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A-2008-051
PURCHASE AND SALE AGREEMENT AND BILATERAL ESCROW INSTRUCTIONS
FOR ACQUISITION OF REAL PROPERTY
(Commercial)
THIS AGREEMENT (hereinafter "PSA"), is entered into on U)JJ~~ J , 20~,
between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized
under the Constitution and laws of the State of California (hereinafter "City" or "Buyer"), and
Keng Tong Taing and Sing Lor Taing, Trustees of the Taing Family Trust, dated May 21,2001
(hereinafter "Sellers"), regardless of number or gender;
Therefore, in consideration of the promises, covenants and agreements hereinafter set forth, and
subject to the terms, conditions and provisions hereinafter set forth, Sellers agrees to sell to City,
and City agrees to purchase from Sellers, all, or a portion thereof, of that certain real property
(hereinafter referred to as "Said Real Property") located in the State of California, County of
Orange, City of Santa Ana described as follows:
SEE EXHIBIT "A" ATTACHED HERETO
AND BY THIS REFERENCE MADE A PART HEREOF
(Commonly known as 1019 South Bristol Street, Santa Ana, California)
Said purchase and sale of Said Real Property shall be in accordance with and subject to all of the
following terms, conditions, promises, covenants, agreements and provisions, to wit:
1. Convevance bv Sellers. Sellers agree to convey Said Real Property, to City, by Grant
Deed, at the office of LandAmerica Commercial Services, located at 1920 Main Street, 1 ih
Floor, Irvine, California, within one hundred twenty (120) days from and after the date on which
the City has approved this PSA.
2. Title to be Conveyed. Sellers agree that, except as may hereinafter be otherwise
expressly provided, Said Real Property shall be conveyed by Sellers to City, as aforesaid, free
and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments,
profits, limitations, encumbrances (whether monetary or non-monetary, general or specific,
including any and all leasehold interests), liens, clouds or defects in title, except those exceptions
shown in Paragraph 15 below. Sellers hereby warrant that the title to Said Real Property to be
conveyed by Sellers to City shall be free and clear as provided above. Sellers further agree that
acceptance by City of any deed to Said Real Property, with or without knowledge of any
condition, restriction, reservation, exception, easement, assessment, profit, limitation,
encumbrance (whether monetary or non-monetary, general or specific, and including any and all
leasehold interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right
to the full, clear, and marketable title hereinabove agreed to be conveyed by Sellers to City, nor
of any right which might accrue to City because of the failure of Sellers to convey title as
hereinabove provided.
3. Title Insurance. Sellers agree to deliver to City, concurrently with the conveyance of
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Said Real Property to City, within the time and at the place hereinabove specified for the
conveyance of Said Real Property, a policy of title insurance to be issued by the above mentioned
title company, with the City therein named as the insured, in the amount EIGHT HUNDRED
SIXTEEN THOUSAND SEVEN HUNDRED NINETY FIVE AND Noll 00 DOLLARS
($816,795.00) insuring that title to Said Real Property is free and clear of any and all conditions,
restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances
(whether monetary or non-monetary, general or specific, and including any and all leasehold
interests), liens, clouds or defects in title, excepting such specific ones as city may hereinafter
expressly agree to take subject to. Acceptance by City of any such policy of insurance, whether
such insurance complies with the requirements of this paragraph or not, shall not constitute a
waiver by City of its right to such insurance as is herein required of Sellers, nor a waiver by the
City of any rights of action for damages or any other rights which may accrue to City by reason
of the failure of Sellers to convey title or to provide title insurance as required in this PSA.
4. Escrow. City agrees to open an escrow at the office of LandAmerica Commercial
Services, located at 1920 Main Street, lih Floor, Irvine, California, ("Escrow Agent") within
five (5) days from and after the date on which the City has approved this PSA. This PSA
constitutes the joint escrow instructions of the City and the Sellers and a duplicate original of this
PSA shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow is to close
within 120 days of the City's execution of this PSA, but in any event, not later than January 30,
2008.
