ARVIDA/JMB PARTNERS, L.P.-II
Exhibit 10.16
AGREEMENT FOR PURCHASE AND SALE
OF
REAL PROPERTY
AND
ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW
INSTRUCTIONS ("Agreement") is made and entered into this 25th day of
October, 1996, by and between ARVIDA/JMB PARTNERS, L.P.-II, a Delaware
limited partnership ("Seller"), and STARWOOD/TALEGA ASSOCIATES, L.L.C., a
Delaware limited liability company ("Buyer").
R E C I T A L S
WHEREAS, Seller is the owner in fee simple of those certain parcels
of real property (collectively, the "Land") located in southeast Orange
County, California, which are situated partially within the incorporated
limits of the City of San Clemente and partially within the unincorporated
territory of the County of Orange, all of which are legally described in
EXHIBIT A, which is attached hereto and by this reference made a part
hereof and all buildings, structures and improvements located thereon
(collectively, the "Improvements"); and
WHEREAS, Buyer desires to purchase from Seller and Seller desires to
sell to Buyer the Land, the Improvements and the other property as
hereinafter described at an agreed upon price and under specified terms and
conditions.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
Description, Scope and Disposition of the Property
Section 1.01 DESCRIPTION AND SCOPE OF THE PROPERTY. For
purposes of this Agreement, the term "Property" shall include the
following:
(a) the Land and Improvements, together with all of Seller's right,
title and interest, if any, in and to all tenements, hereditaments,
privileges, and appurtenances in any way belonging or appertaining thereto;
(b) all tangible personal property related exclusively to the Land
now owned by Seller which such personal property is listed on SCHEDULE
1.01(b), which is attached hereto and by this reference made a part hereof
(collectively, the "Personal Property");
(c) all right, title and interest of Seller to land, if any, lying
in the bed of any street, road, or avenue, open or proposed, at the foot
of, adjoining or below the Land and in and to any strips and gores
adjoining the Land;
(d) all of the Seller's right, title and interest in and to all
contracts or other similar instruments in connection with the ownership,
management, development, operation and maintenance of the Land and
Improvements which are "Assumed Contracts" (as hereinafter defined);
(e) all of Seller's right, title and interest in and to all plans
and specifications, all drawings, surveys, maps, engineering and
environmental reports and other technical descriptions, test results,
reports and studies relating to the Land and Improvements (the "Plans and
Specifications");
(f) all financial statements, income and expense reports relating
to the Land and Improvements; and
(g) all of Seller's right, title and interest in and to all
documents, instruments and agreements relating to the "Bond Debt" (as
hereinafter defined).
(h) all of Seller's right, title and interest in and to any
intangible property owned or held by Seller in connection with the Land or
the Improvements, including, without limitation, the following
(collectively, the "Intangible Property"): (i) all development
entitlements and agreements related to development of the Land or
Improvements (to the extent Seller may assign its interest in such
agreements to Buyer); (ii) any and all entitlements Seller may own, if any,
to water and sewer capacity to serve the Property; (iii) all transferable
licenses, warranties and guaranties relating to the Land or the
Improvements or any part thereof, including without limitation, those
identified on the list of material licenses and warranties as SCHEDULE
1.01(h)(iii), which is attached hereto and by this reference made a part
hereof (the "Licenses"); (iv) all transferable consents, authorizations,
variances or waivers, all legislative and adjudicative or quasi-judicial
approvals, including, without limitation, any planned unit development
permits, conditional use permits, development agreements, tentative or
final subdivision or parcel maps, use permits, coastal development permits,
building or grading permits, covenants or other agreements running with the
Land, all documentation prepared pursuant to the California Environmental
Quality Act, California Public Resources Code Sec. 21000 et seq., any
ordinances, resolutions, or any other approvals from any governmental
agency, bureau, board, commission, court, department, official, political
subdivision, tribunal or other instrumentality of any government, whether
federal, state or local, domestic or foreign (collectively, a "Governmental
Authority") relating to the Land or the Improvements or any part thereof
(collectively, "Entitlements"); and (v) all building and trade names;
provided, however, that Buyer shall not receive any right, title or
interest in or to, or right to use the names "Arvida," "JMB," "Arvida/JMB,"
or any derivatives thereof.
Buyer acknowledges that, except as specifically set forth in Article
5 of this Agreement, Seller is making no representation or warranty as to
the condition of title to the Land, to the existence, validity or status of
any entitlements to develop the Land, to the accuracy or efficacy of any
architectural or engineering documents related to development of the Land
or to the availability, validity and sufficiency of any water and sewer
infrastructure and infrastructure capacity to satisfy requirements to
develop the Land.
Section 1.02 DISPOSITION OF THE PROPERTY. It is the intention
of the parties hereto that following conveyance of the Property to Buyer in
accordance with the terms of the Agreement, Seller shall have no interest
in the Property, with the exception of a note secured by a deed of trust
for a portion of the "Purchase Price" (as hereinafter defined).
ARTICLE 2
Terms and Purchase and Sale
Section 2.01 PURCHASE AND SALE OF PROPERTY. Subject to the
provisions, terms and conditions of this Agreement, Buyer shall purchase
from Seller and Seller shall sell to Buyer the Property.
Section 2.02 CONDITIONS TO SELLER'S OBLIGATIONS. The obligation
of Seller to sell the Property to Buyer is contingent upon the satisfaction
of the following conditions, unless waived by Seller in Seller's sole and
absolute discretion:
(a) BONDS. Buyer hereby acknowledges that the Land and
Improvements are encumbered by a debt in favor of the Santa Margarita Water
District ("District") and/or Improvement District nos. 7 and 7A of the
District in the amount of approximately Sixty-Two Million and No/100
Dollars ($62,000,000.00) ("Bond Debt"). The Bond Debt was incurred as a
result of a bond issue and sale by the District, the proceeds of which were
used to finance certain water and sewer infrastructure benefiting the Land.
The annual debt service required to repay the bonds is approximately Six
Million and No/100 Dollars ($6,000,000.00) per year. Buyer further
acknowledges that the District levies standby charges, ad valorem taxes and
assessments on the Land to pay the debt service on the bonds and to finance
other facilities and operations of the District that benefit the Land and
Improvements. Sale of the Property by Seller to Buyer is contingent upon
(1) a full and unconditional release (in form and substance satisfactory to
Seller in its reasonable discretion) of Seller by the District from all
liabilities and obligations connected with the Bond Debt and standby
charges, ad valorem taxes, reimbursements and assessments for payment of
debt service on the Bond Debt and other facilities and operations of the
District, including, but not limited to, liabilities or obligations arising
out of that certain Agreement for Payment of Diemer Intertie Sublease
Payments, Principal and Interest on Bonds of Improvement District No. 7 and
Annual Budget Deficits, by and between Seller and the District, dated as of
January 15, 1990, and that certain Letter of Credit Agreement by and
between Seller and the District, dated July 27, 1990, given at or before
conveyance of the Property to Buyer; and (2) a release by the District of
its statutory lien against the Property and termination and dismissal (with
prejudice) of the statutory foreclosure action, against the Property,
Seller hereby agreeing to make the payments to the District required under
Section 8.01 in order to obtain the releases under this Section 2.01(a)(2);
(b) BANK OF AMERICA. Buyer hereby acknowledges that the Property
is encumbered by a deed of trust in favor of Bank of America NT&SA ("Bank
of America"). The sale of the Property from Seller to Buyer is contingent
upon the approval of such sale in accordance with the terms and conditions
of this Agreement by Bank of America, a full and unconditional release of
Seller by Bank of America, on term and conditions satisfactory to Seller in
its reasonable discretion, from any and all liability, including, without
limitation, any deficiency resulting from the difference between the amount
of the encumbrance represented by the deed of trust and the "Purchase
Price" (as hereinafter defined) and a full reconveyance of said deed of
trust as it relates to the Property;
(c) SECURITY. Seller has posted security in the form of
subdivision improvement bonds, letters of credit and other security
instruments (the "Security Instruments) with the City of San Clemente,
County of Orange, and other government entities in compliance with
California law, local ordinances and development approval conditions. Sale
of the Property by Seller to Buyer is contingent upon Buyer delivering to
the holders of the Security Instruments replacement Security Instruments in
the form and substance satisfactory to such holders;
(d) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer set forth in this Agreement and in
the "Buyer Ancillary Documents" (as hereinafter defined) shall be true and
correct in all material respects on the Closing Date with the same force
and effect as though made on and as of such date;
(e) PERFORMANCE OF AGREEMENTS. Buyer shall have timely complied in
all material respects with all of its covenants and agreements set forth in
this Agreement and in any Buyer Ancillary Document to be performed by Buyer
on or prior to the Closing Date;
(f) BUYER'S CERTIFICATES. Buyer shall have delivered to Seller a
certificate, dated the Closing Date and signed by an authorized
representative, certifying as to its compliance with Sections 2.02(c) and
(d);
(g) BUYER ANCILLARY DOCUMENTS. Buyer shall have delivered to
Seller the Buyer Ancillary Documents; and
(h) ASSUMPTION AND RELEASE. Sale of the Property by Seller to
Buyer is contingent upon assumption of Seller's obligations by Buyer and/or
release of Seller from any and all liability under the Assumed Contracts
arising out of events occurring from and after the Closing Date.
