AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
BY AND BETWEEN
NATIONAL INVESTORS FINANCIAL, INC.,
a California corporation, AS TRUSTEE for
NATIONAL INVESTORS LAND HOLDING TRUST ___,
AS SELLER,
AND
VICTORVILLE HOMES, INC.,
a California corporation,
AS BUYER
RELATING TO
PROPERTY LOCATED IN
Victorville, California
known as
"XXXXXX XXXX AT VICTORVILLE"
DATED AS OF
__________________, 1998
TABLE OF CONTENTS
PAGE
----
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Substance of Transactions . . . . . . . . . . . . . . . . . . . . . . . 5
3. Exchange Value. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. Escrow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Cancellation Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . 5
6. Deliveries to Escrow Holder . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1 By Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.2 By Buyer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.3 By Buyer and Seller . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Condition of Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.1 Permitted Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . 7
7.2 Title Provided by Seller. . . . . . . . . . . . . . . . . . . . . . . . 7
8. Conditions to the Close of Escrow . . . . . . . . . . . . . . . . . . . . . 7
8.1 Conditions Precedent to Buyer's Obligations . . . . . . . . . . . . . . 7
8.2 Conditions Precedent to Seller's Obligations. . . . . . . . . . . . . . 8
9. Approval of Seller's Constituents . . . . . . . . . . . . . . . . . . . . . 8
10. Property "As-Is. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10.1 No Side Agreements Or Representations; As-Is Purchase. . . . . . . . . 8
10.2 Disclosures; Specific Acknowledgment Regarding Condition of Property .11
i
11. Title Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
12. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
13. Disbursements and Other Actions. . . . . . . . . . . . . . . . . . . . . .12
13.1 Escrow Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
13.2 By Transfer Agent. . . . . . . . . . . . . . . . . . . . . . . . . . .13
13.3 Possession. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
14. Joint Representations and Warranties . . . . . . . . . . . . . . . . . . .13
14.1 Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
14.2 Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
14.3 Due Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
14.4 Valid and Binding. . . . . . . . . . . . . . . . . . . . . . . . . . .14
14.5 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
15. Seller's Warranties and Representations. . . . . . . . . . . . . . . . . .14
15.1 Non-Foreign Entity . . . . . . . . . . . . . . . . . . . . . . . . . .14
15.2 Hazardous Substances.. . . . . . . . . . . . . . . . . . . . . . . . .14
15.3 Clean-up.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
15.4 Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
16. Pre-Closing Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . .15
16.1 No Transfers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
16.2 No Alterations.. . . . . . . . . . . . . . . . . . . . . . . . . . . .15
16.3 Maintenance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
16.4 Obligations Under Contracts. . . . . . . . . . . . . . . . . . . . . .15
16.5 Expenditures.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
ii
17. Condemnation and Destruction . . . . . . . . . . . . . . . . . . . . . . .15
17.1 Eminent Domain or Taking . . . . . . . . . . . . . . . . . . . . . . .15
17.2 Damage or Destruction. . . . . . . . . . . . . . . . . . . . . . . . .16
18 Utilities and Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . .16
18.1 Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
18.2 Refundable Deposits. . . . . . . . . . . . . . . . . . . . . . . . . .17
19. Mediation of Disputes. . . . . . . . . . . . . . . . . . . . . . . . . . .17
20. Arbitration of Disputes: . . . . . . . . . . . . . . . . . . . . . . . . .17
21. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
22. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
23. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
23.1 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
23.2 Partial Invalidity . . . . . . . . . . . . . . . . . . . . . . . . . .18
23.3 Possession of the Property . . . . . . . . . . . . . . . . . . . . . .19
23.4 Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
23.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . .19
23.6 Professional Fees. . . . . . . . . . . . . . . . . . . . . . . . . . .19
23.7 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . .19
23.8 Time of Essence. . . . . . . . . . . . . . . . . . . . . . . . . . . .19
23.9 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
23.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
23.11 Wear and Tear . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
23.12 No Recordation. . . . . . . . . . . . . . . . . . . . . . . . . . . .20
23.13 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
iii
23.14 Disclaimer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
23.15 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . . . . .20
EXHIBITS
--------
EXHIBIT A - Legal Description
EXHIBIT B - Form of Grant Deed
EXHIBIT C - FIRPTA Affidavit
EXHIBIT D - Assignment and Assumption
EXHIBIT E - Xxxx of Sale and General Assignment of Intangibles
iv
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
("AGREEMENT") is made and entered into as of ____________ __, 1998, by and
between NATIONAL INVESTORS FINANCIAL, INC., a California corporation, AS TRUSTEE
for NATIONAL INVESTORS LAND HOLDING TRUST ___ ("Seller"), and VICTORVILLE HOMES,
INC., a California corporation ("BUYER").
R E C I T A L S
A. Seller is the owner of that certain unimproved real property commonly
known as "Xxxxxx Xxxx at Victorville", consisting of approximately 32 acres,
located in the City of Victorville, County of San Bernardino, State of
California, as more particularly described in Exhibit A attached hereto (the
"Real Property").
B. Seller holds record title to the Real Property as agent of and for the
benefit of various investors who are the beneficiaries of National Investors
Land Holding Trust ____ (the "Trust").
C. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the Property (as hereinafter defined) on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals
are incorporated herein by this reference, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, Buyer
and Seller agree as follows:
A G R E E M E N T
1. DEFINITIONS: For the purposes of this Agreement the following
terms will be defined as follows:
1.1 "ACTUAL KNOWLEDGE OF SELLER" means and is limited to the actual
knowledge of Xxxxx Xxxxxx and Xxxxx X. Xxxx without having conducted any
independent inquiry or inspection, and shall not include the knowledge of any
other persons or firms, it being understood and agreed by Buyer that neither
Xxxxx Xxxxxx nor Xxxxx X. Xxxx is charged with knowledge of all of the acts
and/or omissions of predecessors in title to the Property or management of the
Property before Seller's acquisition of the Property and the Actual Knowledge of
Seller shall not include information or material which may be in the possession
of Seller generally, but of which neither Xxxxx Xxxxxx nor Xxxxx X. Xxxx is
actually aware.
1.2 "AFC" means American Family Communities, Inc., a California
corporation, which is a wholly-owned subsidiary of AFH.
1.
1.3 "AFH" means American Family Holdings, Inc., a Delaware corporation.
Buyer is a wholly-owned subsidiary of AFC, which, in turn, is a wholly-owned
subsidiary of AFH.
1.4 "ASSIGNMENT" shall have the meaning given thereto in Section 6.1(d)
hereof.
1.5 "XXXX OF SALE" shall have the meaning given thereto in
Section 6.1(e) hereof.
1.6 "CLOSING DATE" means ___________, 1998, unless an earlier date is
agreed to in a writing subsequent to this Agreement executed and delivered by
each of the parties hereto to the other, and is the last date on which the
Closing and Close of Escrow can occur, subject to extension as provided for in
this Agreement.
1.7 "CLOSING" and "CLOSE OF ESCROW" are terms used interchangeably in
this Agreement. The Closing or the Close of Escrow will be deemed to have
occurred when the Grant Deed is recorded in the official records of the county
in which the Property is located.
1.8 "EFFECTIVE DATE" means the date hereof.
1.9 "ENVIRONMENTAL AUDIT" means any environmental audit, review or
testing of the Property performed by Buyer or any third party or consultant
engaged by Buyer to conduct such study.
1.10 "ENVIRONMENTAL LAW" means any law, statute, ordinance or regulation
pertaining to health, industrial hygiene or the environment including, without
limitation, CERCLA (Comprehensive Environmental Response, Compensation and
Liability Act of 1980) and RCRA (Resources Conservation and Recovery Act of
1976), as amended.
