EXHIBIT 10.12
PURCHASE AGREEMENT
▇▇▇▇▇▇ VALLEY BUSINESS PARK
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made and entered into as of this 14 day of
June, 2001 (the "Effective Date"), by and between STARBUCKS MANUFACTURING
CORPORATION, a Washington corporation ("Purchaser"), and CVBP, LLC, a Nevada
limited liability company ("Seller").
IN CONSIDERATION of the respective agreements hereinafter set forth,
Seller and Purchaser hereby agree as follows:
1. Purchase and Sale.
(a) Seller agrees to sell and convey to Purchaser, and Purchaser
agrees to purchase from Seller, on the terms and conditions set forth in this
Agreement, the Property. As used herein, the term the "Property" shall mean,
collectively: (i) that certain parcel of land located within the ▇▇▇▇▇▇ Valley
Business Park, Minden, Nevada, which park is shown on the attached map (the
"Park"), and containing approximately fifty (50) acres of land and more
particularly described on EXHIBIT A attached hereto (the "Land"), or any portion
thereof, in accordance with the terms set forth in Section 1(b) hereof, together
with all of Seller's right, title and interest in all rights, easements and
interests appurtenant thereto including, but not limited to, any streets or
other public ways adjacent to the Land and any development rights, mineral
rights owned by, or leased to, Seller; (ii) any and all structures, and systems
associated with the Property (all such improvements being referred to herein as
the "Improvements"); (iii) all personal property owned by Seller, located on or
in the Land or Improvements and used in connection with the operation and
maintenance of the Property (the "Personal Property";), including, without
limitation, any personal property listed on EXHIBIT B attached hereto; and (iv)
all trademarks, tradenames, permits, approvals, and entitlements and other
intangible property used in connection with the foregoing, including, without
limitation, all of Seller s right, title and interest in any and all warranties
and guaranties relating to the Property (the "Intangible Personal Property").
(b) On the closing of the purchase and sale contemplated
hereunder (the "Closing"), Seller agrees to sell and convey to Purchaser either
(i) the entire Property, or (ii) a portion of the Property, provided that such
portion shall not be less than thirty (30) acres of the Property, the size and
location of which shall be designated by Purchaser (the "Partial Parcel"), on
the terms and conditions set forth herein. On or before the last day of the
first Due Diligence Period, as such term is defined herein, Purchaser shall
provide Seller written notice of its intent to either purchase the Property or
purchase the Partial Parcel (the "Notice of Parcel Size Date") In the event that
Purchaser fails to give such written notice to Seller by the end of the Notice
of Parcel Size Date and Purchaser is electing to proceed with the acquisition of
the Property, then Purchaser shall be deemed to have elected to purchase the
entire Property. If applicable, during the five (5) year period commencing on
the Closing Date (the "Five Year Period"), Purchaser shall have the option to
purchase the remaining portion of the Property (the "Remaining Parcel")
by providing at least thirty (30) days' prior written notice to Seller, on the
same financial terms and conditions as the initial purchase of the Partial
Parcel.
(c) Seller and Purchaser hereby acknowledge that Purchaser
intends to use the Property to construct and erect on the Land a coffee roasting
facility and distribution center and related improvements ("Purchaser's
Project").
2. Purchase Price.
(a) The Purchase Price shall be determined by multiplying either
(i) One Dollar Five Cents ($1.05), if Purchaser elects to purchase at Closing
the entire portion of the Property and the entire portion of the Option Land (as
defined below) (collectively, the "100 Acre Parcel"), (ii) One Dollar Thirty
Three Cents ($1.33), if Purchaser elects to purchase between forty one (41) and
fifty (50) acres of the Property, (iii) One Dollar Thirty Seven Cents ($1.37),
if Purchaser elects to purchase between thirty five (35) and forty (40) acres of
the Property, or (iv) One Dollar Forty Cents ($1.40), if Purchaser elects to
purchase between thirty (30) and thirty four (34) acres of the Property, times
the total gross square footage, which square footage shall be determined by the
area within the Property or shown on the ALTA Survey, as defined below, and
shall exclude any land or easements which has been or will be dedicated to
public authorities in connection with the development of the Property or in
connection with the subdivision thereof. The total gross square footage shall be
determined by a survey approved and prepared by Purchaser, at Seller's sole
cost, which survey shall be certified by a duly licensed surveyor or surveyors
showing all physical conditions affecting the Property sufficient for deletion
of the survey exception from the Title Policy (the "ALTA Survey"). The Purchase
Price shall be paid to Seller at Closing, minus any applicable Option Deposits
amounts, as such term is defined below, if applicable, the Infrastructure
Deposit, as defined below, and any applicable credit against the Purchase Price
at the Closing in accordance with Sections 15(b) and 8(f)(i) hereof with respect
to the costs of the Phase I environmental report and the Geotechnical report,
and plus or minus prorations and other adjustments hereunder, in the manner set
forth in Section 2(b) below.
(b) The Purchase Price shall be paid as follows:
(i) Within three (3) business days after the mutual
execution and delivery hereof, Purchaser shall deposit a note in the amount of
One Hundred Fifty Thousand Dollars ($150,000) (the "Note") with a title company
mutually acceptable to the parties hereto (the "Title Company"), to secure
Purchaser's performance hereunder (the Note shall hereinafter be referred to as
the "Deposit"). Prior to the expiration of the Due Diligence Period, the Title
Company shall return the Deposit and, if applicable, the Infrastructure Deposit
(for the purposes of this Section 2(b)(i), the term "Infrastructure Deposit"
shall not include any amounts which have already been distributed or allocated
to Seller in accordance with Section 2(b)(iii) hereof), to Purchaser on
Purchaser's notification that this Agreement has terminated. Thereafter, if
Purchaser instructs Title Company to return the Deposit, and, if applicable, the
Infrastructure Deposit, then Title Company shall notify Seller of Purchaser's
demand, and, unless Title Company receives within seven (7) days of the date of
Title Company's notice an affidavit from Seller stating that there is a genuine
dispute as to which party is entitled to the proceeds of the Deposit, and, if
applicable, the Infrastructure Deposit, and describing the basis of Seller's
claim
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thereto, Title Company shall return the Deposit, and if applicable, the
Infrastructure Deposit, to Purchaser, without any further instructions or
authorizations from Seller. Except as provided to the contrary hereinbelow, if
Purchaser makes a demand for return of the Deposit, and if applicable, the
Infrastructure Deposit, and Title Company does receive such an affidavit from
Seller within seven (7) days after Title Company's notice, then Title Company
shall hold the Deposit, and, if applicable, the Infrastructure Deposit, in
escrow until the dispute as to which party is entitled to the proceeds of the
Deposit, and, if applicable, the Infrastructure Deposit, is resolved. If the
Closing (i) does not occur for any reason other than a breach by Purchaser, then
the Deposit, and, if applicable, the Infrastructure Deposit, shall be returned
to Purchaser in accordance with the provisions of Section 7 hereof, or (ii) does
occur, the Deposit, and, if applicable, the Infrastructure Deposit, shall be
returned to Purchaser at the Closing.
(ii) If Purchaser exercises any of its Due Diligence
Extension Options, as described below, Fifty Thousand Dollars ($50,000) in cash
shall be deposited into an interest bearing account on or before the
commencement date of each such applicable Due Diligence Extension Option
(collectively, the "Option Deposits"), and the amount of the Note shall be
reduced by Fifty Thousand Dollars ($50,000). Any interest on the Option Deposits
shall belong to Purchaser. The Option Deposits and all interest thereon shall be
applied against the Purchase Price at the Closing. The Option Deposits shall be
nonrefundable to Purchaser for any reason other than a breach by Seller or a
failure of any of the conditions described in Section 5(a) or 6 below.
(iii) Purchaser shall have the option, in Purchaser's
sole discretion, to require Seller to proceed with Seller's obligations set
forth in Sections 15(b) and 15(f), in accordance with Purchaser's reasonable
instructions, at any time prior to the Closing Date (the "Early Infrastructure
Obligations") by depositing in an interesting bearing account with the Title
Company an additional amount, in cash, which amount shall be determined by
Purchaser in Purchaser's sole discretion (the "Infrastructure Deposit"). If
Purchaser deposits the Infrastructure Deposit, Seller shall proceed with such
portion of the Early Infrastructure Obligations at such time that the Title
Company receives the Infrastructure Deposit. The Infrastructure Deposit shall be
paid to Seller as follows: in accordance with mutually acceptable escrow
instructions to be agreed to by the parties hereto within ten (10) days after
the execution and delivery hereof, Seller shall be reimbursed from the
Infrastructure Deposit for sums which it has actually paid to unaffiliated third
parties prior to Closing, in connection with the Early Infrastructure
Obligations, within five (5) business days after Seller delivers proof of such
payments to Purchaser and Purchaser approves such payments and the work
performed therefor. In the event that the Closing contemplated hereunder does
not occur for any reason whatsoever, Purchaser shall be fully refunded any
amount remaining in the Infrastructure Deposit which has not already been
distributed or allocated to Seller in accordance with the terms hereof. Any
interest on the Infrastructure Deposit shall belong to Purchaser. The
Infrastructure Deposit and all interest thereon (including any amounts paid or
allocated to Seller) shall be applied against the Purchase Price at the Closing.
The Infrastructure Deposit shall be fully refundable to Purchaser in the event
of any breach by Seller or a failure of any of the conditions described in
Section 5(a) or 6 below. Notwithstanding anything contained herein, in the event
that the Infrastructure Deposit is refunded to Purchaser in accordance with the
preceding sentence, such refund shall include any and all amounts which have
already been paid or been allocated to Seller under this Section 2(b)(iii) and
Seller shall immediately pay such amounts to Purchaser.
