EXHIBIT 10.19
PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
BETWEEN
BOETTCHER WESTERN PROPERTIES III LTD., AS SELLER
AND
M. PHILLIP CARDOZA, AS BUYER
PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this
"Agreement"), dated as of July 17, 1997 (the "Effective Date"), is made and
entered into by and between BOETTCHER WESTERN PROPERTIES III LTD., a Colorado
limited partnership ("Seller"), and M. PHILLIP CARDOZA ("Buyer"), with reference
to the recitals set forth below and constitutes (i) a contract of purchase and
sale between the parties, and (ii) joint escrow instructions to FIRST AMERICAN
TITLE INSURANCE COMPANY ("Escrow Holder"), the consent of which appears at the
end hereof.
RECITALS
This Agreement is entered into with reference to the following facts:
A. Seller is the owner of fee title to that certain retail center
known as "Venetian Square Shopping Center" located at the corner of Marsh and
Pershing Streets in Stockton, California.
B. As used in this Agreement, the term "Property" includes all of
the following:
(1) The real property described on Exhibit A together with all
reversions, remainders, easements, rights-of-way, appurtenances, leases,
subleases, agreements, licenses, tenements, hereditaments and water rights
appertaining to or otherwise benefiting or used in connection with such real
property or the "Improvements" (as hereinafter defined), together with all of
Seller's right, title and interest in and to any strips of land, streets, and
alleys abutting or adjoining such real property (the "Land");
(2) The existing buildings and other improvements, structures,
open parking facilities and fixtures placed, constructed, installed or located
on the Land, and all plants, trees, sculptures, and other appurtenances located
upon, over or under the Land (collectively, the "Improvements"; the Land and
Improvements are sometimes hereinafter collectively referred to as the "Real
Property");
(3) Those items of equipment and other tangible personal property
described on the personal property inventory attached hereto as Exhibit B (the
"Personal Property");
(4) All right, title and interest of Seller, as landlord, under
the leases affecting the Real Property and described on the rent roll attached
hereto as Exhibit C (the "Leases");
(5) All right, title and interest of Seller in and to any
contracts, agreements or commitments, other than the Leases, including, without
limitation, all construction contracts, contracts for repair or maintenance,
contracts for the provision of services (such as, e.g., contracts concerning
security services or the maintenance of landscaping or fire safety or mechanical
systems), labor union or collective bargaining contracts, property management
and leasing agreements, if any, relating to the Real Property or the Personal
Property, to the extent that they are assignable (the "Contracts");
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(6) All right, title and interest of Seller in and to any
unexpired warranties, guaranties and bonds, including, without limitation,
contractors' and manufacturers' warranties or guaranties, if any, relating to
the Real Property or the Personal Property, to the extent that they are
assignable (the "Warranties");
(7) All right, title and interest of Seller in and to any
governmental permits, licenses, certificates and authorizations, including,
without limitation, certificates of occupancy, if any, relating to the
construction, use or operation of the Real Property or the Personal Property, to
the extent that they are assignable (the "Permits");
(8) All right, title and interest of Seller, if any, in and to
those site plans, surveys, soil and substratum studies, architectural drawings,
plans and specifications, engineering, electrical and mechanical plans and
studies, floor plans, landscape plans, and other plans and studies that relate
to the Real Property or the Personal Property, to the extent that they are
assignable (the "Plans"); and
(9) Subject to the provisions of Article 8 below any other
rights, privileges, and appurtenances owned by Seller and in any way related to,
or used in connection with the operation of the Real Property or Personal
Property, including all of Seller's right, title and interest in and to the use
of the Property's name, to the extent that they are assignable (the "Intangible
Property").
C. Seller now desires to sell and Buyer now desires to purchase the
Property, upon the terms and covenants and subject to the conditions set forth
below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1 - PURCHASE PRICE
--------------------------
In consideration of the covenants herein contained, Seller hereby
agrees to sell, and Buyer hereby agrees to purchase, the Property for a total
purchase price (the "Purchase Price") of SEVEN MILLION TWO HUNDRED SEVENTY-FIVE
THOUSAND AND NO/100'S DOLLARS ($7,275,000.00), in "Cash" (as hereinafter
defined).
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ARTICLE 2 - OPENING OF ESCROW
-----------------------------
Immediately prior to or concurrently with Buyer's delivery of the
"Initial Deposit" (as hereinafter defined) to Escrow Holder in accordance with
Section 4.1 below, Buyer and Seller shall open an escrow account ("Escrow") with
Escrow Holder and shall deposit with Escrow Holder fully executed counterparts
of this Agreement for use as escrow instructions. Buyer and Seller further
agree to execute Escrow Holder's usual form of supplemental escrow instructions
for transactions of this type; provided, however, that such escrow instructions
shall be for the purpose of implementing this Agreement, and such instructions
shall incorporate this Agreement by reference and shall specifically provide
that no provision thereof shall have the effect of modifying this Agreement
unless it is so expressly stated and initialed on behalf of Buyer and Seller.
In the event of any conflict between the provisions of this Agreement and any
supplementary escrow instructions, the terms of this Agreement shall prevail.
ARTICLE 3 - CONDITIONS TO THE PARTIES' OBLIGATIONS
--------------------------------------------------
3.1 Escrow Holder. Escrow Holder shall not be concerned with this
Article nor have any responsibility therefor.
3.2 Conditions to Buyer's Obligation to Purchase Buyer's obligation
to purchase the Property is expressly conditioned upon the satisfaction of each
of the following:
3.2.1 Performance by Seller. Timely performance of each
obligation and covenant of, and delivery required of, Seller hereunder,
including, without limitation, Seller's execution and delivery of the "Clearance
Center Lease" (as hereinafter defined), unless waived by Buyer.
3.2.2 Satisfaction or Waiver of Contingencies. The
contingencies set forth in Article 6 below shall have been satisfied or waived
by Buyer; provided, that if Buyer does not terminate this Agreement pursuant to
Article 6, the contingencies set forth in such Article 6 shall be deemed to have
been waived by Buyer.
3.2.3 Accuracy of Representations. The accuracy in all
material respects of each representation and warranty of Seller contained in
Section 12.2 below.
3.2.4 Title Policy. Delivery at the "Closing" (as hereinafter
defined) of a binding commitment by Escrow Holder, in its capacity as title
insurer (in such capacity, "Title Company"), to issue the "Title Policy" (as
hereinafter defined).
3.3 Conditions to Seller's Obligation to Sell. Seller's obligation
to sell the Property is expressly conditioned upon each of the following:
3.3.1 Performance by Buyer. Timely performance of each
obligation and covenant of, and delivery required of, Buyer hereunder.
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3.3.2 Accuracy of Representations. The accuracy in all
material respects of each representation and warranty of Buyer in Section 12.3
below.
3.3.3 Payment of Purchase Price. Payment of the Purchase Price
at the Closing in the manner herein provided.
3.3.4 Consent of Limited Partners. Seller obtaining, not later
than ninety (90) days after the expiration of the "Financing Contingency
Deadline" (as hereinafter defined), all consents or approvals of the limited
partners of Seller (the "Limited Partners") required to consummate the sale of
the Property by Seller pursuant to the terms and conditions of this Agreement.
In the event that the Limited Partners disapprove of or otherwise affirmatively
refuse to consent to the sale of the Property on the terms and conditions set
forth in this Agreement prior to such date (the "Target Approval Date"), this
Agreement shall terminate as of the date Seller notifies Buyer in writing of
such disapproval. In the event that Seller is unable to obtain the required
consents or approvals prior to the Target Approval Date, but in the absence of
an affirmative disapproval of the sale of the Property to Buyer, Buyer, at
Buyer's option, shall have the right to terminate this Agreement upon written
notice delivered to Seller and Escrow Holder within five (5) business days
following the Target Approval Date. If Buyer does not terminate this Agreement
in accordance with the foregoing sentence, then Seller shall continue to pursue
obtaining the required consents and approvals for an additional period of ninety
(90) days beyond the Target Approval Date (the "Extended Approval Period"). In
the event that Seller has not obtained the required consents or approvals prior
to the expiration of the Extended Approval Period, or in the event that during
the Extended Approval Period the Limited Partners disapprove of or otherwise
affirmatively refuse to consent to the sale of the Property on the terms and
conditions set forth in this Agreement, this Agreement shall terminate as of the
earlier to occur of (i) the expiration of the Extended Approval Period, or (ii)
the date on which Seller notifies Buyer in writing of such disapproval. Seller
shall, from and after the Financing Contingency Deadline, diligently pursue
obtaining all necessary consents, and shall keep Buyer reasonably informed of
its progress. In the event of any termination of this Agreement pursuant to
this Section 3.3.4, the Deposit shall be returned to Buyer, and Seller shall
reimburse Buyer for Buyer's actual, out-of-pocket costs and expenses incurred in
connection with the negotiation and documentation of this Agreement and with
Buyer's investigation of the Property pursuant to Article 6 below, up to a
maximum of $50,000.00, not later than thirty (30) days following Seller's
receipt of an itemized invoice therefor. Thereafter, the parties shall be
relieved from any further obligation or liability to the other pursuant to this
Agreement except for those obligations which expressly survive the Closing or
earlier termination of this Agreement pursuant to the provisions of Article 9
below; provided, that Buyer shall return all of Seller's Deliveries to Seller
and shall provide Seller with copies of all reports, surveys, assessments,
analyses or summaries thereof prepared by or on behalf of Buyer in connection
with its investigations of the Property pursuant to Article 6 below.
ARTICLE 4 - BUYER'S DELIVERIES
-------------------------------
4.1 Initial Deposit. Not later than three (3) business days after
the Effective Date, Buyer shall deliver to Escrow Holder the sum of THIRTY
THOUSAND AND NO/100'S DOLLARS ($30,000.00), in Cash, to be held by Escrow Holder
in a federally insured, interest bearing trust account as Buyer's initial
earnest money deposit hereunder (the "Initial Deposit").
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4.2 Additional Deposit. In the event that Buyer does not timely
terminate this Agreement in accordance with the provisions of Sections 6.2.2 and
6.2.3 below, not later than one (1) business day following the expiration of the
Financing Contingency Deadline, Buyer shall deliver to Escrow Holder the
additional sum of THIRTY THOUSAND AND NO/100'S DOLLARS ($30,000.00), in Cash
(the "Additional Deposit"), which shall be added to and held with the Initial
Deposit.
4.3 Application of Deposit. The Initial Deposit, together with the
Additional Deposit, and all interest accrued thereon shall constitute the
"Deposit" hereunder, and shall be applied to the Purchase Price payable by Buyer
at Closing; provided, that (i) in the event of a default by Buyer hereunder, the
Deposit shall be released to Seller as "Liquidated Damages" pursuant to the
provisions of Article 11 below, or (ii) in the event of the failure of a
condition precedent to Buyer's obligations hereunder or a default by Seller
hereunder, the Deposit shall be returned to Buyer.