1.11 "ESCROW" shall have the meaning given thereto in Section 4 hereof.
1.12 "ESCROW HOLDER" means _______________________________, whose
address is _______________________________________________________________,
Attn.: ___________________.
1.13 "EXCHANGE VALUE" is the adjusted appraised value of the Property
which takes into consideration various factors to balance the business value of
the Property within its present ownership structure.
1.14 "FIRPTA CERTIFICATE" shall have the meaning given thereto in
Section 6.1(b) hereof.
1.15 "GRANT DEED" shall have the meaning given thereto in Section 6.1(a)
hereof.
1.16 "HAZARDOUS SUBSTANCE" means any substance, material or waste which
is or becomes designated, classified or regulated as being "toxic" or
"hazardous" or a "pollutant" or
2.
which is or becomes similarly designated, classified or regulated, under any
Environmental Law, including asbestos, petroleum and petroleum products.
1.17 "IMPROVEMENTS" means any and all improvements and fixtures situated
on the Real Property.
1.18 "INVESTORS" means the beneficiaries of the Trust.
1.19 "INTANGIBLES" means all of Seller's right, title and interest in
and to all intangible property used, owned or issued solely and strictly in
connection with the Real Property, Improvements and Personal Property,
including, but not limited to: (i) trade names and trademarks, contract rights,
accounts receivable and other intangible property used in connection with the
ownership and operation of the Property; (ii) all licenses, permits,
certificates of occupancy, approvals, dedications and entitlements issued,
approved or granted by any governmental authorities having jurisdiction over the
Property; and (iii) all development rights, conditional use permits, variances
and other intangible rights, titles, interests and privileges owned by Seller
and related to or issued in connection with the Land and/or Improvements, its
use, occupancy, operation and development, but in no way related to Seller's
financial data or other proprietary information or other property of Seller.
1.20 "NOTICES" will be sent as provided in Section 21 to:
Seller: National Investors Land Holding Trust
c/o National Investors Financial, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attn.: Xx. Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Buyer: Victorville Homes, Inc.
______________________
______________________
Attn.:__________________
Telephone: _____________
Facsimile: ______________
3.
with a copy to: Xxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Escrow Holder: __________________________________
__________________________________
__________________________________
Attn.: ___________________
Telephone: ________________________
Facsimile: ________________________
1.21 "OPENING OF ESCROW" shall have the meaning given thereto in
Section 4 hereof.
1.22 "OTHER ASSETS" means cash, cash equivalent, notes and other
negotiable instruments and any and all other assets in the possession or control
of Seller, the value of which is determined by possession, and any other assets
other than the Real Property, Personal Property or Intangibles relating to the
Real Property.
1.23 "PERMITTED EXCEPTIONS" shall have the meaning given thereto in
Section 7.1 hereof.
1.24 "PERSONAL PROPERTY" means the equipment, furniture and fixtures,
books and records and other personal property, if any, owned by Seller and
located on the Property as of the Effective Date, including without limitation,
those items listed on SCHEDULE 1 to the Xxxx of Sale.
1.25 "PROPERTY" means collectively, (i) the Real Property, (ii) the
Improvements, (iii) the Intangibles, (iv) the Personal Property and (v) the
Other Assets.
1.26 "PROSPECTUS" means the Consent Solicitation Statement/Prospectus of
Buyer.
1.27 "REAL PROPERTY" means that certain real property located in the
City of Victorville, County of San Bernardino, State of California and commonly
known as "Xxxxxx Xxxx at Victorville" and more particularly described in EXHIBIT
A attached hereto. The Real Property also is described in the Recitals hereof.
1.28 "TITLE COMPANY" means ________________________________________.
1.29 "TITLE POLICY" shall have the meaning given thereto in Section 11
hereof.
1.30 "TRANSFER AGENT" means ___________________, who address is
__________________, Attn.: ___________, Facsimile No. ___________..
4.
2. PURCHASE AND SALE:
2.1 PURCHASE AND SALE. Upon and subject to the terms and conditions
set forth in this Agreement, Seller agrees to sell to Buyer and Buyer agrees to
buy from Seller the Property, together with all easements, hereditaments,
entitlements (to the extent transferable) and appurtenances thereto. In
consideration of Seller's sale of the Property to Buyer, Buyer will (a) cause to
be delivered to the investors of Seller the Exchange Value in accordance with
Section 3, and (b) perform all of Buyer's other obligations hereunder.
2.2 SUBSTANCE OF TRANSACTIONS. Notwithstanding any other provision of
this Agreement, the transfer of the Property directly from Seller to Buyer is
for convenience purposes only to effect expeditiously the culmination of the
transfers set forth in this Section 2.2, and for all purposes hereunder it is
the intent of the parties that such transfer reflects the following transfers,
which shall occur in the following order: (i) all of the Investors, through
their approval of the transactions contemplated under this Agreement, contribute
all of their interests in the Property to AFH in exchange for shares of common
stock of AFH, such shares to be distributed to them pursuant to Sections 3 and
13.2 hereof; (ii) AFH contributes the Property to AFC as a contribution to the
capital of AFC; and (iii) AFC contributes the Property to Buyer as a
contribution to the capital of Buyer. Seller's transfer of the Property
directly to Buyer reflects Seller's transfer of the Property from the Investors
to AFH, from AFH to AFC, and from AFC to the Buyer, in each instance in Seller's
capacity as the agent of and on behalf of such transferors.
3. EXCHANGE VALUE: In consideration for the sale of the Property to
Buyer, Buyer will deliver to Seller an amount equal to the Exchange Value for
the Property. The Exchange Value for the Property is $______________, which
shall be paid in the form of, and by issuance and delivery of, _____ shares of
common stock in AFH to the investors of Seller, to be distributed by the
Transfer Agent at the Closing outside of Escrow in accordance with Section 13.2
hereof. Upon the request of any party hereto, whether made before or after the
Closing, the parties hereto will allocate the Exchange Value to the Real
Property, Improvements, Personal Property, Other Assets and the Intangibles.
4. ESCROW: Immediately upon execution of this Agreement, Buyer and
Seller will open an escrow (the "ESCROW") with the Escrow Holder by delivering
to Escrow Holder a fully executed copy of this Agreement (the "OPENING OF
ESCROW"). The purchase and sale of the Property will be completed through the
Escrow. Buyer and Seller agree to execute any additional instructions
consistent with this Agreement which are reasonably required by the Escrow
Holder. If there is a conflict between any printed escrow instructions and this
Agreement, the terms of this Agreement will govern.
5. CANCELLATION FEES AND EXPENSES: If the Closing does not occur at
the time and in the manner provided in this Agreement because of the default of
one of the parties, the non-defaulting party has the right to cancel the Escrow
by written notice to the defaulting party and to the Escrow Holder. All costs
of cancellation, if any, will be paid by the defaulting party.
5.
6. DELIVERIES TO ESCROW HOLDER:
6.1 BY SELLER. On or prior to the Closing Date, Seller will deliver or
cause to be delivered to Escrow Holder the following items:
(a) A Grant Deed ("GRANT DEED"), in the form attached to this
Agreement as EXHIBIT B, duly executed and acknowledged by Seller and in
recordable form, conveying the Property to Buyer.
(b) A Transferor's Certificate of Non-Foreign Status attached to
this Agreement as EXHIBIT C ("FIRPTA CERTIFICATE"), duly executed by or on
behalf of Seller.
