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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
by and between
TOWN & COUNTRY CENTER, LLC
a California limited liability company
as Seller
and
CITY OF PALM SPRINGS,
a California municipal corporation
as Buyer
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TABLE OF CONTENTS
Page
1. PURCHASE AND SALE. ....................................................................................... 2
2. PURCHASE PRICE. .............................................................................................. 2
2.3 Deposit ...................................................................................................... 2
2.4 Balance ..................................................................................................... 2
3. ESCROW............................................................................................................... 3
3.1 Opening of Escrow .................................................................................... 3
3.2 Escrow Instructions ................................................................................... 3
3.3 Closing Protection Letter ........................... Error! Bookmark not defined.
3.4 Termination/Cancellation........................................................................... 3
4. ACTIONS PENDING CLOSING. ........................................................................... 3
4.1 Due Diligence. ........................................................................................... 3
4.2 Title............................................................................................................ 6
4.3 Governmental Approvals........................................................................... 7
5. DESCRIPTION OF PROPERTY.......................................................................... 15
5.1 The Real Property ................................................................................... 15
5.2 The Intangible Property ........................................................................... 15
6. CONDITIONS TO CLOSING. .............................................................................. 15
6.1 Buyer’s Closing Conditions ..................................................................... 16
6.2 Failure of Buyer’s Closing Conditions ..................................................... 17
7. CLOSING............................................................................................................. 17
7.1 Closing Date............................................................................................ 17
7.2 Deliveries by Seller.................................................................................. 17
7.3 Deliveries by Buyer ................................................................................. 18
7.4 Actions by Escrow Agent......................................................................... 18
7.5 Prorations/Apportionment........................................................................ 19
7.6 Closing Costs .......................................................................................... 20
7.7 Closing Statement ................................................................................... 20
7.8 Deliveries Outside of Escrow .................................................................. 20
8. SELLER’S REPRESENTATIONS AND WARRANTIES. ..................................... 20
8.1 Due Organization .................................................................................... 21
8.2 Seller’s Authority; Validity of Agreements ............................................... 21 55575.18135\45044823.2
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8.3 Financial Condition.................................... Error! Bookmark not defined.
8.4 Sole Owner................................................ Error! Bookmark not defined.
8.5 No Third-Party Rights................................ Error! Bookmark not defined.
8.6 Litigation .................................................................................................. 21
8.7 Zoning and Condemnation ........................ Error! Bookmark not defined.
8.8 Bankruptcy ................................................ Error! Bookmark not defined.
8.9 No Violations of Environmental Laws........ Error! Bookmark not defined.
8.10 Fees .......................................................... Error! Bookmark not defined.
8.11 Government Approvals.............................. Error! Bookmark not defined.
8.12 No Liens .................................................... Error! Bookmark not defined.
8.13 No Other Commitments............................. Error! Bookmark not defined.
8.14 No Default ................................................. Error! Bookmark not defined.
8.15 Endangered Species ................................. Error! Bookmark not defined.
8.16 Wells/Underground Tanks......................... Error! Bookmark not defined.
8.17 Landfill/Waste Disposal Site...................... Error! Bookmark not defined.
8.18 No Other Agreements ............................... Error! Bookmark not defined.
8.19 Property Materials ..................................... Error! Bookmark not defined.
8.20 Survival.................................................................................................... 22
9. BUYER’S REPRESENTATIONS AND WARRANTIES. ...................................... 23
9.1 Due Organization .................................................................................... 23
9.2 Buyer’s Authority; Validity of Agreements ............................................... 23
9.3 Survival.................................................................................................... 23
10. AS-IS...................................................................... Error! Bookmark not defined.
11. RISK OF LOSS. ................................................................................................... 27
11.1 Condemnation ......................................................................................... 27
11.2 Casualty .................................................................................................. 28
12. REMEDIES. ......................................................................................................... 28
12.1 Default by Seller ...................................................................................... 28
12.2 Default by Buyer...................................................................................... 29
13. NO BROKERS. .................................................................................................... 29
14. MISCELLANEOUS PROVISIONS. ...................................................................... 29
14.1 Governing Law; Venue............................................................................ 29
14.2 Entire Agreement .................................................................................... 29
14.3 Modification; Waiver ................................................................................ 30
14.4 Notices .................................................................................................... 30
14.5 Expenses................................................................................................. 31
14.6 Severability.............................................................................................. 31
14.7 Successors and Assigns ......................................................................... 31 55575.18135\45044823.2
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14.8 Counterparts.............................................. Error! Bookmark not defined.
14.9 Multiple Parties........................................................................................ 32
14.10 Headings ................................................................................................. 32
14.11 Time of Essence...................................................................................... 32
14.12 Further Assurances ................................................................................. 32
14.13 Construction ............................................................................................ 32
14.14 Attorneys’ Fees ....................................................................................... 32
14.15 Business Days......................................................................................... 33
14.16 Electronic or Facsimile Copies.. ................ Error! Bookmark not defined. 55575.18135\45044823.2
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this “Agreement”) is made and entered into as of _____________, 2026 (“Agreement Date”), by and between Town & Country Center, LLC, a California limited liability company (“Seller”), and the City of Palm Springs, a California municipal corporation (“Buyer”), for the purpose of setting forth the agreement of the parties and to provide instructions to First American Title Insurance Company (“Escrow Agent”) with respect to the transaction contemplated by this Agreement. The Agreement Date is to be inserted by Escrow Agent pursuant to Section 3.1 below. Seller and Buyer are hereinafter referred to individually as “Party” and collectively “Parties”.
R E C I T A L S
A. Seller is the owner of the Town & Country Center (“Center”). Seller owns a soon to be created parcel of real property located in Palm Springs, Riverside County, California, and identified as a portion of Parcel A of LLA 98-13 (Assessor’s Tax Parcel No. 513-092-009) and Parcel B of LLA 98-13 (Assessor’s Tax Parcel No. 513-092-010) to be more particularly described on Exhibit “A” attached hereto upon receipt of the Title Report (“Land Parcel”), consisting of approximately ±0.95 acres/±41,382 square feet of real property. The Land Parcel will be created from two of the parcels of the Center by a lot line adjustment (“Lot Line Adjustment”) to be completed prior to the Closing Date, as defined herein, by Buyer with the assistance and approval of Buyer. The Land Parcel, together with the “Improvements,” the balance of the “Real Property,” and the “Intangible Property” (each as hereinafter defined), are sometimes collectively referred to in this Agreement as the “Property.”
B. Seller and Buyer acknowledge that the Property is subject to a threat of condemnation by the City of Palm Springs/Buyer. Buyer’s letter to Seller (“Threat of Condemnation Letter”) provides that entry into this Agreement is in lieu of the Buyer’s attempt to acquire the Property through eminent domain. Seller reasonably believes from the Threat of Condemnation Letter and representations of the Buyer and surrounding circumstances that a forced sale is likely to take place. Seller is selling and Buyer is acquiring the Property under the threat or imminence of condemnation, pursuant to the provisions of the Internal Revenue Code (“IRC”), including, without implied limitation, IRC Section 1033.
C. Seller desires to sell, transfer, and convey the Property to Buyer, and Buyer desires to purchase and acquire the Property from Seller, upon and subject to the terms and conditions set forth in this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of 55575.18135\45044823.2
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which are hereby acknowledged, Buyer and Seller hereby agree, and instruct Escrow Agent, as follows:
1. PURCHASE AND SALE.
1.1 Purchase and Sale. Subject to and upon all of the terms and conditions of this Agreement, Seller agrees to sell, transfer, and convey to Buyer, and Buyer agrees to purchase and acquire from Seller, a fee simple interest in the Property.
1.2 Section 1033 and 1031. The foregoing recitals are hereby incorporated by this reference. The Parties agree to cooperate with one another in order to facilitate Seller’s ability to ensure the transaction is documented and consummated under the provisions of the IRC, including, without implied limitation, (i) as an involuntary conversion allowing the Seller to qualify for tax deferral under IRC Section 1033 and/or (ii) one or more legs of a like-kind “exchange” transaction(s) of the sort described in Sections 1031 or 1033 of the IRC. including, without implied limitation, permitting a Party or its assignee to assign its rights to buy or sell the Property hereunder and distribute/receive the proceeds from such purchase/sale to a qualified intermediary (as defined in Treasury Regulation Section 1.1031(k)-1(g)(4)). The obligations under this Section 1 shall survive the Closing, as defined herein, and delivery and recordation of the Deed, as defined herein, and shall not be deemed merged into the Deed notwithstanding the doctrine of merger or any similar legal or equitable theory.
1. PURCHASE PRICE.
The purchase price of the Property (the “Purchase Price”) shall be Four Million and 00/100 U.S. Dollars ($4,000,000). The Purchase Price shall be payable as follows:
2.1 Deposit. Within three (3) “Business Days” (as hereinafter defined) of the “Agreement Date” Buyer shall deposit into “Escrow” (as hereinafter defined) the sum of Two Hundred Thousand U.S. Dollars ($200,000), which together with any and all interest and dividends earned thereon, shall hereinafter be referred to as the “*Deposit*.”
Unless this Agreement has been terminated, on the day after the Due Diligence Termination Date, the Deposit will become non-refundable, except in the event of Seller’s default or failure of Buyer’s Closing Conditions, but applicable to the Purchase Price. One Hundred and 00/100 Dollars ($100.00) (the “Contract Consideration”) of the *Deposit* is not refundable to Buyer and in the event of termination of this Agreement is payable to Buyer in consideration of this Agreement.
1.2 Balance. At the Closing, Buyer shall deposit into Escrow the balance of the Purchase Price over and above the *Deposit*, net of all prorations and adjustments as provided in this Agreement.
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2. ESCROW.
3.3 Opening of Escrow. Buyer and Seller shall cause an escrow (“Escrow”) to be opened with Escrow Agent by delivery to Escrow Agent of a fully executed copy of this Agreement. Escrow Agent shall promptly deliver to Buyer and Seller written notice of the “Agreement Date.” As used herein, the term “Agreement Date” means the day on which Escrow Agent receives a fully executed copy of this Agreement and has notified each party in writing of such receipt. Escrow Agent is instructed to insert the Agreement Date in the blank provided in the first sentence of page 1 of this Agreement.
3.4 Escrow Instructions. This Agreement shall constitute escrow instructions to Escrow Agent as well as the agreement of the parties. In the event that any other escrow instructions are requested of the parties and the terms thereof conflict or are inconsistent with any provision of this Agreement or any deed, instrument, or document executed or delivered in connection with the transaction contemplated hereby, the provisions of this Agreement, or such deed, instrument, or document shall control.
Escrow Agent is hereby appointed and designated to act as Escrow Agent and instructed to deliver, pursuant to the terms of this Agreement, the documents and funds to be deposited into Escrow as herein provided.
3.5 Termination/Cancellation. Upon any termination or cancellation (the terms being used interchangeably herein) by either of the parties hereto as expressly allowed under this Agreement (including, without limitation, any deemed termination or cancellation), (a) Buyer shall return to Seller the Property Materials; (b) the *Deposit* and Contract Consideration shall be delivered to the party that this Agreement specifies is entitled thereto; (c) all documents required to be delivered to Seller by Buyer pursuant to Section 4.1.2.3(b) below, (d) all other documents, instruments, and funds delivered into Escrow shall be returned to the party that delivered the same into Escrow, and (e) the parties shall thereafter be relieved from further liability hereunder, except with respect to any obligations under this Agreement that are expressly stated to survive any termination or cancellation of this Agreement. A copy of any notice of termination allowed under this Agreement shall be sent to Escrow Agent by the party electing to terminate.
