AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
BY AND AMONG
AHWAHNEE GOLF COURSE & RESORT, INC.,
a California corporation,
NATIONAL INVESTORS FINANCIAL, INC.,
a California corporation, as Trustee of
National Investors Land Holding Trust VIII,
and
NATIONAL INVESTORS FINANCIAL, INC.,
a California corporation, as Trustee of
National Investors Land Holding Trust IX,
COLLECTIVELY, AS SELLER,
AND
YOSEMITE ▇▇▇▇▇ FAMILY RESORT, INC.,
a California corporation,
AS BUYER
RELATING TO
PROPERTY LOCATED IN
Madera County, California
INCLUDING AN RV PARK AND SINGLE FAMILY LOTS
LOCATED WITHIN
"AHWAHNEE GOLF COURSE AND RESORT"
DATED AS OF
__________________ ___, 1998
TABLE OF CONTENTS
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1. Purchase and Sale. . . . . . . . . . . . . . . . . . . . . . . 5
2.2. Substance of Transactions. . . . . . . . . . . . . . . . . . . 5
3. Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1. Exchange Value . . . . . . . . . . . . . . . . . . . . . . . . 6
3.2. Additional Consideration . . . . . . . . . . . . . . . . . . . 6
4. Escrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5. Cancellation Fees and Expenses. . . . . . . . . . . . . . . . . . . . . 6
6. Deliveries to Escrow Holder . . . . . . . . . . . . . . . . . . . . . . 7
6.1. By Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.2. By Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.3. By Buyer and Seller. . . . . . . . . . . . . . . . . . . . . . 7
7. Condition of Title. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
7.1. Permitted Exceptions . . . . . . . . . . . . . . . . . . . . . 8
7.2. Title Provided by Seller . . . . . . . . . . . . . . . . . . . 8
8. Conditions to the Close of Escrow . . . . . . . . . . . . . . . . . . . 8
8.1. Conditions Precedent to Buyer's Obligations. . . . . . . . . . 8
8.1.1. Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.1.2. Representations, Warranties and Covenants of Seller. . . . . . 8
8.1.3. Seller's Deliveries. . . . . . . . . . . . . . . . . . . . . . 8
8.2. Conditions Precedent to Seller's Obligations . . . . . . . . . 9
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9. Approval of Seller's Constituents . . . . . . . . . . . . . . . . . . . 9
10. Property "As-Is". . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10.1. NO SIDE AGREEMENTS OR REPRESENTATIONS; AS-IS PURCHASE. . . . . 9
10.2. Disclosures; Specific Acknowledgment Regarding Condition of
Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11. Title Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12. Costs and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
13. Disbursements and Other Actions . . . . . . . . . . . . . . . . . . . . 13
13.1. Escrow Holder. . . . . . . . . . . . . . . . . . . . . . . . . 13
13.2. By Transfer Agent. . . . . . . . . . . . . . . . . . . . . . . 13
13.3. Possession . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13.4. Assumption of Liabilities. . . . . . . . . . . . . . . . . . . 13
14. Joint Representations and Warranties. . . . . . . . . . . . . . . . . . 13
14.1. Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14.2. Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14.3. Due Execution. . . . . . . . . . . . . . . . . . . . . . . . . 14
14.4. Valid and Binding. . . . . . . . . . . . . . . . . . . . . . . 14
14.5. Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15. Seller's Warranties and Representations . . . . . . . . . . . . . . . . 14
15.1. Non-Foreign Entity . . . . . . . . . . . . . . . . . . . . . . 14
15.2. Hazardous Substances . . . . . . . . . . . . . . . . . . . . . 14
15.3. Clean-up . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
15.4. Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
15.5. Memberships. . . . . . . . . . . . . . . . . . . . . . . . . . 15
16. Pre-Closing Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 15
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16.1. No Transfers . . . . . . . . . . . . . . . . . . . . . . . . . 15
16.2. No Alterations . . . . . . . . . . . . . . . . . . . . . . . . 15
16.3. Maintenance. . . . . . . . . . . . . . . . . . . . . . . . . . 15
16.4. Obligations Under Contracts. . . . . . . . . . . . . . . . . . 15
16.5. Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . 15
17. Condemnation and Destruction. . . . . . . . . . . . . . . . . . . . . . 16
17.1. Eminent Domain or Taking . . . . . . . . . . . . . . . . . . . 16
17.2. Damage or Destruction. . . . . . . . . . . . . . . . . . . . . 16
18. Utilities and Deposits. . . . . . . . . . . . . . . . . . . . . . . . . 17
18.1. Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
18.2. Refundable Deposits. . . . . . . . . . . . . . . . . . . . . . 17
19. Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
19.1. Termination of Employees . . . . . . . . . . . . . . . . . . . 17
19.2. No Agreements or Liability . . . . . . . . . . . . . . . . . . 18
19.3. Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
20. Mediation of Disputes . . . . . . . . . . . . . . . . . . . . . . . . . 18
21. Arbitration of Disputes . . . . . . . . . . . . . . . . . . . . . . . . 18
22. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
23. Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
24. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
24.1. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 20
24.2. Partial Invalidity . . . . . . . . . . . . . . . . . . . . . . 20
24.3. Possession of the Property . . . . . . . . . . . . . . . . . . 20
24.4. Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
24.5. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 20
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24.6. Professional Fees. . . . . . . . . . . . . . . . . . . . . . . 20
24.7. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 20
24.8. Time of Essence. . . . . . . . . . . . . . . . . . . . . . . . 20
24.9. Construction . . . . . . . . . . . . . . . . . . . . . . . . . 20
24.10. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 21
24.11. Wear and Tear. . . . . . . . . . . . . . . . . . . . . . . . . 21
24.12. No Recordation . . . . . . . . . . . . . . . . . . . . . . . . 21
24.13. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
24.14. Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . 21
24.15. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . 21
EXHIBIT A - Legal Description
EXHIBIT B - Form of Grant Deed
EXHIBIT C - FIRPTA Affidavit
EXHIBIT D - Assignment and Assumption
EXHIBIT E - ▇▇▇▇ of Sale and General Assignment of Intangibles
EXHIBIT F - Membership Lists
EXHIBIT G - Payables to be Assumed By Buyer
iv
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
("AGREEMENT") is made and entered into as of _______________ ___, 1998, by and
among AHWAHNEE GOLF COURSE & RESORT, INC., a California corporation (the
"COMPANY"), NATIONAL INVESTORS FINANCIAL, INC., a California corporation and a
licensed California real estate broker ("NIF"), as Trustee of National Investors
Land Holding Trust VIII ("TRUST VIII") and NIF, as Trustee of National Investors
Land Holding Trust IX ("TRUST IX") (the Company, NIF as Trustee for Trust VIII
and NIF as Trustee for Trust IX being referred to collectively as "SELLER"), and
YOSEMITE ▇▇▇▇▇ FAMILY RESORT, INC., a California corporation ("BUYER").
R E C I T A L S
A. Seller is the title holder and operator of property located
within the property commonly known as "Ahwahnee Golf Course and Resort", located
in the County of Madera, State of California, as more particularly described in
Exhibit A attached hereto (the "Real Property"). The Real Property includes,
among other things, a recreational vehicle park and lots for existing or
proposed single family dwellings. Buyer is a wholly-owned subsidiary of
American Family Communities, Inc., a California corporation ("AFC").
B. The Company operates and manages the Real Property as agent of
and for the benefit of the beneficiaries of Trust VIII and Trust IX,
respectively.
NOW, THEREFORE, in consideration of the foregoing Recitals, which
Recitals are incorporated herein by this reference, and for other good and
valuable consideration, the receipt of which is hereby acknowledged, Buyer and
Seller agree as follows:
AGREEMENT
1. DEFINITIONS: For the purposes of this Agreement the following terms
will be defined as follows:
1.1. "ACTUAL KNOWLEDGE OF SELLER" means and is limited to the actual
knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇ without having conducted any
independent inquiry or inspection, and shall not include the knowledge of any
other persons or firms, it being understood and agreed by Buyer that neither
▇▇▇▇▇ ▇▇▇▇▇▇ nor ▇▇▇▇▇ ▇. ▇▇▇▇ is charged with knowledge of all of the acts
and/or omissions of predecessors in title to the Property or management of
the Property before Seller's acquisition of the Property and the Actual
Knowledge of Seller shall not include information or material which may be in
the possession of Seller generally, but of which neither ▇▇▇▇▇ ▇▇▇▇▇▇ nor
▇▇▇▇▇ ▇. ▇▇▇▇ is actually aware.
1.
1.2. "AFC" means American Family Communities, Inc., a California
corporation, which is a wholly-owned subsidiary of AFH.
