EXHIBIT 10.222
SALES AGREEMENT AND
JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS made this 4th day of
February, 2003, by and between Ready Mix, Inc. (hereinafter "Seller") and Conde
Del Mar Properties, LLC and/or nominee/assignee (hereinafter "Purchaser") (the
"Agreement"). This Agreement constitutes both and Agreement between Purchaser
and Seller and joint escrow instructions to First American Title Company of
Nevada ("Escrow Agent"), Carol Dvorak ("Escrow Officer"), with respect to the
transactions contemplated hereby.
WITNESSETH:
For and in consideration of the mutual covenants and conditions herein
contained, Seller and Purchaser agree as follows:
1. Property. Seller agrees to sell and convey, and Purchaser agrees to
purchase and pay for the following, all of which is referred to this Agreement
and the "Property":
That certain property describes as and approximate 12.23 net acre parcel
commonly known as APN 139-17-601-004 located within Las Vegas in Clark County,
Nevada (the "Property"), shown on the attached Exhibit "A" and incorporated
herein by reference. Exact legal description to be provided in escrow.
2. Purchase Price. The total purchase price of the Property shall be
he amount of One Million Dollars and no/100's ($1,000,000.00)("Purchase Price")
payable in cash at closing (as hereinafter defined). At the Closing, the Deposit
(as hereinafter defined) shall be applied to payment to the Purchase Price.
3. Deposit. Within three (3) days after execution of this Agreement by
Seller, Purchaser shall deliver a deposit (the "Deposit") in the amount of Ten
Thousand and no/100's ($10,000.00) in cash, personal check or cashier's check
payable to Escrow Agent, or other readily available funds, which Deposit shall
be deposited into an interest bearing account and held in escrow by Escrow Agent
during the pendency of this Agreement.
4. Feasibility Period and Contingency. For a period of sixty (60) days
after the Effective Date ("Feasibility Period"), Purchaser shall be, at
Purchaser's sole cost and expense, entitled to inspect the Property, to conduct
such tests, surveys, analysis and feasibility studies of the Property as
Purchaser deems necessary, and to meet with governmental entities regarding the
feasibility of Purchaser's intended use of the Property. Without limiting the
generality of the foregoing, Purchaser (and persons authorized by Purchaser)
shall have the right and authority to go upon the Property, from time to time on
one or more occasions, for feasibility determinations including, without
limitation (1) determining the adequacy of access, zoning and other restrictions
on the use of the property; (2) performing environmental, soils and subsoil
tests, engineering the drainage studies; (3) obtain Governmental approval
related to preliminary designs (including, but not limited to, site plan,
landscaping, and building elevations); and (4) obtain any necessary entitlement
and/or permits an determining the adequacy of all utilities (including, without
limitation, water, sanitary sewer, electricity, gas telephone, air conditioning)
to provide such quantities, pressures and capacities as are necessary to use the
Property in accordance with Purchaser's intended use.
Seller agrees to cooperate with Purchaser in connection with the tests,
investigation, governmental approvals, and inspection of the Property, and
Seller agrees to furnish Purchaser within ten (10) days after the Effective Date
of this Agreement, copies of any and all surveys, flood certification letter,
test reports, engineering studies, an all other documents and materials in
Seller's possession relating to the Property that may be necessary or
appropriate to complete such investigation and inspection. If the Purchaser
determines, in Purchaser's sole judgment that the Property is not suitable,
Purchaser shall notify Seller and Escrow Agent in writing on or before
expiration of the Feasibility Period and upon such notice this Agreement shall
terminate, Escrow Agent shall return the Deposit to Purchaser, and neither
Purchaser nor Seller shall have any further obligations hereunder. Subject to
the terms of this agreement, should Purchaser fail to give such notice on or
before the expiration of the Feasibility Period, or if Purchaser notifies
Seller that the Property is suitable for the purposes contemplated hereby,
Purchaser's right to object pursuant to this Section 4 shall be waived and of
no further force on effect, Purchaser shall deposit the additional sum of
Fifteen Thousand dollars ($15,000.00) for a total Deposit of Twenty-five
Thousand ($25,000.00), and the Escrow Agent shall consider the total Deposit to
be nonrefundable to Purchaser upon deposit thereof. Purchaser shall promptly
repair and restore the Property to its original condition existing prior to
entry or inspection by Purchaser. Purchaser shall indemnify, hold harmless and
defend Seller and Seller's affiliates, partners, agents and employees from any
and all liability, loss, cost, damage or expense (including attorney's fees),
of whatsoever nature relating to or in connection with any injury to persons or
damage to property, where such injury or damage arises from or relates to the
entry upon, occupation, use or inspection of the Property by Purchaser, its
agents, officers or employees. Notwithstanding anything to the contrary herein,
Purchaser's duty of indemnification under this Section 4 shall survive any
termination of this Agreement or the transfer of title as provided herein.
