EXHIBIT 10.111
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
Escrow Number: _____________________
Date: May 12, 2006
This Purchase Agreement and Escrow Instructions ("Agreement") is entered into
between Seller and Buyer for the purpose of setting forth the agreement of the
Parties and instructing Escrow Agent, with respect to the transaction
contemplated by this Agreement. For and in consideration of the mutual
undertakings set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree
as follows:
1. IDENTITY OF PARTIES. The Parties to this Agreement, which shall be referred
to hereinafter as "Buyer", "Seller", "Escrow Agent", as indicated below, or
Buyer or Seller as a "Party" or Buyer and Seller as the "Parties", are as
follows:
Buyer: Kierland Crossing LLC
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Seller: Kierland Crossing Residential, LLC
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Escrow Agent: Flagler Title Insurance Company
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
2. SALE AND ESCROW. Seller is the owner of that certain real property (the "Real
Property") identified and legally described in Exhibit A attached hereto,
together with all rights, benefits, easements, rights of way and appurtenances
thereto and buildings, structures and other improvements constructed or to be
constructed thereon (the "Improvements" and, together with the Real Property,
the "Property"). Seller has or by Closing will submit the Real Property into a
Master Condominium Plan to be known as Kierland Crossing (the "Master
Condominium"). Seller, prior to Closing will further submit portions of the Real
Property into three condominiums (each a "Tract Condominium" and, together with
the Master Condominium, the "Condominium").
Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller certain
units (each a "Unit" and collectively, the "Units") in the Condominium for the
Aggregate Purchase Price (as defined below) and upon the terms and conditions
set forth in this Agreement. The Units will consist of, in the aggregate, not
less than 70,000 square feet of floor space area, to be remeasured prior to
Closing in accordance with Section 3 below.
As used in this Agreement, the term "Effective Date" means the date on which
Seller accepts and executes this Agreement, as indicated on the signature page
of this Agreement. The date shown on the first page of this Agreement is
included for reference purposes only and may or may not be the same as the
Effective Date.
To facilitate the sale and purchase of the Units, Seller and Buyer agree to
establish an escrow (the "Escrow") with Escrow Agent. For purposes of this
Agreement, the "Opening of Escrow" shall mean the date on which the Initial
▇▇▇▇▇▇▇ Money (as defined in Section 3) and a copy of this Agreement, executed
by Seller and Buyer, are delivered to and accepted by Escrow Agent.
This Agreement together with any supplemental instructions that the parties may
agree to in writing shall constitute the Escrow Instructions to Escrow Agent.
3. TERMS OF SALE.
(a) The purchase price to be paid by Buyer to Seller for any Unit (the
"Purchase Price") shall be based on a price of $181 per square foot of the Unit
Gross Floor Area (defined below). Notwithstanding the foregoing, if the Seller
does not construct the Units within five (5) years of the Effective Date, the
Purchase Price shall be increased on each anniversary of the Effective Date
thereafter by four percent (4%). For purposes of calculating the Purchase Price,
the gross floor area of a Unit shall be the sum of the gross floor area of each
building within such Unit, measured to the exterior surface of the perimeter
walls of the applicable building and to the center of any demising wall
separating the building from another building or any common corridors, hallways
or service rooms in the Condominium, regardless of the legal boundaries of the
Unit as shown on the Plat or described in the Declaration and regardless of
actual as-built dimensions of the Unit or any building within such Unit (each
the "Unit Gross Floor Area" and, collectively, the "Gross Floor Area"). The
aggregate purchase price for all Units shall be equal to the product of $181 (as
adjusted pursuant to this Section) multiplied by the Gross Floor Area (the
"Aggregate Purchase Price"). Prior to the commencement of construction of the
Included Improvements for any Unit, Buyer shall deposit with the Escrow Agent an
amount equal to ten percent of the Purchase Price of such Unit (the "▇▇▇▇▇▇▇
Money"). Escrow Agent, at Buyer's election and cost, may deposit all funds
deposited in the Escrow by Buyer in an interest-bearing account in a federally
insured commercial bank. Upon Closing, the ▇▇▇▇▇▇▇ Money for such Unit, together
with any interest earned thereon, shall be applied to the Purchase Price for
such Unit. On or before Closing, Buyer shall deposit the balance of the Purchase
Price for such Unit in full by wire transfer, or by cashiered, certified or
teller check, provided that such check is deposited in the Escrow at least one
(1) business day prior to Closing.
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(b) Buyer acknowledges that the Units do not include any parking spaces and
that Buyer will be required to provide for any parking spaces necessary for the
use and operation of the Units for their intended purpose in accordance with the
requirements of the City of Scottsdale.
4. CONDOMINIUM DOCUMENTS. Prior to commencement of construction of the Included
Improvements, Seller shall deliver to Buyer drafts the Declaration of Covenants,
Conditions and Restrictions for the Master Condominium (the "Master
Declaration"), the Condominium Plat for the Master Condominium ("Master Plat"),
and the Articles of Incorporation and Bylaws for the Master Condominium
association (collectively, the "Master Association Documents"), to be formed
pursuant to the terms of the Master Declaration, and the Declaration of
Covenants, Conditions and Restrictions for each Condominium (the "Declaration"),
the Condominium Plat for each Condominium ("Plat"), and the Articles of
Incorporation ("Articles") and Bylaws ("Bylaws") for the each respective
Condominium association (collectively, the "Association"), to be formed pursuant
to the terms of the Declaration (collectively, the Master Declaration, Master
Plat, Master Association Documents, Declaration, Plat, Articles of
Incorporation, Bylaws and the Shell Space Criteria described in and any rules,
regulations adopted pursuant to the Declaration or the Master Declaration are
referred to herein as the "Condominium Documents"). Buyer shall have the right
to review the Condominium Documents and may provide commercially reasonable
objections to any provision of any Condominium Documents that Buyer determines
will adversely affect the use, management or operation of the respective Unit
for Buyer's intended purpose. Buyer shall provide written notice of such
objection to Seller on or before twenty (20) business days after the date of
Buyer's receipt of the last Condominium Document for each respective
Condominium, said notice to specify in reasonable detail any matter to which
Buyer objects. If Buyer gives any notice of objection to any matter contained in
the Condominium Documents, then Seller shall, within ten (10) days after the
date such notice of objection is given, either (i) resubmit such Condominium
Documents with the appropriate revisions requested by Buyer duly made or (ii)
provide notice to Buyer of its refusal to make any such change. In the event
Seller fails to provide notice under subsection (ii) above, Seller will be
deemed to have elected not to modify the Condominium Documents.
In the event Buyer approves of the Condominium Documents pursuant to this
Section 4, Seller will provide Buyer with any proposed changes to the
Condominium Documents for Buyer's approval. If Buyer does not approve the
Condominium Documents or any changes to any previously approved Condominium
Documents, Buyer may terminate its obligations under this Agreement in
accordance with Section 22 below.
Buyer acknowledges that following the Closing, Buyer shall be a member of the
Association, and subject to the jurisdiction of and assessment by the
Association in accordance with the Condominium Documents. Buyer agrees to abide
by all of the terms and provisions of the Condominium Documents, as the same may
be amended from time to time. Buyer acknowledges that the Master Association and
Association, as applicable, are each a "Party" responsible for the Master
Condominium and Condominium, respectively, and in that role each will be
allocated a share of various expenses as set forth in the Condominium Documents,
with those expenses to be collected by through assessment of the owners of
condominium units, including Buyer as the owner of the respective Unit, all as
set forth in the Condominium Documents.
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The Condominium Documents are superior to all right, title and interest of Buyer
in and to the Units and Buyer's rights in and to the Units shall be subject to
and subordinate to the terms, covenants, conditions and provisions of the
Condominium Documents.
Buyer expressly agrees and acknowledges that any additions, alterations or other
changes to the Units are subject to the terms and provisions of the Condominium
Documents. Without limiting the generality of the foregoing, all proposed
additions, alterations or other changes to the Units must comply with the
standards and specifications set forth in the Shell Space Criteria described in
the Declaration, and all construction and installation work must comply with the
procedures and requirements of the Shell Space Criteria for all purposes.
Without limiting the foregoing, Buyer also acknowledges that if Buyer desires to
make any additions, alterations or improvements within the Units following the
Closing, Buyer shall first obtain all necessary approvals, permits and licenses
required for such work from Condominium Documents and all applicable municipal,
governmental or quasi-governmental agencies having jurisdiction over the Units.
Buyer shall be responsible for any damage to other units and the Common Elements
of the Condominium that results from any such additions, alterations or
improvements.
5. TITLE REVIEW CONTINGENCY.
(a) On or prior to the Opening of Escrow, Escrow Agent shall deliver to
Buyer and Seller a commitment issued by Escrow Agent for a standard coverage
owner's policy of title insurance to be issued to Buyer in the amount of the
Purchase Price (the "Title Commitment"), together with legible copies of all
documents listed as exceptions to coverage on Schedule B of the Title
Commitment. Buyer shall have the right to object to any liens, judgments or
encumbrances disclosed by the Title Commitment by giving written notice of such
objection to Seller and Escrow Agent on or before ten (10) business days after
the date of Buyer's receipt of the Title Commitment, said notice to specify in
reasonable detail any matter to which Buyer objects, provided however, Buyer
will have no right to object to any easements, covenants, or restrictions which
were of record on the Effective Date or this Agreement, nor shall Buyer have the
right to object to any Condominium Documents approved by Buyer under Section 4.
If Escrow Agent subsequently issues any amendment to the Title Commitment
disclosing any additional title exceptions or changes in the legal description
or additional requirements of Buyer, Buyer shall be entitled to object to any
such matter by giving written notice of such objection to Seller and Escrow
Agent on or before five (5) business days after Escrow Agent has delivered to
Buyer the amendment to the Title Commitment, said notice to specify in
reasonable detail any matter to which Buyer objects. It is the intent of Buyer
and Seller that Buyer's right to object to any exception to title and its right
to terminate this Agreement for title matters, as provided within Section 5(b),
shall be limited to commercially reasonable matters and only exercised in good
faith. Notwithstanding anything herein to the contrary, prior to Closing, Seller
shall be obligated to satisfy all monetary liens and all liens, judgments or
encumbrances that can be cured by the payment of a sum certain.
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(b) If Buyer gives any notice of objection to any matter contained in the
Title Commitment, or any amendment thereto, then Seller shall, within five (5)
days after the date such notice of objection is given, give written notice to
Buyer and Escrow Agent whether Seller is willing to remove or satisfy such
matter objected to by Buyer on or before the Closing Date. If Seller indicates
it unwillingness to remove any matter objected to by Buyer on or before the
Closing, Buyer, within five (5) business days after receipt of such written
notice from Seller, shall notify Seller and Escrow Agent in writing of Buyer's
election to either: (i) terminate this Agreement; or (ii) waive Buyer's
objections and proceed with the purchase of the Units.
(c) Failure by Seller to timely notify Buyer and Escrow Agent of its
unwillingness to remove such objections before the Closing shall be deemed to
constitute an indication of Seller's unwillingness to remove or satisfy such
objections prior to the Closing.
6. CLOSING. The completion of the purchase of any Unit by Buyer and the closing
of Escrow for such Unit (the "Closing") shall occur at the office of Escrow
Agent on or before ten (10) days after the receipt by Seller of a certificate of
shell completion issued by the City for such Unit. The date of the Closing may
be referred to in this Agreement as the "Closing Date." Seller and Buyer each
authorize Escrow Agent to execute on their behalf the Affidavit of Property
Value required by Arizona law.
On or before the Closing Date, Seller shall deposit with Escrow Agent:
(a) The Special Warranty Deed;
(b) Certificate of Non-Foreign Affidavit pursuant to ss.1445 of the
Internal Revenue Code;
(c) All keys and/or means to operate all locks and alarms on the Included
Improvements;
(d) A written acknowledgement of Seller's approval of Escrow Agent's final
settlement statement; and
(e) Such documentation as is reasonably satisfactory to Escrow Agent and
Buyer evidencing that Seller and any individuals signing on behalf of Seller
have the full power and authority to execute and deliver this Agreement and all
documents and instruments required or contemplated hereby;
On or before the Closing Date, Buyer shall deposit with Escrow Agent:
a. All the Closing and additional costs or expenses payable by Buyer;
b. all sales tax and transaction privilege taxes applicable to this sale;
and
c. A written acknowledgement of Buyer's approval of Escrow Agent's final
settlement statement; and
d. Such documentation as is reasonably satisfactory to Escrow Agent and
Seller evidencing that Buyer and any individuals signing on behalf of Buyer have
the full power and authority to execute and deliver this Agreement and all
documents and instruments required or contemplated hereby;
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Seller and Buyer each shall pay one half (1/2) of the escrow fees. All recording
fees and other fees payable in connection with the Closing shall be paid by
Seller or Buyer in accordance with the custom and practice for commercial real
estate sales in Maricopa County, Arizona, as determined by Escrow Agent. All
real property taxes for the year in which the Closing occurs shall be prorated
as of the Closing Date based on the most recent tax rate, and all improvement
district assessments levied against the Unit which become due and payable during
the year in which the Closing occurs shall be prorated as of the Closing Date;
provided, however, that if the Closing is delayed because of a default by Buyer,
all real property taxes and improvement district assessments affecting the Unit
shall be prorated as of the date for the Closing set forth in this Section
regardless of the actual date of the Closing. For proration purposes, real
property taxes and assessments on the land and the Building within the
Condominium shall be allocated between the units in the Building on the basis of
the relative square footages of the Units. Buyer's share of taxes and
assessments for the Unit for the remainder of the year in which Closing occurs
shall be paid to the Association at Closing, so that the Association may pay the
tax ▇▇▇▇ when due.
Except in the case of a delay in the Closing caused by default of Seller, Seller
shall not have any responsibility for any costs, expenses, liabilities, losses
or damages incurred by Buyer as a result of any delay in the Closing, including,
but not limited to, increased financing costs.
7. UTILITIES. Buyer acknowledges that Buyer shall be solely responsible for
arranging for all utilities, including electrical service and telephone service
to be turned on to the Units.
8. CONVEYANCE AND TITLE INSURANCE. Title to the Unit shall be conveyed to Buyer
at the Closing for such Unit by special warranty deed, a form of which is
attached hereto as Exhibit B ("Special Warranty Deed"), subject to all matters
of record. At the Closing, Escrow Agent shall deliver to Buyer an irrevocable
commitment to issue to Buyer following the Closing, a standard owner's policy of
title insurance in the amount of the Purchase Price, insuring that fee title to
the Unit is vested in Buyer subject to: (a) taxes and improvement district
assessments not due and payable on or before the Closing; (b) the REMA, Plat and
the Declaration and all amendments thereto; and (c) any other matters of record
affecting the Unit approved or deemed approved by Buyer pursuant to Section 5.
If Buyer elects to obtain any title endorsements or an extended coverage title
insurance policy, any additional premiums, requirements and/or costs for any
such endorsements and/or an extended coverage title insurance policy shall be
paid by Buyer. The issuance of any title endorsements or extended coverage
requested by Buyer shall not be a condition precedent to the Closing.
9. INCLUDED IMPROVEMENTS. Prior to commencement of construction of the Included
Improvements, Seller shall provide Buyer with a copy of all plans and
specifications (the "Preliminary Plans and Specifications") for the construction
of all improvements to be located on each Unit (the "Included Improvements"),
which Preliminary Plans and Specifications shall include the requirements shown
on Exhibit C attached hereto and shall provide for the Included Improvements to
include a minimum of 70,000 square feet of retail space architecturally
harmonious with any other improvements to be constructed on the Condominium with
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a standard of construction comparable or superior to the standard of
construction for projects similar in size, location and operation, including
without limitation, the project commonly referred to as Kierland Commons. Buyer
shall review the Preliminary Plans and Specifications and shall provide written
notice of (a) any failure of such Preliminary Plans and Specifications to meet
the requirements of Exhibit C, and (b) any other commercially reasonable
objection to the Preliminary Plans and Specifications to Seller on or before
twenty (20) business days after the date of Buyer's receipt of the Plans and
Specifications, said notice to specify in reasonable detail any matter to which
Buyer objects. If Buyer gives any notice of objection to any matter contained in
the Preliminary Plans and Specifications, then Seller shall, within ten (10)
days after the date such notice of objection is given, either (i) resubmit the
Preliminary Plans and Specifications with the appropriate revisions requested by
Buyer duly made or (ii) provide notice that Seller will not revise the
Preliminary Plans and Specifications. In the event Seller modifies the
Preliminary Plans and Specifications and Buyer approves of such modifications
(as approved, the "Plans and Specifications"), Seller shall cause the
construction of the Included Improvements in accordance with the Plans and
Specifications. If Seller fails to provide modified Preliminary Plans and
Specifications or notify Buyer that it will not modify the Preliminary Plans and
Specifications within the time frames provided above, Seller shall be deemed to
have elected to not modify the Preliminary Plans and Specifications and Buyer
may terminate its obligations under this Agreement in accordance with Section 22
below.
The Included Improvements constitute all of the improvements that Seller has
agreed or is obligated to construct for the benefit of Buyer and all other
improvements shall be made by and at the sole cost and expense of Buyer in
accordance with the requirements of the Condominium Documents. Without limiting
the generality of the foregoing, all improvements by or for Buyer shall comply
with the Shell Space Criteria described in Section 4 above.
The transaction contemplated by this Agreement has been an arms length
negotiation between Seller and Buyer. Other than the matters expressly
represented in this Agreement, Buyer has not relied upon and will not rely upon,
either directly or indirectly, any representation or warranty of Seller or any
of Seller's agents, employees or representatives, and Buyer hereby acknowledges
that no such representations or warranties have been made. Except for
representations of Seller expressly contained in this Agreement, Seller
specifically disclaims, and neither Seller nor any of Seller's members,
employees, agents or affiliates is making any representation, warranty or
assurance whatsoever to Buyer, and no warranties or representations of any kind
or character, either express or implied, are made by Seller or may be relied
upon by Buyer with respect to the status of title to, or the construction,
design, condition, marketability of, or any other matter pertaining to the
Units, the Common Elements of the Condominium or any other part of the
Condominium, it being the express intention of Seller and Buyer that, except as
expressly set forth in this Agreement with respect to the Included Improvements,
the Units will be conveyed and transferred to Buyer, and Buyer will accept the
Units, in its condition and state of repair as of the Closing, "AS-IS" and
"WHERE-IS" and with all faults and without any warranty express or implied.
10. SELLER COVENANTS. If Buyer approves the Preliminary Plans and
Specifications, Seller hereby covenants and agrees that:
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(a) Seller shall, without cost or expense to Buyer, commence or cause the
commencement of construction of the Included Improvements and shall continue
construction diligently to completion.
(b) By the Closing Date, Seller shall have completed or caused the
completion of construction of the Included Improvements. The Included
Improvements are deemed complete for all purposes of this Agreement when (i)
they have been substantially completed in accordance with the Plans and
Specifications, as evidenced by the written certification of an independent
architect in a form satisfactory to Buyer, (ii) Seller has provided Buyer with a
certificate of occupancy and/or any other approvals required to be issued by all
appropriate governmental authorities having jurisdiction over the Condominium in
order to permit occupancy of the Included Improvements, (iii) notice of
completion (recorded, when advisable or necessary under applicable law) and
passage of the requisite time without the filing of claims for mechanic's or
materialmen's liens, completion affidavit, or other evidence satisfactory to
Buyer that the Included Improvements are complete, are free of any lien not
otherwise identified in the Title Policy, and have been inspected by and
received final approval of the appropriate governmental authorities.
(c) Seller shall construct the Included Improvements in a good and
workmanlike manner in accordance with sound building practices and the Plans and
Specifications. Seller shall comply with all existing and future laws,
regulations, orders, building codes, restrictions and requirements of, and all
permits and approvals from, and agreements with and commitments to, all
governmental authorities having jurisdiction over the Condominium (collectively,
the "Requirements").
(d) Seller shall provide Buyer with copies of all change orders (for any
change in any work or materials for the Included Improvements, whether positive
or negative), together with all additional documents relating thereto that Buyer
may require. These documents may include the following: (i) plans and
specifications indicating the proposed change, and (ii) a written description of
the proposed change and related working drawings. Seller shall obtain Buyer's
prior written approval of any material change order. If Buyer does not approve
of any material change and Seller incorporates such material change, Buyer may
terminate its obligations under this Agreement in accordance with Section 22
below.
(e) Seller shall obtain shall obtain from the appropriate persons all
approvals of any changes in plans, specifications, work, materials or contracts
required by any of the Requirements (including those of any governmental
authority having jurisdiction over the Real Property) or under the terms of any
agreement relating to the Real Property, the Condominium or the Units.
(f) Buyer may take a reasonable time to evaluate any requests for proposed
changes and may require that all approvals required from other parties be
obtained before it reviews any requested change. Buyer may approve or disapprove
changes in its sole discretion.
(g) Seller shall obtain, comply with, and keep in effect all permits,
licenses, and approvals required from governmental authority in order to
construct the Included Improvements. Seller shall deliver copies of all such
permits, licenses, and approvals to Buyer within five (5) days after receipt
thereof.
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(h) Buyer and its agents and representatives shall have the right to enter
and visit the Real Property at any reasonable time for the purposes of
performing an inspection of, or observing the work of, construction and
examining all materials, plans, specifications, working drawings, and other
matters relating to the construction. In each instance, Buyer shall give Seller
reasonable notice before entering the Real Property and make reasonable efforts
to avoid interfering with Seller's use of the Real Property when exercising any
of the rights granted in this Section. If Buyer, in its reasonable judgment,
determines that the construction of the Included Improvements fails to conform
to the Plans and Specifications or sound building practices, or that such
construction otherwise departs from any of the requirements of this Agreement,
Buyer shall provide written notice of such determination to Seller. If Seller
does not correct such failure, Buyer may terminate its obligations under this
Agreement in accordance with Section 22 below.
(i) Buyer has no duty to visit the site or to supervise or observe
construction. Any site visit or observation by Buyer is solely for the purpose
of protecting Buyer's rights and interests. No site visit or observation by
Buyer shall impose any liability on Buyer or be a representation that Seller is
or will be in compliance with the Plans and Specifications, that the
construction is free from defective materials or workmanship, or that the
construction complies with all applicable Requirements. Neither Seller nor any
other party is entitled to rely on any site visit, observation, or examination
by Buyer. Buyer owes no duty of care to protect Seller or any other party
against, or to inform Seller or any other party of, any negligent or defective
design or construction of the Included Improvements or any other adverse
condition affecting the Real Property.
(j) Seller shall pay or otherwise promptly discharge all claims and liens
for labor done and materials and services furnished in connection with the
construction of the Included Improvements; provided, however, that Seller may,
by appropriate proceeding, contest the validity or amount of any asserted claim
or lien if the contested claim or lien is bonded or insured.
(k) Seller shall promptly provide to Buyer, at Seller's sole cost and
expense, (a) as-built plans and specifications for the Included Improvements as
actually completed, certified by an independent architect as being complete and
accurate, and/or (b) an as-built ALTA survey of the Condominiums and Included
Improvements in form and substance satisfactory to Buyer, certified by a
licensed land surveyor and showing the location of the completed improvements,
and all boundary lines, easements, rights of way, and other matters affecting
the Condominium.
(l) Seller shall promptly provide Seller with a copy of any material
notices or filings made by Seller with, or received by Seller from, any
government authority having jurisdiction over the Real Property.
11. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to
Buyer as of the date hereof and as of Closing as follows (which representations
and warranties shall survive Closing for six (6) months):
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(a) The execution and delivery of this Agreement and all documents to be
executed and delivered as required hereby, constitute legal, valid, and binding
obligations of Seller, enforceable against Seller in accordance with their
respective terms.
(b) The execution, delivery and performance of this Agreement by Seller,
and all other documents and instruments executed or delivered in connection with
the transactions contemplated hereby, do not and will not, violate, conflict
with, or contravene any provision of, the corporate charter, bylaws or other
organizational documents of Seller, or any judgment, order, decree, writ or
injunction, or any law, rule or regulation to which Seller is subject, nor
result in any breach of, or constitute a default under, or require separate
consent pursuant to, any loan or credit agreement, lease, indenture, mortgage,
deed of trust, purchase agreement, guaranty, contract or other instrument to
which Seller is a party or by which Seller or any of the Real Property is bound.
(c) Seller has not (i) made a general assignment for the benefit of its
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition in bankruptcy by Seller's creditors, (iii)
suffered the appointment of a receiver to take possession of all or
substantially all of Seller's assets, (iv) suffered the attachment or other
judicial seizure of all or substantially all of Seller's assets, (v) admitted in
writing its inability to pay its debts as they become due, or (vi) made an offer
of settlement, extension or composition to its creditors generally.
(d) There is no litigation, investigation or proceeding pending or, to the
best of Seller's actual knowledge, contemplated or threatened against Seller
which would impair or adversely affect Seller's ability to perform its
obligations under this Agreement or any other instrument or document related
hereto.
(e) There are no leases or other agreements for the use or occupancy of all
or any portion of any Unit to which Seller is a party or by which Seller is
bound.
12. COVENANTS, REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as of the date hereof and on the Closing as follows:
(a) The execution and delivery of this Agreement and all documents to be
executed and delivered as required hereby, constitute legal, valid, and binding
obligations of Buyer, enforceable against Buyer in accordance with there
respective terms.
(b) The execution, delivery and performance of this Agreement by Buyer and
all other documents and instruments executed or delivered in connection with the
transactions contemplated hereby, do not and will not, violate, conflict with,
or contravene any provision of, the operating agreement or other organizational
documents of Buyer, or any judgment, order, decree, writ or injunction, or any
law, rule or regulation to which Buyer is subject, nor result in any breach of,
or constitute a default under, or require separate consent pursuant to, any loan
or credit agreement, lease, indenture, mortgage, deed of trust, purchase
agreement, guaranty, contract or other instrument to which Buyer is a party or
by which Buyer is bound.
10
13. DEFAULT BY BUYER. If Buyer fails to fully and timely comply with any term or
provision of this Agreement, Seller shall give Buyer and Escrow Agent a written
notice detailing the default of Buyer. Buyer shall have ten (10) days from the
date such notice has been given within which to remedy the default, except that
if the required performance cannot be reasonably completed by Buyer within such
ten (10) days, then Buyer shall have a reasonable time (but not more than sixty
(60) days) within which to remedy the default. Provided, however, no notice or
cure period shall apply as to the failure by Buyer to timely deposit any funds
or close the Escrow. If Buyer fails to timely cure the default, then Seller, as
its sole remedy hereunder, shall obtain and retain the ▇▇▇▇▇▇▇ Money and cancel
this Agreement. Upon such a cancellation, without the need for instructions from
Seller or Buyer, Escrow Agent shall pay immediately the ▇▇▇▇▇▇▇ Money to Seller.
Buyer and Seller agree that the amount of damages that would be incurred by
Seller as a result of a breach of this Agreement by Buyer are difficult to
ascertain as of the Effective Date and that the ▇▇▇▇▇▇▇ Money is a reasonable
estimate of such damages. Anything contained to the contrary notwithstanding, no
provision in this Agreement shall in any way impair Seller's right to pursue any
rights or remedies for indemnities or post-termination obligations hereunder. If
this Agreement is terminated by Seller pursuant to this Section, Buyer shall not
be entitled to collect the Penalty Payment (as defined in the Limited Liability
Company Agreement of Buyer).
All of Buyer's obligations and the time periods associated therewith shall be
delayed to the extent Buyer is unable to perform any of its obligations on
account of any strike or labor problem, act of God, casualty, unusual inclement
weather, energy reduction, shortage or blackout, government pre-emption or
prescription, unusual government delay, national emergency, civil disobedience,
riot, terrorism or any other cause of any kind beyond the reasonable control of
Buyer ("Force Majeure").
14. DEFAULT BY SELLER. If Seller fails to comply substantially with the terms
and conditions of this Agreement and if Buyer shall have complied with all of
its obligations hereunder, Buyer shall give Seller and Escrow Agent a written
notice detailing the default of Seller. Seller shall have ten (10) days from the
date such notice has been given within which to remedy the default, except that
if the required performance cannot be reasonably completed by Seller within such
ten (10) days, then Seller shall have a reasonable time (but not more than sixty
(60) days) within which to remedy the default.
All of Seller's obligations and the time periods associated therewith shall be
delayed to the extent Seller is unable to perform any of its obligations on
account of Force Majeure beyond the reasonable control of Seller.
If Seller does not timely remedy the default, Buyer may terminate this Agreement
and the Escrow, whereupon the ▇▇▇▇▇▇▇ Money shall be returned immediately to
Buyer and neither Party shall have any further obligation to the other, except
for any obligations hereunder that are to survive the termination.
WITHOUT LIMITING THE FOREGOING, THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO HAVE
ANY DISPUTE BETWEEN THEM HEARD, RESOLVED OR DECIDED BY A JURY, AND EXPRESSLY
WAIVE TRIAL BY JURY. ANY DISPUTE OR PROCEEDING SHALL BE HEARD, RESOLVED AND
DECIDED BY A JUDGE SITTING WITHOUT A JURY, IN A COURT WITH JURISDICTION OVER THE
MATTER.
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15. TERMINATION OF AGREEMENT AND ESCROW; NON-DEFAULT. If this Agreement is
terminated by Buyer or Seller as permitted by any provision of this Agreement
other than a termination resulting from a default by Buyer or Seller: (a) the
▇▇▇▇▇▇▇ Money shall be returned to Buyer; (b) Escrow Agent shall return promptly
all documents to the Party which supplied the documents; (c) Buyer shall return
promptly all documents to Seller obtained from Seller in connection with this
Agreement; and (d) Buyer and Seller shall have no further obligation pertaining
to the purchase or sale of the Units, except for any surviving indemnifications
set forth in this Agreement. In the event of any such termination, Seller and
Buyer each shall pay one half (1/2) of Escrow Agent's fees and expenses,
including any charges relating to the Title Commitment, if any.
16. POSSESSION AND RISK OF LOSS. Buyer acknowledges that Buyer has not been
promised an exact time for completion of the Included Improvements or occupancy
of any Unit and that Buyer is not the legal owner of any Unit and that
possession of any Unit shall remain exclusively in Seller until the Closing for
such Unit. Buyer shall not install any improvement, perform any work or store
any property in any Unit prior to the Closing for such Unit without prior
written consent from Seller, which consent shall not be unreasonably withheld.
Buyer shall provide Seller with notice of its intent to enter the Real Property
and if Buyer enters the Real Property at any time before the Closing, Buyer, and
Buyer's contractors, guests and invitees assume the risk of bodily injury while
on the Real Property. Buyer agrees to indemnify, defend and hold Seller harmless
for, from and against any and all loss, including, without limitation, personal
injuries incurred by Buyer, or Buyer's guests, contractors or invitees, at any
time and all times before the Closing, excluding, however, and personal injuries
resulting from the willful misconduct or gross negligence of Seller or Seller's
agents, employees, contractors, or subcontractors. Such indemnity in favor of
Seller shall survive the termination of this Agreement by Buyer or Seller as
permitted by any provision of this Agreement. Buyer shall not interfere or give
instruction to Seller's employees, contractors or subcontractors at the jobsite.
Buyer acknowledges that the jobsite may contain dangerous conditions, and
jobsite employees, contractors and subcontractors have no authority to change
the Plans and Specifications or the terms of this Agreement.
Except as may be caused by Buyer's willful misconduct or gross negligence (which
shall be the sole and complete responsibility of Buyer), Seller shall assume the
risk of loss or damage to the Included Improvements, Improvements, or any Unit
by fire or other casualty until the Closing for such Unit, at which time the
risk of loss shall pass to Buyer and the Association as more fully set forth in
the Declaration. In the event of any damage or destruction to or of the
Improvements, the Included Improvements, or any Unit prior to Closing of such
Unit, Seller shall repair or reconstruct the same to substantially its former
condition, or as is intended to be renovated.
17. BROKER. Seller and Buyer each represent to the other that the representing
Party has not dealt with any real estate broker or any other party entitled to a
commission, broker's fee or other compensation in connection with the sale of
the Units by Seller to Buyer. Except as set forth in the preceding sentence with
respect to the commission to be paid to the Broker(s), Seller shall defend,
indemnify, and hold harmless Buyer, and Buyer shall defend, indemnify, and hold
harmless Seller, from and against all claims by third parties for any brokerage,
commission, finders, or other fees relative to this Agreement or the sale of all
or any portion of the Units, and all court costs, attorneys' fees and other
12
costs or expenses arising therefrom, and alleged to be due by authorization of
the indemnifying Party. The Broker(s) shall not be entitled to any portion of
the ▇▇▇▇▇▇▇ Money upon the release or forfeiture of the same to Seller. This
Section shall survive the Closing or any termination of this Agreement.
18. EXCLUSIVITY. Seller represents and warrants to Buyer that Seller has not
entered into and will not enter into, prior to Closing or the termination of
this Agreement, any contract for the sale of the Units.
19. RECORDATION. Seller and Buyer acknowledge and agree that neither this
Agreement nor any Memorandum of this Agreement shall be recorded with the
Maricopa County Recorder.
20. NOTICES. All notices to be given by either Party to the other shall be in
writing addressed to the Party to receive the notice at the address as set forth
in Section 1 or at such other address as may be indicated by a Party by written
notice to the other. Any notice given as provided in this Section shall be
effective: (a) upon receipt if hand delivered, with proof of delivery, or given
by facsimile transmission, with proof of transmission, prior to 5:00 p.m. on a
business day (if after 5:00 p.m. or on a nonbusiness day, such notice shall be
deemed received on the next business day); (b) the next business day following
the deposit of the notice with delivery charges prepaid and proof of delivery,
with Federal Express, United Parcel Service or other nationally recognized
overnight delivery service; or (c) two (2) business days following the day of
deposit in the United States first class mail, registered or certified postage
prepaid.
21. ADDITIONAL ACKNOWLEDGEMENTS OF BUYER.
(a) Seller nor any of its officers, employees, agents or representatives
has made any representation concerning potential for future value, profit,
rental income potential, tax advantages, or investment potential of the Units.
Buyer hereby further acknowledges and warrants that it is entering into this
Agreement based upon its independent assessment of the economic potential of the
Units and without reliance upon any representations by or on behalf of Seller or
its agents with respect to such matters.
(b) Binding Effect of Contract. Buyer acknowledges and agrees that this
Agreement is an important legal document, and that the execution of this
Agreement by Buyer indicates that Buyer understands its rights and obligations
under this Agreement and that Buyer has sought (or has been given the
opportunity to seek) legal advice regarding this Agreement.
(c) Interstate Land Sales and Public Report Exemptions. Seller intends that
this transaction be exempt from the Interstate Land Sales Full Disclosure Act
under one or more exemptions. Buyer also acknowledges that the transaction
contemplated by this Agreement is exempt from the Arizona subdivision public
report requirements of A.R.S. ss.32-2181, et seq.
(f) Future Construction. Buyer acknowledges that construction activity at
the Condominium may continue after the Closing and occupancy of any Unit by
Buyer. Buyer agrees to make no claim against the Seller or its contractors,
subcontractors, suppliers, agents or employees and hereby releases and
discharges Seller, its contractors, subcontractors, suppliers, agents and
employees for, from and against all claims, demands, liabilities, costs or
expenses, including reasonable attorneys' fees and court costs, arising as a
result of such construction activity.
13
(g) Other Changes. Buyer acknowledges that there may be minor variations in
the location of the walls of any Unit or other portions of the Condominium.
Seller disclaims any responsibility or liability there for and Buyer hereby
releases Seller from any and all responsibility, obligation or liability
whatsoever for the occurrence of same.
22. BUYER'S CONTINGENCIES. Buyer's obligations under this Agreement are
contingent upon (i) Seller completing or causing the completion of the
construction of the Included Improvements in accordance with the Plans and
Specifications as may be modified or amended with the consent of Buyer, and (ii)
the issuance of a certificate of shell completion issued by the City for any
Unit. If (i) Seller provides, or is deemed to have provided, notice that it will
not modify the Preliminary Plans and Specifications under Section 9, (ii) Buyer
does not approve of the Condominium Documents or any modification thereto under
Section 4, (iii) Seller incorporates any material change to the Plans and
Specifications without the approval of Buyer under Section 10, or (iv) Seller
fails to cure a title defect which was objected to by Buyer in good faith
pursuant to Section 5, Buyer may terminate this Agreement by giving written
notice of termination to Seller. If this Agreement is terminated by Buyer
pursuant to this Section, Buyer shall be entitled to collect the Penalty Payment
(as defined in the Limited Liability Company Agreement of Buyer). The
contingencies set forth in this Section are solely for the Buyer's benefit and
may be waived by Buyer in its sole discretion, but no such waiver shall be valid
unless in writing and signed by Buyer.
23. SELLER'S CONTINGENCIES. Seller's obligations under this Agreement are
contingent upon Buyer providing the number of parking spaces necessary for the
construction, use and operation of the Units for their intended purpose in
accordance with the requirements of the City of Scottsdale upon the Premises (as
that term is defined within that certain Ground Lease by and between Sucia
Scottsdale, LLC a Delaware limited liability company and Buyer). If there is a
failure of the contingency identified in this Section, Seller may terminate this
Agreement by giving written notice of termination to Buyer. If this Agreement is
terminated by Seller pursuant to this Section, Buyer shall not be entitled to
collect the Penalty Payment (as defined in the Limited Liability Company
Agreement of Buyer). The contingency set forth in this Section are solely for
the Seller's benefit and may be waived by Seller in its sole discretion, but no
such waiver shall be valid unless in writing and signed by Seller.
24. ASSIGNMENT OF CONSTRUCTION CONTRACTS. Seller hereby assigns to Buyer, to the
extent assignable, all right, title and interest Seller has in and to any
warranties in any contracts for the construction of all or any portion of the
Included Improvements (the "Construction Contracts") to the extent such warranty
applies to the construction of all or any portion of the Included Improvements.
To the extent any Construction Contract is not assignable and upon delivery of
written notification from Buyer of any construction defect or deficiency in
connection with any of the Included Improvements, Seller hereby agrees to
enforce any such warranty and diligently pursue any and all remedies available
to Seller under such Construction Contract as determined by Buyer in its sole
and absolute discretion.
25. OMNIBUS ASSIGNMENT. Seller shall execute, acknowledge and deliver to Buyer
an omnibus assignment (the "Omnibus Assignment"), conveying and transferring to
Buyer all right, title and interest of Seller, if any, in and to all permits,
warranties, intangible personal property, plans relating to the Units and other
matters set forth herein.
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26. MISCELLANEOUS.
(a) TO INDUCE SELLER TO ACCEPT THIS AGREEMENT, BUYER ACKNOWLEDGES THAT: (i)
THERE ARE NO UNDERSTANDINGS, REPRESENTATIONS OR PROMISES OF ANY KIND THAT HAVE
BEEN MADE TO INDUCE BUYER TO EXECUTE THIS AGREEMENT, EXCEPT AS SET FORTH IN THIS
AGREEMENT; AND (ii) THIS AGREEMENT SETS FORTH IN FULL THE ENTIRE AGREEMENT
BETWEEN THE PARTIES; AND THAT BUYER HAS NOT RELIED ON ANY ORAL AGREEMENT,
STATEMENT, REPRESENTATION OR OTHER PROMISE THAT IS NOT SET FORTH IN THIS
AGREEMENT. NO SALESPERSON, BROKER, OR AGENT OR EMPLOYEE OF SELLER HAS THE
AUTHORITY TO MAKE ANY ORAL REPRESENTATION OR AGREEMENT NOT CONTAINED IN THS
AGREEMENT, AND NO PERSON ON BEHALF OF SELLER IS AUTHORIZED TO MAKE ANY FUTURE
ORAL AGREEMENT UPON WHICH BUYER MAY RELY TO CANCEL, CHANGE OR MODIFY ANY PORTION
OF THIS AGREEMENT. THIS AGREEMENT SUPERSEDES ANY AND ALL PRIOR UNDERSTANDINGS
AND AGREEMENTS BETWEEN SELLER AND BUYER.
(b) Amendment. This Agreement may be amended or modified only by a written
instrument signed by Buyer and Seller.
(c) Assignment. This Agreement shall inure to the benefit of and bind
Seller and Buyer and their heirs, executors, representatives, administrators,
successors and assigns. Notwithstanding anything herein to the contrary, Seller
may assign, transfer its rights, or delegate its duties or obligations hereunder
to any person or entity controlling or controlled by or under common control
with Seller (each such person or entity, an "Affiliate") that has acquired all
or any such portion of the Real Property upon which the Included Improvements
for any Tract Condominium will be constructed; provided, however, that in
connection with such assignment, such Affiliate shall execute and deliver an
assignment and assumption agreement, in form and substance satisfactory to
Buyer, whereby such Affiliate agrees to be bound by the terms and conditions of
this Agreement and to perform Seller's duties and obligations hereunder. Any
document, instrument or act purporting to effect any such assignment or
delegation in violation of this Section shall be void.
(d) Waiver. Any failure or delay of Seller to enforce any provision hereof
shall not be construed as modifying in any way the terms hereof or as waiving
Seller's rights to enforce the provisions hereof. No waiver of Seller's rights
hereunder shall preclude Seller's subsequent exercise of its rights hereunder.
(e) Governing Law. This Agreement and the rights of the Parties hereunder
shall be governed by the laws of the State of Arizona.
(f) Construction. Whenever the context of this Agreement so requires,
personal pronouns shall include all genders and singular number shall include
the plural.
15
(g) Headings. The headings of the sections and paragraphs of this Agreement
are for convenience and reference only and in no way define, describe, extend or
limit the scope or the intent of this Agreement or any provisions hereof. Unless
otherwise specified, all references in this Agreement to sections or subsections
refer to the sections or subsections of this Agreement.
(h) Time of the Essence. Time is of the essence of this Agreement and every
term and provision hereof. For purposes of this Agreement a "business day" shall
mean and refer to any day other than a Saturday, Sunday or legal holiday. If any
date provided for in this Agreement falls on a Saturday, Sunday or legal
holiday, such date shall be extended to the next business day.
(i) Severability. In the event any term, condition or provision of this
Agreement is declared illegal, invalid, or unenforceable for any reason, the
remaining terms, conditions and provisions shall remain full force and effect
and shall in no way be invalidated, impaired or affected thereby.
(j) Joint and Several Liability. If this Agreement is signed by more than
one Buyer, each Buyer shall be jointly and severally liable for all obligations
of Buyer under this Agreement.
(k) Counterparts. This Agreement and any addendum or amendment hereto may
be executed in any number of counterparts, all of which shall together
constitute one and the same instrument.
(l) Survival. Any provisions of this Agreement not to be performed prior to
the Closing shall survive the Closing and shall not be merged into the Special
Warranty Deed by which Seller conveys the Unit to Buyer.
(m) Further Documents. Buyer and Seller shall execute and deliver any
additional documents required or reasonably requested by the other Party or
Escrow Agent in order to evidence or give effect to this Agreement, both prior
to and following the Closing.
(n) Exhibits. The following exhibits are attached to this Agreement and
shall be deemed incorporated into this Agreement for all purposes.
Exhibit A Legal Description
Exhibit B Form of Special Warranty Deed
Exhibit C Specifications for Construction
SEE SIGNATURE PAGE ATTACHED
16
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
dates set forth below.
BUYER:
KIERLAND CROSSING LLC, a Delaware
limited liability company
By: GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership, its
managing member
By: GLIMCHER PROPERTIES CORPORATION, a
Delaware corporation, its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Executive Vice President
Date Executed by Buyer: May 12, 2006
ACCEPTED BY SELLER:
KIERLAND CROSSING RESIDENTIAL, LLC,
an Arizona limited liability company
By: VANGUARD CITY HOME, LLC, an Arizona
limited liability company, its manager
By: ACC HOMES, INC., an Arizona
corporation, its manager
By: _______________________
Name: A. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Its: President
Date Executed by Seller:_________________, 2006
17
ESCROW AGENT'S ACCEPTANCE AND AGREEMENT
The undersigned Escrow Agent hereby accepts the foregoing Purchase
Agreement and Escrow Instructions and agrees to act as the Escrow Agent under
this Agreement in strict accordance with its terms.
FLAGLER TITLE INSURANCE COMPANY
By: ________________________________
Name: ______________________________
Title: _____________________________
Date of Acceptance:____________________, 2006
18
EXHIBIT A
Legal Description
The following legal description and any references contained therein are based
upon that certain ALTA/ACSM Land Title Survey titled Dial Center, performed by
DEI Professional Services, L.L.C., dated and signed on June 22, 2000 by ▇▇▇▇▇ ▇.
▇▇▇▇, RLS #33315.
A portion of the northwest quarter of Section 11 and the southwest quarter of
Section 2, Township 3 North, Range 4 East of the Gila and Salt River Base and
Meridian, County, Arizona being described as follows:
COMMENCING at a brass cap in hand hole found at the northwest corner of said
Section 11, also being the point of intersection of the monumented centerlines
of ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Loop and Scottsdale Road, from which a brass cap in hand hole
found at the intersection of the centerlines of Scottsdale Road and ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇)▇▇'▇▇" ▇▇▇▇ a distance of 1100.20 feet; thence South
89(degree)40'34" East, along the centerline of ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Road, a distance
of 65.07 feet to brass cap in hand hole and a point on a non-tangent curve, the
radius point of which bears North 00(degree)19'08" East a distance of 2,000.00
feet; thence easterly, along the arc of said curve to the left and said
centerline of ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Loop, through a central angle of 16(degree)55'21",
an arc distance of 590.71 feet; thence South 16(degree)36'13" East, a distance
of 65.00 feet to a point on a line lying 65.00 feet south of and parallel to
said centerline of ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Loop and the TRUE POINT OF BEGINNING, said
point also being the beginning of a curve to the left, of which the radius point
bears North 16(degree)36'13" West, a distance of 2,065.00 feet;
Thence easterly along the arc of said curve to the left and said line lying
65.00 feet south of and parallel to the centerline of ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Loop,
through a central angle of 09(degree)03'32", an arc distance of 326.49 feet to a
point of reverse curvature having a radius of 20.00 feet;
Thence easterly, along the arc of said curve to the right, through a central
angle of 93(degree)29'01", an arc distance of 32.63 feet to a point on a line
lying 30.00 feet west of and parallel to the centerline of ▇▇▇▇ ▇▇▇▇▇▇ also
being a point of compound curvature, having a radius of 370.00 feet;
Thence southerly, along the arc of said curve lying 30.00 feet west of and
parallel to the centerline of 73rd Street, through a central angle of
24(degree)00'27", an arc distance of 155.03 feet;
Thence South 01(degree)08'27" West, along said line lying 30.00 feet west of and
parallel to the centerline of ▇▇▇▇ ▇▇▇▇▇▇, a distance of 1027.01 feet to a point
of curvature having a radius of 20.00 feet;
Thence westerly, along the arc of said curve to the right, through a central
angle of 90(degree)00'15", an arc distance of 31.42 feet to a point on a line
lying 50.00 feet north of and parallel to the centerline of ▇▇▇▇▇▇▇▇ Road;
Thence North 88(degree)51'18" West, a distance of 320.07 feet;
Thence North 01(degree)08'42" East, a distance of 1000.15 feet to a point of
curvature having a radius of 150.00 feet;
Thence northerly, along the arc of said curve to the left, through a central
angle of 17(degree)44'55", an arc distance of 46.47 feet;
Thence North 16(degree)36'13" West, a distance of 40.25 feet to the TRUE POINT
OF BEGINNING.
Containing 8.994 acres, more or less.
EXHIBIT B
Form of Special Warranty Deed
Upon recordation return to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
Two Renaissance Square
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
SPECIAL WARRANTY DEED
---------------------
KIERLAND CROSSING RESIDENTIAL, LLC, a Delaware limited liability company
("Grantor"), for the consideration of ten dollars, in hand paid, hereby sells
and conveys to KIERLAND CROSSING, LLC, a Delaware limited liability company
whose street address is ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ of Franklin and
State of Ohio, all of such Grantor's right, title and interest in and to the
real property located in the County of Maricopa and the State of Arizona and
more specifically set forth on Exhibit A attached hereto, with all its
appurtenances and warrant the title against all persons claiming under Grantor
to the same, subject to the liens, encumbrances, easements, reservations,
conditions and other matters of record.
Grantor hereby binds itself and its successors to warrant and defend the
title against all of the acts of Grantor and no other, subject to the matters
set forth above.
Signed this ___ day of ________, 200_.
GRANTOR:
KIERLAND CROSSING RESIDENTIAL, LLC,
a Delaware limited liability company
By: ________________________________
Name: ______________________________
Its: _______________________________
EXHIBIT C
Specifications for Construction