1.3. "AFH" means American Family Holdings, Inc., a Delaware
corporation. Buyer is a wholly-owned subsidiary of AFC, which, in turn, is a
wholly-owned subsidiary of AFH.
1.4. "ASSIGNMENT" shall have the meaning given thereto in Section
6.1(d) hereof.
1.5. "▇▇▇▇ OF SALE" shall have the meaning given thereto in Section
6.1(e) hereof.
1.6. "CLOSING DATE" means ___________, 1998, unless an earlier date is
agreed to in a writing subsequent to this Agreement executed and delivered by
each of the parties hereto to the other, and is the last date on which the
Closing and Close of Escrow can occur, subject to extension as provided for
in this Agreement.
1.7. "CLOSING" and "CLOSE OF ESCROW" are terms used interchangeably in
this Agreement. The Closing or the Close of Escrow will be deemed to have
occurred when the Grant Deed is recorded in the official records of the
county in which the Property is located.
1.8. "EFFECTIVE DATE" means the date hereof.
1.9. "ENVIRONMENTAL AUDIT" means any environmental audit, review or
testing of the Property performed by Buyer or any third party or consultant
engaged by Buyer to conduct such study.
1.10. "ENVIRONMENTAL LAW" means any law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the environment
including, without limitation, CERCLA (Comprehensive Environmental Response,
Compensation and Liability Act of 1980) and RCRA (Resources Conservation and
Recovery Act of 1976), as amended.
1.11. "ESCROW" shall have the meaning given thereto in Section 4 hereof.
1.12. "ESCROW HOLDER" means _________________________________________
__________________________________________________________________________ .
1.13. "EXCHANGE VALUE" is the adjusted appraised value of the Property
with respect to Parcel 1 and Parcel 2 respectively, which takes into
consideration various factors to balance the business value of the Property
with respect to Parcels 1 and 2 within their present ownership structure.
1.14. "EXHIBITS" means the following, each of which is attached hereto
and incorporated herein by this reference:
EXHIBIT A - Legal Description
EXHIBIT B - Form of Grant Deed
EXHIBIT C - FIRPTA Affidavit
2.
EXHIBIT D - Assignment and Assumption
EXHIBIT E - ▇▇▇▇ of Sale and General Assignment of Intangibles
EXHIBIT F - Membership Lists
EXHIBIT G - Payables to be Assumed By Buyer
1.15. "FIRPTA CERTIFICATE" shall have the meaning given thereto in
Section 6.1(b) hereof.
1.16. "GRANT DEED" shall have the meaning given thereto in Section
6.1(a) hereof.
1.17. "HAZARDOUS SUBSTANCE" means any substance, material or waste which
is or becomes designated, classified or regulated as being "toxic" or
"hazardous" or a "pollutant" or which is or becomes similarly designated,
classified or regulated, under any Environmental Law, including asbestos,
petroleum and petroleum products.
1.18. "IMPROVEMENTS" means all improvements and fixtures situated on the
Real Property, including, without limitation, the RV Park.
1.19. "INTANGIBLES" means all of Seller's right, title and interest in
and to all intangible property used, owned or issued solely and strictly in
connection with the Real Property, Improvements and Personal Property,
including, but not limited to: (i) trade names and trademarks, contract
rights, accounts receivable and other intangible property used in connection
with the ownership and operation of the Property; (ii) all licenses, permits,
certificates of occupancy, approvals, dedications and entitlements issued,
approved or granted by any governmental authorities having jurisdiction over
the Property; (iii) all membership now in existence and unsold or unissued
memberships in the RV Park and all rights of Seller under the Membership
Bylaws of the RV Park; and(iv) all development rights, conditional use
permits, variances and other intangible rights, titles, interests and
privileges owned by Seller and related to or issued in connection with the
Land and/or Improvements, its use, occupancy, operation and development, but
in no way related to Seller's financial data or other proprietary information
or other property of Seller.
1.20. "INVESTORS" means the beneficiaries of Trust VIII and Trust IX.
1.21. "NOTICES" will be sent as provided in Section 22 to:
Seller: National Investors Financial, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
3.
with a copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Buyer: Yosemite ▇▇▇▇▇ Family Resort, Inc.
_____________________________
_____________________________
Attn:________________________
Telephone: _________________
Facsimile: _________________
with a copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Escrow Holder: _____________________________
_____________________________
_____________________________
Attn:________________________
Telephone: _________________
Facsimile: _________________
1.22. "OPENING OF ESCROW" shall have the meaning given thereto in
Section 4 hereof.
1.23. "OTHER ASSETS" means cash, cash equivalent, notes and other
negotiable instruments and any and all other assets in the possession or
control of Seller, the value of which is determined by possession, and any
other assets other than the Real Property, Personal Property or Intangibles
relating to the Real Property.
1.24. "PERMITTED EXCEPTIONS" shall have the meaning given thereto in
Section 7.1 hereof.
1.25. "PERSONAL PROPERTY" means the equipment, furniture and fixtures,
supplies, books and records, Records, advertising materials, brochures,
literature, office supplies, stationery, equipment, inventory, tools,
appliances, display cases, and other tangible fixed assets existing on the
Closing Date on the Property, and all such other tangible fixed assets
existing on the Closing Date on the Property.
1.26. "PROPERTY" means collectively, (i) the Real Property, (ii) the
Improvements, (iii) the Intangibles, (iv) the Personal Property, (v) the
Other Assets, and (vi) the Records.
4.
1.27. "PROSPECTUS" means the Consent Solicitation Statement/Prospectus
of Buyer.
1.28. "REAL PROPERTY" means that certain real property located in the
County of Madera, State of California more particularly described in Exhibit
A attached hereto. The Real Property is further described in the Recitals to
this Agreement. The Real Property is adjacent to, and does not include, a
golf course and country club facilities.
1.29. "RECORDS" means the list of members of the RV Park, membership
account statements and such of Seller's books and records pertaining to the
Property including, without limitation, the RV Park and the Residential Lots.
1.30. "RESIDENTIAL LOTS" means developed and undeveloped lots for
single family dwellings located within Parcel 1 set forth on Exhibit A
attached hereto.
1.31. "RV PARK" means the recreational vehicle park consisting of
developed and undeveloped lots and six cabins, all located on a portion of
the Real Property and operated by Western Horizons.
1.32. "TITLE COMPANY" means __________________________________________.
1.33. "TITLE POLICY" shall have the meaning given thereto in Section 11
hereof.
1.34. "TRANSFER AGENT" means ____________________, who address is
__________________, Attn: ___________, Facsimile No. ___________.
1.35. "UNIT" means, collectively, one (1) share of common stock, plus
warrants to purchase three (3) additional shares of common stock, in AFH.
2. PURCHASE AND SALE:
2.1. PURCHASE AND SALE. Upon and subject to the terms and conditions
set forth in this Agreement, Seller agrees to sell to Buyer and Buyer agrees
to buy from Seller the Property, together with all easements, hereditaments,
entitlements (to the extent transferable) and appurtenances thereto. Buyer's
acquisition of the Property will be subject to liabilities only for current
payables incurred in the ordinary course of Seller's business, including the
Open Purchase Orders, and for property taxes all as set forth in Exhibit G.
All other liabilities of Seller, if any, are not assumed by Buyer and shall
remain the liability of Seller. In consideration of Seller's sale of the
Property to Buyer, Buyer will (a) deliver to the Investors the Exchange Value
in accordance with Section 3, and (b) perform all of Buyer's other
obligations hereunder.
2.2. Substance of Transactions. Notwithstanding any other provision of
this Agreement, the transfer of the Property directly from Seller to Buyer is
for convenience purposes only to effect expeditiously the culmination of the
transfers set forth in this Section 2.2, and for all purposes hereunder it is
the intent of the parties that such transfer reflects the following
transfers, which shall occur in the following order; (i) all of the
Investors, through their approval of the transactions contemplated under this
Agreement, contribute all of their interests in the Property to AFH in
exchange for Units, such Units to be distributed to them pursuant to Sections
5.
3 and 13.2 hereof; (ii) AFH contributes the Property to AFC as a
contribution to the capital of AFC; and (iii) AFC contributes the Property
to Buyer as a contribution to the capital of Buyer. Seller's transfer of the
Property directly to Buyer reflects Seller's transfer of the Property from
the Investors to AFH, from AFH to AFC, and from AFC to the Buyer, in each
instance in Seller's capacity as the agent of and on behalf of such
transferors.