5. Title Insurance
a. Title Report and Commitment. Within five (5) days after the
Effective Date of this Agreement, Seller shall deliver or cause to be delivered
to Purchaser a preliminary title report and commitment covering the Property
issued by First American Title, together with copies of all documents referred
to in such preliminary title report, if it is anticipated that said documents
shall be a Permitted Exception effecting the Property after closing, (the
preliminary title report and such documents are referred to collectively as
"Title Report").
b. Review of Title Reports. Purchasers shall have fifteen (15) days
from Purchaser's receipt of the Title Report and Commitment in which to examine
the Title Report and Commitment and to specify to Seller those items in the
Title Report and Commitment which Purchaser will accept as permitted exceptions
to title ("Permitted Exceptions"), and those items which Purchaser reasonably
finds objectionable ("Title Objections"). If Purchaser does not deliver to
Seller a written notice specifying those items which are Permitted Exceptions
and those items which are Title Objections within the above-stated fifteen (15)
day period, then all of the items reflected on the Title Report and Commitment
shall be considered to be Permitted Exceptions.
c. Uncorrected Title Objections. If Seller, in Seller's discretion,
elects not to cause the Title Objections to be corrected or removed on or prior
to Closing, Purchaser may within five (5) days of Purchaser's receipt of
Seller's election not to correct said objections (1) and, except as provided
otherwise hereunder both parties shall be released from all further obligations
under this Agreement and Escrow Agent shall return the Deposit, or (2) elect to
purchase the Property subject to any Title Objections not so corrected or
removed.
6. Condition of Property Purchased. Seller shall indemnify, defend, and
hold Purchaser and Purchaser's affiliates, agents, and partners, harmless from
and against any and all construction liens filed in connection with any work or
improvements unless such liens arise as a result of the act of Purchaser and/or
Purchaser's affiliates, agents, and partners. Other than as provided for
herein, Purchaser is buying the Property in an "as is" condition.
7. Closing
a. Date and Place. The Closing of the sale of the Property by
Seller to Purchaser (the "Closing") shall occur no later than fifteen (15) days
from the end of the Feasibility Period. The Closing shall occur in the offices
of Escrow Agent.
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b. Seller's Obligations at Closing. At the Closing, Seller shall
deliver, or cause to be delivered, to Purchaser the following:
(1) Grant Bargain and Sale Deed. Seller shall execute and
deliver to Escrow Agent for recording a Grant, Bargain and Sale Deed in form
and substance reasonably satisfactory to Purchaser, fully executed and
acknowledged by Seller, conveying the Property to Purchaser.
(2) Title Insurance Policy. Seller shall cause the Escrow
Agency to issue and deliver to Purchaser a CLTA standard coverage owner's
policy of title insurance ("Owner's Title Policy"), consistent with the Title
Commitment as reviewed and approved by Purchaser, in the amount of the Purchase
Price, insuring that Purchaser is owner of the Property subject only to such
matters as approved by Purchaser. Purchaser shall have the right, at
Purchaser's sole cost and expense, to upgrade the Title Insurance Policy to an
ALTA form B-1970 (Rev. 10-17-70) extended coverage owner's policy and to obtain
any endorsements required by Purchaser. It shall be a condition precedent to
Purchaser's obligation to purchase the Property that the Title Company can and
will issue the Title Insurance Policy at the Closing.
