EX 10.74.1
PURCHASE AND SALE AGREEMENT
(Danville, Illinois)
THIS AGREEMENT is dated for reference purposes
only as of the 14th day of October, 1996 and is by and
between SOUTH BAY PARTNERS, INC., a Texas corporation,
or its assignee ("Purchaser"), and ELKS LODGE NO. 332,
BPOE, an Illinois corporation ("Seller").
RECITALS
A. Seller is the owner of a certain parcel of
real property located in Danville, Illinois.
B. Purchaser is interested in purchasing the real
property owned by Seller on the terms and conditions
specified herein.
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual covenants of the parties set
forth herein, IT IS HEREBY AGREED AS FOLLOWS:
AGREEMENT
1. PURCHASE AND SALE.
On the terms and conditions set forth herein,
Seller shall sell to Purchaser and Purchaser shall
purchase from Seller, the following:
a. REAL PROPERTY. The undeveloped real property
located at 000 X. Xxxxxxx Xxxx, in the City of
Danville, State of Illinois, and consisting of (i)
approximately 6.3 acres as legally described on
Exhibit A attached hereto, and (ii) all right,
title and interest, if any, of Seller in and to
any land lying in the bed of any street, road or
avenue opened or proposed, in front of or
adjoining the same, to the center line
thereof(collectively the Real Property ); and
b. PROPERTY RIGHTS. All contract rights, surveys,
blue prints, studies, and other work in progress
relating to any proposed development of the Real
Property, and all licenses, permits, approvals and
all other entitlements, rights or privileges
appurtenant to or held by Seller in connection
with, the Real Property and/or any proposed
development thereof (collectively, the "Property
Rights").
The Real Property and the Property Rights are
sometimes collectively referred to herein as the
"Property".
2. PURCHASE PRICE.
The purchase price for the Property shall be
Eighty Thousand and No/100 Dollars ($80,000.00),
payable as follows:
x. XXXXXXX MONEY DEPOSIT. Five Thousand and no/100
Dollars ($5,000.00) upon mutual execution of this
Agreement (the "Xxxxxxx Money), which shall be
delivered in the form of a check made payable to
Partners Title Company, located at 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attn. :
Xx. Xxxxx Xxxxxxxxx ("Escrow Agent"). All such
funds shall be held by Escrow Agent in an interest
bearing escrow account. The Xxxxxxx Money and any
accrued interest thereon shall be applied against
the purchase price at Closing or remitted to
Seller or Purchaser, as appropriate, in accordance
with the provisions of Paragraph 16 below; and
b. BALANCE OF PURCHASE PRICE. The balance of the
purchase price shall be paid at the time of
Closing by wire transfer, cashier's check or other
certified funds.
3. CLOSING.
Provided that the conditions to Closing set forth
in Paragraphs 12 and 13 have been satisfied or waived
in writing by the party for whom the condition exists,
closing of the purchase of the Property shall occur on
the date forty-five (45) days following the expiration
of the Feasibility Period (as defined below) (the
"Closing Date") at such time and place as may be
mutually agreed upon by Seller and Purchaser. In the
event the scheduled Closing Date falls on a Saturday,
Sunday or a legal holiday, the Closing Date shall be
the next business day thereafter. Time is of the
essence.
4. CONVEYANCES.
At Closing, Seller shall convey the Real Property
to Purchaser by general warranty deed, in form and
substance acceptable to Purchaser. Title to the Real
Property shall be conveyed free and clear of all liens
or encumbrances other than those approved by Purchaser
pursuant to Paragraph 12.c.
