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) August 10, 1999
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III
(Exact name of registrant as specified in its charter)
New York 2-95502 13-3251176
(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 2. ACQUISITION OR DISPOSITION OF ASSETS.
Best Western Green Valley Hotel was sold by Drexel Burnham Lambert Real Estate
Associates III (the "Registrant") on August 10, 1999. The property was
sold to Pacifica Hospitality Group, Inc., a Nevada Corporation, an unrelated
party, for $3,300,000.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(b) Pro Forma Financial Information
The required pro forma information was provided in the Registrant's quarterly
report on Form 10-QSB for the quarter ended June 30, 1999.
(c) Exhibits
10.10 Purchase and Sale Contract between Registrant and Pacifica Companies,
a California Corporation, dated May 12, 1999.
10.11 First Amendment to Purchase and Sale Contract between Registrant and
Pacifica Companies, a California Corporation, dated May 27, 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.
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III
By: DBL Properties Corporation
Its General Partner
By: /s/ Patrick J. Foye
Executive Vice President
Date: December 1, 1999
EXHIBIT 10.10
PURCHASE AND SALE CONTRACT
BETWEEN
DBL AIRPORT VALLEY LIMITED PARTNERSHIP,
AN ARIZONA LIMITED PARTNERSHIP
AS SELLER
AND
PACIFICA COMPANIES,
A CALIFORNIA CORPORATION
AS PURCHASER
RELATING TO
BEST WESTERN HOTEL
111 SOUTH LA CANADA ROAD, GREEN VALLEY, ARIZONA
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS 1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY 4
ARTICLE 3 PURCHASE PRICE & DEPOSIT 5
ARTICLE 4 FINANCING 5
ARTICLE 5 FEASIBILITY PERIOD 6
ARTICLE 6 TITLE 9
ARTICLE 7 CLOSING 11
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER 16
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING 20
ARTICLE 10 BROKERAGE 21
ARTICLE 11 POSSESSION 21
ARTICLE 12 DEFAULTS AND REMEDIES 21
ARTICLE 13 RISK OF LOSS OR CASUALTY 22
ARTICLE 14 RATIFICATION 22
ARTICLE 15 EMINENT DOMAIN 22
ARTICLE 16 MISCELLANEOUS 23
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of
___________, 1999 (the "Effective Date") by and among DBL AIRPORT VALLEY LIMITED
PARTNERSHIP, an Arizona limited partnership ("Seller") and PACIFICA COMPANIES, a
California corporation, having a principal address at 1785 Hancock Street, Suite
100, San Diego, California 92110 ("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 located in Pima County,
Arizona, on which certain improvements have been constructed, which is commonly
known as the Best Western Hotel in Green Valley, Arizona.
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 to Purchaser;
R-3. Purchaser has agreed to pay to Seller the Purchase Price (as defined
herein) for the Property, and Seller has agreed to sell the Property to
Purchaser on the terms and conditions set forth below.
R-4. Purchaser has made such investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser has deemed
necessary and desirable, has approved the same in all respects, subject only to
the representations, warranties and covenants set forth in this Purchase
Contract and does hereby agree to consummate the transactions contemplated by
this Purchase Contract as set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Defined Terms. Terms with initial capital letters in this Purchase
Contract shall have the meanings set forth in this Article 1 below.
1.1.1 "ASSIGNMENT" shall have the meaning ascribed thereto in Section
7.2.1.3.
1.1.2 "BILL OF SALE" shall have the meaning ascribed thereto in Section
7.2.1.2.
1.1.3 "BROKER" shall have the meaning ascribed thereto in Section 10.1.
1.1.4 "BUSINESS DAY" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in Pima County, Arizona.
1.1.5 "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.
1.1.6 "CLOSING DATE" means the date which is forty-five (45) calendar days
after expiration of the Feasibility Period.
1.1.7 "CLOSING STATEMENT" shall have the meaning ascribed thereto in Section
7.2.1.4.
1.1.8 "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 which are in force as of the Effective Date,
designated on Exhibit 1.1.4 attached hereto.
1.1.9 "CONSULTANTS" shall have the meaning ascribed thereto in Section 5.1.
1.1.10 "DEED" shall have the meaning ascribed thereto in Section 7.2.1.1.
1.1.11 "DEPOSIT" shall have the meaning ascribed thereto in Section 3.1.1.
1.1.12 "ESCROW AGENT" shall have the meaning ascribed thereto in Section
3.1.1.
1.1.13 "PURCHASE CONTRACT" means this Purchase and Sale Contract by and
between Seller and Purchaser.
1.1.14 "EXCLUDED PERMITS" means those Permits which, under applicable law,
are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.14, if any, attached hereto.
1.1.15 "FEASIBILITY PERIOD" shall have the meaning ascribed thereto in
Section 5.1.
1.1.16 "FIXTURES AND TANGIBLE PERSONAL PROPERTY" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus,
appliances, inventory, automobiles 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 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 1.1.16 ("Excluded Fixtures and Tangible Personal
Property").
1.1.17 "FRANCHISE AGREEMENT" means that certain Franchise Agreement, dated
February 28, 1995, by and between Best Western International, Inc. ("Best
Western Hotels") and Seller.
1.1.18 "LAND" means all of that certain tract of land located in Pima County,
Arizona, commonly known as 111 South La Canada Road, Green Valley, Arizona,
containing approximately 3.20 acres and more particularly described in
Exhibit 1.1.18 attached hereto and made a part hereof and all rights,
privileges and appurtenances pertaining thereto.
1.1.19 "LIKE KIND EXCHANGE" AND "LIKE KIND EXCHANGE PROPERTY" shall have the
meaning ascribed thereto in Section 16.18.
1.1.20 "LIQUOR LICENSE" means that certain liquor license issued by the
Arizona Department of Liquor Licenses and Control, relating to the
Property.
1.1.21 "NOTICE" shall have the meaning ascribed thereto in Section 16.6.
1.1.22 "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.
1.1.23 "PROPERTY CONTRACTS" means those purchase orders, maintenance,
service, or utility contracts and similar contracts described on Exhibit
1.1.24.
1.1.24 "PRORATION PERIOD" shall have the meaning ascribed thereto in Section
7.1.4.
1.1.25 "IMPROVEMENTS" means all buildings and improvements located on the
Land taken "as is" containing approximately 95,164 gross square feet of
building area.
1.1.26 "MISCELLANEOUS PROPERTY ASSETS" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property
owned by Seller and assignable without consent of any third party required
for transfer, 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.
1.1.27 "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, including
without limitation, the Liquor License.
1.1.28 "PERMITTED EXCEPTIONS" means those exceptions or conditions permitted
to encumber the title to the Property in accordance with the provisions of
Section 6.2.
1.1.29 "PURCHASE PRICE" means the total consideration to be paid by Purchaser
to Seller for the purchase of the Property as described in Section 3.1.
1.1.30 "SURVEY" shall have the meaning ascribed thereto in Section 6.10.
1.1.31 "TENANT" means any person or entity entitled to occupy any portion of
the Property under a Commercial Lease.
1.1.32 "TITLE COMMITMENT" or "Title Commitments" shall have the meaning
ascribed thereto in Section 6.1.
1.1.33 "TITLE COMPANY" shall have the meaning ascribed thereto in Section
3.1.1.
