mwgjf clean 4/17/15 purchase and sale ... of ed/2009...6697-103507\1249581.2 mwgjf clean 4/17/15...
TRANSCRIPT
6697-103507\1249581.2
MWGJF CLEAN 4/17/15
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
BETWEEN
SIMA RANCHO CONEJO, L.L.C.,
a California limited liability company
(“Seller”)
and
CONEJO VALLEY UNIFIED SCHOOL DISTRICT,
a political subdivision of the State of California
(“Buyer”)
dated April ____, 2015
for real property located at
667 Rancho Conejo Road
Newbury Park, California 91320
APN: 667-0-060-565
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TABLE OF CONTENTS
1 - DEFINITIONS .......................................................................................................................... 1
2 - PURCHASE AND SALE .......................................................................................................... 4
2.1. Conveyance of Property ................................................................................................... 4
2.2. Exclusion from Property .................................................................................................. 4
3 - ESCROW HOLDER ................................................................................................................. 4
3.1. Acknowledgment of Escrow Holder ................................................................................ 4
3.2. Agreement Constitutes Escrow Instructions .................................................................... 4
3.3. Escrow Holder Duties ...................................................................................................... 4
3.4. Real Estate Reporting Person ........................................................................................... 5
4 - PAYMENT OF PURCHASE PRICE........................................................................................ 5
4.1. Deposit ............................................................................................................................. 5
4.2. Balance of Purchase Price ............................................... Error! Bookmark not defined.
4.3. Return of Deposit ............................................................ Error! Bookmark not defined.
5 - TITLE TO PROPERTY ............................................................................................................ 7
5.1. Preliminary Title Report................................................................................................... 7
5.2. Survey............................................................................................................................... 7
5.3. Title Exceptions................................................................................................................ 7
5.4. Additional Exceptions ...................................................................................................... 8
6 - DUE DILIGENCE PERIOD ..................................................................................................... 8
6.1. Inspections ........................................................................................................................ 8
6.2. Review of Documents .................................................................................................... 11
6.3. Approval Notices............................................................................................................ 11
6.3.1. Notice ...................................................................................................................... 11
6.3.2. Disapproval ............................................................................................................. 11
6.3.3. Approval ................................................................................................................. 12
6.3.4. Failure to Deliver Notice ........................................................................................ 12
7 - SELLER’S INITIAL DELIVERIES ....................................................................................... 12
8 - CONDITIONS PRECEDENT ................................................................................................. 12
8.1. Conditions to Buyer’s Obligations ................................................................................. 12
8.1.1. Owner’s Policy........................................................................................................ 13
8.1.2. Close of Escrow for Adjoining Property ................................................................ 13
8.1.3. Due Performance .................................................................................................... 13
8.1.4. Damage, Destruction, Condemnation ..................................................................... 13
8.1.5. Seller’s Deliveries ................................................................................................... 13
8.1.6. Occupancy............................................................................................................... 13
8.1.7. Seller’s Warranties .................................................................................................. 13
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8.1.8. Waiver of Conditions .............................................................................................. 13
8.2. Conditions to Seller’s Obligations ................................................................................. 14
8.2.1. Buyer’s Deliveries .................................................................................................. 14
8.2.2. Investor and Lender Approval ................................................................................ 14
8.2.3. Due Performance .................................................................................................... 14
8.2.4. Owner’s Policy........................................................................................................ 14
8.2.5. Buyer’s Warranties ................................................................................................. 14
8.2.6. Waiver ..................................................................................................................... 14
9 - COVENANTS OF SELLER ................................................................................................... 14
9.1. Contracts......................................................................................................................... 14
9.2. Operation and Maintenance ........................................................................................... 15
9.3. Seller’s Obligations ........................................................................................................ 15
10 - SELLER’S CLOSING DELIVERIES................................................................................... 15
11 - BUYER’S CLOSING DELIVERIES .................................................................................... 16
12 - CLOSE OF ESCROW ........................................................................................................... 16
12.1. Deliver to Buyer ......................................................................................................... 16
12.2. Deliver to Seller .......................................................................................................... 16
13 - CLOSING COSTS ................................................................................................................ 16
14 - TERMINATION ................................................................................................................... 17
15 - PRORATIONS ...................................................................................................................... 17
15.1. Prorated Items ............................................................................................................. 17
15.1.1. Taxes and Assessments ........................................................................................... 17
15.1.2. Utility Charges ........................................................................................................ 17
15.1.3. Operating Expenses ................................................................................................ 18
15.2. Statement of Prorations .............................................................................................. 18
15.3. Proration Adjustments ................................................................................................ 18
16 - ASSUMPTION OF LIABILITIES BY BUYER................................................................... 18
17 - REPRESENTATIONS AND WARRANTIES ..................................................................... 19
17.1. In General ................................................................................................................... 19
17.2. Representations and Warranties of Seller ................................................................... 19
17.2.1. Title ......................................................................................................................... 19
17.2.2. Free of Liens ........................................................................................................... 19
17.2.3. Due Authorization ................................................................................................... 19
17.2.4. Eminent Domain ..................................................................................................... 19
17.2.5. Litigation ................................................................................................................. 20
17.2.6. Violation of Agreements ......................................................................................... 20
17.2.7. Binding Effect ......................................................................................................... 20
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17.2.8. No Consent.............................................................................................................. 20
17.2.9. Hazardous Substances ............................................................................................. 20
17.2.10. Defects ................................................................................................................. 20
17.2.11. Contract Default .................................................................................................. 21
17.2.12. Full Disclosure .................................................................................................... 21
17.2.13. Bankruptcy .......................................................................................................... 21
17.2.14. Tax Consequences ............................................................................................... 21
17.3. Representations and Warranties of Buyer .................................................................. 22
17.3.1. Duly Organized ....................................................................................................... 22
17.3.2. Due Authorization ................................................................................................... 22
17.3.3. Violation of Agreements ......................................................................................... 22
17.3.4. Litigation ................................................................................................................. 22
17.4. Continuing Disclosure; Survival of Representations .................................................. 22
17.5. As-Is Conveyance ....................................................................................................... 23
18 - FURTHER ASSURANCES .................................................................................................. 23
19 - POSSESSION ........................................................................................................................ 23
20 - INDEMNIFICATION ........................................................................................................... 23
20.1. Indemnity by Seller .................................................................................................... 23
20.2. Indemnity by Buyer .................................................................................................... 24
21 - NOTIFICATION ................................................................................................................... 24
22 - NO ENCUMBRANCE .......................................................................................................... 24
23 - DAMAGE, DESTRUCTION, OR CONDEMNATION ....................................................... 24
24 - SELLER DEFAULT ............................................................................................................. 25
25 - BUYER DEFAULT; LIQUIDATED DAMAGES ............................................................... 25
26 - BROKER ............................................................................................................................... 26
27 - NOTICES .............................................................................................................................. 26
28 - MISCELLANEOUS PROVISIONS ..................................................................................... 28
28.1. Attorneys’ Fees ........................................................................................................... 28
28.2. No Waiver ................................................................................................................... 28
28.3. Construction................................................................................................................ 28
28.4. Merger ........................................................................................................................ 28
28.5. Amendments ............................................................................................................... 28
28.6. Counterparts................................................................................................................ 28
28.7. Computation of Periods .............................................................................................. 28
28.8. Successors and Assigns .............................................................................................. 29
28.9. Assignment by Buyer ................................................................................................. 29
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28.10. Assignment by Seller .................................................................................................. 29
28.11. Exhibits ....................................................................................................................... 29
28.12. Headings ..................................................................................................................... 29
28.13. Governing Law ........................................................................................................... 29
28.14. Time of the Essence .................................................................................................... 29
28.15. Severability ................................................................................................................. 29
28.16. Gender and Number .................................................................................................... 29
28.17. Relationship of the Parties .......................................................................................... 29
28.18. Release ........................................................................................................................ 30
28.19. Independent Counsel .................................................................................................. 30
EXHIBITS
A – Legal Description
B – Assignment and Assumption of Contracts and Property
C – Grant Deed
D – Acknowledgment of Escrow Holder
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND
JOINT ESCROW INSTRUCTIONS (this “Agreement”) is made as of April ___, 2015, by and
between SIMA Rancho Conejo, L.L.C., a California limited liability company (“Seller”) and
the CONEJO VALLEY UNIFIED SCHOOL DISTRICT, a political subdivision of the State
of California (“Buyer”). Buyer and Seller are sometimes referred to herein individually as a
“Party” and jointly as the “Parties.” This Agreement shall also constitute the joint escrow
instructions of the Parties to Escrow Holder, defined herein.
RECITALS
A. Seller owns that certain real property of approximately 0.92 acres located at 667
Rancho Conejo Road, Newbury Park, California, identified by Assessor Parcel Number 667-0-
060-565, and more particularly described in Exhibit “A” attached hereto and made a part hereof
(the “Land”).
B. The Land is improved with structures and fixtures including, without limitation,
that certain industrial building containing approximately 12,236 square feet of space (the
“Improvements”), which building is occupied by a tenant (“Tenant”) under a lease that expires
on July 31, 2015. The Land and the Improvements are collectively hereinafter sometimes
referred to as the “Property.”
C. Seller desires to sell the Property to Buyer, and Buyer desires to purchase the
Property from Seller, on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the promises and
covenants of the Parties to this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which the Parties acknowledge, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1. “750 Mitchell Delay Fee” means the sum Three Hundred Sixty-Six Dollars and
Fifty-Eight Cents ($366.58) per day multiplied by the total number of days, if any, that the
Closing Date for this Escrow is delayed due to the failure of Buyer’s condition set forth in
Section 8.1.2.
1.2. “Agreement” is defined in the preamble of this Agreement, and consists of this
document and all identified exhibits attached hereto and incorporated by reference.
1.3. “Buyer” is defined in the preamble to this Agreement.
