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EXHIBIT 10.22
PURCHASE AND SALE AGREEMENT
WITH ESCROW INSTRUCTIONS
This Agreement for Purchase and Sale Agreement with Escrow Instructions
(this "Agreement") dated November 13, 2000, for identification purposes only, is
made and entered into in Los Angeles County, California, by and between PACIFICA
CALIFORNIA/APOLLO, LLC, a California limited liability company (hereinafter
collectively "Seller"), and SKECHERS USA, INC., a Delaware corporation, or their
assignee(s) under Paragraph 18.6 below (collectively the "Buyer") collectively,
the "Parties" or individually, a "Party."
RECITALS:
A. Seller is the fee owner of certain property located in Los Angeles
County, California, which is legally described on Exhibit A to this Agreement
(the "Property").
B. The Parties wish to enter into this Agreement to provide for the
agreed terms and conditions for the purchase and sale of the Property.
Now, Therefore, Buyer and Seller agree as follows:
1. Definitions. For purposes of this Agreement, the following terms are defined
as follows:
1.1 Agreement. "This Agreement" means this contract including all
Exhibits and amendments to these documents. The following Exhibits are
incorporated by reference:
Exhibit A Legal Description of Property
Exhibit B Escrow Instructions
Exhibit C Form of Deed
Exhibit D General Assignment
Exhibit E Form of Assignment and Assumption Agreement
Exhibit F Tenant Estoppel Statements
Exhibit G Seller's Certificate
Exhibit H Due Diligence Materials
Exhibit I Xxxx of Sale
This Agreement constitutes the contract for purchase and sale of real property
and instructions to the Escrow Holder for the consummation of the Agreement
through the Escrow. If there is any inconsistency or conflict between the terms
of this Agreement and the Escrow Instructions set forth in Exhibit B, the terms
of this Agreement shall control.
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1.2 Buyer. "Buyer" means Skechers USA, Inc., a Delaware corporation,
whose address is 000 Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxxx.
Buyer also means and includes the permitted assignee(s) of Buyer as provided in
Section 18.6.
1.3 Seller. "Seller" means Pacifica California/Apollo, LLC, a California
limited liability company, whose address is c/o Pacifica Capital Group, LLC, 000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxx xxx Xxx, XX 00000. Seller's Taxpayer Identification
Number (TIN) is 00-0000000.
1.4 Property. "Property" means the real property including Seller's
interest, if any, in Improvements thereon consisting of a commercial development
commonly known as 000 X. Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxxx, as
more particularly described on Exhibit "A" attached hereto.
1.5 Escrow Holder. "Escrow Holder" means Chicago Title Company, whose
address is 000 X. Xxxxxx Xx., Xxxxx 000, Xxx Xxxxxxx, XX 00000, Attn: Xxx
Xxxxxxxx.
1.6 Title Company. "Title Company" means Chicago Title Company, whose
address is 000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000, Attn: Xxxx
Xxxxxx.
1.7 Preliminary Title Report. "Preliminary Title Report" means the Title
Report, dated August 14, 2000, and supplements, if any, issued by the Title
Company, in respect to the Property.
1.8 Closing. "Closing" or "Close of Escrow" are terms used
interchangeably in this Agreement. "Close of Escrow" will be deemed to have
occurred when the Deed (as hereafter defined) is recorded in the official
records of the County of Los Angeles. The last date on which the Closing shall
occur is set forth in Section 3.5 unless Buyer requests an early Closing as
provided therein.
1.9 Improvements. "Improvements" means all buildings, permanent
structures, mechanical systems, electrical systems, heating, ventilation and air
conditioning systems, plumbing systems, hydraulic systems, security systems,
driveways, sidewalks, and other hardscape, landscape, sewers and underground
utilities on the Property to be sold with the Property.
1.10 To Seller's Information and Belief. "To Seller's information and
belief" or "to Seller's knowledge" means information actually known to Xxxx
Xxxxxxx, and is based on his actual knowledge.
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1.11. Permits. "Permit" or "Permits" mean and refers to any permit,
approval, authorization, license, variance or permission required from a
governmental authority regarding the Property.
1.12 Claim. "Claim" means any claim or demand by any Person for any
alleged liabilities whether based in contract, tort, implied or express
warranty, strict liability, criminal or civil statute, Permit, ordinance,
regulation, common law, equity or otherwise.
1.13 Person. "Person" means any person, employee, individual,
corporation, unincorporated association, limited liability company, partnership,
trust, federal, state or local governmental agency, authority or other private
or public entity.
1.14 Due Diligence Materials. "Due Diligence Materials" means any of
those documents provided by Seller to Buyer before the Due Diligence Period.
1.15 Due Diligence Period. "Due Diligence Period" means the period
expiring on November 29, 2000, during which period Buyer must complete its due
diligence and satisfy all Buyer contingencies as provided in Section 9 of this
Agreement.
1.16 Effective Date. The "Effective Date" shall be October 30, 2000.
1.17 "Environmental Laws" means all federal, state, local, or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or
requirements of any government authority regulating, relating to, or imposing
liability or standards of conduct concerning any Hazardous Substance, or
pertaining to occupational health or industrial hygiene (and only to the extent
that the occupational health or industrial hygiene laws, ordinances, or
regulations relate to Hazardous Substances on, under, or about the Property),
occupational or environmental conditions on, under, or about the Property, as
now or may at any later time be in effect, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(CERCLA) [42 USCS Sections 9601 et seq.]; the Resource Conservation and Recovery
Act of 1976 (RCRA) [42 USCS Sections 6901 et seq.]; the Clean Water Act also
known as the Federal Water Pollution Control Act (FWPCA) [33 USCS Sections 1251
et seq.]; the Toxic Substances Control Act (TSCA) [15 USCS Sections 2601 et
seq.]; the Hazardous Materials Transportation Act (HMTA) [49 USCS Sections 1801
et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USCS Sections 136 et
seq.]; the Superfund Amendments and Reauthorization Act [42 USCS Sections 6901
et seq.]; the Clean Air Act [42 USCS Sections 7401 et seq.]; the Safe Drinking
Water Act [42 USCS Sections 300f et seq.]; the Solid Waste Disposal Act [42 USCS
Sections 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USCS
Sections 1201 et seq.]; the Emergency Planning and Community Right to Know Act
[42 USCS Sections 11001 et seq.]; the Occupational Safety and Health Act [29
USCS Sections 655, 657]; the California Underground Storage of Hazardous
Substances Act [H & S C Sections 25280 et seq.]; the California Hazardous
Substances Account Act [H & S C Sections 25300 et seq.]; the California
Hazardous Waste Control Act [H & S C Sections 25100
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et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S C
Sections 24249.5 et seq.]; the Xxxxxx-Cologne Water Quality Act [Wat C Sections
13000 et seq.], together with any amendments of or regulations promulgated under
the statutes cited above and any other federal, state, or local law, statute,
ordinance, or regulation now in effect or later enacted which pertains to
occupational health or industrial hygiene (and only to the extent that the
occupational health or industrial hygiene laws, ordinances, or regulations
relate to Hazardous Substances on, under, or about the Property), or the
regulation or protection of the environment, including ambient air, soil, soil
vapor, groundwater, surface water, or land use.
1.18 Hazardous Substances includes without limitation:
1.18.1 Those substances included within the definitions of
hazardous substance, hazardous waste, hazardous material, toxic substance, solid
waste, or pollutant or contaminant in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA) [42 USCS Section 9601 et seq.];
the Resource Conservation and Recovery Act of 1976 (RCRA) [42 USCS Sections 6901
et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control
Act (FWPCA) [33 USCS Sections 1251 et seq.]; the Toxic Substances Control Act
(TSCA) [15 USCS Sections 2601 et seq.]; the Hazardous Materials Transportation
Act (HMTA) [49 USCS Sections 1801 et seq.] or under any other Environmental Law;
1.18.2 Those substances listed in the United States Department of
Transportation (DOT) Table [49 CFR Section 172.101], or by the Environmental
Protection Agency (EPA), or any successor agency, as hazardous substances [40
CFR Part 302];
1.18.3 Other substances, materials, and wastes which are or become
regulated or classified as hazardous or toxic under federal, state, or local
laws or regulations; and
1.18.4 Any material, waste, or substance which is (i) a petroleum
or refined petroleum product, (ii) asbestos, (iii) polychlorinated biphenyl,
(iv) designated as a hazardous substance pursuant to 33 USCS Section 1321 or
listed pursuant to 33 USCS Section 1317, (v) a flammable explosive, or (vi) a
radioactive material.
1.19 Additional Definitions. This Agreement provides additional
definitions of certain words and phrases related to the terms and conditions as
specified in various Sections of the Agreement.
2. General Representations
2.1 Status of Seller. Seller represents that: (i) Seller is a duly
organized and existing limited liability company existing and in good standing
under the laws of the State of California and is qualified to do business in the
State of California; (ii) the individuals signing this Agreement are authorized
to sign this Agreement on behalf of
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the Seller; and (iii) no other or additional action is required to authorize
the sale of the Property.
2.2 Status of Buyer. Buyer represents that (i) it is a Delaware
corporation, existing and in good standing and qualified to do business under
the laws of the State of California; (ii) the persons executing this Agreement
are authorized to sign this Agreement on behalf of Buyer; and (iii) the purchase
of the Property in accordance with the terms of this Agreement has been validly
authorized by Buyer.
2.3 Joint Representation. Seller and Buyer represent and agree that
nothing contained in this Agreement is intended to create or shall be deemed a
joint venture, partnership, or principal and agent business relationship.
3. Purchase and Sale.
3.1 Agreement for Purchase and Sale. Seller hereby agrees to sell and
Buyer hereby agrees to purchase the Property for the price and on all terms and
conditions of this Agreement.
3.2 Purchase Price. The Purchase Price for the Property is Fourteen
Million Five Hundred Thousand and No/100 Dollars ($14,500,000.00) payable by
bank wire transfer in immediately available funds to Seller upon Close of
Escrow. Upon Closing, the Purchase Price Deposit (defined below) plus all
interest accrued on the Purchase Price Deposit shall apply to the payment of the
Purchase Price.
3.3 Purchase Price Deposit. Within two (2) business days after signing
this Agreement and subject to Buyer's right to terminate this Agreement as
provided in Section 9, Buyer shall deliver to the Escrow Holder Two Hundred
Fifty Thousand and No/100 Dollars ($250,000.00) (the "Purchase Price Deposit")
by a bank cashier's check or by federal wire transfer in immediately available
funds.
3.3.1 Payment of Purchase Price Deposit. If Buyer breaches the
Agreement after the expiration of the Due Diligence Period (provided that Buyer
has not terminated the Agreement before the expiration of the Due Diligence
Period) and the transaction contemplated hereby does not close as a result of
such breach, then the total Purchase Price Deposit plus accrued interest shall
be non-refundable to Buyer and shall be payable to Seller as liquidated damages.
If this transaction is consummated in accordance with the terms of this
Agreement, the total amount of such deposit plus accrued interest shall be
applied in full towards payment of the Purchase Price at the Close of Escrow.
All funds deposited in Escrow shall earn interest until paid out as liquidated
damages or credited to payment of the Purchase Price at the Close of Escrow.
Time is of the essence for deposit of the Purchase Price Deposit.
3.4 Opening of Escrow. Within two (2) business days after the full
execution of this Agreement, the Parties shall open an escrow (the "Escrow")
with Escrow Holder. The delivery of: (i) the Purchase Price Deposit by Buyer to
the
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Escrow Holder; and (ii) a fully signed copy of this Agreement including
Exhibits to Escrow Holder, shall constitute opening the Escrow in accordance
with this Agreement including the escrow instructions provided in Exhibit B.
