Ex 2.12
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
BY AND BETWEEN
NATIONAL INVESTORS FINANCIAL, INC.,
a California corporation, AS TRUSTEE for
NATIONAL INVESTORS LAND HOLDING TRUST ___,
AS SELLER,
AND
CYPRESS LAKES, INC.,
a California corporation,
AS BUYER
RELATING TO
PROPERTY LOCATED IN
Contra Costa County, California
known as
"CYPRESS LAKES AND COUNTRY CLUB"
DATED AS OF
__________________, 1998
TABLE OF CONTENTS
PAGE
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
2.1 Purchase and Sale. . . . . . . . . . . . . . . . . . . . . . . . . . .5
2.2 Substance of Transactions. . . . . . . . . . . . . . . . . . . . . . .5
3. Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
3.1 Exchange Value . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
3.2 Additional Consideration . . . . . . . . . . . . . . . . . . . . . . .5
4. Escrow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
5. Cancellation Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . .6
6. Deliveries to Escrow Holder . . . . . . . . . . . . . . . . . . . . . . . . . . .6
6.1 By Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
6.2 By Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
6.3 By Buyer and Seller. . . . . . . . . . . . . . . . . . . . . . . . . .7
7. Condition of Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
7.1 Permitted Exceptions . . . . . . . . . . . . . . . . . . . . . . . . .7
7.2 Title Provided by Seller . . . . . . . . . . . . . . . . . . . . . . .7
8. Conditions to the Close of Escrow . . . . . . . . . . . . . . . . . . . . . . . .8
8.1 Conditions Precedent to Buyer's Obligations. . . . . . . . . . . . . .8
8.1.1 Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
8.1.2 Representations, Warranties and Covenants of Seller. . . . . . .8
8.1.3 Seller's Deliveries. . . . . . . . . . . . . . . . . . . . . . .8
8.2 Conditions Precedent to Seller's Obligations . . . . . . . . . . . . .8
9. Approval of Seller's Constituents . . . . . . . . . . . . . . . . . . . . . . . .9
10. Property "As-Is. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
10.1 No Side Agreements Or Representations; As-Is Purchase . . . . . . . .9
10.2 Disclosures; Specific Acknowledgment Regarding Condition of
Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11. Title Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
13. Disbursements and Other Actions. . . . . . . . . . . . . . . . . . . . . . . . 13
13.1 Escrow Holder.. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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13.2 By Transfer Agent . . . . . . . . . . . . . . . . . . . . . . . . . 13
13.3 Possession.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
14. Joint Representations and Warranties . . . . . . . . . . . . . . . . . . . . . 14
14.1 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14.2 Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14.3 Due Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14.4 Valid and Binding . . . . . . . . . . . . . . . . . . . . . . . . . 14
14.5 Broker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15. Seller's Warranties and Representations. . . . . . . . . . . . . . . . . . . . 14
15.1 Non-Foreign Entity. . . . . . . . . . . . . . . . . . . . . . . . . 14
15.2 Hazardous Substances. . . . . . . . . . . . . . . . . . . . . . . . 15
15.3 Clean-up. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
15.4 Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
16. Pre-Closing Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
16.1 No Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
16.2 No Alterations. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
16.3 Maintenance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
16.4 Obligations Under Contracts.. . . . . . . . . . . . . . . . . . . . 15
16.5 Expenditures. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
17. Condemnation and Destruction . . . . . . . . . . . . . . . . . . . . . . . . . 16
17.1 Eminent Domain or Taking. . . . . . . . . . . . . . . . . . . . . . 16
17.2 Damage or Destruction . . . . . . . . . . . . . . . . . . . . . . . 16
18. Utilities and Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
18.1 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
18.2 Refundable Deposits . . . . . . . . . . . . . . . . . . . . . . . . 17
19. Mediation of Disputes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
20. Arbitration of Disputes: . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
21. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
22. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
23. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
23.1 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
23.2 Partial Invalidity. . . . . . . . . . . . . . . . . . . . . . . . . 19
23.3 Possession of the Property. . . . . . . . . . . . . . . . . . . . . 19
23.4 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
23.5 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . 19
23.6 Professional Fees . . . . . . . . . . . . . . . . . . . . . . . . . 19
23.7 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 19
23.8 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . . . 19
23.9 Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
23.10 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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23.11 Wear and Tear. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23.12 No Recordation . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23.13 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23.14 Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23.15 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . 20
EXHIBITS
EXHIBIT A - Legal Description
EXHIBIT B - Form of Grant Deed
EXHIBIT C - FIRPTA Affidavit
EXHIBIT D - Assignment and Assumption
EXHIBIT E - Xxxx of Sale and General Assignment of Intangibles
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AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
("AGREEMENT") is made and entered into as of ____________ __, 1998, by and
between NATIONAL INVESTORS FINANCIAL, INC., a California corporation, AS
TRUSTEE for NATIONAL INVESTORS LAND HOLDING TRUST ___ ("Seller"), and CYPRESS
LAKES, INC., a California corporation ("BUYER").
R E C I T A L S
A. Seller is the owner of that certain unimproved real property commonly
known as "Cypress Lakes and Country Club", consisting of approximately 686
acres, located in the County of Contra Costa, State of California, as more
particularly described in Exhibit A attached hereto (the "Real Property").
B. Seller holds record title to the Real Property as agent of and for the
benefit of various investors who are the beneficiaries of National Investors
Land Holding Trust ____ (the "Trust").
C. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the Property (as hereinafter defined) on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals
are incorporated herein by this reference, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, Buyer
and Seller agree as follows:
A G R E E M E N T
1. DEFINITIONS: For the purposes of this Agreement the following terms
will be defined as follows:
1.1 "ACTUAL KNOWLEDGE OF SELLER" means and is limited to the actual
knowledge of Xxxxx Xxxxxx and Xxxxx X. Xxxx without having conducted any
independent inquiry or inspection, and shall not include the knowledge of any
other persons or firms, it being understood and agreed by Buyer that neither
Xxxxx Xxxxxx nor Xxxxx X. Xxxx is charged with knowledge of all of the acts
and/or omissions of predecessors in title to the Property or management of the
Property before Seller's acquisition of the Property and the Actual Knowledge of
Seller shall not include information or material which may be in the possession
of Seller generally, but of which neither Xxxxx Xxxxxx nor Xxxxx X. Xxxx is
actually aware.
1.2 "AFC" means American Family Communities, Inc., a California
corporation, which is a wholly-owned subsidiary of AFH.
1.3 "AFH" means American Family Holdings, Inc., a Delaware corporation.
Buyer is a wholly-owned subsidiary of AFC, which, in turn, is a wholly-owned
subsidiary of AFH.
1.4 "ASSIGNMENT" shall have the meaning given thereto in
Section 6.1(d) hereof.
1.5 "XXXX OF SALE" shall have the meaning given thereto in
Section 6.1(e) hereof.
1.6 "CLOSING DATE" means ___________, 1998, unless an earlier date is
agreed to in a writing subsequent to this Agreement executed and delivered by
each of the parties hereto to the other, and is the last date on which the
Closing and Close of Escrow can occur, subject to extension as provided for in
this Agreement.
1.7 "CLOSING" and "CLOSE OF ESCROW" are terms used interchangeably in
this Agreement. The Closing or the Close of Escrow will be deemed to have
occurred when the Grant Deed is recorded in the official records of the county
in which the Property is located.
1.8 "EFFECTIVE DATE" means the date hereof.
1.9 "ENVIRONMENTAL AUDIT" means any environmental audit, review or
testing of the Property performed by Buyer or any third party or consultant
engaged by Buyer to conduct such study.