(3) Other Instruments. Seller shall execute and deliver such
other documents as are customarily executed in the State of Nevada in
connection with the conveyance of real property, including all required closing
statements, releases, affidavits, evidences of authority to execute the
documents, and any other instruments including an Assignment of the Lease
reasonably acceptable to Purchaser that may reasonably be required by the
Escrow Agent. Additionally, Seller shall deliver the builder's warranty and any
extended warranties in accordance with Section 6 herein.
(4) Possession. Seller shall deliver possession of the
Property to Purchaser at Closing.
c. Purchaser's Obligations at Closing.
(1) Payment of Purchase Price. At the Closing, Purchaser
shall pay the Purchase Price in cash (or by Certified Check, Cashier's Check,
wire transfer of funds into escrow all of which shall constitute "cash" for
purpose of this Agreement), less the amount of the Deposit, to be paid to
Seller at the Closing, and subject to any adjustments for prorations and other
credits provided for in this Agreement.
(2) Other Instruments. Purchaser shall execute and deliver
such other documents as are customarily executed in the State of Nevada in
connection with the conveyance of real property, including all required closing
statements, releases, affidavits, evidences of authority to execute the
documents, and any other instruments that may reasonably by required by the
Escrow Agent.
(3) Purchaser's obligations at Closing as provided for in this
Section 7.c. are subject to the satisfactory completion of (i) the Feasibility
Period as set forth in Section 4 herein, and (ii) the performance by Seller of
its obligations under Section 7.b. herein.
d. Prorations. All real estate taxes relating to the Property
for the year of the Closing shall be prorated as of the date of Closing between
Seller and Purchaser. If the amount of taxes for that year are not known at the
time of Closing, the prorations shall be based on an estimate of the taxes for
the year of Closing, and when the tax information becomes available, Seller or
Purchaser may request and obtain reimbursement from the other party for any
excess amount charged to that party at the Closing. Likewise, any other amounts
normally prorated between Seller and Purchaser, if any, shall be prorated
between Seller and Purchaser as of the date of Closing. This Section 7.d. shall
survive the Closing.
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e. Closing Cost. Seller and Purchaser each agree to pay the
following costs at the Closing:
(1) Paid by Seller. Seller agrees to pay the cost of
preparing the Grant, Bargain and Sale Deed; the preliminary title report and
commitment, the premium for the Title Insurance Policy; real property transfer
taxes or documentation taxes; the cost of preparing and recording any releases
and other documents necessary to convey the Property in accordance with this
Agreement; one-half (1/2) of any escrow or closing fee charged by the Escrow
Agent; Seller's attorney's fees and costs as provided for herein.
(2) Paid by Purchaser. Purchaser agrees to pay the recording
fee for the Grant, Bargain and Sale Deed; one-half (1/2) of any escrow or
closing fee charged by the Escrow Agent; Purchaser's attorney's fees and Costs
as provided for herein.
8. Default. In the event that Seller is ready willing and able to
convey the Property in accordance with the Agreement and Purchaser is obligated
under the terms of this Agreement to consummate the transaction evidenced by
this Agreement but fails to consummate this Agreement and take title, the
parties hereto recognize and agree that the damages Seller will sustain will be
difficult to ascertain. Therefor, the parties agree that in the event of
Purchaser's default and in lieu of all other remedies Seller may have at law or
equity, shall be entitled to receive and retain the Deposit as liquidated
damages for Purchaser's failure to close in complete settlement of any and all
claims Seller may have against Purchaser. If Closing is not concluded through
no fault or Purchaser, Purchaser, at it's option, may (i) elect to enforce the
terms of this Agreement by action for specific performance, and/or exercise any
other right or remedy available to it at law or in equity, or (ii) terminate
this Agreement by notice to Seller and Escrow Agent, whereby Escrow Agent shall
act in accordance with this Agreement and return the Deposit, plus any earned
interest thereon, to Purchaser. Upon any termination under (ii) above, the
parties shall have no further rights and/or obligations under this Agreement
other than those rights and/or obligations that are expressly stated to
survive expiration or termination of this Agreement.
