AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
TO: First American Title
Insurance Company
000 Xxxxxxxxxx Xxxxxx, Escrow Officer: Virginia Breffman
Suite 2400 Title Order No: SP-276188
Xxx Xxxxxxxxx, XX 00000-0000
Tel.: 000-000-0000
Facsimile: 000-000-0000
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS ("Agreement") is made and entered into as
of the 8th day of April, 1998, and constitutes an agreement
by which Macor, Inc., a California corporation ("Seller"),
agrees to sell, and SKS Investments LLC, a Delaware limited
liability company ("Buyer"), agrees to purchase, on the terms
and conditions set forth below:
A. That certain real property located at 0000 -
00xx Xxxxxx in San Francisco, California, as more
particularly described in the April 8, 1998, Commitment
prepared by First American Title Insurance Company ("Escrow
Holder") on Exhibit "A" attached hereto (the "Report"),
together with any and all rights, privileges, tenements,
hereditaments, entitlements, easements, rights-of-way and
appurtenances belonging or appertaining to the same
(collectively, the "Land"), together with all buildings and
improvements located on the Land (collectively, the
"Improvements"). The Land and the Improvements are
collectively referred to herein as the "Property."
B. Buyer intends to demolish the Improvements.
The terms and conditions of this Agreement and the
instructions to Escrow Holder with regard to the escrow
("Escrow") created pursuant hereto are set forth below.
1. Purchase and Sale. For valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller agrees to sell the Property to
Buyer, and Buyer agrees to purchase the Property from Seller,
upon the terms and conditions herein set forth.
2. Deposit. Within two (2) business days
following the mutual execution of this Agreement, Buyer will
deposit into the Escrow the sum of One Hundred Thousand
Dollars ($100,000)in immediately available funds (the
"Initial Deposit"). Concurrently with Buyer's delivery of
the Due Diligence Waiver pursuant to Section 7(a)(i), Buyer
will make an additional deposit of Four Hundred Thousand
Dollars ($400,000) (the "Additional Deposit"). The Initial
Deposit and the Additional Deposit, together with the
interest earned thereon, are hereinafter collectively
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referred to as the "Deposit"). Upon Buyer's delivery of such
Due Diligence Waiver, the Deposit will become non-refundable
(except as otherwise provided herein) subject only to
Seller's fulfillment of its obligations hereunder. The
Deposit will be credited against the Purchase Price. The
Deposit will be invested by Escrow Holder in an interest-
bearing account acceptable to Buyer with all interest
accruing thereon to be credited to the account of Buyer.
3. Purchase Price; Optional Reduction in Purchase
Price.
(a) Purchase Price. The purchase price
("Purchase Price") for the Property will be Five Million
Seven Hundred Thousand Dollars ($5,700,000). Buyer will
deposit prior to the Close of Escrow (as such term is defined
in Section 5(b)) immediately available funds (which will
include the Deposit) in an amount equal to the Purchase
Price.
(b) Environmental Remediation Credit. Buyer
will be entitled to a credit against the Purchase Price equal
to fifty percent (50%) of all environmental remediation costs
required to remediate the Property up to a maximum credit of
Two Hundred Fifty Thousand Dollars ($250,000). Buyer's
environmental consultant in good faith will estimate and
reasonably itemize such remediation costs in writing prior to
the end of the Due Diligence Period.
(c) Landfill Disposal Obligation. As
additional consideration for the Property, Buyer will cause
all contaminated soil removed from either the Property or the
sites in San Francisco controlled by Buyer or its affiliates
at: 000 Xxxxxxx Xxxxxx; the block bounded by Xxxxxx Xxxxxx,
Xxxx Xxxxxx and 00xx xxx 00xx Xxxxxxx; and 000 Xxxxx Xxxxxx,
to be placed in a landfill reasonably designated by Norcal
Waste Systems at prevailing and competitive fees.
4. Certain Covenants of Seller and Buyer.
(a) Documents. Seller has provided Buyer
with copies of the documents listed in Exhibit "B" attached
hereto (the "Documents").
(b) Access to Property. From and after
payment of the Initial Deposit until the Close of Escrow,
Buyer, its agents, contractors and subcontractors will have
the right to enter upon the Property, at reasonable times
during ordinary business hours, to make any and all
inspections and tests as may be necessary or desirable in
Buyer's sole judgment and discretion. Buyer will use care
and consideration in connection with any of its inspections.
