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EXHIBIT 10.5
STANDARD OFFER, AGREEMENT AND ESCROW
INSTRUCTIONS FOR PURCHASE OF REAL ESTATE
(Non-Residential)
American Industrial Real Estate Association
December 30, 1997
1. BUYER.
1.1 Eltron International, Inc., a California corporation, (the "Buyer")
hereby offers to purchase the real property, hereinafter described, from the
owner thereof (the "Seller") (collectively, the "Parties" or individually, a
"Party"), through an escrow (the "Escrow") to close on see Addendum ("Addendum")
(the "Expected Closing Date") to be held by First American Title Company (Pam
Dolin) (the "Escrow Holder") whose address is 101 S. California Street, Ventura,
California 93001 , Phone No. (805) 648-9960 , Facsimile No. (805) 648-9969 upon
the terms and conditions set forth in this agreement (the "Agreement"). Buyer
shall have the right to assign Buyer's rights hereunder, but any such assignment
shall not relieve Buyer of Buyer's obligations herein unless the Seller
expressly releases Buyer.
1.2 The term "Date of Agreement" as used herein shall be the date when
by execution and delivery (as defined in paragraph 20.2) of this document or a
subsequent counter-offer thereto, Buyer and Seller have reached agreement in
writing whereby Seller agrees to sell, and Buyer agrees to purchase, the
Property upon terms accepted by both Parties.
2. PROPERTY
2.1 The real property (the "Property") that is the subject of this offer
consists of (insert a brief physical description) an industrial building of
approximately 142,500 square feet on approximately nine (9) acres of land is
located in the City of Camarillo , County of Ventura, State of California, is
commonly known by the street address of 1001 Flynn Road and is legally described
as: (legal description to be provided by Title Company in Escrow and subject to
Buyer's approval) See Addendum.
2.2 If the legal description of the Property is not complete or is
inaccurate, this Agreement shall not be invalid and the legal description shall
be completed or corrected to meet the requirements of First American Title
Company (the "Title Company"), which Title company shall issue the title policy
hereinafter described.
2.3 The Property includes, at no additional cost to Buyer, the permanent
improvements thereon, including those items which the law of the state in which
the Property is located provides is part of the Property, as well as the
following items, if any, owned by Seller and presently located in the Property:
electrical distribution systems (power panels, buss ducting, conduits,
disconnects, lighting fixtures), telephone distribution systems (lines, jacks
and connections), space heaters, air conditioning equipment, air lines, fire
sprinklers systems, security systems, carpets, window coverings, and See
addendum (collectively, the "Improvements").
2.4 If the Property is located in the State of California, the Broker(s)
is/are required under the Alquist-Priolo Special Studies Zone Act, to disclose
to a prospective purchaser of real property whether the property being purchased
is located within the delineated special studies zone (a zone that encompasses a
potentially or recently active trace of an earthquake fault this is deemed by
the State Geologist to be sufficiently active and well defined enough to
constitute a potential hazard to structures from surface faulting or fault
(creep). If the Property is located within such a special studies zone, its
development may require a geologic report from a state registered geologist. In
accordance with such law, the Broker(s) hereby inform(s) Buyer that the
Property:
__ (a) is not within such a special studies zone.
__ (b) is within such a special studies zone.
2.5 If (1) the Property is located in the State of California, (2) the
Improvements were constructed prior to 1975, and (3) the Improvements include
structures with (i) pre-cast (e.g., tilt-up) concrete or reinforced masonry
walls together with wood frame floors or roofs or (ii) reinforced masonry walls,
California law requires that Seller or Seller's Broker provide Buyer with a copy
of The Commercial Property Owner's Guide to Earthquake Safety (the "Booklet")
published by the California Seismic Safety Commission, Seller and Seller's
Broker hereby inform Buyer that the Property:
__ (a) meets the foregoing requirements, and Seller and Seller's
Broker are required to provide Buyer with a copy of the Booklet.
Seller of Seller's Broker shall, within five (5) business days of
the Date of Agreement, deliver to Buyer a copy of the Booklet and
a completed "Commercial Property Earthquake Report, Buyer shall
deliver a duly
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countersigned copy of the same to Escrow Holder, with a copy to
Seller and Seller's Broker. Escrow Holder is hereby instructed
that the Escrow shall not close unless and until Escrow Holder
has received the Disclosure Report duly signed by both Seller and
Buyer.
__ (b) does not meet the foregoing requirements requiring the
delivery of the Booklet.
3. PURCHASE PRICE
3.1 The purchase price (the "Purchase Price") to be paid by Buyer to
Seller for the Property shall be $ See Addendum, payable as follows:
(a) Cash down payment, including the Deposit as defined in
paragraph 4.3 (or if an all cash transaction, the Purchase
Price): $ ______________
(b) Amount of "New Loan" as defined in paragraph 5.1, if any: $ ______________
(c) Buyer shall take title to the Property subject to the
following existing deed(s) of trust ("Existing Deed(s) of
Trust") securing the existing promissory note(s) ("Existing
Note(s)"):
(i) An Existing Note (the "First Note") with an unpaid
principal balance of the Closing of approximately: $ ______________
Said existing note is payable at $___________ per month,
including interest at the rate of ____% per annum until paid
(and/or the entire unpaid balance is due on
_________________________).
(ii) An Existing Note (the "Second Note") with an unpaid
principal balance as of the Closing of approximately: $ ______________
Said existing note is payable at $___________ per
month, including interest at the rate of ____% per annum
until paid (and/or the entire unpaid balance is due on
_________________________).
(d) Buyer shall give Seller a deed of trust (the "Purchase Money
Deed of Trust") on the Property, to secure the promissory
note of Buyer to Seller described in Paragraph 6 (the
"Purchase Money Note") in the amount of: $ ______________
Total Purchase Price: $ See Addendum
3.2 If an Existing Deed of Trust permits the beneficiary thereof to
require payment of a transfer fee as a condition to the transfer fee as a
condition to the transfer of the Property subject to such Existing Deed of
Trust, Buyer agrees to pay transfer fees and costs of up to one and on-half
percent (1-1/2%) of the unpaid principal balance of the applicable Existing
Note.
4. DEPOSITS
4.1 Buyer hereby delivers a check in the sum of $100,000.00, payable to
Escrow Holder, to be (check applicable box), __forthwith deposited in the
payee's trust account, [X] held uncashed until the Date of Agreement. When
cashed, the check shall be deposited into the payee's trust account to be
applied toward the Purchase Price of the Property at the Closing, as defined in
paragraph 8.3. Should Buyer and Seller not enter into an agreement for purchase
and sale, Buyer's check or funds shall, upon request by Buyer, be promptly
returned to Buyer.
4.2 Within five (5) business days after the Day of Agreement, Buyer
shall deposit with Escrow holder the additional sum of $____________, to be
applied to the Purchase Price at the Closing.
4.3 The funds deposited with Escrow Holder by or on behalf of Buyer
under paragraphs 4.1 and 4.2, above (collectively the "Deposit"), shall be
deposited by Escrow Holder in such State or Federally chartered bank as Buyer
may select and in such interest-bearing account or accounts as Escrow Holder or
Broker(s) deem appropriate and consistent with the timing requirements of this
transaction. The interest therefrom shall accrue to the benefit of Buyer, who
hereby acknowledges that there may be penalties or
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interest forfeitures if the applicable instrument is redeemed prior to its
specified maturity. Buyer's Federal Tax Identification Number is to be provided
in escrow.
5. FINANCING CONTINGENCY (Strike if not applicable) Not applicable.
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5.1 This offer is contingent upon Buyer obtaining from an insurance
company, bank, savings and loan association or other financial institution or
from any correspondent or agent thereof, a commitment to lend to Buyer a sum not
less than $_______________, at a fixed interest rate not to exceed ____% per
annum, payable in equal monthly installments, including interest, amortized over
a period of not less than ___ years and all due in not less than ___ years, and
in either case, with loan fees to not exceed ___% of the amount of the new loan
(the "New Loan"). The New Loan shall be secured by a first deed of trust upon
the Property and shall be upon the following additional terms and conditions:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
and upon such terms and conditions as are usually required by such lender.
5.2 Buyer hereby agrees to diligently pursue obtaining the New Loan. If
Buyer shall fail to notify its Broker, Escrow Holder and Seller, in writing
within ______ days following the Date of Agreement, that the New Loan has not
been obtained, it shall be conclusively presumed that Buyer has either obtained
said new Loan or has waived this New Loan contingency.
5.3 If, after due diligence, Buyer shall notify its Broker, Escrow
Holder and Seller, in writing, within the time specified in paragraph 5.2
hereof, that Buyer has not obtained said New Loan, this Agreement shall be
terminated, and Buyer shall be entitled to the prompt return of Buyer's Deposit
and any other funds deposited by or for Buyer with Escrow Holder or Seller, plus
any interest earned thereon, less only Escrow Holder and Title Company
cancellation fees and costs, which Buyer shall pay.
6. PURCHASE MONEY NOTE. (Strike if applicable) Not applicable.
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6.1 The Purchase Money Note shall provide for interest on unpaid
principal at the rate of ____% per annum, with principal and interest to be paid
as follows:
___________________________________________________________________
_______________________________________________________________________________
The Purchase Money Note and Purchase Money Deed of Trust shall be on the current
forms commonly used by Escrow Holder, and be junior and subordinate only to the
Existing Note(s) and/or New Loan expressly called for by this Agreement.
6.2 The Purchase Money Note and the Purchase Money Deed of Trust shall
contain provisions regarding the following:
(a) Prepayment. Principal may be prepaid in whole or in part at any time
without penalty, at the option of the Buyer.
(b) Late Charge. A late charge of 6% shall be payable with respect to
any payment of principal, interest, or other charges, not made within ten (10)
days after it is due.
(c) Due On Sale. In the event the Buyer sells or transfers title to the
Property or any portion thereof, then the Seller may, at Sellers option, require
the entire unpaid balance of the Purchase Money Note to be then paid in full.