5. CLOSING COSTS AND PRORATIONS.
At Closing, Seller and Purchaser shall be
responsible for the following costs and prorations:
a. TRANSFER TAXES. Seller shall pay any state or
county transfer taxes due and payable as a result
of the sale of the Property.
b. RECORDING FEES. Purchaser shall pay any
recording fees assessed with respect to the
recordation of the conveyance deed provided for
herein.
c. ATTORNEY'S FEES. Seller and Purchaser shall
each pay their own attorneys fees and costs, if
any.
d. ESCROW FEES. Seller and Purchaser shall each
pay one-half of all escrow fees.
e. REAL PROPERTY TAXES. Real property taxes and
assessments with respect to the Real Property
shall be prorated as of the Closing Date, with
Seller responsible for any such taxes and
assessments which relate to the period prior to
the Closing Date, regardless of when payment
therefor is due and with Purchaser responsible for
any such taxes and assessments which relate to the
period from and after the Closing Date.
f. TITLE INSURANCE AND SURVEY. Seller shall pay
for the cost of the premium for the Title Policy
(as that term is defined below), and Seller shall
pay the cost of the Survey required to be
delivered to Purchaser as provided herein,
subject, however, to the right to reimbursement
for Survey costs as provided for in Section 16. e.
below.
In the event any prorations between the parties at
the time of Closing is made on the basis of incomplete,
incorrect, estimated or preliminary information then,
as a matter which shall survive the Closing, the
parties agree to re-adjust and re-apportion such costs
following the Closing promptly upon receipt of
complete, correct or final information, which is
verified by both parties.
2
6. POSSESSION.
At Closing, Purchaser shall be entitled to
possession of the Real Property free and clear of all
tenancies.
7. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller does hereby represent and warrant to
Purchaser as follows:
a. AUTHORITY. Seller has full power and authority
to enter into this Agreement and to carry out the
terms hereof and the consummation of the
transaction provided for herein does not violate
Seller's articles of incorporation or bylaws nor
any law, regulation, court order, mortgage, deed
of trust, note, bond, indenture, agreement,
license or other instrument or obligation to which
Seller is a party or by which its assets may be
bound or affected. This Agreement is valid,
binding and enforceable as against Seller in
accordance with its terms, except as such
enforceability may be affected by bankruptcy,
receivership or creditors' rights laws generally.
b. HEALTH AND SAFETY. Seller has not received any
written notification from the Department of
Building and Safety, Health Department, or such
other City, County or State authority having
jurisdiction over the Real Property, requiring any
work to be performed or affecting the Real
Property or indicating any intent to condemn the
Real Property or any portion of the Real Property.
c. TITLE. Seller has good fee simple marketable
title to the Real Property, which title as of the
Closing Date, will be free and clear of all liens
and encumbrances other than those approved by
Purchaser pursuant to Paragraph 12.c.
d. TAXES AND TAX RETURNS. All tax returns and
related filings of any kind required to be filed
by Seller prior to the Closing Date with respect
to its ownership of the Real Property have been
properly completed and timely filed in material
compliance with all applicable requirements and
all taxes or other obligations which are due and
payable by Seller have been, or as of the Closing
Date, will be timely paid.
e. LITIGATION. There is no litigation,
investigation, or other proceeding pending or, to
the best of Seller's knowledge, threatened against
or relating to Seller which is material to the
Real Property or this Agreement. In the event that
a lien, claim, or cause of action affecting the
Real Property should arise prior to the Closing,
and Purchaser elects not to terminate this
Agreement as a result thereof, Seller, at its sole
cost and expense, shall indemnify, defend and hold
the Purchaser harmless therefrom, including
without limitation, reasonable attorney's fees,
costs and expenses.
f. ENVIRONMENTAL MATTERS. Except in accordance
with, and in full compliance with, any and all
applicable governmental laws, regulations and
requirements (collectively, the "Environmental
Laws") relating to environmental and occupational
health and safety matters and hazardous materials,
substances or wastes (as defined from time to time
under any applicable federal, state or local laws,
regulations or ordinances) and except as disclosed
in any environmental reports delivered to or
obtained by Purchaser, Seller has not released
into the environment, or discharged, placed or
disposed of any such hazardous materials,
substances or wastes or caused the same to be so
released into the environment or discharged,
placed or disposed of at, on or under the
3
Real Property. Seller further represents and
warrants that: (i) no hazardous materials,
substances or wastes are located on the Real
Property or have been released into the
environment or discharged, placed or disposed of
in, on or under the Real Property, (ii) no
underground storage tanks are or have been located
on the Real Property, (iii) the Real Property has
never been used as a dump for waste material, and
(iv) the Real Property and its prior uses comply
with, and at all times have complied with, all
Environmental Laws.
g. UTILITIES. All utilities necessary for
Purchaser's intended development and operation at
the Property are available to the Property and are
located within five (5) feet of the property line.
h. SPECIAL ASSESSMENTS. Seller has received no
notice and has no knowledge of any pending special
assessments to be made against the Real Property
by any governmental authority.
i. TENANCIES. As of the date of this Agreement,
none of the Real Property is under lease to any
person, firm, or entity; and, no oral or written
agreements have been entered into by Seller which
commit to lease all or any portion of the Real
Property subsequent to the date of this Agreement.