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(iv) The balance of the Purchase Price shall be paid to
Seller at the Closing in immediately available funds.
3. Title to the Property.
(a) At Closing, the Title Company shall issue to Purchaser an
ALTA Owner's Policy of Title Insurance (Form B, rev. 10/17/70) in the amount of
the Purchase Price, insuring fee simple title to the Land or, if applicable, the
100 Acre Parcel and the Improvements in Purchaser, subject only to the Permitted
Exceptions (as hereinafter defined) (the "Title Policy"). The Purchaser's
obligation to consummate the Closing shall be conditioned upon the Title Policy
providing full coverage against mechanics', materialmen's and brokers' liens
arising out of the construction, repair or alteration of the Improvements, if
any, and shall contain such special endorsements as Purchaser may require (the
"Endorsements"). Seller shall execute and deliver to Title Company an owner's
affidavit sufficient to support the issuance of the Title Policy. As used
herein, the term "Permitted Exceptions" shall mean, collectively: (i) the
standard printed exceptions on an ALTA Owner's Policy of Title Insurance (Form
B, rev. 10/17/70), (ii) nondelinquent liens for general real estate taxes and
assessments, (iii) matters disclosed by a current survey of the Property and
approved by Purchaser hereunder, and (iv) any exceptions disclosed by the
Preliminary Reports (as defined below) or any Supplements (as defined below) and
approved by Purchaser hereunder. Notwithstanding the foregoing, the term
"Permitted Exceptions" shall not include (x) any monetary liens, including,
without limitation, the liens of any deeds of trust or other loan documents
secured by the Property, other than current real estate taxes, or (y) any
mechanics', materialmen's and brokers' liens.
4. Due Diligence and Time for Satisfaction of Conditions.
Purchaser shall have the right to commence Due Diligence with respect to
the Property following the Effective Date and the due diligence period ("Due
Diligence Period") shall expire on either (i) the date that is ninety (90) days
after the Effective Date or (ii) on such earlier date that Purchaser shall
designate. Purchaser shall have three (3) options to extend the Due Diligence
Period for a period of thirty (30) days each (collectively, the "Due Diligence
Period Extension Options"). Purchaser must provide written notice to Seller of
its intent to exercise a Due Diligence Period Extension Option, in the case of
the first such Due Diligence Period Extension Option, on or before the
expiration of the Due Diligence Period, or, in the case of the second or third
such Due Diligence Period Extension Option, on or before the expiration of the
previous Due Diligence Period Extension. As used herein, the Due diligence
Period shall mean the Due Diligence Period as extended pursuant to the terms
hereof. Seller shall make available to Purchaser and its employees,
representatives, counsel and consultants access to all of its books, records and
files relating to the Property in Seller's possession or reasonable control,
including, without limitation, all of the items set form on said Exhibit C other
than the Delivery Items (collectively, the "Due Diligence Items"), and Seller
agrees, to the extent reasonably feasible, to allow Purchaser to make copies at
Seller's office or the property management office of such items as Purchaser
reasonably requests. Notwithstanding the foregoing, Seller shall not be required
to make available or provide to Purchaser any Due Diligence Items that are
attorney-client privileged.
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5. DILIGENCE PERIOD CONDITIONS.
The following conditions are precedent to Purchaser's obligation to
purchase the Property and to deliver the Purchase Price (the "Diligence Period
Conditions"):
(a) Purchaser's review and approval of title to the Property, as
follows. Seller shall deliver to Purchaser at Seller's sole cost and expense,
within five (5) days after the Effective Date, or at such other time as
specified below, the following:
(i) a current standard coverage preliminary title report
with respect to all of the Land, or, if applicable, the 100 Acre Parcel, issued
by Title Company, accompanied by copies of all documents referred to in the
report (the "Preliminary Report"), provided, however, that not withstanding
anything contained herein, immediately after Seller receives a copy of the ALTA
Survey, Seller shall order the Preliminary Report and deliver the same to
Purchaser and its counsel within forty eight (48) hours of receiving the
Preliminary Report;
(ii) copies of all existing and proposed easements,
covenants, restrictions, agreements or other documents which affect title to the
Property that are actually known by Seller and that are not disclosed by the
Preliminary Reports;
(iii) the ALTA Survey (notwithstanding anything
contained herein, the ALTA Survey shall be delivered to Purchaser within 10
business days of the date hereof), the Phase I environmental report, and the
Geotechnical report (as described in Section 5(b) hereof),
(iv) copies of the most recent property tax bills for
the Property,
(v) copies of all documents relating to actions, suits,
and legal or administrative proceedings affecting the Property;
(vi) financial information concerning income and
expenses relating to the ownership and operation of the Property; and
(vii) copies of any leases or other occupancy
agreements, if any, (the "Leases") affecting the Property (any such Leases shall
be terminated on or before Closing).
Purchaser shall deliver written notice (the "Objection Notice") to
Seller, prior to the end of the Due Diligence Period, if any of the exceptions
to title disclosed by the Preliminary Report, the ALTA Survey, any surveys
provided by Seller or any surveys obtained by Purchaser during the Due Diligence
Period are objectionable to Purchaser ("Objections"). Seller shall have three
(3) days after receipt of the Objection Notice to give Purchaser: (i) written
notice that Seller shall use all reasonable efforts to remove all Objections
from title on or before the Closing Date, or (ii) written notice that Seller
elects not to cause the Objections to be removed. If Seller shall fail to give
Purchaser written notice of its election under clause (i) or (ii) of the
preceding sentence within said three (3) days, Seller shall have deemed to have
elected not to cause the Objections to be removed. If Seller gives Purchaser
notice under clause (ii), Purchaser shall have ten (10) days to elect to proceed
with the purchase or terminate this Agreement. If Purchaser shall fail to give
Seller written notice of its election within said ten (10) days, Purchaser shall
be deemed to have elected to terminate this Agreement. If Seller gives notice
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under clause (i) above and fails to remove all the Objections prior to the
Closing Date and Purchaser is unwilling to accept title subject to such
Objections in its sole and absolute discretion, Purchaser shall have, as its
sole right and remedy on account of such failure by Seller, the right to
terminate this Agreement. In the event that Purchaser terminates this Agreement
pursuant to this paragraph, the Deposit, if applicable, the Infrastructure
Deposit and the Option Deposits, if any, shall be immediately returned to
Purchaser and neither party shall have any further obligations hereunder except
to the extent set forth in Sections 12, 16(b), 16(g), 16(k) and 16(l) hereof.
In the event the Title Company issues any supplement ("Supplement") to
the Preliminary Report during the term of this Agreement, Purchaser shall have
until the later of the end of the Due Diligence Period and ten (10) days
following delivery of such Supplement to Purchaser to deliver an Objection
Notice to Seller setting forth any Objections to any exceptions contained
therein and not disclosed in the Preliminary Report, or any prior Supplement
thereto. Thereafter, Seller shall have three (3) days after receipt of such
Objection Notice to give Purchaser: (x) written notice that Seller shall use all
reasonable efforts to remove all Objections from title on or before the Closing
Date; or (y) written notice that Seller elects not to cause the Objections to be
removed. If Seller shall fail to give Purchaser written notice of its election
under clause (x) or (y) of the preceding sentence within said three (3) days,
Seller shall have deemed to have elected not to cause the Objections to be
removed. If Seller gives Purchaser notice under clause (y), Purchaser shall have
five (5) days to elect to proceed with the purchase or terminate this Agreement.
If Purchaser shall fail to give Seller written notice of its election within
said five (5 ) days, Purchaser shall be deemed to have elected to terminate this
Agreement. If Seller gives notice under clause (x) above and fails to remove all
the Objections prior to the Closing Date and Purchaser is unwilling to accept
title subject to such Objections in its sole and absolute discretion, Purchaser
shall have, as its sole right and remedy on account of such failure by Seller,
the right to terminate this Agreement. In the event that Purchaser terminates
this Agreement pursuant to this Section, the Deposit, if applicable, the
Infrastructure Deposit and the Option Deposits, if any, shall be immediately
returned to Purchaser and neither party shall have any further obligations
hereunder except to the extent set forth in Sections 12, 16(b), 16(g), 16(k) and
16(l) hereof.
Notwithstanding anything to the contrary provided herein, Seller shall
be obligated to remove from title prior to the Closing (a) any delinquent taxes
and assessments, (b) any mechanics', materialmen's and broker liens (other than
any mechanics, materialmen's and broker liens for which Purchaser is responsible
under the terms of this Agreement), (c) any other monetary liens, and (d) any
exceptions caused by Seller's voluntary acts after the Effective Date and not
approved by Purchaser hereunder.