The Escrow Agent hereby is empowered to act in accordance with the terms, conditions and
provisions of this PSA, and shall carry out its duties as Escrow Agent hereunder upon indicating
its written acceptance of this Section 4, and of the General Provisions described in Exhibit "B"
attached hereto and incorporated herein by this reference, delivered to the City and to the Sellers
within five (5) days after delivery of this PSA.
City agrees to bear, and Escrow Agent is hereby authorized to charge to the City, the cost of any
transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation
fees, escrow fees and any other closing costs incidental to the conveying of Said Real Property to
City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or
mortgage shall be waived pursuant to the California Code of Civil Procedure 91265.240.
The liability to the Escrow Agent under this PSA is limited to performance of the obligations
imposed upon it under Section 4, Section 6, Section 11 and Exhibit "B" of the General
Provisions of this PSA.
5. Property Taxes. Real property taxes, if any, on Said Real Property for the fiscal year in
which Said Real Property is conveyed to City, as are unpaid at the time of said conveyance, shall
be cleared and/or paid in accordance with the provisions of Section 4986 of the Revenue and
Taxation Code of the State of California. Sellers shall be eligible for a refund under Section
5096.7 of the Revenue and Taxation Code of the State of California for that portion of property
taxes on Said Real Property for said fiscal year which have been paid prior to the date the deed
conveying Said Real Property to City is recorded which is allocable to that portion of the fiscal
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year which begins on the date the deed conveying Said Real Property to City is recorded and
made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the
State of California. All unpaid taxes on Said Real Property for any and all years prior to the
fiscal year within which said conveyance is made shall be paid by Sellers before conveyance of
Said Real Property to City.
6. Payment of Purchase Price. City agrees to pay to Sellers, and Sellers agree to accept
from City, as and for the full purchase price for Said Real Property, including severance damages
(if any) to which Sellers may be entitled, the total sum of EIGHT HUNDRED SIXTEEN
THOUSAND SEVEN HUNDRED NINETY FIVE AND NOIlOO DOLLARS ($816,795.00).
City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30)
days from and after the date on which the City has approved this PSA, and the Escrow Agent is
hereby authorized to pay the same to Sellers upon and after:
(a) Conveyance of Said Real Property by Sellers to City as hereinabove provided;
(b) Acceptance by City of a Grant Deed conveying Said Real Property to City;
(c) Delivery to City of the policy of title insurance as hereinabove provided;
(d) Recordation of the Deed conveying Said Real Property to City.
Sellers acknowledge and hereby agree that execution of this PSA shall constitute an assignment
to Keng Tong Taing and Sing Lor Taing, individuals, and Star Bagel, Inc., a California
corporation, dba Star Wok Express ("Tenants") of any and all right, title and/or interest they may
now have, or in the future be entitled to, individually or collectively, as compensation for
furniture, fixtures and equipment, bonus value (if any), improvements pertaining to the realty,
and/or bonus value or business goodwill (if any) pertaining to the purchase of Said Real Property by
City.
7. Possession. Sellers agree to deliver to City, on the date the Deed conveying Said Real
Property to City is recorded, quiet and peaceful possession of Said Real Property, in accordance
with the terms and conditions of the ASA executed by the Parties, attached hereto as Exhibit
"C" .
8. Rental and Occupancy by Sellers. Sellers agree to execute a complete, current and
correct statement of rentals (Sellers Estoppel) on a form furnished to Sellers by Buyer and to
deliver same to Buyer within fifteen (15) days thereof with copies of any written leases or rental
agreements attached. All rents will be prorated as of the close of escrow on the basis of a 30-day
month / 360-day year consistent with that statement, subject to approval of Buyer. Sellers hereby
agree not to rent any units on the premises which are now vacant, or which may be vacated by the
present occupants prior to close of escrow. Sellers agree that any and all tenant security deposits
pertaining to the subject property collected by or that are in the possession of Sellers prior to the
close of escrow shall be transferred to and become the property of Buyer during escrow.
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Sellers hereby warrant that the rental statement referred to shall include the terms of all rental
agreements, tenancies, and leases (oral or written, recorded, or unrecorded) and Sellers agree to
hold Buyer harmless from all liability from any such leases or agreements. Sellers also warrant
that there are no oral or written leases on all or any portion of Said Real Property exceeding a
period of one month.
