Securities and Exchange Commission
Washington, D.C. 20549
Form 10-Q/A
Amendment No. 1 to
(Mark One)
[X] Quarterly Report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 For the quarterly period ended June 30, 1997 or
[_] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 For the transition period from _______________ to
______________
Commission File Number: 0-19861
Imperial Credit Mortgage Holdings, Inc.
(Exact name of registrant as specified in its charter)
Maryland 33-0675505
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
20371 Irvine Avenue
Santa Ana Heights, California 92707
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (714) 556-0122
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which registered
- --------------------------------------- ----------------------------------
Common Stock $0.01 par value American Stock Exchange
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of the Form 10-K or any amendment to this
Form 10-K. [_]
The aggregate market value of the voting stock held by non-affiliates of
the registrant based upon the closing sales price of its Common Stock on August
11, 1997 on the American Stock Exchange was approximately $249.0 million
million.
The number of shares of Common Stock outstanding as of
August 11, 1997: 10,131,057
Documents incorporated by reference
None
<PAGE>
<TABLE>
IMPERIAL CREDIT MORTGAGE HOLDINGS, INC.
1997 FORM 10-Q/A QUARTERLY REPORT
TABLE OF CONTENTS
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PART II. OTHER INFORMATION Page No.
ITEM 5. OTHER INFORMATION 1
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 2
SIGNATURES 3
</TABLE>
<PAGE>
ITEM 5. OTHER MATTERS
On February 13, 1997, Wellington Management Company, LLP ("WMC") filed
a Schedule 13G pursuant to the Securities Exchange Act of 1934, as amended. In
its Schedule 13G WMC stated that, in its capacity as investment advisor, it may
be deemed to beneficially own 516,400 shares of Common Stock of the Company
which are held of record by clients of WMC. WMC also stated that those clients
have the right to receive, or the power to direct the receipt of, dividends
from, or the proceeds from the sale of, such securities, and that no such client
is known to have such right or power with respect to more than five percent of
the shares of Common Stock. WMC indicated that it had shared power to vote or to
direct the vote as to 297,400 shares, shared power to dispose or to direct the
disposition of 516,400 shares, and neither the sole power to vote or to direct
the vote nor the sole power to dispose or to direct the disposition of any of
the shares.
<PAGE>
<TABLE>
ITEM 6.
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(a) Exhibits
Exhibit 11 - Statement regarding Computation of Earnings per share.
Exhibit 10.8 - Form of Amended and Restated Employment Agreement
with ICI Funding Corporation.
Exhibit 10.8(a)- List of Officers and terms relating to Form of
Amended and Restated Employment Agreement filed
as Exhibit 10.8.
Exhibit 10.16 - Real Estate Purchase, Sale and Escrow Agreement by
and between TW/BRP Dove, LLC and IMH/ICH Dove Street,
LLC dated as of August 25, 1997.
*27 Financial Data Schedule
----------
* Previously filed.
(b) Reports on Form 8-K:
None
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
IMPERIAL CREDIT MORTGAGE HOLDINGS, INC.
By: /s/ Richard J. Johnson
Richard J. Johnson
Senior Vice President
and Chief Financial Officer
Date: September 16, 1997
<PAGE>
EXHIBIT 11
<TABLE>
IMPERIAL CREDIT MORTGAGE HOLDINGS, INC.
Statement Regarding Computation of Earnings per share
(dollars in thousands, except per share data)
<S> <C> <C>
For the Three Months For the Three Months
Ended June 30, 1997 Ended June 30, 1996
------------------- --------------------
Net income $ 5,625 $ 2,135
-------------------- --------------------
Average number of shares outstanding 9,621 4,580
Net effect of dilutive stock options-
Based on treasury stock method using
Average market price 130 80
-------------------- --------------------
Total average shares 9,751 4,660
==================== ====================
Net income per share $ 0.58 $ 0.46
==================== ====================
For the Six Months For the Six Months
Ended June 30, 1997 Ended June 30, 1996
-------------------- -------------------
Net income $ 11,539 $ 3,829
-------------------- -------------------
Average number of shares outstanding 9,514 4,416
Net effect of dilutive stock options-
Based on treasury stock method using
Average market price 138 69
------------------- --------------------
Total average shares 9,652 4,485
=================== ====================
Net income per share $ 1.20 $ 0.85
=================== ====================
</TABLE>
<PAGE>
Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made
effective as of this 8th day of August, 1997, by and between ICI Funding
Corporation, a California corporation ("Employer"), and __________________, an
individual ("Employee"), with reference to the following facts:
R E C I T A L S
WHEREAS, Employee is knowledgeable of and skillful in
Employer's business, which includes, but is not limited to, acquiring for
investment and sale non-conforming residential mortgage loans and mortgage
backed securities and performing operations as the conduit operations for
affiliates and/or related entities of Employer as described in Attachment A
hereto (the "Business");
WHEREAS, Employer believes that Employee will be an integral
part of its management and is and will become more knowledgeable of and be in
part responsible for developing the Business;
WHEREAS, Employee possesses extensive management experience
and knowledge regarding the Business, including confidential information
concerning service marketing plans and strategy, business plans and projections
and the formulas and models pertaining thereto, customer needs and
peculiarities, finances, operations, billing methods and customer lists and
detailed information (the "Trade Secrets");
WHEREAS, in order to induce Employer to enter into this
Employment Agreement and to perform its obligations hereunder, Employee agrees
not to compete with Employer or use any Trade Secrets or other confidential
and/or proprietary business information regarding the Business of Employer, its
affiliates and/or related entities (as more specifically described in Attachment
A) to the detriment of Employer during the term of this Agreement and
thereafter;
WHEREAS, Employer desires that Employee be employed as
_____________________________ of Employer;
WHEREAS, Employee is willing to be employed by Employer and
provide services to Employer and any affiliates or related entities of Employer
(as more fully described in Attachment A) under the terms and conditions herein
stated.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter contained, and for other good and valuable consideration,
it is hereby agreed by and between the parties hereto as follows:
<PAGE>
1. Employment, Services, and Duties.
1.1 Employer hereby employs Employee and Employee hereby
accepts such employment full-time (subject to those exceptions, if any, set
forth below) as _____________________________of Employer, with the powers and
duties consistent with such position. Employee agrees to devote one hundred
percent (100%) of all working hours to rendering the services on behalf of
Employer and/or its affiliates or related entities (as described in Attachment A
hereto). Employee shall render his services to Employer by and subject to the
instructions and directions of Employer's Board of Directors to whom Employee
shall directly report.
1.2 Employee acknowledges and agrees that Employee will be
required by Employer to devote as much time as reasonably necessary to perform
functions for Employer's related entities and/or affiliates (as set forth in
Attachment A) and that such services are to be performed pursuant to and
consistent with Employee's duties and obligations under this Agreement.
2. Term and Termination.
2.1 Unless sooner terminated pursuant to Paragraph 2.2 hereof,
Employee's employment shall continue for a period of five (5) years from
November 20, 1995 ("Employment Date") unless extended by the mutual written
agreement of Employer and Employee.
