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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 15, 1998
HELISYS, INC.
(Exact name of Registrant as specified in charter)
Delaware 0-27286 95-4552813
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
24015 Garnier Street, Torrance, California 90505
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (310) 891-0600
Not Applicable
(Former name or former address, if changed, since last report)
Page 1 of 24 Pages
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Item 2. Acquisition or Disposition of Assets
On July 15, 1998, the sale by Helisys, Inc. (the "Company") to Don Wilson
Development (the "Buyer"), of real property located at 24015 Garnier Street,
Torrance, California (the "Property"), was consummated for a purchase price of
Two Million Five Hundred Twenty-Five Thousand Dollars ($2,525,000) pursuant to a
Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate
dated March 27, 1998 (the "Purchase Agreement"), a copy of which is included
with this report as Exhibit 10.10. The Property is a 43,640 square foot
industrial building on 93,795 square feet of land, and is used by the Company
for business activities.
The Company entered into the Purchase Agreement based upon an analysis of
comparable sales transactions by the Company and the Company's broker, Grubb and
Ellis, which enabled the Company to determine that the offer from the Buyer was
favorable with respect to current and projected market conditions. The Buyer
did not have a preexisting material relationship with any of the Company, its
officers or directors.
On April 21, 1998, the Company and the Buyer executed an Addendum to the
Purchase Agreement whereby the Company secured a three (3) year lease of the
Property, effective on July 15, 1998, at a rate of $26,184 per month subject to
adjustment for inflation, with options to extend the lease term for two (2)
additional three (3) year periods.
Item 7. Financial Statements and Exhibits
(c) Exhibit 10.10. Purchase Agreement between Helisys, Inc. and Don Wilson
Development dated March 23, 1998.
Page 2 of 24 Pages
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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 hereunto duly authorized.
HELISYS, INC.
Date: July 30, 1998 By: /s/ Dave T. Okazaki
----------------------------------------
Dave T. Okazaki, Chief Financial Officer
Page 3 of 24 Pages
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EXHIBIT 10.10
STANDARD OFFER, AGREEMENT AND ESCROW
INSTRUCTIONS FOR PURCHASE OF REAL ESTATE
(Non-Residential)
American Industrial Real Estate Association
March 23, 1998
(Date for Reference Purposes)
1. Buyer.
1.1 Don Wilson Development or Assignee, (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 June 26, 1998 (the "Expected Closing Date")
to be held by Metropolitan Escrow (the "Escrow Holder") whose address is 1411
West 190th Street, Suite 125, Gardena, California 90249, Phone No. (310) 327-
0296, Facsimile No.__________ 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) that approximate 43,640
square foot industrial building on 93,795 square feet of land is located in the
City of Torrance, County of Los Angeles, State of California, is commonly known
by the street address of 24015 Garnier Street and is legally described as:
APN#7377-0080-019.
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 Chicago 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
sprinkler systems, security systems, carpets, window coverings, wall coverings,
and but excluding any personal property used by Seller in connection with its
business (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 Zones Act, to
disclose to a prospective purchaser
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of real property whether the property being purchased is located within a
delineated special studies zone (a zone that encompasses a potentially or
recently active trace of an earthquake fault that 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:
[X] (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) unreinforced 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) [X] meets the foregoing requirements, and Seller and Seller's
Broker are required to provide Buyer with a copy of the Booklet, Seller or
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 Weakness Disclosure Report" contained in the Booklet duly executed by
Seller. Within five (5) business days of Buyer's receipt of said Disclosure
Report, Buyer shall deliver a duly 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 $2,525,000.00, payable as follows:
<TABLE>
<C> <S> <C>
(a) Cash down payment, including the Deposit as defined $ 750,000
in paragraph 4.3 (or if an all cash transaction, the
Purchase Price):
(b) Amount of "New Loan" as defined in paragraph 5.1, $1,775,000
if any: ----------
Total Purchase Price: $2,525,000
==========
</TABLE>
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
of the Property subject to such Existing Deed of Trust, Buyer
agrees to pay transfer fees and costs of up to one and one-half
percent (1 1/2%) of the unpaid principal balance of the
applicable Existing Note.