To the best of Seller's knowledge, there is no
adverse possession of all or any part of the Real
Property.
j. MECHANIC'S LIENS. There are no unpaid bills or
claims in connection with any construction or
other work performed on the Real Property nor
shall there be any on the date of Closing. Seller
shall satisfy any and all mechanic's or
materialmen's liens filed against the Real
Property, or any part thereof, on or prior to
Closing and shall indemnify and hold harmless and
protect the Purchaser from any and all loss from
any such liens.
8, REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser does hereby represent and warrant to
Seller as follows:
a. STATUS. Purchaser is a corporation duly
organized and validly existing under the laws of
the state of Texas and is in good standing
thereunder.
b. AUTHORITY. Purchaser has full power and
authority to execute and to deliver this Agreement
and all related documents, and to carry out the
transactions contemplated herein and the same do
not result in a breach of the terms and conditions
of nor constitute a default under or violation of
Purchaser's Articles of Incorporation or By-laws
or any law, regulations, court order, mortgage,
note, bond, indenture, agreement, license or other
instrument or obligation to which Purchaser is a
party or by which Purchaser or any of its assets
may be bound or affected. This Agreement is valid,
binding and enforceable as against Purchaser in
accordance with its terms, except as such
enforceability may be affected by bankruptcy,
receivership or creditors' rights laws generally.
c. LITIGATION. There is no litigation,
investigation or other proceeding pending or
threatened against or relating to Purchaser, its
properties or business which is material to this
Agreement, or which would prevent Purchaser from
performing its obligations hereunder.
4
9. COVENANTS OF SELLER.
Seller does hereby covenant and agree as follows:
a. PRE-CLOSING. Between the date hereof and the
Closing Date, Seller will:
(i) at Seller's sole cost and expense and as
soon as practicable but in no event later than
fifteen (15) days following the mutual execution
of this Agreement, cause a surveyor acceptable to
Purchaser (the "Surveyor") to prepare and deliver
to Purchaser (with a copy to Purchaser's counsel)
an ALTA/ACSM survey of the Real Property
reflecting the size and dimensions of the Real
Property Plan and meeting the requirements set
forth below (the "Survey"). The Survey shall show
thereon: (a) the location of all boundaries,
existing fences, all easements, pipelines, rights-
of way, and roads which are of record or visible
on the ground, (b) whether any of the Real
Property lies within a 100 year flood plain or any
special flood hazard area as designated by any
governmental agency, (c) the number of acres and
net square footage contained within the boundaries
of the Real Property, (d) the location and
dimensions of any protrusions from and
encroachments on the Real Property; (e) the
location of all public roads or highways adjacent
to the Real Property and (f) such other matters as
shall be required by the Title Company for the
issuance of the Title Policy. The Survey shall be
certified to the Purchaser, Seller, and the Title
Company. The Surveyor shall include in its
certification its Registration Number, address,
telephone number, the job number and that the
Survey meets all ALTA/ACSM requirements and that
the Survey was made on the ground as per the field
notes shown thereon and that, except as shown
thereon, there are no visible easements, rights-of
way, party walls, conflicts, or visible
encroachments by any improvements onto an easement
or neighboring property or by any improvements on
adjoining property onto the Real Property and that
the Real Property has direct access to all
adjacent public sheets;
(ii) as soon as practicable but in no event
later than fifteen (15) days following the mutual
execution of this Agreement, provide Purchaser
with copies of the following documents relating to
the Real Property to the extent the same are in
Seller's possession or reasonable control (
collectively, the "Property Documents"): all
permits, licenses, and other governmental
approvals and entitlements relating to the use
and/or development of the Real Property, all
reports, studies and investigations performed at
the Real Property, including all architectural
drawings, plans and specifications, environmental
reports, structural reports and geological
reports, existing surveys of the Real Property,
wetland reports, soils reports, engineering tests
and reports, and appraisals prepared for the Real
Property and all other books and records relating
to any work performed in connection with any
proposed development of the Real Property;
(iii) satisfy and discharge all liens against
the Property, other than those approved by
Purchaser pursuant to Paragraph 12.c.;
(iv) file all tax returns, reports and
filings required to be filed by Seller and timely
pay all taxes or other obligations which are due
and payable with respect to the Property; and
(v) not take any action inconsistent with its
obligations hereunder.
