EXHIBIT 10.1
WOODBRIDGE ▇▇▇▇▇▇▇ APARTMENTS
-----------------------------
PURCHASE AND SALES AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALES AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this
"Agreement") is made and entered into as of the 24th day of September, 1996, by
and between DE ANZA PROPERTIES - X, a California limited partnership, having its
principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller") and ▇.▇. ▇▇▇▇ CO., INC., a Nevada Corporation,
and/or its permitted assignee, having its principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Buyer"), and to
serve as joint escrow instructions to the Escrow Holder defined herein, as
follows:
RECITALS
--------
WHEREAS, Seller is the owner of that certain real property which is
improved with 51 buildings comprising a 375 unit apartment project (40 studio
units; 111 one-bedroom units; 40 one-bedroom/loft units; 56 two-bedroom, 1 1/4-
bath units; 104 two-bedroom, two-bath units; and 24 three-bedroom units) known
as WOODBRIDGE ▇▇▇▇▇▇▇ APARTMENTS, having an address of ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and which real property is described on
Exhibit A attached hereto and made a part hereof (the "Real Property") as well
-
as all improvements affixed thereto ("Improvements") and certain personal
property located thereon as described below, as of the date of this Agreement.
WHEREAS, Seller desires to sell and Buyer desires to buy all of Seller's
right, title and interest in and to the following, which shall hereinafter be
referred to as the "Property" on the terms and conditions set forth in this
Agreement:
A. The Real Property;
B. The Improvements;
C. All personal property owned or leased by Seller at the Property,
including but not limited to that described in Exhibit B attached hereto and
-
incorporated herein (the "Personal Property");
D. All of Seller's right, title and interest in the leases and tenancies
of the Real Property, which as of August 1996 are reflected in the Rent Roll
attached as Exhibit C and incorporated herein (the "Rent Roll").
-
E. All of Seller's right, title and interest in and to all minerals
contained in the Real Property, all non-public water rights pertaining to the
Real Property, all tenements,
hereditaments, easements, rights-of-way, appurtenances, riparian rights and
drainage rights belonging to the Real Property and in and to any streets, alleys
or other public ways, public areas, easements, and common or open or greenbelt
areas (all before or after vacation thereof) in, or upon or adjacent to the Real
Property;
F. All of Seller's right, title and interest in the Woodbridge Village
Association (the "Association"); and
G. All intangible property ("Intangible Property") owned by Seller and in
Seller's possession in connection with the Real Property, including but not
limited to Seller's right, title and interest in the Property name "Woodbridge
▇▇▇▇▇▇▇" and all transferable licenses, permits, surveys, plans and drawings (to
the extent reasonably available to Seller to deliver upon Closing) relating to
the Property.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises, and other good and valuable consideration as hereinafter provided, the
receipt and sufficiency of which are hereby acknowledged, Seller agrees to
convey to Buyer and Buyer agrees to acquire from Seller the Property for the
consideration set forth hereinafter, all on the terms and conditions as
hereinafter set forth.
1. Recitals and Definitions. The foregoing recitals are restated and
------------------------
incorporated herein as part of this Agreement.
2. Consideration. Buyer agrees to pay Seller in cash Twenty-nine Million
-------------
Six Hundred Thousand Dollars ($29,600,000) (the "Purchase Price") for the
Property.
2.1. Deposit.
-------
2.1.1. Initial Deposit. Upon execution of this Agreement by Buyer
---------------
and Seller, Buyer shall deposit with Escrow Holder, One Hundred Thousand Dollars
($100,000) ("Initial Deposit") by cashier's or bank check or wire transfer, to
be held by Escrow Holder pursuant to this Agreement as a good faith deposit. The
Initial Deposit shall be deposited by Escrow Holder in a federally insured
interest bearing account in accordance with the terms described below. If Buyer
disapproves any matter which is subject to Buyer's approval pursuant to Section
3.1.1 prior to the end of the Inspection Period (defined in Section 3.1.1), at
Buyer's election, the Initial Deposit, together with all interest earned
thereon, shall be delivered to Buyer, and all obligations of Buyer and Seller to
close this transaction shall terminate, and the Escrow shall be terminated.
2.1.2. Additional Deposit. If Buyer's obligation to acquire the
------------------
Property has not been terminated under this Agreement, then prior to the end of
the Inspection Period, Buyer shall deposit with Escrow Holder an additional Two
Hundred Thousand Dollars ($200,000) ("Additional Deposit") by cashier's or bank
check or wire transfer.
-2-
The Additional Deposit, together with the Initial Deposit (collectively, the
"Deposit"), shall be held by Escrow Holder pursuant to this Agreement and
invested by Escrow Holder in a federally insured interest bearing account, short
term U. S. Treasury Bills or similar equivalent securities, reasonably
acceptable to Buyer and Seller and reportable for federal tax purposes to
Buyer's federal tax identification number. Upon the Closing (defined below),
provided that Buyer is not in default hereunder, the Deposit, together with all
interest earned thereon, shall be credited towards the Purchase Price. In the
event of a breach of this Agreement, the Deposit shall be disbursed as provided
in Section 16.1 or 16.2, as appropriate. In the event Buyer fails to close this
---- ----
transaction because of a failure of a condition to Buyer's obligation to close
and Buyer is not in default hereunder, the Deposit and all interest earned
thereon shall be returned to Buyer.
2.2. Existing Debt. The Property is subject to an existing loan
-------------
("Existing Debt") in the approximate principal balance of $4,700,000, which will
be paid in full at Closing by Seller out of the proceeds from Buyer.
2.3. Allocation of Purchase Price. Buyer and Seller agree on the
----------------------------
allocation of the Purchase Price among the components of the Property as
follows:
Real Property and Improvements $29,325,000.00
Personal Property $ 275,000.00
Intangible Property $ 0
--------------
TOTAL $29,600,000.00
3. Conditions to the Close of Escrow.
---------------------------------
3.1. Conditions Precedent to Buyer's Obligations. The close of Escrow
-------------------------------------------
and Buyer's obligations with respect to the purchase of the Property as
contemplated by this Agreement are subject to the satisfaction of each of the
following conditions within the time periods specified. If Buyer proceeds to
Closing with knowledge of the failure of a condition, such condition shall be
deemed waived by Buyer and all other conditions precedent shall be deemed
satisfied. If a condition is not satisfied and Buyer has not waived or been
deemed to have waived such condition, Buyer shall immediately receive the
Deposit and interest earned thereon from Escrow Holder and the obligations of
Buyer and Seller to close this transaction shall cease.
3.1.1. Buyer's Inspection Period. From and after the date this
-------------------------
Agreement is executed by Seller and Buyer, and continuing until thirty (30) days
after the date of execution of this Agreement by such parties (the "Inspection
Period"), Buyer shall have approved the following. The failure of Buyer to
notify Seller and Escrow Holder in writing of Buyer's approval of all items on
or before the end of the Inspection Period shall constitute disapproval of all
matters and Buyer shall not be obligated to deposit the Additional Deposit with
the Escrow Holder and except as otherwise provided in Section 3.1.1C for an
------
extension of time for Buyer to
-3-
deposit the Additional Deposit, the obligations of Buyer and Seller to close
this transaction shall cease. Buyer shall not be entitled to any adjustment in
the Purchase Price based upon the results of Buyer's inspections and
investigations; Buyer's sole remedy shall be to timely terminate Buyer's
obligations to close this transaction.
A. Documents and Materials. No later than two (2) business
-----------------------
days after Seller's execution of this Agreement, provided Buyer has also
executed this Agreement, Seller shall deliver or make available to Buyer for
Buyer's review and approval or disapproval, all of the materials described in
Exhibit D attached hereto and incorporated herein. Buyer agrees to maintain all
-
material provided by Seller as confidential and not to disclose it to any
person, except potential lenders, partners and authorized employees and
representatives of buyer, who shall be apprised of and agree to the foregoing
obligation of confidentiality. If Buyer elects not to acquire the property, all
such materials shall be returned to seller within ten days.