(c) A properly executed California Form RE 590 or other evidence
sufficient to establish that Buyer is not required to withhold any portion
of the Exchange Value pursuant to Sections 18805 and 26131 of the
California Revenue and Taxation Code ("FORM 590").
(d) An Assignment and Assumption of Agreements ("ASSIGNMENT")
duly executed by Seller in favor of Buyer in the form attached to this
Agreement as EXHIBIT D.
(e) A Xxxx of Sale and General Assignment of Intangibles in the
form attached to this Agreement as EXHIBIT E ("XXXX OF SALE"), duly
executed by Seller and conveying all right, title and interest of Seller in
the Personal Property and the Intangibles to Buyer.
(f) Such corporate resolutions, certificates of good standing
and/or other corporate or partnership documents relating to Seller as are
reasonably required by Buyer or Escrow Holder or both in connection with
this transaction.
6.2 BY BUYER. On or prior to the Closing Date, Buyer will deliver or
cause to be delivered to Escrow Holder the following items:
(a) Such corporate resolutions, certificates of good standing
and/or other corporate or partnership documents relating to Buyer as are
reasonably required by Seller or Escrow Holder or both in connection with
this transaction.
(b) Amounts due to pay costs and expenses as set forth in
Section 12 hereof.
6.3 BY BUYER AND SELLER. Buyer and Seller will each deposit such other
instruments consistent with this Agreement as are reasonably required by Escrow
Holder or otherwise required to close escrow. In addition Seller and Buyer
hereby designate Escrow Holder as the "REPORTING PERSON" for the transaction
pursuant to Section 6045(e) of the Internal Revenue Code.
6.
7. CONDITION OF TITLE:
7.1 PERMITTED EXCEPTIONS. At the Close of Escrow, fee simple title to
the Property will be conveyed to Buyer by Seller by Grant Deed, subject only to
the following title matters ("PERMITTED EXCEPTIONS"):
(a) all property tax liens (whether or not payment of property
taxes are delinquent) and all other matters shown in that certain
Commitment for Title Insurance effective _______________, issued by the
Title Company, bearing Order No.________; and
(b) matters affecting the condition of title to the Property
created by, at the request of or with the written consent of Buyer.
7.2 TITLE PROVIDED BY SELLER. The parties agree that (a) except as
specifically provided in the Grant Deed or implied by law, Seller makes no
express or implied warranties regarding the condition of title to the Property,
and (b) Buyer shall rely solely on the Title Policy for protection against any
title defects.
8. CONDITIONS TO THE CLOSE OF ESCROW:
8.1 CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. The following
conditions must be satisfied not later the earlier of the Closing Date or such
other period of time as may be specified below:
8.1.1 TITLE. As of the Closing, the Title Company will issue or
have committed to issue to Buyer the Title Policy described in Section 11.
8.1.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. Seller
will have duly performed each and every agreement to be performed by Seller
hereunder and, subject to the provisions of Section 10, Seller's express
representations and warranties set forth in this Agreement will be true and
correct in all material respects as of the Closing Date. However,
notwithstanding anything to the contrary stated or implied in this Section
8.1.2, Seller shall have no liability for the breach of any
representations, warranties or covenants set forth in this Agreement,
whether express or implied, absent a finding by a court of competent
jurisdiction that either Xxxxx Xxxxxx or Xxxxx X. Xxxx or both of them
withheld information with respect thereto from Buyer or falsified
information delivered to and relied upon by Buyer and that such action
amounted to a violation of a representation or warranty set forth herein.
8.1.3 SELLER'S DELIVERIES. Seller will have delivered the items
described in Section 6.1.
The conditions set forth in this Section 8.1 are solely for the benefit of
Buyer and may be waived only by Buyer. At all times Buyer has the right to
waive any condition. Such waiver or
7.
waivers must be in writing to Seller. If any conditions are not satisfied on or
before the Closing Date, and Buyer has not waived the unsatisfied conditions,
Seller will not be deemed to be in default (unless Seller has breached
Sections 8.1.2 or 8.1.3 above) and Buyer's sole remedy will be to terminate this
Agreement.
8.2 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. The Close of Escrow
and Seller's obligations with respect to this transaction are subject to the
following conditions precedent: (a) Buyer's delivery to Escrow Holder on or
before the Closing Date, of the items described in Section 6.2; (b) the approval
of such of Seller's constituents as Seller shall deem necessary or advisable in
its sole and absolute discretion as set forth in Section 9 hereof; (c) Buyer
having duly performed each and every agreement to be performed by Buyer
hereunder; and (d) Buyer's representations, warranties and covenants set forth
in this Agreement, will be true and correct in all material respects as of the
Closing Date. The conditions set forth in this Section 8.2 are solely for the
benefit of Seller and may be waived only by Seller, with such waiver or waivers
to be in writing to Buyer. If any conditions are not satisfied on or before the
Closing Date, and Seller has not waived the unsatisfied conditions, Buyer will
not be deemed to be in default (unless Buyer has breached Sections 8.2(a), (c)
or (d) above) and Seller's sole remedy will be to terminate the Agreement.
9. APPROVAL OF SELLER'S CONSTITUENTS: Seller shall exercise
reasonable diligence to obtain the approval of this transaction by such of the
constituents of Seller as Seller shall deem necessary or advisable, in its sole
and absolute discretion, and shall notify Buyer and Escrow Holder when such
approvals have been obtained. If Seller is not able to obtain such approvals
from such constituents on or before the date which is ____ days after the
Effective Date, or such later date as is mutually agreed to by Buyer and Seller,
then Seller may cancel this Agreement by notice to Buyer and Escrow Holder given
prior to the end of that time period, and in that event Seller shall pay all
title and escrow cancellation costs. Seller shall indemnify and hold Buyer
harmless from any claim, damage, loss, liability, action, settlement, including
Buyer's reasonable attorneys' fees suffered by Buyer and which results from or
relates to the Seller's securing approval of this transaction and transferring
the Property to Buyer pursuant to such approval.
10. PROPERTY "AS-IS":
10.1 NO SIDE AGREEMENTS OR REPRESENTATIONS; AS-IS PURCHASE. BUYER
REPRESENTS, WARRANTS AND COVENANTS TO SELLER THAT BUYER HAD THE OPPORTUNITY TO
INDEPENDENTLY AND PERSONALLY INSPECT THE PROPERTY AND IMPROVEMENTS, IF ANY, AND
THAT BUYER HAS ENTERED INTO THIS AGREEMENT AFTER HAVING MADE SUCH PERSONAL
EXAMINATION AND INSPECTION. BUYER AGREES THAT BUYER WILL ACCEPT THE PROPERTY,
IN ITS THEN CONDITION AS-IS AND WITH ALL ITS FAULTS, INCLUDING WITHOUT
LIMITATION, ANY FAULTS AND CONDITIONS SPECIFICALLY REFERENCED IN THIS AGREEMENT,
SUBJECT TO THE EXPRESS COVENANTS, INDEMNITIES, REPRESENTATIONS AND WARRANTIES
MADE BY SELLER ELSEWHERE HEREIN. NO PERSON ACTING ON BEHALF OF SELLER IS
AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF, BUYER ACKNOWLEDGES AND AGREES THAT,
EXCEPT FOR
8.