b. CLOSING. On the Closing Date, Seller agrees to:
5
(i) execute and deliver to Purchaser the
general warranty deed described in Paragraph 4 and
such other instruments as shall be necessary to
transfer the Property to Purchaser, including but
not limited to an affidavit of Non-Foreign Status
pursuant to Section 1445 of the Internal Revenue
Code of 1986, as amended; and
(ii) pay any Closing costs for which it is
responsible under Paragraph 5.
c. POST-CLOSING. After the Closing Date, Seller
agrees that, at Purchaser's sole cost and expense,
it will take such actions and properly execute and
deliver to Purchaser such further instruments as
may be reasonably necessary to evidence the
transfer of the Property.
10. COVENANTS OF PURCHASER.
Purchaser does hereby covenant and agree as
follows:
a. PRE-CLOSING. Between the date hereof and the
Closing Date, Purchaser will not take any action
inconsistent with its obligations hereunder.
b. CLOSING. On the Closing Date; Purchaser agrees
that it will deliver the balance of the purchase
price due at Closing together with its share of
the Closing costs as herein provided.
11. MUTUAL COVENANTS.
Seller and Purchaser mutually covenant and agree
as follows:
a. FULFILLMENT OF CONDITIONS. If any event should
occur, either within or without the knowledge or
control of either party, which would prevent
fulfillment of the conditions to Closing provided
for herein, to use his, its or their reasonable
efforts to cure the same as expeditiously as
possible;
b. GOVERNMENTAL CONSENTS. To cooperate fully with
each other in taking any actions which are or may
be necessary to obtain the consent of any
government instrumentality or any third party or
to accomplish the transaction contemplated by this
Agreement; and
c. ESCROW INSTRUCTIONS. To execute and deliver
written instructions to Escrow Agent if necessary
or desirable to complete the purchase and sale of
the Property.
12. PURCHASER'S CONDITIONS TO CLOSING.
The obligation of Purchaser to acquire the
Property shall be subject to the satisfaction by Seller
or to the waiver by Purchaser of the following
conditions:
a. SELLER' REPRESENTATIONS AND WARRANTIES.
Seller's representations and warranties set forth
herein shall be true in all material respects at
and as of the Closing Date as those made as of the
date thereof.
b. SELLER'S PERFORMANCE. Seller shall have
performed all of its obligations hereunder which
are required to be performed as of the Closing
Date.
6
c. TITLE APPROVAL. Within fifteen (15) days
following the mutual execution of this Agreement,
Seller shall cause Chicago Title Insurance Company
(the Title Company ) to issue a commitment for
title insurance (including copies of all exception
documents referenced in said commitment) in an
amount equal to the purchase price, which
commitment shall provide for the issuance of a
final title policy as of the Closing Date, subject
to no liens or encumbrances, other than those
which may be approved by Purchaser (the "Title
Commitment"). The Title Commitment shall be issued
by Chicago Title Insurance Company ("Chicago
Title"), as the underwriter for the Title Policy
to be issued, and prepared through Chicago Title's
local agent, Xxxxxxxxxx County Abstract Company.