Buyer will indemnify and hold Seller harmless from any and
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all damage or destruction arising out of or resulting from
the negligence of Buyer, its agents, contractors and/or
subcontractors in connection with such entry and/or
activities upon the Property.
Buyer will have the right to contact any
governmental or quasi-governmental entity or authority to
investigate any matters relating to the Property. Seller
agrees to cooperate reasonably with the Buyer in Buyer's
inspection of the Property.
(c) Operation of Property. Seller covenants
that from and after the date of this Agreement and to and
until the Close of Escrow, Seller will:
(i) No Contracts. Not, without Buyer's
prior written consent, enter into any lease or other
agreement or contract that in any way affects the Property
and that will survive the Close of Escrow;
(ii) No Encumbrances. Not alienate,
lien, encumber or otherwise transfer any of the Property, or
any interest therein except as may be required by law; and
(iii) Notice of Change of Condition.
Promptly notify Buyer of any change in any condition with
respect to the Property that materially and adversely affects
the Land.
(iv) Maintenance of Land. Not:
(i) permit any active waste or act that would tend to
diminish the value of the Land; (ii) store, manufacture, use
or sell any hazardous or toxic substances on, in or under the
Property except in the course of Seller's ordinary commercial
operations; or (iii) cause any liens, encumbrances or
easements to be placed on the Property, or, except in an
emergency, enter into any agreement regarding the repair,
improvement or any other matter affecting the Property that
would be binding on Buyer or the Property after the Close of
Escrow without the consent of Buyer which will not be
unreasonably withheld or delayed.
(v) Maintenance of Insurance. Maintain
all the insurance policies affecting the Property in full
force and effect.
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5. Escrow.
(a)) Opening of Escrow. Promptly following
execution of this Agreement, the parties hereto will cause a
copy of this Agreement (showing the signatures of the parties
thereon) to be delivered to Escrow Holder. For purposes of
this Agreement, the Escrow will be deemed opened on the date
Escrow Holder will have received such copy of this Agreement
plus the Initial Deposit. Escrow Holder will notify Buyer
and Seller, in writing, of the date Escrow is opened and will
return to each of the parties a copy of the last page of this
Agreement duly executed by Escrow Holder. In addition, Buyer
and Seller will execute, deliver and be bound by any
reasonable and customary supplemental escrow instructions of
Escrow Holder or other instruments as may reasonably be
required by Escrow Holder in order to consummate the
transaction contemplated by this Agreement. Any such
supplemental instructions will not conflict with, amend or
supersede any portions of this Agreement. If there is any
inconsistency between such supplemental instructions and this
Agreement, this Agreement will control.
(b) Close of Escrow. For purposes of this
Agreement, the "Close of Escrow" will be defined as the date
that the Grant Deed, the form of which is attached hereto as
Exhibit "C" ("Grant Deed") conveying the Real Property to
Buyer, is recorded in the Official Records of San Francisco
County, California. The Close of Escrow will occur between
June 30, 1998, and July 31, 1998, as determined by Seller by
written notice to Buyer on or before June 3, 1998 (the
"Closing Date").
6. Title.
(a) Condition of Title. It will be a
condition to the Close of Escrow that title to the Real
Property be conveyed to Buyer by Seller by the Grant Deed
subject to all of the exceptions in the Report and subject to
non-delinquent taxes and assessments and matters which would
be disclosed by an ALTA Survey of the Real Property and free
and clear of all occupants and tenancies ("Approved Condition
of Title"). Seller covenants and agrees that during the term
of this Escrow, it will not voluntarily cause title to the
Real Property to differ from the Approved Condition of Title.
(b) Title Policy. At the Close of Escrow,
Seller will convey title to the Real Property to Buyer in fee
simple subject only to the Approved Condition of Title.
Title will be evidenced by the willingness of the Escrow
Holder to issue its ALTA Extended Coverage Owner's Form
Policy of Title Insurance, with such endorsements as Buyer
may reasonably require, in the amount of the Purchase Price
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(or any lesser amount agreed to by Buyer in its sole
discretion) showing title to the Property vested in Buyer
subject only to the Approved Condition of Title (the "Title
Policy").
