Exhibit 10.11
STANDARD OFFER, AGREEMENT AND ESCROW
INSTRUCTIONS FOR PURCHASE OF REAL ESTATE
(Non-Residential)
AIR Commercial Real Estate Association
7/27/04
(Date for Reference Purposes)
1.
Buyer.
1.1
Skechers USA, Inc. or Assignee, (Buyer)
hereby offers to purchase the real property, hereinafter described, from the owner thereof
(Seller) (collectively, the Parties or individually, a Party),
through an escrow (Escrow) to close on or before September 3, 2004
(Expected Closing Date) to be held by Commonwealth Land America (Escrow Holder)
whose address is 750 B Street #2350 San Diego, CA 92101 Attn Patt Lee
Escrow Officer, Phone No. 619 233 3000, Facsimile No. 619 233 8043
upon the terms and conditions set forth in this agreement
(Agreement). Buyer shall have the
right to assign Buyers rights hereunder, but any such assignment shall not relieve Buyer of
Buyers obligations herein unless Seller expressly releases Buyer.
1.2 The term Date of Agreement as used herein shall be the date when by execution and
delivery (as defined in paragraph 20.2) of this document or a subsequent counteroffer thereto,
Buyer and Seller have reached agreement in writing whereby Seller
agrees to sell, and Buyer agrees
to purchase, the Property upon terms accepted by both Parties.
2.
Property.
2.1 The real property (Property) that is the subject of this offer consists of (insert a brief
physical description) (The Skechers Building), A 3 Story Building being approximately 28,000 s.f.
is located in the City of Manhattan Beach, County of Los Angeles, State of California, is commonly known by the street address of 228 Manhattan Beach Blvd., Manhattan
Beach, CA 90266 and is legally described as: Lots 13, 14, 15, and 16
in block 67 of Manhattan Beach Division #2 as per map recorded in
book 1 pages 95 and 96 of Maps, office of the county recorder: (APN: 4179-020-011).
2.2 If the legal description of the Property is not complete or is inaccurate, this
Agreement shall not be invalid and the legal description shall be
completed or corrected to meet the requirements of __________
(Title Company), which shall issue the title policy hereinafter described.
2.3 The Property includes, at no additional cost to Buyer, the permanent improvements thereon,
including those items which pursuant to applicable
law are a part of the property, as well as the following items, if any, owned by Seller and at
present located on the Property: electrical distribution systems
(power panel, bus ducting, conduits, disconnects, lighting fixtures); telephone distribution
systems (lines, jacks and connections only); space heaters;
heating, ventilating, air conditioning equipment (HVAC); air lines; fire sprinkler systems;
security and fire detection systems carpets; window coverings;
wall coverings; and N/A
(collectively, the Improvements).
2.4
The fire sprinkler monitor: þ is owned by Seller and included in the Purchase Price, or
o is leased by Seller, and Buyer will need to negotiate a
new lease with the fire monitoring company.
2.5 Except as provided in Paragraph 2.3, the Purchase Price does not include Sellers personal
property, furniture and furnishings, and
N/A all of which shall be removed by Seller prior to Closing.
3. Purchase Price.
3.1 The purchase price (Purchase Price) to be paid by Buyer to Seller for the Property shall be
$11,000,000.00, payable as follows:
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(a) Cash down payment, including the Deposit as defined in
paragraph 4.3 (or if an all cash transaction, the Purchase
Price);
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11,000,000.00 |
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Total
purchase Price:
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11,000,000.00 |
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3.2 If Buyer is taking title to the Property subject to, or assuming, an Existing Deed of
Trust and such deed of trust permits the beneficiary to
demand payment of fees including, but not limited to, points, processing fees, and appraisal
fees as a condition to the transfer of the Property, Buyer
agrees to pay such fees up to a maximum of 1.5% of the unpaid principal balance of the
applicable Existing Note.
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Initials
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2000-AIR Commercial Real Estate Association
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REVISED
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Form OF A-4-8/00E |
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Page 1 of 8
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4. Deposits.
4.1
o Buyer has delivered to Broker a check in the sum of $___, payable to Escrow Holder, to be
held by Broker until both Parties have executed this Agreement and the executed Agreement has been delivered to
Escrow Holder, or þ Buyer shall deliver to Escrow
Holder a check in the sum of $100,000.00 when both Parties have executed this Agreement and the
executed Agreement has been delivered to Escrow Holder. When cashed, the check shall be deposited into the Escrows
trust account to be applied toward the Purchase Price of the Property at the Closing. Should Buyer
and Seller not enter into an agreement for purchase and sale, Buyers check or funds shall, upon
request by Buyer, be promptly returned to Buyer.
4.2
Additional deposits:
(a) Within
two(2) business days after the Removal of Contingencies Herein, Buyer shall deposit with Escrow
Holder the additional sum of $400,000.00 to be applied to the Purchase Price at the Closing.
4.3
Escrow Holder shall deposit the funds deposited with it by Buyer pursuant to
paragraphs 4.1 and 4.2 (collectively the Deposit), in a State or
Federally chartered bank in an interest bearing account whose term is appropriate and
consistent with the timing requirements of this transaction. The interest therefrom shall accrue to the benefit of Buyer, who hereby acknowledges that there
may be penalties or interest forfeitures if the applicable instrument is redeemed prior to its specified maturity. Buyers Federal Tax Identification
Number is 95-4376145. NOTE: Such interest bearing account cannot be opened until Buyers Federal
Tax Identification Number is provided.
7. Real Estate Brokers.
7.1
The following real estate broker(s) (Brokers) and brokerage relationships exist in
this transaction and are consented to by the Parties (check the applicable boxes):
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represents Seller exclusively (Sellers Broker); |
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o
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represents Buyer exclusively (Buyers Broker); or |
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þ
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Sperry Van Ness represents both Seller and Buyer (Dual Agency).
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The Parties acknowledge that Brokers are the procuring cause of this Agreement. See paragraph 24
for disclosures regarding the nature of a real estate agency relationship. Buyer shall use the
services of Buyers Broker exclusively in connection with any and all negotiations and offers
with respect to the Property for a period of 1 year from the Date of Agreement.
7.2 Buyer and Seller each represent and warrant to the other that he/she/it has had no
dealings with any person, firm, broker or finder in connection with the negotiation of this
Agreement and/or the consummation of the purchase and sale contemplated herein, other than the
Brokers named in paragraph 7.1, and no broker or other person, firm or entity, other than said
Brokers is/are entitled to any commission or finders fee in connection with this transaction as
the result of any dealings or acts of such Party. Buyer and Seller do each hereby agree to
indemnify, defend, protect and hold the other harmless from and against any costs, expenses or
liability for compensation, commission or charges which may be claimed by any broker, finder or
other similar party, other than said named Brokers by reason of any dealings or act of the
indemnifying Party.