(b) Purchaser's review and approval in its sole and absolute
discretion, prior to the expiration of the Due Diligence Period, of all aspects
of the Property, including, without limitation, all of the Due Diligence Items
and the results of Purchaser's examinations, inspections, testing, and or
investigations of the Property (collectively, "Purchaser's Due Diligence
Investigations"). Purchaser's Due Diligence Investigations shall include an
examination for the presence or absence of Hazardous Material (as defined below)
on, under or in the Property. In connection therewith, Purchaser shall have
prepared, at Purchaser's sole cost and expense, except to the extent that such
cost shall be credited against the Purchase Price at the
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Closing in accordance with section 8(f)(i) hereof, a current Phase I
Environmental report and a current Geotechnical report covering soils and
related matters, as designated by Purchaser. Any sums in excess of such amount
shall be paid by Purchaser. Purchaser shall deliver copies of all such reports
to Seller prior to the Closing without any warranty or representation as to the
accuracy thereof. In addition, in Purchaser's discretion and at Purchaser's sole
cost and expense, it may chose to engage in or otherwise conduct any additional
environmental studies or environmental testing or sampling with respect to the
Property or with respect to the soils or ground water. Seller or its
representative may be present to observe any testing performed on the Property
by Purchaser or its representatives. As used herein, the term, "Hazardous
Material" shall mean any substance, chemical, waste or other material which is
listed, defined or otherwise identified as "hazardous" or "toxic" under any
federal, state, local or administrative agency ordinance or law, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Sections 9601 et seq.; and the Resource Conservation
and Recovery Act, 42 U.S.C. Sections 6901 et seq.; or any regulation, order,
rule or requirement adopted thereunder, as well as any formaldehyde, urea,
polychlorinated biphenyls, petroleum, petroleum product or by-product, crude
oil, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas
usable for fuel or mixture thereof, radon, asbestos, and "source," "special
nuclear" and "by-product" material as defined in the Atomic Energy Act of 1985,
42 U.S.C. Sections 3011 et seq.
(c) Purchaser's review and approval, prior to the expiration of
the Due Diligence Period, of a schedule prepared by Seller and delivered to
Purchaser on or before the Effective Date, identifying all of the service
contracts and similar agreements that Seller intends to assign to Purchaser at
Closing (the "Schedule of Agreements"). Purchaser shall have the right, in its
sole discretion, to require the termination of any service contract or other
agreement identified on the Schedule of Agreements effective as of the Closing
Date, by delivering to Seller written notice (the "Contract Termination Notice")
on or before the expiration of the Due Diligence Period (collectively
"Terminable Agreements"). If Purchaser fails to deliver the Contract Termination
Notice within such time period, Purchaser shall be deemed to have elected to
assume all of the agreements identified on the Schedule of Agreements. Under all
circumstances, Seller shall cause to be terminated as of the Closing all
property management agreements and leasing agreements, if any, with respect to
the Property. Those service contracts and agreements identified on the Schedule
of Agreements that are not terminated by Purchaser pursuant to this Section 5(c)
are referred to herein as the "Assumed Contracts."
(d) Purchaser's review and approval, prior to the expiration of
the Due Diligence Period, of reports by engineers and/or architects selected by
Purchaser to inspect the Property.
(e) Purchaser's review and approval, prior to the expiration of
the Due Diligence Period, of all documents evidencing or securing the existing
encumbrances, all certificates of occupancy, permits, environmental, soil,
traffic, subdivision and zoning reports, studies or documents, insurance
policies, warranties, any other agreements, reports, studies, inspections or
investigations of the Property, and any other contracts, documents or items of
significance to the Property.
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(f) Purchaser's review, prior to the expiration of the Due
Diligence Period, of all actions, suits, and legal or administrative proceedings
affecting the Property.
(g) Purchaser's review and approval, prior to the expiration of
the Due Diligence Period, of evidence satisfactory to Purchaser and its legal
counsel that the Property complies with all applicable zoning, subdivision, land
use, redevelopment, energy, environmental and other governmental requirements,
including but not limited to current height, setback, floor-to-area ratio and
Federal Aviation Administration restrictions and regulations, applicable to the
use, maintenance and occupancy of the Property and of Purchaser's Project.
(h) Review and approval, prior to the expiration of the Due
Diligence Period, by Purchaser and its legal counsel of all documentation
relating to contracts, service agreements, closing documentation, title, and all
other legal matters related to the Property and its acquisition by Purchaser.
(i) Purchaser's review and approval, prior to the expiration of
the Due Diligence Period, of the physical condition of the Property, including,
without limitation, of all improvements located thereon, if any, and the
confirmation that the Property does not contain any asbestos containing
materials or hazardous materials.
(j) Purchaser's review and approval, prior to the expiration of
the Due Diligence Period, of written agreements from governmental agencies and
other third parties obtained by Purchaser, in forms acceptable to Purchaser,
which specify and define all tax, economic and other benefits that will be
available and/or provided to Purchaser in connection with Purchaser's project,
and any and all air quality/pollution credits, permits or approvals necessary in
connection with Purchaser's project on the Property, including without
limitation the operation of twelve (12) roasters. Seller shall exercise its best
efforts to cooperate with and assist Purchaser in Purchaser's efforts to obtain
such tax, economic and other benefits, and shall use its contacts and
relationships with governmental agencies and other parities to facilitate
Purchaser's efforts to obtain such tax, economic, and other benefits, and in the
event that Seller is able to obtain any such air quality pollution credits or
permits, Seller shall convey such credits or permits to Purchaser at the
Closing, at no cost to Purchaser, and pursuant to documents and instruments
required by Purchaser.
(k) Purchaser's review and approval, prior to the expiration of
the Due Diligence Period, of any and all off-site mitigation, improvement and
assessment requirements which will be imposed in connection with Purchaser's
Project on the Property.
(l) Receipt by Purchaser of a certificate, prior to the
expiration of the Due Diligence Period, in form satisfactory to Purchaser,
confirming that all state and local real property and business taxes pertaining
to the Property (including, without limitation, all corporate, sales, and
withholding taxes) have been paid in full by Seller.
Prior to the end of the Due Diligence Period, Purchaser shall
deliver written notice (the "Approval Notice") to Seller informing Seller
whether or not Purchaser has approved or waived all of the Due Diligence Period
Conditions. Notwithstanding anything in this Agreement to the contrary,
Purchaser shall have the right to terminate this Agreement at any time prior to
the end
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of the Due Diligence Period, in its sole and absolute discretion and for any or
for no reason whatsoever. If, by the end of the Due Diligence Period, Purchaser
shall not have delivered the Approval Notice to Seller approving or waiving all
of the Due Diligence Period Conditions, then this Agreement shall automatically
terminate. In the event that this Agreement is terminated pursuant to this
Section, the Deposit and the Infrastructure Deposit (excluding any amounts which
have already been distributed or allocated to Seller in accordance with Section
2(b)(iii) hereof) shall be immediately returned to Purchaser and neither party
shall have any further obligations hereunder except to the extent set forth in
Sections 12, 16(b), 16(g), 16(k) and 16(l) hereof.
6. Conditions to Closing.
The following conditions are precedent to Purchaser's obligation to
acquire the Property and to deliver the Purchase Price (the "Conditions
Precedent"). If any Conditions Precedent are not satisfied as determined by
Purchaser in Purchaser's sole discretion, Purchaser may elect by written notice
to Seller to terminate the Agreement and receive a refund of the Deposit, if
applicable, the Infrastructure Deposit and the Option Deposits, if any. Upon
such termination, neither party shall have any further obligations hereunder
except as provided in Sections 12, 16(b), 16(g), 16(k) and 16(l) hereof.
(a) This Agreement shall not have terminated pursuant to any
other provision hereof, including, without limitation, Section 5 above.
(b) The physical condition of the Property shall be
substantially the same on the day of Closing as on the date of Purchaser's
execution of this Agreement, reasonable wear and tear and loss by casualty
excepted (subject to the provisions of Section 11 below), and, as of the day of
Closing, there shall be no litigation or administrative agency or other
governmental proceeding of any kind whatsoever, pending or threatened, which
after Closing would materially adversely affect the value of the Property or the
ability of Purchaser to operate the Property in the manner in which it is
currently being operated or the ability of Purchaser to construct and operate
Purchaser's Project, and no proceedings shall be pending or threatened which
could or would cause the redesignation or other modification of the zoning
classification of, or of any buildings code requirements applicable to the
Property or any portion thereof, which after Closing would materially adversely
affect the value of the Property or the ability of Purchaser to operate the
Property in the manner in which it is currently being operated or the ability of
Purchaser to construct and operate Purchaser's Project.
(c) Title Company shall be irrevocably and unconditionally
committed to issue to Purchaser the Title Policy as described in Section 3(a)
above (subject only to payment of its premiums therefor).
(d) All of Seller's representations and warranties contained
herein shall be true and correct on the Closing Date.
(e) Prior to the end of the Due Diligence Period Seller and
Purchaser shall have agreed, in each party's reasonable discretion, upon the
changes, if any, in the covenants, conditions, restrictions and easements which
are to be recorded with respect to the Land at or
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prior to the Closing from the current form of that certain Declaration of
Covenants, Conditions and Restrictions of ▇▇▇▇▇▇ Valley Business Park as of
December 8, 1993 (the "CC&Rs"), provided, however, that Purchaser shall only be
subject to a maximum assessment (as such term is defined herein) amount under
the CC&Rs of Two Thousand Dollars ($2,000) per year, for a period of five (5)
years from the Closing Date. This Section 6(e) shall survive the Closing
(f) Promptly following the mutual execution of this Agreement
and at least ten (10) business days prior to Closing, Seller, at Seller's cost,
(i) shall file an appropriate and complete application with ▇▇▇▇▇▇▇ County for
▇▇▇▇▇▇▇ County's approval of parcel maps ("Parcel Maps") in form and substance
reasonably approved by Purchaser in order to subdivide the Property, the
Remaining Parcel (if applicable, and the Option Land (as such term is defined
herein) as separate legal parcels, (ii) shall diligently process such
applications and (iii) shall otherwise exercise its best efforts to obtain
▇▇▇▇▇▇▇ County's approval of the Parcel Maps and to cause the Parcel Maps to be
duly filed.