1.10 "ENVIRONMENTAL LAW" means any law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the environment
including, without limitation, CERCLA (Comprehensive Environmental Response,
Compensation and Liability Act of 1980) and RCRA (Resources Conservation and
Recovery Act of 1976), as amended.
1.11 "ESCROW" shall have the meaning given thereto in Section 4
hereof.
1.12 "ESCROW HOLDER" means _______________________________, whose
address is _______________________________________________________________,
Attn.: ___________________.
1.13 "EXCHANGE VALUE" is the adjusted appraised value of the Property
which takes into consideration various factors to balance the business value of
the Property within its present ownership structure.
1.14 "FIRPTA CERTIFICATE" shall have the meaning given thereto in
Section 6.1(b) hereof.
1.15 "GRANT DEED" shall have the meaning given thereto in Section 6.1(a)
hereof.
1.16 "HAZARDOUS SUBSTANCE" means any substance, material or waste which is
or becomes designated, classified or regulated as being "toxic" or "hazardous"
or a "pollutant" or
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which is or becomes similarly designated, classified or regulated, under any
Environmental Law, including asbestos, petroleum and petroleum products.
1.17 "IMPROVEMENTS" means any and all improvements and fixtures situated on
the Real Property.
1.18 "INVESTORS" means the beneficiaries of the Trust.
1.19 "INTANGIBLES" means all of Seller's right, title and interest in
and to all intangible property used, owned or issued solely and strictly in
connection with the Real Property, Improvements and Personal Property,
including, but not limited to: (i) trade names and trademarks, contract rights,
accounts receivable and other intangible property used in connection with the
ownership and operation of the Property; (ii) all licenses, permits,
certificates of occupancy, approvals, dedications and entitlements issued,
approved or granted by any governmental authorities having jurisdiction over the
Property; and (iii) all development rights, conditional use permits, variances
and other intangible rights, titles, interests and privileges owned by Seller
and related to or issued in connection with the Land and/or Improvements, its
use, occupancy, operation and development, but in no way related to Seller's
financial data or other proprietary information or other property of Seller.
1.20 "NOTICES" will be sent as provided in Section 21 to:
Seller: National Investors Land Holding Trust
c/o National Investors Financial, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attn.: Xx. Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Buyer: Cypress Lakes, Inc.
______________________
______________________
Attn.:__________________
Telephone: _____________
Facsimile: ______________
with a copy to: Xxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Escrow Holder: __________________________________
__________________________________
__________________________________
Attn.: ___________________
Telephone: ________________________
Facsimile: ________________________
1.21 "OPENING OF ESCROW" shall have the meaning given thereto in
Section 4 hereof.
1.22 "OTHER ASSETS" means cash, cash equivalent, notes and other
negotiable instruments and any and all other assets in the possession or control
of Seller, the value of which is determined by possession, and any other assets
other than the Real Property, Personal Property or Intangibles relating to the
Real Property.
1.23 "PERMITTED EXCEPTIONS" shall have the meaning given thereto in
Section 7.1 hereof.
1.24 "PERSONAL PROPERTY" means the equipment, furniture and fixtures,
books and records and other personal property, if any, owned by Seller and
located on the Property as of the Effective Date, including without limitation,
those items listed on SCHEDULE 1 to the Xxxx of Sale.
1.25 "PROPERTY" means collectively, (i) the Real Property, (ii) the
Improvements , (iii) the Intangibles, (iv) the Personal Property and (v) the
Other Assets.
1.26 "PROSPECTUS" means the Consent Solicitation Statement/Prospectus
of Buyer.
1.27 "REAL PROPERTY" means that certain real property located in the County
of Contra Costa, State of California and commonly known as "Cypress Lakes and
Country Club" and more particularly described in EXHIBIT A attached hereto. The
Real Property also is described in the Recitals hereof.
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1.28 "TITLE COMPANY" means ________________________________________.
1.29 "TITLE POLICY" shall have the meaning given thereto in Section 11
hereof.
1.30 "TRANSFER AGENT" means _____________________, who address is
__________________, Attn.: ___________, Facsimile No. ___________.
1.31 "UNIT" means, collectively, one (1) share of common stock, plus
warrants to purchase three (3) additional shares of common stock, in AFH.
2. PURCHASE AND SALE:
2.1 PURCHASE AND SALE. Upon and subject to the terms and conditions
set forth in this Agreement, Seller agrees to sell to Buyer and Buyer agrees to
buy from Seller the Property, together with all easements, hereditaments,
entitlements (to the extent transferable) and appurtenances thereto. In
consideration of Seller's sale of the Property to Buyer, Buyer will (a) cause to
be delivered to the investors of Seller the Exchange Value in accordance with
Section 3, and (b) perform all of Buyer's other obligations hereunder.
2.2 SUBSTANCE OF TRANSACTIONS. Notwithstanding any other provision
of this Agreement, the transfer of the Property directly from Seller to Buyer is
for convenience purposes only to effect expeditiously the culmination of the
transfers set forth in this Section 2.2, and for all purposes hereunder it is
the intent of the parties that such transfer reflects the following transfers,
which shall occur in the following order: (i) all of the Investors, through
their approval of the transactions contemplated under this Agreement, contribute
all of their interests in the Property to AFH in exchange for Units, such Units
to be distributed to them pursuant to Sections 3 and 13.2 hereof; (ii) AFH
contributes the Property to AFC as a contribution to the capital of AFC; and
(iii) AFC contributes the Property to Buyer as a contribution to the capital of
Buyer. Seller's transfer of the Property directly to Buyer reflects Seller's
transfer of the Property from the Investors to AFH, from AFH to AFC, and from
AFC to the Buyer, in each instance in Seller's capacity as the agent of and on
behalf of such transferors.
3. CONSIDERATION:
3.1 EXCHANGE VALUE. In consideration for the sale of the Property to
Buyer, Buyer will deliver to Seller an amount equal to the Exchange Value for
the Property. The Exchange Value for the Property is $______________, which
shall be paid in the form of, and by issuance and delivery of, _____ Units to
the investors of Seller, to be distributed by the Transfer Agent at the Closing
outside of Escrow in accordance with Section 13.2 hereof. Upon the request of
any party hereto, whether made before or after the Closing, the parties hereto
will allocate the Exchange Value to the Real Property, Improvements, Personal
Property, Other Assets and the Intangibles.
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3.2 ADDITIONAL CONSIDERATION. If, after the Close of Escrow,
Buyer completes the sale of the Property for a purchase price which exceeds
the appraised value of the Property, as set forth in the appraisal dated
March, 1998 prepared by ____________________________ (the "Appraised Value"),
Buyer will pay to Seller an amount calculated pursuant to the terms of this
Section 3.2, which shall be paid in the form of, and by issuance and delivery
of, an additional number of Units equal to the quotient of the net cash
proceeds (exclusive of interest on deferred purchase price payments)
received by Buyer for such sale on or before December 31, 1999 up to 200% of
the Appraised Value divided by $20. (For example, if the Appraised Value of
the Property was $1,750,000 and Buyer received by December 31, 1999 net cash
sale proceeds in the amount of $3,600,000, then the maximum number of
additional Units available for allocation among Seller's investors would be
$1,750,000 divided by $20 or 87,500 Units.)
4. ESCROW: Immediately upon execution of this Agreement, Buyer and
Seller will open an escrow (the "ESCROW") with the Escrow Holder by delivering
to Escrow Holder a fully executed copy of this Agreement (the "OPENING OF
ESCROW"). The purchase and sale of the Property will be completed through the
Escrow. Buyer and Seller agree to execute any additional instructions
consistent with this Agreement which are reasonably required by the Escrow
Holder. If there is a conflict between any printed escrow instructions and this
Agreement, the terms of this Agreement will govern.