B. Buyer's Inspections and Studies. Buyer shall approve or
-------------------------------
disapprove the results of any and all inspections, investigations, tests and
studies (including, without limitation, investigations with regard to zoning,
building codes, earthquake fault zones and seismic safety, ADA, lead-based
paint, fire and life safety and other governmental regulations, architectural
inspections, pest, dry rot and fungus inspections, engineering tests,
environmental inspections, financial statements and soils, seismic,
environmental and geologic reports) with respect to the Property (including all
structural and mechanical systems) and the Association and its financial affairs
as Buyer may elect to make or obtain. Buyer agrees to obtain a Phase-I
environmental report for the Real Property and to provide a copy to Seller of
that report and any other environmental reports relating to the Property or
property adjacent to or in the vicinity of the Property, which are in Buyer's
possession. The cost of all inspections, studies, tests and reports shall be
borne by Buyer. Seller shall cooperate in providing Buyer and its
representatives access to the Property at all reasonable times prior to Closing
and to the books and records of the Property during the Inspection Period. Buyer
and its representatives shall have the right to enter the Property only in
accordance with the following terms and conditions:
(i) Buyer's right to acquire the Property has not been terminated;
(ii) Buyer may enter upon the Property only during business hours and
for the purposes of performing inspections, reviews, studies and surveys. If
Buyer obtains any reports, studies or assessments regarding the Property, Buyer
shall not provide Seller with a copy of them, unless required by this Agreement
or specifically requested by Seller;
(iii) Buyer shall not enter upon the Property without the express prior
permission of Seller, in each instance, which shall not be unreasonably withheld
or delayed, and without an opportunity for an agent or employee of Seller to be
present (provided that Seller cannot unreasonably delay Buyer's inspections);
and
(iv) Buyer shall indemnify, defend and hold Seller harmless from and
against any
-4-
expenses, claims, liens, causes of action, damages, liabilities or obligations
which arise directly out of Buyer's activities at the Property before Closing,
including without limitation any costs, expenses and reasonable attorneys' fees
incurred by Seller in connection with defending against, or clearing Seller's
title to the Property of, such claims, liens, causes of action or obligations.
The foregoing indemnity shall survive the expiration or termination of this
Agreement and the Closing for the period of time equal to the statute of
limitations for any such underlying claim against Seller or the Property.
(v) Buyer shall have delivered to Seller an insurance certificate
evidencing worker's compensation insurance with statutory limits of coverage and
commercial general liability insurance with limits of not less than $1,000,000
for personal injury, including bodily injury and death and property damage.
C. Title. Prior to the end of the Inspection Period, Buyer
-----
shall have approved the legal description of the Real Property and any matters
of title including those disclosed by the following documents and instruments
(collectively, "Title Documents") and Buyer shall have specified all
endorsements to the title policy reasonably required by Buyer:
(i) Current preliminary title report for an A.L.T.A.
Extended Coverage Owner's policy of title insurance ("Title Report") provided by
Seller within two (2) business days after full execution of this Agreement,
issued by Chicago Title Insurance Company (the "Title Company") with respect to
the Real Property;
(ii) an A.L.T.A. survey ("Survey") of the Real Property
if obtained by Buyer at Buyer's cost, together with a certificate from a
licensed surveyor reasonably acceptable to Buyer, showing all matters necessary
for issuance of an A.L.T.A. Extended Coverage Owner's title insurance policy and
any other matters reasonably requested by Buyer;
(iii) a supplemental report prepared by the Title
Company after its review of the Survey (the "Supplement");
(iv) copies of all documents, whether recorded or
unrecorded, referred to in the Title Report, Supplement or Survey, or otherwise
affecting title to the Property, which are to be provided by the Title Company.
If Buyer does not approve the legal description or the Title Documents prior to
the end of the Inspection Period, they shall be deemed disapproved and Buyer
shall give Seller and Escrow Holder written notice ("Buyer's Title Notice") of
the title matters disapproved by Buyer prior to the end of the Inspection
Period. In such event, Seller shall, within ten (10) days after receipt of
Buyer's Title Notice, give Buyer written notice ("Seller's Title Notice") of
those disapproved title matters, if any, which Seller agrees to cause to be
eliminated from or modified (as requested by Buyer) in the Title Policy (defined
below). If Seller does not agree in Seller's Title Notice to
-5-
cause all matters disapproved in Buyer's Title Notice to be eliminated or
modified, as the case may be, Buyer shall have five (5) days (which may extend
beyond the Inspection Period) in which to notify Seller and Escrow Holder if
Buyer elects to approve the title matters and proceed to acquire the Property
("Buyer's Title Approval Notice"), and if Buyer gives Buyer's Title Approval
Notice, Buyer shall within two (2) business days after giving Buyer's Title
Approval Notice, deposit the Additional Deposit and the legal description and
Title Documents shall be deemed approved and Seller shall be obligated to cause
the elimination or modification, as the case may be, by the Closing of those
items which Seller agrees to cause to be eliminated or modified, as set forth in
Seller's Title Notice. The Title Company shall issue a Pro Forma Title Policy
("Pro Forma Title Policy") in accordance with the foregoing, which shall have no
requirements of Seller other than those agreed to by Seller herein or in
Seller's Title Notice. If Buyer does not timely give Buyer's Title Approval
Notice, the obligations of Buyer and Seller to consummate the transaction
hereunder shall cease and the Deposit and interest earned thereon shall be
immediately returned to Buyer by Escrow Holder.
D. Employees. Prior to two weeks after the end of the
---------
Inspection Period, Buyer shall notify Seller of the employees Buyer will hire
upon Closing.
E. Buyer's Board Approval. Prior to the end of the
----------------------
Inspection Period, Buyer shall have obtained approval of Buyer's Board of
Directors to the transaction contemplated herein.
3.1.2. Representations, Warranties and Covenants of Seller. Seller
---------------------------------------------------
shall have duly performed each and every covenant and agreement to be performed
by Seller hereunder, including but not limited to delivery of all items required
by Section 7.1 and Seller's representations and warranties set forth in Exhibit
---
E attached to this Agreement and incorporated herein shall be true and correct
-
as of the Closing Date. Notwithstanding anything herein or elsewhere to the
contrary, if a matter is disclosed in writing to Buyer by or on behalf of Seller
or by one of Buyer's consultants, to Buyer during the Inspection Period which
would make a representation or warranty of Seller hereunder untrue or incorrect,
or would be a breach of a covenant or agreement of Seller hereunder, and Buyer
proceeds with the Closing, Buyer shall be deemed to have waived said breach and
the condition forever, and Buyer shall have no right to recover any damages or
remuneration for such breach or failure, nor to indemnity for such breach of a
representation or warranty.
3.1.3. Title and Title Insurance. At the Closing upon satisfaction
-------------------------
of all conditions to Seller's obligations hereunder, Seller shall deliver good
and marketable fee simple title to the Real Property by Grant Deed ("Deed"),
subject only to: (a) a lien for real property taxes, not then due or payable,
(b) matters of title respecting the Property in accordance with the Pro Forma
Title Policy, and (c) matters affecting the condition of title to the Real
Property created by or with the prior written consent of Buyer. At the Closing,
Seller shall cause the Title Company to issue to Buyer an A.L.T.A. Extended
Coverage Owner's Policy of Title Insurance in accordance with the Pro Forma
Title Policy (the "Title Policy"). The Title Policy shall be issued
-6-
with liability in an amount equal to the Purchase Price. The premium shall be
shared as provided in Section 5.2. If necessary, the Closing Date (defined
---
below) may be extended for up to an additional seven (7) days to permit Seller
to cause the Title Policy to be issued.