8. Escrow and Closing.
8.1 Upon acceptance hereof by Seller, this Agreement, including any counter-offers
incorporated herein by the Parties, shall constitute not only the
agreement of purchase and sale between Buyer and Seller, but also instructions to Escrow
Holder for the consummation of the Agreement through the
Escrow. Escrow Holder shall not prepare any further escrow instructions restating or amending
the Agreement unless specifically so instructed by the
Parties or a Broker herein. Subject to the reasonable approval of the
Parties, Escrow Holder
may, however, include its standard and general escrow provisions
8.2 As soon as practical after the receipt of this Agreement and any relevant counteroffers,
Escrow Holder shall ascertain the Date of Agreement as
defined in paragraphs 1.2 and 20.2 and advise the Parties and Brokers, in writing, of the date ascertained.
8.3 Escrow Holder is hereby authorized and instructed to conduct the Escrow in accordance with this
Agreement, applicable law and custom and
practice of the community in which Escrow Holder is located, including any reporting
requirements of the Internal Revenue Code. In the event of a conflict
between the law of the state where the Property is located and the law of the state where the
Escrow Holder is located, the law of the state where the Property is located shall prevail.
8.4 Subject to satisfaction of the contingencies herein described, Escrow Holder shall close this
escrow (the Closing) by recording a general warranty deed (a grant deed in California) and the other documents required to be recorded,
and by disbursing the funds and documents in accordance
with this Agreement.
8.5 Buyer and Seller shall each pay one-half of the Escrow Holders charges and Seller
shall pay the usual recording fees and any required documentary transfer taxes. Seller shall pay the premium for a standard coverage owners or
joint protection policy of title insurance.
8.6
Escrow Holder shall verify that all of Buyers contingencies have been satisfied or waived
prior to Closing. The matters contained in paragraphs
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2000-AIR Commercial Real Estate Association
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REVISED
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Form OF A-4-8/00E |
Page 2 of 8
9.1
subparagraphs (b), (c), (d), (e), (g), (i), (n), and (o), 9.4, 9.5, 12, 13, 14,
16, 18, 20, 21, 22, and 24 are, however, matters of agreement between the Parties only and are
not instructions to Escrow Holder.
8.7 If this transaction is terminated for non-satisfaction and non-waiver of a Buyers
Contingency, as defined in paragraph 9.2, then neither of the
Parties shall thereafter have any liability to the other under this
Agreement, except to the
extent of a breach of any affirmative covenant or warranty in this
Agreement. In the event of such termination, Buyer shall be promptly refunded all funds
deposited by Buyer with Escrow Holder, less only Title Company
and Escrow Holder cancellation fees and costs, all of which shall be Buyers obligation.
8.8 The Closing shall occur on the Expected Closing Date, or as soon thereafter as the Escrow
is in condition for Closing provided, however, that if
the Closing does not occur by the Expected Closing Date and said Date is not extended by
mutual instructions of the Parties a Party not then in default
under this Agreement may notify the other Party. Escrow Holder, and Brokers, in writing that,
unless the Closing occurs within 5 business days following
said notice, the Escrow shall be deemed terminated without further notice or instructions.
8.9 Except as otherwise provided herein, the termination of Escrow shall not relieve or release either
Party from any obligation to pay Escrow
Holders fees and costs or constitute a waiver, release or discharge of any breach or default
that has occurred in the performance of the obligations,
agreements, covenants or warranties contained therein.
8.10 If this Escrow is terminated for any reason other than Sellers breach or default, then
at Sellers request, and as a condition to the return of
Buyers deposit, Buyer shall within 5 days after written request deliver to Seller, at no
charge, copies of all surveys, engineering studies, soil reports, maps,
master plans, feasibility studies and other similar items prepared by or for Buyer that
pertain to the Property. Provided, however that Buyer shall not be
required to deliver any such report if the written contract which Buyer entered into with the
consultant who prepared such report specifically forbids the
dissemination of the report to others.
9. Contingencies to Closing.
9.1 The Closing of this transaction is contingent upon the satisfaction or waiver of the
following contingencies. IF BUYER FAILS TO NOTIFY ESCROW HOLDER, IN WRITING, OF THE DISAPPROVAL
OF ANY OF SAID CONTINGENCIES WITHIN THE TIME SPECIFIED THEREIN, IT SHALL BE CONCLUSIVELY
PRESUMED THAT BUYER HAS APPROVED SUCH ITEM, MATTER OR DOCUMENT. Buyers conditional approval
shall constitute disapproval, unless provision is made by the Seller within the time specified
therefore by the Buyer in such conditional approval or by this Agreement, whichever is later,
for the satisfaction of the condition imposed by the Buyer. Escrow Holder shall promptly provide
all Parties with copies of any written disapproval or conditional approval which it receives.
With regard to subparagraphs (a) through (l) the pre-printed time periods shall control unless a
different number of days is inserted in the spaces provided.
(a) Disclosure. Seller shall make to Buyer, through escrow, all of the applicable disclosures
required by law (See AIR Commercial Real Estate
Association (AIR) standard form entitled Sellers Mandatory Disclosure Statement) and
provide Buyer with a completed Property Information Sheet
(Property Information Sheet) concerning the Property, duly executed by or on behalf of
Seller in the current form or equivalent to that published by the
AIR within 10 or___days-following the Date of Agreement. Buyer has 10 days from the receipt of said
disclosures to approve or disapprove
the matters disclosed.
(b) Physical Inspection. Buyer has to 08-23-04 to satisfy itself with regard to the
physical aspects and size of the Property.
(c)
Hazardous Substance Conditions Report. Buyer has to 08-23-04 to satisfy itself with regard to
the environmental aspects of the Property. Seller recommends that Buyer obtain a Hazardous
Substance Conditions Report concerning the Property and relevant adjoining properties. Any such
report shall be paid for by Buyer. A Hazardous Substance for purposes of this Agreement is
defined as any substance whose nature and/or quantity of existence, use, manufacture, disposal or
effect, render it subject to Federal, state or local regulation, investigation, remediation or
removal as potentially injurious to public health or welfare. A
Hazardous Substance Condition for purposes of this Agreement is defined as the existence on, under or relevantly adjacent to the
Property of a Hazardous Substance that would require remediation and/or removal under applicable
Federal, state or local law.
(d) Soil
Inspection. Buyer has to 08-23-04 to satisfy itself with regard to the condition of the soils on the
Property. Seller recommends that Buyer obtain a soil test report. Any such
report shall be paid for by Buyer. Seller shall provide Buyer copies of any soils report that
Seller may have within 10 days of the Date of Agreement.
