1 PURCHASE OPTION AGREEMENT AND JOINT ESCROW INSTRUCTIONS for
9050 Washington Boulevard, Culver City, California
By and Between
CF CC INVESTOR LLC,
a Delaware limited liability company
(“Seller”)
and
CULVER CITY PUBLIC FINANCE AUTHORITY,
a Municipal Joint Powers Authority established within the State of California (“Buyer”)
______________, 2026
i
TABLE OF CONTENTS
Page
1. Defined Terms; Interpretation..............................................................................................1 Defined Terms .........................................................................................................1 Interpretation ............................................................................................................4
2. Agreement to Purchase ........................................................................................................4
3. Purchase Price ......................................................................................................................4 Purchase Price ..........................................................................................................4 Earnest Money .........................................................................................................5 Independent Contract Consideration ........................................................................5
4. Escrow and Closing .............................................................................................................5 Escrow......................................................................................................................6 Closing .....................................................................................................................6 Seller Closing Deliveries .........................................................................................6 Buyer Closing Deliveries .........................................................................................7 (e) IRS Form 1099-S Designation .................................................................................7 Return of Closing Deliveries ...................................................................................7 Deliveries Outside of Escrow ..................................................................................7 Deliveries Upon Close of Escrow ............................................................................8
5. Delivery of Due Diligence Materials ...................................................................................8 Due Diligence ..........................................................................................................8 Termination Right ....................................................................................................9 Return of Reports .....................................................................................................9 Service Contracts ...................................................................................................10 Proprietary Information; Confidentiality ...............................................................10 No Representation or Warranty by Seller ..............................................................11 Buyer’s Responsibilities ........................................................................................11 Buyer’s Agreement to Indemnify ..........................................................................12
6. Seller’s Conditions .............................................................................................................12
7. Buyer’s Conditions ............................................................................................................13
8. Title And Survey ................................................................................................................13 ii
Title Report ............................................................................................................13 New or Updated Survey .........................................................................................14 Amended Commitment ..........................................................................................14
9. Closing Costs and Prorations .............................................................................................14 (a) Closing Costs .........................................................................................................14 Prorations ...............................................................................................................15
10. Representations and Warranties .........................................................................................15 Seller’s Representations and Warranties ...............................................................15 Buyer’s Representations and Warranties ...............................................................18 Disclaimers ............................................................................................................19 Release ...................................................................................................................21 Survival ..................................................................................................................22
11. Specific Rights and Obligations.........................................................................................22 Maintenance of Insurance ......................................................................................22 Conduct of Business ..............................................................................................22 Leasing ...................................................................................................................22 Transfer Taxes ....................................................... Error! Bookmark not defined.
12. Remedies ............................................................................................................................22 SELLER’S REMEDIES ........................................................................................22 Buyer’s Remedies ..................................................................................................23 Limitation on Liability ...........................................................................................24
13. Brokerage ...........................................................................................................................24
14. Possession ..........................................................................................................................24
15. Casualty and Condemnation ..............................................................................................25 Notice of Casualty or Condemnation .....................................................................25 Casualty Losses ......................................................................................................25 Condemnation ........................................................................................................25
16. Consequences of Termination............................................................................................26
17. Miscellaneous ....................................................................................................................26 Survival ..................................................................................................................26 Attorneys’ Fees ......................................................................................................26 Notices ...................................................................................................................26 Parties Bound .........................................................................................................28 iii
Construction ...........................................................................................................28 Counterparts ...........................................................................................................28 Entirety and Amendments......................................................................................28 Invalidity ................................................................................................................28 Assignment ............................................................................................................28 Governing Law ......................................................................................................29 No Liability of Related Parties ..............................................................................29 Waiver of Jury Trial ...............................................................................................29 Time .......................................................................................................................29 Confidentiality .......................................................................................................29 No Recordation ......................................................................................................29 Further Assurances.................................................................................................29 Joint and Several Liability .....................................................................................30 Natural Hazards Disclosure ...................................................................................30 (s) Electronic Signatures .............................................................................................30
SCHEDULE AND EXHIBITS
SCHEDULE 1 LAND DESCRIPTION
EXHIBIT A FORM OF GRANT DEED
EXHIBIT B FORM OF BILL OF SALE
EXHIBIT C [RESERVED]
EXHIBIT D [RESERVED]
EXHIBIT E FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT F [RESERVED]
EXHIBIT G LIST OF SERVICE CONTRACTS
EXHIBIT H FORM OF OWNER’S AFFIDAVIT
1 PURCHASE OPTION AGREEMENT
This PURCHASE OPTION AND JOINT ESCROW INSTRUCTIONS (this “Agreement”), dated as of _________________, 2026 (the “Effective Date”), is between CF CC INVESTOR LLC, a Delaware limited liability company (“Seller”), and, CULVER CITY PUBLIC FINANCE AUTHORITY, a Municipal Joint Powers Authority established within the State of California (“Buyer”).
WHEREAS, Buyer is a municipal joint powers authority established pursuant to Chapter 5 of Division 7 of Title 1 of the California Government Code (Section 6500 et seq.) and is authorized to acquire real property for public purposes; WHEREAS, the Buyer has determined that the acquisition of the Property, as defined below, is a valid public purpose; pursuant to which certain public uses, including but not limited to, economic and community development and related job opportunities, housing (affordable and workforce), tourism and various other public uses as may be determined by the Buyer’s Board of Directors (collectively, the “Public Purpose/Uses”), will be promoted and implemented by Buyer; WHEREAS, in addition to acquiring the Property, Buyer intends to subsequently assist with the development and operation of the Public Purpose/Uses to be conducted on the Property, subject to the applicable governmental approvals and authorization processes; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:
1. Defined Terms; Interpretation.
Defined Terms. Definitions of certain defined terms are provided throughout the text of this Agreement. Defined terms listed in this Section 1 have the meaning assigned to them below.
“Access Agreement” means that certain Exclusive Negotiating Agreement, dated September __, 2026, by and between Seller, as “Owner,” and Buyer, as “CCPFA.” “Buildings” means the Improvements located on the Land situated in Los Angeles County, California and commonly known as 9050 Washington Boulevard, Culver City. “Business Day” means any day, Monday through Friday, that the national banks in Los Angeles, California are open for business. Whenever under the terms of this Agreement the time for performance of any act, covenant or condition or the expiration of any time period falls on a day that is not a Business Day, such expiration time or time for performance shall be extended to the next Business Day.
“Claims” means all causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses (including, without limitation, attorneys’ fees and expenses). “Closing Date” has the meaning given that term in Section 4(b). 2 “Environmental Law” means any law relating to the protection of the environment or, to the extent related to environmental conditions, human health or safety, including the Comprehensive Environmental Response, Compensation and Liability Act, as amended; the Hazardous Materials Transportation Act, as amended; the Resource Conservation and Recovery Act, as amended; the Toxic Substances Control Act, as amended; the Federal Water Pollution Control Act, as amended; and similar laws of the State of California. “Hazardous Materials” means (a) any substance that constitutes hazardous materials, hazardous waste or toxic waste within the meaning of any Environmental Law or that otherwise is subject to regulation under any Environmental Law and (b) regardless of whether it is so classified, any radioactive material, radon, mold, mildew, microorganisms, asbestos, any medical waste, polychlorinated biphenyls (PCBs), lead-based paint, urea formaldehyde foam insulation and petroleum or petroleum derivatives.
“Improvements” means all buildings, structures, fixtures, parking areas, sidewalks, landscaping and other improvements located on the Land. “Information” means all information, documents, plans, specifications, pictures, projections and other written or verbal information and materials that is not in the public domain and that is furnished to Buyer or any of its subsidiaries or affiliates or any of their respective employees, representatives or agents by Seller or its Related Entities or any partner, member, officer, director, trustee, agent, employee or other person acting or purporting to act on behalf of Seller or any of its Related Entities (including any materials delivered in accordance with Section 5(a)), together with any excerpt from or copy of such information that is prepared by Buyer or any of its subsidiaries or affiliates or any of their respective employees, agents or representatives and all written, diskettes or electronically stored or transmitted documentation furnished to or prepared by Buyer or any of its subsidiaries or affiliates or any of their respective employees, agents or representatives based upon or derived from, reflecting or incorporating, in whole or in part, such information.
“Earnest Money” has the meaning set forth in Section 3(b). “Inspection Materials” as defined in Section 5(a).
“Intangibles” means all right, title, interest and estate of Seller, if any, in, to and under (a) all Service Contracts, (b) all transferable permits, licenses, approvals, utility rights, development rights and similar rights related to the Property, if any, granted by governmental authorities, and (c) all right, title and interest of Seller in and to all assignable warranties and guaranties, covering all or any part of the Property (collectively, the “Guaranties”). Intangibles shall not include, and Buyer shall not utilize any internet addresses or websites used in connection with the Property.
The terms of the foregoing sentence shall survive Closing. Notwithstanding any other provision hereof, Seller makes no representation or warranty relating to the assignability of any of the Service Contracts, Guaranties or other Intangibles and shall not be required to obtain any consents relating to any such assignment.
3 “Land” means the tract or tracts of land described in Schedule 1 attached hereto, including all riparian rights, privileges, and easements in any way pertaining thereto, all right, title and interest in and to any adjoining sidewalk and in and to any adjoining street or alley. “Leases” collectively means the leases or other agreements permitting occupancy or use of any space in the Improvements or on the Land.
“New Contracts” means any contract executed by Seller after the Effective Date that is (i) terminable on not more than thirty (30) days’ notice at no cost to Buyer, (ii) related to the operation, maintenance or management of the Property, and (iii) entered into by Seller with the advanced written consent of Buyer, which consent shall be at the sole discretion of the Executive Director of the Buyer.
“Permitted Exceptions” means (a) preprinted standard exceptions on the Title Policy, (b) exceptions approved or deemed approved by Buyer pursuant to this Agreement, (c) any matters disclosed by the Survey, (d) property taxes and assessments which are not delinquent as of Closing, and (e) matters created by Buyer or any of its affiliates or any of their respective representatives, consultants or contractors.
“Person” means an individual, corporation, association, joint venture, partnership, limited liability company, association, trust or other entity or organization, including a governmental authority.
“Personalty” means all fixtures, equipment, machinery, building materials, supplies, inventory and other tangible property owned by Seller, used in connection with the ownership, maintenance, use, leasing, service or operation of the Land or Improvements, and located on the Land or to be located on the Land on the Closing Date, but specifically excluding (i) any personal property which is owned by Seller’s property manager or any party to a Service Contract, and (ii) any computer software which either is licensed to Seller or Seller’s property manager, or which Seller deems proprietary.
“Property” means, collectively, the Land, the Improvements, the Intangibles, and the Personalty.
“Purchase Price” has the meaning given that term in Section 3(a). “Related Entities” or a “Related Entity” means, with respect to any Person, all direct and indirect affiliates and subsidiaries thereof, all entities related thereto and all partners, shareholders, members, directors, officers, trustees, managers, authorized agents and employees thereof. “Rents” means all rents, revenues, income, profits and receipts due under any leases or otherwise receivable by the owner of the Property for use or occupancy of any portion of the Property.
“Representatives” mean Buyer’s current and prospective lenders, officers, directors, managers, prospective tenants, consultants subsidiaries or affiliates or any of their respective employees, current and prospective investors, representatives or agents. 4 “Seller Closing Documents” has the meaning given in Section 4(c). “Seller’s Parties” means Seller’s directors, officers, shareholders, employees, agents, representatives, affiliates, contractors, subcontractors, and consultants. “Service Contracts” means the contracts to which Seller or its property manager is a party relating to the operation, maintenance or management of the Property as of the Effective Date, including, any New Contracts, but excluding the Property Management Agreement1. “Title Commitment” has the meaning set forth in Section 8(a). “Title Company” means Sam Stockton at Chicago Title NCS California, 601 S. Figueroa Street, Suite 2150, Los Angeles, CA 90010.
