PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
(Green Valley Town & Country Shopping Center)
This PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this "AGREEMENT")
is dated for reference purposes only as of FEBRUARY 26, 1997, and is made to be
effective as of the Effective Date (as hereafter defined), by and between PICO
ASSOCIATES, a Nevada General Partnership ("SELLER"), and PAN PACIFIC DEVELOPMENT
(U.S.) INC., a Delaware corporation ("BUYER").
R E C I T A L S
A. Seller is the owner of the Property (as hereafter defined), which
consists of a shopping center project containing approximately 130,552 square
feet of improvements, located at the northwest corner of Green Valley Parkway
and Sunset Road in the City of ▇▇▇▇▇▇▇▇▇, Nevada, as more particularly described
in EXHIBIT A.
B. Buyer desires to purchase the Property from Seller, and Seller desires
to sell the Property to Buyer, on the terms and conditions set forth herein.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree as
follows:
ARTICLE I
EFFECTIVE DATE
This Agreement shall be effective on the day (the "EFFECTIVE DATE") when a
fully executed copy of this Agreement (or a fully executed copy in counterparts)
is deposited with Escrow Holder (as hereafter defined). Escrow Holder is hereby
instructed to immediately notify each party to this Agreement of the Effective
Date.
ARTICLE II
DEFINITIONS
The following terms and references shall have the meanings indicated below
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined and to verbs of any tense):
1.
(a) ADDITIONAL RENTS" means amounts tenants may be obligated to pay as
additional rent, including certain percentage rent, certain escalations in base
rent, and certain pass-throughs of operating and similar expenses.
(b) "ALTA" means American Land Title Association.
(c) "ALTA POLICY" means an ALTA extended coverage owner's policy of title
insurance.
(d) "BALANCE" shall have the meaning set forth in SECTION 4.2(b).
(e) "▇▇▇▇ OF SALE" means a ▇▇▇▇ of sale as defined in ARTICLE III(c).
(f) "BUSINESS DAY" means any day other than a Saturday, Sunday or a
Holiday.
(g) "CLOSING" means the consummation of the transactions contemplated by
this Agreement.
(h) "CLOSING DATE" means the date the Deed is recorded in the official
records of ▇▇▇▇▇ COUNTY, NEVADA.
(i) "CONTRACTS" shall have the meaning set forth in ARTICLE III(d).
(j) "CONTRACT ASSIGNMENT" shall have the meaning set forth in ARTICLE
III(d).
(k) "DEED" shall have the meaning set forth in ARTICLE III(a).
(l) "DEPOSIT" shall have the meaning set forth in SECTION 4.2(a).
(m) "DIMINUTION THRESHOLD" shall have the meaning set forth in SECTION
13.1(A)(i).
(n) "DOCUMENTS" means the transfer documents attached as Exhibits to this
Agreement.
(o) "EFFECTIVE DATE" shall have the meaning set forth in ARTICLE I.
(p) "ENVIRONMENTAL LAWS" shall mean any and all presently existing
federal, state and local laws (whether under common law, statute, rule,
regulation or otherwise), requirements under permits issued with respect
thereto, and other requirements of any federal, state or local governmental
agency, court, board, bureau or other authority having jurisdiction with respect
to or relating to the environment, to
2.
any Hazardous Substance or to any activity involving Hazardous Substances, and
shall include, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601, ET SEQ.), the Federal
Resource Conservation and Recovery Act (42 U.S.C. Section 6901, ET SEQ.) and all
amendments thereto in effect as of the Closing Date.
(q) "ESCROW HOLDER" means the Title Company (as hereafter defined) where
escrow shall be established, whose address for this transaction shall be:
Fidelity National Title Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
(r) "ESCROW PERIOD" means the period from and after the Effective Date
through the Closing Date or any earlier termination of this Agreement.
(s) "FF&E" means furniture, fixtures, equipment, machinery, appliances,
fittings, and other removable articles of personal property of every kind and
nature that are owned by Seller and used in the operation of the Property,
including, without limitation, (i) furnishings, furniture, and equipment, (ii)
art work and other decorative items, (iii) built-in appliances, and (iv) office
furniture and equipment.
(t) "GENERAL INTANGIBLES" means the Offsite Rights, the Permits, the
Repair Warranties, and other intangible personal property rights of whatever
nature (other than the rights evidenced by the Contracts) owned by Seller and
used in the operation and maintenance of the Property.
(u) "HAZARDOUS SUBSTANCES" shall mean and include any chemical, compound,
material, mixture, waste or substance that is now or hereafter defined or listed
in, or otherwise classified pursuant to, any Environmental Laws as a "hazardous
substance," "hazardous material," "hazardous waste," "extremely hazardous
waste," "infectious waste," "toxic substance," "toxic pollutant" or any other
formulation intended to define, list, or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, or toxicity including any petroleum, natural gas, natural gas
liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixture of
natural gas and such synthetic gas). "Hazardous Substances" shall include,
without limitation, any hazardous or toxic substance, material or waste or any
chemical, compound or mixture which is (i) asbestos, (ii) motor oil, gasoline,
petroleum or any petroleum by-product, (iii) designated as a "hazardous
substance" pursuant to Section 1317 of the Federal Water Pollution Control Act
(33 U.S.C. Section 1251 ET SEQ.), (iv) defined as a "hazardous waste" pursuant
to Section 6903 of the Federal
3.
Resource Conservation and Recovery Act, (42 U.S.C. Section 6901 ET SEQ., (v)
defined as "hazardous substances" pursuant to Section 9601 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
ET SEQ.), or (vi) listed in the United States Department of Transportation Table
(49 CFR 172.101) or by the Environmental Protection Agency as hazardous
substances (40 CFR part 302); or in any and all amendments thereto in effect as
of the Closing Date; or such chemicals, compounds, mixtures, substances,
materials or wastes otherwise regulated under any applicable local, state or
federal Environmental Laws.
(v) "HOLIDAY" means any day on which banking institutions in the State of
California or the State of Nevada are authorized or obligated by law or
executive order to close.
(w) "IMPROVEMENTS" shall have the meaning set forth in ARTICLE III(b).
(x) "INFORMATION" means all documents, reports, studies, and other
information or materials (including, without limitation, the Records) delivered
or disclosed to Buyer by Seller or its agents.
(y) "INSPECTION PERIOD" means the period from and after the Effective Date
and ending at 4:00 p.m., Pacific Time, on the later of (i) forty-five (45) days
after Buyer's receipt of all Information required to be delivered to Buyer
pursuant to this Agreement, or (ii) such later date as may be required under the
provisions of SECTION 7.3(c).
(aa) "INVENTORY" means the stock of supplies and other consumables of every
kind and nature that are owned by Seller and used exclusively in the operation
and maintenance of the Property in the ordinary course of business.
(ab) "IRC" means the United States Internal Revenue Code of 1986, as
amended.
(ac) "LAND" shall have the meaning set forth in ARTICLE III(a).
(ad) "LEASE" means any lease, license, or other agreement for the
occupancy, possession, or use of any space within the Property (including,
without limitation, any rooms or other accommodations for guests or other
transient occupants and any storage space, containers, or other facilities),
including, without limitation, those leases described on EXHIBIT H attached
hereto.
(ae) "LEASE ASSIGNMENT" shall have the meaning set forth in ARTICLE III(e).
4.
(af) "OFFSITE RIGHTS" means any lease, license, or other agreement (other
than a recorded easement) providing for the use of another's real property in
conjunction with the operation of the Property (as, by way of illustration and
not limitation, use for vehicular parking and/or access).
(ag) "OWNER'S TITLE POLICY" means an ALTA Policy, in the amount of the
Purchase Price.
(ah) "PERMIT" means any permit, certificate, license, or other form of
authorization or approval issued by a governmental agency or authority and
legally required for the proper operation and use of the Property (including,
without limitation, any certificates of occupancy with respect to the
Improvements, elevator permits, conditional use permits, and zoning variances)
to the extent held and assignable by Seller or otherwise transferable with the
Property.
(ai) "PERMITTED EXCEPTIONS" shall have the meaning set forth in SECTION
6.1.
(aj) "PERSONAL PROPERTY" shall have the meaning set forth in ARTICLE
III(c).
(ak) "PLANS AND SPECIFICATIONS" shall have the meaning set forth in SECTION
7.3(a).
(al) "PROPERTY" shall have the meaning set forth in ARTICLE III.
(am) "PRORATIONS" shall have the meaning set forth in SECTION 9.7(a).
(an) "PTR" means a current preliminary title report concerning the Real
Property issued by the Title Company.
(ao) "PURCHASE PRICE" shall have the meaning set forth in SECTION 4.1.
(ap) "REAL PROPERTY" shall have the meaning set forth in ARTICLE III(a).
(aq) "RECORDS" means all books, records, correspondence, and other files
that have been received or generated and maintained in the course of operating
the Property that are in Seller's possession or control.
(ar) "REPAIR WARRANTIES" means any written guaranties, warranties, or other
obligations of any contractor, manufacturer, or vendor for the repair or
maintenance of any of the Improvements or FF&E, to the extent assignable by
Seller.
(as) "REVENUES" shall have the meaning set forth in SECTION 9.7(a).