7. REAL ESTATE BROKERS.
7.1 The following real estate broker(s) (collectively, the "Brokers") and
brokerage relationships exist in this transaction and are consented to by the
parties (check applicable boxes):
_X_ DAUM Comm'l R.E. Svcs. represents Seller exclusively ("SELLER'S BROKER")
_X_ Delphi Business Properties represents Buyer exclusively ("BUYER'S BROKER");
or 11 represents both Seller and Buyer ("DUAL AGENCY"). (Also see paragraph 26.)
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(the "Broker(s)"), all such named Broker(s) being the procuring cause(s) of this
Agreement. See paragraph 26 for Disclosures Regarding the Nature of a Real
Estate Agency Relationship. Buyer shall use the services of Buyers Broker
exclusively in connection with any and all negotiations and offers with respect
to the property described in paragraph 2.1 for a period of one year from the
date above.
7.2 Buyer and Seller each represent and warrant to the other that he/she/it
has had no dealings with any person, firm, broker or finder in connection with
the negotiation of this Agreement and/or the consummation of the purchase and
sale contemplated herein, other than the Broker(s) named in paragraph 7.1, and
no broker or other person, firm or entity, other than said Broker(s) is/are
entitled to any commission or finder's fee in connection with this transaction
as the result of any dealings or acts of such Party. Buyer and Seller do each
hereby agree to indemnify, defend, protect and hold the other harmless from and
against any costs, expenses or liability for compensation, commission or charges
which may be claimed by any broker, finder or other similar party, other than
said named Broker(s) by reason of any dealings or act of the indemnifying Party.
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8. ESCROW AND CLOSING. See Addendum
8.1 Upon acceptance hereof by Seller, this Agreement, including any
counter-offers incorporated herein by the Parties, shall constitute not only the
agreement of purchase and sale between Buyer and Seller, but also instructions
to Escrow Holder for the consummation of the Agreement through the Escrow.
Escrow Holder shall not prepare and further escrow instructions restating or
amending the Agreement unless specifically so instructed by the Parties of a
Broker herein.
8.2 Escrow Holder is hereby authorized and instructed to conduct the Escrow
in accordance with this Agreement, applicable law, custom and practice of the
community in which Escrow Holder is located, including and reporting
requirements of the Internal Revenue Code. In the event of a conflict between
the law of the state where the Property is located and the law of the state
where the Escrow Holder is located, the law of the state where the Property is
located shall prevail.
8.3 Subject to satisfaction of the contingencies herein described, Escrow
Holder shall close this escrow (the "Closing") by recording the grant deed and
other documents required to be recorded and by disbursing the funds and
documents in accordance with this Agreement.
8.4 If this transaction is terminated for non-satisfaction and non-waiver of
a Buyer's Contingency, as defined in paragraph 9.4, then neither of the Parties
shall thereafter have any liability to the other under this Agreement, except to
the extent of the breach of any affirmative covenant or warranty in this
Agreement that may have been involved. In the event of such termination, Buyer
shall be promptly refunded all funds deposited by or on behalf of Buyer with a
Broker, Escrow Holder or Seller, less only Title Company and Escrow Holder
cancellation fees and costs, all of which shall be buyers obligation.
8.5 The Closing shall occur on the Expected Closing Date, or as soon
thereafter as the Escrow is in condition for Closing; provided, however, that if
the Closing does not occur by the Expected Closing Date and the Expected Closing
Date is not extended by mutual instructions of the Parties, a Party hereto not
then in default under this Agreement may notify the other Party, Escrow Holder,
and Broker(s), in writing that, unless the Closing occurs within five (5)
business days following said notice, the Escrow and this Agreement shall be
deemed terminated without further notice or instructions.
8.6 Should the Closing not occur during said five (5) day period, this
Agreement and Escrow shall be deemed terminated and Escrow Holder shall
forthwith return all monies and documents, less only Escrow Holders reasonable
fees and expenses, to the Party who deposited them. Such Party shall indemnify
and hold Escrow Holder harmless in connection with such return. However, no
refunds or documents shall be returned to a party claimed by written notice to
Escrow Holder to be in default under this Agreement.
8.7 Except as otherwise provided herein, the termination of Escrow and this
Agreement and/or the return of deposited funds or documents shall not relieve or
release either Buyer or Seller from any obligation to pay Escrow Holders fees
and costs or constitute a waiver, release or discharge of any breach or default
that has occurred in the performance of the obligations, agreements, covenants
or warranties contained herein.
8.8 If this Agreement terminates for any reason other than Seller's breach or
default, then at Sellers request, and as a condition to the return of Buyers
deposit, Buyer shall within five (5) days after written request deliver to
Seller, at no charge, copies of all surveys, engineering studies, soil reports,
maps, master plans, feasibility studies and other similar items prepared by or
for Buyer that pertain to the Property.
9. CONTINGENCIES TO CLOSING. See Addendum
9.1 The Closing of this transaction is contingent upon the satisfaction or
waiver of the following contingencies:
(a) Disclosure. Buyers receipt and written approval, within ten (10) days
after delivery to Buyer, of a completed Property Information Sheet (the
"Property Information Sheet"), concerning the Property, duly executed by or on
behalf of Seller in the current form or equivalent to that published by the
American Industrial Real Estate Association (the "A.I.R."). Seller shall provide
Buyer with the Property Information Sheet within ten (10) days following the
Date of Agreement. See also paragraph 2.5 for possible additional disclosure and
contingency regarding a "Commercial Property Earthquake Weakness Disclosure
Report."
(b) Physical Inspection. Buyers written approval, within ten (10) days
following the later of the Date of Agreement or receipt by Buyer of the Property
Information Sheet, of an inspection by Buyer at Buyers expense, of the physical
aspects of the Property.
(c) Hazardous Substance Conditions Report. Buyers written approval, within
thirty (30) days following the later of the Date of Agreement or receipt by
Buyer of the Property Information Sheet, of a Hazardous Substance Conditions
Report concerning the Property and relevant adjoining properties. Such report
will be obtained at Buyers direction and expense. A "Hazardous Substance" for
purposes of this Agreement is defined as any substance whose nature and/or
quantity of existence, use, manufacture, disposal or effect, render it subject
to Federal, state or local regulation, investigation, remediation or removal as
potentially injurious to public health or welfare. A "Hazardous Substance
Condition" for purposes of this Agreement is defined as the existence on, under
or relevantly adjacent to the
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Property of a Hazardous Substance that would require remediation and/or removal
under applicable Federal, state or local law.
(d) Soil Inspection. Buyer's written approval, within thirty (30) days after
the later of the Date of Agreement or receipt by Buyer of the Property
Information Sheet, of a soil test report concerning the Property. Said report
shall be obtained at Buyer's direction and expense. Seller shall promptly
provide to Buyer copies of any existing soils reports that Seller may have.
(e) Governmental Approvals. Buyers receipt, within fifteen (15) days of the
Date of Agreement, of all approvals and permits from governmental agencies or
departments which have or may have jurisdiction over the Property which Buyer
deems necessary or desirable in connection with its intended use of the
Property, including, but not limited to, permits and approvals required with
respect to zoning, planning, building and safety, fire, police, handicapped
access, transportation and environmental matters. Buyers failure to deliver to
Escrow Holder and Seller written notice terminating this Agreement prior to the
expiration of said fifteen (15) day period as a result of Buyers failure to
obtain such approvals and permits shall be conclusively deemed to be Buyers
waiver of this condition to Buyers obligations under this Agreement.
(f) Condition of Title. Buyers written approval of a current preliminary
title report concerning the Property (the "PTR") issued by the Title Company, as
well as all documents (the "Underlying Documents") referred to in the PTR, and
the issuance by the Title Company of the title policy described in 10.1.
Seller shall cause the PTR and all Underlying Documents to be delivered to Buyer
promptly after the Date of Agreement. Buyers approval is to be given within ten
(10) days after receipt of said PTR and legible copies of all Underlying
Documents. The disapproval of Buyer of any monetary encumbrance, which by the
terms of this Agreement is not to remain against the Property after the Closing,
shall not be considered a failure of this condition, as Seller shall have the
obligation, at Sellers expense, to satisfy and remove such disapproved monetary
encumbrance at or before the Closing.
(g) Survey. Buyers written approval, within thirty (30) days after receipt
of the PTR and Underlying Documents, of an ALTA title supplement based upon a
survey prepared to American Land Title Association (the "ALTA") standards for an
owners policy by a licensed surveyor, showing the legal description and boundary
lines of the Property, any easements of record, and any improvements, poles,
structures and things located within ten (10) feet either side of the Property
boundary lines. The survey shall be prepared at Buyers direction and expense. If
Buyer has obtained a survey and approved the ALTA title supplement, Buyer may
elect within the period allowed for Buyers approval of a survey to have an ALTA
extended coverage owners form of title policy, in which event Buyer shall pay
any additional premium attributable thereto.
(h) Existing Leases and Tenancy Statements. Buyers written approval, within
ten (10) days after receipt of legible copies of all leases, subleases or rental
arrangements (collectively the "Existing Leases") affecting the Property, and a
statement (the "Tenancy Statement") in the latest form or equivalent to that
published by the A.I.R., executed by Seller and each tenant and subtenant of the
Property. Seller shall use its best efforts to provide Buyer with said Existing
Leases and Tenancy Statements promptly after the Date of Agreement.
(i) Other Agreements. Buyer's written approval, within ten (10) days after
receipt, of a copy of any other agreements ("Other Agreements") known to Seller
that will affect the Property beyond the Closing. Seller shall cause said copies
to be delivered to Buyer promptly after the Date of Agreement.
(j) Financing. If paragraph 5 hereof dealing with a financing contingency
has not been stricken, the satisfaction or waiver of such New Loan contingency.
