Exhibit 10.01
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is entered into
effective July 17, 2003 (the "effective date"), by and between ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, an individual ("Seller") and ▇▇▇▇▇▇▇▇▇▇ REALTY GROUP, INC., a Nevada
corporation doing business in California as Nevada-▇▇▇▇▇▇▇▇▇▇ Realty Group,
Inc., or its assignee (with right of assignment) ("Buyer") and is based upon the
following facts and representations:
A. Seller owns that certain real property commonly known as ▇▇▇-▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Property") which Property
consists of a approximately 0.14 acres of land (the "Land") with
improvements thereon consisting of a four story office building and
restaurant with an aggregate of 18,000 square feet of above ground
leasable space and approximately 5,000 square feet of basement space,
more or less (the "Building").
B. Buyer desires to develop the Building into an income producing
office project and will undertake the building permit, construction and
leasing phases of the development. Seller will cooperate with Buyer as
to the planning department approval process.
C. The Building is vacant except for the business commonly known as
"▇▇▇▇▇▇▇▇▇'▇ Restaurant" (the "Restaurant") which currently occupies
the first floor and basement pursuant to a written lease. The remainder
of the Building is suitable for development as an office building.
D. Development of the Building into a fully leasable office project
will require approvals of the San Francisco Planning Department as well
as appropriate building permits, construction and leasing.
E. Buyer agrees to lease office space to Diversified Investment &
Management Corporation ("DIMC") for a 10 year lease (with 2 five year
options) at $10,000 per month.
F. Buyer also agrees to allow ▇▇▇▇▇▇▇ Creek Vineyards (DCV) dba Diamond
Oaks Vineyard (DOV) to lease a portion of the reconfigured basement, as
agreed upon with ▇▇▇▇▇▇▇▇▇'▇ Restaurant, as a Wine Tasting Room, with a
10 year lease (with 2 five year options) at $6,000 per month.
G. Seller agrees to sell and Buyer agrees to buy the Property, together
with any and all planning department approvals, applications and
architectural drawings for Buyer's use to convert the Building situated
on the Property into an income producing office project, on the terms
set forth herein.
NOW THEREFORE in consideration of the mutual promises contained herein,
Seller and Buyer agree as follows:
1. PROPERTY INCLUDED IN SALE.
Seller hereby agrees to sell and convey to Buyer, and Buyer hereby
agrees to purchase from Seller, the following:
(a) that certain real property commonly known as the ▇▇▇-▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, consisting of approximately 0.14 acres of undeveloped land,
described as Assessor's Parcel No. ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, located in the City and
County of San Francisco, California, and more particularly described in Exhibit
A attached hereto (the "Real Property");
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(b) any and all rights, privileges and easements appurtenant
to the Real Property, including, without limitation, all minerals, oil, gas and
other hydrocarbon substances on and under the Real Property, as well as all view
rights, air rights, solar rights, water, water rights, and water stocks relating
to the Real Property and any easements, rights-of-way or other appurtenances
used in connection with the beneficial use and enjoyment of the Real Property
(collectively the "Appurtenances");
(c) any and all improvements and fixtures located on the Real
Property, including specifically, but not by way of limitation, the four (4)
story building plus basement, consisting of approximately 18,000 square feet
above ground, and approximately 5,000 square feet below ground (the "Building")
together with all related fixtures and related matters associated therewith (all
of which are collectively called the "Improvements");
(d) any and all personal property set forth on Exhibit "B"
attached hereto, if any (the "Personal Property"); and
(e) any and all of the interest of Seller, if any, in and to
all development rights, transferable development rights ("TDR's"), plans for a
proposed build out, and other intangibles relating to or effecting the Property,
to the extent the same may be owned or controlled by Seller ("Development
Rights").
All of the items described in subsections (a), (b), (c), (d) and (e)
above are hereinafter collectively called the "Property."
2. ENTITLEMENTS.
(a) As used herein the term "Entitlements" shall mean those approvals
customarily obtained from the City of San Francisco Planning Department as
conditions to the development of the current Building into a fully developed
office with restaurant and wine tasting room, as set forth in Exhibit "G"
attached hereto and incorporated herein by this reference. Obtaining planning
and building permits requires approval by the San Francisco Planning Department,
which approval typically involves review and approval of proposed building plans
(such as those set forth in Exhibit "G"), historical building features, building
facade, neighborhood styles, conformity to the San Francisco City Plan, and
similar matters.
(b) Seller and Buyer shall cooperate and lend each other reasonable aid
and assistance as to the planning of the Property. Seller and Buyer shall confer
on a regular basis. Buyer may use Diversified Investment & Management
Corporation (DIMC) as its construction consultant pursuant to a mutually
acceptable agreement and Seller hereby makes said company available to Buyer,
should Buyer determine to request assistance from DIMC. DIMC has been working
with the City of San Francisco Planning Department and with architects and other
professionals to obtain appropriate permits for the development of the Building
pursuant to the plans set forth in Exhibit "G".
(c) After the Closing, Seller agrees to instruct all architects,
designers and other consultants to cooperate with Buyer (or its consultant) and
ask said professionals to provide all pertinent information, documents and
similar matters so as to assist Buyer in the final attainment of the
Entitlements.
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3. PURCHASE PRICE.
The Contract Purchase Price of the Property is FOUR MILLION FOUR
HUNDRED EIGHTY FIVE THOUSAND DOLLARS ($4,485,000) (the "Contract Purchase
Price"). Said Purchase Price shall be paid as follows:
(a) Buyer shall take title to the Property subject to the existing
first mortgage deed of trust in favor of Far East National Bank in the amount of
Two Million Eight Hundred Thousand Dollars ($2,800,000);
(b) Buyer shall take title to the Property subject to the existing
second mortgage deed of trust in favor of California Mortgage & Realty, Inc. in
the amount of Six Hundred Thousand Dollars ($600,000);
(c) Buyer shall pay any and all loan assumption fees and related costs,
including, but not limited to reasonable attorneys fees in connection with the
assumption of said loans;
(d) Buyer shall pay the cash sum of approximately One Million Eighty
Five Thousand Dollars ($1,085,000) at the Closing, which sum shall be exactly
determined by the escrow company as the amount of cash needed so that the Seller
nets the Purchase Price from the Sale (less Seller's prorations and other costs
as set forth in Section 9 below; and
(e) Buyer shall also pay such other costs, including title insurance
and related costs, as are detailed in Section 9 below.