3. CONSIDERATION:
3.1. EXCHANGE VALUE. In consideration for the sale of the Property
to Buyer, Buyer will deliver to Seller an amount equal to the Exchange Value
for the Property. The Exchange Value for the ownership interests of the
Property with respect to Parcel 1 is $______________, and the Exchange Value
for the ownership interests of the Property with respect to Parcel 2 is
$______________, which shall be paid in the form of, and by issuance and
delivery of, ____ Units to the investors of Seller, to be distributed by the
Transfer Agent at the Closing outside of Escrow in accordance with Section
13.2 hereof. Upon the request of any party hereto, whether made before or
after the Closing, the parties hereto will allocate the Exchange Value to the
Real Property, the Improvements, the Intangibles, the Personal Property and
the Other Assets.
3.2. ADDITIONAL CONSIDERATION. If, after the Close of Escrow, Buyer
completes the sale of the Property for a purchase price which exceeds the
appraised value of the Property, as set forth in the appraisal dated March,
1998 prepared by ____________________________ (the "Appraised Value"), Buyer
will pay to Seller an amount calculated pursuant to the terms of this Section
3.2, which shall be paid in the form of, and by issuance and delivery of, an
additional number of Units equal to the quotient of the net cash proceeds
(exclusive of interest on deferred purchase price payments) received by
Buyer for such sale on or before December 31, 1999 up to 200% of the
Appraised Value divided by $20. (For example, if the Appraised Value of the
Property was $1,750,000 and Buyer received by December 31, 1999 net cash sale
proceeds in the amount of $3,600,000, then the maximum number of additional
Units available for allocation among Seller's investors would be $1,750,000
divided by $20 or 87,500 Units.)
4. ESCROW: Immediately upon execution of this Agreement, Buyer and
Seller will open an escrow (the "ESCROW") with the Escrow Holder by
delivering to Escrow Holder a fully executed copy of this Agreement (the
"OPENING OF ESCROW"). The purchase and sale of the Property will be
completed through the Escrow. Buyer and Seller agree to execute any
additional instructions consistent with this Agreement which are reasonably
required by the Escrow Holder. If there is a conflict between any printed
escrow instructions and this Agreement, the terms of this Agreement will
govern.
5. CANCELLATION FEES AND EXPENSES: If the Closing does not occur at
the time and in the manner provided in this Agreement because of the default
of one of the parties, the non-defaulting party has the right to cancel the
Escrow by written notice to the defaulting party and to the Escrow Holder.
All costs of cancellation, if any, will be paid by the defaulting party.
6.
6. DELIVERIES TO ESCROW HOLDER:
6.1. BY SELLER. On or prior to the Closing Date, Seller will deliver or
cause to be delivered to Escrow Holder the following items:
(a) Two Grant Deeds ("GRANT DEEDS"), in the form attached to this
Agreement as Exhibit B, duly executed and acknowledged by NIF, as Trustee of
Trust VIII, and NIF, as Trustee for Trust IX, respectively, and in recordable
form, conveying the Property to Buyer.
(b) A Transferor's Certificate of Non-Foreign Status attached to
this Agreement as Exhibit C ("FIRPTA CERTIFICATE"), duly executed by or on
behalf of Seller.
(c) A properly executed California Form RE 590 or other evidence
sufficient to establish that Buyer is not required to withhold any portion of
the Exchange Value pursuant to Sections 18805 and 26131 of the California
Revenue and Taxation Code ("FORM 590").
(d) An Assignment and Assumption of Agreements ("ASSIGNMENT") duly
executed by Seller in favor of Buyer in the form attached to this Agreement
as Exhibit D.
(e) If requested by Buyer, a quitclaim deed to the Property or any
portion thereof in favor of Buyer, duly executed and acknowledged by the
Company.
(f) A ▇▇▇▇ of Sale and General Assignment of Intangibles in the
form attached to this Agreement as Exhibit E ("▇▇▇▇ OF SALE"), duly executed
by Seller and conveying all right, title and interest of Seller in the
Personal Property and the Intangibles to Buyer.
(g) Such corporate resolutions, certificates of good standing
and/or other corporate or partnership documents relating to Seller as are
reasonably required by Buyer or Escrow Holder or both in connection with this
transaction.
6.2. BY BUYER. On or prior to the Closing Date, Buyer will deliver or
cause to be delivered to Escrow Holder the following items:
(a) Such corporate resolutions, certificates of good standing
and/or other corporate or partnership documents relating to Buyer as are
reasonably required by Seller or Escrow Holder or both in connection with
this transaction.
(b) Amounts due to pay costs and expenses as set forth in Section
12 hereof.
6.3. BY BUYER AND SELLER. Buyer and Seller will each deposit such
other instruments consistent with this Agreement as are reasonably required
by Escrow Holder or otherwise required to close escrow. In addition Seller
and Buyer hereby designate Escrow Holder as the "REPORTING PERSON" for the
transaction pursuant to Section 6045(e) of the Internal Revenue Code.
7.
7. CONDITION OF TITLE:
7.1. PERMITTED EXCEPTIONS. At the Close of Escrow, fee simple title to
the Property will be conveyed to Buyer by Seller by Grant Deed, subject only
to the following title matters ("PERMITTED EXCEPTIONS"):
(a) all property tax liens (whether or not payments of property
taxes are delinquent) and all other matters shown in that certain Preliminary
Report dated as of _______________, issued by the Title Company, bearing
Order No. ________________, except Exception Nos. __________________________
_________________________________; and
(b) matters affecting the condition of title to the Property
created by, at the request of or with the written consent of Buyer.
7.2. TITLE PROVIDED BY SELLER. The parties agree that (a) except as
specifically provided in the Grant Deed or implied by law, Seller makes no
express or implied warranties regarding the condition of title to the
Property, and (b) Buyer shall rely solely on the Title Policy for protection
against any title defects.
8. CONDITIONS TO THE CLOSE OF ESCROW:
8.1. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. The following
conditions must be satisfied not later the earlier of the Closing Date or
such other period of time as may be specified below:
8.1.1. TITLE. As of the Closing, the Title Company will issue
or have committed to issue to Buyer the title policy described in Section 11.
8.1.2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
Seller will have duly performed each and every agreement to be performed by
seller hereunder and, subject to the provisions of Section 10, Seller's
express representations and warranties set forth in this Agreement will be
true and correct in all material respects as of the Closing Date. However,
notwithstanding anything to the contrary stated or implied in this Section
8.1.2, Seller shall have no liability for the breach of any representations,
warranties or covenants set forth in this Agreement, whether express or
implied, absent a finding by a court of competent jurisdiction that either
▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇ or both of them withheld information with
respect thereto from Buyer or falsified information delivered to and relied
upon by Buyer and that such action amounted to a violation of a
representation or warranty set forth herein.
8.1.3. SELLER'S DELIVERIES. Seller will have delivered the items
described in Section 6.1.
The conditions set forth in this Section 8.1 are solely for the
benefit of Buyer and may be waived only by Buyer. At all times buyer has the
right to waive any condition. Such waiver or waivers must be in writing to
Seller. If any conditions are not satisfied on or before the Closing Date, and
Buyer has not waived the unsatisfied conditions, Seller will not be deemed to
8.
be in default (unless Seller has breached Sections 8.1.2 or 8.1.3 above) and
Buyer's sole remedy will be to terminate this Agreement.
8.2. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. The close
of Escrow and Seller's obligations with respect to this transaction are
subject to the following conditions precedent: (a) Buyer's delivery to
Escrow Holder on or before the Closing Date, of the items described in
Section 6.2; (b) the approval of such of Seller's constituents as seller
shall deem necessary or advisable in its sole and absolute discretion as set
forth in Section 9 hereof; (c) Buyer having duly performed each and every
agreement to be performed by Buyer hereunder; and (d) Buyer's
representations, warranties and covenants set forth in this Agreement, will
be true and correct in all material respects as of the Closing Date. The
conditions set forth in this Section 8.2 are solely for the benefit of Seller
and may be waived only by Seller, with such waiver or waivers to be in
writing to Buyer. If any conditions are not satisfied on or before the
Closing Date, and Seller has not waived the unsatisfied conditions, Buyer
will not be deemed to be in default (unless Buyer has breached Sections
8.2(a), (c) or (d) above) and Seller's sole remedy will be to terminate the
Agreement.
9. APPROVAL OF SELLER'S CONSTITUENTS: Seller shall exercise
reasonable diligence to obtain the approval of this transaction by such of
the constituents of Seller as Seller shall deem necessary or advisable, in
its sole and absolute discretion, and shall notify Buyer and Escrow Holder
when such approvals have been obtained. If Seller is not able to obtain such
approvals from such constituents on or before the date which is ____ days
after the Effective Date, or such later date as is mutually agreed to by
Buyer and Seller, then Seller may cancel this Agreement by notice to Buyer
and Escrow Holder given prior to the end of that time period, and in that
event Seller shall pay all title and escrow cancellation costs. Seller shall
indemnify and hold Buyer harmless from any claim, damage, loss, liability,
action, settlement, including Buyer's reasonable attorneys' fees suffered by
Buyer and which results from or relates to the Seller's securing approval of
this transaction and transferring the Property to Buyer pursuant to such
approval.