Title to the Real Property delivered to Buyer at Closing shall
include all buildings and improvements now erected or placed thereon owned by
Seller, all of Seller's right, title and interest in and to all tenements,
hereditaments, easements, rights-of-way, appurtenances, passages, water rights,
water courses, riparian rights, drainage rights and mineral and other rights,
liberties and privileges thereon or in any way now or hereafter appertaining,
including all of the right, title and interest of Seller in and to all public
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, alleys, passageways (before and after
vacation thereof) in front of or abutting the Real Property or any portion
thereof.
3.2. Conditions Precedent to Seller's Obligations. The close of
--------------------------------------------
Escrow and Seller's obligations with respect to the sale of the Property as
contemplated by this Agreement are subject to the satisfaction of each of the
following conditions within the time periods specified. If Seller proceeds to
Closing with knowledge of the failure of a condition, such condition shall be
deemed waived by Seller.
3.2.1. Representations, Warranties and Covenants of Buyer. Buyer
--------------------------------------------------
shall have duly performed each and every covenant and agreement to be performed
by Buyer hereunder, including but not limited to delivery of all items required
by Section 7.2 and Buyer's representations and warranties set forth in Exhibit F
--- -
attached to this Agreement and incorporated herein shall be true and correct as
of the Closing Date for Buyer and/or Buyer's approved designee.
4. Closing. The Escrow for the acquisition of the Property shall close
-------
on January 15, 1997 or sooner, upon 30 days notice from Seller to Buyer and
Escrow Holder following expiration of the Inspection Period or as mutually
agreed upon by Buyer and Seller in writing ("Closing Date"). The "Closing"
shall occur when all matters required to be delivered to Escrow Holder have been
delivered and when all conditions to Closing have been satisfied or waived.
Seller's and Buyer's counsel shall exchange Closing Documents three (3) business
days prior to the Closing Date.
5. Costs, Expenses and Prorations.
------------------------------
5.1. Cancellation Fees and Expenses. The Title Company and Escrow
------------------------------
Holder have agreed to waive any Title Report or Escrow charges in the event of
cancellation of the Escrow; accordingly neither Seller nor Buyer shall have any
liability for such charges.
5.2. Closing Expenses.
----------------
5.2.1. Seller's. Seller shall be responsible for (a) the amount of
--------
the
-7-
premium for the Title Policy equivalent to the C.L.T.A. standard premium,
excluding the premium for Buyer's endorsements, (b) the documentary and transfer
taxes, (c) one-half of all Escrow fees and costs, (d) Seller's share of Closing
prorations, and (e) the recording charges for the Deed.
5.2.2. Buyer's. Buyer shall be responsible for (a) the balance of
-------
the premium for the Title Policy and for Buyer's endorsements to the Title
Policy, (b) the cost of the A.L.T.A. survey, (c) one-half of all Escrow fees and
costs, (d) Buyer's share of Closing prorations and (e) any other document
recording charges.
5.2.3. Other Expenses. Buyer and Seller shall each pay their
--------------
respective legal, professional and consultants' fees. All other costs and
expenses shall be allocated between Buyer and Seller in accordance with the
customary practice in Orange County, California.
5.3. Closing Prorations and Credits. A statement of estimated
------------------------------
prorations and adjustments shall be prepared by Seller in accordance with this
Agreement and submitted to Buyer for review and approval not less than three (3)
business days prior to the Closing Date. For purposes of prorations, Buyer
shall be deemed the owner of the Property as of 12:01 AM on the Closing Date.
The following items are to be prorated or adjusted (as the case requires) as of
the Closing Date and credits given to Buyer or Seller as appropriate against the
Purchase Price.
5.3.1. Taxes. Delinquent real estate and personal property taxes,
-----
if any, shall be paid at Closing. Real estate and personal property taxes and
assessments shall be prorated as of Closing based on the actual current tax
▇▇▇▇. Seller shall be responsible for any interest or penalties which accrued
prior to the Closing due to Seller being delinquent in the payment of any taxes
due hereunder. If after Closing, any supplemental real estate taxes are assessed
against the Property pursuant to Chapter 3.5 of Part 0.5 of Division 1 of the
California Revenue and Taxation Code (Section 75 through 75.80, inclusive) by
reason of any event occurring prior to the Closing (other than an event caused
by Buyer), such supplemental real estate taxes shall be prorated following the
Closing within 30 days of receipt of such supplemental tax ▇▇▇▇. In the event
Seller or Buyer appeals any assessment or tax relating to the Property, Seller
shall be entitled to the portion of the award, if any, relating to the period
prior to Closing and Buyer shall be entitled to the portion relating to the
period from and after the Closing, each net of costs incurred to obtain the
award; and each party agrees to cooperate with the other in the pursuit of such
appeal. Buyer agrees that Seller may appeal any supplemental tax or assessment
relating to the Property following the Closing.
5.3.2. Rents and Charges. Collected rents (including advance
-----------------
rents) and other charges from the Property relating to the period prior to the
Closing, and the amount of any rents and other charges paid to Seller which are
applicable to the period subsequent to the month of Closing, as set forth in the
Closing Rent Roll shall be prorated as of Closing. In the event there are
uncollected rents or other charges as of the Closing, Buyer shall use its
reasonable efforts to collect such rents and other charges and shall pay them
over to Seller, net of out-of-
-8-
pocket costs incurred by Buyer; provided, however, any rents collected shall
first be applied to rent due Buyer.
5.3.3. Security Deposits. The full amount of security deposits
-----------------
paid, less any lawful deductions, shall be transferred to Buyer by a credit.
5.3.4. Utilities. Water, electric, telephone and all other utility
---------
and fuel income and expense shall be prorated as of the Closing. Seller shall
endeavor to have all meters read for all utilities serving the Property on the
day prior to the Closing Date. If any meters have not been read by the Closing
Date, the utilities shall be estimated based upon the most recent bills and
reprorated following Closing. Buyer shall be responsible for providing any
required utility deposits; and existing deposits shall be returned to Seller. If
Buyer has not made arrangements for transfer of utility service to Buyer as of
the Closing, such utility service will be terminated by Seller on the Closing
Date and Buyer shall be responsible for arranging for new service to the
Property.
5.3.5. Service Contracts. Amounts due and prepayments under the
-----------------
service Contracts to be assigned and assumed as listed on Schedule D-8 shall be
---
prorated as of the Closing. All other service contracts will be terminated.
5.3.6. Licenses and Fees. Assignable license and permit fees, and
-----------------
fees and dues paid to governmental entities and industry associations in which
Buyer has or will participate shall be prorated as of the Closing.
5.3.7. Association Dues. Dues and assessments of the Association
----------------
shall be prorated as of the Closing.
5.3.8. Employees' Compensation. Seller shall be responsible for
-----------------------
and, at or prior to Closing, shall pay all amounts due up to Closing for
employees' salaries, vacation pay, withholding and payroll taxes, and other
benefits, and any management fee affecting the Property. Seller shall terminate
as of Closing employees who work at the Property. Seller shall indemnify and
hold Buyer harmless from any and all obligations of Seller arising prior to
Closing and relating to any claims made by employees. Buyer shall indemnify and
hold Seller harmless from any and all obligations of Buyer arising from and
after the Closing and relating to any employees Buyer indicates Buyer will hire
as provided for in Section 3.1.1.D.
-------
5.3.9. Vacated Units. Buyer shall receive a credit of $300 for
-------------
each vacated unit which is not in "rent ready condition" (as defined in Section
12.1) at the Closing Date; and an additional $700 for any such vacated unit
which requires new carpeting, in the reasonable judgment of Buyer and Seller.
