchaser;
(n) Any agreements between the Seller and the community
residents that obligate the Purchaser to perform in any way for such
residents, the local authority, and/or Homeowner's Associations;
(o) All disclosures regarding any significant impact on
the Property (i.e., faults, flood zones, moratoria, etc.).
The foregoing information shall hereinafter be referred to as the "Due
Diligence Information," however, the enumeration of the Due Diligence
Information above shall not be construed to limit the information that Purchaser
may require to conduct its evaluation of the Property. If, after reviewing the
Due Diligence Information, Purchaser deems it necessary to receive additional
information from Seller, then all such additional information shall also be
referred to as the "Due Diligence Information."
6. SURVEY. During the Feasibility Period, Purchaser will have the
right to enter onto the Property to have a new survey of the Property prepared
or to have Seller's survey of the Property updated at Purchaser's expense. If
the survey prepared or updated as provided above (the "Survey") shows matters
affecting marketability of title to the Property, Purchaser may object thereto
prior to the expiration of the Feasibility Period. Seller will have until
Closing to cure such matters; provided, however, that Seller will have until
five (5) business days after receipt of Purchaser's objections in which to
indicate to Purchaser in writing any and all of such matters which Seller will
decline to cure. If there are items Seller declines to cure, within five (5)
business days after receipt by Purchaser of Seller's response to Purchaser's
notice, Purchaser shall deliver notice to Seller in which Purchaser elects, with
respect to such items, to either (a) accept the Property with such matters as
Seller declines to cure (the "Permitted Survey Exceptions") with no change in
the terms of this Agreement, or (b) decline to accept the Property with such
matters. If Purchaser declines to accept the Property pursuant to option (b)
above, then, except as expressly provided herein, this Agreement will be null
and void, and the Escrow Agent shall refund all ▇▇▇▇▇▇▇ Money to Purchaser,
whereupon, the parties will have no further rights, duties, obligations or
liabilities to one another.
7. TITLE.
(a) Seller shall convey to Purchaser at Closing good and
marketable fee simple title in and to the Property. For the purposes of
this Agreement, "good and marketable fee simple title" shall mean fee
simple ownership which is: (i) free of all claims, liens and
encumbrances of any kind or nature whatsoever other than the Permitted
Title Exceptions (as defined below); and (ii) insurable by First
American Title Insurance Company (the "Title Company"), at then-current
standard rates under the standard form of ALTA owner's policy of title
insurance (ALTA Form B-1992), with the standard or printed exceptions
therein deleted and without exception other than for the Permitted
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Exceptions (the "Title Policy"). For the purposes of this Agreement,
the term "Permitted Title Exceptions" shall mean: (A) current city,
state and county ad valorem taxes not yet due and payable; (B)
easements for the installation or maintenance of public utilities
serving only the Property; (C) any other matters disclosed by the most
current survey then available except for such survey matters as Seller
is obligated to cure pursuant to this Agreement; and (D) any matter
Purchaser agrees to in writing.
(b) Within 20 days after the Effective Date, Seller
shall, at Seller's sole cost and expense, cause the Title Company to
issue and deliver to Purchaser a written commitment (the "Preliminary
Title Report") to issue the Title Policy in the full amount of the fair
market value of the Property. Seller shall pay the premium for the
Title Policy at or before the Closing. Purchaser agrees to pay for the
additional cost of an extended ALTA policy of title insurance, with a
mechanic's ▇▇▇▇ ▇▇▇▇▇▇ in the amount of the Purchase Price.
(c) If the Preliminary Title Report reveals non-Permitted
Title Exceptions, or any title defects, Purchaser may object by
notifying Seller in writing within five (5) days after the date of
receipt of the Preliminary Title Report. Seller will have until five
(5) business days after receipt of Purchaser's objections in which to
indicate to Purchaser in writing any non-Permitted Title Exceptions
raised by Purchaser which Seller will not cure. All other matters must
be cured prior to Closing and Seller shall pay at or prior to Closing
any and all liens, judgments and mortgages. If there are any items
Seller declines to cure, within five (5) business days after receipt by
Purchaser of Seller's response to Purchaser's notice, Purchaser shall
deliver notice to Seller in which Purchaser elects, with respect to
such items, to either (i) accept the Property with such matters as
Seller declines to cure with no change in the terms of this Agreement,
or (ii) decline to accept the Property with such matters. If Purchaser
declines to accept the Property pursuant to option (ii) above, then,
except as expressly provided herein, this Agreement will be null and
void, and the Title Agent shall refund of all ▇▇▇▇▇▇▇ Money to
Purchaser, whereupon, the parties will have no further rights, duties,
obligations or liabilities to one another under this Agreement.