5. CANCELLATION FEES AND EXPENSES: If the Closing does not occur at
the time and in the manner provided in this Agreement because of the default of
one of the parties, the non-defaulting party has the right to cancel the Escrow
by written notice to the defaulting party and to the Escrow Holder. All costs
of cancellation, if any, will be paid by the defaulting party.
6. DELIVERIES TO ESCROW HOLDER:
6.1 BY SELLER. On or prior to the Closing Date, Seller will deliver
or cause to be delivered to Escrow Holder the following items:
(a) A Grant Deed ("GRANT DEED"), in the form attached to this
Agreement as EXHIBIT B, duly executed and acknowledged by Seller and
in recordable form, conveying the Property to Buyer.
(b) A Transferor's Certificate of Non-Foreign Status attached to
this Agreement as EXHIBIT C ("FIRPTA CERTIFICATE"), duly executed by
or on behalf of Seller.
(c) A properly executed California Form RE 590 or other evidence
sufficient to establish that Buyer is not required to withhold any
portion of the Exchange Value pursuant to Sections 18805 and 26131 of
the California Revenue and Taxation Code ("FORM 590").
(d) An Assignment and Assumption of Agreements ("ASSIGNMENT") duly
executed by Seller in favor of Buyer in the form attached to this
Agreement as EXHIBIT D.
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(e) A Xxxx of Sale and General Assignment of Intangibles in the
form attached to this Agreement as EXHIBIT E ("XXXX OF SALE"), duly
executed by Seller and conveying all right, title and interest of
Seller in the Personal Property and the Intangibles to Buyer.
(f) Such corporate resolutions, certificates of good standing
and/or other corporate or partnership documents relating to Seller
as are reasonably required by Buyer or Escrow Holder or both in
connection with this transaction.
6.2 BY BUYER. On or prior to the Closing Date, Buyer will deliver or
cause to be delivered to Escrow Holder the following items:
(a) Such corporate resolutions, certificates of good standing and/or
other corporate or partnership documents relating to Buyer as are
reasonably required by Seller or Escrow Holder or both in connection
with this transaction.
(b) Amounts due to pay costs and expenses as set forth in Section
12 hereof.
6.3 BY BUYER AND SELLER. Buyer and Seller will each deposit such other
instruments consistent with this Agreement as are reasonably required by Escrow
Holder or otherwise required to close escrow. In addition Seller and Buyer
hereby designate Escrow Holder as the "REPORTING PERSON" for the transaction
pursuant to Section 6045(e) of the Internal Revenue Code.
7. CONDITION OF TITLE:
7.1 PERMITTED EXCEPTIONS. At the Close of Escrow, fee simple title to the
Property will be conveyed to Buyer by Seller by Grant Deed, subject only to the
following title matters ("PERMITTED EXCEPTIONS"):
(a) all property tax liens (whether or not payment of property taxes
are delinquent) and all other matters shown in that certain Commitment for
Title Insurance effective _______________, issued by the Title Company,
bearing Order No.________; and
(b) matters affecting the condition of title to the Property created
by, at the request of or with the written consent of Buyer.
7.2 TITLE PROVIDED BY SELLER. The parties agree that (a) except as
specifically provided in the Grant Deed or implied by law, Seller makes no
express or implied warranties regarding the condition of title to the Property,
and (b) Buyer shall rely solely on the Title Policy for protection against any
title defects.
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8. CONDITIONS TO THE CLOSE OF ESCROW:
8.1 CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. The following conditions
must be satisfied not later the earlier of the Closing Date or such other period
of time as may be specified below:
8.1.1 TITLE. As of the Closing, the Title Company will issue or have
committed to issue to Buyer the Title Policy described in Section 11.
8.1.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. Seller
will have duly performed each and every agreement to be performed by
Seller hereunder and, subject to the provisions of Section 10, Seller's
express representations and warranties set forth in this Agreement will
be true and correct in all material respects as of the Closing Date.
However, notwithstanding anything to the contrary stated or implied in
this Section 8.1.2, Seller shall have no liability for the breach of any
representations, warranties or covenants set forth in this Agreement,
whether express or implied, absent a finding by a court of competent
jurisdiction that either Xxxxx Xxxxxx or Xxxxx X. Xxxx or both of them
withheld information with respect thereto from Buyer or falsified
information delivered to and relied upon by Buyer and that such action
amounted to a violation of a representation or warranty set forth herein.
8.1.3 SELLER'S DELIVERIES. Seller will have delivered the items
described in Section 6.1.
The conditions set forth in this Section 8.1 are solely for the benefit of
Buyer and may be waived only by Buyer. At all times Buyer has the right to
waive any condition. Such waiver or waivers must be in writing to Seller. If
any conditions are not satisfied on or before the Closing Date, and Buyer has
not waived the unsatisfied conditions, Seller will not be deemed to be in
default (unless Seller has breached Sections 8.1.2 or 8.1.3 above) and Buyer's
sole remedy will be to terminate this Agreement.
8.2 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. The Close of Escrow and
Seller's obligations with respect to this transaction are subject to the
following conditions precedent: (a) Buyer's delivery to Escrow Holder on or
before the Closing Date, of the items described in Section 6.2; (b) the approval
of such of Seller's constituents as Seller shall deem necessary or advisable in
its sole and absolute discretion as set forth in Section 9 hereof; (c) Buyer
having duly performed each and every agreement to be performed by Buyer
hereunder; and (d) Buyer's representations, warranties and covenants set forth
in this Agreement, will be true and correct in all material respects as of the
Closing Date. The conditions set forth in this Section 8.2 are solely for the
benefit of Seller and may be waived only by Seller, with such waiver or waivers
to be in writing to Buyer. If any conditions are not satisfied on or before the
Closing Date, and Seller has not waived the unsatisfied conditions, Buyer will
not be deemed to be in default (unless Buyer has breached Sections 8.2(a),
(c) or (d) above) and Seller's sole remedy will be to terminate the Agreement.
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9. APPROVAL OF SELLER'S CONSTITUENTS: Seller shall exercise reasonable
diligence to obtain the approval of this transaction by such of the constituents
of Seller as Seller shall deem necessary or advisable, in its sole and absolute
discretion, and shall notify Buyer and Escrow Holder when such approvals have
been obtained. If Seller is not able to obtain such approvals from such
constituents on or before the date which is ____ days after the Effective Date,
or such later date as is mutually agreed to by Buyer and Seller, then Seller may
cancel this Agreement by notice to Buyer and Escrow Holder given prior to the
end of that time period, and in that event Seller shall pay all title and escrow
cancellation costs. Seller shall indemnify and hold Buyer harmless from any
claim, damage, loss, liability, action, settlement, including Buyer's reasonable
attorneys' fees suffered by Buyer and which results from or relates to the
Seller's securing approval of this transaction and transferring the Property to
Buyer pursuant to such approval.
