UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC
20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: April 10, 1997
INVESTORS FIRST-STAGED EQUITY L.P.
(Exact name of registrant as specified in its charter)
DELAWARE 0-14470 36-3310965
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification
Number)
630 Dundee Road, Suite 220
Northbrook, Illinois 60062
(Address of Principal Executive Office)
Registrant's telephone number, including area code (847) 714-9600
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(C) EXHIBITS
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INVESTORS FIRST-STAGED EQUITY L.P.
By: VMS Realty Investment II,
General Partner
By: JAS Realty Corporation
Date: August 14, 1997 By: /s/Joel A. Stone
Joel A. Stone
President
Date: August 14, 1997 By: /s/ Thomas A. Gatti
Thomas A. Gatti
Senior Vice President and
Principal Accounting Officer
Exhibit Index
Exhibit
10D Contracts related to sale of buildings and land at Serramonte
Plaza:
a) CONTRACT OF SALE executed August 28, 1996, made and entered into
by and between Serramonte Plaza, a California limited
partnership, and Daly City Partners, LLC, a California limited
liability company.
b) FIRST AMENDMENT TO CONTRACT OF SALE entered into effective as of
September 27, 1996, by and between Serramonte Plaza, a California
limited partnership, and Daly City Partners, LLC, a California
limited liability company.
c) SECOND AMENDMENT TO CONTRACT OF SALE entered into effective as of
October 7, 1996, by and between Serramonte Plaza, a California
limited partnership, and Daly City Partners, LLC, a California
limited liability company.
d) THIRD AMENDMENT TO CONTRACT OF SALE entered into effective as of
October 14, 1996, by and between Serramonte Plaza, a California
limited partnership, and Daly City Partners, LLC, a California
limited liability company.
e) FOURTH AMENDMENT TO CONTRACT OF SALE entered into effective as of
November 1996, by and between Serramonte Plaza, a California
limited partnership, and Daly City Partners, LLC, a California
limited liability company.
f) FIFTH AMENDMENT TO CONTRACT OF SALE entered into effective as of
January 1997, by and between Serramonte Plaza, a California
limited partnership, and Daly City Partners, LLC, a California
limited liability company.
g) SIXTH AMENDMENT TO CONTRACT OF SALE entered into effective as of
March 20, 1997, by and between Serramonte Plaza, a California
limited partnership, and Daly City Partners, LLC, a California
limited liability company.
h) ASSIGNMENT AND ASSUMPTION OF LEASES.
i) BLANKET CONVEYANCE, BILL OF SALE AND ASSIGNMENT.
CONTRACT OF SALE
THIS CONTRACT OF SALE (this "Contract") is made and entered into by
and between Serramonte Plaza, a California limited partnership ("Seller"), and
Daly City Partners, LLC, a California limited liability company, or assignee
("Purchaser").
ARTICLE I.
SALE OF THE PROPERTY
1.1 Property. For the consideration and upon and subject to the
terms, provisions and conditions of this Contract, Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, Seller's respective
rights, titles and interests in and to all of the following described property
(collectively, the "Property"):
(a) Subject to Section 2.2 below, all of Seller's rights,
titles and interest in and to those certain parcels of land (the "Land") being
located in the City of Daly City, San Mateo County, California, and more
particularly described on Exhibit A attached hereto and made a part hereof for
all purposes, together with all improvements, structures and fixtures, if any,
located on the Land, including without limitation the building currently leased
to Mason McDuffie located on Parcel 3, the building currently leased to Bank of
the West located on Parcel 1, and the theater complex located on Parcel 2 (the
"Improvements"), and all rights, titles and interest of Seller appurtenant to
the Land and Improvements, including, without limitation, appurtenant easements,
adjacent roads, highways and rights-of-way, but excluding all portions of the
Serramonte Plaza Shopping Center (and rights, titles and interest of Seller
appurtenant thereto) not described on Exhibit A (all of which, with the
exception of such portions previously purchased by Daly City Partners, LLC,
shall be retained by Seller);
(b) All tangible personal property of any kind (the
"Personalty") owned by Seller and attached to or located on or used exclusively
in connection with the Land or Improvements;
(c) All of Seller's rights, titles and interests under any
leases or other agreements demising space in or providing for the use occupancy
of the Improvements or Land (the "Tenant Leases"), and, to the extent actually
received and held by Seller, all unapplied deposits, whether security or
otherwise ("Deposits"), paid by tenants (each, a "Tenant") holding under the
Tenant Leases; and
(d) All of Seller's rights, titles and interest in and to
all service contracts, warranties, guaranties and bonds in effect at Closing
relating to the Land, the Improvements or the Personalty, to the extent the same
are assignable (the "Contracts").
ARTICLE II.
PURCHASE PRICE AND ADJUSTMENTS
2.1 Purchase Price. The total Purchase Price (herein so called)
to be paid by Purchaser to Seller for the Property is Four Million Nine Hundred
Thirty Five Thousand One Hundred Sixty-Two Dollars ($4,935,162) payable in cash
or Current Funds (hereinafter defined) at the Closing (hereinafter defined).
The Purchase Price is based upon Land square footage (excluding Parcel 1) of
207,751 square feet and is subject to adjustment as set forth in Sections 2.2,
2.3 and 2.5 below.
Pursuant to that certain Easement Agreement dated as of
November 15, 1994 by and among Serramonte and certain other parties, which was
recorded in the Official Records of San Mateo County on September 5, 1995 and
pursuant to that certain Memorandum of Lease dated as of April 15, 1994 between
Serramonte and John Breuner Company, which was recorded in the Official Records
of San Mateo County on April 25, 1994, 28,880 square feet of the Land is
required to be used as ingress/egress drive aisles (the "Drive Aisle Area").
The Purchase Price has already been reduced by $635,360 (representing the
product of 28,880 square feet and $22.00 per square foot) for the Drive Aisle
Area.
2.2 Parcel 11 Lot Split and Potential Purchase Price Adjustment.
(a) Exhibit A indicates that only a portion of Parcel 11 is
subject to this Contract. The parties acknowledge and agree that (i)
concurrently with Closing (as defined below), they intend to record a lot split
of Parcel 11 into two (2) legal parcels approximately as indicated on the
diagram attached hereto as Exhibit B, and (ii) only the northeast portion of
Parcel 11 as shown on Exhibit B shall be subject to this Contract and conveyed
to Purchaser at Closing. Such northeast portion of Parcel 11 indicated on
Exhibit B constitutes the "Subject Portion." Purchaser shall be solely
responsible for the preparation of recordable instruments and for seeking any
required governmental approvals in connection with the lot split of Parcel 11
and Seller shall cooperate fully with Purchaser in such efforts; provided, that
the lot split shall not be effected unless and until the Closing occurs under
this Contract. Purchaser agrees to keep Seller informed of all developments in
connection therewith. The cost of obtaining the lot split, as well as the
reduction in parking requirements described below, shall be borne by Purchaser.
The parties acknowledge that the Subject Portion as configured on Exhibit B
includes a portion of Parcel 11 that is described in Exhibit D to, and subject
to, that certain Reciprocal Easement Agreement dated December 4, 1995 by and
between Purchaser and Serramonte Plaza, a California limited partnership,
recorded in the Official Records of San Mateo County, California on December 14,
1995 as Document No. 95135909 ("REA 2"), and contains approximately 57,681
square feet.
(b) The Purchase Price includes a price of $22.00 per square
foot of the Subject Portion as configured on Exhibit B. Notwithstanding the
provisions of subparagraph (a) above, to the extent that any of the land in the
Subject Portion as configured on Exhibit B is required to be encumbered by a
parking easement, the approximate location of which is depicted in Exhibit B-1,
in order to satisfy parking requirements imposed by any city or county authority
for the office building currently located on Parcel 11, the Purchase Price shall
be reduced according to the following formula: the square footage of parking
spaces located in the Subject Portion that are necessary to satisfy parking
requirements imposed by any city or county authority for the office building
currently located on Parcel 11 shall be multiplied by $22.00 per square foot,
and the Purchase Price shall be reduced by such amount. Seller and Purchaser
shall use their best efforts to reduce the parking requirements for the office
building currently located on Parcel 11; provided, that Seller shall not be
required to agree to any reduction in parking spaces which materially and
adversely impacts the value or use of the portion of Parcel 11 retained by
Seller and, in any event, the Subject Portion shall be encumbered, as of the
Closing Date, by a parking easement sufficient to provide a total of not less
than 185 parking spaces, including the new parking spaces that can be created by
Seller on the north side and the west side of the office building currently
located on Parcel 11, for the portion of Parcel 11 not sold to Purchaser.
(c) Purchaser and Seller hereby acknowledge and agree that
in connection with the lot split of Parcel 11, the description of the Land
attached hereto as Exhibit A will be modified from the description initially set
forth in such Exhibit A in such a manner that the lot line will run
approximately along the edge of the south side of the building shown as the
proposed building on Exhibit B-1, with such final lot lines to be agreed upon
prior to the end of the Inspection Period, subject to the reasonable approval of
both Seller and Purchaser. Upon completion of the survey set forth in Section
2.3, and upon the approval of the final Exhibit A as set forth in this Section,
this Contract shall be amended to substitute such new legal description as
Exhibit A hereof, and Purchaser and Seller agree to execute and deliver an
amendment to this Contract to such effect.
2.3 Verification of Land Area and Potential Purchase Price
Adjustment. Purchaser shall, at its sole cost and expense, obtain a current
survey of the Land and the Improvements. The Purchase Price shall be adjusted
(according to a rate of $22.00 per square foot of Land) if the area of the Land
as set forth in said survey (excluding Parcel 1) is not equal to 207,751 square
feet (which includes 28,880 square feet for the Drive Aisle Area), and the
Purchase Price will be increased (according to a rate of $22.00 per square foot
of Land) if the area of the Drive Aisle Area, as set forth in said survey, is
less than 28,880 square feet. The portion of the Purchase Price allocable to
Parcel 1 shall remain fixed at $1,000,000 notwithstanding the area of that
Parcel as set forth in said survey.
2.4 Asbestos Remediation. Purchaser shall within the Inspection
Period, at the sole cost and expense of Seller, obtain an asbestos survey of the
Land and the Improvements in form and substance reasonably acceptable to
Purchaser and Seller sufficient to enable the parties to determine the asbestos
remediation required or appropriate (the "Asbestos Survey"). Seller agrees that
the costs of such remediation shall include (i) the cost of obtaining the
Asbestos Survey (for which Seller shall reimburse Purchaser), (ii) the cost of
the Theater Remediation (as defined below), and (iii) the amount of the cost
estimate for remediating the asbestos and the asbestos containing materials in
the Mason McDuffie building located on Parcel 3 and the Bank of the West
building located on Parcel 1 (items (i), (ii) and (iii) being referred to
collectively as the "Remediation Items"). Upon receipt of the Asbestos Survey
by Seller and Purchaser, Purchaser shall obtain bids or estimates, on behalf of
Seller, reasonably acceptable to Seller and Purchaser for the completion of the
Remediation Items (the "Remediation Estimate") and shall deliver the Remediation
Estimate to Seller. In the event that the Remediation Estimate exceeds $150,000
(the "Asbestos Cap"), Purchaser shall notify Seller within ten (10) days after
the end of the Inspection Period whether Purchaser agrees to pay the excess.