1.1.34 "TITLE INSURER" shall have the meaning set forth in Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Purchase and Sale. 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 Purchase Price. The total purchase price ("Purchase Price") for the
Property shall be Three Million Three Hundred Thousand Dollars
($3,300,000.00), which shall be paid by Purchaser, as follows:
3.1.1 Deposit. On the date hereof, Purchaser shall deliver to Fidelity
National Title Insurance Company, National Title Services, Bank of America
Center, 700 Louisiana, Suite 2600, Houston, TX 77002, Attn: Ms. Lolly
Avant, Vice President, National Closing Specialist ("Escrow Agent" or the
"Title Company") a deposit in the sum of One Hundred Thousand Dollars
($100,000.00) in cash (the "Deposit"). Purchaser and Seller each approve
the form of escrow instructions attached as Exhibit 3.1.1.
3.1.2 Investment of Deposit. The Escrow Agent shall hold the Deposit and
make delivery of the Deposit to the party entitled thereto under the terms
hereof. Escrow Agent shall invest the Deposit in such short-term,
high-grade securities, interest-bearing bank accounts, money market funds
or accounts, bank certificates of deposit or bank repurchase agreements as
Escrow Agent, in its discretion, deems suitable, (provided that Escrow
Agent shall invest the Deposit 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 Deposit and
shall be remitted to the party entitled to the Deposit, as set forth below.
3.1.3 Application of Deposit. If the sale of the Property is closed by the
Closing Date, monies held as the Deposit shall be applied to the Purchase
Price (and paid over to the Seller) on the Closing Date. If the sale of
the Property is not closed by the Closing Date owing to failure of
satisfaction of a condition precedent to Purchaser's obligations, the
shallihaveaanybfurthernliabilityfhereunder,usubject,tonandeexceptpfory
Purchaser's liability under Section 5.3.
ARTICLE 4
FINANCING
4.1 Financing. Purchaser assumes full responsibility to expeditiously and
diligently initiate and pursue all steps necessary to obtain the funds
required for settlement, and acquisition of such funds shall not be a
condition to Purchaser's obligations under this Purchase Contract.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Feasibility Period. Subject to the terms of section 5.3 below, for fifteen
(15) calendar days following the Effective Date (the "Feasibility Period"),
Purchaser, and its agents, contractors, engineers, surveyors, attorneys,
and employees ("Consultants") shall have the right from time to time to
enter onto the Property and to investigate 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.
5.1.4 To investigate the feasibility, prerequisites and costs associated
with transfer of the Liquor License to Purchaser at Closing, including
without limitation, investigation of acquisition of a temporary liquor
licence operating permit for the Property.
5.1.5 To investigate feasibility, prerequisites and costs associated with
transfer of the Franchise Agreement to Purchaser at Closing, including
without limitation, consent of Best Western Hotels to such transfer.
5.2 Termination. Should the results of any of the matters referred to in
Section 5.1 above appear unsatisfactory to Purchaser for any reason, then
Purchaser shall have the right, in Purchaser's absolute discretion, to
terminate this Purchase Contract by giving Notice (as defined herein) to
that effect to Seller and Escrow Agent on or before 5:00 p.m. EST on the
date of expiration of the Feasibility Period. If Purchaser exercises such
right to terminate, this Purchase Contract shall terminate and be of no
further force and effect, subject to and except for Purchaser's liability
under Section 5.3, and Escrow Agent sahll return to Deposit to Purchaser.
If Purchaser fails to provide Seller with Notice of cancellation prior to
the end of the Feasibility Period, this Purchase Contract shall remain in
full force and effect and Purchaser's obligation to purchase the Property
shall be noncontingent and unconditional except only for satisfaction of
the conditions expressly stated in this ARTICLE 5 and in ARTICLE 9.
5.3 Indemnity; Insurance. Purchaser shall indemnify and hold Seller harmless
for any actions taken by Purchaser and the Consultants on the Property.
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. Seller shall have the right, without limitation, to disapprove any
and all entries, surveys, tests, investigations and the like that in their
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 the 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, in amounts (including deductible amounts)
and with such insurance carriers as shall be approved by Seller and naming
Seller and its affiliates as loss payees or additional insureds (at the
option of Seller), with endorsements acceptable to Seller, including a
waiver of defenses of the insurer based on the actions or inaction of
Purchaser. 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 section shall
survive the Closing or termination of this Purchase Contract.
5.4 No Liens; Information: Purchaser shall not permit any mechanics or
materialmans 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 written 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, 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.
5.5 Seller's Delivery of Reports. Unless otherwise specified below, within ten
(10) days of the Effective Date, Seller shall deliver or make available to
Purchaser at the Property, copies of the following items:
5.5.1 A current preliminary title report showing the condition of title on
the Property, along with copies of all instruments reflected therein as
exceptions to title (other than property taxes not yet due and/or pre-
printed exceptions);
5.5.2 Any and all surveys, if any, in Seller's possession for the Property;
5.5.3 Not later than ten (10) days prior to expiration of the Feasibility;
Period, an inventory of the Fixtures and Tangible Personal Property to be
conveyed to Buyer hereunder;
5.5.4 a copy of the Franchise Agreement, including any and all
modifications, supplements or amendments thereto;
5.5.5 Copies of the Commercial Leases, if any, including any and all
modifications, supplements or amendments thereto;
5.5.6 Copies of the Property Contracts, including any and all modifications,
supplements or amendments thereto;
5.5.7 Any and all site plans, surveys, soil and substrata studies,
architectural renderings, plans and specifications, engineering logs,
plans, audits, studies and reports, environmental logs, plans, audits,
studies and reports, floor plans, and other plans, diagrams or studies of
any kind in the possession of Seller;
5.5.8 Copies of the ad valorem and personal property tax statements covering
the Property for the current tax year (if available) and the tax year
immediately preceding the Effective Date; and
5.5.9 Any and all operating statements (general ledger, payroll,
reservations reports, and similar reports) for the period of Seller's
ownership of the Property.
5.5.10 During the review period, Seller shall make available any other
documents in its possession that are reasonably requested by Purchaser.
Seller makes no representation or warranty as to the truth, accuracy or
completeness of the items or any other information provided by or on behalf of
Seller to Buyer in connection with this Purchase Contract. Buyer acknowledges
and agrees that all items and other such information are provided to Buyer as a
convenience only and that any reliance on or use of such items or information
shall be at the sole risk of Buyer.
ARTICLE 6
TITLE
6.1 Title Commitment. Seller shall promptly secure a commitment for title
insurance for the Property in an amount equal to the Purchase Price ("Title
Commitment,") issued by First American Title Insurance Company or other
title insurance company which is licensed to do business in the
jurisdiction in which the Property is located and approved in writing by
Seller ("Title Insurer") for a standard coverage owner's title insurance
policy, together with legible copies of all instruments identified as
exceptions therein. Seller shall be solely responsible for all costs
relating to procurement of the Title Commitment, and Purchaser shall be
responsible for all costs of any title insurance purchased by Purchaser at
the Closing. In the event the transaction described herein fails to close
for any reason, Purchaser shall promptly return to Seller all preliminary
title reports, title commitments and other documents relating to title of
the Property.
6.2 Permitted Exceptions. Purchaser agrees to accept title to the Property and
agrees that conveyance by the Deed (as defined herein) shall be subject to
the following, all of which shall be deemed "Permitted Exceptions," and
Purchaser agrees to accept the Deed and title to the Property subject
thereto:
6.2.1 All exceptions shown in the Title Commitment (other than mechanics'
liens and taxes due and payable in respect of the period preceding Closing)
and all exceptions noted in Exhibit 6.2.1 attached hereto; and
6.2.2 Such exceptions and matters as the Title Company shall be willing to
omit as exceptions to coverage; and
6.2.3 All Commercial Leases and any other occupancy, residency, lease,
tenancy and similar agreements entered into in the ordinary course of
business; 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 during the Feasibility Period; and
6.2.5 Real estate and property taxes to the extent no 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 Liens to be Paid at Closing. 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 Property Taxes to be Paid at Closing. Unpaid liens for any and all taxes,
charges and regular and special assessments shall not be objections to
title, but shall be prorated between Seller and Purchaser as of the Closing
Date, subject to the provisions for apportionment of taxes contained
herein.
