FORM 8-K - CURRENT REPORT
(As last amended in Rel. No. 34-36968, eff. August 13, 1992.)
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 8, 1999
CONSOLIDATED CAPITAL INSTUTIONAL PROPERTIES II
(Exact name of registrant as specified in its charter)
California 0-11723 94-2883067
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification
Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (864) 239-1000
N/A
(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS
Consolidated Capital Institutional Properties/2 (the "Partnership" or
"Registrant") was formed for the benefit of its limited partners to lend funds
to Consolidated Capital Equity Partners/2 ("CCEP/2"). The Partnership loaned
funds to CCEP/2 subject to a nonrecourse note with a participation interest (the
"Master Loan"). As of June 30, 1999, the Partnership's investment in the Master
Loan was approximately $79,537,000, less an allowance for impairment loss of
approximately $29,129,000, for a net balance of approximately $50,408,000.
On September 22, 1999 CCEP/2 sold Towne Center Plaza, one of its properties
located in Santa Ana, CA which secured the Master Loan, to an unaffiliated third
party for net sales proceeds of approximately $11,650,000 after payment of
closing costs. CCEP/2 realized a gain on sale of approximately $5,000,000. The
net proceeds from the sale will be paid to the Registrant as payment on the
Master Loan.
The Registrant is currently evaluating its cash needs to determine what portion
of the funds can be distributed to its partners in the near future.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
10.28 Purchase and Sale Contract between Registrant effective September 22,
1999.
SIGNATURE
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.
CONSOLIDATED CAPITAL PROPERTIES II
By: CONCAP EQUITIES, INC.
Its General Partner
By: /s/ Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date:
PURCHASE AND SALE CONTRACT
BETWEEN
CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P.
AS SELLER
AND
COLTON REAL ESTATE GROUP,
D/B/A THE COLTON COMPANY
AS PURCHASER
SANTA ANA, CALIFORNIA
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS 1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY 5
ARTICLE 3 PURCHASE PRICE & DEPOSIT 5
ARTICLE 4 FINANCING 6
ARTICLE 5 FEASIBILITY PERIOD 6
ARTICLE 6 TITLE 10
ARTICLE 7 CLOSING 14
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
22
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING 32
ARTICLE 10 BROKERAGE 34
ARTICLE 11 POSSESSION 35
ARTICLE 12 DEFAULTS AND REMEDIES 35
ARTICLE 13 RISK OF LOSS OR CASUALTY 36
ARTICLE 14 RATIFICATION 38
ARTICLE 15 EMINENT DOMAIN 38
ARTICLE 16 MISCELLANEOUS 38
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of
the _______ day of ________, 1999 (the "Effective Date") by and among
CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P., a California limited partnership,
having a principal address at c/o AIMCO, 1873 South Bellaire Street, Suite 1700,
Denver, Colorado 80222 ("Seller") and COLTON REAL ESTATE GROUP, d/b/a THE
COLTON COMPANY, a California corporation, having a principal address at 2301
Campus Drive, Suite 150, Irvine, California 92612 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to a parcel of real estate more particularly
described in Exhibit A attached hereto and made a part hereof located in Orange,
California on each of which improvements have been constructed.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date as defined in this Purchase Contract the Property will be conveyed
by grant deed to Purchaser;
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on the terms and
conditions set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract shall have the
meanings set forth in this Article 1 below.
1.1.1 "BUSINESS DAY" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the State of California.
1.1.2 "CLOSING" means the consummation of the purchase and sale and related
transactions contemplated by this Purchase Contract in accordance with the
terms and conditions of this Purchase Contract, including the recordation
of a grant deed in the official records of Orange County, California
conveying title to the real property to the Purchaser.
1.1.3 "CLOSING DATE" means the date on which date the Closing of the
conveyance of the Property is required to be held under the terms and
conditions of this Purchase Contract and on which date full payment of the
Purchase Price for the Property shall have been paid to and received by
Seller in immediately available U. S. funds.
1.1.4 "COMMERCIAL LEASE(S)" means the interest of Seller in and to all
leases, subleases and other occupancy agreements, whether or not of record,
which provide for the use or occupancy of space or facilities on or
relating to the Property, and all amendments and modifications thereto and
all guaranties thereof and which are in force as of the Opening Date for
the applicable Property.
1.1.5 "EXCLUDED PERMITS" means those Permits which, under applicable law,
are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.5, if any, attached hereto.
1.1.6 "FIXTURES AND TANGIBLE PERSONAL PROPERTY" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus,
appliances and other articles of personal property now located on the Land
or in the Improvements as of the date of this Purchase Contract and used or
usable in connection with any present or future occupation or operation of
all or any part of the Property. The term "Fixtures and Tangible Personal
Property" does not include (i) equipment leased by Seller and the interest
of Seller in any equipment provided to the Property for use, but not owned
or leased by Seller, or (ii) property owned or leased by Tenants and
guests, employees or other persons furnishing goods or services to the
Property or (iii) property and equipment owned by Seller, which in the
ordinary course of business of the Property is not used exclusively for the
business, operation or management of the Property or (iv) the property and
equipment, if any, expressly identified in Exhibit 1.1.6-A. A list of
Fixtures and Tangible Personal Property is attached hereto as Exhibit
1.1.6-B.
1.1.7 "IMPROVEMENTS" means all buildings and improvements located on the
Land taken "as is" containing approximately 163,355 gross square feet of
suburban office park.
1.1.8 "LAND" means all of that certain tract of land located in Orange
County, California commonly known as Town Center Plaza 1971 and 1901 East
4th Street, 515 North Cabrillo Park Drive, and 525 Cabrillo Park Drive,
Santa Ana, CA 97201, Santa Ana, California more particularly described in
Exhibit A attached hereto and made a part hereof and all rights, privileges
and appurtenances pertaining thereto.
1.1.9 "MAJOR TENANTS" means Ryder Truck Service, Children's Home Society,
Volunteer Center of Orange County, National Creditors and Benefit Equity
Plans.
1.1.10 "MISCELLANEOUS PROPERTY ASSETS" means all contract rights, leases,
concessions, warranties, plans, drawings, approvals, blueprints,
specifications, guarantees, names, trade names and other items of
intangible personal property relating to the ownership or operation of the
Property and owned by Seller, excluding, however, (i) receivables, (ii)
Property Contracts, (iii) Commercial Leases, (iv) Permits, (v) cash or
other funds, whether in petty cash or house "banks," or on deposit in bank
accounts or in transit for deposit, (vi) refunds, rebates or other claims,
or any interest thereon, for periods or events occurring prior to the
Closing Date, (vii) utility and similar deposits, (viii) insurance or other
prepaid items or (ix) books and records, except to the extent that Seller
receives a credit on the Closing Statement for any such item.
1.1.11 "PERMITS" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the matter
to which the applicable license or permit applies and owned by Seller or
used in or relating to the ownership, occupancy or operation of the
Property or any part thereof not subject to a Commercial Lease.
1.1.12 "PERMITTED EXCEPTIONS" means those exceptions or conditions permitted
to encumber the title to the Property in accordance with the provisions of
Section 6.2.
1.1.13 "PROPERTY" means the Land and Improvements described in the Recitals
and all rights of Seller relating to the Land and the Improvements,
including without limitation, any rights, title and interest of Seller, if
any, in and to (i) any strips and gores adjacent to the Land and any land
lying in the bed of any street, road, or avenue opened or proposed, in
front of or adjoining the Land, to the center line thereof; (ii) any unpaid
award for any taking by condemnation or any damage to the Property by
reason of a change of grade of any street or highway; (iii) all of the
easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible
Personal Property, the right, if any and only to the extent transferable,
of Seller issued to Property Contracts and Commercial Leases, Permits other
than Excluded Permits and the Miscellaneous Property Assets owned by Seller
which are located on the Property and used in its operation.
1.1.14 "PROPERTY CONTRACTS" means all purchase orders, maintenance, service,
or utility contracts and similar contracts, which relate to the ownership,
maintenance, construction or repair and/or operation of the Property and
which are not cancelable on 90 days' or shorter notice, except Commercial
Leases.
1.1.15 "PURCHASE CONTRACT" means this Purchase and Sale Purchase Contract by
and between Seller and Purchaser.
1.1.16 "PURCHASE PRICE" shall have the meaning ascribed thereto in Section
3.1.
1.1.17 "SURVEY" shall have the meaning ascribed thereto in Section 6.11.
1.1.18 "TENANT" means any person or entity entitled to occupy any portion of
the Property under a Commercial Lease.
1.1.19 "TITLE COMMITMENT" or "Title Commitments" shall have the meaning
ascribed thereto in Section 6.1.
1.1.20 "TITLE INSURER" shall have the meaning set forth in Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms
and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be
Eleven Million Six Hundred Fifty Thousand Dollars ($11,650,000.00), which
shall be paid by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Escrow Agent a deposit
in the sum of One Million Dollars ($1,000,000.00) in cash (such sum,
together with all interest that accrues thereon, the "Deposit"). Escrow
Agent shall, promptly after receipt of the Deposit, release the entire
Deposit to Seller, such amount being non-refundable, but applicable to the
Purchase Price; provided, however, that if Purchaser shall not have had an
opportunity to review a Phase I environmental assessment prior to the
Effective Date, Escrow shall not release the Deposit to Seller until the
earlier of the date Purchaser approves a Phase I or the date that is
fifteen (15) days after the Effective Date. Purchaser may only disapprove
the Phase I environmental report if the report discloses that there has
been a release in, on or under the Property of any Hazardous Substances as
defined in Section 8.1.1.12, which the Purchaser reasonably believes was in
violation of applicable laws.
3.1.2 Until such time as the Deposit is released to Seller as provided
above, Escrow Agent shall invest the Deposit in federally insured
interest-bearing bank accounts and all interest and income thereon shall
become part of the Deposit and shall be remitted to Seller as provided
above.
3.1.3 If the sale of the Property is not closed by the date fixed therefor
(or any extension date provided for by the mutual written consent of the
parties hereto) owing to failure of performance by Seller or failure of
satisfaction of a condition precedent to Purchaser's obligations, Purchaser
shall be entitled to the remedies set forth in ARTICLE 12 hereof. If the
sale of the Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of performance by Purchaser, the Deposit
shall be forfeited by Purchaser and the sum thereof shall go to Seller
forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in ARTICLE
12 below.
3.2. On the Closing Date Purchaser shall pay Seller the amount of Eleven Million
Six Hundred Fifty Thousand Dollars ($11,650,000.00), subject to credit and
adjustment as provided herein, in cash or by wire-transfer of current funds
pursuant to wire instructions provided by Seller.
ARTICLE 4
FINANCING
4.1 Purchaser's obligations under this Purchase Contract and the consummation
of the transactions contemplated by this Purchase Contract shall not be
contingent upon Purchaser obtaining financing.
ARTICLE 5
PURCHASER'S INSPECTION
5.1 Subject to the terms of Section 5.4 below, from and after the Effective
Date, Purchaser, and its agents, contractors, engineers, surveyors,
attorneys, and employees ("Consultants") shall have the right from time to
time to enter onto the Property:
5.1.1 To conduct and make any and all customary studies, tests, examinations
and inspections, or investigations of or concerning the Property (including
without limitation, engineering and feasibility studies, evaluation of
drainage and flood plain, soil tests for bearing capacity and percolation
and surveys, including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably desire
to confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the property for
Purchaser's intended use of the Property.
5.2 Within five (5) Business Days after the Effective Date, Seller, at its sole
cost and expense, shall (to the extent it has not already done so) deliver
(to the extent in Seller's possession or control) or make available to
Purchaser for review and/or photocopying, the following documents for the
Property: Commercial Leases, lease abstracts, and lease files, a current
rent roll and aging receivables report (for the current year and, if
reasonably available, the last three (3) calendar years), a current
operating report containing income and expenses for the current year and,
if reasonably available, the last three (3) prior years, existing
environmental and soils assessments, correspondence and reports, copies of
the property tax bills for the current and prior year, surveys, the most
recent preliminary title report or title insurance policy, pending leases,
lease proposals and letters of intent, all contracts and agreements
affecting the Property, including, without limitation, those pertaining to
service, labor, construction, management, maintenance, and brokerage,
copies of all documents regarding litigation, liens or threatened claims,
building reports, structural reports, and engineering data, and a list of
personal property existing in which Seller has an interest, and to the
extent not protected by legal privilege, all other documents, materials and
information in Seller's possession or control pertaining to the Property or
its condition (collectively, the "Property Documents").
The originals (and where originals are not available, copies) of all Property
Documents shall become the property of Purchaser upon Closing. Upon Closing,
Seller may retain copies of any Property Documents which Seller may make at
Seller's sole cost and expense.
5.2.1 During the first thirty (30) days after the Effective Date, Seller
shall, upon reasonable advance notice and at reasonable times, make
available to Purchaser for interviews regarding the Property, Seller's
personnel, agents and managers.
5.3 If this Purchase Contract terminates for any reason other than default by
Seller, Purchaser shall, within ten (10) days of such termination, deliver
to Seller copies of all feasibility studies, surveys, engineering reports
and all other information obtained by Purchaser with respect to the
Property, which requirement shall survive the termination of this Purchase
Contract; provided, however, that Purchaser shall not be required to
disclose or make available any such documents/information which (1) are
proprietary or are not permitted to be released without the consent of
third-parties (unless Seller obtains all required consents); (2) are
protected by any privilege including, without limitation, the attorney-
client privilege, or (3) are reasonably treated by Purchaser as
confidential. Seller hereby acknowledges and agrees that Purchaser makes
no representations or warranties as to the accuracy or completeness of the
documents and/or information disclosed to Seller pursuant to this Section
5.3.
5.4 Purchaser shall indemnify and hold Seller harmless for any actions taken by
Purchaser and its Consultants on the Property, provided, however, that
Purchaser shall have no liability to Seller for any costs, expenses or
liability associated with or resulting solely from (i) the discovery of any
existing conditions on the Property or (ii) Seller's gross negligence or
willful misconduct. Purchaser shall indemnify, defend (with attorneys
selected by Seller) and hold Seller harmless from any and all claims,
damages, costs and liability which may arise due to such entries, surveys,
tests, investigations and the like, provided, however, that Purchaser shall
have no liability to Seller for any costs, expenses or liability associated
with or resulting solely from (i) the discovery of any existing conditions
on the Property or (ii) Seller's gross negligence or willful misconduct.
Seller shall have the right, without limitation, to disapprove any and all
entries, surveys, tests, investigations and the like that in Seller's
reasonable judgment could result in any injury to the Property or breach of
any agreement, or expose Seller to any liability, costs, liens or
violations of applicable law, or otherwise adversely affect the Property or
Seller's interest therein. No consent by Seller to any such activity shall
be deemed to constitute a waiver by Seller or assumption of liability or
risk by Seller. Purchaser hereby agrees to restore the Property to the
same condition existing immediately prior to Purchaser's exercise of its
rights pursuant to this ARTICLE 5 at Purchaser's sole cost and expense.
Purchaser shall maintain casualty insurance and comprehensive public
liability insurance with broad form contractual and personal injury
liability endorsements with respect to the Property and Purchaser's
activities carried on therein, including a waiver of defenses of the
insurer based on the actions or inaction of Seller. Seller shall provide
evidence of such insurance to Seller prior to entering onto the Property.
Prior to engaging in any boring, soil sampling ground water sampling or
other invasive testing, Purchaser shall cause Seller and its affiliates to
be named as Additional Insureds on such insurance. Such liability
insurance shall provide coverages of not less than $1,000,000.00 for injury
or death to any one person and $3,000,000.00 for injury or death to more
than one person and $500,000.00 with respect to property damage, by water
or otherwise). The provisions of this Section shall survive the Closing or
termination of this Purchase Contract.
5.5 Purchaser shall not permit any mechanic's or materialman's liens or any
other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser.
Purchaser shall give notice to Seller a reasonable time prior to entry onto
the Property and shall permit Seller to have a representative present
during all investigations and inspections conducted with respect to the
Property. Purchaser shall take all reasonable actions and implement all
protections necessary to ensure that all actions taken in connection with
the investigations and inspections of the Property, and all equipment,
materials and substances generated, used or brought onto the Property pose
no material threat to the safety of persons or the environment and cause no
damage to the Property or other property of Seller or other persons. All
information made available by Seller to Purchaser in accordance with this
Purchase Contract or obtained by Purchaser in the course of its
investigations shall be treated as confidential information by Purchaser
until the Closing, and, prior to the purchase of the Property by Purchaser,
Purchaser shall use its best efforts to prevent its agents and employees
from divulging such information to any unrelated third parties except as
reasonably necessary to third parties engaged by Purchaser for the limited
purpose of analyzing and investigating such information for the purpose of
consummating the transaction contemplated by this Purchase Contract,
including Purchaser's attorneys and representatives, prospective lenders
and engineers.
5.6 Purchaser acknowledges that its obligation to close under this Purchase
Contract is not contingent upon Purchaser's satisfaction with the results
of any of Purchaser's investigations provided for in this ARTICLE 5 except
that (i) if Purchaser has not had an opportunity to review a Phase I
environmental assessment of the Property prior to the Effective Date and
(ii) if Purchaser delivers written notice to Seller within fifteen (15)
days after the Effective Date that Purchaser has reviewed a Phase I
environmental assessment of the Property and determined based thereon that
the environmental condition of the Property is unacceptable, then this
Agreement shall automatically terminate and the parties shall have no
further obligations to each another and Escrow Agent shall release the
Deposit to Purchaser.
ARTICLE 6
TITLE
6.1 Seller has delivered to Purchaser a commitment for title insurance for the
Property in an amount equal to the Purchase Price ("Title Commitment"),
issued by Fidelity National Title Insurance Company ("Title Insurer") for
an owner's title insurance policy on the most recent standard American Land
Title Association ("ALTA") Policy form, together with legible copies of all
instruments identified as exceptions therein. Purchaser agrees that it
shall be solely responsible for payment of all costs relating to
procurement of the Title Commitment and any Owner's or Lender's title
policies.