(k) Existing Notes. [If paragraph 3.1 (c) has not been stricken, Buyers
written approval, within ten (10) days after receipt, of conformed and legible
copies of the Existing Notes, Existing Deeds of Trust and related agreements
(collectively the "Loan Documents") to which the Property will remain subject
after the Closing, including a beneficiary statement (the "Beneficiary
Statement") executed by the holders of the Existing Notes confirming: (1) the
amount of the unpaid principal balance, the current interest rate, and the date
to which interest is paid, and (2) the nature and amount of any impounds held by
the beneficiary in connection with said loan. Seller shall use its best efforts
to provide Buyer with said Loan Documents and Beneficiary Statement promptly
after the Date of Agreement. Buyers obligation to close is further conditioned
upon Buyers being able to purchase the Property without acceleration or change
in the terms of any Existing Notes or charges to Buyer except as otherwise
provided in this Agreement or approved by Buyer, provided, however, Buyer shall
pay the transfer fee referred to in paragraph 3.2 hereof.]
(l) Destruction, Damage or Loss. There shall not have occurred prior to the
Closing, a destruction of, or damage or loss to, the Property or any portion
thereof, from any cause whatsoever, which would cost more than $10,000.00 to
repair or cure. If the cost of repair or cure is $10,000.00 or less, Seller
shall repair or cure the loss prior to the Closing. Buyer shall have the option,
within ten (10) days after receipt of written notice of a loss costing more than
$10,000.00 to repair or cure, to either terminate this transaction or to
purchase the Property notwithstanding such loss, but without deduction or offset
against the
LANGUAGE INDICATED AS BEING SHOWN BY STRIKE OUT IN THE TYPESET DOCUMENT IS
ENCLOSED IN BRACKETS "[" AND "]" IN THE ELECTRONIC FORMAT.
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Purchase Price. If the cost to repair or cure is more than $10,000.00, and Buyer
does not elect to terminate this transaction, Buyer shall be entitled to any
insurance proceeds applicable to such loss. Unless otherwise notified in writing
by either Party or Broker, Escrow Holder shall assume no destruction, damage or
loss costing more than $10,000.00 to repair or cure has occurred prior to
Closing.
(m) Material Change. No Material Change, as hereinafter defined, shall have
occurred with respect to the Property that has not been approved in writing by
Buyer. For purposes of this Agreement, a "Material Change" shall be a change in
the status of the use, occupancy, tenants, or condition of the Property as
reasonably expected by the Buyer, that occurs after the date of this offer and
prior to the Closing. Buyer shall have ten (10) days following receipt of
written notice from any source of any such Material Change within which to
approve or disapprove same. Unless otherwise notified in writing by either Party
or Broker, Escrow Holder shall assume that no Material Change has occurred prior
to the Closing.
(n) Seller Performance. The delivery of all documents and the due
performance by Seller of each and every undertaking and agreement to be
performed by Seller under this Agreement.
(o) Breach of Warranty. That each representation and warranty of Seller
herein be true and correct as of the Closing. Escrow Holder shall assume that
this condition has been satisfied unless notified to the contrary in writing by
Buyer or Broker(s) prior to the Closing.
(p) Broker's Fee. [Payment at the Closing of such Brokers Fee as is
specified in this Agreement or later written instructions to Escrow Holder
executed by Seller and Broker(s). It is agreed by Buyer, Seller and Escrow
Holder that Broker(s) is/are a third party beneficiary of this Agreement insofar
as the Broker's fee is concerned, and that no change shall be made by Buyer,
Seller or Escrow Holder with respect to the time of payment, amount of payment,
or the conditions to payment of the Brokers Fee specified in this Agreement,
without the written consent of Broker(s).]
9.2 All of the contingencies specified in sub-paragraphs (a) through (o)
of paragraph 9.1 are for the benefit of, and may be waived by, Buyer, and may be
elsewhere herein referred to as "Buyer Contingencies." See addendum
9.3 If Buyer shall fail, within the applicable time specified, to approve
or disapprove in writing to Escrow Holder, Seller and the other Party's Broker,
any item, matter or document subject to Buyer's approval under the terms of this
Agreement, it shall be conclusively presumed that Buyer has approved such item,
matter or document. Buyers conditional approval shall constitute a disapproval,
unless provision is made by the Seller within the time specified therefor by the
Buyer in the conditional approval or by this Agreement, whichever is later, for
the satisfaction of the condition imposed by the Buyer.
Item"), Seller shall have the right within ten (10) days following the
expiration of the time period applicable to such Buyer Contingency or receipt of
notice of Buyers disapproval, as the case may be, to elect to cure such
Disapproved Item prior to the Expected Closing Date ("Sellers Election").
Sellers failure to give to Buyer within said ten (10) day period, written
notice of Sellers commitment to cure such Disapproved Item on or before the
Expected Closing Date shall be conclusively presumed to be Sellers Election not
to cure such Disapproved Item. If Seller elects, either by written notice or
failure to give written notice, not to cure a Disapproved Item, Buyer shall have
the election, within ten (10) days after Sellers Election to either accept title
to the Property subject to that Disapproved Item, or to terminate this
transaction. Buyers failure to elect termination by written notice to Seller
within said ten (10) day period shall constitute Buyers election to accept title
to the Property subject to that Disapproved Item without deduction or offset.
Unless expressly provided otherwise herein, Sellers right to cure shall not
apply to [Hazardous Substance Conditions referenced in paragraph 9.1 (c) or] to
the Financing Contingency set forth in paragraph 5. Unless the parties mutually
instruct otherwise, if the time periods for the satisfaction of contingencies or
for Sellers and Buyers said Elections would expire on a date after the Expected
Closing Date, the Expected Closing Date shall be deemed extended to coincide
with the expiration of three (3) business days following the expiration of: (a)
the applicable contingency period(s), (b) the period within which the Seller may
elect to cure the Disapproved Item, or (c) if Seller elects not to cure, the
period within which Buyer may elect to terminate his transaction, whichever is
later.
9.5. Buyer understands and agrees that until such time as all Buyers
Contingencies have been satisfied or waived, Seller and/or its agents may
solicit, entertain and/or accept back-up offers to purchase the subject Property
in the event the transaction covered by this Agreement is not consummated.
9.6. [As defined in subparagraph 9.1 (c),] Buyer and Seller acknowledge
that extensive local, state and Federal legislation establish broad liability
upon owners and/or users of real property for the investigation and remediation
of a Hazardous Substance Condition. The determination of the existence of a
Hazardous Substance Condition and the evaluation of the impact of such a
condition are highly technical and beyond the expertise of Broker(s). Buyer and
Seller acknowledge that they have been advised by Broker(s) to consult their own
technical and legal experts with respect to the possible Hazardous Substance
Condition aspects of this Property or adjoining properties, and Buyer and Seller
are not relying upon any investigation by or statement of Broker(s) with respect
thereto. [Buyer and Seller hereby assume]
LANGUAGE INDICATED AS BEING SHOWN BY STRIKE OUT IN THE TYPESET DOCUMENT IS
ENCLOSED IN BRACKETS "[" AND "]" IN THE ELECTRONIC FORMAT.
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[all responsibility for the impact of such Hazardous Substance Conditions upon
their respective interests herein.]
10. DOCUMENTS REQUIRED AT CLOSING.
10.1 Escrow Holder shall cause to be issued to Buyer a standard coverage
(or ALTA extended, if so elected under paragraph 9.1 (0) owners form policy of
title insurance effective as of the Closing, issued by the Title Company in the
full amount of the Purchase Price, insuring title to the Property vested in
Buyer, subject only to the exceptions approved by Buyer. [In the event there is
a Purchase Money Deed of Trust in this transaction, the policy of title
insurance shall be a joint protection policy insuring both Buyer and Seller.]
"IMPORTANT: IN A PURCHASE OR EXCHANGE OF REAL PROPERTY, IT MAY BE ADVISABLE TO
OBTAIN TITLE INSURANCE IN CONNECTION WITH THE CLOSE OF ESCROW SINCE THERE MAY BE
PRIOR RECORDED LIENS AND ENCUMBRANCES WHICH AFFECT YOUR INTEREST IN THE PROPERTY
BEING ACQUIRED. A NEW POLICY OF TITLE INSURANCE SHOULD BE OBTAINED IN ORDER TO
ENSURE YOUR INTEREST IN THE PROPERTY THAT YOU ARE ACQUIRING."
10.2 Seller shall deliver or cause to be delivered to Escrow Holder in
time for delivery to Buyer at the Closing, an original ink signed:
(a) Grant deed (or equivalent), duly executed and in recordable
form, conveying fee title to the Property to Buyer.
(b) If paragraph 3.1 (c) has not been stricken, the Beneficiary
Statements concerning Existing Note(s).
(c) If applicable, the Existing Leases and Other Agreements together
with duly executed assignments thereof by Seller and Buyer. The assignment of
Existing Leases shall be on the most recent Assignment and Assumption of Lessors
Interest in Lease form published by the A.I.R. or its equivalent.
(d) If applicable, the Tenancy Statements executed by Seller and the
Tenant(s) of the Property.
(e) An affidavit executed by Seller to the effect that Seller is not a
"foreign person" within the meaning of Internal Revenue Code Section 1445 or
successor statutes. If Seller does not provide such affidavit in form reasonably
satisfactory to Buyer at least three (3) business days prior to the Closing,
Escrow Holder shall at the Closing deduct from Seller's proceeds and remit to
Internal Revenue Service such sum as is required by applicable Federal law with
respect to purchases from foreign sellers. See Addendum
10.3 Buyer shall deliver or cause to be delivered to Seller through
escrow:
(a) The cash portion of the Purchase Price and such additional sums as
are required of Buyer under this Agreement for prorations, expenses and
adjustments. The balance of the cash portion of the Purchase Price, including
Buyers escrow charges and other cash charges, if any, shall be deposited by
Buyer with Escrow Holder, by cashiers check drawn upon a local major banking
institution, federal funds wire transfer, or any other method acceptable to
Escrow Holder as immediately collectable funds, no later than I 1:00 o'clock
A.M. on the business day prior to the Expected Closing Date.