5.
(at) "SERVICE CONTRACT" means any contract or other arrangement, written or
oral, for the continuing provision of services relating to the improvement,
maintenance, repair, protection, or operation of the Property.
(au) "SURVEY" shall have the meaning set forth in SECTION 7.1(b).
(av) "TENANT" means the tenant and occupant of, and another holder of a
possessory right in, all or any portion of the Property pursuant to a Lease.
(aw) "TENANT ESTOPPEL CERTIFICATES" means estoppel certificates in the form
of EXHIBIT I, to be executed and delivered by each Tenant to Buyer as provided
by Section 7.7.
(ax) "TENANT NOTICES" means notices to the Tenants as defined in SECTION
9.5(d).
(ay) "TITLE COMPANY" means Fidelity National Title Insurance Company.
ARTICLE III
PROPERTY SUBJECT TO AGREEMENT
Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to purchase
from Seller, subject to the terms and conditions set forth herein, all of
Seller's right, title, and interest in the following (collectively, the
"PROPERTY"):
(a) LAND - that certain land described in EXHIBIT A, and all
appurtenant rights, privileges, and easements thereto owned by Seller
(collectively, the "LAND"). The Land and the Improvements (collectively, the
"REAL PROPERTY") shall be conveyed from Seller to Buyer pursuant to a Grant,
Bargain & Sale Deed (the "DEED") substantially in the form of EXHIBIT B.
(b) IMPROVEMENTS - all buildings, structures, fixtures, and other
improvements located on the Land (collectively, the "IMPROVEMENTS").
(c) PERSONAL PROPERTY - all personal property, if any, owned by
Seller and used by Seller in the operation, maintenance, and management of the
Real Property as of the Closing Date, including, without limitation, the FF&E,
the Inventory, the Records, and the General Intangibles (collectively, the
"PERSONAL PROPERTY"). The Personal Property shall be conveyed from Seller to
Buyer pursuant to a ▇▇▇▇ of Sale (the "▇▇▇▇ OF SALE") substantially in the form
of EXHIBIT C.
6.
(d) CONTRACTS - all contracts and agreements in effect on the Closing
Date, if any, including, without limitation, the Service Contracts
(collectively, the "CONTRACTS"). Seller's interest in the Contracts shall be
conveyed to Buyer pursuant to an Assignment and Assumption of Contracts, Permits
and Other Rights (the "CONTRACT ASSIGNMENT") substantially in the form of
EXHIBIT D.
(e) LEASES - Seller's interest in all Leases in effect on the Closing
Date. Seller's interest in the Leases shall be conveyed to Buyer pursuant to an
Absolute Assignment and Assumption of Leases (the LEASE ASSIGNMENT")
substantially in the form of EXHIBIT E.
ARTICLE IV
PURCHASE PRICE, PAYMENT OF
PURCHASE PRICE AND LIQUIDATED DAMAGES
4.1 PURCHASE PRICE. Subject to the terms and conditions of this
Agreement, Buyer agrees to pay, and Seller agrees to accept, as consideration
for conveyance of the Property from Seller to Buyer, the sum of FIFTEEN MILLION
THREE HUNDRED THOUSAND AND NO/100THS DOLLARS ($15,300,000.00) (the "PURCHASE
PRICE").
4.2 DEPOSIT.
(a) Upon the full execution of this Agreement by Buyer and Seller,
Buyer shall tender to Escrow Holder an ▇▇▇▇▇▇▇ money deposit in the amount of
TWENTY-FIVE THOUSAND AND NO/100THS DOLLARS ($25,000.00) (the "DEPOSIT"). The
Deposit shall be tendered by certified check or cashier's check made payable to
Escrow Holder or by wire transfer of current federal funds received and credited
to the account of Escrow Holder.
(b) Provided that Buyer does not terminate this Agreement
pursuant to Article 7, Buyer shall tender to the Escrow Holder an additional
▇▇▇▇▇▇▇ money deposit in the amount of SEVENTY-FIVE THOUSAND AND NO/100THS
DOLLARS ($75,000.00), which shall become a part of the Deposit from and after
the date of tender. Upon the satisfaction, or waiver by Buyer of all of Buyer's
conditions precedent to closing as set forth in this Agreement, the Deposit
shall become non-refundable to Buyer, except upon a failure of Seller to
consummate the transactions contemplated by this Agreement in accordance with
the terms and provisions hereof, or the failure, unless waived in writing by
Buyer, of any other condition provided for in this Agreement for the benefit of
Buyer.
4.3 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid by Buyer
as below set forth:
7.
The Property is presently encumbered by a certain deed of trust and
security agreement securing a loan in the original principal amount of
$____________, with a principal balance of $_____________ as of March 1, 1997
(the "Existing Loan"). The Existing Loan is held presently by MASSACHUSETTS
MUTUAL LIFE INSURANCE COMPANY ("Lender"). Seller hereby represents and warrants
to Buyer with respect to the Existing Loan that:
(i) The Existing Loan is assumable with the prior written
consent of Lender and the payment to Lender of an assumption fee of one percent
(1%) of the then existing principal balance;
(ii) The Existing Loan is in full force and effect and there is
no event of default existing thereunder or any event which with the passage of
time or notice, or both, would constitute an event of default either by Seller
or Lender;
(iii) As of the Closing, all payments and the performance of all
other obligations of Seller pursuant to the terms and provisions of the Existing
Loan will be fully current; and
(iv) The Existing Loan is a fixed rate loan with interest
accruing at the rate of nine and seven-eighths percent (9.875%), payable in
equal monthly installments of $101,789.00 based on an assumed thirty (30) year
amortization of the principal balance of $11,500,000.00 as of November 1, 1993,
all due and payable on October 1, 2000.
Within ten (10) days after the Effective Date, Buyer, with the full
cooperation of Seller, shall apply to Lender to assume the Existing Loan, and
Buyer shall pay all costs incurred by Buyer and charged by Lender in accordance
with the terms and provisions of the Existing Loan, including the assumption
fee. Subject to the further provisions of this Agreement, Buyer shall assume
the Existing Loan at Closing. Unless provided otherwise by the Existing Loan
documents, it shall not be a requirement that Seller be released from its
obligations under the Existing Loan pursuant to Buyer's assumption of the
Existing Loan; but if Seller is not so released, Buyer shall indemnify and hold
Seller and its general partners harmless from and against any and all liability
for the performance of such obligations arising from and after the Closing.
The difference between (x) the Purchase Price and (y) the principal balance
of the Existing Loan at Closing plus the Deposit (such difference, the "Cash
Balance") shall be paid by Buyer at Closing by certified or cashier's check
drawn on an institutional depository acceptable to Escrow Holder or by current
federal funds via wire transfer; provided, however, that the Cash Balance shall
be subject to adjustments as provided for in Sections 9.7 and 9.8 hereof.
8.
4.4 INVESTMENT OF DEPOSIT. Escrow Holder shall place the Deposit in an
interest-bearing account with a bank or savings association, the deposits of
which are federally insured (up to the amount of ONE HUNDRED THOUSAND AND
NO/DOLLARS ($100,000.00), as directed in writing by Buyer, with notice to
Seller. All references in this Agreement to the Deposit shall include the
interest thereon.
4.5 DEPOSIT AS LIQUIDATED DAMAGES. IF THE SALE OF THE PROPERTY AS
CONTEMPLATED HEREUNDER IS NOT CONSUMMATED BECAUSE OF A DEFAULT UNDER THIS
AGREEMENT ON THE PART OF BUYER, ESCROW HOLDER, WITHOUT ANY FURTHER INSTRUCTION
FROM EITHER SELLER OR BUYER, SHALL PAY TO SELLER THE DEPOSIT AND SELLER SHALL
RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT SELLER'S
ACTUAL DAMAGES IN THE EVENT OF A DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT
OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR SIGNATURES BELOW,
THE PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED
UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S
DAMAGES. THE PARTIES FURTHER ACKNOWLEDGE THAT SELLER'S RETENTION OF THE DEPOSIT
HAS BEEN AGREED UPON AS SELLER'S EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF
A DEFAULT ON THE PART OF BUYER, OTHER THAN THE ADDITIONAL AND SEPARATE
OBLIGATIONS OF BUYER UNDER SECTIONS 5.2, 15.2(b), AND 15.10 HEREOF, WHICH
OBLIGATIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. IN ADDITION, BUYER
SHALL PAY ALL TITLE AND ESCROW CANCELLATION CHARGES IN THE EVENT OF A DEFAULT BY
BUYER.
"Seller" "Buyer"
PICO ASSOCIATES PAN PACIFIC DEVELOPMENT (U.S.) INC.,
A NEVADA GENERAL PARTNERSHIP A DELAWARE CORPORATION
____________________________ ____________________________________
By: J. ▇▇▇▇▇▇ ▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: GENERAL PARTNER Its: PRESIDENT & CHIEF EXECUTIVE OFFICER
9.
