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EXHIBIT 10.33
REAL ESTATE OPTION AGREEMENT
AND ESCROW INSTRUCTIONS
THIS REAL ESTATE OPTION AGREEMENT AND ESCROW INSTRUCTIONS (the
"Agreement") is made and entered into by and between MALL AT THE CROSSROADS,
INC., a Washington corporation (the "Optionor"), and JDA SOFTWARE GROUP, INC., a
Delaware corporation (the "Optionee").
RECITALS:
A. Optionor has entered into a Real Estate Purchase Agreement
and Escrow Instructions (the "Purchase Agreement") with Opus West Corporation
("Opus"), pursuant to which Optionor has agreed to sell to Opus approximately
ten acres of real property located on the west side of 87th Street south of
Raintree Drive, Scottsdale, Arizona, the general location and configuration of
which are shown on Exhibit "A" attached hereto (the "10-acre Parcel").
B. Optionee desires to acquire from Optionor the exclusive
option to purchase approximately five acres located north of the 10-acre Parcel,
and Optionor is willing to grant such option to Optionee on the terms and
conditions specified herein, provided that Opus consummates the purchase of the
10-acre Parcel.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants set forth in this Agreement, the parties hereby agree as
follows:
1. GRANT OF OPTION.
Optionor hereby grants to Optionee the exclusive option (the
"Option") to purchase all of Optionor's right, title, interest and privilege in
approximately five acres of real property located on the west side of 87th
Street south of Raintree Drive, Scottsdale, Arizona, together with all
rights-of-way, easements, licenses, and other rights and benefits appurtenant to
or used in connection with the beneficial use and enjoyment of such real
property (collectively, the "Option Parcel"). The general location and
configuration of the Option Parcel are shown on Exhibit "A" attached hereto. The
exact size and description of the Option Parcel shall be determined during the
Examination Period under the Purchase Agreement between Optionor and Opus for
the sale and purchase of the 10-Acre Parcel, provided that the Option Parcel
shall consist of approximately five (5) net acres, shall be approximately
rectangular in shape, and shall have a southern boundary that is entirely
contiguous to the northern boundary of the 10-acre Parcel. It is understood and
agreed that the total area of the 10-acre Parcel and the Option Parcel together
shall not exceed fifteen (15) net acres. Notwithstanding any other provision in
this Agreement, the Option is contingent upon Opus' purchase of
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the 10-acre Parcel from Optionor, and in the event the Purchase Agreement for
the 10-acre Parcel is terminated for any reason, this Agreement shall be null
and void and Optionee shall have no right to purchase the Option Parcel.
2. EXERCISE OF OPTION.
The Option must be exercised by written notice given to
Optionor in the manner provided in Section 16 below, which notice shall specify
a Closing Date not less than ninety (90) days from the date on which such notice
is given. Optionee shall have a period of forty-five (45) days from the date on
which such notice is given (the "Examination Period") during which to make such
examination and investigation of the Option Parcel as Optionee wishes to make.
At any time prior to the expiration of the Examination Period, if Optionee
determines, for any reason whatsoever, that it does not desire to complete the
purchase of the Option Parcel, Optionee may rescind its notice of intent to
exercise the Option by so notifying Seller and Escrow Agent in writing, in which
event this Agreement and the escrow provided for herein shall be terminated and
the Earnest Money Deposit and all earnings thereon shall be immediately returned
to Optionee. If Optionee fails to rescind its notice of intent to exercise the
Option prior to the expiration of the Examination Period, Optionee shall be
deemed to have approved the Option Parcel and to have waived all conditions
precedent to the Closing, except performance by Optionor. The Closing must occur
on or before August 24, 2001. Optionee may exercise the Option only if, at the
time Optionee gives notice of its intent to exercise the Option, Opus has
completed construction of an office building on the 10-acre Parcel and Optionee
has executed a lease with Opus pursuant to which Optionee will occupy at least
twenty-five percent (25%) of the building. From the date of this Agreement to
the expiration of the period during which the Option may be exercised or the
earlier termination of this Agreement, Optionee shall have a continuing right of
access and entry to the Option Parcel in order to make its investigations and
determinations as to the feasibility of the property and whether or not to elect
to exercise the Option. Optionee hereby indemnifies Optionor and the Option
Parcel and holds Optionor and the Option Parcel free and harmless from any and
all loss or liability resulting from the activities of Optionee, its agents and
employees upon the Option Parcel, and from any and all mechanics', materialmen's
and other liens resulting from such conduct of Optionee, its agents and
employees upon the Option Parcel. The foregoing indemnification shall survive
the termination of this Agreement.