(e) Governmental Approvals. Buyer has to 08-23-04 to satisfy itself with regard to approvals and
permits from governmental agencies or departments which have or may have jurisdiction over the
Property and which Buyer deems necessary or desirable in connection with its intended use of the
Property, including, but not limited to, permits and approvals
required with respect to zoning,
planning, building and safety, fire, police, handicapped and Americans with Disabilities Act
requirements, transportation and environmental matters.
(f) Conditions of Title. Escrow Holder shall cause a current commitment for title insurance
(Title Commitment) concerning the Property issued
by the Title Company, as well as legible copies of all documents referred to in the Title
Commitment (Underlying Documents) to be delivered
to Buyer within 10 or ___days following the Date of Agreement. Buyer has 10 days from the receipt of the Title
Commitment and Underlying Documents to satisfy itself with regard to the condition of title. The disapproval of Buyer of any monetary
encumbrance, which by the terms of this Agreement is not to remain against the Property after the
Closing, shall not be considered a failure of this contingency, as Seller shall have the
obligation, at Sellers expense, to satisfy and remove such disapproved monetary encumbrance at or
before the Closing.
(g) Survey. Buyer has to 08-23-04 to satisfy itself with
regard to any ALTA title supplement based upon a survey prepared to American Land Title
Association (ALTA) standards for an owners policy by a
licensed surveyor, showing the legal description and boundary lines of the Property, any
easements of record, and any improvements, poles, structures
and things located within 10 feet of either side of the Property boundary lines. Any such
survey shall be prepared at Buyers direction and expense. If
Buyer has obtained a survey and approved the ALTA title supplement, Buyer may elect within the
period allowed for Buyers approval of a survey to have
an ALTA extended coverage owners form of title policy, in which event Buyer shall pay any
additional premium attributable thereto.
(i)
Other Agreements. Seller shall within 10 or
days of the Date of Agreement provide Buyer
with legible copies of all other
agreements (Other Agreements) known to Seller that
will affect the Property after Closing.
Buyer has from the receipt of said Other Agreements to satisfy itself with regard to such
Agreements.
(l)
Personal Property. In the event that any personal property is included in the Purchase Price,
Buyer has to 08-23-04
to satisfy itself with regard to the title condition of such personal property. Seller
recommends that Buyer obtain a UCC-1 report.
Any such report shall be paid for by Buyer. Seller shall provide Buyer copies of any liens or
encumbrances affecting such personal property that it is aware
of within 10 or days of the Date of Agreement.
(m) Destruction, Damage or Loss. There shall not have occurred prior to the Closing, a
destruction of, or damage or loss to, the Property or any portion thereof, from any cause
whatsoever, which would cost more than $10,000.00 to repair or cure. If the cost of repair or cure
is $10,000.00 or less, Seller shall repair or cure the loss prior to the Closing. Buyer shall have
the option, within 10 days after receipt of written notice of a loss costing more than $10,000.00
to repair or cure, to either terminate this transaction or to purchase the Property
notwithstanding such loss, but without deduction or offset against the Purchase Price. If the cost
to repair or cure is more than $10,000.00, and Buyer does not elect
to terminate this transaction. Buyer shall be entitled to any insurance proceeds applicable to such loss. Unless
otherwise notified in writing, Escrow Holder shall assume to such
destruction, damage
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2000-AIR Commercial Real Estate Association
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REVISED
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Form OF A-4-8/00E |
Page 3 of 8
or loss has occurred prior to Closing.
(n) Material Change. Buyer shall have 10 days following receipt of written notice of a
Material Change within which to satisfy itself with regard to such
change. Material Change shall
mean a change in the status of the use, occupancy, tenants, or
condition of the Property that
occurs after the date of this offer and prior to the Closing. Unless otherwise notified in
writing, Escrow Holder shall assume that no Material Change has occurred prior to the Closing.
(o) Seller Performance. The delivery of all documents and the due performance by Seller of
each and every under taking and agreement to be performed by Seller under this Agreement.
(p) Warranties. That each representation and warranty of Seller herein be true and correct
as of the Closing. Escrow Holder shall assume that this condition has been satisfied unless
notified to the contrary in writing by any Party prior to the Closing.
(q) Brokerage Fee. Payment at the Closing of such brokerage fee as is specified in this
Agreement or later written instructions to Escrow Holder executed by Seller and Brokers
(Brokerage Fee). It is agreed by the Parties and Escrow Holder that Brokers are a third party
beneficiary of this Agreement insofar as the Brokerage Fee is concerned, and that no change
shall be made with respect to the payment of the Brokerage Fee specified in this Agreement,
without the written consent of Brokers.
9.2 All of the contingencies specified in subparagraphs (a) through (p) of paragraph 9.1 are
for the benefit of, and may be waived by, Buyer, and
may be elsewhere herein referred to as Buyer
Contingencies.
9.3 If any Buyers Contingency or any other matter subject to Buyers approval is
disapproved as provided for herein in a timely manner
(Disapproved Item), Seller shall have the right within 10 days following the receipt of
notice of Buyers disapproval to elect to cure such Disapproved
Item prior to the Expected Closing Date (Sellers Election). Sellers failure to give to
Buyer within such period, written notice of Sellers commitment to
cure such Disapproved Item on or before the Expected Closing Date shall be conclusively
presumed to be Sellers Election net to cure such Disapproved
Item. If Seller elects, either by written notice or failure to give written notice, not to
cure a Disapproved Item, Buyer shall have the election, within 10 days
after Sellers Election to either accept title to the Property subject to such Disapproved
Item, or to terminate this transaction. Buyers failure to notify Seller
in writing of Buyers election to accept title to the Property subject to the Disapproved Item
without deduction or offset shall constitute Buyers election to
terminate this transaction. Unless expressly provided otherwise
herein, Sellers right to cure
shall not apply to the remediation of Hazardous Substance
Conditions or to the Financing Contingency. Unless the Parties mutually instruct otherwise, if
the time periods for the satisfaction of contingencies or for
Sellers and Buyers said Elections would expire on a date after the Expected Closing Date, the
Expected Closing Date shall be deemed extended for 3
business days following the expiration of: (a) the applicable contingency period(s), (b) the
period within which the Seller may elect to cure the Disapproved
Item, or (c) if Seller elects not to cure, the period within which Buyer may elect to proceed
with this transaction, whichever is late.
9.4 Buyer understands and agrees that until such time as all Buyers Contingencies have been
satisfied or waived, seller and/or its agents may
solicit, entertain and/or accept back-up offers to purchase the
subject Property.
9.5 The Parties acknowledge that extensive local, state and Federal legislation establish
broad liability upon owners and/or users of real property for
the investigation and remediation of Hazardous Substances. The determination of the existence
of a Hazardous Substance and the evaluation of
the impact of such a condition are highly technical and beyond the expertise of Brokers. The
Parties acknowledge that they have been advised by Brokers
to consult their own technical and legal experts with respect to the possible presence of
Hazardous Substances on this Property or adjoining properties,
and Buyer and Seller are not relying upon any investigation by or statement of Brokers with
respect thereto. The Parties hereby assume all responsibility
for the impact of such Hazardous Substances upon their respective interests herein.