[(b) If a Purchase Money Note and Purchase Money Deed of Trust are called
for by this Agreement, the duly executed originals of those documents, the
Purchase Money Deed of Trust being in recordable form, together with evidence of
fire insurance on the improvements in the amount of the full replacement cost
naming Seller as a mortgage loss payee, and a real estate tax service contract
(at Buyers expense), assuring Seller of notice of the status of payment of real
property taxes during the life of the Purchase Money Note.]
(c) The assumption portion of the Assignment and Assumption of Lessors
Interest in Lease form specified in paragraph 10.2(c) above, duly executed by
Buyer with respect to the obligations of the Lessor accruing after the Closing
as to each Existing Lease.
(d) Assumptions duly executed by Buyer of the obligations of Seller
that accrue after Closing under any other Agreements.
(e) [If applicable, a written assumption duly executed by Buyer of the
loan documents with respect to Existing Notes.]
11. PRORATIONS, EXPENSES AND ADJUSTMENTS. See Addendum
11.1 Taxes. Real property taxes payable by the owner of the Property
shall be prorated through Escrow as of the date of the Closing, based upon the
latest tax bill available. The Parties agree to prorate as of the Closing any
taxes assessed against the Property by supplemental bill levied by reason of
events occurring prior to the Closing. Payment shall be made promptly in cash
upon receipt of a copy of any such supplemental bill of the amount necessary to
accomplish such proration. [Seller shall pay and discharge in full at or before
the Closing the unpaid balance of any special assessment bonds.]
11.2 Insurance. If Buyer elects to take an assignment of the existing
casualty and/or liability insurance that is maintained by Seller, the current
premium therefor shall be prorated through Escrow as of the date of Closing.
LANGUAGE INDICATED AS BEING SHOWN BY STRIKE OUT IN THE TYPESET DOCUMENT IS
ENCLOSED IN BRACKETS "[" AND "]" IN THE ELECTRONIC FORMAT.
8
11.3 Rentals, Interest and Expenses. Collected rentals, interest on
Existing Notes, utilities, and operating expenses shall be prorated as of the
date of Closing. The Parties agree to promptly adjust between themselves outside
of Escrow any rents received after the Closing.
11.4 Security Deposit. Security Deposits held by Seller shall be given
to Buyer by a credit to the cash required of Buyer at the Closing.
11.5 Post Closing Matters. Any item to be prorated that is not
determined or determinable at the Closing shall be promptly adjusted by the
Parties by appropriate cash payment outside of the Escrow when the amount due is
determined.
[11.6 Variations in Existing Note Balances, In the event that Buyer is
taking title to the Property subject to an Existing Deed of Trust(s), and in the
event that a Beneficiary Statement as to the applicable Existing Note(s)
discloses that the unpaid principal balance of such Existing Note(s) at the
Closing will be more or less than the amount set forth in paragraph 3.1 (c)
hereof (the "Existing Note Variation"), then the Purchase Money Note(s) shall be
reduced or increased by an amount equal to such Existing Note Variation. If
there is to be no Purchase Money Note, the cash required at the Closing per
Paragraph 3.1 (a) shall be reduced or increased by the amount of such Existing
Note Variation.
11.7 Variations in New Loan Balance. In the event Buyer is obtaining a
New Loan and in the event that the amount of the New Loan actually obtained is
greater than the amount set forth in Paragraph 5.1 hereof, the Purchase Money
Note, if one is called for in this transaction, shall be reduced by the excess
of the actual face amount of the New Loan over such amount as designated in
Paragraph 5.1 hereof.]
11.8 Escrow Costs and Fees. Buyer and Seller shall each pay one-half of
the Escrow Holders charges and Sellers shall pay the usual recording fees and
any required documentary transfer taxes. Seller shall pay the premium for a
standard coverage owners or joint protection policy of title insurance.
12. REPRESENTATION AND WARRANTIES OF SELLER AND DISCLAIMER.
12.1 Sellers warranties and representations shall survive the Closing
and delivery of the deed, and, unless otherwise noted herein, are true, material
and relied upon by Buyer and Broker(s) in all respects, both as of the Date of
Agreement, and as of the date of Closing. Seller hereby makes the following
warranties and representations to Buyer and Broker(s):
(a) Authority of Seller. Seller is the owner of the Property and/or has the
full right, power and authority to sell, convey and transfer the Property to
Buyer as provided herein, and to perform Sellers obligations hereunder.
(b) Maintenance During Escrow and Equipment Condition At Closing. EXCEPT as
otherwise provided in paragraph 9.1 (1) hereof dealing with destruction, damage
or loss, Seller shall maintain the Property until the Closing in its present
condition, ordinary wear and tear excepted. The heating, ventilating, air
conditioning, plumbing, elevators, loading doors and electrical systems shall be
in good operating order and condition at the time of Closing.
(c) Hazardous SubstancesIStorage Tanks. Seller has no knowledge, except as
otherwise disclosed to Buyer in writing, of the existence or prior existence on
the Property of any Hazardous Substance [(as defined in paragraph 9.1 (c)),] nor
of the existence or prior existence of any above or below ground storage tank or
tanks.
(d) Compliance. Seller has no knowledge of any aspect or condition of the
Property which violates applicable laws, rules, regulations, codes or covenants,
conditions or restrictions, or of improvements or alterations made to the
Property without a permit where one was required, or of any unfulfilled order or
directive of any applicable governmental agency or casualty insurance company
that any work of investigation, remediation, repair, maintenance or improvement
is to be performed on the Property.
(e) Changes in Agreements. Prior to the Closing, Seller will not violate or
modify, orally or in writing, any Existing Lease or Other Agreement, or create
any new leases or other agreements affecting the Property, without Buyers
written approval, which approval will not be unreasonably withheld.
(f) Possessory Rights. Seller has no knowledge that anyone will, at the
Closing, have any right to possession of the Property, except as disclosed by
this Agreement or otherwise in writing to Buyer.
(g) Mechanics' Liens. There are no unsatisfied mechanic's or material man's
lien rights concerning the Property.
(h) Actions, Suits or Proceedings. Seller has no knowledge of any actions,
suits or proceedings pending or threatened before any commission, board, bureau,
agency, instrumentality, arbitrator(s) court or tribunal that would affect the
Property or the right to occupy or utilize same.
(i) Notice of Changes. Seller will promptly notify Buyer and Broker(s) in
writing of any Material Change (as defined in paragraph 9.1 (m)) affecting the
Property that becomes known to Seller prior to the Closing.
(j) No Tenant Bankruptcy Proceedings. Seller has no notice or knowledge that
any tenant of the Property is the subject of a bankruptcy or insolvency
proceeding.
LANGUAGE INDICATED AS BEING SHOWN BY STRIKE OUT IN THE TYPESET DOCUMENT IS
ENCLOSED IN BRACKETS "[" AND "]" IN THE ELECTRONIC FORMAT.
9
(k) No Seller Bankruptcy Proceedings. Seller is not the subject of a
bankruptcy, insolvency or probate proceeding.
12.2 Buyer hereby acknowledges that, except as otherwise stated in this
Agreement, Buyer is purchasing the Property in its existing condition and will,
by the time called for herein, make or have waived all inspections of the
Property Buyer believes are necessary to protect its own interest in, and its
contemplated use of, the Property. The Parties acknowledge that, except as
otherwise stated in this Agreement, no representations, inducements, promises,
agreements, assurances, oral or written, concerning the Property, or any aspect
of the Occupational Safety and Health Act, hazardous substance laws, or any
other act, ordinance or law, have been made by either Party or Broker, or relied
upon by either Party hereto.
13. POSSESSION.
13.1 Possession of the Property shall be given to Buyer at the Closing
subject to the rights of tenants under Existing Leases.
14. BUYER'S ENTRY.
14.1 At any time during the Escrow period, Buyer, and its agents and
representatives, shall have the right at reasonable times and subject to rights
of tenants under Existing Leases, to enter upon the Property for the purpose of
making inspections and tests specified in this Agreement. Following any such
entry or work, unless otherwise directed in writing by Seller, Buyer shall
return the Property to the condition it was in prior to such entry or work,
including the recompaction or removal of any disrupted soil or material as
Seller may reasonably direct. All such inspections and tests and any other work
conducted or materials furnished with respect to the Property by or for Buyer
shall be paid for by Buyer as and when due and Buyer shall indemnify, defend,
protect and hold harmless Seller and the Property of and from any and all
claims, liabilities, demands, losses, costs, expenses (including reasonable
attorney's fees), damages or recoveries, including those for injury to person or
property, arising out of or relating to any such work or materials or the acts
or omissions of Buyer, its agents or employees in connection therewith. See
Addendum.
16. FURTHER DOCUMENTS AND ASSURANCES.
16.1 Buyer and Seller shall each, diligently and in good faith,
undertake all actions and procedures reasonably required to place the Escrow in
condition for Closing as and when required by this Agreement. Buyer and Seller
agree to provide all further information, and to execute and deliver all further
documents and instruments, reasonably required by Escrow Holder or the Title
Company.
16. ATTORNEYS' FEES.
16.1 In the event of any litigation or arbitration between the Buyer,
Seller, and Broker(s), or any of them, concerning this transaction, the
prevailing party shall be entitled to reasonable attorney's fees and costs. The
attorneys' fee award shall not be computed in accordance with any court fee
schedule, but shall be such as to fully reimburse all attorneys' fees reasonably
incurred in good faith.
17. PRIOR AGREEMENTS/AMENDMENTS.
17.1 The contract in effect as of the Date of Agreement supersedes any
and all prior agreements between Seller and Buyer regarding the Property.
17.2 Amendments to this Agreement are effective only if made in writing
and executed by Buyer and Seller.
