EXHIBIT 99.4
MARCUS & MILLICHAP
PURCHASE AGREEMENT
THIS DOCUMENT IS MORE THAN A RECEIPT FOR MONEY. IT IS INTENDED TO BE A LEGALLY
BINDING AGREEMENT. READ IT CAREFULLY.
Marcus & Millichap Real Estate Investment Brokerage Company ("Agent"), as agent
for Seller on Record ("Seller"), will receive from Xxxx and Xxxxx Xxxxx and/or
assignee ("Buyer") the sum of Fifty Thousand dollars ($50,000) in the form of
check. This sum is a deposit ("Deposit") to be applied to the purchase price of
that certain real property (referred to as the "Property") located in the City
of Phoenix, County of Maricopa, State of Arizona, and more particularly
described as follows:
A SIXTEEN THOUSAND THREE HUNDRED SEVENTY FOUR SQUARE FOOT OFFICE BUILDING
LOCATED AT:
0000 X. 0XX XXXXXX
XXXXXXX, XX 00000
TERMS AND CONDITIONS
Seller agrees to sell the Property, and Buyer agrees to purchase the Property,
on the following terms and conditions:
1) PURCHASE PRICE: The purchase price for the Property is One Million
Eight Hundred Thirty Five Thousand dollars ($1,835,000). Buyer's
Deposit shall be delivered to Agent upon Seller's execution of this
Purchase Agreement (the "Agreement"). Agent shall deliver and deposit
same in escrow as provided in Paragraph 3 below. The balance of the
purchase price shall be payable at close of escrow pursuant to the
terms stated below.
2) DOWN PAYMENT: Buyer shall make a cash down payment of One Million Eight
Hundred Thirty Five Thousand dollars ($1,835,000).
3) ESCROW: Within Two (2) calendar days after the Effective Date (as
defined in Paragraph 36 below) Buyer and Seller shall open escrow with
Seller's Choice (the "Escrow Holder") by the simultaneous deposit of
a copy of this Agreement and Buyer's Deposit with the Escrow Holder.
Within Ten (10) calendar days from Effective Date (as defined in
paragraph 36 below) Seller and Buyer agree to prepare and execute such
escrow instructions as may be necessary and appropriate to close the
transaction. Should said instructions fail to be executed as required.
Escrow Holder shall and is hereby directed to close escrow pursuant to
the terms and conditions of this Agreement. Close of escrow (or the
"Closing Date", which shall mean the date on which the deed
transferring title is recorded) shall occur within Seventy (70)
calender days after the Effective Date (as defined in Paragraph 36
below). Escrow fee shall be paid by 1/2 Buyer, 1/2 Seller. All other
closing costs shall be paid in accordance with the custom in the
country in which the Property is located.
4) PRORATIONS: Rents, real property taxes, premiums on insurance
acceptable to Buyer, interest on any debt being assumed or taken
subject to by Buyer, and any other expenses of the Property shell be
prorated as of the Closing Date. Security deposits, advance rentals,
and the amount of any future lease credits shall be credited to Buyer.
The amount of any bond or assessment which is a lien and not
customarily paid with real property taxes shall be paid Seller.
5) TITLE: Within Five (5) calendar days after the Effective Date of
this Agreement, Seller shall procure and cause to be delivered to Buyer
a preliminary title report issued by Seller's Choice (the"Title
Company") on the Property. Within Five (5) calendar days following
receipt thereof, Buyer shall either approve in writing the exceptions
contained in said title report or specify in writing any exceptions to
which Buyer reasonably objects. If Buyer objects to any exceptions.
Seller shall, within Five (5) calendar days after receipt of Buyer's
objections, deliver to Buyer written notice that either (i) Seller
will, at Seller's expense, attempt to remove the exception(s) to which
Buyer has objected before the Closing Date or (ii) Seller is unwilling
or unable to eliminate said exception(s). If Seller fails to so notify
Buyer or is unwilling or unable to remove any such exception by the
Closing Date, Buyer may elect to terminate this Agreement and receive
back the entire Deposit, in which event Buyer and Seller shall have no
further obligations under this Agreement; or, alternatively, Buyer may
elect to purchase the Property subject to such exception(s).
Seller shall convey by grant deed to Buyer (or to such other person or
entity as Buyer may specify) marketable fee title subject only to the
exceptions approved by Buyer in accordance with this Agreement. Title
shall be Insured by a standard California Land Title Association
owner's policy of title insurance issued by the Title Company in the
amount of the purchase price with premium paid by Seller.