5.3.10. Closing Costs. The Closing costs shall be allocated to the
-------------
respective party obligated for such Closing costs, and Seller's share shall be
paid out of the
-9-
proceeds.
5.3.11. Other Expenses and Income. Other expenses and income of
-------------------------
operation and similar items shall be prorated as of the Closing.
Except for real estate taxes, any proration which must be estimated at Closing
shall be reprorated and finally adjusted within thirty (30) days after the
Closing, or such longer period as is reasonably necessary, not to exceed an
additional thirty (30) days, otherwise all prorations shall be final.
5.4. Broker's Commission. Out of the proceeds, Seller shall pay
-------------------
$296,000 (1% of the Purchase Price) to CB Commercial upon receipt of an invoice
from CB Commercial signed by ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇.
6. Escrow.
-------
6.1. Opening of Escrow. The opening of "Escrow" shall be caused by
-----------------
the delivery, by Buyer, of a fully executed copy of this Agreement and the
Initial Deposit to Chicago Title Insurance Company ("Escrow Holder") at the
address set forth in Section 17. The close of Escrow for the acquisition of the
Property shall occur on the Closing Date set forth in Section 4. Buyer and
-
Seller hereby authorize their respective attorneys to execute and deliver to
Escrow Holder any additional or supplementary instructions as may be necessary
or convenient to implement the terms of this Agreement and close the transaction
contemplated hereby.
6.2. Full Disclosure. Escrow Holder shall be instructed to provide
---------------
each of the parties hereto and their attorneys with copies of all documents,
memorandum, correspondence or instructions received by Escrow Holder immediately
upon receipt thereof. Escrow Holder shall keep each of the parties hereto fully
apprised of all facts relevant to this Escrow. After closing of Escrow, Escrow
Holder agrees that any party hereto or its appointed agent, representative or
attorney may inspect the Escrow Holder's file upon reasonable notice during
reasonable business hours.
6.3. Indemnification of Escrow Holder. If this Agreement or any
--------------------------------
matter relating hereto shall become the subject of any litigation or
controversy, Buyer and Seller agree, jointly and severally, to hold Escrow
Holder free and harmless from any loss or expense, including reasonable
attorneys' fees that may be suffered by it by reason thereof, other than arising
out of Escrow Holder's own negligence, willful misconduct or failure to observe
its instructions and obligations hereunder. In the event conflicting demands
are made or notices served upon Escrow Holder with respect to this Agreement,
the Buyer and Seller expressly agree that Escrow Holder shall be entitled to
file a suit in interpleader and obtain an order from the court requiring Buyer
and Seller to interplead and litigate their several claims and rights among
themselves. Upon the filing of the action in interpleader, Escrow Holder shall
be fully released and discharged from any obligations imposed on it by this
Agreement.
-10-
6.4. Non-Liability of Escrow Holder. Escrow Holder shall not be
------------------------------
liable for the sufficiency or correctness as to form, manner, execution or
validity of any instrument deposited with it, nor as to the identity, authority
or rights of any person executing such instrument, nor for failure to comply
with any of the provisions of any agreement, contract or other instrument filed
with Escrow Holder or referred to herein, other than this Agreement, to the
extent it serves as joint escrow instructions. Notwithstanding the foregoing,
if Escrow Holder is also acting as the Title Company under the terms of this
Agreement, nothing in this Agreement shall limit the liability of the Title
Company under the Title Policy.
6.5. Disbursements and Other Actions by Escrow Holder. At the close
------------------------------------------------
of Escrow upon satisfaction of all conditions, Escrow Holder shall promptly
undertake all of the following in the manner hereinbelow indicated.
6.5.1. Closing. Escrow Holder shall disburse the funds and
-------
deliver the documents and take other actions as follows:
A. Closing Costs. Deduct all items chargeable to the
-------------
account of Seller pursuant to Section 5 from the Purchase Price and pay all of
Buyer's Closing costs from funds deposited by Buyer.
B. Funds. Disburse by wire transfer the remaining balance
-----
of the Purchase Price to Seller or as Seller may direct.
C. Recording. Cause the Deed (with documentary transfer tax
---------
and stamp information to be affixed after or separate from recording, if
possible), the Assignment of Leases and any other documents which the parties
hereto may mutually direct to be recorded in the official records of Orange
County and obtain conformed copies thereof for distribution to Buyer and Seller.
D. Title Policy. Direct the Title Company to issue the
------------
Title Policy to Buyer as of the date of Closing.
E. Documents. Deliver to Buyer the ▇▇▇▇ of Sale, the
---------
General Assignment, the FIRPTA Certificate, and change of address notices duly
executed by Seller and any of the documents (or copies thereof) deposited into
Escrow by Seller pursuant hereto and deliver to Seller all documents (or copies
thereof) deposited in Escrow by Buyer pursuant hereto.
F. Section 6045 Filings. As the "reporting person" within
--------------------
the meaning of Treasury Regulation (S)1.6045-4(e)(5), timely file the forms
required by Internal Revenue Code Section 6045(e) and the regulations
promulgated thereunder. Pursuant to such regulations, the parties agree to
retain this Agreement for at least four (4) full calendar years after the
Closing.
-11-
7. Deliveries to Escrow Holder.
---------------------------
7.1. By Seller for the Closing. Seller hereby covenants and agrees
-------------------------
to deliver or cause to be delivered to Escrow Holder prior to the Closing Date,
the following instruments and documents, the delivery of each of which shall be
a condition to the performance by Buyer of its obligations under the terms of
this Agreement:
7.1.1. Deed. The Deed duly executed and acknowledged in recordable
----
form by Seller, conveying the Property to Buyer, or its approved designee,
subject only to the title conditions permitted by Section 3.1.3.
-----
7.1.2. ▇▇▇▇ of Sale. A ▇▇▇▇ of sale ("▇▇▇▇ of Sale") duly executed
------------
and acknowledged by Seller in favor of Buyer, or its approved designee,
assigning and conveying to Buyer, or its approved designee, all of Seller's
right, title and interest in and to the Personal Property, free and clear of all
liens, encumbrances and adverse claims of parties claiming through Seller.
7.1.3. Assignment and Assumption of Leases. An assignment of the
-----------------------------------
leases relating to the Real Property to Buyer or its approved designee, which
assignment shall provide for Buyer or its approved designee to assume and agree
to perform the obligations from and after the Closing under the leases relating
to the Real Property ("Assignment of Leases").
7.1.4. Assignment and Assumption of Service Agreements. An
-----------------------------------------------
assignment of the transferable service agreements to be assigned as listed in
Schedule D-8, to Buyer or its approved designee, which assignment shall provide
---
for Buyer or its approved designee to assume and agree to perform the
obligations from and after the Closing under those service agreements
("Assignment of Service Agreements").
7.1.5. Closing Rent Roll. A rent roll, including a schedule of
-----------------
security deposits and an itemization of any lawful deductions therefrom, for the
Property in the form of Exhibit C, updated to the Closing Date, certified by
-
Seller to be true and correct at the day prior to the Closing Date.
7.1.6. General Assignment. An assignment ("General Assignment"),
------------------
without warranty, duly executed by Seller, assigning to Buyer or its approved
designee all of Seller's right, title and interest in and to any licenses,
records, plans and Intangible Property related to the Property.
7.1.7. Non-Foreign Certification. A certification duly executed by
-------------------------
Seller under penalty of perjury setting forth Seller's address and federal tax
identification number and certifying that Seller is a "United States Person" and
that Seller is not a "foreign person" in accordance with and/or for the purpose
of the provisions of Sections 7701 and 1445 (as may be
-12-
amended) of the Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder.