18. BROKER'S RIGHTS.
18.1 If this sale shall not be consummated due to the default of either
the Buyer or Seller, the defaulting party shall be liable to and shall pay to
Broker(s) the commission that Broker(s) would have received had the sale been
consummated. This obligation of Buyer, if Buyer is the defaulting party, is in
addition to any obligation with respect to liquidated damages.
18.2 Upon the Closing, Broker(s) is/are authorized to publicize the
facts of this transaction.
19. NOTICES.
19.1 Whenever any Party hereto, Escrow Holder or Broker(s) herein shall
desire to give or serve any notice, demand, request, approval or other
communication, each such communication shall be in writing and shall be
delivered personally, by messenger or by mail, postage prepaid, addressed as set
forth adjacent to that party's or Broker's signature on this Agreement or by
telecopy with receipt confirmed by telephone. Service of any such communication
shall be deemed made on the date of actual receipt at such address.
19.2 Any Party or Broker hereto may from time to time, by notice in
writing served upon the other Party as aforesaid, designate a different address
to which, or a different person or additional persons to whom, all
communications are thereafter to be made.
10
20. DURATION OF OFFER.
20.1 If this offer shall not be accepted by Buyer on or before 5:00
P.M. according to the time standard applicable to the city of Los Angeles
California on the date of January 12, 1998, Monday , it shall be deemed
automatically revoked.
20.2 The acceptance of this offer, or of any subsequent counter-offer
hereto, that creates an agreement between the Parties as described in paragraph
1.2, shall be deemed made upon delivery to the other Party or either Broker
herein of a duly executed writing unconditionally accepting the last outstanding
offer or counter-offer.
21. LIQUIDATED DAMAGES. (This Liquidated Damages paragraph is applicable only
if initialed by both parties).
21.1 THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY
DIFFICULT TO FIX, PRIOR TO SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH
WOULD BE SUFFERED BY SELLER IF BUYER FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT. THEREFORE, IF, AFTER THE SATISFACTION OR WAIVER OF ALL CONTINGENCIES
PROVIDED FOR THE BUYER'S BENEFIT,BUYER BREACHES THIS AGREEMENT, SELLER SHALL BE
ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF $100,000 PLUS INTEREST, IF ANY,
ACCRUED THEREON. UPON PAYMENT OF SAID SUM TO SELLER, BUYER SHALL BE RELEASED
FROM ANY FURTHER LIABILITY TO SELLER, AND ANY ESCROW CANCELLATION FEES AND TITLE
COMPANY CHARGES SHALL BE PAID BY SELLER.
22. ARBITRATION OF DISPUTES. (This Arbitration of Disputes paragraph is
applicable only if initialed by both parties and is subject to paragraph
23, below.)
22.1 ANY CONTROVERSY AS TO WHETHER SELLER IS ENTITLED TO THE LIQUIDATED
DAMAGES AND/OR BUYER IS ENTITLED TO THE RETURN OF DEPOSIT MONEY, SHALL BE
DETERMINED BY BINDING ARBITRATION BY, AND UNDER THE COMMERCIAL RULES (the
"COMMERCIAL RULES") OF, THE AMERICAN ARBITRATION ASSOCIATION. HEARINGS ON SUCH
ARBITRATION SHALL BE HELD IN THE COUNTY WHERE THE PROPERTY IS LOCATED. ANY SUCH
CONTROVERSY SHALL BE ARBITRATED BY THREE (3) ARBITRATORS WHO SHALL BE IMPARTIAL
REAL ESTATE BROKERS WITH AT LEAST FIVE (5) FULL TIME YEARS OF EXPERIENCE IN THE
AREA WHERE THE PROPERTY IS LOCATED, IN THE TYPE OF REAL ESTATE THAT IS THE
SUBJECT OF THIS AGREEMENT AND SHALL BE APPOINTED UNDER THE COMMERCIAL RULES. THE
ARBITRATORS SHALL HEAR AND DETERMINE SAID CONTROVERSY IN ACCORDANCE WITH
APPLICABLE LAW AND THE INTENTION OF THE PARTIES AS EXPRESSED IN THIS AGREEMENT,
AS THE SAME MAY HAVE BEEN DULY MODIFIED IN WRITING BY THE PARTIES PRIOR TO THE
ARBITRATION, UPON THE EVIDENCE PRODUCED AT AN ARBITRATION HEARING SCHEDULED AT
THE REQUEST OF EITHER PARTY. SUCH PRE-ARBITRATION DISCOVERY SHALL BE PERMITTED
AS IS AUTHORIZED UNDER THE COMMERCIAL RULES OR STATE LAW APPLICABLE TO
ARBITRATION PROCEEDINGS, THE AWARD SHALL BE EXECUTED BY AT LEAST TWO (2) OF THE
THREE (3) ARBITRATORS, BE RENDERED WITHIN THIRTY (30) DAYS AFTER THE CONCLUSION
OF THE HEARING, AND MAY INCLUDE ATTORNEYS' FEES AND COSTS TO THE PREVAILING
PARTY PER PARAGRAPH 16 HEREOF. JUDGMENT MAY BE ENTERED ON THE AWARD IN ANY COURT
OF COMPETENT JURISDICTION NOTWITHSTANDING THE FAILURE OF A PARTY DULY NOTIFIED
OF THE ARBITRATION HEARING TO APPEAR THEREAT.
22.2 BUYER'S RESORT TO OR PARTICIPATION IN SUCH ARBITRATION PROCEEDINGS
SHALL NOT BAR SUIT IN A COURT OF COMPETENT JURISDICTION BY THE BUYER FOR DAMAGES
AND/OR SPECIFIC PERFORMANCE UNLESS AND UNTIL THE ARBITRATION RESULTS IN AN AWARD
TO THE SELLER OF LIQUIDATION DAMAGES, IN WHICH EVENT SUCH AWARD SHALL ACT AS A
BAR AGAINST ANY ACTION BY BUYER FOR DAMAGES AND/OR SPECIFIC PERFORMANCE.
22.3 NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU
ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY
INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION
TO NEUTRAL ARBITRATION.
11
23. APPLICABLE LAW.
23.1 This Agreement shall be governed by, and paragraph 22.3 amended to
refer to, the laws of the state in which the Property is located.
24. TIME OF ESSENCE.
24.1 Time is of the essence of this Agreement.
25. COUNTERPARTS.
25.1 This Agreement may be executed by Buyer and Seller in counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument. Escrow Holder, after verifying that the
counterparts are identical except for the signatures, is authorized and
instructed to combine the signed signature pages on one of the counterparts,
which shall then constitute the Agreement.
26. DISCLOSURES REGARDING THE NATURE OF A REAL ESTATE AGENCY RELATIONSHIP.
26.1 The Parties and Broker(s) agree that their relationship(s) shall be
governed by the principles set forth in California Civil Code, Section 2375, as
summarized in the following paragraph 26.2.
26.2 When entering into a discussion with a real estate agent regarding
a real estate transaction, a Buyer or Seller should from the outset understand
what type of agency relationship or representation it has with the agent or
agents in the transaction. Buyer and Seller acknowledge being advised by the
Broker(s) in this transaction as follows:
(a) Seller's Agent A Sellers agent under a listing agreement with the Seller
acts as the agent for the Seller only. A Sellers agent or subagent has the
following affirmative obligations: (1) To the Seller. A fiduciary duty of utmost
care, integrity, honesty, and loyalty in dealings with the Seller. (2) To the
Buyer and the Seller., a. Diligent exercise of reasonable skill and care in
performance of the agent's duties. b. A duty of honest and fair dealing and good
faith. c. A duty to disclose all facts known to the agent materially affecting
the value or desirability of the property that are not known to, or within the
diligent attention and observation of, the Parties. An agent is not obligated to
reveal to either Party any confidential information obtained from the other
Party which does not involve the affirmative duties set forth above.
(b) Buyer's Agent A selling agent can, with a Buyers consent, agree to act as
agent for the Buyer only. In these situations, the agent is not the Sellers
agent, even if by agreement the agent may receive compensation for services
rendered, either in full or in part from the Seller. An agent acting only for a
Buyer has the following affirmative obligations. (1) To the Buyer.- A fiduciary
duty of utmost care, integrity, honesty, and loyalty in dealings with the Buyer.
(2) To the Buyer and the Seller., a. Diligent exercise of reasonable skill and
care in performance of the agent's duties. b. A duty of honest and fair dealing
and good faith. c. A duty to disclose all facts known to the agent materially
affecting the value or desirability of the property that are not known to, or
within the diligent attention and observation of, the Parties. An agent is not
obligated to reveal to either Party any confidential information obtained from
the other Party which does not involve the affirmative duties set forth above.
(c) Agent Representing Both Seller and Buyer. A real estate agent, either
acting directly or through one or more associate licenses, can legally be the
agent of both the Seller and the Buyer in a transaction, but only with the
knowledge and consent of both the Seller and the Buyer. (1) In a dual agency
situation, the agent has the following affirmative obligations to both the
Seller and the Buyer: a. A fiduciary duty of utmost care, integrity, honesty and
loyalty in the dealings with either Seller or the Buyer. b. Other duties to the
Seller and the Buyer as stated above in their respective sections (a) or (b) of
this paragraph 26.2. (2) In representing both Seller and Buyer, the agent may
not without the express permission of the respective Party, disclose to the
other Party that the Seller will accept a price less than the listing price or
that the Buyer will pay a price greater than the price offered. (3) The above
duties of the agent in a real estate transaction do not relieve a Seller or
Buyer from the responsibility to protect their own interests. Buyer and Seller
should carefully read all agreements to assure that they adequately express
their understanding of the transaction. A real estate agent is a person
qualified to advise about real estate. If legal or tax advise is desired,
consult a competent professional.