2.2 Employee's employment shall terminate prior to the
expiration of the term set forth in Section 2.1 above upon the happening of any
of the following events:
(a) Voluntary termination by Employee which is
not subject to Section 2.2(h) herein;
(b) Death of Employee;
(c) Dissolution or termination of Employer;
(d) The voluntary or involuntary bankruptcy of
Employer;
(e) For cause if any of the following occurs:
(i) Employee is convicted of (or pleads
nolo contendere to), or at any time prior to employment by Employer, has
been convicted of (or plead nolo contendere to) a crime of dishonesty
or breach of trust or crime leading to incarceration of more than ninety
(90) days (including, without limitation, embezzlement or theft from
Employer) or the payment of a penalty or fine of $10,000 or more;
(ii) Employer determines that Employee's
performance is not satisfactory or that Employee has engaged in misconduct,
negligence or neglect in the performance of Employee's duties under this
Agreement;
<PAGE>
(iii) Employee has materially breached any
of the terms of this Agreement or any other material legal obligation to
Employer including, without limitation, a breach of trust or fiduciary duty
owed to Employer or a material violation of Employer's policies or
procedures; or
(iv) Any determination of "cause" as used in
this Section 2.2(e) shall be made only in good faith by an affirmative
majority vote of the Board of Directors (not counting Employee, if a
director) of the Employer;
(f) By mutual agreement between Employer and
Employee;
(g) Upon the good faith determination of the Board of
Directors of Employer that Employee has become so physically or mentally
disabled as to be incapable of satisfactorily performing his duties
hereunder for a period of ninety (90) consecutive days, such determination
based upon a certificate as to such physical or mental disability issued by
a licensed physician and/or psychiatrist (as the case may be) employed by
the Employer;
(h) Without cause by Employer. Employee may elect by
notice to Employer to treat the following acts or omissions by Employer as
a "termination without cause":
(i) With respect to acts or omissions other
than those specifically stated in this Paragraph (h), if Employer does
not substantially comply with its payment obligations under this Agreement
and such failure is not be corrected within ten (10) business days
after delivery of notice to Employer of the facts upon which Employee
basis his claim of such non-compliance; or
(ii) A charge of material breach by Employer
under Section 2.2(e) hereof which is determined by a final judgment made
without adequate basis in law or fact.
2.3 Except as set forth in Sections 4, 5, 6 and 7 herein, in
the event that Employee's employment is terminated pursuant to Sections 2.2(a),
(b), (c), (d), (e), (f) or (g) herein, neither Employer nor Employee shall have
any remaining duties or obligations hereunder, except that Employer shall pay to
Employee, or his representatives, on the date of termination of employment
("Termination Date") the following:
(a) Such compensation as is due pursuant to Section
3.1(a) herein, prorated through the Termination Date; and
(b) Any expense reimbursements due and owing to
Employee as of the Termination Date.
<PAGE>
2.4 Except as set forth in Sections 4, 5, 6 and 7 herein, in
the event that Employee's employment is terminated pursuant to Section 2.2(h)
herein, neither Employer nor Employee shall have any remaining duties or
obligations hereunder, except that Employer shall pay to Employee, or his
representatives, on the Termination Date the following:
(a) All such compensation as is due pursuant to
Section 3.1(a) for a period of one year following the Termination Date;
(b) Any bonus or incentive compensation to which
Employee is entitled as provided for by any plan for the year of
termination, prorated through the Termination Date, provided that, if
such bonus or incentive compensation is discretionary in amount,
Employee shall receive a payment at least equal to the last previous
payment made to Employee, if any, for the previous year prorated to the
Termination Date; and
(c) Any expense reimbursements due and owing to
Employee as of the Termination Date.
2.6 This Agreement shall not be terminated by any:
(a) Merger, whether or not Employer is the
surviving entity; or
(b) Transfer of all or substantially all
of the assets of Employer.
2.7 In the event of any merger, transfer of assets,
dissolution, liquidation, or consolidation, the surviving corporation or
transferee, as the case may be, shall be bound by and shall have the benefits of
this Agreement, and the Employer shall take all action to ensure that such
corporation or transferee is bound by the provisions of this Agreement.
3. Compensation.
3.1 As the total consideration for Employee's services
rendered hereunder, Employee shall be entitled to the following:
(a) A salary of __________________________
($__________) per year ("Salary"), payable in equal installments twice
monthly on those days when Employer normally pays its employees. The
Salary shall (i) be subject to an annual review and upward adjustment
or no adjustment in the sole discretion of Employer, and (ii) be
adjusted upward by at least the minimum increase, if any, in the cost
of living in an amount obtained by multiplying the referenced salary
(as adjusted, if applicable) by the percentage by which the level of
the Consumer Price Index in the Los Angeles Metropolitan Area, as
provided for the last day of such annual period by the Bureau of Labor
Statistics of the United States Department of Labor, Bureau of Labor
Statistics, Consumer Price Index, Urban Wage Earners and Clerical
Workers, Los Angeles - Long Beach - Anaheim Metropolitan Area, All
Items (1967=100) has increased over its level as of the later of: (A)
the date hereof; or (B) the date of the previous automatic adjustment
pursuant to this Section 3.1(a);
<PAGE>
(b) Those bonuses as set forth in Attachment B
hereto, said bonuses, if any, to be paid to Employee as set forth
therein;
(c) Reimbursement for reasonable and necessary
business and entertainment expenses incurred by Employee in connection
with the performance of Employee's duties hereunder. In the event that
any federal, state or local government agency or authority determines
to disallow any such expenses which are reimbursed to Employee,
Employee agrees, to the extent that such determination involves the
Employee. to reimburse Employer as follows:
(i) for all costs in disputing such
action, including reasonable
attorney's fees; and
(ii) for all taxes and penalties incurred by
Employer in connection with such action.
(d) Employee shall be entitled to four (4) weeks
vacation time each year without loss of compensation. Employee may be
absent from his employment only at such times as Employer shall
determine from time to time. Employee's vacation shall be governed by
Employer's usual policies applicable to all employees;
(e) Employer agrees to provide Employee with
insurance coverage and other benefits available to all employees of
Employer under its group plans; and
(f) Such other benefits as the Board of Directors of
Employer, in its sole discretion, may from time to time provide.
3.2 Employer shall have the right to deduct from the
compensation due to Employee hereunder any and all sums required for social
security and withholding taxes and for any other federal, state, or local tax or
charge which may be in effect or hereafter enacted or required as a charge on
the compensation of Employee.
4. Non-Competition.
4.1 At all times during Employee's employment hereunder, and
for a period of one (1) year from the date of the termination of Employee's
employment, if Employee's employment is terminated pursuant to Section 2.2(a) or
2.2(d) hereof, Employee shall not, directly or indirectly, engage or participate
in, prepare or set up, assist or have any interest in any person, partnership,
corporation, firm, association, or other business organization, entity or
enterprise (whether as an employee, officer, director, agent, security holder,
creditor, consultant or otherwise) that engages in any activity in those
geographic areas where Employer conducts the Business, which activity is the
same as, similar to, or competitive with any activity now engaged in by Employer
or its affiliates and/or related entities (see Attachment A) or in any way
relating to the Business.