10. PROPERTY "AS-IS":
10.1 NO SIDE AGREEMENTS OR REPRESENTATIONS; AS-IS PURCHASE. BUYER
REPRESENTS, WARRANTS AND COVENANTS TO SELLER THAT BUYER HAD THE OPPORTUNITY TO
INDEPENDENTLY AND PERSONALLY INSPECT THE PROPERTY AND IMPROVEMENTS, IF ANY, AND
THAT BUYER HAS ENTERED INTO THIS AGREEMENT AFTER HAVING MADE SUCH PERSONAL
EXAMINATION AND INSPECTION. BUYER AGREES THAT BUYER WILL ACCEPT THE PROPERTY,
IN ITS THEN CONDITION AS-IS AND WITH ALL ITS FAULTS, INCLUDING WITHOUT
LIMITATION, ANY FAULTS AND CONDITIONS SPECIFICALLY REFERENCED IN THIS AGREEMENT,
SUBJECT TO THE EXPRESS COVENANTS, INDEMNITIES, REPRESENTATIONS AND WARRANTIES
MADE BY SELLER ELSEWHERE HEREIN. NO PERSON ACTING ON BEHALF OF SELLER IS
AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF, BUYER ACKNOWLEDGES AND AGREES THAT,
EXCEPT FOR THOSE REPRESENTATIONS, WARRANTIES, COVENANTS, INDEMNITIES AND
AGREEMENTS EXPRESSLY MADE BY SELLER IN THIS AGREEMENT, SELLER HAS NOT MADE, DOES
NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO:
(A) THE VALUE OF THE PROPERTY OR THE INCOME TO BE DERIVED
THEREFROM;
(B) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON, INCLUDING ANY
DEVELOPMENT OF THE PROPERTY;
(C) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY;
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(D) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR
OF THE PROPERTY;
(E) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY,
INCLUDING WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY;
(F) THE TYPE, AVAILABILITY OR COST OF ANY ENTITLEMENTS
REQUIRED TO DEVELOP THE PROPERTY;
(G) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY;
(H) THE MANNER, CONDITION OR QUALITY OF THE CONSTRUCTION OR
MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY;
(I) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION
OR LAND USE LAWS, RULES, REGULATION, ORDERS OR REQUIREMENTS, INCLUDING
BUT NOT LIMITED TO, THE ENDANGERED SPECIES ACT, TITLE III OF THE
AMERICANS WITH DISABILITIES ACT OF 1990 OR ANY OTHER LAW, RULE OR
REGULATION GOVERNING ACCESS BY DISABLED PERSONS, CALIFORNIA HEALTH &
SAFETY CODE, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL
RESOURCE CONSERVATION AND RECOVERY ACT, THE U.S. ENVIRONMENTAL
PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF
1980, AS AMENDED, THE RESOURCES CONSERVATION AND RECOVERY ACT OF 1976,
THE CLEAN WATER ACT, THE SAFE DRINKING WATER ACT, THE HAZARDOUS
MATERIALS TRANSPORTATION ACT, THE TOXIC SUBSTANCE CONTROL ACT, AND
REGULATIONS PROMULGATED UNDER ANY OF THE FOREGOING;
(J) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON,
UNDER, OR ADJACENT TO THE PROPERTY;
(K) THE CONTENT, COMPLETENESS OR ACCURACY OF ANY MATERIALS,
INCLUDING ANY INFORMATIONAL PACKAGE, COST TO COMPLETE ESTIMATE OR
OTHER MATERIALS PREPARED BY OR ON BEHALF OF SELLER;
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(L) THE CONFORMITY OF THE IMPROVEMENTS TO ANY PLANS OR
SPECIFICATIONS FOR THE PROPERTY, INCLUDING ANY PLANS AND
SPECIFICATIONS THAT MAY HAVE BEEN OR MAY BE PROVIDED TO BUYER;
(M) THE CONFORMITY OF THE PROPERTY TO PAST, CURRENT OR
FUTURE APPLICABLE ZONING OR BUILDING REQUIREMENTS;
(N) DEFICIENCY OF ANY UNDERSHORING;
(O) DEFICIENCY OF ANY DRAINAGE;
(P) THE FACT THAT ALL OR A PORTION OF THE PROPERTY MAY BE
LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE OR LOCATED IN AN
XXXXXXX-XXXXXX SPECIAL STUDY ZONE;
(Q) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING
ENTITLEMENTS AFFECTING THE PROPERTY;
(R) ANY AND ALL REQUIREMENTS OR CONDITIONS OF APPROVAL OF
STATE AND LOCAL GOVERNMENTAL AGENCIES FOR DEVELOPMENT OF THE PROPERTY
INCLUDING, WITHOUT LIMITATION, THE CONSTRUCTION OF OFFSITE AND ONSITE
ROADS, UTILITIES AND OTHER IMPROVEMENTS; OR
(S) WITH RESPECT TO ANY OTHER MATTER CONCERNING THE
PROPERTY EXCEPT AS MAY BE OTHERWISE EXPRESSLY STATED HEREIN, INCLUDING
ANY AND ALL SUCH MATTERS REFERENCED, DISCUSSED OR DISCLOSED IN ANY
DOCUMENTS DELIVERED BY SELLER TO BUYER, IN ANY PUBLIC RECORDS OF ANY
GOVERNMENTAL AGENCY OR ENTITY OR UTILITY COMPANY, OR IN ANY OTHER
DOCUMENTS AVAILABLE TO BUYER.
(T) BUYER FURTHER ACKNOWLEDGES AND AGREES THAT BUYER
IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND ITS OWN
REVIEW OF ALL INFORMATION AND DOCUMENTATION CONCERNING THE PROPERTY,
AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION MADE
AVAILABLE TO BUYER OR PROVIDED OR TO BE PROVIDED BY OR ON BEHALF OF
SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF
SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO
THE
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ACCURACY OR COMPLETENESS OF SUCH INFORMATION EXCEPT AS MAY
OTHERWISE BE PROVIDED HEREIN. BUYER AGREES TO FULLY AND
IRREVOCABLY RELEASE ALL SUCH SOURCES OF INFORMATION AND PREPARERS
OF INFORMATION AND DOCUMENTATION TO THE EXTENT SUCH SOURCES OR
PREPARERS ARE SELLER, OR ITS EMPLOYEES, OFFICERS, DIRECTORS,
REPRESENTATIVES, BENEFICIARIES, INVESTORS, AGENTS, SERVANTS,
ATTORNEYS, AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, SUCCESSORS
OR ASSIGNS FROM ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING
FROM SUCH INFORMATION OR DOCUMENTATION, EXCEPT IF AND TO THE EXTENT
THAT BUYER EMPLOYS SUCH SOURCES OR PREPARERS OF INFORMATION TO ACT
ON BEHALF OF BUYER, IN WHICH EVENT THE LIABILITY OF SUCH SOURCES OR
PREPARERS OF INFORMATION TO BUYER SHALL BE DETERMINED BY THEIR OWN
INDEPENDENT AGREEMENTS WITH BUYER, AND SELLER SHALL NOT BE LIABLE
FOR SUCH AGREEMENTS OR OBLIGATIONS. SELLER IS NOT LIABLE OR BOUND
IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF,
FURNISHED BY ANY OF THE FOREGOING ENTITIES AND INDIVIDUALS OR ANY
OTHER INDIVIDUAL OR ENTITY.
10.2 DISCLOSURES; SPECIFIC ACKNOWLEDGMENT REGARDING CONDITION OF
PROPERTY. Buyer acknowledges the disclosures expressly made by Seller in this
Agreement, the Prospectus and in correspondence from Seller, its attorneys
and/or its agents to Buyer, its attorneys and/or its agents. Without limiting
the generality of the foregoing, Buyer acknowledges that (a) the County of
Contra Costa has approved a vesting tentative map no. 7562 (the "Vesting
Tentative Map"), which allows for construction of 1,330 single family
residences, an 18-hole golf course, clubhouse, tennis courts, swimming pools,
lakes and channels, parks, wetlands, a school and a fire station on the
Property; and (b) such Vesting Tentative Map expires on April 15, 1999. Seller
makes no representation and warranty as to whether such Vesting Tentative Map
can be extended.