10. Documents Required at or before Closing:
10.1 Five days prior to the Closing date Escrow Holder shall obtain an updated Title
Commitment concerning the Property from the Title Company and provide copies thereof to each of
the Parties.
10.2
Seller shall deliver to Escrow Holder in time for delivery to Buyer at the Closing:
(a) Grant or general warranty deed, duly executed and in recordable form, conveying fee title
to the Property to Buyer.
(e) An affidavit executed by Seller to the effect that Seller is not a foreign person
within the meaning of Internal Revenue Code Section 1445 or successor statutes. If Seller does
not provide such affidavit in form reasonably satisfactory to Buyer at least 3 business days
prior to the Closing, Escrow Holder shall at the Closing deduct from Sellers proceeds and remit
to Internal Revenue Service such sum as is required by applicable
Federal law with respect to
purchases from foreign sellers.
(f) If the Property is located in California, an affidavit executed by Seller to the effect
that Seller is not a nonresident within the meaning of
California Revenue and Tax Code Section 18662 or successor statutes. If Seller does not
provide such affidavit in form reasonably satisfactory to Buyer at
least 3 business days prior to the Closing. Escrow Holder shall at the Closing deduct from
Sellers proceeds and remit to this Franchise Tax Board such
sum as is required by such statute.
(g) If applicable, a bill of sale, duly executed, conveying title to any included personal
property to Buyer.
(h) If the Seller is a corporation, a duly executed corporate resolution authorizing the
execution of this Agreement and the sale of the Property.
10.3 Buyer shall deliver to Seller through Escrow:
(a) The cash portion of the Purchase Price and such additional sums as are required of Buyer
under this Agreement shall be deposited by
Buyer with Escrow Holder, by federal funds wire transfer, or any other method acceptable to
Escrow Holder as immediately colectable funds, no later than
2:00 P.M. on the business day prior to the Expected Closing Date.
(b) If a Purchase Money Note and Purchase Money Deed of Trust are called for by this
Agreement, the duly executed originals of those
documents, the Purchase Money Deed of Trust being in recordable form, together with evidence
of fire insurance on the improvements in the amount of
the full replacement cost naming Seller as a mortgage loss payee, and a real estate tax
service contract (at Buyers expense), assuring Seller of notice of
the status of payment of real property taxes during the life of the Purchase Money Note.
(c) The Assignment and Assumption of Lessors Interest in Lease form specified in paragraph
10.2(c) above, duly executed by Buyer.
(d) Assumptions duly executed by Buyer of the obligations of Seller that accrue after
Closing under any Other Agreements.
(e) If applicable, a written assumption duly executed by Buyer of the loan documents with
respect to Existing Notes.
(f) If the Buyer is a corporation, a duly executed corporate resolution authorizing the
execution of this Agreement and the purchase of the Propeity.
10.4 At Closing, Escrow Holder shall cause to be issued to Buyer a standard coverage (or ALTA
extended, if elected pusuant to 9.1(g)) owners form
policy of title insurance effective as of the Closing, issued by the Title Company in the
full amount of the Purchase Price, nsuring title to the Property
vested in Buyer, subject only to the exceptions approved by Buyer. In the event there is a
Purchase Money Deed of Trust in this transaction, the policy of
title insurance shall be a joint protection policy insuring both
Buyer and Seller.
IMPORTANT: IN A PURCHASE OR EXCHANGE OF REAL PROPERTY, IT MAY BE ADVISABLE TO OBTAIN TITLE
INSURANCE IN CONNECTION WITH THE CLOSE OF ESCROW SINCE THERE MAY BE PRIOR RECORDED LIENS AND
ENCUMBRANCES WHICH AFFECT YOUR INTEREST IN THE PROPERTY BEING ACQUIRED. A NEW POLICY OF TITLE
INSURANCE SHOULD BE OBTAINED IN ORDER TO ENSURE YOUR INTEREST IN THE PROPERTY THAT YOU ARE
ACQUIRING.
11. Prorations and Adjustments.
11.1
Taxes. Applicable real property taxes and special assessment bonds shall be prorated
through Escrow as of the date of the Closing, based
upon the latest tax bill available. The Parties agree to prorate as of the Closing any taxes
assessed against the Property by supplemental bill levied by
reason of events occurring prior to the Closing. Payment of the prorated amount shall be made
promptly in cash upon receipt of a copy of any
supplemental bill.
11.2
Insurance. WARNING: Any insurance which Seller
maintained will terminate on the Closing.
Buyer is advised to obtain appropriate insurance to
cover the Property.
11.3
Rentals, Interest and Expenses. Scheduled rentals, interest on Existing Notes,
utilities, and operating expenses shall be prorated as of the date
of Closing. The Parties agree to promptly adjust between themselves outside of Escrow any
rents received after the Closing.
11.4
Security Deposit. Security Deposits held by Seller shall be given to Buyer as a credit to
the cash required of Buyer at the Closing.
11.5
Post Closing Matters. Any item to be prorated that is not determined or determinable at the
Closing shall be promptly adjusted by the Parties by appropriate cash payment outside of the
Escrow when the amount due is determined.
11.7 Variations in New Loan Balance. In the event Buyer is obtaining a New Loan and the
amount ultimately obtained exceeds the amount set forth
in paragraph 5.1, then the amount of the Purchase Money Note, if any, shall be reduced by the
amount of such excess.
12.
Representation and Warranties of Seller and Disclaimers.
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2000-AIR Commercial Real Estate Association
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REVISED
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Form OF A-4-8/00E |
Page 4 of 8
12.1 Sellers warranties and representations shall survive the Closing and delivery of
the deed for a period of 3 years, and, are true, material and
relied upon by Buyer and Brokers in all respects. Seller hereby makes the following warranties
and representations to Buyer and Brokers:
(a) Authority of Seller. Seller is the owner of the Property and/or has the full right, power
and authority to sell, convey and transfer the Property to
Buyer as provided herein, and to perform Sellers obligations hereunder.
(b) Maintenance During Escrow and Equipment Condition At Closing. Except as otherwise provided
in paragraph 9.1(m) hereof, Seller shall
maintain the Property until the Closing in its present condition, ordinary wear and tear
excepted. The HVAC, plumbing, elevators, loading doors and
electrical systems shall be in good operating order and condition at the time of Closing.
(c) Hazardous Substances/Storage Tanks. Seller has no knowledge, except as otherwise disclosed
to Buyer in writing, of the existence or prior
existence on the Property of any Hazardous Substance, nor of the existence or prior existence
of any above or below ground storage tank.