9. Seller's Representations and Warranties.
(a) Seller has not received notice that the Property is in violation
of any restrictive covenant, agreement or permit applicable
thereto, or of any building code ordinance, statute, regulation,
or requirement or any governmental authority having jurisdiction
thereof.
(b) Seller has not received notice of a claim, request for
information, demand or notification that it is or may be a
potentially responsible party in any action, proceeding or site
clean-up commenced pursuant to any applicable Environmental Laws.
(c) To Seller's knowledge, there is no litigation or claim, pending
or threatened, against or involving the Property, and there are
no facts or circumstances known to Seller which could give rise
to any such claim or litigation.
(d) To Seller's knowledge (i) there are no toxic or hazardous
substances, wastes, or materials of any kind, as may be regulated
by any applicable federal, state, or local law, rule or
regulation, and Seller has not and will not cause or knowingly
permit the same, (ii) there are no Hazardous Substances of any
kind that have been accumulated on the Property in violation of
any applicable governmental law, rule, or regulation or buried on
the Property, and (iii) neither the Property nor any part thereof
are contaminated by Hazardous Substances, including, but not
limited to petroleum products, asbestos, toxins, or toxic
material.
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(e) From the Effective Date of this Agreement until
Closing, Seller will neither do, commit, or suffer to
be done any act or thing which would adversely affect
Seller's present title to the Property.
(f) Seller has taken or, prior to Closing, will take all
requisite actions necessary to approve, execute,
deliver and perform this Agreement and each and every
agreement and document delivered by Seller in
connection herewith. This Agreement and each and every
other agreement and document delivered by Seller in
connection herewith have been duly executed and
delivered by Seller and constitute the binding
obligations of Seller enforceable in accordance with
their respective terms and will not violate any other
contractual obligations of Seller.
10. Purchaser's Representations and Warranties. Purchaser has
taken or, prior to Closing, will take all requisite actions necessary to
approve, execute, deliver and perform this Agreement and each and every
agreement and document delivered by Purchaser in connection herewith. This
Agreement and each and every other agreement and document delivered by
Purchaser in connection herewith have been duly executed and delivered by
Purchaser and constitute the binding obligations of Purchaser enforceable
in accordance with their respective terms and will not violate any other
contractual obligations of Purchaser.
11. Brokers. Seller shall pay a real estate broker's commission
payable to Colliers International ("Purchaser's Agent") in connection with
the sale of the Property in the amount of five percent (5%) of the Purchase
Price upon closing thereof. Purchaser and Seller agree to indemnify and
hold harmless one another from all loss, damage, cost, expense and
liability relating to any claim for a commission by any other person or
entity with respect to this transaction, claiming by, through or under one
another. Seller and Purchaser represent and warrant that no other
broker(s), other than the above named, have been involved in this
transaction and no other broker(s), other than the above named, are
entitled to a commission.
12. Section 1031 Exchange.
a) Purchaser hereby agrees to cooperate with Seller in a
tax-deferred exchange should Seller so elect. Seller
hereby agrees to pay any and all costs, taxes,
assessments and/or liability that may be proximately
caused by such tax-deferred exchange. In the event
Seller affects a tax-deferred exchange, such exchange
shall not otherwise delay the Closing nor shall
Purchaser be required to take title to any property so
as to accommodate Seller's exchange.
b) Seller hereby agrees to cooperate with Purchaser in a
tax-deferred exchange should Purchaser so elect.
Purchaser hereby agrees to pay any and all costs,
taxes, assessments and/or liability that may be
proximately caused by such tax-deferred exchange.
