exv10w1






Exhibit 10.1




PURCHASE AND SALE AGREEMENT




REGARDING




MORENO MARKETPLACE SHOPPING CENTER




IN THE CITY OF MORENO VALLEY,




COUNTY OF RIVERSIDE




 









 




PURCHASE AND SALE AGREEMENT
TABLE OF CONTENTS



	 	 	 
	Section 1.
	 	Definitions
	Section 2.
	 	Purchase and Sale
	Section 3.
	 	Purchase Price
	Section 4.
	 	Deposit
	Section 5.
	 	Liquidated Damages
	Section 6.
	 	Conditions Precedent
	Section 7.
	 	Representations and Warranties
	Section 8.
	 	Indemnification
	Section 9.
	 	Covenants
	Section 10.
	 	AS-IS, WHERE-IS Provision
	Section 11.
	 	Escrow
	Section 12.
	 	Closing Funds
	Section 13.
	 	Closing Costs
	Section 14.
	 	Prorations
	Section 15.
	 	Investigations
	Section 16.
	 	Further Assurances
	Section 17.
	 	Assignment
	Section 18.
	 	Successors and Assigns
	Section 19.
	 	Notices
	Section 20.
	 	Possession
	Section 21.
	 	Attorney’s Fees; Litigation Costs
	Section 22.
	 	Time of the Essence
	Section 23.
	 	Construction
	Section 24.
	 	Integration
	Section 25.
	 	Third-Party Rights
	Section 26.
	 	Severability
	Section 27.
	 	Waivers
	Section 28.
	 	Counterparts
	Section 29.
	 	Survival
	Section 30.
	 	Incorporation of Exhibits
	Section 31.
	 	Offer and Acceptance
	Section 32.
	 	Authority of Parties
	Section 33.
	 	Governing Law




	 	 	 
	EXHIBITS
	 	 
	A
	 	Legal Description of Real Property
	   A-1
	 	Pictorial Representation of the Real Property
	B
	 	Non-Foreign Affidavit of Seller
	C
	 	Purchaser’s Termination Notice
	D
	 	Warranty Bill of Sale




 







 




PURCHASE AND SALE AGREEMENT


     THIS PURCHASE AND SALE AGREEMENT (the, “Agreement”) is entered as of this 22nd
day of September 2009 (the “Effective Date”), between Moreno Marketplace, LLC, a California
limited liability company (the “Seller”), and Bill and John Skeffington, as individuals, or any
entity to which their obligations are assigned pursuant to the terms set out in Section
17(b) of this Agreement (collectively, the “Purchaser”).


RECITALS


     A. Seller is the owner of that certain real property located at the northwest corner of
Cactus Avenue and Moreno Beach Drive, in the City of Moreno Valley (the “City”), county of
Riverside (the “County”) and the State of California (the “State”), being comprised of
approximately 10.46 gross acres (the “Real Property”; all of which is more particularly described
in the attached Exhibit A to this Agreement), as well as Buildings A, B, D, E, F, G and H
(individually, a “Building” and collectively, the “Buildings”) which are located on the Real
Property and in total comprise approximately 78,079 gross square feet of retail space
(collectively, the “Improvements”; all of which are generally shown on Exhibit A-1 to
this Agreement). The Real Property and the Improvements shall collectively be referred to in this
Agreement as the “Property”.


     B. Purchaser desires to purchase the Property and Seller desires to sell the Property on the
terms and conditions in this Agreement.


     NOW THEREFORE, in exchange for the promises, covenants and commitments contained within this
Agreement (including, without limitation, those contained within the Recitals), as well as other
good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
parties do hereby agree as follows:


AGREEMENT


     Section 1. Definitions

As used in this Agreement, the terms hereafter set forth shall be defined as follows:


     “Agreement” shall be defined to have the meaning contained within the preamble.


     “Assignment of Contracts” is defined in Section 6(a)(vi) hereof.


     “Assignment of Leases” is defined in Section 6(a)(ix) hereof.


     “Business Day” means a calendar day on which banks in the City shall be open to
transact business.


     “Cash Payment” is defined in Section 3 hereof.


     “Close of Escrow” is defined in Section 11 hereof.


     “Closing Deadline” is defined in Section 11 hereof.


 







 




     “Condition of Title” is defined in Section 6(a)(i) hereof.


     “Conditions Precedent” is defined in Section 6(a) hereof.


     “Deposit” is defined in Section 3 hereof


     “Due Diligence Period” is defined in Section 6(a)(i) hereof.


     “Endorsements” is defined in Section 6(a)(iv) hereof.