6.5 Franchise Taxes to be Paid at Closing. 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.
6.6 Financing Statements to be Released at Closing. If on the Closing Date
there are conditional bills of sale or Uniform Commercial Code financing
statements that were filed on a day more than six (6) years prior to such
Closing, and such financing statements have not been extended by the filing
of UCC-2 continuation statements within the past six (6) years prior to
such Closing, such financing statements shall not be deemed to be an
objection to title.
6.7 Title at Closing. Purchaser shall have up to and including the day which
is ten (10) days following receipt of the Title Commitment to object to any
exception tot title shown therein. Any matter not so objected to in
writing within such time period shall be deemed waived by Purchaser. With
regard to any exception to title properly objected to by Purchaser, Seller
shall have until the end of the Feasibility Period to remove such title
exception. In the absence of timely removal or timely express written
waiver by Purchaser of such exception, this Purchase Contract shall
automatically terminate, in which event the parties hereto shall have no
further obligations to each other and Purchaser shall be entitled to a full
refund of the Deposit.
6.8 No Additional Liens. 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.
6.9 No Objections to Permitted Encumbrances. 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 or that has been waived or deemed to
have been waived by Purchaser.
6.10 Survey. Purchaser at Purchaser's sole cost and expense, promptly shall
cause to be prepared a survey for the Property ("Survey") to be delivered
to Purchaser and Seller within the Feasibility Period. The Survey
(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 Commisments, 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 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 Deed.
6.10.1 Objections. Should such Survey disclose conditions that give rise to
a title exception other than a Permitted Exception, Purchaser shall have
the right to object thereto within the Feasibility Period in accordance
with the procedures set forth in ARTICLE 5 above.
6.10.2 Costs. Purchaser agrees to make payment in full of all costs of
obtaining the Survey 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 Place; Closing Date. The Closing shall take place in the offices of
Escrow Agent at Escrow Agent's office in Tucson, Arizona, or such other
place as the parties shall mutually agree upon on or before the Closing
Date. Seller and Purchaser agree that either party may deliver documents
by overnight air courier or other means so that such party need not be
physically present at the Closing.
7.1.2. Prorations. At Closin, the Escrow Agent shall make appropriate
prorations, credits, debits and adjustments in accordance Exhibit 7.1.3 as
of the Closing Date, with Seller generally being entitled to or charged
for, as the case may be, revenues and expenses relating to the Property
attributable to the period up to the Closing Date (and further credited for
any amounts paid by Seller attributable to the period on or after the
Closing Date), and Purchaser being entitled to or responsible for, as the
case may be, all of same attributable to the period on and after the
Closing Date. The proration shall be final and unadjustable except as
provided in the following paragraph, and the provisions of this Section
7.1.2. shall apply during the Proration Period (as defined below).
7.1.3. Proration Period. 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 three (3)
months 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. Any Rents that
have accrued, but have ot yet been paid shall be prorated in accordance
with estimates based upon the prior years' information (or reasonable
estimates of Seller if no such prior years' information is available), and
shall be subsequently readjusted and reapportioned upon receipt. Purchaser
shall pay Seller for rents and other receivables and revenues that have
accrued, but are not yet due and payable, at Closing.
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:
7.2.1.1 Deed. A special warranty deed ("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.
7.2.1.2 Bill of Sale. A "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. Purchaser shall execute the Bill of Sale so as
to effect an assumption by Purchaser, including, without limitation, of
Seller's obligations thereunder.
7.2.1.3 Assignment An assignment and assumption agreement ("Assignment") in
the form attached as Exhibit 7.2.1.3, transferring without recourse or
warranty all of Seller's right, title and interest in and to the
Miscellaneous Property Assets to Purchaser, subject to any consents of
third parties required for transfer. Purchaser shall assume Seller's
obligations thereunder.
7.2.1.4 Closing Statement. A closing settlement statement executed by Seller
("Closing Statement").
7.2.1.5 Seller's Title Affidavit. An affidavit in customary form reasonably
acceptable to Seller to enable Title Insurer to delete the standard
exceptions relating to mechanics liens and parties in possession from the
title insurance policy to be issued at Closing, provided that such
affidavit does not subject Seller to any greater liability or impose any
additional obligations on Seller, other than as set forth in this Purchase
Contract.
7.2.1.6 Non-Foreign Certificate. A certification of Seller's non-foreign
status pursuant to Section 1445 of the Internal Revenue Code of 1986, as
amended.
7.2.1.7 Certificate of Title. Certificate of titles transferring to Purchaser
good title to all automobiles and trucks comprising the Fixtures and
Tangible Personal Property.
7.2.1.8 Baggage. A list of all baggage checked or left in the care of Seller
at 7:00 a.m. of the Closing Date.
7.2.1.9 Employee List. A list of all on-site employees of Seller as set forth
in Section 7.5.
7.2.1.10 Delivery of Other Items. Except for the items expressly listed above
to be delivered at Closing, delivery of any other required items shall be
deemed made by Seller to Purchaser, if Seller leaves such documents at the
Property in their customary place of storage or in the custody of
Purchaser's representatives.
7.2.2 PURCHASER. At Closing, Purchaser shall deliver to Seller the
following items with respect to each Property being conveyed or transferred
by merger at such Closing:
7.2.2.1 Purchase Price. The full Purchase Price 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 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.
Purchaser, if request is made within a reasonable time prior to Closing,
agrees to provide at Closing separate certified or cashier's checks as
requested, aggregating not more than the amoiunt of the balance of the
portion of Purchase Price, to facilitate the satisfaction of any such liens
or encumbrances. The existence of any such liens or encumbrances shall not
be deemed objections to title if Seller shall comply with the foregoing
requirements.
7.2.2.2 Closing Statement. The Closing Statement executed by Purchaser.
7.2.2.3 Bill of Sale. An executed counterpart of the Bill of Sale.
7.2.2.4 Assignment. An executed counterpart of the Assignment.
7.2.2.5 Hart-Scott-Rodino Compliance. Written evidence of Purchaser's
compliance with Hart-Scott-Rodino Act requirements or of the non-
applicability thereof to the transactions contemplated by this Purchase
Contract.
7.2.2.6 Other Items. Such 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 FRANCHISE AGREEMENT. Purchaser shall be solely responsible for obtaining
any consents and payment of any fees relating to assignment of the
Franchise Agreement to Purchaser at Closing and release of Seller from its
obligations and liabilities under the Franchise Agreement, and Seller shall
reasonably cooperate with Purchaser regarding such assignment. Release of
Seller from any and all obligations and liabilities under the Franchise
Agreement shall be a condition of Closing. Five (5) days prior to Closing,
Purchaser shall give Seller written notice of whether Best Western Hotels
has approved Purchaser's assumption of and Seller's release from the
Franchise Agreement at Closing. If such consent has not been obtained,
Seller shall terminate the Franchise Agreement as of Closing, and Purchaser
may not use the license of, nor operate as, a "Best Western" hotel after
Closing.
7.4 LIQUOR LICENSE. Purchaser shall be solely responsible for obtaining any
consents and payment of any fees relating to transfer of the Liquor License
to Purchaser at Closing, and Seller shall reasonably cooperate with
Purchaser regarding such transfer.