Purchaser's failure to give any such notice shall be deemed an election not to
pay the excess. In the event Purchaser elects not to pay such excess costs,
Seller shall have the right to terminate this Contract by delivery of a written
notice to Purchaser given in accordance with the provisions of Section 13.1
hereof, in which event the Title Company shall return the Earnest Money Deposit
to Purchaser and neither party shall have any further rights or liabilities
hereunder, except for provisions of this Contract which by their terms expressly
survive the termination of this Contract. If this Contract remains in effect,
during the period prior to the Closing Date (the "Remediation Period") Seller
shall remediate, to levels established in the Remediation Estimate and
reasonably acceptable to Purchaser, the asbestos and the asbestos containing
materials only on the land and in the improvements that comprise the theater
complex located on Parcel 2 (the "Theater Remediation"). During the Remediation
Period, Seller shall be entitled to utilize the Earnest Money Deposit (as
defined in Section 3.1 hereof) for the Theater Remediation. Purchaser shall be
under no obligation to replenish the Earnest Money Deposit for any amounts
actually used by Seller for the Theater Remediation. Seller shall use its best
efforts to minimize the costs of the Theater Remediation and shall do so, in
part, by completing partial interior demolition of the theater complex in
connection with the Theater Remediation. If Seller's costs actually incurred in
performing the Theater Remediation are less than the Asbestos Cap, an amount
equal to the unspent portion of the Asbestos Cap shall be paid to Purchaser at
Closing to reimburse Purchaser for expenses incurred or to be incurred in
performing asbestos remediation work on the Mason McDuffie and Bank of the West
buildings.
2.5 Potential Price Adjustment Regarding Mason McDuffie. The
Purchase Price shall be adjusted pursuant to the terms of Section 7.1(c).
ARTICLE III.
EARNEST MONEY DEPOSIT
3.1 Amount and Timing. Within one (1) business day after the
Effective Date (hereinafter defined), Purchaser shall deliver to Old Republic
Title Insurance Company, located at 333 Bush Street, San Francisco, CA 94104
(the "Title Company"), Thirty-Seven Thousand Five Hundred Dollars ($37,500) (the
"Initial Deposit") in cash or Current Funds (hereinafter defined), to be held by
the Title Company in escrow to be applied or disposed of by the Title Company as
is provided in this Contract. Unless Purchaser has previously terminated this
Contract on or before the end of the Inspection Period (as hereinafter defined)
pursuant to its rights under Section 5.2 hereof, then on or before the end of
the Inspection Period, the Purchaser shall deliver to the Title Company an
additional $62,500 and thereafter, upon Purchaser's review and reasonable
approval of Seller's contract(s) with contractors for the Theater Remediation
and accompanying interior demolition, an additional amount of no more than
$50,000 necessary for Seller to effect the Theater Remediation and accompanying
interior demolition (the "First Additional Deposit") in cash or current funds,
to be held by the Title Company in escrow to be applied or disposed of by the
Title Company as is provided in this Contract. In the event that the First
Additional Deposit exceeds $62,500 as a result of Purchaser's deposit of an
additional amount of no more than $50,000 necessary for Seller to effect the
Theater Remediation and accompanying interior demolition, Purchaser shall have
the right to extend the Closing Date by no more than thirty (30) days by
providing notice of such extension and of the new Closing Date to Seller;
provided, however, that, in the event, Seller has executed and delivered this
Agreement on or before August 21, 1996, the Closing Date shall occur no later
than December 31, 1996; provided, further, however, that for every day's delay
beyond August 21, 1996 in Seller's execution and delivery of this Agreement, the
Closing Date shall be extended by an equal amount of time. The Initial Deposit
(together with interest thereon) and the First Additional Deposit (together with
interest thereon) are herein collectively referred to as the "Earnest Money
Deposit"; provided, that until the First Additional Deposit has been made, the
term "Earnest Money Deposit" shall mean the Initial Deposit (together with
interest thereon). Notwithstanding the foregoing sentence, in the event of any
termination of this Contract and the required delivery of the Earnest Money
Deposit to Seller, the amount of such Earnest Money Deposit shall be deemed the
amount set forth in this Section 3.1 less any portion of the Earnest Money
Deposit used by Seller for the Theater Remediation pursuant to Section 2.4. In
the event Purchaser fails to deposit any portion of the Earnest Money Deposit
with the Title Company as herein provided, this Contract shall automatically
terminate and any portion of the Earnest Money Deposit which has been delivered
to the Title Company shall promptly be paid to the Seller, and neither Seller
nor Purchaser shall have any further obligations hereunder except for provisions
of this Contract which by their terms expressly survive the termination of this
Contract. As used in this Contract, the term "Current Funds" shall mean wire
transfers, certified funds or a cashier's check in a form acceptable to the
Title Company which would permit the Title Company to immediately disburse such
funds.
3.2 Application and Interest. If the purchase and sale hereunder
is consummated, then the Earnest Money Deposit shall be applied to the Purchase
Price at Closing. In all other events, the Earnest Money Deposit shall be
disposed of by the Title Company as provided in this Contract. The Earnest
Money Deposit shall be invested in an interest-bearing account with a financial
institution and in a manner reasonably acceptable to Seller and Purchaser. All
interest earned on the Earnest Money Deposit is part of the Earnest Money
Deposit, to be applied or disposed of in the same manner as the Earnest Money
Deposit under this Contract.
ARTICLE IV.
TITLE AND SURVEY
4.1 Title Commitment. Within ten (10) days after the Effective
Date, Seller shall cause to be furnished to Purchaser a current ALTA Commitment
for Title Insurance (the "Title Commitment") issued by the Title Company. The
Title Commitment shall set forth the state of title to the Property, including a
list of conditions or exceptions to title affecting the Property that would
appear in an Owner's Policy of Title Insurance, if one were issued. The Title
Commitment shall contain the expressed commitment of the Title Company to issue
the Title Policy (hereinafter defined) to Purchaser in an amount of the Purchase
Price, insuring the title to the Property specified in the Title Commitment. At
such time as the Title Commitment is furnished to Purchaser, the Title Company
shall also furnish to Purchaser copies of instruments or documents (the
"Exception Documents") that create or evidence conditions or exceptions to title
affecting the Property, as described in the Title Commitment.
4.2 Survey. Within ten (10) days after the Effective Date, Seller
shall provide to Purchaser a copy of the most complete survey of the Land and
Improvements in Seller's possession.
4.3 Review of Title and Survey. Purchaser shall have until the
end of the Inspection Period (hereinafter defined) in which to notify Seller in
writing of any objections Purchaser has to any matters shown or referred to in
the Title Commitment, the Exception Documents or on the Survey. Any title
encumbrances, exceptions or other matters which are set forth in the Title
Commitment, the Exception Documents or on the Survey, and to which Purchaser
does not object within the Inspection Period, shall be deemed to be permitted
exceptions to the status of Seller's title (the "Permitted Exceptions").
4.4 Objections to Status of Title and Survey. If Purchaser
objects to any item shown or referred to in the Title Commitment, Exception
Documents or Survey within the Inspection Period, Seller shall be given a
fifteen (15) day period (the "Cure Period") to cure, at Seller's option and sole
discretion, but without any obligation to do so, any objection to the condition
of title raised by Purchaser, provided, however, that Seller shall be obligated
to pay or discharge, and cause to be reconveyed at or before Closing, the liens
of any mortgages, deeds of trust, mechanic's liens and other monetary liens
affecting title to the Property (including payment of any prepayment premiums or
penalties related thereto), and the following provisions of this Section 4.4
shall not apply to such exceptions to title. If Seller is either unable to cure
such objections within the Cure Period, or chooses not to do so, Purchaser may,
at its option exercisable within five (5) days following the earlier of (i) the
date of receipt by Purchaser of written notice from Seller stating that Seller
is unable or unwilling to cure such objections, or (ii) the expiration of the
Cure Period, either (x) accept such title as Seller can deliver, in which case
all exceptions to title set forth in the Title Commitment, Exception Documents
and Survey which are not removed shall be deemed to be Permitted Exceptions, or
(y) terminate this Contract by notice in writing to Seller in which event the
Title Company shall return the Earnest Money Deposit to Purchaser and neither
party shall have any further rights, duties or obligations hereunder, except as
otherwise provided in Section 5.1 hereof. In the event Purchaser fails to
notify Seller, within such five (5) day period, that Purchaser has elected to
proceed under either subpart (x) or (y) of the immediately preceding sentence,
Purchaser shall be deemed to have elected to proceed under subpart (x), and this
Contract shall remain in full force and effect.
4.5 Other Permitted Exceptions. The Permitted Exceptions shall
include those matters shown in the Commitment and the Survey which become
Permitted Exceptions pursuant to Sections 4.3 and 4.4 above and, in addition,
the following: (a) the Tenant Leases; (b) current real property taxes and
assessments for the year in which Closing occurs and subsequent years; and (c)
claims and encumbrances arising after the date hereof to which Purchaser
consents in writing.
ARTICLE V.
INSPECTION BY PURCHASER
5.1 Inspection Period. Purchaser shall have a period of time
commencing on the Effective Date and expiring at 5:00 p.m., Daly City,
California time on the sixtieth (60th) day thereafter or the next business day
if the 60th day falls on a Saturday, Sunday or holiday (the "Inspection Period")
within which to examine the Property and to conduct its feasibility study
thereof; provided, however, that Purchaser may in its sole discretion, by giving
written notice to Seller prior to the expiration of the Inspection Period,
extend the Inspection Period for up to an additional twenty-one (21) days if, as
of seven (7) days prior to the scheduled expiration of the Inspection Period,
the City of Daly City, California has not approved Purchaser's preliminary site
plan for the Property with conditions acceptable to Purchaser in its sole
discretion. The Inspection Period shall be exclusive of the Effective Date.
Seller agrees to allow Purchaser and Purchaser's agents access to the Property
during normal business hours upon 24 hours prior written notice to conduct soil
and engineering, hazardous waste, marketing, feasibility, zoning and other
studies or tests and to otherwise determine the feasibility of the Property for
Purchaser's intended use. Notwithstanding the foregoing, (a) the costs and
expenses of Purchaser's investigation shall be borne solely by Purchaser, (b)
prior to the expiration of the Inspection Period, Purchaser shall restore the
Property to the condition which existed prior to Purchaser's entry thereon and
investigation thereof, (c) Purchaser shall not interfere, interrupt or disrupt
the operation of Seller's business on the Property and, further, such access by
Purchaser and/or its agents shall be subject to the rights of Tenants under
Tenant Leases, (d) in the event the transaction contemplated by this Contract
does not close for any reason, Purchaser shall deliver to Seller copies of all
tests, reports and inspections conducted by Purchaser with respect to the
Property, (e) Purchaser shall not permit any mechanic's or materialman's liens
or any other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or test conducted pursuant to this Section 5.1, (f)
Purchaser shall permit Seller to have a representative present during all
investigations and inspections conducted with respect to the Property, and (g)
Purchaser shall take all 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 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 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 reasonable efforts to prevent its agents and employees from divulging
such information to any 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 Contract, including Purchaser's attorneys and
representatives, prospective lenders and engineers. Purchaser shall indemnify,
defend and hold harmless Seller from and against any claims, liabilities, causes
of action, damages, liens, losses and expenses (including, without limitation,
attorneys' fees) incident to, resulting from or in any way arising out of any of
Purchaser's and its agents' activities on the property, including, without
limitation, any test or inspections conducted by Purchaser or its agents on the
Property. The agreements contained in this Section 5.1 shall survive the
Closing and not be merged therein and shall also survive any termination of this
Contract.
5.2 Approval of Inspections. If Purchaser determines at any times
prior to the expiration of the Inspection Period, that the Property is not
satisfactory to Purchaser, then Purchaser may terminate this Contract by
delivery of written notice to Seller given in accordance with the provisions of
Section 13.1 hereof within such Inspection Period, in which event the Title
Company shall return Earnest Money Deposit to Purchaser and neither party shall
have any further rights or liabilities hereunder, except for provisions of this
Contract which by their terms expressly survive the termination of this
Contract. If Purchaser does not timely deliver to Seller written notice of
termination within such Inspection Period, the conditions of this Section 5.2
shall be deemed satisfied, and Purchaser may not thereafter terminate this
Contract pursuant to this Section 5.2.