7.1.8. Notices.
-------
(i) Written notices to be sent postage prepaid to each tenant,
advising them of the purchase of the Property by Buyer, directing them to pay
rent to Buyer, and notifying them of the transfer of the security deposits to
Buyer (the "Tenant Notice"). Buyer shall notify Seller of the exact name,
address and telephone number of Buyer to be included in the Tenant Notice. The
Tenant Notice shall set forth each tenant's then-current rental rate, the amount
of the security deposit transferred to Buyer. Upon Closing, Escrow Holder shall
promptly send the notice to all tenants by first class mail, at Seller's cost;
and
(ii) A form of written notice(s) to the other parties to the
Contracts and any vendors relating to the Property, advising them of the change
in ownership of the Property and any other information required pursuant to the
Contracts, which notices shall be mailed by Escrow Holder to each addressee.
7.1.9. Proof of Authority. Such proof of Seller's authority and
------------------
authorization to enter into this Agreement and consummate the transactions
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 and/or Buyer.
7.1.10. Affidavits. Any affidavits or mechanic's lien
----------
indemnifications as may be reasonably required by Title Company in order to
issue the Title Policy.
7.1.11. Representations and Warranties. A certificate of Seller
------------------------------
certifying that the representations and warranties of Seller set forth in
Exhibit E are true and correct as of the Closing.
-
7.1.12. Other. Any and all other instruments reasonably necessary
-----
in order to consummate the acquisition of the Property in accordance with this
Agreement.
7.2. By Buyer for the Closing. Buyer hereby covenants and agrees to
------------------------
deliver or cause to be delivered to Escrow Holder by 12:00 PM Pacific Standard
Time one (1) business day prior to the Closing Date the following consideration,
instruments and documents, the delivery of each of which shall be a condition to
the performance by Seller of its obligations under the terms of this Agreement.
7.2.1. Purchase Price. Cash in the amount of the Purchase Price
--------------
plus Buyer's prorations and Closing costs less Seller's prorations and Closing
costs, by Bank wire transfer, less the Deposit and interest earned thereon.
-13-
7.2.2. Assignment and Assumption of Leases. The Assignment of
-----------------------------------
Leases executed and acknowledged by Buyer or its approved designee, whereby
Buyer or its approved designee assumes and agrees to perform the obligations
from and after the Closing under the leases relating to the Real Property.
7.2.3. Assignment and Assumption of Service Agreements. The
-----------------------------------------------
Assignment of Service Agreements executed by Buyer or its approved designee,
whereby Buyer or its approved designee assumes and agrees to perform the
obligations from and after the Closing under the service Contracts.
7.2.4. Representations and Warranties. A certificate of Buyer and
------------------------------
its approved designee certifying that the representations and warranties set
forth in Exhibit F are true and correct as of the Closing.
-
7.2.5. Proof of Authority. Such proof of Buyer's authority and
------------------
authorization to enter into this Agreement and consummate the transactions
contemplated hereby, and such proof of the power and authority of the
individual(s) executing an/or delivering any instruments, documents or
certificates on behalf of Buyer or its approved designee to act for and bind
Buyer or its approved designee, as may be reasonably required by Seller or Title
Company.
7.2.6. Other. Any and all other instruments reasonably necessary
-----
in order to consummate the transfer of the Property and the payment of the
Purchase Price in accordance with this Agreement.
8. Deliveries to Buyer Upon Close of Escrow Outside of Escrow. Seller
----------------------------------------------------------
shall deliver possession of the Property to Buyer or its approved designee upon
the Closing, including keys to the Improvements and keys to all Personal
Property located on the Property. The original leases, which are the subject of
the Assignment of Leases, all tenant files, and all plans and drawings of the
Property in Seller's possession shall be delivered to Buyer or its approved
designee upon the Closing.
9. Casualty Damage. 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 for loss or damage caused by Buyer and except as otherwise provided in
this Section 9. From and after the Closing, such risk shall be Buyer's or its
-
approved designee's. If, prior to the Closing, any part of the Property is
damaged or destroyed by earthquake, flood, landslide, fire or other casualty,
Seller shall promptly so notify Buyer.
9.1. Damage Exceeds $500,000. If such damage or destruction results
-----------------------
in a cost to repair or replace the Property or any part of the Property which is
greater than $500,000, Buyer
-14-
shall have the option to terminate its obligation to acquire the Property
pursuant to this Agreement by written notice to Seller and Escrow Holder not
later than ten (10) business days after receipt of notice from Seller of the
fact that the Property has been damaged or destroyed, which notice shall include
written evidence from Seller's insurer of the amount of insurance coverage to be
paid for the casualty. In the event Buyer exercises the foregoing option, the
Deposit, including all interest earned thereon, shall be immediately delivered
to Buyer by Escrow Holder, and the obligations of Buyer and Seller to consummate
the transaction contemplated hereunder shall cease. If Buyer does not timely
exercise the foregoing option, the transaction shall proceed to Closing and
Seller shall assign and turn over at Closing, and Buyer shall be entitled to
receive and keep at Closing, all insurance proceeds payable, and an amount equal
to the deductible, with respect to such damage or destruction, and Buyer shall
have the right to participate in any adjustment of the insurance claim, and the
parties shall proceed to the Closing.
9.2. Damage Equals Or Is Less Than $500,000. If the cost to repair
--------------------------------------
the Property is $500,000 or less, neither party shall have a right to terminate
its obligations under this Agreement and Seller shall assign and turn over at
Closing, and Buyer shall be entitled to receive and keep at Closing, all
insurance proceeds payable, and an amount equal to the deductible plus any
shortfall necessary to cover the cost to repair, with respect to such damage or
destruction, and Buyer shall have the right to participate in any adjustment of
the insurance claim, and the parties shall proceed to the Closing.
10. Condemnation. If at any time prior to the Closing, the Property or
------------
any portion thereof which would materially adversely affect the use of the
Property is taken by condemnation or eminent domain, or any such proceedings are
commenced, Buyer may, at its option, within ten (10) business days after receipt
of written notice of such fact from Seller, terminate its obligation to acquire
the Property pursuant to this Agreement, by written notice to Seller and Escrow
Holder. Thereupon, the obligations of Buyer and Seller to consummate the sale of
the Property hereunder shall cease and the Deposit, including interest thereon
shall be immediately returned to Buyer by Escrow Holder. Seller shall notify
Buyer of any such taking by eminent domain or any commencement of any such
action and keep Buyer apprised of the status of such action. If Buyer does not
elect to so terminate its obligations under this Agreement, the Agreement shall
remain in full force and effect and Seller shall in such event turn over or
credit to Buyer at the Closing all monies received by Seller by reason of such
taking, and Seller shall assign to Buyer all of its rights, title and interest
in and to any awards to Seller or the Property that may be made for such taking
and Buyer shall have the right to participate in any negotiations of such award.
11. Representations and Warranties.
------------------------------
11.1. Seller's. Seller represents and warrants to Buyer as of the
--------
date of this Agreement those matters set forth in Exhibit E attached hereto and
-
made a part hereof, which representations and warranties shall be true and
correct at the Closing and shall survive the Closing only for five months.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES IN EXHIBIT E, (i) SELLER MAKES NO
-
WARRANTY OR REPRESENTATION REGARDING THE PROPERTY OR ANY PART THEREOF, ITS
-15-
PHYSICAL OR FINANCIAL CONDITION, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR
MERCHANTABILITY, OR ANY OTHER MATTER AFFECTING THE PROPERTY; AND (ii) BUYER WILL
ACQUIRE THE PROPERTY, IF AT ALL, "AS-IS, WHERE-IS, AND WITH ALL FAULTS,"
INCLUDING BUT NOT LIMITED TO ANY HAZARDOUS SUBSTANCES OR HAZARDOUS WASTES THAT
MAY BE LOCATED ON, UNDER OR AROUND THE PROPERTY, WHETHER KNOWN OR UNKNOWN.