(d) Compliance. Seller has no knowledge of any aspect or condition of the Property which
violates applicable laws,
rules, regulations, codes or
covenants, conditions or restrictions, or of improvements or alterations made to the Property
without a permit where one was required, or of any unfulfilled
order or directive of any applicable governmental agency or casualty insurance company
requiring any investigation, remediation, repair, maintenance or
improvement be performed on the Property.
(e) Changes
in Agreements. Prior to the Closing. Seller will not violate or modify any
Existing Lease or Other Agreement, or create any new
leases or other agreements affecting the Property, without Buyers written approval, which
approval will not be unreasonably withheld.
(f) Possessory Rights. Seller has no knowledge that anyone will, at the Closing, have any
right to possession of the Property, except as
disclosed by this Agreement or otherwise in writing to Buyer.
(g) Mechanics Liens. There are no unsatisfied mechanics or materialmens lien rights
concerning the Property.
(h) Actions, Suits or Proceedings. Seller has no knowledge of any actions, suits or
proceedings pending or threatened before any commission, board, bureau, agency, arbitrator, court
or tribunal that would affect the Property or the right to occupy or utilize same.
(i) Notice of Changes. Seller will promptly notify Buyer and Brokers in writing of any
Material Change (see paragraph 9.1(n)) affecting the Property that becomes known to Seller prior
to the Closing.
(j)
No Tenant Bankruptcy Proceedings. Seller has no notice or knowledge that any tenant of
the Property is the subject of a bankruptcy or insolvency proceeding.
(k) No
Seller Bankruptcy Proceedings. Seller is not the subject of a bankruptcy, insolvency
or probate proceeding.
(l) Personal Property. Seller has no knowledge that anyone will, at the Closing, have any
right to possession of any personal property included in the Purchase Price nor knowledge of any
liens or encumbrances affecting such personal property, except as disclosed by this Agreement or
otherwise in writing to Buyer.
12.2 Buyer hereby acknowledges that, except as otherwise stated in this Agreement, Buyer is
purchasing the Property in its existing condition and
will, by the time called for herein, make or have waived all
inspections of the Property Buyer
believes are necessary to protect its own interest in, and its
contemplated use of, the Property. The Parties acknowledge that, except as otherwise stated in
this Agreement, no reprsentations, inducements,
promises, agreements, assurances, oral or written, concerning the Property, or any aspect of
the occupational safety and health laws, Hazardous
Substance laws, or any other act, ordinance or law, have been made by either Party or Brokers,
or relied upon by either Party hereto.
12.3 In the event that Buyer learns that a Seller representation or warranty might be untrue
prior to the Closing, and Buyer elects to purchase the
Property anyway then, and in that event, Buyer waives any right that it may have to bring an
action or proceeding against Seler or Brokers regarding said
representation or warranty.
12.4 Any environmental reports, soils reports, surveys, and other similar documents which were
prepared by third party consultants and provided to
Buye by Seller or Sellers representatives, have been delivered as an accommodation to Buyer
and without any representation or warranty as to the
sufficiency, accuracy, completeness, and/or validity of said documents, all of which Buyer
relies on at its own risk. Seller believes said documents to be
accurate, but Buyer is advised to retain appropriate consultants to review said documents and
investigate the Property.
13. Possession.
Possession of the Property shall be given to Buyer at the Closing subject to the rights of
tenants under Existing Leases.
14. Buyers Entry.
At any time during the Escrow period, Buyer, and its agents and representatives, shall have the
right at reasonable times and subject to rights of tenants, to enter upon the Property for the
purpose of making inspections and tests specified in this Agreement. No destructive lesting shall
be conducted, however, without Sellers prior approval which shall not be unreasonably withheld.
Following any such entry or work, unless wise directed in writing by Seller, Buyer shall return
the Property to the condition it was in prior to such entry or work, including the recompaction
or removal of any disrupted soil or material as Seller may reasonably direct. All such
inspections and tests and any other work conducted or materials
furnished with respect to the
Property by or for Buyer shall be paid for by Buyer as and when due and Buyer shall indemnify,
defend, protect and hold harmless Seller and the Property of and from any and all claims,
liabilities, losses, expenses (including reasonable attorneys fees), damages, including those
for injury to person or property, arising out of or relating to any
such work or materials or the
acts or omissions of Buyer, its agents or employees in connection therewith.
15. Further Documents and Assurances.
The Parties shall each, diligently and in good faith, undertake all actions and procedures
reasonably required to place the Escrow in condition for Closing as and when required by
this Agreement. The Parties agree to provide all further information, and to execute and deliver
all further documents, reasonably required by Escrow Holder or the Title Company.
16. Attorneys Fees.
If any Party or Broker brings an action or proceeding (Including arbitration) involving the
Property whether founded in tort, contract or equity, or to declare rights hereunder, the
Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall
be entitled to reasonable attorneys fees. Such fees may be awarded in the same suit or recovered
in a separate suit, whether or not such action or proceeding is pursued to decision or judgment.
The term Prevailing Party shall include, without limitation, a Party or Broker who substantially
obtains or defeats the relief sought, as the case may be, whether by compromise, settlement,
judgment, or the abandonment by the other Party or Broker of its claim or defense. The attorneys
fees award shall not be computed in accordance with any court fee schedule, but shall be such as
to fully reimburse all attorneys fees resonably incurred.
17.
PRIOR AGREEMENTS / AMENDMENTS.
17.1 This Agreement supersedes any and all prior agreements between Seller and Buyer regarding
the Property.
17.2 Amendments to this Agreement are effective only if made in writing and executed by Buyer
and Seller.
18.2
Upon the Closing, Brokers are authorized to publicize the facts of this transaction.
19. Notices.
19.1 Whenever any Party, Escrow Holder or Brokers herein shall desire to give or serve any
notice, demand, request, approval, disapproval or other
communication, each such communication shall be in writing and shall be delivered personally,
by messenger or by mail, postage prepaid, to the address
set forth in this Agreement or by facsimile transmission.
19.2 Service of any such communication shall be deemed made on the date of actual receipt if
personally delivered. Any such communication sent by
regular mail shall be deemed given 48 hours after the same is mailed. Communications sent by
United States Express Mail or overnight courier that
guarantee next day delivery shall be deemed delivered 24 hours after delivery of the same to
the Postal Service or courier. Communications transmitted by
facsimile transmission shall be deemed delivered upon telephonic confirmation of receipt
(confirmation report from fax machine is sufficient), provided a
copy is also delivered via delivery or mail. If such communication is received on a Saturday,
Sunday or legal holiday, it shall be deemed received on the
next business day.
19.3 Any Party or Broker hereto may from time to time, by notice in writing, designate a
different address to which, or a different person or additional
persons to whom, all communications are thereafter to be made.
20. Duration of Offer.
20.1 If this offer is not accepted by Seller on or before 5:00 P.M. according to the time
standard applicable to the city of
San
Diego, Califonia on the date of July 28, 2004, it shall
be deemed automatically revoked.