Interpretation. When the context so requires in this Agreement, words of one gender include one or more other genders, singular words include the plural, and plural words include the singular. Use of the words “include” and “including” are intended as an introduction to illustrative matters and not as a limitation. When either party is granted permission to exercise its discretion in this Agreement, there shall be no requirement, unless the Agreement expressly states to the contrary, to exercise such discretion reasonably or in accordance with commercial standards and instead such discretion may be exercised in the sole, absolute and unilateral discretion of such party. References in this Agreement to “Sections” are to the numbered subdivisions of this Agreement, unless another document is specifically referenced. The word “party” when used in this Agreement means either Buyer or Seller unless another meaning is required by the context. The word “person” includes individuals, entities and governmental authorities. The word “governmental authority” is intended to be construed broadly and includes federal, state and local governmental entities, commissions, councils, instrumentalities, bodies, boards, departments and officers and individuals acting in any official capacity. When used in this Agreement, the word “laws” is intended to be construed broadly and includes all codes, statutes, rules, regulations, ordinances, pronouncements, case law, requirements, orders, directives, decisions, decrees, judgments and formal or informal guidance or interpretations of any court or governmental authority having jurisdiction over the Property and construction and operation of the Improvements thereon (including but not limited to all Environmental Laws, the Americans with Disabilities Act and any local Board of Fire Underwriters).
2. Agreement to Purchase.
Buyer agrees to purchase the Property from Seller, and Seller agrees to sell the Property to Buyer, for the Public Purpose/Uses and in accordance with the terms provided in this Agreement.
3. Purchase Price.
Purchase Price. The purchase price for the Property shall be One Hundred Three Million Dollars and No/100 Dollars ($103,000,000.00) (the “Purchase Price”) and Buyer shall pay the balance of the Purchase Price, and such other funds as may be necessary in accordance with the terms hereof to pay Buyer's share of closing costs and charges set forth in Section 9 below. 1 Undefined.
5 Buyer's share of prorations set forth on Buyer’s closing statement delivered pursuant to Section 4(d)(iv)) shall also be due and payable by Buyer to Seller in immediately available funds at Closing (as defined below).
Earnest Money. Within seven (7) business days of execution of this Agreement, Buyer will deposit Three Hundred Seventy-Five Thousand Dollars and No/100 Dollars ($375,000.00) as earnest money (the “Earnest Money”) with the Title Company. Except as otherwise provided in the last paragraph of Section 7, Section 12(b), Section 15(b) or Section 15(c), the Earnest Money shall be non-refundable to Buyer. The Earnest Money shall be applied as a credit to the Purchase Price at Closing. In the event of a termination of this Agreement by either Seller or Buyer for any reason, the Earnest Money shall be delivered to the party hereto entitled to same pursuant to the terms hereof on or before the fifth (5th) Business Day following receipt by the Title Company and the non-terminating party of written notice of such termination from the terminating party, unless the other party hereto notifies the Title Company that it disputes the right of the other party to receive the Earnest Money prior to the end of the fourth (4th) Business Day following receipt of termination. In the event of such a dispute, the Title Company may interplead the Earnest Money into a court of competent jurisdiction in the county in which the Earnest Money has been deposited. All reasonable attorneys’ fees and costs and the Title Company’s costs and expenses incurred in connection with such interpleader shall be assessed against the party that is not awarded the Earnest Money, or if the Earnest Money is distributed in part to both parties, then in the inverse proportion of such distribution. In the event Buyer fails to timely deliver the Earnest Money as provided in this Section, Seller may elect, in its sole and absolute discretion, and without any instruction from the Buyer, to terminate this Agreement and cancel any escrow opened in connection therewith.
Independent Contract Consideration. Buyer agrees that it shall expend significant time and material sums of money in connection with negotiating and executing this Agreement, conducting its due diligence investigations, and preparing for the Closing, all in reliance on Seller’s obligations under this Agreement. Further, Seller acknowledges that Buyer would not have entered into this Agreement without having the opportunity to perform such investigations and without having the right to terminate this Agreement in accordance with the provisions of Section Error! Reference source not found.2 of this Agreement. Accordingly, separate consideration exists to support Seller’s obligations hereunder notwithstanding Buyer’s right to terminate this Agreement in accordance with the provisions of Section Error! Reference source not found. of this Agreement. Without limitation upon the foregoing, $100.00 of the Earnest Money (the “Independent Consideration”) shall in all events be deemed earned by Seller upon execution and delivery of this Agreement by Seller and Buyer and shall be immediately released by the Title Company to Seller upon the Title Company’s receipt of the initial Earnest Money. The Independent Consideration represents adequate, bargained for consideration for Seller’s execution and delivery of this Agreement and Buyer’s right to inspect the Property pursuant to the terms hereof. The Independent Consideration is in addition to and independent of any other consideration or payment provided for herein and is nonrefundable in all events.
4. Escrow and Closing.
2 Seller: Please fix throughout.
6 Escrow. Seller and Buyer shall promptly deliver a fully executed copy of this Agreement to the Title Company. The escrow instructions set forth in this Agreement, as they may be amended from time to time by the parties, shall collectively be referred to as the “Escrow Instructions.”
Closing. The closing of the transactions contemplated hereby (the “Closing”) shall occur at the offices of the Title Company on or before February 28, 2027 (the “Closing Date”), as may be extended by Seller and Buyer as provided hereunder, or such earlier date as the parties agree to in writing. Buyer shall be entitled to two (2) extensions of the Closing Date of thirty (30) days each; provided, however, that to exercise each extension, Buyer must pay directly to Seller (and not through Escrow) the sum of One Hundred Thousand and No/100 Dollars ($100,000.00) (each, an “Extension Fee”) for each extension request on or before the thenapplicable Closing Date. Each Extension Fee shall be non-refundable upon payment to Seller, and shall not be applied towards the Purchase Price at Closing.
Seller Closing Deliveries. As of or prior to the Closing Date, Seller will deposit with the Title Company the following items (collectively, the “Seller Closing Documents”):
(i) a grant deed (the “Deed”), in the form attached to this Agreement as Exhibit A, executed and acknowledged by Seller, conveying to Buyer the Land and the Improvements, which Deed shall be recorded by the Title Company in the official records of Los Angeles County (the “Official Records”), on the Closing Date; (ii) a bill of sale (“Bill of Sale”), in the form attached to this Agreement as Exhibit B, executed by Seller;
(iii) [Intentionally omitted.];
(iv) [Intentionally omitted.];
(v) an Assignment and Assumption Agreement with respect to any Buyer-approved Assigned Service Contracts and other matters, in the form attached to this Agreement as Exhibit E (the “Assignment and Assumption Agreement”), executed by Seller; (vi) a certificate of Seller (“Seller’s Update Certificate”), dated as of the Closing, stating that the representations and warranties of Seller contained in Section 10(a) of this Agreement are true and correct in all material respects as of the Closing. In no event shall Seller be liable to Buyer for, or be deemed to be in default hereunder by reason of, any breach of a representation or warranty which results from any change that (i) occurs between the Effective Date and the Closing and (ii) is permitted under the terms of this Agreement or is beyond the reasonable control of Seller to prevent; provided, however, that the occurrence of a change which is not permitted hereunder or is beyond the reasonable control of Seller to prevent shall, if the same materially impairs the value, use or occupancy of the Property, constitute the non-fulfillment of the condition set forth in Section Error! Reference source not found.. If, despite changes or other matters described in such certificate, the Closing occurs, Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all statements made in Seller’s Update Certificate;
7 (vii) An Owner’s Affidavit in the form attached hereto as Exhibit H. (viii) such documents as the Title Company may reasonably require to establish the authority of Seller to complete the transfer of the Property contemplated by this Agreement;
(ix) an affidavit, dated as of the Closing Date and executed by an appropriate representative of Seller under penalty of perjury, stating that Seller is not a person from whom withholding is required under Section 1445 of the Internal Revenue Code of 1986, as amended (as well as any California state law equivalent form); (x) a closing statement; and
(xi) any and all other items contemplated by the terms of this Agreement or reasonably required by the Title Company.
Buyer Closing Deliveries. Buyer will deposit with the Title Company (i) the Purchase Price, net of credit for the Earnest Money and adjustments for prorations and other items charged or credited to Buyer in accordance with this Agreement on or before 11:00 am Pacific Time on the Closing Date, and (ii) at least one (1) Business Day prior to the Closing Date, the following documents (collectively, the “Buyer Closing Documents”):
(i) such documents as the Title Company may reasonably require to complete the transfer of the Property contemplated by this Agreement to Buyer; (ii) executed counterpart of the Assignment and Assumption Agreement;
(iii) a duly executed Preliminary Change in Ownership Report, in a form approved by the Title Company; and
(iv) the closing statement.
(e) IRS Form 1099-S Designation. In order to comply with information reporting requirements of Section 6045(e) of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder, the parties agree (i) to execute an IRS Form 1099-S Designation Agreement to designate the Title Company (the “Designee”) as the party who shall be responsible for reporting the contemplated sale of the Property to the Internal Revenue Service (the “IRS”) on IRS Form 1099-S; and (ii) to provide the Designee with the information necessary to complete Form 1099-S.
Return of Closing Deliveries. Documents and funds deposited in escrow under Section 4(c) or 4(d) will be returned to the Person who deposited them if Seller or Buyer terminates its obligation to complete the transfer of the Property contemplated by this Agreement under circumstances allowed by this Agreement.
Deliveries Outside of Escrow. Promptly following the Closing (if not previously delivered to Buyer or located at the Property), Seller will deliver to Buyer, outside of 8 the closing escrow, originals or, if originals are not in Seller’s possession, copies of (i) any Assigned Service Contracts and files related thereto in the possession of Seller, and (ii) all keys to all locks on the Property in the possession of Seller.
Deliveries Upon Close of Escrow. Upon the Closing, the Title Company shall promptly undertake all of the following: Disburse from funds deposited by Buyer with the Title Company towards payment of all items and costs (including, without limitation, the Purchase Price) chargeable to the account of Buyer pursuant hereto in payment of such items and costs; (ii) Issue the Title Policy to Buyer;
(iii) Deduct all items chargeable to the account of Seller pursuant to Section 9. If, as the result of the net prorations and credits pursuant to Section 9, amounts are to be charged to the account of Seller, deduct the total amount of such charges from the Purchase Price (unless Seller elects to deposit additional funds for such items in Escrow); and if amounts are to be credited to the account of Seller, disburse such amounts to Seller, or in accordance with Seller’s instructions, at the Closing;
(iv) Disburse the Purchase Price (or balance thereof) to Seller, or as otherwise directed by Seller, promptly upon the Closing, in accordance with Seller’s wire transfer instructions;
(v) Cause the Deed, and any other documents which the parties hereto may direct, to be recorded in the Official Records in the order directed by the parties; (vi) Deliver to Seller counterpart originals of the Assignment and Assumption Agreement, a copy of the Bill of Sale, a conformed recorded copy of the recorded Deed, and copies of all other Seller Closing Documents not otherwise listed here; and (vii) Deliver to Buyer counterpart originals of the Assignment and Assumption Agreement, Bill of Sale, a conformed recorded copy of the Deed, the Title Policy, and copies of all other Seller Closing Documents not otherwise listed here.