11.2. Buyer's. Buyer represents and warrants to Seller as of the
-------
date of this Agreement those matters set forth in Exhibit F attached hereto and
-
made a part hereof, which representations and warranties shall be true and
correct at the Closing, and shall survive the Closing only for one month.
12. Seller's Covenants.
------------------
12.1. Operation of Property Prior to Closing. So long as Seller is
--------------------------------------
obligated to convey the Property to Buyer under this Agreement, Seller shall not
encumber or convey any portion of the Property or any rights therein, except
that Seller shall continue operating the Property substantially as it has in the
past, including but not limited to leasing to tenants for up to a one (1) year
period at not less than 90% of current rents, acquiring and disposing of
inventory, entering into service contracts, implementing rent adjustments and
performing inspections, repairs, maintenance and capital improvements. Seller
will not enter into any service contracts after the date of this Agreement which
are not terminable upon 30 days notice, without Buyer's prior written consent,
which will not be unreasonably withheld. Any proposed rent increase or material
modification of a lease form will be provided to Buyer prior to implementation
and, to the extent feasible, prior to notification of the tenants of the
Property. Seller will not enter into any leases with residents which are not on
the lease form provided to Buyer without Buyer's prior written consent, which
will not be unreasonably withheld. Except as set forth above, Buyer shall have
no right of approval or disapproval thereof, so long as Seller's actions are
reasonable and there is no material change in the budgeted cash flow as a result
of Seller's actions. Seller shall have no obligation to replace any damaged or
lost items of personal property in the model units prior to Closing which have a
value under One Hundred Dollars ($100). Seller shall use its best efforts so
that any apartment units vacated more than five (5) business days prior to the
Closing Date are in "rent ready condition" on the Closing Date. "Rent ready
condition" shall mean cleaned and recently painted in accordance with Seller's
custom, and carpeting and floor coverings in suitable condition for resident
move-ins, according to Seller's custom and practice. Following expiration of
the Inspection Period and if this Agreement has not been terminated, Seller
shall provide Buyer with a copy of the Weekly Occupancy Activity Analysis report
for the Property, in the form attached as Exhibit G. Seller will use reasonable
-
efforts to ensure the overall accuracy of the report; however, said report shall
be without warranty as to accuracy.
12.2. Representations and Warranties. To the extent within Seller's
------------------------------
control, Seller will take, cause to be taken, or refrain from, all action
necessary to cause the representations and warranties of Seller set forth in
Exhibit E to remain true and correct in all respects from the date of this
-
Agreement to the Closing.
-16-
13. Buyer's Covenants. Buyer shall (or shall not, as the case may be) do
-----------------
the following, from the date of this Agreement until the Closing and Subsequent
Closing hereunder:
13.1. Ongoing Business. Carry on its business in the ordinary and
----------------
regular course in substantially the same manner as heretofore conducted;
13.2. Preserve Existence. Preserve its existence and business
------------------
organization intact;
13.3. Raise Funds. Use all commercially reasonable efforts to raise
-----------
sufficient financing (either as equity or debt) to enable the transaction
contemplated by this Agreement to be consummated (although the raising of such
funds shall not be a condition of Buyer's obligations hereunder);
13.4. Representations and Warranties. To the extent within Buyer's
------------------------------
control, Buyer will take, cause to be taken, or refrain from, all action
necessary to cause the representations and warranties of Buyer set forth in
Exhibit F to remain true and correct in all respects from the date of this
-
Agreement to the Closing.
14. Indemnification.
---------------
14.1. By Seller. Seller shall indemnify, defend and hold harmless
---------
Buyer, its officers, directors, agents and employees from and against any and
all claims, demands, causes of action and liabilities including but not limited
to reasonable attorneys' fees, arising as a result of an injury occurring at the
Property prior to the Closing (other than if actually caused by Buyer), or
arising out of the breach of Seller's representations and warranties set forth
in Exhibit E.
-
14.2. By Buyer. Buyer agrees to indemnify, defend and hold harmless
--------
Seller, its partners, agents, employees, and Independent Committee members and
their agents, from and against any and all claims, demands, causes of action,
and liabilities, including but not limited to reasonable attorneys' fees,
arising on or after the Closing and relating to the Property or Buyer's
ownership, operation (which shall include without limitation tenant matters) or
maintenance of the Property or arising out of a breach of Buyer's
representations and warranties set forth in Exhibit F.
-
14.3. Terms of Indemnification. The foregoing indemnification
------------------------
obligations are subject to the following:
14.3.1. Claim Amount. The respective indemnifying party under
------------
Sections 14.1 and 14.2 shall be required to indemnify the respective indemnified
---- ----
party thereunder only if, and then only to the extent that, the damages,
judgments, costs, expenses (excluding attorneys' fees and disbursements),
penalties or other amounts incurred by the indemnified party arising out of a
matter for which the indemnified party is indemnified thereunder, exceeds
$25,000.
-17-
Notwithstanding anything herein, the maximum liability of either party as
indemnitor hereunder, including but not limited to all costs, expenses,
reasonable attorney's fees and disbursements, shall be an amount equal to the
Purchase Price.
14.3.2. Notice. No party hereto shall be required to indemnify
------
another party pursuant hereto unless within two months following the Closing (i)
the claim for which the party seeks indemnity arises and (ii) the party claiming
the right to be indemnified notifies the other party of its claim of indemnity
and of the facts which are the basis for indemnification pursuant to this
Section 14. If the notice is timely given but the notified party desires to
--
dispute the claim of indemnity, it shall, within thirty (30) days after the
aforesaid notice is given, give a counternotice, setting forth the basis for
disputing such claim of indemnity, to the party claiming the right to be
indemnified. If no such counternotice is given within such thirty (30) day
period, or if the indemnifying party acknowledges liability for indemnification,
then such indemnification shall be promptly honored.
14.3.3. Arbitration. If, within thirty (30) days after the giving of
-----------
the counternotice, the parties have not reached agreement as to the claim in
question, then the claim for indemnification shall be submitted to and settled
by arbitration as hereinafter provided (it being expressly understood and agreed
that if such counternotice is duly given, it is the intention of the parties to
this Agreement that any such claim shall be resolved by arbitration as provided
in this Section 14). Arbitration shall be before a retired judge or justice in
--
Orange County, California. If the parties are unable to agree on a retired
judge or justice, each party shall name one retired judge or justice and the two
named persons will select a neutral judge or justice to act as the sole
arbitrator. The parties shall be entitled to take discovery in accordance with
the provisions of the California Code of Civil Procedure, including but not
limited to Section 1283.05, which shall be applicable to such arbitration,
except that leave of the arbitrator shall not be required to take depositions
for discovery, provided that either party may request that the arbitrator limit
the amount or scope of such discovery, and in determining whether to do so, the
arbitrator shall balance the need for discovery against the parties' mutual
desire to resolve the dispute expeditiously and inexpensively. The decision of
the arbitrator on the merits shall be final and binding as to any matters
submitted to the arbitrator under this Agreement, except the arbitrator shall
have no authority to grant punitive damages. To the extent the arbitrator's
decision is that a loss has been suffered for which a party is to be indemnified
under this Agreement, it shall be promptly satisfied; provided, however, that,
if necessary, such decision and satisfaction procedure may be enforced by either
party hereto in any court of record having jurisdiction over the subject matter
or over any of the parties hereto. All costs and expenses incurred in
connection with any such arbitration proceeding shall be borne by the party
against whom the decision is rendered, or, if no decision is rendered or if the
decision is a compromise, equally by Buyer and Seller.
14.3.4. Right to Counsel. Any party entitled to indemnification
----------------
hereunder shall be entitled to be defended by counsel of such party's choice,
subject to the approval of the indemnifying party, which approval shall not be
unreasonably withheld or delayed, provided,
-18-
however, if the indemnity claim arises out of an action by a third party, then
the indemnifying party shall have the right to use the same counsel to defend
the indemnified party as the indemnifying party is using in the underlying
action, unless the indemnified party in good faith believes that a conflict
exists such that the indemnified party will not be adequately represented by
such counsel.