1.4. “Closing Date” means the date of the Close of Escrow (as defined below) which
shall be sixty (60) days following the expiration of the Due Diligence Period. For all purposes of
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this Agreement, the term “Closing Date” shall mean and refer to the initial Closing Date and any
extended Closing Date as set forth in Section 4.3 or 9.4, or as otherwise agreed to by Buyer and
Seller in writing.
1.5. “Close of Escrow” means the date on which the Grant Deed is recorded, which
shall in no event be later than one (1) business day following the Closing Date.
1.6. “Contract Assignment” is defined in Section 10.2 of this Agreement.
1.7. “Contracts” is defined in Section 9.1 of this Agreement.
1.8. “Deposit” means the sum of Fifty Thousand Dollars ($50,000.00) in immediately
available funds.
1.9. “Deposit Release” means the sum of Ten Thousand Nine Hundred Ninety-Seven
Dollars and Forty Cents ($10,997.40) of the Deposit.
1.10. “Disapproved Exceptions” is defined in Section 5.3 of this Agreement.
1.11. “Due Diligence Notice” is defined in Section 6.3.1 of this Agreement.
1.12. “Due Diligence Period” is defined in Section 6.1 of this Agreement.
1.13. “Escrow” means the escrow established pursuant to this Agreement through
which the purchase and sale of the Property shall be consummated.
1.14. “Escrow Holder” means Chicago Title Insurance Company, Oxnard California,
Attention: Linda Hamilton.
1.15. “Escrow Instructions” is defined in Section 4.3 of this Agreement.
1.16. “Escrow Opening Date” means the date Escrow Holder receives one or more
executed counterparts of this Agreement executed by Buyer and Seller; provided that the Escrow
Opening Date shall not be later than two (2) business days after this Agreement has been
executed by both Buyer and Seller. Escrow Holder shall promptly notify Buyer and Seller of the
Escrow Opening Date.
1.17. “Estimate” is defined in Article 23 of this Agreement.
1.18. “Éxtended Closing Date Notice” is defined in Section 4.3.1 of this Agreement.
1.19. “Grant Deed” means that certain deed conveying title to the Property to Buyer in
the form of Exhibit “C.”
1.20. “Improvements” is defined in the Recitals of this Agreement.
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1.21. “Land” is defined in the Recitals of this Agreement.
1.22. “Material” and “Materially” means (i) with respect to a particular breach, default,
or failure to perform, a particular representation or warranty, the provision of any information
relating to this transaction, or any change in circumstances or alteration to the Property, that a
reasonable person in the position of the non-breaching party would wish to terminate this
Agreement or which would give the non-breaching party the right to sue the other Party for
breach of contract due to that breach, default, failure to perform, representation or warranty,
information, change in circumstances or alteration (ii) and, with respect to any dollar amount, the
sum of Two Thousand Five Hundred Dollars ($2,500.00).
1.23. “Monthly 750 Mitchell Delay Fee” is defined in Section 4.3.1 of this Agreement.
1.24. “Notice” is defined in Section 27 of this Agreement.
1.25. “Owner’s Policy” is defined in Section 8.1.1 of this Agreement.
1.26. “Party” and “Parties” is defined in the preamble to this Agreement.
1.27. “Permitted Exceptions” is defined in Section 5.3.1 of this Agreement.
1.28. “Pre-Closing Obligations” is defined in Section 16 of this Agreement .
1.29. “Preliminary Title Report” is defined Section 5.1 of this Agreement.
1.30. “Property” is defined in the Recitals of this Agreement.
1.31. “Purchase Price” means the sum of Two Million One Hundred Thirty Thousand
Dollars ($2,130,000.00) payable in lawful currency of the United States.
1.32. “Sections” is defined in Section 28.12 of this Agreement.
1.33. “Seller” is defined in the preamble of this Agreement.
1.34. “Standard Provisions” is defined in Section 4.3 of this Agreement.
1.35. “Survey” is defined in Section 5.2 of this Agreement.
1.36. “Title Company” means Chicago Title Insurance Company, Oxnard, California,
Attention: Denise Hume.
1.37. “Underlying Documents” is defined in Section 5.1 of this Agrement.
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ARTICLE 2
PURCHASE AND SALE
2.1. Conveyance of Property. Seller hereby agrees to sell, assign and convey the
Property to Buyer, and Buyer hereby agrees to purchase the Property from Seller, upon the terms
and conditions set forth in this Agreement.
2.2. Exclusion from Property. This Agreement does not include the purchase and sale
of the following items which are specifically excluded from the Property and which shall remain
the property of Seller: all accounts pertaining to the Property, and all funds held therein,
including, but not limited to, property management account(s), operating account(s), replacement
and other reserve account(s), residual receipts account(s), utility deposit account(s), tax and
impound account(s), retainers, deposits and the like; claims and/or judgments against third
parties in favor of Seller; moneys payable to Seller by collection agencies; awards, deposits
made with governmental authorities or utilities, rebates, refunds, prepayments, credits, rights of
setoff and similar claims due Seller from third parties.
ARTICLE 3
ESCROW HOLDER
3.1. Acknowledgment of Escrow Holder. On the same day as the Escrow Opening
Date, Escrow Holder shall complete the Acknowledgment of Escrow Holder attached hereto as
Exhibit “D” and shall transmit copies thereof to the Parties and their respective legal counsel.
The executed Acknowledgment of Escrow Holder shall serve as notice of the Escrow Opening
Date, identify the Escrow number, and constitute the Escrow Holder’s agreement to conduct the
Escrow and provide all related title services as provided herein.
3.2. Agreement Constitutes Escrow Instructions. This Agreement shall constitute
escrow instructions (“Escrow Instructions”) to Escrow Holder. The Parties agree to execute
such additional Escrow Instructions consistent with the provisions of this Agreement as are
mutually acceptable to the Parties or that may be required by Escrow Holder. Escrow Holder’s
standard provisions (“Standard Provisions”), in the form approved by the Parties, shall also
constitute Escrow Instructions for purposes of this Agreement. The Parties agree that if there is
any conflict between the terms of this Agreement and the Standard Provisions, this Agreement
shall control.
3.3. Escrow Holder Duties. The Parties desire to be informed of the progress that is
made toward Close of Escrow. Therefore, by accepting this transaction for Escrow, Escrow
Holder expressly agrees to diligently provide notice to the Parties and their legal counsel of all
significant events or actions of a Party affecting the Escrow and the timing for Close of Escrow,
regardless of whether such event or action affects only one Party to this transaction. Escrow
Holder further agrees to make all reasonable efforts to be responsive to the communications or
inquiries from either of the Parties. The obligations of the Escrow Holder set forth herein are a
material part of the consideration given to the Parties in exchange for use of the Escrow Holder’s
services as described in this Agreement.
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3.4. Real Estate Reporting Person. Escrow Holder is hereby designated the “real
estate reporting person” for purposes of Section 6045 of Title 26 of the United States Code and
Treasury Regulation 1.6045-4 and any instructions or settlement statement prepared by Escrow
Holder shall so provide. Upon the consummation of the transaction contemplated by this
Agreement, Escrow Holder shall file Form 1099 information return and send the statement to
Seller as required under the aforementioned statute and regulation.
ARTICLE 4
PAYMENT OF PURCHASE PRICE
The Purchase Price shall be payable upon the Close of Escrow in accordance with the
following procedures:
4.1. Deposit. Buyer shall deliver the Deposit, by wire transfer or bank check in
immediately available funds, to Escrow Holder, within five (5) business days after the Escrow
Opening Date. Escrow Holder shall place the Deposit in an interest-bearing account with
interest credited to Buyer. The Deposit shall be applied against the Purchase Price at Close of
Escrow. Seller shall not be bound by this Agreement unless Buyer delivers the Deposit to
Escrow Holder within said five (5)-day period.
4.2. Deposit Release. After Seller has delivered to Escrow Holder a copy of Seller’s
delivered notice to the Tenant stating that Tenant’s lease of the Property shall not be extended
beyond July 31, 2015, and that the Tenant shall vacate the Property by August 1, 2015, Escrow
Holder shall, within two (2) business days, release to the Seller an amount of the Deposit equal
to the Deposit Release. The amount of the funds so released shall be applied against the
Purchase Price at Close of Escrow as part of the Deposit.
4.3. Balance of Purchase Price. The balance of the Purchase Price, together with all
other funds necessary on the part of Buyer to enable Escrow Holder to comply with these
instructions, shall be paid in immediately available funds by Buyer to Escrow Holder on or
before the Closing Date. For purposes of calculating the balance of the Purchase Price payable
by Buyer hereunder, Buyer shall be credited with (i) the Deposit, and (ii) Buyer’s share of the
prorations in Buyer’s favor.
4.4. Delay of Closing Date/750 Mitchell Delay Fee and Release.
4.4.1. At any time after all of the conditions precedent set forth in
Article 8 (including, but not limited to, the condition
precedent set forth in Section 8.1.6 and specifically
excluding the condition precedent set forth in Section 8.1.2)
have been satisfied or waived but no less than five (5)
business days prior to the then-scheduled Closing Date,
Buyer may elect to extend the then-scheduled Closing Date
for a period of Thirty (30) days by delivering to Escrow
Holder (i) the sum of Ten Thousand Nine Hundred Ninety-
Seven Dollars and Forty Cents ($10,997.40) by wire
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transfer or bank check in immediately available funds in
payment, in advance, of the 750 Mitchell Delay Fees for
the ensuing Thirty (30)-day period (the “Monthly 750
Mitchell Delay Fees”) and (ii) written notice of Buyer’s
election to extend the then-scheduled Closing Date for said
Thirty (30)-day period (the “Extended Closing Date
Notice”) and instruction to Escrow Holder to immediately
release the full amount of said Monthly 750 Mitchell Delay
Fees to Seller.