3.5 Close of Escrow. Close of Escrow shall occur on a date no later than
thirty (30) days after the end of the Due Diligence Period (the "Closing
Deadline"). The parties agree that Buyer may request an earlier Closing subject
to at least ten (10) business days prior written notice to Seller of Buyer's
intent to Close effective as of the date specified in the notice.
3.5.1 Extension of Close of Escrow. Buyer shall have a one-time
right to extend the Closing Date for up to thirty (30) days by notifying Seller
and Escrow Holder in writing of such election at least five (5) business days
prior to the Closing Deadline (the "EXTENSION NOTICE"), provided that
concurrently with Buyer's delivery to Seller and Escrow Holder of the Extension
Notice and as a condition to such extension, Buyer shall deposit into Escrow the
additional sum of Fifty Thousand Dollars ($50,000) (the "ADDITIONAL Deposit").
The Additional Deposit shall be immediately disbursed by Escrow Holder to Seller
and such Additional Deposit shall not be refundable to Buyer. Upon Closing, the
Additional Deposit plus all interest accrued thereon shall apply to the payment
of the Purchase Price.
4. Property Sales Condition.
4.1 "As Is" Sale. Buyer agrees and acknowledges that except for and
subject to the express representations and warranties provided in this
Agreement, Buyer acknowledges and agrees that (I) THE PROPERTY IS SOLD "AS IS",
"WHERE IS", AND "WITH ALL FAULTS" IN ITS CONDITION AS OF THE CLOSE OF ESCROW
WITHOUT ANY REPRESENTATION OR WARRANTY REGARDING ITS CONDITION, FITNESS FOR ANY
PARTICULAR PURPOSE, MERCHANTABILITY, OR COMPLIANCE WITH GOVERNMENTAL LAWS,
ORDINANCES OR REGULATIONS, OR WITH ANY OTHER WARRANTY, EXPRESS OR IMPLIED BY LAW
OR OTHERWISE; (II) BUYER SHALL PURCHASE THE PROPERTY BASED SOLELY ON BUYER'S OWN
INDEPENDENT INVESTIGATION AND INSPECTION OF THE PROPERTY AND IMPROVEMENTS AND
BUYER'S INDEPENDENT EVALUATION OF THE DUE DILIGENCE MATERIALS WHICH SHALL BE
COMPLETED BEFORE THE EXPIRATION OF THE DUE DILIGENCE PERIOD; AND (III) SELLER IS
NOT OBLIGATED TO ALTER, MODIFY, REMEDIATE OR IMPROVE THE PROPERTY OR
IMPROVEMENTS BEFORE THE CLOSING.
4.2 Buyer Acknowledgment. Buyer acknowledges and agrees that as of the
expiration of the Due Diligence Period, Buyer shall have reviewed, inspected and
evaluated the Property including, without limitation, the environmental
conditions regarding soil, groundwater and asbestos conditions (ACM), in, on or
under the Property, the condition of title, whether the Property is located in a
"flood zone" as
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set forth in HUD's Special Flood Zone Area Maps or is situated in a Special
Study Zone as designated under the Xxxxxxx-Xxxxxx Special Studies Zone Act
and/or Earthquake Fault Zoning Act (and all successive and/or similar acts), the
availability of utility services to the Property "as is" or as subdivided, the
subdivision, the existing zoning, the condition of the roof and structural
building components for all buildings, the electrical, plumbing, water, sewer,
sprinkler, mechanical and other building systems for all buildings above or
below ground, the Due Diligence Materials, and the suitability of the Property
and Improvements "as is" (except for and subject to the express representations
and warranties provided in this Agreement), at the Closing for Buyer's purposes
and its intended use of the Property. Furthermore, except to the extent
resulting from fraud, any intentional tort, any breach by Seller of any of its
representations and warranties under this Agreement or any post-closing
obligations of Seller under this Agreement, Buyer, and any and all of Buyer's
successors and assigns, do hereby release and waive with respect to Seller and
Seller's agents any and all claims, losses, liabilities, costs and damages,
known or unknown, with respect to the Property for any reason whatsoever,
including, but not limited to, any improvements located thereon; and in
connection therewith, further waive all rights and benefits arising under
California Civil Code Section 1542 (and all successor and similar sections),
which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
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Buyer's Initials
The foregoing releases, waivers and agreements of Buyer, and any and all of
Buyer's successors and assigns, as set forth in this Paragraph 4 shall survive
the Closing or any expiration or earlier termination of this Agreement.
4.3 Subject to Seller's representations and warranties contained in this
Agreement, Seller has no obligation to repair or correct any facts,
circumstances, conditions or defects regarding the Property or to compensate
Buyer for same.
5. Title
5.1 Title Clearance. Buyer acknowledges receipt of the Preliminary Title
Report from Seller for a CLTA owner's title policy together with photostatic
copies of all documents affecting title, as disclosed in the Preliminary Title
Report. Buyer shall approve or in good faith disapprove the Preliminary Title
Report or any part thereof, by written notice to Seller and Escrow Holder within
ten (10) business days after the date of this Agreement, unless otherwise waived
by Buyer. If Buyer fails to so
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approve or in good faith disapprove the Preliminary Title Report, or any part
thereof, in writing within this period, it shall be conclusively presumed that
Buyer has approved and accepted the Preliminary Title Report in its entirety.
5.2 Title Exceptions. If the Title Company issues any additional
supplements before Closing that add exceptions to the Preliminary Title Report,
Buyer shall have five (5) business days after delivery to Buyer of each
supplement with copies of all documents referred to in the supplements to
approve or in good faith disapprove these supplements by written notice to
Seller and Escrow Holder. If Buyer fails to so approve or in good faith
disapprove such items within this five (5) business day period, it shall be
conclusively presumed that Buyer has approved and accepted these supplements. If
there are any title exceptions not approved by the Buyer as provided above,
Seller shall have the right until the Close of Escrow to have the exceptions
removed or corrected by the Title Company or to extend the Closing for a period
not to exceed fifteen (15) days until such exceptions have been removed or
corrected for approval by Buyer. If Seller is unable to have such exceptions
removed or corrected by the Title Company for approval by Buyer, Buyer may elect
to either (i) waive such exceptions or disapprovals; or (ii) terminate this
Agreement upon written notice of the termination of this Agreement to Seller and
Escrow Holder no later than five (5) days after written notice from Seller that
the exceptions will not be removed. Buyer's failure to so terminate within the
five (5) business day period constitutes a waiver of Buyer's termination rights
and for this reason such title exceptions shall be deemed approved. If the
Agreement is terminated by Buyer as provided above, Escrow Holder shall return
to Buyer the Purchase Price Deposit plus accrued interest and the Escrow shall
terminate. Upon such termination Seller shall pay the Escrow costs if Buyer in
good faith disapproves of any condition of title not corrected by Seller.
5.3 Scope of Seller's Title Obligations. Seller shall have the obligation
to remove Buyer's title objections in respect to monetary liens created by or
through Seller, except for unpaid taxes, which are not delinquent.
Notwithstanding the above, in the event Seller cannot cure such monetary liens
by commercially reasonable action, Seller shall have the right to terminate this
Agreement by providing Buyer and Escrow Holder with written notice of such
termination. Upon such termination Seller shall pay the Escrow costs and return
the Purchase Price Deposit to Buyer.
5.4 Effect of Closing. Upon Closing, Buyer shall accept title to the
Property subject to all exceptions approved, deemed approved or waived by Buyer
as provided in this Agreement.
6. Buyer Investigation of Property.
6.1. Buyer Investigation.
a. Buyer shall have the right to conduct and complete an
inspection and evaluation of the Property during the Due Diligence Period to
determine if Buyer wishes to purchase the Property. This determination shall be
in the sole and absolute
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discretion of Buyer for any reason or no reason. Notwithstanding the above,
Buyer agrees that Buyer's investigation shall not include the penetration of the
ground surface of the Property, or of any flooring, exterior walls or roofing,
unless Buyer has obtained Seller's prior written consent thereto (which consent
shall not be unreasonably withheld or delayed).
b. Buyer hereby agrees to indemnify and defend, with counsel
reasonably satisfactory to Seller, Seller and Seller's agents, employees and
officers, from and against any and all claims, demands, causes of action,
damages and costs, resulting directly or indirectly from Buyer's inspection and
investigation of the Property.
c. Prior to commencing any inspection or investigation of the
Property, Buyer shall deliver to Seller evidence of insurance, in form and
amount reasonably satisfactory to Seller, maintained by such individuals or
entities.
6.2. Due Diligence Materials. Seller has delivered the Due Diligence
Materials to Buyer and Buyer acknowledges receipt of the same, except for those
items listed on Exhibit "H" which are identified as "NOT APPLICABLE." As to
those items and as to the books and records in Seller's possession relating to
the Property, Seller agrees to make its files relating to the Property (other
than those of a privileged or confidential nature) available for review by Buyer
at any time during normal business hours provided Buyer has given Seller at
least one (1) business day prior written notice thereof.
6.3. On-Site Investigation. In addition to the Due Diligence Materials
made available to Buyer by Seller, Buyer and its consultants shall have the
right, if requested, during the Due Diligence Period to enter on the Property,
at reasonable times, upon reasonable notice, and in such a manner as to minimize
disturbance to lessees and other occupants of the Property, to conduct an
independent on-site inspection of the Property based on Seller's reasonable
entry conditions. Buyer shall be responsible for its own costs incurred during
the Due Diligence Period and before the Closing.
6.4. Completion of Buyer's Investigation. Upon expiration of the Due
Diligence Period, Buyer's investigation of the Property for any and all reasons
in accordance with the terms of this Paragraph 6, including Buyer's review of
the Due Diligence Materials (hereinafter collectively referred to as "Buyer's
Investigation") shall be deemed completed for purposes of this Agreement except
as to matters disclosed by supplements to the Preliminary Title Report in
accordance with Paragraph 5.1, above.
7. Representations and Covenants of Seller and Disclaimer.
7.1 Seller hereby make the following representations to Buyer:
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7.1.1 Authority of Seller. Seller has the full right, power and
authority to sell, convey and transfer the Property to Buyer and to perform
Seller's obligations under this Agreement.
7.1.2 Maintenance During Escrow. Seller shall maintain the
Property until the Closing in its condition as of signing this Agreement,
ordinary wear and tear or casualty loss excepted.
7.1.3 Foreign Person. Seller is not a "foreign person" within the
meaning of Internal Revenue Code Section 1445 and California Revenue and
Taxation Code Section 18662.
7.1.4 Special Assessments or Condemnation. To Seller's knowledge,
there are not presently pending (i) any special assessments, except those shown
as exceptions on the Preliminary Title Report, or (ii) condemnation actions
against the Property or any part. Moreover, to Seller's knowledge, Seller has
not received notice of any special assessments or condemnation actions being
contemplated. To Seller's knowledge, there are no existing, proposed, or
contemplated eminent domain proceedings that would affect the Property.
Moreover, to Seller's knowledge, Seller has not received any notice of existing,
proposed, or contemplated eminent domain proceedings that would affect the
Property.
7.1.5 Streets. To Seller's knowledge, there are no existing,
proposed, or contemplated plans to widen, modify, or realign any street or
highway which affects the contemplated size of, use of, or set-backs on the
Property and the Improvements.
7.1.6 Compliance with Laws. To Seller's knowledge, Seller has not
received information from any governmental authority that the Property is in
violation of any laws, ordinances, rules or regulations of such authority,
unless any such violation has been cured.
7.1.7 State of Facts. To Seller's knowledge, Seller has not
received written notice or written information that any party to any of the
Leases or Service Contracts (as each term is defined below) considers a breach
or default by Seller to have occurred.
7.1.8 Litigation. To Seller's knowledge, Seller is not involved in
or aware of pending or threatened litigation which affects the Property.
Furthermore, to Seller's knowledge, there are no proceedings pending or
threatened against Seller before any court or administrative agency relating to
the Property which adversely affects the Property, or which is likely to
adversely affect Seller's ability to fulfill all of its obligations under this
Agreement and the related documents.
7.1.9 Authority. This Agreement and all other documents delivered
by Seller prior to or at the Close of Escrow (i) do not violate the provisions
of any
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agreement to which Seller is a party or which affects the Property, and
do not violate Seller's Articles of Organization or Operating Agreement.
7.1.10 Bankruptcy. No filing or petition under the United States
Bankruptcy Law or any insolvency laws, or any laws for composition of
indebtedness or for the reorganization of debtors has been filed with regard to
Seller or any managing member of Seller.
7.1.11 Toxic or Hazardous Waste. To Seller's knowledge, there are
no Hazardous Substances located on, under or about the Property, except as
otherwise disclosed in any of the environmental reports delivered by Seller to
Buyer as part of the Due Diligence Materials.
7.1.12 Seller's Estoppel. To Seller's knowledge, the information
contained in any Seller's Estoppel Certificate given by Seller to Buyer pursuant
to Section 13(b) below shall be true and correct as of the Closing.
7.1.13 Option to Purchase. Except as may otherwise be set forth in
any of the Leases, to Seller's knowledge, no tenant of the Property has a
contractual right or option to purchase the Property.
7.1.14 Commissions. To Seller's knowledge, except for any
commissions which may be payable under any of the Leases upon occupancy of the
respective premises by the applicable tenant, there are no unpaid brokerage
commissions which are currently due and owing as of the date of this Agreement
in connection with any of the Leases. To Seller's knowledge, the only
commissions which are payable under any of the Leases upon occupancy relate to
the lease of Suite 290 (by Multaler) and Suite 240 (by Buyer).
7.1.15 General Disclaimer. Except as expressly provided in a
representation, warranty or statement of Seller in this Agreement, Seller makes
no representation or warranty as to the accuracy of any document, certificate or
schedule furnished or to be furnished to Buyer pursuant to this Agreement, and
Seller makes no such warranty or representation as to whether such document,
certificate or schedule contains or will contain any untrue statement of
material fact or omits or will omit to state a material fact thereby making the
statements or facts contained therein materially misleading.
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7.2. Seller agrees as follows:
7.2.1 Tenant Leases. Seller shall not modify, cancel, or amend any
Lease or enter into any new lease between the date of this Agreement and the end
of the Due Diligence Period without notifying Buyer in writing of such action
(which notice shall be delivered on or before the earlier of five (5) days
following such action or the end of the Due Diligence Period) and Seller shall
not modify, cancel or award any Lease between the end of the Due Diligence
Period and the Close of Escrow without Buyer's written approval, which shall not
be unreasonably withheld (and which shall be given or denied within three (3)
business days following Seller's request therefor; with Buyer's approval being
deemed given if Buyer fails to timely respond within such three (3) business day
period).
7.3 Limitations. The foregoing representations of Seller are true as of
the date of this Agreement and as of the Closing and shall survive the
recordation of the Deed and Close of Escrow for a period of twelve (12) months.
Seller's representations are for the exclusive benefit of Buyer and Buyer's
assignees and shall not be for the benefit of any other Person.
8. Representations of Buyer and Reliance.
8.1 Representations. Buyer hereby makes the following representations to
Seller:
8.1.1 Authority of Buyer. It has full right, power and authority
to purchase the Property from Seller under this Agreement and to perform Buyer's
obligations under this Agreement including the financial capacity to perform
this Agreement.
8.2 Limitations. The foregoing representations are true as of the date of
this Agreement and shall be true as of the Closing.
9. Buyer's Right To Terminate.
9.1 Contingency For Buyer's Property Investigation. In addition to
Buyer's right to terminate this Agreement as provided in Section 5, 15 and 16,
if Buyer's Investigation discloses any condition or circumstance about the
Property and Improvements that is unsatisfactory to Buyer during the Due
Diligence Period, Buyer shall promptly notify Seller and Escrow Holder in
writing of all facts and circumstances regarding such conditions and, at Buyer's
election, Buyer may in its sole and absolute discretion either (i) terminate
this Agreement and recover the Purchase Price Deposit plus accrued interest from
Escrow; or (ii) waive such conditions or circumstances and this Agreement shall
continue to the Close of Escrow in accordance with its terms and conditions.
Except as otherwise provided in this Agreement, Buyer's right to terminate as
provided above shall expire the last day of the Due Diligence Period. Buyer
shall exercise the right to terminate by giving Seller and Escrow Holder
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written notice of the unconditional termination of this Agreement before the
expiration of the Due Diligence Period. Failure to so exercise this right on or
before that date shall be deemed a waiver of the right to terminate for this
contingency.
9.2 Return of Due Diligence Materials. If this Agreement is terminated as
provided in this Agreement, Buyer shall promptly deliver to Seller all original
copies of the Due Diligence Materials provided by Seller to Buyer and copies of
all Buyer consultant reports and other documents prepared by or for Buyer that
pertain to the Property and Buyer's Investigation (hereinafter collectively
referred to as "Consultant Reports").
9.3 Escrow Termination. Upon receipt of Buyer's written notice to
terminate as provided above, Escrow Holder shall terminate the Escrow and return
the Purchase Price Deposit to Buyer and Buyer shall pay all costs of Escrow, if
any.
9.4 Buyer Remedies. In the event Seller shall breach or be in default of
any of the terms and conditions of this Agreement, Buyer, prior to the pursuit
of any other remedy, provisional or otherwise, shall arbitrate such matter in
accordance with Section 17 hereof. In the event that Buyer shall elect to close
Escrow with knowledge of any breach or default by Seller, then in such an event,
Buyer shall be deemed to have waived such breach or default, and further waived
any right to seek damages or other remedy thereafter.
9.5 SELLER'S DEFAULT. IF SELLER DEFAULTS UNDER THIS AGREEMENT AND FAILS
TO COMPLETE THE PURCHASE AS PROVIDED HEREIN, THEN BUYER SHALL BE ENTITLED, AS
ITS SOLE AND EXCLUSIVE REMEDY, WHETHER AT LAW OR IN EQUITY, EITHER (A) TO
TERMINATE THIS AGREEMENT AND RECOVER THE PURCHASE PRICE DEPOSIT OR (B) IN LIEU
OF TERMINATING THE AGREEMENT AND RECOVERING THE PURCHASE PRICE DEPOSIT, BUYER
SHALL BE ENTITLED TO PURSUE SPECIFIC PERFORMANCE OF THIS AGREEMENT WITHOUT RIGHT
TO ANY DAMAGES OR OTHER EQUITABLE RELIEF WHATSOEVER, BUT ONLY IF BUYER DEPOSITS
WITH ESCROW HOLDER THE CASH BALANCE OF THE PURCHASE PRICE (OR EVIDENCE A LOAN
COMMITMENT FOR SUCH CASH BALANCE OR FINANCIAL STATEMENTS EVIDENCING BUYER'S
ABILITY TO FUND SUCH CASH BALANCE), WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THE
SCHEDULED CLOSING DATE, TOGETHER WITH ALL CLOSING DOCUMENTS REQUIRED HEREUNDER
FROM BUYER AND BUYER FILES SUCH SPECIFIC PERFORMANCE ACTION WITHIN THIRTY (30)
DAYS FOLLOWING THE SCHEDULED CLOSING DATE. BUYER SHALL NOT BE ENTITLED TO RECORD
A LIEN OR LIS PENDENS AGAINST THE PROPRETY OTHER THAN IN CONNECTION AND
CONCURRENTLY WITH THE FILING OF SUCH SPECIFIC PERFORMANCE ACTION.
/s/ SO /s/ Illegible
------------------------ -------------------------
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SELLER'S INITIALS BUYER'S INITIALS
10. Confidentiality.
10.1 Confidentiality of Due Diligence Materials. Buyer acknowledges and
agrees that the Due Diligence Materials are confidential business documents of
Seller except for those documents that are available in public records.
10.2 Acknowledgment. Buyer shall instruct each of its employees, agents,
contractors and consultants and any other person or firm performing consulting
and/or legal services in connection with the purchase of the Property before
Closing that the Due Diligence Materials and Consultant Reports are confidential
business documents of Seller, and shall not be disclosed to any third person
without the prior approval of Seller.
10.3 Post Closing Confidentiality. After Closing, Buyer may use any Due
Diligence Materials in its possession or the possession of any Buyer's
consultants as of the Close of Escrow as Buyer deems necessary and without
Seller's prior approval.
11. Escrow.
11.1 Escrow Holder Performance. Escrow Holder is authorized and
instructed to conduct the Escrow in accordance with this Agreement and Exhibit
B, applicable law, and customary escrow practice in Southern California
including any reporting requirements of the Internal Revenue Service. Escrow
Holder shall close the Escrow by recording the Deed and such other documents
required to be recorded and by disbursing the funds and documents in accordance
with this Agreement and Exhibit B. Escrow Holder shall not prepare any further
escrow instructions restating or amending this Agreement unless specifically
instructed by the Parties.
11.2 Compliance with Notices, Demands or Changes. Escrow Holder shall not
comply with any notice, demand or change of the Escrow Instructions unless such
notice, demand or change is signed by authorized representatives of both parties
or of one Party if the terms of this Agreement state that such notice may be
provided solely by such one party.
11.3 Deliveries Into Escrow. No later than 11:00 A.M. on the business day
prior to the Closing Deadline; (i) Buyer shall deliver to Escrow Holder, in
certified funds or by wire transfer, all funds necessary to Close the Escrow in
accordance with the terms of this Agreement; and (ii) Seller and Buyer shall
also each deliver to Escrow Holder, all documents necessary on the part of each
party to comply with this Agreement and as necessary for the Escrow Holder to
close the Escrow in accordance with terms of this Agreement. These documents
include, without limitation, the following documents:
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(a) Deed. Seller will provide a duly executed and acknowledged
deed (the "Deed") in recordable form conveying the Property to Buyer as set
forth in Exhibit C. Seller shall execute and acknowledge a deed as provided
herein and Seller shall deliver the Deed to the Escrow Holder before the Closing
Deadline.
(b) Title Policy. Escrow Holder will provide to Buyer at Seller's
sole cost a standard CLTA Owner's title insurance policy in the amount of the
Purchase Price. If Buyer wishes to obtain an ALTA Owner's title insurance policy
and/or any endorsements to the title policy, Buyer shall at its sole cost and
expense and without delay to the Closing comply with all requirements of the
Title Company for issuance of an ALTA Owner's title policy and/or any
endorsements to the title policy. Buyer shall provide the Title Company with an
ALTA survey of the Property, if required, at Buyer's expense, in a form
satisfactory to the Buyer and the Title Company. Buyer shall pay all title
insurance costs and expenses in excess of the cost of the standard CLTA Owner's
title insurance policy. The actual Owner's title insurance which is issued to
Buyer by the Title Company is hereinafter referred to as the "Title Policy."
(c) Non-Foreign Affidavits. Seller will provide duly executed
Non-Foreign Affidavits pursuant to Section 1445 of the Internal Revenue Code, as
amended, and Section 18662 of California Revenue and Taxation Code.
(d) General Assignment. Seller and Buyer will provide a fully
executed General Assignment (hereinafter, the "General Assignment") in the form
set forth in Exhibit D attached hereto with respect to the intangible property
relating to the Property and the Improvements described therein including,
without limitation, all approvals, permits, plans, maps, applications,
subdivision rights, licenses, systems, meters, sewer connections and other
property located on or attached to the Property and any Improvements remaining
as of the Close of Escrow.
(e) Assignment and Assumption Agreement. Seller and Buyer will
provide a fully executed Assignment and Assumption Agreement (hereinafter, the
"Assignment and Assumption Agreement") in the form set forth in Exhibit E
attached hereto.
(f) Xxxx of Sale. Seller will provide an executed Xxxx of Sale
(the "Xxxx of Sale") in the form set forth in Exhibit "I" attached hereto.
(g) Seller's Deposits. Seller shall furthermore deposit into
Escrow the following:
(i) Plans. The original plans and specifications relating
to the Property, to the extent in Seller's actual
possession;
(ii) Leases. The original Leases, to the extent in Seller's
actual possession; and
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(iii) Certificates of Occupancy. The original certificates
of occupancy, to the extent in Seller's actual possession.
(iv) Additional Items. All general ledger records,
worksheets relating to CAM charges, original vendor
invoices and tax bills, to the extent in Sellers' actual
possession and solely relating to the Property.
(h) Proof of Authority. Proof of the authority and authorization
of Buyer and Seller to enter into and complete performance of this Agreement
including proof of the power and authority of the persons signing and/or
delivering any instruments, documents, or certificates on behalf of the parties
to act for and bind each party as reasonably required by the Title Company,
Escrow Holder, Buyer, or Seller.
11.4 Close of Escrow. As used in this Agreement, "Close of Escrow" means
the recordation of the Deed and in the official records of Los Angeles County,
State of California. Escrow Holder shall complete the Closing on or before the
Closing Deadline if it has received all the cash funds and documents required to
be delivered into Escrow by Buyer and Seller and if all of the conditions to
Closing specified in this Agreement or the Escrow Instructions have been
satisfied. Right to possession of the Property shall transfer to Buyer at the
Close of Escrow, subject to Buyer's rights of early entry and investigation set
forth herein, and the rights of tenants-in-possession, and further subject to
the exceptions contained in the Title Policy.
11.5 Recordation and Distribution. To Close the Escrow, the Escrow Holder
shall do the following: (i) cause the Deed to be recorded by the County Recorder
of Los Angeles County and pay any real estate transfer taxes; (ii) deliver to
Buyer the CLTA Owner's title policy or ALTA Owner's title policy if requested by
Buyer, and the General Assignment, Xxxx of Sale, and Assignment and Assumption
Agreement, and Seller's Non-Foreign Affidavit; (iii) pay Buyer any funds in
excess of the Purchase Price and Buyer's share of costs and prorations which are
properly refundable to Buyer; and (iv) concurrently deliver to Seller cash funds
in the amount of the Purchase Price, less or plus the net debit or credit to
Seller by reason of the prorations and allocation of Escrow costs and other
adjustments provided for in this Agreement or other instructions to the Escrow
Holder.
11.6 Escrow Prorations.
(a) Proration Process. All taxes, assessments, improvement bonds
and other similar expenses, if any, affecting the Property shall be prorated as
of 12:01 a.m. on the day of Closing in accordance with the following provisions.
For calculating prorations, Buyer shall be deemed to have title to the Property
for the entire day upon which Closing occurs. Any apportionments and prorations
which are not expressly provided for below shall be made in accordance with
customary escrow practice in Southern California. Escrow Holder shall prepare an
agreed schedule of
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tentative adjustments no later than two (2) days before Closing for submission
to Buyer and Seller. These adjustments, if and to the extent known and agreed by
the parties, shall be paid by Buyer to Seller if the prorations result in net
credit to Seller or by Seller to Buyer if the prorations result in a net credit
to the Buyer by increasing or reducing the cash to be paid by Buyer through
Escrow at Close of Escrow. Any adjustments not determined or agreed upon as of
Closing shall be paid by Buyer to Seller, or by Seller to Buyer, as the case may
be, in cash as soon as practicable after the Closing.
(b) Real Estate Taxes. All nondelinquent real estate taxes,
assessments and improvements bonds due and payable on the Property shall be
prorated as of the date of Closing based on the actual current Los Angeles
County tax xxxx. After Closing, Buyer shall be solely liable and responsible for
any real estate taxes and assessments except to the extent such taxes are
attributable to the Property before Closing. All real estate tax assessments
which are or may become a lien against the Property arising out of Seller's
ownership, use or development of the Property prior to Closing, excluding
assessments arising out of Buyer's ownership, use or development of the
Property, shall be paid by Seller to be prorated as of the Closing.
(c) Utilities. As of the Closing, all outstanding and/or unpaid
assessments for sewer and charges for consumption of electricity, water and gas
(the "Utility Charges") shall be the responsibility of Seller to be prorated as
of the Closing. Seller shall make a reading of all utility meters as of the
Closing and report them to Buyer within thirty (30) days after the Closing.
Buyer shall be responsible for and pay all such Utility Charges, and sewer
assessments after the Closing and all such Utility Charges shall be prorated as
of the Close of Escrow accordingly.
(d) Security Deposits. Buyer shall be credited and Seller shall be
charged with any security deposits and advanced rentals in the nature of
security deposits made by the lessees under the Leases, except to the extent
same have been applied in accordance with the terms of said Leases.
(e) Rentals. Buyer shall be credited and Seller shall be charged
with rentals and other payments, including "Percentage Rent" and operating cost
pass-throughs, actually paid by lessees, licensees, concessionaires and other
persons using or occupying the Property or any part thereof, for or in
connection with such use or occupancy, for periods subsequent to the Close of
Escrow. However, Buyer shall not be obligated to make any payment or give any
credit to Seller on account of, or by reason of, any rental or other payments
which are unpaid as of the Closing Date, but shall be required merely to turn
over to Seller its share of the same if, as and when received by Buyer. All
payments received by Buyer from a lessee, licensee, concessionaire or other
person shall be applied against the most delinquent obligation or obligations of
the payor. Buyer hereby agrees to utilize reasonable commercial efforts to
collect such delinquent sums.
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(f) Leasing Commissions and Tenant Improvements. Commissions of
leasing and rental agents and tenant improvement allowances for any Leases
entered into prior to November 1, 2000, whether in respect to base lease term,
future expansions, renewals, or otherwise, shall be paid in full at or prior to
the Closing by Seller, without contribution or proration from Buyer (except that
Seller shall have no responsibility for the payment of commissions which are not
due and owing as of the Closing [including any commissions due under any of the
Leases upon occupancy where the tenant has not occupied its premises as of the
Closing] or which relate to any future expansion or lease renewal which occurs
after the Closing, nor shall Seller be responsible for the payment of any tenant
improvement allowance which is not due and owing as of the Closing, and Buyer
shall be solely responsible for the same). Commissions of leasing and rental
agents and tenant improvement allowances for any Leases entered into on or
subsequent to November 1, 2000, in accordance with Paragraph 18.2, whether with
respect to base lease term, future expansions, renewals, or otherwise, shall be
prorated between Seller and Buyer based upon the portions of the lease term
which occur prior to (which shall be the obligation of Seller) and after (which
shall be the obligation of Buyer) the Closing. Notwithstanding anything to the
contrary contained herein, Seller is responsible for all commissions and tenant
improvement allowances with respect to the lease of Suite 175 in the Property
(containing approximately 3,341 rentable square feet). Seller shall provide
Buyer with a credit at the Closing in the amount of any tenant improvement
allowance which remains due, but unpaid by Seller as of the Closing Date with
respect to the lease of Suite 175.
(g) Post Closing Matters. Any item to be prorated that is not
determined or determinable at the Closing shall be promptly adjusted by the
Parties by appropriate transfer payments outside of Escrow when the amount due
is determined after the Close of Escrow.
11.7 Escrow Costs and Expenses.
(a) Seller Costs. Seller shall pay (i) all premiums for the
standard CLTA Owner's title policy in the amount of the Purchase Price; (ii)
one-half (1/2) of all Escrow fees and costs; (iii) Seller's share of the above
prorations; and (iv) fifty percent (50%) of all documentary transfer taxes.
(b) Buyer Costs. Buyer shall pay (i) the ALTA portion of title
insurance premiums for the standard ALTA Owners title policy and the cost of any
endorsements to such policy requested by Buyer; (ii) all document recording
charges and fifty percent (50%) of all documentary transfer taxes; and (iii)
one-half (1/2) of all Escrow fees and costs.
(c) Professional Fees. Buyer and Seller shall each pay the legal
and professional fees of any agents and consultants retained by them as incurred
by Buyer and Seller respectively. All other Closing costs and expenses shall be
allocated
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between Buyer and Seller in accordance with the customary escrow practice in
Southern California.
(d) Tax Transfer. Unless requested by Buyer to the contrary,
Escrow Holder shall affix documentary transfer tax amounts before the
recordation of the Deed.
(e) Withholding Tax. Seller shall deliver to the Escrow Holder a
duly executed California Form 590 that exempts Seller from any withholding tax
on the Purchase Price under Section 18662 of the California Revenue and Taxation
Code.
12. Seller's Conditions to Closing. Close of Escrow and Seller's obligation to
perform under this Agreement are conditioned upon the full performance by Buyer
or waiver by Seller at the Closing of all of the following:
(a) Buyer shall have deposited all documents and funds into Escrow as
required by this Agreement and the balance due in the total amount of the
Purchase Price;
(b) Buyer shall have paid into Escrow any other sums required as provided
in this Agreement;
(c) All Buyer representations set forth in this Agreement shall be true
and correct in all material respects as of Closing; and,
(d) Seller shall not have terminated this Agreement pursuant to the terms
of this Agreement.
12.1 Waiver. All of the above conditions are for the exclusive benefit of
Seller and may be waived by Seller at any time, provided that any waiver to be
effective must be in writing duly signed by Seller and delivered to Escrow
Holder and Buyer. Escrow Holder shall assume that Buyer representations are true
and the conditions set forth in Section 12(c) are satisfied or waived unless it
receives written notice to the contrary from Seller before Closing. Seller's
consent to Closing shall constitute a waiver by Seller of any unsatisfied
conditions provided that such waiver shall not waive Buyer's obligations to
cause such conditions to be satisfied promptly after the Closing.
13. Buyer's Conditions to Closing. Close of Escrow and Buyer's obligations to
perform under this Agreement are conditioned upon the full performance by Seller
or waiver by Buyer at the Closing of all of the following:
(a) The Deed executed by Seller, and in recordable form, shall have been
deposited into Escrow together with other documents which Seller is required to
deposit in the Escrow;
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(b) Tenant Estoppel Certificates and Tenant Subordination Agreements.
Seller shall use reasonable efforts to deliver to Buyer, not more than thirty
(30) days and not less than ten (10) days prior to the Close of Escrow (i) a
completed, executed tenant estoppel certificate (the "Estoppel Certificates")
from each tenant at the Property, substantially in the form attached hereto as
Exhibit "F", or on a different form approved by Seller, and (ii) a subordination
agreement (the "Subordination Agreements"), executed and notarized in recordable
form, from each tenant at the Property on the most recent Subordination,
Non-Disturbance and Attornment form adopted by the American Institute of Real
Estate or on a different form approved by Seller (the "AIR "Subordination").
Notwithstanding the preceding sentence, it shall be a condition precedent to
Buyer's obligation to purchase the Property (which may be waived by Buyer in its
sole discretion) that Seller deliver to Buyer (aa) Estoppel Certificates (the
"Required Certificates") from both (x) all tenants (other than Buyer) who, at
the Close of Escrow, lease more than 5,000 rentable square feet of space at the
Property ("Major Tenants"), and (y) tenants (including the Major Tenants) who,
at the Closing Date, in the aggregate, lease at least 75% of the rentable square
footage of the Property (provided that for purposes of determining the rentable
square footage of the Property, the rentable square footage leased or subleased
by Buyer in the Property shall not be included), exclusive of month-to-month
tenancies, and (bb) Subordination Agreements (the "Required Agreements") from
both (x) all Major Tenants (other than Buyer), and (y) tenants (including the
Major Tenants) who, at the Closing Date, in the aggregate, lease at least 75% of
the rentable square footage of the Property (provided that for purposes of
determining the rentable square footage of the Property, the rentable square
footage leased or subleased by Buyer in the Property shall not be included),
exclusive of month-to-month tenancies. If Seller is unable to deliver a Required
Certificate or Required Agreement prior to the Closing Date, Seller may elect,
by written notice to Buyer, to either (1) subject to Buyer's willingness to
accept Seller Estoppel Certificates (in Buyer's sole and absolute discretion),
close the transaction in accordance with the terms and conditions of this
Agreement by providing to Buyer, Seller Estoppel Certificates, as defined below,
sufficient, when combined with Estoppel Statements executed by Tenants, to
represent at least 75% of the rentable square footage of the Property (provided
that for purposes of determining the rentable square footage of the Property,
the rentable square footage leased or subleased by Buyer in the Property shall
not be included), as provided above, or (2) extend the Closing Date for up to
thirty (30) days (the "30 Day Period") to enable Seller to obtain and deliver to
Buyer the Required Certificates and Required Agreements. If Seller elects to
delay the Closing Date for the 30 Day Period and Seller fails to deliver the
Required Certificates or the Required Agreements by the end of such 30 Day
Period, Buyer may elect, by written notice to Seller, to either (xx) close the
transaction in accordance with the terms and conditions of this Agreement, or
(yy) terminate the transaction (and receive a full refund of the Purchase Price
Deposit). If Buyer fails to deliver a written notice to Seller specifying one of
the foregoing courses of action within three (3) business days following the end
of the 30 Day Period, such inaction shall be deemed Buyer's election to accept
the Property and proceed to the Closing in a timely manner. Prior to delivering
the Estoppel Certificates and Subordination Agreements to the tenants, Seller
shall first deliver the same to the Buyer for review
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and approval. Buyer shall have three (3) business days after the receipt of each
such unexecuted Estoppel Certificate and Subordination Agreement to approve or
disapprove the same. After Seller has obtained the executed Estoppel
Certificates and Subordination Agreement from any tenant, Seller shall again
deliver the same to Buyer for review and approval. Buyer shall have three (3)
business days after the receipt of each such executed Estoppel Certificate and
Subordination Agreement to approve or disapprove the same (provided, however,
that Buyer may only disapprove a tenant executed Estoppel Certificate or
Subordination Agreement if it (dd) contains information materially inconsistent
with the unexecuted draft of the same previously approved by Buyer, (ee) alleges
a default under the applicable lease, or (ff) discloses a material dispute
between the landlord and tenant in connection with the applicable lease). A copy
of the Seller Estoppel Certificate is attached hereto as Exhibit "G."
Notwithstanding any other terms herein, the AIR Subordination shall be utilized
by Seller, and shall be deemed approved by Buyer, unless, prior to the end of
the Due Diligence Period, Buyer shall provide Seller with an alternative
Subordination Agreement form reasonably acceptable to Seller.
(c) The Title Company shall be prepared to issue an ALTA Owner's policy
to Buyer subject to the conditions of title approved or waived pursuant to
Section 5 (provided that this condition shall be deemed satisfied unless the
failure to issue any ALTA policy results from the issuance by the Title Company
of a supplemental title report after the end of the Due Diligence Period);
(d) Seller shall deliver to the Escrow Holder, in respect to each Owner,
a duly executed California Form 590RE that exempts Seller from any withholding
tax on the Purchase Price under Section 18422 of the California Revenue and
Taxation Code.
(e) Seller shall deliver to the Escrow Holder a FIRPTA certification
under IRC Section 1445 and California Revenue and Taxation Code Section 18662.
(f) All Seller representations set forth in this Agreement shall be true
and correct in all material respects as of Closing; and,
(g) Buyer shall not have terminated this Agreement pursuant to the
Sections 5, 9, 15 or 16 of this Agreement.
13.1 Waiver. All of the above conditions are for the exclusive benefit of
Buyer and may be waived by Buyer at any time, provided that any waiver must be
in writing duly signed by Buyer and delivered to Escrow Holder and Seller to be
effective. Escrow Holder shall assume that Seller representations are true and
that the conditions set forth in Section 13(f) are satisfied or waived, and such
conditions shall be deemed satisfied or waived unless Escrow Holder receives
written notice to the contrary from Buyer before the Closing. Buyer's consent to
Closing shall constitute a waiver by Buyer of any unsatisfied conditions to
Closing, provided that such waiver shall not waive Seller's obligations to cause
such conditions to be satisfied promptly after the Closing.
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14. SELLER LIQUIDATED DAMAGES.
THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT
TO DETERMINE, PRIOR TO SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE
SUFFERED BY SELLER IF BUYER FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT. THEREFORE, IF BUYER BREACHES THE OBLIGATION TO PURCHASE THE PROPERTY
AND THE SALE DOES NOT CLOSE AS A RESULT OF SUCH BREACH, SELLER SHALL BE ENTITLED
TO LIQUIDATED DAMAGES PAYABLE BY BUYER OR ESCROW HOLDER ON BEHALF OF BUYER TO
SELLER IN THE AMOUNT OF THE PURCHASE PRICE DEPOSIT THEN IN ESCROW PLUS ACCRUED
INTEREST THEREON TO THE DATE OF PAYMENT TO SELLER. UPON PAYMENT OF SAID SUMS TO
SELLER, BUYER SHALL BE RELEASED FROM ANY FURTHER LIABILITY TO SELLER, EXCEPT FOR
BUYER'S OBLIGATIONS UNDER SECTIONS 6.1(b) AND 18.13 OF THIS AGREEMENT. THIS
PAYMENT TO SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER
PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, AND SHALL
NOT BE DEEMED TO CONSTITUTE A FORFEITURE OF PENALTY WITHIN THE MEANING OF
SECTION 3275 OR 3369 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR PROVISION.
/s/ Illegible /s/ SO
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Buyer's Initials Seller's Initials
15. Condemnation. If prior to Closing, the Property or any part of the Property
is taken through the power of eminent domain, then Buyer has the right to elect
in writing within ten (10) days after Seller's notice of this action to (i)
terminate this Agreement by written notice to Seller and Escrow Holder of the
unconditional termination of this Agreement within ten (10) days after receipt
of such notice from Seller and receive a refund of all monies deposited in
Escrow plus accrued interest thereon; or (ii) close the Escrow as provided in
this Agreement and have all eminent domain proceeds payable by reason of such
condemnation assigned to and paid to Buyer. If Buyer does not so elect to
terminate this Agreement, the Escrow shall proceed to Closing as provided in
this Agreement and Seller shall assign to Buyer all eminent domain proceeds,
claims, or causes of action.
If prior to the Closing, there is a temporary taking through the power of
eminent domain of all or part of the Property, this Agreement will remain in
full force and effect and the obligations of the parties shall be extended for
the period of delay caused by this temporary taking; provided, however, after
one (1) month of delay Buyer or Seller shall have the right to terminate this
Agreement upon written notice to the other party and Escrow Holder. If Buyer or
Seller elects to terminate this Agreement as provided above, then the Purchase
Price Deposit plus accrued interest thereon shall be paid to Buyer and this
Agreement shall be deemed terminated and each
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party shall be relieved of their respective obligations under this Agreement.
Seller and Buyer shall each bear one-half of the escrow costs.
16. Casualty Loss.
16.1 Notice of Casualty. Between the date of this Agreement and the
Closing, Seller shall give Buyer written notice of any fire or other casualty
loss or other occurrence including seismic disturbance at the Property and
Improvements, including the amount of such damage or loss.
16.2 Losses. If prior to the Closing the Property or any part thereof is
damaged and a contractor designated by both parties determines in its sole
reasonable judgment that the cost of repairing such damage is in excess of
$250,000, then Buyer has the right to elect in writing within ten (10) days
after Seller's notice of the occurrence and amount of damage to (1) terminate
this Agreement by written notice to Seller and Escrow Holder within ten (10)
days after receipt of such notice from Seller and receive the return of all
monies deposited in Escrow plus accrued interest thereon; or (ii) proceed to
Close the Escrow as provided in this Agreement, in which event Seller shall
assign to Buyer all of Seller's right, title and interest in and to any
insurance proceeds resulting from such damage.
If prior to the Closing, the Property and Improvements or any part
thereof is damaged and a contractor designated by both parties determines in its
sole reasonable judgment that the cost of repairing such damage is less than
$250,000.00, Seller shall, at Seller's election, (a) repair or replace the
damaged Property and Improvements at its sole cost and expense before Closing or
(b) assign to Buyer all of Seller's right, title and interest in and to any
insurance proceeds resulting from such damage, and, in addition thereto, credit
to Buyer, at the Closing, the difference between the cost of repairing the
damage, determined above, and the amount of Seller's insurance proceeds being
assigned pursuant to this paragraph.
16.3 Disputes. All disputes arising under this Section 16, to the extent
that they cannot be resolved by mutual agreement between Seller and Buyer, shall
be resolved as provided in Section 17 of this Agreement before or after Closing.
17. Settlement of Disputes.
17.1 Arbitration of Disputes. Any dispute regarding the interpretation,
enforcement or performance of this Agreement, the Deed, the General Assignment,
the Xxxx of Sale, or the Assignment and Assumption Agreement shall be decided by
binding and non-appealable arbitration before a single arbitrator pursuant to
the commercial arbitration rules of JAMS. Following a demand for arbitration,
the parties shall have ten (10) calendar days to agree upon an arbitrator. If
the parties cannot agree upon an arbitrator within such period, then either
party may request that JAMS appoint an arbitrator. The decision of such
arbitrator shall be final, and either party may apply to a court of competent
jurisdiction for the confirmation thereof. The prevailing party in
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such arbitration shall be entitled to reimbursement of its reasonable attorney's
fees and costs, expert witness fees and arbitration fees. Any such arbitration
shall be conducted in Los Angeles County.
17.2 NOTICE: BY INITIALING IN THE SPACE BELOW, EACH PARTY GIVES UP ANY
RIGHTS TO HAVE ANY DISPUTE LITIGATED IN A TRIAL COURT AND TO A JURY TRIAL. IF
EITHER PARTY REFUSES TO SUBMIT TO THE AGREED ARBITRATION PROCEEDINGS, SUCH PARTY
MAY BE COMPELLED TO SUBMIT TO SUCH ARBITRATION PROCEEDINGS UNDER THE AUTHORITY
OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. THE PARTIES' AGREEMENT TO THIS
REFERENCE PROVISION IS VOLUNTARY.
THE UNDERSIGNED HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO
SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE "SETTLEMENT OF
DISPUTES" PROVISIONS TO ARBITRATION.
/s/ Illegible /s/ SO
------------------------- ----------------------
Buyer's Initials Seller's Initials
18. General Provisions.
18.1 Counterparts. This Agreement may be signed in counterparts, provided
that this Agreement or any counterpart shall be of no force and effect unless
and until Buyer and Seller have both signed this Agreement or a counterpart.
18.2 Use of Land and Improvements. Subject to the provisions of this
Agreement, Seller shall retain the possession and use of the Property until the
Close of Escrow in a manner determined by Seller.
18.3 Notices.
18.3.1 Notice to Parties. All notices and demands shall be given
in writing by personal delivery, courier service, Federal Express, or U. S.
registered or certified mail postage prepaid return receipt requested. Notice
shall be deemed given as of two (2) business days after deposit into the United
States mail, or in the case of any other acceptable communication, upon delivery
to the addressee. Notices shall be addressed as set forth below for the
respective party, provided that if a party gives notice of a change of name or
address, notices to that party shall thereafter be given as specified in that
notice. Facsimile communication may be used to expedite communication only.
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To Seller: Pacifica California/Apollo, LLC
c/o Pacifica Capital Group, LLC
000 Xxxxxxxxxx Xxxxxxxxx, Xxx. 000
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Jeffer, Mangels, Xxxxxx & Marmaro LLP
2121 Avenue of the Stars, Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
To Buyer: Skechers USA, Inc.
000 Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxxxxxxx and Xxxxxxxx
0000 Xxxxxxxx Xxxxxxxxx, Xxxxxx Floor (East Tower)
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
18.3.2 Notice to Escrow Holder. Notices shall be sent to the
Escrow Holder as follows:
To Escrow Holder: Chicago Title Company
000 X. Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Notices sent to either Party after Escrow is opened shall also be sent to the
Escrow Holder.
18.4 Amendment. This Agreement may be amended at any time only by the
mutually acceptable written agreement signed by authorized representatives of
Buyer and Seller.
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18.5 Binding Upon the Parties. All amendments, changes, and revisions of
this Agreement, in whole or in part, and made from time to time, shall be
binding upon the parties and their successors or permitted assigns if the
document is in writing and signed by the Buyer and Seller.
18.6 Assignment; Binding on Successors. Seller shall not assign this
Agreement or any right under it without the prior written consent of Buyer which
Buyer may withhold in its sole and absolute discretion. Any attempted assignment
in violation of this Agreement shall be null and void.
Buyer may assign this Agreement to an Affiliate. For the purposes of this
paragraph, the term "Affiliate" means an entity that is wholly owned by Buyer.
18.7 Waiver of Conditions or Remedies. The waiver by one party of the
performance of any agreement, condition, or promise under this Agreement shall
not invalidate this Agreement nor shall it be considered a waiver by that party
of any other agreement, condition, or promise under this Agreement. The waiver
by either or both parties of the time for performing any act required by this
Agreement shall not constitute a waiver of the time for performing any other act
or an identical act required to be performed at a later time. The exercise of
any remedy provided in this Agreement shall not be a waiver of any consistent
remedy provided by law, and any provision in this Agreement for a specific
remedy shall not exclude other consistent remedies unless they are expressly
excluded.
18.8 Exhibits. All exhibits to which reference is made are deemed
incorporated in this Agreement whether or not the Exhibits are actually
attached.
18.9 Further Acts. Each party agrees to perform any additional acts which
may be reasonably necessary to carry out the provisions of this Agreement
including the signing and delivery of documents specified in this Agreement.
18.10 Severability. If any provisions of this Agreement or any escrow
instructions signed pursuant to this Agreement are held by a court of competent
jurisdiction to be invalid, this determination shall not affect the validity of
the remaining provisions of this Agreement.
18.11 Time of the Essence. Time shall be of the essence as to all dates
and times of performance whether contained in this Agreement or in the Escrow
Instructions.
18.12 Recording Documents. Under no circumstances may either Party record
this Agreement or any amendment thereto or record a memorandum thereof before
Closing.
18.13 Brokers. Seller and Buyer each agree to indemnify, defend, and hold
each other harmless against any loss, liability, damage, cost, claim or expense
incurred
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by reason any brokerage fee, commission or finder's fee alleged to be payable
because of the formation of this Agreement or any dealings or other acts or
omissions of the indemnifying party regarding any broker or other intermediary
compensation for the purchase and sale of the Property. In the event the sale of
the Property to Buyer is consummated pursuant to the terms hereof, Seller agrees
to pay a brokerage commission to Xxxxx & Xxxxx and Xxxxxxx & Xxxxx pursuant to
the terms of a separate agreement.
18.14 Publicity. Except for those matters that must be disclosed to
perform the Buyer and Seller commitments under this Agreement, the parties agree
that the provisions of this Agreement are confidential business of Buyer and
Seller and no press releases concerning the transactions provided for in this
Agreement shall be made by either party before Closing without the prior written
consent of the other party which consent may be withheld as the other decides in
its sole discretion.
18.15 Applicable Law. This Agreement shall be construed and enforced in
accordance with and its performance shall be governed by the law of the State of
California including any other federal or local law, regulation or ordinance
that apply as provided in this Agreement.
18.16 Construction. This Agreement has been prepared by Seller and its
professional advisors and reviewed by Buyer and its professional advisors.
Seller and Buyer and their respective advisors believe that this Agreement is
the result of their negotiation 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.
18.17 Survival of Provisions. The covenants, agreements, representations
and warranties of both Buyer and Seller set forth in this Agreement (including
any certification by Seller pursuant to any Seller Estoppel Certificate), shall
survive the recordation of the Deed and the Close of Escrow for a period of
twelve (12) months.
18.18 Holidays. Whenever this Agreement provides for a date or period of
time on or before which date certain acts or events are to occur, if such date
or last day of such period falls on a Saturday, Sunday or legal Holiday in the
State of California, the date shall be deemed to fall on the next business day.
18.19 Entire Understanding. This Agreement contains the entire
understanding between the Parties and supersedes any prior understandings or
written or oral agreements between them regarding the purchase and sale of the
Property. There are no representations, agreements, arrangements or
understandings, oral or written, between the parties hereto relating to the
subject matter of this Agreement which are not fully expressed in this
Agreement. The parties further intend that this Agreement constitutes the
complete and exclusive statement of its terms and that no extrinsic
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evidence whatsoever may be introduced in any judicial proceeding involving this
Agreement.
18.20 No Obligations to Third Parties. Except as otherwise expressly
provided herein, the execution and delivery of this Agreement shall not be
deemed to confer any rights upon, nor obligate any of the parties thereto, to
any person or entity other than the parties hereto.
18.21 Limitation of Liability. Buyer acknowledges and agrees that neither
the trustees, shareholders, officers, investment managers, employees, partners
nor advisors of Seller, assume any personal liability for obligations entered
into by or on behalf of Seller. Notwithstanding any other provision of this
Agreement to the contrary, in no event shall Seller have any liability for
speculative, special, consequential, punitive, or any other damages other than
actual damages under this Agreement and in no event will Seller's liability for
actual damages exceed the sum of $1,000,000.00.
IN WITNESS WHEREOF, parties have executed this Agreement together with the
Exhibits attached hereto by their duly authorized signatories effective as of
the day and year last written below.
SELLER: BUYER:
PACIFICA CALIFORNIA/APOLLO, LLC, a SKECHERS USA, INC.,
California limited liability company a Delaware corporation
By: /s/ XXXXXX XXXXX By: /s/ XXXXX XXXXXXXX
-------------------------------- -------------------------------------
Xxxxxx Xxxxx, Manager Name: Xxxxx Xxxxxxxx
-----------------------------------
Its: CFO
------------------------------------
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------
Its: VP of Business Affairs
------------------------------------
Dated: ___________, 2000 Dated: 11-13, 2000
Place: Los Angeles, CA Place: Los Angeles, CA
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EXHIBIT A
Legal Description of the Property
Parcel A as created by that certain Declaration of Lot Consolidation recorded
October 29, 1987, Instrument No. 00-0000000, Official Records, also described
as:
XXXX 00, 00 XXX 00 XX XXXXX 2 OF CARNATION VILLA TRACT, IN THE CITY OF MANHATTAN
BEACH, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 7 PAGE 42 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THAT PORTION OF SAID LOT 11, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID XXX 00, XXXXXX XXXXX 00 DEGREES 45
MINUTES 30 SECONDS WEST ALONG THE NORTH LINE OF SAID LOT 11 A DISTANCE OF 12.00
FEET; THENCE SOUTH 00 DEGREES 09 MINUTES 00 SECONDS WEST, A DISTANCE OF 199.96
FEET TO A POINT OF CURVATURE; THENCE THROUGH A CURVE, CONCAVE TO THE NORTHWEST,
HAVING A RADIUS OF 25 FEET, A DISTANCE OF 39.31 FEET TO A POINT OF TANGENCY ON
THE SOUTH LINE OF SAID LOT 11; THENCE SOUTH 89 DEGREES 45 MINUTES 30 SECONDS
EAST ALONG THE SOUTH LINE OF SAID LOT 11 A DISTANCE OF 37.04 FEET TO THE
SOUTHEAST CORNER OR SAID LOT 11; THENCE NORTH 00 DEGREES 09 MINUTES 00 SECONDS
EAST ALONG THE EAST LINE OF SAID LOT 11 A DISTANCE OF 225.00 FEET TO THE POINT
OF BEGINNING.
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EXHIBIT B
ESCROW INSTRUCTIONS
To: Chicago Title Company Escrow No._________
____________________________
____________________________ _____________, 2000
The attached Agreement for Purchase and Sale of Real Property and Escrow
Instructions dated November 13, 2000 (herein referred to as the "Agreement") by
and between Pacifica California/Apollo, LLC, a California limited liability
company, collectively as Seller, and Skechers USA, Inc., a
_________________________, as Buyer, together with the escrow instructions
provided below are your escrow instructions. You as Escrow Holder are authorized
to act thereunder as provided therein. You are only to be concerned with the
sections in the Agreement that pertain to the Escrow Holder. All other terms of
the Agreement are matters between the Buyer and Seller.
ARTICLE 1
SPECIAL PROVISIONS
1. Upon opening Escrow, Buyer shall deposit the Purchase Price Deposit in
the principal amount of Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00) by cash, bank cashier's check, or wire transfer in
immediately available funds.
2. Except as otherwise provided in the Agreement, if written objection is
filed with you by Buyer or Seller regarding any Escrow Holder action, you
are directed to hold all money and documents in this escrow and take no
further action until otherwise directed by either the mutual written
instructions of Buyer and Seller or by final order of a court of
competent jurisdiction or the Referee under Article 17 of the Agreement.
3. You shall establish an interest bearing escrow account for receipt of any
funds or payments you receive from Buyer or Seller as provided in the
Agreement.
4. All sums to be paid by you to the Seller upon Closing shall be by wire
transfer in immediately available funds for credit to the following
account:
Account Name:
Account Number:
Bank Name:
Bank Location:
ABA No.:
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GENERAL PROVISIONS
1. These escrow instructions embody, by reference above, those certain
instructions executed by and between Seller and Buyer, as identified in the
Purchase and Sale Agreement ("Agreement")
2. In the event of any conflict or inconsistency between these escrow
instructions and those in the Agreement, these instructions shall fully control
as between all parties to this escrow and the escrow holder.
3. The escrow holder is fully empowered by the parties hereto to decline to
perform some of the acts it is or may be instructed to perform under Agreement,
if in the considered opinion and sound judgment of the escrow holder those acts
are too onerous, hazardous, or not with the ordinary scope of the escrow
holder's activity.
4. The parties hereto fully understand the total responsibility and agency
authority of the escrow holder is limited to those actions requiring that
performance and compliance by the principals that are identified as conditions
precedent to the recording of the documents and delivery of the instruments to
the respective parties entitled thereto, and the disbursement of funds in escrow
as a consequence of said closing. The parties hereto, by execution of these
instructions acknowledge that the escrow holder assumes no responsibility or
liability for the supervision of any act or the performance of any condition
which is a condition subsequent to the closing of this transaction.
5. Any provisions of the Agreement notwithstanding, the escrow holder shall have
the right and authority to withhold any action and require the written consent
of all necessary parties if, in the judgment of the escrow holder, such action
calls or appears to require the use of discretionary judgment by the escrow
holder.
6. "Close of Escrow" shall mean the day the deed and other papers are filed for
record.
7. All adjustments and/or prorations are to be made on the basis of a thirty
(30) day month, unless escrow holder is otherwise instructed in writing. Escrow
holder is to use the information contained in the last available tax statement;
rental statement as furnished by the Seller and beneficiary's statement provided
by the Lender and fire insurance policies delivered into escrow as the basis of
prorations.
8. Funds deposited into this escrow are to be maintained in a Federally Insured
trust account, and any escrow related services provided to escrow holder by any
depository bank or savings and loan association are hereby consented to and
approved.
9. Proceeds of this escrow are to be disbursed by your check payable to the
parties as their names are signed hereto, and your checks and documents may be
mailed to the addresses set forth in these instructions.
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10. If for any reason funds are retained or remain in escrow after the closing
date, you are to deduct therefrom a reasonable monthly charge as custodian
thereof of not less than Ten Dollars ($10.00) per month.
11. You are instructed to furnish any broker or lender identified with this
transaction, or anyone acting on behalf of said lender, any information
concerning this escrow, copies of all instructions, amendments, and statements
upon request.
12. If the conditions of this escrow have not been complied with at the time
provided herein, you are nevertheless to complete the same as soon as the
conditions (except as to time) have been complied with, unless I shall have made
written demand upon you for the return of money and/or instruments deposited by
me. Either principal hereunder claiming to exercise the right of revocation of
your agency as escrow holder of the escrow shall file notice and demand for
revocation with your office, in writing, in duplicate. You shall promptly mail
one copy of such writing to the other principal at his address stated herein.
Unless written objection thereto shall be filed in your office by such other
principal within ten (10) days, exclusive of Sundays and legal holidays;
thereafter you are instructed to comply with such notice and demand upon payment
of your accrued charges. In the event that such written objection shall be
filed, you are authorized, but not obligated, to hold all money and instruments
in this escrow pending agreement of the principals or order of a court of
competent jurisdiction.
13. No notice, demand or change of instructions, except a demand for revocation
made in accordance with the foregoing paragraph, shall be of any effect in this
escrow unless given in writing by all parties affected thereby.
14. You shall be under no obligation or liability for a failure to inform either
party regarding any sale, loan, exchange, or other transaction or facts within
your knowledge, even though some concern the property described herein provided
they do not prevent your compliance with these instructions, nor shall you be
liable for the sufficiency or correctness as to any form, manner of execution,
or validity of any instrument deposited into this escrow, nor as to the
identity, authority, or rights of any person executing the same. Your liability
as escrow holder shall be confined to the things specifically provided for in
the written instructions in this escrow.
15. Should you, before or after the close of this escrow, receive or become
aware of any conflicting demands or claims with respect to this escrow or the
right of any of the parties hereto, or any money or property deposited herein or
affected hereby, you shall have the absolute right at your election to
discontinue any or all further acts on your part until such conflict is resolved
to your satisfaction, and you shall have the further right to commence or defend
any action or proceedings for the determination of such conflict. All parties
hereto, jointly and severally, agree to pay on demand, as well as to indemnify
and hold you harmless from and against all costs, damages, judgments,
obligations, liabilities, and expenses of any
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kind or nature, including reasonable attorney's fees, and including, but without
limiting the generality of the foregoing, a suit of interpleader brought by you,
which in good faith, you may incur or sustain in connection with or arising out
of this escrow, and you are hereby given a lien upon all of the rights, titles,
and interests of each of the undersigned in all escrowed papers and other
properties and moneys deposited in the escrow to protect your rights and to
indemnify and reimburse you under this agreement. In the event you file a suit
of inter- pleader, you shall be ipso facto be fully released and discharged from
all obligations further to perform any and all duties or obligations imposed
upon you in this escrow.
16. Any amended, supplemental, or additional instructions given shall be subject
to the foregoing conditions.
17. ALL PARTIES TO THIS ESCROW ACKNOWLEDGE THAT CHICAGO TITLE COMPANY DOES NOT
PROVIDE LEGAL ADVICE NOR HAS IT MADE ANY INVESTIGATION, REPRESENTATIONS, OR
ASSURANCES WHATSOEVER REGARDING THE COMPLIANCE OF THIS TRANSACTION WITH ANY TAX,
SECURITIES, OR OTHER LAWS OF THE UNITED STATES OR THE STATE IN WHICH THE
TRANSACTION IS CONSUMMATED.
The escrow fee is payable upon close of this escrow and is to be divided between
the parties as provided in the Agreement.
THE FOREGOING TERMS, CONDITIONS, PROVISIONS AND INSTRUCTIONS HAVE BEEN READ AND
ARE UNDERSTOOD AND AGREED TO BY EACH OF THE UNDERSIGNED.
Seller(s): Buyer(s):
-------------------------------- ------------------------------
-------------------------------- ------------------------------
-------------------------------- ------------------------------
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EXHIBIT C
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
--------------------------
--------------------------
--------------------------
Attention:
----------------
MAIL TAX STATEMENTS TO:
same address as above
(Above Space For Recorder's Use Only)
1 GRANT DEED
THE UNDERSIGNED GRANTOR DECLARES:
Documentary Transfer Tax is $
( ) computed on full value of property conveyed, or
( ) computed on full value less value of liens and encumbrances remaining at
time of sale
( ) City of ______________, __________ County.
FOR A VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED,
_______________________, LLC, a California limited liability company
("Grantor"), hereby grants to _________________________ ("Grantee"), the real
property located in the County of _____________, State of California, described
on Exhibit "A" attached hereto ("Property").
Dated: _________________, 2000
---------------------------
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EXHIBIT D
General Assignment
THIS GENERAL ASSIGNMENT ("Assignment") is executed this ___ day of
_________, 2000, by and between _________________________ (herein referred to as
("Assignor") and _____________________, a _________________________(herein
referred to as the "Assignee"), with reference to the following:
RECITALS
A. Assignor has of even date herewith conveyed to Assignee that certain
property described on Exhibit A attached hereto (herein referred to as the
"Property"), pursuant to that certain Agreement of Purchase and Sale of Property
and Escrow Instructions dated __________, 2000, (the "Sale Agreement") by and
between Assignor, as "Seller", and ______________, a California ______________,
as "Buyer".
B. In connection with the conveyance of the Property, Assignor and
Assignee intend that Assignor's right, title and interest in and under any
existing plans, specifications, license, permits, certificates, agreements and
other instruments that pertain to the Property to be assigned, conveyed and
transferred to Assignee.
NOW, THEREFORE, the parties hereto agree as follows:
Governmental Approvals and Certificates. To the extent permissible by
law, Assignor hereby assigns, transfers and conveys to Assignee any
and all of Assignor's right, title and interest in and under any
existing grading and building permits, certificates of occupancy and
subdivision maps and other permits, licenses, approvals and
certificates that were obtained solely for the Property and that are
not used or useful for any business purpose or any other property of
Assignor other than the Property (collectively, "Governmental
Approvals").
Plans and Specifications. Assignor hereby assigns, transfers and conveys
to Assignee any and all of Assignor's right, title and interest in
and to all existing maps, plans, specifications and related documents
prepared or used by Assignor for the development and construction of
any and all improvements located on the Property (collectively,
"Plans").
Warranty. Assignor makes no representation or warranty whatsoever
regarding the Governmental Approvals or Plans which are assigned,
transferred and conveyed to Assignee, and such Governmental Approvals
and Plans are assigned hereby without recourse "as is", "where is"
and "with all faults" in existing condition as of the
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Closing. ASSIGNOR HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY
INCLUDING, WITHOUT LIMITATION, ASSIGNABILITY, MERCHANTABILITY AND
FITNESS FOR ANY PARTICULAR PURPOSE.
Successors and Assigns. This Assignment shall inure to the benefit of,
and be binding upon, the successors, executors, administrators, legal
representatives and assigns of the parties hereto.
Governing Law. This Assignment shall be construed under and enforced in
accordance with the laws of the State of California.
Further Assurances. At no cost or liability to Assignor, Assignor shall
(i) cooperate with Assignee to fully vest in Assignee the right,
title and interest herein intended to be assigned and (ii) execute
and deliver to Assignee and documents, instruments or conveyances
reasonably required to accomplish such transfer. If any dispute
arises regarding this assignment, this dispute shall be litigated in
accordance with Section 17 "Settlement of Disputes" of the Sales
Agreement which is incorporated herein by reference.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
effective as of the date set forth above.
"Assignor"
-------------------------------------
"Assignee"
-------------------------------------
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EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made
this _______ day of ____________, 2000, by and between ______________________
("Assignor") and _________________________________________ ("Assignee").
WITNESSETH:
WHEREAS, Assignor and Assignee are parties to that certain
Purchase and Sale Agreement with Escrow Instructions (the "Agreement") dated as
of ________ 2000, respecting the sale of certain "Property" (as described in the
Agreement). Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Agreement.
WHEREAS, under the Agreement, Assignor shall assign to Assignee
and Assignee shall assume all of Assignor's right, title and interest in and to
(i) the Leases, and (ii) the Service Contracts (defined below). The "Service
Contracts" shall mean any and all management agreements, service contracts,
brokerage agreements, art contracts, landscaping contracts, equipment, leases,
maintenance, agreements and all other contracts for the provision of labor,
services, materials or supplies to or for the benefit of the Property. A list of
the Service Contracts are set forth on Schedule "1" attached hereto.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Assignor hereby assigns,
sells, transfers, sets over and delivers unto Assignee all of Assignor's estate,
right, title and interest in and to the Leases and Service Contracts, and
Assignee hereby accepts such assignment.
By acceptance of this Assignment, Assignee hereby assumes the
performance of all of the terms, obligations, covenants and conditions imposed
upon Assignor under the Leases and Service Contracts, accruing or arising on or
after the date hereof (collectively, the "Assigned Obligations").
In the event any party hereto institutes any action or proceeding
against the other party with regard to this Assignment, the prevailing party in
such action shall be entitled to recover, in addition to the cost of the suit,
its actual attorneys' fees.
This Assignment shall be binding upon and inure to the benefit of
the successors, assignees, personal representatives, heirs and legatees of all
the respective parties hereto.
