Exhibit 2.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("AGREEMENT") is made and entered into as
of the 20th day of December, 1996 (the "EFFECTIVE DATE") by and between Crow
Canyon Developers, Ltd., a California limited partnership ("SELLER"), and BRE
Properties, Inc., a Maryland corporation ("BUYER").
R E C I T A L S
This Agreement is made with respect to the following facts and
circumstances:
A. Seller owns certain real property commonly known as Promontory Point
Apartments, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, which real property,
together with certain personal property is collectively referred to in this
Agreement as the "Property" and is more particularly defined below.
B. Subject to the terms and conditions herein, Seller desires to sell and
Buyer desires to purchase the Property.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
Seller and Buyer agree as follows:
1. PURCHASE AND SALE.
1.1 PROPERTY. Subject to the terms and conditions hereof, Seller
hereby agrees to sell, convey and assign to Buyer, and Buyer hereby agrees to
purchase and accept from Seller on the Closing Date (as defined below) the
following (collectively, the "PROPERTY"):
1.1.1 That certain tract or parcel of land situated in the
City of San ▇▇▇▇▇, County of Contra Costa, California which is legally described
on Exhibit 1.1.1 attached hereto, together with any
and all rights, privileges and easements appurtenant thereto, which are owned by
Seller (collectively, the "LAND");
1.1.2 All buildings, structures, fixtures and other
improvements of every kind and description affixed to or located in, on, over,
or under the Land (excluding fixtures owned by tenants) (all of which are
collectively referred to as the "IMPROVEMENTS"); and
1.1.3 All right, title and interest of Seller in and to all
tangible personal property of any type located upon the Land or within the
Improvements, including without limitation, any and all appliances, furniture,
carpeting, draperies and curtains, tools and supplies, and other items of
tangible personal property owned by Seller (excluding cash and any computer
software and further excluding the furniture, which furniture is not owned by
Seller, listed on Exhibit 1.1.3 attached hereto) located on and used exclusively
in connection with the operation of the Land and Improvements (collectively, the
"PERSONAL PROPERTY").
1.2 REAL PROPERTY. The Land and Improvements are collectively
referred to as the "REAL PROPERTY".
1.3 ASSIGNMENT. In addition, Seller shall assign to Buyer all of the
right, title and interest of Seller in and to (i) the leases, rental agreements,
licenses and occupancy agreements applicable to all or any portion of the Real
Property, to the extent in effect on the Closing Date (collectively the
"LEASES") together with any and all security deposits in Seller's possession in
connection therewith; (ii) all assignable service contracts and other
agreements, if any, relating to the Real Property or Personal Property to be
assumed by Buyer as described on Exhibit 1.3 attached hereto (collectively the
"SERVICE CONTRACTS"); (iii) all assignable current licenses, permits,
certificates of occupancy, approvals and entitlements issued or granted in
connection with the Real Property as well as any and all assignable development
rights and any other intangible rights, interests or privileges relating to or
used in connection with the Real Property; (iv) any assignable right to use the
current names of the Real Property, logos, trademarks, tradenames and symbols
and promotional materials; and (v) all transferrable warranties, guarantees or
sureties relating to the Real Property or the Personal Property. The matters to
be assigned by Seller to Buyer and to be assumed by Buyer shall in addition
include that certain Telephone and Telephone Lease and Access Agreement by and
between Seller and GRI Telecommunications, Inc. ("ACCESS AGREEMENT"). Such
assignment shall be made pursuant to the form described in Section 8.1.3 below
("ASSIGNMENT") and all of the above interests as described in this Section 1.3
shall sometimes be referred to collectively as the "INTANGIBLE PROPERTY".
2. PURCHASE PRICE. Buyer shall pay as the total purchase price for the
Property ("PURCHASE PRICE") the sum of Forty-Three Million Two Hundred Fifty
Thousand Dollars ($43,250,000.00). The Purchase Price shall be paid as follows:
2.1 DEPOSIT. On or before Monday, December 30, 1996 Buyer shall
cause Five Hundred Thousand Dollars ($500,000) (the "DEPOSIT") in immediately
available funds to be delivered into Escrow (as defined below). The failure of
Buyer to timely deliver the Deposit shall be a material default, and shall
entitle Seller, at Seller's sole option, to terminate this Agreement immediately
by giving written notice of such termination to Buyer and the Title Company (as
defined below).
2.2 INTEREST ON DEPOSIT. The Deposit shall be held by the Title
Company as an ▇▇▇▇▇▇▇ money deposit towards the Purchase Price. The Deposit
shall be held in Escrow in accordance with the provisions of this Agreement in a
federally insured interest bearing account or other investment suitable for
daily investment reasonably acceptable to Seller and Buyer with any interest
accruing thereon to be paid or credited, except as otherwise provided in this
Agreement, to Buyer. The term "Deposit" shall include any and all interest then
accrued.
2.3 DISPOSITION OF DEPOSIT. At the Closing (as defined below) the
Deposit shall be applied and credited toward the payment of the Purchase Price.
If Escrow does not close, and this Agreement is
terminated in a manner governed by Sections 7.3 or 13, the Deposit will be
disbursed as provided in such Sections. If the Escrow does not close and
neither Section 7.3 nor Section 13 applies, the Deposit shall be promptly
returned to Buyer unless the provisions of Section 18.1 are applicable, in which
case the disposition of the Deposit shall be governed by the provisions of
Section 18.1.
2.4 CASH BALANCE. On or before the Closing, Buyer shall deliver into
Escrow in immediately available funds the balance of the Purchase Price. The
Purchase Price, net of any prorations and closing costs to be paid by Seller as
provided in this Agreement, shall be paid by the Title Company to Seller on the
Closing Date by federal wire transfer of immediately available funds to a bank
account(s) designated by Seller in a written notice to the Title Company given
prior to the Closing.
3. TITLE.
3.1 VESTING OF TITLE. At Closing, Seller shall convey fee simple
title to the Real Property to Buyer by execution and delivery of the Deed (as
defined below). Issuance by the Title Company (or an unconditional commitment
to issue) as of the Closing of the Buyer's Title Policy (as defined below) shall
constitute evidence of delivery of title by Seller.
3.2 BUYER'S TITLE INSURANCE. At Closing, the Title Company shall
issue to Buyer an ALTA owner's form of title insurance policy ("BUYER'S TITLE
POLICY") in the amount of the Purchase Price insuring that fee simple title to
the Real Property is vested in Buyer subject only to the Permitted Exceptions
(as defined below). Buyer shall be entitled to request that the Title Company
provide, at Buyer's cost and expense, such endorsements to the Buyer's Title
Policy as Buyer may reasonably require, provided that such endorsements shall be
at no cost or additional liability to Seller and the Closing shall not be
delayed as a result of Buyer's request.
3.3 PERMITTED EXCEPTIONS. As a condition precedent of Buyer's
obligations as provided in section 7.2.4 but not as a covenant of Seller, Seller
shall convey the Property subject to the following matters, which are
collectively referred to as the "PERMITTED EXCEPTIONS":
3.3.1 All exceptions to title shown in the Title Report (as
defined below) as it may be amended and on the Survey (as defined below) that
are approved or deemed approved by Buyer as provided in Section 6.3 hereof;
3.3.2 the lien of non-delinquent real and personal property
taxes;
3.3.3 the rights of tenants under the Leases;
3.3.4 the Service Contracts to be assumed by Buyer;
3.3.5 those certain rights retained by Seller with respect to
the private telephone and private television system installed at the Real
Property as evidenced by the Declarations of Covenants and Easements described
in Section 10.2;
3.3.6 local, state and federal laws, ordinances or
governmental regulations, including but not limited to, building and zoning
laws, ordinances and regulations, now existing or hereafter in effect with
respect to the Real Property;
3.3.7 matters affecting the condition of title created by or with
the written consent of Buyer; and
3.3.8 standard printed exceptions generally included in an ALTA
owner's policy.
4. ESCROW.
4.1 OPENING OF ESCROW. Seller shall deliver a fully executed
counterpart of this Agreement into escrow ("ESCROW") to be established at First
American Title Guaranty Company, ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("TITLE COMPANY") on or before Monday, December 30,
1996. The Buyer shall cause the Deposit to be delivered into Escrow as provided
in Section 2.1.
4.2 INSTRUCTIONS TO TITLE COMPANY. Seller and Buyer shall each be
entitled to submit escrow instructions to the Title Company in connection with
the Closing of the Escrow. Seller and Buyer shall in addition execute such
further escrow instructions as the Title Company may reasonably require in
connection with the Closing. In the event of any conflict between the terms and
conditions of this Agreement and the provisions of any escrow instructions
prepared by Seller, Buyer or the Title Company, the terms and conditions of this
Agreement shall control.