10. PROPERTY "AS-IS":
10.1. NO SIDE AGREEMENTS OR REPRESENTATIONS; AS-IS PURCHASE.
BUYER REPRESENTS, WARRANTS AND COVENANTS TO SELLER THAT BUYER HAD THE
OPPORTUNITY TO INDEPENDENTLY AND PERSONALLY INSPECT THE PROPERTY AND
IMPROVEMENTS, IF ANY, AND THAT BUYER HAS ENTERED INTO THIS AGREEMENT AFTER
HAVING MADE SUCH PERSONAL EXAMINATION AND INSPECTION. BUYER AGREES THAT
BUYER WILL ACCEPT THE PROPERTY, IN ITS THEN CONDITION AS-IS AND WITH ALL ITS
FAULTS, INCLUDING WITHOUT LIMITATION, ANY FAULTS AND CONDITIONS SPECIFICALLY
REFERENCED IN THIS AGREEMENT, SUBJECT TO THE EXPRESS COVENANTS, INDEMNITIES,
REPRESENTATIONS AND WARRANTIES MADE BY SELLER ELSEWHERE HEREIN. NO PERSON
ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF,
BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THOSE REPRESENTATIONS,
WARRANTIES, COVENANTS, INDEMNITIES AND AGREEMENTS EXPRESSLY MADE BY SELLER IN
THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES
AND DISCLAIMS ANY
9.
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO:
(A) THE VALUE OF THE PROPERTY OR THE INCOME TO BE DERIVED THEREFROM;
(B) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES
WHICH BUYER MAY CONDUCT THEREON, INCLUDING ANY DEVELOPMENT OF THE PROPERTY;
(C) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY;
(D) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE
PROPERTY;
(E) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY;
(F) THE TYPE, AVAILABILITY OR COST OF ANY ENTITLEMENTS REQUIRED TO DEVELOP
THE PROPERTY;
(G) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS,
RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR
BODY;
(H) THE MANNER, CONDITION OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF
ANY, INCORPORATED INTO THE PROPERTY;
(I) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE
LAWS, RULES, REGULATION, ORDERS OR REQUIREMENTS, INCLUDING BUT NOT LIMITED TO,
THE ENDANGERED SPECIES ACT, TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF
1990 OR ANY OTHER LAW, RULE OR REGULATION GOVERNING ACCESS BY DISABLED PERSONS,
CALIFORNIA HEALTH & SAFETY CODE, THE FEDERAL WATER POLLUTION CONTROL ACT, THE
FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE U.S. ENVIRONMENTAL
PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, THE
RESOURCES CONSERVATION AND RECOVERY ACT OF 1976, THE CLEAN WATER ACT, THE SAFE
DRINKING WATER ACT, THE HAZARDOUS MATERIALS TRANSPORTATION ACT, THE TOXIC
SUBSTANCE CONTROL ACT, AND REGULATIONS PROMULGATED UNDER ANY OF THE FOREGOING;
10.
(J) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, OR
ADJACENT TO THE PROPERTY;
(K) THE CONTENT, COMPLETENESS OR ACCURACY OF ANY MATERIALS, INCLUDING ANY
INFORMATIONAL PACKAGE, COST TO COMPLETE ESTIMATE OR OTHER MATERIALS PREPARED BY
OR ON BEHALF OF SELLER;
(L) THE CONFORMITY OF THE IMPROVEMENTS TO ANY PLANS OR SPECIFICATIONS FOR
THE PROPERTY, INCLUDING ANY PLANS AND SPECIFICATIONS THAT MAY HAVE BEEN OR MAY
BE PROVIDED TO BUYER;
(M) THE CONFORMITY OF THE PROPERTY TO PAST, CURRENT OR FUTURE APPLICABLE
ZONING OR BUILDING REQUIREMENTS;
(N) DEFICIENCY OF ANY UNDERSHORING;
(O) DEFICIENCY OF ANY DRAINAGE;
(P) THE FACT THAT ALL OR A PORTION OF THE PROPERTY MAY BE LOCATED ON OR
NEAR AN EARTHQUAKE FAULT LINE OR LOCATED IN AN ▇▇▇▇▇▇▇-▇▇▇▇▇▇ SPECIAL STUDY
ZONE;
(Q) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS
AFFECTING THE PROPERTY;
(R) ANY AND ALL REQUIREMENTS OR CONDITIONS OF APPROVAL OF STATE AND LOCAL
GOVERNMENTAL AGENCIES FOR DEVELOPMENT OF THE PROPERTY INCLUDING, WITHOUT
LIMITATION, THE CONSTRUCTION OF OFFSITE AND ONSITE ROADS, UTILITIES AND OTHER
IMPROVEMENTS; OR
(S) WITH RESPECT TO ANY OTHER MATTER CONCERNING THE PROPERTY EXCEPT AS MAY
BE OTHERWISE EXPRESSLY STATED HEREIN, INCLUDING ANY AND ALL SUCH MATTERS
REFERENCED, DISCUSSED OR DISCLOSED IN ANY DOCUMENTS DELIVERED BY SELLER TO
BUYER, IN ANY PUBLIC RECORDS OF ANY GOVERNMENTAL AGENCY OR ENTITY OR UTILITY
COMPANY, OR IN ANY OTHER DOCUMENTS AVAILABLE TO BUYER.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT BUYER IS RELYING SOLELY ON ITS
OWN INVESTIGATION OF THE PROPERTY AND ITS OWN REVIEW OF ALL INFORMATION AND
DOCUMENTATION CONCERNING THE PROPERTY, AND NOT ON ANY INFORMATION PROVIDED OR TO
BE PROVIDED BY SELLER. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION MADE AVAILABLE TO BUYER OR PROVIDED OR TO BE PROVIDED BY OR ON
BEHALF OF SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF
SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY
OR COMPLETENESS OF SUCH
11.
INFORMATION EXCEPT AS MAY OTHERWISE BE PROVIDED HEREIN. BUYER AGREES TO FULLY
AND IRREVOCABLY RELEASE ALL SUCH SOURCES OF INFORMATION AND PREPARERS OF
INFORMATION AND DOCUMENTATION TO THE EXTENT SUCH SOURCES OR PREPARERS ARE
SELLER, OR ITS EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES,
BENEFICIARIES, INVESTORS, AGENTS, SERVANTS, ATTORNEYS, AFFILIATES, PARENT
COMPANIES, SUBSIDIARIES, SUCCESSORS OR ASSIGNS FROM ANY AND ALL CLAIMS,
DAMAGES AND LIABILITIES ARISING FROM SUCH INFORMATION OR DOCUMENTATION,
EXCEPT IF AND TO THE EXTENT THAT BUYER EMPLOYS SUCH SOURCES OR PREPARERS OF
INFORMATION TO ACT ON BEHALF OF BUYER, IN WHICH EVENT THE LIABILITY OF SUCH
SOURCES OR PREPARERS OF INFORMATION TO BUYER SHALL BE DETERMINED BY THEIR OWN
INDEPENDENT AGREEMENTS WITH BUYER, AND SELLER SHALL NOT BE LIABLE FOR SUCH
AGREEMENTS OR OBLIGATIONS. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY
ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY OF THE FOREGOING
ENTITIES AND INDIVIDUALS OR ANY OTHER INDIVIDUAL OR ENTITY.
10.2. DISCLOSURES; SPECIFIC ACKNOWLEDGMENT REGARDING CONDITION OF
PROPERTY. Buyer acknowledges the disclosures expressly made by Seller in
this Agreement, the Prospectus and in correspondence from Seller, its
attorneys and/or its agents to Buyer, its attorneys and/or its agents.
11. TITLE INSURANCE: At the Close of Escrow, the Title Company will
issue to Buyer at Buyer's sole cost and expense an ALTA Standard Coverage
Policy (1990) with coverage in an amount equal to the appraised value of the
Real Property as determined by Buyer in its sole discretion, showing title to
the real property vested in buyer, subject only to the permitted exceptions
and the standard printed exceptions and conditions in the policy of title
insurance ("TITLE POLICY"). If Buyer elects to obtain any additional
endorsements or an extended coverage policy, the additional premium and costs
of survey for the extended coverage policy and the cost of any endorsements
will be at Buyer's sole cost and expense; however, Buyer's election to obtain
an extended coverage policy will not delay the Closing and Buyer's inability
to obtain an extended coverage policy or any such endorsements will not be
deemed to be a failure of any condition to Closing.