6.2 Purchaser agrees to accept title to the Land and Improvements, so long as
the same is insurable at ordinary rates and any conveyance by grant deed
pursuant to this Purchase Contract shall be subject to the following, all
of which shall be deemed "Permitted Exceptions" and Purchaser agrees to
accept the deed and title subject thereto:
6.2.1 All exceptions shown in the Title Commitment (other than mechanics'
liens, taxes due and payable in respect of the period preceding Closing and
monetary liens) and all exceptions noted in Exhibit 6.2.1 attached hereto;
and
6.2.2 Such exceptions and matters as the Title Insurer shall be willing to
omit as exceptions to coverage; and
6.2.3 All Commercial Leases; and
6.2.4 All Property Contracts and any other existing contracts created in the
ordinary course of business by Seller, which are not identified for
termination by Purchaser within thirty (30) days after the Effective Date;
and
6.2.5 Real estate and property taxes to the extent not due and payable; and
6.2.6 Defects and exceptions which do not materially and adversely affect
the condition of title to the Property and its use as of the Effective
Date.
6.3 The existence of other mortgages, liens, or encumbrances shall not be
objections to title, provided that properly executed instruments in
recordable form necessary to satisfy and remove the same of record are
delivered to the Purchaser at Closing or, in the alternative, with respect
to any mortgage or deed of trust liens, that payoff letters from the holder
of the mortgage or deed of trust liens shall have been delivered to and
accepted by the Title Insurer (sufficient to remove the same from the
policy issued at Closing), together in either case, with recording and/or
filing fees.
6.4 Unpaid liens for taxes, charges, and assessments shall not be objections to
title, but the amount thereof plus interest and penalties thereon shall be
deducted from the Purchase Price to be paid for the Property and allowed to
Purchaser, subject to the provisions for apportionment of taxes and charges
contained herein.
6.5 Unpaid franchise or business corporation taxes of any corporations in the
chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the Property or
otherwise against Purchaser or its affiliates, and provided further that
the Title Insurer agrees to omit such taxes as exceptions to coverage with
respect to any lender's mortgagee insurance policy.
6.6 If on the Closing Date there shall be conditional bills of sale or Uniform
Commercial Code financing statements that were filed on a day more than
Five (5) years prior to such Closing, and such financing statements have
not been extended by the filing of UCC-3 continuation statements within the
past Five (5) years prior to such Closing, such financing statements shall
not be deemed to be an objection to title.
6.7 If on the Closing Date, the state of title is other than in accordance with
the requirements set forth in this Purchase Contract or if any condition to
be fulfilled by Seller shall not be satisfied, Purchaser shall provide
Seller with written Notice thereof at such time, or such title objection or
unfulfilled condition shall be deemed waived by Purchaser in which case
Purchaser and Seller shall proceed to consummate the Closing on the Closing
Date. If Purchaser timely gives Seller such Notice, Seller at its sole
option and within Seven (7) calendar days following receipt of such Notice
may elect to cure such objection or unfulfilled condition for up to Ninety
(90) calendar days. Should Seller be able to cure such title objection or
condition, or should Seller be able to cause title insurance over the same
by the Closing Date or any postponed Closing Date, or should Purchaser
waive such objection or condition within such period for cure, then the
Closing shall take place on or before thirty (30) calendar days after
Notice of such cure or waiver.
6.8 If during the period of cure Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such title objection or cause the Title
Insurer to insure over such matter or satisfy such unfulfilled condition,
Seller shall give Purchaser written Notice thereof, and if Purchaser does
not waive such objection by written Notice delivered to Seller and the
Title Insurer on or before Seven (7) calendar days following the date
Seller gives such Notice, then this Purchase Contract shall automatically
terminate, Seller shall promptly return the Deposit to Purchaser and the
parties hereto shall have no further obligations to each other.
6.9 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance (other than Commercial Leases and Property Contracts in the
ordinary course of business) to attach to the Property between the date of
this Purchase Contract and the Closing Date; any such monetary lien or
encumbrance so attaching by voluntary act of Seller shall be discharged by
the Seller at or prior to Closing on the Closing Date or any postponed
Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance,
security interest, exception, objection or other matter, to make any
expenditure of money or institute litigation or any other judicial or
administrative proceeding and Seller may elect not to discharge the same.
6.10 Anything to the contrary notwithstanding, Purchaser shall not have any
right to terminate this Purchase Contract or object to any lien,
encumbrance, exception or other matter that is a Permitted Exception, that
has been waived or deemed to have been waived by Purchaser.
6.11 Purchaser at Purchaser's sole cost and expense, may, but shall have no
obligation to, cause to be prepared a survey for the Property ("Survey").
The Survey, if prepared, (i) shall be prepared in accordance with and shall
comply with the minimum requirements of the ALTA; (ii) shall be in a form,
and shall be certified as of a date satisfactory to Title Insurer to enable
Title Insurer to delete standard survey exceptions from the title insurance
policy to be issued pursuant to the Title Commitments, except for any
Permitted Exceptions; (iii) shall specifically show all improvements,
recorded easements to the extent locatable, set back lines, and such other
matters shown as exceptions by the Title Commitments; (iv) shall
specifically show the right of way for all adjacent public streets;
(v) shall specifically disclose whether (and, if so, what part of) any of
the Property is in an area designated as requiring flood insurance under
applicable federal laws regulating lenders; (vi) shall contain a legal
description of the Property which may be used in the grant deed;
(vii) shall be certified to Purchaser, Seller and Title Insurer as being
true and correct; and (viii) shall certify that the legal description set
forth therein describes the same, and comprises all of, the real estate
comprising the Property to be purchased by Purchaser pursuant to the terms
of this Purchase Contract. In the event the legal description of the
Property contained in the Survey differs from that contained in the deed or
deeds by which Seller took title to the Property, the latter description
shall be used in the grant deed delivered to Purchaser at Closing, and the
Survey legal shall be used in a quitclaim deed to the Property which also
shall be delivered to Purchaser at Closing.
6.11.1 Purchaser acknowledges that it has reviewed a current ALTA survey of
the Property prepared by Thienes Engineering, Inc. and agrees to accept the
Property subject to all matters disclosed on such survey.
6.11.2 Purchaser agrees to make payment in full of all costs of obtaining
Surveys required by this Purchase Contract on or before Closing or
termination of this Purchase Contract.
ARTICLE 7
CLOSING
7.1 DATES, PLACES OF CLOSING, PRORATIONS, AND DELINQUENT RENT.
7.1.1 The Closing shall take place on September 22, 1999 in the offices of
the Title Insurer or such other place as the parties shall mutually agree
upon at a time mutually agreed upon on the Closing Date. If requested by
Seller, Purchaser shall agree to conduct closing through a pre-closing, an
escrow or other arrangement reasonably requested by Seller, whereby the
Seller and its attorneys need not be physically present at the Closing and
may deliver documents by overnight air courier or other means.
7.1.2. All normal and customarily proratable items, including, without
limitation, collected base or minimum rent ("Base Rent"), operating
expenses, personal property taxes, other operating expenses and fees, shall
be prorated as of the Closing Date, Seller being charged and credited for
all of same attributable to the period up to the Closing Date (and credited
for any amounts paid by Seller attributable to the period on or after the
Closing Date) and Purchaser being responsible for, and credited or charged,
as the case may be, for all of same attributable to the period on and after
the Closing Date; provided, however, that any sums owing in respect of Base
Rent under the Commercial Leases as of the Closing Date ("Delinquent Base
Rent") shall not be reflected in an adjustment on the Closing Date but
shall be collected and apportioned as set forth in Section 7.1.6 below.
All unapplied deposits under Tenant leases, as reflected in the most
current rent roll provided to Purchaser, shall, at Seller's option, be
transferred by Seller to Purchaser or credited to Purchaser at the Closing,
and Purchaser shall assume all liability for the same. Seller shall not
apply any security deposits reflected in the rent roll to any obligations
under the Commercial Leases. Purchaser shall assume at Closing the
obligation to pay any accrued but unpaid tenant improvement allowances and
leasing commissions, together with any payments due parties to other
agreements affecting the Property which survive Closing, if and only to the
extent such items are identified on Exhibit 1.1.4 or are hereafter approved
in writing by Purchaser. Any real estate ad valorem or similar taxes for
the Property, or any installment of assessments payable in installments
which installment is payable in the year of Closing, shall be prorated to
the date of Closing, based upon actual days involved. The proration of
real property taxes or installments of assessments shall be based upon the
assessed valuation and tax rate figures for the year in which the Closing
occurs to the extent the same are available; provided, that in the event
that actual figures (whether for the assessed value of the Property or for
the tax rate) for the year of Closing are not available at the Closing
Date, the proration shall be made using figures from the preceding year.
The proration shall be final and unadjustable except as provided in Section
7.1.5. Unless expressly provided otherwise herein, For purposes of this
ARTICLE 7 the terms "Rent" and "Rents" shall include, without limitation,
base rents, additional rents, percentage rents and common area maintenance
charges. The provisions of this Section 7.1.2. shall apply during the
Proration Period (as defined below).
7.1.3. Percentage rents actually collected for the month in which the Closing
occurs shall be prorated as of the Closing Date. After Purchaser has
completed any reconciliation of actual percentage rents payable and
estimated percentage rents paid by the subject tenants, and all reconciled
amounts have been paid, a reconciliation shall be made between Seller and
Purchaser with regard to such percentage rents. Pursuant to such
reconciliation, Seller and Purchaser shall be entitled to their
proportionate share of all percentage rents paid for the subject fiscal
Commercial Lease year used to calculate each tenant's percentage rents
based on the number of days of such fiscal year Seller and Purchaser owned
the Property (and adjusted for any amount of percentage rent prorated at
Closing or received by Seller or Purchaser). As used in this Section
7.1.3, the term "percentage rents" shall not include and shall have
deducted from such percentage rent amount any "base" or "minimum" rent
component which is payable each month (regardless of actual sales), which
"base" or "minimum" rent component shall be prorated or otherwise handled
in the manner provided in this Agreement.
7.1.4. To the extent that any additional rent (including, without limitation,
estimated payments for operating expenses and/or real estate taxes)
(collectively, "Expenses") is paid by tenants to landlord under the
Commercial Leases based on an estimated payment basis (monthly, quarterly,
or otherwise) for which a future reconciliation of actual Expenses to
estimated payments is required to be performed at the end of a
reconciliation period, Purchaser and Seller shall make an adjustment at the
Closing for the applicable reconciliation period (or periods, if the
Commercial Leases do not have a common reconciliation period) based on a
comparison of the actual Expenses to the estimated payments at the Closing.
If, as of the Closing, Seller has received additional rent payments in
excess of the amount that tenants will be required to pay, based on the
actual Expenses as of the Closing, Purchaser shall receive a credit in the
amount of such excess. If, as of the Closing, Seller has received
additional rent payments that are less than the amount that tenants would
be required to pay based on the actual Expenses as of the Closing,
Purchaser shall deliver to Seller the amount of such deficiency within
thirty (30) days after the reconciliation pursuant to which the tenant's
payment of such deficient amounts are received by Purchaser.
7.1.5. If any of the items subject to proration hereunder cannot be prorated
at the Closing because the information necessary to compute such proration
is unavailable, or if any errors or omissions in computing prorations at
the Closing are discovered subsequent to the Closing, then such item shall
be reapportioned and such errors and omissions corrected as soon as
practicable after the Closing Date and the proper party reimbursed, which
obligation shall survive the Closing for a period (the "Proration Period")
from the Closing Date until one (1) year after the Closing Date. Neither
party hereto shall have the right to require a recomputation of a Closing
proration or a correction of an error or omission in a Closing proration
unless within the Proration Period one of the parties hereto (i) has
obtained the previously unavailable information or has discovered the error
or omission, and (ii) has given Notice thereof to the other party together
with a copy of its good faith recomputation of the proration and copies of
all substantiating information used in such recomputation. The failure of
a party to obtain any previously unavailable information or discover an
error or omission with respect to an item subject to proration hereunder
and to give Notice thereof as provided above within the Proration Period
shall be deemed a waiver of its right to cause a recomputation or a
correction of an error or omission with respect to such item after the
Closing Date.
7.1.6. If on the Closing Date any Tenant is in arrears in any Rent payment
under any Commercial Lease (the "Delinquent Rent"), any Delinquent Rent
received by Purchaser and Seller from such Tenant after the Closing shall
be applied to amounts due and payable by such Tenant during the following
periods in the following order of priority: (i) first, to the period of
time after the Closing Date, and (ii) second, to the period of time before
the Closing Date. If Delinquent Rent or any portion thereof received by
Seller or Purchaser after the Closing are due and payable to the other
party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and
expenses expended in connection with the collection thereof, shall be
promptly paid to the other party. For a period of six (6) months following
the Closing Date, Purchaser shall continue to bill existing tenants for
accounts receivable and delinquent rents attributable to the Property for
the period prior to the Closing Date. To the extent that Purchaser
receives, during the Proration Period, rents applicable to a period prior
to the Closing, Purchaser shall promptly pay such rents to Seller after
first deducting any sums due Purchaser from such tenants for rent or other
charges accruing after the Closing Date. After six (6) months after the
Closing Date, Seller shall have the right, but not the obligation, in its
own name, to demand payment of and to collect Delinquent Rent owed to
Seller by any Tenant, which right shall include, without limitation, the
right to continue or commence legal actions or proceedings against any
Tenant (provided, that Seller shall not commence any legal actions or
proceedings against any Tenant which continues as a Tenant at the Property
after Closing without the prior consent of Purchaser, which will not be
unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to deliver to Seller, upon demand, any relevant
books and records (including, without limitation, rent statements,
receipted bills and copies of tenant checks used in payment of such rent),
and to execute any and all consents or other documents reasonably necessary
for the collection of such Delinquent Rent by Seller. The provisions of
this Section 7.1.6. shall apply during the Proration Period.
7.1.7. Prior to the Close of Escrow, Seller and Purchaser shall determine the
amount of all unsatisfied costs and expenses which were incurred, or are to
be incurred, in connection with any and all Commercial Leases executed,
modified or extended by Seller prior to the Effective Date, including,
without limitation, all costs and expenses for tenant-improvements (either
completed or to be completed) and brokerage commissions (collectively,
"Pre-Closing Leasing Costs"); provided that such costs shall not include
any Pre-Closing Leasing Costs to be incurred in connection with a renewal
or extension of any Commercial Lease, which extension or renewal occurs
after Closing. Seller shall remain responsible for satisfying any Pre-
Closing Leasing Costs which were not credited to Purchaser at Closing.
7.1.8. Purchaser shall be credited at Closing for all amounts which are
unsatisfied amounts for all capital contracts, contracts pertaining to
works of improvement or other contracts existing prior to Closing,
pertaining to the Property (for work performed prior to Closing) ("Pre-
Closing Capital Costs").
7.1.9. At Closing, Purchaser shall receive a credit against the Purchase
Price in the amount of FOUR HUNDRED THOUSAND DOLLARS ($400,000.00) ("Repair
Credit") for repairing existing fire and related damage ("Repair Work") on
the Property. Purchaser covenants and agrees to cooperate with Seller, in
Seller's obtaining, to the extent possible, recovery of the Repair Credit
from Seller's insurance carrier ("Insurance Proceeds"). It is understood
and agreed by Seller and Purchaser that notwithstanding anything in this
Purchase Contract to the contrary, Purchaser has no right, title or
interest in the Insurance Proceeds.
7.2 ITEMS TO BE DELIVERED PRIOR TO OR AT CLOSING.
7.2.1 SELLER. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1Grant deed in the form attached as Exhibit 7.2.1.1 to Purchaser. The
acceptance of the deed at Closing, shall be deemed to be full
performance of, and discharge of, every agreement and obligation on
Seller's part to be performed under this Purchase Contract, except for
those that this Purchase Contract specifically provides shall survive
Closing.
7.2.1.2A Bill of Sale without recourse or warranty in the form attached as
Exhibit 7.2.1.2 covering all Property Contracts, Commercial Leases,
Permits (other than Excluded Permits) and Fixtures and Tangible Personal
Property required to be transferred to Purchaser with respect to such
Property. Purchaser shall countersign the same so as to effect an
assumption by Purchaser, including, without limitation, of Seller's
obligations thereunder.
7.2.1.3An Assignment (to the extent assignable and in force and effect) without
recourse or warranty in the form attached as Exhibit 7.2.1.3 of all of
Seller's right, title and interest in and to the Miscellaneous Property
Assets, subject to any required consents. Purchaser shall countersign
the same so as to effect an assumption by Purchaser, including, without
limitation, of Seller's obligations thereunder.
7.2.1.4A closing statement executed by Seller.
7.2.1.5A vendor's affidavit or at Seller's option an indemnity, as applicable,
in the customary form reasonably acceptable to Seller to enable Title
Insurer to delete the standard exceptions, (other than matters
constituting any Permitted Exceptions to the title insurance policy set
forth in this Purchase Contract and matters which are to be completed or
performed post-Closing) to be issued pursuant to the Title Commitments;
provided that such affidavit does not subject Seller to any greater
liability, or impose any additional obligations, other than as set forth
in this Purchase Contract.
7.2.1.6A certification of Seller's non-foreign status pursuant to Section 1445
of the Internal Revenue Code of 1986, as amended.
7.2.1.7A California 590-RE Withholding Exemption Certificate for Real Estate
Sales properly executed by Seller.
7.2.1.8A letter (in a form that meets with Purchaser's reasonable
satisfaction), duly executed by Seller, advising the tenants under the
Commercial Leases of the change in ownership of the Property.
7.2.1.9All keys to the Property which are in Seller's possession.
7.2.1.10 The most current rent roll and a schedule updating the Lease Schedule,
Purchaser hereby agreeing that any representations or warranties
contained within such rent roll or Lease Schedule shall not survive the
Closing but shall be merged into the tenant estoppels.
7.2.1.11 The original executed copy of any tenant estoppel certificates
obtained by Seller pursuant to the provisions of Section 9.1.5.
7.2.1.12 Notices of termination (effective as of the Closing Date) to service
providers whose Property Contracts will not be assumed by Purchaser at
the Closing, the identification of such providers being provided by
Purchaser to Seller prior to Closing.
7.2.1.13 Such other instruments, documents or certificates as are required to
be delivered or made available by Seller to Purchaser in accordance with
any of the other provisions of this Purchase Contract, including,
without limitation, Section 5.2 hereof, which have not already been
provided to Purchaser.
7.2.1.14 The items required by Section 7.2.1.13 above shall be deemed delivered
by Seller to Purchaser if Seller leaves such items at the Property in
their customary place of storage or in the custody of Purchaser's
representatives.
7.2.2 PURCHASER. At Closing, provided all of the conditions set forth in
Section 9.1 have been satisfied, Purchaser shall deliver to Seller (which
delivery may be made through Escrow Agent) the following items with respect
to each Property being conveyed or transferred by merger at such Closing:
7.2.2.1The full Purchase Price (which shall include the Deposit) as required by
ARTICLE 3 hereof plus or minus the adjustments or prorations required by
this Purchase Contract. If at Closing there are any liens or
encumbrances on the Property that Seller is obligated or elects to pay
and discharge, Seller may use any portion of the Purchase Price for the
Property(s) to satisfy the same, provided that Seller shall have
delivered to Purchaser, or to Purchaser's designee, on such Closing
instruments in recordable form sufficient to satisfy such liens and
encumbrances of record (or, as to any mortgages or deeds of trust,
appropriate payoff letters, acceptable to the Title Insurer), together
with the cost of recording or filing such instruments. The existence of
any such liens or encumbrances shall not be deemed objections to title
if Seller shall comply with the foregoing requirements.
7.2.2.2A closing statement executed by Purchaser.
7.2.2.3A countersigned counterpart of the Bill of Sale in the form attached as
Exhibit 7.2.1.2.
7.2.2.4A countersigned counterpart of the Assignment in the form attached as
Exhibit 7.2.1.3.
7.2.2.5Such other instruments, documents or certificates as are required to be
delivered by Purchaser to Seller in accordance with any of the other
provisions of this Purchase Contract.
7.3 CLOSING COSTS.
7.3.1 Seller shall be responsible for the payment of (i) all documentary
transfer taxes, (ii) the cost of the CLTA or standard portion of the title
insurance policy, (iii) one-half the cost of any escrow charges to be
imposed by the Title Insurer and (iv) any other expenses customarily
charged to sellers in connection with similar transactions. Seller's costs
may be paid at Closing out of the proceeds due to Seller.
7.3.2 Purchaser shall be responsible for (i) all recording fees, (ii) the
cost of the ALTA or extended portion of the title insurance policy and all
endorsements thereto, (iii) the cost of the Survey, (iv) one-half the cost
of any escrow charges to be imposed by the Title Insurer and (v) any other
expenses customarily charged to purchasers in connection with similar
transactions. Each party shall pay its own attorneys' fees.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
8.1.1 For the purpose of inducing Purchaser to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the
following as of the Effective Date and as of the Closing Date:
8.1.1.1Seller identified in the Recitals is lawfully and duly organized, and in
good standing under the laws of the state of its formation set forth in
the initial paragraph of this Purchase Contract; and has or at Closing
shall have the power and authority to sell and convey the Property and
to execute the documents to be executed by Seller and prior to Closing
will have taken as applicable, all corporate, partnership, limited
liability company or equivalent entity actions required for the
execution and delivery of this Purchase Contract, and the consummation
of the transactions contemplated by this Purchase Contract. Seller is
qualified to transact business in California to the extent necessary to
own and sell the Property. The compliance with or fulfillment of the
terms and conditions hereof will not conflict with, or result in a
breach of, the terms, conditions or provisions of, or constitute a
default under, any other agreement to which Seller is a party or by
which Seller is otherwise bound. Seller has not made any other Purchase
Contract for the sale of, or given any other person the right to
purchase, all or any part of any of the Property applicable to the
foregoing representation;
8.1.1.2Seller owns insurable, fee title to the Property, including all real
property contained therein required to be sold to Purchaser, subject
only to the Permitted Exceptions; Purchaser hereby agreeing that the
foregoing representation and warranty shall not survive the Closing but
shall merge into the grant deed;
8.1.1.3There are no adverse or other parties in possession of the Property,
except for occupants, guests and tenants under the Commercial Leases or
otherwise as set forth in Exhibit 8.1.1.3; Purchaser hereby agreeing
that the foregoing representation and warranty shall not survive the
Closing but shall merge into the grant deed;
8.1.1.4The joinder of no person or entity other than Seller is necessary to
convey the Property, fully and completely to Purchaser at Closing, or to
fulfill Seller's obligations and Seller has all necessary right and
authority to convey and assign to Purchaser all contract rights and
warranties required to be conveyed and assigned to Purchaser hereunder;
8.1.1.5Purchaser has no duty to collect withholding taxes for Seller pursuant
to the Foreign Investors Real Property Tax Act of 1980, as amended;
8.1.1.6To Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations or condemnation actions either pending or
threatened against the Property, as applicable; and to Seller's
knowledge, Seller has not received any notice that any such
investigation, action, suit, proceeding or claim is threatened. The
execution and delivery of this Purchase Contract will not violate any
present judgment, order, writ, injunction, decree, law or regulation
applicable to Seller;
8.1.1.7Seller has no knowledge of any claims for labor performed, materials
furnished or services rendered in connection with constructing,
improving or repairing any of the Property, as applicable, caused by
Seller and which remain unpaid beyond the date for which payment was due
and in respect of which liens may or could be filed against any of the
Property, as applicable;
8.1.1.8Attached hereto as Schedule 1 is a complete and accurate schedule (the
"Permit Schedule") of the Permits held by Seller (or its agents) in
connection with the ownership, management, use and operation of the
Property.
8.1.1.9The rent roll (the "Rent Roll") attached hereto as Schedule 2 is true,
correct and complete in all material respects as of the date of this
Purchase Contract. Attached hereto as Schedule 2 is a complete and
accurate schedule (the "Lease Schedule") of all Commercial Leases now in
effect relating to any portion of the Property, including the name of
each tenant, the date of each tenant's Commercial Lease and all
amendments or modifications, if any, thereto, the amount of any security
deposit, whether in the form of cash or a letter of credit, paid or
deposited by the tenant under each Commercial Lease, the amount of any
past due but uncollected rent owed by each tenant, the amount of any
unpaid leasing commissions and any uncompleted tenant improvements with
respect to each Commercial Lease.
All of the representations and warranties of Seller set forth in this Section
8.1 pertaining to the Commercial Leases shall continue until the Closing Date
whereupon any of the representations and warranties pertaining to Commercial
Leases which are the subject of the tenant estoppel, if any, provided by Seller
pursuant to Section 9.1.5 shall automatically merge into such tenant estoppels
and Purchaser hereby agrees that the representations and warranties set forth in
this Section 8.1 pertaining to Commercial Leases for which tenant estoppels are
received from tenants pursuant to Section 9.1.5 shall not survive the Closing
and Purchaser shall rely solely upon such tenant estoppels from the Tenants.
8.1.1.10 Attached hereto as Schedule 3 is a complete and accurate schedule (the
"Contract Schedule") of all Property Contracts now in effect, relating
to the Property, except for management and leasing agreements which
Seller shall terminate on the Closing Date without penalty or liability
to Purchaser ("Terminating Management and Leasing Contracts"). To
Seller's actual knowledge, the Property Contracts listed on Schedule 3
have been delivered to or made available to Purchaser.
8.1.1.11 Except as otherwise disclosed to Purchaser, to Seller's knowledge,
Seller has not received any written notice of any violations of law,
statutes, rules, governmental ordinances, orders or requirements noted
or issued by any governmental authority having jurisdiction over or
affecting the Property, nor does Seller have any knowledge of any such
violation. Purchaser acknowledges that Seller has disclosed that one or
more of the buildings located on the Land may exceed the height
limitations provided for in the City of Santa Ana's zoning code.
8.1.1.12 To Seller's actual knowledge, Seller has not, since October 8, 1998,
received from any governmental body having authority any written order,
citation or notice with regard to air emissions, water discharges, noise
emissions or Hazardous Substances (as hereinafter defined). For
purposes of this Section 8.1.1.12, "Hazardous Substances" shall mean
"toxic substances," "toxic materials," "hazardous waste," "hazardous
substances," "pollutants," or "contaminants" [as those terms are defined
in the Resource, Conservation and Recovery Act of 1976, as amended (42
U.S.C. S 6901 et. seq.), the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended (42 U.S.C. S 9601 et.
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
S 1801 et. seq.), the Toxic Substances Control Act of 1976, as amended
(15 U.S.C. S 2601 et. seq.), the Clean Air Act, as amended (42 U.S.C. S
1251 et. seq.) and any other federal, state or local law, statute,
ordinance, rule, regulation or code relating to health, safety or the
environment]; asbestos or asbestos-containing materials; lead or lead-
containing materials; oils; petroleum-derived compounds; pesticides; or
polychlorinated biphenyls.
8.1.2 Except for the representations and warranties expressly set forth
above in Subsection 8.1.1, the Property is expressly purchased and sold "AS
IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price and the terms
and conditions set forth herein are the result of arm's-length bargaining
between entities familiar with transactions of this kind, and said price,
terms and conditions reflect the fact that Purchaser shall have the benefit
of, and is relying upon, no information provided by Seller and no
statements, representations or warranties, express or implied, made by or
enforceable directly against Seller, including, without limitation, any
relating to the value of the Property, the physical or environmental
condition of the Property, the state, federal, county or local law,
ordinance, order, permit or suitability, compliance or lack of compliance
of the Property with any regulation, or any other attribute or matter of or
relating to the Property (other than any covenants of title contained in
the deeds conveying the Property and the representations set forth above).
Purchaser represents and warrants that as of the date hereof and as of the
Closing Date, it has and shall have reviewed and conducted such independent
analyses, studies, reports, investigations and inspections as it deems
appropriate in connection with the Property, including, without limitation,
the matters set forth in Section 8.1.8. If Seller provides or has provided
any documents, opinions or work product of consultants, surveyors,
architects, engineers, title companies, governmental authorities or any
other person or entity with respect to the Property, Purchaser and Seller
agree that Seller has done so or shall do so only for the convenience of
both parties, Purchaser shall not rely thereon and the reliance by
Purchaser upon any such documents, opinions or work product shall not
create or give rise to any liability of or against Seller, Seller's
partners or affiliates or any of their respective partners, officers,
directors, participants, employees, contractors, attorneys, consultants,
representatives, agents, successors, assigns or predecessors-in-interest.
Except for the representations and Warranties set forth in Section 8.1.1
hereof, Purchaser shall rely only upon any title insurance obtained by
Purchaser with respect to title to the Property. Purchaser acknowledges
and agrees that no representation has been made and no responsibility is
assumed by Seller with respect to current and future applicable zoning or
building code requirements or the compliance of the Property with any other
laws, rules, ordinances or regulations, the financial earning capacity or
expense history of the Property, the continuation of contracts, continued
occupancy levels of the Property, or any part thereof, or the continued
occupancy by tenants of any Commercial Leases or, without limiting any of
the foregoing, occupancy at Closing. Prior to Closing, Seller shall have
the right, but not the obligation, to enforce its rights against any and
all Property occupants, guests or tenants; provided that without the prior
written consent of Purchaser, Seller shall not initiate an action for
eviction of any tenant or possession of any tenant's premises.. Purchaser
hereby releases Seller from any and all claims and liabilities relating to
the foregoing matters, except as provided in Section 8.1.6 below. Nothing
in this Section 8.1.2 is intended to or shall be deemed to contradict or
invalidate any of Seller's representations and warranties in Section 8.1.1.
8.1.3 In furtherance of the provisions of Section 8.1.2, Purchaser
acknowledges that other than as expressly set forth herein, neither Seller
nor any agents, representatives, or employees of Seller have made any
representations or warranties, direct or indirect, oral or written, express
or implied, to Purchaser or any agents, representatives, or employees of
Purchaser with respect to the Property and Purchaser, on its own behalf and
on behalf of its agents, partners, affiliates, successors and assigns and
any subsequent offeree, buyer, owner or occupant of the Property and any
offeree, buyer, owner or occupant of any interest in the Property, hereby
waives, releases and discharges Seller, and its agents, partners,
affiliates, successors, assigns, heirs, devisees, legatees and executors
from any and all liabilities, obligations, fines, penalties, claims,
demands, suits, judgments, actions, causes of action, damages, costs,
losses and expenses (including reasonable attorney's fees, expert witness
fee, and court costs), directly or indirectly arising by reason of, in
connection with, on account of or pertaining to the physical,
environmental, economic or legal condition of the Property and any law or
regulation applicable thereto, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 9601 et seq.), the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the
Clean Water Act (33 U.S.C. Section 1251 et seq.), the Safe Drinking Water
Act (42 U.S.C. Section 300f et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et seq.), the Toxic Substances
Control Act (15 U.S.C. Section 2601 et seq.), the California Hazardous
Waste Control Law (California Health and Safety Code Sections 25100-25600),
the Porter-Cologne Water Quality Control Act (California Health and Safety
Code Section 13000 et seq.), and the Safe Drinking Water and Toxic
Enforcement Act (California Health and Safety Code Section 25249.5
et seq.). Each and every of the foregoing obligations of Purchaser shall
survive the Closing.
8.1.4 In connection with Sections 8.1.2 and 8.1.3 above, Purchaser expressly
waives the benefits of Section 1542 of the California Civil Code, which
provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
EXPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN TO HIM MUST HAVE MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR."
8.1.5 The releases and waivers by Purchaser in Sections 8.1.2 and 8.1.3
shall not apply to (i) any representation or warranty of Seller set forth
in Section 8.1 which is when made, untrue, materially misleading or
fraudulently made, or (ii) any claims or actions Purchaser may have against
Seller which may arise from third party claims asserted against Purchaser
with respect to actions or occurrences arising during the period from
October 8, 1998 to the Closing Date.
8.1.6 Seller and Purchaser agree that except as set forth in Section 8.1,
those representations contained in Section 8.1 shall survive Closing for a
period of One (1) year (that is, any proceeding based on the breach of a
representation contained in Section 8.1 that survives Closing must be
commenced within One (1) year subsequent to the date of such
representation). In the event that Seller breaches any representation
contained in Section 8.1 and Purchaser had actual knowledge of such breach,
then after Closing, Purchaser shall be deemed to have waived any right of
recovery and Seller shall not have any liability in connection therewith.
8.1.7 Any statement contained in the representations and warranties in this
Section 8.1 and made to the "knowledge" of Seller shall mean ONLY the
actual knowledge of Seller based upon the information communicated to
Seller by a representative of the management company managing the Property
as of the date of this Purchase Contract, in a certification addressed to
Seller and dated as of the Effective Date, a copy of which shall be
furnished to Purchaser within ten (10) days after the Effective Date; and
otherwise any reference to the "knowledge" of Seller shall not be deemed to
imply any duty of investigation or inquiry by Seller, and shall not be
construed to include the knowledge of any member, partner, officer,
director, agent, employee or representative of the Seller or any affiliate
of the Seller, imputed to Seller or constructively attributed to Seller.
Under no circumstances shall such representative of the management company
have any personal liability whatsoever under this Purchase Contract.
8.1.8 In furtherance of the provisions of Section 8.1.2, Purchaser
acknowledges that it has had an opportunity to inspect the HVAC system on
the Property, that Purchaser has reviewed a current ALTA survey of the
Property prepared by Thienes Engineering, Inc. and the zoning ordinances of
the City of Santa Ana, including such ordinances concerning height
limitations for the Property, and has reviewed estimates for the cost of
repairing existing fire and related damage on the Property.
8.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER
8.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Purchaser represents and warrants to Seller the
following as of the Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1Colton Real Estate Group is a corporation duly organized, validly
existing and in good standing under the laws of California and is
qualified to transact business in California.
8.2.2.2Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary power and authority to
own and use its properties and to transact the business in which it is
engaged, and has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and instruments required
of Purchaser herein, and to perform its obligations hereunder; and prior
to Closing, Purchaser shall have obtained all necessary consents from
its officers or members.
8.2.2.3No pending or, to the knowledge of Purchaser, threatened litigation
exists which if determined adversely would restrain the consummation of
the transactions contemplated by this Purchase Contract or would declare
illegal, invalid or non-binding any of Purchaser's obligations or
covenants to Seller.
8.2.2.4Purchaser is duly authorized to execute and deliver, acting through its
duly empowered and authorized officers and members, respectively, and
perform this Purchase Contract and all documents and instruments and
transactions contemplated hereby or incidental hereto, and such
execution, delivery and performance by Purchaser does not (i) violate
any of the provisions of their respective certificates of incorporation
or bylaws, (ii) violate any provision of any law, governmental rule or
regulation currently in effect, (iii) violate any judgment, decree,
writ, injunction, award, determination or order currently in effect that
names or is specifically directed at Purchaser or its property, (iv)
conflict with or result in a breach of the terms, conditions or
provisions of, or constitute a default under, any other agreement to
which Purchaser is a party and (v) require the consent, approval, order
or authorization of, or any filing with or notice to, any court or other
governmental authority.
8.2.2.5The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser
has all necessary right and authority to perform such acts as are
required and contemplated by this Purchase Contract.
8.2.3 Purchaser has not dealt with any broker, finder or any other person,
in connection with the purchase of or the negotiation of the purchase of
the Property that might give rise to any claim for commission against
Seller or lien or claim against the Property.
8.3 COVENANTS OF SELLER.
8.3.1 AFFIRMATIVE COVENANTS. Between the Effective Date and the Closing
Date, Seller agrees to:
8.3.1.1at its expense, manage, maintain and operate the Property in its current
"as is" order and condition, reasonable wear and tear, condemnation and
damage by fire or other casualty excepted, and deliver the Property on
the Closing Date in substantially the condition it is in on the
Effective Date, reasonable wear and tear, condemnation and damage by
fire or other casualty excepted;
8.3.1.2deliver to Purchaser, promptly after receipt by the Seller, copies of
all notices of violation issued by any board, bureau, commission,
department or body of any municipal, county, state or federal government
unit, or any subdivision thereof, with respect to the Property received
by Seller after the Effective Date;
8.3.1.3maintain in force, fire and extended coverage insurance upon the
Property in the current coverage amounts;
8.3.1.4keep and perform all of the obligations to be performed by the landlord
under the Commercial Leases pursuant and subject to the terms thereof
and the rights of landlord thereunder; and
8.3.1.5within five (5) business days after the Effective Date, send estoppel
certificates to all of the tenants of the Property.
8.3.2 NEGATIVE COVENANTS.
8.3.2.1After the Effective Date and continuing until the Closing Date, Seller
agrees that, without Purchaser's consent, it will not cancel, modify,
extend, or amend any of the Commercial Leases or Property Contracts, or
accept a surrender thereof; provided that if Purchaser has not
disapproved of any such Commercial Lease, Property Contract or lease
modification or extension within five (5) days after notice from Seller,
Purchaser shall be conclusively deemed to have approved such agreement.
Purchaser may withhold its consent in its sole and absolute discretion.
All Commercial Leases and contracts or amendments thereto executed with
Purchaser's approval pursuant to this subsection shall also be deemed
"Commercial Leases" and "Property Contracts", respectively, for purposes
of all provisions of this Purchase Contract.
8.3.2.2After the Effective Date, Seller shall not transfer, alienate or
encumber the Property, except pursuant to Commercial Leases or Property
Contracts approved by Purchaser pursuant to Section 8.3.2.1.
8.3.2.3After the Effective Date, Seller may market the Property, but shall
market it only for back-up offers.
8.3.3 Between the Effective Date and the Closing Date, Seller will not
remove any material Fixtures and Tangible Personal Property from the
Property except in the ordinary course of business and provided such
Fixtures and Tangible Personal Property is replaced with items of similar
quality.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser
at Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
9.1.2 Each of the representations and warranties of Seller contained herein
shall be true in all material respects as of the Closing Date;
9.1.3 Seller shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be
complied with, fulfilled or performed by Seller hereunder;
9.1.4 On the Closing Date, the Title Insurer shall be unconditionally
obligated and prepared, subject to the payment of the applicable title
insurance premium and other related charges, to issue to Purchaser a full
coverage owner's title insurance policy, with extended coverage, for the
Property in compliance with the Title Commitment (including endorsements as
Purchaser may reasonably require), together with such reinsurance and
direct access agreements as may be reasonably required by Purchaser.
9.1.5 Purchaser shall have received from Seller at least five (5) business
days prior to the Closing Date, a fully executed estoppel certificate, in
the form of Exhibit 9.1.5 attached hereto, from (a) each of the Major
Tenants and (b) tenants (including the Major Tenants) occupying at least
eighty percent (80%) of the leased area of the Property.
9.1.6 There shall be no material change in the financial condition or lease
status of a Major Tenant or the physical or title condition of the Property
or the zoning classification or the zoning ordinances or regulations
affecting the Property from that existing as of the Effective Date.
9.1.7 On the Closing Date, no action or proceeding shall have been
instituted or been threatened before any court or governmental authority
which would have a material adverse effect on the Property or the use or
occupancy thereof.
9.1.8 As of the Closing Date, neither Seller nor any of the Major Tenants
shall have commenced (within the meaning of any Bankruptcy Law) a voluntary
case, nor shall there have been commenced against Seller or any of the
Major Tenants an involuntary case, nor shall Seller or any of the Major
Tenants have consented to the appointment of a Custodian of it or for all
or any substantial part of its property, nor shall a court of competent
jurisdiction have entered an order or decree under any Bankruptcy Law that
is for relief against Seller or any of the Major Tenants in an involuntary
case or appoints a Custodian of Seller or any of the Major Tenants for all
or any substantial part of its property. The term "Bankruptcy Law" means
Title 11, U.S. Code, or any similar state law for the relief of debtors.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
9.1.9 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth
above.
9.2 Without limiting any of the rights of Seller elsewhere provided for in this
Purchase Contract, Seller's obligation to close with respect to conveyance
of the particular Property under this Purchase Contract shall be subject to
and conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this Purchase
Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing
Date and as of the Effective Date as though such representations and
warranties were made at and as of such date and time.
9.2.2 Purchaser shall have paid the Purchase Price in full and shall have
complied with, fulfilled and performed in all material respects all other
covenants, conditions, and other obligations in this Purchase Contract to
be performed or complied with by it at or prior to Closing.
9.2.3 There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined
adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or
nonbinding any of the covenants or obligations of the Purchaser.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only with
Trammell Crow So. Cal., Inc., 5801 South Eastern Avenue, Suite 100, Los
Angeles, California 90040 ("Broker") in connection with this Purchase
Contract. Seller and Purchaser each represents and warrants to the other
that other than Broker, it has not dealt with or utilized the services of
any other real estate broker, sales person or finder in connection with
this Purchase Contract, and each party agrees to indemnify the other party
from and against all claims for brokerage commissions and finder's fees
arising from or attributable to the acts of omissions of the indemnifying
party, except that Purchaser shall not indemnify Seller for any liability
arising pursuant to the commission due to Broker. Seller shall indemnify,
defend and hold Purchaser harmless from any claim made by Broker.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller
or Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of
entry for inspection as set forth in ARTICLE 5.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 IF PURCHASER FAILS TO PURCHASE THE PROPERTY WHEN IT IS OBLIGATED TO DO SO
UNDER THE TERMS OF THIS AGREEMENT OR SELLER TERMINATES THIS PURCHASE
CONTRACT AS A RESULT OF PURCHASER'S DEFAULT, SELLER AND PURCHASER AGREE
THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE
DAMAGES WHICH SELLER MAY SUFFER. THEREFORE, SELLER AND PURCHASER HEREBY
AGREE THAT, EXCEPT FOR THE PURCHASER'S OBLIGATIONS TO SELLER UNDER SECTION
5.4, THE REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD
SUFFER IN THE EVENT PURCHASER FAILS TO PURCHASE THE PROPERTY WHEN IT IS
OBLIGATED TO DO SO UNDER THE TERMS OF THIS AGREEMENT OR SELLER TERMINATES
THIS PURCHASE CONTRACT AS A RESULT OF PURCHASER'S DEFAULT, IS AND SHALL BE,
AS SELLER'S SOLE REMEDY (WHETHER AT LAW OR IN EQUITY), THE RIGHT TO RECEIVE
FROM THE ESCROW AGENT AND RETAIN THE FULL AMOUNT OF THE DEPOSIT. THE
PAYMENT AND PERFORMANCE OF THE ABOVE AS LIQUIDATED DAMAGES IS NOT INTENDED
AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE LAW AND IS
INTENDED TO SETTLE ALL ISSUES AND QUESTIONS ABOUT THE AMOUNT OF DAMAGES
SUFFERED BY SELLER IN THE APPLICABLE EVENT, EXCEPT ONLY FOR DAMAGES UNDER
SECTION 5.4 ABOVE, IRRESPECTIVE OF THE TIME WHEN THE INQUIRY ABOUT SUCH
DAMAGES MAY TAKE PLACE. UPON ANY SUCH FAILURE BY PURCHASER HEREUNDER, THIS
PURCHASE CONTRACT SHALL BE TERMINATED, AND NEITHER PARTY SHALL HAVE ANY
FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE
PURCHASER'S OBLIGATIONS TO SELLER UNDER SECTION 5.4 ABOVE, AND THE RIGHT OF
SELLER TO COLLECT SUCH LIQUIDATED DAMAGES TO THE EXTENT NOT THERETOFORE
PAID BY PURCHASER.
BY PLACING THEIR INITIALS BELOW, PURCHASER AND SELLER ACKNOWLEDGE THAT THEY HAVE
READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS LIQUIDATED DAMAGES PROVISION.
Purchaser's Initials Seller's Initials
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a
result of Seller's default hereunder, Purchaser's sole remedy shall be to
elect to terminate this Purchase Contract and receive reimbursement of the
Deposit or to seek specific performance of this Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 The risk of loss or damage to the Property by fire or other casualty until
the deed of conveyance is recorded is assumed by the Seller, provided that
the Seller's responsibility shall be only to the extent of any recovery
from insurance now carried on the Property. In the event of (i) the damage
or destruction of all or any part of the Property, the aggregate cost to
repair, replace and/or restore of which shall be $100,000 or more (as
estimated by Seller's insurance carrier) in excess of the cost to repair
the existing fire and related damage, (ii) permanent loss of ten percent
(10%) or more of the parking for the Property or a permanent loss of access
to a building on the property prior to Closing, or (iii) any Major Tenant
has the right to terminate its Commercial Lease or abate the payment of its
Rent, Purchaser may, by Notice given to Seller within five (5) days after
receipt of Notice from Seller of such damage or destruction, elect to
terminate this Purchase Contract, in which event the Deposit shall
immediately be returned by Escrow Agent to Purchaser and except as
expressly provided herein, subject to and except for Purchaser's liability
under Sections 5.3 and 5.4, the rights, duties, obligations, and
liabilities of the parties hereunder shall immediately terminate and be of
no further force or effect. If Purchaser does not elect to terminate this
Purchase Contract pursuant to this Section 13.1, or has no right to
terminate this Purchase Contract pursuant to this Section 13.1, and the
sale of the Property is consummated, Purchaser shall be entitled to receive
all insurance proceeds paid or payable to Seller by reason of such
destruction or damage under the insurance policies carried by Seller (less
amounts of insurance theretofore received and applied by Seller to
restoration); provided that in the event the insurance proceeds, if any,
shall be insufficient to defray the estimated cost of repairing or
replacing the damage or destruction, then to the extent the amount of the
insufficiency shall exceed $10,000.00 (determined by reference to such
estimated cost and Seller's statement of the available insurance proceeds)
the amount of the insufficiency may be claimed by Purchaser, by Notice of
such claim given to Seller prior to Closing, as an additional adjustment at
Closing pursuant to Section 7.1.2 above, provided further in such event
that upon receipt of any such Notice from Purchaser, Seller may elect, at
its sole option, by so advising Purchaser in writing at or prior to the
Closing, to terminate this Purchase Contract, in which event the Deposit
shall be returned to Purchaser and except as expressly provided herein,
subject to and except for Purchaser's liability under Section 5.4, the
rights, duties, obligations and liabilities of the parties hereunder shall
immediately terminate and be of no further force and effect. If the amount
of said casualty proceeds is not settled by the date of Closing, Seller
shall execute at Closing all proofs of loss, assignments of claim, and
other similar instruments to ensure that Purchaser shall receive all of
Seller's right, title, and interest in and under said insurance proceeds.
Seller shall not, in any event, be obligated to effect any repair,
replacement, and/or restoration, but may do so at its option in which case
Seller may apply the insurance proceeds to the costs of restoration.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before August 20, 1999.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or is about to be acquired, by authority
of any governmental agency in purchase in lieu thereof (or in the event
that at such time there is any notice of any such acquisition by any such
governmental agency), Purchaser shall have the right, at Purchaser's
option, to terminate this Purchase Contract by giving written Notice within
Fifteen (15) days of the occurrence of such event and recover the Deposit
hereunder, or to settle in accordance with the terms of this Purchase
Contract for the full Purchase Price and receive the full benefit or any
condemnation award. It is expressly agreed between the parties hereto that
this paragraph shall in no way apply to customary dedications for public
purposes which may be necessary for the development of the Property.
ARTICLE 16
MISCELLANEOUS
16.1 EXHIBITS AND SCHEDULES
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
16.2 ASSIGNABILITY
This Purchase Contract is not assignable without first obtaining the prior
written approval of the non-assigning party, provided, however, that
Purchaser shall have the right to assign this Purchase Contract prior to
Closing to a partnership or limited liability company for which Purchaser
is a general partner or manager, as applicable. As of the date of such
assignment, the assignee shall execute a written assignment and assumption
agreement assuming all of the obligations of Purchaser under this Purchase
Contract. Purchaser shall remain obligated under this Purchase Contract
until all of Purchaser's closing obligations (including payment of the
Purchase Price) have been satisfied. Thereafter, the original Purchaser
shall be released from all of its obligations and shall have no further
liability under this Purchase Contract.
16.3 BINDING EFFECT
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
16.4 CAPTIONS
The captions, headings, and arrangements used in this Purchase Contract are
for convenience only and do not in any way affect, limit, amplify, or
modify the terms and provisions hereof.
16.5 NUMBER AND GENDER OF WORDS
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 NOTICES
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing
and shall be deemed to have been properly given or served for all purposes
(i) if sent by Federal Express or the nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, or (ii) if personally delivered,
on the actual date of delivery or (iii) if sent by certified mail, return
receipt requested postage prepaid, on the Fifth (5th) business day
following the date of mailing addressed as follows:
If to Seller: If to Purchaser:
Consolidated Capital Equity The Colton Company
Partners/Two L.P. 2301 Campus Drive, Suite 150
c/o AIMCO Irvine, California 92612
1873 South Bellaire Street Attention: David Colton
Suite 1700 Fax: 949-476-8554
Denver, Colorado 80222 Tel.: 949-475-4200
Attention: Tim Works
Harry Alcock
Martha Carlin
Tel.: 303-691-4357
and with a copy to: and with a copy to:
Argent Real Estate The Colton Company
1401 Brickell Avenue, Suite 520 2301 Campus Drive, Suite 150
Miami, Florida 33131 Irvine, California 92612
Attention: David Marquette Attention: Jon W. McClintock
Fax: 305-371-6898 Fax: 949-476-8554
Tel.: 949-475-4200
with copies to: with a copy to:
Richard A. Cohn, Esquire Law Office of David M. Griffith
Bryan Cave LLP 1 World Trade Center, Suite 800
700 Thirteenth Street, N.W. Long Beach, CA 90831 Fax: 562-
Washington, D.C. 20005-3960 983-8122
Fax: 202-508-3960 Tel.: 562-983-8017
and
William S. Sanderson, Esquire
Bryan Cave LLP
18881 Von Karman, Suite 1500
Irvine, California 92612-1582
Fax: 949-223-7100
Tel.: 949-223-7000
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of
Notice by mail or otherwise is required, the giving of such Notice may be
waived in writing by the person or persons entitled to receive such Notice.
16.7 GOVERNING LAW AND VENUE
The laws of the State of California shall govern the validity,
construction, enforcement, and interpretation of this Purchase Contract,
unless otherwise specified herein except for the conflict of laws
provisions thereof. All claims, disputes and other matters in question
arising out of or relating to this Purchase Contract, or the breach
thereof, shall be decided by proceedings instituted and litigated in the
United States District Court for the district in which the Property is
situated, and the parties hereto expressly consent to the venue and
jurisdiction of such court.
16.8 ENTIRETY AND AMENDMENTS
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if
any, relating to the Property, and may be amended or supplemented only by
an instrument in writing executed by the party against whom enforcement is
sought.
16.9 SEVERABILITY
If any of the provisions of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision
shall be fully severable. The Purchase Contract shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Purchase Contract; and the remaining provisions of
this Purchase Contract shall remain in full force and effect and shall not
be affected by the illegal, invalid, or unenforceable provision or by its
severance from this Purchase Contract. In lieu of such illegal, invalid,
or unenforceable provision, there shall be added automatically as a part of
this Purchase Contract a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible to make such
provision legal, valid, and enforceable.
16.10 MULTIPLE COUNTERPARTS
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase
Contract, it shall not be necessary to produce or account for more than one
such counterparts.
16.11 FURTHER ACTS
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be
performed, executed and/or delivered any and all such further acts, deeds,
and assurances as may be necessary to consummate the transactions
contemplated hereby.
16.12 CONSTRUCTION
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to
the drafting of this Purchase Contract; both parties, being represented by
counsel, having fully participated in the negotiation of this instrument.
16.13 CONFIDENTIALITY
Each party shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that each
party may disclose the terms and conditions of this Purchase Contract (i)
as required by law, (ii) to consummate the terms of this Purchase Contract,
or any financing relating thereto, or (iii) to Purchaser's or Seller's
lenders, attorneys and accountants. Any information provided by one party
hereunder to the other under the terms of this Purchase Contract is for
informational purposes only. In providing such information, the party
providing such information makes no representation or warranty, express,
written, oral, statutory, or implied, and all such representations and
warranties are hereby expressly excluded. Neither party shall in any way
be entitled to rely upon the accuracy of such information. Such
information is also confidential and each party shall be prohibited from
making such information public to any other person or entity other than its
agents and legal representatives, without the other party's prior written
authorization, which may be granted or denied in such party's sole
discretion. After the Closing, either party may disclose to third parties
any information concerning the Property or set forth in any of the Property
Documents. Nothing in this Section 16.13 is intended to or shall be deemed
to contradict or invalidate any of Seller's representations and warranties
in Section 8.1.1.
16.14 TIME OF THE ESSENCE
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
16.15 CUMULATIVE REMEDIES AND WAIVER
Except as otherwise provided herein, no remedy herein conferred or reserved
is intended to be exclusive of any other available remedy or remedies, but
each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Purchase Contract or now or hereafter
existing at law or in equity. No delay or omission to exercise any right
or power accruing upon any default, omission, or failure of performance
hereunder shall impair any right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. No waiver, amendment,
release, or modification of this Purchase Contract shall be established by
conduct, custom, or course of dealing.
16.16 LITIGATION EXPENSES
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall
be entitled to recover from the other party its reasonable attorneys' fees
and expenses incidental to such litigation.
16.17 TIME PERIODS
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time
period. All time periods in this contract shall be based on California
time and, unless expressly provided to the contrary, shall end at 5:00
p.m., California time.
16.18 EXCHANGE
At Seller's sole cost and expense, Seller may structure the sale of the Property
to Purchaser as a Like Kind Exchange under Internal Revenue Code Section 1031
whereby Seller will acquire certain property (the "Like Kind Exchange Property")
in conjunction with the sale of the Property (the "Like Kind Exchange").
Purchaser shall, at no cost to Purchaser, cooperate fully and promptly with
Seller's conduct of the Like Kind Exchange, provided that all costs and expenses
generated in connection with the Like Kind Exchange shall be borne solely by
Seller, and Purchaser shall not be required to take title to or contract for the
purchase of any other property. If Seller uses a qualified intermediary to
effectuate the exchange, any assignment of the rights or obligations of Seller
hereunder shall not relieve, release or absolve Seller of its obligations to
Purchaser. In no event shall the Closing Date be delayed by the Like Kind
Exchange. Seller shall indemnify and hold harmless Purchaser from and against
any and all liability arising from and out of the Like Kind Exchange.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as of the
date first set forth above.
Seller:CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P., a California limited
partnership
By: Concap Holdings, Inc., a Texas corporation, its General Partner
By: [SEAL]
Printed:
Title:
Purchaser: COLTON REAL ESTATE GROUP, d/b/a THE COLTON
COMPANY, a California corporation
By: [SEAL]
Printed: Linda H. Colton
Title: President
By: ]
Printed: Jon W. McClintock
Title: Chief Financial Officer
STATE OF CALIFORNIA ) CAPACITY CLAIMED BY
SIGNER:
)
COUNTY OF ____________________ ) . Individual(s)
. Corporate
On _________________, 1999, before me, the ________________
undersigned, a Notary Public in and for said State, Officer(s)
personally appeared ______________________ ________________
. personally known to me - OR - . proved to me on Title(s)
the basis of satisfactory
evidence, to be the person(s) . Partner(s)
whose name(s) is/are subscribed
to the within instrument and . Attorney-in-Fact
acknowledged to me that
he/she/they executed the same . Trustee(s)
in his/her/their authorized
capacity(ies), and that by . Subscribing Witness
his/her/their signature(s) on
the instrument the person(s), . Guardian/Conservator
or the entity upon behalf of
which the person(s) acted, . Other:
executed the instrument. ___________________
WITNESS my hand and official seal. ________________________
_
____________________________ ________________________
Signature of Notary _
SIGNER IS REPRESENTING:
Name of person(s) or
entity(ies)
________________________
____
________________________
____
STATE OF CALIFORNIA ) CAPACITY CLAIMED BY
SIGNER:
)
COUNTY OF ____________________ ) . Individual(s)
. Corporate
On _________________, 1999, before me, the ________________
undersigned, a Notary Public in and for said State, Officer(s)
personally appeared ____________________: ________________
. personally known to me - OR - . proved to me on Title(s)
the basis of satisfactory
evidence, to be the person(s) . Partner(s)
whose name(s) is/are subscribed
to the within instrument and . Attorney-in-Fact
acknowledged to me that
he/she/they executed the same . Trustee(s)
in his/her/their authorized
capacity(ies), and that by . Subscribing Witness
his/her/their signature(s) on
the instrument the person(s), . Guardian/Conservator
or the entity upon behalf of
which the person(s) acted, . Other:
executed the instrument. ___________________
WITNESS my hand and official seal. ________________________
_
____________________________ ________________________
Signature of Notary _
SIGNER IS REPRESENTING:
Name of person(s) or
entity(ies)
________________________
____
________________________
____
STATE OF CALIFORNIA ) CAPACITY CLAIMED BY
SIGNER:
)
COUNTY OF ____________________ ) . Individual(s)
. Corporate
On _________________, 1999, before me, the ________________
undersigned, a Notary Public in and for said State, Officer(s)
personally appeared ______________________: ________________
. personally known to me - OR - . proved to me on Title(s)
the basis of satisfactory
evidence, to be the person(s) . Partner(s)
whose name(s) is/are subscribed
to the within instrument and . Attorney-in-Fact
acknowledged to me that
he/she/they executed the same . Trustee(s)
in his/her/their authorized
capacity(ies), and that by . Subscribing Witness
his/her/their signature(s) on
the instrument the person(s), . Guardian/Conservator
or the entity upon behalf of
which the person(s) acted, . Other:
executed the instrument. ___________________
WITNESS my hand and official seal. ________________________
_
____________________________ ________________________
Signature of Notary _
SIGNER IS REPRESENTING:
Name of person(s) or
entity(ies)
________________________
____
________________________
____
STATE OF CALIFORNIA ) CAPACITY CLAIMED BY
SIGNER:
)
COUNTY OF ____________________ ) . Individual(s)
. Corporate
On _________________, 1999, before me, the ________________
undersigned, a Notary Public in and for said State, Officer(s)
personally appeared ____________________: ________________
. personally known to me - OR - . proved to me on Title(s)
the basis of satisfactory
evidence, to be the person(s) . Partner(s)
whose name(s) is/are subscribed
to the within instrument and . Attorney-in-Fact
acknowledged to me that
he/she/they executed the same . Trustee(s)
in his/her/their authorized
capacity(ies), and that by . Subscribing Witness
his/her/their signature(s) on
the instrument the person(s), . Guardian/Conservator
or the entity upon behalf of
which the person(s) acted, . Other:
executed the instrument. ___________________
WITNESS my hand and official seal. ________________________
_
____________________________ ________________________
Signature of Notary _
SIGNER IS REPRESENTING:
Name of person(s) or
entity(ies)
________________________
____
________________________
____
STATE OF CALIFORNIA ) CAPACITY CLAIMED BY
SIGNER:
)
COUNTY OF ____________________ ) . Individual(s)
. Corporate
On _________________, 1999, before me, the ________________
undersigned, a Notary Public in and for said State, Officer(s)
personally appeared ____________________: ________________
. personally known to me - OR - . proved to me on Title(s)
the basis of satisfactory
evidence, to be the person(s) . Partner(s)
whose name(s) is/are subscribed
to the within instrument and . Attorney-in-Fact
acknowledged to me that
he/she/they executed the same . Trustee(s)
in his/her/their authorized
capacity(ies), and that by . Subscribing Witness
his/her/their signature(s) on
the instrument the person(s), . Guardian/Conservator
or the entity upon behalf of
which the person(s) acted, . Other:
executed the instrument. ___________________
WITNESS my hand and official seal. ________________________
_
____________________________ ________________________
Signature of Notary _
SIGNER IS REPRESENTING:
Name of person(s) or
entity(ies)
________________________
____
________________________
____
EXHIBIT A
Legal Description of Real Property
PARCEL 1:
THAT PORTION OF LOT 7, TRACT 678, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA,
AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11, OF MISCELLANEOUS MAPS,
RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF SAID LOT 7 WITH A LINE
PARALLEL WITH AND DISTANT NORTHERLY 50.00 FEET, MEASURED AT RIGHT ANGLES, FROM
THE CENTERLINE OF FOURTH STREET AS SHOWN ON A MAP, THENCE ALONG SAID PARALLEL
LINE NORTH 89. 36' 45" EAST 248.93 FEET TO THE SOUTHWESTERLY CORNER OF THE LAND
DESCRIBED IN DEED TO TOWN CENTER PLAZA RECORDED DECEMBER 24, 1970 IN BOOK 9500,
PAGE 225, OF OFFICIAL RECORDS, RECORDS OF SAID ORANGE COUNTY; THENCE ALONG THE
WESTERLY AND NORTHERLY LINES OF SAID LAND NORTH 0. 16' 36" WEST 310.50 FEET AND
NORTH 89. 36' 45" EAST 243.00 FEET TO THE NORTHEASTERLY CORNER THEREOF; THENCE
PARALLEL WITH AND WESTERLY LINE OF LOT 7, NORTH 0. 16' 36" WEST 190.00 FEET;
THENCE PARALLEL WITH SAID CENTERLINE SOUTH 89. 36' 45" WEST 243.00 FEET; THENCE
PARALLEL WITH SAID LAST MENTIONED WESTERLY LINE SOUTH 0. 16' 36" EAST 125.00
FEET; THENCE SOUTH 89. 38' 16" WEST 40.00 FEET; THENCE PARALLEL WITH SAID LAST
MENTIONED WESTERLY LINE SOUTH 0. 16' 36" EAST 119.00 FEET; THENCE PARALLEL TO
SAID CENTERLINE SOUTH 89. 36' 45" WEST 208.93 FEET TO SAID WESTERLY LINE OF LOT
7; THENCE ALONG SAID LAST MENTIONED WESTERLY LINE SOUTH 0. 16' 36" EAST 256.50
FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THAT PORTION OF LOT 7 OF TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32,
PAGES 10 AND 11 OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY, BEGINNING AT A
POINT IN THE WESTERLY LINE OF SAID LOT 7 DISTANT THEREON SOUTH 00. 16' 36" EAST
280.50 FEET FROM NORTHWESTERLY CORNER THEREOF, THENCE ALONG SAID WESTERLY LINE
SOUTH 00. 16' 36" EAST 329.16 FEET TO THE MOST WESTERLY NORTHWESTERLY CORNER OF
THE LAND DESCRIBED IN DEED TO TOWN CENTER PLAZA, RECORDED MARCH 22, 1973 IN BOOK
10607, PAGE 545 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, THENCE ALONG THE
BOUNDARY OF SAID LAND OF TOWN CENTER PLAZA NORTH 89. 38' 15" EAST 209.05 FEET;
NORTH 00. 16' 18" WEST 119.00 FEET; THENCE NORTH 89. 38' 15" EAST 40.00 FEET;
NORTH 00. 16' 18" WEST 125.00 FEET; AND NORTH 89. 38' 15" EAST 243.00 FEET TO
THE NORTHEASTERLY CORNER THEREOF; THENCE PARALLEL WITH THE EASTERLY LINE, NORTH
00. 16' 36" WEST 201.92 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID
LOT 7 SOUTH 89. 45' 36" WEST 230.00 FEET; THENCE SOUTH 00. 16' 18" EAST 119.00
FEET TO A LINE PARALLEL WITH SAID NORTHERLY LINE AND WHICH PASSES THROUGH THE
POINT OF BEGINNING; ALONG SAID LAST MENTIONED PARALLEL SOUTH 89. 45' 36" WEST
261.93 FEET TO THE POINT OF BEGINNING.
PARCEL 3:
AN EASEMENT FOR INGRESS, EGRESS AND INCIDENTAL PURPOSES OVER THAT PORTION OF LOT
7 OF TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN DEED TO UNION MUTUAL
LIFE INSURANCE CO., RECORDED JANUARY 22, 1973, IN BOOK 10523, PAGE 219 OF
OFFICIAL RECORDS OF ORANGE COUNTY; THENCE ALONG THE WESTERLY LINE AND THEREOF
ITS NORTHERLY PROLONGATION, NORTH 00. 16' 18" WEST 583.19 FEET, TO A LINE
PARALLEL WITH THE NORTHERLY LINE OF SAID LOT 7 AND WHICH PASSES THROUGH A POINT
IN THE WESTERLY LINE OF SAID LOT DISTANT THEREON SOUTH 00. 16' 36" EAST 280.00
FEET FROM THE NORTHWEST CORNER OF SAID LOT 7; THENCE, ALONG SAID PARALLEL LINE
SOUTH 89. 45' 36" WEST 248.93 FEET TO SAID POINT, THENCE, ALONG SAID WESTERLY
LINE SOUTH 00. 16' 36" EAST 40.00 FEET; THENCE PARALLEL WITH SAID NORTHERLY LINE
NORTH 89. 45' 36" EAST 208.39 FEET MORE OR LESS, TO A LINE PARALLEL WITH AND
WESTERLY 40.00 FEET FROM THE NORTHERLY PROLONGATION OF THE LINE WESTERLY LINE OF
SAID LAND OF UNION MUTUAL LIFE INSURANCE CO., THENCE ALONG SAID PARALLEL LINE
SOUTH 00. 16' 18" EXCEPT 543.19 FEET, MORE OR LESS, TO THE NORTHERLY LINE OF THE
LAND DESCRIBED IN DEED TO THE CITY OF SANTA ANA, RECORDED MARCH 15, 1966 IN BOOK
7869, PAGE 68, OF SAID OFFICIAL RECORDS; THENCE THEREON NORTH 89. 36' 45" EXCEPT
40.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING FROM PARCEL 3 THAT PORTION THEREOF LYING WITHIN PARCEL 2 ABOVE.
PARCEL 4:
THAT PORTION OF LOT 7, TRACT NO. 678, IN THE CITY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11, OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 7; THENCE ALONG THE NORTHERLY
LINE THEREOF NORTH 89. 45' 36" EAST 491.93 FEET; THENCE, PARALLEL WITH THE
WESTERLY LINE OF SAID LOT 7 SOUTH 00. 16' 36" EAST 162.50 FEET; THENCE PARALLEL
WITH SAID NORTHERLY LINE SOUTH 89. 45' 36" WEST 230.00 FEET; THENCE SOUTH 00.
16' 18" EAST 119.00 FEET TO A LINE PARALLEL WITH SAID NORTHERLY LINE AND WHICH
PASSES THROUGH A POINT IN SAID WESTERLY LINE DISTANT THEREON SOUTH 00. 16' 36"
EAST 280.50 FEET FROM THE POINT OF BEGINNING; THENCE ALONG SAID LAST MENTIONED
PARALLEL LINE SOUTH 89. 45' 36" WEST 261.93 FEET TO SAID POINT; THENCE ALONG
SAID WESTERLY LINE NORTH 00. 16' 36" WEST 280.50 FEET TO THE POINT OF BEGINNING.
PARCEL 5:
AN EASEMENT FOR INGRESS AND EGRESS AND INCIDENTAL PURPOSES OVER THAT PORTION OF
LOT 7 OF TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN DEED TO UNION MUTUAL
LIFE INSURANCE CO., RECORDED JANUARY 22, 1973 IN BOOK 10523, PAGE 219, OF
OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE ALONG THE WESTERLY LINE THEREOF
AND ITS NORTHERLY PROLONGATION, NORTH 00. 16' 18" WEST 583.19 FEET MORE OR LESS,
TO A LINE PARALLEL WITH THE NORTHERLY LINE OF SAID LOT 7 AND WHICH PASSES
THROUGH A POINT IN THE WESTERLY LINE OF SAID LOT 7, DISTANT THEREON SOUTH 00.
16' 36" EAST 280.50 FEET FROM THE NORTHWEST CORNER OF SAID LOT 7; THENCE, ALONG
SAID PARALLEL LINE, SOUTH 89. 45' 36" WEST 248.93 FEET TO SAID POINT; THENCE,
ALONG WESTERLY LINE, SOUTH 00. 16' 36" EAST 40.00 FEET; THENCE PARALLEL WITH
SAID NORTHERLY LINE NORTH 89. 45' 36" EAST 208.93 FEET, MORE OR LESS, TO A LINE
PARALLEL WITH AND DISTANT WESTERLY 40.00 FEET FROM THE NORTHERLY PROLONGATION OF
THE WESTERLY LINE OF SAID LAND OF UNION MUTUAL LIFE INSURANCE CO.; THENCE ALONG
SAID PARALLEL LINE SOUTH 00. 16' 18" EAST 543.19 FEET, MORE OR LESS, TO THE
NORTHERLY LINE OF THE LAND DESCRIBED IN DEED TO THE CITY OF SANTA ANA, RECORDED
MARCH 15, 1966 IN BOOK 7869, PAGE 68, OF SAID OFFICIAL RECORDS; THENCE THEREON
NORTH 89. 36' 45" EAST 40.00 FEET TO THE POINT OF BEGINNING.
PARCEL 6:
THAT PORTION OF LOT 7, TRACT 678, AS SHOWN ON A MAP RECORDED IN BOOK 32, PAGES
10 AND 11 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF SAID LOT, WHICH FOR THIS DESCRIPTION
IS CONSIDERED TO BE A LINE PARALLEL WITH AND NORTHERLY 30.00 FEET FROM THE
CENTER LINE OF FOURTH STREET, AS SHOWN ON THE MAP OF SAID TRACT, SAID POINT
BEING NORTH 89. 36' 56" EAST, 491.93 FEET ALONG SAID LINE FROM THE SOUTHWEST
CORNER OF SAID LOT; THENCE NORTH 0. 16' 49" WEST, 330.50 FEET, PARALLEL WITH THE
WEST LINE OF SAID LOT; THENCE, SOUTH 89. 36' 56" WEST, 243.00 FEET PARALLEL WITH
THE SOUTH LINE OF SAID LOT; THENCE SOUTH 0. 16' 49" 330.50 FEET PARALLEL WITH
SAID WEST LINE; THENCE NORTH 89. 36' 56" EAST, 243.00 FEET ALONG SAID SOUTH LINE
TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM, THE SOUTHERLY 20.00 FEET THEREOF AS CONVEYED TO THE CITY OF
SANTA ANA, A MUNICIPAL CORPORATION, BY DEEDS RECORDED MARCH 15, 1966, IN BOOK
7869, PAGES 68 AND 70 OF OFFICIAL RECORDS.
PARCEL 7:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER THE PORTION OF LOT 7 OF
TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, BEING A STRIP OF LAND
40.00 FEET IN WIDTH, THE EASTERLY LINE IF SAID 40.00 FOOT STRIP BEING DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF SAID LOT, WHICH FOR THIS DESCRIPTION
IS CONSIDERED TO BE A LINE PARALLEL WITH AND NORTHERLY 30.00 FEET FROM THE
CENTER LINE OF FOURTH STREET AS SHOWN ON THE MAP OF SAID TRACT, SAID POINT BEING
DISTANT NORTH 89. 36' 56" EAST 248.93 FEET ALONG SAID LINE FROM THE SOUTHWEST
CORNER OF SAID LOT; THENCE PARALLEL WITH THE WEST LINE OF SAID LOT, NORTH 0. 16'
49" WEST 330.50 FEET.
EXCEPT THEREFROM, THE SOUTHERLY 20.00 FEET.
PARCEL 8:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS AND FOR PARKING PURPOSES OVER,
ACROSS AND WITHIN PORTIONS OF THAT CERTAIN REAL PROPERTY IDENTIFIED AS "PARCEL
B" DESCRIBED IN THAT CERTAIN RECIPROCAL EASEMENT AGREEMENT DATED JUNE 5, 1974,
RECORDED JUNE 11, 1974, AS INSTRUMENT NO. 9596, IN BOOK 11167 AT PAGES 905, AND
FOLLOWING, OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA, FOR THE USES AND
PURPOSES AND PURSUANT TO THE RIGHTS APPURTENANT TO PARCEL 1 OF THE DEED OF TRUST
(DESCRIBED AS "PARCEL A" IN SAID RECIPROCAL EASEMENT AGREEMENT).
PARCEL 9:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS IN AND TO THAT CERTAIN PORTION
OF THOSE CERTAIN PARCELS OF REAL PROPERTY IDENTIFIED AS PARCEL B, C, AND D OF
THE DECLARATION OF ESTABLISHMENT OF DRIVEWAY AND DRIVEWAY EASEMENT AGREEMENT
DATED OCTOBER 8, 1975, AND RECORDED OCTOBER 24, 1975, AS INSTRUMENT NO. 27558,
IN BOOK 11548 AT PAGES 1126, AND FOLLOWING, OFFICIAL RECORDS OF ORANGE COUNTY,
CALIFORNIA, TO WIT: THE "DRIVEWAY", AS SUCH TERM IS DESCRIBED IN SAID
INSTRUMENT; FOR THE USES AND PURPOSES AND PURSUANT TO THE RIGHTS APPURTENANTS TO
PARCEL 1 OF THIS DEED OF TRUST (DESCRIBED AS "PARCEL A" IN SAID DECLARATION OF
ESTABLISHMENT OF DRIVEWAY AND DRIVEWAY EASEMENT AGREEMENT).
EXHIBIT B
Form of Escrow Agreement
ESCROW AGREEMENT{PRIVATE }
THIS ESCROW AGREEMENT ("Escrow Agreement") made this day of
_____________, 1999 by and among, CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P.
("Seller"), a California Limited Partnership, having a principal address at c/o
AIMCO, 1873 South Bellaire Street, Suite 1700, Denver, Colorado 80222; COLTON
REAL ESTATE GROUP, d/b/a THE COLTON COMPANY, a California corporation, having a
principal address at 2301 Campus Drive, Suite 150, Irvine, California 92612
("Purchaser"); and FIDELITY NATIONAL TITLE INSURANCE COMPANY ("ESCROW AGENT");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of August ___, 1999; and
Whereas, the Purchase Contract requires that Purchaser make a deposit
in the amount of One Million Dollars ($1,000,000.00) in cash (the "Deposit") to
be disbursed to Seller as provided in Section 3.1.1 of the Purchase Contract.
The Deposit is referred to as the "Escrow Fund".
Now, therefore, the parties agree to the following:
1. Escrow. Escrow Agent hereby agrees that upon receipt of the Deposit,
Escrow Agent shall disburse to Seller the entire Escrow Fund and all interest
accrued thereon as provided for in Section 3.1.1 of the Purchase Contract.
2. Investment of Escrow Fund. All funds received by Escrow Agent shall be
held in insured accounts and invested in such short-term, high-grade securities,
money market funds or accounts, interest bearing bank accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable (provided that Escrow Agent shall invest the Escrow
Fund as jointly directed by Seller and Purchaser should Seller and Purchaser
each in their respective sole discretion determine to issue such joint
investment instructions to the Escrow Agent) and all interest and income thereon
shall become part of the Escrow Fund and shall be remitted to Seller as provided
above.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within Ten (10) days after such party's
receipt of the Notice of claim, the claim shall be conclusively presumed to have
been approved. In such case, or in the event of mutual written consent of the
parties hereto, given or withheld in their respective sole discretion, Escrow
Agent shall, within Two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
3. Liability. Escrow Agent will be obligated to perform only the duties that
are expressly set forth herein. In case of conflicting demands upon Escrow
Agent, it may (i) refuse to comply therewith as long as such disagreement
continues and make no delivery or other disposition of any funds or property
then held (and Escrow Agent shall not be or become liable in any way for such
failure or refusal to comply with such conflicting or adverse claims or demands,
except for its failure to exercise due care, willful breach and willful
misconduct); and (ii) continue to so refrain and so refuse to act until all
differences have been adjusted by agreement and, Escrow Agent has been notified
thereof in writing signed jointly by Seller and Purchaser or (iii) to interplead
the portion of Escrow Fund in dispute.
4. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
5. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping and investment of money, instruments, and
securities received by it as Escrow Agent and for their disbursement in
accordance with the written escrow instructions given it in accordance with this
Escrow Agreement.
6. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund in accordance with the joint written instructions
signed by Seller and Purchaser.
7. Notices. Any required or permitted Notice or other communication under
this Escrow Agreement ("Notice") shall be given as follows. All Notices,
requests, demands and other communications hereunder shall be deemed to have
been duly given if the same shall be in writing and shall be delivered
personally or sent by federal express or other recognized national overnight
courier service maintaining records of delivery, or sent by registered or
certified mail, postage pre-paid, and addressed as set forth below:
(a) If to Seller:
CAPITAL EQUITY PARTNERS/TWO L.P.
c/o AIMCO
1873 South Bellaire Street
Suite 1700
Denver, CO 80222
Attention: Tim Works, Harry Alcock, Martha Carlin
Phone: 303-691-4357
With a copy to:
Richard A. Cohn, Esq.
Bryan Cave LLP
700 Thirteenth Avenue, N.W.
Washington, D.C. 20005-3961
Phone: 202-508-6228
(b) If to Purchaser:
Colton Real Estate Group
2301 Campus Drive, Suite 150
Irvine, California 92612
Attention: David Colton
Fax: 949-476-8554
(c) If to Escrow Agent:
Fidelity National Title Insurance Co.
Bank of America Center
700 Louisiana, Suite 2600
Houston, TX 77002
Attention: Lolly Avant
Phone: 713-228-3009
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
8. Fee. Escrow Agent shall receive a fee of Three Hundred Dollars ($300.00)
for its services hereunder, and be paid or reimbursed for all expenses,
disbursements and advances, including reasonable attorney's fees, incurred or
paid in connection with carrying out its duties hereunder, all amounts to be
payable by Purchaser and not out of the Escrow Fund. Non-payment of such fee by
Purchaser shall not entitle Escrow Agent to refuse or fail to act as required by
this Escrow Agreement.
9. Titles and Section Headings. Titles of sections and subsections contained
in this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
10. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
11. Non-Waiver. No waiver by either party of any breach of any term or
condition of this Escrow Agreement shall operate as a waiver of any other breach
of such term or condition or of any other term or condition. No failure to
enforce such provision shall operate as a waiver of such provision or of any
other provision hereof, or constitute or be deemed a waiver or release of any
other party for anything arising out of, connected with, or based upon this
Escrow Agreement.
12. Binding Effect. This Escrow Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns. The parties recognize and acknowledge that the powers and
authority granted Escrow Agent herein are each irrevocable and coupled with an
interest. Escrow Agent shall have no liability to any Seller for any mistakes
in judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
13. Nonlimitation of Liability. Nothing contained herein shall in any way
limit the liabilities, obligations and remedies of Seller and Purchaser as set
forth in the Purchase Contract.
14. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the California.
15 Time of Essence. Time is of the essence of this Escrow Agreement.
16. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed on its behalf duly authorized persons, all as of the
day and year first above written.
COLTON REAL ESTATE GROUP, d/b/a THE COLTON
COMPANY, a California corporation
By:
Name: Linda H. Colton
Its: President
By:
Name: Jon W. McClintock
Its: Chief Financial Officer
CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P., a
California limited partnership
By: Concap Holdings, Inc., a Texas corporation, its General Partner
By:
Name:
Its:
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By:
Name:
Its:
EXHIBIT 1.1.5
Excluded Permits
NONE
EXHIBIT 1.1.4
Schedule of Commercial Leases
Rent Roll Attached
EXHIBIT 1.1.6
Property excluded from Fixtures and Tangible Personal Property
NONE
EXHIBIT 6.2.1
Certain Exceptions to Title
1. DEFECTS, LIENS, ENCUMBRANCES, ADVERSE CLAIMS, OR OTHER MATTERS, IF ANY,
CREATED, FIRST APPEARING IN THE PUBLIC RECORDS OR ATTACHING SUBSEQUENT
TO THE EFFECTIVE DATE HEREOF BUT PRIOR TO THE DATE THE PROPOSED INSURED
ACQUIRES FOR VALUE OF RECORD THE ESTATE OR INTEREST OR MORTGAGE THEREON
COVERED BY THIS COMMITMENT.
2. GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1999-2000, A LIEN NOT YET
DUE OR PAYABLE.
3. SECOND INSTALLMENT GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1998-
1999 NOW A LIEN NOT YET DELINQUENT
4. SECOND INSTALLMENT GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1998-
1999 NOW A LIEN NOT YET DELINQUENT
5. SECOND INSTALLMENT GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1998-
1999 NOW A LIEN NOT YET DELINQUENT
6. SECOND INSTALLMENT GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1998-
1999 NOW A LIEN NOT YET DELINQUENT
7. THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO THE
PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75) OF THE REVENUE
AND TAXATION CODE OF THE STATE OF CALIFORNIA.
8. THE PROPERTY LIES WITHIN THE BOUNDARIES OF VARIOUS ASSESSMENT DISTRICTS
AND ANY AMENDMENTS THERETO.
9. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS SET FORTH IN A DOCUMENT.
IN FAVOR OF: HALL-LYON-HALL, LTD
PURPOSE: PEDESTRIAN INGRESS AND EGRESS
RECORDED: OCTOBER 10, 1968, BOOK 8749, PAGE 596, OF
OFFICIAL RECORDS.
AFFECTS: A PORTION OF THE LAND
10. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS SET FORTH IN A DOCUMENT.
IN FAVOR OF: ORANGE COUNTY FLOOD CONTROL DISTRICT
PURPOSE: WATER CONSERVATION PURPOSES
RECORDED: OCTOBER 15, 1968, BOOK 8752, PAGE 697, OF
OFFICIAL RECORDS.
AFFECTS: A PORTION OF THE LAND
11. GRANT OF VEHICULAR ACCESS RIGHTS FROM FOURTH STREET TO THE CITY OF
SANTA ANA BY INSTRUMENT RECORDED DECEMBER 2, 1970 IN BOOK 9475, PAGE
500, OFFICIAL RECORDS OF ORANGE COUNTY.
AFFECTS: PARCEL 1 AND 6
12. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS RESERVED IN A DOCUMENT.
RESERVED BY: LESSER COMMUNITY PROPERTY TRUST AND SANTA ANA
PROPERTIES, A LIMITED PARTNERSHIP
PURPOSE: INGRESS AND EGRESS AND UNDERGROUND UTILITY
LINES
RECORDED: DECEMBER 24, 1970, BOOK 9500, PAGE 225, OF
OFFICIAL RECORDS.
AFFECTS: PARCEL 1, 2 AND 6
13. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS RESERVED IN A DOCUMENT.
GRANTED TO: SOUTHERN CALIFORNIA EDISON
PURPOSE: PUBLIC UTILITIES
RECORDED: JULY 21, 1971, BOOK 9728, PAGE 273, OF OFFICIAL
RECORDS
AFFECTS: A PORTION OF PARCEL 6
14. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS RESERVED IN A DOCUMENT.
IN FAVOR OF: CITY OF SANTA ANA
PURPOSE: STREET PURPOSES
RECORDED: APRIL 25, 1973, BOOK 10662, PAGE 209, OF
OFFICIAL RECORDS.
AFFECTS: PARCEL 1, 2, AND 4
15. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS RESERVED IN A DOCUMENT.
GRANTED TO: SOUTHERN CALIFORNIA EDISON
PURPOSE: PUBLIC UTILITIES
RECORDED: NOVEMBER 26, 1973, BOOK 11000, PAGE 868, OF
OFFICIAL RECORDS
AFFECTS: A PORTION OF PARCEL 1
16. MATTERS CONTAINED IN THAT CERTAIN DOCUMENT ENTITLED "RECIPROCAL
EASEMENT AGREEMENT", EXECUTED BY UNION MUTUAL LIFE INSURANCE COMPANY
AND BETWEEN TOWN CENTER PLAZA, RECORDED JUNE 11, 1974, BOOK 11167, PAGE
905, OF OFFICIAL RECORDS.
REFERENCE IS HEREBY MADE TO SAID DOCUMENT FOR FULL PARTICULARS.
17. THE FACT THAT THE OWNERSHIP OF SAID LAND DOES NOT INCLUDE RIGHTS OF
ACCESS TO OR FROM THE STREET, HIGHWAY, OR FREEWAY ABUTTING SAID LAND,
SUCH RIGHTS HAVING BEEN RELINQUISHED BY THE DOCUMENT
RECORDED: JULY 25, 1975, BOOK 11466, PAGE 1809, OF
OFFICIAL RECORDS
AFFECTS; A PORTION OF PARCEL 4
18. MATTERS CONTAINED IN THAT CERTAIN DOCUMENT ENTITLED "DECLARATION OF
DRIVEWAY EASEMENT", EXECUTED BY UNION MUTUAL LIFE INSURANCE COMPANY AND
BETWEEN TOWN CENTER PLAZA, RECORDED OCTOBER 24, 1975, BOOK 11548, PAGE
1126 OF OFFICIAL RECORDS.
AFFECTS: ALL PARCELS
REFERENCE IS HEREBY MADE TO SAID DOCUMENT FOR FULL PARTICULARS.
19. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS RESERVED IN A DOCUMENT.
IN FAVOR OF: SOUTHERN CALIFORNIA EDISON
PURPOSE: PUBLIC UTILITIES
RECORDED: JUNE 7, 1976, BOOK 11763, PAGE 886, OF OFFICIAL
RECORDS
AFFECTS: A PORTION OF PARCELS 2, AND 4
EXHIBIT 7.2.1.1
Form of Grant Deed
{PRIVATE }Order No.
Escrow No.
When recorded return to:
Bryan Cave LLP
18881 Von Karman, Suite 1500
Irvine, CA 92612
Attn: William S. Sanderson, Esq.
SPACE ABOVE THIS LINE FOR
RECORDER'S USE
{PRIVATE }DOCUMENTARY TRANSFER TAX:
$______________
Computed on the consideration or value of __________________________________
property conveyed; OR ___________________
Computed on the consideration or value less Signature of Declarant or
Agent liens or encumbrances remaining at time of determining tax - Firm Name
sale.
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Consolidated Capital Equity Partners/Two L.P., a California limited partnership,
having a principal address at c/o AIMCO, 1873 South Bellaire Street, Suite 1700,
Denver, Colorado 80222
does hereby GRANT to Colton Real Estate Group, d/b/a The Colton Company, a
California corporation, having a principal address at 2301 Campus Drive, Suite
150, Irvine, California 92612,
the real property in the City of Santa Ana, County of Orange, State of
California, described as:
See Exhibit A attached hereto and incorporated herein
{PRIVATE }Dated _________________, 1999
CONSOLIDATED CAPITAL EQUITY
PARTNERS/TWO L.P., a
California limited partnership
By: Concap Holdings, Inc., a Texas
corporation,
its General Partner
By:___________________________ [SEAL]
Name:_______________________________
Title:______________________________
MAIL TAX STATEMENTS AS DIRECTED TO:
STATE OF CALIFORNIA ) CAPACITY CLAIMED BY
) SIGNER:
. Individual(s)
. Corporate
On _________________, 1999, before me, the ________________
undersigned, a Notary Public in and for said State, Officer(s)
COUNTYaOFy_____________________)_________________ ________________
. personally known to me - OR - . proved to me on the Title(s)
basis of satisfactory evidence, to be the person(s)
whose name(s) is/are subscribed to the within . Partner(s)
instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized . Attorney-in-Fact
capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon . Trustee(s)
behalf of which the person(s) acted, executed the
instrument. . Subscribing Witness
WITNESS my hand and official seal. . Guardian/Conservator
. Other:
____________________________ ___________________
Signature of Notary
_______________________
__
_______________________
__
SIGNER IS REPRESENTING:
Name of person(s) or
entity(ies)
_______________________
_____
_______________________
_____
STATE OF CALIFORNIA ) CAPACITY CLAIMED BY
SIGNER:
)
COUNTY OF ____________________ ) . Individual(s)
. Corporate
On _________________, 1999, before me, the ________________
undersigned, a Notary Public in and for said State, Officer(s)
personally appeared _____________________________ ________________
. personally known to me - OR - . proved to me on the Title(s)
basis of satisfactory evidence, to be the person(s)
whose name(s) is/are subscribed to the within . Partner(s)
instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized . Attorney-in-Fact
capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon . Trustee(s)
behalf of which the person(s) acted, executed the
instrument. . Subscribing Witness
WITNESS my hand and official seal. . Guardian/Conservator
. Other:
____________________________ ___________________
Signature of Notary
_______________________
__
_______________________
__
SIGNER IS REPRESENTING:
Name of person(s) or
entity(ies)
_______________________
_____
_______________________
_____
EXHIBIT A
PARCEL 1:
THAT PORTION OF LOT 7, TRACT 678, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA,
AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11, OF MISCELLANEOUS MAPS,
RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF SAID LOT 7 WITH A LINE
PARALLEL WITH AND DISTANT NORTHERLY 50.00 FEET, MEASURED AT RIGHT ANGLES, FROM
THE CENTERLINE OF FOURTH STREET AS SHOWN ON A MAP, THENCE ALONG SAID PARALLEL
LINE NORTH 89. 36' 45" EAST 248.93 FEET TO THE SOUTHWESTERLY CORNER OF THE LAND
DESCRIBED IN DEED TO TOWN CENTER PLAZA RECORDED DECEMBER 24, 1970 IN BOOK 9500,
PAGE 225, OF OFFICIAL RECORDS, RECORDS OF SAID ORANGE COUNTY; THENCE ALONG THE
WESTERLY AND NORTHERLY LINES OF SAID LAND NORTH 0. 16' 36" WEST 310.50 FEET AND
NORTH 89. 36' 45" EAST 243.00 FEET TO THE NORTHEASTERLY CORNER THEREOF; THENCE
PARALLEL WITH AND WESTERLY LINE OF LOT 7, NORTH 0. 16' 36" WEST 190.00 FEET;
THENCE PARALLEL WITH SAID CENTERLINE SOUTH 89. 36' 45" WEST 243.00 FEET; THENCE
PARALLEL WITH SAID LAST MENTIONED WESTERLY LINE SOUTH 0. 16' 36" EAST 125.00
FEET; THENCE SOUTH 89. 38' 16" WEST 40.00 FEET; THENCE PARALLEL WITH SAID LAST
MENTIONED WESTERLY LINE SOUTH 0. 16' 36" EAST 119.00 FEET; THENCE PARALLEL TO
SAID CENTERLINE SOUTH 89. 36' 45" WEST 208.93 FEET TO SAID WESTERLY LINE OF LOT
7; THENCE ALONG SAID LAST MENTIONED WESTERLY LINE SOUTH 0. 16' 36" EAST 256.50
FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THAT PORTION OF LOT 7 OF TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32,
PAGES 10 AND 11 OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY, BEGINNING AT A
POINT IN THE WESTERLY LINE OF SAID LOT 7 DISTANT THEREON SOUTH 00. 16' 36" EAST
280.50 FEET FROM NORTHWESTERLY CORNER THEREOF, THENCE ALONG SAID WESTERLY LINE
SOUTH 00. 16' 36" EAST 329.16 FEET TO THE MOST WESTERLY NORTHWESTERLY CORNER OF
THE LAND DESCRIBED IN DEED TO TOWN CENTER PLAZA, RECORDED MARCH 22, 1973 IN BOOK
10607, PAGE 545 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, THENCE ALONG THE
BOUNDARY OF SAID LAND OF TOWN CENTER PLAZA NORTH 89. 38' 15" EAST 209.05 FEET;
NORTH 00. 16' 18" WEST 119.00 FEET; THENCE NORTH 89. 38' 15" EAST 40.00 FEET;
NORTH 00. 16' 18" WEST 125.00 FEET; AND NORTH 89. 38' 15" EAST 243.00 FEET TO
THE NORTHEASTERLY CORNER THEREOF; THENCE PARALLEL WITH THE EASTERLY LINE, NORTH
00. 16' 36" WEST 201.92 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID
LOT 7 SOUTH 89. 45' 36" WEST 230.00 FEET; THENCE SOUTH 00. 16' 18" EAST 119.00
FEET TO A LINE PARALLEL WITH SAID NORTHERLY LINE AND WHICH PASSES THROUGH THE
POINT OF BEGINNING; ALONG SAID LAST MENTIONED PARALLEL SOUTH 89. 45' 36" WEST
261.93 FEET TO THE POINT OF BEGINNING.
PARCEL 3:
AN EASEMENT FOR INGRESS, EGRESS AND INCIDENTAL PURPOSES OVER THAT PORTION OF LOT
7 OF TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN DEED TO UNION MUTUAL
LIFE INSURANCE CO., RECORDED JANUARY 22, 1973, IN BOOK 10523, PAGE 219 OF
OFFICIAL RECORDS OF ORANGE COUNTY; THENCE ALONG THE WESTERLY LINE AND THEREOF
ITS NORTHERLY PROLONGATION, NORTH 00. 16' 18" WEST 583.19 FEET, TO A LINE
PARALLEL WITH THE NORTHERLY LINE OF SAID LOT 7 AND WHICH PASSES THROUGH A POINT
IN THE WESTERLY LINE OF SAID LOT DISTANT THEREON SOUTH 00. 16' 36" EAST 280.00
FEET FROM THE NORTHWEST CORNER OF SAID LOT 7; THENCE, ALONG SAID PARALLEL LINE
SOUTH 89. 45' 36" WEST 248.93 FEET TO SAID POINT, THENCE, ALONG SAID WESTERLY
LINE SOUTH 00. 16' 36" EAST 40.00 FEET; THENCE PARALLEL WITH SAID NORTHERLY LINE
NORTH 89. 45' 36" EAST 208.39 FEET MORE OR LESS, TO A LINE PARALLEL WITH AND
WESTERLY 40.00 FEET FROM THE NORTHERLY PROLONGATION OF THE LINE WESTERLY LINE OF
SAID LAND OF UNION MUTUAL LIFE INSURANCE CO., THENCE ALONG SAID PARALLEL LINE
SOUTH 00. 16' 18" EXCEPT 543.19 FEET, MORE OR LESS, TO THE NORTHERLY LINE OF THE
LAND DESCRIBED IN DEED TO THE CITY OF SANTA ANA, RECORDED MARCH 15, 1966 IN BOOK
7869, PAGE 68, OF SAID OFFICIAL RECORDS; THENCE THEREON NORTH 89. 36' 45" EXCEPT
40.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING FROM PARCEL 3 THAT PORTION THEREOF LYING WITHIN PARCEL 2 ABOVE.
PARCEL 4:
THAT PORTION OF LOT 7, TRACT NO. 678, IN THE CITY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11, OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 7; THENCE ALONG THE NORTHERLY
LINE THEREOF NORTH 89. 45' 36" EAST 491.93 FEET; THENCE, PARALLEL WITH THE
WESTERLY LINE OF SAID LOT 7 SOUTH 00. 16' 36" EAST 162.50 FEET; THENCE PARALLEL
WITH SAID NORTHERLY LINE SOUTH 89. 45' 36" WEST 230.00 FEET; THENCE SOUTH 00.
16' 18" EAST 119.00 FEET TO A LINE PARALLEL WITH SAID NORTHERLY LINE AND WHICH
PASSES THROUGH A POINT IN SAID WESTERLY LINE DISTANT THEREON SOUTH 00. 16' 36"
EAST 280.50 FEET FROM THE POINT OF BEGINNING; THENCE ALONG SAID LAST MENTIONED
PARALLEL LINE SOUTH 89. 45' 36" WEST 261.93 FEET TO SAID POINT; THENCE ALONG
SAID WESTERLY LINE NORTH 00. 16' 36" WEST 280.50 FEET TO THE POINT OF BEGINNING.
PARCEL 5:
AN EASEMENT FOR INGRESS AND EGRESS AND INCIDENTAL PURPOSES OVER THAT PORTION OF
LOT 7 OF TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN DEED TO UNION MUTUAL
LIFE INSURANCE CO., RECORDED JANUARY 22, 1973 IN BOOK 10523, PAGE 219, OF
OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE ALONG THE WESTERLY LINE THEREOF
AND ITS NORTHERLY PROLONGATION, NORTH 00. 16' 18" WEST 583.19 FEET MORE OR LESS,
TO A LINE PARALLEL WITH THE NORTHERLY LINE OF SAID LOT 7 AND WHICH PASSES
THROUGH A POINT IN THE WESTERLY LINE OF SAID LOT 7, DISTANT THEREON SOUTH 00.
16' 36" EAST 280.50 FEET FROM THE NORTHWEST CORNER OF SAID LOT 7; THENCE, ALONG
SAID PARALLEL LINE, SOUTH 89. 45' 36" WEST 248.93 FEET TO SAID POINT; THENCE,
ALONG WESTERLY LINE, SOUTH 00. 16' 36" EAST 40.00 FEET; THENCE PARALLEL WITH
SAID NORTHERLY LINE NORTH 89. 45' 36" EAST 208.93 FEET, MORE OR LESS, TO A LINE
PARALLEL WITH AND DISTANT WESTERLY 40.00 FEET FROM THE NORTHERLY PROLONGATION OF
THE WESTERLY LINE OF SAID LAND OF UNION MUTUAL LIFE INSURANCE CO.; THENCE ALONG
SAID PARALLEL LINE SOUTH 00. 16' 18" EAST 543.19 FEET, MORE OR LESS, TO THE
NORTHERLY LINE OF THE LAND DESCRIBED IN DEED TO THE CITY OF SANTA ANA, RECORDED
MARCH 15, 1966 IN BOOK 7869, PAGE 68, OF SAID OFFICIAL RECORDS; THENCE THEREON
NORTH 89. 36' 45" EAST 40.00 FEET TO THE POINT OF BEGINNING.
PARCEL 6:
THAT PORTION OF LOT 7, TRACT 678, AS SHOWN ON A MAP RECORDED IN BOOK 32, PAGES
10 AND 11 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF SAID LOT, WHICH FOR THIS DESCRIPTION
IS CONSIDERED TO BE A LINE PARALLEL WITH AND NORTHERLY 30.00 FEET FROM THE
CENTER LINE OF FOURTH STREET, AS SHOWN ON THE MAP OF SAID TRACT, SAID POINT
BEING NORTH 89. 36' 56" EAST, 491.93 FEET ALONG SAID LINE FROM THE SOUTHWEST
CORNER OF SAID LOT; THENCE NORTH 0. 16' 49" WEST, 330.50 FEET, PARALLEL WITH THE
WEST LINE OF SAID LOT; THENCE, SOUTH 89. 36' 56" WEST, 243.00 FEET PARALLEL WITH
THE SOUTH LINE OF SAID LOT; THENCE SOUTH 0. 16' 49" 330.50 FEET PARALLEL WITH
SAID WEST LINE; THENCE NORTH 89. 36' 56" EAST, 243.00 FEET ALONG SAID SOUTH LINE
TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM, THE SOUTHERLY 20.00 FEET THEREOF AS CONVEYED TO THE CITY OF
SANTA ANA, A MUNICIPAL CORPORATION, BY DEEDS RECORDED MARCH 15, 1966, IN BOOK
7869, PAGES 68 AND 70 OF OFFICIAL RECORDS.
PARCEL 7:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER THE PORTION OF LOT 7 OF
TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, BEING A STRIP OF LAND
40.00 FEET IN WIDTH, THE EASTERLY LINE IF SAID 40.00 FOOT STRIP BEING DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF SAID LOT, WHICH FOR THIS DESCRIPTION
IS CONSIDERED TO BE A LINE PARALLEL WITH AND NORTHERLY 30.00 FEET FROM THE
CENTER LINE OF FOURTH STREET AS SHOWN ON THE MAP OF SAID TRACT, SAID POINT BEING
DISTANT NORTH 89. 36' 56" EAST 248.93 FEET ALONG SAID LINE FROM THE SOUTHWEST
CORNER OF SAID LOT; THENCE PARALLEL WITH THE WEST LINE OF SAID LOT, NORTH 0. 16'
49" WEST 330.50 FEET.
EXCEPT THEREFROM, THE SOUTHERLY 20.00 FEET.
PARCEL 8:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS AND FOR PARKING PURPOSES OVER,
ACROSS AND WITHIN PORTIONS OF THAT CERTAIN REAL PROPERTY IDENTIFIED AS "PARCEL
B" DESCRIBED IN THAT CERTAIN RECIPROCAL EASEMENT AGREEMENT DATED JUNE 5, 1974,
RECORDED JUNE 11, 1974, AS INSTRUMENT NO. 9596, IN BOOK 11167 AT PAGES 905, AND
FOLLOWING, OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA, FOR THE USES AND
PURPOSES AND PURSUANT TO THE RIGHTS APPURTENANT TO PARCEL 1 OF THE DEED OF TRUST
(DESCRIBED AS "PARCEL A" IN SAID RECIPROCAL EASEMENT AGREEMENT).
PARCEL 9:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS IN AND TO THAT CERTAIN PORTION
OF THOSE CERTAIN PARCELS OF REAL PROPERTY IDENTIFIED AS PARCEL B, C, AND D OF
THE DECLARATION OF ESTABLISHMENT OF DRIVEWAY AND DRIVEWAY EASEMENT AGREEMENT
DATED OCTOBER 8, 1975, AND RECORDED OCTOBER 24, 1975, AS INSTRUMENT NO. 27558,
IN BOOK 11548 AT PAGES 1126, AND FOLLOWING, OFFICIAL RECORDS OF ORANGE COUNTY,
CALIFORNIA, TO WIT: THE "DRIVEWAY", AS SUCH TERM IS DESCRIBED IN SAID
INSTRUMENT; FOR THE USES AND PURPOSES AND PURSUANT TO THE RIGHTS APPURTENANTS TO
PARCEL 1 OF THIS DEED OF TRUST (DESCRIBED AS "PARCEL A" IN SAID DECLARATION OF
ESTABLISHMENT OF DRIVEWAY AND DRIVEWAY EASEMENT AGREEMENT).
EXHIBIT B
PERMITTED EXCEPTIONS
1. DEFECTS, LIENS, ENCUMBRANCES, ADVERSE CLAIMS, OR OTHER MATTERS, IF ANY,
CREATED, FIRST APPEARING IN THE PUBLIC RECORDS OR ATTACHING SUBSEQUENT
TO THE EFFECTIVE DATE HEREOF BUT PRIOR TO THE DATE THE PROPOSED INSURED
ACQUIRES FOR VALUE OF RECORD THE ESTATE OR INTEREST OR MORTGAGE THEREON
COVERED BY THIS COMMITMENT.
2. GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1999-2000, A LIEN NOT YET
DUE OR PAYABLE.
3. SECOND INSTALLMENT GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1998-
1999 NOW A LIEN NOT YET DELINQUENT
4. SECOND INSTALLMENT GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1998-
1999 NOW A LIEN NOT YET DELINQUENT
5. SECOND INSTALLMENT GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1998-
1999 NOW A LIEN NOT YET DELINQUENT
6. SECOND INSTALLMENT GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1998-
1999 NOW A LIEN NOT YET DELINQUENT
7. THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO THE
PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75) OF THE REVENUE
AND TAXATION CODE OF THE STATE OF CALIFORNIA.
8. THE PROPERTY LIES WITHIN THE BOUNDARIES OF VARIOUS ASSESSMENT DISTRICTS
AND ANY AMENDMENTS THERETO.
9. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS SET FORTH IN A DOCUMENT.
IN FAVOR OF: HALL-LYON-HALL, LTD
PURPOSE: PEDESTRIAN INGRESS AND EGRESS
RECORDED: OCTOBER 10, 1968, BOOK 8749, PAGE 596, OF
OFFICIAL RECORDS.
AFFECTS: A PORTION OF THE LAND
10. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS SET FORTH IN A DOCUMENT.
IN FAVOR OF: ORANGE COUNTY FLOOD CONTROL DISTRICT
PURPOSE: WATER CONSERVATION PURPOSES
RECORDED: OCTOBER 15, 1968, BOOK 8752, PAGE 697, OF
OFFICIAL RECORDS.
AFFECTS: A PORTION OF THE LAND
11. GRANT OF VEHICULAR ACCESS RIGHTS FROM FOURTH STREET TO THE CITY OF
SANTA ANA BY INSTRUMENT RECORDED DECEMBER 2, 1970 IN BOOK 9475, PAGE
500, OFFICIAL RECORDS OF ORANGE COUNTY.
AFFECTS: PARCEL 1 AND 6
12. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS RESERVED IN A DOCUMENT.
RESERVED BY: LESSER COMMUNITY PROPERTY TRUST AND SANTA ANA
PROPERTIES, A LIMITED PARTNERSHIP
PURPOSE: INGRESS AND EGRESS AND UNDERGROUND UTILITY
LINES
RECORDED: DECEMBER 24, 1970, BOOK 9500, PAGE 225, OF
OFFICIAL RECORDS.
AFFECTS: PARCEL 1, 2 AND 6
13. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS RESERVED IN A DOCUMENT.
GRANTED TO: SOUTHERN CALIFORNIA EDISON
PURPOSE: PUBLIC UTILITIES
RECORDED: JULY 21, 1971, BOOK 9728, PAGE 273, OF OFFICIAL
RECORDS
AFFECTS: A PORTION OF PARCEL 6
14. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS RESERVED IN A DOCUMENT.
IN FAVOR OF: CITY OF SANTA ANA
PURPOSE: STREET PURPOSES
RECORDED: APRIL 25, 1973, BOOK 10662, PAGE 209, OF
OFFICIAL RECORDS.
AFFECTS: PARCEL 1, 2, AND 4
15. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS RESERVED IN A DOCUMENT.
GRANTED TO: SOUTHERN CALIFORNIA EDISON
PURPOSE: PUBLIC UTILITIES
RECORDED: NOVEMBER 26, 1973, BOOK 11000, PAGE 868, OF
OFFICIAL RECORDS
AFFECTS: A PORTION OF PARCEL 1
16. MATTERS CONTAINED IN THAT CERTAIN DOCUMENT ENTITLED "RECIPROCAL
EASEMENT AGREEMENT", EXECUTED BY UNION MUTUAL LIFE INSURANCE COMPANY
AND BETWEEN TOWN CENTER PLAZA, RECORDED JUNE 11, 1974, BOOK 11167, PAGE
905, OF OFFICIAL RECORDS.
REFERENCE IS HEREBY MADE TO SAID DOCUMENT FOR FULL PARTICULARS.
17. THE FACT THAT THE OWNERSHIP OF SAID LAND DOES NOT INCLUDE RIGHTS OF
ACCESS TO OR FROM THE STREET, HIGHWAY, OR FREEWAY ABUTTING SAID LAND,
SUCH RIGHTS HAVING BEEN RELINQUISHED BY THE DOCUMENT
RECORDED: JULY 25, 1975, BOOK 11466, PAGE 1809, OF
OFFICIAL RECORDS
AFFECTS; A PORTION OF PARCEL 4
18. MATTERS CONTAINED IN THAT CERTAIN DOCUMENT ENTITLED "DECLARATION OF
DRIVEWAY EASEMENT", EXECUTED BY UNION MUTUAL LIFE INSURANCE COMPANY AND
BETWEEN TOWN CENTER PLAZA, RECORDED OCTOBER 24, 1975, BOOK 11548, PAGE
1126 OF OFFICIAL RECORDS.
AFFECTS: ALL PARCELS
REFERENCE IS HEREBY MADE TO SAID DOCUMENT FOR FULL PARTICULARS.
19. EASEMENT(S) FOR THE PURPOSE(S) SHOWN BELOW AND RIGHTS INCIDENTAL
THERETO AS RESERVED IN A DOCUMENT.
IN FAVOR OF: SOUTHERN CALIFORNIA EDISON
PURPOSE: PUBLIC UTILITIES
RECORDED: JUNE 7, 1976, BOOK 11763, PAGE 886, OF OFFICIAL
RECORDS
AFFECTS: A PORTION OF PARCELS 2, AND 4
EXHIBIT 7.2.1.2
Form of Bill of Sale
BILL OF SALE
Dated: , 1999.
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P., a
California limited partnership, having a principal address at c/o AIMCO, 1873
South Bellaire Street, Suite 1700, Denver, Colorado 80222 ("SELLER"), in
connection with the sale of certain real property ("PROPERTY") located in the
County of Orange, State of California, which is more particularly described on
Exhibit "A" attached hereto and by this reference incorporated herein, hereby
quitclaims to Colton Real Estate Group, d/b/a The Colton Company, a California
corporation, having a principal address at 2301 Campus Drive, Suite 150, Irvine,
California 92612 ("PURCHASER"), without recourse or warranty to Seller, all of
Seller's right, title and interest in and to (i) the personal property more
particularly described on Exhibit "B" hereto ("PERSONAL PROPERTY") used in, held
for use in connection with, or necessary for the operation of the Property as of
the date hereof and (ii) all other Personal Property owned by Seller and located
on the Property.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE
UNIFORM COMMERCIAL CODE FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
SELLER:
CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P.,
a California limited partnership
By: Concap Holdings, Inc., a Texas corporation,
its General Partner
By:____________________________
Name:_________________________
Its:____________________________
EXHIBIT A
PARCEL 1:
THAT PORTION OF LOT 7, TRACT 678, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA,
AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11, OF MISCELLANEOUS MAPS,
RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF SAID LOT 7 WITH A LINE
PARALLEL WITH AND DISTANT NORTHERLY 50.00 FEET, MEASURED AT RIGHT ANGLES, FROM
THE CENTERLINE OF FOURTH STREET AS SHOWN ON A MAP, THENCE ALONG SAID PARALLEL
LINE NORTH 89. 36' 45" EAST 248.93 FEET TO THE SOUTHWESTERLY CORNER OF THE LAND
DESCRIBED IN DEED TO TOWN CENTER PLAZA RECORDED DECEMBER 24, 1970 IN BOOK 9500,
PAGE 225, OF OFFICIAL RECORDS, RECORDS OF SAID ORANGE COUNTY; THENCE ALONG THE
WESTERLY AND NORTHERLY LINES OF SAID LAND NORTH 0. 16' 36" WEST 310.50 FEET AND
NORTH 89. 36' 45" EAST 243.00 FEET TO THE NORTHEASTERLY CORNER THEREOF; THENCE
PARALLEL WITH AND WESTERLY LINE OF LOT 7, NORTH 0. 16' 36" WEST 190.00 FEET;
THENCE PARALLEL WITH SAID CENTERLINE SOUTH 89. 36' 45" WEST 243.00 FEET; THENCE
PARALLEL WITH SAID LAST MENTIONED WESTERLY LINE SOUTH 0. 16' 36" EAST 125.00
FEET; THENCE SOUTH 89. 38' 16" WEST 40.00 FEET; THENCE PARALLEL WITH SAID LAST
MENTIONED WESTERLY LINE SOUTH 0. 16' 36" EAST 119.00 FEET; THENCE PARALLEL TO
SAID CENTERLINE SOUTH 89. 36' 45" WEST 208.93 FEET TO SAID WESTERLY LINE OF LOT
7; THENCE ALONG SAID LAST MENTIONED WESTERLY LINE SOUTH 0. 16' 36" EAST 256.50
FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THAT PORTION OF LOT 7 OF TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32,
PAGES 10 AND 11 OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY, BEGINNING AT A
POINT IN THE WESTERLY LINE OF SAID LOT 7 DISTANT THEREON SOUTH 00. 16' 36" EAST
280.50 FEET FROM NORTHWESTERLY CORNER THEREOF, THENCE ALONG SAID WESTERLY LINE
SOUTH 00. 16' 36" EAST 329.16 FEET TO THE MOST WESTERLY NORTHWESTERLY CORNER OF
THE LAND DESCRIBED IN DEED TO TOWN CENTER PLAZA, RECORDED MARCH 22, 1973 IN BOOK
10607, PAGE 545 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, THENCE ALONG THE
BOUNDARY OF SAID LAND OF TOWN CENTER PLAZA NORTH 89. 38' 15" EAST 209.05 FEET;
NORTH 00. 16' 18" WEST 119.00 FEET; THENCE NORTH 89. 38' 15" EAST 40.00 FEET;
NORTH 00. 16' 18" WEST 125.00 FEET; AND NORTH 89. 38' 15" EAST 243.00 FEET TO
THE NORTHEASTERLY CORNER THEREOF; THENCE PARALLEL WITH THE EASTERLY LINE, NORTH
00. 16' 36" WEST 201.92 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID
LOT 7 SOUTH 89. 45' 36" WEST 230.00 FEET; THENCE SOUTH 00. 16' 18" EAST 119.00
FEET TO A LINE PARALLEL WITH SAID NORTHERLY LINE AND WHICH PASSES THROUGH THE
POINT OF BEGINNING; ALONG SAID LAST MENTIONED PARALLEL SOUTH 89. 45' 36" WEST
261.93 FEET TO THE POINT OF BEGINNING.
PARCEL 3:
AN EASEMENT FOR INGRESS, EGRESS AND INCIDENTAL PURPOSES OVER THAT PORTION OF LOT
7 OF TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN DEED TO UNION MUTUAL
LIFE INSURANCE CO., RECORDED JANUARY 22, 1973, IN BOOK 10523, PAGE 219 OF
OFFICIAL RECORDS OF ORANGE COUNTY; THENCE ALONG THE WESTERLY LINE AND THEREOF
ITS NORTHERLY PROLONGATION, NORTH 00. 16' 18" WEST 583.19 FEET, TO A LINE
PARALLEL WITH THE NORTHERLY LINE OF SAID LOT 7 AND WHICH PASSES THROUGH A POINT
IN THE WESTERLY LINE OF SAID LOT DISTANT THEREON SOUTH 00. 16' 36" EAST 280.00
FEET FROM THE NORTHWEST CORNER OF SAID LOT 7; THENCE, ALONG SAID PARALLEL LINE
SOUTH 89. 45' 36" WEST 248.93 FEET TO SAID POINT, THENCE, ALONG SAID WESTERLY
LINE SOUTH 00. 16' 36" EAST 40.00 FEET; THENCE PARALLEL WITH SAID NORTHERLY LINE
NORTH 89. 45' 36" EAST 208.39 FEET MORE OR LESS, TO A LINE PARALLEL WITH AND
WESTERLY 40.00 FEET FROM THE NORTHERLY PROLONGATION OF THE LINE WESTERLY LINE OF
SAID LAND OF UNION MUTUAL LIFE INSURANCE CO., THENCE ALONG SAID PARALLEL LINE
SOUTH 00. 16' 18" EXCEPT 543.19 FEET, MORE OR LESS, TO THE NORTHERLY LINE OF THE
LAND DESCRIBED IN DEED TO THE CITY OF SANTA ANA, RECORDED MARCH 15, 1966 IN BOOK
7869, PAGE 68, OF SAID OFFICIAL RECORDS; THENCE THEREON NORTH 89. 36' 45" EXCEPT
40.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING FROM PARCEL 3 THAT PORTION THEREOF LYING WITHIN PARCEL 2 ABOVE.
PARCEL 4:
THAT PORTION OF LOT 7, TRACT NO. 678, IN THE CITY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11, OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 7; THENCE ALONG THE NORTHERLY
LINE THEREOF NORTH 89. 45' 36" EAST 491.93 FEET; THENCE, PARALLEL WITH THE
WESTERLY LINE OF SAID LOT 7 SOUTH 00. 16' 36" EAST 162.50 FEET; THENCE PARALLEL
WITH SAID NORTHERLY LINE SOUTH 89. 45' 36" WEST 230.00 FEET; THENCE SOUTH 00.
16' 18" EAST 119.00 FEET TO A LINE PARALLEL WITH SAID NORTHERLY LINE AND WHICH
PASSES THROUGH A POINT IN SAID WESTERLY LINE DISTANT THEREON SOUTH 00. 16' 36"
EAST 280.50 FEET FROM THE POINT OF BEGINNING; THENCE ALONG SAID LAST MENTIONED
PARALLEL LINE SOUTH 89. 45' 36" WEST 261.93 FEET TO SAID POINT; THENCE ALONG
SAID WESTERLY LINE NORTH 00. 16' 36" WEST 280.50 FEET TO THE POINT OF BEGINNING.
PARCEL 5:
AN EASEMENT FOR INGRESS AND EGRESS AND INCIDENTAL PURPOSES OVER THAT PORTION OF
LOT 7 OF TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN DEED TO UNION MUTUAL
LIFE INSURANCE CO., RECORDED JANUARY 22, 1973 IN BOOK 10523, PAGE 219, OF
OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE ALONG THE WESTERLY LINE THEREOF
AND ITS NORTHERLY PROLONGATION, NORTH 00. 16' 18" WEST 583.19 FEET MORE OR LESS,
TO A LINE PARALLEL WITH THE NORTHERLY LINE OF SAID LOT 7 AND WHICH PASSES
THROUGH A POINT IN THE WESTERLY LINE OF SAID LOT 7, DISTANT THEREON SOUTH 00.
16' 36" EAST 280.50 FEET FROM THE NORTHWEST CORNER OF SAID LOT 7; THENCE, ALONG
SAID PARALLEL LINE, SOUTH 89. 45' 36" WEST 248.93 FEET TO SAID POINT; THENCE,
ALONG WESTERLY LINE, SOUTH 00. 16' 36" EAST 40.00 FEET; THENCE PARALLEL WITH
SAID NORTHERLY LINE NORTH 89. 45' 36" EAST 208.93 FEET, MORE OR LESS, TO A LINE
PARALLEL WITH AND DISTANT WESTERLY 40.00 FEET FROM THE NORTHERLY PROLONGATION OF
THE WESTERLY LINE OF SAID LAND OF UNION MUTUAL LIFE INSURANCE CO.; THENCE ALONG
SAID PARALLEL LINE SOUTH 00. 16' 18" EAST 543.19 FEET, MORE OR LESS, TO THE
NORTHERLY LINE OF THE LAND DESCRIBED IN DEED TO THE CITY OF SANTA ANA, RECORDED
MARCH 15, 1966 IN BOOK 7869, PAGE 68, OF SAID OFFICIAL RECORDS; THENCE THEREON
NORTH 89. 36' 45" EAST 40.00 FEET TO THE POINT OF BEGINNING.
PARCEL 6:
THAT PORTION OF LOT 7, TRACT 678, AS SHOWN ON A MAP RECORDED IN BOOK 32, PAGES
10 AND 11 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF SAID LOT, WHICH FOR THIS DESCRIPTION
IS CONSIDERED TO BE A LINE PARALLEL WITH AND NORTHERLY 30.00 FEET FROM THE
CENTER LINE OF FOURTH STREET, AS SHOWN ON THE MAP OF SAID TRACT, SAID POINT
BEING NORTH 89. 36' 56" EAST, 491.93 FEET ALONG SAID LINE FROM THE SOUTHWEST
CORNER OF SAID LOT; THENCE NORTH 0. 16' 49" WEST, 330.50 FEET, PARALLEL WITH THE
WEST LINE OF SAID LOT; THENCE, SOUTH 89. 36' 56" WEST, 243.00 FEET PARALLEL WITH
THE SOUTH LINE OF SAID LOT; THENCE SOUTH 0. 16' 49" 330.50 FEET PARALLEL WITH
SAID WEST LINE; THENCE NORTH 89. 36' 56" EAST, 243.00 FEET ALONG SAID SOUTH LINE
TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM, THE SOUTHERLY 20.00 FEET THEREOF AS CONVEYED TO THE CITY OF
SANTA ANA, A MUNICIPAL CORPORATION, BY DEEDS RECORDED MARCH 15, 1966, IN BOOK
7869, PAGES 68 AND 70 OF OFFICIAL RECORDS.
PARCEL 7:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER THE PORTION OF LOT 7 OF
TRACT NO. 678, AS SHOWN ON A MAP FILED IN BOOK 32, PAGES 10 AND 11 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, BEING A STRIP OF LAND
40.00 FEET IN WIDTH, THE EASTERLY LINE IF SAID 40.00 FOOT STRIP BEING DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF SAID LOT, WHICH FOR THIS DESCRIPTION
IS CONSIDERED TO BE A LINE PARALLEL WITH AND NORTHERLY 30.00 FEET FROM THE
CENTER LINE OF FOURTH STREET AS SHOWN ON THE MAP OF SAID TRACT, SAID POINT BEING
DISTANT NORTH 89. 36' 56" EAST 248.93 FEET ALONG SAID LINE FROM THE SOUTHWEST
CORNER OF SAID LOT; THENCE PARALLEL WITH THE WEST LINE OF SAID LOT, NORTH 0. 16'
49" WEST 330.50 FEET.
EXCEPT THEREFROM, THE SOUTHERLY 20.00 FEET.
PARCEL 8:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS AND FOR PARKING PURPOSES OVER,
ACROSS AND WITHIN PORTIONS OF THAT CERTAIN REAL PROPERTY IDENTIFIED AS "PARCEL
B" DESCRIBED IN THAT CERTAIN RECIPROCAL EASEMENT AGREEMENT DATED JUNE 5, 1974,
RECORDED JUNE 11, 1974, AS INSTRUMENT NO. 9596, IN BOOK 11167 AT PAGES 905, AND
FOLLOWING, OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA, FOR THE USES AND
PURPOSES AND PURSUANT TO THE RIGHTS APPURTENANT TO PARCEL 1 OF THE DEED OF TRUST
(DESCRIBED AS "PARCEL A" IN SAID RECIPROCAL EASEMENT AGREEMENT).
PARCEL 9:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS IN AND TO THAT CERTAIN PORTION
OF THOSE CERTAIN PARCELS OF REAL PROPERTY IDENTIFIED AS PARCEL B, C, AND D OF
THE DECLARATION OF ESTABLISHMENT OF DRIVEWAY AND DRIVEWAY EASEMENT AGREEMENT
DATED OCTOBER 8, 1975, AND RECORDED OCTOBER 24, 1975, AS INSTRUMENT NO. 27558,
IN BOOK 11548 AT PAGES 1126, AND FOLLOWING, OFFICIAL RECORDS OF ORANGE COUNTY,
CALIFORNIA, TO WIT: THE "DRIVEWAY", AS SUCH TERM IS DESCRIBED IN SAID
INSTRUMENT; FOR THE USES AND PURPOSES AND PURSUANT TO THE RIGHTS APPURTENANTS TO
PARCEL 1 OF THIS DEED OF TRUST (DESCRIBED AS "PARCEL A" IN SAID DECLARATION OF
ESTABLISHMENT OF DRIVEWAY AND DRIVEWAY EASEMENT AGREEMENT).
EXHIBIT B
Personal Property
EXHIBIT 7.2.1.3
Form of Assignment
GENERAL ASSIGNMENT
This General Assignment ("ASSIGNMENT") is executed by CONSOLIDATED CAPITAL
EQUITY PARTNERS/TWO L.P., a California limited partnership, having a principal
address at c/o AIMCO, 1873 South Bellaire Street, Suite 1700, Denver, Colorado
80222 ("SELLER"), in favor of COLTON REAL ESTATE GROUP, d/b/a THE COLTON
COMPANY, a California corporation, having a principal address at 2301 Campus
Drive, Suite 150, Irvine, California 92612 ("PURCHASER").
Seller and Purchaser, have entered into that certain Agreement of Purchase
and Sale and Escrow Instructions dated as of ______________, 1999 ("PURCHASE
CONTRACT"), in which Seller has agreed to sell and Purchaser has agreed to
purchase the real property described in Exhibit "A" attached thereto and the
improvements located thereon (collectively, the "PROJECT").
Pursuant to the Purchase Contract, Seller has agreed to assign, except as
otherwise expressly provided in the Purchase Contract, without recourse or
warranty, to Purchaser all of Seller's right, title and interest, if any, in and
to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "PROPERTY" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
a. Books and Records. All of Seller's rights in and to files,
records, and books of account of the Project.
b. Licenses and Permits. All of Seller's rights and interests in
and to plans, specifications, reports, rights, privileges, licenses, permits,
surveys, entitlements, maps, agreements, and authorizations utilized with
respect to the Project.
c. Service Contracts. All of Seller's rights and interests in
and to maintenance, service or utility contracts which relate to the
maintenance, repair or operation of the Project.
d. Leases. All of Seller's rights and interests in and to
leases, subleases, and other occupancy agreements, whether or not of record,
which provide for use or occupancy of space or facilities on or relating to
the Project.
The term "PROPERTY" shall not include any of the foregoing: (i) to the
extent the same are reserved to Seller pursuant to the Purchase Contract to
which Seller and Purchaser are parties; and (ii) to the extent that the sale or
transfer thereof requires consent or approval of any third party, which consent
or approval is not obtained by Seller. Nothing herein shall create a transfer
or assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property, subject to any rights of consent as provided
therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
all liabilities and obligations of the Seller in connection with the Property
Contracts and Commercial Leases listed on Exhibit A to this Assignment and
agrees to perform all of the covenants and obligations of Seller thereunder, but
only to the extent such liabilities and obligations and/or covenants first
accrue and arise after Closing. Purchaser further agrees to indemnify, defend
and hold Seller harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Property. Seller agrees to indemnify,
defend and hold Purchaser harmless from and against any and all cost, loss, harm
or damage which may arise with respect to the Property Contracts and the
Commercial Leases which accrued prior to the date hereof.
4. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Disclaimer. This Assignment and Purchaser's acceptance of the
Property shall be without warranty by Seller or recourse to Seller, except only
as expressly stated herein or in the Purchase Contract to the contrary.
6. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of California.
8. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns.
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE
UNIFORM COMMERCIAL CODE FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
Dated: , 1999
SELLER:
CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P.,
a California limited partnership
By: Concap Holdings, Inc., a Texas corporation,
its General Partner
By:
Name:
Its:
Accepted and Agreed:
PURCHASER:
COLTON REAL ESTATE GROUP, d/b/a THE COLTON COMPANY, a California
corporation
By:
Name: Linda H. Colton
Its: President
By:
Name: Jon W. McClintock
Its: Chief Financial Officer
EXHIBIT 8.1.1.3
Certain parties on the Property
NONE
EXHIBIT 9.1.5
Form of Tenant Estoppel
TO: Colton Real Estate Group
2301 Campus Drive
Suite 150
Irvine, California 92612
Attention:
RE: LEASE AGREEMENT (THE "LEASE") DATED ______________, BY AND BETWEEN
____________________________ ("LANDLORD") AND
_____________________("TENANT")
The undersigned is the tenant under the Lease, whereby Tenant leases
from Landlord certain office space in the office building located at
______________, Santa Ana, California (the "PROPERTY"). Tenant understands that
Colton Real Estate Group ("PROSPECTIVE PURCHASER") may be purchasing the
Property from Landlord and Tenant certifies to Landlord and Prospective
Purchaser as follows:
1. The Lease is in full force and effect on the date hereof.
2. The term of the Lease began on _____________________. The termination date
of the present term of the Lease, excluding unexercised renewals, is
___________________.
3. Tenant has paid rent for the Property for the period up to and including
________________.
4. As of the date hereof, Tenant is occupying the Property and is open for
business.
5. To Tenant's knowledge, Landlord is not in default under the Lease beyond
applicable cure periods in the performance of any covenant, agreement,
term, provision or condition contained in the Lease.
6. The undersigned is authorized to execute this Estoppel Certificate on
behalf of Tenant.
Dated this _____ day of _____________, 1999.
TENANT:
___________________________________,
a ______________ ___________________
By:________________________________
Name:______________________________
Title:_______________________________
SCHEDULE 1
Permit Schedule
See Attached Permit Schedule
SCHEDULE 2
See Attached Rent Roll
SCHEDULE 3
Contract Schedule
See Attached Contract Schedule