4.4.2. Buyer’s failure to timely deliver any Extended Closing
Date Notice and the Monthly 750 Mitchell Delay Fees to
Escrow Holder shall be conclusively deemed, for all
purposes, to be Buyer’s election not to extend the then-
scheduled Closing Date.
4.4.3. All Monthly 750 Mitchell Delay Fees released by Escrow
Holder to Seller shall not be refundable to Buyer under any
circumstances whatsoever and shall not be credited toward
the Purchase Price at the Close of Escrow.
4.4.4. Notwithstanding the foregoing, irrespective of any
extended Closing Date, Buyer may elect to close Escrow at
any time during any Thirty (30)-day extension period in
which case Buyer shall be entitled to a credit through
Escrow for the unused portion of the Monthly 750 Mitchell
Delay Fees applicable to the current Thirty (30)-day
extension period equal to the daily 750 Mitchell Delay Fee
multiplied by the number of days between the actual
Closing Date and the end of the current Thirty (30)-day
extension period.
4.5. Return of Deposit.
4.5.1. If Escrow is terminated prior to the Closing Date and
provided that Buyer is not in material default hereunder, the
Deposit held by Escrow and all interest accrued thereon, if
any, shall be returned to Buyer in the event, and only in the
event, of any of the following: (i) Seller is in material
breach or default of any term or provision of this
Agreement; (ii) Buyer elects to terminate Escrow in
accordance with the provisions of Sections 5.3.3(ii) and
5.3.4; (iii) the Property is damaged, destroyed or an action
for condemnation pursuant to Section 23 (and except as
disclosed therein) is instituted against the Property or any
part thereof; (iv) Buyer elects to terminate Escrow prior to
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the expiration of the Due Diligence Period as provided in
Section 6.3.2; (v) Buyer elects to terminate Escrow on or
before December 31, 2015 due solely to the failure of the
condition precedent set forth in Section 8.1.2; or (vi) Buyer
elects to terminate Escrow at any time due to the failure of
the conditions precedent set forth in Sections 8.1.1, 8.1.3,
8.1.4, 8.1.5, 8.1.6 or 8.1.7.
4.5.2. In all other instances not set forth in Section 4.4.1, hereof,
and provided that Seller is not in material default
hereunder, the Deposit and all interest accrued thereon shall
be delivered by Escrow Holder to Seller.
ARTICLE 5
TITLE TO PROPERTY
5.1. Preliminary Title Report. Within five (5) business days after the Escrow Opening
Date, Seller shall provide from the Title Company a preliminary title report, issued by the Title
Company and dated as of a date within fifteen (15) days of the Escrow Opening Date, pertaining
to the Property (the “Preliminary Title Report”), together with complete and legible copies of
all documents relating to the title exceptions referred to in such Preliminary Title Report (the
“Underlying Documents”).
5.2. Survey. Buyer may obtain at its sole cost and expense an ALTA survey (the
“Survey”) of the Property.
5.3. Title Exceptions.
5.3.1. At any time prior to the expiration of the thirty (30) days
following Buyer’s receipt of the Preliminary Title Report
and Underlying Documents, Buyer shall notify Seller and
Escrow Holder in writing of any title exceptions identified
in the Preliminary Title Report which Buyer disapproves.
Any exceptions shown on the Preliminary Title Report
which are not disapproved in writing on or before the
expiration of the Due Diligence Period shall be deemed
approved by Buyer and shall constitute “Permitted
Exceptions” hereunder. Buyer and Seller hereby agrees
that all non-delinquent property taxes and assessments shall
be deemed Permitted Exceptions.
5.3.2. If Buyer disapproves any exceptions reflected in the
Preliminary Title Report (“Disapproved Exceptions”),
Seller shall have a period of ten (10) business days,
commencing at the time of such disapproval, within which
to remove, cure, obtain endorsements against, or otherwise
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provide assurances satisfactory to Buyer and the Title
Company with respect to any such exception to title.
Seller’s failure to timely respond to Buyer’s notice of
Disapproved Exceptions shall be deemed Seller’s election
not to eliminate the Disapproved Exceptions. All monetary
liens shall be deemed Disapproved Exceptions and Seller
shall be obligated to eliminate them before or at the Closing
Date.
5.3.3. If a cure satisfactory to Buyer of such Disapproved
Exceptions is not effected within said ten (10)-business day
period, Buyer shall elect, in writing delivered to Seller and
Escrow Holder, within ten (10) days thereafter, to either (i)
waive its disapproval of such exceptions, in which case
such exceptions shall then be deemed to be Permitted
Exceptions, (ii) terminate this Agreement, or (iii) agree, in
writing, with Buyer to extend Buyer’s time to cure.
5.3.4. In the event Buyer elects to terminate this Agreement in
accordance with clause 5.3.3(ii) above, the Deposit, plus all
interest accrued thereon while in Escrow, shall be
immediately refunded to Buyer, less any amounts due to
Escrow Holder from Buyer pursuant to Section 4.5.1 of this
Agreement. Escrow Holder shall immediately return all
other documents, instruments and moneys to the Party that
deposited the same.
5.3.5. In the event that Escrow Holder or Seller agrees that it shall
remove, cure, or endorse against any Disapproved
Exception, such removal, cure, or endorsement shall be a
condition precedent to the Close of Escrow.
5.4. Additional Exceptions. If any subsequent Preliminary Title Report shall disclose
any additional material title exceptions, defects or encumbrances which materially affect the
value of the Property, then Buyer shall have an additional ten (10)-day period to approve or
disapprove such item in its reasonable discretion subject to the foregoing process.
ARTICLE 6
DUE DILIGENCE PERIOD
6.1. Inspections. During the period commencing on the Escrow Opening Date and
ending on the date which is sixty (60) days after the Escrow Opening Date (the “Due Diligence
Period”), Buyer, its agents and representatives shall be entitled to enter onto the Property during
reasonable business hours to perform inspections and tests of the Property and the structural and
mechanical systems within any Improvements, including, without limitation, soil, geological and
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environmental assessments of the Property, all at Buyer’s sole cost and expense. Buyer agrees to
conduct such inspection in accordance with the following:
6.1.1. The persons or entities performing any tests shall be
properly licensed and qualified; shall have obtained all
appropriate permits for performing such tests; shall perform
all such tests in a legal and safe manner; shall not permit
any dangerous, unprotected or nuisance conditions to exist
on the Property; and shall, at all times, protect the Property,
the Tenant and the general public from personal injury and
property damage in connection therewith;
6.1.2. Seller shall have the right of approval, in Seller’s sole
discretion, of any proposed physical testing, drilling or
Phase II environmental testing;
6.1.3. Buyer shall advise Seller in writing at least two (2) business
days in advance of the dates of all tests unless Seller waives
the requirement for such notice in writing and Buyer shall
schedule all tests during normal business hours and with
minimal inconvenience to the Tenant whenever feasible;
6.1.4. Prior to entry onto the Property for testing, Buyer shall
provide Seller with evidence of Buyer’s participation in the
alternative risk management program operated by Ventura
County Schools Self-Funding Authority in accordance with
the Joint Exercise of Powers Act, and Seller shall be named
an additional insured under the applicable coverage
memoranda;
6.1.5. Seller shall have the right to have a representative of Seller
accompany Buyer and Buyer’s representatives, agents or
designees while they are on the Property, unless Buyer,
acting through its employees, and not any third party,
enters the Property to walk through or around the Property
without conducting any physical tests, and without being
accompanied by any equipment;
6.1.6. Buyer shall deliver to Seller a copy of each test report
promptly after its receipt by Buyer;
6.1.7. Buyer shall indemnify, defend and hold harmless Seller, its
members, officers, managers, agents, employees, and
representatives for, from and against any and all claims,
damages, costs, liabilities and losses (including mechanic’s
liens) arising out of any entry by Buyer or its agents,
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designees or representatives, and this indemnity shall
survive the Close of Escrow or earlier termination of this
Agreement; provided, however, that Buyer shall not be
obligated to indemnify, defend, and hold harmless Seller its
members, officers, managers, agents, employees, and
representatives from claims, liabilities, damages, and costs
arising out of acts or omission of Seller, members, officers,
managers, agents, employees, or representatives; pre-
existing defects in the Property; the existence of hazardous
substances and materials discovered on the Property by
Buyer or its agents; or the discovery of conditions, facts, or
circumstances that adversely affect or may adversely affect
the value of the Property but not caused by Buyer or
Buyer’s agents;
6.1.8. Buyer shall, at its sole cost and expense, repair any damage
to the Property which was caused by any inspection or
testing of the Property by Buyer if this transaction does not
close (provided, however, that in no event shall Buyer be
obligated to treat, contain, dispose of, remove, remediate,
or otherwise handle any hazardous or toxic substance not
placed on the Property by Buyer or Buyer’s agents). Until
such repair is complete, Buyer will take all reasonable steps
necessary to ensure that any conditions on the Property
created by Buyer’s testing will not unreasonably interfere
with the normal operation of the Property or create any
dangerous, unhealthy, unsightly or noisy conditions on the
Property;
6.1.9. Buyer shall maintain any test results and reports in a
confidential manner and shall not, without Seller’s written
consent, release the same to any third party, except as may
otherwise be mandated upon Buyer by law; and
6.1.10. Seller shall reasonably cooperate with Buyer in any and all
investigations including the sharing of any information or
knowledge it has concerning the Property, including the
Improvements, with Buyer.
6.1.11. Buyer shall, at Buyer’s sole cost and expense, immediately
upon completion of each inspection, test or other
assessment or examination of the Property: (i) return the
Property to the same physical condition as existed
immediately prior thereto; (ii) comply fully with any and
all legal requirements applicable to such inspection, test or
other assessment or examination of the Property and the
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closing of any and all borings; (iii) properly and legally
dispose of any and all debris, soil borings and/or refuse
produced, generated or brought upon by the Property in
connection therewith; and (iv) remove any and all
equipment and vehicles utilized in connection therewith.