Should Purchaser elect to affect a tax-deferred
exchange, such exchange shall not otherwise delay the
close of escrow nor shall Seller by required to take
title to any property so as to accommodate Purchaser's
exchange.
13. Eminent Domain. To the best of Seller's knowledge there
is no pending or threatened proceeding in eminent domain. In the event of
any threatened, contemplated, commenced or consummated proceeding in
eminent domain (notice of which shall be given promptly to Purchaser by
Seller) respecting any portion of the Property such that the balance
thereof would not be sufficient to be utilized for Purchaser's purpose in
Purchaser's sole and absolute discretion, Purchaser may, at its option, by
written notice to Seller given within fifteen (15) days after Purchaser is
notified of such actual or possible proceedings: (i) unilaterally terminate
this Agreement, whereupon the Deposit, with earnings thereon, or (ii) elect
to continue this Agreement and close the purchase of the Property without
any right
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to deduction or set-off, in which event Seller shall, at the Closing, assign to
Purchaser its entire right, title and interest in and to any condemnation
award. In the event less than fifteen (15) days exist at the time of such
notice from Seller until the scheduled date of the Closing, the Closing shall,
at Purchaser's option, be extended by as many days as is necessary to allow
Purchaser such full fifteen (15) day review period. All negotiations and
discussions with the condemning authority shall be conducted by Seller only,
and Purchaser shall not independently contact or negotiate with condemning
authority.
14. Miscellaneous
a. No Assignment. Neither this Agreement nor any of Purchaser's
rights hereunder may be assigned or transferred by Purchaser to non affiliated
party without the prior written consent of Seller, said consent may not be
unreasonably withheld.
b. Notices.
(1) Any and all notices and demands by any party hereto
to any other party or Escrow Agent, required or desired to be given hereunder
shall be in writing and shall be validly given or made only if personally
delivered or deposited in the United States mail, certified or registered,
postage prepaid, return receipt requested or if made by Federal Express or
other similar delivery service keeping records of deliveries and attempted
deliveries. Service shall be conclusively deemed made upon receipt if
personally delivered or, if delivered by mail, facsimile, or delivery service,
on the first business day delivery is attempted or upon receipt, whichever is
sooner.
(2) Any notice or demand to Seller shall be addressed to
Seller at:
Robert Morris
Ready Mix, Inc.
3430 East Flamingo, Suite 100
Las Vegas, Nevada 89121
Telephone 702-433-2090
Facsimile 702-433-0189
(3) Any notice or demand to Purchaser shall be addressed to
Purchaser at:
Steve Groat
Conde Del Mar Properties, LLC and/or nominee/assignee
149 North Gibson Road, Suite N
Henderson, Nevada 89014
Telephone (702) 856-3235
Facsimile (702) 556-9184
(4) Any notice or demand to Purchaser's Agent shall be
addressed to Broker at:
Michael G. DeLew/Ashley Ziehm
Colliers International
3960 Howard Hughes Parkway, Suite 150
Las Vegas, Nevada 89109
Telephone 702-735-5700
Facsimile 702-939-5080
("Purchaser's Agent")
and
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(5) Any notice or demand to Escrow Agent shall be addressed
to Escrow Agent at:
First American Title Company
c/o Carol Dvorak
3960 Howard Hughes parkway, Suite 630
Las Vegas, NV 89109
Telephone (702) 732-3278
Facsimile (702) 732-8514
(6) The parties and Escrow Agent may change their address
for the purpose of receiving notices or demands as herein provided by a written
notice given in the manner aforesaid to the others, which notice of change
of address shall not become effective, however, until the actual receipt
thereof by the others.
c. Parties Bound. This Agreement shall be binding upon and inure to
the benefit of the parties to this Agreement and their respective heirs,
executors, administrators, legal representatives, successors and assigns.