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4. Deposits.
4.1 Buyer hereby delivers a check in the sum of $25,000.00, payable to
Metropolitan Escrow, to be (check applicable box) [_] forthwith deposited in the
payee's trust account [_] 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 interest forfeitures if the
applicable instrument is redeemed prior to its specified maturity. Buyer's
Federal Tax Identification Number is ____________________.
5. Financing Contingency.
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 $1,775,000.00 at a fixed interest rate not to exceed 7.5% per annum,
payable in equal monthly installments, including interest, amortized over a
period of not less than 25 years and all due in not less than 10 years, and upon
such other 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 90 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. THIS SECTION INTENTIONALLY OMITTED.
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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):
[_] __________________________ represents Seller exclusively ("Seller's Broker")
[_] ________________________ represents Buyer exclusively ("Buyer's Broker"); or
[X] Grubb & Ellis Company represents both Seller and Buyer ("Dual Agency").
(Also see Paragraph 26.)
(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 Buyer's 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.
8. Escrow and Closing.
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 any further escrow instructions restating or
amending this 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 any 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, or for non-
satisfaction and non-waiver of a
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Seller's contingency, as defined in paragraph 28, 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 Buyer's 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 Holder's 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 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
Holder's 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 Seller's request, and as a condition to the return of
Buyer's deposit, provided that Buyer is entitled to the deposit pursuant to the
terms of this Agreement, 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.
9.1 The Closing of this transaction is contingent upon the
satisfaction or waiver of the following contingencies:
(a) Disclosure. Buyer's receipt and written approval, within forty-
five (45) 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."
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(b) Physical Inspection. Buyer's written approval, within forty-five
(45) days following the later of the Date of Agreement or receipt by Buyer of
the Property Information Sheet, of an inspection by Buyer, at Buyer's expense,
of the physical aspects of the Property.
(c) Hazardous Substance Conditions Reports. Buyer's written approval,
within forty-five (45) 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 Buyer's 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 Property of a Hazardous
Substance that would require remediation and/or removal under applicable
Federal, state or local law. Seller shall use its best efforts to provide to
Buyer copies of any existing environmental reports (including, but not limited
to, Phase I reports) that Seller may have. Seller's performance of this request
shall not be a condition to the Closing nor shall any delay in the performance
of this request extend such forty-five (45) day period.
(d) Soil Inspection. Buyer's written approval, within forty-five (45)
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. Seller's performance of this request shall not be a condition to the
Closing nor shall any delay in the performance of this request extend such
forty-five (45) day period.
(e) Governmental Approvals. Buyer's receipt, within forty-five (45)
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. Buyer's failure to deliver to
Escrow Holder and Seller written notice terminating this Agreement prior to the
expiration of said forty-five (45) day period as a result of Buyer's failure to
obtain such approvals and permits shall be conclusively deemed to be Buyer's
waiver of this condition to Buyer's obligations under this Agreement.
(f) Condition of Title. Buyer's 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. Buyer's approval is to be given
within forty-five (45) days after receipt of said PTR and legible copies of all
Underlying Documents. The disapproval by 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 Seller's expense, to satisfy and remove such
disapproved monetary encumbrance at or before the Closing, provided that Seller
shall not be required to remove a lien to secure payment of real property taxes
and assessments, not delinquent
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nor required to remove the lien of supplemental taxes pursuant to Chapter 3.5
commencing with section 75 of the California Revenue and Taxation Code.
(g) Survey. Buyer's written approval within forty-five (45) 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 owner's 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 Buyer's
direction and expense. If Buyer has obtained a survey and approved the ALTA
title supplement, Buyer may elect within the period allowed for Buyer's approval
of a survey to have an ALTA extended coverage owner's form of title policy, in
which event Buyer shall pay any additional premium attributable thereto, and
Buyer shall pay the cost of any endorsements to the owner's form policy of title
insurance as reasonably requested by Buyer. Seller shall use its best efforts
to provide to Buyer copies of any existing surveys that Seller may have.