ARTICLE V
INSPECTION
5.1 DUE DILIGENCE REVIEW. Buyer, at its sole cost and expense, shall have
the right to a Due Diligence Review in accordance with the following terms and
conditions. A "DUE DILIGENCE REVIEW" means (a) an inspection, examination and
evaluation of the Information, and (b) the conduction of physical tests,
inspections and other investigations on the Property and all portions thereof
leased by Tenants ("INSPECTION STUDIES"), all in order that Buyer may determine,
in its sole and absolute judgment and discretion, whether the Property is
acceptable to Buyer.
5.2 RIGHT TO TERMINATE. Notwithstanding anything to the contrary in this
Agreement, Buyer may terminate this Agreement by giving notice of termination to
Seller on or before the termination of the Inspection Period. If Buyer duly
exercises that right, then Escrow Agent is hereby instructed to return the
Deposit to Buyer without further instruction from either Buyer or Seller. If
Buyer does not give the notice of termination, this Agreement shall continue in
full force and effect, subject, however, to Buyer's other termination rights
hereunder. Seller acknowledges that Buyer may, but is not obligated to, expend
time, money, and other resources in connection with the Due Diligence Review of
the Property, and that, notwithstanding the fact that this Agreement may
terminate pursuant to this Section 5.2 and other applicable provisions of this
Agreement, such time, money, and other resources that may be expended constitute
adequate consideration for Seller's execution of and entry into this Agreement.
5.3 ACCESS & INQUIRIES.
(a) Buyer and its representatives, agents and contractors shall have
reasonable access to the Property, including all areas leased to Tenants, for
the purpose of causing a survey of the Land and Improvements to be performed by
a licensed surveyor, and conducting architectural, engineering, geotechnical,
and environmental inspections and tests (including intrusive inspection and
sampling), feasibility studies, and any other inspections, studies, or tests
reasonably required to Buyer. Buyer shall keep the Property free and clear of
any liens as a result of any entry on the Property pursuant to this Section
5.3(a).
(b) During the pendency of this Agreement, Seller shall make
available to Buyer, and Buyer and its representatives, agents and contractors
shall have a continuing right of reasonable access to and the right to examine
and make copies of, all books and records; construction plans; correspondence;
documents; contracts; agreements; Leases, as well as resident ledger cards or
Lease files with histories; and other materials relating to the Property in
Seller's possession or control, including,
10.
without limitation, the right to conduct a "walk-through" of the Property prior
to the Closing upon appropriate notice to Tenants and subject to the rights of
all Tenants under their Leases.
(c) In the course of its Due Diligence Review, Buyer may make
inquiries to third parties including, without limitation, Tenants, lenders,
contractors, property managers, parties to the Information and Contracts, and
municipal, local, and other government officials and representatives, and Seller
consents to such inquiries.
5.4 CONDUCT OF INSPECTIONS.
(a) Any entry by Buyer onto the Property shall be subject to, and
conducted in accordance with, all applicable laws, statues, rules and
regulations and the terms of any Leases so as to avoid any material interference
with the operations and occupancy of the Property and to avoid any material
disturbance of any of the Tenants or the possessory rights of any of the
Tenants. Buyer shall promptly restore the Property to its previous condition
before any such inspections, studies, or tests were performed.
(b) Buyer or its agents may undertake borings or other disturbances
of the soil with Seller's prior written approval (not to be unreasonably
withheld), provided that the soil borings and other disturbances shall be sealed
and closed using materials and techniques that conform with all applicable laws,
statutes, rules and regulations and industry and governmental standards, and the
soil shall be recompacted to the condition immediately before any such borings
were undertaken.
(c) Notwithstanding any general liability or other insurance that may
be maintained by Buyer, Buyer hereby agrees to indemnify, defend and hold
harmless Seller and its partners and its and their partners, shareholders,
directors, officers, employees, and agents and all Tenants from and against any
claims, losses or damages (including attorneys' fees and costs) arising from or
in connection with the due diligence and inspection activities conducted on the
Property by Buyer and or its agents, including, without limitation, any damages
to the Property or any property of any Tenant arising from or relating to any
inspections, studies or tests performed by Buyer or its agents. The foregoing
indemnification obligation of Buyer shall survive any termination of this
Agreement or the delivery of the Deed and the transfer of title to the Property.
If this Agreement is terminated, Buyer shall deliver to Seller, upon Seller's
payment of Buyer's costs therefor, the results and copies of any and all
surveys, reports, tests or studies made by or for Buyer with respect to the
Property.
5.5 NEW AGREEMENTS. During the period from the Effective Date until the
Closing Date, and as a condition to Buyer's obligations to purchase the
Property, Seller shall comply with the following:
11.
(a) Seller shall notify Buyer immediately of any agreement of Seller
to (i) amend or terminate any Lease, tenancy, license or other right of
occupancy or use for any portion of the Property or any assignment or sublet
thereunder, (ii) consent to the assignment of any Leases or subleasing of any of
the Property, or (iii) enter into any new Lease of the Property or any portion
thereof. If Seller desires to take any action described in clause (i), (ii) or
(iii) of the immediately preceding sentence, without the prior written approval
of Buyer, which approval shall not be withheld unreasonably, then Buyer may
terminate this Agreement if Buyer determines in the reasonable exercise of its
discretion that such action taken by Seller is unacceptable to Buyer. In the
event Seller elects to seek Buyer's approval of any such matters, then Seller
shall so notify Buyer, and if Buyer fails to notify Seller within ten (10)
Business Days after Buyer's receipt of such notice of any objection Buyer has
hereunder to any action described therein, then Buyer shall be deemed to have
consented to such action.
(b) Seller shall not, without the prior written consent of Buyer in
each instance (such consent not to be unreasonably withheld), enter into any
commitment, contract, option or other agreement of any kind with respect to the
repair, maintenance or operation of the Property, unless such contracts, etc.
have terms that expire prior to Closing.
ARTICLE VI
TITLE TO PROPERTY
6.1 TITLE. At the Closing, Seller shall convey to Buyer title to the Real
Property by execution and delivery of the Deed. The Title Policy shall show
title as subject to no exceptions other than the following (collectively, the
"PERMITTED EXCEPTIONS"):
(a) The lien for real estate taxes and assessments not yet
delinquent;
(b) Interest of Tenants pursuant to the Leases; and
(c) Such other exceptions as may be approved in writing by Buyer
pursuant to SECTION 7.1 hereof.
6.2 TITLE INSURANCE. Buyer's obligation to purchase the Property shall be
subject to the irrevocable commitment of the Title Company to issue the Owner's
Title Policy upon payment of its normal premium on the Closing Date. In
addition, and provided Buyer satisfies any requirements of the Title Company
therefor prior to the Closing Date, the Owner's Title Policy shall be issued
together with such endorsements thereto as Buyer may request; provided, however,
that if any such
12.
endorsements are required to change an exception to title to which Buyer has
objected into a Permitted Exception, then the cost of such endorsement shall be
paid by Seller.
6.3 PERSONAL PROPERTY AND CONTRACTS. At the Closing, Seller shall
transfer to Buyer title to the Personal Property and Seller's interest in the
Contracts by execution and delivery of the ▇▇▇▇ of Sale and the Contract
Assignment. Buyer shall assume the performance of all of Seller's obligations
under the Contracts arising after the Closing Date, but only as to those
Contracts, if any, which Buyer has approved and consented to during the
Inspection Period; and all Contracts not approved by Buyer shall be cancelled or
cancellable as of Closing. Seller shall indemnify and hold Buyer harmless from
and against all liability or claims made against Buyer or the Property with
respect to any Contract not approved by Buyer.
ARTICLE VII
BUYER'S ADDITIONAL CONDITIONS PRECEDENT TO CLOSING
Buyer's obligation to purchase the Property shall be conditioned upon the
fulfillment of each of the following conditions precedent:
7.1 APPROVAL OF TITLE.
(a) Buyer shall have reviewed and approved, within the time period
and in the manner provided below, the PTR, including copies of all documents
referred to in the PTR (other than encumbrances to be discharged by Seller on or
before Closing).
(b) Seller shall cause the PTR and all supporting materials,
including copies of all documents referred to in the PTR, and an ALTA survey of
the Real Property dated within forty (45) days prior to Closing (the "SURVEY"),
to be delivered to Buyer by 4:00 p.m., Pacific time, on or before the 10th
Business Day after the Effective Date. By 4:00 p.m., Pacific time, on April 21,
1997, Buyer shall notify Seller and Escrow Holder in writing which exceptions to
title shown in the PTR, if any, will not be accepted by Buyer and those matters
disclosed by the Survey, if any, which will not be accepted by Buyer
(collectively, the "DISAPPROVED TITLE MATTERS"); all other matters and
exceptions to title shown in the PTR and conditions disclosed by the Survey
shall be deemed approved by Buyer. If Buyer fails to notify Seller and Escrow
Holder within the required time period of any Disapproved Title Matters, Buyer
shall be deemed to have approved the condition to the Real Property as to such
title and survey matters. If Buyer notifies Seller of any Disapproved Title
Matters, Seller shall have until 4:00 p.m., Pacific time, on April 28, 1997, to
notify Buyer and Escrow Holder in writing that:
13.