6.2. Review of Documents. During the Due Diligence Period, Buyer, its agents and
representatives shall have the opportunity to review: (i) the Preliminary Title Report, and (ii) all
of the documents delivered to Buyer pursuant to Section 7 hereof, as well as any other materials
Buyer may elect to obtain and review with respect to the Property. Upon reasonable advance
notice to Seller, Buyer, its agents and representatives shall be entitled to inspect, during Seller’s
regular business hours, all documents in Seller’s possession relating to the Property. Seller shall
reasonably identify and assist the Buyer in locating any such documents, to the extent that Seller
can do so without incurring any out-of-pocket costs. Such documents may include building
permits, certificates of occupancy, environmental assessments, toxic reports, surveys, soils and
geological reports, engineering and structural tests, insurance contracts, contracts for work in
progress, governmental agreements and approvals, architectural plans and site plans; provided,
however, Buyer acknowledges and agrees that Seller makes no representation or warranty that
such items are in Seller’s possession. In addition, at Buyer’s cost and with reasonable advance
notice to Seller, Buyer, its agents and representatives, including its accountants, shall be entitled
to review, during Seller’s regular business hours, all books and records of Seller relating to the
Property.
6.3. Approval Notices.
6.3.1. Notice. At any time during the Due Diligence Period,
Buyer can elect to approve or disapprove, in Buyer’s sole
discretion, the suitability of the Property for Buyer’s
intended purposes. Buyer shall deliver written notice (the
“Due Diligence Notice”) of its approval or disapproval of
such matters to Seller and Escrow Holder at any time prior
to the expiration of the Due Diligence Period. The Due
Diligence Notice shall set forth the basis of any disapproval
by specifying the adverse condition or conditions relating
to the suitability of the Property for Buyer’s intended
purposes.
6.3.2. Disapproval. In the event that Buyer disapproves any
matters in the Due Diligence Notice prior to the expiration
of the Due Diligence Period, then the Parties shall meet in
good faith to attempt to resolve the adverse conditions
specified in the notice. Pursuant to the Parties’ meet and
confer, (i) Seller may elect to remove or remediate the
adverse conditions, in which event, Seller shall do so prior
to Close of Escrow; provided that the Parties may agree, by
separate written agreement, to completion or removal of the
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adverse conditions after Close of Escrow; (ii) Buyer may
waive the disapproval; or (iii) if Seller is unable or
unwilling to resolve the adverse conditions to Buyer’s
satisfaction, and Buyer is unwilling to waive the
disapproval, then Buyer may, in its sole discretion, elect to
terminate Escrow. In the event of Buyer’s election to
terminate the Escrow in accordance with this Section 6.3.2,
Escrow Holder shall reimburse Buyer the Deposit as set
forth in Section 4.5.1 of this Agreement, and immediately
return all other documents, instruments and moneys to the
Party that deposited same net of Buyer’s costs.
6.3.3. Approval. In the event that Buyer delivers a Due Diligence
Notice prior to the expiration of the Due Diligence Period
approving the due diligence matters, Buyer and Seller shall
proceed to the Close of Escrow in accordance with the
terms of this Agreement.
6.3.4. Failure to Deliver Notice. Buyer’s failure to deliver the
Due Diligence Notice prior to the end of the Due Diligence
Period shall be deemed to be Buyer’s approval of all due
diligence matters and its election to proceed with the Close
of Escrow.
ARTICLE 7
SELLER’S INITIAL DELIVERIES
Seller shall deliver to Buyer within three (3) business days after the Escrow Opening
Date, copies of the following documents in Seller’s possession: current year property tax bills
and insurance bill; building plans; all equipment maintenance records; environmental reports, if
any in, all service contracts (e.g., landscaping, maintenance, parking lot sweeping, etc.) that shall
survive the Close of Escrow; and all equipment warranties that shall survive the Close of
Escrow. Any other documents required by Buyer shall be obtained by Buyer at its sole cost and
expense.
ARTICLE 8
CONDITIONS PRECEDENT
The following shall be the conditions precedent to the Parties’ obligations to consummate
the purchase and sale transaction contemplated herein:
8.1. Conditions to Buyer’s Obligations. Buyer’s obligations hereunder, including, but
not limited to, its obligation to consummate the transaction provided for herein, are subject to the
satisfaction of each of the following conditions, each of which is for the sole benefit of Buyer
and may be waived by Buyer in writing on or before the Closing Date:
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8.1.1. Owner’s Policy. The Title Company shall stand ready to
issue, on the Closing Date, a CLTA Owner’s Title
Insurance Policy, or, provided Buyer timely provides the
ALTA Survey to the Title Company, an ALTA Owner’s
Title Insurance Policy; in a form reasonably satisfactory to
Buyer (the “Owner’s Policy”) with liability equal to the
Purchase Price, showing title vested in Buyer, subject only
to the Permitted Exceptions.
8.1.2. Close of Escrow for Adjoining Property. Buyer shall have
executed an agreement to purchase the parcel of real
property located at 750 Mitchell Road, Newbury Park,
California, identified by APN 667-0-060-605, and Buyer’s
acquisition of said property shall successfully consummate
with a closing date within twenty-four (24) hours of the
Closing Date contemplated herein.
8.1.3. Due Performance. Seller shall have duly performed each
and every material undertaking and agreement to be
performed by it hereunder.
8.1.4. Damage, Destruction, Condemnation. This Agreement
shall not have been terminated by Buyer as a result of any
damage, destruction or condemnation of the Property as
described in Section 23 hereof (and except as otherwise
therein disclosed).
8.1.5. Seller’s Deliveries. Seller shall have delivered to Escrow
the items described in Section 10 hereof.
8.1.6. Occupancy. The Property shall be delivered to Buyer, at
the Close of Escrow, free of any occupancies, leases, and
tenancies.
8.1.7. Seller’s Warranties. Seller’s representations and warranties
herein shall be true and correct in all material respects as of
the Closing Date.
8.1.8. Waiver of Conditions. Buyer may at any time or times on
or before the Close of Escrow, at its election, waive any of
the foregoing conditions to its obligations hereunder and
consummate the sale, but any such waiver shall be effective
only if contained in a writing signed by Buyer and
delivered to Seller.
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8.2. Conditions to Seller’s Obligations. Seller’s obligation to close the purchase and
sale of the Property provided for herein is subject to the satisfaction of the following conditions,
which are for the sole benefit of Seller and may be waived by Seller in writing:
8.2.1. Buyer’s Deliveries. Buyer shall have delivered to Escrow
Holder the Deposit and the items required to be delivered
by Buyer pursuant to Section 11 hereof.
8.2.2. Investor and Lender Approval. Seller shall have fifteen
(15) days from the date of this Agreement to receive both
investor and lender approval of this transaction.
8.2.3. Due Performance. Buyer shall have duly performed each
and every material undertaking and agreement to be
performed by it hereunder.
8.2.4. Owner’s Policy. The Title Company shall stand ready to
issue, on the Closing Date, the Owner’s Policy with
liability equal to the Purchase Price, showing title vested in
Buyer, subject only to the Permitted Exceptions.
8.2.5. Buyer’s Warranties. Buyer’s representations and
warranties herein shall be true and correct in all material
respects as of the Closing Date.
8.2.6. Waiver. Seller may waive in writing any or all of such
conditions in its sole and absolute discretion.
ARTICLE 9
COVENANTS OF SELLER
Seller hereby covenants with Buyer, as follows:
9.1. Contracts. After the date of this Agreement and prior to the Close of Escrow, no
part of the Property, or any interest therein, will be sold or otherwise transferred or further
encumbered beyond what is now of record without Buyer’s consent which shall not be
unreasonably withheld. Seller shall not, without the prior written approval of Buyer (which
approval shall not be unreasonably withheld or delayed), (i) make any material alterations to the
Property or (ii) enter into or amend any service, maintenance or other contracts relating to the
Property (the “Contracts”). Seller shall terminate as of the Close of Escrow such Contracts as
Buyer requests in writing during the Due Diligence Period provided that such termination can be
effected with no out-of-pocket costs to Seller, and any remaining Contracts shall be assigned to
Buyer (to the extent assignable) as of the Close of Escrow.
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9.2. Operation and Maintenance. Until the Close of Escrow, Seller will operate and
maintain the Property in the manner in which it is being operated and maintained on the date of
this Agreement, subject to normal wear and tear.
9.3. Seller’s Obligations. Seller shall perform and discharge promptly when due all of
its covenants and obligations under the Contracts and other agreements binding on Seller with
respect to the Property which are due prior to the Close of Escrow.
9.4. Removal of Tenant. Provided that Buyer has not elected to terminate the Escrow
pursuant to Sections 5.3.3(ii) or 6.3.2(c), hereof, then within five (5) days following the
expiration of the Due Diligence Period, Seller shall provide Tenant with notice to vacate the
Property and Seller shall thereafter, at Seller’s sole cost and expense, diligently pursue all legal
means to effect the removal of the Tenant from the Property prior to the Closing Date and
Seller’s failure to effect the removal of Tenant from the Property prior to the Closing Date, as
extended, shall not be deemed a breach hereunder by Seller so long as Seller is diligently
pursuing all legal means in connection therewith. Provided Seller is diligently pursuing all legal
means to effect the removal of the Tenant from the Property, the Closing Date shall be extended
as necessary to allow for that effort up to December 1, 2015..