11. TITLE INSURANCE: At the Close of Escrow, the Title Company will
issue to Buyer at Buyer's sole cost and expense an ALTA Standard Coverage Policy
(1990) with coverage in an amount equal to the appraised value of the Real
Property as determined by Buyer in its sole discretion, showing title to the
Real Property vested in Buyer, subject only to the Permitted Exceptions and the
standard printed exceptions and conditions in the policy of title insurance
("TITLE POLICY"). If Buyer elects to obtain any additional endorsements or an
extended coverage policy, the additional premium and costs of survey for the
extended coverage policy and the cost of any endorsements will be at Buyer's
sole cost and expense; however, Buyer's election to obtain an extended coverage
policy will not delay the Closing and Buyer's inability to obtain an extended
coverage policy or any such endorsements will not be deemed to be a failure of
any condition to Closing.
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12. COSTS AND EXPENSES: Buyer will pay the costs of Closing the
transaction as follows:
(a) all premiums for the Title Policy;
(b) all escrow fees and costs;
(c) all city and county documentary transfer taxes;
(d) all document recording charges;
(e) all sales taxes;
(f) one half of all escrow fees and costs;
(g) the entire additional cost of any ALTA extended coverage
title policy, the cost of any required survey and, the cost of any
endorsements required by Buyer; and
(h) All other costs and expenses necessarily incurred to
close the transaction.
13. DISBURSEMENTS AND OTHER ACTIONS:
13.1 ESCROW HOLDER. At the Close of Escrow, Escrow Holder will
promptly undertake all of the following:
(a) Cause the Grant Deed (with documentary transfer tax
information to be affixed AFTER recording) to be recorded with the
County Recorder and obtain conformed copies thereof for distribution to
Buyer and Seller.
(b) Direct the Title Company to issue the Title Policy to
Buyer within 15 BUSINESS DAYS after Closing.
(c) Deliver to Buyer the FIRPTA Certificate, the Form 590 and
any other documents (or copies thereof) deposited into Escrow by Seller.
Deliver to Seller any other documents (or copies thereof) deposited
into Escrow by Buyer.
(d) Notify the Transfer Agent by telephone and facsimile that
the Close of Escrow has occurred.
13.2 BY TRANSFER AGENT. Promptly after the Close of Escrow, Transfer
Agent shall deliver all Units in payment of the Exchange Value for the Property
to the persons, at the addresses and in the amounts designated by Seller.
13.3 POSSESSION. Possession of the Other Assets in Seller's possession or
control and all other Property shall be delivered by Seller to Buyer at the
Close of Escrow.
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14. JOINT REPRESENTATIONS AND WARRANTIES: In addition to any express
agreements of the parties contained herein, the following constitute
representations and warranties of the parties each to the other, provided
that liability for any breach is subject to Sections 8.1.2 and 23.13 hereof:
14.1 AUTHORITY. Each party has the legal power, right and authority to
enter into this Agreement and the instruments referenced herein, and to
consummate this transaction.
14.2 ACTIONS. All requisite action (corporate, trust, partnership or
otherwise) has been taken by each party in connection with the entering into
of this Agreement, the instruments referenced herein, and the consummation of
this transaction. Except as provided in Section 9, no further consent of any
partner, shareholder, creditor, investor, judicial or administrative body,
governmental authority or other party is required.
14.3 DUE EXECUTION. The individuals executing this Agreement and the
instruments referenced herein on behalf of each party and the partners,
officers or trustees of each party, if any, have the legal power, right, and
actual authority to bind each party to the terms and conditions of those
documents.
14.4 VALID AND BINDING. This Agreement and all other documents
required to close this transaction are and will be valid, legally binding
obligations of and enforceable against each party in accordance with their
terms, subject only to applicable bankruptcy, insolvency, reorganization,
moratorium laws or similar laws or equitable principles affecting or limiting
the rights of contracting parties generally.
14.5 BROKER. Seller represents and warrants to Buyer, and Buyer
represents and warrants to Seller, that no broker or finder has been engaged
by them, respectively, in connection with any of the transactions
contemplated by this Agreement, or to its knowledge is in any way connected
with any of such transactions. Buyer will indemnify, save harmless and
defend Seller from any liability, cost, or expense arising out of or
connected with any claim for any commission or compensation made by any
person or entity claiming to have been retained or contacted by Buyer in
connection with this transaction. Seller will indemnify, save harmless and
defend Buyer from any liability, cost, or expense arising out of or connected
with any claim for any commission or compensation made by any person or
entity claiming to have been retained or contacted by Seller in connection
with this transaction. This indemnity provision will survive the Closing or
any earlier termination of this Agreement.
15. SELLER'S WARRANTIES AND REPRESENTATIONS: Seller makes the
following representations, and warranties and acknowledges that Buyer will
rely on such representations and warranties in acquiring the Property;
provided that liability for any breach is subject to to Sections 8.1.2 and
23.13 hereof:
15.1 NON-FOREIGN ENTITY. Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Internal Revenue Code.
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15.2 HAZARDOUS SUBSTANCES. To Seller's Actual Knowledge, since the
date of Seller's acquisition of the Property, no Hazardous Substances are now
or have been used, stored, generated or disposed of on or within the Property
except in the normal course of use and operation of the Property and in
compliance with all applicable Environmental Laws.
15.3 CLEAN-UP. To Seller's Actual Knowledge, since the date of
Seller's acquisition of the Property, there are and have been no federal,
state or local enforcement, clean-up, removal, remedial or other governmental
or regulatory actions instituted or completed affecting the Property, other
than such other matters as may otherwise be disclosed in any Environmental
Audit or in any other documents provided or made available to Buyer.
15.4 CLAIMS. To Seller's Actual Knowledge, there are no outstanding
claims that have been made by any third party against Seller relating to any
Hazardous Substances on or within the Property.
The provisions of this Section 15 shall no longer bind Seller if
this Agreement expires or is terminated for any reason, or if the Closing
contemplated hereunder does not occur.
16. PRE-CLOSING COVENANTS. So long as this Agreement remains in full
force and effect:
16.1 NO TRANSFERS. Without the prior written consent of Buyer, Seller
will not convey any interest in the Property and will not subject the
Property to any additional liens, encumbrances, covenants, conditions,
easements, rights of way or similar matters after the date of this Agreement,
except as may be otherwise provided for in this Agreement, which will not be
eliminated prior to the Close of Escrow.
16.2 NO ALTERATIONS. Seller will not make any material alterations to
the Property without Buyer's consent, which will not be unreasonably withheld
or delayed.
16.3 MAINTENANCE. Seller will maintain the Property in substantially
the same condition as it is in, as of the date of this Agreement, and manage
the Property in accordance with Seller's established practices.
16.4 OBLIGATIONS UNDER CONTRACTS. Seller will keep and perform all of
the obligations to be performed by Seller under any contracts affecting the
Property. Without prior written consent of Buyer, which will not be
unreasonably withheld or delayed, Seller will not enter into any contract or
agreement providing for the provision of goods or services to or with respect
to the Property or the operation thereof unless such contracts or agreements
can be terminated without penalty by the Closing Date. Seller will not enter
into any leases for any portion of the Property.
16.5 EXPENDITURES. Seller will incur only expenditures necessary for
the day-to-day operation and maintenance of the Property, and will not incur
capital expenditures or liabilities
15
not in the ordinary course of business. Seller shall retain all Other Assets
in Seller's possession on or after the date hereof except for payment of such
permitted liabilities and expenditures.
17. CONDEMNATION AND DESTRUCTION:
17.1 EMINENT DOMAIN OR TAKING. If proceedings under a power of eminent
domain relating to the Property or any part thereof are commenced prior to
Close of Escrow, Seller will promptly inform Buyer in writing.
(a) If such proceedings involve the taking of title to all or a
material interest in the Property, Buyer may elect to terminate this
Agreement by notice in writing sent within 10 DAYS of Seller's written
notice to Buyer, in which case neither party will have any further
obligation to or rights against the other except any rights or
obligations of either party which are expressly stated to survive
termination of this Agreement.