(g) During the Due Diligence Period, at Purchaser's Option,
Purchaser shall acquire water and sewer rights for water and sewer utility
services in capacities deemed by Purchaser, in Purchaser's sole discretion, to
be sufficient to serve Purchaser's Project from ▇▇▇▇▇▇▇ County. In the event
that Purchaser attempts to purchase such rights from ▇▇▇▇▇▇▇ County, Seller
shall be obligated to diligently and actively assist Purchaser with the
acquisition of such rights. In addition, upon the Closing, at no cost to
Purchaser, Seller shall convey to Purchaser 19.89 acre feet of water rights, any
additional water rights that Seller has the right to acquire, and approximately
2.87 equivalent domestic units of sewer rights pursuant to instruments and
documents approved by Purchaser.
(h) Seller has performed all of its covenants hereunder.
7. Remedies.
(a) In the event the sale of the Property is not consummated
because of the failure of any condition or any other reason except a default
under this Agreement solely on the part of Purchaser, the Deposit, and, if
applicable, the Infrastructure Deposit, shall immediately be returned to
Purchaser. If said sale is not consummated solely because of a default under
this Agreement on the part of Purchaser, Seller shall be excused from further
performance hereunder and the Deposit shall be paid to and retained by Seller as
liquidated damages. The parties have agreed that Seller's actual damages, in the
event of a default by Purchaser, would be extremely difficult or impracticable
to determine. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES
ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE
PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS SELLER'S EXCLUSIVE
REMEDY AGAINST PURCHASER, AT LAW OR IN EQUITY, IN THE EVENT OF SUCH A DEFAULT
UNDER THIS AGREEMENT ON THE PART OF PURCHASER. THE PARTIES ACKNOWLEDGE THAT THE
PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY,
BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER.
INITIALS: Seller [Initials Illegible] Purchaser [Initials Illegible]
-------------------- --------------------
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(b) In the event the sale of the Property is not consummated
because of a default under this Agreement on the part of Seller, Purchaser may
either (1) terminate this Agreement by delivery of written notice of termination
to Seller, whereupon (A) the Deposit, if applicable, the Infrastructure Deposit
and all Option Deposits shall be immediately returned to Purchaser, and (B)
Seller shall pay to Purchaser any out-of-pocket title, survey, environmental
report or study, escrow, legal and inspection fees, costs and expenses actually
incurred by Purchaser and any other out-of-pocket fees, costs and expenses
actually incurred by Purchaser in connection with the performance of its due
diligence review of the Property and the negotiation and performance of this
Agreement, including, without limitation, environmental and engineering
consultants' fees and expenses, and neither party shall have any further rights
or obligations hereunder except to the extent set forth in Sections 12, 16(b),
16(g), 16(k) and 16(l) hereof, or (2) continue this Agreement and bring an
action for specific performance hereof.
8. Closing and Escrow.
(a) Upon mutual execution of this Agreement, the parties hereto
shall deposit an executed counterpart of this Agreement with Title Company and
this Agreement shall serve as instructions to Title Company for consummation of
the purchase and sale contemplated hereby. Seller and Purchaser agree to execute
such additional escrow instructions as may be appropriate to enable the title
company to comply with the terms of this Agreement; provided, however, that in
the event of any conflict between the provisions of this Agreement and any
supplementary escrow instructions (other than joint escrow instructions), the
terms of this Agreement shall control.
(b) The parties shall conduct an escrow Closing pursuant to this
Section 8 on either (i) the date that is thirty (30) days after the expiration
of the Due Diligence Period, (ii) on such other earlier date as designated by
Purchaser, or (iii) or on such later date as Purchaser and Seller may agree in
their sole and absolute discretion (the "Closing Date"). In the event the
Closing does not occur on or before the Closing Date, the Title Company shall,
unless it is notified by both parties to the contrary within five (5) days after
the Closing Date, return to the depositor thereof items which were deposited
hereunder. Any such return shall not, however, relieve either party of any
liability it may have for its wrongful failure to close.
(c) At or before the Closing, Seller shall deliver to Title
Company (for delivery to Purchaser upon Closing) the following (other than the
materials described in clause (xi) below, which shall be delivered directly to
Purchaser by Seller substantially concurrent with the Closing):
(i) a duly executed and acknowledged grant, bargain and
sale deed in the form attached hereto as EXHIBIT E (the "Deed");
(ii) an assignment of service contracts, warranties and
guaranties and other intangible property in the form attached hereto as EXHIBIT
F (the "Assignment of Intangible Property");
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(iii) originals of all Assumed Contracts and all other
material documents, agreements and correspondence and items relating to the
ownership, operation, maintenance or management of the Property;
(iv) a "FIRPTA Affidavit" pursuant to Section 1445
(b)(2) of the Internal Revenue Code duly executed by Seller which Affidavit
shall indicate that no federal withholding shall be required;
(v) such resolutions, authorizations, bylaws or other
corporate and/or partnership documents relating to Seller as shall be required
by Title Company;
(vi) the certificate certifying as to Seller's
representations and warranties as required by Section 9(b) below;
(vii) all personal property described in the ▇▇▇▇ of
Sale to the extent in Seller's possession or reasonable control; and
(viii) any other closing documents reasonably requested
by Title Company. Purchaser may waive compliance on Seller's part under any of
the foregoing items by an instrument in writing.
(d) At or before the Closing, Purchaser shall deliver to Title
Company (for delivery to Seller upon Closing) the following;
(i) the duly executed Assignment of Intangible Property;
(ii) such resolutions, authorizations, bylaws or other
corporate and/or partnership documents or agreements relating to Purchaser as
shall be required by Title Company;
(iii) the duly executed and acknowledged affidavit of
real property value;
(iv) any other customary and/or reasonable closing
documents requested by Title Company or Purchaser (provided that in no event
shall any such documents increase the liability of Purchaser); and
(v) the balance of the Purchase Price in cash or other
immediately available funds, subject to prorations and adjustments as set forth
herein.
(e) Seller and Purchaser shall each deposit such other
instruments as are reasonably required by the title company or otherwise
required to close the escrow and consummate the acquisition of the Property in
accordance with the terms hereof (provided that in no event shall any such
documents increase the liability of Purchaser or Seller). Seller and Purchaser
hereby designate Title Company as the "Reporting Person" for the transaction
pursuant to Section 6045(e) of the Internal Revenue Code and the regulations
promulgated thereunder and agree to execute such documentation as is reasonably
necessary to effectuate such designation.
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(f) The following are to be apportioned as of the Closing Date
as follows, with Purchaser being deemed to be the owner of the Property during
the entire day on which the Deed is recorded and being entitled to receive all
income of the Property, and being obligated to pay all expenses of the Property,
with respect to such day:
(i) Other Apportionments; Closing Costs. Amounts payable
under the Assumed Contracts, annual or periodic permit and/or inspection fees
(calculated on the basis of the period covered), and liability for other
Property operation and maintenance expenses and other recurring costs shall be
apportioned as of the Closing Date. Seller shall pay all transfer taxes with
respect to the Property, any recording fees and one-half (1/2) of the escrow
fee. Seller shall pay the premium for the Title Policy that is properly
allocable to the CLTA or standard coverage portion thereof and all endorsements,
and Purchaser shall pay the portion for such premium that is properly allocable
to the ALTA or extended coverage portion and one-half (1/2) of the escrow fee.
Seller shall be responsible for all costs incurred in connection with the
prepayment or satisfaction of any loan secured by the Property, including,
without limitation, any prepayment fees, penalties or charges. At the Closing,
all costs associated with updating and/or preparing the Phase I environmental
report and the Geotechnical report, up to the maximum amount of Twenty Thousand
Dollars ($20,000), shall be credited, for the benefit of Purchaser, against the
Purchase Price. All other costs and charges of the escrow for the sale not
otherwise provided for in this Subsection 8(f)(i) or elsewhere in this Agreement
shall be allocated in accordance with the applicable closing customs for the
county in which the Property is located as determined by the Title Company.
(ii) Real Estate Taxes and Special Assessments. All
delinquent real estate taxes and assessments shall be paid by Seller at or
before Closing. Non-delinquent real estate taxes and assessments shall be
prorated between Purchaser and Seller as of the Closing Date using the actual
current tax ▇▇▇▇, but if such tax ▇▇▇▇ is not available at Closing, then such
proration shall use an estimate calculated to be 102% of the amount of the
previous year's tax ▇▇▇▇, subject to a post-Closing reconciliation using the
actual current tax ▇▇▇▇ when received pursuant to Subsection 8(f)(iv) below. In
the proration(s), Purchaser shall be credited with an amount equal to the real
estate taxes and assessments applicable to the period prior to the Closing Date,
to the extent such amount has not been actually paid by Seller. In the event
that Seller has paid prior to Closing any real estate taxes or assessments
applicable to the period after the Closing Date, Seller shall be entitled to a
credit for such amount. If, after Closing, any additional real estate taxes or
assessments applicable to the period prior to the Closing Date are levied for
any reason, including back assessments, escape assessments or any assessments
under, then Seller shall pay all such additional amounts.
(iii) Preliminary Closing Adjustment. Seller and
Purchaser shall jointly prepare a preliminary Closing adjustment on the basis of
any sources of income and expenses, and shall endeavor to deliver such
computation to Title Company at least two (2) days prior to Closing.
(iv) Post-Closing Reconciliation. If any of the
aforesaid prorations cannot be calculated accurately on the Closing Date, then
they shall be calculated as soon after the Closing Date as feasible. Either
party owing the other party a sum of money based on such
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subsequent proration(s) shall promptly pay said sum to the other party, from the
Closing Date to the date of payment if payment is not made within ten (10) days
after delivery of a ▇▇▇▇ therefor.
(v) Survival. The provisions of this Section 8(f) shall
survive the Closing.