Copies of said Title Commitment together with all
exception documents shall be delivered to both
Purchaser and to Purchaser's counsel, at the
address set forth in Paragraph 18 below, within
said fifteen (15) day period. Within fifteen (15)
days following Purchaser's receipt of (i) the
Title Commitment, (ii) legible copies of all
exception documents referenced in the Title
Commitment, and (iii) the Survey, Purchaser shall
notify Seller of any items referenced in the Title
Commitment and/or the Survey to which it
disapproves. Within ten (10) days of Seller's
receipt of Purchaser's objections, Seller shall
advise Purchaser in writing as to whether it
intends to correct the defects to which Purchaser
has objected. If Seller refuses to correct some or
all of such defects or fails to notify Purchaser
within said ten (10) day period regarding its
intentions to correct the disapproved matters,
Purchaser shall have fifteen (15) days following
the earlier to occur of(i) Purchaser's receipt of
Seller's written notice regarding its refusal to
correct the disapproved matters or (ii) the
expiration of said ten (10) day period, to advise
Seller of Purchaser's decision to close,
notwithstanding the defects, or to terminate this
Agreement, in which case neither party shall have
any further rights or obligations hereunder. In
the event Purchaser fails to timely advise Seller
of its intention to terminate this Agreement,
Purchaser shall be conclusively deemed to have
rejected such title and survey defect(s) and shall
thereafter have the right to terminate this
Agreement. In the event of any such termination,
Purchaser shall be entitled to the return of its
Xxxxxxx Money and the parties shall have no
further rights or obligations hereunder.
d. TITLE POLICY. The Title Company shall issue to
Purchaser as of the Closing Date, an ALTA Extended
Owner's Policy of Title Insurance for the Real
Property (the "Title Policy") with a policy amount
of not less than the amount of the Purchase Price
insuring Purchaser's interest in the Real Property
and subject to no exceptions other than those of
the usual printed exceptions which are acceptable
to Purchaser (the survey exception, parties in
possession and mechanics lien exceptions being
specifically unacceptable to Purchaser) and those
exceptions to which Purchaser has not objected as
provided for in Paragraph 12.c. above.
f. FEASIBILITY STUDY. Purchaser shall conduct at
its sole cost and expense an intensive feasibility
study of the Real Property (the "Feasibility
Study"), which study shall include but not be
limited to, (i) reviewing and approving the
results of any environmental assessment report
which Purchaser may elect to obtain, and all
Property Documents required to be provided to
Purchaser by Seller, (ii) conducting such
engineering and soils studies, utilities
investigations, wetlands investigations, if
applicable, ALTA surveys and regulatory reviews,
as Purchaser deems appropriate to the development
of an assisted living facility consistent with the
developments plans of Purchaser (the "Facility")
and (iii) procuring approval for a Certificate of
Need ("CON") for the Real Property in order to
permit the construction and operation of the
Facility, subject to only such conditions as shall
be satisfactory to Purchaser. Within ninety (90)
days following the mutual execution of this
Agreement (the "Feasibility Period"), Purchaser
shall have approved or disapproved the results of
said Feasibility Study.
7
Notwithstanding the foregoing, if, despite
Purchaser's good faith efforts, Purchaser is
unable to secure final and non-appealable approval
for the issuance of the CON within said ninety
(90) day period, the Feasibility Period may be
extended for up to three (3) consecutive periods
of thirty (30) days each in order to permit
Purchaser the necessary time to procure said CON
approval. If at the end of the third such thirty
(30) day extension, Purchaser determines that it
shall need additional time in order to obtain said
final approval for the CON, Purchaser shall be
permitted to further extend the Feasibility Period
as Purchaser determines reasonably necessary
provided that, for each additional thirty (30) day
extension, the purchase price payable hereunder
shall be increased by an amount equal to Five
Hundred Dollars ($500.00). Any extension of the
Feasibility Period, as permitted hereunder, shall
exercisable by written notice sent to Seller on or
before the then current date for the expiration of
the Feasibility Period. Seller agrees to grant to
Purchaser and/or its agents, consultants and
contractors the right to enter the Real Property
for the purpose of performing such tests, studies
and investigations as Purchaser determines
necessary in connection with its Feasibility Study
of the Real Property; provided, however, that the
activities conducted by Purchaser and/or any of
its agents, consultants or contractors shall not
materially change or alter the character of the
Real Property. Seller further agrees to fully
cooperate with Purchaser concerning the components
of the Feasibility Study.