5.3 Matters Delivered by Seller. Seller has delivered to
Purchaser and Purchaser acknowledges receipt of the following items
(collectively, the "Submission Matters"):
(a) A current rent roll for the Property;
(b) A copy of all Tenant Leases with respect to the
Property, including any and all modifications, amendments or supplements
thereto, and all correspondence with Tenants and other documents in Seller's
possession relating to such Tenant Leases;
(c) Copies of any and all service, maintenance, management
or other contracts in Seller's possession relating to the ownership and
operation of the Property;
(d) A certificate of fire, hazard, extended coverage,
liability and other insurance policies held by Seller with respect to the
Property;
(e) Copies of the most recent real estate and personal
property tax statements received by Seller with respect to the Property;
(f) Plans and specifications, surveys, and engineering
reports in Seller's possession;
(g) Statements detailing the expenses chargeable to the
Tenants under the Tenant Leases for the years 1994 and 1995; and
(h) A Phase I environmental site assessment report of the
Property prepared by an environmental engineer acceptable to Purchaser in its
reasonable discretion.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES; DISCLAIMERS AND WAIVERS
6.1 Representations and Warranties of Purchaser. Purchaser and
each of the persons executing this Contract on its behalf represents and
warrants to Seller as of the date hereof and as of the Closing Date as follows
(which representations and warranties shall survive the Closing for a period of
six months):
(a) Purchaser is duly organized, existing and in good
standing as a limited liability company under the laws of the State of
California;
(b) Purchaser has full right and authority to enter into
this Contract and to consummate the transactions contemplated herein;
(c) Each of the persons executing this Contract on behalf of
Purchaser is authorized to do so; and
(d) This Contract constitutes a valid and legally binding
obligation of Purchaser, enforceable in accordance with its terms.
6.2 Representations and Warranties of Seller. Seller represents
and warrants to Purchaser as of the date hereof and as of the Closing Date as
follows (which representations and warranties shall survive the Closing for a
period of six months):
(a) Seller is a limited partnership duly organized existing
and in good standing under the laws of the State of California;
(b) Seller has full right and authority to enter into this
Contract and to consummate the transactions contemplated herein, subject to
approval of the sale of the Property by Seller's lender, Lehman Brothers
Holdings, Inc.;
(c) Each of the persons executing this Contract on behalf of
Seller is authorized to do so;
(d) This Contract constitutes a valid and legally binding
obligation of Seller, enforceable in accordance with its terms;
(e) Neither Seller's execution of this Contract nor
performance by Seller of any of its obligations hereunder including without
limitation, the transfer, assignment and sale of the Property contemplated by
this Contract (i) will, subject to approval of the sale of the Property by
Seller's lender, Lehman Brothers Holdings, Inc., violate any written or oral
contract, agreement or instrument to which Seller is a party or is bound or
which affects the Property or any part of it, or (ii) shall constitute or result
in violation or breach by Seller of any judgment, order, writ, injunction or
decree issued or imposed upon Seller;
(f) Seller has made available to Purchaser all documents
described in Paragraph 5.3 above that are in the possession of either Seller or
Seller's property management company for the Property;
(g) Except as otherwise disclosed to Purchaser in the
environmental site assessment set forth in Section 5.3(h), Seller has received
no written notice that the Property is in violation of any applicable building
codes, environmental laws, the Americans with Disabilities Act, or any other
local, state or federal statute, ordinance, rule or regulation;
(h) Seller has made available to Purchaser true and complete
copies of all Tenant Leases and the tenant lease files in Seller's possession.
Except as specifically set forth in the rent roll or the documents listed
therein, or as otherwise disclosed or made known to Purchaser prior to the date
hereof, (i) there are no oral or written leases, improvement agreements, or
other rental, use or occupancy agreements affecting the Property, (ii) to
Seller's knowledge except for subleases approved by Seller no person has any
right of possession, use or occupancy of the Property or any part of it, and
(iii) no default or breach exists and no event has occurred which, with the
giving of notice, the passage of time or both, would constitute a default of the
part of Seller under the Tenant Leases.
(i) Seller has delivered to Purchaser true and complete
copies of all existing contract obligations as listed in Exhibit F attached
hereto. No default or breach by Seller exists under any such contract
obligations, nor has any event occurred which, with the giving of notice or
passage of time, or both, would constitute a default by Seller with respect
thereto;
(j) Seller is not a "foreign person" as defined in Internal
Revenue Code Section 1445 or Sections 18805 and 26131 of the California Revenue
and Taxation Code, and any related regulations; and
(k) There is no union contract affecting the employees of
Seller.
6.3 NO REPRESENTATIONS OR WARRANTIES OF SELLER. PURCHASER
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS SET FORTH IN SECTION 6.2 HEREOF, SELLER
HAS NOT MADE, AND SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTY, GUARANTY
OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR
CONCERNING, (a) THE NATURE AND CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE
PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO
CONDUCT THEREON; (b) THE EXISTENCE, NATURE AND EXTENT OF ANY RIGHT-OF-WAY,
LEASE, RIGHT TO POSSESSION OR USE, LIEN, ENCUMBRANCE, LICENSE, RESERVATION,
CONDITION OR OTHER MATTER AFFECTING TITLE TO THE PROPERTY; OR (c) WHETHER THE
USE OR OPERATION OF THE PROPERTY COMPLIES WITH ANY AND ALL LAWS, ORDINANCES OR
REGULATIONS OF ANY GOVERNMENT OR OTHER REGULATORY BODY. PURCHASER AGREES TO
ACCEPT THE PROPERTY AND ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS PROVIDED
FOR HEREIN IS MADE BY SELLER, ON AN "AS IS, WHERE IS, AND WITH ALL FAULTS"
BASIS. PURCHASER EXPRESSLY ACKNOWLEDGES THAT EXCEPT AS OTHERWISE EXPRESSLY
SPECIFIED HEREIN AND EXCEPT FOR ANY WARRANTY OF TITLE CONTAINED IN THE GRANT
DEED TO BE DELIVERED BY SELLER TO PURCHASER AT CLOSING, SELLER MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR
ARISING BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER'S
WARRANTY OF TITLE TO BE SET FORTH IN THE GRANT DEED), ZONING, TAX CONSEQUENCES,
PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR
PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PREMISES
WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION
(INCLUDING, WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED BY OR ON BEHALF
OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.
PURCHASER ACKNOWLEDGES THAT SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY
KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW
REGARDING OR WITH RESPECT TO ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, THE
SUBMISSION MATTERS) PROVIDED OR TO BE PROVIDED BY SELLER REGARDING THE PROPERTY.
FURTHER, AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF THIS
CONTRACT, SELLER HAS MADE AND MAKES NO REPRESENTATION, WARRANTY OR GUARANTY, AND
HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR
BENEATH THE PROPERTY (OR ANY PARCEL IN PROXIMITY THERETO) OF HAZARDOUS
SUBSTANCES OR MATERIALS WHICH ARE CATEGORIZED AS HAZARDOUS OR TOXIC UNDER ANY
LOCAL, STATE OR FEDERAL LAW, STATUTE, ORDINANCE RULE OR REGULATION PERTAINING TO
ENVIRONMENTAL OR SUBSTANCE REGULATIONS, CONTAMINATION, CLEANUP OR DISCLOSURE
(INCLUDING, WITHOUT LIMITATION, ASBESTOS) AND SHALL HAVE NO LIABILITY TO
PURCHASER THEREFOR. BY ACCEPTANCE OF THIS CONTRACT AND THE GRANT DEED TO BE
DELIVERED BY SELLER AT THE CLOSING, PURCHASER ACKNOWLEDGES THAT PURCHASER'S
OPPORTUNITY FOR INSPECTION AND INVESTIGATION OF THE PROPERTY (AND OTHER PARCELS
IN PROXIMITY THERETO) WILL BE ADEQUATE TO ENABLE PURCHASER TO MAKE PURCHASER'S
OWN DETERMINATION WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR BENEATH THE
PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) OF SUCH HAZARDOUS SUBSTANCES
OR MATERIALS, AND PURCHASER ACCEPTS THE RISK OF THE PRESENCE OR DISPOSAL OF ANY
SUCH SUBSTANCE OR MATERIALS. PURCHASER AGREES THAT SHOULD PURCHASER INCUR ANY
COSTS OR EXPENSES FOR ANY CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS
SUBSTANCES (INCLUDING, WITHOUT LIMITATION, ASBESTOS) OR OTHER ENVIRONMENTAL
CONDITIONS ON THE PROPERTY AFTER THE DATE OF CLOSING, THAT SELLER SHALL HAVE NO
RESPONSIBILITY OR LIABILITY FOR SUCH CLEAN-UP, REMOVAL OR REMEDIATION, AND THAT
AS BETWEEN PURCHASER AND SELLER, SUCH COSTS AND EXPENSES SHALL BE THE SOLE
RESPONSIBILITY OF PURCHASER.
WITHOUT LIMITING ANY OTHER PROVISIONS OF THIS CONTRACT, PURCHASER
HEREBY EXPRESSLY ACKNOWLEDGES THE EXISTENCE OF ASBESTOS AND ASBESTOS CONTAINING
MATERIALS ON THE PROPERTY, AND AGREES THAT, AFTER THE CLOSING, PURCHASER SHALL
BE SOLELY RESPONSIBLE FOR THE REMOVAL AND REMEDIATION OF ANY ASBESTOS OR
ASBESTOS CONTAINING MATERIALS ON THE PROPERTY, EVEN IF THE FULL EXTENT OF SUCH
ASBESTOS AND ASBESTOS CONTAINING MATERIALS ARE NOT DISCLOSED BY THE "ASBESTOS
SURVEY" TO BE OBTAINED PURSUANT TO SECTION 2.4 OF THIS CONTRACT.
PURCHASER, AND ANYONE CLAIMING, BY, THROUGH OR UNDER PURCHASER,
HEREBY FULLY RELEASES, DISCHARGES, AND HOLDS HARMLESS SELLER, ITS EMPLOYEES,
OFFICERS, DIRECTORS, SHAREHOLDERS, REPRESENTATIVES AND AGENTS, AND THEIR
RESPECTIVE PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS FROM ANY
COST, LOSS, LIABILITY, DAMAGES, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION
ARISING FROM OR RELATED TO ANY CONSTRUCTION DEFECTS, ERRORS, OMISSION, OR OTHER
CONDITIONS AFFECTING THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT THIS RELEASE SHALL BE GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH OF ITS
EXPRESSED TERMS AND PROVISIONS, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO
UNKNOWN AND SUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION, THIS COVENANT
RELEASING SELLER SHALL BE BINDING UPON PURCHASER, ITS PERSONAL REPRESENTATIVES,
HEIRS, SUCCESSORS AND ASSIGNS. THIS WAIVER AND RELEASE OF CLAIMS SHALL SURVIVE
THE CLOSING.
6.4 No Reliance on Seller. Except as expressly stated herein,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information (including, without
limitation, the Submission Matters) delivered by Seller to Purchaser in
connection with the transaction contemplated hereby. Purchaser acknowledges and
agrees that all materials, data and information (including, without limitation,
the Submission Matters) delivered by Seller to Purchaser in connection with the
transaction contemplated hereby are provided to Purchaser as a convenience only
and that any reliance on or use of such materials, data or information by
Purchaser shall be at the sole risk of Purchaser.