9. Representations and Warranties of Seller.
(a) Seller hereby represents and warrants to Purchaser as
follows:
(i) Seller has not, and as of the Closing Seller shall
not have (A) made a general assignment for the benefit of creditors, (B) filed
any voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by Seller's creditors, (C) suffered the appointment of a receiver to
take possession of all, or substantially all, of Seller's assets, which remains
pending as of such time, (D) suffered the attachment or other judicial seizure
of all, or substantially all, of Seller's assets, which remains pending as of
such time, (E) admitted in writing its inability to pay its debts as they come
due, or (F) made an offer of settlement, extension or composition to its
creditors generally.
(ii) Seller is not, and as of the Closing shall not be,
a "foreign person" as defined in Section 1445 of the Internal Revenue Code of
1986, as amended (the "Code") and any related regulations.
(iii) This Agreement (A) has been duly authorized,
executed and delivered by Seller, and (B) does not, and as of the Closing shall
not, violate any provision of any agreement or judicial order to which Seller is
a party or to which Seller or the Property or the 100 Acre Parcel is subject.
(iv) Seller has full and complete power and authority to
enter into this Agreement and to perform its obligations hereunder, subject to
the terms and conditions of this Agreement.
(v) There are no Leases affecting the Property or the
100 Acre Parcel.
(vi) To Seller's knowledge, there is no litigation
pending or threatened with respect to the Property or the 100 Acre Parcel or the
transactions contemplated hereby.
(vii) To Seller's knowledge, there are no violations of
any applicable buildings codes or any applicable environmental, zoning or land
use law, or any other applicable local, state or federal law or regulation
relating to the Property or the 100 Acre Parcel, including, without limitation,
the Americans with Disabilities Act of 1990.
(viii) To Seller's knowledge, Seller has not failed to
obtain any material governmental permit necessary for the operation of the
Improvements in the manner in which they are presently being operated.
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(ix) To Seller's knowledge, Purchaser's Project complies
with all zoning, land use and Environmental laws and regulations, and any and
all such laws and regulations are final and non-appealable.
(x) To Seller's knowledge, there are no condemnation,
zoning, environmental or other governmental proceedings pending or threatened
that would affect the Property or the 100 Acre Parcel, or Purchaser's Project.
Seller has not received any written notice of any special assessment proceedings
affecting the Property or the 100 Acre Parcel, that is not disclosed on the
Preliminary Reports.
(xi) Seller has not granted any option or right of first
refusal or first opportunity to any party to acquire any fee or ground leasehold
interest in any portion of the Property or the 100 Acre Parcel.
(xii) To the best of Seller's knowledge, there are no
physical defects applicable to the Property or the 100 Acre Parcel.
(xiii) The Due Diligence Items and documents delivered
to Purchaser pursuant to this Agreement will be all of the relevant documents,
materials, reports and other items pertaining to the condition and operation of
the Property or the 100 Acre Parcel, will be true and correct copies, and will
be in full force and effect, without default by any party and without any right
of set-off except as disclosed in writing at the time of such delivery.
(xiv) Neither Seller, nor to the best of Seller's
knowledge, any third party has used, manufactured, stored or disposed of, on
under or about the Property or the 100 Acre Parcel or transported to or from the
Property or the 100 Acre Parcel, any Hazardous Materials.
(xv) No detention ponds shall be required on the
Property or the 100 Acre Parcel in connection with any third party user on the
Park or in connection with the Park generally.
(xvi) Except for those portions of the Park which have
been sold to users who have constructed buildings in the Park, Seller owns the
entire Park, and Seller holds a title insurance policy insuring Seller that
Seller owns the Park.
(b) It shall be a condition precedent to Purchaser's obligation
to purchase the Property or the 100 Acre Parcel and to deliver the Purchase
Price that all of Seller's representations and warranties contained in or made
pursuant to this Agreement shall have been true and correct when made and shall
be true and correct as of the Closing Date. At the Closing, Seller shall deliver
to Purchaser a certificate certifying that each of Seller's representations and
warranties contained in Section 9(a) above are true and correct as of the
Closing Date in a form reasonably acceptable to Purchaser.
(c) All representations and warranties by the respective parties
contained herein or made in writing pursuant to this Agreement shall be deemed
to be material and shall survive the execution and delivery of this Agreement
and the Closing for a period of twenty-four (24) months. In the event that a
claim is not made with respect to a breach of a representation or
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warranty set forth herein or made in writing pursuant to this Agreement within
such twenty-four(24) month period, such claim shall be deemed waived.
10. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller as follows:
(a) Purchaser is a duly organized and validly existing limited
liability company in good standing under the laws of the State of Washington;
this Agreement and all documents executed by Purchaser which are to be delivered
to Seller at the Closing are or at the time of Closing will be duly authorized,
executed and delivered by Purchaser, and do not and at the time of Closing will
not violate any provisions of any agreement or judicial order to which Purchaser
is subject.
(b) Purchaser has not, and as of the Closing Purchaser shall not
have (i) made a general assignment for the benefit of creditors, (ii) filed any
voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by Purchaser's creditors, (iii) suffered the appointment of a receiver
to take possession of all, or substantially all, of Purchaser's assets, which
remains pending as of such time, (iv) suffered the attachment or other judicial
seizure of all, or substantially all, of Purchaser's assets, which remains
pending as of such time, (v) admitted in writing its inability to pay its debts
as they come due, or (vi) made an offer of settlement, extension or composition
to its creditors generally.
11. Risk of Loss.
(a) Purchaser shall be bound to purchase the Property for the
full Purchase Price as required by the terms hereof, without regard to the
occurrence or effect of any damage to the Property or destruction of any
improvements thereon or condemnation of any portion of the Property provided
that (i) the cost to repair any such damage or destruction, or the diminution in
the value of the remaining Property as a result of a partial condemnation, does
not exceed $100,000, (ii) in the case of any such damage or destruction, the
repair can be completed within ninety (90) days, and (iii) upon the Closing,
there shall be a credit against the Purchase Price due hereunder equal to the
amount of any insurance proceeds or condemnation awards collected by Seller as a
result of any such damage or destruction or condemnation, less any sums
reasonably expended by Seller toward the restoration or repair of the Property,
and, if all of the proceeds or awards have not been collected as of the Closing,
then such proceeds or awards shall be assigned to Purchaser, and Purchaser shall
also be entitled to a credit against the Purchase Price in the amount of any
deductible or uninsured loss.
(b) If the amount of the damage or destruction or condemnation
as specified in Section 11(a) above exceeds $100,000, or, in the case of any
such damage or destruction, the repair cannot be completed within ninety (90)
days, then Purchaser may, at its option to be exercised within twenty (20) days
of Seller's written notice of the occurrence of the damage or destruction or the
commencement of condemnation proceedings, either terminate this Agreement or
consummate the purchase for the full Purchase Price as required by the terms
hereof If Purchaser elects to terminate this Agreement or fails to give Seller
written notice within such 20-day period that Purchaser will proceed with the
purchase, then the Deposit and Infrastructure Deposit shall be immediately
returned to Purchaser and neither party shall have any further rights
-xvi-
or obligations hereunder except to the extent set forth in Sections 12, 16(b),
16(g), 16(k) and 16(1) hereof. If Purchaser elects to proceed with the purchase,
then upon the Closing, there shall be a credit against the Purchase Price due
hereunder equal to the amount of any insurance proceeds or condemnation awards
collected by Seller as a result of any such damage or destruction or
condemnation, less any sums reasonably expended by Seller toward the restoration
or repair of the Property, and, if all of the proceeds or awards have not been
collected as of the Closing, then such proceeds or awards shall be assigned to
Purchaser, and Purchaser shall also be entitled to a credit against the Purchase
Price in the amount of any deductible or uninsured loss.
12. Access; Indemnity; Possession.
(a) Commencing on the Effective Date and through the Closing
Date or the earlier termination of this Agreement, Seller shall afford
authorized representatives of Purchaser reasonable access to the Property for
purposes of satisfying Purchaser with respect to the representations, warranties
and covenants of Seller contained herein and with respect to satisfaction of any
Diligence Period Condition or any Condition Precedent, provided (a) such access
does not interfere in any material respect with the operation of the Property,
and (b) Seller shall have the right to pre-approve in its reasonable discretion
and be present during any physical testing of the Property. Purchaser hereby
agrees to indemnify, defend and hold Seller harmless from and against any and
all claims, judgments, damages, losses, penalties, fines, demands, liabilities,
encumbrances, liens, costs and expenses (including reasonable attorneys' fees,
court costs and costs of appeal) actually suffered or incurred by Seller and to
the extent arising out of or resulting from damage or injury to persons or
property caused by Purchaser or its authorized representatives during their
investigation of, entry onto and/or inspections of the Property prior to the
Closing. If this Agreement is terminated, Purchaser shall repair the damage
caused by Purchaser's entry onto and/or inspections of the Property, provided
the foregoing shall not require Purchaser to repair or remediate any conditions
that are discovered by Purchaser. The foregoing indemnity shall survive the
Closing, or in the event that the Closing does not occur, the termination of
this Agreement.
(b) Possession of the Property shall be delivered to Purchaser
on the Closing Date.
13. Seller Covenants.
(a) At the time of Closing, Seller shall cause to be paid in
full all obligations under any outstanding written or oral contracts made by
Seller for any improvements to the Property or 100 Acre Parcel, and Seller shall
cause to be discharged all mechanics', materialmen's and brokers' liens arising
from any labor or materials furnished to the Property or the 100 Acre Parcel or
broker's services prior to the time of Closing (other than any mechanics',
materialmen's and broker liens for which Purchaser is responsible under the
terms of this Agreement).