g. ZONING. On or before the Closing Date,
Purchaser shall have satisfied itself in its sole
and absolute discretion that the development and
operation of the Facility on the Real Property is
permitted under the Real Property's current zoning
designation.
h. BOARD APPROVAL. Prior to the Closing Date,
Purchaser shall have obtained the approval of its
Board of Directors to the acquisition of the
Property pursuant to the terms of this Agreement.
i. FINANCING. Prior to the Closing Date,
Purchaser shall have obtained from an
institutional lender, or other lender source
acceptable to Purchaser, a commitment to provide
construction financing for the improvements
contemplated to be constructed by Purchaser on the
Real Property on such terms and conditions as are
acceptable to Purchaser.
j. READINGS FOR CONSTRUCTION. Upon the Closing
Date, there shall exist no impediments to the
commencement of construction of the improvements
contemplated to be constructed by Purchaser such
that Purchaser shall be able to commence
construction of said improvements immediately
following the Closing (e.g. within 48 hours
following the Closing Date); excluding, however,
impediments resulting from weather conditions,
Purchaser's inability to timely procure a building
permit and other necessary and customary
governmental approvals, lack of construction
financing or any other impediment which is imposed
or caused by, the actions of Purchaser.
13. SELLER'S CONDITIONS TO CLOSING.
The obligation of Seller to convey the Property to
Purchaser shall be subject to the satisfaction by
Purchaser or the waiver by Seller of the following
conditions:
a. PURCHASER'S RE REPRESENTATIONS AND WARRANTIES.
Purchaser's representations and warranties set
forth herein shall be true at and as of the
Closing Date.
8
b. PURCHASER'S PERFORMANCE. Purchaser shall have
performed all of its obligations hereunder which
are required to be performed as of the Closing
Date.
14. INDEMNIFICATION BY SELLER.
Subject to the limitations set forth in Paragraph
16, Seller shall indemnify, defend and hold Purchaser
harmless from and against:
a. OBLIGATIONS EXISTING AS OF CLOSING DATE. Any
and all obligations relating to ownership of the
Property which exist as of the Closing Date,
except to the extent that such obligations relate
to a breach by Seller of a representation,
warranty or covenant set forth in this Agreement,
including, but not limited to, the representations
and warranties with respect to the environmental
condition of Real Property set forth in Paragraph
7.f., in which case Seller's obligation to
indemnity, defend and hold harmless Purchaser
shall be as set forth in Paragraph 14.b. ;
b. BREACH F REPRESENTATIONS AND WARRANTIES. Any
and all damage, loss, or liability resulting from
any material breach of any representation,
warranty or covenant made by Seller in this
Agreement or nonfulfillment of any agreement on
the part of Seller under this Agreement or from
any misrepresentation in or omission from any
certificate furnished or to be furnished to
Purchaser hereunder;
c. FEES AND EXPENSES. Any and all actions, suits,
proceedings, demands, assessments, judgments,
costs and legal and other expenses, including, but
not limited to, reasonable attorneys' fees,
incident to any of the foregoing.
For purposes of Paragraph 14.a., an obligation
shall be deemed to "exist" as of the Closing Date if it
relates to events which occurred prior to the Closing
Date even if it is not asserted until after the Closing
Date.
15. INDEMNIFICATION BY PURCHASER.
Subject to the limitations set forth in Xxxxxxxxx
00, Xxxxxxxxx shall indemnify, defend and hold Seller
harmless from and against:
a. OBLIGATIONS ACCRUING AFTER THE CLOSING DATE.
Any and all obligations relating to the ownership
of the Property accruing on or after the Closing
Date;
b. BREACH OF REPRESENTATION AND WARRANTIES. Any
and all damage, loss or liability resulting from a
material breach of any representation, warranty or
covenant of Purchaser in this Agreement or
nonfulfillment of any agreement on the part of
Purchaser under this Agreement or from any
misrepresentation in or omission from any
certificate furnished or to be furnished to Seller
hereunder; and
c. FEES AND EXPENSES. Any and all actions, suits,
proceedings, demands, assessments, judgments,
costs and legal and other expenses, including, but
not limited to, reasonable attorneys' fees,
incident to any of the foregoing.