6.5 Effect and Survival of Disclaimers. Seller has informed and
hereby does inform Purchaser that the compensation to be paid to Seller for the
Property has been decreased to take into account that the Property is being sold
subject to the provisions of Article VI. Seller and Purchaser agree that the
provisions of this Article VI shall survive Closing.
ARTICLE VII.
CONDITIONS PRECEDENT TO PURCHASER'S AND SELLER'S PERFORMANCE
7.1 Conditions to Purchaser's Obligations. Purchaser's obligation
under this Contract to purchase the Property is subject to the fulfillment of
each of the following conditions (any or all of which may be waived by
Purchaser):
(a) Seller shall be ready, willing and able to deliver title
to the Property in accordance with the terms and conditions of this Contract;
(b) The lot split of Parcel 11 described in Section 2.2
shall be approved by all required governmental action and ready for recordation
at Closing and in no event later than 120 days from the expiration of the
Inspection Period;
(c) Prior to Closing, the Tenant Lease with Finnegan's
Rainbow, Inc. dba Mason McDuffie ("Mason McDuffie") shall have been terminated
in accordance with the terms of this Section 7.1(c). Seller hereby covenants
that immediately following Purchaser's receipt of the governmental approvals set
forth in Section 7.1(b), Seller shall permit Purchaser to terminate the Mason
McDuffie lease, by immediately providing Purchaser with Seller's written consent
to the Lease Termination Agreement dated June 25, 1996 between Daly City
Partners (or assigns) and Mason McDuffie. Purchaser hereby covenants to
immediately terminate the Mason McDuffie lease in the event that (i) Purchaser
receives the governmental approvals set forth in Section 7.1(b) and (ii) Seller
has permitted Purchaser to terminate the lease by providing Purchaser with
Seller's written consent to the Lease Termination Agreement as provided in the
preceding sentence. The terms of the Lease Termination Agreement require Daly
City Partners (or assigns) to make a termination payment to Mason McDuffie in an
amount of $150,000 (the "Mason McDuffie Cap"), which payment is to be made by
delivering $25,000 to Mason McDuffie at the time of the termination of the lease
and by depositing the remaining $125,000 into an escrow account to be paid to
Mason McDuffie upon satisfaction of certain conditions as more particularly set
forth in the Lease Termination Agreement. Purchaser and Seller agree that each
shall bear the cost of one-half of the Mason McDuffie Cap; provided, however,
that in the event the Mason McDuffie Cap is paid and/or deposited in escrow
prior to Closing, Purchaser shall pay and deposit the Mason McDuffie Cap
pursuant to the terms of the Lease Termination Agreement and shall be entitled
to a credit at Closing against the Purchase Price in an amount of $75,000;
provided, further, that if the Closing fails to occur for any reason other than
Seller's breach of this Contract, Seller shall not be required to pay or to
reimburse Purchaser for any portion of the Mason McDuffie Cap.
(d) Prior to Closing, the lease for the theater complex
located on Parcel 2 shall have been terminated by Seller or shall be terminable
by the landlord on thirty (30) days prior written notice, at no cost to
Purchaser;
(e) Seller shall have delivered all the documents and other
items required pursuant to Section 8.2(a), and shall have performed, in all
material respects, all other covenants, undertakings and obligations, and
complied with all conditions required by this Contract to be performed or
complied with by the Seller at or prior to the Closing;
(f) All contracts, concessions, leases and other agreements
(other than this Contract, the lease for the Bank of the West Building located
on Parcel 1, and the lease for the theater complex located on Parcel 2)
affecting the Property shall have been terminated by Seller or shall be
terminable by the owner of the Property on thirty (30) days prior written notice
or shall be amended or modified to exclude the Property from the scope of such
agreements, at no cost to Purchaser; and
(g) Seller and Lehman Brothers Holdings, Inc., Seller's
lender, shall have executed an amendment to REA 2 (as defined in Section 2.2(a))
that (i) revises the definition of the "Serramonte Parcel" as used in REA 2 to
exclude that portion of Parcel 11 not owned by Purchaser after consummation of
the transaction contemplated by this Contract and (ii) transfers all of Seller's
interest in REA 2 to Purchaser and (iii) is in a form satisfactory to
Transamerica Occidental Life Insurance Company.
In the event any of the foregoing conditions is not satisfied, Purchaser may
terminate this Contract and the Earnest Money Deposit shall be returned to
Purchaser.
7.2 Conditions to Seller's Obligations. Seller's obligations
under this Contract to sell the Property to Purchaser is subject to the
fulfillment of the conditions set forth in Section 7.3 hereof and each of the
following conditions (all or any of which may be waived by Seller):
(a) The representations and warranties of Purchaser
contained herein shall be true, accurate and correct as of the Closing Date;
(b) Purchaser shall have delivered the funds required
hereunder and all the documents to be executed by Purchaser set forth in Section
8.2(b) and shall have performed, in all material respects, all other covenants,
undertakings and obligations, and complied with all conditions required by this
Contract to be performed or complied with by Purchaser at or prior to Closing;
(c) The lot split of Parcel 11 described in Section 2.2
shall be approved by all required governmental action and ready for recordation
at Closing and in no event later than 120 days from the expiration of the
Inspection Period; and
(d) Prior to Closing, Mason McDuffie shall have entered into
a written agreement with Seller in form and substance satisfactory to Purchaser,
providing Seller or Purchaser, as successor landlord, the right to terminate
Mason McDuffie's lease of the office building located on Parcel 3 on no more
than ninety (90) days prior written notice, with Purchaser and Seller each to be
responsible for one-half of the termination payments pursuant to the terms of
Section 7.1(c), not to exceed the amount of the Mason McDuffie Cap.
(e) Within thirty (30) days of the Effective Date, Lehman
Brothers Holdings, Inc., Seller's lender, shall have approved the sale of the
Property pursuant to the terms of this Contract and shall have approved the REA
referred to in Section 7.3 below and the amendment to REA 2 referred to in
Section 7.1(g).
(f) Purchaser shall have provided Seller with written
evidence, reasonably satisfactory to Seller, from the City of Daly City
confirming that no more than 185 parking spaces are required for the office
building currently located on Parcel 11 to satisfy parking requirements imposed
by the city and confirming that the city has granted an administrative variance
for the office building allowing the building to have 149 parking spaces or
less.
7.3 Reciprocal Easement Agreement. Seller and Purchaser agree to
execute and record at Closing a Reciprocal Easement Agreement ("REA") in the
form of Exhibit G attached hereto, with any reasonable modifications to such
form requested by Seller's lender and Purchaser's lender.
ARTICLE VIII.
CLOSING
8.1 Time and Place. The consummation of the purchase and sale of the
Property (the "Closing") shall take place at the office of the Title Company on
the earlier of (a) the 60th day after the expiration of the Inspection Period,
or (b) not later than ten (10) days after the satisfaction of all conditions to
Closing set forth herein ("Closing Date"); provided, however, that in no event
shall Purchaser or Seller be obligated to proceed with Closing unless all
conditions precedent thereto in favor of the respective party have been
satisfied or waived by such party; provided, further, however, that the Closing
Date may be extended by Purchaser pursuant to the terms of Section 3.1;
provided, further, however, that, in the event Seller has executed and delivered
this Agreement on or before August 21, 1996, the Closing Date shall occur no
later than December 31, 1996, but, for every day's delay beyond August 21, 1996
in Seller's execution and delivery of this Agreement, the Closing Date shall be
extended by an equal amount of time.
8.2 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver, or cause to
be delivered, to Purchaser each of the following items:
(i) A standard form ALTA Extended Coverage Owner Policy of
Title Insurance dated no earlier than the date of the filing of
the deed described in Section 8.2(a)(ii) hereof, issued by the
Title Company, and insuring Purchaser's title in the amount of
the Purchase Price, subject only to the Permitted Exceptions and
conforming to the requirements of Article IV hereof (the "Title
Policy").
(ii) A standard California form of Grant Deed duly executed
and acknowledged by Seller in form reasonably satisfactory to
Seller and Purchaser and sufficient to convey to Purchaser good
and indefeasible title to the Property free and clear of all
liens and encumbrances except for the Permitted Exceptions.
(iii) An Assignment and Assumption of Leases (the
"Assignment of Leases") duly executed and acknowledged by Seller
in the form attached hereto as Exhibit C and made a part hereof
for all purposes.
(iv) A Blanket Conveyance, Bill of Sale and Assignment
("Bill of Sale") duly executed by Seller in the form attached
hereto as Exhibit D and made a part hereof for all purposes.
(v) The REA which is provided for in Section 7.3 hereof.
(vi) All original Tenant Leases that are in Seller's
possession.
(vii) An estoppel statement from Bank of the West (as of
the Closing Date) substantially in the form of Exhibit H attached
hereto;
(viii) All original contracts that are in Seller's
possession.
(ix) A Non-Foreign Affidavit in the form attached hereto as
Exhibit E and made a part hereof for all purposes, together with
such additional non-foreign affidavits or certificates as may be
required by California law.
(x) All amounts owing to Purchaser by Seller under Article
IX hereof.
(xi) Evidence satisfactory to Purchaser and the Title
Company that the person or persons executing this Contract and
the closing documents on behalf of Seller have full right, power
and authority to do so.
(xii) Other items reasonably requested by the Title
Company for the sale of the Property in accordance with this
Contract or for administrative requirements for consummating the
Closing.
(b) Purchaser. At the Closing, Purchaser shall deliver to
Seller each of the following items:
(i) The Purchase Price in Current Funds.
(ii) The Assignment of Leases, duly executed and
acknowledged by Purchaser.
(iii)The Bill of Sale, duly executed by Purchaser.
(iv) The REA which is provided for in Section 7.3 hereof.
(v) All documents (in recordable form if to be recorded)
required to effectuate the Parcel 11 lot split described in
Section 2.2.
(vi) Such additional funds in cash or Current Funds, as may
be necessary to cover Purchaser's share of the closing costs and
prorations hereunder.
(vii) Evidence satisfactory to Seller and the Title
Company that the person or persons executing this Contract and
the closing documents on behalf of Purchaser have full right,
power and authority to do so.
(viii) A certificate addressed to Seller acknowledging
and agreeing to accept the Property subject to all Permitted
Exceptions existing with respect to the Property and all matters
which would be shown by a survey of the Land and Improvements.
(ix) Other items reasonably requested by the Title Company
for the sale of the Property in accordance with this Contract or
for administrative requirements for consummating the Closing.
8.3 Costs of Closing. Except as otherwise provided herein, Seller
and Purchaser shall each pay one-half (1/2) of the costs of Closing the sale and
purchase transaction hereunder including, without limitation, the premiums for
the Title Policy, the cost of the Survey, escrow fees of the Title Company, all
recording fees, stamp taxes, transfer taxes and other charges relating to the
execution and recordation of the Grant Deed, the Parcel 11 lot split, and the
REA. All the attorney's fees and costs and expenses incurred in connection with
negotiating, preparing and closing the transaction contemplated by this Contract
shall be borne and paid exclusively by the party incurring same. Any costs,
including, without limitation, recording costs, loan fees and attorneys' fees,
relating to (a) any financing obtained by the Purchaser for the purchase of the
Property, and/or (b) any documentary stamp taxes, deed taxes, transfer taxes,
intangible taxes, mortgage taxes or other similar taxes, fees or assessments
incurred in connection with any such financing shall be borne and paid
exclusively by Purchaser. Purchaser shall pay the additional premiums and costs
incurred as a result of obtaining an extended coverage title insurance policy.
Seller and Purchaser shall each pay one-half of the "entitlements consultant's
fees" incurred to obtain a parking variance for a portion of the Serramonte
Plaza to be retained by Seller after Closing, to the extent that the total
amount of such fees do not exceed $8,000, and Seller shall pay the architect's
fees incurred in connection with such parking variance, to the extent that the
total amount of such fees do not exceed $5,000.