BUYER'S INITIALS_______ SELLER'S INITIALS_______
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6) FINANCING CONTINGENCIES:
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6.1) NO FINANCING CONTINGENCY -- ALL CASH:
7) PEST CONTROL CONTINGENCIES:
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8) INSPECTION CONTINGENCIES:
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8.1) BOOKS AND RECORDS: Seller agrees to provide Buyer with items a-h listed
below within Three (3) calendar days following the Effective Date:
a. All rental agreements, leases, service contracts, insurance
policies, latest tax xxxx(s) and other written agreements or
notices which affect the Property.
b. The operating statements of the Property for the Twelve (12)
calendar months immediately preceding the Effective Date
hereof.
c. For COMMERCIAL PROPERTIES, copies of whatever documents the
Seller may have regarding the financial condition, business
prospects or prospective continued occupancy of any tenant
(including but not limited to financial statements, credit
reports, etc.).
d. All notes and security instruments affecting the Property.
e. A complete and current rent roll, including a schedule of all
tenant deposits and fees.
f. A written inventory of all items of Personal Property to be
conveyed to Buyer at close of escrow.
g. A report by N H D, a professional provider, containing the
Natural Hazard Disclosures (as defined below) concerning the
Property. "Natural Hazard Disclosures" shall mean whether the
Property is located within: (1) Special Flood Hazard Area; (2)
Dam Failure Inundation Area; (3) Earthquake Fault Zone; (4)
Seismic Hazard Zone; (5) High Fire Severity Area; and/or (6)
Wildland Fire Area. Seller represents and warrants that,
unless otherwise noted by Seller to Buyer in writing, Seller
is unaware of any inaccuracies in the Natural Hazard
Disclosures.
h. The following items, Environmental Phase One.
Buyer shall acknowledge receipt of these items in writing. Buyer shall
have Ten (10) calendar days following receipt thereof to review and
approve in writing each of these items. If Buyer fails to approve these
items within the specified time, this Agreement shall be rendered null
and void, Buyer's entire deposit shall be returned, and Buyer and
Seller shall have no further obligations hereunder.
8.2) PHYSICAL INSPECTION: Buyer shall have Ten (10) calendar days following
the Effective Date to inspect the physical condition of the Property,
including, but not limited to the soil conditions and the presence or
absence of lead-based paint and other hazardous materials on or about
the Property, and to notify the Seller in writing that Buyer approves
same. If Buyer fails to approve the physical condition of the Property
within the specified time, this Agreement shall be null and void,
Buyer's entire deposit shall be returned, and Buyer and Seller shall
have no further obligations hereunder.
8.3) STATE AND LOCAL LAWS: Buyer shall have Ten (10) calendar days following
the Effective Xxxx to investigate State and local laws to determine
whether the Property must be brought into compliance with minimum
energy conservation or safety standards or similar retrofit
requirements as a condition of sale or transfer and the cost thereof,
and to notify Seller that Buyer approves same. If approved by Buyer,
Buyer shall comply with and pay for these requirements. If Buyer fails
to approve these requirements, if any, within the specified time, this
Agreement shall be rendered null and void, Buyer's entire Deposit shall
be returned, and Buyer and Seller shall have no further obligations
hereunder.
9) DEPOSIT INCREASE: Upon removal of the inspection contingencies set
forth in paragraph(s) 5, 8.1, 8.2, 8 .3 hereof, Buyer shall deposit in
Escrow sufficient funds to increase the Deposit to One Hundred Thousand
dollars ($ 100,000). The entire Deposit shall be credited to the
purchase price at the close of escrow unless otherwise provided herein.
10) DEPOSIT TRANSFER: Buyer's Deposit shall remain in trust, if held by
Agent, or in escrow if previously deposited in escrow, until removal of
the inspection contingencies set forth in paragraph(s) 5, 8.1, 8.2, 8.3
hereof. Upon removal of said contingencies, Buyer's Deposit shall be
delivered to escrow by Agent (if same has been held in trust by Agent);
a grant deed duly executed by Seller, sufficient to convey title to
Buyer, shall be delivered to escrow by Seller; and Buyer and Seller
shall execute escrow instructions directing the Escrow Holder to
release immediately from escrow and deliver to Seller Buyer's entire
Deposit (including increases, if any). Seller shall hold Buyer's
Deposit subject to the remaining terms and conditions of this
Agreement. If the Property is made unmarketable by Seller, or acts of
God, the Deposit shall be returned to Buyer and deed shall be returned
to Seller.