16. TERMINATION.
9
a. TERMINATION BY PARTIES. This Agreement may be
terminated and the transaction contemplated herein
abandoned at any time prior to Closing:
(i) By mutual agreement of the parties;
(ii) By Seller, if any of the conditions set
forth in Paragraph 13 shall have become incapable
of fulfillment prior to the Closing Date or such
earlier date as may be specifically provided for
the performance thereof (as the same may be
extended) through no fault of Seller and the same
shall not have been waived by Seller;
(iii) By Purchaser, if any of the conditions
set forth in Paragraph 12 shall have become
incapable of fulfillment prior to the Closing Date
or such earlier date as may be specifically
provided for the performance thereof (as the same
may be extended) through no fault of Purchaser and
the same shall not have been waived by Purchaser;
(iv) By either Seller or Purchaser in the
event of a material breach by the other party of
its obligations hereunder; or
(v) If the Closing has not occurred by May
31,1997; subject, however, to any extensions to
the Closing Date by reason of extensions to the
Feasibility Period as provided for in Section 12.
f. above.
b. MATERIAL DAMAGE OR DESTRUCTION. In the event
that prior to the Closing Date, a material portion
of the Real Property shall have been damaged or
destroyed or shall have been taken or condemned by
any public or quasi-public authority under the
power of eminent domain, Purchaser shall have the
right to terminate this Agreement on written
notice to Seller which notice must be delivered
within ten (10) days after Purchaser receives
notice of such damage, destruction or
condemnation. In the event Purchaser fails to
exercise its termination rights hereunder, then it
shall be conclusively deemed to have waived said
right and Seller shall assign to Purchaser all of
its rights to any insurance proceeds or
condemnation award and all claims in the
connection therewith. In the event Purchaser
exercises its termination rights hereunder, the
parties shall have no further rights or
obligations hereunder other than Purchaser's right
to the return of its Xxxxxxx Money.
c. WRITTEN NOTICE. Neither party to this Agreement
may claim termination or pursue any other remedy
referred to in Paragraph 16.a. on account of a
breach of a condition, covenant or warranty by the
other, without first giving such other party
written notice of such breach and not less than
ten (10) days within which to cure such breach.
The Closing Date shall be postponed, if necessary,
to afford such opportunity to cure.
d. SELLER'S LIQUIDATED DAMAGES. In the event of
the termination of this Agreement by Seller as a
result of a material breach by Purchaser occurring
at any time following the expiration of the
Feasibility Period with respect to any of
Purchaser's obligations hereunder Seller's sole
remedy shall be to terminate this Agreement and to
retain Purchaser's Xxxxxxx Money as full and
complete liquidated damages, the parties
acknowledging and agreeing that the amount of
damages which Seller may incur as a result of such
termination may be difficult to ascertain and that
the amount of the Xxxxxxx Money is a reasonable
and fair estimate thereof, after which the parties
shall have no further rights or obligations
hereunder.
10
e. PURCHASER'S REMEDIES. In the event of the
termination of this Agreement by Purchaser as a
result of a material breach by Seller of its
obligations hereunder, Purchaser shall have the
right either to (i) terminate this Agreement and
receive a full refund of its Xxxxxxx Money,
together with all interest accrued thereon, after
which neither party shall have any further rights
or obligations hereunder or (ii) seek specific
performance of Seller's obligations hereunder or
damages for Seller's breach of its obligations
hereunder. In the event of the termination of this
Agreement by Purchaser as a result of a failure of
any of the Purchaser's conditions as set forth in
Paragraph 12 above, Purchaser shall be entitled to
a full refund of its Xxxxxxx Money, together with
all interest accrued thereon; provided, however,
in the event Purchaser terminates this Agreement
as a result of the failure of any of Purchaser's
conditions hereunder and Seller's in not in
default hereunder, Purchaser shall reimburse
Seller for the actual verifiable cost incurred by
Seller for the preparation of the Survey (not to
exceed $2,500.00).