9. Waivers. The waiver by City of any breach of any covenant or agreement herein
contained on the part of Sellers shall not be deemed or held to be a waiver of any subsequent or
other breach of said covenant or agreement nor a waiver of any breach of any other covenants or
agreements contained herein.
10. Heirs. Assh!:Ds. and Successors-in-Interest. This PSA, and all the terms, covenants and
conditions contained herein, shall apply to and bind the heirs, executors, administrators,
successors and assigns of the respective parties hereto.
11. Time is of the Essence. In all matters and things hereunder to be done and in all
payments hereunder to be made, time is and shall be of the essence.
12. Permission to Enter on Premises. Sellers hereby grant City, and its authorized agents,
permission to enter upon Said Real Property at all reasonable times prior to close of escrow for
the purpose of making necessary inspections.
13. Just Compensation. Sellers acknowledge and agree that said purchase price is just
compensation at fair market value for that portion of Said Real Property being purchased,
including severance damages (if any) to which Sellers may be entitled. Sellers acknowledge and
hereby agree that execution of this PSA shall constitute an assignment to Keng Tong Taing and
Sing Lor Taing, individuals, and Star Bagel, Inc., a California corporation, dba Star Wok Express
("Tenants") of any and all right, title and/or interest they may now have, or in the future be
entitled to, individually or collectively, as compensation for furniture, fixtures and equipment,
bonus value (if any), improvements pertaining to the realty, and/or business goodwill (if any)
pertaining to the purchase of Said Real Property by City.
14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36,
P.O. Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The
mailing address of the Sellers is:
Keng Tong Taing
1019 South Bristol Street
Santa Ana, California 92703
15. Exceptions. City agrees to accept title to Said Real Property subject to the following:
NONE.
16. Entire A2reement. It is mutually agreed that the Parties hereto have set forth herein the
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whole of their Agreement Performance of this PSA by City shall lay at rest, each, every, and all
issue(s) that were raised or could have been raised in connection with the acquisition of Said
Real Property by City. It is the intent of the Parties hereto that the Acquisition Settlement
Agreement ("ASA"), attached hereto as Exhibit "C", shall constitute a separate agreement
between the Parties.
17. Hazardous Waste. Neither Sellers nor, to the best of Sellers's knowledge, any previous
owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or
disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials")
on, under, in, or about the Property, or transported any Hazardous Materials to or from the
Property. Sellers shall not cause or permit the presence, use, generation, release, discharge,
storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of
any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean
any substance, material, or waste which is or becomes regulated by any local governmental
authority, the State of California, or the United States Government, including, but not limited to,
any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous
waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed
pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5
(Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of
the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley- Tanner
Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous
substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv)
defined as a "hazardous substance" under Section 25281 of the California Health and Safety
Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum,
(vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as
"hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances"
pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous
waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C.
S6901 et seq. (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section
101 of the Comprehensive Environmental Response, Compensation, as amended by Liability
Act, 42. U.S.C. S9601 et seq. (42 U.S.C. S9601).
18. Compliance with Environmental Laws. To the best of Sellers's knowledge the
Property complies with all applicable laws and governmental regulations including, without
limitation, all applicable federal, state, and local laws pertaining to air and water quality,
hazardous waste, waste disposal, and other environmental matters, including, but not limited to,
the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource
Conservation Recovery and Comprehensive Environmental Response Compensation and
Liability Acts, and the California Environment Quality Act, and the rules, regulations, and
ordinances of the city within which the subject property is located, the California Department of
Health Services, the Regional Water Quality Control Board, the State Water Resources Control
Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies
and bureaus.