8.4 Prorations. All normal and customarily proratable items,
including, without limitation, rents, operating expenses and leasing
commissions, other expenses and fees, and payments relating to any agreements
affecting the Property which survive the Closing, shall be prorated as of the
Closing Date, Seller being charged and credited for all of same attributable to
the period up to the Closing Date (and credited for any amounts paid by Seller
attributable to the period on or after Closing) and Purchaser being responsible
for, and credited or charged, as the case may be, for all of same attributable
to the period on and after the Closing Date. All unapplied Deposits under
Tenant Leases in the possession of Seller, if any, shall be transferred by
Seller to Purchaser at the Closing. Any real estate ad valorem or similar taxes
for the Property or any installment of assessments payable in installments which
installment is payable in the year of Closing shall be prorated to the date of
Closing, based upon actual days involved. In connection with the proration of
real property taxes or installments of assessments, in the event that actual
figures for the year of Closing are not available at the Closing Date, the
proration shall be made using figures from the preceding year. The proration
shall be final and unadjustable except as provided in the following paragraph.
In the event the property has been assessed for property tax purposes at such
rates as would result in "roll-back" taxes upon the changes in land usage or
ownership of the Property, Purchaser agrees to pay all such taxes and hereby
indemnifies and holds Seller harmless from and against any and all claims and
liabilities for such taxes. The provisions of this Section 8.4 shall survive
the Closing.
If any of the items subject to proration under the foregoing
provision of this Section 8.4 cannot be prorated at the Closing because of the
unavailability of the information necessary to compute such proration, 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
of one hundred twenty (120) days after the Closing Date as hereinafter provided.
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 aforestated one hundred twenty (120) day 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 one hundred twenty (120) days
after the Closing Date 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.
8.5 Possession and Closing. Possession of the Property shall be
delivered to Purchaser by Seller at the Closing, subject to the Permitted
Exceptions and the rights of the Tenants. Purchaser shall make its own
arrangements for the provisions of public utilities to the Property and Seller
shall terminate its contracts with such utility companies that provide services
to the Property.
8.6 Application of Delinquent Rent. If on the Closing Date, any
Tenant is in arrears in the payment of any rent under any Tenant Lease (the
"Delinquent Rent") payable by it, any Delinquent Rent received by Purchaser and
Seller from such Tenant after the Closing shall be applied to amounts due and
payable by such Tenant during the following periods in the following order or
priority: (A) first, to the period of time prior to the Closing Date, and (B)
second, to the period of time after the Closing Date. If Delinquent Rent or any
portion thereof received by Seller or Purchaser after the Closing are due and
payable to the other party by reason of this allocation, the appropriate sum,
less a proportionate share of any reasonable attorneys' fees and costs and
expenses expended in connection with the collection thereof, shall be promptly
paid to the other party. Purchaser agrees to use all reasonable, diligent, good
faith efforts to collect and pay to Seller all Delinquent Rent for periods prior
to the Closing Date. The provisions of this Section 8.6 shall survive the
Closing.
ARTICLE IX.
CONDEMNATION OR CASUALTY
9.1 Condemnation.
(a) In the event that all or any significant portion of the
Property is condemned or taken by eminent domain or conveyed by deed in lieu
thereof, or if any condemnation proceeding is commenced for all or any
significant portion of the Property, prior to Closing, either party may elect to
terminate this Contract by written notice thereof of the other party within ten
(10) days after (i) in the case of Seller, Seller becomes aware of such
condemnation, taking or deed in lieu, or institution of any such condemnation
proceeding, or (ii) in the case of Purchaser, Seller notifies Purchaser of the
condemnation, taking or deed in lieu or institution of such condemnation
proceeding. If neither party terminates this Contract as aforesaid, then both
parties shall proceed to close the transaction contemplated herein pursuant to
the terms hereof, in which event Seller shall, except as limited in Section
9.1(b) hereof, deliver to Purchaser at the Closing any proceeds actually
received by Seller attributable to the Property from such condemnation, eminent
domain proceeding or deed in lieu thereof or assign its interest in and to any
such proceeds, and there shall be no reduction in the Purchase Price.
(b) For the purposes of Section 9.1(a), "significant
portion" of the property means (i) any portion of the buildings included within
the Improvements, or (ii) a portion of the parking areas if the taking thereof
reduces the remaining available number of parking spaces below the minimum
legally required.
(c) In the event that less than a significant portion of the
Property is condemned, taken by eminent domain, conveyed by deed in lieu thereof
or is the subject of a condemnation proceeding, neither party shall have the
right to terminate this Contract, but Seller shall deliver to Purchaser at
Closing any proceeds actually received by Seller attributable to the property
from such condemnation or eminent domain proceeding or deed in lieu thereof, or
assign its interest in and to any such proceeds to Purchaser, and there shall be
no reduction in the Purchase Price.
9.2 Casualty.
(a) In the event that all or any substantial portion of the
Bank of the West Building located on Parcel 1 (the "Bank Building") shall be
damaged or destroyed by fire or other casualty prior to Closing, Purchaser may
terminate this Contract by written notice thereof to Seller within ten (10) days
after Seller notifies Purchaser of the casualty. If Purchaser does not
terminate this Contract as aforesaid, then both parties shall proceed to close
the transaction contemplated herein pursuant to the terms hereof, in which event
Seller shall deliver to Purchaser at the Closing any insurance proceeds actually
received by Seller attributable to the Property from such casualty and all of
Seller's right, title and interest in and to any claims which Seller may have
under the insurance policies covering the Property, and there shall be no
reduction in the Purchase Price. In the event less than a substantial portion
of the Bank Building shall be damaged or destroyed by fire or other casualty
prior to Closing, or in the event any other portion of the Property is damaged
or destroyed to any extent, then the parties shall proceed in accordance with
the second sentence in this Section 9.2(a).
(b) For the purposes of Section 9.2(a), a "substantial
portion" of the Bank Building shall be deemed to include any casualty loss in an
amount equal to or greater than $250,000.
ARTICLE X.
DEFAULTS AND REMEDIES
10.1 DEFAULT BY PURCHASER; LIMITATION OF LIABILITY; LIQUIDATED
DAMAGES. IF SELLER SHALL NOT BE IN DEFAULT HEREUNDER AND PURCHASER REFUSES OR
FAILS TO CONSUMMATE THIS CONTRACT AND PURCHASE THE PROPERTY IN ACCORDANCE WITH
THE TERMS OF THIS CONTRACT FOR REASONS OTHER THAN AS EXPRESSLY SET FORTH IN
SECTIONS 4.4, 5.2 OR 7.1 OR ARTICLE IX HEREOF, THEN SELLER SHALL BE MATERIALLY
DAMAGED AND MAY TERMINATE THIS CONTRACT. SELLER AND PURCHASER AGREE THAT IT
WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT AT THIS TIME TO ESTIMATE THE
AMOUNT OF SUCH DAMAGE. SELLER AND PURCHASER FURTHER AGREE AFTER NEGOTIATIONS,
THAT THE AMOUNT OF THE EARNEST MONEY DEPOSIT CONSTITUTES THEIR BEST ESTIMATE,
BASED UPON ALL RELEVANT FACTS, OF THE AMOUNT OF SELLER'S DAMAGE IN SUCH EVENT.
ACCORDINGLY, SELLER AND PURCHASER AGREE THAT IN THE EVENT OF SUCH DEFAULT BY
PURCHASER, THE EARNEST MONEY DEPOSIT SHALL CONSTITUTE LIQUIDATED DAMAGES FOR
SUCH DEFAULT, AND THE TITLE COMPANY IS HEREBY INSTRUCTED BY SELLER AND PURCHASER
TO DELIVER THE EARNEST MONEY DEPOSIT TO SELLER IN THE EVENT OF SUCH DEFAULT BY
PURCHASER AND TERMINATION OF THIS CONTRACT BY SELLER, AND SELLER SHALL RETAIN
THE EARNEST MONEY DEPOSIT AS LIQUIDATED DAMAGES. UPON RECEIPT BY SELLER OF THE
LIQUIDATED DAMAGES PROVIDED IN THIS SECTION 10.1, SUCH LIQUIDATED DAMAGES SHALL
CONSTITUTE SELLER'S SOLE AND EXCLUSIVE REMEDY FOR PURCHASER'S DEFAULT, EXCEPT
THAT SELLER SHALL ALSO BE ENTITLED TO EXERCISE ANY RIGHTS OR REMEDIES IT MAY
HAVE BY VIRTUE OF ANY INDEMNITY CREATED OR GRANTED HEREIN AND/OR WITH RESPECT TO
ANY PROVISIONS OF THIS CONTRACT WHICH BY THEIR TERMS EXPRESSLY SURVIVE THE
TERMINATION OF THIS CONTRACT. THE PROVISIONS OF THIS SECTION 10.1 SHALL SURVIVE
THE TERMINATION OF THIS CONTRACT.
BY INITIALLING IN THE SPACE PROVIDED BELOW, SELLER AND PURCHASER
EXPRESSLY ACKNOWLEDGE THAT THEY HAVE READ, UNDERSTOOD AND AGREED TO THE
FOREGOING, THAT THEY HAVE BEEN ADVISED BY LEGAL COUNSEL OF THEIR CHOICE OF THE
LEGAL EFFECT OF THE FOREGOING, AND THAT THEY HAVE AGREED THAT THE TERMS OF THE
FOREGOING ARE EQUITABLE AND FAIR.
PLEASE INITIAL: SELLER: __________ PURCHASER: __________
10.2 Default by Seller. If Purchaser shall not be in default
hereunder and if Seller refuses or fails to consummate this Contract other than
due to a termination permitted hereunder or a failure of a condition precedent
to Seller's obligations to close, Purchaser may, at Purchaser's sole option, as
its sole and exclusive remedies, either (a) terminate this Contract in which
event neither party shall have any further rights, duties or obligations
hereunder except with respect to provisions of this Contract which by their
terms expressly survive the termination of this Contract and Purchaser shall be
entitled to a refund of the Earnest Money Deposit, or (b) enforce specific
performance of this Contract against Seller. In no event shall Seller be liable
to Purchaser for any damages, including, without limitation, any actual,
punitive, speculative or consequential damages or damages for loss of
opportunity or lost profit. The provisions of this Section 10.2 shall survive
the termination of this Contract.
10.3 Attorneys' Fees. If it shall be necessary for either
Purchaser or Seller to employ an attorney to enforce its rights pursuant to this
Contract, the non-prevailing party shall reimburse the prevailing party for its
reasonable attorneys' fees.
ARTICLE XI.
BROKERAGE COMMISSIONS
11.1 Brokerage Commission. Seller agrees to indemnify Purchaser
and hold Purchaser harmless from any loss, liability, damage, cost or expense
(including, without limitation, reasonable attorneys' fees) arising out of or
paid or incurred by Purchaser by reason of any claim to any broker's finder's or
other fee in connection with this transaction by any party claiming by, through
or under Seller. Purchaser agrees to indemnify Seller and hold Seller harmless
from any loss, liability, damage, cost or expense (including, without
limitation, reasonable attorneys' fees) arising out of or paid or incurred by
Seller by reason of any claim to any broker's, finder's or other fee in
connection with this transaction by any party claiming by, through or under
Purchaser. Notwithstanding anything to the contrary contained herein, the
indemnities set forth in this Article XI shall survive the Closing or
termination of this Contract.
Purchaser hereby acknowledges that at the time of the execution of
this Contract, Purchaser is advised by this writing that Purchaser should have
an abstract covering the Property examined by an attorney of Purchaser's own
selection, or that Purchaser should be furnished with or obtain an owner policy
of title insurance.