7. Certain Conditions to Close of Escrow.
(a) Conditions to Buyer's Obligations. The
Close of Escrow and Buyer's obligation to consummate the
transaction contemplated by this Agreement are subject to the
satisfaction, in Buyer's sole and absolute discretion, of
each of the following conditions for Buyer's benefit:
(i) Due Diligence Period. Buyer will
have until noon PDT on May 29, 1998, to review and approve
the Property (the "Due Diligence Period"). If Buyer does not
notify Seller in writing before the end of the Due Diligence
Period that Buyer is satisfied with the Property (the "Due
Diligence Waiver"), then this Agreement will be terminated
and the Deposit will be returned to Buyer.
(ii) Underground Storage Tank Removal.
During the Due Diligence Period, Seller will have removed, at
Seller's expense, an underground storage tank which Seller
believes is located on the east central portion of the
Property, and Seller will have provided Buyer with all
information available to Seller with respect to such removal
and related soil remediation or removal.
(iii) Title. On the Closing Date, Seller
will deliver insurable title to the Real Property to the
Buyer in fee simple, subject only to the Approved Condition
of Title, and the Escrow Holder will be committed to issue
the Title Policy upon payment of the scheduled premium.
(iv) Deposits. Seller will have made the
deposits set forth in Section 8 hereof.
(v) Representations, Warranties and
Covenants of Seller. Seller will have duly performed each
and every agreement to be performed by Seller hereunder. The
representations and warranties of Seller contained herein
will be true and correct in all material respects as of the
Closing Date.
(vi) No Material Adverse Changes. At the
Closing Date, there will have been no material adverse
changes in the physical condition of the Land.
(b) Conditions to Seller's Obligations. The
Close of Escrow and Seller's obligation to consummate the
transaction contemplated by this Agreement are subject to the
satisfaction of each of the following conditions for Seller's
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benefit:
(i) Deposits. Buyer will have made the
deposits set forth in Section 9 hereof.
(ii) Buyer's Obligations. Buyer will
have timely performed all of the obligations required by the
terms of this Agreement to be performed by Buyer.
8. Deposits by Seller. At least one (1) business
day prior to the Closing Date, Seller will deposit or cause
to be deposited with Escrow Holder the following documents
and instruments:
(a) Grant Deed. The Grant Deed conveying the
Property to Buyer, duly executed by Seller, acknowledged and
in recordable form.
(b) Seller's Certificate. A certificate of
non-foreign status ("Seller's Certificate"), duly executed,
by Seller, in the form attached hereto as Exhibit "D".
(c) Additional Documentation. Such
additional documentation as Buyer and/or Escrow Agent may
deem reasonably necessary in order to effectuate the
transactions set forth in this Agreement.
9. Deposits by Buyer. On or before the Closing
Date, Buyer will deposit or cause to be deposited with Escrow
Holder the funds which are to be applied towards the payment
of the Purchase Price in the amounts and at the times
designated in Sections 2 and 3 hereof. Buyer further will
deposit such documentation as Seller or Escrow Holder may
deem reasonably necessary to effectuate the transactions set
forth in this Agreement.
10. Costs and Expenses. Seller will pay the cost
of documentary transfer taxes, recordation costs, one-half of
the escrow fee, and Seller's share of the prorations. Buyer
will pay the premiums for the Title Policy (including any
survey costs), one-half of the escrow fee, and Buyer's share
of the prorations. The amount of such transfer taxes will
not be posted on the Grant Deed but will be supplied by
separate affidavit. If, as a result of no fault of Buyer or
Seller, Escrow fails to close, Buyer and Seller will share
equally all of Escrow Holder's fees and charges.
11. Prorations and Credits. The following
prorations and credits will be made between Seller and Buyer
as set forth below:
(a) Taxes. Real property taxes on the
Property will be prorated on the basis that Seller is
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responsible for (i) all such taxes for fiscal years
occurring prior to the "Current Tax Period," and
(ii) that portion of such taxes for the Current Tax
Period determined on the basis of the number of days
which have elapsed from the first day of the Current Tax
Period to the Closing Date, inclusive, whether or not
the same will be payable prior to the Closing Date. The
phrase "Current Tax Period" refers to the fiscal year of
the applicable taxing authority in which the Closing
Date occurs.
(b) Utilities. All utilities relating to the
Property (including, without limitation, water, sewer,
gas and electric) will be prorated as of the Closing
Date. If the parties are unable to obtain appropriate
information as of the Closing Date to calculate such
prorations, such expenses will be estimated as of the
Closing Date on the basis of the prior operating history
of the Property.