4. BUYER'S DEPOSITS WITH ESCROW
Deposits shall be made by Buyer as follows:
(a) Within three (3) days after the effective date of this Agreement,
Buyer shall deposit in escrow with First American Title Guaranty Company ("Title
Company") at its office at 1850 Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a deposit in the form of cash in the amount of TEN THOUSAND
DOLLARS ($10,000,00) (the "Initial Deposit"). All sums comprising the Initial
Deposit will be held in an interest bearing account and interest accruing
thereon shall be held for the account of Buyer. In the event the sale of the
Property as contemplated hereunder is consummated, the Initial Deposit plus
interest accrued therein shall be credited against the Purchase Price.
(b) Within three (3) days after the removal of Buyer's due diligence
contingencies as set forth in Section 6 below, Buyer shall increase its deposit
with Title Company by making an additional deposit in the amount of FORTY
THOUSAND DOLLARS ($40,000) (the "Additional Deposit") such that the total
deposit by Buyer with Title Company shall then be FIFTY THOUSAND DOLLARS
($50,000) (the "Increased Deposit"). All sums comprising the Increased Deposit
shall be held in an interest bearing account and interest accruing thereon shall
be held for the account of Buyer, or upon Seller's written request delivered to
Title Company, said Increased Deposit shall be released to Seller and credited
toward the sales price. In the event the sale of the Property as contemplated
hereunder is consummated, the Increased Deposit plus interest actually earned
thereon in escrow, if any, shall be credited against the Purchase Price.
(c) In the event this Agreement terminates for any reason within the
first ten (10) days after mutual execution of this Agreement, including after
the payment of the Initial Deposit but before removal of Buyer's due diligence
contingencies as set forth in Section 6 below, the Initial Deposit together with
all interest thereon shall be returned to the Buyer and neither Buyer nor Seller
shall have any further obligations under this Agreement.
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(d) During the period following removal of Buyer's due diligence
contingencies as set forth in Section 6 below, the Increased Deposit shall be
non-refundable in the event this Agreement is terminated, and Seller shall
retain said Increased Deposit as liquidated damages, unless this Agreement is
terminated by reason of a breach of this Agreement by Seller, in event the later
occurs, the Increased Deposit (whether previously released or otherwise)
together with all interest thereon shall be returned to Buyer and this Agreement
shall be terminated and neither Buyer nor Seller shall have any further rights
or obligations under this Agreement.
(e) The parties agree that in the event of a breach of this Agreement
by Buyer it would be difficult to measure Seller's damages and that Seller's
retention of the Increased Deposit or Final Deposit, as the case may be, shall
constitute Seller's measure of damages, said sum being liquidated damages, and
said sum being agreed upon by the parties hereto after review by their
respective attorneys.
THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A
DEFAULT BY BUYER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO
DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES
ACKNOWLEDGE THAT THE DEPOSIT AMOUNTS HAVE BEEN AGREED UPON, AFTER
NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES
AND AS SELLER'S EXCLUSIVE REMEDY AGAINST BUYER, AT LAW OR IN EQUITY, IN
THE EVENT OF A DEFAULT UNDER THIS AGREEMENT SOLELY ON THE PART OF
BUYER.
Seller: _______ Buyer: ________
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5. TITLE TO THE PROPERTY.
(a) At the Closing, Seller shall convey to Buyer (or its assignee)
marketable and insurable fee simple title to the Real Property and the
Appurtenances, by duly executed and acknowledged grant deed in a form acceptable
to Buyer. Evidence of deliver of marketable and insurable fee simple title shall
be the issuance by Title Company of an ALTA Owner's Policy of Title Insurance,
in the full amount of the Contract Purchase Price insuring fee simple title to
the Real Property and the Appurtenances in Buyer, subject only to those
exceptions as Buyer shall approve pursuant to section 5(a) below. Said policy
may, at Buyer's sole option, provide for full coverage against mechanics' or
materialmen's liens and shall contain such special endorsements as Buyer may
reasonably require. The Title Company shall obtain, if requested by Buyer,
reinsurance agreements from such companies and in such amounts as Buyer may
request. Buyer may also obtain an ALTA Owner's policy without a survey
exception, but reserve the right to supply an ALTA survey and have the Owner's
policy updated to show the absence of encroachments or other matters that might
arise by reason of an inspection.
(b) At the Closing, Seller shall transfer title to the personal
property by a ▇▇▇▇ of sale in the form attached hereto as Exhibit C, such title
to be free of any liens and encumbrances.
(c) At the Closing, Seller shall transfer all architectural plans,
surveys, market studies and similar matters that related to the development
rights and building permits needed for the Property, by means of the e form
attached hereto as Exhibit "D" and shall transfer all original Entitlement
documents to Buyer as provided in Section 9 below.
6. DUE DILIGENCE CONDITIONS.
Buyer shall conduct its due diligence and either terminate this
Agreement or remove Buyer's due diligence contingencies and proceed with this
Agreement within ten (10) days of the effective date of this Agreement ("Buyer's
due diligence period"). All of Buyer's due diligence contingencies are set forth
in this Section 6. To facilitate Buyer's due diligence and to the extent
reasonably available to Seller, Seller shall provide Buyer with the documents
set forth below.
(a) Title. During the time periods set forth below, Buyer shall review
and approve title to the Real Property. Within five (5) days from the effective
date of this Agreement, at Seller's sole cost and expense, Seller shall deliver
to Buyer:
(i) the most recently issued preliminary title report issued
on the Real Property issued by Title Company, dated as of June
25, 2003, accompanied by legible copies of all documents
referred to in the report (but only if the same are
immediately available);
(ii) to the extent the same are in Seller's actual possession,
copies of all existing and proposed easements, covenants,
restrictions, agreements or other documents that affect the
Real Property and Appurtenances and which are not disclosed by
the preliminary title report, or, if no such documents exist,
a certification of Seller to that effect;
(iii) a copy of the most recent property tax ▇▇▇▇ for the
property; and
(iv) a chain of title report for the Real Property to the
extent the same are in Seller's actual possession.