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This Assignment and the obligations of the parties hereunder shall
survive the closing of the transaction referred to in the Agreement and shall
not be merged therein, shall be binding upon and inure to the benefit of the
parties hereto, their respective legal representatives, successors and assigns,
shall be governed by and construed in accordance with the laws of the State of
California applicable to agreements made and to be wholly performed within said
State and may not be modified or amended in any manner other than by a written
agreement signed by the party to be charged therewith.
This Assignment may be executed in counterparts, each of which
shall be an original and all of which counterparts taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed and
delivered this Assignment as of the day and year first above written.
ASSIGNOR:
----------------------------------------
By:
-------------------------------------
Its:
ASSIGNEE:
----------------------------------------
By:
-------------------------------------
Its:
-------------------------------
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SCHEDULE 1
LIST OF SERVICE CONTRACTS
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EXHIBIT F
FORM OF TENANT ESTOPPEL CERTIFICATE
------------------------
------------------------
------------------------
Re: __________________ (the "Property")
Suite ____________
Dear _________:
It is our understanding that you are purchasing the ___________________ and, in
connection therewith, have required this certification by the undersigned.
Accordingly, the undersigned, as Tenant under that certain lease (the "Lease")
dated ___________________, ____ (a copy of which is attached hereto and made a
part hereof), made and entered into with __________________________
("Landlord"), hereby certifies to you as follows:
1. Except as set forth below, Tenant has not assigned, sublet, mortgaged,
pledged, hypothecated, encumbered or otherwise transferred all or any part of
Tenant's interest in the Lease or the subject premises.
2. The term of the Lease commenced on _____________, ____ and expires on
___________, _______.
3. The Lease is in full force and effect and has not been amended, modified or
supplemented in any way (except as set forth in Paragraph 4 below).
4. Attached hereto is a true and complete copy of the Lease. The Lease has
(check one)
( ) not been assigned, sublet, mortgaged, pledged, hypothecated,
encumbered or otherwise transferred, and there are no other
agreements, written or oral, between Landlord and Tenant with
respect to the Lease or the Premises.
( ) been assigned, sublet, mortgaged, pledged, hypothecated,
encumbered or otherwise transferred by the following described
agreements, copies of which are attached hereto:
------------------------------------------------------------------
------------------------------------------------------------------
---------------.
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5. Tenant has accepted, and is now in full, actual and complete possession of
and is now conducting business in the premises.
6. Tenant acknowledges that the Lease will be assigned to _______________ or its
assigns (the "Purchaser").
7. The minimum monthly rental under the Lease is $________ and has been paid
through ____________________. No rent under the Lease has been paid for more
than thirty (30) days in advance of its due date. Tenant's percentage rental
obligation under the Lease is _____________________.
8. A security deposit in the sum of $_______________ has been deposited with the
Landlord.
9. All work required to be performed by the Landlord under the Lease has been
satisfactorily completed and all required contributions by Landlord to Tenant on
account of Tenant's improvements have been received.
10. To the best of Tenant's knowledge, there are no defaults on the part of
Landlord or Tenant under the Lease and no event has occurred and no conditions
exist which with the passing of time or giving of notice would constitute a
default under the Lease by the Landlord or Tenant hereunder.
11. Tenant is in full compliance with its obligations under the Lease to
maintain insurance.
12. The Lease, amended as noted in Item 4 above, represents the entire agreement
between Landlord and Tenant as to the premises.
All provisions of the Lease and the amendments thereto (if any) referred to
above are hereby ratified by Tenant.
This certificate is being made with the knowledge that you may obtain financing
to purchase the Property and that you and your lender may rely on the
representations contained herein.
Sincerely,
Tenant:
--------------------------------
--------------------------------
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EXHIBIT G
FORM OF SELLER ESTOPPEL CERTIFICATE
------------------------
------------------------
------------------------
Re: __________________ (the "Property")
Suite ____________
Dear _________:
In connection with your purchase of the referenced Property, you have required
this certification by the undersigned. Accordingly, the undersigned, as the
Landlord under that certain lease (the "Lease") dated ___________________, ____
(a copy of which is attached hereto and made a part hereof), made and entered
into with __________________________ ("Tenant"), hereby certifies to you as
follows:
1. Except as set forth below, to Landlord's knowledge and belief, Tenant has not
assigned, sublet, mortgaged, pledged, hypothecated, encumbered or otherwise
transferred all or any part of Tenant's interest in the Lease or the subject
premises.
2. The term of the Lease commenced on _____________, ____ and expires on
___________, ______.
3. The Lease is in full force and effect and, to Seller's knowledge and belief,
has not been amended, modified or supplemented in any way (except as set forth
in Paragraph 4 below.
4. Attached hereto is a true and complete copy of the Lease. To Seller's
knowledge, the Lease has (check one)
( ) not been assigned, sublet, mortgaged, pledged, hypothecated,
encumbered or otherwise transferred. There are no other
agreements, written or oral, between Landlord and Tenant
with respect to the Lease or the Premises.
( ) been assigned, sublet, mortgaged, pledged, hypothecated,
encumbered or otherwise transferred by the following
described agreements, copies of which are attached hereto:
------------------------------------------------------------
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------------------------------------------------------------
----------------------------------------.
5. Tenant has accepted, and to Seller' knowledge and belief, is now in full,
actual and complete possession of and is now conducting business in the
premises.
6. Landlord acknowledges that the Lease will be assigned to _______________ or
its assigns (the "Purchaser").
7. The minimum monthly rental under the Lease is $________ and has been paid
through ____________________. No rent under the Lease has been paid for more
than thirty (30) days in advance of its due date. Tenant's percentage rental
obligation under the Lease is
_______________________.
8. A security deposit in the sum of $_______________ has been deposited with the
Landlord.
9. To Landlord's knowledge and belief, all work required to be performed by the
Landlord under the Lease has been satisfactorily completed and all required
contributions by Landlord to Tenant on account of Tenant's improvements have
been received.
10. To Landlord's knowledge and belief, there are no defaults on the part of
Landlord or Tenant under the Lease and no event has occurred and no conditions
exist which with the passing of time or giving of notice would constitute a
default under the Lease by the Landlord or Tenant hereunder.
11. To Landlord's knowledge and belief, Tenant is in full compliance with its
obligations under the Lease to maintain insurance.
12. To Landlord's knowledge and belief, the Lease, amended as noted in Item 4
above, represents the entire agreement between Landlord and Tenant as to the
premises.
All provisions of the Lease and the amendments thereto (if any) referred to
above are hereby ratified by Landlord.
This certificate is being made with the knowledge that you may obtain financing
to purchase the Property and that you and your lender may rely on the
representations contained herein.
Sincerely,
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Landlord:
----------------------------
----------------------------
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EXHIBIT H
DUE DILIGENCE MATERIALS
1. A CURRENT RENT ROLL, CERTIFIED BY THE SELLER TO BE TRUE AND CORRECT AS OF
THE DATE ISSUED.
-- CURRENT AS OF 10/1/00
2. A COPY OF ALL LEASES AFFECTING THE PROPERTY, TOGETHER WITH ALL THE
AMENDMENTS AND SUPPLEMENTS THERETO.
-- SEE ATTACHED LIST
3. ANY AND ALL OTHER CONTRACTS COVERING ANCILLARY INCOME.
-- SITE LICENSE AGREEMENT WITH EZIAZ, INC.
4. A COPY OF INCOME ANd EXPENSE REPORTS RELATING TO THE OPERATION OF THE
PROPERTY FOR 1998, 1999 AND 2000 YEAR-TO-DATE.
-- BUDGET COMPARISON DATED 1/00-9/00
-- BUDGET COMPARISON DATED 1/99-12/99
-- BUDGET COMPARISON DATED 6/98-12/98
5. COMMON AREA MAINTENANCE (CAM) CALCULATIONS SHOWING BASE YEAR AMOUNTS FOR
ALL TENANTS.
-- SPREADSHEET WITH BASE YEAR CALCULATIONS
6. RECONCILIATION OF ACTUAL 1999 OPERATING EXPENSES FOR 1999 CAM SCHEDULE.
-- CAM REC'S AND 2000 ESTIMATED EXPENSES INDIVIDUAL SHEETS FOR EACH
TENANT (DOESN'T INCLUDE CAM REC'S FOR TRADEWINDS ESCROW AND
PANTHER SOFTWARE)
7. OPERATING BUDGET FOR 2000.
8. Tenant ledgers for the past twelve (12) months showing amounts billed,
amounts paid and Tenant payment history.
9. Tenant improvements and leasing commissions incurred on all leases
commencing during the previous twelve (12) months.
10. A copy of the most recent tax xxxx. Please include information on any
pending appeals, pending or potential assessments and tax expense amounts
included in operation expense amounts for tenants that have Prop. 13
protection, upon property sale.
-- Tax bills for 1997, 1998 and 1999
11. Copies of all monthly utility bills for 1999 and 2000 year-to-date
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-- SCE bills through 10/00
-- Refuse bills through 10/00
-- Water bills for through 10/00
12. A copy of all currently effective vendor service, property management or
any other contracts that affect the Property.
-- Maintenance Agreement with VTS (elevator)
-- Maintenance Agreement with Chemco Products
-- Maintenance Agreement with Exterminetics
-- Maintenance Agreement with Southwest Landscape
-- Maintenance Agreement with Temp Tec
-- Maintenance Agreement with Pacifica Capital Group
-- Listing agreement with Xxxxxxx & Xxxxx dated 3/25/99
13. Copy of all insurance policies currently in force on the Property.
14. Preliminary Title Report and copies of all underlying documents.
-- Prelim Report dated 4/28/00
15. A copy of the most recent survey that seller has in its possession.
-- ALTA survey dated 10/3/97
-- ALTA survey dated 3/25/90
16. A copy of all the available architectural and engineering plans and
specifications and all tenant improvement plans which seller has in its
possession.
-- Available in Pacifica's offices for review
17. A copy of any and all Environmental Reports that seller has in its
possession.
-- Phase I dated 10/2/97
18. A copy of any and all soils, site assessment and physical inspection
reports that seller has in its possession.
-- Seismic Report dated 12/2/97
19. All equipment and/or building warranties, e.g., roof, compressors, etc.
-- Not applicable. Pacifica's files are available for review.
20. A copy of any and all correspondence and documentation to any litigation
that may be in process or anticipated.
-- Letter from Xxx Xxxxxxx on behalf of AppleOne/Xxxxxxx-Xxxxxx
21. A copy of any and all reports or correspondence from any City, County or
Federal Governmental Agencies regarding any aspect of the Property or its
condition or operation.
-- Not applicable. Pacifica's files are available for review.
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EXHIBIT I
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS that _______________________
____________________ ("Seller"), for good and valuable consideration, the
receipt of which is hereby acknowledged, has sold, granted, assigned, conveyed
and transferred to ______________ ("Buyer"), and by these presents does hereby
sell, grant, assign, convey and transfer to Buyer all of Seller's right, title
and interest in and to the furnishings, equipment and other personal property
(the "Personal Property") located on and used in connection with the Property,
but specifically excluding the personal property listed on Schedule 1 attached
hereto. Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Purchase and Sale Agreement with Escrow
Instructions dated _________________ between Buyer and Seller.
TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns to
and for its own use and behalf forever.
This Xxxx of Sale shall be governed by and construed in accordance with
the laws of the State of California.
This Xxxx of Sale shall be without representation or warranty by and
without recourse to Seller.
IN WITNESS WHEREOF, Seller has executed this instrument on this ___ day
of ___________, 200__.
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SCHEDULE 1 TO EXHIBIT I
None
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