THOSE REPRESENTATIONS, WARRANTIES, COVENANTS, INDEMNITIES AND AGREEMENTS
EXPRESSLY MADE BY SELLER IN THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE
AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO:
(A) THE VALUE OF THE PROPERTY OR THE INCOME TO BE DERIVED
THEREFROM;
(B) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES
AND USES WHICH BUYER MAY CONDUCT THEREON, INCLUDING ANY DEVELOPMENT
OF THE PROPERTY;
(C) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY;
(D) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF
THE PROPERTY;
(E) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING
WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY;
(F) THE TYPE, AVAILABILITY OR COST OF ANY ENTITLEMENTS REQUIRED
TO DEVELOP THE PROPERTY;
(G) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH
ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY;
(H) THE MANNER, CONDITION OR QUALITY OF THE CONSTRUCTION OR
MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY;
(I) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR
LAND USE LAWS, RULES, REGULATION, ORDERS OR REQUIREMENTS, INCLUDING
BUT NOT LIMITED TO, THE ENDANGERED SPECIES ACT, TITLE III OF THE
AMERICANS WITH DISABILITIES ACT OF 1990 OR ANY OTHER LAW, RULE OR
REGULATION GOVERNING ACCESS BY DISABLED PERSONS, CALIFORNIA HEALTH
& SAFETY CODE, THE FEDERAL WATER
9.
POLLUTION CONTROL ACT, THE FEDERAL RESOURCE CONSERVATION AND
RECOVERY ACT, THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS
AT 40 C.F.R., PART 261, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE
COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, THE RESOURCES
CONSERVATION AND RECOVERY ACT OF 1976, THE CLEAN WATER ACT, THE
SAFE DRINKING WATER ACT, THE HAZARDOUS MATERIALS TRANSPORTATION
ACT, THE TOXIC SUBSTANCE CONTROL ACT, AND REGULATIONS PROMULGATED
UNDER ANY OF THE FOREGOING;
(J) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON,
UNDER, OR ADJACENT TO THE PROPERTY;
(K) THE CONTENT, COMPLETENESS OR ACCURACY OF ANY MATERIALS,
INCLUDING ANY INFORMATIONAL PACKAGE, COST TO COMPLETE ESTIMATE OR
OTHER MATERIALS PREPARED BY OR ON BEHALF OF SELLER;
(L) THE CONFORMITY OF THE IMPROVEMENTS TO ANY PLANS OR
SPECIFICATIONS FOR THE PROPERTY, INCLUDING ANY PLANS AND
SPECIFICATIONS THAT MAY HAVE BEEN OR MAY BE PROVIDED TO BUYER;
(M) THE CONFORMITY OF THE PROPERTY TO PAST, CURRENT OR FUTURE
APPLICABLE ZONING OR BUILDING REQUIREMENTS;
(N) DEFICIENCY OF ANY UNDERSHORING;
(O) DEFICIENCY OF ANY DRAINAGE;
(P) THE FACT THAT ALL OR A PORTION OF THE PROPERTY MAY BE
LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE OR LOCATED IN AN
XXXXXXX-XXXXXX SPECIAL STUDY ZONE;
(Q) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING
ENTITLEMENTS AFFECTING THE PROPERTY;
(R) ANY AND ALL REQUIREMENTS OR CONDITIONS OF APPROVAL OF STATE
AND LOCAL GOVERNMENTAL AGENCIES FOR DEVELOPMENT OF THE PROPERTY
INCLUDING, WITHOUT LIMITATION, THE CONSTRUCTION OF OFFSITE AND
ONSITE ROADS, UTILITIES AND OTHER IMPROVEMENTS; OR
10.
(S) WITH RESPECT TO ANY OTHER MATTER CONCERNING THE PROPERTY
EXCEPT AS MAY BE OTHERWISE EXPRESSLY STATED HEREIN, INCLUDING ANY
AND ALL SUCH MATTERS REFERENCED, DISCUSSED OR DISCLOSED IN ANY
DOCUMENTS DELIVERED BY SELLER TO BUYER, IN ANY PUBLIC RECORDS OF
ANY GOVERNMENTAL AGENCY OR ENTITY OR UTILITY COMPANY, OR IN ANY
OTHER DOCUMENTS AVAILABLE TO BUYER.
(T) BUYER FURTHER ACKNOWLEDGES AND AGREES THAT BUYER IS
RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND ITS OWN
REVIEW OF ALL INFORMATION AND DOCUMENTATION CONCERNING THE
PROPERTY, AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY
SELLER. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION
MADE AVAILABLE TO BUYER OR PROVIDED OR TO BE PROVIDED BY OR ON
BEHALF OF SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A
VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION EXCEPT AS MAY OTHERWISE BE PROVIDED HEREIN. BUYER
AGREES TO FULLY AND IRREVOCABLY RELEASE ALL SUCH SOURCES OF
INFORMATION AND PREPARERS OF INFORMATION AND DOCUMENTATION TO THE
EXTENT SUCH SOURCES OR PREPARERS ARE SELLER, OR ITS EMPLOYEES,
OFFICERS, DIRECTORS, REPRESENTATIVES, BENEFICIARIES, INVESTORS,
AGENTS, SERVANTS, ATTORNEYS, AFFILIATES, PARENT COMPANIES,
SUBSIDIARIES, SUCCESSORS OR ASSIGNS FROM ANY AND ALL CLAIMS,
DAMAGES AND LIABILITIES ARISING FROM SUCH INFORMATION OR
DOCUMENTATION, EXCEPT IF AND TO THE EXTENT THAT BUYER EMPLOYS SUCH
SOURCES OR PREPARERS OF INFORMATION TO ACT ON BEHALF OF BUYER, IN
WHICH EVENT THE LIABILITY OF SUCH SOURCES OR PREPARERS OF
INFORMATION TO BUYER SHALL BE DETERMINED BY THEIR OWN INDEPENDENT
AGREEMENTS WITH BUYER, AND SELLER SHALL NOT BE LIABLE FOR SUCH
AGREEMENTS OR OBLIGATIONS. SELLER IS NOT LIABLE OR BOUND IN ANY
MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF,
FURNISHED BY ANY OF THE FOREGOING ENTITIES AND INDIVIDUALS OR ANY
OTHER INDIVIDUAL OR ENTITY.
10.2 DISCLOSURES; SPECIFIC ACKNOWLEDGMENT REGARDING CONDITION OF
PROPERTY. Buyer acknowledges the disclosures expressly made by Seller in this
Agreement, the Prospectus and in correspondence from Seller, its attorneys
and/or its agents to Buyer, its attorneys and/or its agents.
11.
11. TITLE INSURANCE: At the Close of Escrow, the Title Company will
issue to Buyer at Buyer's sole cost and expense an ALTA Standard Coverage Policy
(1990) with coverage in an amount equal to the appraised value of the Real
Property as determined by Buyer in its sole discretion, showing title to the
Real Property vested in Buyer, subject only to the Permitted Exceptions and the
standard printed exceptions and conditions in the policy of title insurance
("TITLE POLICY"). If Buyer elects to obtain any additional endorsements or an
extended coverage policy, the additional premium and costs of survey for the
extended coverage policy and the cost of any endorsements will be at Buyer's
sole cost and expense; however, Buyer's election to obtain an extended coverage
policy will not delay the Closing and Buyer's inability to obtain an extended
coverage policy or any such endorsements will not be deemed to be a failure of
any condition to Closing.
12. COSTS AND EXPENSES: Buyer will pay the costs of Closing the
transaction as follows:
(a) all premiums for the Title Policy;
(b) all escrow fees and costs;
(c) all city and county documentary transfer taxes;
(d) all document recording charges;
(e) all sales taxes;
(f) one half of all escrow fees and costs;
(g) the entire additional cost of any ALTA extended coverage
title policy, the cost of any required survey and, the cost of any
endorsements required by Buyer; and
(h) All other costs and expenses necessarily incurred to close
the transaction.