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Buyer shall advise the Seller within three (3) days of the effective
date of this Agreement, what exceptions to title, if any, will be accepted by
Buyer; provided, however, that Seller hereby agrees to remove all monetary
liens, encumbrances and judgments of any nature whatsoever encumbering title to
the Real Property (except as provided in Section 3(a) and (b)). As to all other
matters, Buyer shall be required to specifically disapprove any such title
exceptions. Seller shall have five (5) days after receipt of Buyer's objections
to give Buyer notice: (i) that Seller will remove any objectionable exceptions
from title and provide Buyer with evidence satisfactory to Buyer of such
removal, or provide Buyer with evidence satisfactory to Buyer that said
exceptions will be removed on or before the Closing; or (ii) that Seller elects
not to cause such exceptions to be removed. If Seller gives Buyer notice under
clause (ii), Buyer shall have two (2) additional days to notify Seller that
Buyer intends to proceed with the purchase and take the Real Property subject to
such exceptions, or to terminate this Agreement. If Buyer shall fail to give
Seller notice of its election within two (2) days, Buyer shall be deemed to have
elected to terminate this Agreement. If Seller shall give notice pursuant to
clause (i), and shall fail to remove any such objectionable exceptions from
title prior to the Closing Date, and Buyer is unwilling to take title subject
thereto, Seller shall be in default hereunder and, without limiting Buyer's
rights and remedies against Seller, Buyer may elect to terminate this Agreement
and Seller shall be liable for all of Buyer's damages, including Buyer's costs
and expenses incurred hereunder.
(b) Property Documents. Within three (3) days of the effective date of
this Agreement, Seller shall deliver to Buyer, to the extent the same are
available to Seller and in Sellers actual possession, the documents set forth
below. Buyer shall review and approve all of the following due diligence matters
within Buyer's due diligence period: any and all seismic engineering reports,
property condition reports, service contracts, maintenance contracts, management
contracts, insurance policies, market studies for the Property generated in the
past two (2) years, and all other contracts or documents of significance to the
Property. All such documents shall be delivered by Seller to Buyer at one time
under cover of a letter signed by Seller specifying each such document so
delivered by Seller and containing Seller's certification that such documents
are all of the documents actually in Seller's possession.
(c) Condition of the Property - Physical. To the extent the same is in
Seller's actual possession, Seller shall deliver all documents to Buyer
regarding the physical condition of the Property. It shall nonetheless be the
primary and sole responsibility of the Buyer to conduct its own due diligence.
Buyer shall conduct all of its own due diligence, inspection and review of the
Property within the due diligence period, without relying upon the factual
disclosures set forth in Seller's documents, but shall instead, verify the same
by the use of Buyer's own consultants and experts. Similarly, Buyer shall not
rely upon any representations or warranties by Seller, but shall instead
investigate the same by the use of Buyer's own consultants and experts. Buyer's
due diligence review shall include, but shall not be limited to: soils testing,
geophysical conditions, physical survey, seismic, structural and other physical
characteristics of the Property. Buyer shall rely upon its own experts,
professionals, consultants and others to determine the suitability and the
physical condition of the Property.
(d) Condition of the Property - Environmental. Within three (3) days of
the effective date of this Agreement, Seller shall provide Buyer with
photocopies of the most recent Phase I Environmental Survey of the Property, if
any, and any and all other documents in Seller's actual possession regarding the
environmental condition of the Property. Without relying upon any
representations or warranties by Seller, Buyer shall then commission and rely
upon its own experts, professionals, consultants and others to determine the
environmental condition of the Property within Buyer's due diligence period,
including but not limited to any and all inspections and examinations for the
existence of asbestos, asbestos containing materials, polychlorinated biphenyls
("PCB's"), underground storage tanks, radioactive substances, explosives,
petroleum or petroleum by-products, urea formaldehyde, and other Hazardous
Substances.
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(e) Limitation of Seller's Actual Knowledge. Seller hereby discloses
that he has not had occupancy of the Building and therefore Seller's actual
knowledge as to the physical condition and environmental condition is limited,
that the Building dates back to a time when asbestos was commonly used near
heating pipes and furnaces and that the Building was erected prior to modern
structural steel reinforcement techniques were available for earthquake and
similar matters that one would review given the general age of the Property and
Building. Consequently, Seller specifically disclaims knowledge of these areas,
not by way of limitation, but so as to make clear that the age of the Property
will affect the due diligence by Buyer.
(f) Applicable Laws. Within three (3) days of the effective date of
this Agreement Seller shall deliver to Buyer any documents in Seller's actual
possession relating to laws, ordinances or other governmental restrictions
concerning the Property, if any. Thereafter, without relying upon any
representations or warranties of Seller, Buyer shall, within Buyer's due
diligence period, review and approve all zoning, land-use, subdivision,
environmental, building and construction laws and regulations restricting or
regulating or otherwise affecting the use, development, occupancy or enjoyment
of the Property, both in it "AS IS" condition and as a development site for an
office building pursuant to the plans attached as Exhibit "G".
(f) Survey. Buyer may, at Buyer's sole cost and expense, cause a
boundary and encroachment survey of the Property to be performed by a surveyor
of Buyer's own choosing; provided, however, that the presence or absence of such
a survey shall not be a due diligence matter unless such a survey is actually
performed and an encroachment or other problem is actually discovered. Buyer
may, at Buyer's sole option and at Buyer's sole expense alternatively have a
separate ALTA land survey conducted by a surveyor of Buyer's own choosing. Such
an ALTA land survey may be used for purposes of inducing Title Company to issue
to Buyer an ALTA Owner's Policy of Title Insurance, or if not available at the
time of closing to induce Title Company to upgrade their Title Insurance policy
once such a survey is provided. Any ALTA survey shall not be a due diligence
contingency item.
(g) Appraisals. Seller shall deliver to Buyer within five (5) days of
the effective date of this Agreement any appraisals or other market studies
relating to the Property in Seller's actual possession, which appraisals may
have been conducted within the past two (2) years. Without relying upon any
representation or warranty of Seller, Buyer shall within Buyer's due diligence
period, review and approve the feasibility and market value of the Property,
shall approve all CC&R's and other restrictions effecting the beneficial use and
enjoyment of the Property, as well as any other data Buyer deems appropriate to
review in connection with the advisability of purchasing and developing the
Property.