8. PROPERTY INSPECTION.
(a) Purchaser and Purchaser's agents or contractors shall
have the right during the Feasibility Period to enter the Property at
reasonable times for the purpose of inspecting, testing and appraising
the Property and to review all books and records, contracts and other
operating documents relating to the Property, upon reasonable notice to
Seller. Seller shall provide access to all areas at the Property.
Purchaser shall keep the Property free and clear of any mechanic's or
materialman's liens arising out of such entry. Purchaser agrees to
indemnify and hold Seller harmless to the extent of its insurance
coverage under its regularly maintained insurance program from any
damages sustained by Seller resulting from the exercise by Purchaser or
its representatives of the rights granted in this Paragraph, which
agreement shall survive Closing or the earlier termination hereof. Upon
two (2) business days' prior notice, Seller agrees that all books,
records, leases and other operating documents shall be available at one
location at the Property. After the expiration of the Feasibility
Period, Purchaser shall have access to the
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Property to perform further inspections and to insure that the property
is being maintained in accordance with the terms of this Agreement.
(b) Should Purchaser after Purchaser's inspection of the
Property determine, in Purchaser's sole discretion, the Property to be
unsatisfactory for Purchaser's purposes, for any reason, Purchaser may
terminate this Agreement by written notice delivered to Seller on or
before the expiration of the Feasibility Period, in which case Escrow
Agent shall make a Refund of all ▇▇▇▇▇▇▇ Money to Purchaser and neither
party shall have any further obligations hereunder.
9. CONDITION OF THE PROPERTY AND OPERATION OF THE PROPERTY PRIOR
TO CLOSING. Seller agrees that on the Date of Closing the Property shall be in
the same physical condition as on the date of Purchaser's inspection of the
Property. In the event that there is a material change in the condition of the
Property between the date that Purchaser conducts its inspection and the Date of
Closing, then Purchaser shall have the option of terminating this Agreement and
all ▇▇▇▇▇▇▇ Money shall be returned to Purchaser and neither party shall have
any further obligation hereunder. Prior to Closing, Seller shall be responsible
for and shall maintain the property at Seller's sole cost and expense. Seller
shall indemnify and hold Purchaser harmless against all claims which may be made
relating to Seller's ownership or operation of the Property and any acts or
omissions occurring during Seller's ownership of the Property including all
obligations, losses, damages, penalties, costs and expenses related thereto
(including, but not limited to, Purchaser's reasonable attorney's fees).
Purchaser shall indemnify and hold Seller harmless against all claims which may
be made relating to Purchaser's ownership or operation of the Property and any
acts or omissions occurring during Purchaser's ownership of the Property
including all obligations, losses, damages, penalties, costs and expenses
related thereto (including, but not limited to, Seller's reasonable attorney's
fees).
10. SELLER'S REPRESENTATIONS AND WARRANTIES. As of the Effective
Date (unless a different date is specified), Seller represents and warrants to
Purchaser that:
(a) No person, firm, or entity (except as may be set
forth in this Agreement) has any rights in or right to acquire the
Property or any part thereof.
(b) Seller has received no written notice and has no
knowledge of any actual or threatened action, litigation, rezoning,
condemnation or proceeding by any person, entity or governmental agency
which would affect the Property.
(c) Seller has received no written notice and has no
knowledge of any governmental assessments concerning the Property which
are unpaid.
(d) Seller has and has no knowledge of and has received
no written notice of any violation of law, municipal or county
ordinances or codes, or other legal requirements with respect to the
Property.
(e) The Property does not violate environmental laws
applicable to it and the Property has not been used by Seller for the
generation, storage or handling of hazardous materials or contaminants
and there has been no release of a hazardous substance on or from the
Property.