5. Delivery of Due Diligence Materials.
Due Diligence. Prior to the Closing, Seller agrees to allow Buyer, its authorized agents or representatives, at Buyer’s expense, to inspect at the Property and make copies of any other documents and property records pertaining to the Property, but only if and to the extent such documents and property records are in Seller’s possession or Seller’s property manager’s possession. In connection with Buyer’s inspection of the Property, Seller has previously delivered, or will deliver or make available to Buyer, all documents located in the following electronic data room [NTD: INSERT;________________] (such documents are collectively referred to as the “Inspection Materials”). Seller makes no representations or warranties of any kind whatsoever to Buyer as to the accuracy or completeness of the content of the Inspection Materials or any other information delivered to or made available to Buyer pursuant to this Agreement (except as expressly stated herein), and Seller shall not have any liability or responsibility to Buyer with respect to the accuracy or completeness of any of the Inspection Materials or other information or based upon or arising out of any use Buyer may make of the 9 Inspection Materials or other information, except to the extent included in any representation or warranty expressly given. In addition, commencing on the Effective Date and continuing until Closing (or earlier termination of this Agreement), Buyer shall have reasonable access to the Land at all reasonable times during normal business hours for the purpose of making copies of documents relating to the Property and conducting physical inspections and tests, including surveys and architectural, engineering, geotechnical and environmental inspections and tests, provided that (i) Buyer must give Seller 48 hours’ prior telephone or written notice of any such inspection or test, and provided, however, invasive Phase II testing shall only be conducted if recommended by an initial Phase I and with Owner’s written consent, not to be unreasonably withheld, conditioned, or delayed, (ii) prior to performing any inspection or test, Buyer must deliver a certificate of insurance to Seller evidencing that Buyer and its contractors, agents and representatives have in place comprehensive general liability insurance with coverage of One Million and No/100 Dollars ($1,000,000.00) combined single limit for personal injury and property damage per occurrence with Two Million and No/100 Dollars ($2,000,000.00) general aggregate on a per location basis and workers compensation insurance with statutory limits and Five Hundred Thousand and No/100 Dollars ($500,000.00) employers liability (Seller shall be included as additional insured with a waiver of subrogation under both policies), which insurance shall cover Buyer’s activities on the Land and any accident arising in connection with the presence of Buyer, its contractors, agents and representatives on the Land, and which insurance shall name Seller as an additional insured thereunder and (iii) all such tests shall be conducted by Buyer in compliance with Buyer’s responsibilities set forth in this Section 5. Buyer shall bear the cost of all such inspections or tests. Subject to the provisions of this Section 5, Buyer or Buyer’s representatives may meet with any governmental authority for any good faith, reasonable purpose in connection with the transaction contemplated by this Agreement3.
Termination Right. Notwithstanding anything to the contrary in this Agreement, Buyer may terminate this Agreement for any reason or no reason whatsoever by giving written notice of termination to Seller and the Title Company on or before the Closing; however, Buyer’s termination hereunder shall in no way affect the non-refundability or refundability, as applicable, of the Earnest Money as provided in this Agreement. Except as otherwise provided in this Agreement, the Earnest Money is deemed earned by Seller when deposited into Escrow, is consideration for the exclusivity granted to Buyer under this Agreement and the Access Agreement, and treated as liquidated damages as further provided below.
Return of Reports. If this Agreement terminates for any reason, Buyer shall promptly return and/or deliver to Seller all Information and copies thereof. Additionally, if this Agreement terminates for any reason other than Seller’s default, then upon request by Seller, Buyer shall deliver to Seller copies of all third-party reports, surveys, investigations and studies relating to the Property (collectively, the “Reports” and, individually, a “Report”) prepared for Buyer in connection with its due diligence review of the Property. The Reports shall be delivered to Seller without any representation or warranty as to the completeness or accuracy of the Reports or any other matter relating thereto. Buyer’s obligation to deliver the Information and the Reports to Seller shall survive the termination of this Agreement. 3 Given the nature of the Buyer, this isn’t possible.
10 Service Contracts. At least forty-five (45) days prior to the Closing, Buyer will advise Seller in writing of which Service Contracts (as identified and listed in Exhibit ___, attached hereto) it will assume and for which Service Contracts Buyer requests that Seller deliver a written termination notice at or prior to Closing. Buyer shall be deemed to have elected to assume all Service Contracts if Buyer fails to specify in writing to Seller which, if any, Service Contracts Buyer wishes to assume and/or terminate. Buyer must assume the obligations arising from and after the Closing Date under the New Contracts and those Service Contracts that Buyer has agreed to assume, or that Buyer is obligated to assume pursuant to this Section 5(d).
Proprietary Information; Confidentiality. Buyer acknowledges that the Information is proprietary and confidential and will be delivered to Buyer or made available for Buyer’s review solely to assist Buyer in determining the feasibility of purchasing the Property.
Buyer shall not use the Information for any purpose other than as set forth in the preceding sentence. Buyer shall not disclose the Information to any person other than its Representatives who are responsible for determining the feasibility of Buyer’s acquisition of the Property or financing thereof or brokers, attorneys, title and escrow companies and others as may be involved in the negotiation and consummation of this transaction and who have agreed to or are required to preserve the confidentiality of such information as required hereby (collectively, “Permitted Outside Parties”). Buyer shall not divulge the Information except in strict accordance with the confidentiality standards set forth in this Section 5(e). In permitting Buyer to review the Information, Seller has not waived any privilege or claim of confidentiality with respect thereto, and no third-party benefits or relationships of any kind, either express or implied, have been offered, intended or created. Notwithstanding any contrary provision of this Agreement, Buyer is permitted to disclose any Information otherwise deemed confidential under this paragraph (i) that was or becomes generally available to the public or otherwise available from a third party (other than as a result of the wrongful disclosure by Buyer or a party that received such confidential Information from Buyer), (ii) that was in the possession of or known to Buyer or the Permitted Outside Parties on a non-confidential basis prior to its disclosure by Seller, (iii) that is disclosed to Buyer or the Permitted Outside Parties on a non-confidential basis from a source other than Seller or Sellers’s Parties, which source Buyer believes in good faith is entitled to make such disclosure, (iv) that is independently developed by Buyer or the Permitted Outside Parties without reference to or use of such confidential Information of Seller, (v) in connection with a court order or as otherwise required by applicable law or legal process, (vi) in connection with any litigation that may arise between the parties in connection with the transactions contemplated by this Agreement, or (vii) after the Closing, subject to restrictions reasonably necessary to comply with federal or state securities laws, Buyer or the Permitted Outside Parties may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including opinions or other tax analyses) that are provided relating to such tax treatment and tax structure.
Seller acknowledges that certain financial, business, and proprietary information relating to Buyer and its affiliates (collectively, “Buyer Confidential Information”) may be disclosed or made available to Seller in connection with the transaction contemplated by this Agreement. Seller shall not use the Buyer Confidential Information for any purpose other than evaluating and consummating the transaction contemplated hereby. Seller shall not disclose the Buyer Confidential Information to any person other than its representatives, agents, attorneys, accountants, lenders, brokers, title and escrow companies, and others as may be involved in the 11 negotiation and consummation of this transaction who have agreed to or are required to preserve the confidentiality of such information as required hereby (collectively, “Seller’s Permitted Outside Parties”). Seller shall not disclose the Buyer Confidential Information except in strict accordance with the confidentiality standards set forth in this Section 5(e). In permitting Seller to review the Buyer Confidential Information, Buyer has not waived any privilege or claim of confidentiality with respect thereto, and no third-party benefits or relationships of any kind, either express or implied, have been offered, intended or created.
Notwithstanding any contrary provision of this Agreement, Seller is permitted to disclose any Buyer Confidential Information otherwise deemed confidential under this paragraph (i) that was or becomes generally available to the public or otherwise available from a third party (other than as a result of the wrongful disclosure by Seller or a party that received such Buyer Confidential Information from Seller), (ii) that was in the possession of or known to Seller or Seller’s Permitted Outside Parties on a non-confidential basis prior to its disclosure by Buyer, (iii) that is disclosed to Seller or Seller’s Permitted Outside Parties on a non-confidential basis from a source other than Buyer or Buyer’s agents, which source Seller believes in good faith is entitled to make such disclosure, (iv) that is independently developed by Seller or Seller’s Permitted Outside Parties without reference to or use of such Buyer Confidential Information, (v) in connection with a court order or as otherwise required by applicable law or legal process, (vi) in connection with any litigation that may arise between the parties in connection with the transactions contemplated by this Agreement, or (vii) after the Closing, subject to restrictions reasonably necessary to comply with federal or state securities laws, Seller or Seller’s Permitted Outside Parties may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including opinions or other tax analyses) that are provided relating to such tax treatment and tax structure.
No Representation or Warranty by Seller. Buyer acknowledges that, except as expressly set forth in this Agreement or the Seller Closing Documents, Seller has not made nor makes any warranty or representation regarding the truth, accuracy or completeness of the Information or the source(s) thereof. Buyer further acknowledges that some, if not all, of the Information was prepared by third parties other than Seller. Seller expressly disclaims any and all liability for representations or warranties, express or implied, statements of fact and other matters contained in such information, or for omissions from the information, or in any other written or oral communications transmitted or made available to Buyer, except as expressly set forth in this Agreement or the Seller Closing Documents. Buyer shall rely solely upon its own investigation with respect to the Property, concerning all matters related to the design, financing, development, entitlement, construction, maintenance, management, or performance of the Property, including, without limitation, the Property’s physical, environmental or economic condition, compliance or lack of compliance with any ordinance, order, permit or regulation or any other attribute or matter relating thereto. Seller has not undertaken any independent investigation as to the truth, accuracy or completeness of the Information and is providing the Information or making the same available for Buyer’s review solely as an accommodation to Buyer.
Buyer’s Responsibilities. In conducting any inspections, investigations or tests of the Property and/or the Information, Buyer and its agents and representatives shall:
(i) reserved; (ii) not unreasonably interfere with the operation and maintenance of the Property; (iii) not damage any part of the Property or any personal property owned or held by any tenant or 12 any third party; (iv) not injure or otherwise cause bodily harm to Seller, Property Manager, or their respective agents, guests, invitees, contractors and employees or any tenants or their guests or invitees; (v) comply with all applicable laws; (vi) promptly pay when due the costs of all tests, investigations and examinations done with regard to the Property, conducted by Buyer; (vii) not permit any liens to attach to the Property by reason of the exercise of Buyer’s rights hereunder; (viii) repair any damage to the Property resulting directly or indirectly from any such inspection or tests caused by Buyer (or its agents and representatives); and (ix) not reveal or disclose prior to Closing any Information to anyone other than the Permitted Outside Parties, in accordance with the confidentiality standards set forth in Section 5(e), or except as may be otherwise required by law.
Buyer’s Agreement to Indemnify. To the extent allowed by law, Buyer indemnifies and holds Seller harmless from and against any and all liens and Claims arising out of Buyer’s inspections or tests of the Property or any violation of the provisions of Section 5(a), Section 5(e) or Section 5(g); provided, however, the indemnity shall not apply to Claims arising from (i) any matters merely discovered by Buyer (e.g., latent environmental contamination) in the course of such inspections or tests or entry on the Property; (ii) any Losses to the extent attributable to the negligent action or inaction of Seller; (iii) consequential, special or punitive damages or any other sums in excess of Seller’s actual compensatory damages; (iv) a diminution in value of the Property caused solely by the disclosure to Buyer, Seller or Permitted Outside Parties of Information regarding the discovery of any pre-existing Hazardous Materials at the Property, (v) any release on or about the Property of any pre-existing Hazardous Materials at the Property, except and to the extent such release was contributed to or exacerbated by the negligence of Buyer or its Permitted Outside Parties, or (vi) any conditions on or about the Property in existence as of the Effective Date, except and to the extent contributed to or exacerbated by the negligence of Buyer or its Permitted Outside Parties. Buyer’s obligations under this Section 5(h) shall survive the termination of this Agreement and shall survive the Closing.
6. Seller’s Conditions. Seller’s obligation to sell the Property is conditioned on satisfaction or waiver in writing by Seller of each of the following conditions precedent:
all representations of Buyer contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and on and as of the Closing (as if re-made on and as of the Closing);
Buyer shall have timely (i) executed, acknowledged (where required) and delivered to the Title Company all documents, instruments and agreements described in Section 4(d), and (ii) delivered to the Title Company, in immediately available funds and lawful monies of the United States of America, all funds required by Section 4(d) including, but not limited to, the balance of the Purchase Price in accordance with Section 4(d); and as of the Closing, Buyer shall have materially performed all of its other obligations hereunder.