7.5 TERMINATION OF EMPLOYEES. Seller shall terminate all employees of Seller
operation,oromanagementhofwthe)Property effectiveiascofn7:00oa.m.tontthe
Closing Date, and Seller shall be solely responsible for any amount payable
to or in respect of any such employees and all other claims relating to
such employees, including in each case any employees who are hired by
Purchaser, and including without limitation all wages, salaries, gratuities
and accrued benefits, accrued vacation and fringe benefits, health benefits
and claims, severance obligations, taxes and all other liabilities
associated with the employment of any employee to (but not including) the
Closing Date. Purchaser shall have the right after the Effective Date to
contact and interview current employees of Seller and to review all files
in the possession of Seller relating to such employees. Purchaser intends
to employ most, if not all, of those on-site salaried employees of Seller
as well as the on-site hourly employees of Seller listed on a schedule
thereof to be prepared by Seller and delivered to Purchaser on the Closing
Date, all of whom will be released from the employ of Seller at (or prior
to) Closing. Purchaser agrees to notify Seller prior to expiration of the
Feasibility Period of any such listed employees to whom Purchaser does not
intend to offer employment so that Seller may comply with any obligations
pursuant to the Worker Adjustment and Retraining Notification Act, 29
U.S.C. Section 2101 et seq. ("WARN") or under the Consolidated Omnibus
Budget Reconciliation Act of 1985, Pub. L. No. 99-272, 100 Stat. 82
("COBRA"). Each party shall assume responsibilities required of such party
under WARN or COBRA, and each party shall indemnify and hold the other
party harmless for liability resulting from WARN or COBRA directly or
indirectly resulting from the transactions contemplated by this
Agreement or by a such party's actions. This Section 7.5 shall survive
Closing and the delivery of the Deed and the other conveyance
documents.
7.6 SAFE DEPOSIT BOXES. Seller shall, on or before the seventh (7th) day
before the Closing Date, deliver written notices to any persons who have
safe deposit boxes at the Property as of the Closing Date advising of the
sale of the Property to Purchaser and requesting the removal and
verificaiton of the contents on or prior to the Closing Date. Purchaser
may have a representative on the Property during such removal of the
contents of the safe deposit boxes and participating in the verification
thereof.
7.7 ASSUMPTION OF LIABILITIES. Purchaser assumes any and all liability for the
following items located on the Property as of the Closing Date: personal
property of guests of the Property, the contents of safe deposit boxes and
baggage.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
8.1.1 Representations and Warranties. 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:
8.1.1.1 Seller is a lawfully and duly organized limited partnership, in good
standing under the laws of the state of Arizona; 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. 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 purchase contract 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;
8.1.1.2 Seller owns fee title to the Property, subject only to the Permitted
Exceptions;
8.1.1.3 There are no adverse or other parties in possession of the Property,
except for occupants, guests and Tenants or as set forth in Exhibit
8.1.1.3.
8.1.1.4 The 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 hereunder, 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;
8.1.1.5 Purchaser has no duty to collect withholding taxes for Seller pursuant
to the Foreign Investors Real Property Tax Act of 1980, as amended;
8.1.1.6 To Seller's knowledge, there are no actions, proceedings, litigation
or governmental investigations or condemnation actions either pending or
threatened against the Property;
8.1.1.7 Seller 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, 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; and
8.1.1.8 Seller discloses that the Seller has not yet provided certain
information relating to Seller's acquisition of the Property and the Liquor
License to the Arizona Department of Liquor Licenses and Control. Seller
makes no representation or warranty as to the validity, status or
transferability of the Liquor License.
8.1.1.9 Seller makes no representation or warranty as to the transferability
of the Franchise Agreement.
8.1.2 As Is Purchase. Except for the representations and warranties
expressly set forth above in Section 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
representationslor,warranties,sexpressoorrimplied,nmade byaormenforceable
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. 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. 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 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.
Purchaser agrees that the departure or removal, prior to Closing, of any
such guests, occupants or Tenants shall not be the basis for, nor shall it
give rise to, any claim on the part of Purchaser, nor shall it affect the
obligations of Purchaser under this Purchase Contract in any manner
whatsoever; and Purchaser shall close the transaction described herein and
accept delivery of the Deed with or without such tenants in possession and
without any allowance or reduction in the Purchase Price. Purchaser hereby
releases Seller from any and all claims and liabilities relating to the
foregoing matters, except as provided in Section 8.1.3 below.
8.1.3 Survival. Seller and Purchaser agree that those representations
contained in Section 8.1.1 shall survive Closing for a period of one (1)
year (that is, any proceeding based on the breach of a representation
contained in Section 8.1.1 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 8.1.1 and
Purchaser had knowledge of such breach, Purchaser shall be deemed to have
waived any right of recovery and Seller shall not have any liability in
connection therewith.
8.1.4 Definition of "Knowledge". Representations and warranties above made
to the knowledge of Seller shall not be deemed to imply any duty of
inquiry. For purposes of this Purchase Contract, the term Seller's
"knowledge" shall mean and refer to only actual knowledge of the Designated
Representative (as hereinafter defined) of the Seller and shall not be
construed to refer to the knowledge of any other partner, officer,
director, agent, employee or representative of the Seller, or any affiliate
of the Seller, or to impose upon such Designated Representative any duty to
investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term .Designated
Representative. shall refer to James R. Green.
8.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. For the purpose of inducing
Seller to enter into this Purchase Contract and to consummate the sale and
warrants to Sellerothetfollowingrasnof theeEffectivecDaterandpassoftthend
Closing Date, and such representations and warranties shall survive
Closing:
8.2.1 Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of California.
8.2.2 Purchaser, 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 no consent
of any of Purchaser's officers or members are required to so empower or
authorize Purchaser.
8.2.3 No 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.
8.2.4 Purchaser 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, and (iv) require the
consent, approval, order or authorization of, or any filing with or notice
to, any court or other governmental authority.
8.2.5 The 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.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's Conditions. 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 Documents Delivered. All of the documents required to be delivered by
Seller to Purchaser at the 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 Representations and Warranties. 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 Covenants. 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 No Other Conditions. Notwithstanding anything to the contrary, there
are no other conditions on Purchaser's obligation to close the transaction
described herein except as expressly set forth above.
9.2 Seller's Conditions. Without limiting any of the rights of Seller
elsewhere provided for in this Purchase Contract, Seller's obligation to
close the transaction described herein shall be subject to and conditioned
upon the fulfillment of each and all of the following conditions precedent:
9.2.1 Representations and Warranties. 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 Covenants. Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase Contract to
be performed or complied with by it at or prior to Closing including,
without limitation, payment in full of the Purchase Price.
9.2.3 Litigation. 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 the transactions
contemplated by this Purchase Contract or declare illegal, invalid or
nonbinding any of the covenants or obligations of the Purchaser.
9.2.4 Hart-Scott-Rodino. Purchaser shall have produced evidence reasonably
satisfactory to Seller of Purchaser's compliance with Hart-Scott-Rodino Act
requirements or of the non-applicability thereof to the transactions
contemplated by this Purchase Contract.
ARTICLE 10
BROKERAGE
10.1 Broker. Seller represents and warrants to Purchaser that it has dealt only
with Insignia/ESQ Hotel Partners (Jack Carr), 1401 Dove Street, Suite 500,
Newport Beach, California 92660, Phone: (949) 553-0808, Fax: (949) 553-0606
("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
misrepresentations, acts or omissions of the indemnifying party.