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(f) Seller is or, as of the Closing Date will be, the
owner of fee simple, marketable title to the Property.
(g) None of the lots are located in a flood plain area.
(h) No improvements or repairs have been made or will be
made to the Property on behalf of the Seller during the 90 days
immediately preceding the Closing Date which will not be paid for in
full as of the Closing Date, and there will be no outstanding bills
incurred for labor, services and materials used in making improvements
or repairs on the Property on behalf of Seller or for services of
architects, surveyors or engineers engaged by Seller.
(i) As of the Closing Date, there will be no unpaid bills
or liens for past due taxes or assessments of any nature, for any
paving, sidewalk, curbing, water, sewer, street improvements, other
utilities or other services provided for the benefit of the Seller on
the Property of any kind against the Property, other than those items
which are pro-rated in connection with Closing.
(j) Seller has made no representations to any county or
local authorities or any homeowners in the community regarding the type
or style of the development of the Property, except, if any, for those
disclosed in writing to Purchaser during the Feasibility Period.
(k) All labor performed and materials supplied for the
Property have been fully paid by Seller, and no mechanic's lien or any
other lien may be claimed by any person for such labor or materials.
(l) Seller has no knowledge or information of any facts,
circumstances, or other conditions which do or would in any way
adversely affect the Property, or the successful operation of the
Property, except as specifically provided to Purchaser in writing
during the Feasibility Period.
All of the representations and warranties of Seller shall be true and
correct as of the Closing Date and Seller shall recertify the representations
and warranties on the Closing Date and shall indemnify and hold harmless the
other party for any and all loss, damages, costs or liabilities incurred due to
the inaccuracy thereof. This indemnity shall survive the Closing for a period of
one (1) year.
11. PURCHASER'S REPRESENTATIONS AND WARRANTIES. As of the
Effective Date (unless a different date is specified), Purchaser represents and
warrants to Seller that:
(a) Oasis is a limited liability company, duly organized,
validly existing, and in good standing under the laws of the State of
California, and has the full power and authority necessary to execute,
deliver and perform its obligations under this Agreement and the other
documents and instruments to be executed and delivered by Oasis
pursuant to this Agreement (the "Agreement Documents"). Oasis is duly
qualified to do business and is in good standing in California, which
includes every state of the United States in
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which the conduct of the business and the ownership of such properties
and assets requires it to be so qualified.
(b) The execution, delivery and performance of the
Agreement Documents to be executed and delivered by Oasis have been
duly authorized by all necessary action on the part of Oasis. The
Agreement Documents to be executed and delivered by Oasis have been or
will be, as the case may be, duly executed and delivered by Oasis and
constitute or will constitute the legal, valid and binding obligations
of Oasis, enforceable in accordance with their respective terms, except
as may be limited by bankruptcy, insolvency, or other laws affecting
creditors' rights generally, or as may be modified by a court of
equity.
(c) The execution, delivery and performance by Oasis of
the Agreement Documents to be executed and delivered by Oasis: (a) do
not require the consent of or notice to any third party; (b) do not
conflict with any provision of Oasis' articles of organization or
operating agreement; and (c) do not violate any law, ordinance,
regulation, ruling, judgment, order or injunction of any court or
governmental instrumentality to which Oasis is subject or by which
Oasis or any of its respective properties are bound.
All of the representations and warranties of Purchaser shall be true
and correct as of the Closing Date and Purchaser shall recertify the
representations and warranties on the Closing Date and shall indemnify and hold
harmless the other party for any and all loss, damages, costs or liabilities
incurred due to the inaccuracy thereof. This indemnity shall survive the Closing
for a period of one (1) year.
12. SELLER'S OBLIGATIONS PENDING CLOSING. Between the Effective
Date and the Closing Date (or termination hereof), Seller shall:
(a) Use all reasonable efforts as may be necessary to
effect the transactions contemplated by this Agreement.
(b) Maintain the Property in the same manner as is
presently done, subject to normal wear and tear, casualty, and
condemnation.
(c) Maintain existing insurance coverage or its
equivalent in force with respect to the Property.
(d) Not convey or contract to convey or voluntarily
encumber the Property or any portion thereof or interest therein.