(b) Between the Effective Date and the Closing, Seller shall
promptly notify Purchaser of any condemnation, environmental, zoning or other
land-use regulation proceedings of which Seller obtains knowledge, between the
Effective Date and the Closing, as well as any notices of violations of any Laws
relating to the Property or the 100 Acre Parcel of which Seller
-xvii-
obtains knowledge, and any litigation of which Seller obtains knowledge, between
the Effective Date and the Closing, that arises out of the ownership of the or
the Option Land.
(c) Through the Closing Date, Seller shall maintain or cause to
be maintained, at Seller's sole cost and expense, all policies of insurance
currently in effect with respect to the (or comparable replacements thereof).
(d) Seller shall deliver to Purchaser copies of all copies of
any bills for real estate taxes and personal property taxes and copies of any
notices pertaining to real estate taxes or assessments applicable to the
Property or, if applicable, the 100 Acre Parcel that are received by Seller
after the Effective Date, even if received after Closing. The obligations set
forth in this Section 13(d) shall survive the Closing.
(e) No off-site mitigation, improvement requirements and/or
assessments (including but not limited to any fees in connection with
Purchaser's Project such as impact, tap or development fees) (collectively,
"Assessments") have been imposed on the Property or the 100 Acre Parcel, except
for those listed in the Preliminary Report and those listed in Section 6(e)
above, nor shall any such Assessments be imposed on the Property or, if
applicable, the 100 Acre Parcel, for a period of ten (10) years after the
Closing Date, except as specifically provided for herein. In addition, Seller
shall be, at all times, solely responsible for paying any such Assessments
requirements imposed on the Property and the Option Land, including but not
limited to any Assessments in connection with Purchaser's Proposed Project such
as impact, tap or development fees, and shall keep the Property and the Option
Land free and clear of any and all liens and encumbrances in connection
therewith. In connection with this Paragraph 13(e), Seller agrees to indemnify
Purchaser and hold harmless and defend Purchaser from and against any and all
claims, damages, liabilities, losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) resulting from any such Assessments. The
obligations set forth in this Section 13(e) shall survive the Closing.
(f) Seller hereby agrees to indemnify and hold harmless
Purchaser, its directors, officers, employees, and agents, and any successors to
Purchaser's interest in the chain of title to the Property and the Option Land,
their directors, officers, employees, and agents, from and against any and all
liability including, without limitation, all foreseeable and all unforeseeable
consequential damages, directly or indirectly arising out of (i) the use,
generation, storage, or disposal of Hazardous Materials by Seller or any prior
owner or operator of the Property and the Option Land, including without
limitation the cost of any required or necessary repair, cleanup, or
detoxification and the preparation of any closure or other required plans, and
(ii) the environmental conditions described in EXHIBIT J attached hereto,
whether any such action is required or necessary prior to or following transfer
of title to the Property or the Option Land, to the full extent that such action
is attributable, directly or indirectly, to the presence or use, generation,
storage, release, threatened release, or disposal of Hazardous Materials by any
person on the Property or the Option Land prior to the transfer of title thereto
by Purchaser. Seller's obligations set forth in this Section 13(f) shall survive
the Closing.
-xviii-
14. Purchaser's Consent to New Contracts Affecting the Property or the
Option Land; Termination of Existing-Contracts.
(a) Seller shall not, after the Effective Date, enter into any
contract, or any amendment thereof with respect to the Property or the Option
Land, without obtaining Purchaser's prior written consent thereto, and which
consent shall not be unreasonably withheld by Purchaser (provided that Purchaser
may withhold or condition its consent in its sole and absolute discretion
following the end of the Due Diligence Period). Seller shall be entitled,
without the consent of Purchaser, to enter into, amend or otherwise deal with
service contracts and similar agreements that are not Assumed Contracts in the
ordinary course of business that are terminable on not more than thirty (30)
days' prior notice and which shall not be binding on Purchaser after the Closing
Date. Notwithstanding anything to the contrary provided in this Section 14(a),
if Purchaser fails to disapprove in writing any such action requiring
Purchaser's consent under this Section 14(a) within five (5) business days after
Purchaser's receipt of such request and information, Purchaser shall be deemed
to have approved such new action. If Purchaser disapproves of any such action,
Purchaser shall provide to Seller, along with such written notice of
disapproval, the reasons for Purchaser's disapproval.
(b) Seller shall terminate prior to the Closing, at no cost or
expense to Purchaser, any and all management agreements, service contracts or
similar agreements affecting the Property or the Option Land that are not
Assumed Contracts (other than such contracts or agreements that Seller is not
obligated to terminate pursuant to Section 5(c) above) and all employees, if
any, of the Property or the Option Land.
(c) Seller shall not, after the Effective Date, create any new
encumbrance or lien affecting the Property or the Option Land other than liens
and encumbrances (i) that are reasonably capable of being discharged prior to
the Closing and (ii) that in fact will be and are discharged prior to the
Closing. The obligations set forth in this Section 14(c) shall survive the
Closing to the extent such obligations are violated prior to the Closing.
15. The Condition of the Property at Closing. Seller shall complete the
following actions at Seller's sole cost and expense, and in a manner
satisfactory to Purchaser:
(a) Subdivision. Seller shall comply with the conditions set
forth in Section 6(f) above.
(b) Utilities. On or before that date which is one hundred
twenty (120) days after the Closing Date, Seller shall, at Seller's sole cost,
cause the installation of all utilities as listed in, and in accordance with the
specifications described in, EXHIBIT G attached hereto and made a part hereof,
in the street adjacent to the Property and at specific locations approved by
Buyer (which shall result in Seller extending such utilities to specific
locations designated by Purchaser, provided that such utilities shall be stubbed
into the Property on the northerly Property line, approximately seventy five
(75) feet from the easterly Property line of that Property described in Exhibit
A attached hereto) and all such utilities shall be installed underground. In
addition, Seller shall (i) at Seller's sole cost, obtain the necessary
commitments from all such utility providers required to provide the services set
forth in EXHIBIT G, including, without limitation, the work being undertaken, or
to be undertaken, by Southwest Gas in order to
-xix-
extend natural gas service to the Property, which work includes, without
limitation, extending, replacing and upgrading existing natural gas pipe lines
(the "Southwest Work"), (ii) in the event that Purchaser purchases the 100 Acre
Parcel at Closing, provide a Two Hundred Forty Thousand Dollars ($240,000)
credit against the Purchase Price at Closing to partially compensate Purchaser
for the cost of the Southwest Work, and, if in connection with the Southwest
Work, any refunds or waivers of any deposits or other amounts are available,
such amounts shall also be credited against the Purchase Price, or, if such
amounts are only available after the Closing, be paid directly to Purchaser
(iii) pay any utility deposits required from the applicable utility providers.
At Closing, the Purchase Price shall be reduced by Eighty Thousand Dollars
($80,000) for electrical utility deposits if the electric utility provider does
not require or waives the utility deposit, and in the event that Purchaser
purchases either the Property or the Partial Parcel at Closing, Purchaser shall
receive a Twenty Thousand Dollar ($20,000) credit towards the Purchase Price if
Southwest Gas does not require or waives the utility deposit.
(c) Physical Conditions. Prior to the Closing, Seller shall, at
Seller's sole cost, demolish and remove any of the Improvements, or any
additional improvements, located on the Property, including without limitation,
any buildings, dwellings, structures and/or paved areas, that Purchaser
designates on or before the expiration of the Due Diligence Period, and such
demolition and removal shall be completed in a manner reasonably acceptable to
Purchaser.
(d) Leases. Any and all Leases must be terminated by Seller at
Seller's cost on or prior to the Closing.
(e) Easements, Covenants, Restrictions and other Agreements.
Prior to the Closing, Seller shall cause any covenants, conditions and
restrictions to be amended, in a manner reasonably acceptable to the parties
hereto, as set forth in Section 6(e) hereof.
(f) Access Road. On or before that date which is one hundred
twenty (120) days after the Closing Date, Seller shall complete the
construction, at Seller's expense, of an access road which shall run the entire
length of the western boundary of the Property line, with appropriate signage,
traffic signals or other traffic control devices ("Signalization") and paving,
and which shall be a minimum of forty four (44) feet wide (which width is
measured from inside curb face to curb face). In addition, such access road
shall comply with all state and local plans, requirements, regulations and laws
such that such access road may be publicly dedicated. Seller shall exercise its
best efforts to cause such access road to be accepted by ▇▇▇▇▇▇▇ County for
maintenance at the earliest date which is reasonably possible following the
completion of the construction of each such category of such improvements. Until
the access road is accepted by ▇▇▇▇▇▇▇ County for maintenance, or until ▇▇▇▇▇▇▇
County otherwise agrees to maintain the access road, Seller shall be responsible
for the maintenance of such improvements at Seller's expense.