(h) Governmental Conditions. Buyer shall obtain from appropriate
government agencies and other sources (other than Seller) all documents relating
to permits, approvals licenses, transferable development rights ("TDR's"), air
rights, view rights or any other right or governmental regulations which effects
the Property. Thereafter, without relying upon any representation or warranty of
Seller, Buyer shall within Buyer's due diligence period review and approve all
governmental records, permits, approvals, licenses, approvals, certificates of
occupancy, and associated notices and correspondence affecting the Property and
the proposed Building development.
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(i) Other Matters. Buyer's review and approval within the due diligence
period of all other matters relating to or effecting the Property.
(j) Representations and Warranties. Buyer acknowledges that Seller has
made no representations or warranties regarding the Property, the Building or
the feasibility or cost of development with regard to the currently proposed
development of the Building. Buyer shall not rely upon any representation or
warranty, either oral or written, made by Seller or any of its agents in
connection with Buyer's purchase of the Property from Seller. Buyer and Seller
agree that Seller has made no oral representations or warranties to Buyer. Buyer
acknowledges that it is able to assess the due diligence contingencies without
any reliance upon Seller.
The foregoing conditions in this Section 6 are all of Buyer's due
diligence conditions precedent, and these conditions precedent are intended for
the benefit of both Seller and Buyer. The conditions precedent established by
this Section 6 shall expire ten (10) days after the effective date of this
Agreement, at which time, all such conditions precedent shall be deemed to be
satisfied, unless written notice to the contrary is received by Seller. If Buyer
indicates in writing that a condition precedent is not satisfied for any reason,
Buyer may terminate this contract and have the Initial Deposit together with
interest thereon returned. If Buyer so elects to terminate this Agreement,
neither party shall have any further rights or obligations under this Agreement.
Buyer shall pay all costs associated with Buyer's due diligence
investigations. Seller's obligations to provide documents is limited to those
documents actually available to Seller. Buyer shall provide Seller at no charge
with photocopies of all reports and studies which Buyer obtains by reason of
Buyer's due diligence investigation of the Property.
7. PROPERTY DEVELOPMENT & LEASES
The Building has had plans drawn for its development into a first class
office building in downtown San Francisco. A true and accurate copy of those
plans are attached hereto collectively as Exhibit "G" and incorporated herein by
this reference.
The total square footage of the Building is approximately 18,000
square feet, with a basement consisting of another 5,000 square feet, more or
less. The first floor and basement is currently subject to a written lease with
▇▇▇▇▇▇▇▇▇'▇ Restaurant. ▇▇▇▇▇▇▇▇▇'▇ Restaurant has indicated that it is amenable
to a change in the lease terms whereby the basement can be remodeled so as to
provide ▇▇▇▇▇▇▇▇▇'▇ Restaurant with greater usable square footage, and a wine
tasting room for rental by Diamond Oaks Vineyard.
Seller has agreed to cooperate with Buyer in developing the Building as
set forth in the plans and Buyer agrees to undertake such development, pursuant
to the plans, which development is currently estimated to cost approximately Two
Million Dollars ($2,000,000). However, as set forth above, the age of the
Building, the Entitlement Process and similar matters could all significantly
affect the ultimate outcome of the proposed development and Buyer agrees to use
its best efforts to obtain building permits and a construction loan for the
conversion of the Building pursuant to the plans.
Buyer agrees to lease the tasting room as shown on the Exhibit "G"
plans to DVC and/or DOV for a term of not less than ten (10) years, with two (2)
five year options, with an initial base rent of Six Thousand Dollars ($6,000)
per month, during the initial 10 year term, with all other provisions of the
lease to be mutually acceptable to DCV/DOV on the one hand and Buyer on the
other hand.
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Buyer also agrees to lease the top floor of the Building, as shown on
the Exhibit "G" plans to Diversified Investment & Management Corporation (DIMC),
or its assignee, for a term of not less than ten (10) years, with two (2) five
year options, with an initial base rent of Ten Thousand Dollars ($10,000) per
month, during the initial 10 year term, with all other provisions of the lease
to be mutually acceptable to DIMC on the one hand and Buyer on the other hand.
8. CLOSING & ESCROW
(a) Closing Date. The Closing hereunder shall be on or before the
twelfth (12th) day following the effective date of this Agreement, unless
otherwise agreed to between the parties in writing. If scheduled Closing day
falls on a holiday, Saturday or Sunday, then the Closing shall occur two (2)
business days thereafter (the "Closing Date").
(b) Seller's Right to Extend Closing It is understood and agreed that
Seller has the right to structure this transaction in compliance with the tax
free exchange provisions of Internal Revenue Code ss. 1031. Seller shall have
the right, at Seller's sole option to extend the Closing Date for a maximum of
forty five (45) days beyond the Closing Date set forth in Section 8(a) above
(the "Extended Closing Date"). Seller shall give Buyer written notice of its
intent to extend the Closing Date for said period by delivering written notice
thereof to Seller at the address shown below.
(c) Failure to Close If the Closing does not occur on or before the
Closing Date or the Extended Closing Date, as the case may be, then the Title
Company as escrow holder shall, unless it is notified by both parties to the
contrary within two (2) days after the scheduled Closing Date (or Extended
Closing Date), return to the depositor thereof all items which may have been
deposited hereunder, other than the cash deposited by Buyer. Buyer's Initial
Deposit, Increased Deposit or Final Deposit, as the case may be, shall be
returned to Buyer three (3) business days after the scheduled Closing Date,
unless Seller notifies Title Company as escrow holder, in writing, that Seller
contends that Buyer owes Seller part or all of the deposit money as liquidated
damages as provided in Section 5 above. In the event of any such notice from
Seller to Title Company as escrow, Title Company shall take such actions as it
deems appropriate based on the written communications of Seller and Buyer,
including transfer of the deposit money to Seller as liquidated damages. No
return of deposit money shall, however, relieve Buyer of its obligation to pay
for Extraordinary Procedure expenses incurred as of the date of Agreement
termination.
(d) Escrow Instructions This Purchase and Sale Agreement shall act as
escrow instructions of both Buyer and Seller. Buyer and Seller shall each submit
to the Title Company, not less than five (5) days prior to the Closing Date,
such additional escrow instructions as may be necessary or required, consistent
with the provisions of this Agreement.