(e) Not enter into any contract that will be an
obligation affecting the Property or any part thereof subsequent to the
closing without Purchaser's prior written consent which Purchaser
agrees not to unreasonably withhold or delay.
(f) Cooperate with, and assist in Purchaser's efforts to
obtain access to governmental agencies that have approval authority
concerning the development of the Property.
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(g) Perform all acts reasonably necessary to ensure the
assignment and transfer of any development and underground rights and
concessions from Seller to Purchaser at the Closing.
13. CLOSING. The closing of the transactions contemplated hereby
(the "Closing") shall occur on a date agreed to by the parties on a date not
more than sixty (60) days after the expiration of the Feasibility Period (the
"Closing Date").
14. CONVEYANCE.
(a) At the Closing, the parties will execute and deliver
all deeds and other documents necessary to consummate the transactions
contemplated by this Agreement, as more specifically set forth in this
section.
(b) At Closing, Seller shall convey the Property subject
only to the Permitted Survey Exceptions and the Permitted Title
Exceptions (collectively, the "Permitted Exceptions") and deliver to
Purchaser the following documents (all of which shall be duly executed,
sealed, witnessed and notarized where required):
(i) General Warranty Deed (the "Deed") conveying
title to the Land and Improvements subject only to the
Permitted Exceptions.
(ii) An assignment of any and all contracts
affecting the Property, together with any security or other
deposits pertaining thereto.
(iii) Blanket assignment and transfer of any and
all assignable warranties and guarantees from any contractors,
subcontractors, suppliers, manufacturers or distributors
relating to the Property.
(iv) The original of any and all assignable
licenses and permits related to the Property.
(v) An affidavit establishing that Seller is not
a "foreign person" for withholding purposes under the Internal
Revenue Code.
(vi) A reaffirmation of Seller's representations
and warranties in Paragraph 10 hereof.
(vii) An affidavit sufficient to cause Purchaser's
title insurer to remove standard printed exceptions in its
title policy for mechanic's liens, broker's liens, and rights
of parties in possession.
(viii) If the Survey has a legal description
different than that contained in Exhibit A, a quitclaim deed
based on the Updated Survey.
(ix) A closing statement.
(x) A termination of any and all contracts
related to the Property.
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(xi) A certificate dated as of the Closing Date
signed by ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ certifying that the
representations and warranties of Seller set forth herein are
true and correct in all material respects as of the Closing
Date and that Seller has fulfilled all of the conditions in
the Agreement.
(xii) Such other documentation as may be
reasonably required of Seller to effect the consummation of
the transactions contemplated hereby.
(c) At Closing, Purchaser shall deliver to Seller the
following (all of which shall be duly executed, sealed, witnessed and
notarized where required):
(i) The Down Payment, Note and Deed of Trust.
(ii) A copy of a good standing certificate
regarding Oasis certified by the Secretary of State of
California, dated within thirty (30) days prior to Closing.
(iii) A copy of a Resolution of the Board of
Directors, Managing Member or General Partner of Purchaser
authorizing the transactions contemplated herein, the
execution and delivery of all documents required to effectuate
such, and designating the person authorized to execute and
deliver such documents on behalf of Purchaser, together with a
Certificate of Incumbency with respect to such officers. In
the event that Purchaser is an entity other than a
corporation, Purchaser shall deliver certifications equivalent
to those required by the preceding sentence with respect to
such entity.
(d) At Closing, Escrow Agent will apply the ▇▇▇▇▇▇▇ Money
toward the Purchase Price.
15. POSSESSION. Seller shall give possession of the Property to
Purchaser on the Closing Date.
16. SETTLEMENT COSTS AND ADJUSTMENTS.
(a) Each party shall be responsible for its respective
attorneys' fees incurred by it in connection with this Agreement and
the transactions contemplated hereby. Purchaser shall be responsible
for the costs of any and all audits, tests, surveys or inspections of
the Property which it desires to make; intangible tax on any security
instrument recorded on behalf of Purchaser in connection with this
Agreement. Purchaser and Seller shall each be responsible for one-half
(1/2) of any title company escrow or investment fees with respect to
the ▇▇▇▇▇▇▇ Money. Seller shall be responsible for any and all transfer
taxes with respect to the General Warranty Deed; any title examination
fees and premiums in connection with obtaining title insurance on the
Property; and any and all recording costs.
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(b) The following items shall be prorated and adjusted
between Seller and Purchaser as of 11:59 p.m. on the date before the
Closing Date:
(i) All general real estate, personal property
and sanitary taxes which are liens upon the Property for the
year of Closing shall be prorated on the basis of the most
recent ascertainable tax ▇▇▇▇. Such taxes shall be adjusted,
if necessary, when the actual tax bills for the period covered
by the proration shall become available, and the appropriate
payment or credit shall be made between the Purchaser and
Seller within ten (10) days after demand. Seller shall pay all
assessments due and payable prior to the Closing Date;
Purchaser shall be responsible for those becoming payable
thereafter; and
(ii) No capital expenses will be prorated, Seller
will pay for any prepayment fees, recording costs, and other
costs incurred by Seller in connection with satisfaction of
any mortgage and other title matters it agrees to cure, and,
to the extent bills for expenses for which Seller is
responsible have not been received by Closing, Seller will
reimburse Purchaser within 10 days after demand (accompanied
by a copy of the ▇▇▇▇ in question).
17. CONDEMNATION. If on or before the Closing Date eminent domain
proceedings are instituted, or a notice of condemnation is given, with respect
to all or a portion of the Property, Seller shall promptly notify Purchaser
thereof. Purchaser shall have the right to terminate this Agreement by giving
written notice to Seller at any time after receiving written notice from the
Seller, but not later than twenty (20) days after receipt of such notice from
Seller, and in the event Purchaser exercises such right to terminate this
Agreement, the Escrow Agent shall make a Refund of all ▇▇▇▇▇▇▇ Money to
Purchaser, whereupon no party hereto shall have any further rights, obligations
or liabilities hereunder. In the event of any eminent domain proceedings, and
provided Purchaser has not elected to terminate this Agreement, the General
Warranty Deed shall be subject to any such eminent domain proceeding, such
taking shall be deemed a Permitted Exception, and Seller shall deliver to
Purchaser on the Closing Date an assignment in a form satisfactory to Purchaser
of all of Seller's right, title and interest in and to any eminent domain award.
18. SELLER'S REMEDY. If all of the conditions to Purchaser's
obligation to purchase the Property have been fulfilled or waived in writing by
Seller and if Purchaser defaults in performing under this Agreement, and such
default is for any other reason than Seller's default, Seller shall be entitled
to payment of the ▇▇▇▇▇▇▇ Money and interest thereon, not as a penalty, but for
full liquidation of damages, the parties declaring and agreeing that actual
damages are impossible to ascertain and that such is and represents a reasonable
forecast and settlement of such damages of Seller, reached after negotiation
between the parties. The parties agree that the sum stated above is liquidated
damages and shall be in lieu of any other relief to which the Seller might
otherwise be entitled by virtue of this Agreement or by operation of law or
otherwise, and shall represent Seller's sole and exclusive remedy for such
breach by Purchaser.
19. PURCHASER'S REMEDIES. In the event that Seller defaults in
performing under this Agreement and such default is not waived in writing by
Purchaser or should any of Seller's
10
warranties or representations be untrue in any material respect, Purchaser shall
elect either of the following as Purchaser's sole and exclusive remedy for such
breach:
(a) terminate this Agreement by written notice delivered
to Seller on or before the Closing Date, in which case the Escrow Agent
shall Refund all ▇▇▇▇▇▇▇ Money and interest thereon to Purchaser,
whereupon neither party shall have any further rights or remedies with
respect to this Agreement; or
(b) seek specific performance of this Agreement against
Seller.
Notwithstanding the foregoing, to the extent Seller has provided an
express warranty or indemnification, Purchaser's remedies will not be limited by
this Paragraph.
20. REAL ESTATE COMMISSIONS. Seller covenants and represents to
Purchaser that except for N/S Associates and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("Seller's
Brokers"), no brokers are claiming by, through or under Seller and none are
entitled to be paid a finder's fee, cooperation fee, commission or other
brokerage-type fee or similar compensation in connection with this Agreement and
the transactions contemplated hereby ("Brokerage Compensation"), and that Seller
has not had any dealings or agreements with any other individual or entity in
connection therewith. Purchaser covenants and represents to Seller that except
for ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Realtors and ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Buyer's Brokers") no
brokers are claiming by, through or under Purchaser and none are entitled to be
paid Broker's Compensation, and that Purchaser has not had any dealings or
agreements with any other individual or entity in connection therewith. If any
person or entity other than the Seller's Broker or Buyer's Brokers shall assert
a claim to such a fee or compensation against either Seller or Purchaser on
account of alleged employment as a finder, consultant or broker, then the party
to this Agreement by, through or under whom the person or entity claims such
employment shall indemnify, defend and hold harmless the other party against and
from any and all such claims and all costs, expenses and liabilities incurred in
connection with such claim or any action or proceeding brought thereon. Seller's
Broker and Buyer's Brokers agree that, without the prior written consent of
Seller and Purchaser, they will not make or permit to be made, or permit those
acting by, through or under them to make, any press release, tombstone or other
advertisement or other announcement, or disseminate any information to third
parties, relative to this transaction. The agreement contained in this Paragraph
shall survive the Closing or the earlier termination hereof.
The Brokerage Compensation shall be paid at the Closing as follows: One
Hundred Fifty Thousand Dollars ($150,000) to N/S Associates, One Hundred
Thousand ($100,000) to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, One Hundred Thousand Dollars
($100,000) to ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Realtors (▇▇▇ ▇▇▇▇▇▇), and One Hundred Thousand
Dollars ($100,000) to ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
21. ESCROW AGENT. Escrow Agent hereby accepts its designation as
Escrow Agent hereunder, acknowledges receipt of the ▇▇▇▇▇▇▇ Money, and agrees to
hold and disburse the ▇▇▇▇▇▇▇ Money as herein provided. Escrow Agent shall not
be liable for any acts taken in good faith, shall only be liable for its willful
default or action, or gross negligence, and may, in its sole discretion, rely in
good faith upon the written notices, communications, orders or instructions
given by any party hereto. In the event of a dispute between Purchaser and
Seller under this Agreement sufficient in the discretion of Escrow Agent to
justify its doing so, Escrow Agent
11
shall be entitled to tender into the registry or custody of any court of
competent jurisdiction the ▇▇▇▇▇▇▇ Money, and all other money or property in its
hands under the terms of this Agreement, together with the institution of such
legal proceedings as it deems appropriate, and thereupon be discharged from all
further duties under this Agreement. Except for failure to collect the ▇▇▇▇▇▇▇
Money, Seller and Purchaser hereby agree to indemnify and hold harmless Escrow
Agent against any and all losses, claims, damages, liabilities and expenses,
including, without limitation, reasonable costs of investigation and counsel
fees and disbursements which may be incurred by Escrow Agent in connection with
its acceptance of this appointment as Escrow Agent or the performance of its
duties hereunder, including, without limitation, any litigation arising from
this Agreement or involving the subject matter hereof; provided, however, that
if the matter in question arises from the negligence or willful act of Escrow
Agent, then Escrow Agent shall bear all such losses, claims, damages and
expenses. In the event Escrow Agent places in the registry or custody of any
court of competent jurisdiction the ▇▇▇▇▇▇▇ Money, it shall request that said
funds be placed in an interest bearing account for the benefit of the party
entitled thereto, and such interest will be paid to the party entitled to
receive the ▇▇▇▇▇▇▇ Money.
22. TIME PERIOD. Time is of the essence in this Agreement.
Provided, however, that if the time within which any action, consent, approval
or other activity contemplated, expires on a Saturday, Sunday or a national bank
holiday, such time period shall automatically be deemed extended to the first
day after the scheduled termination of such time period which is not a Saturday,
Sunday or national bank holiday.
23. NOTICES. All notices required or permitted to be given
hereunder shall be in writing, delivered in person or sent by reputable
overnight carrier for next business day delivery or by telefax (for which
receipt has been confirmed by the sender pursuant to the telefax machine's
confirmation software), and shall be effective on receipt. Notice shall be
directed as follows:
To Seller: ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Suite 27
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Purchaser: Oasis Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
12
With a copy to: ▇▇▇▇▇ ▇▇▇▇ LLP
Suite 200
225 Peachtree Street, N.E.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Mr. ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Escrow Agent: First American Title Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
24. ASSIGNMENT OF INTEREST. Until Closing or the earlier
termination hereof Seller shall not assign its right, title or interest in and
to the Property. Purchaser may not assign its right, title to interest in and to
this Agreement without the prior written consent of Seller. Notwithstanding the
foregoing Purchaser may, without the consent of Seller, assign this Agreement to
an entity under control or under common control of Purchaser.
25. SURVIVAL. The representations and warranties made herein shall
survive the closing of the transactions contemplated hereby for one (1) year.
26. CONSTRUCTION. This Agreement shall be governed by,
interpreted, construed and enforced in accordance with the laws of the State of
California. Seller and Purchaser acknowledge that they have both participated in
the drafting of this Agreement and that neither Seller nor Purchaser shall be
entitled to the benefit of the legal principle that a document is to be
construed against the person drafting it.
27. PERSONS BOUND. This Agreement will bind and inure to the
benefit of the parties and their respective successors and permitted assigns.
28. MODIFICATION/AMENDMENT. This Agreement contains the entire
agreement of the parties, supersedes all prior negotiations and agreements
between the parties, and may not be modified or amended except by a writing
executed by Seller and Purchaser.
29. COUNTERPARTS. This Agreement may be executed in one or more
counterparts each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
13
30. WAIVER. Except as otherwise provided herein, the failure of
Seller or Purchaser to insist upon or enforce any of their respective rights
hereunder shall not constitute a waiver thereof.
31. CAPTIONS. The captions used herein have been included for
convenience of reference only and shall not be deemed to vary the content of
this Agreement or limit the provisions or scope of any section or paragraph
hereof.
32. PRONOUNS. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular, or plural as the
identity of the person or entity may require.
33. SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but in the event that any provision of this Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
34. EXHIBITS. All of the Exhibits annexed hereto are incorporated
herein by reference and form a part of this Agreement.
35. USE OF THE WORD "HEREIN". Use of the words "herein", "hereof",
"hereunder" and any other words of similar import refer to this Agreement as a
whole and not to any particular article, section or other paragraph of this
Agreement unless specifically noted otherwise in this Agreement.
36. THIRD PARTIES. This Agreement shall not be deemed to confer in
favor of any third parties any rights whatsoever as third-party beneficiaries,
the parties hereto intending by the provisions hereof to confer no such benefits
or status.
37. CONFIDENTIALITY. Purchaser and Seller expressly acknowledge
and agree that this Agreement, all financial information regarding Purchaser and
any documents and information exchanged between Purchaser and Seller shall be
confidential in nature and shall be kept in strict confidence. Purchaser and
Seller agree that such confidential materials shall only be transmitted to
Purchaser's and Seller's representatives and their respective lenders who need
to know the information in the materials for the purpose of evaluating the
Property or to prepare to close the transactions contemplated hereby. Purchaser
and Seller, for the benefit of each other, hereby agree prior to the Closing
Date, they will not release or cause or permit to be released any press notices,
publicity (oral or written) or advertising promotion relating to, or otherwise
announce or disclose or cause or permit to be announced or disclosed, in any
manner whatsoever, the terms, conditions, or substance of this Agreement or the
transactions contemplated herein, without first obtaining the written consent of
the other parties hereto.
38. ATTORNEY'S FEES. In any action at law or in equity, including
an action for declaratory relief, brought to enforce or interrupt the provisions
of this Agreement, the prevailing party shall be entitled to recover reasonable
attorney's fees from the other party, which fees may be set by the court in the
trial of such action or may be enforced in a separate action brought for that
purpose, and which fees shall be in addition to any other relief which may be
awarded.
14
[Signature page to Real Estate Sale and Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed, to be effective as of Effective Date.
SELLER:
----------------------------------------
▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
PURCHASER:
OASIS GROUP, INC.
By
Name
Title
[Signatures continued on following page]
15
[Signature page to Real Estate Sale and Purchase Agreement]
The undersigned Escrow Agent hereby acknowledges receipt of the ▇▇▇▇▇▇▇
Money referred to in Paragraph 2 of the preceding Agreement and agrees to the
terms set forth in Paragraph 21 thereof.
ESCROW AGENT:
----------------------------------------
By
Name
Title
16
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