17. BROKER.
Seller shall be responsible for any fees or
commissions claimed to Xx. Xxxxxx Xxxxx (the "Broker")
in connection with this Agreement and shall pay such
fees or commissions from the sale proceeds at the time
of Closing to Xx. Xxxxxx Xxxxx or to others at his
direction. Each party agrees to pay any commission or
finder's fee which may be due on account of this
Agreement to any other broker or finder employed by it
(other than the Broker, whose commission is the
responsibility of Seller) and each party agrees to
indemnify the other party against any claim for any
commission made by any broker allegedly employed by it.
18. NOTICES.
Any notice, request or other communication to be
given by any party hereunder shall be in writing and
shall be sent by registered or certified mail, postage
prepaid, by overnight courier guaranteeing overnight
delivery or by facsimile transmission (if confirmed
verbally or in writing by mail as aforesaid), to the
following address:
To Seller: Elks Lodge Xx. 000
x/x Xxxxxxx X. Xxxxxxxx, Xxx.
Xxxxx Xxxxxxx Banks Garman &
Xxxxxxxx
000 Xxxxx Xxxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
To Purchaser: South Bay Partners, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copies to: The Xxxxxxxxx Group
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: V. Xxxxxxx Xxxx, Esq.
11
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Notice shall be deemed given three (3) business days
after deposit in the mail, on the next day if sent by
overnight courier and on receipt if sent by facsimile
(and confirmed verbally or by mail as aforesaid).
19. AMENDMENT AND MODIFICATION.
This Agreement may not be amended or modified in
any respect whatsoever except by instrument in writing
signed by the parties hereto. This Agreement
constitutes the entire agreement between the parties
hereto and supersedes all prior negotiations,
discussions, writings and agreements between them.
20. ASSIGNMENT.
Purchaser shall have the right to assign its
rights and delegate its obligations hereunder, without
the prior written consent of Seller, provided that the
assignee agrees in writing to assume all of the
obligations of Purchaser hereunder from and after the
effective date of said assignment. In the event of any
such assignment, Seller agrees that South Bay Partners,
Inc. shall be relieved and released from any and all
further obligations and/or liability hereunder. In the
event of any such assignment, all of the references to
Purchaser herein shall be deemed to be references to
Purchaser's assignee, the representations set forth in
Paragraph 8 shall be revised accordingly and the terms
of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by and against said
assignee. Without limiting the generality of the
foregoing, Seller acknowledges that Purchaser is
contemplating assigning its rights and delegating its
obligations hereunder to Emeritus Corporation, a
Washington corporation.
21. WAIVER.
The waiver by any party of any breach of any of
the provisions of this Agreement shall not constitute a
continuing waiver or a waiver of any subsequent breach
of any provision of this Agreement.
22. INCORPORATION BY REFERENCE.
Each recital set forth and exhibit referenced in
this Agreement is incorporated and becomes an integral
part of this Agreement.
23. CAPTIONS.
The captions of this Agreement are for convenience
of reference only and shall not define or limit any of
the terms or provisions hereof.
24. SURVIVAL.
This Agreement shall survive the Closing Date and
thereafter remain binding on both Seller and Purchaser.
25. ATTORNEYS' FEES.
12
If any litigation or other proceedings are
commenced between parties to this Agreement regarding
the rights and duties of any party pursuant to, related
to or arising from this Agreement, then the prevailing
party with respect to the litigation or other
proceedings, shall be entitled, in addition to the
relief granted, a reasonable sum for attorneys' fees
and costs of the litigation or other proceedings.
26. GOVERNING LAW.
This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois.
27. SEVERABILITY.
Should any one or more of the provisions of this
Agreement be determined to be invalid, unlawful or
unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired thereby.
28. COUNTERPARTS.
This Agreement may be executed in any number of
counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and
the same instrument.
[Signatures of the parties on following page]
13
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth opposite each
patty's signature below and the last date of execution
shall be deemed the date of "mutual execution" as such
term is used herein.
Purchaser: SOUTH BAY
PARTNERS, INC.,
a Texas corporation
Dated: 10/4/96 By: /s/ Xxxxx
Xxxxxxxxx,
--------------------------------------
President
Seller: ELKS LODGE NO. 332, BPOE,
an Illinois corporation
Dated: 10/4/96
14