13. DISBURSEMENTS AND OTHER ACTIONS:
13.1 ESCROW HOLDER. At the Close of Escrow, Escrow Holder will promptly
undertake all of the following:
(a) Cause the Grant Deed (with documentary transfer tax
information to be affixed AFTER recording) to be recorded with the County
Recorder and obtain conformed copies thereof for distribution to Buyer and
Seller.
(b) Direct the Title Company to issue the Title Policy to Buyer
within 15 BUSINESS DAYS after Closing.
12.
(c) Deliver to Buyer the FIRPTA Certificate, the Form 590 and
any other documents (or copies thereof) deposited into Escrow by Seller.
Deliver to Seller any other documents (or copies thereof) deposited into
Escrow by Buyer.
(d) Notify the Transfer Agent by telephone and facsimile that
the Close of Escrow has occurred.
13.2 BY TRANSFER AGENT. Promptly after the Close of Escrow, Transfer
Agent shall deliver all shares of common stock of AFH in payment of the Exchange
Value for the Property to the persons, at the addresses and in the amounts
designated by Seller.
13.3 POSSESSION. Possession of the Other Assets in Seller's possession
or control and all other Property shall be delivered by Seller to Buyer at the
Close of Escrow.
14. JOINT REPRESENTATIONS AND WARRANTIES: In addition to any express
agreements of the parties contained herein, the following constitute
representations and warranties of the parties each to the other, provided that
liability for any breach is subject to Sections 8.1.2 and 23.13 hereof:
14.1 AUTHORITY. Each party has the legal power, right and authority to
enter into this Agreement and the instruments referenced herein, and to
consummate this transaction.
14.2 ACTIONS. All requisite action (corporate, trust, partnership or
otherwise) has been taken by each party in connection with the entering into of
this Agreement, the instruments referenced herein, and the consummation of this
transaction. Except as provided in Section 9, no further consent of any
partner, shareholder, creditor, investor, judicial or administrative body,
governmental authority or other party is required.
14.3 DUE EXECUTION. The individuals executing this Agreement and the
instruments referenced herein on behalf of each party and the partners, officers
or trustees of each party, if any, have the legal power, right, and actual
authority to bind each party to the terms and conditions of those documents.
14.4 VALID AND BINDING. This Agreement and all other documents required
to close this transaction are and will be valid, legally binding obligations of
and enforceable against each party in accordance with their terms, subject only
to applicable bankruptcy, insolvency, reorganization, moratorium laws or similar
laws or equitable principles affecting or limiting the rights of contracting
parties generally.
14.5 BROKER. Seller represents and warrants to Buyer, and Buyer
represents and warrants to Seller, that no broker or finder has been engaged by
them, respectively, in connection with any of the transactions contemplated by
this Agreement, or to its knowledge is in any way connected with any of such
transactions. Buyer will indemnify, save harmless and defend Seller from any
liability, cost, or expense arising out of or connected with any claim for any
commission or compensation made by any person or entity claiming to have been
retained or contacted by Buyer in connection with this transaction. Seller will
indemnify, save harmless and defend Buyer
13.
from any liability, cost, or expense arising out of or connected with any claim
for any commission or compensation made by any person or entity claiming to have
been retained or contacted by Seller in connection with this transaction. This
indemnity provision will survive the Closing or any earlier termination of this
Agreement.
15. SELLER'S WARRANTIES AND REPRESENTATIONS: Seller makes the
following representations, and warranties and acknowledges that Buyer will rely
on such representations and warranties in acquiring the Property; provided that
liability for any breach is subject to Sections 8.1.2 and 23.13 hereof:
15.1 NON-FOREIGN ENTITY. Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Internal Revenue Code.
15.2 HAZARDOUS SUBSTANCES. To Seller's Actual Knowledge, since the date
of Seller's acquisition of the Property, no Hazardous Substances are now or have
been used, stored, generated or disposed of on or within the Property except in
the normal course of use and operation of the Property and in compliance with
all applicable Environmental Laws.
15.3 CLEAN-UP. To Seller's Actual Knowledge, since the date of Seller's
acquisition of the Property, there are and have been no federal, state or local
enforcement, clean-up, removal, remedial or other governmental or regulatory
actions instituted or completed affecting the Property, other than such other
matters as may otherwise be disclosed in any Environmental Audit or in any other
documents provided or made available to Buyer.
15.4 CLAIMS. To Seller's Actual Knowledge, there are no outstanding
claims that have been made by any third party against Seller relating to any
Hazardous Substances on or within the Property.
The provisions of this Section 15 shall no longer bind Seller if
this Agreement expires or is terminated for any reason, or if the Closing
contemplated hereunder does not occur.
16. PRE-CLOSING COVENANTS. So long as this Agreement remains in full
force and effect:
16.1 NO TRANSFERS. Without the prior written consent of Buyer, Seller
will not convey any interest in the Property and will not subject the Property
to any additional liens, encumbrances, covenants, conditions, easements, rights
of way or similar matters after the date of this Agreement, except as may be
otherwise provided for in this Agreement, which will not be eliminated prior to
the Close of Escrow.
16.2 NO ALTERATIONS. Seller will not make any material alterations to
the Property without Buyer's consent, which will not be unreasonably withheld or
delayed.
14.
16.3 MAINTENANCE. Seller will maintain the Property in substantially
the same condition as it is in, as of the date of this Agreement, and manage the
Property in accordance with Seller's established practices.
16.4 OBLIGATIONS UNDER CONTRACTS. Seller will keep and perform all of
the obligations to be performed by Seller under any contracts affecting the
Property. Without prior written consent of Buyer, which will not be
unreasonably withheld or delayed, Seller will not enter into any contract or
agreement providing for the provision of goods or services to or with respect to
the Property or the operation thereof unless such contracts or agreements can be
terminated without penalty by the Closing Date. Seller will not enter into any
leases for any portion of the Property.
16.5 EXPENDITURES. Seller will incur only expenditures necessary for
the day-to-day operation and maintenance of the Property, and will not incur
capital expenditures or liabilities not in the ordinary course of business.
Seller shall retain all Other Assets in Seller's possession on or after the date
hereof except for payment of such permitted liabilities and expenditures.
17. CONDEMNATION AND DESTRUCTION:
17.1 EMINENT DOMAIN OR TAKING. If proceedings under a power of eminent
domain relating to the Property or any part thereof are commenced prior to Close
of Escrow, Seller will promptly inform Buyer in writing.
(a) If such proceedings involve the taking of title to all or a
material interest in the Property, Buyer may elect to terminate this
Agreement by notice in writing sent within 10 DAYS of Seller's written
notice to Buyer, in which case neither party will have any further
obligation to or rights against the other except any rights or obligations
of either party which are expressly stated to survive termination of this
Agreement.
(b) If the proceedings do not involve the taking of title to all
or a material interest in the Property, or if Buyer does not elect to
terminate this Agreement, this transaction will be consummated as described
herein and any award or settlement payable with respect to such proceeding
will be paid or assigned to Buyer upon Close of Escrow.
(c) If this sale is not consummated for any reason, any
condemnation award or settlement will belong to Seller.
17.2 DAMAGE OR DESTRUCTION. Except as provided in this Section, prior
to the Close of Escrow the entire risk of loss of damage by earthquake, flood,
landslide, fire or other casualty is borne and assumed by Seller. If, prior to
the Close of Escrow, any part of the Improvements is damaged or destroyed by
earthquake, flood, landslide, fire or other casualty, Seller will promptly
inform Buyer of such fact in writing and advise Buyer as to the extent of the
damage and whether it is, in Seller's reasonable opinion, "MATERIAL" or not
"MATERIAL".