3. ESCROW.
At such time as Optionee has given notice of its intent to
exercise the Option, the parties shall establish an escrow with Security Title
Agency (Jan Dooley, Escrow Officer), at its office located at 8787 East Pinnacle
Peak Road, Suite 120, Scottsdale, Arizona 85255 (the "Escrow Agent"). Upon
delivery to the Escrow
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Agent of this executed Agreement, Escrow Agent is instructed to open an escrow
and to deliver copies of the executed Agreement to Optionor and Optionee. This
Agreement, and the exhibits attached hereto, shall constitute escrow
instructions to Escrow Agent in connection with this transaction. Should the
Escrow Agent require, in addition to this Agreement, the execution of its
standard form printed Escrow Instructions, the Escrow Agent shall prepare such
Escrow Instructions in accordance with the directions contained herein and in a
form mutually acceptable to the parties and the parties hereto shall execute
such Escrow Instructions on receipt from the Escrow Agent. The Escrow
Instructions shall not supersede, modify or amend any of the terms of this
Agreement, and in the event of any conflict or ambiguity between any of the
terms of this Agreement and those of the Escrow Instructions, this Agreement
shall govern and control. The parties expressly agree that the "13-day
cancellation" clause or any clause providing for a period of time after breach
before the escrow can be cancelled shall be stricken from the printed form
Escrow Instructions and that upon a breach of this Agreement, the escrow may be
cancelled by the non-breaching party immediately upon giving notice to the other
party.
4. OPENING AND CLOSING DATES.
"Opening of Escrow" shall occur when Escrow Agent accepts this
Agreement as provided at the end of this Agreement. The closing of this
transaction (the "Closing" or the "Close of Escrow") shall take place at the
office of the Escrow Agent on or before August 24, 2001 or such earlier date as
specified in Optionee's notice of its intent to exercise the option (the
"Scheduled Closing Date").
5. PURCHASE PRICE.
The purchase price for the Option Parcel shall be Ten Dollars
($10.00) per net square foot if the Closing occurs on or before August 24, 2000,
and Ten and 50/100ths Dollars ($10.50) per net square foot if the Closing occurs
after August 24, 2000. For purposes of such computation, the "net square
footage" shall be the gross square footage within the boundaries of the Property
less the square footage located within dedicated public rights-of-way. The "net
square footage" shall be determined based on an ALTA survey of the Option Parcel
prepared by a registered engineer or licensed surveyor, certified to Optionee
and the Escrow Agent, and meeting the minimum ALTA requirements for issuance by
Escrow Agent of an extended coverage owner's policy of title insurance, which
shall be furnished by Optionor to Optionee within thirty (30) days after the
date of this Agreement. The purchase price shall be paid as follows:
(A) The sum of Twenty-Five Thousand Dollars
($25,000.00) (the "Earnest Money Deposit") shall be paid to the Escrow Agent, in
cash or certified funds, concurrently with the Opening of Escrow and shall be
disbursed to the Optionor upon the Close of Escrow. The Earnest Money Deposit
shall be fully
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refundable until expiration of the Examination Period, at which time, if
Optionee has not rescinded its notice of intent to exercise the Option, the
Earnest Money Deposit shall become non-refundable and forfeitable to Optionor
upon Optionee's failure to perform, subject only to performance by Optionor.
Immediately upon receipt of the Earnest Money Deposit, the Escrow Agent shall
deposit the funds in a short-term interest-bearing account at a financial
institution mutually acceptable to Optionee and Optionor. The interest earned on
such deposit shall accrue to the benefit of the Optionee, except in the event
Optionor becomes entitled to retain the Earnest Money Deposit, in which event
said interest shall accrue to the benefit of the Optionor.
(B) The balance of the purchase price, plus or minus
prorations as hereinafter provided, shall be paid into escrow to the Escrow
Agent, in cash or certified funds or by wire, on or before the Scheduled Closing
Date and shall be disbursed to Optionor upon the Close of Escrow.