11) ESTOPPEL CERTIFICATE CONTINGENCY (LEASED PROPERTIES):
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BUYER'S INITIALS_______ SELLER'S INITIALS_______
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12) LEASED PROPERTY PRORATIONS: Rents actually collected (prior to closing)
will be prorated as of the Closing Date and rent collected thereafter
applied first to rental payments then owed the Buyer and their
remainder paid to the Seller. All free rent due any tenant at the close
of escrow for rental periods after the closing shall be a credit
against the Purchase Price. Other Income and expenses shall be prorated
as follows: as customary.
13) PERSONAL PROPERTY: Title to any personal property to be conveyed to
Buyer in connection with the sale of the Property shall be conveyed to
Buyer by Xxxx of Sale on the Closing Date free and clear of all
encumbrances (except those approved by Buyer as provided above). The
price of these Items shall be included in the Purchase Price for the
Property, and Buyer agrees to accept all such personal property in "as
is" condition.
14) CONDITION OF PROPERTY: It is understood and agreed that the Property is
being sold "as is"; that Buyer has, or will have prior to the Closing
Date, inspected the Property; and that neither Seller nor Agent makes
any representation or warranty as to the physical condition or value of
the Property or its suitability for Buyer's intended use.
BUYER'S INITIALS_______ SELLER'S INITIALS_______
15) RISK OF LOSS: Risk of loss to the Property shall be borne by Seller
until title has been conveyed to Buyer. In the event that the
improvements on the Property are destroyed or materially damaged
between the Effective Date of this Agreement and the date title is
conveyed to Buyer, Buyer shall have the option of demanding and
receiving back the entire Deposit and being released from all
obligations hereunder, or alternatively, taking such improvements as
Seller can deliver. Upon Buyer's physical inspection and approval of
the Property, Seller shall maintain the Property through close of
escrow in the same condition and repair as approved, reasonable wear
and tear excepted.
16) POSSESSION: Possession of the Property shall be delivered to Buyer on
Closing Date.
17) LIQUIDATED DAMAGES: BY PLACING THEIR INITIALS IMMEDIATELY BELOW, BUYER
AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT
TO FIX ACTUAL DAMAGES IN THE EVENT OF A DEFAULT BY BUYER, THAT THE
AMOUNT OF BUYER'S DEPOSIT HEREUNDER (AS SAME MAY BE INCREASED BY THE
TERMS HEREOF) IS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES
IN THE EVENT OF BUYER'S DEFAULT, END THAT UPON BUYER'S DEFAULT IN ITS
PURCHASE OBLIGATIONS UNDER THIS AGREEMENT, NOT CAUSED BY ANY BREACH BY
SELLER, SELLER SHALL BE RELEASED FROM ITS OBLIGATIONS TO SELL THE
PROPERTY AND SHALL RETAIN BUYER'S DEPOSIT (AS SAME MAY BE INCREASED BY
THE TERMS HEREOF) AS LIQUIDATED DAMAGES, WHICH SHALL BE SELLER'S SOLE
AND EXCLUSIVE REMEDY IN LAW OR AT EQUITY FOR BUYER'S DEFAULT.
BUYER'S INITIALS_______ SELLER'S INITIALS_______
18) SELLER EXCHANGE: Buyer agrees to cooperate should Seller elect to sell
the Property as part of a like-kind exchange under IRC SECTION 1031.
SELLER'S CONTEMPLATED EXCHANGE SHALL not impose upon Buyer any
additional liability or financial obligation, and Seller agrees to hold
Buyer harmless from any liability that might arise from such exchange.
This Agreement is not subject to or contingent upon Seller's ability to
acquire a suitable exchange property or effectuate an exchange. In the
event any exchange contemplated by Seller should fail to occur, for
whatever reason, the sale of the Property shall nonetheless be
consummated as provided herein.
19) BUYER EXCHANGE: Seller agrees to cooperate should Buyer elect to
purchase the Property as part of a like-kind exchange under IRC Section
1031. Buyer's contemplated exchange shall not impose upon Seller any
additional liability or financial obligation, and Buyer agrees to hold
Seller harmless from any liability that might arise from such exchange.
This Agreement is not subject to or contingent upon Buyer's ability to
dispose of its exchange property or effectuate an exchange. In the
event any exchange contemplated by Buyer should fail to occur, for
whatever reason, the sale of the Property shall nonetheless be
consummated as provided herein.