10.2 Commission. 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.
ARTICLE 11
POSSESSION
11.1 Possession. 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 Seller's Remedies. In the event Purchaser terminates this Purchase
Contract following the Feasibility Period for any reason other than
Seller's inability to convey title as required by this Purchase Contract,
or Purchaser defaults hereunder prior to the Closing Date and consummation
of the Closing does not occur by reason of such termination or default by
Purchaser, 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 5.3, the reasonable
estimate of the total net detriment that Seller would suffer in the event
that Purchaser terminates this Purchase Contract or defaults hereunder
prior to the Closing Date 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 5.3 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,
Section 5.3 above, andethefrighteofuSellerrto collectisuchtliquidatednder
damages to the extent not theretofore paid by Purchaser.
12.2 Purchaser's Remedies. 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
remedies shall be to: (a) elect to terminate this Purchase Contract and
receive reimbursement of the Deposit (or so much thereof as has been
received by Escrow Agent); or (b) sue for specific performance of this
Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 Risk of Loss. The risk of loss or damage to the Property by fire or other
casualty until the Deed 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. Upon assignment to Purchaser
of any insurance proceeds in respect of fire or other casualty occurring
between the Effective Date and the Closing, Purchaser shall have no right
to terminate this Purchase Contract on account thereof, but Seller shall
assign to Purchaser its interest in and to any insurance policies and
proceeds thereof payable as a result of such damage or destruction. 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 Ratification. This Purchase Contract shall be null and void unless fully
executed by Purchaser and Seller on or before 5PM, May 14, 1999.
ARTICLE 15
EMINENT DOMAIN
15.1 Eminent Domain. 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
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 may assign its interest in this Purchase Contract to
any entity controlled by or under common control with Purchaser pursuant to
a written assumption agreement, signed by the assignor and the assignee and
pursuant to which the named Purchaser shall remain liable jointly and
severally with such assignee as Purchaser for all obligations of Purchaser
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 permited 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:
DBL Airport Valley Limited Pacifica Companies
Partnership 1785 Hancock Street, Suite 100
c/o Clarion Hotel San Diego, CA 92110
6801 S. Tucson Blvd. Attn: Deepak Israni
Tucson, AZ 85706 Phone: (618) 296-9000
Attn: Mr. James R. Green Fax: (619) 296-9090
Phone: (520) 746-3932
Fax: (520) 889-9934
and with a copy to:
Argent Real Estate Thomas P. Sayer, Jr., Esq.
Attention: David Marquette 9974 Scripps Ranch Blvd., #284
1401 Brickell Avenue, Suite San Diego, CA 92131
520 Phone: (618) 296-9000
Phone: (305) 374-3052 Fax: (619) 296-9090
Fax: (305) 371-6898
with a copy to:
Richard A. Cohn, Esquire
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005-3960
Phone: (202) 508-6000
Fax: (202) 508-6200
In each case with a copy to:
with a copy to: Fidelity National Title
Insurance Company
Margaret E. Koppen, Esquire National Title Services
Bryan Cave LLP Bank of America Center
2 N. Central Ave., Suite 2200 700 Louisiana, Suite 2600,
Phoenix, AZ 85004 Houston, TX 77002
Phone: (602) 364-7492 Attn: Ms. Lolly Avant, Vice
Fax: (602) 364-7070 President, National Closing
Specialist
Phone: (800) 879-1677
Fax: (713) 225-2726
Any of the parties may designate a change of address by Notice to the other
parties. Whenever in this Purchase Contract the giving of Notice 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 Arizona 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
agreement 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 contempleted 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, have fully participated in the
negotiation of this instrument.
16.13 CONFIDENTIALITY. Purchaser shall not disclose the terms and
conditions contained in this Purchase Contract, shall keep the same
confidential, provided that Purchaser 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 Seller to Purchaser under the terms of this
Purchase Contract is for informational purposes only. In providing such
information to Purchaser, Seller makes no representation or warranty,
express, written, oral, statutory, or implied, and all such representations
and warranties are hereby expressly excluded. Purchaser shall not in any
way be entitled to rely upon the accuracy of such information. Such
information is also confidential and Purchaser shall be prohibited from
making such information public to any other person or entity other than its
agents and legal representatives, without Seller's prior written
authorization, which may be granted or denied in Seller's sole discretion.
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
expedient.beNoxwaiver, amendment,trelease,noramodificationaofbthisePurchase
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.
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 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.
16.19 CLOSING OF CLARION HOTEL. This Purchase Contract and Seller's
obligations hereunder shall not be subject to any condition that
simultaneous with the Closing, Seller and Purchaser shall close under a
different purchase agreement relating to purchase by Purchaser of a Clarion
Hotel located in Tucson, Arizona.
16.20 BULK SALES. Purchaser and Seller hereby agree that Seller shall have
no responsibility for and shall take no action relating to compliance with
transactionslcontemplatednbyathiscPurchaseiContract.wiPurchasertshallhe
indemnify and hold Seller harmless from and against any and all claims
relating to any failure to comply with the "bulk sales law" of any
applicable jurisdiction with respect to the sale and transfer of the
Property.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as of the
date first set forth above.
Seller: DBL AIRPORT VALLEY LIMITED PARTNERSHIP, an Arizona limited partnership
By: DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III, a New York limited
partnership, Its General Partner
By: DBL PROPERTIES CORPORATION, a New York corporation, Its General Partner
By:
Printed:
Title:
Purchaser: PACIFICA COMPANIES, a California corporation
By:
Ashok Israni, President
EXHIBITS:
Exhibit 1.1.4 Commercial Leases
Exhibit 1.1.9 Legal Description of Land
Exhibit 1.1.15 Excluded Permits
Exhibit 1.1.17 Excluded Fixtures and Tangible Personal Property
Exhibit 1.1.24 Property Contracts
Exhibit 3.1.1 Escrow instructions
Exhibit 6.2.1 Title Commitment Exceptions
Exhibit 7.1.3 Prorations
Exhibit 7.2.1.1 Special Warranty Deed
Exhibit 7.2.1.2 Bill of Sale
Exhibit 7.2.1.3 Assignment and Assumption Agreement
Exhibit 8.1.1.3 Adverse or Other Parties in Possession
EXHIBIT 7.1.3
PRORATIONS
The following items shall be prorated between Seller and Purchaser as of
the Closing Date. Where appropriate, such adjustments shall be made on the
basis of actual days elapsed over the relevant billing period, unless otherwise
provided:
(a) Fuel, electricity, water, sewer, gas, electric, telephone and other
utility charges and rents (except such metered utility charges which Seller
shall cause to be read on the Closing Date and billed to Seller). All
utility deposits shall be transferred to Purchaser, and an adjustment shall
be made to the Purchase Price for such deposits.
(b) Prepaid guest room deposits and all other deposits for advance
bookings, reservations, banquets, meals, parties, meetings, functions or
services.
(c) Rents; deposits; amounts prepaid, accrued but unpaid, past due and/or
delinquent under the Contracts; equipment leases and/or conditional sale
contracts assumed by Purchaser (if any).
(d) Security deposits (the full amount thereof, if any), and rent under
the Commercial Leases.
(e) Guest room revenues representing the sale of products and/or the
delivery of services to customers for the period of time at or prior to
7:00 a.m. on the Closing Date (but only as to products sold and delivered
or services fully delivered and completed prior to such time) shall belong
to Seller; and guest room revenues representing the sale of products and/or
the delivery of services to customers for the period of time from and after
7:00 a.m. on the Closing Date shall belong to Purchaser. At 7:00 a.m. on
the Closing Date, Seller shall cease to record on its books and records all
guest room transactions for guests then on the premises.