4. ACTIONS PENDING CLOSING.
4.1 Due Diligence.
4.1.1 Property Materials.
4.4.1.1 On or before five (5) Business Days after the Agreement Date (the “Document Delivery Date”), Seller shall, at Seller’s sole cost and expense, provide to Buyer and Buyer’s counsel true, correct, and complete copies of all of the following documents in Seller's possession (collectively, the “Property Materials”):
(a) Surveys of the Property;
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(b) Environmental reports; and
(c) All leases, occupancy agreements, operating agreements, and licenses that affect the Property;
4.1.1.2 Seller shall promptly furnish to Buyer for its review any of the items described in Section 4.1.1.1 that may come into Seller’s possession or control from and after the Document Delivery Date.
4.1.2 Buyer’s Diligence Tests.
4.1.2.1 At all reasonable times from the Agreement Date to the Closing (or earlier termination of this Agreement), Buyer and its employees, agents, consultants, and contractors (collectively, “Buyer’s Consultants”) shall be entitled, at Buyer’s sole cost and expense, to: (a) enter onto the Real Property to perform any inspections, investigations, studies, and tests of the Real Property (including, without limitation, physical, engineering, soils, geotechnical, and environmental tests) that Buyer deems reasonable; (b) review all Property Materials; and (c) investigate such other matters pertaining to the Property as Buyer may desire. Buyer’s entry onto and inspections of the Real Property in accordance with the terms of this Agreement shall not damage the Real Property in any material respect. Any entry by Buyer onto the Real Property shall be subject to, and conducted in accordance with, all applicable laws.
Before any entry by Buyer or Buyer’s Consultants onto the Property, Buyer shall provide Seller with a Certificate of Insurance naming Seller as the certificate holder (and each of Buyer and Seller as additional insureds) and with an insurer licensed to do business in the State of California, or with City to self-insure, with insurance limits and coverage in the amount as follows (which such insurance shall be maintained by Buyer’s Consultants on Buyer’s behalf at all times until the earlier of the Closing hereunder or termination of this Agreement): (A) comprehensive general liability insurance in commercially reasonable amounts, but not less than a combined single limit of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate limit, and (B) umbrella liability insurance in an amount not less than Two Million Dollars ($2,000,000), each with commercially reasonable coverage insuring, without implied limitation, bodily injury, property damage, contractual liability and personal injury liability (whether arising out of Buyer’s acts or the acts of any of Buyer’s Consultants). Buyer’s Consultants shall also carry workers’ compensation insurance for all of their employees that enter the Property, as required by applicable law. All of such entries upon the Property shall be at reasonable times during normal business hours approved by Seller to avoid conflicts with Seller’s other activities. Before every requested entry by Buyer or Buyer’s Consultants onto the Property, Buyer shall provide Seller with at least twenty-four (24) hours prior notice of Buyer’s requested access times (which notice may be given by email to Michael Braun at [email protected]), and Seller will use reasonable efforts to accommodate Buyer’s access in coordination with Seller’s activities on the Property.
Seller or Seller’s agent will have the right to accompany Buyer during Buyer’s entry onto, and any activities performed by Buyer on, the Property. Neither Buyer nor any of Buyer’s Consultants shall contact any employees of Seller without the prior written consent of 55575.18135\45044823.2
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Michael Braun, which consent Seller may withhold in Seller’s sole, absolute and subjective discretion.
4.1.2.2 Buyer indemnifies, and will protect, defend with counsel chosen by Seller, and hold Seller and Seller’s members, partners, officers, directors, shareholders, managers, agents, employees, and representatives (each an “Indemnified Party” and collectively, the “Indemnified Parties”) harmless from, for, and against any and all claims (including, without limitation, claims for mechanics’ liens or materialmen’s liens), causes of action, demands, obligations, losses, damages, liabilities, judgments, costs, and expenses (including, without limitation, reasonable attorneys’ fees, charges, and disbursements) (collectively, “Claims”) in connection with or arising out of any inspections of the Real Property carried on by or on behalf of Buyer pursuant to the terms hereof; provided, however, that Buyer shall have no responsibility or liability for (a) any act or omission of any Indemnified Party; (b) any adverse condition or defect on or affecting the Property not caused by Buyer or its employees, agents, consultants, or contractors but discovered or impacted during their inspections including, without limitation, the pre-existing presence or discovery of any matter (such as, but not limited to, any “Hazardous Substance” (as hereinafter defined)); (c) the results or findings of any inspection; and/or (d) Buyer’s election to terminate this Agreement as a result of any inspection pursuant to this Agreement.
4.1.2.3 In the event that this Agreement is terminated by Buyer, (a) Buyer shall repair any material damage to the Property caused by its entry thereon and restore the same to substantially the same condition in which it existed prior to such entry; and
(b) Buyer shall provide Seller with copies of any permits and third party reports obtained by Buyer (but without obligation to obtain any such reports) such as soils reports, geotechnical reports, surveys, site plans, construction drawings and documents, and CAD drawings, but without warranty or representation as to the accuracy or quality thereof, subject to the rights of such third parties, and only to extent permitted by such third parties.
4.1.2.4 The provisions of this Section 4.1.2 shall survive the Closing or the earlier termination of this Agreement.
4.1.3 Buyer’s Termination Right. Unless Buyer indicates its satisfaction and/or waiver of the Due Diligence condition described in this Section 4.1 by delivering written notice of such satisfaction and/or waiver to Seller and Escrow Agent on or prior to thirty (30) after the Agreement Date (the “Due Diligence Termination Date”), Buyer shall have the right at any time on or before the Due Diligence Termination Date to terminate this Agreement by delivering a written notice of such termination to Seller and Escrow Agent if Buyer determines in its sole and absolute discretion that the Property is not acceptable or desirable to Buyer for any reason or no reason. In the event Buyer fails to timely deliver written notice of such satisfaction and/or waiver, or of termination, then this Agreement and the Escrow shall 55575.18135\45044823.2
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be automatically deemed terminated at 11:59 PM Pacific Time, on the Due Diligence Termination Date. In the event this Agreement is terminated in accordance with this Section 4.1.3, on or before the Due Diligence Termination Date, then the *Deposit*, less the Contract Consideration, shall be immediately returned to Buyer and the Contract Consideration shall be paid to Seller.
4.2 Title.
4.2.1 Title Report and Survey. As soon as reasonably possible but in no event later than five (5) business days after the Agreement Date, (a) Buyer shall cause First American Title Insurance Company (“Title Insurer”) to issue and deliver to Buyer and Seller (i) a current commitment for an ALTA extended coverage owner’s policy of title insurance for the Real Property (the “Title Report”) and (ii) legible copies of all documents referenced therein; and (b) Buyer shall order an ALTA/NSPS survey for the Property. The Title Report, documents referenced therein and the survey are referred to herein as the “Title Documents”.
4.2.2 Buyer’s Review of Title. Buyer shall have until fifteen (15) days after receipt of the Title Documents to notify Seller in writing of any objection that Buyer may have to any matters reported or shown in the Title Documents or any amendments or updates thereof (a “Buyer’s Objection Letter”). However, if any such amendments or updates are received by Buyer after or within ten (10) Business Days before the Due Diligence Termination Date, Buyer shall have an additional five (5) Business Days following Buyer’s receipt of such amendment or update and copies of all documents referenced therein to notify Seller of objections to matters shown on any such amendment or update that were not disclosed on the previously delivered Title Documents). Matters shown in Schedule B, Part Two of the Title Report (or any amendments or updates thereof) as exceptions that are not timely objected to by Buyer as provided above will be deemed to be “Permitted Exceptions.” Seller shall cooperate with Buyer to eliminate title exceptions objected to by Buyer, but except as set forth in the last two (2) sentences of this Section 4.2.2, Seller shall have no obligation to cure or correct any matter objected to by Buyer. On or before the fifth (5th) Business Day following Seller’s receipt of Buyer’s Objection Letter, Seller shall give written notice to Buyer and Escrow Agent (“Seller’s Response”) that Seller will either (i) cause Title Insurer to remove or insure over any matters objected to in Buyer’s Objection Letter or (ii) not cause Title Insurer to remove or insure over any matters objected to in Buyer’s Objection Letter. If Seller fails to deliver Seller’s Response within the period set forth above, it shall be deemed an election by Seller to cause Title Insurer to so remove or insure over such objections. If Seller elects not to cause Title Insurer to so remove or insure, or if Buyer determines, in its sole discretion, that any proposed endorsement for or insurance over an objected matter is unsatisfactory, then Buyer may elect, by delivering written notice of such election to Seller and Escrow Agent on or before the fifth (5th) Business Day following Buyer’s receipt of Seller’s Response, as provided above, to: (i) terminate this Agreement, in which case the *Deposit* shall be immediately returned to Buyer; or (ii) proceed with this transaction, in which event those objected to exceptions or matters that Seller has not elected to cause Title Insurer to so remove or insure shall be deemed to be 55575.18135\45044823.2
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Permitted Exceptions. In the event that Buyer fails to make such election on a timely basis, then Buyer shall be deemed to have elected to terminate this Agreement in accordance with the preceding clause (i). Notwithstanding anything else stated herein, in all events, regardless of whether Buyer has given notice of objection as stated above, Seller shall be obligated to satisfy and otherwise remove and pay in full all monetary and financial liens, encumbrances and assessments in existence as of the Agreement Date or incurred by Seller on or before Closing hereunder, all taxes and assessments (other than current taxes not yet due) and any additional encumbrances incurred by Seller after the Agreement Date in violation of any provision of this Agreement, and Buyer need not object to any such matters. Seller shall pay all delinquent taxes and assessments at Closing and shall pay when due all charges for services or goods obtained by Seller or any affiliate of Seller related to the Property.
4.2.3 Condition of Title at Closing. Upon the Closing, Seller shall sell, transfer, and convey to Buyer fee simple title to the Real Property by a duly executed and acknowledged grant deed in the form of Exhibit “B” attached hereto (the “Deed”), subject only to the Permitted Exceptions.
Governmental Approvals. Zoning changes and other governmental approvals described below may be necessary for Buyer's intended development and use of the Property as a municipal fire station. If required as determined by Buyer, Buyer may undertake efforts at Buyer’s sole cost and expense to obtain all necessary approvals from all applicable governmental authorities, quasi-governmental authorities, and/or utility providers and regulators (collectively, “Governmental Authorities”) of the following in form and substance acceptable to Buyer, including stipulations and requirements associated therewith, in the exercise of Buyer’s sole discretion: (a) approval of the Lot Line Adjustment, (b) full CEQA approvals/notification period as required by City of Palm Springs (“City”) staff (the “CEQA APPROVAL”); (c) any rezoning of the Property to permit Buyer’s intended development of the Property (the “Rezoning”); and (d) final approval by all applicable Governmental Authorities of all agreements and arrangements necessary for providing to the Land Parcel all utility services necessary or desirable for Buyer’s intended development of the Property (the “Utility Arrangements”). The final approvals by all applicable Governmental Authorities of the Lot Line Adjustment, Rezoning, if any, CEQA Approval, Improvement Plans, and the Utility Arrangements in form and substance satisfactory to Buyer in the exercise of Buyer’s sole discretion, with all appeal periods applicable thereto having expired without appeals filed or if filed such appeals having been denied or with any changes as a result thereof being acceptable to Buyer in the exercise of Buyer’s sole discretion and there being no further right of appeal, are referred to herein as the “Governmental Approvals.” Buyer may pursue the Governmental Approvals and conduct all negotiations with the Governmental Authorities, all at the sole expense of Buyer. Seller shall cooperate with Buyer in its efforts to obtain the Governmental Approvals and shall timely execute any and all applications, consents, and other documents reasonably requested by Buyer in connection therewith.
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3. TERMS AND CONDITIONS.