As used in this Section 2.02, "Seller" shall mean Arvida/JMB
Partners, L.P.-II, each present or future "Constituent Partner" (as
hereinafter defined) in or agent of Seller, and each of the present and
future shareholders, officers, directors, members, managers, employees,
trustees, beneficiaries or agents of any corporation or other entity that
is or becomes a Constituent Partner in Seller.
Section 2.03 CONDITIONS TO BUYER'S OBLIGATIONS. The obligation
of Buyer to purchase the Property from Seller is contingent upon the
satisfaction of the following conditions, unless waived by Buyer in Buyer's
sole and absolute discretion:
(a) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller set forth in this Agreement and in
the "Seller Ancillary Documents" (as hereinafter defined) shall be true and
correct in all material respects on the Closing Date with the same force
and effect as though made on and as of such date;
(b) PERFORMANCE OF AGREEMENTS. Seller shall have timely complied
in all material respects with all of its covenants and agreements set forth
in this Agreement and in any Seller Ancillary Document to be performed by
Seller on or prior to the Closing Date;
(c) SELLER'S CERTIFICATES. Seller shall have delivered to Buyer a
certificate, dated the Closing Date and signed by an authorized
representative, certifying as to its compliance with Sections 2.03(a) and
(b);
(d) MATERIAL ADVERSE CHANGE. There shall not have occurred any
material adverse change in the condition of the Property;
(e) SELLER ANCILLARY DOCUMENTS. Seller shall have delivered to
Buyer the Seller Ancillary Documents; and
(f) REPLACEMENT SECURITY. The City of San Clemente, the County of
Orange and the other governmental entities which hold the Security
Instruments shall have accepted replacements to such Security Instruments
from Buyer.
Section 2.04 PURCHASE PRICE. The purchase price to be paid by
Buyer for the Property shall be Thirty-Three Million and No/100 Dollars
($33,000,000.00) ("Purchase Price"), as hereinafter provided.
Section 2.05 TERMS OF PAYMENT OF PURCHASE PRICE. The Purchase
Price shall be paid by Buyer to Seller, as follows:
(a) Within five (5) business days of the execution of this
Agreement by Buyer, Buyer shall tender the sum of Five Hundred Thousand and
No/100 Dollars ($500,000.00) ("Deposit") to First American Title Insurance
Company, 114 East Fifth Street, Santa Ana, California 92701 ("Escrow
Holder") for deposit in the escrow established pursuant to Section 4.01 of
this Agreement, which Deposit shall be applied to the Purchase Price at
Closing. The Escrow Holder shall invest the Deposit in an insured money
market account at a nationally recognized bank selected by the Escrow
Holder.
(b) The sum of Twenty-Six Million Five Hundred Thousand and No/100
Dollars ($26,500,000.00) to be applied to the Purchase Price shall be paid
to Escrow Holder for deposit in escrow by wire transfer on the Closing
Date.
(c) The balance of the Purchase Price shall be paid to Seller in
the form of a promissory note executed by Buyer ("Note") in favor of Seller
in the amount of Six Million and No/100 Dollars ($6,000,000.00), which Note
shall be secured by first a deed of trust ("Deed of Trust") encumbering the
Property, which Deed of Trust shall designate Seller as the beneficiary
thereunder. The Note shall bear no interest and shall be payable on or
before June 30, 1997. The Deed of Trust shall not be subordinate to any
liens on the Property securing any financing except for the assessments,
standby charges and ad valorem taxes relating to the Bond Debt. The forms
of the Note and Deed of Trust are attached as Exhibit B hereto.
Section 2.06 BROKERAGE COMMISSION. Buyer has engaged the
services of O'Donnell, Atkins Company and The Overland Company as real
estate brokers in conjunction with the transaction contemplated by this
Agreement. Brokerage commissions in the amount of Three Hundred Fifty-Five
Thousand and No/100 Dollars ($355,000.00) and One Hundred Seventy-Seven
Thousand Five Hundred and No/100 Dollars ($177,500.00) ("Brokerage
Commissions") shall be payable to O'Donnell, Atkins Company and The
Overland Company respectively by Escrow Holder from proceeds due Seller
hereunder, and from no other source, in accordance with Sections 3.04(c)
and (d) of this Agreement; provided, however, payment of the Brokerage
Commissions is contingent upon O'Donnell, Atkins Company and The Overland
Company providing satisfactory evidence to Seller that each shall have been
possessed of a valid Real Estate Broker's License issued by the Department
of Real Estate of the State of California during the entire pendency of the
transaction contemplated by this Agreement. In the event either or both
O'Donnell, Atkins Company and/or The Overland Company is unable to provide
Seller such satisfactory evidence, no Brokerage Commissions shall be
payable to such entity(ies). Payment of the Brokerage Commissions is
contingent upon the Close of Escrow of the transaction contemplated herein
in accordance with Article 4 of this Agreement. Buyer and Seller each
represent and warrant to the other that neither has employed any real
estate agent, broker, finder or adviser (other than Buyer's employment of
O'Donnell Atkins Company and the Overland Company) as its adviser or broker
in connection with this transaction. Seller agrees to and does hereby
indemnify, defend and forever hold Buyer harmless from all loss, damage,
cost, or expense (including reasonable attorney's fees) that Buyer may
suffer as a result of any claim or action brought by any other agent,
broker, finder or adviser acting or allegedly acting on behalf of Seller in
connection with this transaction. Buyer agrees to and does hereby
indemnify, defend and hold forever Seller harmless from all loss, damage,
cost or expense (including reasonable attorneys' fees) that Seller may
suffer as a result of any claim or action brought by any other agent,
broker, finder or adviser acting or allegedly acting on behalf of Buyer in
connection with this transaction.
Section 2.07 APPEAL OF REAL PROPERTY TAX ASSESSMENTS. Seller
has appealed the assessments of the Orange County Tax Assessor on the
various parcels comprising the Land for the current and prior tax years.
In the event Seller prevails in such appeal, Seller shall be entitled to
the full and complete refund of real property taxes resulting from the
appeal other than any portion of such refund which applies to the period
following the Closing Date, to which Buyer shall be entitled. In the
further event any such refund is paid subsequent to the Close of Escrow,
Buyer shall pay Seller all such sums within five (5) days of receipt
thereof. This Section 2.07 shall survive the Closing and any termination
of this Agreement.
ARTICLE 3
Due Diligence Period; Title and Survey
Section 3.01 TITLE INSURANCE. Seller has delivered to Buyer a
preliminary title report (the "Title Report") from First American Title
Insurance Company (the "Title Company") dated August 13, 1996. In
addition, within five (5) days of the date hereof, Seller shall cause to be
furnished to Buyer, at Seller's sole cost and expense, a commitment (the
"Title Commitment") to issue to Buyer at Closing an ALTA Extended Coverage
Owner's Title Policy (the "Title Policy") describing the Property, listing
Buyer as the prospective named insured, and showing the Purchase Price as
the amount of insurance coverage, together with legible true copies of all
instruments referred to in the Title Commitment as conditions or exceptions
to title to the Property (the "Exception Documents"). Seller shall pay for
all costs of the Title Report and the Title Commitment.
Section 3.02 SURVEY. On or before November 15, 1996, Seller
shall deliver to Buyer, at Seller's sole cost and expense, a survey of the
Land prepared by a licensed land surveyor, and certified as having been
prepared in accordance with ALTA Land Survey Standards and complying with
the specifications set forth on EXHIBIT C, which is attached hereto and by
this reference made a part hereof (the "Survey"), for the benefit of
Seller, Buyer, Buyer's lender, if any, and Title Company.
Section 3.03 OBJECTIONS TO TITLE AND SURVEY. If Buyer objects
to any exception set forth on the Title Commitment or any matters set forth
on the Survey, Buyer may give written notice to Seller (the "Title Notice")
of Buyer's disapproval of such exceptions ("Disapproved Title Exceptions")
on or before the later to occur of (a) five (5) days after receipt of the
Title Commitment, the Exception Documents and the Survey, and (b) the
expiration of the Due Diligence Period. All exceptions to which Buyer does
not disapprove in the Title Notice shall be deemed "Permitted Exceptions."
If Buyer fails to deliver the Title Notice to Seller on or before the later
to occur of (a) and (b) above, all such exceptions shall be deemed
Permitted Exceptions.
With regard to Disapproved Title Exceptions, Seller may but shall not
have the obligation to notify Buyer within five (5) business days of
receipt of the Title Notice whether Seller shall cure (including, without
limitation, by causing the Title Company to remove) such Disapproved Title
Exceptions from the Title Commitment. If Seller delivers notice electing
to cure all or any such Disapproved Title Exceptions, the same shall be
removed by Seller, at Seller's sole cost and expense on or before the
Closing Date. The removal by Seller of the Disapproved Title Exceptions,
after delivery of election to cure, shall constitute a condition precedent
to Buyer's obligation hereunder. If Seller does not so notify Buyer, with
respect to any Disapproved Title Exception within such five (5) business
day period, Buyer may either waive its objection and proceed towards
closing or terminate this Agreement by giving written notice to Seller of
its election within five (5) additional business days. If Buyer waives its
objection in writing, such Disapproved Title Exceptions (other than those
which Seller has elected to cure) shall be Permitted Exceptions. If Buyer
does not give such written notice within such five (5) additional days,
Buyer shall be deemed to have elected its right to terminate this Agreement
pursuant to this Section 3.03. If any Disapproved Title Exception is to be
cured by Seller pursuant to a title endorsement, such endorsement shall be
approved by Buyer in Buyer's reasonable discretion, prior to the Closing
Date. Seller shall deliver to Buyer an updated Title Commitment from the
Title Insurer evidencing the Title Insurer's willingness to issue such
title endorsement, and the issuance of such an endorsement shall constitute
a condition precedent to Buyer's obligation to purchase the Property.