4.4 Additional Deliveries. Buyer shall, at or before the Closing,
deliver to Escrow Holder the following funds, instruments and documents, the
delivery of each of which is an express obligation of Buyer:
4.4.1 Balance of Purchase Price. Cash, constituting the
balance of the Purchase Price, in the amount of SEVEN MILLION TWO HUNDRED
FIFTEEN THOUSAND AND NO/100'S DOLLARS ($7,215,000.00), subject to adjustments
and prorations as provided for herein.
4.4.2 Assignment and Assumption of Leases. Two counterparts of
the Assignment and Assumption of Leases in the form of Exhibit D attached hereto
(the "Assignment of Leases"), executed by Buyer, pursuant to which Seller shall
assign all of its right, title and interest in and to the Leases to Buyer.
4.4.3 Assignment and Assumption of Contracts. Two counterparts
of the Assignment and Assumption of Contracts in the form of Exhibit E attached
hereto (the "Assignment of Contracts"), executed by Buyer, pursuant to which
Seller shall assign all of its right, title and interest in and to the Contracts
to Buyer.
4.4.4 Cash - Prorations. Buyer's share, if any, of prorations,
fees and costs, as described in Article 8 below.
4.4.5 Settlement Statement. A settlement statement signed by
Buyer reflecting the Purchase Price, the Deposit, Buyer's share of the
prorations, costs and fees described in Article 8 and the amounts due from Buyer
hereunder.
4.5 Further Documents. Buyer shall execute and deliver such other
documents and shall take such other action at the Closing as may be necessary or
appropriate to carry out its respective obligations under this Agreement,
without further representations or warranties other than those contained herein.
4.6 Failure to Deliver. The delivery of the funds, instruments and
documents required above shall be express obligations of Buyer and a condition
precedent to Seller's performance
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hereunder, and the failure of Buyer to make any delivery required above by the
date, or within the time, set forth above, shall constitute a material breach
hereof by Buyer.
ARTICLE 5 - SELLER'S CLOSING DELIVERIES
---------------------------------------
5.1 Delivery of Instruments and Documents. Seller shall, at or
before the Closing, deliver to Escrow Holder the following instruments and
documents, the delivery of each of which is an express obligation of Seller:
5.1.1 Deed. A grant deed in the form attached hereto as
Exhibit F (the "Deed"), executed and acknowledged by Seller, conveying the Real
Property to Buyer free and clear of all liens and encumbrances but subject to
the "Permitted Exceptions" (as hereinafter defined).
5.1.2 Bill of Sale. A bill of sale in the form of Exhibit G
attached hereto, executed by Seller, conveying the Personal Property and Plans
to Buyer.
5.1.3 Assignment and Assumption of Leases. Two counterparts
of the Assignment of Leases executed by Seller.
5.1.4 Assignment and Assumption of Contracts. Two
counterparts of the Assignment of Contracts executed by Seller.
5.1.5 Tenant Notification. Signed notification letters in the
form attached hereto as Exhibit H to be sent to each tenant under each of the
Leases following the Closing Date, advising each tenant of the transfer of
ownership and directing that all further payments of rent be made as directed by
Buyer.
5.1.6 Leases/Contracts. Originals or legible copies of the
Leases and any written Contracts, and all keys to the Improvements in Seller's
possession.
5.1.7 Section 1445 Affidavit. An affidavit in the form of
Exhibit I attached hereto executed by Seller which evidences that the Seller is
exempt from the withholding requirements of Section 1445 of the Internal Revenue
Code of 1986, as amended.
5.1.8 Settlement Statement. A settlement statement signed by
Seller reflecting the Purchase Price, Seller's share of the prorations, costs
and fees described in Article 8, and the net proceeds due to Seller.
5.2 Further Documents. Seller shall execute and deliver such other
documents and shall take such other action at Closing as may be necessary or
appropriate to carry out its respective obligations under this Agreement,
without further representations or warranties other than those contained herein.
5.3 Failure to Deliver. The delivery of the documents required
above shall be express obligations of Seller and a condition precedent to
Buyer's obligation to purchase the Property. The failure of Seller to make any
delivery required above by the date, or within the time, set forth
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above shall constitute a material breach hereof by Seller.
ARTICLE 6 - REVIEW OF DOCUMENTS
-------------------------------
AND CERTAIN CONTINGENCIES
-------------------------
6.1 Waiver of Certain Inspections. Buyer hereby acknowledges and
agrees that Buyer's affiliate, Cardoza Properties, Inc., is the current property
manager of the Property, and consequently is thoroughly familiar with the
condition, use, management and operational history of the Property during the
period of its management of the Property, including, without limitation, the
physical condition of the Real Property, the Improvements and the Personal
Property, the terms and conditions of the Leases and Contracts, and income and
expense histories. Without limiting the generality of Section 6.5 below, Buyer
hereby accepts the condition of the Property, including, without limitation, the
physical condition of the Real Property, the Improvements and the Personal
Property and the content, terms and conditions of the Leases and Contracts
existing as of the date of this Agreement, subject to Buyer's right to review
and approve the contents of the "Title Report", "Appraisal" and "Environmental
Report" (and the environmental condition of the Real Property described therein)
in accordance with Section 6.2 below.
6.2 Document Review.
6.2.1 Delivery of Appraisal and Environmental Report. Buyer
hereby acknowledges receipt of (i) that certain appraisal of the Property dated
as of September 30, 1995 prepared by Joseph J. Blake & Associates (the
"Appraisal"); and (ii) that certain Quarterly Groundwater Monitoring Report,
First Quarter 1997 dated as of March 27, 1997, prepared by Clearwater Group,
Inc. (the "Environmental Report").
6.2.2 Financing Contingency Deadline. Buyer shall have until
the "Financing Contingency Deadline" (as hereinafter defined) to review the
contents of the Appraisal and the Environmental Report and the environmental
condition of the Property described therein.
6.2.3 Review of Title Report. Not later than five (5)
business days after the date hereof, Seller shall cause Title Company to deliver
to Buyer a preliminary title report for the Property, together with legible
copies of all recorded exceptions to title referred to in such report
(collectively, the "Title Report"), contemplating the issuance of a CLTA
standard coverage owner's policy of title insurance in accordance with Section
7.1.2 below. Without limiting the generality of Section 6.2.1 above with
respect to Buyer's review of the Appraisal and Environmental Report, Buyer shall
have until the expiration of the Financing Contingency Deadline to review the
condition of title to the Real Property as shown on the Title Report and to
notify Seller and Title Company of its disapproval of any matter reflected in
the Title Report. In the event that prior to the expiration of the Financing
Contingency Deadline Buyer objects in writing to any matter involving title to
the Real Property, including, without limitation, any exception to title
disclosed on the Title Report (a "Title Defect"), Seller shall have the right,
but not the obligation, to attempt to cure such Title Defect not later than
thirty (30) days prior to the Closing; provided, that Seller shall be obligated
to eliminate all liens evidencing monetary encumbrances (other than liens for
non-delinquent general real property taxes, assessments and improvement district
bonds). Such cure may be effected by deletion of the Title Defect from the Title
Policy, by appropriate endorsements insuring over such Title Defect, or by such
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other cure as may be reasonably satisfactory to Buyer. Seller shall notify Buyer
and Title Company in writing not later than five (5) business days following the
expiration of the Financing Contingency Deadline of Seller's election to attempt
to cure such Title Defect. In the event that (a) Seller elects not to cure the
Title Defect as provided herein, or (b) Seller fails or is unable to cure such
Title Defect within the time period specified herein, and cure of such Title
Defect is not waived by Buyer, then this Agreement shall terminate in accordance
with the provisions of Section 6.4 below. Buyer's failure to notify Seller of
Buyer's objection to any Title Defect shall constitute approval of the Title
Report in accordance with the foregoing. If Buyer does not terminate this
Agreement pursuant to Section 6.4, then the exceptions to title disclosed in the
Title Report, as amended by any endorsements or revisions to the Title Report
requested and obtained by Buyer prior to the expiration of the Financing
Contingency Deadline, shall constitute the "Permitted Exceptions" hereunder.
6.3 Contingencies
6.3.1 Financing Contingency. Buyer shall have until 5:00
p.m., M.S.T., on August 15, 1997 (the "Financing Contingency Deadline") to
secure one or more loan commitments from third party lenders and/or
participating investors or lenders (collectively, the "Loan Commitments")
pursuant to which such lenders or investors commit to provide, by way of
mortgage loans or investment capital, on terms and conditions acceptable to
Buyer. Buyer agrees to use its best efforts and to act in good faith and with
due diligence to obtain the Loan Commitments prior to the expiration of the
Financing Contingency Deadline.
6.3.2 Lease Contingency. Seller shall have until the
expiration of the Financing Contingency Deadline to finalize and enter into a
lease agreement (the "Clearance Center Lease") with Step Ahead Investments,
Inc., a California corporation doing business as "$.98 Clearance Centers," on
terms reasonable acceptable to Seller and consistent in all material respects
with the business terms and conditions set forth in that certain draft of the
Clearance Center Lease previously delivered to Buyer. In the event that Seller
fails or is unable to finalize and enter into the Clearance Center Lease prior
to the expiration of the Financing Contingency Deadline, Buyer, upon written
notice to Seller and Escrow Holder delivered no later than five (5) business
days following the Financing Contingency Deadline, may terminate this Agreement,
in which event (i) Buyer shall return all of Seller's Deliveries, including any
copies or written summaries thereof to Seller and shall deliver to Seller copies
of any other reports, summaries or analyses of the Property generated by or on
behalf of Buyer in connection with its investigation of the Property, (ii)
Seller shall pay any escrow termination fees charged by Escrow Holder, (iii) the
Deposit shall be returned to Buyer, (iv) Escrow Holder shall return all other
items in Escrow to the party who delivered the same, and (v) both parties shall
be relieved from any further liability hereunder. If Buyer does not terminate
this Agreement as described in the preceding sentence, then this Agreement shall
remain in full force and effect in accordance with its terms.
6.4 Termination. If, (i) on or before the expiration of the
Financing Contingency Deadline, Buyer gives Seller and Escrow Holder written
notice setting forth Buyer's dissatisfaction with the contents of the Seller's
Deliveries for any reason whatsoever, or (ii) on or before the expiration of the
Financing Contingency Deadline, Buyer gives Seller and Escrow Holder written
notice of Buyer's failure to obtain the Loan Commitments, then (a) this
Agreement shall terminate, (b) Buyer shall return all of Seller's Deliveries,
including any copies or written summaries thereof to Seller and shall deliver to
Seller copies of any other reports, summaries or analyses of the Property
generated by
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or on behalf of Buyer in connection with its investigation of the Property, (c)
Buyer shall pay any escrow termination fees charged by Escrow Holder, (d) the
Deposit shall be returned to Buyer, (e) Escrow Holder shall return all other
items in Escrow to the party who delivered the same, and (f) both parties shall
be relieved from any further liability hereunder. If Buyer does not terminate
this Agreement as described in the preceding sentence, then this Agreement shall
remain in full force and effect in accordance with its terms.
6.5 "As Is" Purchase
6.5.1 Opportunity to Inspect. Buyer acknowledges and agrees,
for Buyer and Buyer's successors and assigns, that (i) Buyer has been given a
reasonable opportunity to inspect and investigate the Property and all aspects
relating thereto, either independently or through agents, consultants or experts
of Buyer's choosing; and (ii) Buyer has inspected and investigated the Property
and engaged such qualified agents, consultants or experts, including, without
limitation, environmental consultants, as Buyer deems necessary to make all
appropriate inquiry regarding the condition of the Property and adjacent
property, including, without limitation, the presence thereon, or the condition
thereof with respect to, any "Hazardous Materials" (as defined below). At
Closing, subject to the terms, conditions, representations and warranties, if
any, set forth in this Agreement or in any other instrument of conveyance signed
by Seller and delivered to Buyer at Closing (the "Conveyance Documents"), Buyer
shall acquire and accept the Property in its then-existing condition on an "AS
IS, WHERE IS, AND WITH ALL FAULTS" basis, with no right of set-off or reduction
in the Purchase Price. As used in this Agreement, "Hazardous Materials" shall
mean any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any "Environmental Law" (as defined below),
including, without limitation, asbestos, gasoline and any other petroleum
products (including crude oil or any fraction thereof), polychlorinated
biphenyls and urea-formaldehyde insulation. As used in this Agreement,
"Environmental Law" shall mean any and all federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees or
requirements of any governmental authority or requirements of law (including
common law) relating to or imposing liability or standards of conduct concerning
the protection of human health, the environment or natural resources, or to
releases or threatened releases of Hazardous Materials into the environment,
including, without limitation, ambient air, surface water, groundwater or land,
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials, as
now or may hereafter be in effect.
6.5.2 No Implied Representations. Buyer acknowledges and
agrees that, except as otherwise set forth in this Agreement and except for
Seller's express representations and warranties set forth in Section 12.1 below
or in any instrument of conveyance signed by Seller and delivered to Buyer at
Closing (collectively, "Seller's Express Representations"), NEITHER SELLER NOR
ANY AGENT, EMPLOYEE, OFFICER, DIRECTOR, BROKER, CONTRACTOR OR REPRESENTATIVE OF
SELLER HAS MADE, AND SELLER SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO THE
PROPERTY, INCLUDING, WITHOUT LIMITATION: (A) THE NATURE, QUANTITY, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE AREA, OR THE
CONDITION WITH RESPECT TO WATER, SOILS OR GEOLOGY, OF ANY LAND INCLUDED IN THE
PROPERTY, THE PLUMBING, ELECTRICAL OR MECHANICAL EQUIPMENT OR
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SYSTEMS OR THE ROOFS, FOUNDATIONS OR OTHER STRUCTURAL COMPONENTS OF ANY
IMPROVEMENTS INCLUDED IN THE PROPERTY, OR THE FITNESS OF ANY PERSONAL PROPERTY
INCLUDED IN THE PROPERTY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY BY
VIRTUE OF THE LEASES OR OTHERWISE; (C) THE COSTS OF OWNING, OPERATING, REPAIRING
OR MAINTAINING THE PROPERTY; (D) THE MARKETABILITY OF THE PROPERTY OR ANY
POTENTIAL TO DEVELOP, CONSTRUCT OR ALTER IMPROVEMENTS ON, OR LEASE OR SELL THE
PROPERTY; (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY; OR (F) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS
OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY, INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAW;
AND THAT NEITHER SELLER NOR ANY AGENT, EMPLOYEE, OFFICER, DIRECTOR, BROKER,
CONTRACTOR OR REPRESENTATIVE OF SELLER HAS MADE, AND SELLER SPECIFICALLY
DISCLAIMS, ANY REPRESENTATIONS CONCERNING HAZARDOUS MATERIALS. BUYER
ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER'S EXPRESS REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CONVEYANCE DOCUMENTS,
BUYER IS RELYING SOLELY UPON ITS OWN INSPECTION OF THE PROPERTY AND NOT UPON ANY
INFORMATION PROVIDED BY OR ON BEHALF OF, OR TO BE PROVIDED BY OR ON BEHALF OF,
SELLER OR UPON ANY REPRESENTATIONS MADE TO IT BY SELLER OR ANY AGENT, EMPLOYEE,
OFFICER, DIRECTOR, BROKER, CONTRACTOR OR REPRESENTATIVE OF SELLER. BUYER FURTHER
ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH
RESPECT TO THE PROPERTY WAS OR MAY BE OBTAINED FROM A VARIETY OF SOURCES AND
THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF
SUCH INFORMATION.
6.5.3 Waiver and Release. Except as set forth in this
Agreement, Buyer, for Buyer and Buyer's successors and assigns, releases Seller
and Seller's agents, employees, officers, directors, brokers, contractors and
representatives from, and waives any and all causes of action or claims against
any of such persons for (i) any and all liability attributable to any physical
condition of or at the Property; and (ii) any liabilities, damages or injury
arising from, connected with or otherwise caused by statements, opinions or
information obtained from any of such persons with respect to the Property.
6.5.4 Survival. The provisions of this Section 6.5 shall
survive Closing or any termination of this Agreement.
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ARTICLE 7 - THE CLOSING
-----------------------
7.1 Date and Manner of Closing. If this Agreement has not then been
terminated in accordance with Section 6.4, the close of Escrow (the "Closing")
shall take place at the offices of Escrow Holder on the fifteenth (15th) day
after the date on which Seller notifies Buyer that Seller has obtained all
necessary consents from its Limited Partners as contemplated by Section 3.3.4
above, or, by mutual agreement of the parties, on an earlier date. The date of
Closing hereunder is referred to herein as the "Closing Date." Escrow Holder
shall close the Escrow by (i) filing for record the Deed and such other
documents as may be necessary to procure the Title Policy (described below) and
(ii) delivering funds and documents as set forth in Article 9, WHEN AND ONLY
WHEN each of the following conditions has been satisfied:
7.1.1 Funds and Documents. All funds and instruments required
to be delivered to Escrow Holder pursuant to Articles 4 and 5 have been so
delivered to Escrow Holder.
7.1.2 Title Insurance. Title Company is prepared to issue a
CLTA Standard Owner's Policy of Title Insurance, with liability in the amount of
the Purchase Price, insuring that fee title to the Real Property vests in Buyer,
subject only to the Permitted Exceptions. The title insurance policy to be
issued to Buyer pursuant to this Section 7.1.2 is hereinafter referred to as the
"Title Policy".
7.2 Delay in Closing; Authority to Close. If Escrow Holder cannot
close the Escrow on or before the scheduled Closing date, it will, nevertheless,
close the same when all conditions have been satisfied or waived,
notwithstanding that one or more of such conditions has not been timely
performed, unless after said date and prior to Closing, Escrow Holder receives a
written notice to terminate the Escrow and this Agreement from a party who, at
the time such notice is delivered, is not in default hereunder. Neither (i) the
exercise of such right to terminate, (ii) delay in the exercise of such right,
nor (iii) the return of monies and documents, shall affect the right of the
party giving such notice of termination to pursue legal or equitable remedies as
provided in this Agreement for the other party's breach of this Agreement. Nor
shall (i) the giving of such notice, (ii) the failure to object to termination
of the escrow or (iii) the return of monies and documents affect the right of
the other party to pursue other legal or equitable remedies as provided in this
Agreement for the breach of the party who gives such notice.
7.3 Termination of Agreement; Liability of Escrow Holder. Escrow
Holder shall have no liability or responsibility for determining whether or not
a party giving a notice of termination is or is not in default hereunder.
Within two business days after receipt of such notice from one party, Escrow
Holder shall deliver a copy of such notice to the other party. Unless written
objection to the termination of the Escrow is received by Escrow Holder within
ten (10) days after Escrow Holder so delivers such notice to the other party,
(i) Escrow Holder shall forthwith terminate the Escrow and return all funds,
documents and other items held by it to the party depositing same, except that
Escrow Holder may retain such documents and other items usually retained by
escrow holders in accordance with standard escrow termination procedures and
practices, and (ii) each party shall forthwith pay to Escrow Holder one-half of
Escrow Holder's reasonable escrow termination charges. Notwithstanding the
foregoing provisions of this subparagraph, Escrow Holder may deduct from any
cash or other funds held by it, a sum sufficient to pay its escrow termination
charges in full. If written objection to the termination of the Escrow is
delivered to Escrow Holder within such ten (10) day period, Escrow
12
Holder is authorized to hold all funds, documents and other items delivered to
it in connection with the Escrow and may, in Escrow Holder's sole discretion,
take no further action until otherwise directed, either by the parties' mutual
written instructions or final order of a court of competent jurisdiction. The
provisions of this Section 7.3 shall not apply to a termination of the Escrow by
Buyer pursuant to Section 6.2.2., in which event Buyer shall be solely
responsible for payment of all termination fees.
ARTICLE 8 - PRORATIONS, FEES AND COSTS
--------------------------------------
8.1 Prorations. Escrow Holder will prorate and adjust between the
parties, in Cash at the Closing, the following (all prorations are to be made on
the basis of a 365-day year, unless otherwise specifically instructed in
writing):
8.1.1 Property Taxes. All real property and personal property
taxes and assessments (except special assessments) which are customarily paid in
arrears shall be prorated as of the Closing Date. Buyer shall be solely
responsible for payment of any special assessments payable in installments due
on or after the Closing Date. Seller shall pay all such taxes attributable to
any period prior to the Closing. If the applicable tax rate and assessments for
the Property have not been established for the year in which Closing occurs, the
proration of real estate and/or personal property taxes, as the case may be,
shall be based upon the most recent assessed valuations and mill levy available,
which proration shall be deemed a final settlement between the parties,
provided, that in the event of any refund or reduction in property taxes
assessed against the Property for (i) any tax year prior to the year of Closing,
or (ii) the year of Closing, resulting from an appeal of the amount of such
taxes, the amount of any such refund or reduction attributable to tax years
prior to the year of Closing shall be paid to Seller, and any such refund or
reduction in taxes attributable to the year of Closing shall be prorated as of
the Closing Date at such time as the judgment on appeal shall become final. If
either such real estate or such personal property taxes are payable directly to
the taxing authority by any tenant under and pursuant to the terms of any Lease,
then the foregoing provisions shall be inapplicable with respect thereto and
there shall be no proration of such taxes between Seller and Buyer. All taxes
imposed because of a change of use of the Property after Closing shall be paid
by the Buyer.
8.1.2 Income. All income from the Leases or from any other
portion of the Property (such as, e.g., parking rents, if any) shall be prorated
as of the Closing Date. Buyer shall receive all income accruing on the Closing
and thereafter. Seller shall receive all income accruing prior to the Closing.
8.1.3 Deposits; Tenant Concessions. Seller shall retain all
non-refundable deposits paid by tenants under the Leases. Buyer shall be
entitled to a credit at Closing for the amount of (i) any security or other
deposits paid by tenants under the Leases, (ii) any prepaid rentals, (iii)
cleaning fees and other deposits, and (iv) any rent abatement or "free rent"
under any of the Leases attributable to periods from and after the Closing Date.
8.1.4 Reimbursable Expenses. For each of the tenants under
the Leases, there shall be calculated the difference, if any, between (i) the
rental payments made by such tenant to Seller through the Closing Date for such
tenant's prorata share of Reimbursable Expenses for the year of Closing; and
(ii) such tenant's prorata share, pursuant to the terms of its Lease, of the
actual Reimbursable Expense incurred by Seller for the year of Closing through
the Closing Date. In
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calculating such amounts, any rental payments for Reimbursable Expenses that are
credited to Buyer at Closing shall be subtracted from rental payments for
Reimbursable Expenses deemed received by Seller and all prorations charged to
Seller for expenses that constitute Reimbursable Expenses shall be deemed
amounts incurred by Seller through the Closing Date. The amounts of such
differences (whether positive or negative) for each of the tenants under the
Leases shall then be added together and, if Seller has received more rental for
Reimbursable Expenses for the year of Closing through the Closing Date than the
actual amount of Reimbursable Expenses incurred by Seller during such period for
which Seller is entitled to reimbursement under the Leases, then Seller shall
credit the amount of such excess to Buyer at Closing. Such adjustment between
Seller and Buyer for Reimbursable Expenses shall be deemed a final settlement.
Buyer shall be solely responsible for any adjustments that are required to be
made with the tenants under the Leases after the end of the year of Closing for
any differences between the rental payments made by such tenants for
Reimbursable Expenses for the year of Closing and the actual total Reimbursable
Expenses for such year. Such obligation of Buyer shall survive Closing.
8.1.5 Leasing Commissions and Monetary Concessions. Seller
shall pay and perform all leasing commissions and other monetary concessions,
including improvement allowances and tenant improvement work relating to the
Clearance Center Lease, up to a maximum of $200,000.00 (collectively, "Tenant
Concessions").
8.1.6 Other Expenses of Property. In general, all expenses
relating to the operation of the Property accruing prior to the Closing shall be
paid by Seller and all such expenses accruing on or after Closing shall be paid
by Buyer. Seller shall be entitled to a credit at Closing for the amount of any
deposits Seller has made with any of the utilities services or companies
servicing the Property. Buyer shall arrange with all utilities services and
companies servicing the Property to have new accounts started in the name of
Buyer or Buyer's designee beginning at 12:01 a.m. on the Closing Date.
8.1.7 Miscellaneous. All of the prorations respecting the
Property, except as otherwise provided herein, shall be made in accordance with
the custom of San Joaquin County, California.
8.2 Date of Proration. The prorations and adjustments provided for
in this Article 8 shall be made so that the Buyer shall receive the income and
be charged with the expense of the operation of the Property for the Closing
Date, provided that the Purchase Price (subject to the adjustments and
prorations provided for herein) is delivered to Seller in sufficient time on the
Closing Date so that such proceeds may be invested and Seller shall receive
interest on such investment for the Closing Date. If the proceeds of the
Purchase Price are not so delivered to the Seller on the Closing Date, the
prorations and adjustments to be made under this Article 8 shall not be changed,
but Escrow Holder shall not effect the Closing until Buyer has paid to Seller
interest on the amounts due to Seller at a rate equal to ten percent (10%) per
annum, calculated on a 365-day year, to compensate Seller for the loss of
interest for such date.
8.3 Buyer's Closing Costs. Buyer will pay (i) one-half of Escrow
Holder's escrow fee, (ii) the cost of the Title Policy and any endorsements to
the Title Policy requested by Buyer, (iii) usual buyer's document-drafting
charges, and (iv) Buyer's attorneys' fees.
14
8.4 Seller's Closing Costs. Seller will pay (i) any excise,
transfer, sales or use taxes assessed in connection with recording the Deed,
(ii) one-half of Escrow Holder's escrow fee, (iii) usual seller's document-
drafting and recording charges, including recordation of the Deed, and (iv)
Seller's attorneys' fees.
ARTICLE 9 - DISTRIBUTION OF FUNDS AND DOCUMENTS
-----------------------------------------------
9.1 Form of Disbursements. All disbursements by Escrow Holder shall
be made by wire transfer to the account of Seller in accordance with the wiring
instructions attached as Exhibit M hereto.
9.2 Liens and Encumbrances. At the time of Closing, Escrow Holder
shall pay, from funds to which Seller shall be entitled, to the obligees
thereof, any lien, deed of trust, mortgage or other encumbrance then affecting
the Property.
9.3 Recorded Documents. Escrow Holder will cause the County
Recorder of San Joaquin County, California, to mail the Deed (and each other
document which is herein expressed to be, or by general usage is, recorded)
after recordation, to the grantee, beneficiary or person (i) acquiring rights
under said document or (ii) for whose benefit said document was acquired.
9.4 Nonrecorded Documents. Escrow Holder will, at the Closing,
deliver by United States mail (or will hold for personal pickup, if requested),
at least one duplicate original of each nonrecorded document received hereunder
by Escrow Holder to Buyer and Seller.
9.5 Cash Disbursements. Escrow Holder will, at the Closing, arrange
for wire transfer, (i) to Seller, or order, the Purchase Price, plus any
prorations or other credits to which Seller will be entitled and less any
appropriate prorations or other charges and (ii) to Buyer, or order, any excess
funds theretofore delivered to Escrow Holder by Buyer.
9.6 Copies of Documents. Escrow Holder will, as soon as possible
after Closing, deliver to Buyer and to Seller a copy of the Deed (conformed to
show recording data) and each document recorded or delivered to or through
Escrow herein.
ARTICLE 10 - RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION
-----------------------------------------------------------
10.1 Return of Seller's Documents. In the event the Escrow is
terminated for any reason (other than the default of Seller), Buyer shall,
within fifteen (15) calendar days following such termination, deliver to Seller
all documents and materials, if any, relating to the Property previously
delivered to Buyer by Seller. Escrow Holder shall deliver all documents and
materials deposited by Seller and then in Escrow Holder's possession to Seller.
10.2 Return of Buyer's Documents. In the event Escrow is terminated
for any reason (other than the default of Buyer), Escrow Holder shall, within
fifteen (15) calendar days following such termination, deliver to Buyer all
funds and documents, if any, deposited by Buyer and then in Escrow Holder's
possession to Buyer.
15
10.3 No Effect on Rights of Parties. The return of documents and
monies as set forth above shall not affect the right of either party to seek
such legal or equitable remedies as such party may be entitled by the terms of
this Agreement.
10.4 Payment of Termination Fee. Escrow Holder may condition its
deliveries hereinabove provided upon payment by the party requesting delivery of
a termination fee. Notwithstanding any other provision of this Agreement to the
contrary, any termination fee shall be paid (or reimbursed) by the defaulting
party, or paid equally if neither party is then in default, provided, however,
that upon a termination by Buyer in accordance with Section 6.4, any termination
fee shall be paid by Buyer.
ARTICLE 11 - DEFAULT
--------------------
11.1 Seller's Remedies. If Buyer fails to complete the acquisition
as herein provided by reason of any default by Buyer, Seller shall be released
from any further obligations hereunder and shall be entitled to the following:
Buyer's INSOFAR AS IT WOULD BE EXTREMELY IMPRACTICABLE AND
Initials DIFFICULT TO ESTIMATE THE DAMAGE AND HARM WHICH SELLER WOULD
SUFFER IN THE EVENT BUYER DEFAULTS
________ HEREUNDER AND FAILS TO COMPLETE THE ACQUISITION HEREUNDER AND
INSOFAR AS A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD
SUFFER IN THE EVENT OF BUYER'S DEFAULT AND FAILURE TO
Seller's DULY COMPLETE THE ACQUISITION HEREUNDER IS THE SUM
Initials OF $60,000.00, SELLER SHALL THEREFORE BE ENTITLED
________ TO BUYER'S DEPOSIT OF $60,000.00 PLUS ANY INTEREST THEREON,
DELIVERED TO SELLER IN ACCORDANCE WITH SECTION 4.1 OF THIS AGREEMENT AS AND FOR
THE SOLE REMEDY FOR DAMAGES ARISING FROM BUYER'S FAILURE TO COMPLETE THE
ACQUISITION IN ACCORDANCE WITH THE TERMS HEREOF.
11.2 Buyer's Remedies. In the event of any failure of Seller to
comply with any of its obligations hereunder which are required to be performed
at or prior to the Closing, Buyer may, at Buyer's option and as its exclusive
remedy, either (i) terminate this Agreement by giving written notice of
termination to Seller and to Escrow Holder whereupon Escrow Holder shall return
the Deposit to Buyer and both Buyer and Seller shall be relieved of further
obligations or liabilities hereunder, or (ii) Buyer may seek specific
performance of this Agreement, or (iii) Buyer may terminate this Agreement and
seek actual damages in an amount not to exceed (a) $30,000.00, for any breach by
Seller prior to the expiration of the Financing Contingency Deadline, or (b)
$60,000.00, for any breach by Seller following the expiration of the Financing
Contingency Deadline.
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ARTICLE 12 - REPRESENTATIONS AND WARRANTIES
-------------------------------------------
12.1 Escrow Holder. Escrow Holder shall have no concern with, or
liability or responsibility for, this Article.
12.2 Seller's Representations and Warranties. Seller represents and
warrants to Buyer that, as of the date of this Agreement and as of the date on
which Closing shall occur, the statements made by Seller pursuant to this
Section 13.2 shall be true and correct in all material respects, it being
expressly understood and agreed by Purchaser that except as set forth in this
Section 12.2, Seller is not making and has not made any other representations or
warranties of any kind or nature whatsoever, express or implied, including,
without limitation, any representations or warranties as to the condition of the
Property or its fitness for any particular purpose. As used herein, the phrase
"to the best of Seller's knowledge" shall be limited to the current actual
knowledge of Kelly J. Stradinger, vice president of the corporate general
partner of Seller's general partner and the individual responsible for
overseeing the management and ownership of the Property on Seller's behalf.
12.2.1 Authority. Seller is a limited partnership, duly
organized and existing in good standing under the laws of the State of Colorado.
Upon obtaining all requisite partnership and governmental approvals of the
transactions contemplated by this Agreement, Seller shall have the full right
and authority to sell the Property on the terms and conditions set forth herein.
12.2.2 Violations. To the best of Seller's knowledge, the
entering into and consummation of the transactions contemplated hereby will not
conflict with, or constitute a default under, any Contract, Lease or other
Agreement to which Seller is a party or by which Seller may be bound.
12.2.3 Special Assessments. To the best of Seller's knowledge,
the Real Property is not situated within any special assessment district other
than the districts revealed by the most recent statement for real property taxes
for the Real Property. Seller has no knowledge of any proposal under which the
Real Property is to be included in any other special assessment district.
12.2.4 Adverse Claims. To the best of Seller's knowledge,
Seller has not received written notice of, and to the best of Seller's
knowledge, there are no, pending, threatened or contemplated actions, suits,
arbitrations, claims or proceedings, at law or in equity, affecting the Property
or in which Seller is, or will be, a party by reason of Seller's ownership of
the Property.