In the event any prorations, apportionments or computations
made under this Section 11 will require final adjustment,
then the parties will make the appropriate adjustments
promptly when accurate information becomes available and
either party will be entitled to an adjustment to correct the
same, provided that it makes written demand on the one from
whom it is entitled to such adjustment within thirty (30)
days after the Closing Date. Any corrected adjustment or
proration will be paid in cash to the party entitled thereto.
The provisions of this Section 11 will survive the Close of
Escrow.
12. Disbursements and Other Actions by Escrow
Holder. Upon the Close of Escrow, the Escrow Holder will
promptly undertake all of the following in the manner
indicated:
(a) Prorations. Prorate all matters
referenced in Section 11 based upon the statement delivered
into Escrow signed by the parties.
(b) Recording. Cause the Grant Deed and any
other documents which the parties hereto may mutually direct
to be recorded in the Official Records of San Francisco
County, California in the order set forth in this subsection.
Escrow Holder is instructed not to affix the amount of
documentary transfer tax on the face of the Deed, but to
supply the same by separate affidavit.
(c) Funds. Disburse from funds deposited by
or for Buyer with Escrow Holder towards payment of all items
chargeable to the account of Buyer pursuant hereto in payment
of such costs and disburse the balance of such funds, if any,
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to Buyer.
(d) Documents to Buyer. Deliver to Buyer a
conformed copy of the Grant Deed, and, when issued, the Title
Policy.
13. Seller's Representations and Warranties. In
consideration of Buyer's entering into this Agreement and as
an inducement to Buyer to purchase the Property, Seller makes
the following representations and warranties as of the date
hereof and as of the Close of Escrow:
(a) Authorization. Seller is a California
corporation, duly organized, validly existing and in good
standing under the laws of the State of California. This
Agreement and the transactions contemplated herein have been
duly and validly authorized, executed and delivered by Seller
and no other action by Seller is requisite to the valid and
binding execution, delivery and performance of this Agreement
by Seller, except as otherwise expressly set forth herein.
(b) Third Party Consents. No consents or
waivers of or by any third party (including any governmental
entity) are necessary to permit the consummation by Seller of
the transactions contemplated pursuant to this Agreement.
(c) Condemnation. There are no pending, or,
to Seller's knowledge, threatened proceedings in eminent
domain or otherwise, which would affect the Real Property or
any portion thereof.
(d) Foreign Person. Seller is not a "foreign
person" within the meaning of the Section 1445(f)(3) of the
Internal Revenue Code, and no portion of the Purchase Price
is required to be withheld by Buyer pursuant to Section 1445
of the Code and the regulations promulgated thereunder.
(e) Litigation. There is no pending or, to
Seller's knowledge, threatened litigation or administrative
proceeding with respect to the Property, or which may impair
Seller's ability to sell the Property.
(f) Contracts. There are no leases, service
or other contracts (written or oral) affecting the Property.
14. Buyer's Representations and Warranties. In
consideration of Seller entering into this Agreement and as
an inducement to Seller to sell the Property to Buyer, Buyer
represents and warrants that this Agreement and the
transactions contemplated herein, have been duly and validly
authorized, executed and delivered by Buyer and no other
action by Buyer is requisite to the valid and binding
execution, delivery and performance of this Agreement.
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15. As-Is Conveyance.
(a) Marketing Materials. No representations
or warranties, express or implied, by operation of law or
otherwise, are made as to the accuracy or completeness of the
information contained in the materials regarding the Property
prepared by Broker or Seller. To the extent Buyer desires to
rely upon any information contained in such materials, Buyer
independently will verify such information.
(b) AS-IS. Except as expressly provided
herein, Buyer will accept the Property on the Closing Date in
its existing condition as of such date, "AS IS, WHERE IS AND
WITH ALL FAULTS," without any representation or warranty of
any kind, express or implied, including, but not limited to,
with respect to such matters as title, zoning, use, economic
feasibility, soil, occupancy, capital and tenant
improvements, compliance or conformity with building, fire
and other codes, environmental conditions and any and all
other physical conditions. Buyer hereby acknowledges that it
has been afforded full opportunity to and has fully
investigated such matters to its satisfaction prior to
entering into this Agreement and/or will investigate such
matters fully during the Due Diligence Period and will
purchase the Property based solely upon such investigations.