6. TITLE.
(A) Within thirty (30) days after the date of this
Agreement, Optionor shall provide to Optionee a title commitment for an ALTA
extended owner's title insurance policy (the "Title Report"), together with
full, complete and legible copies of all instruments of record referred to
therein, as well as the ALTA survey referred to in Paragraph 5 above (the
"Survey"). Optionee may, at its option request such endorsements to the title
insurance policy as Optionee may wish to obtain; provided, however, that
Optionee shall pay all costs for such extended coverage and/or endorsements in
excess of the cost of a standard coverage policy. Optionee shall have until the
expiration of the Examination Period under the Purchase Agreement between
Optionor and Opus for the sale and purchase of the 10-acre Parcel to notify
Optionor in writing of any objections which Optionee has to the Title Report or
the Survey. If Optionee fails to give written notice of any objection to the
Title Report or the Survey during such Examination Period, Optionee shall be
deemed to have approved all matters shown on the Title Report and the Survey.
All matters shown on the Title Report and the Survey, except those to which
Optionee timely objects, are hereinafter referred to as "Permitted Title
Exceptions." Notwithstanding the foregoing, Optionor hereby discloses to
Optionee that the Option Parcel is now, and will be at the Closing, subject to
the exceptions to title set forth on Exhibit "B" attached hereto. Optionee
hereby agrees that the exceptions to title set forth on Exhibit "B" and any
cross access easements which have been agreed to by Optionor and Optionee shall
be "Permitted Title Exceptions," to which Optionee will not object. Within
thirty (30) days after Optionee has given notice of its intent to exercise the
Option, Optionor shall provide Optionee with an updated Title Report. At the
Closing, Optionor shall convey the Option Parcel to Optionee by a special
warranty deed, subject only to the Permitted Title Exceptions.
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(B) Optionor shall cause Escrow Agent to furnish and
deliver to Optionee, at the Close of Escrow, an ALTA extended owner's title
insurance policy or binding commitment to issue same issued as of the Close of
Escrow, insuring Optionee that Optionee has acquired good and marketable fee
simple title to the Option Parcel in the amount of the purchase price, subject
only to (i) the Permitted Title Exceptions, and (ii) the printed exceptions and
conditions customarily set forth in Escrow Agent's ALTA extended owner's title
insurance policy. Optionor shall pay for the cost of a standard owner's title
insurance policy, and Optionee shall pay for all costs in excess of such cost.
7. OPTIONOR'S REPRESENTATIONS AND WARRANTIES.
In addition to any other express agreements of Optionor
contained herein, the matters set forth in this Section 7 constitute
representations, warranties and covenants by Optionor which shall be true and
correct as of the date hereof and the date of Close of Escrow (regardless of any
investigations Optionee shall have made with respect thereto prior to the Close
of Escrow) and which shall survive the Close of Escrow. In the event that,
during the period between the date hereof and the Close of Escrow, Optionor
learns, or has reason to believe, that any of the following representations and
warranties may cease to be true, Optionor hereby covenants to give written
notice thereof to Optionee within three (3) days. Optionor hereby represents,
warrants and covenants (with the understanding that Optionee shall rely upon
said representations, warranties and covenants) as to each of the matters set
forth below:
(A) Optionor is owner of good marketable fee simple
title to the Option Parcel and has the legal right, power and authority to cause
this Agreement to be executed and to transfer and convey the Option Parcel to
Optionee pursuant hereto. The individual executing this Agreement on behalf of
Optionor is authorized to do so and, upon executing this Agreement, this
Agreement shall be binding and enforceable upon Optionor in accordance with its
terms.
(B) Optionor is not aware of any liens, encumbrances,
claims of liens or encumbrances, or any possible defects, or claims of defects
to the title to the Option Parcel which do not appear in the Title Report, and
Optionor shall protect Optionee against and remove as a lien or encumbrance any
such matter arising during the escrow period except those caused by Optionee.
(C) To the actual knowledge of Optionor and its
agents, there are no (i) claims, actions, suits, condemnation actions or other
proceedings pending or threatened by any entity, (ii) approvals, permits,
easements, rights-of-way, zoning changes, uses or rights that have been denied
or may be denied by any governmental department or agency, and (iii) violations
of any law, statute, government regulation or requirement that in any manner or
to any extent may materially affect the value of the Option Parcel
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or the likely eventual use of the Option Parcel or Optionee's right, title or
interest in and to the Option Parcel; except that Optionor has knowledge that
the Arizona Department of Transportation ("ADOT") is considering limiting access
to 87th Street from the Option Parcel and reconfiguring the intersection of 87th
Street and Raintree Drive, either of which actions, if undertaken by ADOT, may
affect the Option Parcel.