(i) Seller shall use its reasonable efforts to either (A)
cause any Disapproved Title Matters to be removed by the Closing, or (B) obtain,
at Seller's expense, an endorsement or other curative effect acceptable to Buyer
in Buyer's sole and absolute discretion (in which case, Seller may extend the
Closing Date for such period as shall be required to effect such cure, but not
beyond ten (10) calendar days). Notwithstanding the foregoing, however, Seller
shall not be obligated to pay an amount in excess of $10,000.00 for the removal
of any Disapproved Title Matters; or
(ii) Seller elects not to cause any such Disapproved Title
Matters to be removed.
(c) If Seller gives Buyer and Escrow Holder notice under subsection
(b)(ii) above, Buyer shall have until 4:00 p.m., Pacific time, on May 2, 1997,
to notify Seller and Escrow Holder that (i) Buyer revokes its disapproval of
such exceptions(s) and matters, and will proceed with the purchase without any
reduction in the Purchase Price and take title to the Property subject to such
exception(s) and matters, or (ii) Buyer will terminate this Agreement.
7.2 APPROVAL OF ASSUMPTION DOCUMENTS. Buyer shall have reviewed and
approved, which approval shall not be withheld unreasonably, the form and
content of each of the documents, instruments, schedules and any and all other
writings required by Lender to be executed and delivered by Buyer in order for
Buyer to assume the Existing Loan (collectively, the "Assumption Documents").
7.3 APPROVAL OF OTHER MATTERS.
(a) By 4:00 p.m., Pacific time, on or before the 5th Business Day
after the Effective Date, Seller will deliver to Buyer, or allow Buyer
reasonable access to, at the Property, at Seller's place of business, or at such
other location as Seller may reasonably indicate, during reasonable times agreed
upon in advance by Buyer and Seller, copies of the following, expressly subject
to such items being in the possession of or reasonably available to Seller or
its manager for the Property:
(i) a current rent roll and copies of all Leases disclosed
thereon;
(ii) copies of all Contracts;
(iii) a schedule of all Personal Property;
(iv) copies of the most recent property tax bills for the
Property;
(v) operating statements for Seller's fiscal years 1994,
1995 and 1996 and for each calendar month thereafter;
14.
(vi) plans and specifications (as-builts, if available) for
construction of the Improvements (the "PLANS AND SPECIFICATIONS");
(vii) copies of certificate(s) of occupancy (or equivalent in
the applicable jurisdiction), and any governmental licenses and permits
regarding the Property;
(viii) Seller's general statement of partnership;
(ix) security incident reports;
(x) a schedule of filed litigation regarding or affecting,
directly or indirectly, the Property; and
(xi) an aged receivables report current as of the Effective
Date;
(xii) copies of environmental reports, studies and
assessments within Seller's possession or control covering the Property;
(xiii) copies of all CC&R's affecting the Property;
(xiv) copies of all soil reports and analyses within Seller's
possession or control pertaining to the soils, seismological, geological and
drainable conditions of the Property; and
(xv) copies of construction and equipment warranties within
Seller's possession.
(c) On or before the expiration of the Inspection Period, Buyer shall
notify Seller and Escrow Holder in writing if Buyer objects to any of the
matters referred to in subsection (a) or (b) above or to Buyer's own inspection
of the Property described in SECTION 5.1 hereof. If Buyer so notifies Escrow
Holder of any objection(s), Seller shall have ten (10) calendar days, at
Seller's option, to attempt to cure Buyer's objection(s); upon the expiration of
such ten (10) day period, Buyer may elect to either rescind its objection(s) or
terminate this Agreement.
7.4 COMPLIANCE BY SELLER. Seller shall have complied with each and every
covenant, undertaking and agreement to be kept or performed by Seller as
provided in this Agreement; and each representation and warranty made in this
Agreement by Seller shall remain true and accurate in all material respects both
at the time made and on the Closing Date.
15.
7.5 NO MATERIAL ADVERSE CHANGE IN PHYSICAL CONDITION. As of the Closing
Date, there shall have been no material adverse change in the condition of the
Property or any material portion thereof, excepting any event(s) of destruction,
damage, or condemnation described in SECTION 13.1 or 13.2.
7.6 NO INSOLVENCY. Neither Seller nor any of its affiliates (i) shall be
in receivership or dissolution, (ii) shall have made an assignment for the
benefit of creditors or admitted in writing its inability to pay its debts as
they mature, or (iii) shall have been adjudicated a bankrupt or filed a petition
in voluntary bankruptcy or a petition or answer seeking reorganization or an
arrangement with creditors under the Federal bankruptcy law or any other similar
law or statute of the United States or any jurisdiction; and no such petition
shall have been filed against Buyer or any of its general partner(s); or if any
such proceeding has been filed against any general partner and is pending, the
Bankruptcy Court having jurisdiction over such matter shall have entered an
order allowing such general partner and Seller to proceed to close the
transaction contemplated by this Agreement in accordance with its terms and
provisions.
7.7 TENANT ESTOPPELS. Buyer shall have received from Seller a Tenant
Estoppel Certificate for each Tenant whose lease term extends beyond the Closing
Date no later than seven (7) days prior to the expiration of the Inspection
Period, which Tenant Estoppel Certificates shall be substantially in the same
form as EXHIBIT I attached hereto and otherwise acceptable to Buyer.
7.8 WAIVER. At any time or times on or before the Closing, at Buyer's
election, Buyer may waive any of the foregoing conditions by written notice to
Seller. Other than Buyer's closing the transaction contemplated by this
Agreement which shall waive all such unfulfilled conditions, no waiver shall be
effective unless made in writing specific as to the conditions or matters so
waived. No such waiver shall be inferred or implied by any act or conduct of
Buyer or reduce the rights or remedies of Buyer arising from any breach of any
undertaking, agreement, covenant, warranty, or representation of Seller under
this Agreement.
7.9 TERMINATION. If any of the foregoing conditions are neither
fulfilled, nor waived as provided above, Buyer, at its election by written
notice to Seller, may terminate this Agreement and be released from all
obligations under this Agreement (other than those described in this SECTION 7.8
and SECTIONS 15.2(b) and 15.10 hereof). In the event of such termination by
Buyer, the Deposit shall be returned immediately to Buyer, all documents
deposited in Escrow by Buyer or Seller shall be returned to the depositing
party, the costs of the Title Company and Escrow Holder shall be borne equally
by Buyer and Seller, and, except as otherwise set forth in this ARTICLE VII,
each party hereto shall bear its own costs incurred herewith.
16.
ARTICLE VIII
SELLER'S CONDITIONS PRECEDENT TO CLOSING
Seller's obligation to sell the Property shall be conditioned upon the
fulfillment of each of the following conditions precedent:
8.1 COMPLIANCE BY BUYER. Buyer shall have complied with each and every
covenant, undertaking and agreement to be kept or performed by Buyer as provided
in this Agreement; and each representation and warranty made in this Agreement
by Buyer shall remain true and accurate in all material respects both at the
time made and on the Closing Date.
8.2 ORGANIZATIONAL AND AUTHORIZATION DOCUMENTS. Buyer shall have
delivered to Escrow Holder and to Seller certified copies of Buyer's articles of
incorporation, bylaws, and all amendments or modifications thereto, corporate
resolutions and incumbency certificates and a certificate of good standing
issued within twenty (20) calendar days prior to the Closing Date and certified
as being correct by the appropriate official of Buyer's jurisdiction of
incorporation.
8.3 TERMINATION. If any of the foregoing conditions are neither fulfilled
nor waiver by Seller, Seller shall have the option to terminate this Agreement
by delivering to Buyer and Escrow Holder written notice of such termination. If
Seller elects to terminate this Agreement, Escrow Holder, without any further
instruction from either Buyer or Seller, shall pay to Seller the Deposit if the
condition that was not satisfied is the condition set forth in SECTION 8.1 or
8.2. Thereafter, this Agreement shall be null and void and of no further force
or effect and, except as provided in this SECTION 8.3 and SECTIONS 15.2(b) and
15.10 hereof, neither party shall have any further rights or obligations
hereunder, other than those rights and obligations that, by their terms survive
the termination of this Agreement. In the event of such termination by Seller,
all documents deposited in Escrow by Buyer or Seller shall be returned to the
depositing party, the costs of the Title Company and Escrow Holder shall be
borne equally by Buyer and Seller and each party hereto shall bear its own costs
incurred herewith.
ARTICLE IX
ESCROW AND CLOSING
9.1 DEPOSIT WITH ESCROW HOLDER AND ESCROW INSTRUCTIONS. Escrow herein
(the "ESCROW") shall be established with Escrow Holder, at the address listed in
Article II(r) above. Upon execution of this Agreement, the parties shall
deposit an executed copy of this Agreement with Escrow Holder. This Agreement
shall serve as the instructions
17.
to Escrow Holder to consummate the purchase and sale contemplated hereby.
Seller and Buyer agree to execute such additional and supplementary escrow
instructions as may be appropriate to enable Escrow Holder to comply with the
terms of this Agreement. If there is any conflict between the provisions of
this Agreement and any additional or supplementary escrow instructions, however,
the terms of this Agreement shall control.
9.2 CLOSING.
(a) Except as may be provided otherwise herein, the Closing shall
occur by 4:00 p.m., Pacific time, on the thirtieth (30) day from and after the
last day of the Inspection Period, unless the parties hereto agree in writing to
an earlier or later date and/or time.