5. CLOSING.
5.1 CLOSING. The purchase and sale of the Property as contemplated
by this Agreement, including but not limited to the recordation of the Deed and
the completion of the other matters required by this Agreement to be done
contemporaneously (the "CLOSING") shall occur on Tuesday, December 31, 1996 if
reasonably practicable or on such later date as is selected by Seller and Buyer
upon at least one (1) business day prior written notice to the Title Company
provided, however, that the Closing shall occur no later than January 3, 1997.
The date on which the Closing actually occurs shall be referred to as the
"CLOSING DATE".
5.2 FAILURE TO CLOSE. If the Closing does not occur on or before
date set forth in Section 5.1 above (as such date may be extended pursuant to
the express provisions of this Agreement), then in the absence of a written
agreement between the parties to extend the Closing Date, either party hereto
may elect to terminate this Agreement by giving written notice of such
termination to the other and to the Title Company. In such event, except in a
case where the provisions of Section 18.1 are applicable, the Deposit shall be
returned to Buyer.
6. DUE DILIGENCE.
6.1 DUE DILIGENCE PERIOD. The period commencing as of the Effective
Date and continuing through December 30, 1996 ("DUE DILIGENCE DATE") shall be
referred to as the "DUE DILIGENCE PERIOD".
6.2 AVAILABLE INFORMATION. Seller shall make available to Buyer the
following documents and materials (collectively, the "DUE DILIGENCE MATERIALS").
6.2.1 DELIVERED MATERIALS. Prior to the Effective Date,
Seller has delivered or caused to be delivered to Buyer copies of all of the
documents and materials relating to the Property listed on Exhibit 6.2.1
attached hereto.
6.2.2 PROPERTY FILES. Seller shall make available to Buyer
and Buyer's agents and representatives, upon reasonable notice and during normal
business hours, all files in the possession of Seller, or in possession of
Seller's property manager relating to the ownership, operation, construction,
use or occupancy of the Property, or any portion of the Property. Buyer, at its
expense, may make photocopies of such material relative to the Property as Buyer
may determine.
6.2.3 RESTRICTED INFORMATION. Notwithstanding any provision
to the contrary, "Due Diligence Materials" shall not include, and Seller shall
have no obligation to furnish or otherwise make available to Buyer, any of the
following documents: (i) any internally prepared reports or analysis concerning
the valuation or performance of the Property; (ii) any information received from
or concerning any other
potential purchaser of the Property; (iii) any federal or state income tax
returns; (iv) material in possession of Seller relating to the costs of
construction of the Improvements; or (v) any information or documentation that
is privileged or otherwise legally protected from disclosure under applicable
law.
6.2.4 CONFIDENTIALITY. Buyer and its representatives shall
hold in strictest confidence all data and information obtained with respect to
Seller or the Property whether obtained before or after the execution and
delivery of this Agreement, and shall not disclose the same to others; provided,
however, that it is understood and agreed that Buyer may disclose such data and
information to the employees, lenders, consultants, accountants and attorneys of
Buyer provided that such persons agree to treat such data and information
confidentially. In the event this Agreement is terminated or Buyer fails to
perform hereunder, Buyer shall promptly return to Seller any statements,
documents, schedules, exhibits and other written information obtained from
Seller in connection with this Agreement or the transaction contemplated herein.
It is understood and agreed that, with respect to any provision of this
Agreement which refers to the termination of this Agreement and the return of
the Deposit to Buyer, Five Thousand Dollars ($5,000) of the Deposit shall not be
returned to Buyer unless and until Buyer has fulfilled its obligation to return
to Seller the materials described in the preceding sentence. The provisions of
this Section 6.2.4 shall survive Closing or any termination of this Agreement.
6.3 TITLE REVIEW. The period commencing as of the Effective Date and
continuing through December 30, 1996 shall be referred to as the "TITLE REVIEW
PERIOD".
6.3.1 TITLE MATERIAL. Buyer has obtained a current
preliminary title report dated December 2, 1996 ("TITLE REPORT") for the Real
Property prepared by the Title Company, together with a copy of the documents
listed as exceptions therein. Buyer shall cause a copy of the Title Report (as
well as the related documents) to be delivered to Seller. Seller has obtained, a
survey ("SURVEY") of the Real Property prepared by a licensed engineer which
Survey shall be sufficient to provide the basis for an ALTA owner's policy of
title insurance without boundary, encroachment or survey exceptions. The Survey
complies with the requirements set forth on Exhibit 6.3.1 attached hereto. A
copy of the Survey has been provided to Buyer and to the Title Company.
6.3.2 REVIEW OF TITLE. Buyer has reviewed the Title Report
and the Survey and approves the title exceptions as reflected by the Title
Report and the Survey save and except only for exceptions nos. 4, 19 and 20 of
the Title Report which matters Seller will, as a condition precedent of Buyer's
obligations as provided in Section 7.2.4 but not as a covenant of Seller, cause
to be removed as of the Closing.
6.3.3 SUBSEQUENT TITLE DEFECTS. Buyer may, at or prior to
Closing, notify Seller in writing (the "SUBSEQUENT TITLE DEFECTS NOTICE") of any
objection(s) to title exceptions (a) raised by the Title Company between the
expiration of the Title Review Period and the Closing and (b) not disclosed by
the Title Company or otherwise known to Buyer prior to the expiration of the
Title Review Period; provided that Buyer must notify Seller of such objection(s)
to title within two (2) business days of being made aware of the existence of
such exception. If Buyer gives a Subsequent Title Defects Notice to Seller,
Seller shall have two (2) business days after receipt of the Subsequent Title
Defects Notice to notify Buyer (a) that Seller will remove such objectionable
exceptions from title on or before the Closing; provided that Seller may extend
the Closing for such period as shall be required to effect such cure, but not
beyond ten (10) days; or (b) that Seller elects not to cause such exceptions to
be removed. If Seller fails to timely give such notice to Buyer, Seller shall
have been deemed to have given notice to Buyer under clause (b). Seller shall
have no obligation to remove any title exceptions to which Buyer objects. The
procurement by Seller of a commitment of the Title Company for Buyer's Title
Policy or an endorsement thereto insuring Buyer against any title exception
which was disapproved pursuant to this Section 6.3.3 shall be deemed a cure by
Seller of such disapproval. If Seller gives or is deemed to have given notice
under clause (b) above, Buyer shall have two (2) business days from the date on
which such notice to Buyer is given in which to notify Seller that Buyer will
nevertheless proceed with the purchase and take title to the Property subject to
such exceptions or that Buyer will terminate this Agreement. If Buyer fails to
timely give such notice, Buyer shall be deemed to have elected to terminate this
Agreement. If this Agreement is terminated
pursuant to the foregoing provisions of this Section 6.3.3 then neither party
shall have any further rights or obligations hereunder (except with respect to
those matters expressly set forth to survive such termination), the Deposit
shall be returned to Buyer and each party shall bear its own costs incurred
hereunder.
6.4 INSPECTION; RIGHT OF ENTRY. Buyer and Buyer's agents,
contractors, engineers, consultants, employees and other representatives
(collectively, "BUYER'S REPRESENTATIVES") shall have the right, during the Due
Diligence Period and subject to the terms and conditions of Section 6.6 below,
(i) to enter the Real Property to inspect the same (including the performance of
environmental audits of the Real Property in accordance with the terms of
Section 6.4.1 and 6.4.2 below), upon reasonable notice to Seller, provided that
Buyer does not unreasonably disturb any business of Seller in connection with
the Property or any tenant of the Real Property, (ii) to contact representatives
of third parties who have executed Service Contracts with Seller or Seller's
representatives regarding the Real Property; and (iii) to contact
representatives of Seller's property manager, if any, regarding the Property.
Buyer shall keep the Property free and clear of any mechanics' liens,
materialmen's liens or claims arising out of any of Buyer's activities or those
of Buyer's Representatives on or with respect to the Real Property. All entries
on to the Real Property by Buyer and all inspections and examinations thereof
shall be at Buyer's sole cost and expense, shall be done in a workmanlike manner
in accordance with all applicable codes, statutes, ordinances, rules,
regulations and laws and shall not disturb in any way the quiet occupancy or
enjoyment of any tenant or other occupant of the Real Property. Buyer shall not
perform any test or inspection or carry out any activity at the Real Property
which damages the Real Property in any way or which is physically intrusive into
the Improvements or soil of the Real Property without the prior written consent
of Seller, which Seller may withhold in its sole and absolute discretion. After
each entry onto any portion of the Real Property, Buyer, at its sole cost and
expense shall repair (which shall include replacement where necessary) any
damage to the Real Property arising from such entry. In connection with any
inspections of the Real Property, Buyer and Buyer's Representatives will carry
liability insurance adequate in Seller's reasonable judgement and, upon the
request of Seller, will provide Seller with written evidence of same. Buyer
will give Seller reasonable prior notice of its intention to conduct any
inspects or tests with respect to the Real Property and Seller reserves the
right to have a representative present.