Section 3.04 DUE DILIGENCE PERIOD. The "Due Diligence Period"
shall be the period commencing on the date hereof and terminating on
December 2, 1996 (the "Due Diligence Period"). As soon as reasonably
possible, but in any event, within ten (10) days of the date hereof, Seller
shall deliver, or make available, to Buyer true, correct and complete
copies of the following which are in Seller's possession or control
(collectively, the "Property Information"):
(a) all "Contracts" (as hereinafter defined);
(b) all Plans and Specifications;
(c) the Licenses;
(d) the Entitlements;
(e) real estate and/or personal property tax statements and/or
reassessment notices for the Property for 1993, 1994, 1995 and 1996;
(f) all agreements and plans relating to the availability or
furnishing of sewer, water and other utilities to the Property;
(g) all financial statements, income and expense reports relating
to the Land and Improvements;
(h) all feasibility and market studies pertaining to the Property
which were prepared during the past three (3) years;
(i) all agreements relating to the planning and zoning of the
Property, including, without limitation, the Property's designations under
all applicable general and specific plans, the Local Coastal Program and
Redevelopment Plans;
(j) all appraisals of the Property which were prepared during the
past three (3) years (to the extent Seller has the same in its possession
or can obtain them from its lender);
(k) all engineering, environmental, topographical, soil suitability
and other similar studies and reports relating to the Land;
(l) all documents, instruments and agreements relating to the
defaults or alleged defaults under the Bond Documents; and
(m) all other agreements, reports, correspondence, memoranda,
Entitlements, applications, whether or not actually filed with the
appropriate Governmental Authority, and other materials which pertain to
the current status of the Property; provided, however, that Seller shall
have no duty to deliver to Purchaser any matters which (i) are subject to
an attorney-client privilege in favor of Seller, (ii) address internal
partnership matters of Seller and (iii) do not specifically address matters
relating to the Property.
Section 3.05 CONDUCT OF DUE DILIGENCE. During the Due Diligence
Period, Buyer and its officers, employees, agents, advisers, attorneys,
accountants, architects and engineers shall have the right to review the
submittals described in Section 3.04 above and shall have the right, and
are hereby authorized, to enter upon the Land and Improvements to conduct
inspections and investigations relating to the Property, to conduct
environmental assessments and engineering studies and for all other
reasonable purposes. Seller shall reasonably and in good faith cooperate
in Buyer's due diligence efforts, including, if so requested by Buyer,
notifying any Governmental Authorities of Buyer's due diligence efforts.
All costs and expenses of Buyer's due diligence shall be paid by Buyer. If
Buyer elects to proceed with the transaction, Seller shall continue to
provide Buyer and Buyer's officers, employees, agents, advisers, attorneys,
accountants, architects, engineers and prospective lenders access to the
Property, all drawings, plans and specifications for the Property, all
engineering and other reports relating to the Property, correspondence
relating to the Property, and the financial books and records relating to
the ownership, operation, development and management of the Property, at
all reasonable times to make such inspections, tests, copies and
verifications as Buyer considers reasonably necessary. Buyer shall
indemnify, defend and hold harmless Seller (as defined in Section 2.02 of
the Agreement) from and against any loss, damage, cost or expense for
personal injury or property damage arising out of the inspections and
investigations. Buyer shall promptly restore the Property to the condition
existing immediately prior to such inspections and investigations.
Section 3.06 RIGHT TO TERMINATE.
(a) If Buyer, in its sole and absolute discretion, is satisfied
with the results of its due diligence and accepts the condition of the
Property, then on or before the expiration of the Due Diligence Period,
Buyer shall serve written notice on Seller of its election to proceed with
the transaction contemplated by this Agreement.
(b) If Buyer fails to give such notice to Seller, the condition
contained in this Section shall not be deemed satisfied and this Agreement
shall be deemed terminated.
(c) The parties hereto acknowledge that Buyer has incurred
substantial costs in connection with the negotiation and execution of this
Agreement, will incur substantial additional costs in conducting the
inspections contemplated by Section 3.04 and that Buyer would not have
entered into this Agreement without the availability of the Due Diligence
Period. Therefore, the parties agree that adequate consideration exists to
support Seller's obligations hereunder, even before the expiration of the
Due Diligence Period.
Section 3.07 TERMINATION. In the event this Agreement is
terminated in accordance with this Article 3, Buyer shall be entitled to a
return of the Deposit, together with accrued interest thereon, and Seller
and Buyer shall jointly instruct Escrow Holder to so refund to Buyer the
Deposit, accrued interest thereon, if any, and instruments deposited by
Buyer in the escrow established by Section 4.01 of this Agreement, and
neither Buyer nor Seller shall have any further obligation or liability
under this Agreement. As a condition precedent to release of said Deposit
and instruments, Escrow Holder shall have first caused to be recorded the
"Quitclaim Deed" (as hereinafter defined).
ARTICLE 4
Escrow and Closing Procedures
Section 4.01 ESCROW. This Agreement shall also constitute
escrow instructions of the parties hereto to First American Title Insurance
Company, 114 East Fifth Street, Santa Ana, California 92701 ("Escrow
Holder"). Upon receipt of an original counterpart of this Agreement
executed by both parties hereto, Escrow Holder shall immediately establish
an escrow for the purpose of consummating the transaction contemplated by
this Agreement. Supplementary escrow instructions may be prepared by
Escrow Holder and, if so prepared and agreed to by Seller and Buyer, shall
be executed by both parties hereto.
Section 4.02 QUITCLAIM DEED. Concurrent with the execution of
this Agreement, Buyer shall deliver to Escrow Holder a fully executed and
notarized quitclaim deed ("Quitclaim Deed") in the form of EXHIBIT D, which
is attached hereto and by this reference made a part hereof. The Quitclaim
Deed shall be recorded by Escrow Holder only.
Section 4.03 TITLE. On the Closing Date, title to the Property
is to be free of liens and encumbrances other than the Permitted Exceptions
and Disapproved Title Exceptions waived by Buyer in writing. On the
Closing Date, the Title Company shall deliver to Buyer an ALTA Extended
Coverage Policy of Title Insurance in conformance with the previously
delivered Title Commitment and those endorsements set forth on EXHIBIT E,
which is attached hereto and by this reference made a part hereof, each in
form and content reasonably satisfactory to Buyer, subject only to
Permitted Exceptions and Disapproved Title Exceptions waived by Buyer (the
"Title Policy"). Seller shall pay for the costs of the Title Commitment
and Title Policy.
Section 4.04 ESCROW COSTS AND CHARGES. All costs and charges of
Escrow Holder incurred in establishing, maintaining and closing the escrow
established pursuant to Section 4.01 of this Agreement ("Escrow Costs")
shall be paid by Seller. The cost of the Title Policy shall be paid to the
Title Company by Escrow Holder and, together with the Escrow Costs, which
shall include payment of the documentary transfer tax assessed by the
County of Orange, debited from funds deposited in escrow by Buyer that are
due Seller on the Closing Date. Buyer may direct Escrow Holder to cause
payment of the documentary transfer tax to be evidenced by an affidavit
rather than placement of documentary transfer tax stamps on the face of the
grant deed conveying the Property from Seller to Buyer.
Section 4.05 CLOSING: TIME AND PLACE. The consummation of the
transaction contemplated by this Agreement shall take place on or before
December 16, 1996 ("Closing Date"), at the offices of Escrow Holder.
Section 4.06 DEPOSITS BY SELLER. Not later than one (1) day
prior to the Closing Date, Seller shall execute and acknowledge, as
necessary, and deliver to Escrow Holder the following documents for the
purpose of consummating the transaction contemplated by this Agreement, all
of which shall be in form and substance reasonably acceptable to Buyer and
Seller (collectively, the "Seller Ancillary Documents"):
(a) a grant deed conveying title to the Land from Seller to Buyer
subject to only the Permitted Exceptions, in the form to be agreed upon by
Seller and Buyer in their reasonable discretion on or before ten (10) days
after the date hereof (the "Grant Deed");
(b) a bill of sale evidencing sale of the Personal Property, in the
form to be agreed upon by Seller and Buyer in their reasonable discretion
on or before ten (10) days after the date hereof (the "Bill of Sale");
(c) an assignment and assumption agreement memorializing assignment
of all of Seller's right, title and interest in and to the Assumed
Contracts, Intangible Property and all of the remaining Property not
conveyed by the Grant Deed or the Bill of Sale and the assumption of
Seller's obligations thereunder by Buyer, in the form to be agreed upon by
Seller and Buyer in their reasonable discretion on or before ten (10) days
after the date hereof (the "Assignment");
(d) any affidavits or documents required by the Title Company to
issue the Title Policy;
(e) originals of the Licenses, Permits and Assumed Contracts (or
certified copies thereof if originals are not available);
(f) originals of all financial statements, income and expense
reports relating to the Land and Improvements (or copies if originals are
not available);
(g) originals of all Plans and Specifications (or copies, if
originals are not available) (which may be delivered to Buyer's engineers
or representatives directly and not deposited into escrow);
(h) an executed affidavit of Seller sufficient in form and
substance to relieve Buyer of any and all withholding obligations under
Section 1445 of the Internal Revenue Code;
(i) all releases and termination statements required to release and
terminate all mortgages, financing statements and other security
instruments with respect to any loan secured by the Property which is not a
Permitted Exception;
(j) a certified copy of resolutions of the General Partner of
Seller authorizing the transactions contemplated by the Agreement and the
Seller Ancillary Documents and authorizing the execution, delivery and
performance of this Agreement and the Seller Ancillary Documents; and
(k) such other documents and instruments as may be reasonably
required to consummate the transaction contemplated under this Agreement.