15.
(a) If such damage or destruction is "MATERIAL", Buyer has the
option to terminate this Agreement upon written notice to the Seller given
not later than 10 DAYS after receipt of Seller's written notice to Buyer
advising of such damage or destruction.
(b) For purposes hereof, "MATERIAL" is deemed to be any damage
or destruction to the Improvements where the cost of repair or replacement
is estimated to be more than 25% of the Exchange Value of the Property and
will take more than 60 DAYS to repair.
(c) If this Agreement is so terminated, the provisions of
Section 5 will govern.
(d) If Buyer does not elect to terminate this Agreement, or if
the casualty is not material, Seller will reduce the Exchange Value by the
value reasonably estimated by Seller to repair or restore the damaged
portion of the Improvements, less any sums expended by Seller to make
emergency repairs to the Improvements or the Property or otherwise protect
the physical condition of the Improvements or the Property, and this
transaction will close pursuant to the terms of this Agreement.
(e) If the damage is not material, Seller's notice to Buyer of
the damage or destruction will also set forth Seller's reduced Exchange
Value and Seller's allocation of value to the damaged portion of the
Improvements. If Buyer does not accept Seller's reduced Exchange Value,
Buyer's sole remedy will be to terminate this Agreement.
(f) Whether or not the sale of the Property is consummated
hereunder, all rights to insurance claims or proceeds in respect of damage
or destruction to the Improvements occurring prior to the Close of Escrow
will belong to Seller.
18. UTILITIES AND DEPOSITS:
18.1 UTILITIES. Seller will notify all utility companies servicing the
Property of the sale of the Property to Buyer and will notify the utility
companies that all utility bills henceforth are to be sent to Buyer. Buyer
shall be entitled to receive any and all refunds of all utility deposits held by
utility companies and Seller will assign to Buyer all of Seller's right, title
and interest in any such utility deposits.
18.2 REFUNDABLE DEPOSITS. To the extent there exists any refundable
deposits made in connection with the development of the Property prior to the
Closing ("Refundable Deposits"), Seller shall assign to Buyer all of Seller's
right, title and interest in and to such Refundable Deposits.
19. MEDIATION OF DISPUTES: No party to this Agreement shall initiate
any litigation against any other party to this Agreement concerning any
controversy or claim arising out of or relating to this Agreement or any
agreements or instruments relating hereto or delivered in connection herewith,
including, but not limited to, any claim based on or arising from an alleged
tort, unless and until (i) at least 60 days before the same shall be filed, a
complete copy of each of the summons and complaint (and/or any other
documentation required to initiate such litigation) to
16.
be filed by the complaining party shall have been delivered to the other party
or parties to any such dispute, and (ii) the complaining party has made itself
available to meet in Los Angeles, California with the other party or parties for
no more than 3 business days of non-binding mediation. Until and unless such
mediation has taken place, the complaining party must give notice to the
non-complaining party that it will, and then it must, make itself available for
such mediation during at least 20 business days during the 60 days before the
date on which such summons and complaint will be filed.
20. ARBITRATION OF DISPUTES: ANY CONTROVERSY OR CLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY AGREEMENTS OR INSTRUMENTS RELATING HERETO
OR DELIVERED IN CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED TO A CLAIM BASED
ON OR ARISING FROM AN ALLEGED TORT WILL, AT THE REQUEST OF ANY PARTY, BE
DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (9
U.S.C. SECTION 1 ET SEQ.) UNDER THE AUSPICES AND RULES OF THE AMERICAN
ARBITRATION ASSOCIATION ("AAA"). THE AAA WILL BE INSTRUCTED BY EITHER OR BOTH
PARTIES TO PREPARE A LIST OF THREE (3) JUDGES WHO HAVE RETIRED FROM THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA, A HIGHER CALIFORNIA COURT OR ANY FEDERAL
COURT. WITHIN 10 DAYS OF RECEIPT OF THE LIST, EACH PARTY MAY STRIKE 1 NAME FROM
THE LIST. THE AAA WILL THEN APPOINT THE ARBITRATOR FROM THE NAME(S) REMAINING
ON THE LIST. THE ARBITRATION WILL BE CONDUCTED IN SAN FRANCISCO, LOS ANGELES OR
SAN DIEGO, WHICHEVER IS THE CLOSEST CITY TO THE NEXUS OF THE DISPUTE. ANY
CONTROVERSY IN INTERPRETATION OR ENFORCEMENT OF THIS PROVISION OR WHETHER A
DISPUTE IS ARBITRABLE, WILL BE DETERMINED BY THE ARBITRATOR. JUDGMENT UPON THE
AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. THE INSTITUTION AND MAINTENANCE OF AN ACTION FOR JUDICIAL RELIEF
OR IN PURSUIT OF AN ANCILLARY REMEDY DOES NOT CONSTITUTE A WAIVER OF THE RIGHT
OF ANY PARTY, INCLUDING THE PLAINTIFF, TO SUBMIT THE CONTROVERSY OR CLAIM TO
ARBITRATION.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE
ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING
UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR BY
JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL
RIGHTS TO DISCOVERY AND APPEAL UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN
THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY.
17.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING
OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO
NEUTRAL ARBITRATION.
Buyer's Initials ________ Seller's Initials _________
21. NOTICES: All notices or other communications required or permitted
hereunder must be in writing, and must be personally delivered (including by
means of professional messenger service) or sent by overnight courier, or sent
by registered or certified mail, postage prepaid, return receipt requested to
the addresses set forth in Section 1 hereof. All notices sent by mail will be
deemed received 2 DAYS after the date of mailing and all notices sent by other
means permitted herein shall be deemed received on the earlier of the date
delivered or the date on which delivery is refused.
22. ASSIGNMENT: Neither party shall have the right to assign this
Agreement without the other party's prior written consent.
23. MISCELLANEOUS:
23.1 COUNTERPARTS. This Agreement may be executed in counterparts.
23.2 PARTIAL INVALIDITY. If any term or provision of this Agreement
will be deemed to be invalid or unenforceable to any extent, the remainder of
this Agreement will not be affected thereby, and each remaining term and
provision of this Agreement will be valid and be enforced to the fullest extent
permitted by law.
23.3 POSSESSION OF THE PROPERTY. Seller will deliver possession of the
Property to Buyer upon the Close of Escrow.
23.4 WAIVERS. No waiver of any breach of any covenant or provision
contained herein will be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision contained herein. No extension
of time for performance of any obligation or act will be deemed an extension of
the time for performance of any other obligation or act except those of the
waiving party, which will be extended by a period of time equal to the period of
the delay.
23.5 SUCCESSORS AND ASSIGNS. This Agreement is binding upon and inures
to the benefit of the permitted successors and assigns of the parties hereto.
23.6 PROFESSIONAL FEES. In the event of the bringing of any action,
arbitration or suit by a party hereto against another party hereunder by reason
of any breach of any of the covenants, agreements or provisions on the part of
the other party arising out of this Agreement, then in that event the prevailing
party will be entitled to have the recovery of and from the other party all
costs and expenses of the action, mediation or suit, actual attorneys' fees,
witness fees and any other professional fees resulting therefrom.
18.
23.7 ENTIRE AGREEMENT. This Agreement (including all Exhibits attached
hereto) constitutes the entire contract between the parties hereto with respect
to the subject matter hereof and may not be modified except by an instrument in
writing signed by the party to be charged.
23.8 TIME OF ESSENCE. Seller and Buyer hereby acknowledge and agree
that time is strictly of the essence with respect to each and every term,
condition, obligation and provision hereof.
23.9 CONSTRUCTION. Seller and Buyer and their respective advisors
believe that this Agreement is the product of all of their efforts, that it
expresses their agreement and that it should not be interpreted in favor of or
against either Buyer or Seller. The parties further agree that this Agreement
will be construed to effectuate the normal and reasonable expectations of a
sophisticated seller and buyer.
23.10 GOVERNING LAW. The parties hereto expressly agree that this
Agreement will be governed by, interpreted under, and construed and enforced in
accordance with the laws of the State of California.
23.11 WEAR AND TEAR. Buyer specifically acknowledges that Seller will
continue to use the Property in the course of its business and accepts the fact
that reasonable wear and tear will occur after the date of this Agreement.
Buyer specifically agrees that Seller is not responsible for repairing such
reasonable wear and tear and that Buyer is prohibited from raising such wear and
tear as a reason for not consummating this transaction or for requesting a
reduction in the Exchange Value.
23.12 NO RECORDATION. No memorandum or other document relating to this
Agreement will be recorded without the prior written consent of Seller, and any
such consent or approval will be conditioned upon Buyer providing Seller with a
quitclaim deed fully executed and acknowledged by Buyer, quitclaiming any and
all interests that it may have in the Property to Seller, which quitclaim deed
Seller may record in the event that this Agreement is terminated or the
transaction contemplated herein is not consummated.
23.13 SURVIVAL. All obligations of the parties contained herein which by
their terms do not arise until after the Close of Escrow and any other
provisions of this Agreement which by their terms survives the Close of Escrow,
shall survive the Close of Escrow. Notwithstanding anything to the contrary
contained in this Agreement, the representations and warranties contained in
this Agreement shall survive the Closing for a period of 1 year; provided that
any claims by one party hereto must be made in writing to the other party within
the 1 year period.
23.14 DISCLAIMER. Nothing herein creates any right or remedy for the
benefit of any person not a party hereto, nor creates a fiduciary relationship,
an agency or a partnership.
23.15 WAIVER OF JURY TRIAL. EACH PARTY, ACTING WITH KNOWLEDGE OF ITS
RIGHTS AFTER A FULL OPPORTUNITY TO CONSULT WITH COUNSEL, VOLUNTARILY WAIVES ALL
RIGHTS TO TRIAL BY JURY IN ALL PROCEEDINGS FOR
19.
WHICH A TRIAL BY JURY WOULD OTHERWISE BE AVAILABLE OR REQUIRED, AND WHICH
INVOLVE ANY MATTER ARISING OUT OF OR CONNECTED WITH RIGHTS OR DUTIES UNDER, OR
ENFORCEMENT OR INTERPRETATION OF, THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year hereinabove written.
"SELLER": "BUYER":
NATIONAL INVESTORS FINANCIAL, VICTORVILLE HOMES, INC.,
INC., a California corporation, AS TRUSTEE a California corporation
for NATIONAL INVESTORS LAND
HOLDING TRUST ___
By: By:
---------------------------------- -----------------------------
Its: Its:
---------------------------------- -----------------------------
and and
By: By:
---------------------------------- -----------------------------
Its: Its:
---------------------------------- -----------------------------
Agreed to and accepted
by Escrow Holder:
By:
------------------------------------
Its:
------------------------------------
20.
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
FORM OF DEED
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
Xxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxx, Esq.
--------------------------------------------------------------------------------
(Above Space For Recorder's Use Only)
GRANT DEED
In accordance with Section 11932 of the California Revenue and Taxation
Code, Grantor has declared the amount of transfer tax which is due by a separate
statement which is not being recorded with this Grant Deed.
FOR A VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED,
NATIONAL INVESTORS FINANCIAL, INC., a CALIFORNIA corporation, AS TRUSTEE for
NATIONAL INVESTORS LAND HOLDING TRUST ("Grantor"), hereby grants to VICTORVILLE
HOMES, INC., a California corporation ("Grantee"), the real property in the
County of San Bernardino, State of California, and described in EXHIBIT A
attached hereto and made a part hereof.
DATED: __________________, 1998
NATIONAL INVESTORS FINANCIAL, INC., a
California corporation, AS TRUSTEE for
NATIONAL INVESTORS LAND HOLDING TRUST __
By:
---------------------------
Its:
---------------------------
By:
---------------------------
Its:
---------------------------
--------------
MAIL TAX STATEMENTS TO:
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On ____________________, before me, _____________________________________,
personally appeared ______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
Notary Public in and for said
County and State [SEAL]
Document No. ____________________ Date Recorded_________________
STATEMENT OF TAX DUE AND REQUEST THAT TAX DECLARATION
NOT BE MADE A PART OF THE PERMANENT RECORD
IN THE OFFICE OF THE COUNTY RECORDER
(Pursuant to Section 11932 R&T Code)
To: Registrar-Recorder
County of ___________________
Request is hereby made in accordance with the provisions of the Documentary
Transfer Tax Act that the amount of tax due not be shown on the original
document which names:
-------------------------------------
(as grantor)
and
-------------------------------------
(as grantee)
Property described in the accompanying document is located in
( ) unincorporated area or (x) City of ___________________.
The amount of tax due on the accompanying document is $_______________.
______ Computed on full value of property conveyed, or
______ Computed on full value less liens and encumbrances remaining at
time of sale.
------------------------------------
------------------------------------
By:
-------------------------
Its:
-------------------------
EXHIBIT C
Seller's FIRPTA Affidavit
CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a
transferee of a U.S. real property interest must withhold tax if the transferor
is a foreign person. To inform the transferee that withholding of tax is not
required upon the disposition of a U.S. real property interest by NATIONAL
INVESTORS FINANCIAL, INC., a California corporation, AS TRUSTEE for NATIONAL
INVESTORS LAND HOLDING TRUST ("TRANSFEROR"), each of the undersigned hereby
certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust and foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Transferor's U.S. employer identification number is
___________; and
3. Transferor's office address is ___________________________,
___________________.
Transferor understands that this certification may be disclosed to
the Internal Revenue Service by transferee and that any false statement
contained herein could be punished by fine, imprisonment or both.
Under penalties of perjury each of the undersigned declares that he
has examined this certification and to the best of his knowledge and belief it
is true, correct and complete, and he further declares that he has authority to
sign the document on behalf of the Transferor.
NATIONAL INVESTORS FINANCIAL, INC., a
California corporation, AS TRUSTEE for
NATIONAL INVESTORS LAND HOLDING TRUST ___
By:
--------------------------
Its:
--------------------------
By:
--------------------------
Its:
--------------------------
EXHIBIT D
ASSIGNMENT AND ASSUMPTION
OF
AGREEMENTS
THIS ASSIGNMENT AND ASSUMPTION OF AGREEMENTS (this "Assignment") is
executed as of ______________, but effective as of the Effective Date (as
hereinafter defined), by and between NATIONAL INVESTORS FINANCIAL, INC., a
California corporation, AS TRUSTEE for NATIONAL INVESTORS LAND HOLDING TRUST ___
("Assignor") and VICTORVILLE HOMES, INC., a California corporation ("Assignee"),
with reference to the following facts:
RECITALS:
A. Assignor, as the agent of and for the benefit of various
investors, holds title to that certain real property commonly known as "Xxxxxx
Xxxx at Victorville ", located in the County of San Bernardino, State of
California, as more particularly described on Exhibit "A" attached hereto and
incorporated herein by reference (the "Property").
B. Concurrently herewith, Assignor has executed that certain
Grant Deed conveying and granting to Assignee the Property.
C. As part of the transfer and conveyance of the Property to
Assignee, Assignor has agreed to transfer, assign, grant and convey to Assignee
all of its right, title and interest in and to all agreements relating to the
Property, on the terms and conditions herein contained.
NOW, THEREFORE, in consideration of the foregoing Recitals, which
Recitals are by this reference incorporated herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. ASSIGNMENT. Assignor hereby grants, assigns, transfers, sets
over, sells, conveys and delivers to Assignee all of Assignor's right, title,
interest, benefits and privileges under the agreements relating to the Property
which are set forth in Exhibit "B" attached hereto and made a part hereof
(collectively, the "Agreements"). The assignment provided for in this Section 1
is effective concurrently with the transfer of the Property from Assignor to
Assignee (the "Effective Date").
i.
2. ASSIGNEE'S ASSUMPTION. Assignee hereby accepts the assignment
from Assignor, assumes and agrees to perform all duties and obligations of
Assignor under the terms of the Agreements which are required to be performed on
or after the Effective Date.
3. DELIVERIES; REPORTS. On or before the Effective Date,
Assignor shall deliver to Assignee the original Agreements or if such original
Agreements are not in Assignor's possession, certified copies of such
Agreements. Assignor shall furnish and deliver to Assignee, promptly after
receipt thereof, duplicates or copies of all reports, notices, requests,
demands, declarations, certificates or other instruments hereafter received by
Assignor and relating to the Agreements. Assignee's address for receipt of the
foregoing is _________________________________________________________________.
4. FURTHER ASSURANCES. Assignor and Assignee shall execute,
acknowledge and deliver all such instruments and take all such action as may be
necessary to further assure to Assignee the rights assigned hereby and the full
benefits hereof and to preserve and protect this Assignment and all of the
rights, powers and remedies of Assignee provided for herein.
5. SUCCESSORS AND ASSIGNS. This Assignment shall be binding
upon and inure to the benefit of the successors and assigns of the respective
parties hereto.
6. GOVERNING LAW. This Assignment shall be governed by, and
construed in accordance with, the laws of the State of California.
7. COUNTERPARTS. This Assignment may be executed in several
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same instrument.
ii.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date first above written but effective as of the Effective
Date.
ASSIGNOR: NATIONAL INVESTORS FINANCIAL, INC., a
California corporation, AS TRUSTEE for
NATIONAL INVESTORS LAND HOLDING TRUST ___
By:
--------------------------
Its:
--------------------------
By:
--------------------------
Its:
--------------------------
ASSIGNEE: VICTORVILLE HOMES, INC.,
a California corporation
By:
--------------------------
Its:
--------------------------
By:
--------------------------
Its:
--------------------------
iii.
EXHIBIT E
XXXX OF SALE AND GENERAL ASSIGNMENT OF INTANGIBLES
This Xxxx of Sale and General Assignment of Intangibles is made as
of the ____ day of ___________________________, 1998 (this "Assignment"), by
NATIONAL INVESTORS FINANCIAL, INC., a California corporation, AS TRUSTEE for
NATIONAL INVESTORS LAND HOLDING TRUST ___ ("Assignor") to VICTORVILLE HOMES,
INC., a California corporation ("Assignee").
R E C I T A L
Assignee and Assignor have entered into an Agreement of Purchase
and Sale and Joint Escrow Instructions dated ________, 1998 ("Agreement of
Purchase and Sale") under which Assignee has agreed to purchase from Assignor,
that certain real property and any and all buildings, structures and
improvements on said real property commonly identified as "Xxxxxx Xxxx at
Victorville", located in the County of San Bernardino, State of California and
legally described on EXHIBIT A attached hereto (the "Property").
TERMS AND CONDITIONS
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns, transfers and sets over unto
Assignee, its successors and assigns, all personal property of Seller, if any,
located on and used in connection with the operation of the improvements on the
Property (the "Personal Property"). Buyer accepts such Personal Property in its
"AS-IS" condition and "WITH ALL FAULTS". Seller specifically disclaims all
express or implied warranties regarding the existence or condition of, or title
to, such Personal Property, including without limitation the implied warranties
of merchantability and suitability for a particular purpose.
2. Assignor hereby assigns, transfers and sets over unto
Assignee, its successors and assigns, all of its right, title and interest in
and to the following ("General Intangibles") if, and only to the extent, that
the General Intangibles exist and Assignor has the right to so transfer them:
(A) All of Assignor's right, title and interest in and to
all intangible property used, owned or issued solely in connection with the
Property, including but not limited to, all licenses, permits, certificates of
occupancy, approvals, maps, dedications, subdivision maps and entitlements
issued, approved or granted by any governmental agencies or
i.
instrumentalities having any jurisdiction over the Property (the "Authorities")
or otherwise in connection with the Property; all development rights,
conditional use permits, variances, "floor area ratio" development rights and
other intangible rights, titles, interests, privileges and appurtenances owned
by Assignor and related to or issued in connection with the Property and/or its
use, occupancy, operation and/or development; all licenses, consents, easements,
rights of way, and approvals required from private parties to make use of
utilities and to insure vehicular and pedestrian ingress and egress to the
Property; and any pending applications or requests as to any of the foregoing;
(B) All building plans, specifications and drawings,
engineering, and other documents prepared in connection with the construction,
reconstruction, maintenance, repair, or operation any improvements on the
Property (the "Improvements");
(C) All warranties and guarantees relating to the
workmanship, construction, installation materials, and design of the
Improvements and the personal property situated on the Property, including but
not limited to those made by or received from any third party with respect to
any building, building component, structure, fixture, machinery, equipment or
material situated on, contained in any building or other improvement situated
on, or comprising a part of any building or other improvement situated on any
part of the Property;
(D) All rights, claims or awards benefiting the Property;
(E) All prepaid fees and fee credits, and all of Seller's
right, title and interest in and to refundable deposits, bonds and other
collateral furnished in connection with development of the Property; and
(F) All rights and general intangibles now owned by
Assignor solely in connection with the Property and any improvement and/or
fixture located on the Property, including, without limitation, the rights to
hold, use, sell and transfer the Property and Improvements and general
intangibles.
3. Assignor hereby covenants that it will, at any time and from
time to time upon written request therefor, execute and deliver to Assignee, its
successors and assigns any new or confirmatory instruments and take such further
acts as Assignee may reasonably request to fully evidence the assignment
contained herein and to enable Assignee, its successors and assigns to fully
realize and enjoy the rights and interests assigned hereby.
4. Assignee hereby accepts the foregoing assignment.
5. Assignor hereby represents and warrants to Assignee that it
has not previously assigned or hypothecated its interest in the foregoing
described General Intangibles; however, Assignee shall have no claims or rights
against Assignor, and Assignor shall have no obligation or liability to Assignee
for any General Intangibles described herein which do not exist, or which
Assignor does not have the right to transfer to Assignee.
ii.
6. This Assignment shall be binding upon and inure to the
benefit of the legal representatives, assigns, or successors in interest of the
Assignor and Assignee.
IN WITNESS WHEREOF, the Assignor has executed this Assignment as of
_________, 1998.
NATIONAL INVESTORS FINANCIAL, INC., a
California corporation, AS TRUSTEE for
NATIONAL INVESTORS LAND HOLDING
TRUST ___
By:
------------------------------
Its:
-----------------------------
By:
------------------------------
Its:
-----------------------------
iii.