6.4.1 PHASE I ENVIRONMENTAL AUDIT. During the Due Diligence
Period, Buyer may conduct (or have conducted on its behalf by an environmental
auditor) a Phase I environmental audit of the Real Property, subject to the
terms and conditions of Sections 6.4.2 and 6.6 below.
6.4.2 ENVIRONMENTAL CONDITIONS. In the event that Buyer
shall enter the Real Property for purposes of conducting a Phase I environmental
audit of the Real Property, Buyer shall provide Seller with at least forty-
eight (48) hours' prior written notice of its intent thereof. Buyer shall not
conduct a Phase II environmental audit of the Real Property without the prior
written consent of Seller which consent may be withheld or granted in the sole
and absolute discretion of Seller. Buyer's shall not disclose to any third
party, other than Buyer's consultants, agents and attorneys associated with any
environmental investigation of the Real Property, the results of any of Buyer's
inspections or testing of the Real Property. Prior to performing any
environmental inspections or testing of the Real Property, Buyer shall obtain
any required permits and authorizations and shall pay all applicable fees
required by any public body or agency in connection therewith.
6.5 BUYER'S REPORTS. If the Escrow fails to close for any reason
other than Seller's material breach of this Agreement, then all studies, surveys
(including, without limitation the Survey), reports, test results and analyses
concerning the Real Property prepared by, for or on behalf of Buyer in
connection with the Real Property (collectively, "BUYER'S REPORTS") shall at the
option of Seller, immediately be delivered and assigned to Seller free and clear
of all claims and at no cost, expense or liability to Seller. Buyer shall not
be required to deliver to Seller internally prepared reports or analyses
concerning the valuation or potential performance of the Real Property. Any
Buyer's Reports delivered to Seller at Seller's request pursuant to this Section
6.5 shall be delivered without representation or warranty, nor shall Seller
assert any warranty or rights against the consultants of Buyer who have prepared
such Buyer's Reports.
6.6 INDEMNITY. Buyer shall indemnify, defend by counsel reasonably
acceptable to Seller, and hold Seller harmless from and against any and all
costs, expenses, claims, demands or liens, (including, without limitation,
mechanics' liens) including reasonable attorneys' fees, arising from or in any
fashion related to the entry by Buyer or Buyer's Representatives on the Real
Property or the performance by Buyer or Buyer's Representatives of any testing
or investigations of the Real Property except with respect to any loss or
liability incurred by Seller resulting from the mere discovery by Buyer or Buyer
Representatives of the presence of hazardous materials at the Property or the
existence of other defects with respect to the Property. Without limiting the
scope or generality of the foregoing indemnity, Buyer shall not permit any
mechanics', materialman's, or other lien against all or any part of the Real
Property to exist as the result of any activity by Buyer or Buyer's
Representatives undertaken in connection with the Real Property. If any such
lien shall be filed against the Real Property or any portion of the Real
Property, Buyer shall cause the lien to be discharged within five (5) business
days after the filing thereof. The provisions of this Section 6.6 shall survive
the Closing and delivery of the Deed and shall further survive any earlier
termination of this Agreement.
6.7 APPROVAL BY BUYER. Buyer shall have the right to review and
approve, in its sole discretion, during the Due Diligence Period, (i) the Due
Diligence Materials, (ii) the physical and environmental condition of the Real
Property, including, without limitation, the condition of the Improvements, the
condition of the soil at the Real Property, the condition of the ground water at
the Real Property, and the presence or absence of any hazardous materials at the
Real Property, (iii) the financial condition of the Property, including, without
limitation, the feasibility, convertibility, desirability and suitability of the
Property for Buyer's intended use and purposes, (iv) the legal condition of the
Property, including, without limitation, the Property's compliance or non-
compliance with all statutes, ordinances, codes, regulations, decrees, orders
and laws applicable to the Property, (v) the Leases, (vi) the Service Contracts,
if any, being assumed by Buyer, (vii) the existence or non-existence of any
governmental or quasi-governmental entitlements, if any, affecting the Property
or any portion of the Property, (viii) any dimensions or specifications of the
Real Property or any part thereof, (ix) the zoning, building and land use
restrictions applicable to the Real Property or any portion thereof, and (x) all
other matters which Buyer deems relevant to its purchase of the Property. In
the event that Buyer elects to approve all of the matters as summarized in this
Section 6.7 with respect to the Property, Buyer shall give written notice of
such approval to Seller ("APPROVAL NOTICE") on or before the Due Diligence Date.
The Approval Notice, if given by Buyer must be in the form of Exhibit 6.7
attached hereto. If Buyer fails to timely give the Approval Notice to Seller,
Buyer shall conclusively be deemed to have disapproved the Property and more
particularly the matters set forth in this Section 6.7 in which case this
Agreement shall terminate, all rights and obligations hereunder of each party
shall be at an end (except those matters which are specifically stated in this
Agreement to survive the termination), the Deposit shall be promptly returned to
Buyer and each party shall bear its own costs incurred hereunder. If Buyer
timely gives the Approval Notice to Seller, then Buyer shall be considered to
have elected to proceed with the purchase of the Property in accordance with the
provisions of this Agreement, Buyer shall have no further rights with respect to
this Section 6.7, the condition for the benefit of Buyer as set forth in Section
7.2.5 shall be considered to have been satisfied and Buyer shall have not
further rights to assert the condition set forth in such Section.
6.8 PRIOR DUE DILIGENCE. Seller and Buyer acknowledge that by
reason of delays which have occurred in the execution of this Agreement, the due
diligence as contemplated by this Section 6 has for the most part occurred prior
to the Effective Date and that prior to the Effective Date the parties have been
proceeding on an informal basis in connection with the due diligence as
contemplated by the provisions of this Section 6.
7. CONDITIONS TO CLOSING.
7.1 SELLER'S CONDITIONS. The obligation of Seller to sell and convey
the Property pursuant to this Agreement is subject to the satisfaction on or
before the Closing Date (or such earlier date as is specifically set forth in
this Agreement) of all of the following conditions precedent, which conditions
are for the benefit of Seller only and the satisfaction of which may be waived
only in writing by Seller:
7.1.1 BUYER'S DELIVERIES. Delivery and execution by Buyer of
all monies, items and instruments required to be delivered by Buyer pursuant to
this Agreement;
7.1.2 BUYER'S REPRESENTATIONS. Buyer's warranties and
representations set forth herein shall be true and correct as of the Closing
Date;
7.1.3 BUYER'S PERFORMANCE. Buyer shall have performed each
and every agreement to be performed by Buyer pursuant to this Agreement.
7.1.4 APPROVAL NOTICE. Buyer shall have timely given the
Approval Notice to Seller in accordance with the provisions of Section 6.7; and
7.1.5 ACCESS AGREEMENT AND ENCUMBRANCE. On or before the Due
Diligence Date, Seller and Buyer shall have agreed upon any modification of the
Access Agreement and any further encumbrance of the Real Property as provided in
Section 10.2.
7.2 BUYER'S CONDITIONS. The obligation of Buyer to acquire the
Property pursuant to this Agreement is subject to the satisfaction on or before
the Closing Date (or such earlier date as is specifically set forth in this
Agreement) of all of the following conditions precedent which conditions are for
the benefit of Buyer only and the satisfaction of which may be waived only in
writing by Buyer:
7.2.1 SELLER'S DELIVERIES. Delivery and execution by Seller
of all instruments and other items required to be delivered by Seller pursuant
to this Agreement;
7.2.2 SELLER'S REPRESENTATIONS. Seller's warranties and
representations set forth herein shall be true and correct as of the Closing
Date;
7.2.3 SELLER'S PERFORMANCE. Seller shall have performed each
and every agreement to be performed by Seller pursuant to this Agreement;
7.2.4 BUYER'S TITLE POLICY. As of the Closing, the Title
Company shall have issued or shall have committed to issue, upon the sole
condition of the payment of its regularly scheduled premium, the Buyer's Title
Policy;
7.2.5 BUYER'S APPROVAL. On or before the Due Diligence Date,
Buyer shall have given the Approval Notice to Seller; and
7.2.6 ACCESS AGREEMENT AND ENCUMBRANCE. On or before the Due
Diligence Date, Seller and Buyer shall have agreed upon any modification of the
Access Agreement and any further encumbrance of the Real Property as provided in
Section 10.2.