12. COSTS AND EXPENSES: Buyer will pay the costs of Closing the
transaction as follows:
(a) all premiums for the Title Policy;
(b) all escrow fees and costs;
(c) all city and county documentary transfer taxes;
(d) all document recording charges;
12.
(e) all sales taxes;
(f) one half of all escrow fees and costs;
(g) the entire additional cost of any ALTA extended coverage title
policy, the cost of any required survey and, the cost of any endorsements
required by Buyer; and
(H) All other costs and expenses necessarily incurred to close the
transaction.
13. DISBURSEMENTS AND OTHER ACTIONS:
13.1. ESCROW HOLDER. At the Close of Escrow, Escrow Holder will
promptly undertake all of the following:
(a) Cause the Grant Deeds (with documentary transfer tax
information to be affixed AFTER recording) to be recorded with the County
Recorder and obtain conformed copies thereof for distribution to Buyer and
Seller.
(b) Direct the Title Company to issue the Title Policy to Buyer
within 15 BUSINESS DAYS after Closing.
(c) Deliver to Buyer the FIRPTA Certificate, the Form 590 and any
other documents (or copies thereof) deposited into Escrow by Seller. Deliver
to Seller any other documents (or copies thereof) deposited into Escrow by
Buyer.
(d) Notify the Transfer Agent by telephone and facsimile that the
Close of Escrow has occurred.
13.2. BY TRANSFER AGENT. Promptly after the Close of
Escrow, Transfer Agent shall deliver all Units in payment of the Exchange
Value for the Property to the persons, at the addresses and in the amounts
designated by Seller.
13.3. POSSESSION. Possession of the Other Assets in Seller's possession
or control, the Records and all other Property shall be delivered by Seller
to Buyer at the Close of Escrow.
13.4. ASSUMPTION OF LIABILITIES. All of Seller's accounts receivable
existing at the Closing shall become the property of, and shall be delivered
to, Buyer at the Close of Escrow. Any monies delivered to Seller after the
Close of Escrow shall be held by Seller in trust for the account of Buyer,
and Seller shall forthwith deliver such funds to Buyer. Buyer shall be
liable only for contracts expressly assumed by Buyer pursuant to the
Assignment attached hereto as Exhibit D, and only those current payables
existing at the Close of Escrow, including the Open Purchase Orders which are
listed on Exhibit G hereto, and shall be responsible for the payment thereof
following the Closing. Seller shall remain responsible for all liabilities
and payables not set forth on Exhibit G, or otherwise assumed by Buyer in
writing.
14. JOINT REPRESENTATIONS AND WARRANTIES: In addition to any express
agreements of the parties contained herein, the following constitute
representations and warranties of the
13.
parties each to the other, provided that liability for any breach is subject
to Sections 8.1.2 and 24.13 hereof:
14.1. AUTHORITY. Each party has the legal power, right and authority to
enter into this Agreement and the instruments referenced herein, and to
consummate this transaction.
14.2. ACTIONS. All requisite action (corporate, trust, partnership or
otherwise) has been taken by each party in connection with the entering into
of this Agreement, the instruments referenced herein, and the consummation of
this transaction. Except as provided in Section 9, no further consent of any
partner, shareholder, creditor, investor, judicial or administrative body,
governmental authority or other party is required.
14.3. DUE EXECUTION. The individuals executing this Agreement and the
instruments referenced herein on behalf of each party and the partners,
officers or trustees of each party, if any, have the legal power, right, and
actual authority to bind each party to the terms and conditions of those
documents.
14.4. VALID AND BINDING. This agreement and all other documents
required to close this transaction are and will be valid, legally binding
obligations of and enforceable against each party in accordance with their
terms, subject only to applicable bankruptcy, insolvency, reorganization,
moratorium laws or similar laws or equitable principles affecting or limiting
the rights of contracting parties generally.
14.5. BROKER. Seller represents and warrants to buyer, and buyer
represents and warrants to Seller, that no broker or finder has been engaged
by them, respectively, in connection with any of the transactions
contemplated by this Agreement, or to its knowledge is in any way connected
with any of such transactions. Buyer will indemnify, save harmless and
defend Seller from any liability, cost, or expense arising out of or
connected with any claim for any commission or compensation made by any
person or entity claiming to have been retained or contacted by Buyer in
connection with this transaction. Seller will indemnify, save harmless and
defend Buyer from any liability, cost, or expense arising out of or connected
with any claim for any commission or compensation made by any person or
entity claiming to have been retained or contacted by seller in connection
with this transaction. This indemnity provision will survive the Closing or
any earlier termination of this Agreement.
15. SELLER'S WARRANTIES AND REPRESENTATIONS: Seller makes the
following representations and warranties and acknowledges that buyer will
rely on such representations and warranties in acquiring the Property,
provided that liability for any breach is subject to Sections 8.1.2 and 24.13
hereof:
15.1. NON-FOREIGN ENTITY. Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Internal Revenue Code.
15.2. HAZARDOUS SUBSTANCES. To Seller's Actual Knowledge, since the
date of Seller's acquisition of the Property, no Hazardous Substances are now
or have been used, stored,
14.
generated or disposed of on or within the Property except in the normal
course of use and operation of the Property and in compliance with all
applicable Environmental Laws.
15.3. CLEAN-UP. To Seller's Actual Knowledge, since the date of
Seller's acquisition of the property, there are and have been no federal,
state or local enforcement, clean-up, removal, remedial or other governmental
or regulatory actions instituted or completed affecting the Property, other
than such other matters as may otherwise be disclosed in any Environmental
Audit or in any other documents provided or made available to Buyer.
15.4. CLAIMS. To Seller's Actual Knowledge, there are no outstanding
claims that have been made by any third party against seller relating to any
Hazardous Substances on or within the Property.
15.5. MEMBERSHIPS. To Seller's Actual Knowledge, the list of members
and the status of the payment of the membership dues for such members set
forth in Exhibit F hereto are true, accurate and complete in all material
respects.
The provisions of this Section 15 shall no longer bind Seller if
this Agreement expires or is terminated for any reason, or if the Closing
contemplated hereunder does not occur.
16. PRE-CLOSING COVENANTS. So long as this Agreement remains in full
force and effect:
16.1. NO TRANSFERS. Without the prior written consent of Buyer, Seller
will not convey any interest in the property and will not subject the
Property to any additional liens, encumbrances, covenants, conditions,
easements, rights of way or similar matters after the date of this Agreement,
except as may be otherwise provided for in this agreement, which will not be
eliminated prior to the Close of Escrow. Notwithstanding the foregoing,
Seller may continue to sell RV memberships in the regular course of business.
16.2. NO ALTERATIONS. Seller will not make any material alterations to
the Property without Buyer's consent, which will not be unreasonably withheld
or delayed.
16.3. MAINTENANCE. Seller will maintain the Property in substantially
the same condition as it is in, as of the date of this Agreement, and manage
the Property in accordance with Seller's established practices.
16.4. OBLIGATIONS UNDER CONTRACTS. Seller will keep and perform all
of the obligations to be performed by Seller under any contracts affecting
the Property. Without prior written consent of Buyer, which will not be
unreasonably withheld or delayed, Seller will not enter into any contract or
agreement providing for the provision of goods or services to or with respect
to the Property or the operation thereof unless such contracts or agreements
can be terminated without penalty by the closing date. Seller will not enter
into any leases for any portion of the property.
16.5. EXPENDITURES. Seller will incur only expenditures necessary for
the day-to-day operation and maintenance of the property, and will not incur
capital expenditures or liabilities
15.
not in the ordinary course of business. Seller shall retain all Other Assets
in Seller's possession on or after the date hereof except for payment of such
permitted liabilities and expenditures.
17. CONDEMNATION AND DESTRUCTION:
17.1. EMINENT DOMAIN OR TAKING. If proceedings under a power of
eminent domain relating to the Property or any part thereof are commenced
prior to Close of Escrow, Seller will promptly inform Buyer in writing.
(a) if such proceedings involve the taking of title to all or a
material interest in the Property, Buyer may elect to terminate this Agreement
by notice in writing sent within 10 DAYS of Seller's written notice to Buyer, in
which case neither party will have any further obligation to or rights against
the other except any rights or obligations of either party which are expressly
stated to survive termination of this Agreement.
(b) If the proceedings do not involve the taking of title to all or a
material interest in the Property, or if Buyer does not elect to terminate this
Agreement, this transaction will be consummated as described herein and any
award or settlement payable with respect to such proceeding will be paid or
assigned to Buyer upon Close of Escrow.
(c) If this sale is not consummated for any reason, any condemnation
award or settlement will belong to Seller.