12.2.5 Insolvency. To the best of Seller's knowledge, no
attachments, execution proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings are pending or
threatened against Seller or any general partner of Seller, nor are any of such
proceedings contemplated by Seller or any general partner of Seller.
12.2.6 Plans, Permits and Personal Property. To the best of
Seller's knowledge, all of Seller's right, title and interest in and to the
Plans, Permits and Personal Property have been fully paid for and will not be
subject to any liens, encumbrances or claims of any kind upon the Closing Date.
The transfer and assignment to Buyer of Seller's right, title and interest in
and to the Records and Plans, License and Permits, Personal Property and Service
Contracts not disapproved by Buyer does not require the consent of third
parties, other than the consent of the Limited Partners
17
contemplated by Section 3.3.4 above. Seller has not entered into any other
contracts for the sale of the Property, nor, to the best of Seller's knowledge,
do there exist any rights of first refusal or options to purchase the Property.
12.2.7 Contracts and Permits. To the best of Seller's
knowledge, there are no service or maintenance contracts, warranties,
guarantees, listing agreements, parking agreements or bonds (whether oral or
written) which affect or will affect or which are or will be obligations of the
Buyer or the Property, other than the Contracts delivered to Buyer by Seller
pursuant to this Agreement. To the best of Seller's knowledge, there are no
current defaults or breaches under the terms and provisions of any of the
Contracts. The Plans and Permits delivered to Buyer by Seller pursuant to this
Agreement are all such Permits and Plans which are in the possession of or
reasonably available to Seller.
12.2.8 Leases. To the best of Seller's knowledge, the Leases
have been duly authorized and executed by the landlord thereunder. To the best
of Seller's knowledge, there are no leases, subleases, occupancies or tenancies
in effect pertaining to the Property, except the Leases delivered to Buyer by
Seller pursuant to this Agreement, and Seller has no knowledge of any oral
agreements with anyone, including Tenants, with respect to the occupancy of the
Property, except as may be shown by the Rent Roll. To the best of Seller's
knowledge, the Rent Roll is true and complete in all respects. Neither Seller's
interest in the Leases nor any of the rentals due or to become due under the
Leases will be assigned, encumbered or subject to any liens as of the Closing
Date.
12.2.9 Leasing Commissions. Except as otherwise disclosed to
Buyer or as contemplated by Article 13 below, to the best of Seller's knowledge,
no leasing or brokerage fees or commissions of any nature whatsoever shall be or
become due or owing to any person, firm, corporation or entity whomsoever after
the Closing Date with respect to the Leases.
12.2.10 Survival. The foregoing representations and warranties
shall terminate as of the earlier to occur of (i) the termination of this
Agreement, or (ii) the date sixty (60) days following the Closing Date. Seller
shall indemnify and hold Buyer harmless and defend Buyer from any loss,
liability or expense incurred by Buyer or any claim made against Buyer by reason
of the breach of any of the foregoing representations or warranties.
12.3 Buyer's Representations and Warranties. Buyer represents and
warrants to Seller that, as of the Closing:
12.3.1 Authority. Buyer has full right and authority to enter
into this Agreement and consummate the transaction contemplated hereby.
12.3.2 Consents; Binding Obligations; Violations. All consents
and approvals which may be required in order for Buyer to enter into this
Agreement or to consummate the transaction contemplated hereby have been
obtained. This Agreement and all documents required hereby to be executed by
Buyer are and shall be valid, legally binding obligations of and enforceable
against Buyer in accordance with their terms. Neither the execution of this
Agreement, nor the consummation of the transaction contemplated hereby will be
in violation of any judgement, order, permit, writ, injunction, or decree of any
court, commission, bureau or agency to which Buyer is subject or by which Buyer
is bound, or constitute a breach or default under any agreement or other
18
obligation to which Buyer is a party or otherwise bound.
12.3.3 Survival. The foregoing representations and warranties
shall terminate as of the earlier to occur of (i) the termination of this
Agreement, or (ii) the date sixty (60) days following the Closing Date. Buyer
shall indemnify and hold Seller harmless and defend Seller from any loss,
liability or expense incurred by Seller or any claim made against Seller by
reason of the breach of any of the foregoing representations or warranties.
ARTICLE 13 - BROKER'S COMMISSION
--------------------------------
The parties hereto represent and warrant that they know of no broker's
commissions, agents' or finders' fees due in connection with this transaction,
except for the commission due to Grubb & Ellis Company ("Broker"), which shall
be the sole responsibility of Seller. Any sub-agency fees or commissions shall
be paid by Broker. The parties hereto hereby agree to hold harmless, indemnify
and defend each other from all expenses, liabilities and damages, including
without limitation, attorneys' fees, resulting from claims of brokers, agents or
finders, licensed or otherwise claiming through, under or by reason of the
conduct of the indemnifying party respecting the transaction contemplated
herein.
ARTICLE 14 - SELLER'S COVENANTS
-------------------------------
Seller covenants for the benefit of and agrees with Buyer that,
pending Closing, Seller shall:
14.1 Leases. Perform in a timely manner all of Seller's obligations
under the Leases, consistent with Seller's ordinary business practices in effect
as of the date hereof. Prior to the expiration of the Financing Contingency
Deadline, Seller shall not enter into, amend, alter, terminate or modify any
Lease without Buyer's prior written consent, which consent shall not be
unreasonably withheld or delayed. Subsequent to the expiration of the Financing
Contingency Deadline, Seller shall not enter into, amend, alter, terminate or
modify any Leases without Buyer's prior written consent, which consent may be
granted or withheld in Buyer's sole discretion. If Seller desires to enter into
a new Lease or to amend, alter, terminate or modify any existing lease, which
transaction requires the consent of Buyer thereto as provided in this Section
14.1 Seller shall deliver written notice to Buyer requesting Buyer's approval
thereof and providing therewith the most current draft of the proposed new Lease
or amendment or termination agreement. Seller also agrees to provide any other
information concerning any new Lease and proposed tenant which Buyer reasonably
requests. Buyer shall respond to Seller's request for approval of the subject
Lease transaction within two (2) business days after the delivery of Seller's
notice. Unless Buyer shall deliver written notice to Seller disapproving the
proposed Lease transaction within such two (2) day period, Buyer shall be deemed
to have approved such Lease transaction for all purposes of this Agreement and
Seller may proceed to consummate such Lease transaction in the form most
recently approved (or deemed approved) by Buyer.
14.2 Contracts. Perform in a timely manner all of Seller's
obligations under the Contract, consistent with Seller's ordinary business
practices in effect as of the date hereof. Subsequent to the expiration of the
Financing Contingency Deadline, Seller shall not enter into any new Contracts
except those which by their terms may be terminated upon no more than thirty
(30) days' written
19
notice (and to deliver to Buyer copies of any such new Contracts) without
Buyer's prior written consent, which consent may be granted or withheld in
Buyer's sole discretion. In addition, Seller shall not modify or terminate any
of the Contracts or otherwise consented to in writing by Buyer, which consent
may be granted or withheld in Buyer's sole discretion. Buyer's consent shall be
deemed to have been given by Buyer if Buyer does not notify Seller to the
contrary within two (2) business days after receipt of Seller's request for such
consent. Seller shall promptly notify Buyer of any such agreements entered into
by Seller prior to the expiration of the Financing Contingency Deadline.
14.3 Personal. Except in the ordinary course of Seller's business,
not remove any Personal Property except to make repairs and replacements.
14.4 Maintenance and Operation of Property. Maintain the Property
in its present condition, ordinary wear and tear excepted, and operate the
Property in substantially the same manner as the Property has previously been
operated by Seller.
14.5 Insurance. Maintain in full force and effect all insurance
policies covering the Property as of the date of this Agreement.
14.6 Notices. Promptly deliver to Buyer a copy of any notice
received by Seller of any lawsuits threatened or pending involving all or a
portion of the Property or concerning any building, zoning, fire or health code
violation.
14.7 Licenses and Permits. Maintain and/or renew all Licenses and
Permits in accordance with Seller's customary business practices.
14.8 Governmental Regulations. Comply with all laws in accordance
with Seller's customary business practices.
14.9 Operating Statements. Deliver to Buyer copies of any operating
statements prepared after the date of this Agreement.
14.10 Conveyance. Not, without the prior written consent of Buyer,
convey any interest in the Permits, Plans or any of the other Property, and
Seller will not subject the Property to any additional liens, encumbrances,
covenants, conditions, easements, rights of way or similar matters after the
date of this Agreement.
14.11 Alterations. Not make any alterations to the Property, except
as may be required pursuant to any Leases or otherwise necessary or appropriate
in the ordinary course of Seller's business and consistent with Seller's
customary business practices.
14.12 Rents. Not accept from any of the Tenants payment of rent
more than one month in advance or apply any security deposit to rent or any
other sum due from, or on account of any default by, any Tenant; and
14.13 Conditions. Promptly notify Buyer of any change in any
condition with respect to the Property or of any event or circumstance which
makes any representation or warranty of Seller under this Agreement untrue or
misleading in any material respect, or any covenant of Buyer
20
under this Agreement incapable or less likely of being performed, it being
understood that the Seller's obligation to provide notice to Buyer shall in no
way relieve Seller of any liability for a breach by Seller of any of its
representations, warranties or covenants under this Agreement.
ARTICLE 15 - CASUALTY
---------------------
In the event that the Property should be damaged by any casualty prior to
Closing, Seller shall promptly give Buyer written notice of such occurrence, and
as soon thereafter as practicable, shall provide Buyer with an estimate (the
"Estimate") made by an architect, engineer or contractor selected by Seller and
approved by Buyer (which approval shall not be unreasonably withhold or delayed)
of the cost required to repair such damage. If it is so estimated that the cost
to make any such repairs shown on the Estimate would exceed an amount equal to
ten percent (10%) of the Purchase Price, then either party, at its option, may
terminate the Agreement upon written notice to the other given within ten (10)
days after both parties' receipt of the Estimate, in which event Escrow Holder
shall return the Deposit to Buyer and both parties shall be relieved of any
further obligations hereunder. If neither party elects to so terminate this
Agreement, then this Agreement shall remain in full force and effect, and Seller
shall assign all insurance proceeds payable as a result of such casualty to
Buyer at the Closing, up to the estimated cost of repairs shown on the Estimate.
ARTICLE 16 - CONDEMNATION
-------------------------
16.1 Notice. If, prior to Closing, Seller learns of any actual or
threatened taking in condemnation or by eminent domain (or a sale in lieu
thereof) of all of any portion of the Property, Seller will notify Buyer
promptly thereof.
16.2 Termination. Other than with respect to an "Immaterial Taking" (as
defined below), any actual or threatened taking or condemnation for any public
or quasi-public purpose or use by any competent authority in appropriate
proceedings or by any right of eminent domain of all or any part of the Property
between the date of this Agreement and the Closing Date shall, at the option of
Buyer, cause a termination of this Agreement. The election to terminate
provided hereby must be exercised (or will be deemed to have been waived) by
notice to Seller and Title Company to that effect given within fifteen (15) days
following delivery of Seller's notice pursuant to Section 16.1 above. Upon
delivery of such termination notice, Escrow Holder shall return the Deposit to
Buyer and both parties shall be relieved of any future obligations hereunder.