Seller's performance of this request shall not be a condition to the Closing nor
shall any delay in the performance of this request extend such forty-five (45)
day period.
(h) THIS SECTION INTENTIONALLY OMITTED.
(i) Other Agreements. Buyer's written approval, within ten (10) days
after receipt, 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) THIS SECTION INTENTIONALLY OMITTED.
(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 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
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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. Notwithstanding anything in
the Agreement to the contrary, the representations and warranties of Seller set
forth in paragraph 12.1 shall be deemed remade by Seller as of the Closing with
the same force and effect as if in fact made at that time subject to any
disclosures made in writing pursuant to the provisions set forth immediately
below. Buyer agrees that if, at any time prior to the Closing, it has
knowledge of any information which would require the qualification of any of
Seller's representations and warranties for such representation and warranty to
be true, it shall immediately notify Seller in writing of such information. If
Buyer has knowledge of the incorrectness of any representation and warranty made
by Seller in this Agreement and fails to so notify Seller prior to the Closing,
then such representation or warranty shall be deemed to be stricken from this
Agreement and shall be of no further force or effect. When the representations
and warranties set forth in Paragraph 12.1 are remade by Seller as of the
Closing, Seller shall have the right to qualify such representations and
warranties with any information it receives concerning such representations and
warranties after the Date of Agreement. Within seven (7) business days of the
date Seller has notified Buyer in writing that it will be necessary to
materially qualify any of the representations and warranties set forth in
Paragraph 12.1 when they are restated as of the Closing, Buyer must elect, by a
writing received by Seller and Escrow Holder within such two (2) day period, to
either (1) terminate this Agreement and the Escrow, in which event the Deposit
shall be returned to Buyer and neither party shall have any further obligations
or liabilities under this Agreement, except for the indemnity obligations of
Buyer contained in the Agreement which indemnities shall survive any such
termination, or (ii) proceed with the transaction contemplated by this
Agreement, in which event the representations and warranties set forth in
Paragraph 12.1 shall be qualified when remade on the Closing as provided above.
In the event that Seller does not receive such written notification from Buyer
within such two (2) day period indicating which election Buyer has decided to
make, then Buyer will be deemed to have elected to proceed with the transaction
contemplated by this Agreement, with the representations and warranties set
forth in Paragraph 12.1 qualified when remade as of the Closing.
(p) Broker's Fee. Payment at the Closing of such Broker's 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 Broker's 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, in
writing, and may be elsewhere herein referred to as "Buyer Contingencies."
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9.3 THIS SECTION INTENTIONALLY OMITTED.
9.4 If any Buyer's Contingency is not satisfied or if Buyer
disapproves any matter subject to its approval within the time period applicable
thereto ("Disapproved 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 Buyer's disapproval, as the case may be, to elect to
cure such Disapproved Item prior to the Expected Closing Date ("Seller's
Election"). Seller's failure to give to Buyer within said ten (10) day period,
written notice of Seller's commitment to cure such Disapproved Item on or before
the Expected Closing Date shall be conclusively presumed to be Seller's 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 Seller's Election to either accept
title to the Property subject to that Disapproved Item, or to terminate this
transaction. Buyer's failure to elect termination by written notice to Seller
within said ten (10) day period shall constitute Buyer's election to accept
title to the Property subject to that Disapproved Item without deduction or
offset. Unless expressly provided otherwise herein, Seller's 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 Seller's and Buyer's 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 this
transaction, whichever is later.
9.5 Buyer understands and agrees that until such time as all Buyer's
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 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(f)) owner's 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, to a lien to
secure payment of real property taxes and assessments, not delinquent, to the
lien of supplemental taxes pursuant to Chapter 3.5 commencing with Section 75 of
the California Revenue and Taxation Code
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(collectively, the "Approved Condition of Title"). 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, 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 Lessor's 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.