(e) Seller's Documents. At least two (2) business days prior to the
Closing, Seller shall deliver to Title Company as escrow, the following:
(i) a duly executed and acknowledged grant deed conveying to
the Buyer the Real Property and Appurtenances and all rights,
privileges and easements appurtenant thereto;
(ii) a duly executed ▇▇▇▇ of sale covering the Personal
Property, in the form attached hereto as Exhibit "D";
(iii) a Certificate from the California Secretary of State (or
a commercial reporting service satisfactory to Buyer) that
indicates that as of the Closing Date there are no filings
against Seller in the office of the Secretary of State under
the California Commercial Code that would be a lien on any of
the items specified in the ▇▇▇▇ of Sale referred to in Section
8(e)(ii) above (other than such filings, if any, as are being
released at the time of the Closing);
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(iv) originals of all documents, letters, plans,
specifications, reports and similar matters as the same relate
to the Entitlements, and Seller shall transfer ownership and
possession of all Entitlement materials by way of physical
deliver outside of escrow by delivery thereof to Diversified
Investment & Management Corporation. Seller shall execute and
deliver the "Entitlement Transfer" form attached hereto as
Exhibit "E" and incorporated herein;
(v) originals or copies of all service contracts, maintenance
contracts and management contracts, if any, affecting the
Property (collectively, the "Service Contracts") to be
continued by Buyer after the Closing, and any warranties or
guaranties received by Seller from any contractors,
subcontractors, suppliers, materialmen, consultants,
architects, engineers and others who have performed work on
the Property or in connection with obtaining the Entitlements;
(vi) to the extent available to Seller originals of all
architectural plans, designs, permits, studies, reports,
agreements or similar matters generated in the Entitlement
process and relating to the Property;
(vii) an affidavit of Seller that Seller is not a "foreign
person" within the meaning of Section 1445 of the Internal
Revenue Code of 1986 (the "Code") duly executed by Seller in
the form attached hereto as Exhibit "E";
(viii) closing statement in form and content satisfactory to
Buyer and Seller; and
(ix) any other documents, instruments or agreements called for
hereunder which have not previously been delivered.
Buyer may waive compliance on Seller's part under any of the foregoing
items by an instrument in writing.
(f) Buyer's Documents and Funds. At least two (2) business days prior
to the Closing, Buyer shall deliver to Title Company as escrow, the following:
(i) the cash portion of the Purchase Price in immediately
available funds;
(ii) immediately available funds sufficient to reimburse
Seller as provided in Section 3(c) above;
(iii) immediately available funds sufficient to reimburse
Seller as provided in Section 3(d) above;
(iv) immediately available funds sufficient to pay all title
insurance and other Closing costs allocable to Buyer as
provided for herein;
(v) an acknowledgement of liability sunset reflecting the
provisions of Section 12 of this Agreement in the form
attached hereto as Exhibit "F"; and
(vi) any other documents, instruments or agreements called for
hereunder which have not previously been delivered.
10
Seller may waive compliance on Buyer's part under any of the foregoing
items by an instrument in writing.
(g) Other Documents. Seller and Buyer shall each deposit such other
instruments as are reasonably required by the Title Company as escrow holder or
otherwise required to close the escrow and consummate the purchase of the
Property in accordance with the terms hereof.
(h) Prorations. The Title Company shall prorate all real property
taxes, water, sewer and utility charges, amounts payable under the Service
Contracts, annual permits and/or inspection fees (calculated on the basis of the
period covered), insurance premiums (as to those policies, if any, that Buyer
determines will be continued after the Closing), and other expenses normal to
the operation and maintenance of the Property shall be prorated on the basis of
a 365-day year as of 12:01 a.m. on the date the grant deed is recorded.
Seller and Buyer hereby agree that if any of the aforesaid prorations
cannot be calculated accurately on the Closing Date, then the same shall be
calculated within thirty (30) days after the Closing Date and either party owing
the other party a sum of money based on such subsequent proration(s) shall
promptly pay said sum to the other party, together with interest thereon at the
rate of ten percent (10%) per annum from the Closing Date to the date of payment
if payment is not made within ten (10) days after delivery of a ▇▇▇▇ therefore.
(i) Expenses. Buyer shall pay the fee for the policy of title
insurance. Seller shall pay the cost of all San Francisco City and County
transfer taxes applicable to the sale. No Brokerage commissions are involved in
this transaction and each party holds the other harmless for any claims
therefore. Seller and Buyer shall each pay fifty percent (50%) of all escrow
charges, document processing fees and other charges (other than attorneys fees)
as the same may relate to the closing of this transaction.
(j) Closing. Upon satisfaction and completion of all other matters set
forth in this Section 8, escrow shall close and Seller's grant deed shall be
delivered to Buyer and recorded and all of Seller's other documents as set forth
above shall be delivered by Title Company to Buyer. At the Closing Buyer's funds
shall be paid to Seller, or Seller's exchange accommodator, as Seller may so
designate, and Buyer's documents as set forth above shall be delivered to
Seller.
9. CONDITIONS PRECEDENT TO CLOSING
All of the conditions of Section 8 of this Agreement shall constitute
all of the conditions precedent to the Closing as described herein. After the
satisfaction or waiver of the due diligence contingencies of Section 6 and the
Entitlement Contingency of Section 7, failure by either Seller or Buyer to
satisfy the conditions imposed upon said party by Section 8 of this Agreement
shall constitute a material breach by said party of this Agreement.
10. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to Buyer, subject to the
limitations of Section 12 below, as follows:
(a) Except as disclosed to Buyer in writing during the due diligence
period of Section 6, hereof, to Seller's actual knowledge, there are not now,
and at the time of Closing there will not be, any material physical defect
concerning the Property;
(b) Except as disclosed to Buyer in writing during the due diligence
period of Section 6 hereof, to Seller's actual knowledge, the Property is in
compliance with all applicable governmental laws and regulations.
11
(c) The architectural plans, consulting reports and all other contracts
or documents delivered to Buyer pursuant to Section 6 of this Agreement are, and
at the time of Closing will be, true and correct originals or copies;
(d) Except as disclosed to Buyer in writing, during the due diligence
period, Seller has no actual knowledge of any condemnation, zoning or other
land-use regulation proceedings, either instituted or planned to be instituted,
which would adversely affect the use and operation of the Property for its
intended purpose or the value of the Property, nor has Seller received notice of
any special assessment proceedings affecting the Property.