(f) Restaurant, gift shop, tennis shop, floral shop, public room and like
revenues for products and/or services fully delivered or provided to
customers at or prior to 7:00 a.m. on the Closing Date shall belong to
Seller; and such revenues for products and/or services delivered or
provided to customers from and after 7:00 a.m. on the Closing Date or
with respect to products and/or services delivered or completed after
7:00 a.m. on the Closing Date shall belong to Purchaser. At 7:00 a.m.
on the Closing Date, Seller shall cease to record all such
transactions on its books and records.
(g) General property taxes, special taxes, special assessments and
personal property taxes payable, arising or accruing through the
Closing Date.
(h) 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 Closing
Date 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.
***
EXHIBIT 1.1.4
Commercial Leases
None
EXHIBIT 1.1.15
Excluded Permits
None
EXHIBIT 1.1.17
Excluded Fixtures and Tangible Personal Property
None
EXHIBIT 1.1.24
(BEST WESTERN)
1. Hotel/Motel Bulk Rate Agreement,tdatedtJunes8, 1998, by and between ROBIN
CABLE SYSTEMS OF TUCSON, an Arizona limited partnership, d/b/a TCI of Green
Valley and Seller.
2. Warranty and Service Agreement, undated, by and between MIS ASSOCIATES,
INC., a Georgia corporation and Seller.
3. Agreement for Vending Services, dated November 28, 1995, by and between
TUCSON TOM'S and Seller.
4. Agreement (re: postal meter rental), dated May 12, 1998, by and between
NEOPOST LEASING/NEOPOST and Seller.
5. Addendum to Specific Service (Logo) Sign Lease (Extension of Lease Term),
dated December 8, 1995, by and between ARIZONA LOGO SIGN GROUP and Seller.
6. Lease Agreement (re: copy machine), dated January 24, 1996, by and between
SHARP ELECTRONICS CREDIT COMPANY and Seller.
7. Best Western International Membership Application and Agreement, dated
February 28, 1995. [SEE "BYLAWS" AND "RULES AND REGULATIONS" FOR
ASSIGNMENT PROVISIONS, TERMINABLE AT ANY TIME (Section14)]
EXHIBIT 3.1.1
ESCROW INSTRUCTIONS
SELLER AND BUYER:
1. Will deposit with Escrow Agent all documents necessary to complete the
sale as established by the terms of these instructions and authorize Escrow
Agent to deliver or record said documents as required herein.
2. Direct that all money payable be paid to Escrow Agent unless otherwise
specified.
3. Authorize Escrow Agent to act upon any statement furnished by a lien
holder or his agent, without liability or responsibility for the accuracy of
such statement.
4. Authorize Escrow Agent to pay from available funds held by it for said
purpose amounts necessary to procure documents and to pay charges and
obligations necessary to consummate this transaction.
5. Direct that the disbursement of any funds shall be made by check of
Escrow Agent.
6. Direct that when these instructions and all title requirements have
been complied with, Escrow Agent shall deliver, by recording in the appropriate
public office, all necessary documents, disburse all funds and issue the title
insurance policy.
7. Shall indemnify and save harmless Escrow Agent against all costs,
damages, attorney's fees, expenses and liabilities which it may incur or sustain
in connection with these instructions, any interpleader action, or any servicing
account arising herefrom (except for any wrongful acts or negligence on the part
of Escrow Agent) and will pay the same on demand.
SELLER AND BUYER AGREE:
8. Escrow Agent has the right to resign upon written ten-day notice, if
such right is exercised, all funds and documents shall be returned to the party
who deposited them.
9. Escrow Agent shall not accept payments under a cancellation notice,
unless in cash, certified or cashier's check or money order.
10. Should Escrow Agent be closed on any day of compliance with these
instructions, the requirement may be met on the next succeeding day Escrow Agent
is open for business.
11. Time is of the essence of any agreement to pay or perform hereunder
which agreement shall remain unpaid or unperformed as of close of escrow. No
payment of Buyer of such amounts shall be received or receipted for by Escrow
Agent unless all amounts due as of the date of compliance are paid unless and
until written authority therefor has been delivered to Escrow Agent by the payee
of said amount.
12. Escrow Agent may at any time, at its discretion, commence a civil
action to interplead any conflicting demands to a court of competent
jurisdiction.
13. It is fully understood that Fidelity National Title serves as an
escrow agent only in connection with these instructions and cannot give legal
advice to any party hereto.
14. The title insurance provided for, unless otherwise specified, shall be
evidenced by the standard form of title insurance policies on file with the
Insurance Director of the State of Arizona subject to exceptions shown in the
commitment for title insurance and title insurance policy issued.
***
EXHIBIT 7.2.1.1
SPECIAL WARRANTY DEED
WHEN RECORDED RETURN TO:
Margaret E. Koppen, Esq.
Bryan Cave LLP
2 North Central Avenue, 22nd Floor
Phoenix, AZ 85004
SPECIAL WARRANTY DEED
DBL AIRPORT VALLEY LIMITED PARTNERSHIP, an Arizona limited partnership
("Grantor"), for valuable consideration paid to Grantor, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby convey to PACIFICA COMPANIES, a California corporation
("Grantee"), its successors and assigns forever, all Grantor's interest in the
property, together with all Grantor's interest, if any, in any improvements and
fixtures located thereon, and all rights and appurtenances pertaining thereto
(collectively, the "Property") legally described on Exhibit A attached hereto
and made a part hereof.
Subject to existing taxes, assessments, liens, encumbrances,
covenants, conditions, restrictions, rights of way, reservations in patents,
easements, all other matters of record, and such matters as an accurate survey
or visual inspection of the Property would disclose.
Grantor warrants to Grantee that Grantor will defend title to the
Property against the acts of Grantor and none other subject to the matters
stated herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Grantor has executed this Special Warranty Deed
this ____ day of __________, 1999.
GRANTOR:
DBL AIRPORT VALLEY LIMITED PARTNERSHIP, an Arizona limited partnership
By: DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III, a New York limited
partnership, Its General Partner
By: DBL PROPERTIES CORPORATION, a New York corporation, Its General Partner
By:
Printed:
Title:
STATE OF ______________ )
) ss.
County of _____________ )
The foregoing instrument was acknowledged before me this ____ day of
__________, 1999, by _______________, the _______________ of DBL PROPERTIES
CORPORATION, a New York corporation, the general partner of DREXEL BURNHAM
LAMBERT REAL ESTATE ASSOCIATES III, a New York limited partnership, the general
partner of DBL AIRPORT VALLEY LIMITED PARTNERSHIP, an Arizona limited
partnership, on behalf of the partnership.
Notary_Public______________________
My Commission Expires:
______________________
EXHIBIT 7.2.1.2
BILL OF SALE
BILL OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, DBL AIRPORT VALLEY LIMITED PARTNERSHIP, an Arizona limited
partnership ("Seller"), hereby assigns, transfers, grants, bargains, sells,
conveys and delivers unto PACIFICA COMPANIES, a California corporation
("Purchaser"), all of its right, title and interest in and to any personal
property owned by Seller and located on the real property described on Exhibit A
attached hereto and incorporated herein by this reference (the "Personal
Property"), without representation, warranty or recourse of any kind;
TO HAVE AND TO HOLD forever the Personal Property, together with all rights and
appurtenances related thereto;
DATED this ______ day of ____________, 1999.
SELLER:
GRANTOR:
DBL AIRPORT VALLEY LIMITED PARTNERSHIP, an Arizona limited partnership
By: DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III, a New York limited
partnership, Its General Partner
By: DBL PROPERTIES CORPORATION, a New York corporation, Its General Partner
By:
Printed:
Title:
BUYER:
PACIFIC COMPANIES, a California corporation
By:__________________________________
Its:__________________________________
EXHIBIT 7.2.1.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT("Agreement") is made as of the
________ day of _______________, 1999, by and among DBL AIRPORT VALLEY LIMITED
PARTNERSHIP, an Arizona limited partnership ("Assignor") and PACIFICA COMPANIES,
a California corporation ("Assignee").