(d) Further Disclosures. Throughout this transaction Buyer and Seller may
receive more than one disclosure, depending upon the number of agents assisting
in the transaction. Buyer and Seller should each read its contents each time it
is presented, considering the relationship between them and the real estate
agent in this transaction and that disclosure.
26.3 Confidential Information: Buyer and Seller agree to identify to
Broker(s) as "Confidential" any communication or information given Broker(s)
that is considered by such Party to be confidential.
27. ADDITIONAL PROVISIONS:
Additional provisions of this offer, if any, are as follows or are attached
hereto by an addendum consisting of paragraphs 28 through 33. (It will be
presumed no other provisions are included unless specified here.)
- --------------------------------------------------------------------------------
12
- --------------------------------------------------------------------------------
BUYER AND SELLER HEREBY ACKNOWLEDGE THAT THEY HAVE BEEN AND ARE NOW ADVISED BY
THE BROKER(S) TO CONSULT AND RETAIN THEIR OWN EXPERTS TO ADVISE AND REPRESENT
THEM CONCERNING THE LEGAL AND INCOME TAX EFFECTS OF THIS AGREEMENT, AS WELL AS
THE CONDITION AND/OR LEGALITY OF THE PROPERTY, THE IMPROVEMENTS AND EQUIPMENT
THEREIN, THE SOIL THEREOF, THE CONDITION OF TITLE THERETO, THE SURVEY THEREOF,
THE ENVIRONMENTAL ASPECTS THEREOF, THE INTENDED AND/OR PERMITTED USAGE THEREOF,
THE EXISTENCE AND NATURE OF TENANCIES THEREIN, THE OUTSTANDING OTHER AGREEMENTS,
IF ANY, WITH RESPECT THERETO, AND THE EXISTING OR CONTEMPLATED FINANCING
THEREOF, AND THAT THE BROKER(S) IS/ARE NOT TO BE RESPONSIBLE FOR PURSUING THE
INVESTIGATION OF ANY SUCH MATTERS UNLESS EXPRESSLY OTHERWISE AGREED TO IN
WRITING BY BROKER(S) AND BUYER OR SELLER.
13
If this Agreement has been filled in, it has been prepared for submission to
your attorney for his approval. No representation or recommendation is made by
the real estate Broker(s) or their agents or employees as to the legal
sufficiency, legal effect, or tax consequences of this Agreement or the
transaction involved herein. The undersigned Buyer offer and agrees to buy the
property on the terms and conditions stated and acknowledges receipt of a copy
hereof.
BROKER: BUYER:
Delphi Business Properties Eltron International, Inc.
_____________________________________________ ___________________________________________
By Date By [SIG] Date
------------------ ------------- ---------------------- -------------
Name Printed: Kevin Tamura Name Printed: Donald Skinner
Title: _____________________________________ Title Chief Executive Officer
Address: 7100 Hayvenhurst Ave., #211, Van Address: 41 Moreland Road, Simi Valley,
Nuys, California 91406 California 93065
Telephone: (818) 780-7878 Telephone: (805) 579-1800
Facsimile No.: (818) 780-8152 Facsimile: (805) 579-1808
28. ACCEPTANCE
28.1 Seller accepts the foregoing offer to purchase the Property and
hereby agrees to sell the Property to Buyer on the terms and conditions therein
specified.
28.2 Seller acknowledges that Broker(s) has/have been retained to locate
a Buyer and is/are the procuring cause of the purchase and sale of the Property
set forth in this Agreement. In consideration of real estate brokerage service
rendered by Broker(s), Seller agrees to pay Broker(s) a real estate brokerage
fee in a sum equal to 5% of the Purchase Price (the "Broker(s) Fee") divided
equally in such shares as said Broker(s) shall direct in writing. As is provided
in paragraph 9.1(p), this Agreement shall serve as an irrevocable instruction to
Escrow Holder to pay such brokerage fee to Broker(s) out of the proceeds
accruing to the account of Seller at the Closing
28.3 Seller acknowledges receipt of a copy hereof and authorizes the
Broker(s) to deliver a signed copy to Buyer.
NOTE: A PROPERTY INFORMATION SHEET IS REQUIRED TO BE DELIVERED TO BUYER BY
SELLER UNDER THIS AGREEMENT.
BROKER: SELLER:
DAUM COMMERCIAL REAL ESTATE Benchmark Holding Group, a California
general partnership
_____________________________________________ ___________________________________________
By Date By /s/ A. Carl Kotchin Date
------------------ ------------- --------------------- ------------
Name Printed: Bram White Name Printed: A. Carl Kotchin
Title: Executive Vice President Title General Partner
Address: 711 Daily Drive, Suite 100, Address:
Camarillo California 91406
Telephone: (805) 987-8866 Telephone:
Facsimile No.: (805) 987-7465 Facsimile:
14
ADDENDUM TO STANDARD OFFER, AGREEMENT
AND ESCROW INSTRUCTIONS FOR PURCHASE OF REAL ESTATE
This Addendum to Standard Offer, Agreement and Escrow Instructions for
Purchase of Real Estate (this "Addendum") is entered into by and between
BENCHMARK HOLDING GROUP, a California general partnership ("Seller"), and ELTRON
INTERNATIONAL, INC., a California corporation ("Buyer"), and modifies and
supplements that certain Standard Offer, Agreement and Escrow Instructions for
Purchase of Real Estate dated December 30, 1997 (together with this Addendum,
the "Agreement") covering certain improved real property located at 1001 Flynn
Road, Camarillo, California, as more particularly described in the Agreement
(the "Property").
Capitalized terms not defined herein shall have the same meanings as set
forth for such terms in the Agreement. In the event of any conflict or
inconsistency between the terms and provisions hereof and the terms and
provisions of the agreement, the terms and provisions of this Addendum shall
control. As modified hereby, the terms and provisions of the Agreement shall
remain in full force and effect and binding upon the parties.
The Agreement is hereby modified and/or supplemented as follows (Section
numbers below refer to the indicated Sections of the Agreement):
1.1 Expected Closing Date The Expected Closing Date shall be February 27, 1998.
However, Buyer shall have the right to require the Closing to occur within three
(3) days after Buyer's written notification to Seller that Buyer is prepared to
close the escrow, which notice may be given by Buyer at any time from and after
January 23, 1998. Seller shall take all actions necessary to accomplish the
closing within such three (3) day period after receipt of Buyer's notice.
Failure to close on or before the date specified in the notice from Buyer, other
than due to the fault of Buyer, shall entitle Buyer to the purchase price which
would otherwise be applicable on the noticed closing date.
2.3 Property. The term "property" shall include, without limitation, the real
property described in Section 2.3, all improvements thereon, all rights,
privileges, permits, entitlements, easements and appurtenances running with or
otherwise benefiting said real property in any manner, all minerals, oil, gas
and other hydrocarbon substances on and under said real property, all
development rights, air rights, water, water rights, riparian rights, and water
stock relating to said real property, all rights-of-way and other appurtenances
used in connection with the beneficial use and enjoyment of said real property,
all of Seller's right, title and interest in and to all roads and alleys
adjoining or servicing said real property, and all personal property (herein the
"Personal Property") owned by
15
Seller and used at or in connection with said real property, improvements, or
the use or operation thereof. Seller shall cause the legal description of the
Property to be provided to Buyer concurrently with the current title report
required by this Agreement, which shall be subject to Buyer's approval
concurrently with the title matters referenced herein.
3. Purchase Price. The purchase price (the "Purchase Price") to be paid by Buyer
to Seller for the Property shall be $8,200,000.00 all payable in cash at
Closing. Notwithstanding the foregoing, should Buyer waive the applicable
contingency period to allow an early closing, the purchase price for a closing
on or prior to February 5, 1998, shall be Eight Million Dollars ($8,000,000,00)
and the purchase price for a closing subsequent to February 5, 1998 but on or
before February 16, 1998 shall be Eight Million One Hundred Thousand Dollars
($8,100,000.00).
5. Financing Contingency. From and after execution of this Agreement, Seller
agrees to take all reasonable steps to cooperate at all times with Buyer and
Buyer's proposed lenders in applying for and obtaining Buyer's financing for the
purchase of the Property, including, without limitation, by providing all
documents, leases, subleases, affidavits, and information in Seller's possession
which Buyer or the proposed lender(s) may reasonably request for such purposes,
in addition to all other documents, items and information required from Seller
by this Agreement. The availability of financing on terms acceptable to Buyer on
or before February 23, 1998, shall be a contingency of Buyer's obligation to
purchase.
8.1 Escrow and Closing (Escrow Instructions): In the event of any conflict or
inconsistency between the terms and provisions of the Agreement and the terms
and provisions of any escrow instructions related to this transaction, as
between Seller and Buyer the terms and provisions of the Agreement shall
control, and as between the escrow holder and the parties the terms and
provisions of such escrow instructions shall control.
8.8 Escrow and Closing (work product): Notwithstanding the foregoing, in the
event there is any cost for reproduction, Seller shall reimburse Buyer for such
cost upon receipt of the copies requested. Any release to Seller shall be
contingent on such release not being in violation of the rights of any third
party producing such material. Any material released by Buyer to Seller shall be
without any representation or warranty as to its accuracy or completeness.
9. Contingencies to Closing. Notwithstanding the dates contained in the body of
this Standard Offer, Buyer shall have through and including February 23, 1998 to
satisfy itself regarding all contingencies, including but not limited to the
condition of the property, the title, financing and the suitability for Buyer's
purpose together with the contingencies
16
referenced herein. Failure to notify Seller in writing of Buyer's disapproval by
such date shall constitute confirmation of waiver of all contingencies.
9.1(a) Condition of Title. In no event shall any monetary liens or
encumbrances remain upon the Property upon or after the Closing other than the
lien of non-delinquent real property taxes and assessments, general and special,
not yet due. Seller hereby covenants to deliver title to Buyer upon the Closing
free and clear of all such monetary liens and encumbrances (including, without
limitation, by the satisfaction and reconveyance of all deeds of trust and
mechanics' liens and Seller's payment of all principal, interest, prepayment
charges, and other costs necessary to accomplish the same). Seller's compliance
with the foregoing shall also be a condition precedent to Buyer's obligation to
close the Escrow.