If any of the conditions in this Section 6 are not satisfied as of the Closing Date, Seller may elect to terminate this Agreement, in which case the Earnest Money shall be immediately disbursed by the Title Company to Seller pursuant to the terms and conditions of Section 12(a). 13 7. Buyer’s Conditions. Buyer’s obligation to purchase the Property is conditioned on satisfaction or waiver in writing by Buyer of the following conditions:
that the Buyer shall have approved the acquisition of the Property for the Public Purpose/Uses and authorized the execution and delivery of this Agreement and all documents and instruments contemplated herein, in its sole and absolute discretion, at a duly noticed public meeting of Buyer;
receipt by Buyer of an MAI appraisal establishing the fair market value of the Property as not less than the Purchase Price;
all representations of Seller contained in this Agreement are true and correct in all material respects at the time of the Closing;
the Title Company shall have issued at the Closing, or be unconditionally and irrevocably committed at the Closing to issue, to Buyer, an ALTA owner’s title policy, on the Title Company’s standard form issued in the State of California, showing title to the Property vested in Buyer, subject only to the Permitted Exceptions (the “Title Policy”); and as of the Closing, Seller shall have materially performed all of its obligations hereunder.
If the conditions in this Section 7 are not satisfied as of the Closing Date and are not waived by Buyer, Seller may, by written notice to Buyer on or prior to the Closing Date, extend the Closing Date for up to fifteen (15) calendar days to allow for correction of the matter and satisfaction of the condition(s) precedent to Buyer’s Closing obligations. If the conditions in this Section 7 are not satisfied as of the Closing Date (as extended by Seller, if applicable), Buyer may elect to terminate this Agreement and receive a refund of the Earnest Money or waive the condition and proceed to Closing.
8. Title And Survey.
Title Report. Prior to the Effective Date, the Title Company has delivered to Buyer (i) a current commitment for title insurance for a standard ALTA owner’s policy on the Title Company’s most current form issued by the Title Company in the State of California (the “Title Commitment”), and (ii) copies of all documents of record referred to in the Title Commitment as exceptions to title to the Land (collectively, the “Title Documents”). Buyer shall have ten (10) Business Days after the receipt of the Title Commitment, the Title Documents and the Survey to deliver to Seller a written notice (the “Title Objection Notice”) identifying any exceptions to title or matters disclosed by the Survey that are unacceptable to Buyer (collectively, the “Title Objections”). Any exception to title or matter disclosed by the Title Commitment or the Survey that Buyer does not object to in a Title Objection Notice delivered within such period shall be deemed a Permitted Exception. Within five (5) Business Days after receipt of the Title Objection Notice, Seller shall notify Buyer in writing (the “Seller’s Title Notice”) of Seller’s election either to cure or not to cure each Title Objection. Seller’s failure to deliver the Seller’s Title Notice shall be deemed an election by Seller not to cure each Title Objection. If Seller elects (or is deemed to have elected) not to cure any Title Objection, Buyer shall elect, by written notice to Seller, to: (i) waive such Title Objections and proceed to Closing, in which case the waived Title 14 Objections shall become Permitted Exceptions; (ii) terminate this Agreement, in which event neither party shall have any further obligations hereunder except for those obligations that expressly survive termination; or (iii) accept a credit against the Purchase Price in an amount reasonably agreed upon by Buyer and Seller to account for the cost of curing such Title Objections.
If Seller elects to cure any Title Objection, Seller shall have until the earlier of: (A) fifteen (15) Business Days after the date of the Seller’s Title Notice; or (B) the Closing Date to effectuate such cure. Notwithstanding the foregoing, any monetary lien or encumbrance on the Property shall not be considered a Permitted Exception and Seller shall cause it to be removed from title prior to Closing, whether or not Buyer formally objects to such lien or encumbrance.
New or Updated Survey. Prior to the Effective Date, Seller has delivered to Buyer Seller’s latest survey of the Property (the “Survey”). Buyer may elect to obtain a new or updated survey (the “Updated Survey”) at its sole cost and expense; provided, however, that in no event shall the issuance and/or receipt of such Updated Survey be a condition precedent to, or delay, the Closing. If the Updated Survey discloses any matters not shown on the original Survey, Buyer may include such matters in the Title Objection Notice if the ten (10) Business Day objection period under Section 8(a) has not expired, or may treat such matters as New Title Defects under Section 8(c).
Amended Commitment. If at any time prior to Closing, (i) the Title Company delivers to Buyer an amended or updated Title Commitment disclosing one or more new title exceptions not reflected in the initial Title Commitment or (ii) the Updated Survey discloses one or more matters not shown on the original Survey, in either case not caused by or consented to by Buyer (collectively, and individually, a “New Title Defect”), then within ten (10) Business Days after receipt by Buyer of the applicable amended or updated Title Commitment or Updated Survey, Buyer shall deliver to Seller a Title Objection Notice identifying any such New Title Defect as a Title Objection. The New Title Defect shall be subject to the same objection, cure and remedy process set forth in Section 8(a). Accordingly, any New Title Defect not timely identified in Buyer’s Title Objection Notice shall be deemed a Permitted Exception. Seller shall have five (5) Business Days after receipt of Buyer’s Title Objection Notice to deliver Seller’s Title Notice stating whether Seller elects to cure or not to cure each such Title Objection, and Seller’s failure to timely respond shall be deemed an election not to cure. If Seller elects, or is deemed to have elected, not to cure any such Title Objection, Buyer shall elect, by written notice to Seller, either (A) to waive such Title Objections and proceed to the Closing, in which case the waived Title Objections shall become Permitted Exceptions; (B) to terminate this Agreement, in which event neither party shall have any further obligations hereunder except for those obligations that expressly survive termination; or (C) to accept a credit against the Purchase Price in an amount reasonably agreed upon by Buyer and Seller to account for the cost of curing such Title Objections.
If Seller elects to cure any such Title Objection, Seller shall have until the earlier of (A) fifteen (15) Business Days after the date of the Seller’s Title Notice or (B) the Closing Date to effectuate such cure.
9. Closing Costs and Prorations.
(a) Closing Costs. Buyer will pay (i) all recording costs, including the recording cost for the recordation of the Deed, (ii) the cost of any Updated Survey or any other updated or updates to the Survey, if Buyer elects to obtain one, (iii) all financing costs, including 15 documentary stamps or tax on any note or mortgage procured by Buyer, (iv) all costs associated with any inspections, (v) one-half of any escrow fee charged by the Title Company, (vi) all premiums for any costs of the Title Policy attributable to ALTA extended coverage and any endorsements desired by Buyer and the cost of any lender policies and endorsements thereto, and (vii) any inspection fee charged by the Title Company. Buyer and Seller each will pay its own attorneys’ fees, subject to Section 17(b). Seller will pay for (i) the premium for standard coverage owner’s policy of title insurance, (ii) all state, county and local transfer taxes (subject to the provisions of Section 11(d) below), and (iii) one-half (1/2) of any escrow fee charged by the Title Company. Other costs will be paid by Seller or Buyer, as applicable, as specified by other provisions of this Agreement or, if no provision is made in this Agreement, in accordance with local custom in Los Angeles County, California.
Prorations. Seller and Buyer will prorate collected Rents and all expenses of operation of the Property, if any (including utilities, personal property taxes and real property taxes and property assessments taking into account maximum discounts), except for insurance premiums, as of 11:59 PM (Pacific Time) on the day before the Closing. Amounts allocable to the Closing Date will be for the account of Buyer. If any expenses cannot be finally determined as of the Closing Date, such expense will be prorated on the best available information or, with respect to real property taxes, on the latest available tax bill from Los Angeles County tax assessor.
Adjustments to the prorations (other than the tax proration) will be made from time to time but not later than June 1, 2027 to take into account final information as to expenses estimated as of the Closing Date or to adjust Rents or expenses that were not included in the prorations done at the Closing, and Buyer or Seller, as applicable, will pay the other, promptly on demand, such amounts as may be appropriate based on such adjustments. Any reproration of expenses (other than taxes) must be completed not later than July 1, 2027, and, subject to Section 9(c), and except for real property taxes and assessments, neither Buyer nor Seller will be entitled to request a payment on account of reprorations after such date. The determination of real property taxes on the Closing Date under this Section 9(b) shall be subject to a post-Closing adjustment or “true-up” once the actual tax assessments are known. Seller shall be solely entitled, not subject to any prorations, to any and all proceeds received from Seller’s ongoing tax protest for tax years 2026 and prior (provided, however, the Closing does not occur in 2026).
10. Representations and Warranties.
Seller’s Representations and Warranties. In order to induce Buyer to enter into this Agreement and to complete the transfer of the Property contemplated by this Agreement, Seller represents and warrants to Buyer that, as of the date of this Agreement:
(i) Seller has duly been organized and is validly existing under the laws of the State of Delaware. Seller has the power to enter into this Agreement, to perform its obligations under this Agreement and to complete the transfer of the Property contemplated by this Agreement. Seller has taken all action necessary to authorize the execution and delivery of this Agreement, the performance by Seller of its obligations under this Agreement and the completion of the transfer of the Property contemplated by this Agreement. 16 (ii) This Agreement has been duly executed and delivered by Seller and constitutes a valid, binding and enforceable obligation of Seller, subject to bankruptcy and other debtor relief laws and principles of equity.
(iii) The execution and delivery of this Agreement by Seller and the performance by Seller of its obligations under this Agreement and the completion of the transfer of the Property contemplated by this Agreement will not result in (1) a material breach of or a default under, any contract, agreement, commitment or other document or instrument to which Seller is party or (2) a material violation of any law, ordinance, regulation or rule of any governmental authority applicable to Seller or any judgment, order or decree of any court or governmental authority that is binding on Seller.
(iv) Seller has no employees.
(v) No assignment for the benefit of creditors, receivership, conservatorship or voluntary or involuntary proceedings in bankruptcy or pursuant to any other debtor relief laws has been filed by or against Seller or the Property or is pending by or against Seller or the Property or, to the best of Seller’s actual knowledge, has been threatened against Seller or the Property.
(vi) To its knowledge, Seller and its subsidiaries have conducted and will conduct their businesses in compliance with (a) the Foreign Corrupt Practices Act of 1977 and any other applicable law, regulation, order, decree or directive having the force of law and relating to bribery or corruption (collectively, the “Anti-Corruption Laws”; (b) the applicable financial recordkeeping and reporting requirements of the Bank Secrecy Act of 1970, as amended, applicable provisions of the USA PATRIOT Act of 2001, including all amendments thereto and regulations promulgated thereunder, and the anti-money laundering statutes, rules, regulations and guidelines of all jurisdictions to the extent applicable to Seller or any of its subsidiaries (collectively, the “Anti-Money Laundering Laws”); and (c) all sanctions administered or enforced by the United States Government (including the U.S. Department of the Treasury’s Office of Foreign Assets Control and the U.S. Department of State) and any other relevant sanctions authority (collectively, “Sanctions”).
(vii) No investigation, inquiry, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Seller or any of its subsidiaries with respect to the Anti-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of the Seller, threatened. (viii) Seller will not knowingly, directly or indirectly, use the proceeds of the Purchase Price or lend, contribute or otherwise make available such proceeds to any Person, (i) to fund any activities or business of or with any Person or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions; (ii) to fund or facilitate any money laundering or terrorist financing activities; or (iii) in any other manner that would cause or result in a violation of any Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions by any Person (including any party to this Agreement). 17 (ix) Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended and the Income Tax Regulations thereunder.
Seller is exempt from withholding taxes under Section 18662 of the California Revenue and Taxation Code, as amended.
(x) Seller became the owner of the Property pursuant to a foreclosure sale and the Property is commonly referred to in the banking industry as “Other Real Property Owned” (“OREO”).
(xi) All of the buildings on the Property are vacant and there are no Leases in effect with respect to any portion of the Property. (xii) Attached hereto as a part hereof as [Exhibit __] is a list of the Service Contracts in effect as of the Effective Date. Seller has not received any written notice of default from any parties to the Service Contracts that has not been cured by Seller. (xiii) There is no litigation or proceeding pending or, to Seller’s Knowledge, threatened against or relating (a) to the Property, or (b) to Seller that, if determined adversely to Seller, would materially, adversely affect Seller’s ability to convey the Property in accordance with the terms hereof.