(e) Except as disclosed to Buyer in writing during the due diligence
period of Section 6, hereof, to Seller's actual knowledge, Seller has obtained
all licenses, permits, easements and rights-of-way, including proof of
dedication, required from all governmental authorities having jurisdiction over
the Property or from private parties for the normal use and operation of the
Property, in its current condition. Nothing in this subparagraph (e) shall
impose an obligation on Seller to obtain any permit or other matter for the
prospective development of the Building, except for the Entitlements.
(f) Seller is not a party to any labor dispute that could adversely
affect the Property.
(g) Except as disclosed to Buyer in writing during the due diligence
period of Section 6 hereof, at the time of Closing there will be no outstanding
contracts made by Seller without the consent of Buyer, for any improvements to
the Property which have not been fully paid for and Seller shall NOT cause to be
discharged all mortgages or deeds of trust in which Seller is Trust or and which
effect the Property prior to or at the Closing.
(h) Seller knows of no facts and has not failed to disclose any fact
which would prevent Buyer from using and operating the Property after Closing in
the manner planned by Buyer, in a manner similar to the way other similar
properties in the area are operated.
(i) Except as disclosed to Buyer in writing during the due diligence
period of Section 6 hereof, to Seller's actual knowledge, neither Seller nor any
predecessor owner, occupant or user of the Property, or any past or current
tenant, has spilled, disposed of, released, or stored on, under or at the
Property any Hazardous Substances (excepting only minor quantities maintained in
accordance with commercially reasonable standards and applicable environmental
laws);
(j) Except as disclosed to Buyer in writing during the due diligence
period of Section 6 hereof, Seller has no actual knowledge that the Property or
any adjacent property has been used as a dump or landfill or that any Hazardous
Substances have been generated, released, stored (excepting only minor
quantities maintained in accordance with commercially reasonable standards and
applicable environmental laws) or deposited over, beneath or on the Property or
the adjacent property.
12
(k) Except as disclosed to Buyer in writing during the due diligence
period of Section 6 hereof, Seller has not been notified of any proceeding or
inquiry by any governmental authority with respect to the production, storage,
disposal or use of any hazardous waste or other toxic or hazardous substance on
or under the Real Property.
(l) Subject only to the limitation of Section 12(d) nothing in this
Agreement shall be deemed (a) a release of Seller from its liability, if any, to
any governmental entity or third party (including without limitation Buyer) for
any violation of applicable environmental laws; or (b) a waiver of any rights of
Buyer to seek contribution from Seller in any action under the provisions of the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq, or any other toxic or hazardous materials cleanup statute,
law or regulation; or (c) any statutory or common law indemnification by Buyer
in favor of Seller (or any other person or entity) respecting environmental or
related matters.
(m) As used in this Agreement the term "Hazardous Substances" shall
have the meaning set forth in U.S.C. Section 9601 (14), expanded to include
petroleum.
(n) There is no litigation pending or threatened against Seller or any
basis therefore that arises out of the ownership of the Property or that might
detrimentally affect the proposed use or operation of the Property, or the value
of the Property or adversely affect the ability of Seller to perform its
obligations under this Agreement.
(o) Seller is not a "foreign person" within the meaning of Section
1445(f)(3) of the Code.
(p) This Agreement and all documents executed by Seller which are to be
delivered to Buyer at the time of Closing are, or at the time of Closing will
be, duly executed and delivered by Seller, are, or at the time of Closing will
be, legal, valid, and binding obligations of Seller, are and at the time of
Closing will be sufficient to convey title (if they purport to do so), and do
not and at the time of Closing will not violate any provisions of any agreement
or judicial order to which Seller is a party or to which Seller or the Property
is subject.
11. REPRESENTATIONS AND WARRANTIES OF BUYER.
All documents executed by Buyer which are to be delivered to Seller at
the Closing are to or at the time of Closing will be duly executed and delivered
by Buyer (or assignee), and are or at the Closing will be legal, valid and
binding obligations of Buyer, and do not and at the time of Closing will not
violate any provisions of any agreement, mortgage, deed, note or other document
or instrument to which Buyer is a party or to any court order to which Buyer is
subject.
12. WAIVER AND SUNSET
(a) Notwithstanding any other provision of this Agreement to the
contrary, Buyer agrees to buy the Property "AS IS" and shall not rely upon any
representations or warranties of Seller as to the condition of the Property, its
suitability for development, its financial suitability or any other matter
whether set forth in Section 10 or otherwise. Buyer agrees to rely solely upon
its own experts, consultants and professionals in determining the condition of
the Property, including specifically any environmental condition.
13
(b) Seller has given certain representations in Section 10 of this
Agreement and it is the intent of the parties hereto that said representations
are given by Seller to Buyer only for purposes of assisting Buyer with the due
diligence and Closing of this transaction. At the Closing, any and all
representations and warranties of Seller to Buyer shall cease and be terminated
such that, any representation by Seller contained in this Agreement, will be
true at the Closing, but shall not survive the Closing, such that absent
material falsity of said representation at the Closing, Buyer cannot suffer
damages as a result of any representation or warranty of Seller. Seller agrees
that the representations made in Section 10 above were made solely to assist
Buyer in conducting Buyer's due diligence investigation, and that Buyer is aware
that all said representations are "to the actual knowledge of Seller" such that
Seller is not assuring the ultimate truth of said representations, but merely
indicating to Buyer that Seller is not engaged in any fraud or concealment with
respect to matters effecting the Property.
(c) Should any litigation arise by reason of Seller's representations
or warranties as set forth in Section 10 or elsewhere, the parties intend that
Buyer place no reliance upon said representations, and that Buyer conduct an
appropriate inquiry into the truth or falsity of any and all representations to
ascertain the true conditions of the Property. In any litigation, Seller have
liability only to the extent it can be shown that Seller willfully made a false
representation or willfully concealed a material fact from Buyer, and that Buyer
had no method whereby Buyer could protect itself based upon its own
investigation and diligence.