7.3 FAILURE OF CONDITIONS. If any of the conditions set forth in
Sections 7.1 or 7.2 are not timely satisfied or waived, for any reason other
that the default of Buyer or Seller under this Agreement, then this Agreement
and the rights and obligations of Buyer and Seller shall terminate and be of no
further force or effect except as to those matters as specifically stated in
this Agreement to survive termination, in which case the Title Company is hereby
instructed to return promptly to the party which placed such items into Escrow
all funds (including the Deposit which is to be promptly returned to Buyer) and
documents which are held by the Title Company on the date of termination.
7.4 SATISFACTION OF CONDITIONS. The occurrence of the Closing shall
constitute satisfaction of conditions set forth in Sections 7.1 and 7.2 not
otherwise specifically satisfied or waived by Buyer or Seller.
8. DELIVERIES INTO ESCROW.
8.1 DELIVERIES BY SELLER. Seller shall deliver or cause to be
delivered into Escrow the following documents duly executed and acknowledged
where appropriate:
8.1.1 DEED. A grant deed (the "DEED") in the form attached
hereto as Exhibit 8.1.1 conveying the Real Property to Buyer as provided in this
Agreement which Deed is to be duly executed and acknowledged by Seller;
8.1.2 ▇▇▇▇ OF SALE. ▇▇▇▇ of sale ("▇▇▇▇ OF SALE") in the
form attached hereto as Exhibit 8.1.2 conveying the Personal Property to Buyer
which ▇▇▇▇ of Sale is to be duly executed by Seller;
8.1.3 ASSIGNMENT. The Assignment in the form attached hereto
as Exhibit 8.1.3 which is to be duly executed by Seller and Buyer;
8.1.4 FIRPTA. Certificate of non-foreign status to confirm
that Buyer is not required to withhold part of the Purchase Price pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended which is to be
duly executed by Seller;
8.1.5 FORM 590. Franchise Tax Board Form (590) which is to
be duly executed by Seller;
8.1.6 RENT ROLL AFFIDAVIT. A rent roll affidavit attaching
the Rent Roll (as defined below) updated to the Closing Date, certifying that it
is true and correct in all material respects as of the Closing Date which is to
be duly executed by Seller;
8.1.7 SELLER'S AUTHORITY. Such proof of Seller's authority
and authorization to enter into this Agreement and consummate the transaction
contemplated hereby and such proof of the power and authority of the
individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of Seller to act for and bind Seller as may be reasonably
required by Title Company or Buyer; and
8.1.8 OTHER DOCUMENTS. Such other documents as may be
reasonably necessary and appropriate to complete the Closing of the transaction
contemplated herein.
8.2 DELIVERIES BY BUYER. Buyer shall deliver or cause to be
delivered into Escrow the following documents duly executed and acknowledged
where appropriate:
8.2.1 CASH. The cash portion of the Purchase Price and such
additional sums as are necessary to pay the Buyer's share of closing costs,
prorations and any fees as more particularly set forth in Section 9 below;
8.2.2 ASSIGNMENT. The Assignment which is to be duly
executed by Seller and Buyer;
8.2.3 BUYER'S AFFIDAVIT AND AGREEMENT. Buyer's Affidavit and
Agreement in the form attached hereto as Exhibit 8.2.3 which is to be duly
executed by Buyer;
8.2.4 BUYER'S AUTHORITY. Such proof of Buyer's authority and
authorization to enter into this Agreement and consummate the transaction
contemplated by this Agreement, and such proof of the power and authority of the
individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of Buyer to act for and bind Buyer as may be reasonably
required by Title Company or Seller; and
8.2.5 OTHER DOCUMENTS. Such other documents as may be
reasonably necessary and appropriate to complete the Closing of the transaction
contemplated herein.
8.3 TENANT NOTIFICATION LETTERS. Seller shall execute a tenant
notification letter in the form attached hereto as Exhibit 8.3 to each tenant of
the Real Property (the "TENANT NOTIFICATION LETTER"), indicating the change of
ownership of the Property with the name and address of the Buyer and the Closing
Date, and shall upon the Closing deliver an executed Tenant Notification Letter
to Buyer with respect to each tenant of the Real Property.
8.4 DELIVERY TO BUYER UPON CLOSING. Seller shall deliver possession
of the Property to Buyer upon the Closing.
8.5 DELIVERY FOLLOWING CLOSING. Following the Closing, Seller shall
promptly deliver to Buyer: (i) the originals of the Leases; (ii) the originals
of the Service Contracts; (iii) all building plans and specifications with
respect to the Real Property which are in the possession of Seller or reasonably
accessible to Seller or its property manager; (iv) all structural reviews,
architectural drawings, engineering, soils, seismic, geologic and architectural
reports in the possession of Seller or reasonably accessible to Seller or its
property manager; and (v) such other matters and documents in the possession of
Seller or reasonably accessible to Seller or to its property manager as Buyer
may reasonably request.
9. PRORATIONS; CLOSING COSTS; CREDITS.
9.1 PRORATIONS.
9.1.1 RENT. Rents, revenues, and other income from the
Property, actually collected as of the Closing, shall be prorated through Escrow
as of 12:01 a.m. on the Closing Date. Any prepaid rent paid by a tenant of the
Property shall be credited to Buyer. If any rent or other payments under the
Leases are in arrears as of the Closing Date, Buyer shall use reasonable efforts
following the Closing to collect such rent or other payments provided that in no
event shall Buyer be obligated to commence litigation to effect collection.
Delinquent rent collected by Seller subsequent to the Closing shall be promptly
paid to Buyer to the extent that Buyer is entitled to such rent in connection
with the period on and after the Closing Date, and delinquent rent collected by
Buyer, subsequent to the Closing shall be promptly paid to Seller to the extent
that Seller is entitled to such rent pursuant to the provisions of this
Agreement relating to the period prior to the Closing Dated. Seller and Buyer
agree that all rent received by Seller or Buyer following Closing shall be
applied first to current rent and then to delinquent rent, if any. Seller shall
be entitled to attempt to collect any delinquent rents owed Seller and may
institute litigation to effect such collection but shall not be entitled to
evict any tenant of the Property.
9.1.2 TAXES AND ASSESSMENTS. All non-delinquent real estate
taxes on the Property shall be prorated through Escrow based on the actual
current tax ▇▇▇▇ as of 12:01 a.m. on the Closing Date. If after the Closing,
supplemental real estate taxes are assessed against the Property by reason of
any event occurring prior to the Closing Date, Buyer and Seller shall adjust the
proration of the real estate taxes following the Closing. Any delinquent taxes
on the Property shall be paid at the Closing from funds accruing to Seller. The
assessments on the Real Property described as Exception No. 4 of the Title
Report in the maximum amount of One Million Seven Hundred Twenty-Eight Thousand
Nine Hundred Eighty-Four Dollars and Forty-Two cents ($1,728,984.42) shall be
paid at the Closing from funds accruing to Seller. Any refund in connection
with real estate taxes relating to the Property attributable to the period prior
to the Closing Date shall be paid to Seller.
9.1.3 OPERATING EXPENSES. Operating expenses payable by the
owner of the Real Property and all other customary charges or costs incident to
the ownership of the Property shall be prorated through Escrow as of 12:01 a.m.
on the Closing Date. Seller shall be responsible for all operating expenses
accruing and attributable to the Property through the day prior to the Closing
Date and Buyer shall be responsible for all operating expenses accruing and
attributable to the Property commencing as of the Closing Date. Seller shall
not assign to Buyer any deposits which Seller has with any utility companies
servicing the
Property. Buyer shall arrange with such companies to have accounts open in
Buyer's name beginning at 12:01 a.m. on the Closing Date. To the extent
possible, Seller and Buyer shall obtain ▇▇▇▇▇▇▇▇ and meter readings as of the
Closing Date and all operating expenses shall be prorated based upon the
information then available. Seller and Buyer shall make any adjustments
required to be made subsequent to the Closing in the event the information
available at the Closing is incorrect. The proration of operating expenses to
be made pursuant to this Section 9.1.3 shall be made outside of Escrow and the
Title Company shall have no responsibility for such proration.
9.1.4 SERVICE CONTRACTS. The amounts payable under the
Service Contracts which shall be assumed pursuant to the provisions of the
Assignment, shall be prorated through Escrow on an accrual basis as of 12:01
a.m. on the Closing Date. Seller shall pay all amounts due thereunder which
accrue prior to the Closing Date and Buyer shall pay all amounts accruing on the
Closing Date and thereafter. Buyer shall have no responsibility for service
contracts not specifically being assumed by Buyer pursuant to this Agreement.