(xiv) To Seller’s Knowledge, neither Seller nor the previous property owner has received any written notice from any governmental authority with respect to any violation of any legal requirement regulating the use of the Property that has not been cured. (xv) Seller has not (a) commenced a voluntary case, or had entered against it a petition, for relief under any federal bankruptcy act or any similar petition, order or decree under any federal or state law or statute relative to bankruptcy, insolvency or other relief for debtors, (b) caused, suffered or consented to the appointment of a receiver, trustee, administrator, conservator, liquidator, or similar official in any federal, state, or foreign judicial or non-judicial proceeding, to hold, administer and/or liquidate all or substantially all of its assets, or (c) made an assignment for the benefit of creditors.
(xvi) As used in this Section 10(a), the phrase “to Seller’s actual knowledge” and similar expressions means the actual knowledge of [NTD:
INSERT;________________], who is the individual at Seller most knowledgeable about the Property, after due inquiry with the Seller team and the property manager of the Property without any personal liability under or in connection with this Agreement.
Notwithstanding anything to the contrary in this Agreement, Seller shall have no liability, and Buyer shall make no claim against Seller, for (and Buyer shall be deemed to have waived any failure of a condition hereunder by reason of) a failure of any condition or a breach of any representation or warranty, covenant or other obligation of Seller under this Agreement or any closing document executed by Seller if the failure or breach in question constitutes or results from a condition, state of facts or other matter that was actually known to Buyer prior to Closing and Buyer proceeds with the Closing.
18 Buyer’s Representations and Warranties. In order to induce Seller to enter into this Agreement and to complete the transfer of the Property contemplated by this Agreement, Buyer represents and warrants to Seller that, as of the date of this Agreement and as of the date of Closing:
(i) Buyer has been duly organized and is validly existing under its state of formation. Buyer has the power to enter into this Agreement, to perform its obligations under this Agreement and to complete the transfer of the Property contemplated by this Agreement.
Buyer has taken all action necessary to authorize the execution and delivery of this Agreement, the performance by Buyer of its obligations under this Agreement and the completion of the transfer of the Property contemplated by this Agreement. (ii) This Agreement has been duly executed and delivered by Buyer and constitutes a valid, binding and enforceable obligation of Buyer, subject to bankruptcy and other debtor relief laws and principles of equity.
(iii) The execution and delivery of this Agreement by Buyer, the performance by Buyer of its obligations under this Agreement and the completion of the transfer of the Property contemplated by this Agreement will not result in (1) a breach of, or a default under, any contract, agreement, commitment or other document or instrument to which Buyer is party or by which Buyer is bound or (2) a violation of any law, ordinance, regulation or rule of any governmental authority applicable to Buyer or any judgment, order or decree of any court or governmental authority that is binding on Buyer.
(iv) Except for consents, approvals, authorizations and filings already completed or as identified elsewhere in the Agreement, Buyer is not required to obtain any consent, approval or authorization from, or to make any filing with, any person (including any governmental authority) in connection with, or as a condition to, the execution and delivery of this Agreement, the performance by Buyer of its obligations under this Agreement or the completion of the transfer of the Property contemplated by this Agreement. (v) In connection with this Agreement and to its knowledge, Buyer has not engaged in any dealings or transactions, (i) directly or indirectly, with any Prohibited Person (defined below), including the making or receiving of any contribution of funds, goods or services to or for the benefit of any such Prohibited Person, (ii) in contravention of any applicable money laundering laws or regulations, including, without limitation, the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, the USA Patriot Act of 2001, the Trading with the Enemy Act (50 U.S.C. §1 et seq., as amended), or any enabling legislation or executive order relating thereto, (iii) in contravention of Executive Order no. 13224 dated September 24, 2001 issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism), as may be amended or supplemented from time to time (“Anti-Terrorism Order”) or on behalf of terrorists or terrorist organizations, including those persons or entities that are included on any relevant lists maintained by the Office of Foreign Assets Control of the U.S. Department of Treasury (“OFAC”), or (iv) that violate the U.S. Foreign Corrupt Practices Act . In connection with this Agreement, Buyer is not nor will be conducting any business or engaging in any transaction with any person appearing on OFAC’s list of Specially Designated Nationals List. As 19 used herein, the following terms shall have the following meanings: (a) “Prohibited Person” means any Person that is now or shall be at any time until Closing a Person with whom a U.S. Person, including a United States Financial Institution as defined in 31 U.S.C. 5312, as periodically amended (“Financial Institution”), is prohibited from transacting business of the type contemplated by this Agreement, under United States law, including regulations, executive orders and lists administered, enforced or published by OFAC; and (b) “U.S. Person” means a United States citizen, entity organized under the laws of the United States or its territories or entity having its principal place of business within the United States or any of its territories. (vi) (a) in connection with this Agreement, Buyer and its subsidiaries have maintained compliance with all Anti-Money Laundering Laws and Anti-Corruption Laws; and (b) Buyer and its subsidiaries have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with the AntiMoney Laundering Laws and the Anti-Corruption Laws. (vii) Buyer is not an employee benefit plan as defined in Section 3(3) of ERISA. Buyer is not acquiring the Property with assets that constitute “plan assets” within the meaning of the plan asset regulations promulgated by the U.S. Department of Labor at 29 C.F.R. 2510.3-101 et seq., as amended or modified from time to time. (viii) No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action under federal or state bankruptcy laws in pending against or contemplated by Buyer or its general partner(s) or controlling shareholders or members.
Disclaimers. EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES IN THIS AGREEMENT AND ANY SELLER CLOSING DOCUMENT,
SELLER SPECIFICALLY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF
ANY KIND OR CHARACTER, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING WARRANTIES OF HABITABILITY, MERCHANTABILITY,
WORKMANLIKE CONSTRUCTION AND FITNESS FOR USE OR ACCEPTABILITY FOR
THE PURPOSE INTENDED BY BUYER) WITH RESPECT TO THE PROPERTY OR ITS
CONDITION OR THE DESIGN, QUALITY, SUITABILITY, STRUCTURAL INTEGRITY,
PHYSICAL CONDITION, COMPLIANCE WITH LAWS, SOIL CONDITIONS,
STORMWATER DETENTION, RETENTION OR DISCHARGE, DRAINAGE, GEOLOGICAL
CONDITIONS, HAZARDOUS MATERIALS, ZONING, CONSTRUCTION, PROSPECTS,
OPERATIONS OR RESULTS OF OPERATIONS OF THE PROPERTY AND BUYER ACCEPTS SUCH DISCLAIMERS. THE DISCLAIMERS IN THIS SECTION 12(c) SPECIFICALLY EXTEND TO (1) MATTERS RELATING TO HAZARDOUS MATERIALS AND COMPLIANCE WITH ENVIRONMENTAL LAWS, (2) GEOLOGICAL CONDITIONS,
INCLUDING SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE,
UNDERGROUND STREAMS AND RESERVOIRS AND OTHER UNDERGROUND WATER
CONDITIONS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER,
EARTHQUAKE FAULTS, AND MATTERS RELATING TO FLOOD PRONE AREAS, FLOOD PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARDS, (3) STORMWATER DETENTION, RETENTION, DISCHARGE OR DRAINAGE, (4) SOIL CONDITIONS,
INCLUDING THE EXISTENCE OF UNSTABLE SOILS, CONDITIONS OF SOIL FILL, 20 SUSCEPTIBILITY TO LANDSLIDES, AND THE SUFFICIENCY OF ANY UNDERSHORING, (5) ZONING AND SUBDIVISION AND COMPLIANCE WITH ZONING AND SUBDIVISION LAWS, (6) THE VALUE AND PROFIT POTENTIAL OF THE PROPERTY, (7) DESIGN, CONSTRUCTION, QUALITY, SUITABILITY, STRUCTURAL INTEGRITY AND PHYSICAL CONDITION OF THE PROPERTY AND (8) COMPLIANCE
OF THE PROPERTY WITH ANY LAWS (INCLUDING BUILDING CODES AND SIMILAR LAWS, THE AMERICANS WITH DISABILITIES ACT OF 1990 AND THE FAIR HOUSING AMENDMENTS ACT OF 1988). BUYER REPRESENTS AND WARRANTS TO SELLER
AND ITS RELATED ENTITIES THAT BUYER IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED BUYER OF REAL ESTATE. BUYER ACKNOWLEDGES THAT,
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN THIS
AGREEMENT AND ANY SELLER CLOSING DOCUMENT, BUYER HAS NOT RELIED
UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY
STATEMENT OF SELLER OR ANY OF ITS RELATED ENTITIES OR ANY OFFICER,
DIRECTOR, TRUSTEE, AGENT, EMPLOYEE OR OTHER PERSON ACTING OR PURPORTING TO ACT ON BEHALF OF SELLER OR ANY OF ITS RELATED ENTITIES.
BUYER ACKNOWLEDGES THAT IT HAS CONDUCTED OR WILL CONDUCT SUCH
INSPECTIONS AND INVESTIGATIONS AS TO THE CONDITION OF THE PROPERTY
AND ALL MATTERS BEARING UPON THE PROPERTY OR THE DESIGN, QUALITY,
SUITABILITY, STRUCTURAL INTEGRITY, PHYSICAL CONDITION, COMPLIANCE
WITH LAWS, SOIL CONDITIONS, STORMWATER DETENTION, RETENTION OR
DISCHARGE, DRAINAGE, GEOLOGICAL CONDITIONS, HAZARDOUS MATERIALS,
ZONING, CONSTRUCTION, PROSPECTS, OPERATIONS AND RESULTS OF
OPERATIONS OF THE PROPERTY AS IT DEEMS NECESSARY TO PROTECT ITS INTERESTS AND DETERMINE THE SUITABILITY OF THE PROPERTY FOR BUYER’S INTENDED USE. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES IN THIS
AGREEMENT AND ANY SELLER CLOSING DOCUMENT, BUYER IS ACQUIRING THE PROPERTY “AS IS” AND “WHERE IS” AND SUBJECT TO ALL FAULTS, DEFECTS OR OTHER ADVERSE MATTERS, WHETHER PATENT OR LATENT. UPON CLOSING,
BUYER WILL ACCEPT THE PROPERTY SUBJECT TO BOTH PATENT AND LATENT
ADVERSE STRUCTURAL, PHYSICAL, ECONOMIC OR ENVIRONMENTAL
CONDITIONS OR DEFECTS THAT MAY THEN EXIST, WHETHER OR NOT REVEALED BY THE INSPECTIONS AND INVESTIGATIONS CONDUCTED BY BUYER. BUYER SPECIFICALLY WAIVES AND RELEASES (1) ALL WARRANTIES, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE (INCLUDING WARRANTIES OF HABITABILITY,
MERCHANTABILITY, WORKMANLIKE CONSTRUCTION AND FITNESS FOR USE OR
ACCEPTABILITY FOR THE PURPOSE INTENDED BY SELLER BUT EXCLUDING THE REPRESENTATIONS AND WARRANTIES IN SECTION 10(a) AND ANY SELLER
CLOSING DOCUMENTS) WITH RESPECT TO THE PROPERTY OR THE DESIGN,
QUALITY, SUITABILITY, STRUCTURAL INTEGRITY, PHYSICAL CONDITION,
COMPLIANCE WITH LAWS, SOIL CONDITIONS, STORMWATER DETENTION,
RETENTION OR DISCHARGE, DRAINAGE, GEOLOGICAL CONDITIONS, HAZARDOUS
MATERIALS, ZONING, CONSTRUCTION, PROSPECTS, OPERATIONS AND RESULTS OF OPERATIONS OF THE PROPERTY AND (2) EXCEPT FOR ANY BREACH BY SELLER
UNDER THIS AGREEMENT OR ANY SELLER CLOSING DOCUMENT, ALL RIGHTS,
REMEDIES, RECOURSE OR OTHER BASIS FOR RECOVERY THAT BUYER WOULD 21 OTHERWISE HAVE AGAINST SELLER OR ANY OF ITS RELATED ENTITIES, ANY
PERSON WHO HOLDS A DIRECT OR INDIRECT OWNERSHIP INTEREST IN SELLER OR
ANY RELATED ENTITY AND THE RESPECTIVE MEMBERS, PARTNERS, OFFICERS,
DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES OF EACH SUCH PERSON IN
RESPECT OF THE PROPERTY OR THE DESIGN, QUALITY, SUITABILITY,
STRUCTURAL INTEGRITY, PHYSICAL CONDITION, COMPLIANCE WITH LAWS, SOIL
CONDITIONS, STORMWATER DETENTION, RETENTION OR DISCHARGE, DRAINAGE,
GEOLOGICAL CONDITIONS, HAZARDOUS MATERIALS, ZONING, CONSTRUCTION,
PROSPECTS, OPERATIONS AND RESULTS OF OPERATIONS OF THE PROPERTY AS IT DEEMS NECESSARY TO PROTECT ITS INTERESTS. BUYER ACKNOWLEDGES AND AGREES THAT: (i) THE DISCLAIMERS, WAIVERS, RELEASES AND OTHER PROVISIONS SET FORTH IN THIS SECTION 10(c) ARE AN INTEGRAL PART OF THIS AGREEMENT, (ii) SELLER WAS MATERIALLY INDUCED TO ENTER INTO THIS
AGREEMENT AND SELL THE PROPERTY TO BUYER IN MATERIAL RELIANCE UPON
SUCH DISCLAIMERS, WAIVERS, RELEASES AND OTHER PROVISIONS SET FORTH IN THIS SECTION 10(c), (iii) SELLER WOULD NOT HAVE AGREED TO COMPLETE THE
SALE ON THE TERMS PROVIDED IN THIS AGREEMENT, WITHOUT THE
DISCLAIMERS, WAIVERS, RELEASES AND OTHER PROVISIONS SET FORTH IN THIS SECTION 10(c). THE PROVISIONS OF THIS SECTION 10(c) AND THE DISCLAIMERS,
WAIVERS AND RELEASES SET FORTH HEREIN SHALL EXPRESSLY INCLUDE AND
BE FOR THE BENEFIT OF ALL RELATED ENTITIES AND ALL RELATED ENTITIES ARE EXPRESSLY THIRD PARTY BENEFICIARIES OF THIS SECTION 10(c).