14.3.5. No Third Party Beneficiary. The indemnifications set forth
--------------------------
in this Agreement shall not inure to the benefit of any unspecified third party,
including but not limited to insurance carriers, which are specifically
excluded.
15. Brokers. Buyer and Seller each represents and warrants to the other
-------
that neither has dealt with a broker, finder or other third party in connection
with this transaction who would be entitled to a commission or finder's fee,
other than CB Commercial, who represented the Seller, and none is due any person
or entity, other than CB Commercial, who represented the Seller, through said
party in connection with this Agreement or the transaction set forth herein and
agrees to hold the other harmless from any such claim.
16. Default and Remedies.
--------------------
16.1. BUYER'S DEFAULT - CLOSING. IN THE EVENT OF BUYER'S DEFAULT
-------------------------
HEREUNDER PRIOR TO CLOSING WHICH IS NOT CURED WITHIN TEN (10) DAYS OF NOTICE
THEREOF, PROVIDED ALL CONDITIONS SET FORTH IN SECTION 3.1 HAVE BEEN SATISFIED OR
---
WAIVED BY BUYER, SELLER MAY ELECT BY WRITTEN NOTICE TO BUYER AND ESCROW HOLDER,
EITHER (A) TO CLOSE THIS TRANSACTION, BUT ONLY IF BUYER IS WILLING TO PROCEED TO
CLOSING (I.E., SELLER SHALL NOT HAVE THE RIGHT OF SPECIFIC PERFORMANCE), AND TO
RESERVE SELLER'S REMEDY TO SEEK DAMAGES FOR SUCH BREACH AS SET FORTH IN SECTION
16.3 OR (B) TO TERMINATE BUYER'S OBLIGATION TO BUY, AND SELLER'S OBLIGATION TO
----
SELL, THE PROPERTY PURSUANT TO THIS AGREEMENT. IF SELLER SHALL ELECT THE LATTER
REMEDY (I.E., CLAUSE (B)) AND IF BUYER'S DEFAULT IS MATERIAL, SELLER, AT ITS
ELECTION, AS ITS SOLE AND EXCLUSIVE REMEDY, SHALL BE ENTITLED TO THREE HUNDRED
THOUSAND DOLLARS ($300,000) (THE DEPOSIT) PLUS INTEREST EARNED THEREON, AS
LIQUIDATED DAMAGES. THE PARTIES AGREE THAT SELLER'S ACTUAL DAMAGES, IN THE
EVENT OF A MATERIAL DEFAULT BY BUYER, WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICAL TO DETERMINE, AND THE LIQUIDATED DAMAGES HAVE BEEN AGREED UPON AFTER
NEGOTIATION BETWEEN THE PARTIES. THE PARTIES
-19-
AGREE THAT THIS PROVISION IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AT THE
TIME THIS AGREEMENT IS MADE.
__________________ __________________
INITIALS ON BEHALF INITIALS ON BEHALF
OF SELLER OF BUYER
16.2. SELLER'S DEFAULT - CLOSING. IN THE EVENT OF SELLER'S DEFAULT
--------------------------
HEREUNDER PRIOR TO CLOSING WHICH IS NOT CURED WITHIN TEN (10) DAYS OF NOTICE
THEREOF, PROVIDED ALL CONDITIONS SET FORTH IN SECTION 3.2 HAVE BEEN SATISFIED OR
---
WAIVED BY SELLER, BUYER MAY ELECT, BY WRITTEN NOTICE TO SELLER AND ESCROW
HOLDER, EITHER (A) TO CLOSE THIS TRANSACTION, WITH THE RIGHT OF SPECIFIC
PERFORMANCE, AND TO RESERVE BUYER'S REMEDY TO SEEK DAMAGES FOR SUCH BREACH AS
SET FORTH IN SECTION 16.3 OR (B) IF SELLER'S DEFAULT IS MATERIAL, TO TERMINATE
----
SELLER'S OBLIGATION TO SELL, AND BUYER'S OBLIGATION TO BUY, THE PROPERTY
PURSUANT TO THIS AGREEMENT AND RECEIVE THE RETURN OF THE DEPOSIT PLUS INTEREST
EARNED THEREON AND BUYER SHALL BE ENTITLED TO PAYMENT FROM SELLER OF BUYER'S
ACTUAL PAID OUT-OF-POCKET COSTS, NOT TO EXCEED $60,000 AND SHALL DELIVER THE
SURVEY TO SELLER.
__________________ __________________
INITIALS ON BEHALF INITIALS ON BEHALF
OF SELLER OF BUYER
16.3. Breach of This Agreement if the Closing Occurs. In the event
----------------------------------------------
the Closing occurs, any claim for a breach (the "Breach") of this Agreement,
other than for failure to honor an obligation of indemnity under this Agreement,
shall be subject to the following:
16.3.1. Claim Amount. A party shall be liable for the Breach only
------------
if, and then only to the extent that, the damages, judgments, costs, expenses
(excluding attorneys' fees and disbursements), penalties, liabilities or other
amounts incurred as a result of the Breach exceed $25,000. Notwithstanding
anything herein to the contrary, the maximum liability of either Buyer or Seller
for the Breach, including but not limited to all costs, expenses, attorneys'
fees and disbursements, shall be an amount equal to the Purchase Price.
Notwithstanding the foregoing, the provisions of this Section 16.3.1 shall not
------
apply to any failure to reprorate the prorations as required by Section 5.
16.3.2. Notice. No party hereto shall be liable for the Breach
------
unless, prior to the date two months following the Closing (i) the alleged
Breach occurs and (ii) the party
-20-
asserting the Breach notifies the other party of the alleged Breach and the
facts which are the basis for the alleged Breach. If the notice is timely given
but the notified party desires to dispute such claim of Breach, it shall, within
thirty (30) days after the aforesaid notice is given, give a counternotice,
setting forth the basis for disputing such claim of Breach, to the party
claiming the Breach. If no such counternotice is given within such thirty (30)
day period, or if the alleged Breaching party acknowledges the Breach, then the
Breach shall be promptly cured or satisfied.
16.3.3. Arbitration. If, within thirty (30) days after the giving
-----------
of the counternotice, the parties have not reached agreement as to the claim in
question, then the claim shall be submitted to and settled by arbitration as
hereinafter provided (it being expressly understood and agreed that if such
counternotice is duly given, it is the intention of the parties to this
Agreement that any such claim shall be resolved by arbitration as provided in
this Section 16). Arbitration shall be before a retired judge or justice in Los
--
Angeles County, California. If the parties are unable to agree on a retired
judge or justice, each party shall name one retired judge or justice and the two
named persons will select a neutral judge or justice to act as the sole
arbitrator. The parties shall be entitled to take discovery in accordance with
the provisions of the California Code of Civil Procedure, including but not
limited to Section 1283.05, which shall be applicable to such arbitration,
except that leave of the arbitrator shall not be required to take depositions
for discovery, provided that either party may request that the arbitrator limit
the amount or scope of such discovery, and in determining whether to do so, the
arbitrator shall balance the need for discovery against the parties' mutual
desire to resolve the dispute expeditiously and inexpensively. The decision of
the arbitrator on the merits shall be final and binding as to any matters
submitted to the arbitrator under this Agreement, and to the extent the
arbitrator's decision is that a Breach occurred, it shall be promptly satisfied
by the Breaching party; provided, however, that, if necessary, such decision and
satisfaction procedure may be enforced by any party hereto in any court of
record having jurisdiction over the subject matter or over any of the parties
hereto. All costs and expenses incurred in connection with any such arbitration
proceeding shall be borne by the party against whom the decision is rendered,
or, if no decision is rendered or if the decision is a compromise, equally by
Buyer and Seller.