     “Environmental Laws” means all federal, state, local, or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, or requirements of any government authority
regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous
Substance, or pertaining to occupational health or industrial hygiene (and only to the extent that
the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous
Substances on, under, or about the Property), occupational or environmental conditions on, under,
or about the Property, as now or may at any later time be in effect, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) [42
U.S.C.A. §§9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (“RCRA”) [42 U.S.C.A.
§§6901 et seq.]; the Clean Water Act also known as the Federal Water Pollution Control Act
(“FWPCA”) [33 U.S.C.A. §§1251 et seq.]; the Toxic Substances Control Act (“TSCA”) [15 U.S.C.A.
§§2601 et seq.]; the Hazardous Materials Transportation Act (“HMTA”) [49 U.S.C.A. §§1801 et seq.];
the Insecticide, Fungicide, Rodenticide Act [7 U.S.C.A. §§136 et seq.]; the Superfund Amendments
and Reauthorization Act [42 U.S.C.A. §§9601 et seq.]; the Clean Air Act [42 U.S.C.A. §§7401 et
seq.]; the Safe Drinking Water Act [42 U.S.C.A. §§300f et seq.]; the Solid Waste Disposal Act [42
U.S.C.A. §§6901 et seq.]; the Surface Mining Control and Reclamation Act [30 U.S.C.A. §§1201 et
seq.]; the Emergency Planning and Community Right to Know Act [42 U.S.C.A. §§11001 et seq.]; the
Occupational Safety and Health Act [29 U.S.C.A. §§655, 657]; the California Underground Storage of
Hazardous Substances Act [Health & Safety Code, §§25280 et seq.]; the California Hazardous
Substances Account Act [Health & Safety Code, §§25300 et seq.]; the California Hazardous Waste
Control Act [Health & Safety Code, §§25100 et seq.]; the California Safe Drinking Water and Toxic
Enforcement Act [Health & Safety Code, §§25249.5 et seq.]; the Porter-Cologne Water Quality Act
[Water Code, §§13000 et seq.], together with any amendments of or regulations promulgated under the
statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation
now in effect or later enacted which pertains, to occupational health or industrial hygiene (and
only to the extent that the occupational health or industrial hygiene laws, ordinances, or
regulations relate to Hazardous Substances on, under, or about the Property), or the regulation or
protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water,
or land use.


     “Escrow” is defined in Section 11 hereof.


     “Escrow Agent” is defined in Section 11 hereof.


     “Escrow Instructions” is defined in Section 4 hereof.


     “Exceptions” is defined in Section 6(a)(i) hereof.


     “Grant Deed” is defined in Section 12(a)(i) hereof.


     “Hazardous Substances” includes without limitation:


     (a) Those substances included within the definitions of “hazardous substance,” “hazardous
waste,” “hazardous material,” “toxic substance,” “solid waste,” or “pollutant


 







 




or contaminant” in the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (“CERCLA”) [42 U.S.C.A. §§9601 et seq.]; the Resource Conservation and Recovery Act of 1976
(“RCRA”) [42 U.S.C.A. §§6901 et seq.]; the Clean Water Act, also known as the Federal Water
Pollution Control Act (“FWPCA”) [33 U.S.C.A. §§1251 et seq.]; the Toxic Substances Control Act
(“TSCA”) [15 U.S.C.A. §§2601 et seq.]; the Hazardous Materials Transportation Act (“HMTA”) [49
U.S.C.A. §§1801 et seq.] or under any other Environmental Law;


     (b) Those substances listed in the United States Department of Transportation (DOT) Table
[49 C.F.R. §172.101], or by the Environmental Protection Agency (EPA), or any successor agency,
as hazardous substances [40 C.F.R. Part 302];


     (c) Other substances, materials, and wastes which are or become regulated or classified as
hazardous or toxic under federal, state, or local laws or regulations; and


     (d) Any material, waste, or substance which is (i) a petroleum or refined petroleum product,
(ii) asbestos, (iii) polychlorinated biphenyl, (iv) designated as a hazardous substance pursuant
to 33 U.S.C.A. §1321 or listed pursuant to 33 U.S.C.A. §1317, (v) a flammable explosive, or (vi)
a radioactive material.


     “Improvements” is defined in Recital A.


     “Lender” is defined in Section 6(a)(ii) hereof.


     “Lender’s Policy” is defined in Section 6(a)(iv) hereof.


     “Loan” is defined in Section 6(a)(ii) hereof.


     “Loan Commitment” is defined in Section 6(a)(ii) hereof.


     “Loan Documents” is defined in Section 6(a)(iii) hereof.


     “Loan Shortfall” shall mean the sum of Two Million Eight Hundred Fifty Thousand Dollars and No
Cents ($2,850,000.00), which is the difference between the Purchase Price less the aggregate of (i)
the Deposit; and (ii) the maximum Loan sum of $9,250,000.00 which is set out in Section
6(a)(ii) hereof.


     “Non-Foreign Affidavit” is defined in Section 6(a)(xii) hereof.


     “Operating Statement” is defined in Section 6(a)(xi) hereof.


     “Owner’s Policy” is defined in Section 6(a)(iv) hereof.


     “Personal Property” is defined in Section 6(a)(x) hereof.


     “Preliminary Report” is defined in Section 6(a)(i) hereof.


     “Property” is defined in Recital A.


     “Property Documents” is defined in Section 6(a)(vi) hereof.


     “Purchase Price” is defined in Section 3 hereof.


     “Purchaser” is defined in the preamble.


     “Purchaser’s Certificate” is defined in Section 12(b)(iii) hereof.


 







 




     “Purchaser’s Termination Notice” is defined in Section 6(b)(ii)
hereof.