RECITALS:
A. Assignor is selling to Assignee certain real and personal property
known as the Clarion Hotel, Tucson Airport, legally described on Exhibit A
attached hereto (the "Property").
B. Assignor is the owner of certain contract rights and other items of
intangible personal property relating to the ownership or operation of the
Property owned by Seller defined in that certain Purchase and Sale Contract,
dated ___________, 1999 ("Purchase and Sale Contract"), by and between Assignor
and Assignee as the ("Miscellaneous Property Assets"). The term "Miscellaneous
Property Assets" shall have the same meaning herein as in the Purchase And Sale
Contract.
B. Assignor desires to assign to Assignee its rights, title and interest
in the Miscellaneous Property Assets.
C. Assignee wishes to assume the Miscellaneous Property Assets and accept
the assignment from Assignor subject to the terms and conditions set forth
herein.
AGREEMENTS:
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and payment of other valuable consideration, Assignor and Assignee agree as
follows:
1. Assignment. Assignor hereby assigns to Assignee all its rights, title
and interest in the Miscellaneous Property Assets, and Assignee hereby assumes
any and all obligations relating to the Miscellaneous Property Assets and
accepts such assignment.
2. Performance by Assignee. By accepting this Assignment, Assignee
hereby assumes and agrees to perform all obligations of the Assignor under the
Miscellaneous Property Assets as may accrue form and after the date of this
Agreement. Assignee hereby agrees to indemnify, defend, protect and hold
harmless Assignor from and against all losses, damages, claims, liabilities,
judgments and costs (including attorneys' fees) which Assignor may incur or
sustain by reason of any failure of Assignee to perform the obligations assumed
herein.
3. Purchase Agreement. This Agreement is executed and delivered by the
parties hereto in accordance with the Purchase and Sale Contract.
4. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns.
5. Counterparts. This Agreement may be executed in one or more
counterparts, each of which may be executed by one or more of the signatory
parties. Signature pages may be detached from the counterparts and attached to
a single copy of this Agreement to form one legally effective document.
IN WITNESS WHEREOF, this Agreement is executed effective as of the date
first above written.
ASSIGNOR:
DBL AIRPORT VALLEY LIMITED PARTNERSHIP, an Arizona limited partnership
By: DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III, a New York limited
partnership, Its General Partner
By: DBL PROPERTIES CORPORATION, a New York corporation, Its General Partner
By:
Printed:
Title:
ASSIGNEE:
PACIFICA COMPANIES, a California corporation
By:__________________________________
Its:___________________________________
EXHIBIT 8.1.1.3
Adverse or Other Parties in Possession
None.
EXHIBIT 10.11
FIRST AMENDMENT TO
PURCHASE AND SALE CONTRACT
(RE: BEST WESTERN HOTEL)
THIS FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT ("Amendment") is entered
into as of May 27, 1999, by and between DBL AIRPORT VALLEY LIMITED PARTNERSHIP,
an Arizona limited partnership ("Seller") and PACIFICA HOSPITALITY GROUP, INC.,
a Nevada corporation ("Purchaser").
RECITALS:
A. Purchaser and Seller entered into that certain Purchase and Sale
Contract ("Purchase Contract") as of May 12, 1999.
B. Purchaser and Seller desire to amend the Purchase Contract to
require an additional Earnest Money Deposit, to allow Purchaser to make certain
improvements to the Property, and to allow Purchaser to extend the Closing Date
if necessary to complete such improvements, as stated herein.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing recitals, and for
other good and valuable consideration, the receipt, sufficiency and validity of
which are hereby acknowledged, the parties hereby agree as follows:
1. Amendment. Purchaser and Seller hereby amend the Purchase Contract as
stated herein. Terms not otherwise defined within this Amendment shall have the
meanings ascribed to them in the Purchase Contract. All terms, convenants,
conditions and provisions of the Purchase Contract are hereby reinstated,
ratified, affirmed and remain in full force and effect, as modified by this
Amendment. All references to the Purchase Contract shall, hereafter, include
the provisions of this Amendment.
2. Feasibility Period. The parties acknowledge and agree that Purchaser
has waived its right to terminate the Purchase Contract pursuant to Section 5.2
of the Purchase Contract.
3. Deposit.
a. Additional Deposit. Purchaser shall make an additional Deposit
of Fifty Thousand Dollars ($50,000.00) upon execution of this Amendment.
b. Release of Deposit. Immediately upon exercise of the extension of
the Closing Date by Purchaser, as described herein, One Hundred Thousand Dollars
($100,000.00) of the Deposit shall be released to Purchaser.
c. Default of Purchaser. If, prior to the originally scheduled
Closing Date (which date is July 12, 1999), Purchaser defaults under the
Purchase Contract by giving written notice to Seller of Purchaser's intent to
not purchase the Property and is not otherwise in default, and upon written
confirmation of Seller that Seller has no claims against Purchaser under any
other provision of this Amendment or the Purchase Contract, Escrow Agent shall
immediately release Fifty Thousand Dollars ($50,000.00) of the Deposit to
Purchaser, and the remaining portion of the Deposit to Seller as liquidated
damages pursuant to Section 12.1 of the Purchase Contract. If Closing fails to
occur on or before the originally scheduled Closing Date for any other reason
besides a Seller default or the Purchaser Default described in the prior
sentence, and Purchaser has not extended the Closing Date as provided herein,
then the entire Deposit (of $150,000.00) shall be deemed liquidated damages
scheduledtClosingoDate,1and uponPanyhbreachnofaPurchaser, the entireaamount of
the Deposit shall be deemed liquidated damages pursuant to Section 12.1 of the
Purchase Contract.
4. Extension of Closing Date. If, by the originally scheduled Closing
Date, Purchaser has not completed the Improvements and/or obtained a Best
Western Hotels PIP Inspection Report with a score of 880 or better, Purchaser
may extend the Closing Date one (1) time by thirty (30) calendar days upon: (a)
written notice to Seller five (5) days prior to the originally scheduled Closing
Date; and (b) written confirmation to Seller that Best Western Hotels has been,
and is continuing to, work with Purchaser to complete the Improvements and to
approve Purchaser as a Best Western Hotels franchisee (purchase orders showing
continuing work on the Improvements shall be adequate for such confirmation).
5. Improvements to Property.
a. Best Western Hotels Inspection. The parties acknowledge that
Purchaser desires to continue operation of the Property as a Best Western hotel
after Closing. As soon as practical, Purchaser shall request an inspection of
the Property by Best Western Hotels ("Inspection"). The Inspection shall be at
Purchaser's sole expense. Purchaser shall forward a copy of the results of the
Inspection to Seller immediately upon receipt. The parties acknowledge that
such Inspection shall occur during or upon completion of the Improvements (as
defined below).
b. Improvements. Purchaser may complete or cause to be completed,
at Purchaser's sole expense, any improvements to the Property suggested by the
Inspection in order to cause the Property to fulfill Best Western Hotels'
requirements for operation as a Best Western hotel ("Improvements"). Within
five (5) days after the date of this Amendment, Purchaser shall provide Seller
with a list of the Improvements, which Improvements must be approved by Seller,
and such approval shall not be unreasonably withheld.
c. Construction. The Improvements shall be completed in accordance
with plans and specifications submitted by Purchaser to Seller and approved by
Seller in writing. The Improvements shall be completed only pursuant to
contracts approved by Seller. Purchaser shall pay all applicable sales,
consumer, use and other similar taxes pertaining to the Improvements, and all
royalties and license fees, and shall secure and pay for all approvals,
easements, assessments, charges, permits and governmental fees, licenses and
inspections necessary for construction of the Improvements. Purchaser shall
comply with and give notices required by any and all laws, ordinances, rules,
regulations and orders of all public authorities relating to construction of the
Improvements. Purchaser shall immediately provide to Seller copies of all
notices filed by Purchaser and shall provide notice to Seller (together with
copies of all notices received by Purchaser) of any notice received by Purchaser
alleging any failure to comply with applicable law, ordinance, rule, regulation
or order of public authorities relating to construction of the Improvements.