17. Notices. All notices, requests, approvals, disapprovals, submissions,
-------
waivers, elections, exercises of options and consents required or provided for
herein shall be in writing and shall be sufficient if (i) delivered personally
(which shall include delivery by messenger, overnight courier and by facsimile
---
transmission) or (ii) sent by registered or certified United States mail, return
receipt requested, postage prepaid and by facsimile transmission, addressed as
---
described below, or to such other address as the party concerned may substitute
by written notice to the other as provided herein. All notices given by mail
shall be deemed to be received when actually received or refused.
To Seller: De Anza Properties - X
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
-21-
with a copy to: Terra Vista Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
---
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
1900 Avenue of the Stars
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
To Buyer: ▇.▇. ▇▇▇▇ Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Allen, Matkins, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. or
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
To Escrow Holder: Chicago Title Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
To Title Company: Chicago Title Insurance Company
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
18. Tax Deferred Exchange. Either party may desire to consummate a
---------------------
(S)1031 tax deferred exchange with this transaction and each party agrees to
cooperate with the other in effecting a (S)1031 tax deferred exchange provided
that (a) the non-exchanging party shall not incur any cost or liability as a
result of said exchange or attempted exchange by the exchanging
-22-
party, (b) said exchange(s) does not affect the Closing Date, (c) the non-
exchanging party is not required to take title to other properties involved in
the exchange of the exchanging party, and (d) the exchanging party pays for all
escrow fees and charges charged by the Escrow Holder in connection with the
exchanging party's exchange.
19. Miscellaneous.
-------------
19.1. Entire Agreement. This Agreement and the Exhibits attached
----------------
hereto which are incorporated herein and made a part hereof embody the entire
agreement of the parties regarding the subject matter hereof. All prior
negotiations, agreements and representations, whether oral or written, are
merged herein. This Agreement may not be altered or modified, except by an
instrument in writing signed by all parties (which may be in counterparts); nor
may any provision be waived by a party unless in writing signed by such party.
19.2. Benefit of Agreement. This Agreement shall be binding upon and
--------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
19.3. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the State of California.
19.4. Time of the Essence. Time shall be of the essence with respect
-------------------
to the performance by the parties of their respective obligations hereunder.
Unless otherwise specified in this Agreement, in computing any time period
provided for in the Agreement or by law, the day of the act or event from which
the period of time runs shall be excluded, and the last day of such period shall
be included, unless it is Saturday, Sunday or a federal legal holiday, in which
case, shall run until the end of the next day which is not a Saturday, Sunday or
federal legal holiday.
19.5. Captions. The captions of the sections and paragraphs of this
--------
Agreement are inserted only as a matter of convenience and for reference, and in
no way define, limit or describe the scope of this Agreement, or the intent of
any provision hereof.
19.6. Severability. In case any one or more of the provisions
------------
contained in this Agreement shall for any reason be held to be invalid, illegal,
or unenforceable in any respect by a court, arbitrator or administrative agency
having jurisdiction, 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.
19.7. Further Assurances. Each party agrees that at the request of
------------------
another party it will at any time hereafter make such further assurances and
execute or cause to be executed such further instruments as may be reasonably
requested by the other party in order that this Agreement may be fully performed
in accordance with its intent and provisions.
-23-
19.8. Provisions Negotiated and Independent. Each and every
-------------------------------------
provision of this Agreement has been independently, separately and freely
negotiated by the parties as if this Agreement were drafted by all parties
hereto. The parties, therefore, waive any statutory or common law presumption
which would serve to have this document construed in favor of, or against, any
party.
19.9. No Merger. All provisions in this Agreement, which by their
---------
terms extend beyond the Closing, shall survive the Closing and not merge as a
result of the conveyance of the Property, including but not limited to the
representations and warranties of Seller and Buyer which shall survive the
Closing for one month.
19.10. Failure to Enforce. The failure to enforce any breach of this
------------------
Agreement should not be deemed a waiver of such breach and each party reserves
its right to enforce the same at a later time and its right to waive a condition
for its benefit without waiving any other provision or condition.
19.11. Counterparts. This Agreement may be executed in two or more
------------
identical counterparts, all of which shall be taken together as a single
instrument.
19.12. Assignment of Agreement. This Agreement may not be assigned
-----------------------
except as necessary to effectuate a tax deferred exchange, and except that Buyer
may designate an affiliate controlled by Buyer, to take title to the Property at
Closing, on the condition that the Buyer remain obligated under the Agreement
and said designee assumes, as an additional obligor, all obligations of Buyer
hereunder and Buyer notifies Seller of the assignee five (5) business days prior
to the date Seller is obligated to provide Closing Documents to Buyer or Buyer's
counsel. The designation of a designee shall have no effect upon any amounts
held by the Escrow Holder hereunder at the time of assignment, and all
provisions herein relating to the Escrow Holder shall continue to be in full
force and effect.
19.13. No Third-Party Beneficiaries. This Agreement is for the sole
----------------------------
benefit of the parties hereto, their respective successors and assigns, and no
other person or entity shall be entitled to rely upon or receive any benefit
from this Agreement or any term hereof, except those parties entitled to
indemnification pursuant to Section 14.
--
19.14. Remedies. The rights and remedies of the parties are set
--------
forth in Sections 14 and 16 and those in Sections 16.1 and 16.2 are exclusive in
-- -- ---- ----
the event the Closing does not occur. If the Closing does occur, the rights
and remedies of all parties under this Agreement or otherwise (whether based in
contract, tort or any other theory) are set forth in Sections 14 and 16.3 and
-- ----
are exclusive.
19.15. Attorneys' Fees. Unless otherwise specified in this
---------------
Agreement, in any action or proceeding (including but not limited to an
arbitration) arising out of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs incurred in
-24-
preparation for and in prosecution or defense of said action or proceeding,
including but not limited to all appeals, related proceedings including
enforcement, satisfaction and extraordinary writ proceedings.
19.16. Acceptance of Offer. This Agreement constitutes an offer by
-------------------
Buyer to acquire the Property on the terms and conditions set forth in this
Agreement, which offer must be accepted by Seller on or before two (2) business
days from the date this Agreement is signed by Buyer and delivered to Seller.
If not so accepted and returned to Buyer within said two (2) day period, this
offer shall be deemed revoked. If accepted by Seller, this Agreement shall be
valid and binding as to all parties.
(signatures on following page)
-25-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SELLER:
DE ANZA PROPERTIES - X
a California limited partnership
By De Anza Corporation,
Operating General Partner
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Dated: October 7, 1996
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board
BUYER:
▇.▇. ▇▇▇▇ CO., INC.
a Nevada corporation
By /s/W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Dated: October 4, 1996
---------------------
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice-President
ESCROW HOLDER:
Escrow obligations agreed to:
CHICAGO TITLE INSURANCE COMPANY
By: /s/▇▇▇▇ ▇▇▇▇▇▇ Dated: October 8, 1996
--------------------------
▇▇▇▇ ▇▇▇▇▇▇, Escrow Officer
-26-
LIST OF EXHIBITS
----------------
A. Legal Description
B. Personal Property
C. Rent Roll
D. Items to be provided to Buyer
Schedules:
D-6 Workmen's Compensation Claims for 1994, 1995 and Through
July 1996
D-8 Written Service Contracts
D-9 Written Guarantees or Warranties
D-13 Blanket Insurance Coverage
E. Seller's Representations and Warranties for Closing
Schedules:
E-7 Litigation
E-8 Violation of Laws
E-9 Contracts
E-11 Hazardous Substances
F. Buyer's Representations and Warranties
G. Form of Weekly Occupancy Activity Analysis Report
-27-