If, subsequent to delivery thereof by Seller to Buyer, Seller, or any
Affiliate of Seller, requires access to any document delivered by Seller to
Buyer pursuant to this Agreement in connection with any governmental or
quasi-governmental investigation or inquiry or threatened or pending
litigation, business transaction or other purpose, Buyer agrees promptly to
make the original or a certified copy (if the same satisfies Seller's
needs) thereof (if Seller delivered this original to Buyer) available to
Seller until Seller's needs therefore has been satisfied.
Section 4.07 DEPOSITS BY BUYER. Buyer shall deposit the Deposit
with Escrow Holder in accordance with Sections 2.05(a) and, if applicable,
2.05(b) of this Agreement. On or prior to the Closing Date, Buyer shall
deposit Twenty-Six Million Five Hundred Thousand and No/100 Dollars
($26,500,000.00) in accordance with Section 2.05(b) of this Agreement. No
later than one (1) day prior to the Closing Date, Buyer shall deliver to
Escrow Holder the following for the purpose of consummating the transaction
contemplated by this Agreement, all of which shall be in form and substance
reasonably acceptable to Buyer and Seller (collectively, the "Buyer
Ancillary Documents"):
(a) a fully executed Note and Deed of Trust;
(b) an executed counterpart to the Assignment; and
(c) such other documents and instruments as may be required to
consummate the transaction contemplated under this Agreement.
Section 4.08 CLOSING PROCEDURES. Provided the contingencies set
forth in Sections 2.02 and 2.03 of this Agreement have been satisfied, and
all other obligations of Seller and Buyer under this Agreement have been
met, Escrow Holder shall proceed to close the escrow established pursuant
to Section 4.01 of this Agreement by taking the following actions in the
order set forth:
(a) obtain an executed closing and proration statement from each of
Seller and Buyer (and Seller and Buyer each hereby agree to deliver the
same to Seller);
(b) date all undated documents as of the Closing Date;
(c) complete all blanks in all documents deposited with Escrow
Holder which are intended to be completed by Escrow Holder on the Closing
Date;
(d) cause to be recorded the Grant Deed deposited with Escrow
Holder by Seller;
(e) deliver to or at the direction of Seller by wire transfer or
other similarly expeditious means the Purchase Price less Seller's share of
the Escrow Costs, the cost of the Title Policy, any prorations or credits,
and the Brokerage Commissions, if payable;
(f) deliver to O'Donnell, Atkins Company and The Overland Company
checks in the amount of the Brokerage Commissions provided Seller has first
instructed Escrow Holder in writing to pay the Brokerage Commissions;
(g) cause to be recorded the Deed of Trust and deliver the Note to
Seller;
(h) deliver to Buyer a conformed copy of the Grant Deed deposited
with Escrow Holder by Seller;
(i) deliver to Buyer the original Bill of Sale, an original
Assignment and an original closing and proration statement;
(j) deliver to Seller an original Assignment and an original
closing and proration statement; and
(k) deliver to the respective counsel for the parties listed in
Section 8.03 hereof copies of all other documents and supplementary escrow
instructions required by, or made pursuant to, this Agreement.
Section 4.09 RIGHTS OF ESCROW HOLDER.
(a) If the escrow established pursuant to Section 4.01 of this
Agreement shall be the subject of or in any way involved in any litigation
or controversy, the parties hereto shall jointly and severally hold Escrow
Holder free and harmless from and against any loss or expense that may be
suffered by it by reason of such litigation or controversy.
(b) In the event conflicting demands are made or notices served
upon Escrow Holder with respect to this escrow, the parties hereto
expressly agree that Escrow Holder shall have the absolute right, at its
election, to do either or both of the following:
(1) Withhold and stop all further proceedings in, and
performance of, the escrow; or
(2) File a suit in interpleader and obtain an order from the
court requiring the parties to interplead and litigate in such court their
several claims and rights amongst themselves. In the event such
interpleader suit is brought, Escrow Holder shall ipso facto be fully
released and discharged from all obligations to further perform any and all
duties or obligations imposed upon it by this Agreement.
(c) Escrow Holder shall not be held liable for sufficiency or
correctness of the form, manner of execution or validity of any instrument
that may be deposited into the escrow, nor as to the identity, authority or
rights of any person executing the same, or for failure to comply with any
provisions of any agreement, contract or other instrument filed herein, and
Escrow Holder's duties hereunder shall be limited to the safekeeping of
such money, instruments, or other documents received by it as Escrow
Holder, and for the disposition of same in accordance with the written
instructions set forth herein and any supplementary escrow instructions
executed by both parties hereto, and as accepted by Escrow Holder in the
escrow.
(d) Prior to the Closing Date or termination of this Agreement in
accordance with the terms hereof, neither party shall have the right to
withdraw the instruments or monies deposited by it with Escrow Holder,
except as otherwise provided in this Agreement or in supplementary escrow
instructions executed by both parties hereto.
(e) The escrow instructions contained in this Agreement may be
supplemented by any form instructions customarily used by Escrow Holder
that are signed by both parties hereto, provided that in the event of
conflict, this Agreement shall in all events control.
Section 4.10 CLOSING RESPONSIBILITIES OF ESCROW HOLDER. The
parties hereto hereby designate Escrow Holder as the party responsible for
closing the transaction contemplated by this Agreement and filing all
required forms prepared by the parties hereto, if any, with the appropriate
governmental authorities.
ARTICLE 5
Representations, Warranties, Disclaimers and Disclosures
Section 5.01 REPRESENTATIONS AND WARRANTIES OF SELLER. Except
for the express representations, warranties and covenants of Seller set
forth herein, Buyer shall acquire the Property "As Is," "where is" and
"with all faults" and Seller makes no representations or warranties with
respect to the Property. Seller hereby makes the following representations
and warranties to Buyer, which are true and correct as of the date of this
Agreement and will remain so as of the Closing Date:
(a) ORGANIZATION AND QUALIFICATION. Seller is a limited
partnership duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the requisite power and authority to
own and operate its properties and to carry on its business as it is now
being conducted, is duly qualified or licensed as a foreign limited
partnership in the State of California.
(b) AUTHORITY RELATIVE TO THIS AGREEMENT. Seller has all necessary
power and authority to execute and deliver this Agreement and the Seller
Ancillary Documents to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the Seller Ancillary Documents by Seller and the consummation
by Seller of the transactions contemplated hereby have been duly and
validly authorized by all necessary action and no other proceedings are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Seller and, assuming the due authorization, execution and
delivery thereof by the other parties hereto, constitutes the legal, valid
and binding obligation of Seller, enforceable against Seller in accordance
with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
generally and by equitable principles to which the remedies of specific
performance and injunctive and similar forms of relief are subject.
(c) CONSENTS AND APPROVALS; NO VIOLATION. The execution and
delivery by Seller of this Agreement, the consummation by Seller of the
transactions contemplated hereby and compliance by Seller with the
provisions hereof will not (i) conflict with, result in a breach of, or
require the consent or approval of any person under any provision of the
limited partnership agreement of Seller; (ii) except as set forth in
SCHEDULE 5.01(c), require any consent, approval, authorization or permit
of, or filing with or notification to, any Governmental Authority; (iii)
except as set forth in SCHEDULE 5.01(c) which is attached hereto and by
this reference made a part hereof, conflict with, or, with or without
notice or the passage of time or both, result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
agreement or instrument to which Seller is a party, or give to any third
party any right of termination, cancellation, amendment or acceleration
under any agreement or instrument to which Seller is a party or result in
the creation of a lien or encumbrance on the Property; or (iv) to Seller's
knowledge, violate or conflict with any judgment, order, writ, injunction,
decree, statute, law, rule or regulation applicable to Seller or the
Property.
(d) LITIGATION. Except as set forth on SCHEDULE 5.01(d), which is
attached hereto and by this reference made a part hereof, (i) Seller has
not received written notice of any action, suit or proceeding before any
judicial or quasi-judicial body, by any Governmental Authority or other
third party, pending, or to Seller's knowledge, threatened, against or
affecting all or any portion of the Property, (ii) Seller has not received
written notice of any attachments, execution proceedings, assignments for
the benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings pending, or, to its knowledge, threatened, against Seller;
(iii) Seller has not received written notice of any order, decree,
injunction, judgment, ruling, decision, opinion, writ or award made by any
court, arbitrator or Governmental Authority to which the Property is
subject; and (iv) Seller has not received written notice of a violation of
any of the terms and requirements of each order to which the Property is
subject. Seller has delivered to Buyer copies of all material written
pleadings, correspondence and other documents in Seller's control or
possession relating to all pending actions, suits and proceedings, that
involve or affect the Property.