ARTICLE 10
SELLER’S CLOSING DELIVERIES
Not less than three (3) business days prior to the Closing Date, Seller shall deliver or
cause to be delivered to Escrow Holder the following items, in form and substance satisfactory to
Buyer:
10.1. One (1) fully-executed and acknowledged Grant Deed conveying the Property,
subject only to the Permitted Exceptions;
10.2. Two (2) Assignment and Assumption of Contracts in the form attached hereto as
Exhibit “B” (the “Contract Assignment”), in favor of Buyer, as assignee, duly executed in
counterpart by Seller, conveying the property and any Contracts which Buyer shall have
requested pursuant to Section 9.1, above;
10.3. A Certificate of Non-Foreign Status duly executed by Seller certifying that Seller
is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code
of 1986, together with California Form 597W Real Estate Withholding Exemption Certificate,
duly executed by Seller;
10.4. Originals (or copies certified by Seller as true and correct) of all executed
Contracts which are assigned to Buyer; and
10.5. Such other documents as may otherwise be necessary or reasonably required by
Escrow Holder to effect the sale, conveyance and delivery of the Property to Buyer.
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ARTICLE 11
BUYER’S CLOSING DELIVERIES
On or before the Closing Date, Buyer shall deliver to Escrow Holder (or Seller as
otherwise hereinafter provided) the following items:
11.1. The balance of the Purchase Price, together with such other sums as Escrow
Holder shall require to pay Buyer’s share of the closing costs and prorations in accordance with
this Agreement;
11.2. Two (2) Contract Assignments duly executed in counterpart by Buyer; and
11.3. Any other documents, instruments, funds or agreements necessary to consummate
the transactions contemplated herein reasonably requested by Seller or Escrow Holder.
ARTICLE 12
CLOSE OF ESCROW
Provided that Escrow Holder shall not have received written notice in a timely manner
from Buyer or Seller of the failure of any condition to the Close of Escrow or of the termination
of the Escrow, and if and when Buyer and Seller have deposited into Escrow the matters required
by this Agreement and Title Company can and will issue the Owner’s Policy concurrently with
the Close of Escrow, Escrow Holder shall:
12.1. Deliver to Buyer: (i) the Grant Deed by causing it to be recorded in the Official
Records of the Ventura County, California and immediately upon recording delivering to Buyer
a conformed copy of the Grant Deed; (ii) the Certificate of Non-Foreign Status and California
Form 597; (iii) the Contract Assignment; (iv) any funds deposited by Buyer, and any interest
earned thereon, in excess of the amount required to be paid by Buyer hereunder; (v) the Owner’s
Policy; and (vi) the original executed Contracts, unless Buyer and Seller have made
arrangements for delivery thereof outside of Escrow.
12.2. Deliver to Seller: (i) the balance of the Purchase Price, after satisfying the closing
costs, prorations and adjustments to be paid by Seller pursuant to this Agreement; and (ii) the
Contract Assignment.
ARTICLE 13
CLOSING COSTS
Buyer shall pay (i) one-half of Escrow Holder’s Escrow fee, (ii) Escrow Holder’s
customary charges to buyers for document drafting, recording and miscellaneous charges,
(iii) the portion of the title insurance premium for an ALTA Owner’s Policy in excess of the
amounts payable by Seller as provided below together with any charges for title endorsements
requested by Buyer, (iv) the cost of the updated ALTA Survey, if any. Seller shall pay (i) one-
half of Escrow Holder’s Escrow fee, (ii) Escrow Holder’s customary charges to sellers for
document drafting, recording and miscellaneous charges, (iii) all documentary transfer stamps
6697-103507\1249581.2
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and taxes, and all sales and use taxes, and (iv) the portion of the title insurance premium for the
Owner’s Policy equal to the premium that would be payable for a CLTA Owner’s Policy of title
insurance. The foregoing provisions of this Section notwithstanding, should this Agreement be
terminated, Buyer and Seller shall each pay one-half of the cost of the Escrow cancellation fees
and other amounts due Escrow Holder; provided, however, that should this Escrow be terminated
as a result of the material default by one of the Parties hereto, the defaulting Party shall pay the
entire amount of the cancellation fees and other amounts due Escrow Holder and the non-
defaulting Party shall have no liability therefor. Except as otherwise provided in Section 28.1
hereof, Buyer and Seller shall each pay their own attorneys’ fees in connection with the
preparation and negotiation of this Agreement and the consummation of the transactions
contemplated hereby.
ARTICLE 14
TERMINATION
If any condition to Buyer’s obligations hereunder, as provided for in Section 8.1 hereof,
is not satisfied or waived and provided Buyer is not in material default hereunder, Buyer may
elect to terminate Escrow by written notice to Seller and Escrow Holder. If any condition to
Seller’s obligations hereunder, as provided for in Section 8.2 hereof, is not satisfied or waived
and provided Seller is not in material default hereunder, Seller may elect to terminate Escrow by
written notice to Buyer and Escrow Holder. Upon receipt of any such notice, Escrow Holder
shall promptly pay the amount of the Deposit plus the accrued interest thereon, if any, while in
Escrow, to Buyer or Seller as set forth in Section 4.4, hereof, and Buyer and Seller shall pay the
cost of the Escrow cancellation fees and other amounts due Escrow Holder as set forth in Section
13 above.
ARTICLE 15
PRORATIONS
15.1. Prorated Items. As of the Close of Escrow, Escrow Holder shall prorate the
following items on the basis of the actual number of days of the month which have elapsed as of
the Closing Date and based upon a three hundred sixty-five (365)-day year:
15.1.1. Taxes and Assessments. All taxes and assessments
applicable to the Property shall be prorated, including,
without limitation, all property taxes and assessments and
any transient occupancy taxes. With respect to prorations
related to real property taxes and assessments, the basis for
said proration shall be the amount shown for real property
taxes and assessments in the first installment of the current
fiscal year. No adjustment shall be made for any change in
the real property taxes and assessments occurring by virtue
of the sale of the Property to Buyer.
15.1.2. Utility Charges. To the extent Seller is responsible for any
utility charges at or relating to the Property, Seller shall use
6697-103507\1249581.2
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commercially reasonable efforts to cause all such utility
billings to be closed and billed by the respective utility
companies as of the Close of Escrow in order that utility
charges may be separately billed for the period prior to the
Close of Escrow and the period after the Close of Escrow.
In the event any such utility charges are not separately
billed, the same shall be prorated. In connection with any
such proration, it shall be presumed that utility charges
were uniformly incurred during the billing period in which
the Close of Escrow occurs.
15.1.3. Operating Expenses. There shall be prorated as of the
Close of Escrow any operating expenses which were either
(i) prepaid by Seller for a period beyond the Close of
Escrow, or (ii) with respect to which payment is due after
the Close of Escrow, and the amount billed after the Close
of Escrow includes charges applicable to the period prior to
the Close of Escrow.
15.2. Statement of Prorations. At least five (5) business days prior to the Closing Date,
Seller shall deliver to Buyer a tentative statement of prorations setting forth a preliminary
determination of the foregoing prorations and supported by all detail necessary to make such
determination. Prior to the Close of Escrow, Buyer and Seller shall agree on the statement of
prorations showing the net proration credit to be received by either Seller or Buyer, as the case
may be. The approved statement of prorations shall be delivered to Escrow Holder duly
executed by both Buyer and Seller. Based on the statement of prorations, Escrow Holder shall
make the appropriate adjustments in funds paid or received by the Parties at Close of Escrow.
Escrow Holder shall be entitled to rely exclusively on the statement of prorations as to all
prorations provided for therein, and Escrow Holder shall have no liability for any error or
miscalculation contained in the statement of prorations.
15.3. Proration Adjustments. The amount of such prorations shall be initially
performed by Escrow Holder pursuant to the statement of prorations but shall also be subject to
adjustment in cash after the Close of Escrow outside of escrow as and when complete and
accurate information becomes available, if such information is not available on the Closing Date.
Seller and Buyer agree to cooperate and use their best efforts to make such adjustments no later
than ninety (90) days after the Close of Escrow.
ARTICLE 16
ASSUMPTION OF LIABILITIES BY BUYER
Effective as of the Close of Escrow, Buyer hereby assumes all obligations and liabilities
of Seller under any Contracts specifically assigned to Buyer pursuant to Section 9.1 hereof,
except all obligations and liabilities with respect thereto (“Pre-Closing Obligations”) which
arose prior to the Close of Escrow (which obligations and liabilities are to be discharged by
Seller); provided, however, that, if Buyer shall have received proration credit in accordance with
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Section 15 hereof with respect to any Pre-Closing Obligations, Buyer shall be responsible for
discharging the same to the extent of the proration credit received.
ARTICLE 17
REPRESENTATIONS AND WARRANTIES
17.1. In General. There are no representations, agreements, arrangements or
circumstances, oral or written, between the Parties relating to the subject matter contained in this
Agreement that are not fully expressed in this Agreement and neither Seller nor Buyer has made
or does make any representation or warranty concerning any matter or thing affecting or relating
to the Property not expressed in this Agreement.
17.2. Representations and Warranties of Seller. Seller hereby makes the following
representations and warranties, regardless of what investigations Buyer shall have made with
respect thereto prior to the Close of Escrow, which representations are true in all respects as of
the date hereof:
17.2.1. Title. Seller owns the Property in fee simple.
17.2.2. Free of Liens. The Property, as of the Closing Date, shall
be free of liens, encumbrances, claims, charges and
occupancies, except for those classified as Permitted
Exceptions under this Agreement.
17.2.3. Due Authorization. Seller has the requisite right, power,
legal capacity and authority to enter into and fully perform
each and all of its obligations under this Agreement. The
individuals executing this Agreement on behalf of Seller
have the requisite right, power, legal capacity and authority
to execute and enter into this Agreement on behalf of
Seller, to legally bind Seller to the terms and provisions of
this Agreement and to execute all other documents and take
all other actions as may reasonably be necessary to perform
each and all of Seller’s obligations under this Agreement.
Seller has provided or will, prior to Close of Escrow,
provide Buyer with a certified copy of Seller’s duly filed
Statement of Information, together with a certificate of
status certified by the California Secretary of State.