ARTICLE XII.
OPERATION OF THE PROPERTY PRIOR TO THE CLOSING
Between the Effective Date and the Closing Date, Seller shall have
the right to operate and maintain the Property in accordance with Seller's
normal practices; provided, however, that Seller shall not modify, extend,
renew, cancel or permit the expiration of any Tenant Lease (except as expressly
provided in this Contract) or enter into any new Tenant Lease of all or any
portion of the Property, without Purchaser's prior written consent.
ARTICLE XIII.
MISCELLANEOUS
13.1 Notices. Any notice provided or permitted to be given under this
Contract must be in writing and may be served by depositing same in the United
States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, or by delivering the same
in person to such party via a hand delivery service, Federal Express or any
other courier service that provides a return receipt showing the date of actual
delivery of same to the addressee thereof. Notice given in accordance herewith
shall be effective upon receipt at the address of the addressee. For purposes
of notice, the addresses of the parties shall be as follows:
If to Seller: IFGP Corporation
One Insignia Financial Plaza
P.O. Box 1089
Greenville, South Carolina 29602
Attn: Bruce Stillwagon
Phone: (864) 239-1078
Fax: (864) 239-1066
With a copy to:Insignia Mortgage & Investment Company
102 Woodmont Blvd., Suite 400
Nashville, Tennessee 37205
Attn: David Huddleston
Phone: (615) 783-1032
Fax: (615) 783-1016
And a copy to: Liechty & McGinnis, P.C.
10440 North Central Expressway
Suite 1100
Dallas, Texas 75231
Attn: Lorne O. Liechty
Phone: (214) 265-0008
Fax: (214) 265-0615
If to Purchaser:Daly City Partners, LLC
400 Montgomery Street, Suite 930
San Francisco, California 94104
Attn: Dennis Wong
Phone: (415) 288-7900
Fax: (415) 391-9142
With a copy to:Stein & Lubin LLP
600 Montgomery Street, 14th Floor
San Francisco, California 94111
Attn: Mark Lubin
Phone: (415) 981-0550
Fax: (415) 981-4343
13.2 Governing Law. This Contract is being executed and delivered,
and is intended to be performed in the State of California, and the laws of such
state shall govern the validity, construction, enforcement and interpretation of
this contract.
13.3 Entirety and Amendments. This Contract embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings, if any, relating to the transaction described herein, and may be
amended or supplemented only by an instrument in writing executed by the party
against whom enforcement is sought.
13.4 Parties Bound. Subject to the provisions of Section 13.5 hereof,
this contract shall be binding upon and inure to the benefit of Seller and
Purchaser, and their respective heirs, personal representatives, successors and
assigns.
13.5 Assignment. This Contract may not be assigned in whole or in
part by Purchaser without the consent of Seller, which consent may be granted or
withheld by Seller in Seller's sole and absolute discretion; provided, that
Purchaser may assign this Contract to any solvent entity controlling, controlled
by or under common control with Purchaser. Except as expressly permitted by the
immediately preceding sentence, any assignment of this Contract by Purchaser
without Seller's prior written consent shall, at Seller's option, be null and
void and of no effect. In the event Seller consents to an assignment of this
Contract by Purchaser, Purchaser shall not be released from any liability or
obligations hereunder.
13.6 Headings. Headings used in this Contract are used for reference
purposes only and do not constitute substantive matter to be considered in
construing the terms of this Contract.
13.7 Survival. Except as otherwise expressly provided herein, no
representations, warranties, covenants, acknowledgments or agreements contained
in this Contract shall survive the Closing of this Contract and the delivery of
the Grant Deed by Seller to Purchaser.
13.8 Interpretation. The parties acknowledge that each party and its
counsel have reviewed this Contract, and the parties hereby agree that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Contract or any amendments or exhibits hereto. In case any one or more
of the provisions contained in this Contract shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and this Contract
shall be construed as if such invalid, illegal or unenforceable provisions had
never been contained herein. When the context in which words are used in this
Contract indicates that such is the intent, words in the singular number shall
include the plural and vice versa, and words in the masculine gender shall
include the feminine and neuter genders and vice versa.
13.9 Exhibits. All references to "Exhibits" contained herein are
references to exhibits attached hereto, all of which are hereby made a part
hereof for all purposes.
13.10 Time of Essence. It is expressly agreed by the parties
hereto that time is of the essence with respect to this Contract and Closing
hereunder.
13.11 Multiple Counterparts. This 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 agreement, but, in making proof of this Contract,
it shall not be necessary to produce or account for more than one such
counterpart.
13.12 Risk of Loss. Risk of loss or damage to the Property, or
any part thereof, by fire or any other casualty from the date this Contract is
fully executed up to the time of delivering the grant deed transferring title to
the Property to the Purchaser will be on the Seller and, thereafter, will be on
the Purchaser.
13.13 Effective Date. As used herein, the term "Effective Date"
shall mean for all purposes in this Contract the date on which the Title Company
acknowledges receipt of an original of the Contract executed by Purchaser and
Seller with all changes, if any, to the printed portion of this Contract
initialled by Purchaser and Seller.
13.14 Business Days. All references to "business days" contained
herein are references to normal working business days, i.e., Monday through
Friday of each calendar week, exclusive of federal and national holidays.
13.15 No Recordation of Contract. In no event shall this Contract
or any memorandum hereof be recorded in the public records of the place in which
the Property is situated, and any such recordation or attempted recordation
shall constitute a breach of this Contract by the party responsible for such
recordation or attempted recordation.
SELLER: SERRAMONTE PLAZA,
a California limited partnership
By: Investors First-Staged Equity, L.P.,
a Delaware limited partnership,
its general partner
By: VMS Realty Investment II,
an Illinois general partnership,
its general partner
By: /s/ Richard A. Berman
Its: Authorized Signatory
Dated: August 26, 1996
PURCHASER: DALY CITY PARTNERS, LLC,
a California limited liability company
By: /s/ Dennis J. Wong
Dennis J. Wong
Its: Manager
Dated: August 28, 1996
RECEIPT OF EARNEST MONEY DEPOSIT
AND AGREEMENT OF TITLE COMPANY
Old Republic Title Insurance Company (the "Title Company"), located
at _______________________________, hereby acknowledges the receipt of one (1)
fully signed and executed copy of this Contract.
Upon receipt, the Title Company agrees to hold the Earnest Money
Deposit in escrow as escrow agent for the benefit of Seller and Purchaser and to
dispose of the Earnest Money Deposit in strict accordance with the terms and
provisions of this Contract.
OLD REPUBLIC TITLE INSURANCE COMPANY
By:
Name:
Title:
Date:
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF LEASES
STATE OF CALIFORNIA)
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF )
That, ______________________, a ______________________________
("Assignor"), for and in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, to Assignor in hand paid, the receipt and
legal sufficiency of which are hereby acknowledged, hereby transfers, assigns
and sets over unto , a
("Assignee"), all of the rights, title and interest of Assignor in and to all
leases of, and security deposits and prepaid rents relating to space in
(together, the "Leases") the real property described on Exhibit A, attached
hereto and made a part hereof for all purposes.
TO HAVE AND TO HOLD the Leases, together with any and all of the
rights and appurtenances thereto in any ways belonging to Assignor (excluding
the right to receive rents paid under the Leases and which accrued before the
date of this Assignment), unto Assignee and Assignee's successors and assigns
forever, and Assignor does hereby bind Assignor and Assignor's legal
representatives and successors, to WARRANT AND FOREVER DEFEND all and singular
the Leases unto Assignee and Assignee's successors and assigns, against every
person whomsoever lawfully claiming or to claim the same or any part thereof,
by, through or under Assignor, but not otherwise.
In consideration of the foregoing assignment, Assignee hereby assumes,
and agrees to perform all of the obligations of Assignor under the Leases,
including, but not limited to, the obligation to refund any security deposits
and the payment of any deferred leasing commissions that become payable after
the date of this Assignment with respect to any of the Leases, and indemnifies
Assignor and holds Assignor harmless from all loss, cost, liability and expense
arising out of or in connection with the Leases on or after the date hereof.
Assignee takes the Leases subject to any existing defaults thereunder, but shall
pay to Assignor monies collected from tenants who owe delinquent rents that have
accrued as of the date of this Assignment until all of such delinquent rents
have been paid.
Assignor hereby indemnifies Assignee and holds Assignee harmless from
all loss, cost, liability and expense arising out of or in connection with
Assignor's interest in the Leases on or prior to the date hereof.
EXECUTED effective as of this day of , 1996.
ASSIGNOR: ______________________,
a ______________________________
By: _________________________________
Its: __________________________
ASSIGNEE:
By:
Name:
Title:
STATE OF )
)
COUNTY OF )
On , 1996, before me, , a
notary public, personally appeared and personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity behalf
of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
STATE OF )
)
COUNTY OF )
On , 1996, before me, , a
notary public, personally appeared and personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity behalf
of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
EXHIBIT D
BLANKET CONVEYANCE, BILL OF SALE AND ASSIGNMENT
STATE OF CALIFORNIA )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF )
By a Grant Deed (the "Deed") of even date with the date hereof,
______________________, a ______________________________ ("Seller"), conveyed to
, a ("Purchaser"), the real property (the "Real Property")
described on Exhibit "A" attached hereto and made a part hereof for all
purposes, together with all improvements located thereon.
As consideration for (a) the conveyance of the Real Property, (b)
the conveyance of the personal property described herein, and (c) the
assignments contained herein, Purchaser has paid the sum of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration to the Seller.
NOW, THEREFORE, for the consideration above specified, the receipt
and sufficiency of which are expressly acknowledged:
1. The Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER
and DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER,
SET-OVER and DELIVER unto the Purchaser, all of Seller's right, title and
interest in and to all items of tangible personal property located on or
attached to the Real Property (all of the property described in this paragraph 1
is hereinafter referred to as the "Personal Property") (the Real Property and
Personal Property sometimes collectively referred to herein as the "Property").
2. The Seller has ASSIGNED, TRANSFERRED and SET-OVER, and by
these presents does ASSIGN, TRANSFER and SET-OVER unto the Purchaser (to the
extent they are assignable) all of its right, title and interest in and to all
service contracts, bonds, warranties and guaranties, in Seller's possession
which relate to the Real Property or Personal Property.
PURCHASER ACCEPTS THE PROPERTY DESCRIBED IN THIS DOCUMENT (THE
"PROPERTY"), AND ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY TO PURCHASER
IS MADE BY SELLER, ON AN "AS IS, WHERE IS, AND WITH ALL FAULTS" BASIS.
PURCHASER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT FOR THE WARRANTY OF TITLE
CONTAINED IN THE SPECIAL WARRANTY DEED DELIVERED TO PURCHASER CONTEMPORANEOUSLY
HEREWITH, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, ORAL OR
WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW WITH RESPECT TO THE
PROPERTY REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR
REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE SET FORTH IN THE DEED
DELIVERED TO PURCHASER), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATIONS, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH,
ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER
TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.
Purchaser hereby assumes and agrees to perform from the effective
date hereof forward all of the covenants and obligations contained in the
contracts assigned hereunder which are to be performed by Seller and hereby
indemnifies Seller and agrees to hold Seller harmless from and against all
liability, cost, loss, damages or expense, including reasonable attorneys' fees,
suffered or incurred by seller as a result of any alleged failure of Purchaser
to perform such covenants or obligations.
This Blanket Conveyance, Bill of Sale and Assignment is binding and
shall inure to the benefit of the parties hereto, and their respective
successors and assigns.