On or before September 30, 2002, Seller shall have, at Seller's expense,
(i) conveyed the land necessary for the ▇▇▇▇▇▇▇ County Airport to construct a
road which road will connect the southern portion of the access road (described
above) to the ▇▇▇▇▇▇▇ County Airport (the "Airport Access Road") and (ii) caused
the ▇▇▇▇▇▇▇ County Airport to have completed the construction of the Airport
Access Road with appropriate Signalization and paving, and which shall be a
minimum of forty four (44) feet wide (which width is measured from inside curb
face
-xx-
to curb face). In addition, the Airport Access Road shall comply with all state
and local plans, requirements, regulations and laws such that the Airport Access
Road may be publicly dedicated. Seller shall exercise its best efforts to cause
the Airport Access Road to be accepted by ▇▇▇▇▇▇▇ County for maintenance at the
earliest date which is reasonably possible following the completion of the
construction of each such category of such improvements. Until the Airport
Access Road is accepted by ▇▇▇▇▇▇▇ County for maintenance, or until ▇▇▇▇▇▇▇
County otherwise agrees to maintain the Airport Access Road, Seller shall be
responsible for ensuring the maintenance of such improvements at Seller's
expense. In the event that the Airport Access Road has not been completed by
July 1, 2002, without limiting any of Seller's obligations hereunder, including,
without limitation, the obligation to complete the Airport Access road as
provided above, Seller shall have caused, at Seller's sole cost, a truck
turnaround to be completed at the southern end of the access road by such date,
which truck turnaround must be graded and finished with a quality base and
decomposed granite approved by Purchaser, such that the turnaround is topped
with an all-weather surface, contain appropriate Signalization, comply with all
state and local plans, requirements, regulations and laws and be sufficient for
18-▇▇▇▇▇▇▇ truck turnaround use, all as approved by Purchaser in Purchaser's
sole discretion. In addition, if the Airport Access Road has not been completed
by November 30, 2002, without limiting any of Seller's obligations hereunder,
including, without limitation, the obligation to complete the Airport Access
road as provided above, or any remedy available to Purchaser, Seller shall have
caused, at Seller's sole cost, such truck turnaround to be paved in a manner
reasonably approved by Purchaser. If, under the terms hereof, Seller is required
to complete such truck turnaround, Seller shall also be obligated to (i)
promptly remove such truck turnaround and restore the access road to its
previous condition (in accordance with the specifications set forth in this
15(f)), at Seller's expense, as soon as the Airport Access Road has been
completed and (ii) connect the Airport Access Road to the access road in
accordance with the standards set forth in this Section 15(f).
(g) Off-Site Traffic Mitigation. Seller shall be solely
responsible, at Seller's sole cost, for the planning, development and
construction of all off-site traffic mitigation improvements, if any are
imposed, which are required in an area outside of the Property (i) which are
related to any building or other improvement on the Property that shall be used
in connection with Starbucks Corporation business operations, and for which
Purchaser has obtained a building permit within a period of five (5) years from
the Closing Date or (ii) which are related to any other development of the Park
or property owned by Seller in the future. Seller shall undertake such planning,
development and construction in accordance with all applicable state and local
plans, regulations, requirements and laws.
(h) Construction Easements. Upon the Closing, Seller and
Purchaser shall grant to each other, ▇▇▇▇▇▇▇ County and the applicable utility
companies any temporary non-exclusive access and construction easements over the
Property and other property owned by Seller as shall reasonably be necessary in
order for Seller and/or such utility companies to construct and/or install any
of the improvements contemplated in this Section 15 and in order for Purchaser
to begin constructing Purchaser's Project on the Property. All such easements
shall be subject to Purchaser's approval, which approval Purchaser agrees to not
unreasonably withhold.
(i) Soil. Within five (5) days from the date hereof, Seller
shall identify the areas within the Park from where soil will be excavated and
provided to Seller for the purposes
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and on the terms set forth herein. Such soil shall be suitable for use in the
connection with the development of Purchaser's Project and shall be clean and
free from any contaminants, including without limitation Hazardous Materials,
and such soil shall be structurally suitable soil in accordance with the
Geotechnical report recommendations (except as otherwise described below)
("Soil"). After Seller so identifies such areas within the Park, Purchaser shall
have forty five (45) days, at Purchaser's option, to perform random, testing of
the Soil at such sites in order to pretest the Soil to ensure that the Soil is
contaminant free and complies with the Geotechnical report recommendations.
Thereafter, if the Soil is acceptable to Purchaser in Purchaser's sole
discretion, Purchaser shall have a ten (10) day period to identify the location
to where such Soil (in quantities described below) shall be delivered, which
location shall be either (1) on the Property at a specific location to be
designated by Purchaser or (2) at an alternative location within in the Park,
which location shall be reasonably designated by Purchaser. Seller shall then
deliver the Soil to such location prior to the commencement of the construction
of improvements on the Property, but in no event later than a date which shall
be designated by Purchaser prior to Closing. In the event that Purchaser elects
to proceed with (2) above, Purchaser shall move such Soil on to the Property at
Purchaser's cost.
Seller shall deliver the Soil to the location described above in two (2) piles
-- the first pile shall be composed of approximately one (1) foot of surface
material, which Soil shall not be deemed structurally suitable, and the second
pile shall be composed of structurally suitable Soil (as described above) --
which piles, together, shall consist of the following amounts of Soil: (A) in
the event that Purchaser purchases the 100 Acre Parcel upon Closing, the entire
amount of Soil that is produced from any works of improvements, grading or
excavation, including without limitation the Soil produced from the construction
of the access road set forth in Section 15(f) hereof, undertaken within the Park
on behalf of Seller, by Seller or by Seller's contractors (the "Park
Improvements"). If, however, the Park Improvements produce less than forty
thousand (40,000) cubic yards of Soil, Seller shall give Purchaser (i) such
entire amount of Soil produced by the Park Improvements and (ii) all of the Soil
from Seller's existing excess Soil pile ("Excess Soil Pile"). (B) In the event
that Purchaser purchases either the Property or the Partial Parcel upon Closing,
Seller shall give Purchaser twenty thousand (20,000) cubic yards of Soil. If the
Park Improvements produce less than twenty thousand (20,000) cubic yards of
Soil, Seller shall give Purchaser (y) such amount of Soil produced by the Park
Improvements and (z) the all of the Soil from Seller's Excess Soil Pile. In the
event that Purchaser does not specify the locations as to where the Soil shall
be delivered, Seller shall stockpile the Soil at a location within the Park,
which location shall be situated reasonably close to the Property and Purchaser
shall thereafter have the option, in Purchaser's sole discretion, for a period
of one (1) year and forty (40) days from the date hereof, to remove and use the
Soil. If Purchaser discovers that the Soil is not contaminant free or does not
comply with the Geotechnical report recommendations (as applicable), Purchaser's
only remedy shall be to not accept the Soil from Seller and, if applicable,
Seller shall promptly remove the Soil from the Property.
The obligations set forth in this Section 15 shall survive the Closing.
16. Miscellaneous.
(a) Notices. Any notice, consent or approval required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given upon (i)
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hand delivery, (ii) one (1) business day after being deposited with Federal
Express or another reliable overnight courier service, with receipt
acknowledgment requested, (iii) upon receipt if transmitted by facsimile
telecopy, with a copy sent on the same day by one of the other permitted methods
of delivery, or (iii) upon receipt or refused delivery deposited in the United
States mail, registered or certified mail, postage prepaid, return receipt
required, and addressed as follows:
IF TO SELLER: CVBP, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Suite 209
Attn: ▇▇▇▇ ▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: Brooke, Shaw, ▇▇▇▇▇▇▇▇ Zumpft
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: T. ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
IF TO PURCHASER: Starbucks Manufacturing Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, Esq. and
▇▇▇▇ ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇ ▇▇▇▇▇▇ & Co.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Reserve Bank Buildings
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as either party may from time to time specify in writing
to the other.
(b) Brokers and Finders. Neither party has had any contact or
dealings regarding the Property, or any communication in connection with the
subject matter of this transaction, through any real estate broker or other
person who can claim a right to a commission or finder's fee in connection with
the sale contemplated herein except for CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Purchaser's Broker"),
whose commission and fees shall be paid by Seller. Seller shall pay as a
commission to Purchaser's Broker ten percent (10%) of the Purchase Price of the
Property and of
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the Purchase Option Price, as such term is defined herein, if applicable, and
Seller shall pay said commission(s) through Escrow. In the event that any other
broker or finder makes a claim for a commission or finder's fee based upon any
contact, dealings or communication, the party whose conduct is the basis for the
broker or finder making its claim shall indemnify, defend and hold harmless the
other party against and from any commission, fee, liability, damage, cost and
expense, including without limitation attorneys' fees, arising out of or
resulting from any such claim. The provisions of this Section 16(b) shall
survive the Closing, or in the event that the Closing does not occur, the
termination of this Agreement.
(c) Successors and Assigns. Purchaser reserves the right to take
title to the Property in the name of a nominee or assignee. In the event the
rights and obligations of Purchaser hereunder shall be assigned by Purchaser,
the assignor shall be released from any obligation or liability hereunder, and
such nominee or assignee shall be substituted as Purchaser hereunder and shall
be entitled to the benefit of and may enforce Seller's covenants,
representations and warranties hereunder as if such nominee or assignee were the
original Purchaser hereunder, and shall assume all obligations and liabilities
of Purchaser hereunder, subject to any limitations of such liabilities and
obligations hereunder or provided by law. This Agreement shall be binding upon
the successors and assigns of the parties hereto. Without limiting the
foregoing, if Seller liquidates or distributes to its partners the Purchase
Price or prorations thereof prior to satisfying all of Seller's obligations
hereunder, Purchaser shall have recourse against the proceeds distributed to the
extent of any unsatisfied obligations of Seller hereunder.
(d) Amendments. Except as otherwise provided herein, this
Agreement may be amended or modified only by a written instrument executed by
Seller and Purchaser.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada.
(f) Merger of Prior Agreements. This Agreement and the exhibits
and schedules hereto, constitutes the entire agreement between the parties and
supersede all prior agreements and understandings between the parties relating
to the subject matter hereof.