Those Service Contracts which Buyer elects during the Due Diligence Period not
to assume by giving written notice of such election to Seller shall be
terminated by Seller as of the Closing, provided, however that with respect to
those Service Contracts which require a termination notice longer than that
allowed by reason of the date of the Closing (which in all events shall be no
greater than thirty (30) days notice) provided that Seller has given notice of
termination on or prior to the Closing Date, Buyer shall be responsible for the
obligations that relate to such terminated Service Contracts for the period from
and after the Closing Date and Seller shall be responsible for the obligations
that relate to the period prior to the Closing Date. Buyer shall have no
responsibility for Service Contracts which Buyer has elected not to assume for
any period in excess of thirty (30) days following the Closing Date. Seller
shall not be obligated to terminate the Service Contracts which Buyer has
elected not to assume any earlier than the Closing Date.
9.1.5 CALCULATION OF PRORATIONS. All prorations shall be
made on the basis of the actual number of days of the year and month which have
elapsed as of 12:01 a.m. on the Closing Date.
9.1.6 PROFORMA CLOSING STATEMENT. Buyer and Seller shall
reasonably cooperate to produce at least one business day prior to the Closing
Date, a schedule of prorations in accordance with the provisions of this
Agreement which is as complete and accurate as is then reasonably possible. All
prorations which can be reasonably estimated as of the Closing Date shall be
made in Escrow on the Closing Date, provided, however, that the proration of
Operating Expenses shall be made outside of Escrow on the Closing Date. All
other prorations and any adjustments to the initial estimated prorations, shall
be made by Buyer and Seller within thirty (30) days following the Closing or
such later time as may be reasonably required, in the exercise of due diligence
to obtain the necessary information. Any net credit due one party from the
other as the result of such post-Closing prorations and adjustments shall be
paid to the other in cash immediately upon the parties' written agreement to a
final schedule of post-Closing adjustments and prorations.
9.2 CLOSING COSTS.
9.2.1 SELLER'S COSTS. Seller shall pay (i) the premium for
the standard coverage CLTA portion of the Buyer's Title Policy; (ii) all
documentary and transfer taxes; (iii) fifty percent (50%) of all escrow fees;
and (iv) all sales taxes, if any.
9.2.2 BUYER'S COSTS. Buyer shall pay (i) fifty percent (50%)
of all escrow fees and costs, and all recording costs; (ii) the incremental
premium for the ALTA portion of Buyer's Title Policy and the premium for any
endorsements; (iii) the premium for the Buyer's lender's title policy, if any;
and (iv) the cost of the Survey.
9.3 CREDITS. Buyer shall be credited and Seller shall be debited in
an amount equal to all security deposits in Seller's possession with regard to
the Leases, except to the extent that Seller was entitled to and did apply any
part of such deposits to tenant obligations under the respective Leases.
9.4 OTHER EXPENSES. Buyer and Seller shall each pay all legal and
professional fees and fees of other consultants incurred by Buyer and Seller
respectively.
10. OPERATION OF PROPERTY PENDING THE CLOSING. Following the Effective
Date and pending the Closing, the Seller shall operate the Property in
accordance with the following:
10.1 NORMAL COURSE OF BUSINESS. Seller shall continue to operate,
manage and maintain the Property in such condition so that the Property shall be
in the same condition as of the Closing Date as it is as of the Effective Date,
reasonable wear and tear and casualty excepted. Seller shall maintain all
existing insurance policies in connection with the Property and shall keep in
effect and renew without modification all licenses, permits and entitlements
applicable to the Property. Seller's existing liability and property insurance
pertaining to the Property may be cancelled by Seller as of the Closing Date.
Seller shall not make any material alterations to the Property or remove any
Personal Property without the prior written approval of Buyer.
10.2 FURTHER ENCUMBRANCES. Seller shall not voluntarily execute any
documents or otherwise take any action which will have the result of encumbering
the Property in any fashion whatsoever, provided, however, that Seller shall be
entitled to modify the Access Agreement and shall further be entitled to
encumber the Real Property by recording against the Real Property prior to the
Closing the Declaration of Covenants and Easements in the form attached hereto
as Exhibit 10.2. All modifications to the Access Agreement and all
modifications, if any, to the Declaration of Covenants and Easements shall be
completed in a manner reasonably acceptable to Seller and Buyer. Seller and
Buyer shall have agreed in writing on any modification of the Access Agreement
and/or modification of the Declaration of Covenants and Easements on or prior to
the Due Diligence Date.
10.3 LEASING. Attached as Exhibit 10.3 is a summary of the leasing
criteria employed by Seller in connection with the Real Property. Prior to the
Closing Seller shall be entitled to continue to lease apartments units within
the Real Property in accordance with the leasing criteria attached as Exhibit
10.3. In the event that Seller modifies the leasing criteria, Seller shall
promptly give Buyer written notice of such modification.
11. REPRESENTATIONS AND WARRANTIES.
11.1 NO REPRESENTATIONS OR WARRANTIES BY SELLER. Except as expressly
set forth in this Agreement, Seller has not made any warranty or representation,
express or implied, written or oral, concerning the Property.
11.2 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Buyer that:
11.2.1 AUTHORITY. This Agreement constitutes the valid and
binding obligation of Seller and is enforceable against Seller in accordance
with its terms, subject to bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally and general equitable principles.
Seller is a limited partnership, validly formed, duly organized and in good
standing under the laws of the State of California. Seller has full power and
authority to enter into and perform this Agreement. The execution and delivery
of this Agreement, delivery of money and all required documents, Seller's
performance of this Agreement and the transaction contemplated hereby have been
duly authorized by the requisite action on the part of Seller. Neither the
execution and delivery of this Agreement, nor the transaction contemplated by
this Agreement will conflict in any material respect or constitute a breach
under any agreement or instrument by which Seller or the Property is bound.
11.2.2 PENDING ACTIONS. To Seller's knowledge, Seller has not
received notice of any action, suit, arbitration, unsatisfied order or judgment,
government investigation or proceeding pending against Seller which, if
adversely determined, could individually or in the aggregate materially
interfere with the consummation of the transaction contemplated by this
Agreement.
11.2.3 SERVICE CONTRACTS. To Seller's knowledge, the Service
Contracts listed on Exhibit 1.3 are all of the agreements concerning the
operation and maintenance of the Property entered into by Seller and affecting
the Property, except those operating agreements that are not assignable and
except any agreement with Seller's property manager, which shall be terminated
by Seller.
11.2.4 CONDEMNATION. To Seller's knowledge, Seller has received
no notice of any pending condemnation proceedings relating to the Real Property.
11.2.5 LITIGATION. To Seller's knowledge, except tenant
eviction proceedings, tenant bankruptcies, proceedings for the collection of
delinquent rentals from tenants and proceedings related to claims for personal
injury or damage to property due to events occurring at the Real Property,
Seller has not received notice of any litigation which has been filed against
Seller that arises out of the ownership of the Property and would materially
affect the Property or use thereof, or Seller's ability to perform hereunder;
11.2.6 VIOLATIONS. To Seller's knowledge, Seller has not
received notice of any uncured violation of any federal, state or local law
relating to the use or operation of the Property which would materially
adversely affect the Property or use thereof;
11.2.7 RENT ROLL. To Seller's knowledge, the rent roll ("RENT
ROLL") attached hereto as Exhibit 11.2.7 is accurate in all material respects,
and lists all of the Leases currently affecting the Property;
11.2.8 FINANCIAL RECORDS. To the best of Seller's knowledge,
the operating statements with respect to the Real Property dated December 31,
1995 and through August 1996 delivered to Buyer pursuant to Section 6.2.1 of
this Agreement, are complete and accurate in all material respects as of the
date thereof, and were prepared on a consistent basis in accordance with sound
accounting principles.
11.2.9 ACCESS. To the best of Seller's knowledge, no fact or
condition exists which may result in the termination or reduction of the current
access from the Real Property to existing roads and highways.
11.2.10 FOREIGN PERSON. Seller is not a "foreign person" as
defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and
the income tax regulations issued thereunder.
11.2.11 ENVIRONMENTAL COMPLIANCE. To Seller's knowledge, no
materials regulated under any federal, state or local law or regulation in
effect as of the Closing Date as toxic or hazardous (including, without
limitation, asbestos and petroleum) are located on, in or under the Real
Property.
11.2.12 APPLIANCES. At the Closing, each apartment unit located
in the Improvements will be fully equipped with the appliances and mechanical
fixtures (e.g., ceiling fans, if any) as required for the type of unit within
the Real Property. Such appliances and mechanical fixtures shall be in working
order as of the Closing Date.
11.2.13 LEASES. To Seller's knowledge, Seller has not received
notice of any claimed default by Seller under the Leases and there are no
unperformed obligations of Seller pursuant to the Leases.
11.2.14 PHYSICAL DEFECTS. To Seller's knowledge, there are no
material physical defects in the condition of the Improvements.