TO HAVE AND TO HOLD the Property unto Purchaser, its successors and
assigns forever, and Seller does hereby bind itself, its successors and assigns,
to forever WARRANT AND DEFEND the title to the Property unto Purchaser, its
successors and assigns, against any person whomsoever lawfully claiming, or to
claim the same or any part thereof, by, through or under Seller, but not
otherwise.
EXECUTED effective as of the day of , 1996.
SELLER: ______________________,
a ______________________________
By: __________________________________
Its: _________________________________
PURCHASER:
a
By:
Name:
Title:
FIRST AMENDMENT TO CONTRACT OF SALE
This First Amendment to Contract of Sale is entered into effective as of
September 27, 1996 (this "Amendment"), by and between Serramonte Plaza, a
California limited partnership ("Seller"), and Daly City Partners, LLC, a
California limited liability company ("Purchaser").
WHEREAS, Seller and Purchaser entered into that certain Contract of Sale
dated effective as of August 29, 1996 (the "Contract"), pursuant to which Seller
has agreed to sell, and Purchaser has agreed to purchase from Seller, Seller's
rights, titles and interests in and to the Property more particularly described
in the Contract; and
WHEREAS, Seller has requested that Purchaser agree to modify the Contract
to increase the period of time for the approval of the Contract by Lehman
Brothers Holdings, Inc., Seller's lender, and Purchaser has agreed to such
request, pursuant to the terms and provisions of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser do hereby
agree as follows:
1. Unless otherwise defined in this Amendment or the context otherwise
requires, each term used in this Amendment with its initial letter capitalized
which has been defined in the Contract shall have the same meaning herein as
given to such term in the Contract.
2. Section 7.2(e) of the Contract is hereby amended to read in its
entirety as follows:
(e) Not later than October 7, 1996, Lehman Brothers
Holdings, Inc., Seller's lender, shall have approved the
sale of the Property pursuant to the terms of this Contract
and shall have approved the REA referred to in Section 7.3
below and the amendment to REA 2 referred to in Section
7.1(g).
3. Except as expressly amended by this Amendment, no term or provision of
the Contract is or shall be amended, modified or supplemented.
4. This Amendment may be executed in any 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 agreement, but in making proof of this Amendment, it shall not be
necessary to produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first set forth above.
SELLER:
SERRAMONTE PLAZA,
a California limited partnership
By: Investors First-Staged Equity, L.P.,
a Delaware limited partnership,
its general partner
By: VMS Realty Investment II,
an Illinois general partnership,
its general partner
By:/s/ Richard A. Berman
Its:Authorized Signatory
Dated: September 30, 1996
PURCHASER:
DALY CITY PARTNERS, LLC,
a California limited liability company
By:_______________________________________
Dennis J. Wong
Its: Manager
Dated:_______________, 1996
SECOND AMENDMENT TO CONTRACT OF SALE
This Second Amendment to Contract of Sale is entered into effective as of
October 7, 1996 (this "Amendment"), by and between Serramonte Plaza, a
California limited partnership ("Seller"), and Daly City Partners, LLC, a
California limited liability company ("Purchaser").
WHEREAS, Seller and Purchaser entered into that certain Contract of Sale
dated effective as of August 29, 1996, pursuant to which Seller has agreed to
sell, and Purchaser has agreed to purchase from Seller, Seller's rights, titles
and interests in and to the Property more particularly described in the
Contract, which Contract of Sale was amended by that certain First Amendment to
Contract of Sale dated effective as of September 27, 1996 (as so amended, the
"Contract"); and
WHEREAS, Seller has requested that Purchaser agree to modify the Contract
to increase the period of time for the approval of the Contract by Lehman
Brothers Holdings, Inc., Seller's lender, and Purchaser has agreed to such
request, pursuant to the terms and provisions of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser do hereby
agree as follows:
1. Unless otherwise defined in this Amendment or the context otherwise
requires, each term used in this Amendment with its initial letter capitalized
which has been defined in the Contract shall have the same meaning herein as
given to such term in the Contract.
2. Section 7.2(e) of the Contract is hereby amended to read in its
entirety as follows:
(e) Not later than October 14, 1996, Lehman Brothers
Holdings, Inc., Seller's lender, shall have approved the
sale of the Property pursuant to the terms of this Contract
and shall have approved the REA referred to in Section 7.3
below (in substantially the form attached to this Contract)
and the amendment to REA 2 referred to in Section 7.1(g).
3. Except as expressly amended by this Amendment, no term or provision of
the Contract is or shall be amended, modified or supplemented.
4. This Amendment may be executed in any 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 agreement, but in making proof of this Amendment, it shall not be
necessary to produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first set forth above.
SELLER:
SERRAMONTE PLAZA,
a California limited partnership
By: Investors First-Staged Equity, L.P.,
a Delaware limited partnership,
its general partner
By: VMS Realty Investment II,
an Illinois general partnership,
its general partner
By:/s/ Richard A. Berman
Its:Authorized Signatory
Dated: October 10, 1996
PURCHASER:
DALY CITY PARTNERS, LLC,
a California limited liability company
By:_______________________________________
Dennis J. Wong
Its: Manager
Dated:_______________, 1996
THIRD AMENDMENT TO CONTRACT OF SALE
This Third Amendment to Contract of Sale is entered into effective as of
October 14, 1996 (this "Amendment"), by and between Serramonte Plaza, a
California limited partnership ("Seller"), and Daly City Partners, LLC, a
California limited liability company ("Purchaser").
WHEREAS, Seller and Purchaser entered into that certain Contract of Sale
dated effective as of August 29, 1996, pursuant to which Seller has agreed to
sell, and Purchaser has agreed to purchase from Seller, Seller's rights, titles
and interests in and to the Property more particularly described in the
Contract, which Contract of Sale was amended by that certain First Amendment to
Contract of Sale dated effective as of September 27, 1996, and that certain
Second Amendment to Contract of Sale dated effective as of October 7, 1996 (as
so amended, the "Contract"); and
WHEREAS, Seller has requested that Purchaser agree to modify the Contract
to increase the period of time for the approval of the Contract by Lehman
Brothers Holdings, Inc., Seller's lender, and Purchaser has agreed to such
request, pursuant to the terms and provisions of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser do hereby
agree as follows:
1. Unless otherwise defined in this Amendment or the context otherwise
requires, each term used in this Amendment with its initial letter capitalized
which has been defined in the Contract shall have the same meaning herein as
given to such term in the Contract.
2. Section 7.2(e) of the Contract is hereby amended to read in its
entirety as follows:
(e) Not later than October 21, 1996, Lehman Brothers
Holdings, Inc., Seller's lender, shall have approved the
sale of the Property pursuant to the terms of this Contract
and shall have approved the REA referred to in Section 7.3
below (in substantially the form attached to this Contract)
and the amendment to REA 2 referred to in Section 7.1(g).
3. Except as expressly amended by this Amendment, no term or provision of
the Contract is or shall be amended, modified or supplemented.
4. This Amendment may be executed in any 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 agreement, but in making proof of this Amendment, it shall not be
necessary to produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first set forth above.
SELLER:
SERRAMONTE PLAZA,
a California limited partnership
By: Investors First-Staged Equity, L.P.,
a Delaware limited partnership,
its general partner
By: VMS Realty Investment II,
an Illinois general partnership,
its general partner
By:/s/ Richard A. Berman
Its: Authorized Signatory
Dated: October 18, 1996
PURCHASER:
DALY CITY PARTNERS, LLC,
a California limited liability company
By:_______________________________________
Dennis J. Wong
Its: Manager
Dated:_______________, 1996
FOURTH AMENDMENT TO CONTRACT OF SALE
This Fourth Amendment to Contract of Sale is entered into effective as of
November , 1996 (this "Amendment"), by and between Serramonte Plaza, a
California Limited partnership ("Seller"), and Daly City Partner, LLC, a
California limited liability company ("Purchaser").
WHEREAS, Seller and Purchase entered into that certain Contract of Sale
dated effective as of August 29, 1996, pursuant to which Seller has agreed to
sell, and Purchaser has agreed to purchase from Seller, Seller's rights, titles
and interests in and to the Property more particularly described in the
Contract, which Contract of Sale was amended by that certain First Amendment to
Contract of Sale dated effective as of September 27, 1996, that certain Second
Amendment to Contract of Sale dated effective as of October 7, 1996, and that
certain Third Amendment to Contract of Sale dated effective as of October 14,
1996 (as so amended, the "Contract"); and
WHEREAS, Seller and Purchaser desire to modify the Contract to extend
certain dates and time periods and make certain other modifications, pursuant to
the terms and provisions of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser do hereby
agree as follows:
1. Unless otherwise defined in this Amendment or the context otherwise
requires, each term used in this Amendment with its initial letter capitalized
which has been defined in the Contract shall have the same meaning herein as
given to such term in the Contract.
2. Section 2.4 of the Contract is hereby amended to read in its
entirety as follows:
2.4 Asbestos Remediation. Purchaser shall within the Inspection Period,
at the sole cost and expense of the Seller, obtain an asbestos survey of
the Land and the Improvements in form and substance reasonably acceptable
to Purchaser and Seller sufficient to enable the parties to determine the
asbestos remediation required or appropriate (the "Asbestos Survey").
Seller agrees that the costs of such remediation shall include (i) the
costs of obtaining the Asbestos Survey (for which Seller shall reimburse
Purchaser), (ii) the cost of the Theater Remediation (as defined below),
and (iii) the amount of the cost estimate for remediating the asbestos and
the asbestos containing materials in the Mason McDuffie building located on
Parcel 3 (items (i), (ii) and (iii) being referred to collectively as the
"Remediation Items"), Seller and Purchaser have agreed that bids from AFM
Environmental, Inc. dated June 24, 1996 and ATC Environmental, Inc. dated
October 14, 1996 are reasonably acceptable to Seller and Purchaser for the
completion of the Remediation Items (the "Remedition Estimate"). To the
extent that the accepted Remediation Estimate exceeds $150,000 (the
"Asbestos Cap"), Purchaser and Seller agree to pay equally any such excess
amount over the Asbestos Cap. If this Contract remains in effect during
the period prior to the Closing Date (the "Remediation Period") Seller
shall remediate, to levels established in the Remediation Estimate and
reasonably acceptable to Purchaser, the asbestos and the asbestos
containing materials only on the land and in the improvements that comprise
the theater complex located on Parcel 2 (the "Theater Remediation").
During the Remediation Period, Seller shall be entitled to utilize the
Earnest Money Deposit (as defined in Section 3.1 hereof) for the Theater
Remediation. Purchaser shall be under no obligation to replenish the
Earnest Money Deposit for any amounts actually use by Seller for the
Theater Remediation. Seller shall use its best efforts to minimize the
costs of the Theater Remediation and shall do so, in part, by completing
partial interior demolition of the theater complex in connection with the
Theater Remediation. If Seller's costs actually incurred in performing the
Theater Remediation are less than the Asbestos Cap, an amount equal to the
unspent portion of the Asbestos Cap shall be paid to Purchaser at Closing
to reimburse Purchaser for expenses incurred or to be incurred in
performing asbestos remediation work on the Mason McDuffie and Bank of the
West buildings.
3. Section 3.1 of the Contract is hereby amended to delete the third
sentence thereof.
4. Section 5.1 of the Contract is hereby amended to delete the first
full sentence thereof commencing with he words "Purchaser shall have...";
and ending with the words "...its sole discretion.", and the following is
inserted in lieu thereof:
5.1 Inspection Period. Purchaser shall have a period of time commencing
on the Effective date and expiring at 5:00 PM, Daly City, California time
on January 31, 1997 (the "Inspection Period") within which to examine the
Property and to conduct its feasibility study thereof.