(b) If the proceedings do not involve the taking of title to
all or a material interest in the Property, or if Buyer does not elect
to terminate this Agreement, this transaction will be consummated as
described herein and any award or settlement payable with respect to
such proceeding will be paid or assigned to Buyer upon Close of Escrow.
(c) If this sale is not consummated for any reason, any condemnation
award or settlement will belong to Seller.
17.2 DAMAGE OR DESTRUCTION. Except as provided in this Section,
prior to the Close of Escrow the entire risk of loss of damage by
earthquake, flood, landslide, fire or other casualty is borne and
assumed by Seller. If, prior to the Close of Escrow, any part of the
Improvements is damaged or destroyed by earthquake, flood, landslide,
fire or other casualty, Seller will promptly inform Buyer of such fact
in writing and advise Buyer as to the extent of the damage and whether
it is, in Seller's reasonable opinion, "MATERIAL" or not "MATERIAL".
(a) If such damage or destruction is "MATERIAL", Buyer has
the option to terminate this Agreement upon written notice to the Seller
given not later than 10 DAYS after receipt of Seller's written notice to
Buyer advising of such damage or destruction.
(b) For purposes hereof, "MATERIAL" is deemed to be any
damage or destruction to the Improvements where the cost of repair or
replacement is estimated to be more than 25% of the Exchange Value of
the Property and will take more than 60 DAYS to repair.
(c) If this Agreement is so terminated, the provisions of Section 5
will govern.
(d) If Buyer does not elect to terminate this Agreement, or
if the casualty is not material, Seller will reduce the Exchange Value
by the value reasonably estimated by Seller to repair or restore the
damaged portion of the Improvements, less any sums expended by Seller to
make emergency repairs to the Improvements or the Property or otherwise
protect
16
the physical condition of the Improvements or the Property, and this
transaction will close pursuant to the terms of this Agreement.
(e) If the damage is not material, Seller's notice to Buyer
of the damage or destruction will also set forth Seller's reduced
Exchange Value and Seller's allocation of value to the damaged portion
of the Improvements. If Buyer does not accept Seller's reduced Exchange
Value, Buyer's sole remedy will be to terminate this Agreement.
(f) Whether or not the sale of the Property is consummated
hereunder, all rights to insurance claims or proceeds in respect of
damage or destruction to the Improvements occurring prior to the Close
of Escrow will belong to Seller.
18. UTILITIES AND DEPOSITS:
18.1 UTILITIES. Seller will notify all utility companies
servicing the Property of the sale of the Property to Buyer and will
notify the utility companies that all utility bills henceforth are to be
sent to Buyer. Buyer shall be entitled to receive any and all refunds
of all utility deposits held by utility companies and Seller will assign
to Buyer all of Seller's right, title and interest in any such utility
deposits.
18.2 REFUNDABLE DEPOSITS. To the extent there exists any refundable
deposits made in connection with the development of the Property prior to the
Closing ("Refundable Deposits"), Seller shall assign to Buyer all of Seller's
right, title and interest in and to such Refundable Deposits.
19. MEDIATION OF DISPUTES: No party to this Agreement shall initiate
any litigation against any other party to this Agreement concerning any
controversy or claim arising out of or relating to this Agreement or any
agreements or instruments relating hereto or delivered in connection
herewith, including, but not limited to, any claim based on or arising from
an alleged tort, unless and until (i) at least 60 days before the same shall
be filed, a complete copy of each of the summons and complaint (and/or any
other documentation required to initiate such litigation) to be filed by the
complaining party shall have been delivered to the other party or parties to
any such dispute, and (ii) the complaining party has made itself available to
meet in Los Angeles, California with the other party or parties for no more
than 3 business days of non-binding mediation. Until and unless such
mediation has taken place, the complaining party must give notice to the
non-complaining party that it will, and then it must, make itself available
for such mediation during at least 20 business days during the 60 days before
the date on which such summons and complaint will be filed.
20. ARBITRATION OF DISPUTES: ANY CONTROVERSY OR CLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY AGREEMENTS OR INSTRUMENTS RELATING
HERETO OR DELIVERED IN CONNECTION HEREWITH, INCLUDING, BUT NOT LIMITED TO A
CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT WILL, AT THE REQUEST OF ANY
PARTY, BE DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (9 U.S.C. SECTION 1 ET
17
SEQ.) UNDER THE AUSPICES AND RULES OF THE AMERICAN ARBITRATION ASSOCIATION
("AAA"). THE AAA WILL BE INSTRUCTED BY EITHER OR BOTH PARTIES TO PREPARE A
LIST OF THREE (3) JUDGES WHO HAVE RETIRED FROM THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA, A HIGHER CALIFORNIA COURT OR ANY FEDERAL COURT. WITHIN
10 DAYS OF RECEIPT OF THE LIST, EACH PARTY MAY STRIKE 1 NAME FROM THE LIST.
THE AAA WILL THEN APPOINT THE ARBITRATOR FROM THE NAME(S) REMAINING ON THE
LIST. THE ARBITRATION WILL BE CONDUCTED IN SAN FRANCISCO, LOS ANGELES OR SAN
DIEGO, WHICHEVER IS THE CLOSEST CITY TO THE NEXUS OF THE DISPUTE. ANY
CONTROVERSY IN INTERPRETATION OR ENFORCEMENT OF THIS PROVISION OR WHETHER A
DISPUTE IS ARBITRABLE, WILL BE DETERMINED BY THE ARBITRATOR. JUDGMENT UPON
THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. THE INSTITUTION AND MAINTENANCE OF AN ACTION FOR JUDICIAL
RELIEF OR IN PURSUIT OF AN ANCILLARY REMEDY DOES NOT CONSTITUTE A WAIVER OF
THE RIGHT OF ANY PARTY, INCLUDING THE PLAINTIFF, TO SUBMIT THE CONTROVERSY OR
CLAIM TO ARBITRATION.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES'
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND
YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED
IN A COURT OR BY JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING
UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL UNLESS SUCH RIGHTS ARE
SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU
REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE
COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES'
PROVISION TO NEUTRAL ARBITRATION.
Buyer's Initials ________ Seller's Initials _________
21. NOTICES: All notices or other communications required or
permitted hereunder must be in writing, and must be personally delivered
(including by means of professional messenger service) or sent by overnight
courier, or sent by registered or certified mail, postage prepaid, return
receipt requested to the addresses set forth in Section 1 hereof. All
notices sent by mail will be deemed received 2 DAYS after the date of mailing
and all notices sent by other means permitted herein shall be deemed received
on the earlier of the date delivered or the date on which delivery is refused.
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22. ASSIGNMENT: Neither party shall have the right to assign this
Agreement without the other party's prior written consent.
23. MISCELLANEOUS:
23.1 COUNTERPARTS. This Agreement may be executed in counterparts.
23.2 PARTIAL INVALIDITY. If any term or provision of this
Agreement will be deemed to be invalid or unenforceable to any extent, the
remainder of this Agreement will not be affected thereby, and each remaining
term and provision of this Agreement will be valid and be enforced to the
fullest extent permitted by law.
23.3 POSSESSION OF THE PROPERTY. Seller will deliver possession of
the Property to Buyer upon the Close of Escrow.
23.4 WAIVERS. No waiver of any breach of any covenant or provision
contained herein will be deemed a waiver of any preceding or succeeding
breach thereof, or of any other covenant or provision contained herein. No
extension of time for performance of any obligation or act will be deemed an
extension of the time for performance of any other obligation or act except
those of the waiving party, which will be extended by a period of time equal
to the period of the delay.
23.5 SUCCESSORS AND ASSIGNS. This Agreement is binding upon and
inures to the benefit of the permitted successors and assigns of the parties
hereto.
23.6 PROFESSIONAL FEES. In the event of the bringing of any
action, arbitration or suit by a party hereto against another party hereunder
by reason of any breach of any of the covenants, agreements or provisions on
the part of the other party arising out of this Agreement, then in that event
the prevailing party will be entitled to have the recovery of and from the
other party all costs and expenses of the action, mediation or suit, actual
attorneys' fees, witness fees and any other professional fees resulting
therefrom.
23.7 ENTIRE AGREEMENT. This Agreement (including all Exhibits
attached hereto) constitutes the entire contract between the parties hereto
with respect to the subject matter hereof and may not be modified except by
an instrument in writing signed by the party to be charged.
23.8 TIME OF ESSENCE. Seller and Buyer hereby acknowledge and
agree that time is strictly of the essence with respect to each and every
term, condition, obligation and provision hereof.
23.9 CONSTRUCTION. Seller and Buyer and their respective advisors
believe that this Agreement is the product of all of their efforts, that it
expresses their agreement and that it should not be interpreted in favor of
or against either Buyer or Seller. The parties further agree that this
Agreement will be construed to effectuate the normal and reasonable
expectations of a sophisticated seller and buyer.
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23.10 GOVERNING LAW. The parties hereto expressly agree that this
Agreement will be governed by, interpreted under, and construed and enforced
in accordance with the laws of the State of California.
23.11 WEAR AND TEAR. Buyer specifically acknowledges that
Seller will continue to use the Property in the course of its business and
accepts the fact that reasonable wear and tear will occur after the date of
this Agreement. Buyer specifically agrees that Seller is not responsible for
repairing such reasonable wear and tear and that Buyer is prohibited from
raising such wear and tear as a reason for not consummating this transaction
or for requesting a reduction in the Exchange Value.
23.12 NO RECORDATION. No memorandum or other document relating
to this Agreement will be recorded without the prior written consent of
Seller, and any such consent or approval will be conditioned upon Buyer
providing Seller with a quitclaim deed fully executed and acknowledged by
Buyer, quitclaiming any and all interests that it may have in the Property to
Seller, which quitclaim deed Seller may record in the event that this
Agreement is terminated or the transaction contemplated herein is not
consummated.
23.13 SURVIVAL. All obligations of the parties contained
herein which by their terms do not arise until after the Close of Escrow and
any other provisions of this Agreement which by their terms survives the
Close of Escrow, shall survive the Close of Escrow. Notwithstanding anything
to the contrary contained in this Agreement, the representations and
warranties contained in this Agreement shall survive the Closing for a period
of 1 year; provided that any claims by one party hereto must be made in
writing to the other party within the 1 year period.
23.14 DISCLAIMER. Nothing herein creates any right or remedy
for the benefit of any person not a party hereto, nor creates a fiduciary
relationship, an agency or a partnership.
23.15 WAIVER OF JURY TRIAL. EACH PARTY, ACTING WITH KNOWLEDGE
OF ITS RIGHTS AFTER A FULL OPPORTUNITY TO CONSULT WITH COUNSEL, VOLUNTARILY
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ALL PROCEEDINGS FOR WHICH A TRIAL BY
JURY WOULD OTHERWISE BE AVAILABLE OR REQUIRED, AND WHICH INVOLVE ANY MATTER
ARISING OUT OF OR CONNECTED WITH RIGHTS OR DUTIES UNDER, OR ENFORCEMENT OR
INTERPRETATION OF, THIS AGREEMENT.
20
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year hereinabove written.
"SELLER": "BUYER":
NATIONAL INVESTORS FINANCIAL, CYPRESS LAKES, INC.,
INC., a California corporation, AS TRUSTEE a California corporation
for NATIONAL INVESTORS LAND
HOLDING TRUST ___
By: By:
------------------------------- ---------------------------
Its: Its:
------------------------------- ---------------------------
and and
By: By:
------------------------------- ---------------------------
Its: Its:
------------------------------- ---------------------------
Agreed to and accepted
by Escrow Holder:
By:
-------------------------------
Its:
-------------------------------
21
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
FORM OF DEED
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
Xxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxx, Esq.
----------------------------------------------------------------------------
(Above Space For Recorder's Use Only)
GRANT DEED
In accordance with Section 11932 of the California Revenue and Taxation
Code, Grantor has declared the amount of transfer tax which is due by a separate
statement which is not being recorded with this Grant Deed.
FOR A VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED,
NATIONAL INVESTORS FINANCIAL, INC., a CALIFORNIA corporation, AS TRUSTEE for
NATIONAL INVESTORS LAND HOLDING TRUST ("Grantor"), hereby grants to CYPRESS
LAKES, INC., a California corporation ("Grantee"), the real property in the
County of Contra Costa, State of California, and described in EXHIBIT A attached
hereto and made a part hereof.
DATED: , 1998
-------------------
NATIONAL INVESTORS FINANCIAL, INC., a California
corporation, AS TRUSTEE for NATIONAL INVESTORS
LAND HOLDING TRUST __
By:
---------------------------------
Its:
---------------------------------
By:
---------------------------------
Its:
---------------------------------
-------------
MAIL TAX STATEMENTS TO:
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
---------------
On ____________________, before me, _____________________________________,
personally appeared ______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
-------------------------------
Notary Public in and for said
County and State [SEAL]
Document No. ____________________ Date Recorded_________________
STATEMENT OF TAX DUE AND REQUEST THAT TAX DECLARATION
NOT BE MADE A PART OF THE PERMANENT RECORD
IN THE OFFICE OF THE COUNTY RECORDER
(Pursuant to Section 11932 R&T Code)
To: Registrar-Recorder
County of
-------------------
Request is hereby made in accordance with the provisions of the Documentary
Transfer Tax Act that the amount of tax due not be shown on the original
document which names:
-----------------------------------------
(as grantor)
and
-----------------------------------------
(as grantee)
Property described in the accompanying document is located in
( ) unincorporated area or (x) City of ____________________.
The amount of tax due on the accompanying document is $_______________.
____ Computed on full value of property conveyed, or
____ Computed on full value less liens and encumbrances remaining at time
of sale.
--------------------------------
--------------------------------
By:
---------------------------
Its:
---------------------------
EXHIBIT C
Seller's FIRPTA Affidavit
CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee
of a U.S. real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding of tax is not
required upon the disposition of a U.S. real property interest by NATIONAL
INVESTORS FINANCIAL, INC., a California corporation, AS TRUSTEE for NATIONAL
INVESTORS LAND HOLDING TRUST ____ ("TRANSFEROR"), each of the undersigned hereby
certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust and foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Transferor's U.S. employer identification number is __________;
and
3. Transferor's office address is________________________________,
___________________.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment or both.
Under penalties of perjury each of the undersigned declares that he
has examined this certification and to the best of his knowledge and belief it
is true, correct and complete, and he further declares that he has authority to
sign the document on behalf of the Transferor.
NATIONAL INVESTORS FINANCIAL, INC., a
California corporation, AS TRUSTEE for
NATIONAL INVESTORS LAND HOLDING TRUST ___
By:
--------------------------------
Its:
-------------------------------
By:
--------------------------------
Its:
-------------------------------
EXHIBIT D
ASSIGNMENT AND ASSUMPTION
OF
AGREEMENTS
THIS ASSIGNMENT AND ASSUMPTION OF AGREEMENTS (this "Assignment") is
executed as of ______________, but effective as of the Effective Date (as
hereinafter defined), by and between NATIONAL INVESTORS FINANCIAL, INC., a
California corporation, AS TRUSTEE for NATIONAL INVESTORS LAND HOLDING TRUST
___ ("Assignor"), and CYPRESS LAKES, INC., a California corporation
("Assignee"), with reference to the following facts:
RECITALS:
A. Assignor, as the agent of and for the benefit of various
investors, holds title to that certain real property commonly known as "Cypress
Lakes and Country Club", located in the County of Contra Costa, State of
California, as more particularly described on Exhibit "A" attached hereto and
incorporated herein by reference (the "Property").