11.3 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and
warrants to Seller that:
11.3.1 AUTHORITY TO EXECUTE; ORGANIZATION. This Agreement
constitutes valid and binding obligations of Buyer and is enforceable against
Buyer in accordance with its terms, subject to bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles. Buyer represents that it is a corporation, is
validly formed and duly organized in good standing under the laws of the State
of Maryland and the execution of this Agreement, delivery of money and all
required documents, Buyer's performance of this Agreement and the transaction
contemplated hereby have been duly authorized by the requisite action on the
part of Buyer and Buyer's board of directors.
11.3.2 NO ENCUMBRANCE. Prior to Closing, Buyer shall neither
encumber nor cause any liens to be created against the Property in any way, nor
shall Buyer, at any time, record this Agreement or a memorandum thereof.
11.3.3 PRINCIPAL. Buyer is acting as a principal in connection
with the transaction as contemplated by this Agreement.
11.4 KNOWLEDGE DEFINED. References to the "knowledge" of Seller shall
refer only to the current actual knowledge of Osamu Ebinuma, the project manager
of Seller, and shall not be construed, by imputation or otherwise, to refer to
the knowledge of Seller or any affiliate of Seller, to any property manager, or
to any other officer, agent, manager, representative or employee of Seller or
any affiliate thereof or to impose upon such person any duty to investigate the
matter to which such actual knowledge, or the absence thereof, pertains.
12. INDEMNIFICATION.
12.1 INDEMNIFICATION OF BUYER. Seller hereby agrees to indemnify
Buyer against, and to hold Buyer harmless from, all losses, damages, costs and
expenses whatsoever including without limitation reasonable legal fees and
disbursements, incurred by Buyer relating to the Property which arise, result
from or relate to (i) acts, occurrences or matters that took place prior to the
Closing to the extent that any such claim described in this clause (i) is
covered by the comprehensive general liability insurance policy maintained by
Seller or otherwise covered pursuant to applicable insurance coverage maintained
by Seller and in this connection Seller represents and warrants that Seller has
during the period of its ownership maintained and continues to maintain
comprehensive general liability insurance coverage; or (ii) any breach of any of
the representations or warranties of Seller set forth in Section 11.2 of this
Agreement subject, however, to the limitations of Section 16.4.
12.2 DEFENSE OF CLAIMS AGAINST BUYER. With respect to any claim for
which Buyer has requested indemnification under Section 12.1, Seller shall be
entitled to assume the defense of any related litigation, arbitration or other
proceeding, provided that Buyer may at its election and expense, participate in
such defense, and provided further that if there is any difference of opinion or
strategy with respect to the defense of such action or the assertion of
counterclaims to be brought with respect thereto, Seller's counsel will, after
consultation with Buyer's counsel, determine the actual strategy, defense or
counterclaim to be employed. At Seller's reasonable request, Buyer will
cooperate with Seller in the preparation of any defense for any such claim and
Seller will reimburse Buyer for any reasonable expenses incurred in connection
with such request. If Seller does not elect to assume the defense of any such
matter and such matter is defended by Buyer, Seller shall have the right, at its
sole expense, to employ separate counsel acceptable to Buyer and participate in
such defense, provided that if there is any difference of opinion or strategy
with respect to the defense of such action or the assertion of counterclaims to
be brought with respect thereto, Buyer's counsel will, after consultation with
Seller's counsel, determine the actual strategy, defense and/or counterclaim to
be employed.
12.3 INDEMNIFICATION OF SELLER. Buyer hereby agrees to indemnify
Seller against, and to hold Seller harmless from, all losses, damages, costs and
expenses whatsoever including without limitation reasonable legal fees and
disbursements, incurred by Seller relating to the Property which arise, result
from or relate to (i) acts, occurrences or matters that take place subsequent to
the Closing to the extent that any such claim described in this clause (i) is
covered by the comprehensive general liability insurance policy maintained
by Buyer or otherwise covered pursuant to applicable insurance coverage
maintained by Buyer and in this connection Buyer represents and warrants that
Buyer will during the period of its ownership maintain comprehensive general
liability insurance coverage; or (ii) any breach of any of the representations
or warranties of Buyer set forth in Section 11.3 of this Agreement.
12.4 DEFENSE OF CLAIMS AGAINST SELLER. With respect to any claim for
which Seller has requested indemnification under Section 12.3, Buyer shall be
entitled to assume the defense of any related litigation, arbitration or other
proceeding, provided that Seller may at its election and expense, participate in
such defense, and provided further that if there is any difference of opinion or
strategy with respect to the defense of such action or the assertion of
counterclaims to be brought with respect thereto, Buyer's counsel will, after
consultation with Seller's counsel, determine the actual strategy, defense or
counterclaim to be employed. At Buyer's reasonable request, Seller will
cooperate with Buyer in the preparation of any defense for any such claim and
Buyer will reimburse Seller for any reasonable expenses incurred in connection
with such request. If Buyer does not elect to assume the defense of any such
matter, and such matter is defended by Seller, Buyer shall have the right, at
its sole expense, to employ separate counsel acceptable to Seller and
participate in such defense, provided that if there is any difference of opinion
or strategy with respect to the defense of such action or the assertion of
counterclaims to be brought with respect thereto, Seller's counsel will, after
consultation with Buyer's counsel, determine the actual strategy, defense and/or
counterclaim to be employed.
13. CASUALTY OR CONDEMNATION.
13.1 CASUALTY. Prior to the Closing, and notwithstanding the pendency
of this Agreement, the entire risk of loss or damage by earthquake, flood,
landslide, fire or other casualty shall be borne and assumed by Seller, except
as otherwise provided in this Section 13.1. If, prior to the Closing, any part
of the Real Property is damaged or destroyed by earthquake, flood, landslide,
fire or other casualty, Seller shall immediately notify Buyer of such fact. If
such damage or destruction is "material", Buyer shall have the option to
terminate this Agreement upon notice to Seller given not later than ten (10)
days after receipt of Seller's notice. For purposes of this Section 13.1,
"material" shall be deemed to be (i) any uninsured damage or destruction to the
Property; (ii) any insured damage or destruction where the costs of repair or
replacement is estimated to be Two Hundred and Fifty Thousand Dollars
($250,000.00) or more or shall take more than sixty (60) days to repair, or
(iii) any insured damage or destruction where the insurance proceeds available
(plus deductible to be paid by Seller) is insufficient to repair the Property so
as to return the Property to its condition prior to the occurrence of the damage
or destruction; provided, however, in the case of uninsured or under insured
damage or destruction, Seller may, at Seller's option elect to repair such
damage and destruction and keep this Agreement in full force and effect so long
as such repair can be and is completed by Seller prior to the scheduled Closing
Date (provided that the scheduled Closing Date may be extended by Seller for a
period not in excess of sixty (60) days). If Buyer does not exercise this
option to terminate this Agreement, or the casualty is not material, neither
party shall have the right to terminate this Agreement, but Seller shall assign
and turn over to Buyer, and Buyer shall be entitled to receive and keep all
insurance proceeds payable to it with respect to such destruction plus Seller
shall pay over to Buyer as of the Closing an amount equal to the deductible
amount with respect to the insurance and the parties shall proceed to the
Closing pursuant to the terms hereof without modification of the terms of this
Agreement and without any reduction in the Purchase Price. If Buyer does not
elect to terminate this Agreement by reason of any casualty, Buyer shall have
the right to participate in any adjustment in the insurance claim. If Buyer
does terminate this Agreement pursuant to this Section 13.1, this Agreement
shall terminate, all rights and obligations hereunder of each party shall be at
an end and the Title Company is hereby instructed to return promptly to the
party which placed such items into Escrow all funds (including the Deposit which
is to be promptly returned to Buyer) and documents which are held by the Title
Company on the date of termination.
13.2 CONDEMNATION. In the event that all or any substantial portion
of the Real Property shall be taken in condemnation or under the right of
eminent domain after the Effective Date and before the Closing, Buyer may, at
its option either (a) terminate this Agreement by written notice thereof to
Seller and receive an immediate refund of the Deposit, together with any
interest earned thereon, or (b) proceed to close the transaction contemplated
herein pursuant to the terms hereof in which event Seller shall assign and turn
over to
Buyer, and Buyer shall be entitled to receive and keep all awards for the taking
by eminent domain which accrue to Seller and there shall be no reduction in the
Purchase Price. For purposes of this provision, a "substantial portion" of the
Real Property shall mean (i) any material portion of the Real Property is taken;
(ii) the access to the Real Property or available parking area therefor is
reduced or restricted; or (iii) any of the rentable square footage of the
Improvements is taken. In the event that a portion of the Real Property less
than a substantial portion is taken, Buyer shall proceed to close the
transaction contemplated herein and there shall be no reduction in the Purchase
Price and Seller shall assign and turn over to Buyer and Buyer shall be entitled
to receive and keep all awards for the taking by eminent domain which accrue to
Seller.