<PAGE>
4.2 Nothing contained in this Agreement shall be deemed to
preclude Employee from purchasing or owning, directly or beneficially, as a
passive investment, less than ten percent (10%) of any class of a publicly
traded securities or any corporation so long as Employee does not actively
participate in or control, directly or indirectly, any investment or other
decisions with respect to such corporation.
5. Confidentiality. Employee shall keep all Trade Secrets
and other confidential or proprietary information of Employer and its
affiliates and /or related entities and shall use such information only in the
course of performing Employee's duties hereunder. Employee shall maintain in
trust all such Trade Secret or other confidential or proprietary information,
as Employer's property, including, but not limited to, all documents concerning
Employer's Business, including Employee's work papers, telephone directories,
customer information and notes, and any and all copies thereof in Employee's
possession or under Employee's control. Upon cessation of Employee's employment
with Employer, for any reason, or upon request by Employer, Employee shall
transfer to Employer all such documents belonging to Employer, including
any and all copies in Employee's possession or under Employee's control.
6. Injunctive Relief. Employee hereby acknowledges and agrees that it
would be difficult to fully compensate Employer for damages resulting from a
breach or threatened breach of Sections 4 and 5 of this Agreement and,
accordingly, that Employer shall be entitled to temporary and injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions, to enforce such Sections without the necessity of proving actual
damages in connection therewith. This provision with respect to injunctive
relief shall not, however, diminish Employer's right to claim and recover
damages or enforce any other of its legal and/or equitable rights or defenses.
7. Copies of Agreement. Employee authorizes Employer to send a copy of
this Agreement to any and all future employers which Employee may have, and to
any and all persons, firms, and corporations, with whom Employee may become
affiliated in a business or commercial enterprise, and to inform any and all
such employers, persons, firms or corporations that Employer intends to exercise
its legal rights should Employee breach the terms of this Agreement or should
another party induce a breach on Employee's part.
8. Severable Provisions. The provisions of this Agreement are severable
and if any one or more provisions is determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions, and any partially
unenforceable provisions to the extent enforceable, shall nevertheless be
binding and enforceable.
<PAGE>
9. Reference Provision.
9.1 Each controversy, dispute or claim between the parties
arising out of or relating to this Agreement, which controversy, dispute or
claim is not settled in writing within thirty (30) days after the "Claim Date"
(defined as the date on which a party subject to the Agreement gives written
notice to the other that a controversy, dispute or claim exists), will be
settled by binding arbitration in Orange County, California in accordance with
the provisions of the American Arbitration Association, which shall constitute
the exclusive remedy for the settlement of any controversy, dispute or claim,
and the parties waive their rights to initiate any legal proceedings against
each other in any court or jurisdiction other than the Superior Court of Orange
County (the "Court"). Any decision rendered by the arbitrator and such
arbitration will be final, binding and conclusive and judgment shall be entered
pursuant to Code of Civil Procedure Section 644 in any court in the State of
California having jurisdiction.
9.2 Except as expressly set forth in this Agreement, the
arbitrator shall determine the manner in which the proceeding is conducted,
including the time and place of all hearings, the order of presentation of
evidence, and all other questions that arise with respect to the course of the
proceeding. All proceedings and hearings conducted before the arbitrator, except
for trial, shall be conducted without a court reporter, except that when any
party so requests, a court reporter will be used at any hearing conducted before
the arbitrator. The party making such a request shall have the obligation to
arrange for any pay for the court reporter. The costs of the court reporter
shall be borne equally by the parties.
9.3 The arbitrator shall be required to be determine in all
issues in accordance with existing case law and the statutory laws of the State
of California. The rules of evidence applicable to proceedings at law in the
State of California will be applicable to the reference proceeding. The
arbitrator shall be empowered to enter equitable as well as legal relief, to
provide all temporary and/or provisional remedies and to enter equitable orders
that will be binding upon the parties. The arbitrator shall issue a single
judgement at the close of the proceeding which shall dispose of all of the
claims of the parties that are the subject of the proceeding. The parties hereto
expressly reserve the right to contest or appeal from the final judgment or any
appealable order or appealable judgement entered by the arbitrator. The parties
hereto expressly reserve the right to findings of fact, conclusions of law, a
written statement of decision, and the right to move for a new trial or a
different judgment, which new trial, if granted, is also to be a proceeding
governed under this provision.
10. Binding Agreement. This Agreement shall inure to the benefit of and
shall be binding upon Employer, its successors and assigns.
11. Captions. The Section herein captions are inserted only as a matter
of convenience and reference and in no way define, limit or describe the scope
of this Agreement or the intent of any provisions hereof.
12. Entire Agreement. This Agreement contains the entire agreement of
the parties relating to the subject matter hereof, and the parties hereto have
made no agreements, representations or warranties relating to the subject matter
of this Agreement that are not set forth otherwise herein. This Agreement
supersedes any and all prior agreements, written or oral, with Employer. Any
such prior agreements are hereby terminated and of no further effect and
Employee by the execution hereof agrees that any compensation provided for under
any such prior agreement(s) is specifically superseded and replaced by the
provision of this Agreement. No modification of this Agreement shall be valid
unless made in writing and signed by the parties hereto and unless such writing
is made by an executive officer of Employer. The parties hereto agree that in no
event shall an oral modification of this Agreement be enforceable or valid.
<PAGE>
13. Governing Law. This Agreement is and shall be governed and
construed in accordance with the laws of the State of California.
14. Notice. All notices and other communications under this Agreement
shall be in writing (including, without limitation, telegraphic, telex, telecopy
or cable communication) and mailed, telegraphed, telexed, telecopied, cabled or
delivered by hand or by a nationally recognized courier service guaranteeing
overnight delivery to a party at the following address (or to such other address
as such party may have specified by notice given to the other party pursuant to
this provision):
If to Employer:
ICI Funding Corporation
20371 Irvine Avenue, Suite 104
Santa Ana Heights, California 92707
Telephone: (714) 556-0122
Facsimile: (714) 438-2150
Attention: Richard J. Johnson
Chief Financial Officer
With a copy to:
Freshman, Marantz, Orlanski, Cooper & Klein
9100 Wilshire Boulevard
Eighth Floor-East Tower
Beverly Hills, CA 90212
Telephone: (310) 273-1870
Facsimile: (310) 274-8293
Attention: Thomas J. Poletti, Esq.
If to Employee:
------------------------------
c/o ICI Funding Corporation
20371 Irvine Avenue, Suite 104
Santa Ana Heights, California 92707
Telephone: (714) 556-0122
Facsimile: (714) 438-2150
15. Attorney's Fees. In the event that any party shall bring an action
or proceeding in connection with the performance, breach or interpretation
hereof, then the prevailing party in such action as determined by the court or
other body having jurisdiction shall be entitled to recover from the losing
party in such action, as determined by the court or other body having
jurisdiction, all reasonable costs and expense of litigation or arbitration,
including reasonable attorney's fees, court costs, costs of investigation and
other costs reasonably related to such proceeding.
<PAGE>
IN WITNESS WHEREOF, this Agreement is executed as of the day and year
first above written.