20) DISCLOSURE OF REAL ESTATE LICENSURE:
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21) AUTHORIZATION: Buyer and Seller authorize Agent to disseminate sales
information regarding this transaction, including the purchase price of
the Property.
22) AGENCY DISCLOSURE:
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22.1) DUAL AGENCY: Seller and Buyer understand that Agent represents both
Seller and Buyer in the sale of the subject Property, and acknowledge
that they have authorized and consented to such dual representation.
23) OTHER BROKERS: Buyer and Seller agree that in the event any broker
other than Agent or a broker affiliated with Agent is involved in the
disposition of the Property, Agent shall have no liability to Buyer or
Seller for the acts or omissions of such other broker, who shall not be
deemed to be a subagent of Agent.
BUYER'S INITIALS_______ SELLER'S INITIALS_______
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24) LIMITATION OF LIABILITY: Except for Agent's gross negligence or willful
misconduct. Agent's liability for any breach or negligence in its
performance of this Agreement shall be limited to the greater of
$50,000 or the amount of compensation actually received by Agent in any
transaction hereunder.
25) SCOPE OF AGENT'S AUTHORITY AND RESPONSIBILITY: Agent shall have no
authority to bind either Buyer or Seller to any modification or
amendment of this Agreement. Agent shall not be responsible for
performing any due diligence or other investigation of the Property on
behalf of either Buyer or Seller, or for providing either party with
professional advice with respect to any legal, tax, engineering,
construction or hazardous materials issues. Except for maintaining the
confidentiality of any information regarding Buyer or Seller's
financial condition and any future negotiations regarding the terms of
this Purchase Agreement, Buyer and Seller agree that their relationship
with Agent is at arm's length and is neither confidential nor fiduciary
in nature.
26) BROKER DISCLAIMER: Buyer and Seller acknowledge that, except as
otherwise expressly stated herein. Agent has not made any
investigation, determination, warranty or representation with respect
to any of the following: (a) the financial condition or business
prospects of any tenant, or such tenant's intent to continue or renew
its tenancy in the Property; (b) the legality of the present or any
possible future use of the Property under any federal, state or local
law: (c) pending or possible future action by any governmental entity
or agency which may affect the Property; (d) the physical condition of
the Property, including but not limited to, soil conditions, the
structural integrity of the improvements, and the presence or absence
of fungi or wood-destroying organisms: (e) the accuracy or completeness
of income and expense information and projections, of square footage
figures, and of the texts of leases, options, and other agreements
affecting the Property: (f) the possibility that lease, options or
other documents exist which affect or encumber the Property and which
have not been provided or disclosed by Seller; or (g) the presence or
location of any hazardous materials on or about the Property,
including, but not limited to, asbestos, PCB's, or toxic, hazardous or
contaminated substances, and underground storage tanks.
Buyer agrees that investigation and analysis of the foregoing matters
is Buyer's sole responsibility and that Buyer shall not hold Agent
responsible therefore. Buyer further agrees to reaffirm its
acknowledgment of this disclaimer at close of escrow and to confirm
that it has relied upon no representations of Agent in connection with
its acquisition of the Property.
BUYER'S INITIALS______ SELLER'S INITIALS_______
27) LEAD-BASED PAINT HAZARDS: Every purchaser of any interest in
residential real property on which a residential dwelling was built
prior to 1978 is notified that such property may present exposure to
lead from lead-based paint that may place young children at risk of
developing lead poisoning. Lead poisoning in young children may produce
permanent neurological damage, including learning disabilities, reduced
intelligence quotient, behavioral problems, and impaired memory. Lead
poisoning also poses a particular risk to pregnant women. The seller of
any interest in residential real property is required to provide the
buyer with any information on lead-based paint hazards. A risk
assessment or inspection for possible lead-based paint hazards is
recommended prior to purchase. (SELLER TO INITIAL ONE BELOW):
(_______) 1. Seller warrants that the Property was constructed after
1978.
(_______) 2. Seller is not sure when the Property was constructed
and/or has reason to believe that lead-based paint hazards may be
present (ATTACH "LEAD-BASED PAINT DISCLOSURE ADDENDUM TO PURCHASE
AGREEMENT").