14. COMMISSIONS. Seller represents and warrants to Buyer that no real
estate broker or agent has been authorized to act on Seller's behalf. Buyer
shall pay through Escrow any brokerage commission due from Buyer to Vanguard
Realty Capital, Inc., Buyer's broker, for the purchase of the Property. Buyer
represents and warrants to the Seller that no other real estate broker or agent
has been authorized to act on Buyer's behalf. Buyer and Seller each indemnifies
the other party and agrees to defend and hold the other party harmless from any
and all demands or claims which now or hereafter may be asserted against the
other party for any brokerage fees, commissions or similar types of compensation
which may be claimed by any broker as a result of the indemnifying party's acts
in connection with this transaction, except as otherwise provided herein.
15. NOTICES.
All notices, requests or demands to a party hereunder shall be in
writing and shall be given or served upon the other party by personal service,
by certified return receipt requested or registered mail, postage prepaid, or by
Federal Express or other nationally recognized commercial courier, charges
prepaid, addressed as set forth below. Any such notice, demand, request or
other communication shall be deemed to have been given upon the earlier of
personal delivery thereof, three (3) business days after having been mailed as
provided above, or one (1) business day after delivery through a commercial
courier, as the case may be. Notices may be given by facsimile and shall be
effective upon the transmission of such facsimile notice provided that the
facsimile notice is transmitted on a business day and a copy of the facsimile
notice together with evidence of its successful transmission indicating the date
and time of transmission is sent on the day of transmission by recognized
overnight carrier for delivery on the immediately succeeding business day. Each
party shall be entitled to modify its address by notice given in accordance with
this Section 15.
If to Seller: Crow Canyon Developers, Ltd.
c/o Kajima Development Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Osamu Ebinuma
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: BRE Properties, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Telesis Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇ Building, 30th Floor
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
16. LIMITATIONS ON REPRESENTATIONS AND WARRANTIES.
16.1 NO RELIANCE ON DOCUMENTS. Except as expressly stated herein,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered by Seller or its
agents to Buyer in connection with the transaction contemplated hereby. Except
as provided in Section 11.2.8, Buyer acknowledges and agrees that all materials,
data and information delivered by Seller to Buyer in connection with the
transaction contemplated hereby are provided to Buyer as a convenience only and
that any reliance on or use of such materials, data or information by Buyer
shall be at the sole risk of Buyer. Neither Seller, nor any affiliate of
Seller, nor the person or entity which prepared any report or reports delivered
by Seller to Buyer shall have any liability to Buyer for any inaccuracy in or
omission from any such reports.
16.2 AS-IS SALE: DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT
ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND
CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL
FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT.
BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND
BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS
OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING
SPECIFICALLY, WITHOUT LIMITATION, OFFERING PACKAGES DISTRIBUTED WITH RESPECT TO
THE PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGERS OF THE PROPERTY, OR ANY
EMPLOYEES OR AGENTS REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER
MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY
SET FORTH IN THIS AGREEMENT. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE
REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD "AS-IS."
BUYER REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR WILL CONDUCT PRIOR
TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO,
THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY OR
DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE
EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY
HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY
SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER
OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH
IN THIS AGREEMENT. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL
AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S
INVESTIGATIONS, AND BUYER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) OF ANY
AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED
OR ALLEGED AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR
PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE
LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS
REGARDING THE PROPERTY. BUYER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL
CODE SECTION 1542 WHICH PROVIDES THAT:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
16.3 MATERIAL CHANGE. Seller shall promptly notify Buyer of any change
in any condition with respect to the Property or any event or circumstance which
makes any representation or warranty of Seller as set forth in Section 11.2 of
this Agreement materially untrue or misleading or any covenant of Seller under
this Agreement incapable of being performed. In no event shall Seller be liable
to Buyer for, or be deemed to be in default pursuant to this Agreement by reason
of any inaccuracy of a representation or warranty which results from any change
that (i) occurs between the Effective Date and the Closing Date; and (ii) is
expressly permitted under the terms of this Agreement or is beyond the
reasonable control of Seller to prevent; provided, however, that the occurrence
of a material change which is not permitted hereunder will constitute the
non-fulfillment of the condition set forth in Section 7.2.2 hereof. If, in spite
of such nonfulfillment of the conditions set forth in such Section 7.2.2 the
Closing occurs, Seller's representations and warranties set forth in this
Agreement shall be deemed to have been modified by all statements made in any
notice or notices of modification as given by Seller to Buyer pursuant to this
Section 16.3 prior to the Closing.
16.4 SURVIVAL OF SELLER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller set forth in Section 11.2 hereof as
updated as of the Closing in accordance with the terms of this Agreement, shall
survive Closing for a period of six (6) months. No claim for a breach of any
representation or warranty of Seller shall be actionable or payable if the
breach in question results from or is based on a condition, state of facts or
other matter which was known to Buyer prior to Closing. Seller shall have no
liability to Buyer for a breach of any representation or warranty (a) unless the
valid claims for all such breaches collectively aggregate more than One Hundred
Thousand Dollars ($100,000), in which event the full amount of such valid claims
shall be actionable, up to the Maximum (as defined in this Section), and (b)
unless written notice containing a description of the specific nature of such
breach shall have been given by Buyer to Seller prior to the expiration of said
six (6) month period and any action shall have been commenced by Buyer against
Seller within eight (8) months of Closing. Buyer agrees to first seek recovery
under any insurance policies, Service Contracts and Leases prior to seeking
recovery from Seller, and Seller shall not be liable to Buyer if Buyer's claim
is satisfied from such insurance policies, Service Contracts or Leases. As used
herein, the term "MAXIMUM" shall mean the total aggregate amount of One Million
Dollars ($1,000,000.00).
16.5 SURVIVAL OF LIMITATIONS. The provisions of this Article 16 shall
survive Closing or any termination of this Agreement.
17. MISCELLANEOUS.
17.1 TIME. Time is of the essence in the performance of each party's
obligations hereunder.
17.2 ATTORNEYS' FEES. If any legal action, arbitration or other
proceeding is commenced to enforce or interpret any provision of this Agreement,
the prevailing party shall be entitled to an award of its attorneys' fees and
expenses. The phrase "prevailing party" shall include a party who receives
substantially the relief desired whether by dismissal, summary judgment,
judgment or otherwise.
17.3 NO WAIVER. No waiver by any party of the performance or
satisfaction of any covenant or condition shall be valid unless in writing and
shall not be considered to be a waiver by such party of any other covenant or
condition hereunder.
17.4 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties regarding the Property and supersedes all prior agreements,
whether written or oral, between the parties regarding the same subject. This
Agreement may only be modified in writing.
17.5 SURVIVAL. The provisions of this Agreement shall not merge with
the delivery of the Deed but shall, except as otherwise provided in this
Agreement, survive the Closing.
17.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the heirs, executors, administrators and successors and
assigns of Seller and Buyer; provided, however, that Buyer shall not assign
Buyer's rights and obligations pursuant to this Agreement to any party without
the prior written consent of Seller which consent shall not be unreasonably
withheld.
17.7 SEVERABILITY. In the case that any one or more of the provisions
contained in this Agreement are for any reason held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
17.8 CAPTIONS. Paragraph titles or captions contained in this
Agreement are inserted as a matter of convenience only and for reference, and in
no way define, limit, extend or describe the scope of this Agreement.
17.9 EXHIBITS. All exhibits attached hereto shall be incorporated
herein by reference as if set out herein in full.
17.10 RELATIONSHIP OF THE PARTIES. The parties acknowledge that
neither party is an agent for the other party, and that neither party shall or
can bind or enter into agreements for the other party.
17.11 GOVERNING LAW. This Agreement and the legal relations
between the parties hereto shall be governed by and be construed in accordance
with the laws of the State of California.
17.12 REVIEW BY COUNSEL. The parties acknowledge that each party
and its counsel have reviewed and approved this Agreement, and the parties
hereby agree that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments or exhibits hereto.
17.13 NON-DISCLOSURE. The parties hereto shall not disclose any
of the material terms of this Agreement (except to the extent as may be required
by law or as required by the Title Company or the officers, directors, partners
and employees of the parties hereto in the ordinary course of business) without
the prior written consent of the other party.
17.14 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall constitute an original. This Agreement shall
only be effective if a counterpart is signed by both Seller and Buyer.
17.15 FILING OF REPORTS. The Title Company shall be solely
responsible for the timely filing of any reports or returns required pursuant to
the provisions of Section 6045(e) of the Internal Revenue
Code of 1986 as amended (and any similar reports or returns required under any
state or local laws) in connection with the Closing.