17.2. DAMAGE OR DESTRUCTION. Except as provided in this Section,
prior to the Close of Escrow the entire risk of loss of damage by earthquake,
flood, landslide, fire or other casualty is borne and assumed by Seller. If,
prior to the Close of Escrow, any part of the Improvements is damaged or
destroyed by earthquake, flood, landslide, fire or other casualty, Seller
will promptly inform Buyer of such fact in writing and advise Buyer as to the
extent of the damage and whether it is, in Seller's reasonable opinion,
"MATERIAL" or not "MATERIAL".
(a) If such damage or destruction is "MATERIAL", Buyer has the
option to terminate this Agreement upon written notice to the Seller given
not later than 10 DAYS after receipt of Seller's written notice to Buyer
advising of such damage or destruction.
(b) For purposes hereof, "MATERIAL" is deemed to be any damage or
destruction to the Improvements where the cost of repair or replacement is
estimated to be more than 25% of the Exchange Value of the Property and will
take more than 60 DAYS to repair.
(c) If this Agreement is so terminated, the provisions of Section
5 will govern.
(d) If Buyer does not elect to terminate this Agreement, or if the
casualty is not material, Seller will reduce the Exchange Value by the value
reasonably estimated by Seller to repair or restore the damaged portion of
the Improvements, less any sums expended by Seller to make emergency repairs
to the Improvements or the Property or otherwise protect the physical
condition of the Improvements or the Property, and this transaction will
close pursuant to the terms of this Agreement.
16.
(e) If the damage is not material, Seller's notice to Buyer of the
damage or destruction will also set forth Seller's reduced Exchange Value and
Seller's allocation of value to the damaged portion of the Improvements. If
Buyer does not accept Seller's reduced Exchange Value, Buyer's sole remedy
will be to terminate this Agreement.
(f) Whether or not the sale of the Property is consummated
hereunder, all rights to insurance claims or proceeds in respect of damage or
destruction to the Improvements occurring prior to the Close of Escrow will
belong to Seller.
18. UTILITIES AND DEPOSITS:
18.1. UTILITIES. Seller will notify all utility companies servicing
the Property of the sale of the Property to Buyer and will notify the utility
companies that all utility bills henceforth are to be sent to Buyer. Buyer
shall be entitled to receive any and all refunds of all utility deposits held
by utility companies and Seller will assign to Buyer all of Seller's right,
title and interest in any such utility deposits.
18.2. REFUNDABLE DEPOSITS. To the extent there exists any refundable
deposits made in connection with the development of the Property prior to the
Closing ("Refundable Deposits"), Seller shall assign to Buyer all of Seller's
right, title and interest in and to such Refundable Deposits.
19. EMPLOYEES:
19.1. TERMINATION OF EMPLOYEES.
(a) Effective no later than Closing, the Company will completely and
irrevocably terminate all agreements, contracts, arrangements, commitments and
other obligations pertaining to employment or in the nature of employment
contracts with all persons working at the Property, whether denominated as
"employees" or otherwise (the "Terminated Persons") (such terminations by Seller
are referred to collectively as the "Terminations").
(b) All wages, salary, accrued fringe benefits (including accrued
vacation pay), severance payments (if any), payments required by Consolidated
Omnibus Budget Reconciliation Act of 1986, as amended, and other liabilities,
compensation or amounts owed to Terminated Persons shall be fully paid by Seller
at or prior to Closing, except as follows:
(i) All Terminated Persons to whom Buyer is offering new
employment who are entitled to accrued vacation pay as of Closing shall be
given the option of (x) being paid their accrued vacation pay in cash by
Seller immediately after Closing, or (y) if they accept the offer of new
employment with Buyer, having a credit for their accrued vacation time
included as a fringe benefit to which they would be entitled upon commencing
employment with Buyer, subject to the policies and procedures of Buyer.
17.
(ii) Terminated Persons who elect the first option specified
in Section 5.1(b)(i) (or who do not accept the offer of new employment with
Buyer) shall be paid their accrued vacation pay by Seller immediately after
Closing.
(c) The notification to the employees of the option provided in
Section 19.1(a) shall be in a form mutually agreeable to Buyer and Seller.
(d) Seller shall grant Buyer reasonable opportunities to communicate
with all employees of the Company prior to the Closing for purposes of allowing
Buyer to convey offers of employment, for confirming the terms of such
employment, and for purposes related thereto.
19.2. NO AGREEMENTS OR LIABILITY. Buyer does not agree to adopt or
to continue in effect the terms and conditions of any collective bargaining
agreement between Seller and any labor organization or of any employment
contract between Seller and any employee of Seller. Buyer further does not
agree to retain any or all of the current employees of Seller or to maintain
existing staffing levels or job classifications. In the event that Buyer
decides to make offers of employment to any or all of the current Employees
of Seller, Buyer reserves the right to establish the terms of such offers of
employment and does not agree to maintain or continue in effect any or all of
the current terms and conditions of employment of such employees or to give
them seniority or service credit of any kind for their prior employment.
19.3. INDEMNITY. Seller shall indemnify and hold buyer harmless
from any liability, claims, costs, expenses, including attorney fees and
litigation costs, arising out of or related to the employment of the
terminated persons with Seller or arising out of or related to the
terminations.
20. MEDIATION OF DISPUTES: No party to this Agreement shall initiate
any litigation against any other party to this Agreement concerning any
controversy or claim arising out of or relating to this Agreement or any
agreements or instruments relating hereto or delivered in connection
herewith, including, but not limited to, any claim based on or arising from
an alleged tort, unless and until (i) at least 60 days before the same shall
be filed, a complete copy of each of the summons and complaint (and/or any
other documentation required to initiate such litigation) to be filed by the
complaining party shall have been delivered to the other party or parties to
any such dispute, and (ii) the complaining party has made itself available to
meet in Los Angeles, California with the other party or parties for no more
than 3 business days of non-binding mediation. Until and unless such
mediation has taken place, the complaining party must give notice to the
non-complaining party that it will, and then it must, make itself available
for such mediation during at least 20 business days during the 60 days before
the date on which such summons and complaint will be filed.
21. ARBITRATION OF DISPUTES: ANY CONTROVERSY OR CLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY AGREEMENTS OR INSTRUMENTS RELATING
HERETO OR DELIVERED IN CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED TO A
CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT WILL, AT THE REQUEST OF ANY
PARTY, BE DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (9 U.S.C. SECTION 1 ET
18.
SEQ.) UNDER THE AUSPICES AND RULES OF THE AMERICAN ARBITRATION ASSOCIATION
("AAA"). THE AAA WILL BE INSTRUCTED BY EITHER OR BOTH PARTIES TO PREPARE A
LIST OF THREE (3) JUDGES WHO HAVE RETIRED FROM THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA, A HIGHER CALIFORNIA COURT OR ANY FEDERAL COURT. WITHIN
10 DAYS OF RECEIPT OF THE LIST, EACH PARTY MAY STRIKE 1 NAME FROM THE LIST.
THE AAA WILL THEN APPOINT THE ARBITRATOR FROM THE NAME(S) REMAINING ON THE
LIST. THE ARBITRATION WILL BE CONDUCTED IN SAN FRANCISCO, LOS ANGELES OR SAN
DIEGO, WHICHEVER IS THE CLOSEST CITY TO THE NEXUS OF THE DISPUTE. ANY
CONTROVERSY IN INTERPRETATION OR ENFORCEMENT OF THIS PROVISION OR WHETHER A
DISPUTE IS ARBITRABLE, WILL BE DETERMINED BY THE ARBITRATOR. JUDGMENT UPON
THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. THE INSTITUTION AND MAINTENANCE OF AN ACTION FOR JUDICIAL
RELIEF OR IN PURSUIT OF AN ANCILLARY REMEDY DOES NOT CONSTITUTE A WAIVER OF
THE RIGHT OF ANY PARTY, INCLUDING THE PLAINTIFF, TO SUBMIT THE CONTROVERSY OR
CLAIM TO ARBITRATION.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES'
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND
YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED
IN A COURT OR BY JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING
UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL UNLESS SUCH RIGHTS ARE
SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU
REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE
COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES'
PROVISION TO NEUTRAL ARBITRATION.
BUYER'S INITIALS ________ SELLER'S INITIALS _________
22. NOTICES: All notices or other communications required or permitted
hereunder must be in writing, and must be personally delivered (including by
means of professional messenger service) or sent by overnight courier, or
sent by registered or certified mail, postage prepaid, return receipt
requested to the addresses set forth in Section 1 hereof. All notices sent
by mail will be deemed received 2 days after the date of mailing and all
notices sent by other means permitted herein shall be deemed received on the
earlier of the date delivered or the date on which delivery is refused.