Buyer hereby releases Seller and Seller's partners and
agents from all claims, liabilities, demands and causes of
action of any kind whatsoever, known or unknown, with respect
to any of the foregoing matters and specifically waives the
provisions of California Civil Code Section 1542 regarding
the matters covered by a general release (a copy of which
statute is attached hereto as Exhibit "E"). Buyer hereby
releases Seller from any and all claims and causes of action
of any kind whatsoever, whether statutory, contractual, under
tort principles, or at law or in equity including, without
limitation, any claims under the Comprehensive Environmental
Response Compensation and Liability Act, as amended
("CERCLA"), 42 U.S.C. ??9601 et seq., and the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. ??6901
et seq., and corresponding state laws. Notwithstanding
anything contained in this Section 15(b) to the contrary,
Buyer does not release Seller from any claim based on the
fraud (including the intentional misrepresentation or the
intentional omission) of Seller. Furthermore, Seller will
indemnify Buyer from any liability suffered by Buyer with
respect to any claims for personal injury (or death) brought
by a third party arising out of an event occurring on or
about the Property during the period of Seller's ownership
thereof; provided, however, that such indemnification will be
only to the extent such claim(s) are covered by liability
insurance maintained by Seller at the time of the event
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giving rise to such claim(s).
(c) Non-Compliance with Laws. Buyer
acknowledges that the Improvements are in extremely poor
condition and that the Improvements are not in compliance
with codes. Buyer will be responsible at its sole cost for
complying with all laws respecting the Improvements and the
Property and the transfer thereof, including all ordinances
relating to energy conservation, ADA, seismic upgrading and
environmental remediation.
16. LIQUIDATED DAMAGES. IF BUYER COMMITS A
DEFAULT UNDER THIS AGREEMENT AND THE CLOSE OF ESCROW FAILS TO
OCCUR BY REASON OF SUCH DEFAULT, THEN IN SUCH EVENT, THE
ESCROW HOLDER MAY BE INSTRUCTED BY SELLER TO CANCEL THE
ESCROW AND SELLER WILL THEREUPON BE RELEASED FROM ITS
OBLIGATIONS HEREUNDER. BUYER AND SELLER AGREE THAT BASED
UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT
WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH
SELLER'S DAMAGE BY REASON OF BUYER'S DEFAULT. ACCORDINGLY,
BUYER AND SELLER AGREE THAT IT WOULD BE REASONABLE AT SUCH
TIME TO AWARD SELLER THE DEPOSIT AS "LIQUIDATED DAMAGES" LESS
THE ESCROW HOLDER'S CHARGES.
SELLER AND BUYER ACKNOWLEDGE AND AGREE THAT THE
AWARD OF THE DEPOSIT IS REASONABLE AS LIQUIDATED DAMAGES AND
WILL BE SELLER'S SOLE AND EXCLUSIVE REMEDY IN LIEU OF ANY
OTHER RELIEF, RIGHT OR REMEDY, AT LAW OR IN EQUITY, TO WHICH
SELLER MIGHT OTHERWISE BE ENTITLED BY REASON OF BUYER'S
DEFAULT. ACCORDINGLY, IF BUYER COMMITS A DEFAULT UNDER THE
AGREEMENT AND THE CLOSE OF ESCROW FAILS TO OCCUR SOLELY BY
REASON OF SUCH DEFAULT, SELLER MAY INSTRUCT THE ESCROW HOLDER
TO CANCEL THE ESCROW WHEREUPON SELLER WILL BE RELIEVED FROM
ALL LIABILITY HEREUNDER, AND, PROMPTLY FOLLOWING ESCROW
HOLDER'S RECEIPT OF SUCH INSTRUCTION, ESCROW HOLDER WILL
(i) CANCEL THE ESCROW, (ii) PAY ALL OF ESCROW HOLDER'S
CHARGES FROM THE DEPOSIT THEN HELD BY ESCROW HOLDER, AND
(iii) DISBURSE TO SELLER THE REMAINDER OF THE DEPOSIT. IF
THE CLOSE OF ESCROW FAILS TO OCCUR FOR ANY REASON OTHER THAN
BUYER'S DEFAULT UNDER THIS AGREEMENT, BUYER'S SOLE REMEDIES
WILL BE EITHER (i) TO TERMINATE THIS AGREEMENT AND TO CAUSE
THE ESCROW HOLDER TO DISBURSE TO BUYER ALL OF THE DEPOSIT
THEN HELD BY ESCROW HOLDER, PLUS THE ACCRUED INTEREST
THEREON, LESS BUYER'S SHARE OF ESCROW CANCELLATION CHARGES;
OR TO SEEK SPECIFIC PERFORMANCE. WITHOUT LIMITING THE
FOREGOING PROVISIONS OF THIS PARAGRAPH, SELLER WAIVES ANY AND
ALL RIGHTS WHICH SELLER OTHERWISE WOULD HAVE HAD UNDER
CALIFORNIA CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE
THIS AGREEMENT. SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE
READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 16 AND BY
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THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS
TERMS.