9.1(b) Existing Leases and Tenancy Statements. At all times after the
Closing, Seller shall reasonably cooperate with Buyer in assuring the proper and
timely surrender of the entire Property by all lessees, sublessees and occupants
thereof (including, without limitation, the Sublessees referenced below) in good
condition and in accordance with their respective leases and subleases.
9.1(c) Buyer's Feasibility Studies. It shall also be a Buyer Contingency
under this Agreement that Buyer shall have the right to approve or disapprove,
in Buyer's sole business judgment and discretion, all matters relating to the
feasibility of Buyer's proposed purchase, financing, development, construction,
alteration, use, occupancy and/or operation of the Property.
9.3 Buyer's Contingencies. Buyer shall be required to notify only Seller in
writing of any disapproval of a Contingency in order for such disapproval to be
timely and effective. Buyer may, but shall not be required to, notify Escrow
Holder and Brokers of such disapproval concurrently or at any time subsequently.
Any notice by Buyer may be transmitted by facsimile or telecopier to the number
provided below the Seller's signature on page 6 of the Agreement, in lieu of or
in addition to the other manners of notice permitted by Section 19 of the
Agreement. Buyer's approval or disapproval of any Contingency or other matter
specified in this Agreement as being subject to Buyer's approval may be given in
Buyer's sole business judgment and discretion.
9.6 (Continued). A "Hazardous Substance Condition" for purposes of this
Agreement is defined as the existence on, under or relevantly adjacent to the
property of a Hazardous Substance (as defined in this Agreement) that would
require remediation and/or removal under applicable Federal, state or local
laws.
10.2(f) Seller's Deliveries (continued). Upon the Closing, Seller shall also
deliver the originals of all warranties, guarantees, policies, and similar
documents relating to the
17
Property and/or any building systems, equipment, facilities, or improvements in
or on the Property, in the possession of Seller, along with an assignment of all
Seller's rights thereunder in form reasonable acceptable to Buyer. Seller shall
at all times cooperate with Buyer in requesting and obtaining the consent of the
makers or issuers of such items to the assignment of such rights to Buyer.
11.1 Taxes (continued). General and special assessments shall be prorated
through Escrow as of the date of Closing, based upon the latest statements
available.
12. Additional Representations, Warranties and Covenants by Seller.
For the purpose of inducing Buyer to enter into this Agreement, and in
addition to the representations, warranties and covenants contained in the
Agreement and this Addendum, Seller represents, warrants and covenants to Buyer
the following, each of which shall be true and correct as of the date hereof and
as of the Closing (which shall be a condition precedent to Buyer's obligation to
close the Escrow) and each of which shall survive the Closing and the delivery
of possession of the Property to Buyer:
(a) To the best of Seller's knowledge: (1) the Property is in full
compliance with all existing laws, rules, regulations, codes, ordinances,
orders, covenants, conditions, restrictions, and similar requirements; (2) all
permits, licenses, certificates, entitlements, approvals and other
authorizations required for the ownership, development, construction, use
occupancy, and operation of the property have been obtained from all appropriate
authorities, are in good standing, and the property and Seller are in compliance
with all terms and conditions thereof. Seller has not received any notice that
Seller, the Property, or any portion of the Property is in violation of any of
the foregoing.
(b) To the best of Seller's knowledge: (1) each and every aspect of the
Property, including, without limitation, the structure, roof, foundation, slabs,
exterior and interior walls, heating, ventilating, air conditioning, utilities,
electrical, plumbing, sanitary, sewer, drainage, safety, security, mechanical
systems, communications systems, entrances and loading areas are in good
condition and repair and in working order; (2) no material repairs or capital
improvements are needed with respect to the property or any portion thereof; (3)
there are no structural defects of any improvements on the property, nor are
there any defects or conditions of the soil or ground areas which would impair
or negatively affect the use or operation of the property; (4) the soil
conditions of the Property will adequately support all of the improvements
located on the Property for their foreseeable life, without the need for unusual
or further subsurface excavations, fills, footings, caissons or other
18
installations; (5) the Property is not in an area identified by any agency or
department of the federal or sate government as having special hazards,
including, without limitation, flood or fire hazards. There is no fact,
circumstance, or condition known to Seller which has had or is likely to have a
material adverse effect on the Property or the use occupancy, or operation
thereof.
(c) To the best of Seller's knowledge: (1) there are no "Hazardous
Substances" (defined as any substance whose nature and/or quantity of existence,
use, manufacture, disposal or effect, renders it subject to Federal, state or
local regulation, investigation, remediation or removal as potentially injurious
to public health or welfare) on, under or about the Property, including, but not
limited to, in the soil or the groundwater. Neither Seller, nor any third party
during the time of Seller's ownership of the property, has used, generated,
manufactured, stored, released or disposed of any Hazardous Substances in, on,
under or about the property or transported any Hazardous Substances to or from
the Property; (2) none of the Property, the structures or improvements thereon,
or the materials used to construct them contains any Hazardous Substances,
including, without limitation, asbestos, PCB's, halon, petroleum or petroleum
products, or underground or above-ground storage tanks.
(d) Other than as disclosed by the more recent tax bills which seller
shall deliver to Buyer as required by this Agreement, no real property taxes or
assessments have been assessed, or to the best of Seller's knowledge will be
assessed, against the Property or any portion thereof. There are no special
assessments, charges or liens which have been made or levied against the
Property or which will result from work, activities or improvements done to the
Property by or for Seller. To the best of Seller's knowledge, there are no
intended public or private improvements or development which may result in any
assessment, charge or lien being made or levied against or upon the Property or
any portion thereof.
(e) To the best of Seller's knowledge: (1) there is no pending or
threatened claim, action, litigation, arbitration, condemnation, annexation, or
other proceeding or investigation which affects or relates to the Property or
any portion thereof; (2) no moratorium, statute, order, regulation, ordinance,
legislation, judgment, ruling or decree of any court or governmental agency has
been enacted, adopted, issued, entered, or is pending or in effect, that could
materially and adversely affect the Property, Buyer's ability to purchase,
develop, occupy, operate or use the Property or any portion thereof; (3) there
are no pending bankruptcy or insolvency proceedings of Seller or any lessee,
sublessee or occupant of the Property or any portion thereof, nor shall there be
at any time following the execution hereof through the date of Closing.
(f) Except for the tenants disclosed to Buyer by Seller, from and after
the date of Closing, no person or entity other
19
than Buyer shall have any right of tenancy, use, or occupancy of the Property
or any portion thereof and Buyer shall have sole and exclusive possession, use
and enjoyment of the Property as of the date of Closing, other than the
Sublessees" defined below in this Addendum. There are no leases, licenses,
contracts, or other agreements or understandings permitting, and Seller has not
engaged in any course of conduct which would permit, any person or entity to
occupy or use any portion of the Property except for the Sublessees. No person
or entity whatsoever (including without limitation, any Sublessee) has a right
of first offer, right of first refusal, or option to purchase or lease all or
any portion of the Property, other than the Sublessee's rights to sublease their
respective portions of the property through the end of their respective sublease
terms.
(g) All leases and subleases of the property or any portion thereof
expire on June 30, 1998. There are no breaches or defaults by Seller under any
such leases, nor are there any facts or circumstances which with the giving of
notice or the passage of time, or both, would constitute such a breach or
default. To the best of Seller's knowledge, there are no breaches of defaults by
any lessees or sublessees under any such leases or subleases, nor are there any
facts or circumstances which with the giving of notice or the passage of time,
or both, would constitute such a breach or default.
(h) Except for the agreements (the "Service Contracts") set forth on
Exhibit "A" attached to this Agreement and incorporated herein by reference,
there are no contracts, agreements, warranties, guarantees, bonds or other
agreements which affect or will affect, or which will be obligations of, Buyer
or the Property, including, without limitation, any agreements or contracts
relating to maintenance, construction, parking, easements, reciprocal easements,
common driveways, party walls, rubbish removal, landscaping, deliveries,
brokerage, sales, leasing, or cost contribution. Except as otherwise expressly
stated in the attached schedule of Service Contracts, each of the Service
Contracts may be terminated by any party thereto without liability, expense or
penalty of the terminating party, upon not more than thirty (30) days' notice.
Not more than thirty (30) days subsequent to Buyer's written notice to Seller,
Seller shall cause any or all Service Contracts and other agreements designated
by Buyer to be terminated prior to the Closing, should such notice to Seller be
received not less than thirty (30) days prior to Closing, and Seller shall pay
all termination charges and other costs and shall perform all obligations in
connection therewith. In such event, Seller shall also deliver to the
appropriate parties written notices of termination of the Service Contracts so
designated in writing by Buyer, which notices may be conditioned upon the
Closing hereunder. With respect to those Service Contracts and other agreements
which Buyer elects not to have terminated, Seller shall deliver written notice
to all parties to such Service Contracts and agreements when requested by Buyer
and in form reasonably acceptable to Buyer, notifying
20
such other parties of the transfer of the Property and the assignment of
Seller's entire interest under said Service Contract and agreements. There is no
breach or default under any of the Service Contracts or other agreements, nor do
there exist any facts or circumstances which, with the giving of notice or the
passage of time or both, would constitute such a breach or default. From and
after the execution hereof, Seller shall not modify, amend, extend or terminate
any Service Contract or any other obligations or agreements affecting the
Property, nor shall Seller enter into any contracts, agreements or
understandings (or modifications thereof) affecting the Property, without the
prior written consent of Buyer in Buyer's discretion.