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
Buyer's escrow charges and other cash charges, if any, shall be deposited by
Buyer with Escrow Holder, by cashier's check drawn upon a local major baking
institution, federal funds wire transfer, or any other method acceptable to
Escrow Holder as immediately collectible funds, no later than 11:00 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
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improvements in the amount of the full replacement cost naming Seller as a
mortgage loss payee, and a real estate tax service contract (at Buyer's
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
Lessor's 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.
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.
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.
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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 Holder's charges and Seller shall pay the usual recording fees and
any required documentary transfer taxes. Seller shall pay the premium for a
standard coverage owner's or joint protection policy of title insurance.
12. Representation and Warranties of Seller and Disclaimer. The term
"Seller's actual knowledge," or similar phrases, as used in the Agreement shall
refer to a fact or circumstance within the present actual knowledge of Michael
Feygin as of the Date of Agreement, and it shall not be deemed to include any
fact or circumstance not presently known even if discoverable upon investigation
or inquiry, diligent or otherwise.
12.1 Seller's 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 Seller's obligations
hereunder.
(b) Maintenance During Escrow and Equipment Condition at
Closing. Except as otherwise provided in paragraph 9.1(l) 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 Substances/Storage 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 Buyer's written approval, which approval will not be unreasonably
withheld.
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(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) Mechanic's Liens. There are no unsatisfied mechanic's or
materialman'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.
(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, Seller's directors, officers, employees,
shareholders, affiliates, contractors, representatives and agents, and the
Property of and from any and all claims,
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liens, stop notices, liabilities, demands, losses, costs, expense (including
reasonable attorney's fees), damages or recoveries, including those for injury
to person or property, arising out of or relating to any Buyer's inspection of
the Property and such work or materials or the acts or omissions of Buyer, its
agents, contractors or employees in connection therewith.
15. Further Documents and Assurances.
15.1 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 attorneys' 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. THIS SECTION INTENTIONALLY OMITTED.
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.
20. Duration of Offer.
20.1 If this offer shall not be accepted by Seller on or before 5:00
P.M. according to the time standard applicable to the city of Torrance,
California on the date of Friday, March 27, 1998, it shall be deemed
automatically revoked.
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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 $__________ 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.
______________ _______________
Buyer Initials Seller Initials
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
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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.
______________ _______________
Buyer Initials Seller Initials
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.
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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 Seller's agent under a listing agreement
with the Seller acts as the agent for the Seller only. A Seller's 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: (i) Diligent exercise of reasonable
skill and care in performance of the agent's duties, (ii) a duty of honest and
fair dealing and good faith, (iii) 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 Buyer's consent,
agree to act as agent for the Buyer only. In these situations, the agent is not
the Seller's 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: (i) diligent exercise of reasonable
skill and care in performance of the agent's duties, (ii) a duty of honest and
fair dealing and good faith, (iii) 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: (i) a fiduciary duty of utmost care, integrity,
honesty and loyalty in the dealings with either Seller or the Buyer, (ii) 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 advice 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
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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.) Rider to Standard Offer, Agreement and Escrow Instructions for
the Purchase of Real Estate; California Sale/Lease Americans with Disabilities
Act, Hazardous Materials and Tax Disclosure.
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.
THIS FORM IS NOT FOR USE IN CONNECTION
WITH THE SALE OF RESIDENTIAL PROPERTY.
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 offers and agrees to buy the
property on the terms and conditions stated and acknowledges receipt of a copy
hereof.
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BROKER: BUYER:
DON WILSON DEVELOPMENT OR
ASSIGNEE
- -----------------------------------
By: Date: By: Date:
--------------- ------------ --------------- --------------------
Name Printed: Name Printed: Don Wilson
---------------------- ------------------------------
Title: Title:
----------------------------- -------------------------------------
Post Office Box 3188
- ----------------------------------- -------------------------------------------
Address Address
Torrance, California 90510
- ----------------------------------- -------------------------------------------
- ------------- ------------------ ------------- --------------------------
Telephone Facsimile No. Telephone Facsimile No.