Seller's Initials Buyer's Initials
/s/ MJS /s/ JHS
__________ __________
17. Damage or Condemnation Prior to Closing.
Seller will promptly notify Buyer of any casualty to the
Property or any condemnation proceeding commenced prior to
the Close of Escrow. If any such damage materially and
adversely affects the Land (as opposed to the Improvements)
or if any condemnation proceeding relates to or may result in
the loss of any material portion of the Land or materially
and adversely affects Buyer's proposed use of the Property,
then within five (5) days after receipt of notice from Seller
Buyer may, at its option, elect either to: (i) terminate
this Agreement, in which event the entire Deposit will be
returned to Buyer and neither party will have any further
rights or obligations hereunder, or (ii) continue the
Agreement in effect. Upon the Close of Escrow, Buyer will be
entitled to any insurance proceeds, compensation, awards, or
other payments or relief resulting from such casualty or
condemnation proceeding.
18. Notices. All notices or other communications
required or permitted hereunder will be in writing, and will
be personally delivered or sent by reputable overnight
carrier and will be deemed received upon the earlier of
(i) if personally delivered, the date of delivery to the
address of the person to receive such notice, or (ii) if sent
by reputable overnight carrier, one (1) business day after
the date of posting.
To Buyer: Xxxxx X. Xxxxx
SKS Investments LLC
c/c Xxxxx Xxxxxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:
Tel: 000-000-0000
With a copy to: Xxxxxxxx, Patch, Xxxxx & Bass, LLP
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Tel: 000-000-0000
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To Seller: Macor, Inc.
Xxxx Xxxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Tel: (000) 000-0000
With a copy to: Howard, Rice, Nemerovski, Canady,
Xxxx & Xxxxxx
A Professional Corporation
Three Xxxxxxxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
and a copy to: Xxxxx X. Xxxxx
The Cliff Company
0000 00xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
To Escrow Holder: As Set Forth On Page 1
Notice of change of address will be given by written notice
in the manner detailed in this Section. Rejection or other
refusal to accept or the inability to deliver because of
changed address of which no notice was given will be deemed
to constitute receipt of the notice, demand, request or
communication sent.
19. Broker. Seller has engaged The Cliff Company
("Broker") in connection with the sale of the Property and a
commission equal to five percent (5%) of the Purchase Price
(as it may be reduced pursuant to Section 3(a)) will be
payable on the Closing Date. Broker will share 50% of such
commission with the CAC Group. Seller in no event will be
liable for any other commissions. Each party agrees to
defend, indemnify and hold harmless the other party from any
claims, losses, damages, expenses, costs or liabilities
(including, without limitation, reasonable attorneys' fees)
arising in connection with the breach of that party's
representations, warranties or covenants under this Section.
20. Arbitration. Any dispute hereunder will be
resolved by a representative designated by JAMS/Endispute
("JAMS") in San Francisco, California pursuant to
Sections 1280 et seq. of the California Code of Civil
Procedure. The parties each initially will advance fifty
percent (50%) of all arbitration fees as and when payable.
The prevailing party in such arbitration will be entitled to
have and recover from the other party all costs and expenses
of arbitration, including reasonable attorneys' fees.
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21. Assignment. Except to an entity owned or
controlled by Buyer, or an entity in which Buyer is the
managing member or co-managing member, Buyer may not assign,
transfer or convey its rights or obligations under this
Agreement without the prior written consent of Seller, and
then only if Buyer's assignee assumes in writing all of
Buyer's obligations hereunder.
22. Seller's Indemnification. Seller will
indemnify, defend and hold harmless Buyer, from and against
any and all obligations, liabilities, claims, liens,
encumbrances, losses, damages, costs and expenses, including
without limitation, attorneys' fees, incurred by Buyer as a
result of any breach by Seller of the representations or
warranties contained in Section 13 of this Agreement. After
the Closing Date, the foregoing indemnification will be
Buyer's sole remedy in the event of any such breach by
Seller.