(g) Enforcement. If either party hereto fails to perform any of
its obligations under this Agreement or if a dispute arises between the parties
hereto concerning the meaning or interpretation of any provision of this
Agreement, then the defaulting party or the party not prevailing in such dispute
shall pay any and all costs and expenses incurred by the other party on account
of such default and/or in enforcing or establishing its rights hereunder,
including, without limitation, court costs and attorneys' fees and
disbursements. Any such attorneys' fees and other expenses incurred by either
party in enforcing a judgment in its favor under this Agreement shall be
recoverable separately from and in addition to any other amount included in such
judgment, and such attorneys' fees obligation is intended to be severable from
the other provisions of this Agreement and to survive and not be merged into any
such judgment. The provisions of this Section 16(g) shall survive the Closing,
or in the event that the Closing does not occur, the termination of this
Agreement.
(h) Time of the Essence. Time is of the essence of this
Agreement.
-xxiv-
(i) Severability. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other persons,
places and circumstances shall remain in full force and effect.
(j) Marketing. Seller shall not list the Property with any
broker or otherwise solicit or make or accept any offers to sell the Property,
engage in any discussions or negotiations with any third party with respect to
the sale or other disposition or financing of the Property, or enter into any
contracts or agreements (whether binding or not) regarding any disposition or
financing of the Property. Notwithstanding the foregoing, Purchaser may enter
into additional agreements of purchase and sale for the acquisition of
alternative property for Purchaser's Project.
(k) Confidentiality. Each party agrees to maintain in
confidence, and not to disclose to any third party, the information contained in
this Agreement or pertaining to the sale contemplated hereby and the information
and data furnished or made available by Seller to Purchaser, its agents and
representatives in connection with Purchaser's investigation of the Property,
the transactions contemplated by the Agreement or Purchaser's Project; provided,
however, that each party, its agents and representatives may disclose such
information and data (a) to such party's accountants, attorneys, prospective
lenders, accountants, partners, consultants and other advisors in connection
with the transactions contemplated by this Agreement (collectively
"Representatives") to the extent that such Representatives reasonably need to
know (in Purchaser's or Seller's reasonable discretion) such information and
data in order to assist, and perform services on behalf of, Purchaser or Seller;
(b) to the extent required by any applicable statute, law, regulation,
governmental authority or court order; (c) in connection with any securities
filings, registration statements or similar filings undertaken by Purchaser; and
(d) in connection with any litigation that may arise between the parties in
connection with the transactions contemplated by this Agreement. Purchaser shall
consult with Seller prior to making any press release intended for general
circulation regarding the transactions contemplated hereunder. The provisions of
this Section 16(k) shall survive the Closing, or in the event that the Closing
does not occur, the termination of this Agreement.
(l) Return of Documents. In the event that this Agreement
terminates, Purchaser shall return to Seller all due diligence materials and all
copies thereof delivered by Seller to Purchaser hereunder. The provisions of
this Section 16(l) shall survive the termination of this Agreement.
(m) Counterparts and Facsimile Signatures. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
and all of which, when taken together, shall be deemed to be one agreement. This
Agreement may be executed pursuant to original or facsimile copies of
signatures, with the same effect as if the parties had signed the document
pursuant to original signature.
(n) Limited Liability. The obligations of Purchaser are intended
to be binding only on Purchaser and the property of Purchaser, and shall not be
personally binding upon, nor shall any resort be had to, the private properties
of any of its trustees, officers, beneficiaries, directors, members, or
shareholders, or of its investment manager, the general partners, officers,
-xxv-
directors, members, or shareholders thereof, or any employees or agents of
Purchaser or its investment manager.
(o) Purchase Option. Purchaser shall have an option to purchase
(the "Purchase Option") all or a portion of that certain parcel of land located
within the Park and containing approximately fifty (50) acres of land and more
particularly described on EXHIBIT A-2 attached hereto (the "Option Land") for a
purchase price equal to either (i) One Dollar Five Cents ($1.05), if Purchaser
elects to purchase at Closing the 100 Acre Parcel or (i) the amount determined
by multiplying One Dollar and Thirty-Three Cents ($1.33) times the total gross
square footage of the Option Land, which square footage shall be determined by
the area within the Option Land as shown on the ALTA Survey and exclude any land
or easements which will be dedicated to public authorities in connection with
the development of the Option Land or the subdivision thereof, as adjusted
annually commencing with the first anniversary of the Closing Date by any
increase in the consumer price index for the region in which the Option Land is
located (the "Purchase Option Price"). The Purchase Option shall commence as of
the date hereof and expire on the date that is five (5) years after the Closing
Date (the "Option Period"). Purchaser shall have the right to exercise the
Purchase Option at any time during the Option Period by giving at least thirty
(30) but not more than one hundred eighty (180) days prior written notice to
Seller. If Purchaser elects to purchase the Option Land at least thirty (30)
days prior to the Closing hereunder, then the sale of the Option Land shall be
on the same terms and conditions as set forth herein and the Option Land shall
be deemed a part of the Property. If Purchaser elects to purchase the Option
Land at any time thereafter, the sale of the Option Land shall be on the terms
and conditions set forth in this Section 16(o) above and other reasonably
acceptable terms and conditions which will be as more particularly set forth in
EXHIBIT I, which shall be reasonably agreed to by the parties hereto as soon as
reasonably practical after the date hereof and which shall be attached hereto on
or before the expiration of the Due Diligence Period. The provisions of this
Section 16(o) shall survive the Closing.
(p) Purchaser's Pre-Closing Rights. Purchaser shall be entitled
to grade the Property and prepare the Property for development and construction
prior to the Closing. In the event that the Closing does not occur, Purchaser
shall have no obligation to restore the Property to its former condition nor
shall Purchaser have any other liability with respect thereto, provided,
however, that Purchaser shall indemnify Seller against any claims for personal
injury or property damage to third parties arising out of such grading or
preparation.
17. Park Restrictions.
(a) At Closing, Seller shall place the following restrictions on
portions of the Park, as designated herein, which restrictions shall (i) benefit
Purchaser, (ii) bind the applicable portions of the Park (as set forth below),
(iii) in the event that Seller has placed financing on the Park, be approved by
Seller's lender/financier, and, on or before such time, Seller's
lender/financier shall agree in writing that any foreclosure or deed in lieu of
foreclosure brought by Seller's lender/financier shall not terminate such
restrictions, (iv) be in a form and substance reasonably approved by the parties
hereto on or before the expiration of the Due Diligence Period, (v) be
enforceable by both Seller and Purchaser, and (vi) be recorded upon the Closing
-xxvi-
(1) Power Plant Substations. The placement of power
plant substations within the Park shall be prohibited.
(2) Overhead Power Lines. The placement of power lines
(i) on the Property or (ii) within the Park within three hundred (300) feet of
the Property lines shall be prohibited.
(3) Use Restriction. All owners and lessees in the Park
shall be prohibited from engaging in the business of coffee bean roasting. In
addition, any owner or lessee in the Park shall be prohibited from engaging in
the primary business of coffee bean distribution on any portion of the Park
situated within a two (2) mile radius of the Property.
(4) Sewage Treatment Facilities. The placement of any
sewage treatment facility within the Park shall be prohibited.
(5) Odor. Any owner or lessee situated on any portion of
the Park shall be prohibited from emitting any odor which would interfere with
or adversely affect Purchaser's planned operations on the Property.
(b) Signage and Street Names. Purchaser shall have the right to
install wall and/or building signage on Purchaser's Project, at locations and in
forms reasonably acceptable to the parties hereto, provided, however, that the
installation of such signage is performed in accordance with any applicable
▇▇▇▇▇▇▇ County rules or regulations governing such signage. If any Park signage
is installed by Seller which lists any Park user's name, Purchaser shall have
the right to have its name listed on such signage in at least the size
equivalent to such other user and at no cost to Purchaser. The street on which
Purchaser's Project is located shall be named "Starbucks Drive" unless Purchaser
chooses an alternative name for such street, in which case Purchaser must notify
Seller prior to Closing, and Seller shall officially name such Street such
alternative name at Seller's sole cost. In addition, Seller shall be prohibited
from changing the name of the Park or the name of a street within or near the
Park to incorporate the name of any competitor of Purchaser who, as one of its
primary business purposes, is in the coffee industry.
-xxvii-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SELLER: CVBP, LLC,
a Nevada limited liability company
Please initial Section 7(a) above
By: [SIGNATURE ILLEGIBLE]
-----------------------------------
Its:
----------------------------------
By: [SIGNATURE ILLEGIBLE]
-----------------------------------
Its:
----------------------------------
PURCHASER: STARBUCKS MANUFACTURING
CORPORATION,
a Washington corporation
Please initial Section 7(a) above By: [SIGNATURE ILLEGIBLE]
-----------------------------------
Its: VICE PRESIDENT
----------------------------------
-xxviii-
COUNTERPART SIGNATURE PAGE TO
PURCHASE AGREEMENT
DATED AS OF _____________, 2001
(TITLE COMPANY)
Title Company agrees to act as Title Company and title company in
accordance with the terms of this Agreement and to act as the Reporting Person
in accordance with Section 6045(e) of the Internal Revenue Code and the
regulations promulgated thereunder.
TITLE COMPANY
By: [SIGNATURE ILLEGIBLE]
--------------------------------------
Its: VP
-------------------------------------
Date: 6/19, 2001
LIST OF EXHIBITS
EXHIBIT A Legal Description of Land
EXHIBIT A-2 Legal Description of Option Land
EXHIBIT B List of Personal Property
EXHIBIT C Due Diligence Items
EXHIBIT D Intentionally Deleted
EXHIBIT E Form of Nevada Grant Bargain and Sale Deed
EXHIBIT F Form of Assignment of Intangible Property
EXHIBIT G Utilities
EXHIBIT H Intentionally Deleted
EXHIBIT I Terms of Option Land Purchase
EXHIBIT J Environmental Indemnities
30