"EMPLOYER"
ICI FUNDING CORPORATION,
a California corporation
By:________________________
Name:
Title:
"EMPLOYEE"
---------------------------
<PAGE>
ATTACHMENT A
EMPLOYER AFFILIATES AND/OR RELATED ENTITIES
Employee acknowledges and understands that Employee may be requested by
Employer to devote some or all of Employee's time and effort during the term of
employment pursuant to this Agreement to the businesses of Employer's affiliates
and/or related entities pursuant to certain agreements between and among
Employer and such affiliates and/or related entities. Said affiliates or related
entities include the following:
Imperial Credit Mortgage Holdings, Inc.
Imperial Commercial Capital Corporation
IMH Commercial Holdings, Inc.
RAI Advisors, LLC
Employees further understands and acknowledges that, pursuant to this
Agreement, Employee may be directed by Employer to provide services to
additional real estate investment trusts or other entities which Employer
establishes or with which Employer affiliates or becomes related and for which
there exists an agreement with Employer or any of the above entities to provide
such services.
Employee understands and acknowledges that Employee's obligations under
the Agreement, including, but not limited to, Employee's duties under Sections 4
and 5 thereof, shall apply and extend to Employee's knowledge of the business of
Employer's affiliates and/or related entities and any Trade Secret or other
confidential or proprietary information relating to same.
Acknowledged and Agreed:
Date: August __, 1997
<PAGE>
ATTACHMENT B
BONUS SCHEDULE
Employee:
Item 1: Annual Car Allowance:
Item 2: Executive Bonus Compensation
<PAGE>
Exhibit 10.8(a)
LIST OF EMPLOYEES AND TERMS
The for of Amended and Restated Employment Agreement has been entered
into by and between ICI Funding Corporation and the following officers, each an
"Employee," with the terms for each as set forth below:
1. Joseph R. Tomkinson
Position: Chief Executive Officer
Salary: $300,000
Bonus Schedule:
Item 1: Monthly Car Allowance: $1,200.00
Item 2: Executive Bonus Compensation
Employee will be paid a quarterly bonus equal to the aggregate dividend
such person would have received from Imperial Credit Mortgage Holdings,
Inc. ("IMH") on 95,000 shares of Common Stock underlying the
unexercised stock options held by Employee which were outstanding as of
November 20, 1995 and on the date of the payment of such bonus,
provided however that (1) no such bonus will be paid in calendar 1995,
(2) quarterly bonuses will be paid for each of the first three quarters
of calendar 1996 only if the dividend that would be payable IMH on
shares of its Common Stock for the subject quarter after payment of all
such quarterly bonuses equal or exceeds ten percent (10%) (on an
annualized basis) of $13.00 (3) quarterly bonuses will be paid for the
next four calendar quarters thereafter only if the dividend that would
be payable by IMH on shares of its Common Stock for the subject quarter
after payment of all such quarterly bonuses equals or exceeds fifteen
percent (15%) (on an annualized basis) of $13.00 and (4) quarterly
bonuses will be paid for each calendar quarter thereafter, if the
dividend that would be payable by IMH on shares of its Common Stock for
the subject quarter equals or exceeds such level as determined by the
majority of the Unaffiliated Directors of IMH. Employee is not required
to refund any portion of such bonuses previously earned regardless of
the level of dividends in subsequent quarters.
Employee's quarterly bonus will also include an amount equal to the
aggregate dividend such person would have received from IMH on 50,000
shares of Common Stock underlying unexercised stock options held by
Employee as of the date of grant and on the date of the payment of such
bonus, provided however, that quarterly bonuses will be paid only if
the dividend that would be payable by IMH on shares of its Common Stock
for the subject quarter after payment of all such quarterly bonuses
equals or exceeds ten percent (10%) (on an annualized basis) of $22.00.
Employee is not required to refund any portion of such bonuses
previously earned regardless of the level of dividends in subsequent
quarters.
Item 3: Quarterly Production Incentives
<PAGE>
Employee is entitled to quarterly incentive bonuses based upon
performance and profitability goals as established by the Compensation
Committee and the Chief Executive Officer. A total of three (3) basis
points on Employer's total mortgage loan acquisitions will be set aside
as payment for the quarterly incentive bonuses. Of the total quarterly
incentive bonus, Employee will be eligible to participate in fifty
percent (50%) of the total bonus pool to be paid on the 15th day
following each calendar quarter. However, in no event shall such
allocated quarterly incentive bonus in any calendar year exceed on a
calendar basis Employee's annual base compensation.
2. William S. Ashmore
Position: President
Salary: $225,000
Bonus Schedule:
Item 1: Monthly Car Allowance: $500.00
Item 2: Executive Bonus Compensation
Employee will be paid a quarterly bonus equal to the aggregate dividend
such person would have received from Imperial Credit Mortgage Holdings,
Inc. ("IMH") on 50,000 shares of Common Stock underlying the
unexercised stock options held by Employee which were outstanding as of
November 20, 1995 and on the date of the payment of such bonus,
provided however that (1) no such bonus will be paid in calendar 1995,
(2) quarterly bonuses will be paid for each of the first three quarters
of calendar 1996 only if the dividend that would be payable by IMH on
shares of its Common Stock for the subject quarter after payment of all
such quarterly bonuses equal or exceeds ten percent (10%) (on an
annualized basis) of $13.00, (3) quarterly bonuses will be paid for the
next four calendar quarters thereafter only if the dividend that would
be payable by IMH on shares of its Common Stock for the subject quarter
after payment of all such quarterly bonuses equals or exceeds fifteen
percent (15%) (on an annualized basis) of $13.00 and (4) quarterly
bonuses will be paid for each calendar quarter thereafter, if the
dividend that would be payable by IMH on shares of its Common Stock for
the subject quarter equals or exceeds such level as determined by the
majority of the Unaffiliated Directors of IMH. Employee is not required
to refund any portion of such bonuses previously earned regardless of
the level of dividends in subsequent quarters.
Employee's quarterly bonus will also include an amount equal to the
aggregate dividend such person would have received from IMH on 25,000
shares of Common Stock underlying unexercised stock options held by
Employee as of the date of grant and on the date of the payment of such
bonus, provided however, that quarterly bonuses will be paid only if
the dividend that would be payable by IMH on shares of its Common Stock
for the subject quarter after payment of all such quarterly bonuses
equals or exceeds ten percent (10%) (on an annualized basis) of $22.00.
Employee is not required to refund any portion of such bonuses
previously earned regardless of the level of dividends in subsequent
quarters.
<PAGE>
Item 3: Quarterly Production Incentives
Employee is entitled to quarterly incentive bonuses based upon
performance and profitability goals as established by the Compensation
Committee and the Chief Executive Officer. A total of three (3) basis
points on the Employer's total mortgage loan acquisitions will be set
aside as payment for the quarterly incentive bonuses. Of the total
quarterly incentive bonus, Employee will be eligible to participate in
twenty percent (20%) of the total bonus pool to be paid on the 15th day
following each calendar quarter. However, in no event shall such
allocated quarterly incentive bonus in any calendar year exceed on a
calendar basis Employee's annual base compensation.