(b) If either party has complied with the terms and conditions of
this Agreement before the scheduled Closing Date and the other party is not in a
position to close by the scheduled Closing Date, the defaulting party shall be
deemed to be in material breach of this Agreement. The party who has fully
complied may terminate this Agreement and, whether or not this Agreement is
terminated, Buyer may exercise all remedies available to it at law or in equity,
and Seller's remedies shall be limited to the provisions for liquidated damages
set forth in SECTION 4.4 hereof.
9.3 DELIVERIES BY SELLER. At least one (1) business day prior to the
Closing Date, Seller shall deliver or cause to be delivered to Escrow Holder the
following:
(a) the Deed, duly executed and acknowledged by Seller and in
recordable form;
(b) Seller's Non-Foreign Affidavit, in the form of EXHIBIT F attached
hereto, duly executed and acknowledged by Seller;
(c) the Assumption Documents executed by Seller as required by
Lender, if at all;
(d) any other cash, documents, or instruments called for hereunder to
be paid, executed, or delivered by Seller that have not previously been
delivered by Seller to Escrow Holder; and
(e) such articles of incorporation, agreements or certificates of
partnership, resolutions, authorizations, bylaws, certifications or other
corporate, partnership or trust documents or agreements or other reasonable
proof of authority relating to Seller as Buyer or Escrow Holder shall reasonably
require in connection with this transaction.
18.
9.4 DELIVERIES BY BUYER. At least one (1) business day prior to the
Closing Date, Buyer shall deliver or cause to be delivered to Escrow Holder the
following:
(a) such articles of incorporation, agreements or certificates of
partnership, resolutions, authorizations, bylaws, certifications or other
corporate, partnership or trust documents or agreements or other reasonable
proof of authority relating to Buyer as Seller or Escrow Holder shall reasonably
require in connection with this transaction;
(b) cash or other immediately available funds sufficient to pay the
Balance, Buyer's portion of the closing costs, and any other amounts payable by
Buyer in order to permit Escrow Holder to close the Escrow;
(c) the Assumption Documents executed by Buyer; and
(d) any other cash, documents or instruments called for hereunder to
be paid, executed or delivered by Buyer or that are required for the Closing
hereunder that have not been previously delivered by Buyer to Escrow Holder.
9.5 ADDITIONAL DELIVERIES BY BUYER AND SELLER. At least one (1) business
day prior to the Closing Date, Seller also shall deliver or cause to be
delivered to Escrow Holder, and Buyer also shall deliver or cause to be
delivered to Escrow Holder, the following documents:
(a) two (2) originals of the ▇▇▇▇ of Sale, duly executed and
acknowledged by Seller and Buyer;
(b) two (2) originals of the Contract Assignment, duly executed and
acknowledged by Seller and Buyer;
(c) the Lease Assignment, duly executed and acknowledged by Seller
and Buyer and in recordable form;
(d) notices to the Tenants (the "TENANT NOTICES") substantially in
the form of EXHIBIT G, duly executed by Seller;
(e) a Declaration of Value to be completed and executed by Escrow
Holder and filed with the office of the County Recorder of ▇▇▇▇▇ County, Nevada;
and
(f) a closing statement prepared by Escrow Holder and approved by
Buyer and approved by Seller.
19.
9.6 OTHER INSTRUMENTS. Seller and Buyer each shall deposit any other
documents or instruments that may be reasonably required by the other party
and/or Escrow Holder, or that are otherwise required to close the Escrow and
consummate the purchase and sale of the Property in accordance with the terms
hereof.
9.7 PRORATIONS AND APPORTIONMENTS.
(a) All revenues from the Property and all expenses of the Property
shall be prorated and apportioned as of 11:59 p.m., California time, on the day
before the Closing Date (the "PRORATIONS"). Taxes shall be prorated as of the
Closing Date, based on a 365-day year. Accrued and unpaid interest under the
Existing Loan shall be prorated as of the Closing Date, based on a 360 day year
as provided for pursuant to the terms and provisions of the Existing Loan.
Seller shall be charged and credited for such Prorations up to the Closing Date
and Buyer shall be charged and credited (or, at Seller's option, paid by check
for unused security or other deposits) for all of the same on and after the
Closing Date. Prior to the Closing, Buyer and Seller shall review and approve
the Prorations. If the actual amounts to be prorated are not then known, or if
any additional expenses are incurred or income received after the date the
Prorations are made, the Prorations shall be made on the basis of the best
evidence then available. When actual figures are later received, a cash
settlement will be made between Seller and Buyer. All utility bills shall be
prorated when the last ▇▇▇▇ incurred by Seller is received. No Prorations shall
be made for rents, license payments, receivables or accounts ("REVENUES")
delinquent as of the Closing Date, and no credit shall be given to Seller for
any Revenues delinquent as of the Closing Date. As used in the immediately
preceding sentence, the term "delinquent" shall mean, with respect to any
Revenue, that the Revenue in question accrued at any time prior to the then-
current calendar month. Nevertheless, if Buyer collects any Revenues that were
delinquent on or before the Closing, such Revenues shall be attributed first to
the current Revenues and then to the portion that was delinquent on or before
the Closing and Buyer shall promptly remit to Seller the portion of such
Revenues collected, if any, attributable to the period of time prior to the
Closing Date.
(b) Tenants may be obligated to pay Additional Rents. With respect
to any Additional Rents that are based on estimates and that are subject to
adjustment and/or reconciliation after the Closing Date, Seller and Buyer shall
re-prorate such Additional Rents (including any portions thereof that may be
required to be refunded to Tenants) at the time that such estimates are actually
adjusted and/or reconciled. Any amounts that may be due Seller as a result of
such re-prorations shall be paid by Seller to Buyer promptly after written
request therefor is delivered to Seller by Buyer (together with evidence
reasonably satisfactory to Seller of the amounts due the Tenants).
20.
(c) Seller shall be responsible for the payment of any leasing
commissions earned prior to the Effective Date, and Buyer shall be responsible
for the payment of any leasing commissions earned from and after the Effective
Date, regardless of when any such leasing commissions become due, provided that
such commissions have been disclosed to and approved by Buyer prior to
expiration of the Inspection Period. Each party to this Agreement shall
indemnify the other party against and hold the other party harmless (using
counsel reasonably satisfactory to such other party) from and against any and
all damages, liabilities, costs, expenses and losses (including, but not limited
to attorneys' fees and costs) arising out of any action for the collection of
leasing commissions that are such party's responsibility pursuant to this
subsection.
(d) The provisions of this Section shall survive the Closing.
9.8 COSTS AND EXPENSES. Seller shall pay the premium for the Owner's
Title Policy in the amount of the Purchase Price. Buyer shall pay the cost of
the Survey. Seller shall also pay the cost of any city and/or county transfer
taxes applicable to the transfer of the Property to Buyer, all recording charges
for the Deed and the Lease Assignment, and the cost, if any, to record any
corrective instruments. If Buyer elects to obtain endorsements for the Owner's
Title Policy, in addition to those necessary to cure title objections as
provided for in Section 6.2, Buyer shall pay all the premiums for such
additional endorsements. Buyer shall also pay any special sales, gross receipts
or transaction taxes imposed on Buyer in connection with the purchase and sale
of the Property. Costs and charges of the Escrow shall be borne equally by
Seller and Buyer. All other taxes, costs, and charges for the sale of the
Property shall be paid by Seller and/or Buyer, as the case may be, in accordance
with the usual customs and practices in the City of ▇▇▇▇▇▇▇▇▇, County of ▇▇▇▇▇,
State of Nevada.
9.9 INSURANCE; UTILITIES. Buyer acknowledges that Seller will cause its
policies of casualty and liability insurance to be terminated with respect to
the Property as of the Closing Date. Buyer shall be responsible for obtaining
its own insurance as of the Closing Date and thereafter. Any deposits for
utilities made by Seller shall be refunded to Seller and Buyer shall arrange for
any required replacements therefor and Buyer shall be responsible for obtaining
its own utilities as of the Closing Date and thereafter.
9.10 CLOSE OF ESCROW. Provided that (I) Escrow Holder has received the
documents and funds described in SECTIONS 9.3, 9.4, and 9.5 hereof; (ii) Escrow
Holder has not received prior written notice from either party to the effect
that an agreement of either party made hereunder has not been performed or to
the effect that any condition set forth herein has not been satisfied or waived;
(iii) Buyer has not elected to terminate its rights and obligations hereunder
pursuant to ARTICLE VII; and (iv) the Title Company has issued or is
unconditionally prepared and committed to
21.
issue the Owner's Title Policy to Buyer, Escrow Holder is authorized and
instructed on the Closing Date to:
(a) cause the Deed and the Lease Assignment to be recorded, in that
order, in the Official Records of ▇▇▇▇▇ County, State of Nevada;
(b) deliver the Cash Balance to Seller, less Seller's share of
closing costs and Prorations (except to the extend paid to Buyer by check in
accordance with SECTION 9.7 hereof), in the manner specified by Seller in
separate instructions to Escrow Holder;
(c) Deliver the Assumption Documents to Lender or in accordance with
Lender's instructions.