(D) To the actual knowledge of Optionor and its
agents, there has been no and there currently is no generation, location,
transportation, storage, treatment, discharge, disposal or release upon, in or
under the Option Parcel of any hazardous materials or any "pollutant" (as that
term is defined in A.R.S. Section 49-201(23)) subject to regulation under the
Resource Conservation and Recovery Act (as amended by the Hazardous and Solid
Waste Amendments of 1984), the Comprehensive Environmental Response,
Compensation and Liability Act (as amended by the Superfund Amendments and
Reauthorization Act of 1986), or any other applicable State or Federal
environmental protection law or regulation.
(E) Prior to the Close of Escrow, Optionor shall
maintain the Option Parcel in the same state of repair as of the date hereof.
(F) To the actual knowledge of Optionor and its
agents, there exist no adverse claims by any person or persons (including but
not limited to adjoining property owners) and no encroachments with respect to
the Option Parcel, and all fences and walls located on the Property are within
the Option Parcel boundaries.
(G) Optionor shall not withdraw or compromise any
petition or protest pertaining to taxes or other charges relating to the Option
Parcel from the date hereof until Close of Escrow, without the prior written
consent of Optionee.
(H) Optionor has received no notice that the Option
Parcel is in violation of any applicable license, permit, law or regulation
(including, but not limited to, zoning regulations and building and fire codes).
(I) To the actual knowledge of Optionor and its
agents, there are no assessments payable in installments which have resulted in
or may result in a lien being placed on the Option Parcel. Further, to the
actual knowledge of Optionor, there are no proposed plans for assessments by any
government, municipality, or subdivision thereof, including without limitation,
improvement districts.
(J) To the actual knowledge of Optionor and its
agents, all information provided by Optionor to Optionee contains no material
omission, misstatement or error.
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8. DISCLAIMER.
(A) Except as herein specifically set forth, Optionor
makes no representations or warranties, express or implied, with respect to, and
shall have no liability for: (1) the condition of the Option Parcel or the
suitability of the Option Parcel for Optionee's intended use or for any use
whatsoever; (2) any applicable building or zoning laws or regulations or with
respect to compliance therewith or with respect to the existence of or
compliance with any required permits, if any, of any governmental agency; (3)
the availability of water, sewer or other utilities; (4) water, sewer or other
utility districts; (5) access to any public or private sanitary sewer system; or
(6) the presence of any hazardous substances on or under the Option Parcel.
Without limiting the generality of the foregoing, Optionor shall have no
liability to Optionee with respect to the condition of the Option Parcel under
common law, or any federal, state, or local law or regulation, including but not
limited to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 as amended, 42 U.S.C.A. Section 9601 et seq., or any similar state
statutes in Arizona, including but not limited to the Arizona State Superfund
Act, as codified in A.R.S. Sections 49-281 through 287, and Optionee hereby
waives any and all claims which the Optionee has or may have against the
Optionor with respect to the condition of the Option Parcel, including any
private causes of action arising under the foregoing statutes concerning the
Option Parcel and any conditions in the Option Parcel.
(B) Optionee's giving of notice of its intent to
exercise the Option shall act as an acknowledgment by Optionee that: (i)
Optionee has had the opportunity to review the Option Parcel to determine if the
Option Parcel is in violation of any federal, state or local environmental law,
rule or regulation or otherwise contains levels or concentrations of "hazardous
substances," "hazardous materials," "toxic substances" or "hazardous waste," as
such terms are defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended 42 U.S.C. Section 9601 et seq., the
Hazardous Materials Transportation Act 49 U.S.C. Section 1801 et seq., the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.,
or the Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et seq.,
or analogous provisions of state law; (ii) Optionee is purchasing the Option
Parcel"as is" in its present condition, subject only to the representations and
warranties contained in this Agreement, in the special warranty deed and in the
affidavit of non-foreign status; and (iii) Optionee has fully inspected the
Option Parcel and assumes the responsibility and risks of all defects and
conditions, including such defects and conditions, if any, that cannot be
observed by casual inspection.
(C) By closing the transaction hereunder, Optionee
agrees that (i) Optionee shall be deemed to have accepted all risks associated
with adverse physical characteristics and existing environmental conditions that
may or may not have been revealed by
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the Optionee's investigation of the Option Parcel,(ii) as between the Optionee
and the Optionor, Optionee shall be deemed to have accepted all costs and
liability associated in any way with the physical and environmental condition of
the Option Parcel (expressly excluding liability for injuries to property or
persons arising from accidents or intentional conduct not caused by Optionee),
and (iii) the Optionee hereby waives any and all objections, setoffs, claims, or
causes of action (whether under a statute or common law) concerning the physical
characteristics and existing conditions of the Option Parcel, including, without
limitation, any environmental hazards.
(D) Notwithstanding the foregoing disclaimers,
waivers and releases, nothing in this Section 8 shall be deemed to relieve
Optionor of any liability to Optionee for release of hazardous materials or
other environmental contamination on the Option Parcel caused by Optionor or
Optionor's officers, directors, shareholders, employees, agents, contractors, or
invitees; nor shall this Section 8 be deemed to release Optionor from liability
for breach of any express representations or warranties contained in this
Agreement, the special warranty deed or the affidavit of non-foreign status.
9. POSSESSION.
Possession of the Option Parcel and risk of loss will be
delivered to the Optionee at the Close of Escrow.
10. CONDEMNATION.
If any condemnation or eminent domain proceedings are
commenced by any competent public authority with respect to the Option Parcel,
or any part thereof, prior to the Closing, Optionor shall promptly give Optionee
written notice thereof, and Optionee shall have the option, to be exercised
within fifteen (15) days of such notice, to (i) close the purchase of the Option
Parcel on the Scheduled Closing Date subject to such proceedings, whereupon any
award paid or to be paid in connection therewith shall be paid to or assigned to
Optionee by Optionor at the Closing, or (ii) terminate this Agreement, whereupon
the rights and obligations of the parties to this Agreement shall cease and
terminate.
11. CLOSING PRORATIONS AND COSTS.
All real property taxes and assessments shall be prorated as
of the Closing Date on the latest information available to the Escrow Agent.
Escrow fees shall be borne one-half by each party, and, unless provided
elsewhere in this Agreement to the contrary, all other closing costs shall be
charged and allocated to the parties in the manner customary for commercial real
estate transactions in Maricopa County, Arizona. If any tax or assessments
affects the Option Parcel and any additional land not a part of the Option
Parcel, only that portion of the tax or assessment attributable to the Option
Parcel shall be prorated between
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Optionee and Optionor, and the remainder of said tax or assessment shall remain
the sole obligation of the Optionor. The determination of the portion of the tax
or assessment attributable to the Option Parcel shall take into account the
value of improvements (if any) made to the Option Parcel and/or any other
property covered by the tax bill to properly account for differences in the
valuation of, and resulting tax or assessment levied against, the entire
property covered by the bill
12. DESIGN APPROVAL.
Neither Optionee nor any party who subsequently acquires the
Option Parcel may construct any improvements on the Option Parcel without first
obtaining Optionor's approval of the design of said improvements, which approval
not be unreasonably withheld, conditioned or delayed by Optionor. Optionor
agrees that the design of improvements that are substantially the same as set
forth in Opus' Application No. 70-DR-98 submitted to the Scottsdale Development
Review Board will be approved. At the Closing, Optionor and Optionee shall
execute and record a memorandum memorializing Optionor's design approval rights.
The memorandum shall be prepared by Optionor and submitted to Optionee for its
approval prior to the expiration of the Examination Period under the Purchase
Agreement between Optionor and Opus for the sale and purchase of the 10-acre
Parcel. The memorandum shall automatically expire at such time as Optionee
commences development of the Option Parcel consistent with Optionor's approval.
13. EASEMENTS.
The parties agree to cooperate with one another in granting
ingress and egress and utility easements. If either party determines that it
will need an easement for such purposes over the other's property, the parties
shall mutually agree, prior to the expiration of the Examination Period under
the Purchase Agreement between Optionor and Opus for the sale and purchase of
the 10-acre Parcel, upon the location of said easement and the form and content
of an easement agreement to be executed and recorded at the closing.