17.2.4. Eminent Domain. Except as set forth in Section 23, to the
Seller’s Knowledge, there is no existing, and to Seller’s
Knowledge, proposed or contemplated eminent domain
proceedings that would affect the Property in any way
whatsoever.
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17.2.5. Litigation. Except as disclosed in writing by Seller to
Buyer during the Due Diligence Period, there is no
litigation or administrative proceeding pending or, to the
Seller’s Knowledge, threatened, which does or will affect
or involve the Property.
17.2.6. Violation of Agreements. Neither this Agreement nor
anything provided to be done hereunder, including, but not
limited to, the transfer, assignment and sale of the Property,
violates or shall violate any contract, agreement or
instrument to which Seller is a party or which, to Seller’s
Knowledge, affects the Property or any part thereof.
17.2.7. Binding Effect. This Agreement constitutes the legal, valid
and binding obligation of Seller enforceable against Seller
in accordance with its terms, except to the extent that such
enforcement may be limited by applicable bankruptcy,
insolvency, moratorium and other principles relating to or
limiting the rights of contracting parties generally.
17.2.8. No Consent. Except as in section 8.2.2, no other consent
from any third party is required before any of the Property
may be conveyed to Buyer or, if any such consents are
required, Seller will obtain the same prior to the Close of
Escrow.
17.2.9. Hazardous Substances. To Seller’s Knowledge, Seller has
disclosed to Buyer all material information in Seller’s
possession about the existence of any hazardous substances
in, at, on, under or about the Property; provided, however,
that Seller makes no representations with respect to
environmental or other conditions of the Property or the
existence of any hazardous substances. If Buyer purchases
the Property, Buyer shall take the Property “as is”. Seller
assigns to Buyer, effective upon the Close of Escrow, all
claims, counterclaims, defenses or actions, whether at
common law or pursuant to any other applicable federal or
state or other laws which Seller may have against third
parties relating to the existence of any hazardous substance
in, at, on, under or about the Property.
17.2.10. Defects. To Seller’s Knowledge, prior to Close of escrow,
Seller will have disclosed to Buyer all material information
in Seller’s possession about the existence of any known
latent or patent defects in or at the Property.
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17.2.11. Contract Default. To Seller’s Knowledge, Seller is not in
default under, and Seller has received no notice that any
event has occured which with the giving of notice or the
passage of time, or both, would constitute Seller’s material
default under any contract, transaction, agreement,
covenant, condition, restriction, lease, easement,
encumbrance or instrument pertaining to the Property.
17.2.12. Full Disclosure. To Seller’s Knowledge, Seller has made
no oral or written commitments or representations to, or
understandings or agreements with, any person, firm or
entity, any adjoining property owner, which are not of
record or otherwise disclosed to Buyer, or any authority
which would in any way be binding on Buyer and Seller
shall not make or enter into any such commitments,
representations, understandings or agreements without
Buyer’s written consent.
17.2.13. Bankruptcy. Seller is not bankrupt or insolvent under any
applicable federal or state statutes, nor has Seller filed for
protection or relief under any applicable bankruptcy or
creditor protection statute or has been threatened by
creditors with an involuntary application of any applicable
bankruptcy or creditor protection statute. Seller is not
entering into the transactions described in this Agreement
with an intent to defraud any creditor or to prefer the rights
of one creditor over any other.
17.2.14. Tax Consequences. Seller acknowledges that Buyer has
made no representations with respect to the tax
consequences of the transactions contemplated by this
Agreement and has sought or will seek its own tax counsel.
17.2.15. Seller’s Knowledge. The term “Seller’s Knowledge”, and
any other words of similar import, as used in this
Agreement with reference to Seller means the present
actual knowledge of Kevin Burnes at the time of the
disclosure or representation, with no duty to inquire or
investigate and expressly excluding constructive or imputed
knowledge of any kind or from any source. Mr. Burnes is
referred to herein merely to define the “Knowledge” of
Seller. Accordingly, Mr. Burnes shall incur no personal
liability whatsoever in connection with the foregoing
representations and warranties or any other obligation of
Seller hereunder, and Buyer shall not name such individual
personally in any action or complaint brought in connection
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with this Agreement or the Property, provided that this
limitation on personal liability shall not apply to any fraud
or willful deceit by Mr. Burnes.
17.3. Representations and Warranties of Buyer. Buyer hereby makes the following
representations and warranties, which representations are true in all respects as of the date hereof
and shall be true in all respects on the Close of Escrow:
17.3.1. Duly Organized. Buyer is a political subdivision of the
State of California duly organized and existing under the
laws of the State of California.
17.3.2. Due Authorization. Buyer has the requisite right, power,
legal capacity and authority to enter into and fully perform
each and all of its obligations under this Agreement. The
individuals executing this Agreement on behalf of Buyer
have the requisite right, power, legal capacity and authority
to execute and enter into this Agreement on behalf of
Buyer, to legally bind Buyer to the terms and provisions of
this Agreement and to execute all other documents and take
all other actions as may reasonably be necessary to perform
each and all of Buyer’s obligations under this Agreement.
17.3.3. Violation of Agreements. Neither this Agreement nor
anything provided to be done hereunder, including, but not
limited to, the transfer, assignment and sale of the Property,
violates or shall violate any contract, agreement or
instrument to which Buyer is a party or which affects the
Property or any part thereof.
17.3.4. Litigation. There is no court litigation or administrative
proceeding pending or, to the best knowledge of Buyer,
threatened, that could have a material and adverse effect on
Buyer’s purchase, ownership, or intended use of the
Property.
17.4. Continuing Disclosure; Survival of Representations. If Seller or Buyer learns or
is informed on or after the Escrow Opening Date but prior to the Closing Date that any fact or
situation within the scope of the representations and warranties set forth in Sections 17.2 and
17.3 exists or has occurred, it shall inform the other Party of such fact or occurrence within three
(3) days of acquiring such information, provided that if Seller obtains such knowledge within
three (3) days prior to the Closing Date, the Close of Escrow shall be deferred three (3) days
(unless the Parties agree otherwise in writing). The express representations and warranties made
in this Agreement are made as of the date of this Agreement and as of the Closing Date and shall
survive the Close of Escrow and the recordation of the Grant Deed for a period of three (3) years
and shall not merge into any instrument or conveyance delivered at the Close of Escrow.
6697-103507\1249581.2
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17.5. As-Is Conveyance. Buyer is relying upon its own inspection, investigation, and
analysis during the Due Diligence Period in entering this Agreement and is not relying in any
way upon any representations, statements, agreements, studies, reports, or other information or
material provided by Seller or its representatives regarding any such matters, except to the extent
expressly set forth in this Agreement. In addition, the Parties agree and understand that except as
expressly set forth in this Agreement, Seller is not making and has not made any warranties or
representations of any kind or character, express or implied, with respect to the Property,
including, without limitation, any representations and warranties pertaining to habitability or
fitness for a particular purpose. Except as expressly set forth in this Agreement, Buyer will
acquire the Property, if at all, “AS IS,” in its present state and condition, without
representation by Seller or its representatives as to any matter.
ARTICLE 18
FURTHER ASSURANCES
Seller will, whenever and as often as it shall be requested so to do by Buyer, and Buyer
will, whenever and as often as it shall be requested so to do by Seller, execute, acknowledge and
deliver, or cause to be executed, acknowledged or delivered, any and all such further
conveyances, assignments, confirmations, satisfactions, releases, instruments of further
assurance, approvals, consents, and any and all such further instruments and documents as may
be reasonably necessary, expedient or proper, provided such does not impose any out-of-pocket
cost on Seller, in order to complete any and all conveyances, transfers, sales and assignments
herein provided, and to do any and all other acts and to execute, acknowledge and deliver any
and all documents, provided such does not impose any out-of-pocket costs on Seller, as so
reasonably requested in order to carry out the intent and purpose of this Agreement.
ARTICLE 19
POSSESSION
Possession of the Property shall be delivered to Buyer upon Close of Escrow free of any
leases, tenancies or occupancies.
ARTICLE 20
INDEMNIFICATION
20.1. Indemnity by Seller. Seller shall indemnify, defend and hold Buyer, its partners,
directors, officers, employees and agents, harmless from all direct but not consequential loss,
expense (including reasonable attorneys’ fees), damage and liability resulting from (i) claims of
mechanics and materialmen based on work performed on or contracted for the Property prior to
the Closing Date (except for work performed by Buyer or contracted for by Buyer); (ii) claims
for personal injury, wrongful death, property damage or other tort claims against the Property or
Buyer based on events occurring and/or causes of action arising prior to the Close of Escrow
(except claims resulting solely from Buyer’s or Buyer’s agents’ and representatives’ acts); and,
(iii) claims arising from the breach by Seller of any representations and warranties made by
6697-103507\1249581.2
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Seller in Section 17.2 hereof. Seller’s indemnification obligations arising out of the breach of
any of Seller’s representations or warranties shall survive the Close of Escrow.
20.2. Indemnity by Buyer. In addition to Buyer’s indemnity, defense and hold harmless
obligations set forth elsewhere in this Agreement, Buyer shall indemnify, defend and hold Seller,
its partners, officers, directors, employees and agents harmless from all direct but not
consequential loss, expense (including reasonable attorneys’ fees), damage and liability resulting
from (i) claims of mechanics and materialmen based on work performed on or contracted for the
Property by Buyer, (ii) claims for personal injury, wrongful death, property damage or other tort
claims against Seller based solely on events occurring and/or causes of action arising subsequent
to the Close of Escrow (except claims resulting solely from Seller’s acts), (iii) claims arising
from the breach by Buyer of any post-closing obligations of Buyer and/or of the representations
and warranties made by Buyer in Section 17.3 hereof, and (iv) any claims by Seller’s tenants for
relocation assistance pursuant to California Government Code sections 7260, et seq. Buyer’s
indemnification obligations arising out of the breach of any of Buyer’s representations or
warranties shall survive the Close of Escrow.