5.1 Lot Line Adjustment. Buyer has requested that the Land Parcel include the courtyard (“Courtyard”) and the grass area (“Grass Area”) in the Courtyard and (ii) the sidewalk on the south side of what is commonly known as the Zelda’s building (“Zelda’s Building”) as depicted on Exhibit “A-1” attached hereto. Buyer acknowledges Seller will retain the sidewalk on the west side of the Grass Area for access to Seller’s parking lot on the south side of the Zelda’s Building (“South Parking Lot”). Seller will prepare the Lot Line Adjustment at Seller’s sole expense and submit the application to the City for review and approval.
5.2 Liability following Close of Escrow. Buyer will be solely liable for any liability associated with use of the Property. Buyer indemnifies, and will protect, defend with counsel chosen by Seller, Seller’s officials, officers, agents, employees, and representatives (each an “Indemnified Party” and collectively, the “Indemnified Parties”) and hold Seller and Seller’s Indemnified Parties harmless from, for, and against any and all Claims for injury or loss occurring on the Property, including, without implied limitation, Claims by those who used Seller’s Newly Created Adjacent Parcel for ingress and egress to the Property, and/or in connection with or arising out of construction of the improvements of the Courtyard, and the use, occupancy and/or management of the Property by the Buyer, its management company(ies), operators, and/or tenants of the Property; provided, however, that Buyer shall not be responsible for the tortious acts of any third party(ies).
Seller will be solely liable for any liability associated with use of the Seller’s Newly Created Adjacent Parcel. Seller indemnifies, and will protect, defend with counsel chosen by Buyer, and hold Buyer and Buyer’s Indemnified Parties harmless from, for, and against any and all Claims for injury or loss occurring on the Seller’s Newly Created Adjacent Parcel; provided, however, that Seller shall not be responsible for the tortious acts of any third party(ies).
5.3 Lease of Grass Area. On the Closing Date, Seller has the option to lease the Grass Area for use as a patio serving as a restaurant or coffee shop within any building in the Center. If and when Seller exercises its option to lease the Grass Area, then the lease of the Grass Area will be pursuant to a written lease agreement and the rent for the Grass Area will be offset by the rent to be paid by City for the 11 Parking Spaces.
5.4 Affordable Housing Credit: The buildings at 171 and 181 N. Indian Canyon Drive (collectively, “Apartment Buildings”) currently contain six (6) apartment units.
Buyer has requested that Seller demolish the Apartment Buildings prior to the Closing Date. Provided Buyer issues a demolition permit to Seller for the Apartment Buildings, Seller will demolish the Apartment Buildings prior to the Closing Date; provided Buyer acknowledges the affordable housing credit of 6 units is assignable and Seller and its assignees will receive and the ability to transfer an affordable housing credit of 6 units (credited at low or very low income categories and applicable to any category of affordable housing requirement(s)) to any residential development in the 55575.18135\45044823.2
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City of Palm Spring (“City”) owned by Seller and/or its assignees where affordable units may be required by the City (“Transferable 6-Unit Affordable Housing Credit”).
5.5 Demolition.
5.4.1 Provided Buyer issues a demolition permit to Seller for the Apartment Buildings and the Transferable 6-Unit Affordable Housing Credit, Seller will demolish prior to the Closing Date the Apartment Buildings at its sole expense. Demolition will include removal of the concrete foundations under the existing Apartment Buildings and asphalt in the North parking lot, as depicted on Exhibit A-1, application of soil stabilizer on the dirt, and installation of a chain link fence with screening in every other panel for security (“Screening”) around the demolition site. The completed demolished site will be provided in a graded condition with soil stabilization products applied on the finish surface and the construction fencing set during the demolition process to remain on the site. Buyer will process the Certificate of Appropriateness application, with no fee/charge to be paid by Seller, and present the application to the Historic Site Preservation Board (“HSPB”) and will facilitate the demolition permit application and issuance of the demolition permit. Buyer will be responsible for dust control and maintenance of the Screening following completion of the demolition work, and will remain responsible for any future improvements, maintenance and repairs for the Property.
5.4.2 Buyer will issue to Seller the demolition permit for the Apartment Buildings no later than eleven (11) Business Days after the date where both of the following shall have occurred: (a) Seller abates any asbestos that an asbestos assessment requires to be abated prior to demolition; and (b) the Certificate of Appropriateness has been issued by the HSPB (or, if appealed/called up, the City Council).
5.4.3 In accordance with California Labor Code section 1781(a)(2), Seller acknowledges that the City has advised the Seller and persons associated with the Seller that laborers employed relative to the work to be performed pursuant to Section 5.4.1( “Work”) must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to Labor Code Sections 1720, et seq.
Seller will assume the responsibility and be solely responsible for payment of the prevailing per diem wage rate for their labor classification.
5.4.4 Seller, on behalf of itself, its successors, and assigns, waives and releases the City from any right of action that may be available to it pursuant to California Labor Code Sections 1726 and 1781 with respect to the Work described in this Section 5.4 and payment of prevailing wages as described in this Section 5.4.3. Seller 55575.18135\45044823.2
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acknowledges the protections of Civil Code Section 1542 relative to the waiver and release contained in this section 5.4.4, which reads 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, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
BY INITIALING BELOW, THE SELLER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 5.4.4 WITH RESPECT TO THE WORK DESCRIBED IN THIS SECTION 5.4 AND PAYMENT OF PREVAILING WAGES AS DESCRIBED IN SECTION 5.4.3.
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Seller's Initials
Seller’s obligations under this Section 5.4.6 shall survive the Close of Escrow, notwithstanding the doctrine of merger or any similar legal or equitable theory.
5.6 Parking Spaces. On the condition that the Closing occurs, Seller will lease to Buyer eleven (11) spaces (“11 Parking Spaces”) in the South Parking Lot for a term of five (5) years from the Closing Date at the cost of $125 per parking space per month.
Buyer will not be required to pay Seller the rental fees for the 11 Parking Spaces for the first twelve (12) months after the Closing Date. Buyer will have the option to renew the lease term for the 11 Parking Spaces for two (2) additional 5-year terms at the end of the preceding 5-year term, with annual 3% increases to the rent for the 11 Parking Spaces. Notwithstanding the provisions of Section 5.2, Buyer (as the tenant in possession) shall be solely liable for any liability associated with the 11 Parking Spaces.
Buyer shall indemnify, and will protect, defend with counsel chosen by Seller, and hold Seller and Seller’s Indemnified Parties harmless from, for, and against any and all Claims for injury or loss occurring on the 11 Parking Spaces; provided, however, that Buyer shall not be responsible for the tortious acts of any third parties.
5.7 New Trash Enclosure and Block Wall. Seller will be allowed to construct a new masonry wall to separate the north side of Seller’s adjacent parking lot from the South Parking Lot, as depicted on Exhibit A-1, and Buyer will expedite the wall permit for this separating wall. Buyer will expedite permitting for the new trash enclosure to replace the existing enclosure that is located behind the Apartment Buildings. The new trash enclosure will be located in the South Parking Lot, as depicted on Exhibit A-1, and will require the removal of approximately two (+/-2) parking spaces from the South Parking Lot.
5.8 Access Sharing.
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5.8.4 Seller has, retains and reserves facto common access, ingress, egress for utilities for the Center (collectively, ”De Facto Access”) that may be impacted and/or disrupted by the Lot Line Adjustment. The De Facto Access has not been reduced to writing and recorded in the in the Official Records, as defined herein, however, Seller retains and reserves the De Facto Access rights to and through the Property. Notwithstanding Buyer’s De Facto Access to potions of the Center, Buyer acknowledges Buyer does not have access rights to and through the balance of the Center retained by Seller (“Newly Created Adjacent Parcel”) that have been reduced to writing and recorded in the in the Official Records. If a party to this Agreement (“Party”) desires to reduce to writing any aspect of the De Facto Access, then the Party requesting (“Requesting Party”) will seek the approval of the other Party (“Responding Party”). The Responding Party will have no obligation to consent to request to reduce to writing the De Facto Access. The Requesting Party will be solely responsible for preparation of the requested documentation and completion of all associated improvements and/or modification of improvements. If the Responding Party approves the requested documentation, then the Requesting Party will be responsible for (i) recording of the documentation in the Official Records, and (ii) all associated improvements and/or modification of improvements at the Requesting Party’s sole cost and expense. The Requesting Party acknowledges the Responding Party will have no obligation for any cost or expense associated with the documentation of access, including, without implied limitation, modification of any improvement.
5.9 No Liability for Access. If person accesses the Center on one Party’s (“Access Party”) parcel and is subsequently injured on the other Party’s parcel (“Responsible Party”), then the Access Party will have no liability resulting from the use of common access on the Center, and the Responsible Party indemnifies, and will protect, defend with counsel chosen by the Access Party, and hold the Access Party and Access Party’s Indemnified Parties harmless from, for, and against any and all Claims in connection with or arising out of any person using the Access Party’s parcel to access the Responsible Party’s parcel.
5.10 ADA. If a Party makes a change to its parcel (“Modifying Party”) that results in improvements that must be made to comply the Americans with Disabilities Act (“ADA”), then the Modifying Party will be solely responsible for all costs and expenses, including, without implied limitation, all improvements, and modification of any improvement, that must be made to comply the ADA, including, without implied limitation, all associated improvements made to comply the ADA on the other Party’s (“Other Party”) parcel. In the interest of clarity, if for example the Modifying Party makes a change to a ramp that is on the Modifying Party’s parcel that the ADA requires terminate on the Other Party’s parcel (e.g., for a reduced slope of the ramp), then the Modifying Party will (i) seek a license from the Other Party and (ii) be responsible for all costs of the ADA improvements and/or modifications on both the Modifying Party’s parcel and the Other Party’s parcel.
5.11 Rental to On the Mark: One of Seller’s current tenants, On the Mark (“Tenant”), is currently leasing storage space in the building at 174 N. Indian Canyon 55575.18135\45044823.2
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that on the Closing Date will be owned by Buyer. Buyer acknowledges Tenant be allowed to continue to use the leased space until such time as another space can be located by Tenant or until the City needs to vacate the 174 N. Indian Canyon building for construction, whichever is sooner. Seller will manage the lease of the space to Tenant at no cost to the City, and will forward to Buyer Tenant’s lease payment in any amount equal to Seven Hindered Dollars ($700).
5.12 Well in the Desert: Seller has provided notice to terminate the occupancy of current the tenant, Well in the Desert, effective May 30, 2026. City acknowledges Well in the Desert may refuse to vacate the premises that may require eviction proceedings. Said proceedings may take 90 days or longer to complete before demolition activities can commence.
5.13 Utility Access. Easements for existing utilities, including, without implied limitation, electricity, water, sewer, natural gas, cable will be addressed as needed. In the unforeseen event that development of the Center requires utility relocation, the Party requiring said relocation(s) will be solely responsible for all the costs associated with the relocation, including, without implied limitation, recordation of easements or preparation of licenses, plans, surveys and construction expenses.
5.14 Wave Structure Overhang.
5.14.1 There is a Wave Structure (“Wave Structure”) Overhang (“Overhang”) that will remain located, after the Lot Line Adjustment, on both the Property and the Newly Created Adjacent Parcel. Buyer will be solely responsible for all maintenance, repair and restoration for the portion of the Overhang located on the Property. Seller will be solely responsible for all maintenance, repair and restoration for the portion of the Overhang located on the Newly Created Adjacent Parcel.
5.14.2 If however the maintenance, repair and restoration of the Overhang requires that both parties to participate jointly, then Buyer and Seller will cooperate and prorate the costs that must be shared, e.g., for cross-property line structural support. For only the combined costs and expenses that cross the property line (collectively, “Cross-line Costs”), the Cross-line Costs will be prorated based on the percentage of the Cross-line Costs for the Overhang located on the respective parcel. In the interest of clarity, if 60% of the Cross-line Costs is for the portion of the Overhang located on the Property, and 40% of the Cross-line Costs is for the portion of the Overhang located on the Newly Created Adjacent Parcel, then Buyer will be responsible for 60% of the Cross-line Costs and Seller for 40% of the Cross-line Costs.