B. Concurrently herewith, Assignor has executed that certain Grant
Deed conveying and granting to Assignee the Property.
C. As part of the transfer and conveyance of the Property to
Assignee, Assignor has agreed to transfer, assign, grant and convey to Assignee
all of its right, title and interest in and to all agreements relating to the
Property, on the terms and conditions herein contained.
NOW, THEREFORE, in consideration of the foregoing Recitals, which
Recitals are by this reference incorporated herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. ASSIGNMENT. Assignor hereby grants, assigns, transfers, sets
over, sells, conveys and delivers to Assignee all of Assignor's right, title,
interest, benefits and privileges under the agreements relating to the Property
which are set forth in Exhibit "B" attached hereto and made a part hereof
(collectively, the "Agreements"). The assignment provided for in this Section 1
is effective concurrently with the transfer of the Property from Assignor to
Assignee (the "Effective Date").
2. ASSIGNEE'S ASSUMPTION. Assignee hereby accepts the assignment
from Assignor, assumes and agrees to perform all duties and obligations of
Assignor under the terms of the Agreements which are required to be performed on
or after the Effective Date.
3. DELIVERIES; REPORTS. On or before the Effective Date, Assignor
shall deliver to Assignee the original Agreements or if such original Agreements
are not in Assignor's possession, certified copies of such Agreements. Assignor
shall furnish and deliver to Assignee, promptly after receipt thereof,
duplicates or copies of all reports, notices, requests, demands, declarations,
certificates or other instruments hereafter received by Assignor and relating to
the Agreements. Assignee's address for receipt of the foregoing is____________
______________________________________________________________.
4. FURTHER ASSURANCES. Assignor and Assignee shall execute,
acknowledge and deliver all such instruments and take all such action as may be
necessary to further assure to Assignee the rights assigned hereby and the full
benefits hereof and to preserve and protect this Assignment and all of the
rights, powers and remedies of Assignee provided for herein.
5. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon
and inure to the benefit of the successors and assigns of the respective parties
hereto.
6. GOVERNING LAW. This Assignment shall be governed by, and
construed in accordance with, the laws of the State of California.
7. COUNTERPARTS. This Assignment may be executed in several
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date first above written but effective as of the Effective
Date.
ASSIGNOR: NATIONAL INVESTORS FINANCIAL, INC., a California
corporation, AS TRUSTEE for NATIONAL INVESTORS
LAND HOLDING TRUST ___
By:
----------------------------------
Its:
---------------------------------
By:
----------------------------------
Its:
---------------------------------
ASSIGNEE: CYPRESS LAKES, INC.,
a California corporation
By:
----------------------------------
Its:
---------------------------------
By:
----------------------------------
Its:
---------------------------------
EXHIBIT E
XXXX OF SALE AND GENERAL ASSIGNMENT OF INTANGIBLES
This Xxxx of Sale and General Assignment of Intangibles is made as of
the ____ day of ___________________________, 1998 (this "Assignment"), by
NATIONAL INVESTORS FINANCIAL, INC., a California corporation, AS TRUSTEE for
NATIONAL INVESTORS LAND HOLDING TRUST ___ ("Assignor") to CYPRESS LAKES, INC., a
California corporation ("Assignee").
R E C I T A L
Assignee and Assignor have entered into an Agreement of Purchase and
Sale and Joint Escrow Instructions dated ________, 1998 ("Agreement of Purchase
and Sale") under which Assignee has agreed to purchase from Assignor, that
certain real property and any and all buildings, structures and improvements on
said real property commonly identified as "Cypress Lakes and Country Club",
located in the County of Contra Costa, State of California and legally described
on EXHIBIT A attached hereto (the "Property").
TERMS AND CONDITIONS
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns, transfers and sets over unto Assignee,
its successors and assigns, all personal property of Seller, if any, located on
and used in connection with the operation of the improvements on the Property
(the "Personal Property"). Buyer accepts such Personal Property in its "AS-IS"
condition and "WITH ALL FAULTS". Seller specifically disclaims all express or
implied warranties regarding the existence or condition of, or title to, such
Personal Property, including without limitation the implied warranties of
merchantability and suitability for a particular purpose.
2. Assignor hereby assigns, transfers and sets over unto Assignee,
its successors and assigns, all of its right, title and interest in and to the
following ("General Intangibles") if, and only to the extent, that the General
Intangibles exist and Assignor has the right to so transfer them:
(A) All of Assignor's right, title and interest in and to all
intangible property used, owned or issued solely in connection with the
Property, including but not limited to, all licenses, permits, certificates of
occupancy, approvals, maps, dedications, subdivision maps and entitlements
issued, approved or granted by any governmental agencies or instrumentalities
having any jurisdiction over the Property (the "Authorities") or otherwise in
connection with the Property; all development rights, conditional use permits,
variances, "floor area ratio" development rights and other intangible rights,
titles, interests, privileges and appurtenances owned by Assignor and related to
or issued in connection with the Property and/or its use, occupancy, operation
and/or development; all licenses, consents, easements, rights of way, and
approvals required from private parties to make use of utilities and to insure
vehicular and pedestrian ingress and egress to the Property; and any pending
applications or requests as to any of the foregoing;
(B) All building plans, specifications and drawings,
engineering, and other documents prepared in connection with the construction,
reconstruction, maintenance, repair, or operation any improvements on the
Property (the "Improvements");
(C) All warranties and guarantees relating to the workmanship,
construction, installation materials, and design of the Improvements and the
personal property situated on the Property, including but not limited to those
made by or received from any third party with respect to any building, building
component, structure, fixture, machinery, equipment or material situated on,
contained in any building or other improvement situated on, or comprising a part
of any building or other improvement situated on any part of the Property;
(D) All rights, claims or awards benefiting the Property;
(E) All prepaid fees and fee credits, and all of Seller's right,
title and interest in and to refundable deposits, bonds and other collateral
furnished in connection with development of the Property; and
(F) All rights and general intangibles now owned by Assignor
solely in connection with the Property and any improvement and/or fixture
located on the Property, including, without limitation, the rights to hold, use,
sell and transfer the Property and Improvements and general intangibles.
3. Assignor hereby covenants that it will, at any time and from time
to time upon written request therefor, execute and deliver to Assignee, its
successors and assigns any new or confirmatory instruments and take such further
acts as Assignee may reasonably request to fully evidence the assignment
contained herein and to enable Assignee, its successors and assigns to fully
realize and enjoy the rights and interests assigned hereby.
4. Assignee hereby accepts the foregoing assignment.
5. Assignor hereby represents and warrants to Assignee that it has
not previously assigned or hypothecated its interest in the foregoing described
General Intangibles; however, Assignee shall have no claims or rights against
Assignor, and Assignor shall have no obligation or liability to Assignee for any
General Intangibles described herein which do not exist, or which Assignor does
not have the right to transfer to Assignee.
6. This Assignment shall be binding upon and inure to the benefit of
the legal representatives, assigns, or successors in interest of the Assignor
and Assignee.
IN WITNESS WHEREOF, the Assignor has executed this Assignment as of
_________, 1998.
NATIONAL INVESTORS FINANCIAL, INC.,
a California corporation, AS TRUSTEE
for NATIONAL INVESTORS LAND HOLDING
TRUST ___
By:
----------------------------------
Its:
---------------------------------
By:
----------------------------------
Its:
---------------------------------