5. Seller acknowledges that it has received the approvals described in
Section 7.2 (e) of the Contract, subject to satisfaction by Purchaser of
its obligations under the Contract.
6. Section 8.1 of the Contract is amended to read in its entirety as
follows:
8.1 Time and Place. The consummation of the purchase and sale of the
property (the "Closing") shall take place at the office of the Title
Company on or before March 18, 1997 (the "Closing Date"); provided, however
that in no event shall Purchaser or Seller be obligated to proceed with the
Closing unless all conditions precedent thereto in favor of the respective
party have been satisfied or waived by such party.
7. Except as expressly amended by this Amendment, no term or provision
of the Contract is or shall be amended, modified or supplemented.
8. This Amendment may be executed in any 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 agreement, but in making proof of this Amendment, it shall
not be necessary to produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first set forth above.
SELLER: SERRAMONTE PLAZA,
a California limited partnership
By:Investors First-Staged Equity,
L.P., a Delaware limited partnership,
its general partner
By: VMS Realty Investment II,
an Illinois general
partnership,
its general partner
By:/s/ Richard A Berman
Its:Authorized Signatory
Date:November 22, 1996
PURCHASER: DALY CITY PARTNERS, LLC,
a California limited liability company
By:____________________________
Dennis J. Wong
Its: Manager
Dated: _______________, 1996
FIFTH AMENDMENT TO CONTRACT OF SALE
This Fifth Amendment to Contract of Sale is entered into effective as of
January , 1997 (this "Amendment"), by and between Serramonte Plaza, a
California limited partnership ("Seller"), and Daly City Partners, LLC, a
California limited liability company ("Purchaser").
WHEREAS, Seller and Purchaser entered into that certain Contract of Sale
dated effective as of August 29, 1996, pursuant to which Seller has agreed to
sell, and Purchaser has agreed to purchase from Seller, Seller's rights, titles
and interests in and to the Property more particularly described in the
Contract, which Contract of Sale was amended by that certain First Amendment to
Contract of Sale dated effective as of September 27, 1996, that certain Second
Amendment to Contract of Sale dated effective as of October 7, 1996, and that
certain Third Amendment to Contract of Sale dated effective as of October 14,
1996, and that certain Fourth Amendment to Contract of Sale dated effective as
of November 18, 1996 (as so amended, the "Contract"); and
WHEREAS, Seller and Purchaser desire to modify the Contract to extend
certain dates and time periods and make certain other modifications, pursuant to
the terms and provisions of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser do hereby
agree as follows:
1. Unless otherwise defined in this Amendment or the context otherwise
requires, each term used in this Amendment with its initial letter capitalized
which has been defined in the Contract shall have the same meaning herein as
given to such term in the Contract.
2. Section 8.1 of the Contract is amended to read in its entirety as
follows:
8.1 Time and Place. The consummation of the purchase and sale of the
Property (the "Closing") shall take place at the office of the
Title Company on June 28, 1997, or such earlier date on which
Purchaser is prepared to close provided that Purchaser provides
Seller five (5) days written notice of such earlier date (the
"Closing Date"); provided, however, that in no event shall
Purchaser or Seller be obligated to proceed with the Closing
unless all conditions precedent thereto in favor of the
respective party have been satisfied or waived by such party.
3. New Section 12.2 is hereby added to the Contract as follows:
12.2 Demolition. Notwithstanding anything to the contrary
contained elsewhere in this Agreement, Purchaser may at its sole
cost and expense demolish the theater complex located on Parcel 2
and the mason McDuffie building (collectively referred to as the
"Demolition") at any time prior to Closing provided that the
following conditions have been satisfied: (i) Purchaser has
completed the Theater Remediation and the remediation of the
Mason McDuffie building to levels established in the Remediation
Estimate: (ii) Purchaser has terminated the Mason McDuffie lease
as provided in Section 7.1(c); (iii) Purchaser has a bona fide
commitment from a lender to finance the purchase of the Property
subject only to commercially reasonable closing conditions, and
has provided a copy thereof to Seller; and (iv) Purchaser has
deposited with the Title Company in an escrow account an amount
equal to 110% of the contract cost for the Demolition (the
"Demolition Deposit"), which funds will be disbursed as provided
below. Purchaser shall obtain all necessary permits, licenses,
and consents prior to commencing the Demolition, shall conduct
the Demolition in compliance with all applicable local, state and
federal laws, regulations and rules, and shall conduct the
Demolition so as not to unreasonably disturb the use and
occupancy of other tenants of the Property and adjoining
properties. After the Demolition, Purchaser shall remove all
debris from the theater complex located on parcel 2 and the Mason
McDuffie building site. Seller will authorize and direct Title
Company to disburse the Demolition Deposit to the Demolition
contractor, in whole or in part, upon presentation of invoices
and lien releases for the amount of the disbursement requested,
and Seller will authorize and direct Title Company to disburse
all remaining sums in the Demolition Deposit to the Demolition
contractor or to Buyer, upon presentation of the final lien
release related to the Demolition. Purchaser hereby agrees to
indemnify, defend and hold harmless Seller and its partners,
agents, employees, licensees, invitees and contractors against
all loss expense (including, but not limited to, attorneys' fees
and costs), damage, injury, liability, cause of action or claim
of any kind or character related to the Demolition, including
without limitation any claims for mechanics' liens, personal
injury or property damage. No party shall have any rights,
remedies or obligations with regard to the Demolition, including
without limitation rights to compensation, except as set forth in
this Section 12.2. The covenants and obligations set forth in
this Section 12.2 shall survive the termination of this Contract.
4. Except as expressly amended by this Amendment, no term or
provision of the Contract is or shall be amended, modified or
supplemented.
5. This Amendment may be executed in any 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 agreement, but in making
proof of this Amendment, it shall not be necessary to produce or
account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first set forth above.
SELLER: SERRAMONTE PLAZA
a California limited partnership
By: Investors First-Staged Equity, L.P.,
a Delaware limited partnership,
its general partner
By: VMS Realty Investment II,
an Illinois general partnership,
its general partner
By: /s/ Richard A. Berman
Its: Authorized Signatory
Dated: January 28, 1997
PURCHASER: DALY CITY PARTNERS, LLC,
a California limited liability company
By:_______________________________
Dennis J. Wong
Its: Manager
Dated:______________________, 1997
SIXTH AMENDMENT TO CONTRACT OF SALE
This Sixth Amendment to Contract of Sale is entered into effective as of
March 20, 1997 (this "Amendment"), by and between Serramonte Plaza, a California
limited partnership ("Seller"), and Daly City Partners, LLC, a California
limited liability company ("Purchaser").
WHEREAS, Seller and Purchaser entered into that certain Contract of Sale
dated effective as of August 29, 1996 (as amended, the "Contract"), pursuant to
which Seller has agreed to sell, and Purchaser has agreed to purchase from
Seller, Seller's rights, titles and interests in and to the property more
particularly described in the Contract (collectively, the "Property"), the
Contract having been amended by that certain First Amendment to Contract of Sale
dated as of September 27, 1996, and by that certain Second Amendment to Contract
of Sale dated effective as of October 7, 1996, and by that certain Third
Amendment to Contract of Sale dated as of October 14, 1996, and by that certain
Fourth Amendment to Contract of Sale dated as of November 18, 1996, and by that
certain Fifth Amendment to Contract of Sale dated as of January __, 1997; and
WHEREAS, Seller and Purchaser mutually desire to modify the Contract to
reflect a reduction in the Purchase Price (as defined in the Contract), and to
make related revisions to the Contract, pursuant to the terms of this Amendment.
NOW, THEREFORE, for and in consideration of the recitals contained above,
the agreements set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
do hereby agree as follows:
1. Unless otherwise defined in this Amendment or the context otherwise
requires, each term used in this Amendment with its initial letter capitalized,
which has been defined in the Contract, shall have the same meaning as given to
such term in the Contract.
2. Section 2.1 of the Contract is hereby amended to read in its entirety
as follows:
"2.1 Purchase Price. the total Purchase Price (herein so called)
to be paid by Purchaser to Seller for the Property is Four Million
Seven Hundred Seventy Eight Thousand Two Hundred Eighty and No/100
Dollars ($4,778,280.00), payable in cash or Current Funds
(hereinafter defined) at the Closing (hereinafter defined)."
3. Section 2.2(b) of the Contract is hereby amended to read in its
entirety as follows:
"(b) The Purchase Price includes the price for all of the
Property, including property constituting the Subject Portion as
configured on Exhibit B. Purchaser acknowledges and agrees that the
Purchase Price has already been reduced in anticipation of any land in
the Subject Portion as configured on Exhibit B being required to be
encumbered by a parking easement, the approximate location of which is
depicted in Exhibit B-1, in order to satisfy parking requirements
imposed by any city or county authority for the office building
currently located on Parcel 11. Purchaser agrees that there shall be
no further adjustment to the Purchase Price resulting from the
encumbrance of any of the Subject Portion by any parking easement.
Seller and Purchaser shall use their best efforts to reduce the
parking requirements for the office building currently located on
Parcel 11; provided, that Seller shall not be required to agree to any
reduction in parking spaces which materially and adversely impacts the
value or use of the portion of Parcel 11 retained by Seller and, in
any event, the Subject Portion shall be encumbered, as of the Closing
Date, by a parking easement sufficient to provide a total of not less
than 185 parking spaces, including the new parking spaces that can be
created by Seller on the north side and the west side of the office
building currently located on Parcel 11, for the portion of Parcel 11
not sold to Purchaser."
4. Section 2.3 of the Contract is hereby amended to read in its entirety
as follows:
"2.3 Verification of Land Area. Purchaser shall, at its sole
cost and expense, obtain a current survey of the Land and the
Improvements. Purchaser agrees that the Purchase Price has been
reduced to reflect the estimated square footage of the Land and that
the Purchase Price shall not be reduced further as a result of any
finding, opinion or conclusion as to the square footage area of the
Land identified in said survey."
5. Section 7.1(g) of the Contract is hereby amended to read in its
entirety as follows:
"(g) Seller, together with Seller's lender if required, shall
have executed a termination of REA 2 (as defined in Section 2.2(a))."
6. The Contract is hereby amended to substitute the legal description
contained on Exhibit A, attached hereto, in replacement of the Exhibit A
attached to the Contract, to reflect the approval of the final legal description
(pending recordation of the Parcel Map referred to therein), as provided in
Section 2.2(c) of the Contract.
7. The Contract is hereby amended to substitute the form of Reciprocal
Easement Agreement, attached hereto as Exhibit G, in replacement of the Exhibit
G attached to the Contract, referenced in Section 7.3 of the Contract.
8. Except as expressly modified in this Amendment, no term or provision
of the Contract is or shall be amended, modified or supplemented, and the
Contract, as hereby amended, is hereby acknowledged and affirmed.
9. This Amendment may be executed in any number of identical
counterparts. If so executed, then each of such counterparts is deemed to be an
original and all such counterparts shall, collectively, constitute one
agreement, but in making proof of this Amendment, it shall not be necessary to
produce or account for more than one such fully executed counterpart.
IN WITNESS WHEREOF, Purchaser and Seller have executed this Amendment to
be effective as of the date first set forth above.
SELLER:
SERRAMONTE PLAZA,
a California limited partnership
By: Investors First-Staged Equity, L.P.
a Delaware limited partnership,
its general partner
By: VMS Realty Investment II,
an Illinois general partnership,
its general partner
By:/s/ Richard A. Berman
Name:Richard A. Berman
Title:Authorized Signatory
PURCHASER:
DALY CITY PARTNERS, LLC,
a California limited liability company
By:/s/ Dennis J. Wong
Dennis J. Wong
Manager