19.
23. ASSIGNMENT: Neither party shall have the right to assign this
Agreement without the other party's prior written consent.
24. MISCELLANEOUS:
24.1. COUNTERPARTS. This Agreement may be executed in counterparts.
24.2. PARTIAL INVALIDITY. If any term or provision of this Agreement
will be deemed to be invalid or unenforceable to any extent, the remainder of
this Agreement will not be affected thereby, and each remaining term and
provision of this Agreement will be valid and be enforced to the fullest
extent permitted by law.
24.3. POSSESSION OF THE PROPERTY. SELLER WILL DELIVER POSSESSION OF
THE PROPERTY TO BUYER UPON THE CLOSE OF ESCROW.
24.4. WAIVERS. No waiver of any breach of any covenant or provision
contained herein will be deemed a waiver of any preceding or succeeding
breach thereof, or of any other covenant or provision contained herein. No
extension of time for performance of any obligation or act will be deemed an
extension of the time for performance of any other obligation or act except
those of the waiving party, which will be extended by a period of time equal
to the period of the delay.
24.5. SUCCESSORS AND ASSIGNS. This Agreement is binding upon and
inures to the benefit of the permitted successors and assigns of the parties
hereto.
24.6. PROFESSIONAL FEES. In the event of the bringing of any action,
arbitration or suit by a party hereto against another party hereunder by
reason of any breach of any of the covenants, agreements or provisions on the
part of the other party arising out of this Agreement, then in that event the
prevailing party will be entitled to have the recovery of and from the other
party all costs and expenses of the action, mediation or suit, actual
attorneys' fees, witness fees and any other professional fees resulting
therefrom.
24.7. ENTIRE AGREEMENT. This Agreement (including all Exhibits
attached hereto) constitutes the entire contract between the parties hereto
with respect to the subject matter hereof and may not be modified except by
an instrument in writing signed by the party to be charged.
24.8. TIME OF ESSENCE. Seller and Buyer hereby acknowledge and
agree that time is strictly of the essence with respect to each and every
term, condition, obligation and provision hereof.
24.9. CONSTRUCTION. Seller and Buyer and their respective advisors
believe that this Agreement is the product of all of their efforts, that it
expresses their agreement and that it should not be interpreted in favor of
or against either Buyer or Seller. The parties further agree that this
Agreement will be construed to effectuate the normal and reasonable
expectations of a sophisticated seller and buyer.
20.
24.10. GOVERNING LAW. The parties hereto expressly agree that this
Agreement will be governed by, interpreted under, and construed and enforced
in accordance with the laws of the State of California.
24.11. WEAR AND TEAR. Buyer specifically acknowledges that Seller
will continue to use the property in the course of its business and accepts
the fact that reasonable wear and tear will occur after the date of this
Agreement. Buyer specifically agrees that Seller is not responsible for
repairing such reasonable wear and tear and that Buyer is prohibited from
raising such wear and tear as a reason for not consummating this transaction
or for requesting a reduction in the Exchange Value.
24.12. NO RECORDATION. No memorandum or other document relating to
this Agreement will be recorded without the prior written consent of Seller,
and any such consent or approval will be conditioned upon buyer providing
Seller with a quitclaim deed fully executed and acknowledged by Buyer,
quitclaiming any and all interests that it may have in the property to
Seller, which quitclaim deed seller may record in the event that this
Agreement is terminated or the transaction contemplated herein is not
consummated.
24.13. SURVIVAL. All obligations of the parties contained herein
which by their terms do not arise until after the Close of Escrow and any
other provisions of this Agreement which by their terms survives the Close of
Escrow, shall survive the Close of Escrow. Notwithstanding anything to the
contrary contained in this Agreement, the representations and warranties
contained in this Agreement shall survive the Closing for a period of 1 year;
provided that any claims by one party hereto must be made in writing to the
other party within the 1 year period.
24.14. DISCLAIMER. Nothing herein creates any right or remedy for
the benefit of any person not a party hereto, nor creates a fiduciary
relationship, an agency or a partnership. All obligations of the parties
contained herein which by their terms do not arise until after the close of
Escrow and any other provisions of this Agreement which by their terms
survives the close of Escrow, shall survive the Close of Escrow.
24.15. WAIVER OF JURY TRIAL. EACH PARTY, ACTING WITH KNOWLEDGE OF
ITS RIGHTS AFTER A FULL OPPORTUNITY TO CONSULT WITH COUNSEL, VOLUNTARILY
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ALL PROCEEDINGS FOR WHICH A TRIAL BY
JURY WOULD OTHERWISE BE AVAILABLE OR REQUIRED, AND WHICH INVOLVE ANY MATTER
ARISING OUT OF OR CONNECTED WITH RIGHTS OR DUTIES UNDER, OR ENFORCEMENT OR
INTERPRETATION OF, THIS AGREEMENT.
21.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year hereinabove written.
"SELLER": "BUYER":
NATIONAL INVESTORS FINANCIAL, INC., A YOSEMITE ▇▇▇▇▇ FAMILY RESORT, INC.,
CALIFORNIA CORPORATION, AS TRUSTEE OF A CALIFORNIA CORPORATION
NATIONAL INVESTORS LAND HOLDING TRUST
VIII
By: By:
--------------------------------- ------------------------
Its: Its:
--------------------------------- ------------------------
and
By:
------------------------
Its:
------------------------
NATIONAL INVESTORS FINANCIAL, INC., A
CALIFORNIA CORPORATION, AS TRUSTEE OF
NATIONAL INVESTORS LAND HOLDING TRUST IX
By:
-----------------------------------
Its:
----------------------------------
AHWAHNEE GOLF COURSE AND RESORT,
INC., A CALIFORNIA CORPORATION
By:
-----------------------------------
Its:
----------------------------------
Agreed to and accepted
by Escrow Holder:
----------------------------------------
By:
------------------------------------
Its:
-----------------------------------
22
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
FORM OF DEED
RECORDING REQUESTED BY,
WHEN RECORDED MAIL TO:
▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
_______
(Above Space For Recorder's Use Only)
GRANT DEED
In accordance with Section 11932 of the California Revenue and Taxation
Code, Grantor has declared the amount of transfer tax which is due by a separate
statement which is not being recorded with this Grant Deed.
FOR A VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED,
_________________________ ("Grantor"), hereby grants to YOSEMITE ▇▇▇▇▇ FAMILY
RESORT, INC., A CALIFORNIA CORPORATION ("Grantee"), the real property in the
County of Madera, State of California, and described in Exhibit A attached
hereto and made a part hereof.
DATED: _____________________, 1997
-------------------------------------
-------------------------------------
By:
-------------------------------------
Its:
-------------------------------------
MAIL TAX STATEMENTS TO:
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF _______________)
On ____________________, before me _____________________________________,
personally appeared _______________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Notary Public in and for said
County and State [SEAL]
Document No. ____________________ Date Recorded_________________
STATEMENT OF TAX DUE AND REQUEST THAT TAX DECLARATION
NOT BE MADE A PART OF THE PERMANENT RECORD
IN THE OFFICE OF THE COUNTY RECORDER
(Pursuant to Section 11932 R&T Code)
To: Registrar-Recorder
County of __________________________
Request is hereby made in accordance with the provisions of the Documentary
Transfer Tax Act that the amount of tax due not be shown on the original
document which names:
------------------------------------
(as grantor)
and
------------------------------------
(as grantee)
Property described in the accompanying document is located in
( ) unincorporated area or (x) City of__________________.
The amount of tax due on the accompanying document is $_______________.
_______ Computed on full value of property conveyed, or
_______ Computed on full value less liens and encumbrances remaining at time
of sale.
------------------------------------
------------------------------------
By:
--------------------------------
Its:
-------------------------------
EXHIBIT C
Seller's FIRPTA Affidavit
CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee
of a U.S. real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding of tax is not
required upon the disposition of a U.S. real property interest by
__________________________ ("TRANSFEROR"), each of the undersigned hereby
certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust and foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Transferor's U.S. employer identification number is ___________;
and
3. Transferor's office address is
_______________________________________, ___________________.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment or both.
Under penalties of perjury each of the undersigned declares that he
has examined this certification and to the best of his knowledge and belief it
is true, correct and complete, and he further declares that he has authority to
sign the document on behalf of the Transferor.