14. BROKERS' COMMISSIONS.
(A) The parties acknowledge that, in the event the
transaction contemplated hereunder is consummated, a real estate commission in
an amount equal to three percent (3%) of the purchase price is payable to Lee &
Associates (acting through its agents Craig Coppola and Bill Blake) (the
"Broker"). Said commission shall be the sole responsibility of the Optionor and
shall be paid in cash at the Closing. Optionor's obligation to pay any
commission to the Broker is specifically conditioned upon the Close of Escrow
and, in the event that escrow fails to close, Optionor shall have no obligation
whatever to pay any commission to Broker in connection with this transaction. It
is expressly understood and agreed that the Broker shall have no claim or lien
against any funds
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received by Optionor as liquidated damages hereunder and that the Broker's
consent is not required for the termination or cancellation of the escrow.
(B) Optionee and Optionor warrant, each to the other,
that except as provided in the preceding subparagraph, there are no fees or
commissions owing to any broker or other party for bringing about the sale
contemplated hereunder. If any other person shall assert a claim to a fee,
commission or other compensation on account of alleged employment as a broker or
finder or for performance of services as a broker or finder in connection with
this transaction, the party hereto under whom the broker or finder is claiming
shall indemnify and hold harmless the other party against and from any such
claim and all costs, expenses and liabilities incurred in connection with such
claim or any action or proceeding brought thereon (including, but without
limitation, counsel and witness fees and court costs in defending against such
claim).
15. REMEDIES.
(A) Optionor's Remedies. In the event of a breach of
this Agreement by Optionee, Optionor shall, as its sole remedy, terminate this
Agreement, which termination shall be effective immediately upon notice to
Optionee and Escrow Agent, and retain the Earnest Money Deposit as liquidated
damages, and neither party shall have further obligation or liability to the
other in connection with the escrow or under this Agreement. It is understood
that the Earnest Money Deposit represents a reasonable and good faith estimate
of Optionor's damages in the event of a default by Optionee. Notwithstanding the
foregoing, if Optionee's default consists of a breach of any of its obligations
or indemnities which expressly survive the termination of this Agreement,
Optionor shall be entitled to pursue any remedies available at law or in equity
with respect thereto, including, but not limited to, suit for damages,
reasonable attorneys' fees and court costs.
(B) Optionee's Remedies. In the event of a breach of
this Agreement by Optionor, Optionee may exercise any remedies provided by law
or equity and those, if any, set forth in this Agreement, including without
limitation the right to specific performance and damages.
16. NOTICES.
All notices, requests and other communications hereunder shall
be given in writing and either (i) personally served on the party to whom it is
given, or (ii) mailed by registered or certified mail, postage prepaid, return
receipt requested, or (iii) sent by private overnight courier such as Federal
Express or Airborne, or (iv) sent by facsimile to the number set forth below, as
long as such facsimile transmission is confirmed as received by the transmission
equipment, and is followed the next business day
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by another permissible means of notice hereunder, addressed as follows:
If to Optionor:
Mall at the Crossroads, Inc.
c/o Northsight Corporation
Attn: Tom Treaccar
14100 N. Northsight Blvd.
Scottsdale, Arizona 85260
Fax No. (602) 991-2735
With a copy to:
Wayne A. Smith
Robbins & Green, P.A.
1800 Norwest Tower
3300 North Central Avenue
Phoenix, Arizona 85012
Fax No. (602) 266-5369
If to Optionee:
JDA Software Group, Inc.
Attn: Paul Mehlhorn
11811 N. Tatum Blvd., Suite 2000
Phoenix, AZ 85028
Fax No. (602) 485-3158
With a copy to:
JDA Software Group, Inc.
Attn: Karen L. Nagle
11811 N. Tatum Blvd., Suite 2000
Phoenix, AZ 85028
Fax No. (602) 285-3158
And a copy to:
Steven M. Goldstein
Sacks Tierney, P.A.
2929 N. Central Ave., 14th Floor
Phoenix, AZ 85012
Fax No. (602) 279-2027
If to Escrow Agent:
Security Title Agency
Attn: Jan Dooley
8787 East Pinnacle Peak Road
Suite 120
Scottsdale, Arizona 85255
Fax No. (602) 563-5305
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All notices shall be deemed given when delivered or, if mailed as provided
above, on the second day after the day of mailing, and if sent by overnight
courier, on the next day after the date of deposit with the courier, and if sent
by facsimile, upon machine confirmation of receipt. Any party may change his
address for the receipt of notices at any time by giving written notice thereof
to the other parties in accordance with the terms of this section. The inability
to deliver notice because of a changed address of which no notice was given, or
rejection or other refusal to accept any notice, shall be deemed to be the
effective receipt of the notice as of the date of such inability to deliver or
rejection or refusal to accept.