23. Section 1031 Exchange. Seller and Buyer each
reserve the right to restructure this transaction so that
either of them may effect a simultaneous or non-simultaneous
tax-deferred exchange pursuant to and in accordance with the
provisions of Internal Revenue Code Section 1031. Seller and
Buyer will cooperate with one another in this regard, and
each agrees to execute such additional documents and
instruments as may be necessary and desirable for the other
party to effect such exchange with and to only each other or
an exchange intermediary, including exchange agreement,
purchase and sale agreements, escrow instructions, deeds and
other instruments. However, neither Seller nor Buyer will be
required to cooperate with such exchange if such cooperating
party (a) is not provided with written notice to such effect
at least five (5) calendar days prior to the Closing Date, or
(b) is or will be required: (i) to incur any additional
liability or financial obligations as a consequence of such
exchange; (ii) to assume any continuing liabilities; (iii) to
make any warranties or representations of any nature to the
other party hereto or to any other party other than with
respect to the Property; or (iv) to release the other Party
hereto of any warranties and representations made herein.
All such involvement by either Seller or Buyer or both, as
the case may be, with respect to the exchange of the other
party will be at no cost or expense to such involved party,
and the exchanging party will hold harmless and indemnify the
cooperating party hereto from any and all liabilities,
claims, losses or actions of any nature which the cooperating
party incurs or to which it may be exposed as a result of its
participation in such exchange. This Agreement is not
subject to or contingent upon either party's ability to
effectuate an exchange, and if either Seller or Buyer, as the
case may be, is unable to effect such an exchange on the
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Closing Date such party will in all events be required to
complete the disposition or acquisition of the Property, as
the case may be, on the Closing Date.
24. Miscellaneous.
(a) Survival of Covenants. The covenants,
representations and warranties of both Buyer and Seller set
forth in this Agreement will survive the recordation of the
Grant Deed and the Close of Escrow.
(b) Time of Essence. Time is of the essence
of each and every term, condition, obligation and provision
hereof.
(c) Counterparts. This Agreement may be
executed in multiple counterparts, each of which will be
deemed an original, but all of which, together, will
constitute one and the same instrument.
(d) Captions. Any captions to, or headings
of, the paragraphs or subparagraphs of this Agreement are
solely for the convenience of the parties hereto, are not a
part of this Agreement, and will not be used for the
interpretation or determination of the validity of this
Agreement or any provision hereof.
(e) No Obligations to Third Parties. Except
as otherwise expressly provided herein, the execution and
delivery of this Agreement will not be deemed to confer any
rights upon, nor obligate any of the parties thereto, to any
person or entity other than the parties hereto.
(f) Exhibits and Schedules. The Exhibits
attached hereto are hereby incorporated herein by this
reference.
(g) Amendment to this Agreement. The terms
of this Agreement may not be modified or amended except by an
instrument in writing executed by each of the parties hereto.
(h) Waiver. The waiver or failure to enforce
any provision of this Agreement will not operate as a waiver
of any future breach of any such provision or any other
provision hereof.
(i) Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of California.
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(j) Fees and Other Expenses. Except as
otherwise provided herein, each of the parties will pay its
own fees and expenses in connection with this Agreement.
(k) Entire Agreement. This Agreement
supersedes any prior agreements, negotiations and
communications, oral or written, and contains the entire
agreement between Buyer and Seller as to the subject matter
hereof. No subsequent agreement, representation, or promise
made by either party hereto, or by or to an employee,
officer, agent or representative of either party will be of
any effect unless it is in writing and executed by the party
to be bound thereby.
(l) Successors and Assigns. This Agreement
will be binding upon and will inure to the benefit of the
successors and assigns of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the day and year first-above
written.
"Seller" Macor, Inc.,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
President
"Buyer" SKS Investments LLC,
a Delaware Limited Liability company
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Member
Acceptance by Escrow Holder:
First American Title Insurance Company hereby
acknowledges that it has received a fully executed
counterpart of the foregoing Agreement of Purchase and Sale
and Joint Escrow Instructions and agrees to act as Escrow
Holder thereunder and to be bound by and perform the terms
thereof as such terms apply to Escrow Holder.
Dated: April 9, 1998 FIRST AMERICAN TITLE INSURANCE
COMPANY
Escrow No.SP276188 By: /s/ Xxxxxxxx Xxxxxxxx
Its: Senior Escrow Officer
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