3. Richard J. Johnson
Position: Senior Vice President, Chief Financial Officer and Secretary
Salary: $112,500
Bonus Schedule:
Item 1: Monthly Car Allowance: $500.00
Item 2: Executive Bonus Compensation
Employee will be paid a quarterly bonus equal to the aggregate dividend
such person would have received from Imperial Credit Mortgage Holdings,
Inc. ("IMH") on 25,000 shares of Common Stock underlying the
unexercised stock options held by Employee which were outstanding as of
November 20, 1995 and on the date of the payment of such bonus,
provided however that (1) no such bonus will be paid in calendar 1995,
(2) quarterly bonuses will be paid for each of the first three quarters
of calendar 1996 only if the dividend that would be payable by IMH on
shares of its Common Stock for the subject quarter after payment of all
such quarterly bonuses equal or exceeds ten percent (10%) (on an
annualized basis) of $13.00, (3) quarterly bonuses will be paid for the
next four calendar quarters thereafter only if the dividend that would
be payable by IMH on shares of its Common Stock for the subject quarter
after payment of all such quarterly bonuses equals or exceeds fifteen
percent (15%) (on an annualized basis) of $13.00 and (4) quarterly
bonuses will be paid for each calendar quarter thereafter, if the
dividend that would be payable by IMH on shares of its Common Stock for
the subject quarter equals or exceeds such level as determined by the
majority of the Unaffiliated Directors of IMH. Employee is not required
to refund any portion of such bonuses previously earned regardless of
the level of dividends in subsequent quarters.
Employee's quarterly bonus will also include an amount equal to the
aggregate dividend such person would have received from IMH on 10,000
shares of Common Stock underlying unexercised stock options held by
Employee as of the date of grant and on the date of the payment of such
bonus, provided however, that quarterly bonuses will be paid only if
the dividend that would be payable by IMH on shares of its Common Stock
for the subject quarter after payment of all such quarterly bonuses
equals or exceeds ten percent (10%) (on an annualized basis) of $22.00.
Employee is not required to refund any portion of such bonuses
previously earned regardless of the level of dividends in subsequent
quarters.
<PAGE>
4. Mary C. Glass-Schannault
Position: Senior Vice President, Structured Transactions Manager
Salary: $92,930
Bonus Schedule:
Item 1: Annual Car Allowance: $5,000
Item 2: Executive Bonus Compensation
Employee will be paid a quarterly bonus equal to the aggregate dividend
such person would have received from Imperial Credit Mortgage Holdings,
Inc. ("IMH") on 25,000 shares of Common Stock underlying the
unexercised stock options held by Employee which were outstanding as of
the date of November 20, 1995 and on the date of the payment of such
bonus, provided however that (1) no such bonus will be paid in calendar
1995, (2) quarterly bonuses will be paid for each of the first three
quarters of calendar 1996 only if the dividend that would be payable by
IMH on shares of its Common Stock for the subject quarter after payment
of all such quarterly bonuses equal or exceeds ten percent (10%) (on an
annualized basis) of $13.00, (3) quarterly bonuses will be paid for the
next four calendar quarters thereafter only if the dividend that would
be payable by IMH on shares of its Common Stock for the subject quarter
after payment of all such quarterly bonuses equals or exceeds fifteen
percent (15%) (on an annualized basis) of the $13.00 and (4) quarterly
bonuses will be paid for each calendar quarter thereafter, if the
dividend that would be payable by IMH on shares of its Common Stock for
the subject quarter equals or exceeds such level as determined by the
majority of the Unaffiliated Directors of IMH. Employee is not required
to refund any portion of such bonuses previously earned regardless of
the level of dividends in subsequent quarters.
Employee's quarterly bonus will also include an amount equal to the
aggregate dividend such person would have received from IMH on 5,000
shares of Common Stock underlying unexercised stock options held by
Employee as of the date of grant and on the date of the payment of such
bonus, provided however, that quarterly bonuses will be paid only if
the dividend that would be payable by IMH on shares of its Common Stock
for the subject quarter after payment of all such quarterly bonuses
equals or exceeds ten percent (10%) (on an annualized basis) of $22.00.
Employee is not required to refund any portion of such bonuses
previously earned regardless of the level of dividends in subsequent
quarters.
Furthermore, Employee will also receive a quarterly bonus of an
aggregate of up to a maximum of $14,700 based on performance and goals
set by the executive management and a minimum annual return of IMH of
the Ten Year Treasury plus 2.0%.
<PAGE>
Exhibit 10.16
REAL ESTATE PURCHASE, SALE
AND ESCROW AGREEMENT
by and between
TW/BRP DOVE, LLC
and
IMH/ICH DOVE STREET, LLC
Dated as of August 25, 1997
for
Bank of California Building
1401 Dove Street
Newport Beach, California
<PAGE>
REAL ESTATE PURCHASE, SALE AND ESCROW AGREEMENT
Summary Statement
This Summary Statement is attached to and made in part of that certain Real
Estate Purchase, Sale and Escrow Agreement dated as of the 25th day of August,
1997 by and between the Seller and Purchaser referenced below.
1. DATE OF AGREEMENT: August 25, 1997
2. SELLER: TW/BRP Dove, LLC, a Delaware limited liability company
3. PURCHASER: IMH/ICH Dove Street, LLC, a California limited liability
company
4. PROPERTY DESCRIPTION:
a) Address: 1401 Dove Street, Newport Beach, California.
b) Nature of Improvements: 6-Story Office Building on 3,596
Acre Site
c) Rentable Square Footage: Approximately 73,791
5. PURCHASE PRICE: As provided below ($7,800,000 plus costs)
6. CLOSING DATE: August 27, 1997
7. TITLE AND ESCROW COMPANY: Commonwealth Land Title Insurance Company
<PAGE>
F:\CASES\557\5221574\DOCS\MISC\FORM10QA.003
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE, SALE AND ESCROW AGREEMENT ("Agreement") is
made and entered into as of this 25th day of August, 1997 by and between TW/BRP
DOVE, LLC, a Delaware limited liability company ("Seller"), and IMH/ICH DOVE
STREET, LLC, a California limited liability company ("Purchaser").
RECITALS
A. Ken Development Company ("Original Seller") and Transwestern
Investment Company, LLC ("Original Purchaser") have entered into that certain
Real Estate Purchase and Sale Agreement dated May 30, 1997 ("Sale Agreement")
providing for the sale by Original Seller of property and improvements commonly
known as 1401 Dove Street, Newport Beach, California (the "Property") to
Original Purchaser or its assignee.
B. Original Seller, Original Purchaser and American Investors Escrow,
Inc. ("American") have entered into an Escrow Agreement dated June 13, 1997 (the
"Closing Escrow") to provide for (1) the holding and disposition of the earnest
money under the Sale Agreement, and (2) the closing of the transaction
contemplated by the Sale Agreement.
C. Original Purchaser has assigned all of its right, title and
interest in the Sale Agreement and the Closing Escrow to Seller.