ARTICLE 21
NOTIFICATION
During the period before the Closing Date, either Party shall advise the other as soon as
reasonably possible or practical in writing of any material adverse change in the condition of the
Property that comes to its attention, the discovery of any fact or event which would render any
representation or warranty of such Party in this Agreement untrue or materially misleading, and
the receipt of any written notice or other communication from any third person alleging that the
consent of such third person is or may be required in connection with the transactions
contemplated by this Agreement.
ARTICLE 22
NO ENCUMBRANCE
Neither Party shall, directly or indirectly, alienate, encumber, transfer, option, lease,
assign, sell or convey its interest or any portion of such interest in the Property or any portion
thereof prior to the Closing Date without the prior written consent of the other Party which shall
not be unreasonably withheld. Each Party shall timely discharge, before the Close of Escrow,
any and all obligations relating to work performed on or conducted at or materials delivered to
the Property from time to time by such Party, or at such Party’s direction or on its behalf, in
order to prevent the filing of any claim or mechanic’s lien with respect to such work or materials.
ARTICLE 23
DAMAGE, DESTRUCTION, OR CONDEMNATION
If prior to the Close of Escrow, there occurs any destruction of or damage or loss to the
Property or any portion thereof from any cause whatsoever, including, but not limited to, any
fire, flood, accident, release or other casualty which, according to Buyer’s good faith estimate
(the “Estimate”), would cost more than Fifty Thousand Dollars ($50,000.00) to repair or
6697-103507\1249581.2
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remediate, or any condemnation proceedings are commenced or threatened by an entity other
than Buyer in which the award would be Fifty Thousand Dollars ($50,000.00) or more, then
Buyer shall have the right, exercisable by delivering written notice to Seller and Escrow Holder
within ten (10) days after the determination of the amount of such cost or award, to either
(i) terminate this Agreement, in which case neither Party shall have any further rights or
obligations hereunder, and the Deposit and all interest accrued thereon shall be paid by Escrow
Holder as set forth in Section 4.4, hereof and all documents deposited in Escrow shall be
returned to the Party depositing the same, or (ii) accept the Property in its then condition and
proceed with the Close of Escrow in accordance with this Agreement, in which case Seller shall
assign to Buyer the right to any and all insurance proceeds or condemnation awards from any
entity other than Buyer recoverable as a result of such event. Buyer’s failure to deliver such
notice within the time period specified shall be deemed to constitute Buyer’s election to
terminate this Agreement. In the event the Estimate of the cost of repair, remediation or
condemnation award is less than Fifty Thousand Dollars ($50,000.00), then Buyer shall not have
the option to terminate this Agreement, and the Parties shall proceed to the Close of Escrow on
the terms described in clause (ii) above.
ARTICLE 24
SELLER DEFAULT
In the event Seller defaults in its obligations under this Agreement, Buyer’s sole recourse
shall be the return of the Deposit, plus accrued interest, together with a suit for monetary
damages to recover Buyer’s actual out-of-pocket costs and/or an action for specific performance.
In no event shall Seller be liable for any consequential damages.
ARTICLE 25
BUYER DEFAULT; LIQUIDATED DAMAGES
Prior to entering this Agreement, the Parties contemplated the fact that Seller would
suffer substantial damages in the event that Buyer defaults on its obligations under this
Agreement to purchase the Property. With the fluctuation in land values, the unpredictable state
of the economy and governmental regulations, the fluctuating money market for real estate loans
of various types, and other factors which directly affect the value and marketability of the
Property, the Parties realize that it would be extremely difficult and impracticable to ascertain the
amount of damages that Seller would suffer if Buyer defaults in its obligation to purchase the
Property. In the event that all of the conditions to Buyer’s obligations contained in this
Agreement have been satisfied or waived and Seller is not otherwise in material default under
this Agreement, if Buyer fails to perform its obligation under this Agreement to purchase the
Property, Seller shall, as its sole remedy, be entitled to the sum of Fifty Thousand Dollars
($50,000.00) as liquidated damages to be paid from the Deposit held by the Escrow Holder in
accordance with Section 4.5.2 hereof and as supplemented by the Buyer due to Escrow Holder’s
release of any 750 Mitchell Delay Fee.
Initials:
Seller Buyer
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ARTICLE 26
BROKER
At Close of Escrow, Seller and Buyer shall each pay a real estate broker’s commission
determined pursuant to separate written agreements between the parties and their respective real
estate brokers. The Parties further agree that no broker shall be a party to or third party
beneficiary of this Agreement or the Escrow and that no consent of any broker shall be necessary
for any agreement, amendment or document with respect to the transactions contemplated by this
Agreement.
ARTICLE 27
NOTICES
Any notice, request, demand, instruction or other document (each of which is herein
called a “Notice”) to be given hereunder to any Party shall be in writing and shall be delivered to
the person at the appropriate address set forth below by personal service (including express or
courier service), by electronic communication, whether by e-mail, facsimile, telex, telegram or
telecopy (if confirmed in writing) or by registered or certified mail, postage prepaid, return
receipt requested, as follows:
If to Buyer, to: Conejo Valley Unified School District
1400 East Janss Road
Thousand Oaks, CA 91362-2198
Attention: Dr. Jeffrey L. Baarstad
Telephone: (805) 497-9511
Fax: (805) 497-2581
Email: [email protected]
With copy to:
Myers, Widders, Gibson, Jones & Feingold, L.L.P.
5425 Everglades Street
Ventura, CA 93003
Attention: Monte L. Widders, Esq.
Telephone: (805) 644-7188
Fax: (805)644-7390
Email: [email protected]
If to Seller, to: SIMA Rancho Conejo, L.L.C.
SIMA Corporation
1231-B State Street
6697-103507\1249581.2
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Santa Barbara, CA 93101
Attention: Kevin J. Burnes, President
Telephone: (805) 965-1616, ext. 212
Fax: (805) 965-6368
Email: [email protected]
With copy to:
Jackson, DeMarco, Tidus, Peckenpaugh
2815 Townsgate Road, Suite 200
Westlake Village, CA 91361
Attention: Mark G. Sellers, Esq.
Telephone: (805) 418-1914
Fax: (805) 230-0087
Email: [email protected]
If to Title Company: Chicago Title Insurance Company
500 E. Esplanade Drive, Suite 102
Oxnard, CA 93036
Attention: Denise Hume
Escrow Number:
Telephone: (805) 656-1300
Fax: (805) 639-0682
Email: [email protected]
If to Escrow Holder: Chicago Title Insurance Company
500 E. Esplanade Drive, Suite 102
Oxnard, CA 93036
Attention: Linda Hamilton
Escrow Number:
Telephone: (805) 656-1300
Fax: (805) 639-0682
Email: [email protected]
A copy of any Notice given by Buyer or Seller to the other prior to the Close of Escrow shall
also be given to Escrow Holder as above provided. Notices so submitted shall be deemed to
have been given (i) on the date personally served, if by personal service, (ii) on the date of
confirmed dispatch, if by electronic communication, or (iii) forty-eight (48) hours after the
deposit of same in any United States Post Office mailbox in the state to which the Notice is
addressed, or seventy-two (72) hours after deposit in any such post office box other than in the
state to which the notice is addressed, postage prepaid, addressed as set forth above. The
addresses and addressees, for the purpose of this Section, may be changed by giving written
notice of such change in the manner herein provided for giving notice. Unless and until such
written notice of change is received, the last address and addressee stated by written Notice, or
provided herein if no such written Notice of change has been received, shall be deemed to
continue in effect for all purposes hereunder.
6697-103507\1249581.2
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ARTICLE 28
MISCELLANEOUS PROVISIONS
28.1. Attorneys’ Fees. If legal action is commenced to enforce or to declare the effect
of any provisions of this Agreement, the court as part of its judgment shall award reasonable
attorneys’ fees and costs to the prevailing Party. In addition to the foregoing award of attorneys’
fees to the prevailing Party, the prevailing Party in any lawsuit on this Agreement shall be
entitled to its reasonable attorneys’ fees incurred in any post-judgment proceedings to collect or
enforce the judgment. This attorneys’ fees provision is separate and several and shall survive the
merger of this Agreement into any judgment.
28.2. No Waiver. The waiver by one Party of the performance of any covenant,
condition or promise shall not invalidate this Agreement nor shall it be considered a waiver by
such Party of any other covenant, condition or promise hereunder. The waiver by either or both
Parties of the time for performing any act shall not constitute a waiver of the time for performing
any other act or identical act required to be performed at a later time. The exercise of any
remedy provided by law and the provisions of this Agreement for any remedy shall not exclude
other consistent remedies unless they are expressly excluded.
28.3. Construction. As used in this Agreement, the masculine, feminine or neuter
gender and the singular or plural numbers shall each be deemed to include the other whenever
the context indicates. This Agreement shall be construed as a whole and in accordance with its
fair meaning, the captions being for convenience only and not intended to fully describe or
define the provisions in the portions of the Agreement to which they pertain. Each Party hereto,
and counsel for each Party hereto, has reviewed and revised this Agreement, and the normal rule
of construction to the effect that any ambiguities are to be resolved against the drafting Party
shall not be employed in the interpretation or construction of this Agreement. If any portion of
this Agreement is determined to be invalid, such determination shall not affect the validity of the
balance of this Agreement, which shall remain in full force and effect.
28.4. Merger. It is agreed that all understandings and agreements heretofore had
between the Parties respecting this transaction, including, without limitation, any offers,
counteroffers or letters of intent, are merged in this Agreement, which fully and completely
expresses the agreement of the Parties. There are no representations, warranties or agreements
except as specifically and expressly set forth herein and in the exhibits annexed hereto.
28.5. Amendments. No change in or addition to this Agreement or any part hereof shall
be valid unless in writing and signed by or on behalf of the Party charged therewith.