20.2 The acceptance of this offer, or of any subsequent counteroffer hereto, that creates
an agreement between the Parties as described in
paragraph 1.2, shall be deemed made upon delivery to the other Party or either Broker herein
of a duly executed writing unconditionally accepting the last
outstanding offer or counteroffer.
21.
LIQUIDATED DAMAGES. (This Liquidated Damages paragraph is applicable only if initialed by both
Parties).
THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, PRIOR TO SIGNING
THIS AGREEMENT. THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED BY SELLER IF BUYER FAILS TO PERFORM
ITS OBLIGATIONS UNDER THIS AGREEMENT. THEREFORE, IF, AFTER THE SATISFACTION OR WAIVER OF ALL
CONTINGENCIES
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REVISED
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Page 5 of 8
PROVIDED FOR THE BUYERS BENEFIT, BUYER BREACHES THIS AGREEMENT, SELLER SHALL BE ENTITLED TO LIQUIDATED
DAMAGES IN THE AMOUNT OF $400,000.00. UPON PAYMENT OF SAID SUM TO SELLER, BUYER SHALL
BE RELEASED FROM ANY FURTHER LIABILITY TO SELLER, AND ANY ESCROW CANCELLATION FEES AND TITLE COMPANY
CHARGES SHALL BE PAID BY SELLER.
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22.
ARBITRATION OF DISPUTES. (This Arbitration of Disputes paragraph is applicable only if
initialed by both Parties.)
22.1 ANY CONTROVERSY AS TO WHETHER SELLER IS ENTITLED TO THE LIQUIDATED DAMAGES AND/OR BUYER
IS ENTITLED TO THE RETURN OF DEPOSIT MONEY, SHALL BE DETERMINED BY BINDING ARBITRATION BY, AND
UNDER THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION
(COMMERCIAL RULES). ARBITRATION
HEARINGS SHALL BE HELD IN THE COUNTY WHERE THE PROPERTY IS LOCATED.
ANY SUCH CONTROVERSY SHALL BE
ARBITRATED BY
3 ARBITRATORS WHO SHALL BE IMPARTIAL REAL ESTATE BROKERS WITH AT LEAST 5 YEARS OF FULL TIME
EXPERIENCE IN BOTH THE AREA WHERE THE PROPERTY IS LOCATED AND THE
TYPE OF REAL ESTATE THAT IS THE SUBJECT OF
THIS AGREEMENT. THEY SHALL BE APPOINTED UNDER THE COMMERCIAL RULES. THE ARBITRATORS SHALL HEAR
AND DETERMINE SAID CONTROVERSY IN ACCORDANCE WITH APPLICABLE LAW, THE
INTENTION OF THE
PARTIES AS EXPRESSED IN THIS AGREEMENT AND ANY AMENDMENTS THERETO, AND UPON THE EVIDENCE PRODUCED AT AN
ARBITRATION HEARING. PRE-ARBITRATION DISCOVERY SHALL BE PERMITTED IN ACCORDANCE WITH THE
COMMERCIAL RULES OR STATE LAW APPLICABLE TO ARBITRATION PROCEEDINGS. THE AWARD SHALL BE EXECUTED BY AT
LEAST 2 OF THE 3 ARBITRATORS. BE RENDERED WITHIN 30 DAYS AFTER THE CONCLUSION OF THE HEARING AND MAY
INCLUDE ATTORNEYS FEES AND COSTS TO THE PREVAILING PARTY PER
PARAGRAPH 16 HEREOF. JUDGMENT MAY BE
ENTERED ON THE AWARD IN ANY COURT OF COMPETENT JURISDICTION NOTWITHSTANDING THE FAILURE OF A PARTY DULY
NOTIFIED OF THE ARBITRATION HEARING TO APPEAR THEREAT.
22.2 BUYERS RESORT TO OR PARTICIPATION IN SUCH ARBITRATION PROCEEDINGS SHALL NOT BAR SUIT IN A
COURT OF COMPETENT JURISDICTION BY THE BUYER FOR DAMAGES AND/OR
SPECIFIC PERFORMANCE UNLESS
AND UNTIL THE ARBITRATION RESULTS IN AN AWARD TO THE SELLER OF LIQUIDATED DAMAGES, IN WHICH EVENT SUCH AWARD
SHALL ACT AS A BAR AGAINST ANY ACTION BY BUYER FOR DAMAGES AND/OR
SPECIFIC PERFORMANCE.
22.3 NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE
MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS
PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE
LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN
THE ARBITRATION OF DISPUTES
PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO
THIS PROVISION. YOU MAY BE COMPELLED TO
ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS
INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION TO NEUTRAL ARBITRATION.
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23. Miscellaneous.
23.1 Binding Effect. This Agreement shall be binding on the Parties without regard to
whether or not paragrarphs 21 and 22 are initialed by both of the Parties. Paragraphs 21 and 22
are each incorporated into this Agreement only if initialed by both Parties at the time that the
Agreement is executed.
23.
2 Applicable Law. This Agreement shall be governed by, and paragraph 22.3 is amended to
refer to, the laws of the state in which the Property is located.
23.3 Time of Essence. Time is of the essence of this Agreement.
23.4 Counterparts. This Agreement may be executed by Buyer and Seller in counterparts,
each of which shall be deemed an original, and
all of which together shall constitute one and the same instrument. Escrow Holder, after
verifying that the counterparts are identical except for the
signatures, is authorized and instructed to combine the signed signature pages on one of the
counterparts, which shall then constitute the Agreement.
23.5 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT.
23.6 Conflict. Any conflict between the printed provisions of this Agreement and
the typewritten or handwritten provisions shall be
controlled by the typewritten or handwritten provisions.
24. Disclosures Regarding The Nature of a Real Estate Agency Relationship.
24.1
The Parties and Brokers agree that their relationship(s) shall be governed by the
principles set forth in the applicabe sections of the California
Civil Code, as summarized in paragraph 24.2.
24.2 When entering into a discussion with a real estate agent regarding a real estate
transaction, a Buyer or Seller should from the outset understand
what type of agency relationship or representation it has with the agent or agents in the
transaction. Buyer and Seller acknowledge being advised by the
Brokers in this transaction, as follows:
(a) Sellers Agent. A Sellers agent under a listing agreement with the Seller acts as the
agent for the Seller only. A Sellers agent or subagent
has the following affirmative obligations: (1) To the Seller: A fiduciary duty of utmost
care, integrity, honesty, and loyalty in dealings with the Seller. (2) To
the Buyer and the Seller: a. Diligent exercise of reasonable skills and care in performance of
the agents duties. b. A duty of honest and fair dealing and
good faith. c. A duty to disclose all facts known to the agent materially affecting the value
or desirability of the property that are not known to, or within the
diligent attention and observation of, the Parties. An agent is not obligated to reveal to
either Party any confidential information obtained from the other
Party which does not involve the affirmative duties set forth above.
(b) Buyers
Agent. A selling agent can, with a Buyers consent, agree to act as agent for the
Buyer only. In these situations. the agent is not the
Sellers agent, even if by agreement the agent may receive compensation for services
rendered, either in full or in part from the Seller. An agent acting
only for a Buyer has the following affirmative obligations. (1) To the Buyer: A fiduciary
duty of utmost care, integrity, honesty and loyalty in dealings with
the Buyer. (2) To the Buyer and the Seller: a. Diligent exercise of reasonable skills and
care in performance of the agents duties. b. A duty of honest and
fair dealing and good faith. c. A duty to disclose all facts known to the agent materially
affecting the value or desirability of the property that are not known
to, or within the diligent attention and observation of, the Parties. An agent is not
obligated to reveal to either Party any confidential information obtained
from the other Party which does not involve the affirmative duties set forth above.
(c) Agent Representing Both Seller and Buyer. A real estate agent, either acting directly or
through one or more associate licenses, can legally
be the agent of both the Seller and the Buyer in a transaction, but only with the knowledge
and consent of both the Seller and the Buyer. (1) In a dual
agency situation, the agent has the following affirmative obligations to both the Seller and
the Buyer: a. A fiduciary duty of utmost care, integrity, honesty
and loyalty in the dealings with either Seller or the Buyer. b. Other duties to the Seller
and the Buyer as stated above in the respective sections (a) or (b)
of this paragraph 24. 2. (2) In representing both Seller and Buyer, the agent may not without
the express permission of the respective Party, disclose to the
other Party that the Seller will accept a price less than the listing price or that the
Buyer will pay a price greater than the price deffered. (3) The above duties
of the agent in a real estate transaction do not relieve a Seller or Buyer from the
responsibility to protect their own interest. Buyer and Seller should
carefully read all agreements to assure that they adequately express their understanding of
the transaction. A real estate agent is a person qualified to
advise about real estate. If legal or tax advice is desired, consult
a competent professional.
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(d) Further Disclosures. Throughout this transaction Buyer and Seller may
receive more than one disclosure, depending upon the number of agents assisting in the
transaction. Buyer and Seller should each read its contents each time it is presented,
considering the relationship between them and the real estate agent in this transaction and
that disclosure, Brokers have no responsibility with respect to any default or breach
hereof by either Party. The liability (including court costs and attorneys fees), of any
Broker with respect to any breach of duty, error or omission relating to this Agreement
shall not exceed the fee received by such Broker pursuant to this Agreement; provided,
however, that the foregoing limitation on each Brokers liability shall not be applicable
to any gross negligence or willful misconduct of such Broker.
24.3 Confidential information: Buyer and Seller agree to identify to Brokers as
Confidential any communication or information given Brokers that is considered by such
Party to be confidential.
25.
Construction of Agreement. In construing this Agreement, all headings and titles are for
the convenience of the parties only and shall not be considered a part of this Agreement.
Whenever required by the context, the singular shall include the plural and vice versa.
Unless otherwise specifically indicated to the contrary, the word days as used in this
Agreement shall mean and refer to calendar days. This Agreement shall not be construed as if
prepared by one of the parties, but rather according to its fair meaning as a whole, as if
both parties had prepared it.
26. Additional Provisions:
Additional provisions of this offer, if any, are as follows or are attached hereto by an addendum
consisting of paragraphs 1 through 9. (If there are no additional
provisions write NONE.)
Addendum to outside purchase agreements and/or escrow
instuctions Sperry Van Ness Protection Clause
The Previously agreed upon letter of intent dated July 22, 2004 between buyer and seller
shall no longer be enforced and effect and Parties shall depend solely upon the agreed upon Purchase
Agreement. [ILLEGIBLE INITIALS] [ILLEGIBLE INITIALS]
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AIR COMMERCIAL REAL
ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX
CONSEQUENCES OF THIS AGREEMENT OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE
URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS AGREEMENT.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PROPERTY.
SAID INVESTIGATION
SHOULD
INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE
ZONING OF THE PROPERTY, THE INTEGRITY AND CONDITION OF ANY STRUCTURES AND
OPERATING SYSTEMS, AND THE SUITABILITY OF THE PROPERTY FOR
BUYERS INTENDED USE.
WARNING: IF THE PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN
PROVISIONS OF THIS AGREEMENT MAY NEED
TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS
LOCATED.
NOTE:
1. THIS FORM IS NOT FOR USE IN CONNECTION WITH THE SALE OF RESIDENTIAL PROPERTY.
2. IF THE BUYER IS A CORPORATION, IT IS RECOMMENDED THAT THIS AGREEMENT BE SIGNED BY
TWO CORPORATE OFFICERS.
The undersigned Buyer offers and agrees to buy the Property on the terms and
conditions stated and acknowledges receipt of a copy hereof.
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BROKER:
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BUYER: |
Sperry Van Ness
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Skechers USA, Inc. |
MJB Inv Inc by Barbara Kreis
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By: /s/ Peter Mow |
Taylor Inv. Prop. Inc. by Jim Taylor
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Date:
_____________________________________ |
Address:
8910 University Center Lane #620
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Name Printed: Peter Mow |
San Diego CA 92122
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Title: V.P. Real Estate and
Construction |
Telephone: 858 452 9100
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Telephone/Facsimile: 310 318 3100 310 937 1360 |
Facsimile: 858 452 9700 |
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27. Acceptance.
27.1 Seller accepts the foregoing offer to purchase the Property and hereby agrees to
sell the Property to Buyer on the terms and conditions therein
specified.
27.2 Seller acknowledges that Brokers have been retained to locate a Buyer and are the
procuring cause of the purchase and sale of the Property set
forth in this Agreement. In consideration of real estate brokerage service rendered by
Brokers, Seller agrees to pay Brokers a real estate Brokerage Fee in
a sum equal to 2.75% of the Purchase Price divided in such shares as said
Brokers shall direct in writing. This Agreement shall serve as an
irrevocable instruction to Escrow Holder to pay such Brokerage Fee to Brokers out of
the proceeds accruing to the account of Seller at the Closing.
27.3 Seller acknowledges receipt of a copy hereof and authorizes Brokers to deliver a signed
copy to Buyer.
NOTE: A PROPERTY INFORMATION SHEET IS REQUIRED TO BE DELIVERED TO BUYER BY SELLER UNDER THIS AGREEMENT.
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BROKER
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SELLER: |
Sperry Van Ness
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Holt/Hawthorn, a CA United Prtnrshp and |
MJB
Inv Inc by Barbara Kreis
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Victory Partners, a CA Limited Prtnrshp |
Taylor Inv Porperties Inc by Jim Taylor
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By: /s/ Phillip Morgan |
Address:
8910 University Center Ln #620
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Date:
_____________________________________ |
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Name Printed: Phil Morgan |
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Form OF A-4-8/00E |
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San Diego, CA 92122
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Title: |
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Telephone: 858 452 9100
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Telephone/Facsimile: 310 318 3100 310 937 1360 |
Facsmile: 858 452 9700 |
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Federal
No.
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Address: 617 Saxony PL #101 A |
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Telephone/Facsimile: 760 942 1187 |
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Federal ID No. |
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These
forms are often modified to meet changing requirement of law and needs of the industry.
Always write or call to make sure you are utilizing the most current form: AIR Commercial Real Estate
Association, 700 South Flower Street, Suite 600, Los Angeles, CA
90017.(213)687-8777.
©Copyright 2000-By AIR Commercial Real Estate Association. All rights reserved.
No part of these works may be reproduced in any form without permission in writing.
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Page 8 of 8
ADDENDUM TO OUTSIDE PURCHASE AGREEMENTS
AND/OR ESCROW INSTRUCTIONS
SperryVanNess Protection Clause
1) |
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DISCLOSURE OF REAL ESTATE LICENSURE: Phil Morgan is a licensed Agent/Broker
acting as principal in this transaction. |
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DUAL AGENCY: Seller and Buyer understand that Agent does represent both Seller and
Buyer in the sale of the subject
property, and acknowledge that they have authorized and consented to such dual
representation. |
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IMPUTED INTEREST: Seller and Buyer are advised that financing carried back by
Seller, and existing financing, either
assumed, or taken subject to, may be subjected to imputed interest rules at the time of
sale or upon any subsequent transfer. |
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SQUARE FOOTAGE RESPONSIBILITY: During physical inspection period, Buyer to conduct
its own investigation as to actual gross and net square footage of building(s) and land. |
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BROKER DISCLAIMER: Buyer and Seller acknowledge that, except as otherwise expressly
stated herein, Agent has not made any warranty or representation with respect to any of
the following: (a) the legality of the present or any possible future use of the
Property under any Federal, state or local law; (b) pending or possible future action
by any governmental entity or agency which may affect the Property; (c) the physical
condition of the Property, including but not limited to soil conditions, the structural
integrity of the improvements, and the presence or absence of fungi or wood destroying
organisms; (d) the accuracy or completeness of income and expense information and
projections, of square footage figures, and of the texts of leases, options, and other
agreements affecting the Property; (e) the possibility that leases, options or other
documents exist which affect or encumber the Property and which have not been provided
or disclosed by Seller; or (f) the presence or location of any lead-based paint hazard,
or hazardous materials as defined under either applicable Federal or
state law,
underneath the surface of the Property, on or about the Property, including, but not
limited to, asbestos, PCBs, other toxic, hazardous or contaminated substances, and
underground storage tanks, lead-based paint or lead based paint hazards. Regarding (f)
above, Agent further recommends that Buyer seek independent professional counsel to
determine presence and/or location of hazardous materials. Buyer agrees that
investigation and analysis of the foregoing matter is Buyers sole responsibility and
that Buyer shall not hold Agent responsible therefor. |
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LIMITATION OF LIABILITY: Except for Agents negligence, actual fraud, or willful
misconduct, Agents liability for any breach or negligence in its performance of this
Agreement, including claims for breach of fiduciary duty and constructive fraud, shall
be limited to the greater of $10,000 or the amount of compensation actually received
by Agent in any transaction hereunder. |
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Buyers Initials
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[ILLEGIBLE] |
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Sellers Initials
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[ILLEGIBLE] |
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Page 1 of 3
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[ILLEGIBLE]
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[ILLEGIBLE] |
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Seller
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Buyer
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Agent |
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[ILLEGIBLE] |
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Seller
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Buyer
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Agent |
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a) |
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Material defects: To the best of Sellers knowledge, Seller knows of no material
defects of the Property, including but not
limited to, energy conservation and/or safety retrofit(s) required by local ordinance as a
condition of transfer. (Note any
exceptions:
.) |
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b) |
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Compliance with laws: To the best of Sellers knowledge, the Property and all
improvements thereon are in compliance
with all applicable laws, codes, regulations and other similar governmental standards and
requirements and that no
material structural modifications or alterations of the improvements on the Property have
been made without appropriate permits. (Note any exceptions:
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e) |
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Hazardous materials: To the best of Sellers knowledge, the Property is not
contaminated with any hazardous materials,
including, but not limited to asbestos, PCB transformers, other toxic, hazardous or
contaminated substances, and underground storage tanks. (Note any exceptions:
.) |
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f) |
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Lead-based paint hazard. To the best of Sellers knowledge, there is no lead-based
pain: or lead-based paint hazard in, on or about the Property or the soil
thereunder. (Note any exceptions:
.) |
Seller agrees to disclose to Agent and to prospective Buyers any and all information which
Seller has or may acquire regarding the presence and location of any hazardous material on or about
the Property. Buyer is advised and agrees to make their own investigation regarding hazardous
materials during physical inspection period.
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Buyers Initials
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[ILLEGIBLE] |
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Sellers Initials
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[ILLEGIBLE] |
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Page 2 of 3
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AGREED AND ACCEPTED BY: |
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SELLER:
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/s/ Phillip Morgan
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ADDRESS: |
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SELLER:
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ADDRESS: |
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DATE:
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7/27/04
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TELEPHONE:
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( ) |
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BUYER:
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/s/ Peter Mow
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ADDRESS:
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225 S. Sepulveda Blvd. |
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Manhattan Beach, CA 90266 |
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BUYER:
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ADDRESS: |
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DATE:
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7/27/04
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TELEPHONE:
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(310) 318-3100 |
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AGENT ACCEPTS AND AGREES TO THE FOREGOING: |
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AGENT:
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SperryVanNess |
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BY:
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ADDRESS: |
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DATE:
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TELEPHONE:
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( ) |
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THE PARTIES ARE ADVISED TO CONSULT THEIR RESPECTIVE ATTORNEYS WITH REGARD TO THE LEGAL
EFFECT AND VALIDITY OF THIS PURCHASE AGREEMENT.
NO REPRESENTATION IS MADE BY AGENT AS TO THE LEGAL OR TAX EFFECT OR VALIDITY OF ANY
PROVISIONS OF THIS AGREEMENT. A REAL ESTATE BROKER IS QUALIFIED TO GIVE ADVICE ON REAL
ESTATE MATTERS. IF YOU DESIRE LEGAL OR TAX ADVICE, CONSULT YOUR ATTORNEY OR TAX
ADVISOR.
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Buyers Initials
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[ILLEGIBLE] |
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Sellers Initials
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[ILLEGIBLE] |
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Page 3 of 3