D. Concurrently with Seller's acquisition of the Property, Purchaser
desires to purchase the Property from Seller in accordance with the terms
hereof.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. AGREEMENT FOR PURCHASE AND SALE. Seller agrees to sell, and Purchaser
agrees to purchase, subject to the terms and conditions contained herein,
the Property, together with:
(a) (i) all of Seller's right, title and
interest in and to all rights of
way, tenements, hereditaments,
easements, rights, interests,
claims, minerals and mineral rights,
water and water rights, utility
capacity and appurtenances, if any,
in any way belonging or appertaining
to the Property and (ii) all of
Seller's right, title and interest,
if any, in and to all adjoining
streets, alleys, private roads,
parking areas, curbs, curb cuts,
sidewalks, landscaping, signage,
sewers and public ways, if not part
of the Property (collectively, the
"Appurtenant Rights"); and
<PAGE>
(b) all of Seller's right, title and
interest in and to any equipment,
machinery and property which is
altered to the Property so as to
constitute fixtures under California
law ("Fixtures"), including without
limitation, all hearing, lighting ,
air conditioning, ventilating,
plumbing, electrical or other
mechanical equipment and other
equipment and personal property at
the Property (collectively, the
"Personal Property"); and
<PAGE>
(c) all of Seller's right, title and
interest as landlord in and to all
leases, tenancies and rental or
occupancy agreements granting
possessory rights in, on or covering
the Property, together with all
modifications, extensions,
amendments and guarantees thereof,
and security deposits with respect
thereto (collectively, the
"Leases"); and
(d) to the extent assignable, all of
Seller's right, title and interest
in and to the contracts, agreements,
guarantees, warranties and
indemnities, written or oral,
affecting the ownership, operation,
management and maintenance of the
Property, Appurtenant Rights,
Fixtures, Personal Property and
Leases (collectively, the
"Contracts"); and
(e) to the extent assignable, all of
Seller's right, title and interest
in and to all (i) plans, models,
drawings, specifications,
blueprints, surveys, engineering
reports, environmental reports and
other technical descriptions or
materials relating in any way to the
Property, Appurtenant Rights,
Personal Property, Fixtures, Leases
or Contracts, and (ii) licenses,
franchises, certificates, occupancy
and use certificates, permits,
authorizations, consents, variances,
waivers, approvals and the like from
any federal, state, county,
municipal or other governmental or
quasi-governmental body, agency,
department, board, commission,
bureau or other entity or
instrumentality affecting the
ownership, operation or maintenance
of the Property (collectively, the
"Licenses").
The Property, Appurtenant Rights, Personal Property, Fixtures, Leases,
Contracts and Licenses and other property described above are collectively
referred to herein as the "Property."
2. PURCHASE PRICE. The purchase price for the Property shall be the
aggregate amount (the "Purchase Price") equal to the sum of $5,848,177.21 (the
"Closing Amount"), (b) $1,850,000.00 (the "Member Amount") and (c) the amount
required to be paid by Purchaser to comply with the terms of this Agreement,
including, without limitation, all premiums for title insurance, the documentary
transfer taxes, escrow charges, recording charges and other amounts referenced
in Section 6 below (the "Second Closing Amount"). The Purchase Price shall be
deposited with Commonwealth Land Title Company ("Escrow Holder") by wire
transfer pursuant to the wire transfer instructions as shown on Schedule 1
attached hereto prior to 5 p.m. (California time) on August 26, 1997.
<PAGE>
3. ESCROW; CLOSING CONDITIONS.
3.1 Escrow. Upon the execution of this Agreement by Purchaser
and Seller, and the acceptance of this Agreement by Escrow Holder in writing,
this Agreement shall constitute the joint escrow instructions of Purchaser and
Seller to Escrow Holder to open an escrow ("Escrow") for the consummation of the
sale of the Property to Purchaser pursuant to the terms of this Agreement. Upon
the Close of Escrow, Escrow Holder shall pay any sum owned to Seller with
immediately available federal funds.
3.2 Closing Date. The Escrow shall close ("Close of
Escrow") on August 27, 1997.
<PAGE>
3.3 Conveyance. On the Closing Date, Seller shall transfer and
convey title to the Property to Purchaser as follows:
(a) delivering to Escrow Holder a grant
deed ("Deed"), subject only to the
exceptions as described on Exhibit A
attached hereto (the "Permitted
Exceptions"), executed by Seller,
that conveys the simple title to the
Property, Fixtures and Appurtenant
Rights to Purchaser;
(b) delivering to Escrow Holder a bill
of sale, executed by Seller, that
transfers the Personal Property
to Purchaser;
(c) delivering to Escrow Holder, an
assignment and assumption, executed
by Seller and Purchaser, that
transfers all of Seller's right,
title, and interest in and to the
Contracts, the Licenses, and the
Leases, to Purchaser (the
"Assignment and Assumption").
The foregoing documents and instruments are collectively referred to herein as
the "Conveyance Documents."
4. REPRESENTATIONS AND WARRANTIES.
(a) Seller represents and warrants to
Purchaser, as of the date hereof and
again on the Closing Date, that
Seller is dully organized, validly
existing and in good standing under
the laws of the State of California.
Seller has all necessary power and
authority to enter into this
Agreement and to consummate all of
the transactions contemplated
herein. The individuals executing
this Agreement on behalf of Seller
are duly authorized to execute,
deliver and perform this Agreement
on behalf of Seller and to bind
Seller according to its terms. This
Agreement and all documents to be
executed by Seller and delivered to
Purchaser hereunder (A) are and will
be the legal, valid and binding
obligations of Seller, enforceable
in accordance with their terms, (B)
do not or will not contravene any
provision of Seller's organizational
documents or any existing laws and
regulations applicable to Seller or
the Property and (C) will not
conflict with or result in a
violation of any agreement,
instrument, order, writ, judgment or
decree to which Seller is a party or
is subject or which governs the
Property;
<PAGE>
(b) Purchaser represents and warrants to
Seller, now and again on the Closing
Date that: (i) Purchaser has all
necessary power and authority to
enter into this Agreement and to
consummate all the transactions
contemplated herein, (ii) the
individuals executing this Agreement
on behalf of Purchaser are duly
authorized to execute, deliver and
perform this Agreement on behalf of
Purchaser and to bind Purchaser
according to its terms, and (iii)
this Agreement and all documents to
be executed by Purchaser and
delivered to Seller hereunder (A)
are and will be the legal, valid and
binding obligations or Purchaser,
enforceable in accordance with their
terms, (B) do not or will not
contravene any provision of
Purchaser's organizational documents
or any existing laws and regulations
applicable to Purchaser and (C) will
not conflict with or result in a
violation of any agreement,
instrument order, writ, judgment or
decree to which Purchaser is a party
or is subject.
(c) All of the representations and
warranties of Seller and Purchaser
contained in this Section 4 are
material, none shall merge into the
deed herein provided for and all
shall survive the Closing Date or
termination of this Agreement for a
period of one (1) year.
<PAGE>
5. DELIVERY OF DOCUMENTS.
(a) On or before August 26, 1997, Seller
shall deliver the following
documents (the "Closing Documents")
to Escrow Agent:
(i) the Conveyance Documents executed by Seller;
(ii) Seller's counterpart of closing and
proration statement, executed by Seller;
(iii) a certification of nonforeign statue satisfying
Section 1445 of the Internal Revenue Code, executed by Seller;
(iv) evidence of Seller's existence and authority to
perform its obligations under this Agreement, in form and substance
reasonably satisfactory to Purchaser and Title Company;
(v) a certified copy of the resolutions or
declarations of Seller or the partners or Seller, as applicable,
authorizing the transaction contemplated by this Agreement or other
satisfactory evidence of authorization.