(e) CONTRACTS. SCHEDULE 5.01(e), which is attached hereto and by
this reference made a part hereof, sets forth a list of all contracts
currently in effect to which Seller is a party relating to the ownership,
management, development, operation and maintenance of the Property (the
"Contracts"). Seller has delivered to Buyer true, correct and complete
copies of each Contract, together with any and all amendments thereto. To
Seller's knowledge, except as set forth on SCHEDULE 5.01(e), (i) each of
the Assumed Contracts is in full force and effect and constitutes legal,
valid and binding obligations of the respective parties thereto; (ii) there
have not been and there currently are not any defaults under any of the
Assumed Contracts by any party thereto; (iii) no event has occurred which
(whether with or without notice, lapse of time, or the happening or
occurrence of any other event) would constitute a material default under
any of the Assumed Contracts; (iv) no party to any Assumed Contract has any
defense or claim against Seller with respect to or arising out of such
Assumed Contract; (v) all amounts due and owing under the Contracts have
been paid in full; and (vi) no party to any Contract is entitled to any
concession, rebate, set-off, allowance, or other benefit. Seller has not
assigned or granted any interest in any of the Assumed Contracts to any
party or person.
(f) LICENSES; ENTITLEMENTS. Except as set forth on SCHEDULE
5.01(f), which is attached hereto and by this reference made a part hereof,
Seller has not received written notice from any issuer of a License or
Permit that any License or Permit is invalid or in default.
(g) LEASES. Except as set forth in SCHEDULE 5.01(g) which is
attached hereto and by this reference made a part hereof, to Seller's
knowledge, there are no leases, licenses or other agreements granting any
occupancy or possession rights to any party affecting all or any portion of
the Property.
(h) REASSESSMENTS. Except as set forth in SCHEDULE 5.01(h) which
is attached hereto and by this reference made a part hereof, to Seller's
knowledge, Seller has not received written notice from any taxing or
assessing authority of any contemplated or actual reassessment of the
Property for general real estate tax purposes, excluding statutory
reassessments occurring upon transfer of ownership.
(i) SPECIAL ASSESSMENTS. To Seller's knowledge, except as set forth
on SCHEDULE 5.01(i) which is attached hereto and by this reference made a
part hereof or in the Title Commitment, no unpaid special assessments have
been levied against the Property nor, are there any proposed special
assessments against the Property presently pending.
(j) EMINENT DOMAIN. Except as set forth on SCHEDULE 5.01(j), which
is attached hereto and by this reference made a part hereof, Seller has not
received written notice of any pending, nor to Seller's knowledge is any
Governmental Authority presently actively deliberating, the taking by
exercise of the power of eminent domain, or in any other manner, for a
public or quasi-public purpose, of all or any part of the Property. To
Seller's knowledge, no party has asserted any right (either through adverse
possession or otherwise in writing) to possess or claim title to, any
portion of the Property. Except as set forth on SCHEDULE 5.01(j), to
Seller's knowledge, there is no plan, study or effect by any Governmental
Authority or agency which materially adversely affects or which could
materially adversely affect the present or future use, zoning, entitlements
or development of the Property.
(k) COMPLIANCE WITH LAW. Seller has not received written notice
from any Governmental Authority that the Property violates any applicable
existing health, safety or zoning laws, rules, regulations, ordinances or
codes. Without limitation of the foregoing, Seller has not received any
written notice from any insurer that any portion of the Property contains
any defects or conditions that could materially adversely affect the
insurability of the Property.
(l) ENVIRONMENTAL MATTERS.
(i) For purposes of this Agreement, "Hazardous Material"
means and includes any hazardous, toxic or dangerous waste, substance or
material defined as such in (or for purposes of): (A) the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), (B) any
so-called "Superfund" or "Superlien" law, or any other Federal, state or
local statute, law, ordinance code, rule, regulation, order or decree
regulating, relating to, or imposing standards of conduct or liability
concerning any hazardous, toxic or dangerous waste, substance or material,
as now in effect (collectively, the "Related Legislation"), and (C) whether
or not included in the definition set forth in CERCLA or Related
Legislation, any other hazardous, toxic or dangerous waste, substance,
material, pollutant or contaminant, including, without limitation,
asbestos, asbestos containing materials, polychlorinated biphenyls, and
other chemicals which are dangerous to the environment or to human beings.
(ii) to Seller's knowledge, except as set forth on SCHEDULE
5.01(l), which is attached hereto and by this reference made a part hereof,
(A) during Seller's ownership thereof, no part of the Land or Improvements
has ever been used as a sanitary land fill, waste dump site or for the
generation, manufacture, refinement, transportation, treatment, storage,
handling or disposal of any Hazardous Material in violation of CERCLA or
Related Legislation, (B) except as disclosed in Section 5.05(b) below,
there is no Hazardous Material present upon, in or under the Land and/or
Improvements in violation of CERCLA or Related Legislation and no portion
of the Improvements has been constructed with the use of, or contains any
Hazardous Material, (C) except as disclosed in Section 5.05(b) below,
during Seller's ownership thereof, no release of Hazardous Material has
occurred at, on or from the Land and/or Improvements, (D) no underground
tanks are present on the Land, and (E) except as disclosed in Section
5.05(b) below, no written notice of violation or other written
communication has been received by Seller, by any predecessor in title from
any governmental agency or any person or entity alleging or suggesting any
environmental law violation on the Land or Improvements.
(m) INTENTIONALLY OMITTED.
(n) MECHANICS' LIENS.To Seller's knowledge, Seller has received no
written notice of any claims for mechanics' liens for any labor, services
or materials rendered, delivered or provided for the benefit of the
Property that have not been released. No work of improvement will be done
on the Property by or on behalf of Seller prior to the Closing Date that
will remain unpaid as of the Closing Date. Seller shall indemnify, defend
and hold Buyer harmless from and against any all demands, claims, suits,
actions, proceedings, losses, damages, liabilities, obligations, costs or
expenses (including, without limitation, attorneys' fees, court costs and
costs of appeal) incurred by Buyer as a direct or indirect result of any
claims for mechanic's liens for any labor, services or materials contracted
to be performed for, or performed for, the benefit of the Property prior to
the Closing Date. The indemnity obligations set forth in this subparagraph
shall survive Closing.
(o) TITLE TO PERSONAL PROPERTY. Seller is the sole and lawful
owner of the Personal Property. On the Closing Date, the Personal Property
shall be free from all liens, claims and encumbrances and Seller will have
the right to sell the Personal Property.
(p) ERISA. The Property does not constitute "assets of an employee
benefit plan" as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974.
(q) REPRESENTATIONS AND WARRANTIES. No representation or warranty
made by Seller in this Agreement or in any Exhibit attached hereto, in the
Seller Ancillary Documents, or in any certificate or other document
furnished by Seller pursuant to this Agreement contains any untrue
statement of material fact or omits any material fact necessary to make any
statement contained herein or therein not misleading.
(r) BONDS. To Seller's knowledge, SCHEDULE 5.01(s), which is
attached hereto and by this reference made a part hereof, sets forth a
true, correct and complete list of all material indentures, loan
agreements, letters of credit and all other agreements and documents
evidencing or securing the Bond Debt (collectively the "Bond Documents").
To Seller's knowledge, Seller has previously delivered to Buyer true,
correct and complete copies of each of the Bond Documents.
(s) PROPERTY INFORMATION. To Seller's knowledge, the list of
Personal Property and the list of Contracts are accurate and complete in
all material respects and the Property Information delivered by Seller to
Buyer is all of the Property Information in Seller's possession or control.
(t) SECURITY INSTRUMENTS. Except as set forth in SCHEDULE 5.01(t),
which is attached hereto and by this reference made a part hereof, to
Seller's knowledge, Seller has performed all obligations whose performance
is secured by the Security Instruments required to be performed as of the
date hereof. To Seller's knowledge, except as set forth on SCHEDULE
5.01(t), no holder of the Security Instruments has any basis to draw on
the Security Instruments as a result of the failure of Seller to perform
the obligations secured by the Security Instruments.
As used in this Agreement, the phrase "Seller's Knowledge" and
similar phrases shall mean the actual knowledge of only Eric Kaplan, James
Motta, Glen Allen and Stephen A. Lovelette. "Seller's Knowledge" shall not
include implied, inferred or imputed knowledge of any person whomsoever,
but shall include the information contained in Seller's files relating to
the Property. Seller acknowledges and agrees that Buyer is relying on each
of Seller's representations, warranties, covenants and indemnities
contained herein in entering into and consummating the transactions
contemplated by this Agreement. Therefore, Seller shall not be released
from, nor shall Buyer be deemed to have waived its rights under the
representations, warranties, covenants and indemnifications of Seller
contained herein as a result of Buyer accepting the condition of the
Property in accordance with Section 3.06 of this Agreement. Buyer agrees
that if and to the extent that Buyer has actual knowledge of a breach
hereunder by Seller of a representation or warranty and Buyer closes the
transaction contemplated hereby despite actual knowledge at time of closing
of such a breach, Buyer shall have no right to bring any action against
Seller as a result of such a breach. For purposes hereof, "actual
knowledge" of Buyer shall mean the actual knowledge of only Eugene A. Gorab
and S. John Robinson but shall not include implied, inferred or imputed
knowledge of any person whomsoever.
Section 5.02 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer
hereby makes the following representations and warranties to Seller, which
are true and correct as of the date hereof and will remain so as of the
Closing Date:
(a) ORGANIZATION. Buyer is a limited partnership duly organized
and validly existing and in good standing in accordance with the laws of
the State of Delaware, is (or shall be when and as required) authorized to
do business in California and is possessed of all power and authority
necessary to enter into and perform its obligations under this Agreement.
(b) AUTHORITY OF SIGNATORY. The person whose signature is affixed
to this Agreement on behalf of Buyer has been duly authorized to execute
this Agreement by Buyer.