Purchaser shall be solely responsible for providing all applicable governmental
authorities any bonds, assurance agreements or other financial assurances
required with respect to the Improvements. Purchaser shall construct the
Improvements in a manner so as to not disrupt Seller's use of the Property and
operation of the Property as a hotel during construction of the Improvements.
Purchaser shall keep the Property and surrounding areas free from accumulation
of waste materials or rubbish caused by construction of the Improvements. At
completion of the Improvements, Purchaser shall remove from and about the
Property waste materials, rubbish, tools, construction equipment, machinery and
surplus materials. Purchaser shall engage and bear all cost of the necessary
professionals to provide engineering and design work pertaining to the
Improvements. Construction of the Improvements may not be undertaken unless and
until Seller has received the consent of any lender whose loan to Seller is
secured by the Property, which consent shall be obtained by Purchaser, with
Seller's cooperation, at no cost to Seller.
d. Deposits for Improvements. If the unpaid portion of the
anticipated cost of the Improvements should at any time exceed Fifty Thousand
Dollars ($50,000.00), Purchaser shall immediately notify Seller in writing of
such excess, and shall immediately deposit into escrow the excess amount. Such
additional deposit shall be deemed a portion of the "Deposit", shall be
nonrefundable and shall be applied to the Purchase Price at Closing.
e. Completion. Prior to the Closing Date, Purchaser shall obtain
final acceptance and approval of the Improvements from any required governmental
authority, at Purchaser's sole expense, and Purchaser shall deliver to Seller of
acceptable lien waivers demonstrating that all costs and expenses incurred for
the construction of the Improvements have been fully paid and discharged by
Purchaser, or a statutory bond protecting against materialmen's and mechanics'
liens.
f. Indemnity. To the fullest extent permitted by law, Purchaser
does and shall indemnify, defend and hold harmless, and hereby releases and
discharges, Seller and its partners and agents, and their respective owners,
employees, directors, officers, agents, affiliates, successors and assigns
(collectively, the "Seller-Related Persons"), for, from and against all claims,
demands, liabilities, losses, damages, costs and expenses, including but not
limited to court costs and reasonable attorneys' fees, arising out of, resulting
from or in connection with: (a) construction of the Improvements or Purchaser's
use or occupancy of the Property; (b) any work, occurrence, conduct, act or
omission maintained, performed, permitted or suffered by Purchaser or any
representative, subcontractor or supplier of Purchaser, or any employee, agent,
invitee or licensee of any of the foregoing, on or about or pertaining to the
Property; (c) any condition of or on the Property or of or on any street, curb
or sidewalk thereon or adjacent thereto or any improvement constructed or to be
constructed thereon; (d) Purchaser's failure to perform Purchaser's obligations,
or Purchaser's breach of Purchaser's representations or warranties, relating in
any way to the Improvements or the Purchase Contract, including, without
limitation, payment of claims relating to mechanics' or materialmens' liens and
acquisition of releases to any such liens; (e) any act or negligence of
Purchaser or its representatives, subcontractors, suppliers, employees, agents,
invitees or licensees; and (f) any accident, injury or damage whatsoever caused
to any person, firm or corporation in the Property or any sidewalk, street or
land adjacent thereto arising as a result of any act or omission of Purchaser or
its representatives, subcontractors, suppliers, employees, agents, invitees or
licensees or arising from construction of the Improvements. The indemnification
obligation under this paragraph shall not be limited by a limitation on amount
or type of damages, compensation or benefits payable by or for Purchaser under
workers' or workmen's compensation acts, disability benefit acts or other
employee benefit acts.
g. Warranty. Purchaser warrants that the Improvements shall be free
from all defects of materials and workmanship. At its sole cost and expense,
Purchaser shall promptly repair or replace all defective items of the
Improvements, including, without limitation, utility connections and work
appurtenant thereto, and repair all damage resulting therefrom, but if Purchaser
fails to commence such repairs and to continue making such repairs in a diligent
manner, within fifteen (15) days after notice from Seller of the need therefor,
Seller may pursue an action for specific performance or damages or may do the
repair work itself, and Purchaser shall immediately reimburse Seller for all
costs incurred therefor together with interest thereon at eighteen percent (18%)
per annum from the date expended until reimbursed; or, at Seller's option,
Seller may offset such costs against any and all amounts due Seller by
Purchaser.
h. Remedies. Notwithstanding any provision of this Amendment or the
Purchase Contract, in the case of a default by Purchaser of any provision of
this Amendment or the Purchase Contract, Seller may pursue any and all remedy,
in law or in equity, against Purchaser. If at any time prior to Closing,
Purchaser shall be in default under any provision of this Amendment relating to
construction of the Improvements, Seller shall give written notice of such
default, and the amount necessary to correct such default, to Purchaser and to
Escrow Agent, and Escrow Agent shall immediately release a portion of the
Deposit equal to such amount to Seller for correction of the default.
i. Ownership of Improvements. While Purchaser shall be solely
responsible for payment of all costs and expenses of the Improvements and for
indemnifying Seller for all liability with respect to the Improvements, the
Improvements shall be the sole and absolute property of Seller, and Purchaser
hereby grants and conveys the Improvements to Seller and its successors and
assigns; provided, however, in the event Closing occurs under the Purchase
Contract, Seller shall convey the Improvements to Purchaser at Closing as part
of the Property. Purchaser hereby acknowledges and agrees that, if for any
reason Closing does not occur, in no case shall Purchaser have any claim against
Seller relating to reimbursement, consideration for or ownership of the
Improvements, and Seller hereby waives any and all such claims, including,
without limitation any and all claims in law, equity or under any theory of
quantum meruit.
j. No Contingency to Closing. The parties acknowledge and agree
that completion of the Improvements, approval of the Property by Best Western
Hotels or approval of Purchaser by Best Western Hotels as a Best Western Hotels
franchisee are not contingencies to Closing.
k. Liens. Mechanics' and materialmens' liens resulting from
construction of the Improvements, if any, shall be "Permitted Exceptions"
pursuant to Section 6.2 of the Purchase Contract, and Purchaser shall take title
to the Property at Closing subject to such liens.
6. Binding Effect. This Amendment shall become effective only upon full
execution of this Amendment by Purchaser and Seller. This Amendment shall inure
to the benefit of and shall be binding upon the parties hereto and their
respective successors and assigns.
7. Counterparts. This Amendment may be executed in several counterparts,
each of which counterparts shall be deemed an original instrument and all of
which together shall constitute a single Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Purchase and Sale Contract as of the date and year first above written.
SELLER:
DBL AIRPORT VALLEY LIMITED PARTNERSHIP, an Arizona limited partnership
By: DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III, a New York limited
partnership, Its General Partner
By: DBL PROPERTIES CORPORATION, a New York corporation, Its General Partner
By:
Printed:
Title:
PURCHASER:
PACIFICA COMPANIES, a California corporation
By:
Ashok Israni, President
AGREED AND ACCEPTED BY ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
Name:
Its:
