CONTRACT OF SALE
THIS CONTRACT OF SALE (this "Agreement") is made and entered
into as of the 14th day of February, 2003 (the "Contract Date"), by and between
UCV, L.P., a California limited partnership, having an address at 0000 Xxxxxxx
Xxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxxxx 00000 ("Seller"), and Xxxx X. Xxxxxxx
Living Trust utd 1/5/92, having an address at 00000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxxxxxx 00000 ("Purchaser").
W I T N E S S E T H:
A. Seller shall sell to Purchaser, and Purchaser shall purchase from
Seller, at the price and upon the terms and conditions set forth in this
Agreement, (a) that certain parcel of land commonly known as University City
Village, located at 0000 Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, and more
particularly described on Exhibit A attached hereto and made a part hereof (the
"Land"), (b) the buildings, improvements, structures and fixtures located upon
the Land (collectively, the "Improvements"), (c) all other easements and rights
appurtenant to the Land, if any (collectively, the "Appurtenant Rights"), (d)
all right, title and interest of Seller in, to and under the "Leases" (as
defined in Exhibit D) and the Contracts (as hereinafter defined), and (e) all
right, title and interest of Seller, if any, in and to the fixtures, equipment
and other personal property owned by Seller and attached or appurtenant to the
Property (collectively, the "Personal Property"; the Land, the Appurtenant
Rights, the Improvements, the Leases, the Contracts and the Personal Property,
collectively, the "Property").
B. Purchaser acknowledges that the Property is being sold on an "as is"
"where is" and "with all faults" basis on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, for $10.00 in hand paid and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Purchase and Sale. Upon the terms and conditions hereinafter set
forth, Seller shall sell to Purchaser, and Purchaser shall purchase from Seller,
the Property.
2. Purchase Price. The purchase price (the "Purchase Price") for the
Property shall be the sum of Sixty Million Four Hundred Thousand Dollars
($60,400,000).
3. Payment of Purchase Price. The Purchase Price shall be paid to
Seller by Purchaser as follows:
3.1.1 Initial Deposit. Within three (3) Business Day (as hereinafter
defined) after the date this Agreement is executed by Seller and Purchaser,
Purchaser shall deposit with UNITED TITLE INSURANCE, 0000 Xxx Xxx Xxxxx Xx.,
Xxx. 000, Xxx Xxxxx, XX 00000, Telephone (000) 000-0000; Facsimile (619)
542-7168 ("Escrow Holder"), by wire transfer of immediately available federal
funds to an account designated by Escrow Holder (the "Escrow Account"), the sum
of Five Hundred Thousand Dollars ($500,000.00) (together with interest thereon,
the "Initial Deposit"), which Initial Deposit shall be held by Escrow Holder
pursuant to the terms of this Agreement. If Purchaser shall fail to deposit the
Initial Deposit with Escrow Holder within three (3) Business Day after the date
this Agreement shall be executed by Seller and Purchaser, at Seller's election,
this Agreement shall be null, void ab initio and of no force or effect.
3.1.2 Additional Deposit. Upon the expiration of the Due Diligence Period
(as hereinafter defined), provided Purchaser has not timely delivered a
Termination Notice (as hereinafter defined) to Seller, Purchaser shall deposit
with Escrow Holder, by wire transfer of immediately available federal funds to
the Escrow Account, an additional sum of One Million Five Hundred Thousand
Dollars ($1,500,000) (together with all interest thereon, the "Additional
Deposit"; the Initial Deposit and the Additional Deposit, collectively, the
"Deposit"), which Additional Deposit shall be held by Escrow Holder in
accordance with the terms of this Agreement. The Deposit shall be held in an
interest bearing account.
3.2 Intentionally deleted.
3.3 Closing Payment. The Purchase Price, as adjusted by the
application of the Deposit and by the prorations and credits specified herein,
shall be paid by Purchaser, by wire transfer of immediately available federal
funds to an account or accounts designated in writing by Seller.
4. Conditions Precedent. The obligation of Purchaser to purchase, and
Seller to sell, the Property, as contemplated by this Agreement, is subject to
satisfaction of each of the following conditions precedent (any of which may be
waived in writing by the party in whose favor such condition exists) on or
before the applicable date specified for satisfaction of the applicable
condition. If any of such conditions are not satisfied (or waived) pursuant to
the terms of this Agreement, then this Agreement shall, upon written notice from
the terminating party to the other party, terminate and, in connection with any
such termination made in accordance with this Section 4, Seller and Purchaser
shall be released from further obligation or liability hereunder (except for
those obligations and liabilities which, pursuant to the terms of this
Agreement, survive such termination), and, to the extent such condition shall be
a condition precedent to Purchaser's obligation to consummate the transaction
contemplated by this Agreement, the Initial Deposit and the Additional Deposit
to the extent deposited with Escrow Holder, shall be returned to Purchaser. The
Closing (as hereinafter defined) shall constitute approval by each party of all
matters to which such party has a right of approval and a waiver of all
conditions precedent.
4.1 Title Matters.
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4.1.1 Title to the Property.
(a) As a condition to the Closing, CHICAGO TITLE
COMPANY (the "Title Company"), either itself or
through United Title Company, shall have committed to insure Purchaser as the
fee owner of the Property in the amount of the Purchase Price by issuance of an
ALTA owner's title insurance policy (the "Owner's Policy") in the standard form
issued by the Title Company in the State of California, subject only to the
Permitted Exceptions (as hereinafter defined).
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(b) Purchaser acknowledges that it has received a
commitment for an owner's fee title insurance policy or policies with respect to
the Property (the "Title Commitment") from the Title Company together with true,
legible and complete copies of all instruments giving rise to any defects or
exceptions to title to the Property. If any exceptions(s) to title to the
Property should appear in the Title Commitment other than the Permitted
Exceptions (such exception(s) being herein called, collectively, the
"Unpermitted Exceptions"), subject to which Purchaser is unwilling to accept
title, and Purchaser shall provide Seller with written notice (the "Title
Objection Notice") thereof within ten (10) days after the Contract Date, Seller
may undertake to eliminate the same subject to the terms and conditions of this
Section 4.1. In the event a Title Objection Notice is given by Purchaser,
Seller, in its sole discretion, shall have the right to adjourn the Closing for
a period not to exceed thirty (30) days (such period of time being herein called
the "Extension Period"), provided that Seller shall notify Purchaser, in
writing, within ten (10) days after receipt by Seller of the Title Objection
Notice, whether or not it will endeavor to eliminate such Unpermitted
Exceptions. Notwithstanding the foregoing or anything to the contrary set forth
in this Agreement, Seller shall not under any circumstance be required or
obligated to cause the cure or removal of any Unpermitted Exception including,
without limitation, to bring any action or proceeding, to make any payments or
otherwise to incur any expense in order to eliminate any Unpermitted Exception
or to arrange for title insurance insuring against enforcement of such
Unpermitted Exception against, or collection of the same out of, the Property,
notwithstanding that Seller may have attempted to do so, or may have obtained an
adjournment of the Scheduled Closing Date for such purpose; provided, however,
Seller shall satisfy any mortgage, deed of trust or other monetary lien placed
on the Property by Seller.
(c) In the event that Seller is unable, or elects
not, to eliminate all Unpermitted Exceptions in accordance with the provisions
of this Section 4.1.1, or to arrange for title insurance, without special
premium to Purchaser, insuring against enforcement of such Unpermitted
Exceptions against, or collection of the same out of, the Property, and to
convey title to the Property in accordance with the terms of this Agreement on
or before the Closing Date (whether or not the Closing is adjourned as provided
in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove
the same, in which event Purchaser shall have the right, as its sole remedy for
such election of Seller, by delivery of written notice to Seller within three
(3) Business Days following receipt of notice from Seller of its election not to
remove such Unpermitted Exceptions, to either (i) terminate this Agreement by
written notice delivered to Seller (in which event Escrow Holder shall return
the Initial Deposit and the Additional Deposit, to the extent deposited with
Escrow Holder, to Purchaser and no party hereto shall have any further
obligations in connection herewith except under those provisions that expressly
survive the Closing or a termination of this Agreement), or (ii) accept title to
the Property subject to such Unpermitted Exception(s) without an abatement in or
credit against the Purchase Price. The failure of Purchaser to deliver timely
any written notice of election under this Section 4.1.1(c) shall be conclusively
deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or
encumbrances that Seller is obligated to discharge
under this Agreement, Seller shall have the right (but not the obligation) to
either (i) arrange, at Seller's cost and expense, for affirmative title
insurance or special endorsements insuring against enforcement of such liens or
encumbrances against, or collection of the same out of, the Property, or (ii)
use any portion of the Purchase Price to pay and discharge the same, either by
way of payment or by alternative manner reasonably satisfactory to the Title
Company, and the same shall not be deemed to be Unpermitted Exceptions.
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4.1.2 Permitted Exceptions to Title. The Property shall be sold and
conveyed subject to the following exceptions to title (the "Permitted
Exceptions"):
(a) any state of facts that an accurate survey may
show;
(b) those matters specifically set forth on Exhibit B
attached hereto and made a part hereof;
(c) all laws, ordinances, rules and regulations of
the United States, the State of California, or any
agency, department, commission, bureau or instrumentality of any of the
foregoing having jurisdiction over the Property (each, a "Governmental
Authority"), as the same may now exist or may be hereafter modified,
supplemented or promulgated;
(d) all presently existing and future liens of real
estate taxes or assessments and water rates, water
meter charges, water frontage charges and sewer taxes, rents and charges, if
any, provided that such items are not yet due and payable and are apportioned as
provided in this Agreement;
(e) any other matter or thing affecting title to the
Property that Purchaser shall have agreed or be
deemed to have agreed to waive as an Unpermitted Exception;
(f) all violations of laws, ordinances, orders,
requirements or regulations of any Governmental
Authority applicable to the Property and existing on the Closing Date, whether
or not noted in the records of or issued by any Governmental Authority;
(g) all utility easements of record which do not
interfere with the present use of the Property;
4.1.3 Intentionally deleted.
4.1.4 Endorsement to Owner's Policy. In the event that Purchaser shall
request any endorsements to the Owner's Policy ("Purchaser Requested Title
Endorsements"), the issuance of any such Purchaser Requested Title Endorsements
shall not be or be deemed to be a condition to closing the transaction
contemplated hereunder and in no event shall Seller be obligated to provide any
indemnity or other document or undertake any obligation in order to issue the
same.
4.2 Due Diligence Reviews. Except for title and survey matters
(which shall be governed by the provisions of Section 4.1 above), Purchaser
shall have until 5:00 p.m. (Pacific Standard Time) on the date that is fourteen
(14) Business Days from the Contract Date, TIME BEING OF THE ESSENCE (the period
of time commencing upon the date hereof and continuing through and including
such time on such date being herein called the "Due Diligence Period") within
which to perform and complete Purchaser's due diligence, which shall be solely
limited to Purchaser obtaining at least thirty-five million dollars
($35,000,000.00) of purchase money financing on terms and conditions acceptable
to Purchaser in its sole and absolute discretion (the "Financing") and
Purchaser's review of the CUP (as defined in Exhibit B) and structural matters
concerning the Property (the "CUP and Structural Review"). During the Due
Diligence Period, Seller shall provide Purchaser with reasonable access to the
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Property upon reasonable advance notice and shall also make available to
Purchaser, at the offices of Seller and/or the property manager of the Property,
access to such leases, service contracts, other contracts, books, records and
other documentation relating to the property in Seller's possession as Purchaser
shall reasonably request, all upon reasonable advance written notice; provided,
however, in no event shall Seller be obligated to make available confidential or
proprietary information (collectively, the "Investigations"). The Investigations
shall at all times be subject to Purchaser's compliance with the provisions of
this Section 4.2.. Purchaser acknowledges and agrees that prior to the Contract
Date, Purchaser has received financial statements for the fiscal year ending
March 1999, 2000, 2001, and 2002, real estate tax bills for fiscal year
2001-2002, the standard lease form used for the Property, documents relating to
the CUP (as defined hereinafter in Exhibit "D"), the existing tenant protection
program, the property condition report, the proposed development plans, the
survey, the geotechnical report, the Phase I (as defined hereinafter), and a
seismic risk assessment. Any entry upon the Property and all Investigations
shall be made or performed during Seller's normal business hours and at the sole
risk and expense of Purchaser, and shall not interfere with the activities on or
about the Property of Seller, its tenants and their employees and invitees.
Purchaser shall:
(a) promptly repair any damage to the Property
resulting from any such Investigations and replace,
refill and regrade any holes made in, or excavations of, any portion of the
Property used for such Investigations so that the Property shall be in the same
condition that it existed in prior to such Investigations;
(b) fully comply with all laws applicable to the
Investigations and all other activities undertaken in
connection therewith;
(c) permit Seller to have a representative present
during all Investigations undertaken hereunder;
(d) take all actions and implement all protections
necessary to ensure that the Investigations and the
equipment, materials, and substances generated, used or brought onto the
Property in connection with the Investigations, pose no threat to the safety or
health of persons or the environment, and cause no damage to the Property or
other property of Seller or other persons;
(e) furnish to Seller, at no cost or expense to
Seller, copies of all surveys, soil test results,
engineering, asbestos, environmental and other studies and reports (other than
internal analysis and proprietary information of the Purchaser) relating to the
Investigations which Purchaser shall obtain with respect to the Property
promptly after Purchaser's receipt of same and Seller shall be entitled to rely
on such surveys, test results, studies or reports;
(f) maintain or cause to be maintained, at
Purchaser's expense, a policy of commercial general
liability insurance, with a broad form contractual liability endorsement and
with a combined single limit of not less than $2,000,000 per occurrence for
bodily injury and property damage, automobile liability coverage including owned
and hired vehicles with a combined single limit of $2,000,000 per occurrence for
bodily injury and property damage, and an excess umbrella liability policy for
bodily injury and property damage in the amount of $5,000,000, insuring
Purchaser and Seller, as additional insureds, against any injuries or damages to
persons or property that may result from or are related to (i) Purchaser's
and/or Purchaser's Representatives' (as hereinafter defined) entry upon the
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Property, (ii) any Investigations or other activities conducted thereon, and/or
(iii) any and all other activities undertaken by Purchaser and/or Purchaser's
Representatives, all of which insurance shall be on an "occurrence form" and
otherwise in such forms acceptable to Seller and with an insurance company
acceptable to Seller, and deliver a copy of such insurance policy to Seller
prior to the first entry on the Property;
(g) not permit the Investigations or any other
activities undertaken by Purchaser or Purchaser's
Representatives to result in any liens, judgments or other encumbrances being
filed or recorded against the Property, and Purchaser shall, at its sole cost
and expense, immediately discharge of record any such liens or encumbrances that
are so filed or recorded (including, without limitation, liens for services,
labor or materials furnished); and
(h) protect, defend, indemnify and hold harmless
Seller and any agent, advisor, representative,
affiliate, employee, director, partner, member, beneficiary, investor, servant,
shareholder, trustee or other person or entity acting on Seller's behalf or
otherwise related to or affiliated with Seller (collectively, "Seller Related
Parties") from and against any and all claims, demands, causes of action,
losses, damages, liabilities, costs and expenses (including, without limitation,
attorneys' fees and disbursements), suffered or incurred by Seller or any Seller
Related Party and arising out of or in connection with (i) Purchaser's and/or
Purchaser's Representatives' entry upon the Property, (ii) any Investigations or
other activities conducted thereon by Purchaser or Purchaser's Representatives,
(iii) any liens or encumbrances filed or recorded against the Property as a
consequence of the Investigations and/or (iv) any and all other activities
undertaken by Purchaser or Purchaser's Representatives with respect to the
Property. The foregoing indemnity shall not include any claims, demands, causes
of action, losses, damages, liabilities, costs or expenses (including, without
limitation, attorneys' fees and disbursements) that result solely from the mere
discovery by Purchaser or Purchaser's Representatives of existing conditions on
the Property during Investigations conducted pursuant to, and in accordance
with, the terms of this Agreement.
Without limiting the foregoing, in no event shall Purchaser or
Purchaser's Representatives, without the prior written consent of Seller: (x)
make any intrusive physical testing (environmental, structural or otherwise) at
the Property (such as soil borings, water samplings or the like), (y) contact
any tenant of the Property.
The foregoing obligations shall survive the Closing or a
termination of this Agreement.
4.2.1 Property Information and Confidentiality. Seller hereby agrees to
provide to Purchaser the Information (as hereinafter defined) subject to the
following terms and conditions:
(a) Except as otherwise expressly set forth herein,
neither Seller nor any Seller Related Party makes
any representation or warranty as to the truth, accuracy or completeness of the
Information, or any other studies, documents, reports or other information
provided to Purchaser hereunder and expressly disclaims any implied
representations as to any matter disclosed or omitted.
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(b) Purchaser agrees that neither Purchaser or
Purchaser's Representatives shall, at any time or in
any manner, either directly or indirectly, divulge, disclose or communicate to
any person, entity or association the Information, or any other knowledge or
information acquired by Purchaser or Purchaser's Representatives from Seller,
and any Seller Related Party or by Purchaser's own inspections and
investigations, other than matters that were in the public domain at the time of
receipt by Purchaser or Purchaser's Representatives or has become public
information after receipt by Purchaser or Purchaser's Representatives. Without
Seller's prior written consent, Purchaser shall not disclose and Purchaser shall
direct Purchaser's Representatives not to disclose to any person, entity or
association or any of the terms, conditions or other facts with respect to this
Agreement, including, without limitation, the status hereof. Notwithstanding the
foregoing, Purchaser may disclose such of the Information and its other reports,
studies, documents and other matters generated by it and the terms of this
Agreement (i) as required by law or court order (provided prior written notice
of such disclosure shall be provided to Seller) and (ii) as Purchaser deems
necessary or desirable to Purchaser's Representatives in connection with
Purchaser's Investigation and the transaction contemplated hereby, provided that
those to whom such Information is disclosed are informed of the confidential
nature thereof and agree(s) to keep the same confidential in accordance with the
terms and conditions hereof.
(c) Purchaser shall indemnify and hold harmless
Seller and all Seller Related Parties from and against
any and all claims, demands, causes of action, losses, damages, liabilities,
costs and expenses (including, without limitation, attorneys' fees and
disbursements) suffered or incurred by Seller or any Seller Related Party and
arising out of or in connection with a breach by Purchaser or Purchaser's
Representatives of the provisions of this Section 4.2.1.
(d) Purchaser and Purchaser's Representatives shall
use reasonable care to maintain in good condition
all of the Information furnished or made available to Purchaser and/or
Purchaser's Representatives in accordance with this Section 4.2. In the event
this Agreement is terminated, Purchaser and Purchaser's Representatives shall
promptly deliver to Seller all originals and copies of the Information in the
possession of Purchaser and Purchaser's Representatives.
(e) As used in this Agreement, the term "Information"
shall mean any of the following to the extent
supplied by Seller or Seller's agents or available to Purchaser or Purchaser's
Representatives: (i) all information and documents in any way relating to the
Property, the operation thereof or the sale thereof, including, without
limitation, all leases and contracts furnished to, or otherwise made available
for review by, Purchaser or its directors, officers, employees, affiliates,
partners, members, brokers, agents or other representatives, including, without
limitation, attorneys, accountants, contractors, consultants, engineers and
financial advisors (collectively, "Purchaser's Representatives"), by Seller or
any Seller Related Party or their agents or representatives, including, without
limitation, their contractors, engineers, attorneys, accountants, consultants,
brokers or advisors, and (ii) all analyses, compilations, data, studies, reports
or other information or documents prepared or obtained by Purchaser or
Purchaser's Representatives containing or based on, in whole or in part, the
information or documents described in the preceding clause (i), the
Investigations, or otherwise reflecting their review or investigation of the
Property.
(f) In addition to any other remedies available to
Seller, Seller shall have the right to seek
equitable relief, including, without limitation, injunctive relief or specific
performance, against Purchaser or Purchaser's Representatives in order to
enforce the provisions of this Section 4.2.1.
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(g) The provisions of this Section 4.2.1 shall
survive the Closing or a termination of this Agreement.
4.2.2 Termination Right. If, on or before the expiration of the
Due Diligence Period, based upon the Investigations, Purchaser shall determine
that it is not feasible for it to obtain the Financing, or Purchaser otherwise
disapproves of the CUP and Structural Review, then Purchaser shall promptly
notify Seller of such determination in writing on or before 5:00 p.m. (Pacific
time) on the date that the Due Diligence Period shall expire (such notice being
herein called the "Termination Notice"), whereupon the Initial Deposit plus
interest shall be promptly returned to Purchaser, and this Agreement and the
obligations of the parties hereunder shall terminate (and no party hereto shall
have any further obligations in connection herewith except under those
provisions that expressly survive the Closing or a termination of this
Agreement). In the event that Purchaser shall fail to deliver the Termination
Notice to Seller on or before 5:00 p.m. (Pacific time) on the date that the Due
Diligence Period shall expire, Purchaser shall be deemed to have agreed that the
foregoing matters are acceptable to Purchaser and that it intends to proceed
with the acquisition of the Property, whereupon the Deposit shall become
non-refundable and released to Seller, or Seller's accommodator (and,
thereafter, Purchaser shall have no further right to terminate this Agreement
pursuant to this Section 4.2.2).
4.3 Intentionally deleted.
4.4 Conditions Precedent to Obligations of Purchaser. The
obligation of Purchaser to consummate the transactions contemplated by this
Agreement shall be subject to the performance and observance by Seller of all
covenants, warranties and agreements of this Agreement to be performed or
observed by Seller prior to or on the Closing Date and the fulfillment on or
before the Closing Date of all other conditions precedent to Closing benefiting
Purchaser specifically enumerated in this Agreement, any or all of which may be
waived by Purchaser in its sole discretion.
4.5 Conditions Precedent to Obligations of Seller. The
obligation of Seller to consummate the transactions contemplated by this
Agreement shall be subject to the performance and observance by Purchaser of all
covenants and agreements of this Agreement to be performed or observed by
Purchaser prior to or on the Closing Date and the fulfillment on or before the
Closing Date of all other conditions precedent to Closing benefiting Seller
specifically set forth in this Agreement, any or all of which may be waived by
Seller in its sole discretion:
5. Closing.
(a) The closing (the "Closing") of the sale and purchase
contemplated herein shall occur on or before March 31, 2003 (the "Scheduled
Closing Date"), TIME BEING OF THE ESSENCE to close on such date (the date on
which the Closing shall occur being herein referred to as the "Closing Date"),
at the offices of Escrow Holder through an escrow and pursuant to escrow
instructions consistent with the terms of this Agreement and otherwise mutually
satisfactory to Seller and Purchaser. Provided, that (i) Seller qualifies for or
is approved for an extension under the terms and conditions of the mortgages
encumbering the Property, and (ii) Purchaser shall pay any extension fees
required to be paid in accordance with the terms and conditions of the mortgages
encumbering the Property (the "Loan Extension Fees") Purchaser shall have the
right to extend the Scheduled Closing Date for a period not to exceed thirty
(30) days by delivering a written notice to Seller at least five (5) Business
Days prior to the Scheduled Closing Date.
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(b) Seller may seek to accomplish the conveyance and transfer
of all or a portion of the Property as part of an exchange transaction
("Exchange") qualifying for tax-deferred treatment under Internal Revenue Code
section 1031, in which case the parties shall cooperate fully with each other in
accomplishing the Exchange. Such cooperation may include, without limitation,
execution of supplementary agreements and escrow instructions to document and
effectuate the Exchange. Seller shall indemnify Purchaser against any additional
liabilities and costs and fees incurred solely as a result of participation in
the Exchange, which indemnification obligation shall survive the Closing or
termination of this Agreement. Further, Seller shall have the right to extend
the Closing Date for up to forty-five (45) day period (the "Extended Closing")
for purposes of accomplishing the Exchange by delivering a written notice to the
other prior to the Closing Date (the "Extended Closing Notice").
(c) In lieu of a conveyance and sale of all or a portion of
the Property pursuant to the terms and provisions of this Agreement, the Sports
Arenas Selling Parties (as defined hereinafter) by notice to Purchaser within 30
days after the Contract Date may request Purchaser to enter into good faith
negotiations for an alternative agreement (an "Alternative Agreement") with
Sports Arenas Properties, Inc., a California corporation ("SAPI") and UCVNV,
Inc., a Nevada corporation ("UCVNV"), as a limited and general partner,
respectively, of Seller (each a "Sports Arenas Partner") or such Sports Arenas
Partner's parent or grandparent entities (each a "Parent") for a reorganization
transaction involving the Sports Arenas Partner or its Parents (a
"Reorganization Transaction"). The parties acknowledge that any Reorganization
Transaction is expected to provide for: (1) an undivided interest in the
Property to be distributed to the Sports Arenas Partner in redemption of such
Sports Arenas Partner's partnership interest in Seller; (2) the participation of
Purchaser and the Parents in an acquisition or reorganization of the Sports
Arenas Partner or its Parents (providing such participating Parents control all
of the Sports Arenas Partner); and (3) the Sports Arenas Partner or its
participating Parents (each an "Sports Arenas Selling Party") to receive
consideration equal in value to the consideration such Sports Arenas Partner
would have received had such partner remained a partner in Seller and Seller
distributed all of the net cash proceeds from sale under this Agreement to such
Sports Arenas Partner ("Net Sale Consideration"). The Sports Arenas Selling
Parties at their option may elect to receive their Net Sale Consideration either
in cash or, on a tax free basis, freely tradable securities of Purchaser or an
affiliate thereof, providing the value of such cash and securities equals the
Net Sale Consideration. While any such Reorganization Transaction may result in
the expected liabilities and benefits accruable directly under this Agreement to
instead be accrued indirectly, any Reorganization Transaction shall neither
materially increase the liabilities nor reduce the benefits accruable by
Purchaser or the Selling Parties under this Agreement. Sports Arenas Selling
Parties shall indemnify Purchaser against any additional liabilities and costs
and fees incurred solely as a result of participation in the Reorganization
Transaction, which indemnification obligation shall survive the Closing or
termination of this Agreement or the Alternative Agreement. Notwithstanding the
foregoing or anything to the contrary set forth in this Agreement, the parties
hereto agree: (1) Purchaser shall not be required to enter into an Alternative
Agreement or negotiations for an Alternative Agreement; (2) any Alternative
Agreement agreed to by and between the Sports Arenas Selling Parties and
Purchaser pursuant hereto shall be subject to final approval of PAS Management,
Inc., a Nevada corporation ("PAS") and Xxxxxxxx X. Xxxxxxx, as the other limited
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and general partner, respectively, of Seller; and (3) in the event the Sports
Arenas Selling Parties and Purchaser fail to agree to an Alternative Agreement
pursuant to the terms hereto on or before the date that is thirty (30) days
after the date of the notice to Purchaser from the Sports Arenas Selling Parties
pursuant to the foregoing, the parties hereto shall proceed with the sale and
purchase contemplated herein pursuant to the terms and conditions hereof.
5.1 Seller Deliveries. At the Closing, Seller shall deliver or
cause to be delivered to Purchaser or to the Escrow Holder, as the case may be,
the following items executed and acknowledged by Seller, as appropriate:
(a) a grant deed (the "Deed") in the form attached
hereto and made a part hereof as Exhibit C.
(b) an assignment (the "Assignment and Assumption of
Leases") of all right, title and interest of
Seller under any Leases entered into pursuant to Section 7.2.3 (to the extent
assignable) which are in effect on the Closing Date, without recourse,
representation or warranty, in the form attached hereto and made a part hereof
as Exhibit M, which shall include Purchaser's assumption of Seller's obligations
under the Leases accruing from and after the Closing Date.
(c) a xxxx of sale (the "Xxxx of Sale") in the form
attached hereto and made a part hereof as Exhibit
E.
(d) a certification of non-foreign status in the form
attached hereto and made a part hereof as
Exhibit F.
(e) an assignment (the "Assignment and Assumption of
Contracts") of all right, title and interest of
Seller under the Contracts (to the extent assignable) which are in effect on the
Closing Date and to which Seller is a party, without recourse, representation or
warranty, in the form attached hereto and made a part hereof as Exhibit G, which
shall include Purchaser's assumption of Seller's obligations under the Contracts
accruing from and after the Closing Date.
(f) all existing surveys, blueprints, drawings, plans
and specifications for or with respect to the
Property or any part thereof, including any plans and specifications drawn for
purposes of remodeling and expansion, to the extent the same are in Seller's
possession or control.
(g) all keys to the Improvements, to the extent the
same are in Seller's possession.
(h) subject to Section 7.2.3, all Leases in effect on
the Closing Date, to the extent the same are in
Seller's possession.
(i) all Contracts that shall remain in effect after
the Closing, to the extent the same are in
Seller's possession.
(j) all applicable transfer tax forms, if any.
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(k) such further instruments as may be necessary to
record the Deed.
(l) subject to Section 7.2.3, notices to each of the
tenants under the Leases entered into in
accordance with Section 7.2.3 (each, a "Tenant Notice", and collectively, the
"Tenant Notices") in the form attached hereto as Exhibit I, advising such
tenants of the sale of the Property to Purchaser and directing them to make all
payments to Purchaser or its designee, which Tenant Notices Purchaser shall, at
Purchaser's sole cost and expense, either mail by certified mail return receipt
requested or hand deliver to each applicable tenant.
(m) evidence reasonably satisfactory to the Title Company
respecting the due organization of Seller and the due authorization and
execution by Seller of this Agreement and the documents required to be delivered
hereunder.
5.2 Purchaser Deliveries. At the Closing, Purchaser shall deliver
or cause to be delivered to Seller or to the Escrow Holder, as the case may be,
the following items executed and acknowledged by Purchaser, as appropriate:
(a) payment of the Purchase Price to be made in accordance with
Section 3 above. (b) the Assignment and Assumption of Leases.
(c) the Assignment and Assumption of Contracts.
(d) all applicable transfer tax forms, if any.
(e) such further instruments as may be necessary to record the
Deed.
(f) the Tenant Notices.
(g) evidence reasonably satisfactory to Seller and the Title
Company respecting the due organization of Purchaser and the due authorization
and execution by Purchaser of this Agreement and the documents required to be
delivered hereunder.
5.3 Closing Costs. Seller shall pay (a) all transfer taxes,
including transfer taxes of the State of California and of the County of San
Diego, payable in connection with the transaction contemplated herein, (b) the
title insurance premium for the CLTA portion or the Owner's Policy, and (c)
fifty percent (50%) of the charges of Escrow Holder. Purchaser shall pay (a) the
cost of any ALTA portion of the Owner's Policy, the Standard Endorsements and
the Purchaser Requested Title Endorsements, (b) the costs of any survey (or an
update thereto), (c) all recording charges payable in connection with the
recording of the Deed, (d) fifty percent (50%) of the charges of Escrow Holder,
and (e) all fees, costs or expenses in connection with Purchaser's due diligence
reviews hereunder. Except as expressly provided in the indemnities set forth in
this Agreement, Seller and Purchaser shall pay their respective legal,
consulting and other professional fees and expenses incurred in connection with
this Agreement and the transaction contemplated hereby and their respective
shares of prorations as hereinafter provided. The provisions of this Section 5.3
shall survive the Closing or a termination of this Agreement.
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5.4 Prorations.
5.4.1 The following shall be prorated between Seller and
Purchaser as of 12:01 a.m. on the Closing Date (on the basis of the actual
number of days elapsed over the applicable period):
(a) All real estate taxes, water charges, sewer rents, vault
charges and assessments on the Property on the basis of the fiscal year for
which assessed. In no event shall Seller be charged with or be responsible for
any increase in the taxes on the Property resulting from the sale of the
Property or from any improvements made or leases entered into on or after the
Closing Date. If any assessments on the Property are payable in installments,
then the installment for the current period shall be prorated (with Purchaser
assuming the obligation to pay any installments due after the Closing Date).
(b) Subject to this Section 5.4.1(b), all fixed rent
and regularly scheduled items of additional rent
under the Leases entered into pursuant to Section 7.2.3, and other tenant
charges if, as and when received. Seller shall deliver or provide a credit in an
amount equal to all prepaid rentals for periods after the Closing Date and all
refundable cash security deposits (to the extent the foregoing were made by
tenants under the Leases and are not applied or forfeited prior to the Closing
Date) to Purchaser on the Closing Date. Seller shall deliver to Purchaser at
Closing any security deposits which are held in the form of letters of credit.
Rents which are delinquent as of the Closing Date shall not be prorated on the
Closing Date. Purchaser shall include such delinquencies in its normal billing
and shall diligently pursue the collection thereof in good faith after the
Closing Date (but Purchaser shall not be required to litigate or declare a
default in any Lease). To the extent Purchaser receives rents within one hundred
twenty (120) days after the Closing Date, such payments shall be applied first
toward the rents for the month in which the Closing occurs, second to the rents
for the month preceding the month in which the Closing occurs, third to any
delinquent rents owed to Seller, with Seller's share thereof being held by
Purchaser in trust for Seller and promptly delivered to Seller by Purchaser and
fourth to the rents that shall then be due and payable to Purchaser, Purchaser
may not waive any delinquent rents nor modify a Lease so as to reduce or
otherwise affect amounts owed thereunder for any period in which Seller is
entitled to receive a share of charges or amounts without first obtaining
Seller's written consent, which consent may be given or withheld in Seller's
sole and absolute discretion. After such one hundred and twenty (120) day
period, Seller shall not be entitled to any further rents collected by
Purchaser. Seller hereby reserves the right to pursue any remedy against any
tenant owing delinquent rents and any other amounts to Seller (but shall not be
entitled to terminate any lease or any tenant's right to possession), which
right shall include the right to continue or commence legal actions or
proceedings against any tenant. Delivery of the Assignment and Assumption of
Leases shall not constitute a waiver by Seller of such right, and such right
shall survive the Closing. Purchaser shall reasonably cooperate with Seller in
any collection efforts hereunder (but shall not be required to litigate or
declare a default under any Lease). With respect to delinquent rents and any
other amounts or other rights of any kind respecting tenants who are no longer
tenants of the Property as of the Closing Date, Seller shall retain all rights
relating thereto.
(c) All operating expenses.
(d) Intentionally deleted.
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(e) Charges and payments under Contracts or permitted renewals or
replacements thereof assigned to Purchaser pursuant to the Assignment and
Assumption of Contracts.
(f) Any prepaid items, including, without limitation, fees for
licenses which are transferred to Purchaser at the Closing and annual permit and
inspection fees.
(g) Utilities, including, without limitation, telephone, steam,
electricity and gas, on the basis of the most recently issued bills therefor,
subject to adjustment after the Closing when the next bills are available, or if
current meter readings are available, on the basis of such readings.
(h) Deposits with telephone and other utility companies, and any
other persons or entities who supply goods or services in connection with the
Property if the same are assigned to Purchaser at the Closing, which shall be
credited in their entirety to Seller.
(i) Personal property taxes, if any, on the basis of the fiscal
year for which assessed.
(j) Permitted administrative charges, if any, on those tenants'
security deposits transferred by Seller pursuant to the Assignment and
Assumption of Leases.
(k) Taxes payable by Seller relating to operations of the
Property, including, without limitation, business and occupancy taxes and sales
taxes, if any.
(l) Such other items as are customarily apportioned between
sellers and purchasers of real properties of a type similar to the Property and
located in the State of California subject to Section 7.2.3(a) hereof.
5.4.2
(a) Seller shall be given a credit for any payments Seller shall
have made as of the Closing Date, in good faith and in the ordinary course of
business, in respect of the capital expenditures described on Exhibit H attached
hereto and made a part hereof. Purchaser shall assume all liability for such
capital expenditures as of the Closing.
(b) If any of the items described in Section 5.4.1 hereof cannot
be apportioned at the Closing because of the unavailability of information as to
the amounts which are to be apportioned or otherwise, or are incorrectly
apportioned at Closing or subsequent thereto, such items shall be apportioned or
reapportioned, as the case may be, as soon as practicable after the Closing Date
or the date such error is discovered, as applicable; provided that, with the
exception of any item required to be apportioned pursuant to Section 5.4.1(a),
(b) or (g), neither party shall have the right to request apportionment or
reapportionment of any such item at any time following the one hundred eightieth
(180th) day after the Closing Date. If the Closing shall occur before a real
estate or personal property tax rate or assessment is fixed for the tax year in
which the Closing occurs, the apportionment of taxes at the Closing shall be
upon the basis of the tax rate or assessment for the preceding fiscal year
applied to the latest assessed valuation. Promptly after the new tax rate or
assessment is fixed, the apportionment of taxes or assessments shall be
recomputed and any discrepancy resulting from such recomputation and any errors
or omissions in computing apportionments at Closing shall be promptly corrected
and the proper party reimbursed, which obligations shall survive the Closing.
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5.4.3 Items to be prorated at the Closing shall include a credit
to Seller for costs and expenses incurred by Seller in connection with any new
Leases or modifications to any existing Leases entered into after the date
hereof in accordance with the terms and conditions set forth in Section 7.2.3(a)
of this Agreement.
5.4.4 The provisions of this Section 5.4 shall survive the
Closing.
6. Condemnation or Destruction of Property. In the event that,
after the date hereof but prior to the Closing Date, either any portion of the
Property is taken pursuant to eminent domain proceedings or condemnation or any
of the improvements on the Property are damaged or destroyed by fire or other
casualty, Seller shall promptly deliver, or cause to be delivered, to Purchaser,
notice of any such eminent domain proceedings or casualty. Except as otherwise
expressly provided herein, Seller shall have no obligation to restore, repair or
replace any portion of the Property or any such damage or destruction. At the
Closing, Purchaser shall receive a credit against the Purchase Price equal to
the award or other anticipated proceeds from such eminent domain or condemnation
proceeding or as the case may be, the estimated cost to repair such destruction
or damage along with a reasonable estimate of lost rent during the period of
repair (unless Seller shall have repaired such damage or destruction prior to
the Closing). If the amount of condemnation award shall exceed the sum of Six
Million Dollars ($6,000,000.00), Purchaser shall have the right to terminate
this Agreement by notice to Seller given within ten (10) days after notification
to Purchaser of the estimated amount of damages or the determination of the
amount of any condemnation award whereupon the Initial Deposit and the
Additional Deposit, to the extent deposited with Escrow Holder, shall be
promptly returned to Purchaser, and this Agreement and the obligations of the
parties hereunder shall terminate (and no party hereto shall have any further
obligations in connection herewith except under those provisions that expressly
survive the Closing or a termination of this Agreement).
7. Representations, Warranties and Covenants.
7.1 Representations, Warranties and Covenants of Seller.
7.1.1 Representations and Warranties of Seller. For purposes of
this paragraph 7, all representations, warranties or covenants made herein by
Seller shall be limited to the current and actual knowledge of Xxxxxx X. Xxxxx,
an individual, and Xxxxx Xxxxxxx, an individual. Subject to the provisions of
Section 7.1.1 of this Agreement, Seller hereby represents, warrants and
covenants to Purchaser that, as of the date of this Agreement:
(a) Leases. Exhibit D contains a true, complete and accurate list
of all Leases encumbering the Property as of the Contract Date, which list shall
identify and list in detail by tenant or vacant area, as applicable, tenant
name, square footage, monthly rent, deposits, concessions, lease term, and
delinquencies, which shall be in one or more reports in the form customarily
used by Seller (the "Rent Roll"). Except with respect to any Leases entered into
pursuant to Section 7.2.3, there are no leases, licenses or other occupancy
agreements to which Seller is a party or is bound affecting any portion of the
Property which will be in force on the Closing Date, and except as set forth in
Exhibit D or otherwise disclosed in writing to Purchaser, no person or entity
other than Seller has any title, interest, or right to possession of the
Property or any part of the Property.
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(b) Litigation. There is no pending or threatened litigation or
condemnation action against the Property or against Seller with respect to the
Property as of the date of this Agreement.
(c) Leasing Commissions. As of the Closing, no leasing
commissions will be due or payable to anyone with respect to or on account of
the Leases.
(d) Non-Foreign Person. Seller is not a "foreign person" as
defined in Section 1445 of the Internal Revenue Code or any related regulations,
as amended.
(e) Contracts. Seller has not entered into any service or
equipment leasing contracts relating to the Property which will be in force
after the Closing, except for the Contracts. As used in this Agreement, the
"Contracts" shall be deemed to mean, collectively, (i) the contracts described
on Exhibit J attached hereto and made a part hereof, (ii) contracts which are
cancelable on thirty (30) days notice or less without premium or penalty, and
(iii) contracts entered into by Seller which Seller is permitted to enter into
in accordance with this Agreement. To Seller's actual knowledge, no material
default exists under any of the Contracts.
(f) Insurance. Exhibit K contains a complete list of all
insurance policies affecting the Property as of the Contract Date, and correctly
states for each policy (i) the policy number, (ii) the name of the insurer,
(iii) the term and expiration date of the policy, and (iv) the premiums.
(g) Due Authority. This Agreement and all agreements, instruments
and documents herein provided to be executed or to be caused to be executed by
Seller are, or on the Closing Date will be, duly authorized, executed and
delivered by and are binding upon Seller. Seller is a limited partnership, duly
organized and validly existing and in good standing under the laws of the State
of California, and is duly authorized and qualified to do all things required of
it under this Agreement.
(h) Zoning. Except as disclosed in the CUP (as defined in Exhibit
B and in the Revised Plan (as defined in Exhibit B), Seller has not requested,
applied for, given its consent to or has actual knowledge of any pending zoning
variance with respect to the Property.
(i) Violations. Except as otherwise disclosed in writing to
Purchaser, Seller has not received any written notices that the use and
operation of the Property is in material violation of any applicable building
codes or any environmental, zoning, life safety and land use or other applicable
laws, rules and regulations.
(j) Environmental Condition. Except as otherwise disclosed in any
environmental reports delivered to Purchaser pursuant to Section 4.2, including
that certain Phase I Environmental Site Assessment prepared by IVI
Environmental, Inc. dated February 21, 2002, or any amendments thereto (the
"Phase I"), or property condition reports, provided by Seller to Purchaser
hereunder or in connection with the transaction that is the subject matter of
this Agreement, to Seller's actual knowledge, neither Seller nor any tenant, has
engaged in any illegal dumping, discharge, disposal, spillage or leakage of such
Hazardous Substances (as defined hereinafter) in violation of applicable
15
Environmental Laws (as defined hereinafter), at, on, in, under, or about the
Property, except for normal quantities of Hazardous Substances utilized in
connection with the normal maintenance and operation of the Property and the
so-called Hazardous Substances utilized by tenants of the Property. As used
herein, (a) "Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as
amended, or the Resource Conservation and Recovery Act (42 U.S.C. Section 6902
et seq.), as amended, or any similar federal, state or local law, ordinance,
rule or regulation applicable to the Property (but specifically excluding any
principles of common law or common law theories); (b) "Hazardous Substances"
means any hazardous, toxic or dangerous waste, substance or material, any
pollutant or contaminant, or any substance which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous, or any substance which contains gasoline, diesel fuel or other
petroleum hydrocarbons, polychlorinated biphenyls (PCBs), radon gas, urea
formaldehyde or asbestos.
(k) Property Condition Reports. Seller has as of the Contract
Date or will have as of the Due Diligence expiration date delivered to Purchaser
any reports in Seller's possession with respect to the Property reflecting any
defects or potential defects in the Property conditions.
Notwithstanding and without limiting the foregoing, (i) if any of
the representations or warranties of Seller contained in this Agreement or in
any certificate delivered in connection herewith are materially false or
inaccurate, or Seller is in material breach or default of any of its obligations
under this Agreement, and Purchaser nonetheless closes the transactions
hereunder and purchases the Property, then Seller shall have no liability or
obligation respecting such false or inaccurate representations or warranties or
other breach or default (and any cause of action resulting therefrom shall
terminate upon the Closing) in the event that either (x) on or prior to Closing,
Purchaser shall have had knowledge of the false or inaccurate representations or
warranties or other breach or default, or (y) the accurate state of facts
pertinent to such false or inaccurate representations or warranties or other
breach or default was contained in any of the Information, and (ii) to the
extent the copies of the Leases, the Contracts or any other Information
furnished or made available to or otherwise obtained by Purchaser prior to the
expiration of the Due Diligence Period contain provisions or information that
are inconsistent with the foregoing representations and warranties, such
representations and warranties shall be deemed modified to the extent necessary
to eliminate such inconsistency and to conform such representations and
warranties to such Leases and other Information.
7.1.2 GENERAL DISCLAIMER. EXCEPT AS SPECIFICALLY SET FORTH IN
THIS AGREEMENT, THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE ON AN "AS
IS" ,"WHERE IS," AND "WITH ALL FAULTS" BASIS, AND EXCEPT AS SPECIFICALLY STATED
HEREIN IS WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS,
IMPLIED OR OTHERWISE, INCLUDING REPRESENTATIONS OR WARRANTIES CONCERNING TITLE
TO THE PROPERTY, THE PHYSICAL CONDITION OF THE PROPERTY (INCLUDING THE CONDITION
OF THE SOIL OR THE IMPROVEMENTS), THE ENVIRONMENTAL CONDITION OF THE PROPERTY
(INCLUDING THE PRESENCE OR ABSENCE OF HAZARDOUS SUBSTANCES ON OR AFFECTING THE
PROPERTY), THE COMPLIANCE OF THE PROPERTY WITH APPLICABLE LAWS AND REGULATIONS
(INCLUDING ZONING AND BUILDING CODES OR THE STATUS OF DEVELOPMENT OR USE RIGHTS
RESPECTING THE PROPERTY), THE FINANCIAL CONDITION OF THE PROPERTY OR ANY OTHER
16
REPRESENTATION OR WARRANTY RESPECTING ANY INCOME, EXPENSES, CHARGES, LIENS OR
ENCUMBRANCES, RIGHTS OR CLAIMS ON, AFFECTING OR PERTAINING TO THE PROPERTY OR
ANY PART THEREOF. PURCHASER ACKNOWLEDGES THAT, AS PROVIDED FOR HEREIN ABOVE,
DURING THE DUE DILIGENCE PERIOD, PURCHASER WILL EXAMINE, REVIEW AND INSPECT ALL
MATTERS WHICH IN PURCHASER'S JUDGMENT BEAR UPON THE PROPERTY AND ITS VALUE AND
SUITABILITY FOR PURCHASER'S PURPOSES. EXCEPT AS TO MATTERS SPECIFICALLY SET
FORTH IN THIS AGREEMENT: (A) PURCHASER WILL ACQUIRE THE PROPERTY SOLELY ON THE
BASIS OF ITS OWN PHYSICAL AND FINANCIAL EXAMINATIONS, REVIEWS AND INSPECTIONS
AND THE TITLE INSURANCE PROTECTION AFFORDED BY THE OWNER'S POLICY.
7.2 Interim Covenants of Seller. Until the Closing Date or the
sooner termination of this Agreement in accordance with the terms and conditions
of this Agreement:
7.2.1 Seller shall maintain the Property in the same manner as
prior hereto pursuant to Seller's normal course of business (such as maintenance
obligations but not including extraordinary capital expenditures or expenditures
not incurred in such normal course of business), subject to reasonable wear and
tear and further subject to destruction by casualty or other events beyond the
control of Seller.
7.2.2 Subject to the terms set forth in this Section 7.2.2,
Seller may cancel, modify, extend, renew or permit the expiration of contracts
or enter into any new service contract without Purchaser's consent. After the
expiration of the Due Diligence Period, Seller shall not modify, extend, renew
or cancel (except as a result of a default by the other party thereunder) or
enter into any additional service contracts or other similar agreements without
the prior consent of Purchaser, which consent shall not be unreasonably withheld
or delayed; provided, however, Purchaser's consent shall not be required if such
contract is cancelable upon not more than thirty (30) days notice.
7.2.3
(a) Seller shall have the right to continue to offer the Property
for lease in the same manner as prior hereto pursuant to its normal course of
business and, upon request, shall keep Purchaser reasonably informed as to the
status of leasing prior to the Closing Date. Prior to the expiration of the Due
Diligence Period, Seller shall be entitled to enter into any new leases, or
material modifications of existing Leases at its sole option, exercisable in
Seller's sole and absolute discretion, and shall provide copies of same to
Purchaser promptly after the execution thereof. After the expiration of the Due
Diligence Period, Seller shall not during the term of this Agreement enter into
any new leases or material modifications of existing Leasesthat are not in the
same manner as prior hereto pursuant to its normal course of business at rents
not less than the current rent rate of the Property. Notwithstanding the
foregoing or anything to the contrary set forth in this Agreement, (x)
Purchaser's failure to disapprove any request for consent by Seller under this
Section 7.2.3 within five (5) days following Seller's request therefor shall be
deemed to constitute Purchaser's consent thereto, and (y) Purchaser shall bear
all costs and expenses related to any new leases or modifications of existing
Leases or service contracts entered into after the date hereof in accordance
with the provisions of this Section 7.2.3 (including tenant improvement costs
and leasing commissions, but excluding free rent allocable to any period prior
to the Closing Date) and, without limiting the foregoing, the prorations at the
Closing shall include an appropriate credit to Seller consistent with the
foregoing.
17
(b) Seller makes no representations and assumes no responsibility
with respect to the continued occupancy of the Property or any part thereof by
any tenant. The removal of a tenant whether by summary proceedings or otherwise
prior to the Closing Date shall not give rise to any claim on the part of
Purchaser. Further, Purchaser agrees that it shall not be grounds for
Purchaser's refusal to close this transaction that any tenant is a holdover
tenant or in default under its Lease on the Closing Date and Purchaser shall
accept title subject to such holding over or default without an abatement in or
credit against the Purchase Price.
7.2.4 Seller will keep in force and effect with respect to the
Property the insurance policies currently carried by Seller or policies
providing similar coverage through the Closing Date.
7.2.5 Subject to the provisions of Section 11.2 hereof, the
representations and warranties of Seller set forth in Section 7.1.1 above shall
survive the Closing for six (6) months and shall automatically expire and be of
no force or effect upon the date that is the sixth (6th) month anniversary of
the Closing.
7.3 Representations, Warranties and Covenants of Purchaser.
Purchaser hereby represents and warrants to Seller that this Agreement and all
agreements, instruments and documents herein provided to be executed or caused
to be executed by Purchaser are, or on the Closing Date will be, duly
authorized, executed and delivered by and are binding upon Purchaser. Purchaser
is a living trust, duly organized and validly existing and in good standing
under the laws of the State of California and is duly authorized and qualified
to do all things required of it under this Agreement. The representations and
warranties of Purchaser shall survive the Closing.
8. Indemnification.
8.1 Due Diligence Indemnification by Purchaser. Purchaser shall
hold harmless, indemnify and defend Seller and the Seller Related Parties from
and against: (a) any and all third party claims for personal injury or property
damage related to the Property or the ownership, operation or maintenance
thereof and occurring on or after the Closing Date, (b) any and all loss, damage
or third party claims in any way arising from Purchaser's inspections or
examinations of the Property prior to the Closing Date, including, without
limitation, any Investigations made by Purchaser, (c) any breach of the
representations and warranties of Purchaser, and (d) all costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred by Seller as a result of the foregoing.
8.2 Survival. The provisions of this Section 8 shall survive the
Closing or earlier termination of this Agreement.
9. REMEDIES FOR DEFAULT AND DISPOSITION OF THE INITIAL DEPOSIT AND THE
ADDITIONAL DEPOSIT.
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9.1 SELLER DEFAULTS. IF THE TRANSACTION HEREIN PROVIDED SHALL NOT
BE CLOSED BY REASON OF SELLER'S DEFAULT UNDER THIS AGREEMENT, THEN PURCHASER
SHALL HAVE, AS ITS EXCLUSIVE REMEDIES THE RIGHT TO EITHER (A) TERMINATE THIS
AGREEMENT (IN WHICH EVENT THE INITIAL DEPOSIT AND THE ADDITIONAL DEPOSIT, TO THE
EXTENT DEPOSITED WITH ESCROWEE, SHALL BE RETURNED TO PURCHASER, AND NEITHER
PARTY HERETO SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO THE OTHER EXCEPT
WITH RESPECT TO THOSE PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY SURVIVE THE
CLOSING OR A TERMINATION OF THIS AGREEMENT), PURCHASER HEREBY WAIVING ANY RIGHT
OR CLAIM TO DAMAGES FOR SELLER'S BREACH, OR (B) SPECIFICALLY ENFORCE THIS
AGREEMENT INCLUDING CLAIMS FOR ACTUAL DAMAGES AND ATTORNEY'S FEES INCURRED IN
ENFORCING THE PROVISIONS HEREOF ARISING OUT OF SELLER'S BREACH OF THIS AGREEMENT
PROVIDED THAT SUCH CLAIMS SHALL BE LIMITED TO A MAXIMUM SUM OF TWO MILLION
DOLLARS ($2,000,000.00); PROVIDED FURTHER THAT ANY ACTION BY PURCHASER FOR
SPECIFIC PERFORMANCE MUST BE FILED, IF AT ALL, WITHIN THIRTY (30) DAYS OF
SELLER'S DEFAULT, AND THE FAILURE TO FILE WITHIN SUCH PERIOD SHALL CONSTITUTE A
WAIVER BY PURCHASER OF SUCH RIGHT AND REMEDY. IF PURCHASER SHALL NOT HAVE FILED
AN ACTION FOR SPECIFIC PERFORMANCE WITHIN THE AFOREMENTIONED TIME PERIOD OR SO
NOTIFIED SELLER OF ITS ELECTION TO TERMINATE THIS AGREEMENT, PURCHASER'S SOLE
REMEDY SHALL BE TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH CLAUSE (A) ABOVE.
9.2 PURCHASER DEFAULTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY
SET FORTH IN SECTION 9.1, IN THE EVENT THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT SHALL NOT CLOSE ON ACCOUNT OF PURCHASER'S DEFAULT RESULTING SOLELY
FROM PURCHASER'S FAILURE TO DEPOSIT OR OTHERWISE PAY THE PURCHASE PRICE PRIOR TO
THE SCHEDULED CLOSING DATE, THEN THIS AGREEMENT SHALL TERMINATE AND THE
RETENTION OF THE DEPOSIT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT FOR SUCH A DEFAULT, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT THAT
EXPRESSLY SURVIVE THE CLOSING OR A TERMINATION OF THIS AGREEMENT; PROVIDED,
HOWEVER, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO LIMIT SELLER'S RIGHTS
OR DAMAGES UNDER ANY INDEMNITIES GIVEN BY PURCHASER TO SELLER UNDER THIS
AGREEMENT. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER
WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER, THAT
IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT
TO SELLER CAUSED BY THE BREACH BY PURCHASER UNDER THIS AGREEMENT AND THE FAILURE
OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE
AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF PURCHASER'S BREACH
OR DEFAULT.
19
IN PLACING THEIR INITIALS AT THE PLACES PROVIDED, EACH PARTY
SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT
THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS MADE. THE
PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR
PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT
IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA
CIVIL CODE SECTIONS 1671, 1676 AND 1677. UPON SUCH A DEFAULT BY PURCHASER, THIS
AGREEMENT SHALL BE TERMINATED AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR
OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF SELLER TO
COLLECT SUCH LIQUIDATED DAMAGES FROM PURCHASER AND THE INDEMNIFICATION RIGHTS
SET FORTH IN SECTION 8 OF THIS AGREEMENT. PURCHASER FURTHER SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT EXCEPT FOR PURCHASER'S RIGHT TO SPECIFICALLY
ENFORCE THIS AGREEMENT PURSUANT TO SECTION 9.1, AND TO TAKE ALL ACTIONS
NECESSARY AND APPROPRIATE THEREWITH, IT HEREBY WAIVES ANY RIGHT PURCHASER MAY
HAVE TO SEEK DECLARATORY AND/OR INJUNCTIVE RELIEF AND/OR EQUITABLE RELIEF, OR TO
RECORD A NOTICE OF THIS AGREEMENT OR ANY RIGHTS PURCHASER MAY HAVE HEREUNDER, OR
TO RECORD OR FILE A NOTICE OF PENDENCY OF ANY ACTION OR PROCEEDINGS TO ENFORCE
THIS AGREEMENT.
Seller: Purchaser:
------- ----------
Initial here: _________ Initial here:__________
9.3 Disposition of Deposit. In the event the transaction
contemplated by this Agreement shall close, the Deposit shall be applied as a
partial payment of the Purchase Price.
10. Intentionally Omitted.
11. Miscellaneous.
11.1 Brokers.
11.1.1 Except as provided in Section 11.1.2 below, Seller
represents and warrants to Purchaser, and Purchaser represents and warrants to
Seller, that no broker or finder has been involved in connection with the sale
contemplated under this Agreement other than Xxxxxxxxxxx-Xxxxxxx Company
("Seller's Broker") and Xxxx Xxxxxxx Company ("Purchaser's Broker"), and Seller
has agreed to pay a brokerage commission to Xxxxxxxxxxx-Xxxxxxx Company pursuant
to a separate written agreement between Seller and Seller's Broker, and Seller
agrees pay to Purchaser's Broker a brokerage commission at Closing through
Escrow an amount of four hundred thousand dollars ($400,000.00) (the
"Purchaser's Broker Fee"). In the event of a claim for broker's or finder's fee
or commissions in connection with the sale contemplated by this Agreement, other
than that by Xxxxxxxxxxx-Xxxxxxx Company or Purchaser's Broker for the
Purchaser's Broker Fee, then Seller shall indemnify, defend and hold harmless
Purchaser from the same if it shall be based upon any statement or agreement
alleged to have been made by Seller, and Purchaser shall indemnify, defend and
hold harmless Seller from the same if it shall be based upon any statement or
agreement alleged to have been made by Purchaser. The indemnification
obligations under this Section 11.1.1 shall survive the Closing or a termination
of this Agreement.
20
Section 11.1.1 hereof is not intended to apply to leasing
commissions incurred in accordance with this Agreement.
11.1.2 Seller and Purchaser hereby acknowledge as a matter of
disclosure only that Xxxx X. Xxxxxxx and Xxxxxxxxx Xxxxxxx are licensed real
estate brokers in the State of California, and agree that notwithstanding the
foregoing, neither Xxxx X. Xxxxxxx nor Xxxxxxxxx Xxxxxxx has any right or claim
to any broker's or finder's fee or commission in connection with the sale
contemplated by this Agreement.
11.2 Limitation of Liability.
11.2.1 Notwithstanding anything to the contrary contained in this
Agreement or any documents executed in connection herewith, if the Closing of
the transaction contemplated hereunder shall have occurred, the aggregate
liability of Seller arising pursuant to or in connection with the
representations, warranties, indemnifications, covenants or other obligations
(whether express or implied) of Seller under this Agreement (or any document or
certificate executed or delivered in connection herewith) shall not exceed Two
Million Dollars ($2,000,000.00) (the "Monetary Limitation Of Liability"), it
being understood and agreed that any action for damages must be brought, if at
all, prior to the date that is the sixth (6th) month anniversary of the Closing
(and, in the event any such suit is timely commenced, shall survive thereafter
only insofar as the subject matter of the alleged breach specified in such suit
is concerned) (the "Limitation Of The Filing of Claims").
11.2.2 Except as provided hereinbelow, no shareholder or agent of
Seller, nor any Seller Related Parties, shall have any personal liability,
directly or indirectly, under or in connection with this Agreement or any
agreement made or entered into under or pursuant to the provisions of this
Agreement, or any amendment or amendments to any of the foregoing made at any
time or times, heretofore or hereafter, and Purchaser and its successors and
assigns and, without limitation, all other persons and entities, shall look
solely to Seller's assets for the payment of any claim or for any performance,
and Purchaser, on behalf of itself and its successors and assigns, hereby waives
any and all such personal liability. Notwithstanding the foregoing, but subject
to the Monetary Limitation Of Liability above, the shareholders of Seller and
Seller Related Parties shall be liable for any damages against Seller in
connection with this Agreement to the extent the assets of Seller are
insufficient to pay for any such damage award, provided, that such parties shall
only be liable to the extent of any distributions of cash or assets received by
such parties from Seller resulting from the sale of the Property contemplated
herein.
11.2.3 The provisions of this Section 11.2 shall survive the
Closing or a termination of this Agreement.
11.3 Exhibits; Entire Agreement; Modification. All exhibits
attached and referred to in this Agreement are hereby incorporated herein as if
fully set forth in (and shall be deemed to be a part of ) this Agreement. This
Agreement contains the entire agreement between the parties respecting the
matters herein set forth and supersedes any and all prior agreements between the
parties hereto respecting such matters. This Agreement may not be modified or
amended except by written agreement signed by both parties.
21
11.4 Business Days. Whenever any action must be taken (including
the giving of notice or the delivery of documents) under this Agreement during a
certain period of time (or by a particular date) that ends (or occurs) on a
non-Business Day, then such period (or date) shall be extended until the next
succeeding Business Day. As used herein, the term "Business Day" shall be deemed
to mean any day, other than a Saturday or Sunday, on which commercial banks in
the State of New York or in the State of California are not required or
authorized to be closed for business.
11.5 Interpretation. Section headings shall not be used in
construing this Agreement. Each party acknowledges that such party and its
counsel, after negotiation and consultation, have reviewed this Agreement. As
such, the terms of this Agreement shall be fairly construed and the usual rule
of construction, to wit, that ambiguities in this Agreement should be resolved
against the drafting party, shall not be employed in the interpretation of this
Agreement or any amendments, modifications or exhibits hereto or thereto.
Whenever the words "including", "include" or "includes" are used in this
Agreement, they shall be interpreted in a non-exclusive manner. Except as
otherwise indicated, all Exhibit and Section references in this Agreement shall
be deemed to refer to the Exhibits and Sections in this Agreement.
11.6 Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of California.
11.7 Successors and Assigns. Purchaser may not assign or transfer
its rights or obligations under this Agreement without the prior written consent
of the Seller, which consent may be given or withheld in the sole and absolute
discretion of Seller; provided that, Purchaser may assign this Agreement to an
entity to be formed prior to or at Closing in which Purchaser shall own at a
least a fifty-one percent (51%) controlling interest, it being anticipated that
a minority owner of such entity will be Xxxxx Creek Apartments, Inc., a
California corporation, an entity owned and controlled by Xxxxxxxxx Xxxxxxx; and
provided further that, in the event of such an assignment or transfer, the
transferee shall assume in writing all of the transferor's obligations hereunder
(but Purchaser or any subsequent transferor shall not be released from
obligations hereunder). Notwithstanding and without limiting the foregoing, no
consent given by Seller to any transfer or assignment of Purchaser's rights or
obligations hereunder shall be deemed to constitute a consent to any other
transfer or assignment of Purchaser's rights or obligations hereunder and no
transfer or assignment in violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
11.8 Notices. All notices, requests or other communications which
may be or are required to be given, served or sent by either party hereto to the
other shall be deemed to have been properly given, if in writing and shall be
deemed received (a) upon delivery, if delivered in person or by facsimile
transmission, with receipt thereof confirmed by printed facsimile
acknowledgment, (b) one (1) Business Day after having been deposited for next
day overnight delivery with any reputable overnight courier service, or (c)
three (3) Business Days after having been deposited in any post office or mail
depository regularly maintained by the United States Postal Office and sent by
registered or certified mail, postage paid, return receipt requested, and in
each case, addressed as follows:
22
To Seller:
UCV, L.P.
0000 Xxxxxxx Xxxx, Xxxxx X
Xxx Xxxxx, Xxxxxxxxxx 000000
Attention: Xx. Xxxxxx Xxxxxxx, CFO
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a Copy To:
Xxxx-Xxxxxx & Xxxxxxxx
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a Copy To:
Xxxxxxxx, Xxxxxx & Xxxxxxx, a law corporation
000 Xxxx X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
To Purchaser:
Xxxx Xxxxxxx Living Trust
00000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a Copy To:
Xxxx Xxxxx
Xxxxx & Xxxxx
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
23
11.9 Third Parties. Nothing in this Agreement, whether expressed
or implied, is intended to confer any rights or remedies under or by reason of
this Agreement upon any other person other than the parties hereto and their
respective permitted successors and assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
parties any right of subrogation or action over or against any party to this
Agreement. This Agreement is not intended to and does not create any third party
beneficiary rights whatsoever.
11.10 Legal Costs. The parties hereto agree that they shall pay
directly any and all legal costs which they have incurred on their own behalf in
the preparation of this Agreement, all deeds and other agreements pertaining to
this transaction, and that such legal costs shall not be part of the closing
costs.
11.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
11.12 Effectiveness. In no event shall any draft of this
Agreement create any obligation or liability, it being understood that this
Agreement shall be effective and binding only when a counterpart hereof has been
executed and delivered by each party hereto.
11.13 No Implied Waivers. No failure or delay of either party in
the exercise of any right or remedy given to such party hereunder or the waiver
by any party of any condition hereunder for its benefit (unless the time
specified in this Agreement for exercise of such right or remedy has expired)
shall constitute a waiver of any other or further right or remedy nor shall any
single or partial exercise of any right or remedy preclude other or further
exercise thereof or any other right or remedy. No waiver by either party of any
breach hereunder or failure or refusal by the other party to comply with its
obligations shall be deemed a waiver of any other or subsequent breach, failure
or refusal to so comply.
11.14 Discharge of Seller's Obligations. Except as otherwise
expressly provided in this Agreement, Purchaser's acceptance of the Deed shall
be deemed a discharge of all of the obligations of Seller hereunder and all of
Seller's representations, warranties, covenants and agreements in this Agreement
shall merge in the documents and agreements executed at the Closing and shall
not survive the Closing, except and to the extent that, pursuant to the express
provisions of this Agreement, any of such representations, warranties, covenants
or agreements are to survive the Closing.
11.15 No Recordation. Neither this Agreement nor any memorandum
thereof shall be recorded and any attempted recordation hereof shall be void and
shall constitute a default hereunder.
11.16 Unenforceability. If all or any portion of any provision of
this Agreement shall be held to be invalid, illegal or unenforceable in any
respect, then such invalidity, illegality or unenforceability shall not affect
any other provision hereof, and such provision shall be limited and construed as
if such invalid, illegal or unenforceable provision or portion thereof were not
contained herein unless doing so would materially and adversely affect a party
or the benefits that such party is entitled to receive under this Agreement.
24
11.17 WAIVER OF TRIAL BY JURY. SELLER AND PURCHASER HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT
OR CONTRACT) BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT.
[Remainder of Page Intentionally Left Blank]
25
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
SELLER:
UCV, L.P., a California limited partnership
By: UCVNV, Inc., a Nevada corporation,
its general partner
By: _______________________
Name: Xxxxxx X. Xxxxx
Title: President
[Signatures continue and end on the next page.]
26
PURCHASER:
Xxxx X. Xxxxxxx Living Trust udt 2/5/92
By: _____________________________________
Xxxx X. Xxxxxxx, Trustee
27
A-1
EXHIBIT A
LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN
DIEGO AND IS DESCRIBED AS FOLLOWS:
LOTS I THROUGH 4, INCLUSIVE OF UNIVERSITY CITY XXXX 0, XX XXX XXXX XX XXX XXXXX,
XXXXXX OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 5100,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 21,
1962.
EXCEPTING THE SOUTHERLY 15.00 FEET OF SAID LOT 3.
APN: 000-000-00
000-000-00
000-000-00
000-000-00
000-000-00
X-0
X-0
EXHIBIT B
(Additional Exceptions to Title)
1. The Resource Protection Ordinance/Conditional Use Permit No.
98-0408 recorded as of __________________, as instrument no. _________________,
in the official records of the County of San Diego, State of California, and all
amendments thereto (the "CUP").
2. The University Community Plan, prepared jointly by the city of
San Diego Planning Department and the University Community Planning Group,
approved by the City Planning Commission on December 18, 1986, adopted by the
San Diego City Council on July 7, 1987, and all revisions, modifications or
amendments referenced therein or incorporated by reference therein, including
but not limited to the Community Plan Amendment approved by the San Diego City
Counsel on October 3, 2002 (the "Revised Plan").
B-1
C-1
EXHIBIT C
(Deed)
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
================================
--------------------------------
MAIL TAX STATEMENTS TO:
================================
--------------------------------
------------------------------------------------------------------------
(Space Above this Line for Recorder's Use)
Documentary Transfer Tax is $_____________
APN __________________
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, UCV, L.P., a California limited partnership ("Grantor"), hereby
grants to _____________________________, a _______________________, having an
address at _________________________________________________ ("Grantee"), the
real property situated in the County of San Diego, State of California, and more
particularly described on Exhibit A annexed hereto and made a part hereof.
C-1
IN WITNESS WHEREOF, the Grantor has executed this Grant Deed as of the ____ day
of ________, 2003.
GRANTOR:
UCV, L.P., a California limited partnership
By: UCVNV, Inc., a Nevada corporation,
its general partner
By: _______________________
Name: Xxxxxx X. Xxxxx
Title: President
STATE OF CALIFORNIA }
COUNTY OF } S.S.
On ________________________________________ before me, the undersigned notary
public in and for said state, 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.
Signature_____________________________________________ (SEAL)
C-2
D-1
EXHIBIT D
(Leases)
D-1
EXHIBIT E
XXXX OF SALE AND GENERAL ASSIGNMENT
THIS XXXX OF SALE AND GENERAL ASSIGNMENT (this "Assignment") is executed as of
the ____ day of _____________, 2003 by UCV, L.P., a California limited
partnership, having an address at 0000 Xxxxxxx Xxxx, Xxxxx X, Xxx Xxxxx,
Xxxxxxxxxx 00000 ("Assignor") in favor of _____________________________, a
_______________________,, having an address at
_________________________________________________ ("Assignee").
WHEREAS, Assignee is this day purchasing from Assignor and Assignor is conveying
to Assignee the Property (as such term is described in that certain Contract of
Sale dated as of ____________________ between Assignor and Assignee).
WHEREAS, Assignor desires to assign, transfer, setover and deliver to Assignee
all of Assignor's rights, if any, in and for all furnishings, fixtures,
fittings, appliances, apparatus, equipment, machinery and other items of
personal property, if any, affixed or attached to, or placed or situated upon,
the Property, and the following incidental rights and appurtenances relating
thereto (collectively, the "Assigned Properties"):
A. To the extent assignable without third party consents or any cost or expense
to Assignor, all of Assignor's right, title and interest in and to all use,
occupancy, building and operating permits, licenses, approvals, documents,
instruments, if any, issued from time to time with respect to the Property or
the Assigned Properties; provided, however, if any such assignment may be made
at an additional cost or expense, Assignor shall assign all of Assignor's right,
title and interest therein if and to the extent Assignee shall pay such
additional cost or expense; and
B. All of Assignor's right, title and interest in and to all existing and
assignable guaranties and warranties (express or implied), if any, issued in
connection with the construction, alteration and repair of the Property and/or
the purchase, installation and the repair of the Assigned Properties.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Assignor hereby assigns, transfers, sets over and delivers to
Assignee, its successors and assigns, all of Assignor's right, title and
interest, if any, in and to the Assigned Properties.
2. This Assignment is made without warranty, representation, or
guaranty by, or recourse against Assignor of any kind whatsoever.
3. This Assignment may be executed in any number of counterparts, each
of which may be executed by any one or more of the parties hereto, but all of
which shall constitute one and the same instrument, and shall be binding and
effective when all parties hereto have executed and delivered at least one
counterpart.
E-1
4. The terms and provisions of this Assignment shall be binding upon
and inure to the benefit of the respective parties hereto, and their respective
successors and assigns.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be duly
executed as of the day and year first written above.
ASSIGNOR:
UCV, L.P., a California limited partnership
By: UCVNV, Inc., a Nevada corporation,
its general partner
By: _______________________
Name: Xxxxxx X. Xxxxx
Title: President
E-2
EXHIBIT F
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 UCV, L.P., a California
limited partnership (the "Company"), the undersigned hereby certifies the
following on behalf of the Company that:
1. The Company is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. The U.S. Federal Identification Number of the Company is
______________; and
3. The address of the Company is: 0000 Xxxxxxx Xxxx, Xxxxx X, Xxx
Xxxxx, Xxxxxxxxxx 00000.
The Company 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 the undersigned declares that the
undersigned has examined this certification and to the best of his knowledge and
belief it is true, correct and complete, and the undersigned further declares
that he has authority to sign this document on behalf of the Company.
Dated: ________________, 2003
COMPANY:
UCV, L.P., a California limited partnership
By: UCVNV, Inc., a Nevada corporation,
its general partner
By: _______________________
Name: Xxxxxx X. Xxxxx
Title: President
F-1
EXHIBIT G
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Assignment") is
executed as of the ____ day of _________, 2003, by and between UCV, L.P., a
California limited partnership, having an address at 0000 Xxxxxxx Xxxx, Xxxxx X,
Xxx Xxxxx, Xxxxxxxxxx 00000 ("Assignor") and _____________________________, a
_______________________,, having an address at _________________________________
("Assignee").
WHEREAS, Assignee is this day purchasing from Assignor and Assignor is
conveying to Assignee the Property (as such term is described in that certain
Contract of Sale dated as of ___________, 2003 between Assignor and Assignee).
WHEREAS, in connection with its ownership and management of the
Property, Assignor has entered into those certain maintenance, service and
supply contracts and equipment leases, in effect on the date hereof, listed and
described on Exhibit A annexed hereto and made a part hereof (collectively, the
"Contracts").
WHEREAS, Assignor desires to transfer and assign to Assignee, and
Assignee desires to assume as herein provided, all of Assignor's right, title
and interest in and to the Contracts.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Assignor hereby transfers and assigns to Assignee all right, title
and interest of Assignor in and to the Contracts.
2. This Assignment shall constitute a direction and full authority to
any person or entity that is a party to any of the Contracts to perform its
obligation under the Contracts for the benefit of Assignee without further proof
to any such party of the assignment to Assignee of the Contracts.
3. Assignee hereby affirmatively and unconditionally assumes all of the
obligations and liabilities of Assignor under the Contracts arising from and
after the date hereof.
4. This Assignment is made without warranty, representation, or
guaranty by, or recourse against Assignor of any kind whatsoever. Assignee shall
be liable for and Assignee hereby indemnifies and holds harmless Assignor and
any agent, advisor, representative, affiliate, employee, director, partner,
member, beneficiary, investor, servant, shareholder, trustee or other person or
entity acting on Assignor's behalf or otherwise related to or affiliated with
Assignor (collectively, "Assignor Related Parties") against all claims, losses,
damages, liabilities, costs, expenses (including reasonable attorneys' fees and
disbursements) and charges Assignor or any Assignor Related Party may incur or
suffer as a result of or which arises (directly or indirectly) out of the
assumption by Assignee of the obligations or liabilities assumed by Assignee
hereunder.
G-1
5. This Assignment may be executed in any number of counterparts, each
of which may be executed by any one or more of the parties hereto, but all of
which shall constitute one and the same instrument, and shall be binding and
effective when all parties hereto have executed and delivered at least one
counterpart.
6. The terms and provisions of this Assignment shall be binding upon
and inure to the benefit of the respective parties hereto, and their respective
successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be duly executed as of the day and year first written above.
ASSIGNOR:
UCV, L.P., a California limited partnership
By: UCVNV, Inc., a Nevada corporation,
its general partner
By: _______________________
Name: Xxxxxx X. Xxxxx
Title: President
ASSIGNEE:
-------------------------------------
I-2
G-3
EXHIBIT A
(Contracts)
G-3
H-1
EXHIBIT H
(Capital Expenditures)
H-1
I-1
EXHIBIT I
(Form of Tenant Notice)
____ _, 2003
By Certified Mail -
Return Receipt Requested
=======================
=======================
Re: Lease (the "Lease") dated __________ between
_________________________________ ("Landlord") and ______________________
encumbering certain real property known as _______________________, __________,
__________ (the "Property")
Ladies and Gentlemen:
Please be advised that (1) Landlord has conveyed all of its right, title and
interest in and to the Property, including its interest as landlord under the
Lease, to _____________________________ ("Purchaser"), and (2) Purchaser has
assumed Landlord's obligations under the Lease.
Accordingly, effective as of the date hereof, you are hereby notified and
directed to deliver all future rent and additional rent payments due under the
Lease, and any notices, inquiries or requests relating thereto, to Purchaser at:
In addition, all security deposits held by Landlord, if any, together with any
interest earned thereon, have been transferred to Purchaser.
Very truly yours,
UCV, L.P., a California limited partnership
By: UCVNV, Inc., a Nevada corporation,
its general partner
By: _______________________
Name: Xxxxxx X. Xxxxx
Title: President
I-1
J-1
EXHIBIT J
(Contracts)
J-1
K-1
EXHIBIT K
(Property Insurance)
Policy No. Insurer Term Premium Description
CAL 0002501-01 Caliber One
Indemnity Company 4/16/2002 to $82,600 General liab
4/16/2003
XEK-000-9680-1659 Fireman's Fund 5/1/2002 to $17,500 Excess Liab
4/16/2003
K2HD406096 Royal & Sunalliance 4/16/2002 to $127,500 Property
4/16/2003
1631434-03 State Compensation
Insurance Fund 1/1/2003 to To be Workers Comp
12/31/2003 billed
K-1
EXHIBIT L
(Intentionally Deleted)
L-1
EXHIBIT M
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Assignment") is executed as of
the ____ day of __________, 2003 by and between UCV, L.P., a California limited
partnership, having an address at 0000 Xxxxxxx Xxxx, Xxxxx X, Xxx Xxxxx,
Xxxxxxxxxx 00000 ("Assignor") and _____________________________, a
_______________________,, having an address at
_________________________________________________ ("Assignee").
WHEREAS, Assignee is this day purchasing from Assignor and Assignor is conveying
to Assignee the Property (as such term is described in that certain Contract of
Sale dated as of __________________________ between Assignor and Assignee).
WHEREAS, the Property is encumbered by those certain tenants (the "Tenants")
occupying space under the leases listed and described on Exhibit A annexed
hereto and made a part hereof (collectively, the "Tenant Leases").
WHEREAS, Assignor desires to transfer and assign to Assignee, and Assignee
desires to assume as provided herein, all of Assignor's right, title and
interest in and to the Tenant Leases.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Assignor hereby transfers and assigns to Assignee all right, title and
interest of Assignor in and to the Tenant Leases.
2. Assignee hereby affirmatively and unconditionally assumes all of Assignor's
obligations and liabilities under the Tenant Leases arising from and after the
date hereof.
3. This Assignment is made without warranty, representation, or guaranty by, or
recourse against Assignor of any kind whatsoever. Assignee shall be liable for
and Assignee hereby indemnifies and holds harmless Assignor and any agent,
advisor, representative, affiliate, employee, director, partner, member,
beneficiary, investor, servant, shareholder, trustee or other person or entity
acting on Assignor's behalf or otherwise related to or affiliated with Assignor
(collectively, "Assignor Related Parties") against all claims, losses, damages,
liabilities, costs, expenses (including reasonable attorneys' fees and
disbursements) and charges Assignor or any Assignor Related Party may incur or
suffer as a result of or which arises (directly or indirectly) out of the
assumption by Assignee of the obligations or liabilities assumed by Assignee
hereunder.
4. This Assignment may be executed in any number of counterparts, each of which
may be executed by any one or more of the parties hereto, but all of which shall
constitute one and the same instrument, and shall be binding and effective when
all parties hereto have executed and delivered at least one counterpart.
5. The terms and provisions of this Assignment shall be binding upon and inure
to the benefit of the respective parties hereto, and their respective successors
and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be duly
executed as of the day and year first written above.
ASSIGNOR:
UCV, L.P., a California limited partnership
By: UCVNV, Inc., a Nevada corporation,
its general partner
By: _______________________
Name: Xxxxxx X. Xxxxx
Title: President
ASSIGNEE:
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M-4
EXHIBIT A
(List of Leases)
M-4