------------------------------------
------------------------------------
By:
--------------------------------
Its:
-------------------------------
EXHIBIT D
ASSIGNMENT AND ASSUMPTION
OF
AGREEMENTS
THIS ASSIGNMENT AND ASSUMPTION OF AGREEMENTS (this "Assignment") is
executed as of ______________, but effective as of the Effective Date (as
hereinafter defined), by and among AHWAHNEE GOLF COURSE & RESORT, INC., a
California corporation (the "COMPANY"), NATIONAL INVESTORS FINANCIAL, INC., a
California corporation ("NIF"), as Trustee of National Investors Land Holding
Trust VIII ("TRUST VIII") and NIF, as Trustee of National Investors Land Holding
Trust IX ("TRUST IX") (the Company, NIF as Trustee for Trust VIII and NIF as
Trustee for Trust IX being referred to collectively as "ASSIGNOR"), and YOSEMITE
▇▇▇▇▇ FAMILY RESORT, INC., a California corporation ("Assignee"), with reference
to the following facts:
RECITALS:
A. Assignor, as the agent of and for the benefit of various
investors, holds title to that certain real property which includes an RV Park
and unimproved and improved single family lots, located in the County of Madera,
State of California, as more particularly described on Exhibit "A" attached
hereto and incorporated herein by reference (the "Property"), holds title to the
Property.
B. Concurrently herewith, Assignor has executed that certain Grant
Deed conveying and granting to Assignee the Property.
C. As part of the transfer and conveyance of the Property to
Assignee, Assignor has agreed to transfer, assign, grant and convey to Assignee
all of its right, title and interest in and to all agreements relating to the
Property, on the terms and conditions herein contained.
NOW, THEREFORE, in consideration of the foregoing Recitals, which
Recitals are by this reference incorporated herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. ASSIGNMENT. Assignor hereby grants, assigns, transfers, sets
over, sells, conveys and delivers to Assignee all of Assignor's right, title,
interest, benefits and privileges under the agreements relating to the Property
which are set forth in Exhibit "B" attached hereto and made a part hereof
(collectively, the "Agreements"). The assignment provided for in this
Section 1 is effective concurrently with the transfer of the Property from
Assignor to Assignee (the "Effective Date").
2. ASSIGNEE'S ASSUMPTION AND INDEMNIFICATION. Assignee hereby
accepts the assignment from Assignor, assumes and agrees to perform all duties
and obligations of Assignor under the terms of the Agreements which are required
to be performed on or after the Effective Date and agrees to indemnify, defend
and hold harmless Assignor from any and all liability, loss, damage, claim, cost
and expense (including, without limitation, reasonable attorneys' fees and
costs) arising or accruing out of a failure of Assignee to perform its
obligations under the Agreements to be performed on and after the Effective
Date.
4. DELIVERIES; REPORTS. On or before the Effective Date,
Assignor shall deliver to Assignee the original Agreements or if such
original Agreements are not in Assignor's possession, certified copies of
such Agreements. Assignor shall furnish and deliver to Assignee, promptly
after receipt thereof, duplicates or copies of all reports, notices,
requests, demands, declarations, certificates or other instruments hereafter
received by Assignor and relating to the Agreements. Assignee's address for
receipt of the foregoing is_________________________________________________
________________________.
5. FURTHER ASSURANCES. Assignor and Assignee shall execute,
acknowledge and deliver all such instruments and take all such action as may be
necessary to further assure to Assignee the rights assigned hereby and the full
benefits hereof and to preserve and protect this Assignment and all of the
rights, powers and remedies of Assignee provided for herein.
6. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon
and inure to the benefit of the successors and assigns of the respective parties
hereto.
7. GOVERNING LAW. This Assignment shall be governed by, and
construed in accordance with, the laws of the State of California.
8. COUNTERPARTS. This Assignment may be executed in several
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date first above written but effective as of the Effective
Date.
ASSIGNOR:
--------------------------------------
ASSIGNEE:
--------------------------------------
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
CONTRACTS
EXHIBIT E
▇▇▇▇ OF SALE AND GENERAL ASSIGNMENT OF INTANGIBLES
This ▇▇▇▇ of Sale and General Assignment of Intangibles is made as of
the ____ day of ___________________________, 1997 (this "Assignment"), by
AHWAHNEE GOLF COURSE & RESORT, INC., a California corporation (the "COMPANY"),
NATIONAL INVESTORS FINANCIAL, INC., a California corporation ("NIF"), as Trustee
of National Investors Land Holding Trust VIII ("TRUST VIII") and NIF, as Trustee
of National Investors Land Holding Trust IX ("TRUST IX") (the Company, NIF as
Trustee for Trust VIII and NIF as Trustee for Trust IX being referred to
collectively as "ASSIGNOR"), to YOSEMITE ▇▇▇▇▇ FAMILY RESORT, INC., a California
corporation ("Assignee").
R E C I T A L
Assignee and Assignor have entered into an Agreement of Purchase and
Sale and Joint Escrow Instructions dated ________, 1997 ("Agreement of Purchase
and Sale") under which Assignee has agreed to purchase from Assignor, that
certain real property and all buildings, structures and improvements on said
real property commonly identified as ______________________, _____________,
State of California and legally described on Exhibit A attached hereto (the
"Property").
TERMS AND CONDITIONS
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns, transfers and sets over unto Assignee,
its successors and assigns, all personal property of Seller, if any, located on
and used in connection with the operation of the improvements on the Property
(the "Personal Property"). Buyer accepts such Personal Property in its "AS-IS"
condition and "WITH ALL FAULTS". Seller specifically disclaims all express or
implied warranties regarding the existence or condition of, or title to, such
Personal Property, including without limitation the implied warranties of
merchantability and suitability for a particular purpose.
2. Assignor hereby assigns, transfers and sets over unto Assignee,
its successors and assigns, all of its right, title and interest in and to the
following ("General Intangibles") if, and only to the extent, that the General
Intangibles exist and Assignor has the right to so transfer them:
(A) All of Assignor's right, title and interest in and to all intangible
property used, owned or issued solely in connection with the Property, including
but not limited to, all licenses, permits, certificates of occupancy, approvals,
maps, dedications, subdivision
maps and entitlements issued, approved or granted by any governmental
agencies or instrumentalities having any jurisdiction over the Property (the
"Authorities") or otherwise in connection with the Property; all development
rights, conditional use permits, variances, "floor area ratio" development
rights and other intangible rights, titles, interests, privileges and
appurtenances owned by Assignor and related to or issued in connection with
the Property and/or its use, occupancy, operation and/or development; all
licenses, consents, easements, rights of way, and approvals required from
private parties to make use of utilities and to insure vehicular and
pedestrian ingress and egress to the Property; and any pending applications
or requests as to any of the foregoing;
(B) All building plans, specifications and drawings,
engineering, and other documents prepared in connection with the construction,
reconstruction, maintenance, repair, or operation any improvements on the
Property (the "Improvements");
(C) All warranties and guarantees relating to the workmanship,
construction, installation materials, and design of the Improvements and the
personal property situated on the Property, including but not limited to those
made by or received from any third party with respect to any building, building
component, structure, fixture, machinery, equipment or material situated on,
contained in any building or other improvement situated on, or comprising a part
of any building or other improvement situated on any part of the Property;
(D) All rights, claims or awards benefiting the Property;
(E) All prepaid fees and fee credits, and all of Seller's right,
title and interest in and to refundable deposits, bonds and other collateral
furnished in connection with development of the Property; and
(F) All rights and general intangibles now owned by Assignor
solely in connection with the Property and any improvement and/or fixture
located on the Property, including, without limitation, the rights to hold, use,
sell and transfer the Property and Improvements and general intangibles.
3. Assignor hereby covenants that it will, at any time and from time
to time upon written request therefor, execute and deliver to Assignee, its
successors and assigns any new or confirmatory instruments and take such further
acts as Assignee may reasonably request to fully evidence the assignment
contained herein and to enable Assignee, its successors and assigns to fully
realize and enjoy the rights and interests assigned hereby.
4. Assignee hereby accepts the foregoing assignment.
5. Assignor hereby represents and warrants to Assignee that it
has not previously assigned or hypothecated its interest in the foregoing
described General Intangibles; however, Assignee shall have no claims or
rights against Assignor, and Assignor shall have no obligation or liability
to Assignee for any General Intangibles described herein which do not exist,
or which Assignor does not have the right to transfer to Assignee.
6. This Assignment shall be binding upon and inure to the benefit of
the legal representatives, assigns, or successors in interest of the Assignor
and Assignee.
IN WITNESS WHEREOF, the Assignor has executed this Assignment as of
_________, 1997.
------------------------------------
------------------------------------
By:
--------------------------------
Its:
-------------------------------
EXHIBIT F
MEMBERSHIP LISTS
TYPE OF MEMBERSHIP MEMBER NAME STATUS OF DUES
TOTAL MEMBERS: ______
EXHIBIT G
PAYABLES TO BE ASSUMED BY BUYER