d. Severability If any of the terms and conditions hereof shall
for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect any other of
the terms and conditions hereof and the terms and conditions hereof thereafter
shall be construed as if such invalid, illegal, or unenforceable terms or
conditions had never been contained herein.
e. Entire Agreement. The terms and conditions hereof relating to
the subject matter described herein (i) constitute the entire agreement and
understanding between the Seller and the Purchaser, (ii) supersede all prior
agreements, and understandings, written or oral, between the Purchaser and the
Seller, and (iii) may not be modified or amended except by an instrument
mutually executed and delivered by the Seller and the Purchaser.
f. Time. Time is of the essence to the performance of any
provisions of this Agreement. If the date for performance of any provisions of
any provisions of the Agreement is a Saturday, Sunday, or banking holiday (in
the State of Nevada), the date for performance shall be extended until the next
day that is not a Saturday, Sunday or banking holiday.
g. Interpretation. Words of any gender used in this Agreement
shall be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa, unless the
context requires otherwise.
h. Waiver. Either the Purchaser or the Seller may specifically
waive any breach of the terms and conditions hereof by the other party, but no
waiver specified in this Section shall constitute a continuing waiver of
similar or other breaches of the terms and conditions hereof. No waiver shall
be effective unless executed in writing by the party against who the waiver is
asserted. All remedies, rights, undertaking, obligations, and agreements
contained herein shall be cumulative and not mutually exclusive.
i. Attorney's Fees. Should either the Purchaser, the Seller, or
the Broker employ and attorney or attorneys to enforce any of the terms and
conditions hereof, or to protect any right, title, or interest created or
evidenced hereby, the non-prevailing party in any action pursued in courts of
competent jurisdiction shall pay to the prevailing party all reasonable cost,
damages, and expenses, including attorneys' fees, expended or incurred by the
prevailing party.
j. Governing Law. This Agreement shall be governed by and construed
in accordance with the substantive and procedural laws of the State of Nevada.
The exclusive venue of any action or proceeding arising out of or in connection
with this Agreement shall be Clark County, Nevada.
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Each party hereby consents to the personal jurisdiction of any court
of competent subject matter jurisdiction sitting in Clark County, Nevada, and
to the service of process in accordance with the laws of the State of Nevada
and any rules applicable to any such court.
k. Headings. The headings herein are for reference purposes only
and shall not affect the meaning or interpretation of the terms and conditions
hereof.
l. Effective Date. The Effective Date of this Agreement shall be
the date that this Agreement is executed by both Purchaser and Seller.
m. Non-Exclusive Purchase Agreement. At all times after the
Effective Date hereof and until the expiration of the Feasibility Period, Seller
shall be entitled to market the Property for sale, both directly and through its
agents, and to accept "Back up" offers from other persons or entities for the
purchase of the Property; provided, however that nothing in this Section 14.m.
shall alter or amend the rights and obligations of Purchaser or Seller under
this Agreement.
n. Construction. Both parties hereto have participated in the
construction of this Agreement and any ambiguities shall not be interpreted
against either party as being the constructing party.
o. Expiration of Agreement. Unless mutually executed by both
parties on or before 5:00 p.m. February 11 2003, this Agreement shall expire and
be of no further force or effect and neither party hereto shall be under any
obligation to the other.
p. Counterparts. This Agreement may be executed in counterpart.
Each counterpart of this Agreement shall constitute an original, and all such
counterparts taken together shall constitute one and the same agreement.
Executed by Purchaser on the 4th day of February 2003.
PURCHASER: Conde Del Mar Properties, LLC and/or
nominee/Assignee
By: /s/ Steve Groat
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Steve Groat
It's: Managing Member
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Executed by Seller on the_____________ day of February 2003.
Seller: Ready Mix, Inc.
By: ____________________
It's: President
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This agreement and any attached addendum, rider, or exhibit have been prepared
for submission to your attorney for his/her approval. No representation or
recommendation is made by Colliers International or its agents or employees as
to the legal sufficiency, legal effect, or tax consequences of this agreement
or the transaction relating thereto.
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