Buyer further acknowledges that Seller acquired the Property pursuant to a foreclosure sale under the power of sale in a deed of trust, that Seller was not the builder or responsible for the construction of any improvements on the Property, and that Seller has had no involvement in the construction, development or entitlement of the Property.
Release. (a) In furtherance of the “AS IS, WHERE IS” nature of the sale, and that the Property is OREO, and Seller acquired the same through a foreclosure process, Buyer shall rely solely upon Buyer’s own knowledge of the Property based on its investigation of the Property and its own inspection of the Property in determining the Property’s physical condition.
Except with respect to Seller’s representations and warranties in this Agreement or in the Seller Closing Documents, Buyer and anyone claiming by, through or under Buyer hereby waives its right to recover from and fully and irrevocably releases Seller and the Seller Related Entities from any and all Claims that it may now have or hereafter acquire against any of the Seller Related Entities arising from or related to any construction defects, errors, omissions or other conditions, latent or otherwise, including environmental matters, affecting the Property, or any portion thereof.
This release includes Claims of which Buyer is presently unaware or which Buyer does not presently suspect to exist which, if known by Buyer, would materially affect Buyer’s release to Seller. From and after the Closing, in connection with the above release, Buyer specifically waives the provision of California Civil Code Section 1542, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, 22 WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
In this connection and to the extent permitted by law, Buyer hereby agrees, represents and warrants that Buyer realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to Claims which are presently unknown, unanticipated and unsuspected, and Buyer further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that from and after the Closing, Buyer nevertheless hereby intends to release, discharge and acquit Seller from any such unknown Claims which might in any way be included as a material portion of the consideration given to Seller by Buyer in exchange for Seller’s performance hereunder.
Seller has given Buyer material concessions regarding this transaction in exchange for Buyer agreeing to the provisions of this Section 10(d). Buyer has initialed this Section 10(d) to further indicate its awareness and acceptance of each and every provision hereof. This Section 10(d) shall survive any termination of this Agreement and the Closing.
BUYER’S INITIALS: _____________
Survival. The representations and warranties in Section 10(a) and Section 10(b) will survive Closing, but only for a period (the “Survival Period”) of six (6) months, and no claim shall be allowed on any such representation or warranty unless notice of the claim and a detailed statement of the basis for the claim is delivered by the claimant to the other party within such three-month Survival Period. Nothing in this Section 10(e) limits the disclaimers, waivers, releases and other provisions in Section 10(c), all of which will survive Closing without limit as to time.
11. Specific Rights and Obligations.
Maintenance of Insurance. Seller agrees that it will maintain all insurance in effect as of the Effective Date of this Agreement with respect to the Property (or, if such insurance is cancelled or expires, comparable insurance to the extent it is available on commercially reasonable terms) until the earlier of the Closing or the termination by Buyer or Seller of its obligation to complete the transfer of the Property contemplated by this Agreement.
Conduct of Business. Until the earlier of the Closing Date or the termination by Buyer or Seller of its obligation to complete the transfer of the Property, Seller will carry on its business with respect to maintaining and operating the Property in a manner that is consistent with Seller’s past practices, subject to changes in asset management as Seller considers desirable or necessary to meet market conditions in the exercise of its reasonable discretion.
Leasing. Until the Closing (provided the Agreement has not been terminated), Seller will not enter into any new leases.
12. Remedies.
SELLER’S REMEDIES. IF BUYER FAILS TO PURCHASE THE
PROPERTY IN VIOLATION OF THIS AGREEMENT, THEN SELLER, AS ITS SOLE AND 23 EXCLUSIVE REMEDY, MAY TERMINATE ITS OBLIGATION TO COMPLETE THE
TRANSFER OF THE PROPERTY AND, UPON SO DOING, WILL BE ENTITLED TO RECEIVE THE EARNEST MONEY AS LIQUIDATED DAMAGES. SELLER WAIVES ALL REMEDIES FOR BUYER’S FAILURE TO COMPLETE THE TRANSFER OF THE PROPERTY, EXCEPT THOSE SPECIFICALLY PROVIDED FOR IN THIS SECTION 12(a).
SELLER AND BUYER ACKNOWLEDGE THAT SELLER’S DAMAGE WOULD BE DIFFICULT OR IMPOSSIBLE TO ASCERTAIN IN THE EVENT OF BUYER’S DEFAULT
IN ITS OBLIGATION TO PURCHASE THE PROPERTY AND THAT THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION 12(a) ARE A REASONABLE ESTIMATE OF SELLER’S DAMAGES. SELLER AND BUYER ACKNOWLEDGE THAT THE AMOUNT
OF THE LIQUIDATED DAMAGES HAS BEEN SET TAKING INTO ACCOUNT VARIOUS FACTORS, INCLUDING THE POTENTIAL FOR CHANGE IN VALUE OF THE PROPERTY.
THE REMEDIES PROVIDED IN THIS SECTION 12(a) ARE EXCLUSIVE, PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION 12(a) LIMITS SELLER’S ABILITY TO COLLECT ATTORNEYS’ FEES UNDER SECTION 17(b), REMEDIES FOR ANY BREACH
BY BUYER OF ANY REPRESENTATION, WARRANTY, OBLIGATION, UNDERTAKING
OR INDEMNITY THAT SURVIVES THE TERMINATION OF THIS AGREEMENT, AS EXPRESSLY SET FORTH IN THIS AGREEMENT. IF CLOSING IS NOT CONSUMMATED,
THEN SELLER SHALL HAVE ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IF
BUYER FAILS TO PERFORM ANY OBLIGATION OF BUYER UNDER THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH
LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369 (AND ANY
CORRESPONDING PROVISIONS OF THE LAWS OF OTHER JURISDICTIONS, IF
APPLICABLE), BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676, AND 1677 (AND ANY CORRESPONDING PROVISIONS OF THE LAWS OF OTHER JURISDICTIONS, IF APPLICABLE). THE PARTIES HAVE SET FORTH THEIR INITIALS BELOW TO
INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES PROVISION CONTAINED IN THIS SECTION.
BUYER ___________ SELLER _________
Buyer’s Remedies. If the Closing does not occur in accordance with the requirements of this Agreement solely as a result of Seller’s failure to materially perform any of its obligations under this Agreement, such failure shall constitute a Seller default, and if such default is not cured within fifteen (15) days after written demand for performance delivered to Seller by Buyer, then Buyer may either (i) terminate its obligation to complete its purchase of the Property, in which event Buyer shall be entitled to the Earnest Money as well as a reimbursement from Seller for all costs and expenses incurred in preparation for the acquisition of the Property, payable within ten (10) Business Days after demand, or (ii) enforce specific performance of Seller’s obligation; provided, however, that the remedy of specific performance shall only be available if (x) Buyer has not defaulted in its requirements for Closing, and (y) any suit for specific performance is filed and served by Buyer no later than sixty (60) days after the date the notice provided with respect to such default is delivered to Seller. The remedies provided in this Section 12(b) are exclusive, and Buyer expressly waives all other remedies, claims and causes of action (including any right to obtain lost profits or actual, consequential, special or any other damages 24 from Seller) for Seller’s failure in performance prior to Closing or for any inaccuracy of Seller’s representations and warranties that is discovered by Buyer prior to Closing.
Limitation on Liability. Notwithstanding anything to the contrary contained elsewhere herein, no claim for any breach by Seller of any representation, warranty, covenant, indemnity or obligation of Seller under this Agreement, or under any document, instrument or agreement delivered by Seller at the Closing (including any Seller Closing Documents), which is asserted by Buyer after the Closing, shall be actionable or payable unless each of the following conditions is satisfied: (i) the breach in question results from or is based on a condition, state of facts or other matter which was not known to Buyer prior to Closing, (ii) the valid claims for all such breaches, if any, collectively aggregate more than Twenty-Five Thousand Dollars and No/100 Dollars ($25,000.00), in which event the amount of claims in excess of such amount shall be actionable subject to the Cap (defined below); and (iii) written notice containing a description of the specific nature of such breach shall have been given by Buyer to Seller prior to the expiration of the Survival Period, and an action shall have been commenced by Buyer against Seller within thirty (30) days after the termination of the Survival Period. Buyer agrees to first seek recovery under any insurance policies, the Title Policy and the Service Contracts prior to seeking recovery from Seller, and Seller shall not be liable to Buyer if Buyer’s claim is satisfied from such insurance policies, Title Policy or Service Contracts. In addition, and notwithstanding anything to the contrary contained in this Agreement or any document or certificate executed in connection with this Agreement (including the Seller Closing Documents), the aggregate liability of Seller and Seller Related Entities arising directly or indirectly pursuant to or in connection with the representations and warranties (whether express or implied), covenants, indemnities and other obligations of Seller under this Agreement and all documents and certificates executed in connection with this Agreement (including the Seller Closing Documents) shall be limited to an amount equal to one percent (1%) of the Purchase Price (the “Cap”), regardless of whether any such liability arises from the actual or alleged negligent, willful or intentional act or omission of Seller or any Related Entity. The provisions of this Section 12(c) shall survive Closing and any earlier termination of this Agreement.
13. Brokerage.
Each party hereby represents and warrants to the other that it has not dealt with any broker or finder with respect to the transaction contemplated hereby other than CBRE engaged by Seller to market the Property separately from and before the parties entered into this Agreement, and Seller will pay any and all fees to CBRE under separate agreement. Subject to the preceding sentence, Seller and Buyer each agrees to indemnify and defend the other and hold the other harmless against any claim for a commission, finder’s fee or similar compensation asserted by any person retained by or claiming through the indemnifying party or its affiliates in connection with the transfer of the Property or the execution of this Agreement, and all related loss, damage, liability, obligation, claim, suit, cause of action, judgment, settlement, penalty, fine or cost or expense (including fees and disbursements of attorneys and other professionals and court costs).
The provisions of this Section 13 shall survive the Closing and any termination of this Agreement.
14. Possession.
25 Seller will deliver possession of the Property to Buyer at the time of Closing, subject to the Permitted Exceptions.
15. Casualty and Condemnation.
Notice of Casualty or Condemnation. Seller will notify Buyer within ten (10) days after receiving notice of, or otherwise becoming aware of, (1) any Casualty Loss (as defined below) or (2) the commencement of any proceedings for the taking by eminent domain of all or any part of the Property.
Casualty Losses. If, prior to Closing, the Property is damaged by fire, windstorm, rioting or other civil disturbance, acts of war, earthquake or other casualty (a “Casualty Loss”) and the cost to repair the related damage is more than Five Million and No/100 Dollars ($5,000,000.00) (a “Material Casualty Loss”), then Buyer, at its option, may terminate its obligation to complete the transfer of the Property contemplated by this Agreement upon notice to Seller of Buyer’s intent to terminate within five (5) days after receiving notice from Seller of such Casualty Loss, in which case the Earnest Money will be returned to Buyer. If Buyer elects to complete the transfer of the Property notwithstanding a Material Casualty Loss, then Seller will deliver to Buyer at Closing, through the closing escrow, all insurance proceeds previously received by Seller and an assignment of Seller’s rights with respect to all uncollected insurance proceeds and Seller will cooperate with Buyer after Closing in making claim for, and collecting, all available insurance proceeds. All amounts payable under this Section 15(b) shall be less the proceeds of rental loss and business interruption insurance allocable to the period through the Closing Date, amounts expended by Seller to stabilize or repair the Property and costs incurred by Seller in making proof of loss or settling claims with insurers. If the Casualty Loss is not a Material Casualty Loss, then Buyer shall not have the right to terminate this Agreement, and Seller will deliver to Buyer at Closing, through the closing escrow, all insurance proceeds previously received by Seller, together with an assignment of Seller’s rights with respect to all uncollected insurance proceeds, and Seller, at no cost or expense to Seller, will cooperate with Buyer after Closing in making claim for, and collecting, all available insurance proceeds.
Condemnation. If, prior to Closing, all or a “material part” of the Property is taken by eminent domain or any proceedings for the taking by eminent domain of all or a material part of the Property are commenced or Seller and the condemning authority enter into discussions regarding Seller’s delivery of a deed in lieu thereof, then Buyer, at its option within five (5) days after receiving notice thereof from Seller, may terminate its obligation to complete the transfer of the Property, in which case the Earnest Money will be returned to Buyer. If Buyer elects to complete the transfer of the Property notwithstanding a taking by eminent domain or proceeding therefore or deed in lieu thereof, Seller will deliver to Buyer at Closing, through the closing escrow, all condemnation proceeds previously received by Seller and an assignment of Seller’s rights with respect to all uncollected condemnation proceeds (in either case, net of proceeds allocable to loss of use of the Property for the period through the Closing Date and costs reasonably incurred by Seller in connection with such proceedings) and such documents as Buyer may reasonably request to substitute itself for Seller in any pending eminent domain proceedings.
For purposes of this Section 15(c), a “material part of the Property” shall mean the loss of any material means of access or any other portion of the Property that will result in a loss of more than 26 10,000 square feet of space within the Improvements or cost more than Five Million and No/100 Dollars ($5,000,000.00) to repair.
16. Consequences of Termination.
If Buyer or Seller terminates its obligation to complete the transfer of the Property under circumstances permitted by this Agreement, neither Buyer nor Seller will have any further liability or obligation under this Agreement, except indemnity provisions and obligations under Section 5(h), Section 12 (if applicable) and Section 13 and any other term that expressly survives the termination of this Agreement. Nothing in this Section 16 is intended to limit the obligations of the Title Company or the provisions of this Agreement dealing with the disposition of funds or documents held in escrow following termination of the obligations of Buyer or Seller. If Buyer or Seller terminates its obligation to complete the transfer of the Property, Buyer will deliver the Information to Seller. Return of materials as required by this Section 16 will not limit Buyer’s obligations under Section 5(h).
17. Miscellaneous.
Survival. Except as specifically provided for in this Agreement, all disclaimers, waivers, releases, covenants, undertakings and obligations under this Agreement and all representations and warranties contained in this Agreement will survive the Closing and will not be merged into the Deed or other documents delivered pursuant to this Agreement.
Attorneys’ Fees. If litigation is commenced by Buyer or Seller against the other party in connection with this Agreement or the Property, the party prevailing in the litigation will be entitled to collect from the other party the expense (including reasonable fees, costs and disbursements of attorneys, experts and other professionals and court costs) incurred in connection with the litigation, both prior to and during any appellate proceedings. The terms and conditions of this Section 17(b) shall survive Closing and any termination of this Agreement.
Notices. Any notice or other communication to any party given under this Agreement will be effective only if in writing delivered to whichever of the following addresses is applicable:
If to Seller: CF CC Investor LLC
1345 Avenue of the Americas, 46th Floor
New York, New York 10105
Attention: General Counsel-Credit Funds
Email: [email protected]
With a copy to: CF CC Investor LLC
4550 Travis St. Suite 600
Dallas, TX 75205
Attn: Alex Shaheen
Email: [email protected]
With a copy to: Buchalter PC
27 1000 Wilshire Blvd., 15th Floor
Los Angeles, California 90017
Attention: J. David Hitchcock, Esq.
Facsimile: (213) 891-5355
Email: [email protected]
If to Buyer: The Culver City Public Finance Authority
9770 Culver Boulevard
Culver City, CA 90232
Attn: City Manager/Executive Director
E-mail: [email protected]
With a copy to: City Attorney’s Office
9770 Culver Boulevard
Culver City, CA 90232
Attn: City Attorney/General Counsel
E-mail: [email protected]
With a copy to: Orrick, Herrington & Sutcliffe LLP
355 S. Grand Avenue, Suite 2700
Los Angeles, CA 90071
Attn: Nicole Walsh, Esq.
E-mail: [email protected]
With a copy to: Kane, Ballmer & Berkman
515 S. Figueroa Street, Suite 780
Los Angeles, CA 90071
Attn: Royce K. Jones
Email: [email protected]
If to Title Company: Chicago Title National Commercial Services 601 S. Figueroa St., Suite 2150
Los Angeles, CA 90017
Attn: Sam Stockton
E-mail: [email protected]
Any notice or other communication will be deemed received only upon delivery to the address provided for in this Section 17(c) or rejection of delivery at such address. Notice may be given by (i) a national overnight delivery service in which event delivery shall be deemed to occur the next Business Day after depositing the notice with such delivery service, or (ii) by facsimile transmission or electronic mail transmission in which event notice shall be deemed to occur the same day if given before 5:00 p.m. Los Angeles County, California time on a Business Day and, if not so received, the next Business Day. The addresses and addressees to which notice is to be given may be changed by written notice given in the manner specified in this Section 17(c) and actually received by the addressee. Counsel to any party to this Agreement may, on behalf of its 28 client, give any notice which may be, or is required to be, given by its client under this Agreement (and any notice so given by such counsel shall be as effective as if given by its client).
Parties Bound. This Agreement will be binding upon and will inure to the benefit of Buyer and Seller and their respective successors and permitted assigns. Neither the Title Company nor any broker is a third-party beneficiary of this Agreement, nor may the Title Company or any broker enforce this Agreement or any obligation under this Agreement. Any indemnity in favor of a party or its affiliates also will benefit each person who holds a direct or indirect ownership interest in such party or affiliate and the respective officers, directors, trustees, agents, employees and affiliates of such party or affiliate and such owners, and all such persons are thirdparty beneficiaries of this Agreement to the extent of their rights to indemnity under the related provision and may enforce that provision against Buyer or Seller, as applicable.
Construction. The Section headings contained in this Agreement are for convenience of reference only and are not intended to delineate or limit the meaning of any provision of this Agreement or be considered in construing or interpreting the provisions of this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which, taken together, will constitute one instrument. Buyer and Seller may execute different counterparts of this Agreement and, if they do so, the signature pages from the different counterparts may be combined to provide one integrated document.
Entirety and Amendments. This Agreement embodies the entire agreement and understanding between Buyer and Seller with respect to its subject matter and supersedes all prior agreements and understandings, written and oral, between Buyer and Seller related to that subject matter, including any letter of intent. This Agreement and the obligations of the parties under this Agreement may be amended, waived and discharged only by an instrument in writing executed by the party against which enforcement of the amendment, waiver or discharge is sought.
Joinder of the Title Company and any broker will not be necessary to make any amendment, waiver or discharge effective between Buyer and Seller.
Invalidity. The determination that any provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of the remaining provisions or of that provision under other circumstances. Any invalid or unenforceable provision will be enforced to the maximum extent permitted by law.
Assignment. Buyer may, at any time prior to the Closing, transfer or otherwise assign all or any part of this Agreement or its rights hereunder to any person or entity without the consent of Seller; provided that (i) Buyer shall deliver written notice to Seller of any such assignment, and (ii) the assignee shall assume in writing all of Buyer’s obligations hereunder pursuant to an assignment and assumption agreement. Buyer shall be fully released from liability this Agreement upon the delivery to Seller of a fully executed assignment and assumption agreement of Buyer’s obligations hereunder by and between Buyer and such Buyer affiliate. Seller shall not sell, transfer, convey, encumber or otherwise dispose of all or any part of this Agreement without the prior written consent of Buyer, which consent shall not be unreasonably withheld, 29 conditioned or delayed. For purposes of this Section 17(i), Buyer or Seller, as applicable, shall be deemed to have transferred its right, title and interest under this Agreement if any direct and/or indirect ownership interest in Buyer or Seller, as applicable, is sold, assigned, conveyed, transferred, encumbered or otherwise disposed of, in whole or in part, voluntarily or involuntarily.
Governing Law. This Agreement will be governed by the laws of the State of California, without giving effect to principles of conflicts of law. Moreover, and notwithstanding anything in this Agreement to the contrary, this Agreement, and all disclosure provisions shall be subject to the requirements of the California Public Record Act (Government Code, Section 7920.000 et.seq.).
No Liability of Related Parties. No Related Entity, nor any person who holds a direct or indirect ownership interest in Seller or any Related Entity, nor any of the respective officers, directors, trustees, agents and employees of any such person shall have any liability, directly or indirectly, under or in connection with this Agreement, any document or certificate executed in connection with this Agreement (including the Seller Closing Documents) or any amendment of any of the foregoing made at any time, whether prior to, contemporaneous with or after this Agreement. Buyer and its successors and assigns, as well as all other persons, may look solely to Seller’s assets for the payment of any claim or any performance, and Buyer, on behalf of itself and its successors and assigns, hereby waives any and all other claims, demands, causes of action and liability.
Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, BUYER
AND SELLER EACH WAIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION BETWEEN
THEM RELATED TO THIS AGREEMENT, THE TRANSACTION CONTEMPLATED HEREBY OR THE PROPERTY. The provisions of this Section 17(l) shall survive the Closing and any termination of this Agreement.
Time. Time is of the essence in the performance of this Agreement.
Confidentiality. Prior to Closing, Buyer shall make no public announcement or disclosure of any information related to this Agreement to outside brokers or third parties without the prior written consent of Seller; provided, however, that Buyer may, subject to the provisions of Section 5(e), make disclosure of this Agreement to its Permitted Outside Parties as necessary to perform its obligations hereunder and as may be required under laws or regulations applicable to Buyer.
No Recordation. Without the prior written consent of Seller, there shall be no recordation of either this Agreement or any memorandum hereof, or any affidavit pertaining hereto, and any such recordation of this Agreement or memorandum or affidavit by Buyer without the prior written consent of Seller shall constitute a default hereunder by Buyer, whereupon Seller shall have the remedies set forth in Section 12(a).
Further Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by either party at Closing, each party agrees to perform, execute and deliver, but without any obligation to incur any additional liability or expense, on or after the Closing any further deliveries and assurances as may be reasonably 30 necessary to consummate the transactions contemplated hereby or to further perfect the conveyance, transfer and assignment of the Property to Buyer.
Joint and Several Liability. In the event there are multiple assignees of Buyer who take title to the Property, the liability of such assignees with respect to the obligations of Buyer under this Agreement shall be joint and severable.
Natural Hazards Disclosure. Buyer and Seller acknowledge that Seller may be required under California law to disclose if the Property lies within the following natural hazard areas or zones: (i) a special flood hazard area designated by the Federal Emergency Management Agency; (ii) an area of potential flooding; (iii) a very high fire hazard severity zone; (iv) a wild land area that may contain substantial forest fire risks and hazards; (v) an earthquake fault zone; or (vi) a seismic hazard zone. Buyer acknowledges that Seller will employ the services of the Title Company or another third party selected by Seller (“Natural Hazard Expert”) to examine the maps and other information specifically made available to the public by government agencies for the purposes of enabling Seller to fulfill Seller’s disclosure obligations, and to report the result of the Natural Hazard Expert’s examination to Buyer and Seller in writing. The written reports prepared by the Natural Hazard Expert regarding the results of the Natural Hazard Expert’s examination fully and completely discharge Seller from Seller’s disclosure obligations referred to herein, if and to the extent any such obligations exist, and, for the purpose of this Agreement, the provisions of Civil Code Section 1103.4 regarding non-liability of Seller for errors or omissions not within Seller’s personal knowledge shall be deemed to apply and the Natural Hazard Expert shall be deemed to be an expert, dealing with matters within the scope of the Natural Hazard Expert’s expertise with respect to the examination and written report regarding the natural hazards referred to above.
(s) Electronic Signatures. The facsimile, email, PDF signature or electronic signature (including, without limitation, DocuSign or similar electronic signature technology) of any party on this Agreement will be deemed an original for all purposes. The contract formation pursuant to this Agreement and record-keeping of this Agreement though electronic means shall have the same legal validity and enforceability as a manually executed or paper-based recordkeeping system to the fullest extent permitted by applicable law, including, without limitation, the Federal Electronic Signatures in Global and National Commerce Act, the Uniform Electronic Transactions Act or any similar state law, and the parties to this Agreement hereby waive any objection to the contrary.
[Signature pages follow]
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
SELLER:
CF CC INVESTOR LLC,
a Delaware limited liability company
By:
Name:
Title:
S-2
CULVER CITY PUBLIC FINANCE
AUTHORITY,
a Municipal Joint Powers Authority
By:
Name: Odis Jones
Title: City Manager, as Executive Director
APPROVED AS TO FORM:
By: _______________________________
Heather Baker, City Attorney, as
CCPFA General Counsel
S-3
ACKNOWLEDGEMENT AND AGREEMENT
The Title Company (as defined in Section 1 above) hereby acknowledges that it has received this Agreement executed by Seller and Buyer and accepts the obligations of and instructions for the Title Company set forth in this Agreement. The Title Company, as escrow holder, agrees to receive, disburse and/or handle the Earnest Money, the Purchase Price and all closing documents in accordance with this Agreement.
CHICAGO TITLE INSURANCE COMPANY
By: ________________________________
Name: ________________________________
Title: ________________________________
Schedule 1
SCHEDULE 1
LEGAL DESCRIPTION OF PROPERTY
That certain property situated in the County of Los Angeles, State of California, described as follows:
LOTS A, B AND C OF TRACT NO. 4419, IN THE CITY OF CULVER CITY, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS RECORDED IN BOOK 48 OF MAPS, PAGE 1, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, EXCEPT THE FOLLOWING DESCRIBED PROPERTY:
THAT PORTION OF SAID LOT "A" DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE NORTHWESTERLY LINE OF SAID LOT "A" THAT IS DISTANT THEREON NORTH 54 DEGREES 19 MINUTES EAST 165.11 FEET FROM THE MOST WESTERLY CORNER THEREOF, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH 50 DEGREES 31 MINUTES 55 SECONDS EAST TO THE NORTHWESTERLY
LINE OF THE LAND CONVEYED TO THE CITY OF CULVER CITY, FOR ALLEY PURPOSES BY DEED RECORDED IN BOOK 5147, PAGE 266, OF OFFICIAL RECORDS OF SAID COUNTY; THENCE NORTH 54 DEGREES 19 MINUTES EAST, ALONG THE LAST MENTIONED NORTHWESTERLY LINE, TO THE NORTHEASTERLY LINE OF SAID LOT "A"; THENCE NORTH 52 DEGREES 42 MINUTES WEST, ALONG SAID NORTHEASTERLY LINE TO THE MOST NORTHERLY CORNER OF SAID LOT "A"; THENCE SOUTH 54 DEGREES 19 MINUTES WEST ALONG THE NORTHWESTERLY LINE OF SAID LOT "A", 76.30 FEET TO THE POINT OF BEGINNING.
Exhibit A
EXHIBIT A
FORM OF DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
APN:
SPACE ABOVE THIS LINE FOR RECORDER’S USE
GRANT DEED4
FOR VALUE RECEIVED, _______________________, a ________________________ (“Grantor”), grants to _______________________, a ________________________, all that certain real property (the “Property”) situated in the County of Los Angeles, State of California, described on Exhibit A attached hereto and by this reference incorporated herein.
THE PROPERTY IS CONVEYED TO GRANTEE SUBJECT TO:
(i) the lien of all real estate taxes and assessments not yet delinquent as of the date hereof;
(ii) all local, state and federal laws, rules, ordinances and governmental regulations, including but not limited to, building and zoning laws, rules, ordinances and regulations now or hereafter in effect relating to the Property; and (iii) all items appearing of record and all matters which would be disclosed by an accurate survey of the Property.
DATED as of this ___ day of ___________, 20__.
4 Subject to confirmation with title and further review.
Exhibit A
____________________,
a ___________________
By: ________________________________
Name: ________________________________
Title: ________________________________
By: ________________________________
Name: ________________________________
Title: ________________________________
Exhibit A
ACKNOWLEDGMENT
State of California )
) ss
County of __________________ )
On _______________________, 20[NTD: INSERT__] before me, ________________________________________________, a Notary Public, personally appeared _________________________________________, who 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 upon behalf of which the person (s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_____________________________ (SEAL)]
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
Exhibit A
EXHIBIT A TO DEED
Legal Description
[NTD: INSERT;_______________]]
Exhibit B
EXHIBIT B
FORM OF BILL OF SALE
For good and valuable consideration, _______________________, a ________________________ (“Seller”), sells and conveys to _____________________, a __________________________ (“Buyer”), the following (collectively, “Personalty”): all fixtures, equipment, machinery, building materials, supplies, inventory and other tangible property owned by Seller and located on the Land (as defined below). This Bill of Sale expressly excludes Personalty located on the Land that is leased or rented.
EXCEPT AS SET FORTH HEREIN OR IN THE PURCHASE CONTRACT, (A) THE PERSONALTY IS TRANSFERRED TO BUYER “AS IS” AND “WHERE IS” AND WITH ALL
FAULTS, DEFECTS OR OTHER ADVERSE MATTERS, AND (B) SELLER SPECIFICALLY
DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING
WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR USE OR
ACCEPTABILITY FOR THE PURPOSE INTENDED BY BUYER) WITH RESPECT TO THE PERSONALTY OR ITS CONDITION. CONVEYANCE OF THE PERSONALTY IS SUBJECT
TO ALL DISCLAIMERS, WAIVERS, RELEASES AND LIMITATIONS CONTAINED IN THE PURCHASE CONTRACT (AS DEFINED BELOW).
As used herein, (1) “Land” means that certain real property in [NTD:
INSERT;________________], as described on Exhibit A attached to and made a part of this Bill of Sale for all purposes; and (2) “Purchase Contract” means the Purchase and Sale Agreement and Joint Escrow Instructions, dated as of _______________, 20[NTD: INSERT__], between Seller and Buyer.
Exhibit B
IN WITNESS WHEREOF, the Seller has executed this Bill of Sale this _____ day of ________________________, 20[NTD: INSERT __].
____________________,
a ___________________
By: ________________________________
Name: ________________________________
Title: ________________________________
By: ________________________________
Name: ________________________________
Title: ________________________________
Exhibit B
EXHIBIT A TO BILL OF SALE
Legal Description
[NTD: INSERT;_____________]
Exhibit C
EXHIBIT C
[OMITTED]
Exhibit D
EXHIBIT D
[OMITTED]
Exhibit E
EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this “Agreement”), dated __________, 20[NTD: INSERT__], is executed by and between _______________________, a ________________________ (“Buyer”), and _______________________, a ________________________ (“Seller”).
1. Background. Seller and Buyer have entered into a Purchase and Sale Agreement and Joint Escrow Instructions, dated as of ____________________, 20[NTD: INSERT__] (the “Purchase Contract”), pursuant to which Seller is conveying to Buyer the real property commonly known as [NTD: INSERT;________________] (the “Property”), located in the [NTD:
INSERT;________________]. All capitalized terms in this Agreement, if not defined in this Agreement, will have the meaning ascribed to them in the Purchase Contract. Buyer has agreed to execute and deliver this Agreement pursuant to the Purchase Contract and this Agreement shall survive Closing under the Purchase Contract.
2. Assignment. Seller assigns Buyer the following (collectively, the “Miscellaneous Assets”): (a) all right, title and interest of Seller in, to and under any assignable contract listed in Exhibit A attached to and by reference made a part of this Assignment (collectively, “Assigned Contracts”); (b) all right, title and interest of Seller in and to all transferable permits, licenses, approvals, utility rights, development rights and similar rights related to the Property, if any, whether granted by governmental authorities or private persons; and (c) all right, title and interest of Seller in and to all assignable warranties and guaranties covering all or any part of the Property, excluding warranties or guaranties provided by Seller or any Related Entity, it being the intent of the parties hereto that no such warranties or guaranties are being provided by Seller or any Related Entity. The Miscellaneous Assets shall not include (i) any internet addresses or websites used in connection with the Property or (ii) the name [NTD: INSERT;________________] and the logo including such names and any brochures, marketing materials, other branded items of personal property and signage in connection with the Property. Seller makes no representation or warranty relating to any of the Miscellaneous Assets or the assignability thereof and shall not be required to obtain any consents relating to such assignment.
EXCEPT FOR REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH
IN THE PURCHASE CONTRACT, SELLER SPECIFICALLY DISCLAIMS ALL
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE (INCLUDING WARRANTIES OF
MERCHANTABILITY AND WARRANTIES OF FITNESS FOR USE OR ACCEPTABILITY
FOR THE PURPOSE INTENDED BY BUYER) WITH RESPECT TO THE MISCELLANEOUS ASSETS OR THE ASSIGNABILITY OF THE MISCELLANEOUS ASSETS. CONVEYANCE
OF THE MISCELLANEOUS ASSETS IS SUBJECT TO ALL DISCLAIMERS, WAIVERS, RELEASES AND OTHER LIMITATIONS CONTAINED IN THE PURCHASE CONTRACT.
3. Assumption. Buyer hereby assumes and agrees to pay and perform all of the terms, covenants, conditions and obligations of Seller or the owner of the Property under or with respect Exhibit E
to the Assigned Contracts to the extent those terms, covenants, conditions and obligations are to be performed on or after the date of this Agreement.
4. Purchase Contract Not Affected. The obligations of Buyer under this Agreement have no effect on any obligations (whether similar or dissimilar) that Buyer has under the Purchase Contract. The undertakings of Buyer in this Agreement and the Purchase Contract shall be independent of each other. This Agreement shall not in any manner affect, limit, modify or amend the disclaimers, waivers and releases benefiting Seller and the Related Entities set forth in the Purchase Contract.
Exhibit E
IN WITNESS WHEREOF, the parties have executed this Assumption and Assumption Agreement this __ day of _______________, 20[NTD: INSERT__]. ____________________,
a ___________________
By: ________________________________
Name: ________________________________
Title: ________________________________
By: ________________________________
Name: ________________________________
Title: ________________________________
Exhibit E
____________________,
a ___________________
By: ________________________________
Name: ________________________________
Title: ________________________________
By: ________________________________
Name: ________________________________
Title: ________________________________
Exhibit E
Exhibit A to Assignment and Assumption Agreement
Assigned Contracts
Exhibit F-2
EXHIBIT F: RESERVED
Exhibit G
EXHIBIT G
LIST OF SERVICE CONTRACTS
[TO BE PROVIDED]
Exhibit H
EXHIBIT H
OWNER’S AFFIDAVIT
[TO BE ATTACHED]