5.15 Separate and Distinct Parcels. Seller understands that the HSPB has asserted that one or more of the buildings have exteriors and interiors are part of the City’s cultural and architectural heritage, including, without implied limitation, the Zelda Building, and portions of the Center were designed to “flow” from one portion of a building to another portion of the building. The Parties acknowledge that, with the Lot Line Adjustment, that there will be two (2) separate and distinct parcels. If Buyer decides to rehabilitate the (i) Zelda Building and/ or (ii) the portion of the Wave Structure 55575.18135\45044823.2
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on the Property, then as the Center would, following the Close of Escrow, be owned by two separate owners, the Parties acknowledge that neither the decision in (i) or (ii) above will, in and of itself, trigger any obligation by Seller to perform additional and/or new historic rehabilitation work on Seller’s Newly Created Adjacent Parcel, for example and including, including, without implied limitation, restoring or maintaining improvements that are designed to “flow” from one portion of a building to another portion of the building. Any additional and/or new rehabilitation, or maintenance, on the Seller’s Newly Created Adjacent Parcel will be governed solely by then-existing applicable laws.
5.16 Right of First Refusal: When approached by Buyer, Seller was unwilling to sell the Property to Buyer. Buyer’s staff was prepared to initiate the process that could have led to Buyer’s adoption of a resolution of necessity, which is the last step prior to the initiation of a formal condemnation action. In order to avoid the conflict and litigation related to the threatened condemnation action and based solely on Buyer’s Letter to Seller that entry into this Agreement is in lieu of the City’s attempt to acquire the Property through eminent domain, Seller has entered into this Agreement and agreed to sell the Property to Buyer at a below-market sale price. As consideration for Seller’s agreement to sell the Property at a below-market sale price, Buyer grants Seller a Right of First Refusal if the City at any time elects to sale the Property.
5.16.1 Buyer agrees not to sell, transfer, exchange, or grant an option to purchase, or otherwise dispose of the Property or any part of, or interest in, the Property without first offering the Property to Seller on the terms and conditions set forth in this Agreement. As used in this Agreement, the term “sell” includes a ground lease of the Property with primary and renewal terms of more than 15 years in the aggregate.
5.16.2 When Buyer receives from a third party (“Third-Party Offeror”) a bona fide offer to purchase the Property, or a part of it or an interest in it, that Buyer desires to accept, Buyer must give Seller written notice (“Notice”) of the price, terms, and conditions of the offer and deliver a copy of the executed contract evidencing the offer (“Offer”) to Seller.
5.16.3 When Seller receives the Notice and a copy of the Offer, Seller will have the prior and preferential right to purchase the Property (or the part of or interest in the Property covered by the Offer, as the case may be) at the same price and on the same terms and conditions as are contained in the Offer, except that if Seller exercises the right of first refusal by electing to purchase the Property then (1) the closing of the transaction contemplated by the Offer will take place no earlier than 90 days after the date that Seller elects to exercise the right of first refusal, and (2) Seller will receive a credit against the sale price of the Property in an amount equal to any brokerage commission that Buyer may save by selling the Property to Seller rather than the Third-Party Offeror.
5.16.4 Seller will have 30 days from the date that Seller receives the Notice and a copy of the Offer to notify Buyer whether Seller elects to purchase the 55575.18135\45044823.2
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Property under the terms of the Offer. If Seller elects to exercise its right to purchase the Property, then, in addition to giving Buyer written notice of its election within the 30-day period, Seller also must tender an amount equal to the earnest-money deposit, if any, specified in the Offer, which will be held and used in accordance with the terms of the Offer.
5.16.5 If Seller fails to timely exercise its right to purchase the Property under the terms of this Agreement, then Buyer will be entitled to sell the Property according to the terms of the Offer to the Third-Party Offeror, subject to the terms of section 4.5.9. If the sale contemplated by the Offer is completed, this Agreement will terminate and be of no further force or effect.
5.16.6 If Seller fails to timely exercise its right to purchase the Property under the terms of this Agreement, and for any reason Buyer does not sell or convey the Property to the Third-Party Offeror (i) on the same terms contained in the Offer, or (ii) fails to close within six months of Seller’s election not to purchase pursuant to the Offer, then Buyer must resubmit the Offer as well as any other offer to Seller before selling the Property, and all such offers will be subject to Seller’s right of first refusal under this Agreement.
5.16.7 If Seller elects to purchase the Property and any element of the consideration specified in the Offer is not cash or deferred purchase money (e.g., an exchange of property or performance of covenants other than the payment of money), then Seller may elect to have the nonmonetary consideration appraised by an independent Member of the Appraisal Institute (MAI) appraiser and pay Buyer the cash value of the nonmonetary consideration in lieu of the performance of the nonmonetary obligations specified in the Offer.
5.16.8 Concurrently with and as a condition to closing, the parties will record on the title of the Property a Memorandum of Right of First Refusal (“Memorandum of Right of First Refusal”) with the terms and conditions of this Right of First Refusal in the official records of Riverside County, California, to give notice to the public of the rights of Seller under this Agreement. The term of this Right of First Refusal commences on the date of this Agreement and will not terminate unless and until Seller has elected not to exercise its right of first refusal. Seller will cooperate in providing Buyer with any instruments that Buyer reasonably may require for the purpose of removing from the public record any cloud on title to the Property attributable in any manner to the recorded Memorandum of Right of First Refusal and/or the grant or existence of this right of first refusal.
5.16.9 Survival. The obligations under this Section 5 shall survive the Closing and delivery and recordation of the Deed and shall not be deemed merged into the Deed, notwithstanding the doctrine of merger or any similar legal or equitable theory.
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4. DESCRIPTION OF PROPERTY.
6.1 The Real Property. As used in this Agreement, the term “Real Property” shall mean, collectively, all of Seller’s right, title, and interest in and to: (a) the Land Parcel; (b) all buildings, structures, and improvements thereon, if any (the “Improvements”); and (c) all of the rights, privileges, appurtenances, hereditaments, easements, reversions, and remainders pertaining to or used in connection with the Land Parcel and/or any of the Improvements.
6.2 The Intangible Property. As used in this Agreement, the term “Intangible Property” shall mean all of Seller’s right, title, and interest in and to intangible property owned by Seller or used by Seller exclusively in connection with all or any portion of the Real Property, including, without limitation, all of Seller’s right, title, and interest, if any, in and to: (a) all books, records, reports, test results, environmental assessments, if any, as-built plans, specifications, and other similar documents and materials relating to the use, operation, maintenance, repair, construction, or fabrication of all or any portion of the Real Property;; and (b) all transferable guarantees, warranties, and utility contracts relating to all or any portion of the Real Property.
7. CONDITIONS TO CLOSING.
7.2 Seller’s Closing Conditions
The obligation of Seller to complete the transaction contemplated by this Agreement is subject to the following conditions precedent (and conditions concurrent, with respect to deliveries to be made by Buyer at the Closing) (“Seller’s Closing Conditions”), which conditions may be waived, or the time for satisfaction thereof extended, by Seller only in a writing executed by Seller:
Subdivision. Buyer acknowledges that the Land Parcel to be sold to Buyer is not a current legal lot under the Subdivision Map Act ( Government Code §§66410– 66499.41) (“Subdivision Map Act”). During escrow, the Land Parcel will be created by a lot line adjustment approved by the City Engineer with the assistance and approval of Buyer. Buyer acknowledges that Government Code Section 66499.32 may apply to this Agreement. In the event that the Land Parcel is not approved under the Subdivision Map Act prior to the Closing Date, then Buyer acknowledges that this transaction is terminated and Buyer hereby expressly and unconditionally waives and releases Seller and all of its members, parents, subsidiaries, affiliates and partnerships, officers, directors, property managers, asset managers, managers, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively the “Released Parties”) from any and all rights and claims against Seller and /or the Released Parties with respect to the Property, including, without implied limitation, related to compliance with the Subdivision Map Act.
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7.3.5.1 Buyer’s Due Performance. All of the representations and warranties of Buyer set forth in this Agreement shall be true, correct, and complete in all material respects as of the Closing Date, and Buyer, on or prior to the Closing Date, shall have complied with and/or performed all of the obligations, covenants, and agreements required on the part of Buyer to be complied with or performed pursuant to the terms of this Agreement on or prior to the Closing.
7.4 Failure of Seller’s Closing Conditions. If any of Seller’s Closing Conditions described in Section 7.1 above have not been fulfilled within the applicable time periods, Seller may:
7.4.1 Waive the unfulfilled Seller’s Closing Condition and close Escrow in accordance with this Agreement, without adjustment or abatement of the Purchase Price;
7.4.2 Extend the Closing until the tenth (10 th) Business Day after Seller’s receipt of written notice and evidence that Seller’s Closing Conditions are satisfied; or
7.4.3 Terminate this Agreement by written notice to Buyer and Escrow Agent, in which event Seller shall be entitled to pursue its rights and remedies pursuant to the terms of Section 12.2.Buyer’s Closing ConditionsThe obligation of Buyer to complete the transaction contemplated by this Agreement is subject to the following conditions precedent (and conditions concurrent, with respect to deliveries to be made by Seller at the Closing) (the “Buyer’s Closing Conditions”), which conditions may be waived, or the time for satisfaction thereof extended, by Buyer only in a writing executed by Buyer:
7.5.1 Title. Title Insurer shall be irrevocably and unconditionally prepared and committed to issue to Buyer (with an effective date not earlier than the Closing Date), an ALTA Extended Owner’s Policy of Title Insurance, Form 2006, in favor of Buyer for the Real Property (a) showing fee title to the Real Property vested in Buyer, (b) with liability coverage in an amount equal to the Purchase Price, (c) with those endorsements reasonably requested by Buyer (provided that such endorsements are available in the State of California and are paid for by Buyer), and (d) containing no exceptions other than the Permitted Exceptions (the “Owner’s Title Policy”).
7.5.2 Seller’s Due Performance. All of the representations and warranties of Seller set forth in this Agreement shall be true, correct, and complete in all material respects as of the Closing Date, and Seller, on or prior to the Closing Date, shall have complied with and/or performed all of the obligations, covenants, and agreements required on the part of Seller to be complied with or performed pursuant to the terms of this Agreement on or prior to the Closing. 55575.18135\45044823.2
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7.6 Failure of Buyer’s Closing Conditions. If any of Buyer’s Closing Conditions described in Section 7.3 above have not been fulfilled within the applicable time periods, Buyer may:
7.6.4 Waive the unfulfilled Buyer’s Closing Condition and close Escrow in accordance with this Agreement, without adjustment or abatement of the Purchase Price;
7.6.5 Extend the Closing until the tenth (10 th) Business Day after Buyer’s receipt of written notice and evidence that Buyer’s Closing Conditions are satisfied; or
7.6.6 Terminate this Agreement by written notice to Seller and Escrow Agent, in which event (a) the *Deposit* (less the Contract Consideration) shall be immediately returned to Buyer, and (b) to the extent that the failure of any applicable Buyer’s Closing Condition is caused by a Seller default, Buyer shall be entitled to pursue its rights and remedies pursuant to the terms of Section 12.2.
8. CLOSING.
8.1 Closing Date. Subject to the provisions of this Agreement, the Closing shall take place on or before the date which is three (3) Business Days after the Lot Line Adjustment is recorded that will occur no later than December 31, 20260F
1. As used herein, the following terms shall have the following meanings: (a) the “Closing” shall mean the recordation of the Deed in the official records of Riverside County, California (the “Official Records”); and (b) the “Closing Date” shall mean the date upon which the Closing actually occurs.
8.2 Deliveries by Seller. On or before the Closing Date, Seller, at its sole cost and expense, shall deliver or cause to be delivered into Escrow the following items, documents, and instruments, each dated as of the Closing Date, fully executed and, if appropriate acknowledged, and, if applicable, in proper form for recording:
8.2.1 Deed. The Deed conveying the Real Property to Buyer;
8.2.2 Non-Foreign Affidavit. A Non-Foreign Affidavit in the form attached hereto as Exhibit “C” (the “Non-Foreign Affidavit”);
8.2.3 General Assignment. A general assignment to Buyer of the Intangible Property in the form attached hereto as Exhibit “D” (the “General Assignment”); and
8.2.4 Other. Such other items, documents, and instruments as may be reasonably required by Buyer, Title Insurer, Escrow Agent, or otherwise in order to 1 Plugged date for potential Rule Against Perpetuities issue. 55575.18135\45044823.2
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effectuate the provisions of this Agreement and the Closing and/or otherwise to fulfill the covenants and obligations to be performed by Seller at the Closing pursuant to this Agreement.
8.3 Deliveries by Buyer. On or before the Closing Date, Buyer, at its sole cost and expense, shall deliver or cause to be delivered into Escrow the following funds and the following items, documents, and instruments, each dated as of the Closing Date, fully executed and, if appropriate acknowledged, and, if applicable, in proper form for recording:
8.3.1 Purchase Price. Cash or other immediately available funds in an amount equal to the unpaid sum of the Purchase Price (less the *Deposit*) and all of Buyer’s share of the Closing Costs (and otherwise sufficient to close the transaction contemplated herein); and
8.3.2 Other. Such other items, documents, and instruments as may be reasonably required by Seller, Title Insurer, Escrow Agent, or otherwise in order to effectuate the provisions of this Agreement and the Closing and/or otherwise to fulfill the covenants and obligations to be performed by Buyer at the Closing pursuant to this Agreement.
8.4 Actions by Escrow Agent. Provided that Escrow Agent shall not have received written notice from Buyer or Seller of the failure of any condition to the Closing or of the termination of the Escrow and this Agreement, when Buyer and Seller have deposited into Escrow the documents and funds required by this Agreement and Title Insurer is irrevocably and unconditionally prepared and committed to issue the Owner’s Title Policy in accordance with the terms hereof, Escrow Agent shall, in the order and manner herein below indicated, take the following actions:
8.4.1 Funds. Disburse all funds as follows:
8.4.2.1 Pursuant to the Closing Statement (as hereinafter defined), retain for Escrow Agent’s own account all escrow fees and costs, disburse to Title Insurer the fees and expenses incurred in connection with the issuance of the Owner’s Title Policy, and disburse to any other persons or entities entitled thereto the amount of any other Closing Costs;
8.4.2.2 Disburse to Seller an amount equal to the Purchase Price, less or plus the net debit or credit to Seller by reason of the prorations and allocations of Closing Costs provided for in this Agreement; and
8.4.2.3 Disburse to the party who deposited the same any remaining funds in the possession of Escrow Agent after the payments pursuant to Sections 7.4.1.1 and 7.4.1.2 above have been completed.
8.4.3 Recording. Cause the Deed and any other documents customarily recorded and/or that the parties hereto may mutually direct to be recorded 55575.18135\45044823.2
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in the Official Records and obtain conformed copies thereof for distribution to Buyer and Seller.
8.4.3 Delivery of Documents. Deliver: (a) to Seller (i) one original of all documents deposited into Escrow (other than the Deed, the other documents recorded pursuant to the terms of this Agreement), the Non-Foreign Affidavit, and the General Assignment, (ii) one copy of the Non-Foreign Affidavit, and (iii) one conformed copy of each document recorded pursuant to the terms of this Agreement; and (b) to Buyer, (i) one original of all documents deposited into Escrow (other than the Deed and the other documents recorded pursuant to the terms of this Agreement, but including, without limitation, the Non-Foreign Affidavit), and (ii) one conformed copy of each document recorded pursuant to the terms of this Agreement. Originals of any documents recorded at Closing shall be delivered after such recording as indicated thereon.
8.4.4 Owner’s Title Policy. Cause Title Insurer to issue or be irrevocably and unconditionally prepared and committed to issue the Owner’s Title Policy to Buyer.
8.5 Prorations/Apportionment.
8.5.1 Method of Proration. Ad valorem taxes and general assessments affecting the Property shall be prorated between Buyer and Seller as of the Closing Date based on a 365-day year. All community facility district and other improvement district liens and assessments and all other special liens and assessments shall be paid in full by Seller at or before the Closing. All non-delinquent ad valorem taxes and general assessments on the Property shall be prorated based on the actual current tax bill, but if such tax bill has not yet been received by Seller by the Closing Date or if supplemental taxes are assessed after the Closing for the period prior to the Closing, the parties shall make any necessary adjustment after the Closing by cash payment to the party entitled thereto so that Seller shall have borne all ad valorem taxes and general assessments, including all supplemental taxes, allocable to the period prior to the Closing and Buyer shall bear all ad valorem taxes and general assessments, including all supplemental taxes, allocable to the period from and after the Closing. If any expenses attributable to the Property and allocable to the period prior to the Closing are discovered or billed after the Closing, the parties shall make any necessary adjustment after the Closing by cash payment to the party entitled thereto so that Seller shall have borne all expenses allocable to the period prior to the Closing and Buyer shall bear all expenses allocable to the period from and after the Closing.
All assessments to the applicable property owners associations shall be prorated between Buyer and Seller as of the Closing Date based on a 365-day year. All other payments to the applicable property owners associations related to the sale of the Property shall be paid in full by Seller at or before the Closing.
8.5.2 Apportionment. If ad valorem taxes and/or general assessments must be prorated and/or paid before the appropriate tax/assessment records reflect the Property as a separate parcel, such taxes and/or assessments will be allocated 55575.18135\45044823.2
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between the Property and the rest of the applicable parcel on the basis of acreage, except that any taxes attributable to improvements will be allocated to the land on which the improvements are located.
8.5.3 Survival. The obligations under this Section 8.5 shall survive the Closing and the delivery and recordation of the Deed for the Property.
8.6 Closing Costs. Each party shall pay its own costs and expenses arising in connection with the Closing (including, without limitation, its own attorneys’ and advisors’ fees, charges, and disbursements), except the following costs (the “Closing Costs”), which shall be allocated between the parties as follows:
8.6.1 Escrow Agent’s escrow fees and costs shall be paid one-half by Seller and one-half by Buyer;
8.6.2 The cost of the Owner’s Title Policy which is equal to the cost of a standard coverage policy shall be paid by Seller;
8.6.3 The additional cost of the Owner’s Title Policy attributable to extended coverage and all title endorsements shall be paid by Buyer; and
8.6.4 All recording fees and other closing fees and costs shall be charged to and paid by Seller and Buyer in accordance with Escrow Agent’s customary practices in the county where the Property is located.
8.7 Closing Statement. Five (5) Business Days prior to the Closing Date, Escrow Agent shall deliver to each of the parties for their review and approval a preliminary closing statement (the “Preliminary Closing Statement”) setting forth: (a) the proration amounts allocable to each of the parties pursuant to Section 8.5; and (b) the Closing Costs allocable to each of the parties pursuant to Section 8.6. Based on each of the party’s comments, if any, regarding the Preliminary Closing Statement, Escrow Agent shall revise the Preliminary Closing Statement and deliver a final, signed version of a closing statement to each of the parties at the Closing (the “Closing Statement”).
8.8 Deliveries Outside of Escrow. Upon the Closing, Seller shall deliver sole and exclusive possession of the Property to Buyer, subject only to the Permitted Exceptions. Further, Seller hereby covenants and agrees to deliver to Buyer, on or prior to the Closing, the Intangible Property, including, without limitation, the original Property Materials. Effective immediately upon the Closing, any personal property of Seller remaining on the Land Parcel shall be deemed abandoned and may be removed and disposed of by Buyer.
9. SELLER’S REPRESENTATIONS, WARRANTIES AND AGREEMENT.
Seller represents, and warrants to and agrees with Buyer, as of the Agreement Date and as of the Closing Date, as follows:
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9.1 Due Organization. Seller is a limited liability company duly organized, validly existing, and in good standing under the laws of California.
9.2 Seller’s Authority; Validity of Agreements. Seller has full right, power, and authority to sell the Property to Buyer as provided in this Agreement and to carry out its obligations hereunder. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Seller has/have the legal power, right, and actual authority to bind Seller to the terms hereof and thereof. This Agreement is, and all other instruments, documents and agreements to be executed, and delivered by Seller in connection with this Agreement shall be, duly authorized, executed, and delivered by Seller and the valid, binding, and enforceable obligations of Seller (except as enforcement may be limited by bankruptcy, insolvency, or similar laws) and do not, and as of the Closing Date will not result in any violation of, or conflict with, or constitute a default under, any provisions of any agreement of Seller or any mortgage, deed of trust, indenture, lease, security agreement, or other instrument, covenant, obligation, or agreement to which Seller or the Property is subject, or any judgment, law, statute, ordinance, writ, decree, order, injunction, rule, ordinance, or governmental regulation or requirement affecting Seller or the Property.
9.3 Litigation. To Seller’s actual, current knowledge (as hereinafter defined), (a) there are no actions, investigations, suits, or proceedings (other than tax appeals or protests) pending or threatened that affect the Property, the ownership or operation thereof, or the ability of Seller to perform its obligations under this Agreement, and (b) there are no judgments, orders, awards, or decrees currently in effect against Seller with respect to the ownership or operation of the Property that have not been fully discharged prior to the Agreement Date.
9.4 Anti-Money Laundering and Anti-Terrorism Laws. Neither Seller nor, to Seller’s actual, current knowledge, any of its respective affiliates, is in violation of the Anti-Money Laundering and Anti-Terrorism Laws. Neither Seller nor, to Seller’s actual, current knowledge, any of its affiliates, is acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the Annex to the Executive Order, or are included on any relevant lists maintained by the Office of Foreign Assets Control of U.S. Department of Treasury, U.S. Department of State, or other U.S. government agencies, all as may be amended from time to time. Neither Seller nor, to Seller’s actual, current knowledge, any of its affiliates, or, without inquiry, any of its brokers or other agents, in any capacity in connection with the sale of the Property (A) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any person included in the lists referenced above, (B) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order, or (C) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Money Laundering and Anti-Terrorism Laws. Neither Seller, nor any person controlling or controlled by Seller, is a country, territory, individual or entity named on a Government List, and the monies used by Seller in connection with this Agreement and amounts committed with respect hereto, were 55575.18135\45044823.2
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not and are not derived from any activities that contravene any applicable anti-money laundering or anti-bribery laws and regulations (including funds being derived from any person, entity, country or territory on a Government List or engaged in any unlawful activity defined under Title 18 of the United States Code, Section 1956(c)(7)).
9.5 Buyer’s Investigations. By entering into this Agreement, Buyer is being given the opportunity to perform a thorough and independent investigation and evaluation of the Property and all other aspects of the transactions contemplated by this Agreement, and if Buyer fails to perform such investigation and evaluation of the Property, Buyer agrees that Buyer shall nonetheless be charged with knowledge of all information which would have been disclosed by such an investigation and evaluation.
Prior to the Due Diligence Termination Date, Buyer will have determined, solely in reliance upon Buyer’s independent investigation and evaluation of the Property, that the physical condition of the Property is acceptable to Buyer, including, without implied limitation, all soil and geological conditions of the Real Property and the presence or absence of any hazardous materials in, on, under or around the Property (“Buyer’s Investigations”). Prior to the Due Diligence Termination Date, Buyer will have satisfied itself as to all applicable laws and regulations, including, without implied limitation, zoning regulations, CEQA regulations, and other governmental requirements, site and physical conditions, title matters, and all other matters affecting the use, development potential, occupancy, value, and condition of the Property. Except for the express representations and warranties of Seller contained in this Agreement or any of the Closing Documents, Buyer specifically acknowledges that Buyer is not relying on Seller to indicate the relative importance or materiality of any of the instruments, records, documents and other information made available to Buyer for review, that Buyer shall make Buyer’s own determination as to the level of scrutiny it applies to such instruments, records and documents made available to Buyer, and that Buyer will act solely in reliance upon Buyer’s own investigation and evaluation of such matters.
9.6 Survival and Limitation. The representations and warranties in Sections
9.1 9.2 9.3, and 9.4 of this Agreement shall survive the Closing Date for a period of twelve (12) months, and shall thereafter be of no further force or effect (except as to claims submitted prior to the expiration of such twelve (12) month period); provided, that Buyer will not be entitled to assert a claim against Seller in respect of a breach of any representation, warranty or covenant unless and until Buyer’s damages in respect of all such breaches, equal or exceed Twenty Thousand Dollars ($20,000) and in no event will Seller’s aggregate liability in respect of all breaches of representations, warranties or covenants exceed One Hundred Thousand Dollars ($100,000) (the “Liability Cap”), provided, however, the Liability Cap shall not be applicable to any amounts payable by Seller with respect to (a) removal of Monetary Liens and other encumbrances on the property created or permitted by Seller, (b) adjustment of prorations, (c) Seller’s share of Closing costs (Costs of Escrow). References in this Agreement to the “Seller’s actual, current knowledge,” “to Seller’s knowledge,” “to Seller’s actual knowledge, “ or to matters “actually known to Seller” or similar phrases shall refer only to the actual knowledge then possessed, without further investigation or inquiry, by Michael Braun (the “Seller Representative”) as of the Agreement Date and/or as of the Closing Date (as applicable), and shall not be construed, by imputation or otherwise, to refer to the 55575.18135\45044823.2
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knowledge of any other agent, employee, officer, manager, member or representative of Seller or any other person or entity, or to impose upon the identified individuals any duty to investigate the matter to which such actual knowledge, or the absence thereof, pertains or to impose upon the identified individuals any personal liability for such representations and warranties.
5. BUYER’S REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants to Seller, as of the Agreement Date and as of the Closing Date, as follows:
10.1 Due Organization. Buyer is a municipal corporation and charter city, duly organized, validly existing, and in good standing under the laws of the State of California.
10.2 Buyer’s Authority; Validity of Agreements. Buyer has full right, power, and authority to purchase and acquire the Property from Seller as provided in this Agreement and to carry out its obligations hereunder. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Buyer has/have the legal power, right, and actual authority to bind Buyer to the terms hereof and thereof. This Agreement is, and all instruments, documents, and agreements to be executed and delivered by Buyer in connection with this Agreement shall be, duly authorized, executed, and delivered by Buyer and shall be valid, binding, and enforceable obligations of Buyer (except as enforcement may be limited by bankruptcy, insolvency, or similar laws) and do not, and as of the Closing Date will not, violate any provision of any law, statute, ordinance, rule, regulation, agreement or judicial order to which Buyer is a party or to which Buyer is subject.
10.3 Survival. All of the representations, warranties, and agreements of Buyer set forth in this Agreement shall be true upon the Agreement Date, shall be deemed to be repeated at and as of the Closing Date (except as otherwise set forth in writing to Seller) and this Section 10 shall survive the Closing and delivery and recordation of the Deed and shall not be deemed merged into the Deed, notwithstanding the doctrine of merger or any similar legal or equitable theory.
10.2 Acceptance of Condition of Property. Buyer acknowledges that as of the Closing Date, it will have had an adequate opportunity to inspect the Real Property and all aspects thereof, and to investigate the Real Property’s physical characteristics and conditions, and all other matters related or relevant to the Property. Upon the Closing, and except as otherwise expressly provided in this Agreement, Buyer shall be deemed to have waived any and all objections to the physical characteristics and conditions of the Real Property, and all other matters related or relevant thereto, including, without implied limitation, the habitability, merchantability, marketability, profitability, fitness for a particular purpose, the nature, quality, or condition of the Real Property. Buyer further acknowledges that Seller shall have no obligation to undertake the construction or completion of any on-site or off-site improvements or repairs of any kind or nature to the Real Property. Buyer further acknowledges and agrees that, except for Seller’s express 55575.18135\45044823.2
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representations and warranties set forth in this Agreement, the Real Property is being purchased, conveyed, and accepted by Buyer in its present condition, “AS-IS,” “WHERE-IS”, and “WITH ALL FAULTS.”
10.5 Finders and Investment Brokers. Buyer has not dealt with any third party who has acted, directly or indirectly, as a broker, finder, financial adviser or in such other capacity for or on behalf of Buyer in connection with the transactions described by this Agreement in any manner which would entitle such third party to any fee or commission in connection with this Agreement or the transactions described in this Agreement.
10.6 Release. As a material inducement to and part consideration for the execution and delivery of this Agreement by Seller and the performance by Seller of Seller’s duties and obligations under this Agreement, and effective as of the Closing, Buyer, on behalf of Buyer and Buyer’s members, principals, owners, partners, shareholders, officers, directors, managers, affiliates, employees, and successors and assigns (collectively, “Buyer Related Parties”), hereby (i) expressly, fully and forever releases and discharges (which release and discharge shall be continuing and shall survive the Closing and the transfer of the Property) Seller and Seller’s members, principals, owners, partners, shareholders, officers, directors, managers, affiliates, employees, successors and assigns (collectively, “Seller Related Parties”), from any and all Losses, whether foreseeable or unforeseeable, known or unknown, or suspected or unsuspected, with respect to or in any way relating to or indirectly or directly arising out of the whole or any part of the Property, including, without implied limitation, any fact, event, circumstance, omission, occurrence of any kind or nature relating thereto, based on any theory of law, equity or tort now existing or coming into existence in the future, and (ii) covenants not to sue or assert any claim or cause of action, in any judicial or administrative forum against Seller with respect to the Property and/or this Agreement relating to, and/or any claims or causes of action related to, including, without implied limitation, (i) any diminution in the value of the Property after the date of Closing, (ii) any hazardous material located on, under or around the Property and/or pollution or contamination in any form and in any media whatsoever existing at, on, above, below, or under the Property at any time, and (iii) any required clean-up of any and all hazardous materials which may be located on, under or around the Property at any time, including those placed on, under or around the Property after the Closing, and including any personal injuries suffered by any person or persons and any diminution in the value of the Property by reason thereof, and Buyer waives and releases all cost recovery and contribution and other claims against Seller relating to the Property arising under the Environmental Laws including, without implied limitation, the Comprehensive Environmental Response, Compensation and Liability Act 42 U.S.C. 9601 et seq. and other laws and common law relating to protection of the environment or health and safety or to pollution, (iv) failure to comply with CEQA, and (v) Buyer’s activities on or uses of the Property after Buyer takes possession of the Property. The provisions of this Section 8.5 shall survive the Closing or any earlier termination of this Agreement.
10.7 Patriot Act. Neither Buyer, none any of its officers, shareholders or principals are listed on the Office of Foreign Assets Control list as “Terrorists” and “Specially Designated Nationals and Blocked Persons”, or otherwise be in violation of 55575.18135\45044823.2
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the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001.
10.8AS-IS. AS A MATERIAL INDUCEMENT TO THE EXECUTION AND
DELIVERY OF THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY
SELLER OF ITS DUTIES AND OBLIGATIONS HEREUNDER, BUYER DOES
HEREBY, ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE, TO AND WITH SELLER, (A) BUYER IS PURCHASING THE PROPERTY IN AN “AS-IS” AND “WHERE-IS” CONDITION, WITH ALL OF THE FAULTS, AS OF THE C L O S I N G
DATE WITH RESPECT TO ANY FACTS, CIRCUMSTANCES, CONDITIONS AND DEFECTS; (B) SELLER HAS NO OBLIGATION TO REPAIR OR CORRECT ANY
SUCH FACTS, CIRCUMSTANCES, CONDITIONS OR DEFECTS OR COMPENSATE BUYER FOR THE SAME; (C) BY THE CLOSING, BUYER SHALL HAVE
UNDERTAKEN ALL SUCH PHYSICAL INSPECTIONS AND EXAMINATIONS OF THE
PROPERTY AS BUYER DEEMS NECESSARY OR APPROPRIATE UNDER THE
CIRCUMSTANCES, AND THAT BASED UPON SAME, BUYER IS AND WILL BE
RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND
EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS AGENTS AND
OFFICERS (AND, EXCEPT AS PROVIDED ABOVE NOT UPON ANY
REPRESENTATIONS OR WARRANTIES OF SELLER), AND BUYER IS AND WILL
BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE CONSIDERATION FOR THE PROPERTY; (D) SELLER IS NOT MAKING AND HAS
NOT MADE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO ALL OR
ANY PART OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, ANY
MATTERS CONTAINED IN DOCUMENTS MADE AVAILABLE OR DELIVERED TO BUYER IN CONNECTION WITH THIS AGREEMENT); (E) IN FURTHERANCE OF,
AND NOT IN LIMITATION OF, THE FOREGOING, SELLER HAS AND HEREBY
SPECIFICALLY DISCLAIMS, AND NEITHER IT NOR ANY OTHER PERSON IS
MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER
TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED
UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE
MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE
PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (I)
ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY (II) ANY
IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE,
INCLUDING, WITHOUT IMPLIED LIMITATION, TITLE, LEASING, ZONING, TAX
CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROTECTIONS, VALUATION,
GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH
LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF THE DOCUMENTS OR
ANY OTHER INFORMATION PROVIDED BY OR ON BEHALF OF SELLER TO
BUYER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY (III)
ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR
SAMPLES OF MATERIALS, (IV) ANY RIGHTS OF BUYER UNDER
APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (V)
ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER 55575.18135\45044823.2
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KNOWN OR UNKNOWN, NOW OR HEREAFTER EXISTING, WITH RESPECT TO
THE IMPROVEMENTS OR THE PERSONAL PROPERTY RELATING TO THE
PROPERTY, (VI) THE FINANCIAL CONDITION OR THE PROSPECTS OF THE
PROPERTY AND, (VII) THE COMPLIANCE OR LACK THEREOF OF THE
PROPERTY OR ANY PORTION THEREOF WITH GOVERNMENTAL REGULATIONS,
AND (F) BY REASON OF ALL OF THE FOREGOING, BUYER SHALL ASSUME THE
FULL RISK OF ANY LOSS OR DAMAGE OCCASIONED BY ANY FACT,
CIRCUMSTANCE, CONDITION OR DEFECT PERTAINING TO THE PROPERTY,
INCLUDING WITHOUT LIMITATION THE PRESENCE OF ANY ASBESTOS
CONTAINING MATERIAL, HAZARDOUS, TOXIC OR RADIOACTIVE WASTE,
SUBSTANCE OF MATERIALS IN, ON, UNDER OR ABOUT THE PROPERTY, AND
BUYER HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVES AND RELEASES
SELLER AND ALL OF ITS PARENTS, SUBSIDIARIES, AFFILIATES AND
PARTNERSHIPS, MEMBERS, OFFICERS, DIRECTORS, PROPERTY MANAGERS,
ASSET MANAGERS, MANAGERS, SHAREHOLDERS, PARTNERS, AGENTS AND
EMPLOYEES, AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS AND EACH OF THEM (INDIVIDUALLY AND COLLECTIVELY THE “RELEASED PARTIES”) FROM ANY AND ALL RIGHTS AND CLAIMS AGAINST SELLER AND /OR
THE RELEASED PARTIES WITH RESPECT TO THE PROPERTY (INCLUDING
WITHOUT LIMITATION, THE CONDITION, VALUATION, MARKETABILITY OR
UTILITY OF THE PROPERTY, OR ANY LEASES AND ANY RIGHTS OF BUYER
UNDER THE STATE OR FEDERAL COMPREHENSIVE ENVIRONMENTAL
RESPONSE COMPENSATION AND LIABILITY ACT, AS AMENDED FROM TIME TO
TIME, ANY OTHER ENVIRONMENTAL OR HAZARDOUS MATERIAL LAWS OR OTHER SIMILAR LAWS). BUYER ACKNOWLEDGES AND AGREES THAT THE
FOREGOING WAIVER AND RELEASE INCLUDES ALL RIGHTS AND CLAIMS OF
BUYER (AND ANY PERSON OR ENTITY CLAIMING BY OR THROUGH, BUYER)
AGAINST SELLER AND/OR ANY OTHER RELEASED PARTIES PERTAINING TO
THE PROPERTY, WHETHER HERETOFORE OR NOW EXISTING OR HEREAFTER
ARISING, OR WHICH COULD, MIGHT, OR MAY BE CLAIMED TO EXIST, OF
WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, SUSPECTED
OR UNSUSPECTED, LIQUIDATED OR UNLIQUIDATED, EACH AS THOUGH FULLY
SET FORTH HEREIN AT LENGTH, WHICH IN ANY WAY ARISE OUT OF OR ARE CONNECTED WITH, OR RELATE TO, THE PROPERTY. THIS RELEASE INCLUDES
CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OF WHICH BUYER DOES
NOT PRESENTLY SUSPECT TO EXIST, WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE TO SELLER AND/OR THE OTHER RELEASED PARTIES. IN 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 CAUSES OF
ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS,
LOSSES AND EXPENSES 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 55575.18135\45044823.2
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BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE AND
ACQUIT SELLER AND THE OTHER RELEASED PARTIES FROM ANY SUCH
UNKNOWN CAUSES OF ACTON, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES. THE FOREGOING WAIVERS AND
RELEASES BY BUYER SHALL SURVIVE (A) THE CLOSING AND THE
RECORDATION OF THE DEED AND SHALL NOT BE DEEMED MERGED INTO THE
DEED UPON ITS RECORDATION, AND/OR (B) ANY TERMINATION OF THIS
AGREEMENT, NOTWITHSTANDING THE DOCTRINE OF MERGER OR ANY SIMILAR LEGAL OR EQUITABLE THEORY.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE
CONTRARY, THE WAIVERS, DISCLAIMERS AND ASSUMPTIONS OF RISK
SET FORTH HEREIN SHALL NOT BE APPLICABLE TO ANY EXCEPTED EVENTS.
EXCEPTED EVENTS” ARE SELLER’S BREACH OF ANY OF ITS EXPRESS
REPRESENTATIONS, WARRANTIES OR COVENANTS CONTAINED IN THIS AGREEMENT OR ANY INTENTIONAL MISCONDUCT OR FRAUD BY SELLER.
BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Seller and Buyer acknowledge that the compensation to be paid to Seller for the Real Property takes into account that the Real Property is being sold subject to the provisions of this Section. Seller and Buyer agree that the provisions of this Section 10shall survive the Closing and delivery and recordation of the Deed and shall not be deemed merged into the Deed, notwithstanding the doctrine of merger or any similar legal or equitable theory.
Buyer
Initials
6. RISK OF LOSS.
11.1 Condemnation. If, prior to any Closing, all or any portion of the Property is taken by condemnation or eminent domain (or is the subject of a pending or contemplated taking which has not been consummated), Seller shall immediately notify Buyer of such fact. In such event, Buyer shall have the option to terminate this 55575.18135\45044823.2
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Agreement upon written notice to Seller given within fifteen (15) days after receipt of such notice from Seller, in which event the *Deposit* shall be returned to Buyer. Prior to any termination of this Agreement, Buyer shall have the right to participate in any proceedings and negotiations with respect to the taking and any transfer in lieu of taking (and Seller shall not consummate any transfer in lieu of taking without Buyer’s prior written consent).
If Buyer waives the right to terminate this Agreement and elects to proceed with the Closing, then (a) Seller, at, and as a condition precedent to Buyer’s obligation to proceed with, the Closing, must: (i) pay to Buyer (or direct Escrow Agent to credit Buyer against the Purchase Price for) the amount of all awards for the taking (and any consideration for any transfer in lieu of taking) actually received by Seller; and (ii) assign to Buyer by written instrument reasonably satisfactory to Buyer all rights or claims to any future awards for the taking (and any consideration for any transfer in lieu of taking); and (b) the parties shall proceed to the Closing pursuant to the terms hereof without further modification of the terms of this Agreement.
11.2 Casualty. Prior to the Closing and notwithstanding the pendency of this Agreement, the entire risk of loss or damage by earthquake, hurricane, tornado, flood, landslide, fire, sinkhole, or other casualty shall be borne and assumed by Seller. If, prior to the Closing, any portion of the Property is damaged as a result of any earthquake, hurricane, tornado, flood, sinkhole, landslide, fire, or other casualty, Seller shall immediately notify Buyer of such fact. In such event, Buyer shall have the option to terminate this Agreement upon written notice to Seller given within thirty (30) days after receipt of any such notice from Seller, in which event the *Deposit* shall be returned to Buyer. Prior to any termination of this Agreement, Buyer shall have the right to participate in any adjustment of the insurance claim. If Buyer waives the right to terminate this Agreement and elects to proceed with the Closing, then (a) Seller, at, and as a condition precedent to Buyer’s obligation to proceed with, the Closing, must either:
(i) pay to Buyer (or direct Escrow Agent to credit Buyer against the Purchase Price for) the amount of any insurance proceeds actually received by Seller plus the amount of any deductible under Seller’s insurance; or (ii) if no insurance proceeds have been received by Seller, assign to Buyer by written instrument reasonably satisfactory to Buyer all rights or claims to the insurance proceeds and credit Buyer against the Purchase Price for any deductible payable under Seller’s insurance policy; and (b) the parties shall proceed to the Closing pursuant to the terms hereof without further modification of the terms of this Agreement.
12. REMEDIES.
12.1 Default by Seller. If Seller shall breach any of the terms or provisions of this Agreement or otherwise fail to perform any of Seller’s obligations under this Agreement at or prior to Closing, and if such failure continues for ten (10) Business Days after Buyer provides Seller and Escrow Agent with written notice thereof, and provided Buyer is not then in default, then Buyer may, as Buyer’s sole remedies for such failure, but without limiting Buyer’s right to recover attorneys’ fees pursuant to Section
14.13 below: (a) waive the effect of such matter and proceed to consummate this transaction; or (b) cancel this Agreement and receive a full refund of the *Deposit* and recover from Seller the reasonable out-of-pocket expenses incurred by Buyer related to 55575.18135\45044823.2
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the Property and this transaction in an amount not to exceed One Hundred Thousand Dollars ($100,000).
12.2 Default by Buyer. If Buyer shall breach any of the terms or provisions of this Agreement or otherwise fail to perform any of Buyer’s obligations under this Agreement and if such failure continues for ten (10) Business Days after Seller provides Buyer and Escrow Agent with written notice thereof, and provided Seller is not then in default, then Seller may, as its exclusive remedy, cancel this Agreement and retain the *Deposit* as liquidated damages and as consideration for the acceptance of this Agreement and for taking the Property off the market, and not as a penalty. Buyer and Seller have determined and hereby agree that it would be impractical or extremely difficult, if not impossible, to ascertain with any degree of certainty the amount of damages that would be suffered by Seller if Buyer fails to purchase the Property in accordance with the provisions of this Agreement, and the parties agree that a reasonable estimate of such damages under the circumstances is an amount equal to the *Deposit*. Accordingly, Buyer and Seller agree that if Buyer breaches any of its obligations under this Agreement or otherwise defaults hereunder, Seller may retain the *Deposit* as liquidated damages as its sole and exclusive remedy and Seller shall have no right of action against Buyer for damages or specific performance.
13. NO BROKERS.
Each of Buyer and Seller hereby represents and warrants to and agrees with each other that it has not had, and shall not have, any dealings with any third party to whom the payment of any broker’s fee, finder’s fee, commission, or other similar compensation (“Commission”) shall or may become due or payable in connection with the transaction contemplated hereby. Buyer shall indemnify, defend with counsel chosen by Seller, protect, and hold Seller harmless for, from, and against any and all Claims incurred by Seller by reason of any breach or inaccuracy of the representation, warranty, and agreement of Buyer contained in this Section. Seller shall indemnify, defend with counsel chosen by Buyer, protect, and hold Buyer harmless from, for, and against any and all Claims incurred by Buyer by reason of any breach or inaccuracy of the representation, warranty, and agreement of Seller contained in this Section. The provisions of this Section shall survive the Closing or earlier termination of this Agreement.
14. MISCELLANEOUS PROVISIONS.
14.1 Governing Law; Venue. This Agreement and the legal relations between the parties hereto shall be governed by, and construed and enforced in accordance with, the laws of the State of California, without regard to principles of conflicts of law.
14.2 Entire Agreement. This Agreement, including the exhibits attached hereto, constitutes the entire agreement between Buyer and Seller pertaining to the subject matter hereof and supersedes all prior agreements, understandings, letters of intent, term sheets, negotiations, and discussions, whether oral or written, of the parties, and there are no warranties, representations, or other agreements, express or implied, 55575.18135\45044823.2
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made to either party by the other party in connection with the subject matter hereof except as specifically set forth herein or in the documents delivered pursuant hereto or in connection herewith.
14.3 Modification; Waiver. No supplement, modification, waiver, or termination of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
14.4 Notices. All notices, consents, requests, reports, demands or other communications hereunder (collectively, “Notices”) shall be in writing and may be given personally, by registered or certified mail, by facsimile transmission, by electronic mail, by courier, or by Federal Express (or other reputable overnight delivery service) for overnight delivery, as follows:
To Seller: Town & Country Center, LLC
Attn: Michael Bruan
201 N. Palm Canyon Drive, Suite 200
Palm Springs, CA 92262
Telephone: 761-325-3050
E-mail: [email protected]
With A Copy To: Town & Country Center, LLC
Attn: Octavio Fernandez
201 N. Palm Canyon Drive, Suite 200
Palm Springs, CA 92262
Telephone: 761-325-3050
E-mail: [email protected]
With A Copy To: Kirk W. Smith
Buchalter
805 SW Broadway #1500, Portland, OR
97205Telephone: 503-226-8443
E-mail: [email protected]
To Buyer: City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
Attention: Jeffrey S. Ballinger, City Attorney
Telephone: (760) 323-8219
E-mail: [email protected]
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To Escrow Agent: First American Title Insurance Company ___________________
___________________
________________, California
Attention: _____________________________
Telephone:
E-mail:
or to such other address or such other person as the addressee party shall have last designated by Notice to the other party and Escrow Agent. All Notices shall be deemed to have been given on the date deposited with the United States Postal Service (postage prepaid) if sent by registered or certified mail or, if sent by reputable overnight delivery service such as FedEx, UPS or similar services, upon the date of deposit with such service, so long as actual delivery is made or deemed made. All other Notices delivered by facsimile or electronic mail (so long as receipt is acknowledged or otherwise confirmed), or delivered by messenger or courier or personally delivered, shall be deemed to have been given on date of delivery. Notice to a party shall not be effective unless and until each required copy of such Notice is given. The inability to deliver a Notice because of a changed address of which no Notice was given or an inoperative email address for which no Notice was given of a substitute address, or any rejection or other refusal to accept any Notice, shall be deemed to be the receipt of the Notice as of the date of such inability to deliver or rejection or refusal to accept. Any Notice to be given by any party hereto may be given by legal counsel for such party. Telephone numbers are provided herein for convenience only and shall not alter the manner of giving Notice set forth in this Section 14.4.
14.5 Expenses. Subject to the provision for payment of the Closing Costs in accordance with the terms of Section 8.6 of this Agreement and of any other provision of this Agreement, whether or not the transaction contemplated by this Agreement shall be consummated, all fees and expenses incurred by any party hereto in connection with this Agreement shall be borne by such party.
14.6 Severability. Any provision or part of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall, as to such situation and such jurisdiction, be ineffective only to the extent of such invalidity and shall not affect the enforceability of the remaining provisions hereof or the validity or enforceability of any such provision in any other situation or in any other jurisdiction.
14.7 Successors and Assigns. Except as provided below, any assignment by Buyer of this Agreement or Buyer’s rights and interests hereunder requires the prior written consent of Seller not to be unreasonably withheld. Buyer may assign this Agreement and Buyer’s rights, interests and obligations hereunder, without Seller’s prior written consent, to any limited liability company, corporation, partnership or other entity that is owned or controlled by or affiliated with Buyer (the “Assignee”), upon written notice to Seller, provided that the Assignee agrees in writing to assume and be bound by all of the obligations and liabilities of Buyer contained herein (and the Assignee will 55575.18135\45044823.2
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be bound by all consents or approvals previously given or deemed to have been given by Buyer). Subject to the foregoing, this Agreement and its terms and provisions inure to the benefit of and are binding upon the heirs, executors, personal representatives, successors and assigns of the parties hereto.
14.8 Multiple Parties. In the event Seller consists of more than one person and/or entity and Seller defaults or is in breach of any of the terms of this Agreement, all of the persons and entities comprising Seller shall be jointly and severally liable for the performance and/or satisfaction of Seller’s obligations under this Agreement.
14.9 Headings. The Section headings of this Agreement are for convenience of reference only and shall not be deemed to modify, explain, restrict, alter, or affect the meaning or interpretation of any provision hereof.
14.10 Time of Essence. Time shall be of the essence with respect to all matters contemplated by this Agreement.
14.11 Further Assurances. In addition to the actions recited herein and contemplated to be performed, executed, and/or delivered by Seller and Buyer, Seller and Buyer agree to perform, execute, and/or deliver or cause to be performed, executed, and/or delivered at the Closing or after the Closing any and all such further acts, instruments, deeds, and assurances as may be reasonably required to consummate the transaction contemplated hereby.
14.12 Construction. As used in this Agreement, the masculine, feminine, and neuter gender and the singular or plural shall each be construed to include the other whenever the context so requires. This Agreement shall be construed as a whole and in accordance with its fair meaning, without regard to any presumption or rule of construction causing this Agreement or any part of it to be construed against the party causing the Agreement to be written. The parties acknowledge that each has had a full and fair opportunity to review the Agreement and to have it reviewed by counsel. If any words or phrases in this Agreement have been stricken, whether or not replaced by other words or phrases, this Agreement shall be construed (if otherwise clear and unambiguous) as if the stricken matter never appeared and no inference shall be drawn from the former presence of the stricken matters in this Agreement or from the fact that such matters were stricken.
14.13 Attorneys’ Fees. In the event that either party hereto brings an action or proceeding against the other party to enforce or interpret any of the covenants, conditions, agreements, or provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover all costs and expenses of such action or proceeding, including, without limitation, attorneys’ fees, charges, disbursements, the fees and costs of expert witnesses and other litigation related expenses. If any party secures a judgment in any such action or proceeding, then any costs and expenses (including, but not limited to, attorneys’ fees and costs) incurred by the prevailing party in enforcing such judgment, or any costs and expenses (including, but not limited to, attorneys’ fees and costs) incurred by the prevailing party in any appeal from such 55575.18135\45044823.2
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judgment in connection with such appeal shall be recoverable separately from and in addition to any other amount included in such judgment. The preceding sentence is intended to be severable from the other provisions of this Agreement, and shall survive and not be merged into any such judgment.
14.14 Business Days. As used herein, the term “Business Day” shall mean a day that is not a Saturday, Sunday, Friday, or legal holiday. In the event that the date for the performance of any covenant or obligation under this Agreement shall fall on a Saturday, Sunday, Friday, or legal holiday, the date for performance thereof shall be extended to the next Business Day. Similarly, in the event that the day for the performance of any covenant or obligation under this Agreement involving Escrow Agent shall fall on a Business Day on which Escrow Agent is closed for business to the public, the date for performance thereof shall be extended to the next Business Day on which Escrow Agent is open for business to the public.
14.15 Counterparts and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. The Parties agree to transact business electronically, and a party’s electronic signature hereon (whether by way of DocuSign or any other system) shall be valid as an original signature complying with the U.S. federal ESIGN Act of 2000 and any comparable applicable State law. The Parties specifically agree that emailed “.pdf” signatures or electronic signatures on this Agreement shall be legally binding and that each Party is entitled and authorized to rely on the emailed “.pdf” signature or the electronic signature of the other hereon as if it were an original signature.
NO FURTHER TEXT ON THIS PAGE
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
SELLER:
Town & Country Center, LLC, a California
limited liability company
By:
Michael Bruan
Its: Manager
Date: _______________
BUYER:
The City of Palm Springs, a California
municipal corporation
By
SCOTT STILES, CITY MANAGER
Date: _______________
ATTEST:
By:
BRENDA PREE, CITY CLERK
APPROVED AS TO LEGAL FORM:
By:
JEFFREY S. BALLINGER, CITY
ATTORNEY
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ESCROW AGENT:
The undersigned Escrow Agent hereby accepts the foregoing Purchase and Sale Agreement and Joint Escrow Instructions, agrees to act as Escrow Agent under this Agreement in strict accordance with its terms, agrees to insert as the “Agreement Date” on page 1 hereof, if not otherwise dated, the latest date this Agreement was signed by Seller and Buyer and delivered to Escrow Agent, and agrees to comply with the applicable provisions of the Internal Revenue Code with respect to the transactions contemplated hereby.
First American Title Insurance Company
By
Its
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LIST OF EXHIBITS
EXHIBIT “A”LEGAL DESCRIPTION
EXHIBIT “A-1” DEPICTION OF LAND PARCEL
EXHIBIT “B”DEED
EXHIBIT “C”NON-FOREIGN AFFIDAVIT
EXHIBIT “D” GENERAL ASSIGNMENT
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EXHIBIT “A”
(to be inserted after receipt and approval of the Title Report)
DESCRIPTION OF THE PROPERTY
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EXHIBIT “A-1”
DEPICTION OF LAND PARCEL
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EXHIBIT "B"
GRANT DEED
Recording Requested By
_________________
When Recorded, mail to:
Order No. __________
Escrow No. ___________
Parcel No.: ________________
GRANT DEED
The undersigned Grantor declares:
Documentary Transfer Tax is $____________ City Tax $_________ The City of Palm Springs
Computed on full value of property conveyed
For the consideration of Ten Dollars, and other valuable considerations, __________________________________ (“Grantor”) hereby grants to______________________., a ___________________ (“Grantee”) the real property located in Riverside County, California described in Exhibit A attached hereto, together with all of Grantor’s right, title and interest in any improvements, buildings, structures and fixtures located on such real property, and all rights and appurtenances pertaining thereto.
SUBJECT ONLY TO:
The matters described in Exhibit B attached hereto.
Dated: _______________, 20__
__________________________________
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ACKNOWLEDGMENT
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.
STATE OF ____________ )
) ss
COUNTY OF __________________ )
On the _______ day of ___________, 20__, before me, a notary public in and for said state, personally appeared _________________________, known to me to be the person who executed the above Grant Deed and acknowledged to me that he executed the same for the purposes therein stated.
Witness my hand and notarial seal subscribed and affixed in said County and State, the day and year first above written.
________
Notary Public
My commission expires: _______________
(seal)
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EXHIBIT A
Legal Description
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EXHIBIT B
Permitted Exceptions
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EXHIBIT “C”
NON-FOREIGN AFFIDAVIT
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. No withholding is required, however, if the transferor furnishes this certificate of non-foreign status. See Code § 1445(b)(2); Treas. Reg. § 1.1445-2(b)(2). To inform (“Buyer”), that withholding of tax is not required upon the consideration paid by Buyer to ______________________, a ____________ (“Seller”), in connection with the disposition by Seller of a U.S. real property interest, Seller hereby certifies the following:
1. Seller is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations).
2. Seller’s U.S. employer identification number is ________________.
3. The office address of Seller is:
________________________
____________________
____________________
Seller understands that this certification may be disclosed to the Internal Revenue Service by the transferee (Buyer) and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned declares that he has examined this certification and to the best of his knowledge and belief it is true, correct and complete, and he further declares that he has the authority to sign this document on behalf of Seller. [Signature page follows.]
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Executed as of the day of , 20__.
___________________________
a ______________
By
Its
Signature Page to Certificate of Non-Foreign Status
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EXHIBIT “D”
GENERAL ASSIGNMENT
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR VALUABLE CONSIDERATION, receipt and adequacy of which is hereby acknowledged, the undersigned, _____________________________, a _________________ (“Assignor”), hereby sells, transfers, assigns and conveys to , a (“Assignee”), the following:
1.All right, title and interest of Assignor in and to all tangible personal property (“Personal Property”) located on, and used in connection with the management, maintenance or operation of that certain land located in the County of Riverside, State of California, as more particularly described in Schedule “A” attached hereto and made a part hereof (“Real Property”).
2.To the extent assignable without the consent of third parties, all right, title and interest of Assignor in and to the following intangible property (“Intangible Property”) owned or held solely for use in connection with the Real Property or the Personal Property or any business or businesses conducted thereon or with the use thereof: contracts and agreements, warranties, utility contracts, plans and specifications, governmental permits, approvals and development rights, to the extent related solely to the Real Property or the Personal Property or any part thereof and all right, title and interest of Assignor in and to the goodwill value and names by which the Property may be known.
This Bill of Sale, Assignment and Assumption is given pursuant to that certain agreement (“Purchase Agreement”) captioned "PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS”, dated as of ______________, 2024, between Assignor and Assignee (or its predecessor), providing for, among other things, the conveyance of the Personal Property and the Intangible Property.
The covenants, agreements, representations, warranties, indemnities and limitations provided in the Purchase Agreement with respect to the property conveyed hereunder are hereby incorporated herein by this reference as if herein set out in full and shall inure to the benefit of and shall be binding upon Assignee and Assignor and their respective successors and assigns.
This Bill of Sale, Assignment and Assumption is made subject to the "Permitted Exceptions" approved or deemed approved by Assignee pursuant to the Purchase Agreement.
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This Bill of Sale, Assignment and Assumption may be executed in one or more identical counterparts, each of which such counterpart shall be deemed an original for all purposes and all such counterparts collectively consisting of one such Bill of Sale, Assignment and Assumption.
IN WITNESS WHEREOF, Assignor has executed this Bill of Sale, Assignment and Assumption as of _______________, 20__.
ASSIGNOR:
________________________________
a ________________
By
Its
ASSUMPTION
As of the date above written, Assignee hereby accepts the foregoing Bill of Sale, Assignment and Assumption and hereby agrees to assume and discharge, in accordance with the terms thereof, all of the burdens and obligations of Assignor relating to the Intangible Property first arising and accruing on and after the effective date of the foregoing Bill of Sale, Assignment and Assumption.
ASSIGNEE:
a
By:
Name:
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Schedule A
Real Property Description