28) MOLD/ALLERGEN ADVISORY AND DISCLOSURE: Buyer is advised of the possible
presence within properties of toxic(or otherwise illness-causing)
molds, fungi, spores, pollens and/or other botanical substances and/or
allergens (e.g. dust, pet dander, insect material, etc.). These
substances may be either visible or invisible, may adhere to walls and
other accessible and inaccessible surfaces, may be embedded in carpets
or other fabrics, may become airborne, and may be mistaken for other
household substances and conditions. Exposure carries the potential of
possible health consequences. Agent strongly recommends that Buyer
contact the State Department of Health Services for further information
on this topic.
Buyer is advised to consider engaging the services of an environmental
or industrial hygienist (or similar, qualified professional) to inspect
and test for the presence of harmful mold, fungi, and botanical
allergens and substances as part of Buyer's physical condition
inspection of the Property, and Buyer is further advised to obtain from
such qualified professionals information regarding the level of
health-related risk involved, if any, and the advisability and
feasibility of eradication and abatement, if any.
Buyer is expressly cautioned that Agent has no expertise in this area
and is, therefore, incapable of conducting any level of inspection of
the Property for the possible presence of mold and botanical allergens.
Buyer acknowledges that Agent has not made any investigation,
determination, warranty or representation with respect to the possible
presence of mold or other botanical allergens, and Buyer agrees that
the investigation and analysis of the foregoing matters is Buyer's sole
responsibility and that Buyer shall not hold Agent responsible
therefore.
BUYER'S INITIALS______ SELLER'S INITIALS_______
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29) ARBITRATION OF DISPUTES: IF A CONTROVERSY ARISES WITH RESPECT TO THE
SUBJECT MATTER OF THIS PURCHASE AGREEMENT OR THE TRANSACTION
CONTEMPLATED HEREIN (INCLUDING BUT NOT LIMITED TO THE PARTIES' RIGHTS
TO THE DEPOSIT OR THE PAYMENT OF COMMISSIONS AS PROVIDED HEREIN),
BUYER, SELLER AND AGENT AGREE THAT SUCH CONTROVERSY SHALL BE SETTLED BY
FINAL, BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL
ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AND
JUDGEMENT UPON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED
IN ANY COURT HAVING JURISDICTION THEREOF.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE OUT OF THE MATTER INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW
AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE
LITIGATED IN COURT OR JURY TRAIL. BY INITIALING IN THE SPACE BELOW YOU
ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH
RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO
THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY
OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION TO NEUTRAL ARBITRATION.
BUYER'S INITIALS _________ SELLER'S INITIALS_______
30) SUCCESSORS & ASSIGNS: This Agreement and any addends hereto shall be
binding upon and inure to the benefit of the heirs, successors, agents,
representatives and assigns, of the parties hereto.
31) ATTORNEYS' FEES: In any litigation, arbitration or other legal
proceeding which may arise between any of the parties hereto, Including
Agent, the prevailing party shall be entitled to recover its costs,
including costs of arbitration, and reasonable attorneys' fees in
addition to any Other relief to which such party may be entitled.
32) TIME: Time is of the essence of this Agreement.
33) NOTICES: All notices required or permitted hereunder shall be given to
the parties in writing (with a copy to Agent) at their respective
addresses as set forth below. Should the date upon which any act
required to be performed by this Agreement fall on a Saturday, Sunday
or holiday, the time for performance Shall be extended to the next
business day.
34) FOREIGN INVESTOR DISCLOSURE: Seller and Buyer agree to execute and
deliver any instrument, affidavit or statement, and to perform any act
reasonably necessary to carry out the provisions of this Foreign
Investment in Real Property Tax Act and regulations promulgated
thereunder
35) ADDENDA: Any addendum attached hereto and either signed or initialed by
the parties shall be deemed a part hereof. This Agreement, including
addenda, if any, expresses the entire agreement of the parties and
supersedes any and all previous agreements between the parties with
regard to the Property. There are no other understandings, oral or
written, which in any way alter or enlarge its terms, and there are no
warranties or representations of any nature whatsoever, either express
or implied, except as set forth herein. Any future modification of this
Agreement will be effective only if it is in writing and signed by the
party to be charged.
36) ACCEPTANCE AND EFFECTIVE DATE: Buyer's signature hereon constitutes an
offer to Seller to purchase the Property on the terms and conditions
set forth herein. Unless acceptance hereof is made by Seller's
execution of this Agreement and delivery of a fully executed Copy to
Buyer, either in person or by mail at the address shown below, on or
before Friday, November 7, 2003, this offer shall be null and
void, the Deposit shall be returned to Buyer, and neither Seller nor
Buyer shall have any further rights or obligations hereunder. Delivery
shall be effective upon personal delivery to Buyer or Buyer's agent or,
if by mail, on the next business day following the date of postmark.
The "Effective Date" of this Agreement shall be the later Of (a) the
date on which Seller executes this Agreement, or (b) the date of or
written acceptance (by either Buyer or Seller) of the final
counter-offer submitted by the other party.
37) GOVERNING LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
38) OTHER TERMS AND CONDITIONS;
THE PARTIES ARE ADVISED TO CONSULT THEIR RESPECTIVE ATTORNEYS WITH REGARD TO THE
LEGAL EFFECT AND VALIDITY OF THIS PURCHASE AGREEMENT.
The undersigned Buyer hereby offers and agrees to purchase the above-described
Property for the price and upon the terms and conditions herein stated.
BUYER'S INITIALS_____________ SELLER'S INITIALS_____________
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This offer is made by Buyer to Seller on this 3rd day of October, 2003. The
undersigned Buyer hereby acknowledges receipt of an executed copy of this
Agreement, including the Agency Disclosure contained in Paragraph 22, above.
BUYER: /s/ Xxxx Xxxxx ADDRESS: On file
-----------------------------
Xxxx Xxxxx
DATE: October 3, 2003 TELEPHONE: On file
BUYER: ADDRESS: On file
-----------------------------
DATE: October 3, 2003 TELEPHONE: On file
SELLER'S ACCEPTANCE AND AGREEMENT TO PAY COMMISSION
The undersigned Seller accepts the foregoing offer and agrees to sell the
Property to Buyer for the price and on the terms and conditions stated herein.
Seller acknowledges receipt of an executed copy of this Agreement and authorizes
Agent to deliver an executed copy to Buyer.
Seller reaffirms its agreement to pay to Agent a real estate brokerage
commission pursuant to the terms of that certain Representation Agreement
between Agent and Seller dated August 22, 2003, which shall remain in full force
and effect. Said Commission is payable in full on the Closing Date and Shall be
paid in cash through escrow, Escrow Holder is directed to make such payment to
Agent from Seller's proceeds of sale. The provisions of this paragraph may not
be amended or modified without the written consent of Agent.
Seller acknowledges and agrees that payment of said commission is not contingent
upon the closing of the transaction contemplated by this Agreement, and that, in
the event completion of the sale is prevented by default of Seller, then Seller
shall immediately be obligated to pay to Agent the entire commission. Seller
agrees that in the event completion of the sale is prevented by default of
Buyer, then Seller shall be obligated to pay to Agent an amount equal to one
half of any damages or other monetary compensation (including liquidated
damages) collected from Buyer by suit or otherwise as a consequence of Buyer's
default, if and when such damages or other monetary compensation are collected:
provided, however, that the total amount paid to Agent by Seller shall not in
any case exceed the brokerage commission hereinabove set forth. Seller
acknowledges and agrees that the existence of any direct claim which Agent may
have against Buyer in the event of Buyer's default shall not alter or in any way
limit the obligations of Seller to Agent as set forth herein.
SELLER: /s/ Xxxxxxx X. Xxxxxxx ADDRESS: on file
------------------------------- ---------------------
Seller on record
DATE: 11/7/03 TELEPHONE: on file
Agent accepts and agrees to the foregoing. Agent represents and warrants that
Agent is unaware of any incorrect or incomplete information contained in
any Natural Hazard Disclosures.
AGENT: MARCUS & MILLICHAP REAL ESTATE INVESTMENT BROKERAGE COMPANY
BY:
----------------------------------- ADDRESS: 00000 Xxxxxxx Xxxx.
Xxx Xxxxxxxxxx Xxxxxx, XX 00000
DATE: ________________________________ TELEPHONE: 000-000-0000
NO REPRESENTATION IS MADE BY AGENT AS TO THE LEGAL OR TAX EFFECT OR VALIDITY OF
ANY PROVISION OF THIS PURCHASE AGREEMENT. A REAL ESTATE BROKER IS QUALIFIED TO
GIVE ADVICE ON REAL ESTATE MATTERS. IF YOU DESIRE LEGAL, FINANCIAL OR TAX
ADVICE, CONSULT YOUR ATTORNEY, ACCOUNTANT OR TAX ADVISOR.
BUYER'S INITIALS __________ SELLER'S INITIALS __________
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FIRST AMENDMENT TO PURCHASE AGREEMENT
This First Amendment to Purchase Agreement (this "Amendment") is
entered into by Xxxx and Xxxxx Xxxxx and/or assignee ("Buyer"), and Zila, Inc.
a Delaware corporation ("Seller"), as of November 6, 2003. By this Amendment,
the parties agree that the Purchase Agreement of on or about even date herewith
between them (the "Agreement") is amended as follows:
1. In Section 3, the "Escrow Holder" is Chicago Title Insurance
Company (Mr. DcWayne C, Xxxxxxx, CSEO), 00 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000.
2. In Section 5, the "Title Company" is Chicago Title Insurance
Company.
3. In Section 5, at the end of the first paragraph, the following
provision is inserted:
Notwithstanding the preceding sentence, if Seller sends notice
to Buyer of Seller's, unwillingness or inability to eliminate
said exception(s), Buyer shall have five (5) days after
receipt of such notice to notify Seller in writing of Buyer's
election to terminate this Agreement and receive back the
entire Deposit, in which event Buyer and Seller shall have no
further obligations under this Agreement, In the event Buyer
does not provide such written notice by such deadline, Buyer
shall be deemed to have waived its objections to the
exception(s) in question, and to have elected to purchase the
Property subject to such exception(s).
4. In Section 5, in the second paragraph, the words "California
Land Title Association" are deleted and replaced with the words "coverage
A.L.T.A."
5. In Section 7, the word "None" is inserted after the colon.
6. Section 8.1 is deleted in its entirety and replaced with the
following text:
8.1 BOOKS AND RECORDS: Buyer shall have ten (10) calendar
days following the Effective Date to inspect and copy any and
all information, data, documents and other materials in
Seller's possession or reasonably available to Seller relating
to the Property, including all reports, engineering and/or
survey work, preliminary and final plats relating to the
Property, and land use planning information relating to the
Property. In the event that Buyer, after conducting its review
of such materials, determines at any time within the ten (10)
calendar day following the Effective Date, in its sole
discretion, that any such items are not acceptable, Buyer
shall have the right to cancel the Agreement by written notice
to Seller and Escrow Holder, in which event Escrow Holder
shall return to Buyer the entire Deposit, and Buyer and Seller
shall have no further obligations hereunder. If Buyer does not
elect to
1
cancel the Agreement in the manner set forth in the preceding
sentence, Buyer shall be deemed to have approved its review of
all such documents and materials, and to have elected to
proceed with the purchase of the Property.
7. In Section 8.2, the last sentence is deleted and replaced with
the following text:
In the event that Buyer, after conducting its review of such
conditions, determines at any time within the ten (10)
calendar day period following the Effective Date, in its sole
discretion, that any such conditions are not acceptable, Buyer
shall have the right to cancel the Agreement by written notice
to Seller and Escrow Holder, on or prior to me end of the ten
(10) calendar day period following the Effective Date, in
which event Escrow Holder shall return to Buyer the entire
Deposit, and Buyer and Seller shall have no further
obligations hereunder. If Buyer does not elect to cancel the
Agreement in the manner set forth in the preceding sentence,
Buyer shall be deemed to have approved its review of all such
conditions, and to have elected to proceed with the purchase
of the Property.
8. In Section 8.3, the last sentence is deleted and replaced with
the following text:
In the event that Buyer, after conducting its review of such
requirements, determines at any time within the ten (10)
calendar day period following the Effective Date, in its sole
discretion, that any such requirements are not acceptable,
Buyer shall have the right to cancel the Agreement by written
notice to Seller and Escrow Holder, on or prior to the end of
the ten (10) calendar day period following the Effective Date,
in which event Escrow Holder shall return to Buyer the entire
Deposit, and Buyer and Seller shall have no further
obligations hereunder. If Buyer does not elect to cancel the
Agreement in the manner set forth in the preceding sentence,
Buyer shall be deemed to have approved its review of all such
requirements, and to have elected to proceed with the purchase
of the Property.
9. In Section 11, the word "None" is inserted after the colon.
10. Section 13 is deleted in its entirety, the parties hereby
confirming that no personal property is being conveyed in connection with the
transaction.
11. Section 16 is deleted in its entirety, the parties hereby
confirming that possession of the Property shall be retained by Seller on and
after the Closing Date pursuant to the Lease defined below).
12. The parties agree that Section 17 shall not limit any
indemnification obligation of buyer.
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13. Section 24 is deleted in its entirety.
14. In Section 25, all of the text after the first sentence
thereof is deleted in its entirety.
15. Section 26 is deleted in its entirety.
16. Section 27 is deleted in its entirety.
17. In Section 29, the parties agree as follows; (i) any
arbitration shall be subject to Arizona law, rather than California law; (ii)
the location for any arbitration shall be Maricopa County, Arizona; and (iii)
the sentence containing a reference to the "California Code of Civil Procedure"
is deleted.
18. In Section 31, the words, "including Agent", are deleted.
19. In Section 33, the parenthetical "(with a copy to Agent)" is
deleted.
20. Pursuant to Section 35, this Amendment shall constitute an
addendum to the Agreement and is incorporated therein by this reference.
21. In Section 36, the deadline for acceptance is revised to be
Friday, November 7, 2003.
22. In Section 37, the reference to California is deleted and replaced
with a reference to Arizona, such that Arizona law shall govern the contract.
23. The following additional provisions are hereby added to the
Agreement:
39. INDEMNIFICATION. Buyer shall, and hereby does,
indemnify, defend and hold harmless Seller for, from and
against any liability, obligation, action, suit, judgment,
fine, award, loss, claim, demand or expense (including
attorneys' fees) arising from (i) any act or omission of Buyer
or Buyer's agents or contractors pertaining in any manner to
the Property for the period of time on or after the Closing
Date, or (ii) any investigation or entry onto the Property by
Buyer or Buyer's agents or contractors at any time prior to
the Closing Date.
40. INFORMATION; LIMITATION ON LIABILITY: Buyer
acknowledges that any tax information, engineering data,
feasibility or marketing reports, soil reports or other
information of any kind or nature relating to the Property
which Buyer has received or may receive from Seller or its
agents is, will be, or has been furnished on the express
condition that Buyer shall make its own independent
verification of the accuracy of the information. Buyer agrees
that it shall not attempt to assert any liability against
Seller by reason of Seller's having furnished such information
or
3
by reason of any such information becoming or proving to have
been incorrect or inaccurate in any respect.
41. LEASE CONDITION PRECEDENT: Seller's obligation to
consummate the transactions contemplated by the Agreement and
to perform on the Closing Date shall be expressly conditioned
upon the completion and execution by the parties of a lease
agreement for the Property, in form and content acceptable to
Seller, which lease agreement must be executed at or prior to
the Closing Date, and must become effective immediately upon
the close of escrow (the "Lease").
42. CLOSING DELIVERIES AND FURTHER ASSURANCES: The
parties shall execute and deliver on or prior to the Closing
Date such documents and items as are necessary to implement
the intent of the Agreement and are customary for real estate
purchase and sale transactions of this nature in Maricopa
County, Arizona. Seller shall convey title to the Property by
Special Warranty Deed.
24. In the section entitled "SELLER'S ACCEPTANCE AND AGREEMENT TO
PAY COMMISSION", the last two paragraphs are deleted in their entirety.
In the event of any conflict between the terms of this Amendment and
the terms of the Agreement, the terms of this Amendment shall control. Subject
to the preceding sentence, and except as expressly modified herein, the
Agreement shall continue in full force and effect in accordance with its
original terms.
4
Dated as of November 6, 2003
SELLER: ZILA, INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXX, Ph.D.
-----------------------------
Its: PRESIDENT, CEO & CHAIRMAN
BUYER:
/s/ XXXX XXXXX
-----------------------------------
XXXX XXXXX
/s/ XXXXX XXXXX
-----------------------------------
XXXXX XXXXX
SECOND AMENDMENT TO PURCHASE AGREEMENT
This Second Amendment to Purchase Agreement Dated November 7, 2003,
(this "Amendment") is entered into by Xxxx and Xxxxx Xxxxx and/or assignee
("Buyer"), and Zila, Inc. a Delaware corporation ("Seller"), as of November 19,
2003. By this Amendment, the parties agree that the Purchase Agreement of on or
about even date herewith between them (the "Agreement") is amended as follows:
1. Buyer and Seller hereby agree that the Close of Escrow Date
shall be on or before January 16, 2004.
SELLER: ZILA, INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXX, Ph.D.
-----------------------------
Its: CHAIRMAN, PRESIDENT & CEO
Date: 11/21/03
BUYER:
-----------------------------------
XXXX XXXXX
-----------------------------------
XXXXX XXXXX
Date:
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