17. AFFIDAVIT OF NON-FOREIGN STATUS; IRS FORM 1099B.
Optionor shall deliver or cause to be delivered to Escrow
Agent at the Close of Escrow an affidavit executed by Optionor under penalty of
perjury setting forth Optionor's taxpayer identification number and stating that
Optionor is not a foreign person, in accordance with Internal Revenue Code
Section 1445(b)(2). Optionor shall also execute and deliver to Escrow Agent at
the Close of Escrow a copy of IRS Form 1099B for filing by Escrow Agent with the
Internal Revenue Service (the "IRS"). Escrow Agent, as the party responsible for
closing the transaction contemplated hereby within the meaning of Section
6045(e)(2)(A) of the Internal Revenue Code of 1986, as amended (the "Code"), is
instructed to file all necessary information reports, returns and statements
(collectively the "reports") regarding the transaction required by the Code,
including, but not limited to, the reports required pursuant to Section 6045 of
the Code.
18. CLOSING PROTECTION LETTER.
If Escrow Agent acts as an agent for an underwriter and does
not issue policies of title insurance, Escrow Agent agrees that, as a condition
to acting as the escrow agent for this transaction, it shall cause its
underwriter (the "title insurer") to issue to Optionor and Optionee, within
twenty (20) days after the Opening of Escrow, an escrow and closing protection
letter, insured escrow and closing service, or statement of service
responsibility in written form satisfactory to both Optionor and Optionee.
19. MISCELLANEOUS.
(A) This Agreement and the exhibits attached hereto
embody the entire agreement between the parties in connection with this
transaction, and there are no oral agreements existing between the parties
relating to this transaction that are not expressly set forth herein and covered
hereby; this Agreement may not be modified except in a writing signed by all
parties.
(B) Time is of the essence of this Agreement.
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(C) In the event of any litigation arising out 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 his rights hereunder, including,
without limitation, court costs and reasonable counsel fees.
(D) The captions and section numbers appearing in
this Agreement are inserted only as a matter of convenience, and do not define,
limit, construe or describe the scope or intent of such sections or articles of
this Agreement nor in any way affect this Agreement.
(E) This Agreement may be executed in multiple
counterparts, each of which shall, for all purposes, be deemed an original and
all of which, taken together, shall constitute one and the same agreement. The
partially executed signature page of any counterpart of this Agreement may be
attached to any other partially executed counterpart of this Agreement without
impairing the legal effect of the signature(s) on such signature page.
(F) This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors in interest
and permitted assigns. Optionee may assign its rights hereunder to a contractor
or developer of its choice by giving written notice of the assignee's name and
address to Optionee to Optionor and Escrow Agent prior to the Close of Escrow;
provided that said assignee executes an instrument acknowledging and agreeing to
be bound by all of the terms and conditions of this Agreement.
(G) The Superior Court of the State of Arizona shall
have exclusive jurisdiction over any dispute arising out of this Agreement, and
both parties consent to the exercise of personal jurisdiction by that forum.
(H) After it has given notice of its intent to
exercise the option, Optionee may, at its expense, place a sign on the Option
Parcel advertising its intention to develop the Option Parcel, provided that
such sign complies with all applicable laws and ordinances and further provided
that Optionee shall indemnify and hold Optionor harmless from all costs and
liability arising by reason of such sign. Upon termination of this Agreement for
any reason, Optionee shall promptly remove the sign at its expense.
(I) At the Closing on the 10-acre Parcel, Optionor
and Optionee shall execute and record a Memorandum of Option, in the form
attached hereto as Exhibit "C", which shall describe the Option Parcel and
disclose Optionee's option to purchase the Option Parcel. Also, at the Closing
on the 10-acre Parcel, Optionor shall cause Escrow Agent to furnish and deliver
to Optionee an optionee's title insurance policy in the amount of the purchase
price for the Option Parcel, subject only to the Permitted Title Exceptions and
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the printed exceptions and conditions customarily set forth in Escrow Agent's
form of such policy.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the last date set forth below their respective signatures.