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 ** % 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.
** Per separate agreement
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.
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<TABLE>
<S> <C>
BROKER: BUYER:
GRUBB & ELLIS COMPANY HELISYS
By: /s/ Jeff Smart Date: 3/27/98 By: /s/ Michael Feygin Date: 3/27/98
/s/ Bill Maher ------- --------------------- -------
--------------------- Name Printed: Michael Feygin
Name Printed: Jeff Smart/Bill Maher
Title: Senior Vice President/Senior Associate Title: President
Address: 19191 S. Vermont Avenue, Suite 600 Address: 24015 Garnier Street
Torrance, California 90502 Torrance, California 90502
Telephone: (310) 538-9620 Telephone: (310) 891-0600
Facsimile No.: (310) 329-7953 Facsimile No.:
</TABLE>
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ADDENDUM TO
STANDARD OFFER, AGREEMENT AND ESCROW INSTRUCTIONS
FOR THE PURCHASE OF REAL ESTATE
BY AND BETWEEN
HELISYS ("SELLER")
AND
DON WILSON DEVELOPMENT ("BUYER")
FOR THE PROPERTY LOCATED AT 24015 GARNIER STREET, TORRANCE, CALIFORNIA
- -------------------------------------------------------------------------------
28. The Closing of this transaction is contingent upon the satisfaction or
waiver of the following contingencies:
a. Lease. A fully executed A.I.R. Standard Industrial/Commercial
Lease ("Lease"), between Don Wilson Development, as Lessor, and Helisys, Inc.,
as Lessee, within sixty (60) days of the Date of Agreement, subject to the
following terms and conditions:
(1) Term: Three (3) years.
(2) Monthly Rent: $.60 per square foot per month NNN, or the
Modified Gross or Industrial Gross equivalent thereof.
(3) Rental Adjustments: Monthly Rent payable under the Lease
shall be adjusted at the beginning of the nineteenth (19th)
month ("Adjustment Date") in accordance with any changes in
the Consumer Price Index, provided that in no event shall
such increase be less than four percent (4%). For purposes of
computing such adjustments, the Base Month shall be the month
three (3) months prior to the Lease Commencement Date and the
Comparison Month shall be the month three (3) months prior to
the Adjustment Date. Said rental adjustments shall apply to
all option periods as well.
(4) Options to Extend: Lessee shall have the right to extend the
term for two (2) additional three (3) year periods under the
same terms and conditions as the original Lease, except the
amount of Monthly Rent. The Monthly Rent shall be the then
prevailing fair market rent, but in no event shall such rent
be less than the Monthly Rent at the thirty-sixth (36th)
month and the seventy-second (72nd) month.
(5) All other terms and conditions of the lease to be agreed upon
by Lessor and Lessee.
b. Buyer securing a tenant for the southern half of the Building at
terms satisfactory to the buyer at it's sole discretion prior to the Close of
Escrow.
29. Buyer Performance. The delivery of all documents and funds, and the
due performance by Buyer of each and every undertaking and agreement to be
performed by Buyer under this Agreement.
30. 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.
31. Buyer to approve, in writing all contingencies.
32. Seller and Buyer to share the cost of dividing the building on a 50/50
basis.
33. Thirty (30) days after the opening of Escrow, Buyer shall have the
right to place real estate signs on the property.
AGREED AND ACCEPTED AGREED AND ACCEPTED
THIS 21st DAY OF APRIL, 1998. THIS 21st DAY OF APRIL, 1998.
SELLER: HELISYS BUYER: DON WILSON
/s/ MICHAEL FEYGIN /s/ DON WILSON
BY: __________________________ BY: __________________________
Chief Executive Officer
ITS: __________________________ ITS: __________________________