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19. Indemnity. Sellers agree to indemnify, defend and hold the City harmless from and
against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty,
punitive damage, or expense (including, without limitation, attorneys' fees), resulting from,
arising out of, or based upon (i) the presence, release, use, generation, discharge, storage, or
disposal of any Hazardous Material on, under, in or about, or the transportation of any such
materials to or from, the Property, or (ii) the violation, or alleged violation, of any statute,
ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation,
release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or
about, to or from, the Property. This indemnity shall include, without limitation, any damage,
liability, fine, penalty, punitive damage, cost, or expense arising from or out of any claim, action,
suit or proceeding for personal injury (including sickness, disease, or death, tangible or intangible
property damage, compensation for lost wages, business income, profits or other economic loss,
damage to the natural resource or the environment, nuisance, pollution, contamination, leak,
spill, release, or other adverse effect on the environment). This indemnity extends only to
Sellers's liability created prior to or up to the date this escrow shall close. Sellers shall not be
responsible for acts or omissions to act after the close ofthis escrow.
20. Contineencv. It is understood and agreed between the Parties hereto that the opening of
escrow and the completion of this transaction is contingent upon the specific acceptance and
approval of this PSA by City. The execution by City of this PSA, and the delivery of same to
Escrow Agent, shall constitute said acceptance and approval.
21. Modification and Amendment. This PSA may not be modified or amended except in a
writing signed by the Sellers and City.
22. Partial Invalidity. Any provision of this PSA that is unenforceable or invalid or the
conclusion of which would adversely affect the validity, legality, or enforcement of this PSA
shall have no effect, but all the remaining provisions of this PSA shall remain in full force.
23. Captions. Captions and headings in this PSA, including the title of this PSA, are for
convenience only and are not to be considered in construing this PSA.
24. Governine Law. This PSA shall be governed by and construed in accordance with the
laws of the State of California.
25. No Reliance bv One Party on The Other. Each party has received independent legal
advice from its attorney(s) with respect to the advisability of executing this PSA and the meaning of
the provisions hereof. The provisions of this PSA shall be construed as to their fair meaning, and
not for or against any party based upon any attribution to such party as the source of the language in
question.
26. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the
other, execute and deliver such further documents (in form and substance reasonably acceptable to
the party to be charged) and do such other acts and things as are reasonably necessary and
appropriate to effectuate the terms and conditions of this PSA, without cost.
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27. Applicability of Aereement To Assienees. This PSA shall be binding upon and shall
inure to the benefit of the successors and assigns of the Parties to this PSA.
28. Authority to Execute Aereement. Each undersigned represents and warrants that its
signature herein below has the power, authority and right to bind their respective Parties to each of
the terms of this PSA, and shall indemnify City fully, including reasonable costs and attorney's
fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held
by the signatory or is withdrawn.
29. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be
incorporated as if fully set forth in the body of this PSA.
The Parties have executed this PSA as of the date written below.
SELLERS:
CITY / BUYER:
CITY 9F ANT lANA
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David N. Ream
City Manager
,2007
Date: I - .2.3 , 2001
Si or Ti" g, stee of the Taing Family
Trust, dated May 21, 2001
ATTEST:. . ~
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Patricia E. Healy
Clerk of the Council
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3 -00, 200;7
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
Date: ~\)dV. / b 2007
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EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A
THAT PORTION OF THE SOUTH HALF OF LOT 12 OF THE NININGER TRACT,
IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA,
PER MAP FILED IN BOOK 8, PAGE 33 OF MISCELLANEOUS MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS SAID SOUTH
HALF IS DESCRIBED IN A GRANT DEED RECORDED ON NOVEMBER 13, 2002
AS INSTRUMENT NO. 2002001009572, OFFICIAL RECORDS OF SAID COUNTY
RECORDER, LYING WESTERLY OF THE FOLLOWING DESCRIBED LINE:
COMMENCING AT THE POINT OF INTERSECTION OF A LINE PARALLEL
WITH AND 95.00 FEET EASTERLY OF THE CENTERLINE OF BRISTOL STREET,
WITH A LINE PARALLEL WITH AND 55.00 NORTHERLY OF THE CENTERLINE
OF MCFADDEN AVENUE (FORMERLY FAIRVIEW AVENUE), AS SAID
STREETS ARE SHOWN ON SAID NININGER TRACT;
THENCE, SOUTHWESTERLY ALONG THE BISECTOR OF SAID CENTERLINES,
S45040'16"W, 20.00 FEET;
THENCE, SOUTHEASTERLY AND PERPENDICULAR TO SAID BISECTOR,
S44019'44"E, 1.20 FEET TO THE POINT OF INTERSECTION WITH A LINE
PARALLEL WITH AND 40,00 FEET NORTHERL Y OF SAID CENTERLINE OF
MCFADDEN A VENUE, SAID POINT OF INTERSECTION BEING THE
TRUE POINT OF BEGINNING;
THENCE, NORTHWESTERLY ALONG SAID PERPENDICULAR LINE,
N44019'44"W, 2.41 FEET TO THE POINT OF INTERSECTION WITH A LINE
PARALLEL WITH AND 80.00 FEET EASTERLY OF SAID CENTERLINE OF
BRISTOL STREET; .