(d) In no event may any action for any reason be commenced against
Seller by Buyer, Buyer's assignee, or any successor in interest, more than sixty
(60) days after the closing contemplated herein, and Buyer on behalf of itself,
its assignees, successors and assigns hereby waives any and all rights to
recover any money from Seller for any reason, unless action thereon is commenced
within said sixty (60) day period following the Closing. This "sunset" provision
shall apply to any action brought against Seller including, but not limited to
actions based on Hazardous Substances or Seller's representations.
(e) Buyer and Seller agree that there are no oral representations from
either party. The Buyer shall verify its acceptance of these provisions by
executing and delivering to Seller at the Closing the "Sunset & Waiver" attached
hereto as Exhibit "F".
13. LOSSES BY CASUALTY; CONDEMNATION.
In the event that, prior to Closing, the Property, or any part thereof,
is rendered totally incapable of development by an Act of God (i.e. "total
destruction") or if condemnation proceedings are threatened or commenced against
the Property, which condemnation proceedings involve fifty percent (50%) or more
of the Real Property (i.e. "major condemnation"), then and only then shall Buyer
have the right, exercisable by giving notice of such decision to Seller within
three (3) days after receiving written notice from Seller of such total
destruction by Act of God or major condemnation proceedings, to terminate this
Agreement, in which case, neither party shall have any further rights or
obligations hereunder and the full amount of any Deposit shall be returned to
Buyer. If Buyer either:
(a) elects not to terminate this Agreement following a total
destruction or major condemnation; or
(b) the destruction or condemnation is not total or major, then Buyer
shall accept the Real Property in its then condition and all proceeds of
insurance or condemnation awards payable to Seller by reason of such destruction
or condemnation, if any, shall be paid or assigned to Buyer. If Buyer fails to
give notice Buyer shall be deemed to have elected to continue this Agreement.
14
14. POSSESSION.
Possession of the Property shall be delivered to Buyer on the Closing
Date; provided that Seller shall afford authorized representatives of Buyer
reasonable access to the Property for the purposes of satisfying Buyer with
respect to Buyer's due diligence inspections and the representations, and
warranties of Seller herein, and with respect to satisfaction of any conditions
precedent to the Closing herein. Buyer shall also have access to the Property
for the purpose of conducting environmental surveys, soils tests, surveys or
other physical inspections of the Property. Seller shall cooperate with Buyer in
providing access to the Property and satisfying the conditions contained herein.
15. MAINTENANCE OF THE PROPERTY.
Between the date of mutual execution of this Agreement and the Closing,
Seller shall maintain the Property in good order, condition and repair,
reasonable wear and tear excepted and Seller shall otherwise operate the
Property in the same manner as before the making of this Agreement, the same as
though Seller were retaining the Property.
16. BUYER'S CONSENT TO NEW CONTRACTS AFFECTING THE PROPERTY.
Seller shall not, after the date of Seller's execution of this
Agreement, enter into any lease, amendment of lease, contract or agreement or
permit any tenant of the Property to enter into any sublease, assignment of
lease, contract or agreement pertaining to the Property without obtaining
Buyer's consent thereto.
17. MISCELLANEOUS.
(a) Notices. Any notice, consent, approval, waiver or other
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered personally or
two (2) days after deposited in the United States mail, certified mail, postage
prepaid, return receipt required, and addressed as follows:
If to Seller: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: ▇▇▇▇▇▇▇▇▇▇ Realty Group, Inc.
a Nevada corporation
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
15
or such other address as either party may from time to time specify by notice
hereunder to the other.
(b) Attorney Representation Both Buyer and Seller hereby waive any
conflict of interest with regard to the services of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. and all
parties hereto represent and acknowledge that ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. has made no
representations regarding the Property, the Building, the suitability of the
investment, or the tax effects of the transaction.
(c) Brokers and Finders. No Brokers are involved in this transaction
and each party shall hold the other harmless from any claims for brokerage fees.
If any other broker or finder perfects a claim for a commission or finder's fee
based on any contact, dealings or communication with any party hereto, the party
through whom the broker or finder makes such claim shall be responsible for said
commission or fee and all costs and expenses (including reasonable attorneys'
fees) incurred by the other party in defending against the same. The provisions
of this paragraph shall survive the Closing.
(d) Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors, heirs,
administrators and assigns. Without being relieved of any liability under this
Agreement, Buyer reserves the right to take title to the Property in a name or
assignee other than Buyer.
Neither party to this Agreement may assign this Agreement to another
party, except that both Buyer and Seller may assign this Agreement for purposes
of IRC ss. 1031 to and First Guaranty Exchange (or other agreed upon exchange
accommodator) to assist in a tax free exchange.
(e) Amendments. Except as otherwise provided herein, this Agreement may
be amended or modified by, and only by, a written instrument executed by Seller
and Buyer.
(f) Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of California.
(g) Merger of Prior Agreements. This Agreement contains the entire
agreement of the parties and supersedes all prior negotiations, correspondence,
understandings and agreements between the parties, relating to the subject
matter hereof.
(h) Enforcement. If either party fails to perform any of its
obligations under this Agreement or if a dispute arises concerning the meaning
or interpretation of any provision of this Agreement, the defaulting party or
the party not prevailing in such dispute, as the case may be, shall pay any and
all costs and expenses incurred by the other party in enforcing or establishing
its rights hereunder, including, without limitation, court costs and reasonable
attorneys; fees.
(i) Time of the Essence. Time is of the essence of this Agreement.
(j) Exchange Transaction. In the event that Seller elects to consummate
the transaction contemplated herein by virtue of an exchange transaction under
Section 1031 of the Code, Buyer shall cooperate with Seller in so effecting
Seller's consummation of such transaction subject to the following conditions:
16
(i) Except as provided in Section 8(b) above, the period for
the Closing shall not be extended by such exchange
transaction;
(ii) Buyer shall not take title to any property as part of any
such exchange transaction;
(iii) Buyer shall not be required to advance any funds
whatsoever or incur any obligation or liability whatsoever in
connection with any such exchange transaction;
(j) Specific Performance. Seller acknowledges that in the event of a
breach or default or threatened breach or default under this Agreement by Seller
prior to the Closing, damages at law will be an inadequate remedy and,
accordingly, without in any manner limiting any other remedies available to
Buyer, Seller's obligations under this Agreement may be enforced by specific
performance.