OPTIONOR: OPTIONEE:
MALL AT THE CROSSROADS, INC., JDA SOFTWARE GROUP, INC.,
a Washington corporation a Delaware corporation
By /s/ May M. Welk By /s/ Kristen L. Magnuson
---------------------------- -----------------------------
Its: Vice President Its: CFO/SR VP
----------------------- ---------------------------
Date: 5/27/98 Date: 5/18/98
------------------------- --------------------------
AGREEMENT AND CONSENT BY ESCROW AGENT AND TITLE INSURER
The undersigned, Security Title Agency, hereby agrees to (i) accept
the foregoing Real Estate Purchase Agreement and Escrow Instructions as
instructions to the undersigned, (ii) act as Escrow Agent and Title Insurer
under said Agreement in consideration of its fees normally charged in such
transactions, and (iii) be bound by said Agreement in the performance of its
obligations as the Escrow Agent and Title Insurer.
Dated this 8 day of June, 1998.
SECURITY TITLE AGENCY
By: /s/ Jan Dooley
Its: Branch Mgr.
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15
EXHIBIT "A"
[MAP DEPICTING OPTION PARCEL]
[Phase Two Site Plan]
16
EXHIBIT "B"
PERMITTED TITLE EXCEPTIONS
1. Water rights, claims or title to water, whether or not shown by the
public records.
2. Current taxes, a lien, but not yet due and payable.
3. Reservations or exceptions in patents or in Acts authorizing the
issuance thereof.
4. Easements and Restrictions shown on Map of Dedication NORTHSIGHT
recorded in Book 302 of Maps, page 11.
17
EXHIBIT "C"
PLEASE RETURN RECORDED
INSTRUMENT TO:
MEMORANDUM OF OPTION AGREEMENT
NOTICE IS HEREBY GIVEN that MALL AT THE CROSSROADS, INC., a
Washington corporation, whose address is c/o Northsight Corporation, 14100 N.
Northsight Blvd., Scottsdale, Arizona 85260 ("Optionor"), and JDA SOFTWARE
GROUP, INC., a Delaware corporation, whose address is
_________________________________________________ ____________________
("Optionee"), have entered into that certain Real Estate Option Agreement and
Escrow Instructions dated ____________, 1998, pursuant to which Optionor has
granted to Optionee the exclusive option to purchase that certain real property
described on Exhibit "A" attached hereto. The option is for a term commencing on
____________, 1998, and expiring on August 24, 2001, and is subject to the terms
and conditions specified in said Real Estate Option Agreement and Escrow
Instructions, copies of which are in the possession of Optionor and Optionee.
DATED this _____ day of _______________, 1998.
OPTIONOR: OPTIONEE:
MALL AT THE CROSSROADS, INC., JDA SOFTWARE GROUP, INC.,
a Washington corporation a Delaware corporation
By /s/ Mary M. Welk By /s/ Kristen L. Magnuson
Name: Mary M. Welk Name: Kirsten L. Magnuson
Title: Vice President Title: SR VP/CFO
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STATE OF Washington)
) ss.
County of Snohomish)
On this 27th day of May, 1998, before me, the undersigned
Notary Public, personally appeared Mary M. Welk, known to me (or satisfactorily
proven) to be the person whose name is above subscribed, who acknowledged to me
that (s)he is the Vice President of Mall at the Crossroads, Inc., a Washington
corporation, and that (s)he executed the foregoing instrument in such capacity
on behalf of said corporation, being so authorized to do.
/s/ Stacey Jessup
------------------------------
Notary Public
[Notary Seal]
My Commission Expires:
01/09/01
- ----------------------
STATE OF Arizona)
) ss.
County of Maricopa)
On this 19th day of May, 1998, before me, the undersigned
Notary Public, personally appeared Kristen L. Mangnuson, known to me (or
satisfactorily proven) to be the person whose name is above subscribed, who
acknowledged to me that (s)he is the SR. VP/CFO of JDA Software Group, Inc., a
Delaware corporation, and that (s)he executed the foregoing instrument in such
capacity on behalf of said corporation, being so authorized to do.
/s/ Connie K. Brinks
------------------------------
Notary Public
[Notary Seal]
My Commission Expires:
August 21, 2000
- ----------------------
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EXHIBIT "A"
TO
MEMORANDUM OF OPTION AGREEMENT
LEGAL DESCRIPTION
[To Be Attached]