THENCE, NORTHERLY ALONG SAID PARALLEL LINE NOoo38'26"E,
135.60 FEET TO THE NORTHERLY LINE OF SAID SOUTHERLY HALF OF
LOT 12, INSTRUMENT NO. 2002001009572, O.R.
CONTAINING 3,988 SQUARE FEET, MORE OR LESS.
ALL AS SHOWN ON EXHIBIT "B", ATTACHED HERETO AND BY THIS
REFERENCE MADE A PART HEREOF.
SUBJECT TO ALL COVENANTS, RIGHTS, RIGHTS-OF- WAY AND EASEMENTS
OF RECORD, IF ANY.
PREPARED BY ME, OR UNDER MY DIRECTION ON ~. ~ ~
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RA YMOND J. RIVERA, PLS 8324
EXPIRES 12/31/07
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EXHIBIT "B"
GENERAL ESCROW PROVISIONS
All disbursements shall be made by Escrow's check. All funds received in this escrow shall be
deposited in one or more of Escrow Agent's general escrow accounts with any bank doing
business in the State of California and may be transferred to any other general escrow account or
accounts. The expression "close of escrow" means the date on which the transferring
instrument( s) referred to herein are filed for recordation with the Office of the Orange County
Recorder. All prorations shall be made on the basis of a 30-day month / 360-day year.
Recordation of any instruments delivered through this escrow, if necessary or proper in the
issuance of a policy of title insurance, is hereby authorized by the Parties to this transaction.
There shall be no prorations of any existing insurance policies in this escrow.
Escrow Agent is to furnish a copy of these instructions, including any amendments thereto,
closing statements, and/or any other documents deposited in this escrow, to the lender or lenders,
the real estate broker or brokers, and/or the attorney or attorneys involved in this transaction upon
request of such lenders, brokers or attorneys.
Should Escrow Agent, before or after close of escrow, receive or become aware of any
conflicting demands or claims with respect to this escrow; or to the rights of any of the parties
hereto; or about any money or property deposited herein, then Escrow Agent shall have the right
to discontinue any or all further acts on its part until such conflict is resolved to its satisfaction,
and Escrow Agent shall have the right to commence or defend any action or proceeding for the
resolution of such conflict. The Parties to this escrow jointly and severally agree to pay all costs,
damages, judgments and expenses, including reasonable attorney's fees, suffered or incurred by
Escrow Agent in connection with, or arising out of, this escrow including, but without limiting
the generality of the foregoing, a suit in interpleader initiated by Escrow Agent. In the event
Escrow Agent should file a suit in interpleader, Escrow Agent shall be fully released and
discharged from all obligations imposed upon it by this escrow.
If for any reason funds are retained or remain in escrow, Escrow Agent shall be entitled to deduct
therefrom a reasonable monthly charge of not less than $10.00 per month as an administrative
fee.
Time is of the essence with regard to the execution of these general escrow instructions. If
Escrow Agent is unable to comply with these instructions within the time specified herein, and if
additional time as is required to make an examination of the official records, Escrow Agent shall
return all documents, money, or property to the party entitled thereto upon satisfactory written
demand and authorization. Any amendment or supplement to these instructions must be in
writing, signed by all Parties to this transaction.
These escrow instructions, and any amendments thereto, may be executed in one or more
counterparts, each of which independently shall have the same effect as if it were the original,
and all of which taken together shall constitute one and the same instruction.
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EXHIBIT "C"
ACQUISITION SETTLEMENT AGREEMENT
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