(c) ENFORCEABILITY. The execution, delivery and performance of
this Agreement has been duly and validly authorized and approved by all
necessary corporate action on behalf of Buyer. This Agreement has been
fully and validly executed and delivered by or on behalf of Buyer and,
assuming this Agreement has been duly authorized, executed and delivered by
Seller, constitutes the legal, valid and binding obligation of Buyer,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratoria, fraudulent conveyance and other
similar laws affecting the rights and remedies of creditors generally, as
well as principles of equity, regardless of whether the application of such
principles is considered in a proceeding in equity or at law.
Section 5.03 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Buyer
and Seller agree that the representations and warranties contained herein
shall survive Closing for one (1) year after the Closing Date (i.e., the
claiming party shall have no right to make any claim against the other
party after the date one (1) year immediately following the Closing Date
for a breach of a representation or warranty).
Section 5.04 DISCLAIMER BY SELLER. Other than the
representations and warranties set forth in Section 5.01 of this Agreement,
Seller makes no representations or warranties regarding any aspect of the
transaction contemplated by this Agreement, the status of title to the
Property, or any liens and/or encumbrances thereon, the entitlements
governing development of the Property, any other matter affecting the
business, legal status and economic viability of the Property, the value of
the Property, or the suitability of the Property for acquisition,
investment or any other disposition by Buyer. Buyer hereby agrees, except
for the representations and warranties of Seller contained herein, that it
has not relied on any representations or statements made by Seller, its
general partner or any of their officers, directors, employees, agents or
attorneys regarding the Property or any aspect thereof in determining
whether to enter into this transaction.
Section 5.05 DISCLOSURES BY SELLER. Seller hereby makes the
following disclosures regarding the location and condition of the Property:
(a) The Property is, or may be, impacted by various regional
elements. These include, but are not necessarily limited to: proximity to
the Camp Pendleton Marine Corps facility, the San Onofre Nuclear Generating
Station, the TRW Capistrano Test Facility, the Prima Deshecha Regional Park
and Landfill, overflight from military and/or civilian aircraft from Tustin
and El Toro Marine Corps Air Stations and Camp Pendleton, proximity to high
voltage electrical transmission facilities, and the proposed Foothill
Transportation Corridor. In addition, most properties throughout south
Orange County, including the Property, are subject to various road and
public facility impact fees and other conditions of development.
(b) On January 11, 1990, the contents of a canister containing O--
chlorobenzylidene malononitrile (Agent cs), which is designated an
extremely hazardous substance in Title 22 California Code of Regulations
Section 66680, was spilled on the Property, contaminating an area of
approximately 200 square feet at the location depicted on EXHIBIT G, which
is attached hereto and by this reference made a part hereof. Such affected
area was subjected to a decontamination process under the supervision of
the Orange County Health Care Agency; however, no representation is made by
Seller as to the effectiveness of such decontamination process.
Seller makes no representations whatsoever with respect to the
matters set forth in this Section 5.05, including, without limitation, a)
with regard to the severity of the impacts disclosed in the disclosures
listed above, nor the degree to which such impacts will inhibit or prevent
development of all or a portion of the Property or interfere with the quiet
use and enjoyment of the Property; or b) whether such impacts are inclusive
of all potential adverse impacts that may inhibit or prevent development of
all or a portion of the Property or interfere with the quiet use and
enjoyment of the Property. There may be additional adverse impacts as of
the date of this Agreement. Buyer hereby acknowledges the disclosures
listed above, and agrees that it is the duty of Buyer to thoroughly
investigate the Property, including, but not limited to, an investigation
of environmental/toxic contamination of the Property, the environs of the
Property, and plans for development of surrounding properties, and
determine what impacts, if any, may exist or potentially exist that could
inhibit or prevent development of all or a portion of the Property or
interfere with the quiet use and enjoyment of the Property.
ARTICLE 6
COVENANTS
Section 6.01 SELLER'S COVENANTS. Seller covenants and agrees
with Buyer that from and after the date hereof up to Closing or earlier
termination of this Agreement, Seller shall conduct the business involving
the Property as follows, and during such period will, at its sole cost and
expense:
(a) refrain from transferring any of the Property or creating on
the Property any leases, licenses, easements, liens, mortgages,
encumbrances or other interests;
(b) not, without obtaining the prior written consent of Buyer,
which consent will not be unreasonably withheld, extend, renew, terminate,
replace or amend any Contract or enter into any new contracts or agreements
with respect to the Property which will survive Closing or otherwise affect
the use, operation or enjoyment of the Property after Closing;
(c) not take any affirmative action which Seller believes in its
good faith, reasonable business judgment would have a material adverse
affect on the Property or the prospect for the future development thereof.
From and after the date hereof to the Closing Date Seller shall either (i)
perform and otherwise continue to meet all obligations with respect to the
Property, including all contractual obligations under the Assumed Contracts
and all obligations under the Licenses and Entitlements, or (ii) if Seller
elects, in its sole discretion, to not perform any such obligation, Seller
shall promptly notify Buyer of such obligations and Seller's decision to
not perform such obligation. If Seller notifies Buyer in accordance with
clause (ii) above, Buyer may terminate this Agreement within five (5)
business days of receipt of such notice by giving written notice to Seller,
in which event Buyer shall be entitled to return of the Deposit, together
with accrued interest thereon, and Seller and Buyer shall jointly instruct
Escrow Holder to so refund to Buyer the Deposit, and accrued interest
thereon, if any, and neither Buyer nor Seller shall have any further
obligation or liability under this Agreement;
(d) deliver or cause to be delivered to Buyer, promptly upon
receipt thereof by Seller, copies of all notices or other correspondence
received or given by Seller after the date hereof alleging any violation of
any applicable law, rule, regulation or code, any default under any Bond
Document, Contract, License, Permit or insurance policy and report to
Buyer, from time to time, the status of any alleged violation or default;
(e) make all reasonable good faith efforts to comply with all
notices of violation or alleged violation by the Seller relating to the
Property of all state, county, city or municipal laws, ordinances, codes,
regulations, orders or requirements of departments of housing, buildings,
fire, labor, health, or departments of other Governmental Authorities
having jurisdiction over or affecting the Property or the ownership,
development, operation and management thereof; provided, however that if
such compliance requires the expenditure of money, Seller may elect, in its
sole and absolute discretion, to not comply with such notice in which event
Seller shall promptly notify Buyer of such violations and Seller's decision
to not comply with the notice thereof. If Seller so notifies Buyer of its
election to not comply, Buyer may terminate this Agreement within five (5)
business days of receipt of such notice by giving written notice to Seller,
in which event Buyer shall be entitled to return of the Deposit, together
with accrued interest thereon, and Seller and Buyer shall jointly instruct
Escrow Holder to so refund to Buyer the Deposit and accrued interest
thereon, if any, and neither Buyer nor Seller shall have any further
obligation or liability under this Agreement;
(f) continue to operate and manage the Property in the ordinary
course of business consistent with historical practices;
(g) maintain, in accordance with its regular and normal practices,
the Property in good repair, order and condition, ordinary wear and tear
and damage by fire or other unavoidable casualty excepted;
(h) consult with Buyer on all extraordinary decisions relating to
the Property;
(i) maintain insurance in full force and effect with responsible
companies, or through self-insurance as provided on a historical basis,
comparable in amount, scope and coverage to that in effect on the date of
this Agreement;
(j) shall use reasonable good faith efforts to satisfy the
conditions of Seller's obligations hereunder set forth in Section 2.02 of
this Agreement; and
(k) not, without the prior written consent of Buyer, take any
action or file or proceed with any matter which could in any material
respect affect the zoning, land use or entitlements applicable to the
Property or the proposed development thereof.
Section 6.02. BUYER'S COVENANTS. Buyer covenants and agrees with
Seller that from and after the date hereof up to Closing or earlier
termination of this Agreement, Buyer shall, at its sole cost and expense,
use commercially reasonable efforts to satisfy the conditions to Buyer's
obligations hereunder set forth in Section 2.03 of this Agreement.
Section 6.03 FURTHER ACTION, REASONABLE EFFORTS; CONSENTS AND
APPROVALS. Upon the terms and subject to the conditions hereof, each of
the parties hereto shall use reasonable good faith efforts to take, or
cause to be taken, all appropriate action, and to do, or cause to be done,
all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated
hereby, including, without limitation, using reasonable good faith efforts
to obtain all licenses, permits, consents, approvals, authorizations,
certificates, qualifications and orders of, and make all filings and
required submissions with, all Governmental Authorities, and all lenders
and partners of, and parties to contracts with, any of Seller or the Buyer
and all other persons, in each case, as are necessary or desirable for the
consummation of the transactions contemplated hereby (collectively
"Consents"). Seller shall, as soon as possible prior to the Closing,
deliver to Buyer copies of all Consents obtained by Seller. Buyer shall,
as soon as possible prior to the Closing, deliver to Seller copies of all
Consents obtained by Buyer. In case at any time after the Closing Date any
further action is necessary or desirable to carry out the purposes of this
Agreement, Buyer and Seller shall use reasonable good faith efforts to take
all such action. Each party shall use its best efforts not to take any
action, or enter into any transaction, that would cause any of its
representations or warranties contained in this Agreement to be untrue or
result in a breach of any covenant made by it in this Agreement.