If Buyer shall not elect to so terminate this Agreement, or in the event of an
Immaterial Taking, Seller shall be relieved of all obligations under this
Agreement with respect to the portion of the Property so taken or condemned, but
Buyer will be entitled to receive all proceeds of any such taking or
condemnation, and Seller agrees that it will not make any adjustment or
settlement of any such taking or condemnation proceeding without Buyer's consent
and will take at Closing all action necessary to assign its entire interest in
such award to Buyer or its designee. Any taking or condemnation for any public
or quasi-public purpose or use which does not (i) affect access, (ii) reduce
parking, (iii) materially affect compliance with zoning requirements, (iv)
permit any Major Tenant to terminate its Lease, or (v) take any part of the
Improvements shall be deemed an "Immaterial Taking."
21
ARTICLE 17 - ASSIGNMENT
-----------------------
Buyer may not assign this Agreement to any assignee other than one
controlled by, controlling or under common control with the named Buyer
hereunder including, without limitation, a limited liability company of which
Buyer is a manager or member (a "Permitted Assignee") without the written
consent of Seller, which consent may be granted or withheld in Seller's sole and
absolute discretion. Any assignee shall be deemed to have made any and all
representations and warranties made by Buyer hereunder, as if the assignee were
the original signatory hereto.
If Buyer requests Seller's written consent to any assignment other than to
a Permitted Assignee, Buyer shall (1) notify Seller in writing of the proposed
assignment; (2) provide Seller with a name and address of the proposed assignee;
(3) provide Seller with financial information including financial statements of
the proposed assignee; and (4) provide Seller with a copy of the proposed
assignment.
ARTICLE 18 - NOTICES
--------------------
Unless otherwise specifically provided herein, all notices, demands or
other communications given hereunder shall be in writing and any and all such
items shall be deemed to have been duly delivered upon personal delivery; or as
of the third business day after mailing by United States mail, certified, return
receipt requested, postage prepaid, addressed as follows; or as of 12:00 Noon on
the immediately following business day after deposit with Federal Express or a
similar overnight courier service, addressed as follows; or as of the third
business hour (a business hour being one of the hours from 8:00 a.m. to 5:00
p.m. on business days) after transmitting by telecopier to the telecopy number
set forth below:
If to Seller, to:
Boettcher Western Properties III Ltd.
c/o Everen Securities, Inc.
77 West Wacker Drive
Chicago, Illinois 60601-1694
Attention: Mr. Kelly J. Stradinger
Telecopy: (312) 574-8903
with a copy at the same time to:
Otten, Johnson, Robinson,
Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, Colorado 80202
Attention: Marguerite L. Sadler, Esq.
Telecopy: (303) 825-6525
22
If to Buyer, to:
M. Phillip Cardoza
1111 Civic Drive, Suite 365
Walnut Creek, California 94596
Telecopy: (510) 932-0557
If to Escrow Holder, to:
First American Title Insurance Company
1850 Mt. Diablo Boulevard, Suite 300
Walnut Creek, California 94596
Attention: Ms. Kat Van Steanhuyse
Telecopy: (510) 927-2168
or to such other address or to such other person as any party shall designate to
the others for such purpose in the manner hereinabove set forth.
ARTICLE 19 - TRANSFER OF TITLE AND POSSESSION
---------------------------------------------
19.1 Transfer of Possession. Possession of the Property shall be
transferred to Buyer on the Closing.
19.2 Delivery of Documents on Closing. On the Closing, in addition
to those other documents set forth herein, Seller shall deliver to Buyer the
following:
19.2.1 Leases and Contracts. An original counterpart (or if
originals are unavailable, a copy certified by Seller as true and correct) of
all written documents creating or evidencing the Leases and Contracts, including
all amendments or modifications thereto.
19.2.2 Plans, Warranties and Permits. The Plans and any written
Warranties or Permits.
ARTICLE 20 - GENERAL PROVISIONS
-------------------------------
20.1 Definitions. Unless the context otherwise indicates, whenever
used in this Agreement:
20.1.1 Cash. The word "Cash" means (i) United States currency
or (ii) an amount in United States currency credited by wire-transfer or by
other means providing immediately available funds.
20.1.2 Party. The word "party" or "parties" means Buyer and/or
Seller, as the context may require.
20.2 Gender; Number. The use herein of (i) the neuter gender
includes the
23
masculine and the feminine and (ii) the singular number includes the plural,
whenever the context so requires.
20.3 Captions. Captions in this Agreement are inserted for
convenience of reference only and do not define, describe or limit the scope or
the intent of this Agreement or any of the terms hereof.
20.4 Dates. If any date set forth in this Agreement for the
delivery of any document or the happening of any event (such as, for example,
the expiration of the Financing Contingency Deadline or the date of Closing)
should, under the terms hereof, fall on a weekend or holiday, then such date
shall be automatically extended to the next succeeding weekday that is not a
holiday.
20.5 Exhibits. All exhibits referred to herein and attached hereto
are a part hereof.
20.6 Entire Agreement. This Agreement constitutes the entire
agreement between the parties relating to the transactions contemplated hereby
and all prior or contemporaneous agreements, understandings, representations and
statements, oral or written, are merged herein.
20.7 Modification. No modification, waiver, amendment, discharge or
change of this Agreement shall be valid unless the same is in writing and signed
by the party against which the enforcement of such modification, waiver,
amendment, discharge or change is or may be sought.
20.8 Attorneys' Fees. Should any party hereto employ an attorney
for the purpose of enforcing or construing this Agreement, or any judgment based
on this Agreement, in any legal proceeding whatsoever, including insolvency,
bankruptcy, arbitration, declaratory relief or other litigation, including
appeals or rehearing, the prevailing party shall be entitled to receive from the
other party or parties thereto reimbursement for all attorneys' fees and all
costs, including but not limited to service of process, filing fees, court and
court reporter costs, investigative costs, expert witness fees, and the cost of
any bonds, whether taxable or not.
20.9 Governing Law. This Agreement and the respective rights and
obligations of the parties hereto shall be construed and enforced in accordance
with the laws of the State of California.
20.10 Time of Essence. Seller and Buyer hereby acknowledge and
agree that TIME IS STRICTLY OF THE ESSENCE with respect to each and every term,
condition, obligation and provision herein and the failure to TIMELY AND FULLY
perform or satisfy any of the terms, conditions, obligations or provisions of
this Agreement shall constitute a material default hereunder.
20.11 Survival of Obligations. All obligations referred to herein
to be performed at a time or times after the Closing, and all warranties and
representations contained herein, shall survive the Closing and the delivery of
Seller's Deed for a period of sixty (60) days following the Closing Date.
20.12 Severability. In the event any term, covenant, condition,
provision or agreement herein contained is held to be invalid, void or otherwise
unenforceable by any court of competent jurisdiction, the fact that such term,
covenant, condition, provision or agreement is invalid,
24
void or otherwise unenforceable shall in no way affect the validity or
enforceability of any other term, covenant, condition, provision or agreement
herein contained.
20.13 Successors and Assigns. Subject to any provisions concerning
assignment hereinabove set forth, all terms of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the parties hereto and
their respective legal representatives, successors and assigns.
20.14 Waivers. No waiver of any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension
of time for performance of any obligation or act shall be deemed an extension of
the time for performance of any other obligation or act.
20.15 Confidentiality. Seller shall make no public announcement or
disclosure of any information related to this Agreement to outside brokers or
third parties, before the expiration of the Financing Contingency Deadline,
without the prior written consent of Buyer, which consent shall not be
unreasonably withheld or delayed.
20.16 Required Actions of Buyer and Seller. Buyer and Seller agree
to execute all such instruments and documents and to take all actions pursuant
to the provisions hereof in order to consummate the purchase and sale herein
contemplated and shall use their commercially reasonable best efforts to
consummate the transaction contemplated by this Agreement in accordance with the
provisions hereof.
20.17 No Solicitation Following Financing Contingency Deadline.
Following the expiration of the Financing Contingency Deadline, and provided
that Buyer has not terminated this Agreement pursuant to Article 6 above,
neither Seller nor its agents or employees shall (i) initiate, encourage the
initiation by others of discussions or negotiations, or respond to solicitations
by third parties relating to a sale of the Property or any part thereof, or (ii)
enter into any agreement with any third party with respect to a sale of the
Property or any part thereof. Without limitation of the foregoing, prior to the
expiration of the Financing Contingency Deadline, Seller may continue to market
the Property or any part thereof for sale to third parties, may entertain back-
up offers to purchase the Property from third parties, and may enter into
purchase agreements with such third parties so long as such purchase agreements,
and Seller's agreement to sell the Property pursuant thereto, are expressly
subject to Buyer's rights hereunder.
20.18 Audit Right. For a period of not more than two (2) years
following the Closing, Seller agrees to provide to Buyer's designated
independent auditor access to the books and records of the Property and all
related information regarding the period for which Buyer is required to have the
Property audited under the regulations of the SEC. Buyer hereby releases Seller
from any claim, damage, loss or liability of Seller relating to the sufficiency
or accuracy of the information disclosed by Seller as a result of its compliance
with this Section; provided, however, that this release shall not operate to
waive any claims which Buyer may have against seller as a result of breach of
any representation or warranty contained in this Agreement.
20.19 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original; such
counterparts shall together constitute but one agreement.
25
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first set forth below.
SELLER:
BOETTCHER WESTERN PROPERTIES III
LTD., a Colorado limited partnership
By: Boettcher Properties, Ltd., its Managing
General Partner
By: BPL HOLDINGS, INC.,
its Managing General
Partner
By:/s/ Daniel D. Williams
- --------------------------- --------------------------
Date of Signature Daniel D. Williams,
Director
BUYER:
7/21/97 /s/ M. Phillip Cardoza
- --------------------------- -------------------------------
Date of Signature M. Phillip Cardoza
26
CONSENT OF ESCROW HOLDER
------------------------
The undersigned Escrow Holder hereby agrees to (i) accept the foregoing
Agreement, (ii) be Escrow Holder under said Agreement, and (iii) be bound by
said Agreement in the performance of its duties as Escrow Holder.
FIRST AMERICAN TITLE INSURANCE
COMPANY
_______________ By:_____________________________
Date of Signature Name:___________________________
Title:__________________________
27
Exhibit A
---------
LEGAL DESCRIPTION
A portion of Lot six (6) and seven (7) of Brookside Tract, according to the
Official Map thereof, filed for record February 4, 1907, in Vol. 3 of Maps and
Plats, page 54, San Joaquin County Records, being more particularly described as
follows:
Parcels 1 and 2, as shown on that certain Parcel Map filed for record March 13,
1980, in Book 8 of Parcel Maps, page 180, San Joaquin County Records.
TOGETHER WITH easements for ingress and egress, reciprocal parking, etc., as set
forth in the Declaration of Restrictions, Grant of Easements and Common Area
Maintenance Agreement, recorded October 18, 1978 in Book 4461 of Official
Records, page 531, San Joaquin County Records and re-recorded in Book 4474 of
Official Records, page 928, San Joaquin County Records.
EXCEPTING THEREFROM all oil, oil rights, minerals, mineral rights, natural gas
rights and other hydrocarbons, without, however, the surface right of entry to a
depth of 500 feet.
A-1
Exhibit B
---------
PERSONAL PROPERTY INVENTORY
NONE
B-1
Exhibit C
---------
RENT ROLL
C-1
Exhibit D
---------
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Agreement") is made and
entered into this ____ day of _________, 1997, between BOETTCHER WESTERN
PROPERTIES III LTD., a Colorado limited partnership ("Assignor"), and
___________________________ ("Assignee").
For Ten Dollars and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Assignor, Assignor hereby
assigns, transfers and conveys to Assignee, all right, title and interest of
Assignor as landlord in and to those leases, tenancies and other occupancy
arrangements (the "Leases") described on the rent roll attached as Schedule 1
hereto and made a part hereof (the "Rent Roll").
Assignor shall indemnify and hold Assignee harmless from all obligations on
the part of the landlord arising under the Leases prior to the date hereof and
from all liabilities, costs and expenses (including, without limitation,
reasonable attorney's fees) incurred in connection therewith.
Assignee hereby expressly assumes all liabilities and agrees to perform all
obligations of Assignor under the Leases to be performed from and after the date
hereof and shall indemnify and hold Assignor harmless from all obligations on
the part of the landlord arising under the Leases from and after the date hereof
and from all liabilities, costs and expenses (including, without limitation,
reasonable attorney's fees) incurred in connection therewith.
D-1
Assignor represents to Assignee that to the best of Seller's knowledge, the
Rent Roll contains a complete and accurate schedule of all refundable security
and/or damage deposits that have been paid by tenants under the Leases (the
"Deposits"). Assignee acknowledges that Assignor has transferred the Deposits
to Assignee.
This Assignment shall bind and inure to Assignor and Assignee and their
respective successors and assigns.
ASSIGNOR:
BOETTCHER WESTERN PROPERTIES III
LTD., a Colorado limited partnership
By: Boettcher Properties, Ltd., its Managing
General Partner
By: BPL HOLDINGS, INC.,
its Managing General
Partner
By:______________________
Daniel D. Williams,
Director
ASSIGNEE:
__________________________________
D-2
Schedule 1
----------
Rent Roll
D-3
Exhibit E
---------
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Agreement") is made and
entered into as of ___________________, 1997, by and between BOETTCHER WESTERN
PROPERTIES III LTD., a Colorado limited partnership ("Assignor"), and
____________________ ("Assignee").
Recitals
--------
This Agreement is made with respect to the following facts:
A. Assignor has this date conveyed to Assignee certain real property,
buildings, improvements and personal property located in Stockton California,
and commonly known as Venetian Square Shopping Center (the "Property").
B. In connection with the conveyance of the Property to Assignee, Assignor
desires to assign all of Assignee's right, title and interest in and to those
contracts, agreements and commitments for the repair, maintenance, service and
supply of the Property that are listed on Schedule 1 attached hereto and made a
part hereof (the "Contracts").
C. Assignee desires to assume Assignor's obligations under the Contracts.
Agreement
---------
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Assignor hereby assigns to Assignee all of its right, title and
interest in and to the Contracts and Assignor agrees to indemnify and hold
Assignee harmless from all obligations on the part of the owner of the Property
arising under the Contracts prior to the date hereof and from all liabilities,
costs and expenses (including, without limitation, reasonable attorney's fees)
incurred in connection therewith.
2. Assignee hereby expressly assumes and agrees to perform all the
obligations of Assignor under the Contracts to be performed from and after the
date hereof and Assignee agrees to indemnify and hold Assignor harmless from all
obligations on the part of the owner of the Property arising under the Contracts
from and after the date hereof and from all liabilities, costs and expenses
(including, without limitation, reasonable attorney's fees) incurred in
connection therewith.
3. This Assignment shall bind and inure to Assignor and Assignee and their
respective successors and assigns.
Executed as of the date set forth above.
E-1
ASSIGNOR:
BOETTCHER WESTERN PROPERTIES III
LTD., a Colorado limited partnership
By: Boettcher Properties, Ltd., its Managing
General Partner
By: BPL HOLDINGS, INC.,
its Managing General
Partner
By:______________________
Daniel D. Williams,
Director
ASSIGNEE:
__________________________________
E-2
Schedule 1
----------
Contracts
E-3
Exhibit F
---------
GRANT DEED
RECORDING REQUESTED BY:
______________________________,
a ____________________________
WHEN RECORDED MAIL TO:
______________________________
______________________________
______________________________
______________________________
MAIL TAX STATEMENTS TO:
- ------------------------------
- ------------------------------
- ------------------------------
- ------------------------------
(Space above this line is for recorder's use)
GRANT DEED
The undersigned grantor declares:
Documentary Transfer Tax not shown pursuant
to Section 11932 of the Revenue and
Taxation Code, as amended
County of ____________
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
_________________________________, a ______________, hereby GRANTS to
______________________________, a ______________, that certain real property in
the County of _________, State of ____________, which is more particularly
described on Schedule "1" ("Property") which is attached hereto, subject to all
matters of title, of record or apparent, including, without limitation, those
[description of CC&R's and easements].
F-1
IN WITNESS WHEREOF, the Grantor has caused this Grant Deed to be executed
as of the ___ day of ___________, 1997.
BOETTCHER WESTERN PROPERTIES III
LTD., a Colorado limited partnership
By: Boettcher Properties, Ltd.,
its Managing General Partner
By: BPL Holdings, Inc.,
its Managing General Partner
By:_______________________
Daniel D. Williams,
Director
F-2
STATE OF __________________ )
) ss.
COUNTY OF _________________ )
On ________________________, before me, ________________________, a Notary
Public in and for said state, personally appeared _______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument, the person, or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________
Notary Public in and for said State
STATE OF _________________ )
) ss.
COUNTY OF ________________ )
On ________________________, before me, ________________________, a Notary
Public in and for said state, personally appeared _______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument, the person, or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________
Notary Public in and for said State
F-3
SCHEDULE "1"
LEGAL DESCRIPTION OF PROPERTY
A portion of Lot six (6) and seven (7) of Brookside Tract, according to the
Official Map thereof, filed for record February 4, 1907, in Vol. 3 of Maps and
Plats, page 54, San Joaquin County Records, being more particularly described as
follows:
Parcels 1 and 2, as shown on that certain Parcel Map filed for record March 13,
1980, in Book 8 of Parcel Maps, page 180, San Joaquin County Records.
TOGETHER WITH easements for ingress and egress, reciprocal parking, etc., as set
forth in the Declaration of Restrictions, Grant of Easements and Common Area
Maintenance Agreement, recorded October 18, 1978 in Book 4461 of Official
Records, page 531, San Joaquin County Records and re-recorded in Book 4474 of
Official Records, page 928, San Joaquin County Records.
EXCEPTING THEREFROM all oil, oil rights, minerals, mineral rights, natural gas
rights and other hydrocarbons, without, however, the surface right of entry to a
depth of 500 feet.
F-4
Exhibit G
---------
BILL OF SALE AND ASSIGNMENT
This Bill of Sale and Assignment, dated as of __________________, 1997, is
between BOETTCHER WESTERN PROPERTIES III LTD., a Colorado limited partnership
("Seller"), and __________________________ ("Buyer").
For Ten Dollars and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Seller, Seller hereby sells,
conveys, transfers, assigns, and sets over unto Buyer all right, title and
interest of Seller in and to the following:
(a) Those items of equipment and tangible personal property (the "Personal
Property") owned by Seller and located on, or used in connection with, the real
property described in Schedule 1 attached hereto and made a part hereof (the
"Real Property");
(b) Any site plans, surveys, soil and substratum studies, architectural
drawings, plans and specifications, engineering, electrical and mechanical plans
and studies, floor plans, landscape plans, appraisals, feasibility studies, and
other plans and studies, if any and in Seller's possession that relate to the
Real Property or the Personal Property, to the extent that they are assignable,
without representation or warranty of any kind whatsoever as to the
assignability of such items or any matter contained therein.
(c) Any unexpired warranties, guaranties and bonds, including, without
limitation, contractors' and manufacturers' warranties or guaranties, belonging
to Assignor in connection with the Real Property, all buildings thereon and
their construction, improvement or equipment or any personal property located
thereon or used in connection therewith, but only to the extent such warranties,
guaranties and bonds can be lawfully assigned;
(d) Any governmental permits, licenses, certificates and authorizations,
including, without limitation, certificates of occupancy, held by Assignor and
related to the construction, use or operation of the Real Property, all
buildings thereon and their construction, use, operation, improvement or
equipment or any personal property located thereon and used in connection
therewith, but only to the extent such permits, licenses, certificates and
authorizations can be lawfully assigned; and
(e) The right to use of the name "Venetian Square Shopping Center" in
connection with the ownership and operation of the Real Property.
G-1
Executed as of the date set forth above.
BOETTCHER WESTERN PROPERTIES III
LTD., a Colorado limited partnership
By: Boettcher Properties, Ltd., its Managing
General Partner
By: BPL HOLDINGS, INC.,
its Managing General
Partner
By:______________________
Daniel D. Williams,
Director
G-2
Schedule 1
----------
Real Property
A portion of Lot six (6) and seven (7) of Brookside Tract, according to the
Official Map thereof, filed for record February 4, 1907, in Vol. 3 of Maps and
Plats, page 54, San Joaquin County Records, being more particularly described as
follows:
Parcels 1 and 2, as shown on that certain Parcel Map filed for record March 13,
1980, in Book 8 of Parcel Maps, page 180, San Joaquin County Records.
TOGETHER WITH easements for ingress and egress, reciprocal parking, etc., as set
forth in the Declaration of Restrictions, Grant of Easements and Common Area
Maintenance Agreement, recorded October 18, 1978 in Book 4461 of Official
Records, page 531, San Joaquin County Records and re-recorded in Book 4474 of
Official Records, page 928, San Joaquin County Records.
EXCEPTING THEREFROM all oil, oil rights, minerals, mineral rights, natural gas
rights and other hydrocarbons, without, however, the surface right of entry to a
depth of 500 feet.
G-3
Exhibit H
---------
TENANT NOTIFICATION LETTER
______________________, 199__
Re: Your lease (the "Lease") of space in the shopping center known as "Venetian
Square" located in Stockton, California (the "Center")
Ladies and Gentlemen:
You are hereby notified that ___________________ (the "Owner"), as owner of the
Center and the current owner of the landlord's interest under the Lease, has
sold the Center to Cardoza Properties, Inc. ("Buyer") as of the date of this
Tenant Notice Letter set forth above, and in connection with such sale the Owner
has assigned and transferred its interest in the Lease and any and all security
deposits thereunder or relating thereto to Buyer, and Buyer has assumed and
agreed to perform all of the landlord's obligations under the Lease (including
any obligations set forth in the Lease to repay or account for any security
deposits thereunder) from and after such date. Accordingly, (i) all of your
obligations under the Lease from and after the date of this Tenant Notice Letter
(including your obligations to pay rent and fulfill your insurance requirements)
shall be performable to and for the benefit of Buyer, its successors and assigns
and (ii) all of the obligations of the landlord under the Lease (including any
obligations to repay or account for any security deposits thereunder) from and
after the date of this Tenant Notice Letter shall be the binding obligations of
Buyer and its successors and assigns.
The address of Buyer for all purposes under the Lease (including the payments of
rentals, the recoupment of and security deposits and the giving of any notices
provided for in the Lease) is:
Cardoza Properties, Inc.
111 Civic Drive, Suite 365
Walnut Creek, California 94596
Attention: Mr. M. Phillip Cardoza
Very truly yours,
CARDOZA PROPERTIES, INC.
By:________________________________
Name:______________________________
Title:_____________________________
H-1
Exhibit I
---------
AFFIDAVIT
FIRPTA CERTIFICATE
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
To inform ___________________________, a _____________________
("Transferee"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended ("Code") will not be required upon the transfer
of certain real property to the Transferee by Boettcher Western Properties III
Ltd., a Colorado limited partnership ("Transferor"), the undersigned hereby
certifies the following on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Code and the
Income Tax Regulations promulgated thereunder);
2. The Transferor's U.S. employer identification/social security number
is _______________________________________________; and
3. The Transferor's office/personal residence address is 77 West Wacker
Drive, Chicago, Illinois 60601.
The Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
The Transferor understands that the Transferee is relying on this
Certification in determining whether withholding is required upon said transfer.
The Transferor hereby agrees to indemnify, defend and hold the Transferee
harmless from and against any and all obligations, liabilities, claims, losses,
actions, causes of action, rights, demands, damages, costs and expenses of every
kind, nature or character whatsoever (including, without limitation, actual
attorneys' fees and costs) incurred by the Transferee as a result of: (i) the
Transferor's failure to pay U.S. Federal income tax which the Transferor is
required to pay under applicable U.S. law; or (ii) any false or misleading
statement contained herein.
Under penalty of perjury I declare that I have examined this Certification
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of the
Transferor.
I-1
Date: ____________, 1997
BOETTCHER WESTERN PROPERTIES III LTD.,
a Colorado limited partnership
By: Boettcher Properties, Ltd.,
its Managing General Partner
By: BPL HOLDINGS, INC.,
its Managing General
Partner
By:______________________
Daniel D. Williams,
Director
I-2
Exhibit J
---------
SELLER'S WIRING INSTRUCTIONS
CitiBank of New York
ABA # 021 000 089
For the account of: Everen Clearing Corp.
Account No. 3889-7669
Reference: Boettcher Western Properties III Ltd.
#_____________
further credit account #15658103
J-1
TABLE OF CONTENTS
-----------------
ARTICLE 1 PURCHASE PRICE..................................................3
ARTICLE 2 OPENING OF ESCROW...............................................3
ARTICLE 3 CONDITIONS TO THE PARTIES' OBLIGATIONS..........................3
3.1 Escrow Holder................................................3
3.2 Conditions to Buyer's Obligation to Purchase.................3
3.2.1 Performance by Seller................................3
3.2.2 Satisfaction or Waiver of Contingencies..............3
3.2.3 Accuracy of Representations..........................4
3.2.4 Title Policy.........................................4
3.3 Conditions to Seller's Obligation to Sell....................4
3.3.1 Performance by Buyer.................................4
3.3.2 Accuracy of Representations..........................4
3.3.3 Payment of Purchase Price............................4
3.3.4 Consent of Limited Partners..........................4
ARTICLE 4 BUYER'S DELIVERIES..............................................5
4.1 Initial Deposit..............................................5
4.2 Additional Deposit...........................................5
4.3 Application of Deposit.......................................5
4.4 Additional Deliveries........................................5
4.4.1 Balance of Purchase Price............................6
4.4.2 Assignment and Assumption of Leases..................6
4.4.3 Assignment and Assumption of Contracts...............6
4.4.4 Cash Prorations.....................................6
4.4.5 Settlement Statement.................................6
4.5 Further Documents............................................6
4.6 Failure to Deliver...........................................6
ARTICLE 5 SELLER'S CLOSING DELIVERIES.....................................6
5.1 Delivery of Instruments and Documents........................6
5.1.1 Deed.................................................6
5.1.2 Bill of Sale.........................................7
5.1.3 Assignment and Assumption of Leases..................7
5.1.4 Assignment and Assumption of Contracts...............7
5.1.5 Tenant Notification..................................7
5.1.6 Leases/Contracts.....................................7
5.1.7 Section 1445 Affidavit...............................7
5.1.8 Settlement Statement.................................7
5.2 Further Documents............................................7
5.3 Failure to Deliver...........................................7
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ARTICLE 6 REVIEW OF DOCUMENTS
AND CERTAIN CONTINGENCIES.................................................. 7
6.1 Waiver of Certain Inspections.................................. 7
6.2 Document Review................................................ 8
6.2.1 Delivery of Appraisal and Environmental Report....... 8
6.2.2 Financing Contingency Deadline....................... 8
6.2.3 Review of Title Report............................... 8
6.3 Contingencies.................................................. 9
6.3.1 Financing Contingency................................ 9
6.3.2 Lease Contingency.................................... 9
6.4 Termination.................................................... 10
6.5 "As Is" Purchase............................................... 10
6.5.1 Opportunity to Inspect............................... 10
6.5.2 No Implied Representations........................... 11
6.5.3 Waiver and Release................................... 12
6.5.4 Survival............................................. 12
ARTICLE 7 THE CLOSING..................................................... 12
7.1 Date and Manner of Closing..................................... 12
7.1.1 Funds and Documents.................................. 12
7.1.2 Title Insurance...................................... 12
7.2 Delay in Closing; Authority to Close........................... 12
7.3 Termination of Agreement; Liability of Escrow Holder........... 13
ARTICLE 8 PRORATIONS, FEES AND COSTS...................................... 13
8.1 Prorations..................................................... 13
8.1.1 Property Taxes....................................... 13
8.1.2 Income............................................... 14
8.1.3 Deposits; Tenant Concessions......................... 14
8.1.4 Reimbursable Expenses................................ 14
8.1.5 Leasing Commissions and Monetary Concessions......... 15
8.1.6 Other Expenses of Property........................... 15
8.1.7 Miscellaneous........................................ 15
8.2 Date of Proration.............................................. 15
8.3 Buyer's Closing Costs.......................................... 15
8.4 Seller's Closing Costs......................................... 16
ARTICLE 9 DISTRIBUTION OF FUNDS AND DOCUMENTS............................. 16
9.1 Form of Disbursements.......................................... 16
9.2 Liens and Encumbrances......................................... 16
9.3 Recorded Documents............................................. 16
9.4 Nonrecorded Documents.......................................... 16
9.5 Cash Disbursements............................................. 16
9.6 Copies of Documents............................................ 16
ARTICLE 10 RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION................. 17
10.1 Return of Seller's Documents................................... 17
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10.2 Return of Buyer's Documents................................... 17
10.3 No Effect on Rights of Parties................................ 17
10.4 Payment of Termination Fee.................................... 17
ARTICLE 11 DEFAULT......................................................... 17
11.1 Seller's Remedies............................................. 17
11.2 Buyer's Remedies.............................................. 18
ARTICLE 12 REPRESENTATIONS AND WARRANTIES.................................. 18
12.1 Escrow Holder................................................. 18
12.2 Seller's Representations and Warranties....................... 18
12.2.1 Authority............................................ 18
12.2.2 Violations........................................... 18
12.2.3 Special Assessments.................................. 18
12.2.4 Adverse Claims....................................... 19
12.2.5 Insolvency........................................... 19
12.2.6 Plans, Permits and Personal Property................. 19
12.2.7 Contracts and Permits................................ 19
12.2.8 Leases............................................... 19
12.2.9 Leasing Commissions.................................. 20
12.2.10 Survival............................................. 20
12.3 Buyer's Representations and Warranties........................ 20
12.3.1 Authority............................................ 20
12.3.2 Consents; Binding Obligations; Violations............ 20
12.3.3 Survival............................................. 20
ARTICLE 13 BROKER'S COMMISSION............................................. 21
ARTICLE 14 SELLER'S COVENANTS.............................................. 21
14.1 Leases........................................................ 21
14.2 Contracts..................................................... 21
14.3 Personal Property............................................. 22
14.4 Maintenance and Operation of Property......................... 22
14.5 Insurance..................................................... 22
14.6 Notices....................................................... 22
14.7 Licenses and Permits.......................................... 22
14.8 Governmental Regulations...................................... 22
14.9 Operating Statements.......................................... 22
14.10 Conveyance.................................................... 22
14.11 Alterations................................................... 22
14.12 Rents......................................................... 23
14.13 Conditions.................................................... 23
ARTICLE 15 CASUALTY........................................................ 23
ARTICLE 16 CONDEMNATION.................................................... 23
16.1 Notice........................................................ 23
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16.2 Termination................................................... 23
ARTICLE 17 ASSIGNMENT...................................................... 24
ARTICLE 18 NOTICES......................................................... 24
ARTICLE 19 TRANSFER OF TITLE AND POSSESSION................................ 25
19.1 Transfer of Possession........................................ 25
19.2 Delivery of Documents on Closing.............................. 25
19.2.1 Leases and Contracts................................. 25
19.2.2 Plans, Warranties and Permits........................ 26
ARTICLE 20 GENERAL PROVISIONS.............................................. 26
20.1 Definitions................................................... 26
20.1.1 Cash................................................. 26
20.1.2 Party................................................ 26
20.2 Gender; Number................................................ 26
20.3 Captions...................................................... 26
20.4 Dates......................................................... 26
20.5 Exhibits...................................................... 26
20.6 Entire Agreement.............................................. 26
20.7 Modification.................................................. 26
20.8 Attorneys' Fees............................................... 26
20.9 Governing Law................................................. 27
20.10 Time of Essence............................................... 27
20.11 Survival of Obligations....................................... 27
20.12 Severability.................................................. 27
20.13 Successors and Assigns........................................ 27
20.14 Waivers....................................................... 27
20.15 Confidentiality............................................... 27
20.16 Required Actions of Buyer and Seller.......................... 28
20.17 No Solicitation Following Financing Contingency Deadline...... 28
20.18 Audit Right................................................... 28
20.19 Counterparts.................................................. 28
EXHIBITS
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A Legal Description
B Personal Property Inventory
C Rent Roll
D Assignment and Assumption of Leases
E Assignment and Assumption of Contracts
F Deed
G Bill of Sale
H Notification Letters
I Affidavit
J Wiring Instructions
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