(b) On or before August 26, 1997, Purchaser shall deliver
the following to Escrow Agent:
(i) counterparts of the Assignment and Assumption,
executed by Purchaser or its assignee;
(ii) counterparts of the closing and petition
statement, executed by Purchaser or its assignee;
(iii) the Purchaser Price; and
(iv) such other documents, instruments or agreements
as may be reasonably requested by (A) Seller, in order to consummate
this Agreement or (B) Title Company or the Escrow Holder, in order to
issue the Title Policy pursuant to the terms hereof, and to otherwise
consummate the Closing.
<PAGE>
6. DISBURSEMENT OF ESCROW. Provided that (a) each of the deposits required
under Section 5 hereof have been made, (b) Escrow Holder is prepared to insure
title in the Property in the name of Purchaser subject only to the Permitted
Exceptions, and (c) all conditions in the Closing Escrow have been satisfied and
the Closing Escrow is prepared to disburse, then Escrow Holder shall (i)
transmit the Members Amount to Seller pursuant to the instructions set forth on
Schedule 2 attached hereto, (ii) apply the Closing Amount to close the Closing
Escrow, (iii) pay the closing costs out to the Second Closing Amount, (iv)
record the Deed, (v) deliver the Bill of Sale and Assignment to Purchaser, (vi)
deliver counterparts of the Assignment and Assumption and the closing and
proration statements to Purchaser and Seller, and (vii) deliver any remaining
funds to Purchaser.
7. CLOSING COSTS. Purchaser shall pay as regard to: (a) any stamp tax,
sales tax, documentary transfer tax or other tax imposed on the transfer of the
Property, (b) the cost of the ALTA Title policy, and the endorsements thereto
required under the terms of this Agreement, (c) all Escrow Holder's fees and (d)
all of Seller's closing, title, recording, proration and other costs under the
Sale Agreement.
8. POSSESSION. Possession of the Property shall be delivered to Purchaser
at Closing, free and clear of all liens and claims other than Permitted
Exceptions and the rights of the tenants.
9. BROKERS. Each party agrees to indemnify, defend and hold harmless the
other party, its successors, assigns and agents, from and against the payment of
any commission, compensation, loss, damages, costs and expenses (including
without limitation attorneys' fees and costs) incurred in connection with, or
arising out of, claims for any broker's, agent's or finder's fees of any person
claiming by or through such party. The obligations of Seller and Purchaser under
this Section 9 shall survive the Closing and the termination of this Agreement.
10. PROPERTY "AS IS".
9.1 No Side Agreements or Representations. No person acting on
behalf of Seller is authorized to make, and by execution hereof, Purchaser
acknowledges that no person has made any representation, agreement, statement,
warranty, guarantee or promise regarding the Property or the transaction
contemplated herein or the zoning, construction, physical condition or other
status of the Property except as may be expressly set forth in this Agreement.
No representation, warranty, agreement, statement, guarantee or promise, if any,
made by any person acting on behalf of Seller which is not contained in this
Agreement will be valid or binding on Seller.
<PAGE>
9.2 "AS IS" CONDITION. PURCHASER ACKNOWLEDGES AND AGREES THAT,
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (I) VALUE; (II) THE INCOME TO
BE DERIVED FROM THE PROPERTY; (III) THE SUITABILITY OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, INCLUDING THE
POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE PROPERTY; (IV) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY; (V) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF
REPAIR OF THE PROPERTY; (VI) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY,
INCLUDING WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (VII) THE COMPLIANCE
OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (VIII) THE MANNER
OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE
PROPERTY; (IX) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND
USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING, BUT NOT LIMITED
TO, TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF 1990, CALIFORNIA HEALTH
& SAFETY CODE, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL RESOURCE
CONSERVATION AND RECOVERY ACT, THE U.S. ENVIRONMENTAL PROTECTION AGENCY
REGULATIONS AT 40 C.F.R., PART 261. THE
<PAGE>
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980. AS
AMENDED, THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976, THE CLEAN WATER
ACT, THE SAFE DRINKING WATER ACT, THE HAZARDOUS MATERIALS TRANSPORTATION ACT,
THE TOXIC SUBSTANCE CONTROL ACT, AND REGULATIONS PROMULGATED UNDER ANY OF THE
FOREGOING; (X) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER OR
ADJACENT TO THE PROPERTY; (XI) THE CONTENT; (XII) THE CONFORMITY OF THE
IMPROVEMENTS TO ANY PLANS OR SPECIFICATIONS FOR THE PROPERTY, INCLUDING ANY
PLANS AND SPECIFICATIONS THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PURCHASE;
(XIII) THE CONFORMITY OF THE PROPERTY TO PAST, CURRENT OR FUTURE APPLICABLE
ZONING OR BUILDING REQUIREMENTS; (XIV) DEFICIENCY OF ANY UNDERSCORING; (XV)
DEFICIENCY OF ANY DRAINAGE; (XVI) THE FACT THAT ALL OR A PORTION OF THE PROPERTY
MAY BE LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE; (XVII) THE EXISTENCE OF
VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS AFFECTING THE PROPERTY; OR
(XVIII) WITH RESPECT TO ANY OTHER MATTER, PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY AND REVIEW
INFORMATION AND DOCUMENTATION AFFECTING THE PROPERTY, PURCHASER IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND REVIEW OF SUCH INFORMATION
AND DOCUMENTATION, AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY
SELLER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION MADE
AVAILABLE TO PURCHASER OR PROVIDED OR TO BE PROVIDED BY OR ON BEHALF OF SELLER
WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT
SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF
SUCH INFORMATION. PURCHASER AGREES TO FULLY AND IRREVOCABLY RELEASE ALL SUCH
SOURCES OF INFORMATION AND PREPARERS OF INFORMATION AND DOCUMENTATION AFFECTING
THE PROPERTY WHICH WERE RETAINED BY SELLER FROM ANY AND ALL CLAIMS THAT THEY MAY
NOW HAVE OR HEREAFTER ACQUIRE AGAINST SUCH SOURCES AND PREPARERS OF INFORMATION
FOR ANY COSTS, LOSS, LIABILITY, DAMAGE, EXPENSES, DEMAND, ACTION OR CAUSE OF
ACTION ARISING FROM SUCH INFORMATION OR DOCUMENTATION. SELLER IS NOT LIABLE OR
BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY
ANY REAL ESTATE BROKER AGENT. EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE
SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON A "AS IS"CONDITION AND
BASIS WITH ALL FAULTS, AND THAT SELLER HAS NO OBLIGATIONS TO MAKE REPAIRS,
REPLACEMENTS OR IMPROVEMENTS EXCEPT AS MAY OTHERWISE BE EXPRESSLY STATED HEREIN.