28.6. Counterparts. This Agreement may be executed in any number of counterparts.
Each such counterpart hereof shall be deemed to be an original instrument but all such
counterparts together shall constitute but one agreement.
28.7. Computation of Periods. All periods of time referred to in this Agreement shall
include all Saturdays, Sundays and state or national holidays, unless the period of time specifies
6697-103507\1249581.2
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business days; provided that if the date or last date to perform any act or give any notice with
respect to this Agreement shall fall on a Saturday, Sunday or state or national holiday, such act
or notice may be timely performed or given on the next succeeding day which is not a Saturday,
Sunday or state or national holiday.
28.8. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of Seller and Buyer.
28.9. Assignment by Buyer. Buyer shall not assign this Agreement or any of its rights,
duties or obligations hereunder without the prior written consent of Seller.
28.10. Assignment by Seller. Seller shall not assign this Agreement or any of its rights,
duties or obligations hereunder without the prior written consent of Buyer.
28.11. Exhibits. All exhibits attached to this Agreement are incorporated herein by this
reference.
28.12. Headings. The Section headings herein are used for the purpose of convenience
only and shall not be deemed to limit the subject of the Sections or paragraphs of this Agreement
or to be considered in their construction. Unless otherwise specifically referring to another
instrument or document, references to “Sections” refer to the Sections of this Agreement.
28.13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
28.14. Time of the Essence. Time is of the essence of each and every provision of this
Agreement.
28.15. Severability If any provision of this Agreement shall become illegal, null or void
or against public policy for any reason or shall be held by any court of competent jurisdiction to
be illegal, null or void or against public policy, the remaining provisions of this Agreement shall
not be affected thereby and shall remain in full force and effect to the full extent permissible by
law.
28.16. Gender and Number In this Agreement, the masculine, feminine and neuter
genders and the singular and plural include one another, unless the context requires otherwise.
28.17. Relationship of the Parties The Parties agree that their relationship is that of seller
and buyer, respectively, and that nothing contained herein shall make either Party the fiduciary
of the other for any purpose whatsoever, nor shall this Agreement be deemed to create any form
of business organization between the Parties, including, without limitation, a joint venture or
partnership, nor is either Party granted any right or authority to assume or create any obligation
or responsibility on behalf of the other Party, nor shall either Party be in any way liable for any
debt of the other.
6697-103507\1249581.2
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28.18. Release. Effective upon the Close of Escrow, Buyer shall and hereby does waive,
relinquish and release Seller, and its officers, directors, employees, agents, trustees, accountants,
parents, subsidiaries, attorneys, shareholders, successors and all other persons acting for, under
or in concert with the others, past and present, of and from any and all claims, demands, actions,
causes of action, obligations, damages, liabilities, losses, costs or expenses, including attorneys’
fees, of any kind or nature whatsoever, past or present arising from, related to or in connection
with the presence of any hazardous substances, including, but not limited to, pesticides and
herbicides on the Property. Buyer expressly understands and acknowledges that it is possible
that unknown losses or claims exist or that present losses may have been underestimated in
amount or severity, and Buyer explicitly took that into account in determining the consideration
for the execution of this Agreement and a portion of said consideration, having been bargained
for between the Parties with the knowledge of the possibility of such unknown losses or claims,
was given in exchange for a full accord, satisfaction and discharge of all such losses or claims.
Consequently, Buyer expressly waives all rights under California Civil Code §1542, which
provides that:
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.
Notwithstanding said Section 1542, the Parties agree that this Section 28.18 shall act as a release
of all future claims that may arise from the above-described facts, whether such claims are
currently known or unknown, foreseen or unforeseen, suspected or unsuspected, actual or
potential, absolute or contingent, pending or anticipated, including, without limitation, any claim
for damages as yet not incurred; and the Parties intentionally and specifically waive any rights
they may have under the provisions of said Section 1542, as well as under any other statutes or
common law principles of similar effect, and each assumes full responsibility for such injuries,
damages, losses or liabilities that any of them may hereafter incur with respect to such claims.
28.19. Independent Counsel. Each Party to this Agreement admits, acknowledges, and
represents that it has had the opportunity to consult with and be represented by independent
counsel, including, without limitation, tax counsel, of such Party’s choice in connection with the
negotiation, execution, and amendment of this Agreement. Each Party further admits,
acknowledges, and represents that it has not relied upon any representations or statement made
by any of the attorneys and representatives of the other Party with regard to the subject matter of
this Agreement.
6697-103507\1249581.2
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IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the date
set forth above.
SELLER:
SIMA RANCHO CONEJO, L.L.C., a California
limited liability company
By:
Kevin Burnes, Manager
BUYER:
CONEJO VALLEY UNIFIED SCHOOL
DISTRICT, a political subdivision of the State of
California
By:
Dr. Jeffrey L. Baarstad, Superintendent
6697-103507\1249581.2
EXHIBIT “A”
LEGAL DESCRIPTION OF PROPERTY
APN: 667-0-060-605
PARCEL 1:
Parcel 1, as shown on the Parcel Map No. 4102 for McDonald Enterprises, Inc. being a portion
of Section 12, Township 1 North, Range 20 West, J. Edwards Tract No. 1, Rancho El Conejo as
filed in the Office of Ventura County Recorder on December 5, 1985 in Book 42 of Parcel Maps
at Page 53.
Except all oil, gas and hydrocarbon substances in, under and upon said land without the right to
drill, dig or mine through the surface of the land thereof, and without the right to enter or
encroach upon any portion of said land lying within 500 feet of the surface.
[NEED TO VERIFY LEGAL AS INCLUDED TO OTHER PARCELS]
6697-103507\1249581.2
EXHIBIT “B”
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND PROPERTY
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND PROPERTY (this
“Assignment”) is made as of April ____, 2015, by and between SIMA RANCHO, L.L.C., a
California limited liability company (“Assignor”), and CONEJO VALLEY UNIFIED SCHOOL
DISTRICT, a political subdivision of the State of California (“Assignee”), in connection with
and pursuant to that certain Agreement for Purchase and Sale of Real Property and Joint Escrow
Instructions (the “Purchase Agreement”), dated as of April ___, 2015, between Assignor, as
Seller, and Assignee, as Buyer. All capitalized terms not otherwise defined herein shall have the
definitions set forth in the Purchase Agreement.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignment. Assignor hereby grants, sells, conveys, transfers and assigns unto
Assignee all of Assignor’s right, title and interest in, to and under the contracts (the
“Contracts”) described on Exhibit “A” attached hereto and incorporated herein by this reference
(the “Property”).
2. Description of Property. The Property assigned hereunder is assigned without
representation or warranty on behalf of Assignor and shall consist of, all right, title and interest
of Assignor, if any, in the following items relating to the Property:
a. warranties, guarantees and indemnities (including, without limitation,
those for workmanship, materials and performance) which may exist from,
by or against any contractor, subcontractor, manufacturer, laborer or
supplier of labor, materials or other services relating to the Property; and
b. any zoning, construction, use, occupancy and operating permits, and all
other permits, entitlements, approvals, licenses and certificates obtained in
connection with the Property.
3. Further Instruments. Assignor hereby covenants that it will, at any time and from
time to time upon written request therefore, execute and deliver to Assignee, and its successors
and assigns, any new or confirmatory instruments and take such further acts as Assignee may
reasonably request, and which acts or instruments do not impose any out-of-pocket cost on the
Assignor and which are to fully evidence the assignment contained herein and to enable
Assignee, and its successors and assigns, to fully realize and enjoy the rights and interests
assigned hereby.
4. Binding Effect. The provisions of this Assignment shall be binding upon, and
inure to the benefit of, the successors and assigns of Assignor and Assignee, respectively. 5. Counterparts. This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which when taken together shall constitute
6697-103507\1249581.2
one and the same instrument. The signature page of any counterpart may be detached therefrom
without impairing the legal effect of the signature(s) thereon, provided such signature page is
attached to any other counterpart identical thereto.
IN WITNESS WHEREOF, Assignor and Assignee have caused their duly authorized
representatives to execute this Assignment as of the date first above written.
ASSIGNEE:
CONEJO VALLEY UNIFIED SCHOOL
DISTRICT, a political subdivision of the
State of California
By:
Dr. Jeffrey L. Baarstad, Superintendent
ASSIGNOR:
SIMA Rancho Conejo, L.L.C., a California limited
liability company
By:
Kevin Burnes, Manager
6697-103507\1249581.2
EXHIBIT “B-1” TO
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
Description of Contracts
6697-103507\1249581.2
EXHIBIT C
GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
Conejo Valley Unified School District
1400 East Janss Road
Thousand Oaks, California 91362-2198
Attention: Superintendent
MAIL TAX STATEMENTS TO:
Same as above
___________________________________________________________________________
Space Above for Recorder's Use Only
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, SIMA
RANCHO CONEJO, L.L.C., a California limited liability company, does hereby grant to
CONEJO VALLEY UNIFIED SCHOOL DISTRICT, a political subdivision of the State of
California, the real property described on Exhibit “A” attached hereto and incorporated herein by
reference, together with all appurtenant improvements, rights, easements, tenements and estates.
Dated: ___________ __, 2015
SIMA RANCHO L.L.C., a California limited
liability company
By: _____________________________________
Kevin Burnes, Manager
6697-103507\1249581.2
EXHIBIT D
ACKNOWLEDGEMENT OF ESCROW HOLDER
Chicago Title Company hereby acknowledges that it has received a fully-executed
counterpart of the foregoing Purchase and Sale Agreement and Joint Escrow Instructions (the
“Agreement”) and agrees to act as Escrow Holder under the Agreement and to be bound by and
perform the terms thereof as such terms apply to Escrow Holder.
CHICAGO TITLE COMPANY
By:_____________________________________
Linda Hamilton, Escrow Holder