17.16 TAX DEFERRED EXCHANGE. Buyer may acquire the Real Property
by way of a tax deferred exchange of real property. Seller agrees to reasonably
cooperate with Buyer in connection with such exchange, provided, however, that
(i) the exchange shall not delay the Closing; (ii) Seller will not be required
to take title to any other real property; (iii) Seller shall not incur any
additional liability by reason of such exchange; (iv) Buyer will indemnify and
hold Seller harmless for, from and against any claim, demand, cause of action,
liability or expense (including attorney's fees) in connection therewith,
including, without limitation, any increase in escrow fees or charges resulting
from such exchange; and (v) Buyer acknowledges and agrees and that Seller has
not made and will not make representation or warranty as to the effectiveness
for tax purposes of any such exchange.
18. DEFAULT.
18.1 LIQUIDATED DAMAGES. FROM AND AFTER THE EXPIRATION OF THE DUE
DILIGENCE PERIOD, IN THE EVENT THE SALE OF THE PROPERTY AS CONTEMPLATED
HEREUNDER IS NOT CONSUMMATED DUE TO A DEFAULT OF BUYER, THE DEPOSIT (INCLUDING
ALL INTEREST EARNED FROM THE INVESTMENT THEREOF) SHALL BE PAID TO AND RETAINED
BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT SELLER'S ACTUAL
DAMAGES IN THE EVENT THAT THE SALE IS NOT CONSUMMATED WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY SEPARATELY EXECUTING THIS
SECTION 18.1 BELOW, THE PARTIES ACKNOWLEDGE THAT THE NONREFUNDABLE DEPOSIT HAS
BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF
SELLER'S DAMAGES AND AS SELLER'S EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT THE
CLOSING DOES NOT OCCUR AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER
ARISING FROM SUCH FAILURE OF THE SALE TO CLOSE. IN ADDITION, BUYER SHALL PAY ALL
TITLE, SURVEY AND ESCROW CANCELLATION CHARGES. NOTWITHSTANDING THE FOREGOING, IN
NO EVENT SHALL THIS SECTION 18.1 LIMIT THE DAMAGES RECOVERABLE BY EITHER PARTY
AGAINST THE OTHER PARTY DUE TO (A) THE OTHER PARTY'S OBLIGATION TO INDEMNIFY
SUCH PARTY IN ACCORDANCE WITH THIS AGREEMENT, OR (B) THIRD PARTY CLAIMS. BY
THEIR SEPARATELY EXECUTING THIS SECTION 18.1 BELOW, BUYER AND SELLER ACKNOWLEDGE
THAT THEY HAVE READ AND UNDERSTOOD THE ABOVE PROVISION COVERING LIQUIDATED
DAMAGES, AND THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE
CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS
EXECUTED.
---------------- -----------------
Buyer's Initials Seller's Initials
18.2 DEFAULT BY SELLER. In the event the sale of the Property as
contemplated hereunder is not consummated due to Seller's default hereunder,
Buyer shall be entitled, as its sole remedy, either (a) to receive the return of
the Deposit, which return shall operate to terminate this Agreement and release
Seller from any and all liability hereunder, or (b) to enforce specific
performance of Seller's obligation to convey the Property to Buyer in accordance
with the terms of this Agreement, it being understood and agreed that the remedy
of specific performance shall not be available to enforce any other obligation
of Seller hereunder. Buyer expressly waives its rights to seek damages in the
event of Seller's default hereunder. Buyer shall be deemed to have elected to
terminate this Agreement and receive back the Deposit if Buyer fails to file
suit for specific performance against Seller in a court having jurisdiction in
the county and state in which the Property is located, on or before thirty (30)
days following the date upon which Closing was to have occurred.
19. DEFINITIONS. For ease of reference, the defined terms as employed in
this Agreement and as listed below are defined in the designated sections:
19.1 "Agreement" as defined in the first paragraph.
19.2 "Access Agreement" as defined in section 1.3
19.3 "Assignment" as defined in section 1.3
19.4 "Approval Notice" as defined in section 6.7
19.5 "▇▇▇▇ of Sale" as defined in section 8.1.2
19.6 "Buyer" as defined in the first paragraph.
19.7 "Buyer's Reports" as defined in section 6.5
19.8 "Buyer's Representatives" as defined in section 6.4
19.9 "Buyer's Title Policy" as defined in section 3.2
19.10 "Closing" as defined in section 5.1
19.11 "Closing Date" as defined in section 5.1
19.12 "Deed" as defined in section 8.1.1
19.13 "Deposit" as defined in section 2.1
19.14 "Due Diligence Date" as defined in section 6.1
19.15 "Due Diligence Materials" as defined in section 6.2
19.16 "Due Diligence Period" as defined in section 6.1
19.17 "Effective Date" as defined in the first paragraph.
19.18 "Escrow" as defined in section 4.1
19.19 "Improvements" as defined in section 1.1.2
19.20 "Intangible Property" as defined in section 1.3
19.21 "Land" as defined in section 1.1.1
19.22 "Leases" as defined in section 1.3
19.23 "Maximum" as defined in section 16.4
19.24 "Permitted Exceptions" as defined in section 3.3
19.25 "Personal Property" as defined in section 1.1.3
19.26 "Property" as defined in section 1.1
19.27 "Purchase Price" as defined in section 2
19.28 "Real Property"" as defined in section 1.2
19.29 "Rent Roll" as defined in section 11.2.7
19.30 "Seller" as defined in the first paragraph.
19.31 "Service Contracts" as defined in section 1.3
19.32 "Subsequent Title Defects Notice" as defined in section 6.3.3
19.33 "Survey" as defined in section 6.3.1
19.34 "Tenant Notification Letter" as defined in section 8.3
19.35 "Title Company" as defined in section 4.1
19.36 "Title Report" as defined in section 6.3.1
19.37 "Title Review Period" as defined in section 6.3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
SELLER: BUYER:
Crow Canyon Developers, Ltd., a BRE Properties, Inc., a
California limited partnership Maryland corporation
By: Kajima Development Corp.,
a Delaware corporation,
General Partner By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
-------------------------
Its: Executive Vice President
-------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
Its: Senior Vice President By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and Treasurer ---------------------
-------------------- Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Its: Vice President
--------------------
By: ▇▇▇▇▇▇▇▇ Group, L.P.,
a California limited
partnership, General
Partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Enterprises, a California
corporation, general
partner.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Its: President
--------------------
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT ("First Amendment") is
made and entered into as of this 30th day of December, 1996 by and between Crow
Canyon Developers, Ltd., a California limited partnership ("SELLER"), and BRE
Properties, Inc., a Maryland corporation ("BUYER").
RECITALS
This First Amendment is made with respect to the following facts and
circumstances:
T. Seller and Buyer entered into that certain Purchase and Sale Agreement
("Purchase Agreement") dated December 20, 1996.
U. Seller and Buyer desire to amend and modify the Purchase Agreement in
accordance with the provisions of this First Amendment.
COVENANTS
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
Seller and Buyer agree as follows:
1. REPAIR CREDIT. In connection with certain corrective work as
summarized in the letter of Myer/▇▇▇▇▇▇▇▇ Engineers attached hereto as Exhibit
A, Seller hereby agrees to give Buyer as of the Closing a credit against the
Purchase Price in the amount of Forty-Five Thousand Dollars ($45,000)
Notwithstanding that, after the Closing, it may be discovered that the repair
work as described in Exhibit A cost more or less than the credit described in
this Section 1, said credit shall not be subject to adjustment, and neither
Seller nor Buyer shall have any obligation to pay the other party due to any
increase or decrease of the actual cost of the repair work compared with the
credit given pursuant to this Section 1 of this First Amendment.
2. COUNTERPARTS. This First Amendment may be executed in
counterparts, each of which will constitute an original. This First Amendment
shall only be effective if a counterpart is signed by both Seller and Buyer.
3. MISCELLANEOUS. Any inconsistency between the provisions of
this First Amendment and the provisions of the Purchase Agreement shall be
governed by the provisions of the First Amendment. Except as otherwise
specifically defined in this First Amendment, all defined terms as employed in
this First Amendment shall have the same meaning as ascribed to such terms in
the Purchase Agreement. Except as specifically modified by the provisions of
this First Amendment, the Purchase Agreement shall remain in full force and
effect and unmodified.
IN WITNESS WHEREOF, Seller and Buyer have executed this First Amendment as
of the date and year first above written.
SELLER: BUYER:
Crow Canyon Developers, Ltd., a BRE Properties, Inc., a
California limited partnership Maryland corporation
By: Kajima Development Corp.,
a Delaware corporation,
General Partner By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
-------------------------
Its: Executive Vice President
-------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
Its: Senior Vice President By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and Treasurer ---------------------
-------------------- Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Its: Vice President
--------------------
By: ▇▇▇▇▇▇▇▇ Group, L.P.,
a California limited
partnership, General
Partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Enterprises, a California
corporation, general
partner.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Its: President
--------------------