PURCHASER REPRESENTS, WARRANTS AND COVENANTS TO SELLER THAT, EXCEPT FOR SELLER'S
EXPRESS REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS AGREEMENT, PURCHASER IS
RELYING SOLELY UPON PURCHASER'S OWN INVESTIGATION OF THE PROPERTY.
11. MISCELLANEOUS.
(a) Time is of the essence of each provision of this Agreement.
(b) This Agreement and all provisions thereof shall extend to, be obligatory
upon and inure to the benefit of the respective heirs, legatees, successors
and assigns of the parties hereto.
(c) Except as provided herein, this Agreement contains the entire Agreement
between the parties relating to the transactions contemplated hereby.
(d) This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
(e) If any of the provisions of this Agreement or the application thereof to
any persons or circumstances shall, to any event, be deemed, invalid or
unenforceable, the remainder of this Agreement and the application of such
provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable shall not be affected thereby.
(f) This Agreement and any document or instrument executed pursuant hereto may
be executed in any number of counterparts, each of which shall be deemed an
original, but all of which, together, shall constitute one and the same
instrument.
(g) This Agreement shall not be construed more strictly against one party than
against the other merely by virtue of the fact that the Agreement may have
been prepared primarily by counsel for one of the parties, it being
recognized that both Purchaser and Seller have contributed substantially
and materially to the preparation of this Agreement.
<PAGE>
(h) The Exhibits hereto may be finalized, initialed by both parties and
inserted into this Agreement after this Agreement is fully executed and
prior to the Approval Date.
(i) The Summary Statement attached to this Agreement is hereby incorporated
herein and made a part hereof.
12. TERMINATION. In the event all escrow deposits have not been received by
Escrow Holder on or before 5:00 p.m. on August 26, 1997 or if Escrow Holder is
not prepared to disburse under the Closing Escrow before 5:00 p.m. on August 27,
1997, Escrow Holder is hereby authorized and directed to continue to comply with
this Agreement until it has received a written demand from any party hereto for
the return of the deposits made hereunder by said party. Upon receipt of such
demand, Escrow Holder is hereby authorized and directed to return to the party
making such demand the deposits made by such party without notice to any other
party and you may return all remaining deposits to the respective depositors
thereof. Upon such returns, this Agreement shall be null and void.
[Intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, Purchaser and Seller do hereby execute this
Agreement as of the date first written.
PURCHASER: SELLER:
IMH/ICH DOVE STREET, LLC, TW/BRP DOVE, LLC,
a California limited liability company a Delaware limited
liability company
By: ______________________________ By: ______________________
Name: ____________________________ Name: ____________________
Title: _____________________________ Title: __________________
Acceptance by Escrow Holder
Escrow Holder acknowledges receipt of the foregoing agreement and
accepts the instructions contained therein.
Dated: _____________________________
By: ______________________________
Name: ____________________________
Title: __________________________
<PAGE>
EXHIBIT A
At the date hereof Exceptions to coverage in addition to the printed exceptions
and exclusions in said policy form would be as follows:
A. General and special taxes, including any assessments collected with taxes, to
be levied for the fiscal year 1997-1998, which are a lien not yet payable.
B. General and special taxes for the fiscal year 1996-1997 have been paid.
Total: $40,608.00
First Installment: 20,304.00
Second Installment: 20,304.00
Homeowners' Exemption $ none
Code: 07 061
Parcel: 427 221 04
C. The lien of supplemental taxes, if any, assessed pursuant to the
provisions of Section 75, et seq. of the Revenue and Taxation Code
of the State of California.
1. Covenants, conditions and restrictions (deleting any restrictions indicating
any preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status or national origin) as set forth in the document.
Recorded: in book 9678 page 919, Official Records
Said covenants, conditions and restrictions provide that a violation thereof
shall not defeat or render invalid the lien of any mortgage or deed of trust
made in good faith and for value.
2. Covenants, conditions and restrictions (deleting any restrictions indicating
any preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status or national origin) as set forth in the document.
Recorded: in book 9993 page 475, Official Records
3. An easement for the purpose shown below and rights incidental thereto as set
forth in document.
Granted to: Southern California Edison Company
Purpose: Public Utilities
<PAGE>
Recorded: in book 10458 page 894, Official Records
Affects: a portion of said land described therein
<PAGE>
4. The following unrecorded leases were disclosed by an instrument
recorded September 21, 1989 as Instrument No. 89-506771, Official
Records: [Revised]
Tenant:
[Revised per current rent roll.]
5. An easement for the purpose shown below and rights incidental thereto as set
forth in document.
Granted to: Pacific Bell
Purpose: underground communication facilities
<PAGE>
Recorded: August 15, 1991 as Instrument No. 91-438055, Official
Records
Affects: said land
WE HEREBY AMEND ITEM 14 TO SHOW THE FOLLOWING:
14. Any rights, interests, or claims which may exist or arise by reason of the
following facts shown on a survey plat.
Entitled: 2 GRE 1001
Dated: June 18, 1997
Prepared by: Psomas & Associates
a) The fact that an electric pull box, an electric vault and electric
transformer and vault on a concrete pad exists on said land.
b) The fact that a trash enclosure located on land adjacent on the Northwest
encroaches onto said land by 0.5 feet.
WE HEREBY AMEND ITEM 1 TO SHOW THE FOLLOWING:
1. Covenants, conditions and restrictions (deleting any restrictions indicating
any preference, limitation or discrimination based on race, color, religion,
sex, handicap, familial status or national origin) as set forth in the document.
<PAGE>
Recorded: August 15, 1991 as Instrument No. 91-438055, Official Records
Affects: said land
PAYOFF INFORMATION
Note No. 1: AS OF JANUARY 1, 1990, CHAPTER 598, CALIFORNIA STATUTES OF 1989, (AB
512; INSURANCE CODE SECTION 12413.1) BECOMES EFFECTIVE. THE LAW REQUIRES THAT
ALL FUNDS BE DEPOSITED AND AVAILABLE FOR WITHDRAWAL BY THE TITLE ENTITY'S ESCROW
OR SUBESCROW ACCOUNT PRIOR TO DISBURSEMENT OF ANY FUNDS.
ONLY CASH OR WIRED FUNDS CAN BE GIVEN IMMEDIATE AVAILABILITY UPON DEPOSIT.
CASHIER'S CHECKS, TELLER'S CHECKS AND CERTIFIED CHECKS MAY BE AVAILABLE ONE
BUSINESS DAY AFTER DEPOSIT.
ALL OTHER FUNDS SUCH AS PERSONAL, CORPORATE OR PARTNERSHIP CHECKS AND DRAFTS MAY
CAUSE MATERIAL DELAYS IN DISBURSEMENT OF FUNDS ON THIS ORDER.
IN ORDER TO AVOID DELAYS, ALL FUNDING SHOULD BE WIRE TRANSFERRED. OUTGOING WIRE
TRANSFERS WILL NOT BE AUTHORIZED UNTIL CONFIRMATION OF THE RESPECTIVE INCOMING
WIRE TRANSFER OR AVAILABILITY OF DEPOSITED CHECKS.
WIRING INFORMATION FOR THIS OFFICE IS AS FOLLOWS:
Union Bank
500 South Main Street
Orange, California 92668
ABA No. 122000496
Account No. 9120008290