(k) Attorneys Fees Seller and Buyer shall each bear their own attorneys
fees in the performance of this Agreement; provided, however, that in the event
of a dispute between Buyer and Seller regarding enforcement or interpretation of
this Agreement, the prevailing party in such dispute shall be entitled to
recover from the other party all reasonable attorneys fees generated by reason
of said dispute.
(l) Headings. The headings of the various sections of this Agreement
are for the convenience of the parties and shall not be used in the
interpretation of this Agreement.
(m) Interpretation. This Agreement shall be construed according to the
normal meaning of words and phrases, and shall not be read against either party
to this Agreement. In any dispute regarding interpretation of this Agreement,
the Court shall seek to base its interpretation on the underlying business goal
and the language reflected thereby.
(n) Building Plans & Permits. It is the intention of the parties hereto
that Seller shall control the Entitlement process until this transaction is
closed as contemplated above.
(o) Meet and Confer. It is the intention of the parties hereto that
Buyer and Seller shall cooperate in the Entitlement process. It is further
contemplated that Buyer and Seller shall enter into leases as provided in
Section 7 above. Buyer and Seller agree to cooperate and act in a commercially
reasonable manner as to said leases.
(p) Days and Business Days. As used in this Agreement, the term "day"
shall refer to a calendar day and the term "business day" shall refer to any
calendar day other than a federal holiday, Saturday or Sunday.
(q) Other Construction As used herein the term "may" is permissive and
the term "shall" is mandatory. The term "will" means the statement of an
intention and not an obligation. The singular shall include the plural and the
neuter, the masculine and feminine.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Buyer:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇▇▇ Realty Group, Inc.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
Seller:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual
18
Exhibit A
Description of Real Property
Exhibit B
Schedule of Personal Property
None
Exhibit C
WARRANTY ▇▇▇▇ OF SALE
For and in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration the receipt of which is hereby acknowledged, ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Seller") does hereby sell, transfer, and convey to ▇▇▇▇▇▇▇▇▇▇
Realty Group, Inc. a Nevada corporation (or assignee) ("Buyer"), the following
personal property which Seller warrants to be free and clear of all
encumbrances, to wit:
The personal property is itemized on Schedule of Personal
Property attached hereto and incorporated herein by this
reference.
Seller does hereby covenant with Buyer that the undersigned is the
lawful owner of such personal property, and that the undersigned has good right
to sell the same as aforesaid and will warrant and defend the title thereto unto
Buyer, its successors and assigns, against the claims and demands of all persons
whomsoever.
DATED this _____ day of __________________, 2003.
Seller: ___________________________
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Exhibit D
Transfer of Entitlement Rights
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual ("Transferor") hereby transfers,
assigns and delivers to ▇▇▇▇▇▇▇▇▇▇ Realty Group, Inc. a Nevada corporation,
doing business in California as Nevada-▇▇▇▇▇▇▇▇▇▇ Realty Group, Inc., or
assignee ("Transferee") any and all architectural plans development rights in
and to the Land described in Exhibit "A" attached hereto, together with all City
of San Francisco Planning Department and Planning Commission approvals,
including but not limited to:
List documents received (i.e. plans, etc.)
all of which rights, approvals and documents are hereinafter referred to as the
"Entitlements". Transferor warrants that all said rights, approvals and
documents were lawfully obtained and represent the rights and approvals set
forth in said documents, subject to the conditions set forth therein.
Dated: ____________________, 2003
--------------------------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Exhibit "E"
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
disposition of a U.S. real property interest by ▇▇▇▇▇▇▇▇▇▇ Realty Group, Inc. a
Nevada corporation ("Seller"), the undersigned hereby certifies the following on
behalf of Seller:
1. Seller is not a foreign corporation, a foreign partnership, a
foreign trust or a foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations); and
H. Seller's U.S. taxpayer identification number is ###-##-####; and
3. Seller's office address is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Seller understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury, the undersigned declares that he has examined
this certification and to the best of his knowledge and belief it is true,
correct and complete, and he further declares that he has authority to sign this
document on behalf of himself.
IN WITNESS WHEREOF, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ has executed this certification
as of this ____ day of __________, 2003.
SELLER:
By:
---------------------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
EXHIBIT "F"
SUNSET & WAIVER
Buyer acknowledges that:
1. The Property, Building and Entitlements, together with all
other property, real, personal or intangible acquired pursuant
to the Purchase & Sale Agreement dated effective July 17,
2003, by and between ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ as "Seller" and
▇▇▇▇▇▇▇▇▇▇ Realty Group, Inc. as "Buyer" (the "Agreement").
2. Buyer accepts the Property, Building and Entitlements,
together with all other property, real, personal or intangible
acquired pursuant to the Agreement in an "AS IS" condition,
with no representations or warranties, express or implied,
including specifically, but not by way of limitation, the
warranty of suitability for particular purpose.
3. Buyer re-affirms that Seller's representations and warranties
as set forth Section 10 of the Agreement, and elsewhere in the
Agreement were made to accommodate Buyer and shall expire at
the Closing.
4. Buyer hereby waives any and all recourse against Seller in the
event there is any defect in the Property or any adverse
condition exists, including, but not limited to toxic matters,
since all property, environmental and other matters were given
adequate due diligence investigation by Buyer and Buyer relied
solely upon its own due diligence investigations, experts and
consultants in choosing to purchase the Property, Building and
Entitlements, and no reliance was placed upon any
representation by Seller.
5. Buyer agrees that after sixty (60) days from the date of
Closing, Buyer is estopped from commencing any litigation
against Seller or his agents, for any reason whatsoever, and
that Buyer's purchase of the Property, Building and
Entitlements was not induced by any representation or act of
Seller and that Buyer's execution of this Waiver was not
induced by any representation or act if Seller.
6. Buyer waives its rights against Seller under California Civil
Code ss. 1542, which section reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
7. Buyer further acknowledges that all of the facts concerning
this transaction may not be known to either party and that
said facts may be significant. Further, the legal and business
effect of certain facts may change and Buyer accepts the
uncertainty inherent therein.
The foregoing waivers support, but do not limit, any waivers set forth in the
Purchase & Sale Agreement.
Dated: July ______, 2003
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Corporate Secretary
▇▇▇▇▇▇▇▇▇▇ Realty Group, Inc.
EXHIBIT "G"
PLANS FOR BUILDING IMPROVEMENT