(i) The Property currently has in effect adequate utility, water supply,
storm and sanitary sewage facilities, telephone, gas electricity, fire
protection, and similar services which are necessary or desirable for the
current use, occupancy and operation of the Property, and adequate means of
ingress and egress to and from public streets. Seller has no reason to believe
that any such utilities, other services, or access will not continue to be
available in their present forms and amounts after the Closing, without expense
to Buyer other than normal and usual security deposits.
(j) No work or labor has been performed or is in progress, and no
materials or supplies have been furnished, to or for the Property or Seller,
which have not been paid for in full by Seller, nor shall any such matters occur
prior to the Closing which shall not be paid for in full by Seller promptly and
in no event later than February 13, 1998.
(k) Seller is a general partnership duly organized and validly existing
under the laws of the State of California. Seller has the legal power, right and
authority to enter into this Agreement. The individuals executing this Agreement
on behalf of Seller hereby represent and warrant that they have the power, right
and authority to bind Seller without further consents or approvals of any kind.
All requisite partnership action has been taken by Seller and all requisite
consents have been obtained by Seller in connection with this Agreement.
(l) This Agreement is duly executed by Seller and is valid and legally
binding and enforceable upon Seller. Neither the execution nor performance of
this Agreement shall result in a breach or default under any agreement,
document, instrument, or other obligation to which Seller is a party or by which
Seller may be bound, or under any law, statute, ordinance, rule, governmental
regulation or any writ, injunction, order or decree of any court or governmental
body, applicable to Seller or the Property.
(m) All documents, contracts, agreements, materials, similar items, and
information of any kind submitted or to be submitted by Seller to Buyer in
connection with this Agreement
21
and the Property are true, correct and complete in all material respects. The
representations and warrants by Seller contained herein are true, correct and
complete on the date hereof and do not misstate or omit any fact necessary to
make such statement complete and not misleading. At all times prior to and
including the Closing, Seller shall immediately notify Buyer of any fact,
development or information which might make any representation, warranty or
covenant contained herein, or any items provided by Seller, false, misleading,
inaccurate or incomplete in any respect. Upon the occurrence of the foregoing,
or upon any material change in any of the matters described herein which are
subject to Buyer's approval. Buyer shall have the right to approve or disapprove
any such information and changes within ten (10) business days after Buyer's
receipt of written notification thereof, and Buyer may at Buyer's option (i)
waive the breach that would be caused by such information or change, (ii) agree
with Seller to adjust the terms of this Agreement to compensate Buyer for such
information or change, or (iii) terminate this Agreement without prejudice to
any further legal or equitable rights or remedies Buyer may have against Seller
or the Property. Buyer's failure to notify Seller in writing, within such ten
business day period of Buyer's disapproval of such matters shall be deemed
Buyer's approval thereof, subject to the survival and continuing effectiveness
of Seller's representations, warranties and covenants contained in this
Agreement.
14.1 Buyer's Entry. In no event, however, shall Buyer be liable or responsible
for any preexisting conditions or matters of which Buyer may learn by reason of
any such entries, inspections or tests, regardless of any effect which such
matters may have upon Seller's obligations to report and/or respond to such
conditions or matters thereafter.
28. Seller's Additional Deliveries to Buyer. Within ten (10) business days after
the execution and delivery of this Agreement, Seller shall deliver to Buyer the
following in addition to any other deliveries required by this Agreement:
(a) Preliminary Title Report dated July 30, 1996 issued by
Continental Lawyers Title Company, including, without limitation,
maps, potted easements, and underlying documents referenced in
such title report. However, the foregoing shall not limit or
otherwise affect Seller's obligation to cause the Title Company
identified in Section 2.2 of the Agreement to issue a current
preliminary title report with maps, plotted easements and all
underlying documents referenced therein. Seller shall also
immediately deliver the July 30, 1996 title report and related
materials to the Title Company specified in this Agreement for
purposes of its preparation of a current title report.
(b) A true and correct copy of a rent roll for the Property
detailing, with respect to each lease and
22
sublease, the name of the lessee or sublessee, the term of the
lease or sublease (including the commencement and expiration
dates), the rentable square footage leased, the rent (base rent
and percentage rent), operating expense "pass-throughs," and
security deposit.
(c) A true, correct and complete copy of each lease and sublease
affecting the Property or any portion thereof, and any and all
amendments and modifications thereto and any correspondence
affecting the same. (d) To the extent the same are in the
possession of Seller or its agents, true, correct and complete
copies of all reports, studies, plans, specifications, designs,
drawings, "as-built" drawings, blueprints, surveys, maps, site
plans, photographs, contracts, Service Contracts, warranties,
permits, certificates, entitlements, inspection results,
architectural reports, engineering reports, soils tests,
geological reports, seismic studies, environmental reports, and
similar matters relating to the Property, without representation
or warranty by seller regarding the accuracy thereof.
(e) A schedule of all the Personal Property at or used in
connection with the Property owned by Seller and to be purchased
by Buyer.
(f) A true, correct and complete copy of each Service Contract.
(g) A true, correct and complete copy of all income and expense
statements for the Property for the three (3) preceding fiscal
years, certified as true and correct by Seller or Seller's
accountants.
(h) A list of the names, addresses and telephone numbers of all
architects, engineers, general contractors and subcontractors
who, for the account of Seller, performed work or supplied
materials with respect to the improvements on the Property or any
portion thereof, identifying the work performed and/or materials
supplied by each of them.
(i) A true, correct and complete copy of each fire, hazards,
rental loss, liability, workers' compensation and other insurance
policies currently in effect with respect to the Property or any
portion thereof, along with true and correct copies of all
documents relating to any claims or settlements made within the
three (3) most recent years.
(j) A true, correct and complete copy of each bill issued for the
three (3) most recent years for all real
23
property taxes and assessments, each bill for personal property
taxes, and each notice or document relating to any assessment or
bond with respect to the Property.
The foregoing documents are hereinafter referred to as the "Documents."
Buyer shall have the right to approve or disapprove each of the Documents in the
same manner and time period as provided in this Agreement for Buyer's approval
of all other Contingencies (with the exception of Buyer's financing
contingency).
No later than fifteen (15) days prior to the Expected Closing Date,
Seller shall deliver to Buyer for Buyer's approval: (i) such fully executed
assignments, bills of sale, and other instruments of transfer as Buyer may
request conveying to Buyer all of Seller's right, title and interest under the
leases and subleases referenced, the Service Contracts, all entitlements,
permits, certificates, warranties, and other agreements and rights affecting the
Property, the Personal Property, and any and all other matters contemplated by
this Agreement; and (ii) an executed notice to all lessees and sublessees of the
Property of the transfer of the Property to Buyer as the new lessor or sublessor
under their respective leases and/or subleases, as the case may be, and
instructing such lessees and sublessees to make all payments and tender all
performances under their respective leases and subleases directly to Buyer after
their receipt of such notice.
29. Hazardous Substances/Storage Tanks. Seller shall defend (with counsel
reasonably acceptable to Buyer), hold harmless and indemnify Buyer, Buyer's
officers, directors, shareholders, principals, partners, affiliates, parent
companies, subsidiaries, related companies, employees, representatives, agents,
invitees, successors and assigns (collectively "Buyer Affiliates") from and
against all claims, demands, causes of action, losses, costs, damages,
liabilities, fines and expenses (including, without limitation, attorney's fees
and costs of suit and collection) which any Buyer Affiliate may realize, incur
or suffer arising from, by reason of, or in connection with any Hazardous
Substances which exist or existed at, on, under or about the Property prior to
the Closing. This provision shall survive the Closing and the execution and
delivery of the Grant Deed.
30. Buyer's Right to Specific Performance. Notwithstanding anything contained in
this Agreement to the contrary, Seller hereby agrees that in the event of a
default or breach by Seller of its obligations under this Agreement, and in
addition to any and all other remedies, relief and damages to which Buyer may be
entitled under this Agreement, at law, or in equity, Buyer shall have the right
to bring an action against Seller for specific performance of Seller's
obligations under this Agreement and for the conveyance of the Property
hereunder. Seller hereby agrees that Seller will not raise any objections or
defenses to the availability or propriety of the remedy of specific performance.
24
31. Further Assurances. Seller and Buyer agree that at any time or from time to
time after the execution of this Agreement and whether before or after the
Closing, each party upon the request of the other party shall execute and
deliver such further documents and instruments and shall perform such further
acts and assurances as any party may reasonably request in order to fully
consummate, effectuate, and implement the purposes and provisions of this
Agreement.
32. Buyer's Representations and Warranties. This Agreement is duly executed by
Buyer and is valid and legally binding and enforceable upon Buyer. Neither the
execution nor performance of this Agreement shall result in a breach or default
under any agreement, document, instrument, or other obligation to which Buyer is
a party or by which Buyer may be bound, or under any law, statute, ordinance,
rule, governmental regulation or any writ, injunction, order or decree of any
court or governmental body, applicable to Buyer.
33. Lease of Property to Buyer. The parties hereby agree that, in the event the
Escrow fails to close for any reason, Buyer shall lease the Property from Seller
and Seller shall lease the Property to buyer pursuant to a lease which will be
substantially in the form attached hereto as Exhibit "B", subject to Buyer's
contingencies specified therein. Promptly following the mutual execution hereof
but no later than January 23, 1998, the parties hereby agree to negotiate in
good faith any final modifications and revisions to the lease form as may be
requested by either party.
In the event the Escrow closes, the parties hereby agree that the
"Standard Industrial/Commercial Single Tenant Lease - Net" attached hereto as
Exhibit "B" and incorporated herein by reference or such variation executed by
the parties is null and void and of no force or effect.
25
IN WITNESS WHEREOF, the undersigned have executed this Addendum
concurrently with their execution of the Agreement.
"SELLER"
BENCHMARK HOLDING GROUP,
a California general partnership
By_____________________________________
General Partner
By_____________________________________
General Partner
By_____________________________________
General Partner
"BUYER"
ELTRON INTERNATIONAL, INC.,
a California corporation
By_____________________________________
Its____________________________________
By_____________________________________
Its____________________________________