Section 6.04 CONDEMNATION. In the event that prior to the Closing
Date, written notice shall be received by Seller of any action, suit or
proceeding to condemn or take all or any part of the Property under the
power of eminent domain, Seller shall promptly send written notice thereof
to Buyer and Buyer shall have the right to terminate its obligations under
this Agreement by notice in writing to Seller given within ten (10) days
after receiving Seller's notice. In the event that Buyer shall not elect
to terminate its obligations under this Agreement pursuant to this Section
6.04, Buyer shall receive an absolute assignment on the Closing Date of the
entire proceeds of such condemnation award, the Purchase Price shall be the
full amount provided in Article 2 and Seller shall convey the Property
subject to the condemnation proceeding or, if such condemnation proceeding
shall have been completed, Buyer shall receive a credit against the
Purchase Price in the amount of the condemnation award and Seller shall
convey the Property to Buyer less that part taken in such proceeding, as
the case may be.
Section 6.05 TERMINATION OF CONTRACTS. Provided the same are
terminable by Seller without cause and without penalty, other than the
first _____ Contracts listed on SCHEDULE 5.01(e), Buyer may elect by notice
in writing to Seller prior to the expiration of the Due Diligence Period,
to have any or all of the Contracts terminated by Seller, and Seller agrees
to terminate said Contracts, effective as of the Closing Date. All
Contracts which Buyer does not elect to have terminated in accordance with
this Section 6.05 shall be deemed "Assumed Contracts."
Section 6.06 DISTRICT ESTOPPEL. Seller will use reasonable good
faith efforts to obtain an estoppel certificate and consent from the
District in favor of Buyer in the form of EXHIBIT I, which is attached
hereto and by this reference made a part hereof; provided, however, that
the delivery of such to Buyer is not a condition to either party's
obligations hereunder.
ARTICLE 7
Defaults; Remedies; Indemnifications
Section 7.01 DEFAULT BY BUYER. IF THIS AGREEMENT IS NOT TERMINATED
ON OR BEFORE THE EXPIRATION OF THE DUE DILIGENCE PERIOD OR AS A RESULT OF
THE RIGHT OF BUYER TO TERMINATE THIS AGREEMENT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, AND IN THE EVENT OF A DEFAULT OF THE BUYER UNDER THE
PROVISIONS OF THIS AGREEMENT FOLLOWING THE DUE DILIGENCE PERIOD, SELLER
SHALL RETAIN ALL OF THE EARNEST MONEY, TOGETHER WITH ACCRUED INTEREST
THEREON, AS SELLER'S SOLE RIGHT TO DAMAGES OR ANY OTHER REMEDY. THE
PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT
BY BUYER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO DETERMINE.
THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT
THE EARNEST MONEY HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES'
REASONABLE ESTIMATE OF SELLER'S DAMAGES, WHICH SHALL BE SELLER'S SOLE AND
EXCLUSIVE REMEDY.
Buyer's Initials
Seller's Initials
Section 7.02 SELLER'S DEFAULT. IF THE TRANSACTION CONTEMPLATED BY
THIS AGREEMENT IS NOT COMPLETED BECAUSE OF SELLER'S FAILURE TO COMPLY WITH
ANY OF ITS OBLIGATIONS TO BE PERFORMED BY SELLER HEREUNDER ON OR PRIOR TO
CLOSING, BUYER SHALL BE ENTITLED TO EITHER (1) SEEK SPECIFIC PERFORMANCE OR
(2) HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND, IF BUT ONLY IF THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT IS NOT COMPLETED BECAUSE OF AN
INTENTIONAL DEFAULT HEREUNDER BY SELLER, OBTAIN FROM SELLER ITS ACTUAL OUT-
OF-POCKET DAMAGES (BUT SPECIFICALLY EXCLUDING ANY CONSEQUENTIAL DAMAGES)
ARISING FROM SUCH DEFAULT IN AN AMOUNT NOT TO EXCEED $150,000.00. FOR
PURPOSES OF THIS AGREEMENT "INTENTIONAL DEFAULT" SHALL MEAN THE FOLLOWING:
(1) SELLER'S UNREASONABLE FAILURE TO AGREE ON THE RELEASE FROM THE
DISTRICT AND THE RELEASE FROM BANK OF AMERICA, AS CONTEMPLATED BY SECTIONS
2.02(A) AND 2.02(B), RESPECTIVELY, OF THIS AGREEMENT;
(2) SELLER'S FAILURE TO DELIVER ANY OF THE CLOSING DOCUMENTS DESCRIBED IN
SECTION 4.06 OF THIS AGREEMENT; AND
(3) SELLER'S BREACH OF THE COVENANTS CONTAINED IN SECTION 6.01(A) OR (B)
OF THIS AGREEMENT.
Buyer's Initials
Seller's Initials
IF BUYER BRINGS AN ACTION FOR SPECIFIC PERFORMANCE, BUYER SHALL BE
DEEMED TO HAVE WAIVED ANY AND ALL BREACHES BY SELLER OF REPRESENTATIONS,
WARRANTIES AND COVENANTS OF WHICH BUYER HAS ACTUAL KNOWLEDGE EXCEPT FOR
THOSE BREACHES OF THE COVENANTS CONTAINED IN SECTION 6.01(A) OR 6.01(B) OF
THIS AGREEMENT.
Section 7.03 SELLER'S INDEMNIFICATION. Subject to the provisions of
Section 8.02 below, Seller hereby agrees to protect, defend, indemnify and
hold Buyer harmless from and against any and all liabilities, obligations,
losses, costs, damage or expense, including attorneys' fees and court
costs, Buyer may incur or suffer on account of or in connection with all
obligations, liabilities or claims relating to ownership, leasing,
management, maintenance or operation of the Property prior to the Closing
Date, except to the extent Buyer shall receive a proration credit therefor.
Section 7.04 BUYER'S INDEMNIFICATIONS. Buyer hereby agrees to
protect, defend, indemnify and hold Seller harmless from and against any
and all liabilities, obligations, losses, costs, damage or expense,
including attorneys' fees and court costs, Seller may incur or suffer on
account of or in connection with any obligations, liabilities or claims
relating to the ownership, leasing, management, maintenance or operation of
the Property from and after the Closing Date or to the extent Buyer has
received a proration credit therefor.
ARTICLE 8
Miscellaneous
Section 8.01 PRORATIONS. The following items shall be
apportioned at the Closing as of 12:01 a.m., local time, as of the Closing
Date, without duplication: (a) real estate and personal property taxes,
sewer rents and charges and other state, county, school, municipal or other
taxes, charges and assessments affecting the Property or any portion
thereof, on the basis of the fiscal year for which the same are levied,
imposed or assessed; (b) charges for water, electricity, gas, telephone and
all other utilities; (c) charges under the Assumed Contracts; (d) standby
charges, assessments and ad valorem taxes due to the District for the
District's 1996/1997 fiscal year and (e) all other items of expense. If
the rate of any such taxes, rents, charges or assessments shall not be
fixed prior to the Closing, the adjustment thereof at the Closing shall be
upon the basis of the rate for the preceding fiscal year applied to the
latest assessed valuation (or other basis of valuation) and shall be
readjusted after Closing when the precise amount of such taxes, rents,
charges or assessments are finally known. If any error in calculating any
amount due hereunder is made, such error shall be corrected as soon as
practical after its discovery, but in all events (other than ad valorem
taxes) within ninety (90) days of the Closing Date. Seller shall pay or
otherwise discharge all delinquent ad valorem taxes and assessments on or
before the Closing Date. In addition, at Closing, Seller shall pay to the
District all delinquent assessments, standby charges and ad valorem taxes
for the 1995/1996 fiscal year together with amounts advanced by the
District in 1995 to pay debt service on the Bond Debt.
Section 8.02 NON-RECOURSE. Notwithstanding anything to the
contrary in this Agreement or in any other agreement, instrument or
certificate delivered in connection herewith, neither any present or future
Constituent Partner in or agent of Seller, nor any shareholder, officer,
director, member, manager, employee, trustee, beneficiary or agent of any
corporation or other entity that is or becomes a Constituent Partner in
Seller, shall be personally liable, directly or indirectly, under or in
connection with this Agreement or any other agreement, instrument or
certificate delivered in connection herewith, or any amendments or
modifications to any of the foregoing made at any time or times; the
recourse of Buyer and each of its successors and assigns under or in
connection with this Agreement and such other agreements, instruments and
certificates, and any such amendments or modifications, shall be limited to
Seller's interest in the Property only, and Buyer and each of its
successors and assigns waive any such personal liability. As used in this
Section 8.02, a "Constituent Partner" in Seller means any direct partner in
Seller and any person or entity that is a partner in any partnership that,
directly or indirectly through one or more other partnerships, is a partner
in Seller. This Section 8.02 shall survive the Closing and any termination
of this Agreement. Notwithstanding anything to the contrary in this
Agreement or in any other agreement, instrument or certificate delivered in
connection herewith, after the Closing, Seller shall have no personal
liability in connection with this Agreement or any other agreement,
instrument or certificate delivered in connection herewith or any
amendments or modifications to any of the foregoing made at any time or
times; provided, however, Buyer shall have the right to set-off against the
amounts owing under the Note any monetary obligations owed to Buyer from
Seller arising out of a breach of any representation, warranty or covenant
of Seller contained in this Agreement or the failure of Seller to comply
with any other term or provision of this Agreement or any other agreement,
instrument or certificate delivered in connection herewith or any
amendments or modifications to any of the foregoing made at any time or
times; provided further, however, that Buyer's right to setoff against
amounts owing under the Note as a result of a breach of a warranty,
representation or covenant hereunder shall be capped at $900,000.00.