(d) deliver to Buyer an original of each of the ▇▇▇▇ of Sale and the
Contract Assignment, an as-recorded conformed copy of each of the Deed and the
Lease Assignment, and a copy of the fully executed Assumption Documents; and
deliver to Seller an original of each of the ▇▇▇▇ and Sale and the Contract
Assignment, and an as-recorded conformed copy of each of the Deed and the Lease
Assignment;
(d) deliver Seller's Non-Foreign Affidavit to Buyer; and
(e) deliver all of the executed Tenant Notices to the Tenants.
9.11 NOTIFICATION; CLOSING STATEMENTS. If Escrow Holder cannot comply with
the instructions herein (or as may be provided later), Escrow Holder is not
authorized to cause the recording of any of the Documents. If Escrow Holder is
unable to cause the recording, Escrow Holder shall notify the parties without
delay. Immediately after the Closing, Escrow Holder shall deliver to Buyer and
Seller, respectively, at their addresses listed in SECTION 15.1 hereof, a true,
correct and complete copy of the Seller's and Buyer's Closing Statements, in
forms customarily prepared by Escrow Holder, as well as all other instruments
and documents to be delivered to Buyer and Seller.
ARTICLE X
REPRESENTATIONS, WARRANTIES AND COVENANTS
10.1 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants
to Seller as follows:
(a) Buyer is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware, with full right, power,
and authority
22.
to take title to the Property, and to enter into and otherwise perform and
comply with the terms of this Agreement;
(b) this Agreement and all documents executed by Buyer that are to be
delivered to Seller at the Closing are, or at the time of Closing will be, duly
authorized, executed and delivered by Buyer;
(c) this Agreement and all documents executed by Buyer that are to be
delivered to Seller at the Closing are, or at the Closing will be, legal, valid
and binding obligations of Buyer, and do not, and at the time of Closing will
not, violate any provisions of any agreement or judicial order to which Buyer is
a party or to which Buyer is subject;
(d) Buyer has not relied on any appraisal that may have been made by
or for Seller as evidence or as an indication of the value of the Property or as
a basis for determining the value of the Property;
(e) Buyer has not relied on any projection of anticipated revenues
for the property that may have been made by or for Seller either as evidence or
an indication of the value of the Property or as a basis for determining the
value of the Property; and
(f) except as set forth in SECTION 10.2, no representations of any
kind (whether oral or written, express or implied) have been made by Seller or
its partners or its and their partners, shareholders, directors, officers,
employees or agents to Buyer, and except as provided otherwise in Section 10.2,
Buyer is investing in the Property solely in reliance on Buyer's own
investigations and evaluation thereof.
10.2 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Buyer as follows:
(a) Seller is a general partnership duly organized, validly existing,
and in good standing under the laws of the State of Nevada, with full right,
power, and authority to convey to Buyer all of Seller's right, title and
interest in and to the Property, and to enter into and otherwise perform and
comply with the terms of this Agreement;
(b) this Agreement and all documents executed by Seller that are to
be delivered to Buyer at the Closing are, or at the time of Closing will be,
duly authorized, executed and delivered by Seller;
(c) this Agreement and all documents executed by Seller that are to
be delivered to Buyer at Closing are, or at the time of Closing will be, legal,
valid and
23.
binding obligations of Seller, and do not, and at the time of Closing will not,
violate any provisions of any agreement or judicial order to which Seller is a
party or to which Seller or the Property is subject.
(d) Seller has good and marketable title to the Property and at
Closing such title shall be subject only to the Permitted Exceptions.
(e) Other than the Property, there are no items, tangible or
intangible, real or personal, owned by the Seller or any affiliate of Seller as
of now or at any time heretofore used in conjunction with the Property or any
portion thereof.
(f) to the best of Seller's knowledge, all of the Property, and the
existing uses of the Property, are in compliance with all applicable laws,
ordinances, rules, regulations, and requirements of all governmental authorities
having jurisdiction thereof, including, without limitation thereto, those
pertaining to zoning, land use, subdivision, building, safety, fire and health.
(g) There is no action, suit, proceeding or investigation pending, or
to Seller's best knowledge threatened, before any agency, court, or other
governmental authority which relates to the Seller or the ownership,
maintenance, or operation of the Property.
(h) There is no condemnation or eminent domain proceeding affecting
the Property or any portion thereof currently pending nor, to Seller's best
knowledge, is any such proceeding threatened.
(i) Seller has received no notice of any failure of the Seller to
comply with any applicable governmental requirements in respect of the use,
occupation and construction of the Property, including but not limited to
environmental, zoning, platting and other land use requirements which have not
been heretofore corrected to the satisfaction of the appropriate governmental
authority, and Seller has received no notice of and has no knowledge of any
violations or investigations relating to any such governmental requirement.
(j) Seller has received no notice of any default or breach by the
Seller under any covenants, conditions, restrictions, rights-of-way, or
easements which may effect the Seller in respect to the Property or may effect
the Property or any portion thereof, and to Seller's knowledge no such default
or breach now exists.
(k) No special or general assessments have been levied, nor to
Seller's knowledge are any such assessments threatened against all or any part
of the Property.
24.
(l) To Seller's knowledge, there has been no default or any claim of
default, and to Seller's knowledge no event has occurred, which with notice or
lapse of time or both would constitute a default, under any Lease; and to
Seller's knowledge no Tenant has asserted or has any defense, set off, or claim
with regard to his tenancy pursuant to the lease, any law or otherwise.
(m) All water, sewer, gas, electric, telephone and drainage
facilities and all other utilities required by law or by the normal use and
operation of the Property are and at the time of Closing will be installed to
the property lines of the Real Property, are and at the time of Closing will be
connected and operating pursuant to valid permits, and are and at the time of
Closing will be adequate to service the Property and to permit full compliance
with all requirements of law and normal usage of the Property by Seller and its
licensees and invitees. All public utilities required for the operation of the
Property either enter the Property through adjoining public streets, or if they
pass through adjoining private land do so in accordance with valid public
easements or private easements which will inure to the benefit of Buyer at
Closing and thereafter.
(n) To the best knowledge of Seller, the heating, ventilation, air
conditioning, mechanical, electrical and other systems and equipment forming a
part of or used in connection with the Property are operative and in good
working condition and in compliance with all applicable laws, ordinances,
regulations and requirements.
(o) Seller is not a foreign person as defined in Section 1445(f)(3)
of the Internal Revenue Code of 1986, as amended.
(p) To Seller's best knowledge, no asbestos, PCBs or urea
formaldehyde were used in the construction of the improvements on the Property.
(q) To Seller's best knowledge, the Property complies with all
applicable requirements of the Equal Opportunity for Individuals Act (ADA), 42
U.S.C. 12101 and the regulations promulgated and set forth at 28 CFR 36.401 ET
SEQ.
(r) The survey, mechanical and structural plans and specifications,
soils reports, certificates of occupancy, warranties, operating statements,
income and expense reports and all other books and records relating to or
affecting the Property, and all other contracts or documents delivered to Buyer
pursuant to this Agreement or in connection with the execution hereof are and at
the time of Closing will be true and correct copies, are and at the time of
Closing will be in full force and effect and contain no inaccuracies or
misstatements of fact, and all such documents relating to or affecting the
Property have been or will be delivered to Buyer pursuant to this Agreement.
25.
(s) To Seller's best knowledge, no representation, warranty or
statement of Seller in this Agreement or in any document, certificate, exhibit
or schedule furnished or to be furnished to Buyer pursuant to this Agreement or
in connection with the transactions contemplated hereby contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements or facts contained therein
misleading. All such representations, warranties or statements of Seller are
based upon current, accurate and complete information as of the time of their
making and to Seller's best knowledge there has been no adverse material change
in such information subsequent thereto.
(t) The copies of the Leases delivered to Buyer are true and correct
copies of all such Leases and are in full force and effect and there are no
other agreements, written or oral, with respect to the tenancies. There are no
unpaid amounts due and owing by Seller under any such Lease, except for amounts
for which Buyer is to receive full credit through proration at Closing. No
Tenant under any of the Leases has prepaid any rent or other charges for more
than the current month. No Tenant under any of the Leases has any right or
option to purchase the Property or any portion thereof or interest therein, and
there are no outstanding agreements of sale with respect to the Property or any
portion thereof or any interest therein. Except as provided in the Leases, no
Tenant has the right to renew or extend any of the Leases or has any options or
rights of first refusal with respect to leasing of other space, and no Tenant
has the right to free rent, rebate, allowance, concession, security or other
deposit.
(u) The copies of the Contracts and all Information previously
delivered to Buyer are true and correct copies of all such Contracts and
Information and are in full force and effect. There are no unpaid amounts due
and owing by Seller under any such Contract, except for amounts for which Buyer
is to receive full credit through proration at Closing. There are no other
service or maintenance contracts relating to the Property.
(v) Except as disclosed in writing to Buyer, there are no
commissions, finder's fees or other compensation owing or which may become owing
to any broker or any other person or entity with respect to any Lease or
occupancy agreement including, without limitation, any such compensation with
respect to any future renewals, extensions or expansions thereof.
(w) Seller is not party to, or otherwise bound by, any collective
bargaining agreement or multi-employer pension fund covering employees who
service the Property.
26.
(x) There is no current labor dispute with any maintenance or other
personnel or employees of Seller or any contracts with respect to the Property
which could adversely affect the use, operation or value of the Property.
(y) To the best knowledge of Seller, Seller has obtained all
licenses, permits, approvals, easements and rights of way required from all
governmental authorities having jurisdiction over the Property or from private
parties for the normal use and operation of the Property and to ensure free and
unimpeded vehicular and pedestrian ingress to and egress from the Property as
required to permit the normal intended usage of the Property by the tenants
thereof, their invitees and customers. Seller has materially complied with all
such licenses and permits and has not received any notice that any such licenses
or permits will not be renewed upon expiration, or of any material conditions
which will be imposed in order to receive any such renewal.
(z) Seller knows of no facts nor has Seller failed to disclose to
Buyer any fact which would prevent Buyer from using and operating the Property
after Closing in the manner in which the Property has been used, leased and
operated prior to the date hereof.
(aa) Seller has not committed nor obligated itself in any manner
whatsoever to sell the Property to any party other than Buyer. Seller has not
hypothecated or assigned any rents or income from the Property in any manner,
other than pursuant to the Existing Loan.
(bb) Seller shall hold as confidential all information concerning
Buyer or the transaction contemplated hereby disclosed to Seller in connection
with said transaction; and Seller shall not, prior to Closing, release any such
information to third parties without Buyer's prior written consent, except
pursuant to a court order requiring such release or as otherwise may be required
by law.
(cc) Seller represents and warrants to Buyer that Seller, during any
period of time that Seller held title to or otherwise controlled the Property,
has not caused or permitted any Hazardous Material to be brought upon, kept, or
used in or about the Property by Seller, or to Seller's best knowledge, any
tenant of the Property, or to Seller's best knowledge, any of their respective
agents, employees, contractors or invitees, except for Hazardous Materials which
are necessary or convenient to the operation of the businesses currently
operated on the Property and which at all times have been used, kept and stored
in a manner that complies with all laws regulating any such Hazardous Material
so brought upon or used or kept in or about the Property.
Except for the representations and warranties made by Seller pursuant to
this Section 10.2, and without limiting same, Buyer will decide whether or not
to purchase the Property and accept same in its "as-is" condition, with all
faults, based upon its
27.
own inspections and analysis of the Property as allowed pursuant to the terms
and provisions of this Agreement.
10.3 CONTINUATION AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties by the respective parties contained in this
Article 10 are intended to and shall remain true and correct as of the time of
the Closing, shall be deemed to be material, and shall survive the execution and
delivery of this Agreement, the delivery of the Deed and transfer of title to
the Property for a period of one (1) year following the Closing Date.
ARTICLE XI
POSSESSION
Possession of the Property shall be delivered to Buyer immediately
following the Closing, subject to the rights of Tenants.
ARTICLE XII
OPERATION OF THE PROPERTY
During the Escrow Period, Seller shall not accept any payment of rent
(except as a security deposit) or other charges from any tenant of the Property
applicable to a period exceeding one (1) month in advance, nor apply any
security deposit to rent due from any tenant of the Property without in each
case obtaining Buyer's prior written consent thereto (which consent shall not be
unreasonably withheld or delayed by Buyer). In addition to the foregoing,
Seller: (i) shall manage, maintain, operate, and service the Property consistent
with standards in the industry for the first class operation of similar projects
of comparable quality in the same area as the Property is located, maintaining
present services; (ii) shall keep the Property and every portion thereof in
reasonably good working order and repair; (iii) shall maintain a sufficient
inventory of supplies, materials, equipment and other personal property for the
proper management, maintenance, operation and servicing of the Property; and
(iv) shall not, except with Buyer's prior written consent (which consent shall
not be unreasonably withheld or delayed by Buyer), approve, consent to, or
otherwise permit any material change in the operations of the Property during
the Escrow Period, including, without limitation:
(a) any material alterations to the Improvements except as may be
necessary in order to perform ordinary, scheduled maintenance;
(b) cancellation of or material reduction in the amount or scope of
coverage under any insurance currently maintained with respect to the Property;
28.
(c) cancellation or surrender of any existing Permit; and
(d) any other material variation from Seller's ordinary course of
business in connection with the Property.
ARTICLE XIII
LOSS BY FIRE OR OTHER CASUALTY; CONDEMNATION
13.1 DAMAGE OR DESTRUCTION.
(a) Before the Closing, risk of loss with regard to the Property
shall be borne by Seller. If, before the Closing, the Improvements or the
Personal Property are destroyed or materially damaged, Buyer's rights and
obligations with respect to the Property shall be as follows:
(i) if the destruction or damage involves a diminution in value
equal to or less than $500,000.00 (the "DIMINUTION THRESHOLD"), Buyer shall be
obligated to proceed to close the transaction (subject to satisfaction of the
other provisions hereof) and, if, but only if, Escrow actually closes, Buyer
shall receive a credit against the Purchase Price equal to the lesser of (A) the
cost to repair the damage or destruction and (B) the amount of the deductible
under Seller's casualty insurance policy; or
(ii) if the destruction or damage involves a diminution in value
of more than the Diminution Threshold, Buyer shall have the option (which must
be exercised by Buyer within fifteen (15) calendar days after Buyer's receipt of
written notice from Seller advising of such destruction or damage), to terminate
this Agreement or to proceed with the Closing and, if Buyer elects to proceed
with Closing, Buyer shall receive a credit against the Purchase Price equal to
the lesser of (A) the cost to repair the damage or destruction and (B) the
amount of the deductible under Seller's casualty insurance policy.
(b) If Buyer and Seller cannot agree as to the diminution in value,
then such diminution in value shall be determined by subtracting from the
Purchase Price the fair market value of the Property after the damage, as
determined by ________________, M.A.I. or, if _________________, M.A.I. is
unable to undertake such appraisal, ___________________, M.A.I. The expense of
the appraiser shall be borne equally by Buyer and Seller.
(c) If Buyer is obligated or elects to proceed to close the
transaction under either subsection (a)(i) or (a)(ii) above, all casualty
insurance proceeds from
29.
Seller's casualty insurance policy shall be assigned by Seller to Buyer at the
Closing and forwarded to Buyer immediately upon receipt thereof by Seller.
(d) If Buyer elects to terminate this Agreement under subsection
(a)(ii) above, this Agreement shall become null and void and of no further force
or effect and, except as provided in SECTIONS 5.2, 15.2(b) and 15.10 hereof,
neither Buyer nor Seller shall have any further rights, duties, liabilities or
obligations to the other by reason thereof, other than those rights and
obligations that, by their terms, survive termination of this Agreement. In the
event of such termination, the costs of the Title Company and Escrow Holder
shall be borne equally by Buyer and Seller. Also, each party shall bear its own
costs incurred hereunder.
13.2 CONDEMNATION.
(a) If, before the Closing, all of the Property shall be taken by
condemnation or eminent domain, this Agreement shall become null and void and of
no further force or effect and, except as provided in SECTIONS 5.2, 15.2(b) and
15.10 hereof, neither Buyer nor Seller shall have any further rights, duties,
liabilities or obligations to the other by reason hereof, other than those
rights and obligations that, by their terms, survive the termination of this
Agreement. In the event of such termination, the costs of the Title Company and
Escrow Holder shall be borne equally by Buyer and Seller. Also, each party
shall bear its own costs incurred hereunder.
(b) If, before the Closing, (i) less than all of the Property shall
be taken by condemnation or eminent domain, (ii) there is any taking of land
lying in the bed of any street, road, highway or avenue, open or proposed, in
front of or adjoining all or any part of the Land, or (iii) there is any change
of grade of such street, road, highway or avenue, provided such taken or change
of grade involves a diminution in value of more than the Diminution Threshold,
then Buyer, at Buyer's option, may terminate this Agreement. If Buyer elects to
terminate this Agreement under this subsection (b), this Agreement shall become
null and void and of no further force or effect and, except as provided in
SECTIONS 5.23, 15.2(b) and 15.10 hereof, neither Buyer nor Seller shall have any
further rights, duties, liabilities or obligations to the other by reason
hereof, other than those rights and obligations that, by their terms, survive
the termination of this Agreement. In the event of such termination, the costs
of the Title Company and Escrow Holder shall be borne equally by Buyer and
Seller. Also, each party shall bear its own costs incurred hereunder.
(c) If Buyer and Seller cannot agree as to the diminution in value,
then such diminution in value shall be determined by subtracting from the
Purchase Price the fair market value of the Property after the taking, as
determined by ______________________, M.A.I. or, if _________________, M.A.I. is
unable to undertake
30.
such appraisal, ___________________, M.A.I. The expense of the appraiser shall
be borne equally by Buyer and Seller.
(d) If this Agreement is not terminated in accordance with the
foregoing, or if such taking involves a diminution in value equal to or less
than the Diminution Threshold, Buyer shall accept title to the Property subject
to such taking. In such event, Buyer shall receive a credit against the cash
portion of the Purchase Price in amount of the diminution in value.
ARTICLE XIV
AUDIT RESPONSIBILITIES AND LIABILITIES
From time to time, both before and after Closing, Buyer may be engaged in
financing and other transactions which will require that both Buyer and the
operation of the Property be audited as to then current and past operations of
the Property, including periods of time during which Seller owned the Property.
As a material inducement for Buyer to enter into this Agreement, Seller agrees
that upon written request of Buyer, Seller shall render its timely and
cooperative efforts to any such auditors in delivering such responses to
inquiries and information as is within the knowledge or records of Seller with
respect to the operations of the Property or which is within the control or
reasonable ability of Seller to obtain, including, without limitation, operating
statements and other financial information relevant to the Property and its
operations. In addition to the foregoing, Seller shall sign and deliver to any
such auditor, such auditor's standard representation letter with respect to the
foregoing matters, revised by Seller only to the extent necessary to make same
true and correct as to the matters represented by Seller therein.
Buyer shall pay all reasonable out-of-pocket costs and expenses incurred by
Seller in complying with the requirements of this Article 14. The terms and
provisions of this Article 14 shall survive the Closing.
ARTICLE XV
MISCELLANEOUS
15.1 NOTICES. Any communication, notice or demand of any kind whatsoever
that either party may be required or may desire to give to or serve upon the
other shall be in writing, addressed to the parties at the addresses set forth
below, and delivered by personal service, by Federal Express or other reputable
overnight delivery service, by facsimile transmission, or by registered or
certified mail, postage prepaid return receipt requested:
31.
If to Seller: PICO Associates
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: J. ▇▇▇▇▇▇ ▇▇▇
General Partner
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
If to Buyer: Pan Pacific Development (U.S.) Inc.
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
President and Chief Executive Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Hale, Lane, Peek, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ and Pearl
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any such notice shall be deemed delivered as follows: (a) if
personally delivered, the date of delivery to the address of the person to
receive such notice; (b) if sent by Federal Express or other reputable overnight
courier service, the date of delivery to the address of the person to receive
such notice; (c) if sent by facsimile transmission, on the Business Day
transmitted to the person to receive such notice if sent by 5:00 p.m.,
California time, on such Business Day, and the next Business Day
32.
if sent after 5:00 p.m., California time, or on a day other than a Business
Day; or (d) if mailed, three (3) calendar days after depositing same in the
mail. Any notice sent by facsimile transmission must be confirmed by
personally delivering or mailing a copy of the notice sent by facsimile
transmission. Any party may change its address for notice by written notice
given to the other at least five (5) calendar days before the effective date
of such change in the manner provided in this SECTION 15.1.
15.2 BROKERS AND FINDERS.
(a) Seller shall pay a brokerage commission to ▇▇▇▇▇▇▇▇ & ASSOCIATES,
INC. if, but only if, the sale contemplated herein actually closes pursuant to
the terms of a separate agreement between Seller and ▇▇▇▇▇▇▇▇ & ASSOCIATES, INC.
Escrow Holder is hereby instructed to pay to ▇▇▇▇▇▇▇▇ & Associates at Closing a
brokerage commission equal to one and one-quarter percent (1.25%) of the
Purchase Price from Seller's proceeds. Buyer shall pay a brokerage commission
to N/A if, but only if, the sale contemplated herein actually closes pursuant to
the terms of a separate agreement between Buyer and N/A. Other than ▇▇▇▇▇▇▇▇ &
ASSOCIATES, INC. and N/A, Buyer and Seller each represents to the other that it
has not dealt with any other broker or agent in connection with the proposed
purchase and sale of the Property.
(b) In the event of a claim for broker's fees, finder's fees,
commissions or other similar compensation in connection herewith: (I) Buyer, if
such claim is based upon any agreement alleged to have been made by Buyer, shall
indemnify, defend (using counsel reasonably satisfactory to Seller) and hold
Seller harmless from and against any and all damages, liabilities, costs,
expenses and losses (including, without limitation, attorneys' fees and costs)
that Seller sustains or incurs by reason of such claim; and (ii) Seller, if such
claim is based upon any agreement alleged to have been made by Seller, shall
indemnify, defend (using counsel reasonably satisfactory to Buyer) and hold
Buyer harmless from and against any and all damages, liabilities, costs,
expenses and losses (including, without limitation, attorneys' fees and costs)
that Buyer sustains or incurs by reason of such claim. The provisions of this
subsection shall survive the termination of this Agreement or the Closing.
15.3 SUCCESSORS AND ASSIGNS. Seller may assign its rights and obligations
hereunder. Buyer's interest under this Agreement may be assigned to an
affiliate of Buyer provided Buyer guarantees in writing to Seller the full
performance by such affiliate of Buyer's obligations hereunder. All other
assignments of Buyer's interest shall be subject to the prior written consent of
Seller, which consent shall not be withheld unreasonably. This Agreement shall
be binding upon, and inure to the benefit of, the parties hereto and their
respective heirs, administrators and permitted successors and assigns.
33.
15.4 AMENDMENTS. This Agreement may be amended or modified only by a
written instrument executed by both parties.
15.5 INTERPRETATION. Words used in the singular shall include the plural,
and vice-versa, and any gender shall be deemed to include the other. The
captions and headings of the Articles and Sections of this Agreement are for
convenience of reference only, and shall not be deemed to define or limit the
provisions hereof. Further, each party hereby acknowledges that such party and
its counsel, after negotiation and consultation, have reviewed and revised this
Agreement. As such, the terms of this Agreement shall be fairly construed and
the usual rule of construction, to the effect that any ambiguities herein should
be resolved against the drafting party, shall not be employed in the
interpretation of this Agreement or any amendments, modifications or exhibits
hereto or thereto.
15.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada.
15.7 MERGER OF PRIOR AGREEMENTS. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous oral or written representations,
warranties, statements, documents, understandings and agreements with respect
thereto.
15.8 ATTORNEYS' FEES AND COSTS. If either Buyer or Seller brings any suit
or other proceeding with respect to the subject mater or the enforcement of this
Agreement, the prevailing party (as determined by the court, agency or other
authority before which such suit or proceeding is commenced), in addition to
such other relief as may be awarded, shall be entitled to recover reasonable
attorneys' fees, expenses and costs of investigation actually incurred. The
foregoing includes, without limitation, attorneys' fees, expenses and costs of
investigation incurred in appellate proceedings, costs incurred in establishing
the right to indemnification, or in any action or participation in, or in
connection with, any case or proceeding under Chapter 7, 11 or 13 of the
Bankruptcy Code, 11 United States Code Section 101 ET SEQ., or any successor
statutes.
15.9 TIME OF ESSENCE. Time is of the essence of this Agreement.
15.10 CONFIDENTIALITY. Buyer and Seller agree that, to the extent
reasonably practical, they shall keep the contents of this Agreement and the
contents of any environmental report prepared by or for Buyer in connection with
this Agreement confidential and that no publicity or press release to the
general public or otherwise with respect to this transaction shall be made by
either party without the prior written consent of the other party (which consent
may be given or denied in the
34.
other party's sole and absolute discretion). The confidentiality provisions of
this SECTION 15.10 shall survive the Closing.
15.11 NO WAIVER. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party make the waiver.
15.12 FURTHER ACTS. Each party, at the request of the other, shall
execute, acknowledge (if appropriate) and deliver whatever additional documents,
and do such other additional acts, as may be reasonably required in order to
accomplish the intent and purposes of this Agreement.
15.13 EXHIBITS. EXHIBITS A through I, inclusive, are attached hereto
and incorporated herein by reference.
15.14 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but all
of which, when taken together, shall constitute one and the same instrument,
with the same effect as if all of the parties to this Agreement had executed the
same counterpart. Any signature page of any counterpart of this Agreement may
be detached and reattached to any other counterpart of this Agreement.
15.15 NO INTENT TO BENEFIT THIRD PARTIES. Seller and Buyer do not
intend by any provision of this Agreement to confer any right, remedy or benefit
upon any third party, and no third party shall be entitled to enforce, or
otherwise shall acquire any right, remedy or benefit by reason of, any provision
of this Agreement.
15.16 PERFORMANCE DUE ON DAY OTHER THAN BUSINESS DAY. If the time
period for the performance of any act called for under this Agreement expires on
a Saturday, Sunday or Holiday, the act in question may be performed on the next
succeeding Business Day.
15.17 JOINT AND SEVERAL OBLIGATIONS. If Buyer or Seller is comprised
of more than one person or entity, then all persons or entities that comprise
Buyer and Seller, as applicable, shall be jointly and severally liable for all
the covenants, agreements, and obligations of Buyer or Seller, as the case may
be, contained in this Agreement.
35.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates written below.
"SELLER"
PICO ASSOCIATES,
a Nevada general partnership
Dated: /s/ J. ▇▇▇▇▇▇ ▇▇▇
--------------- ---------------------------------------
By: J. ▇▇▇▇▇▇ ▇▇▇
Its: General Partner
/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇
Its: General Partner
Dated: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------- ---------------------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: General Partner
"BUYER"
PAN PACIFIC DEVELOPMENT (U.S.) INC.,
a Delaware corporation
Dated: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------- ---------------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: President & Chief Executive Officer
36.