Section 8.03 NOTICES. Any notice, demand or document any party
is required or may desire to give or deliver to or make upon any other
party shall be in writing and delivered in person, given or made by
commercial delivery service (such as Federal Express) or given or made by
United States registered or certified mail, postage prepaid, return receipt
requested, addressed to such party at its address set forth below, subject
to the right of any party to designate a different address by notice
similarly given. Any notice, demand or document served personally shall be
deemed delivered upon receipt, and if served by mail or commercial delivery
service shall be deemed delivered on the date of receipt as shown by the
addressee's registry or certification receipt or on the date receipt at the
appropriate address is refused, as shown on the records or manifest of the
U.S. Postal Service or commercial delivery service. The addresses for
Seller and Buyer are:
For Seller: Stephen A. Lovelette, Treasurer
Arvida Company
c/o JMB Realty
900 North Michigan Avenue
Chicago, IL 60611-1575
(312) 440-4800
(312) 915-2310 (Fax)
With copies to: Arvida Company
7900 Glades Road
Boca Raton, FL 33434
Attention: General Counsel
(407) 479-1100
(407) 479-1226 (Fax)
Nossaman, Guthner, Knox & Elliott, LLP
18101 Von Karman Avenue
Suite 1800
Irvine, CA 92715
Attention: Gregory W. Sanders, Esq.
(714) 833-7800
(714) 833-7878 (Fax)
White & Case
First Union Financial Center
200 South Biscayne Boulevard
Suite 4900
Miami, Florida 33131-2352
H. Williams Walker, Jr., Esq.
(305) 371-2700
(305) 358-5744 (Fax)
For Buyer: Starwood Opportunity Fund IV, L.P.
c/o Starwood Capital Group, L.L.C.
Three Pickwick Plaza, Suite 253
Greenwich, CN 05330
Attention: Eugene A. Gorab
Managing Director
(203) 861-2100
(203) 861-2101 (Fax)
With copies to: Starwood Opportunity Fund IV, L.P.
c/o Starwood Development Company, L.P.
5090 North 40th Street, Suite 190
Phoenix, AZ 95018
Attention: Samuel Robinson, Director
(602) 952-1515
(602) 952-1880 (Fax)
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, IL 60661
Attention: David J. Bryant, Esq.
(312) 902-5380
(312) 902-1061 (Fax)
Section 8.04 OTHER DOCUMENTS. The parties hereto shall
cooperate in good faith to accomplish the objectives of this Agreement and
to that end shall execute and deliver from time to time such other and
further instruments and documents as may be necessary and convenient to the
fulfillment of those purposes.
Section 8.05 EFFECT OF INVALIDATION. If any one or more of the
provisions of this Agreement is for any reason held to be invalid, illegal
or unenforceable in any respect by any court of competent jurisdiction,
such invalidity, illegality and unenforceability shall not affect the
validity and enforceability of the other provisions hereof, and this
Agreement shall be construed as though such invalid, illegal or
unenforceable provision had never been contained herein.
Section 8.06 ENTIRE AGREEMENT. This Agreement contains the
entire agreement between the parties hereto with respect to the matters set
forth herein, supersedes all prior agreements, understandings and
representations by or between the parties with respect thereto, and may not
be modified, amended or terminated except by written agreement signed by
the party against whom enforcement is sought.
Section 8.07 COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall for all purposes be deemed
to be an original and all of which together shall constitute one and the
same agreement of the parties. Any signature page to any counterpart may
be detached from such counterpart without impairing the legal effect of the
signatures thereon and thereafter attached to another counterpart identical
thereto, except having attached to it any such additional signature pages.
Section 8.08 CAPTIONS. Captions of the Articles and Sections of
this Agreement are for convenience only and shall not be considered or
referred to in resolving questions of interpretation or construction.
Section 8.09 ATTORNEY'S FEES. Should either or both of the
parties hereto institute any action or proceeding in any court to enforce
any provision(s) of this Agreement, the prevailing party shall be entitled
to receive from the losing party reasonable attorneys' and expert witness
fees and costs incurred in such action or proceeding, whether or not such
action or proceeding is prosecuted to judgment, and in any appeals, in such
amount as the court determines is reasonable.
Section 8.10 GOVERNING LAW. This Agreement and the transaction
contemplated herein shall be governed by and construed under the laws of
the State of California.
Section 8.11 TIME OF THE ESSENCE. Time is of the essence of all
matters set forth in this Agreement.
Section 8.12 NO WAIVER. No waiver by any party of any breach by
any other party of any provisions of this Agreement shall be effective
unless in writing signed by the waiving party. No such waiver shall be
deemed or construed to be a waiver of any subsequent or continuing breach
of the same or any other provisions of this Agreement; nor shall any
forbearance by any party from the exercise of a remedy for any such breach
be deemed or construed to be a waiver by such party of any of its rights or
remedies with respect to such breach.
Section 8.13 NUMBER AND GENDER. Masculine terms used in this
Agreement shall include the feminine and vice versa; neuter terms shall
include both masculine and feminine; and the singular shall include the
plural and vice versa, whenever the context shall require it.
Section 8.14 ASSIGNMENT. Seller shall not have the right to
assign this Agreement without the prior written consent of Buyer, and any
purported assignment without such consent shall be void and, at the option
of Buyer, shall constitute a material default. Buyer shall not have the
right to assign its interest in this Agreement without the prior written
consent of the Seller; provided, however, that Buyer shall have the right
to assign this Agreement upon notice to, but without the consent of, Seller
to a general or limited partnership or limited liability company controlled
directly or indirectly by Buyer or under common control with Buyer or its
general partner and Buyer will remain liable for all obligations of "Buyer"
hereunder.
Section 8.15 CALCULATION OF TIME. The time in which any act
required or permitted by this Agreement is to be performed shall be
determined by excluding the day upon which the event occurs from whence the
time commences. If the last day upon which performance would otherwise be
required or permitted is a Saturday, Sunday or national holiday of the
United States, then the time for performance shall be extended to the next
day which is not a Saturday, Sunday or holiday of the United States.
Section 8.16 RELATIONSHIP. Nothing contained in this Agreement
shall be deemed or construed by the parties or by any third person to
create a relationship of principal and agent or partnership or a joint
venture between Seller and Buyer or between either or both of them and any
third party.
Section 8.17 ESCROW CANCELLATION CHARGES. If the Escrow
established pursuant to Section 3.01 of this Agreement fails to close by
reason of Seller's default hereunder, Seller shall pay all escrow
cancellation charges. If the escrow fails to close by reason of Buyer's
default hereunder, Buyer shall pay for all escrow cancellation charges. If
the escrow fails to close for any reason other than the foregoing, Seller
shall pay the escrow cancellation charges.
Section 8.18 REPRESENTATION BY ATTORNEY. Each party
acknowledges that he or it has been represented by experienced and
knowledgeable legal counsel in negotiating the form and contents of this
Agreement.
Section 8.19 RECITALS INCORPORATED BY REFERENCE. The Recitals
of this Agreement are incorporated herein by this reference and made a part
of this Agreement.
Section 8.20 CONFIDENTIALITY. Prior to closing, this Agreement,
and the provisions, terms and conditions hereof, shall not be disclosed to
any third party without the consent of the nondisclosing party; provided,
however, any party may disclose the existence of this Agreement and the
provisions, terms and conditions hereof to such party's partners,
investors, lenders, representatives, agents, attorneys and consultants or
when required to do so in order to comply with filing and/or reporting
requirements of any governmental regulatory agency or any lawful order
thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
SELLER
ARVIDA/JMB PARTNERS, L.P.-II,
a Delaware limited partnership
By: Arvida/JMB Managers-II, Inc.,
a Delaware corporation, its
General Partner
By:
Its:
BUYER
STARWOOD/TALEGA ASSOCIATES L.L.C., a
Connecticut limited liability company
By: Starwood Opportunity Fund IV, L.P., a
Delaware limited partnership
By: SOFI IV Management, L.L.C., a
Connecticut limited liability company
By: Starwood Capital Group,
L.L.C., a Connecticut limited liability company
By:____________________________
Eugene A. Gorab,
Its:
__________________________
1A/245795
LIST OF EXHIBITS AND SCHEDULES
Exhibit A - Legal Description
Exhibit B - Form of Note and Deed of Trust
Exhibit C - Survey Specifications
Exhibit D - Form of Quitclaim Deed
Exhibit E - Title Commitment
Exhibit F - Estoppel Certificate
Exhibit G - Location of Hazardous Substance Spill
Schedule 1.01(b) - Personal Property
Schedule 1.01(h)(iii) - Licenses
Schedule 1.01(h)(iv) - Entitlements
Schedule 2.02(b) - Security Instruments
Schedule 5.01(c) - Consents and Approvals
Schedule 5.01(d) - Litigation
Schedule 5.01(e) - Contracts
Schedule 5.01(f) - Licenses and Entitlements
Schedule 5.01(g) - Leases
Schedule 5.01(h) - Reassessments
Schedule 5.01(i) - Special Assessments
Schedule 5.01(j) - Eminent Domain
Schedule 5.01(l) - Environmental
Schedule 5.01(s) - Bond Documents
Schedule 5.01(t) - Security Instruments
DOCUMENT #: CHGO01A (77795-00047-8) 245795.16;DATE:10/25/96/TIME:15:01