     “Real Property” is defined in Recital A.


     “Rent Roll” is defined in Section 6(a)(viii) hereof.


     “Seller” is defined in the preamble.


     “Seller’s Certificate” is defined in Section 12(a)(xii) hereof.


     “Survey” is defined in Section 6(a)(vii) hereof.


     “Tenant Leases” is defined in Section 6(a)(ix) hereof.


     “Tenants” is defined in Section 10 hereof.


     “Title Company” is defined in Section 6(a)(i) hereof.


     “Title Policies” is defined in Section 6(a)(iv) hereof.


     “Warranty Bill of Sale” is defined in Section 6(a)(x) hereof.


     Section 2. Purchase and Sale


     Seller agrees to sell and Purchaser agrees to purchase the Property on the terms and
conditions in this Agreement.


     Section 3. Purchase Price


     The purchase price Purchaser shall pay to Seller for ownership of the Property is the sum of
Twelve Million Five Hundred Thousand Dollars and No Cents ($12,500,000.00; the “Purchase Price”),
which shall be payable as follows:


     (a) Simultaneously with the execution of this Agreement by Purchaser, Purchaser shall
deposit with the Escrow Agent the total sum of Four Hundred Thousand Dollars and No Cents
($400,000.00), which deposit shall serve as a good faith deposit (the “Deposit”) against the
Purchase Price. If Purchaser has not provided Seller and Escrow Agent with Purchaser’s
Termination Notice within seven (7) calendar days after the Effective Date, then in that event
one-half (1/2) of the Deposit shall immediately become non-refundable. If Purchaser has not
provided Seller and Escrow Agent with Purchaser’s Termination Notice within fourteen (14)
calendar days after the Effective Date, then in that event the last one-half (1/2) of the
Deposit shall immediately become non-refundable. Should Purchaser provide Seller and Escrow
Agent with Purchaser’s Termination Notice before all of the Deposit has become non-refundable
and been released to Seller, then in that event the remaining amount of the Deposit that is in
the possession of Escrow Agent shall be refundable (less any costs associated with the
assessment of fees relating to Purchaser’s cancellation of escrow and title work) and shall be
returned to Purchaser after the Escrow is cancelled and all title work has been terminated;


     (b) No later than one day prior to the Close of Escrow, Purchaser shall (i) deposit with
the Escrow Agent the full amount of the Loan Shortfall; and (ii) cause the Purchase Price, less
the Deposit, to be paid to Escrow Agent, by immediately available certified or wired funds,
which shall be in the form of cash or a loan that Purchaser shall theretofore have secured from
a third-party lender. In addition, at the Close of Escrow


 







 







the Escrow Agent shall apply the full amount of the Deposit toward the Purchase Price; and




     (c) In the event Seller defaults hereunder, and thereafter fails to cure said default,
then notwithstanding any provision herein to the contrary, the full amount of the Deposit plus
all interest thereon shall be returned to Purchaser.



     Section 4. Deposit




     Escrow Agent shall be instructed to hold the Deposit in an interest-bearing account generally
utilized by Escrow Agent for such purposes. The Deposit shall be applied to the Purchase Price upon
the Close of Escrow. If Escrow does not close because Purchaser fails to perform any of its
obligations under this Agreement, and Seller is not otherwise in default, Escrow Agent shall
deliver the Deposit and all interest to Seller as liquidated damages pursuant to the provisions set
out in Section 5. If Escrow does not close because Purchaser has delivered to Escrow Agent
and Seller a Termination Notice prior to the end of the Due Diligence Period, then in that event
Escrow Agent shall deliver that portion of the Deposit, without demand, deduction, or offset (other
than for any non-refundable portions already released to Seller, and any Escrow or title costs
owing by Purchaser), to Purchaser following Escrow Agent’s receipt of Purchaser’s Termination
Notice. Within five (5) days of Seller’s execution of this Agreement, Escrow Agent agrees to
provide Purchaser and Seller with their general escrow instructions which both Purchaser and Seller
do hereby agree to execute and deliver to Escrow Agent consistent with the terms of this Agreement
(the “Escrow Instructions”). Purchaser and Seller do further agree to provide Escrow Agent with any
other information, documents, or instruments that the Escrow Agent reasonably requires.



     Section 5. Liquidated Damages




     IF THIS TRANSACTION DOES NOT CLOSE BECAUSE OF DEFAULT BY PURCHASER, AND SELLER IS NOT
OTHERWISE IN DEFAULT, SELLER SHALL BE ENTITLED TO THE FULL AMOUNT OF THE DEPOSIT, WHICH PAYMENT
SHALL BE DEEMED TO BE LIQUIDATED DAMAGES. THE PARTIES AGREE THAT IF PURCHASER DEFAULTS AND SELLER
IS NOT OTHERWISE IN DEFAULT OR IF IN DEFAULT THEREAFTER PERFECTS A CURE OF THE DEFAULT, SELLER’S
ACTUAL DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THE AMOUNT OF THE DEPOSIT IS THE
BEST ESTIMATE OF THE DAMAGES SELLER WOULD SUFFER. ACCORDINGLY, THE AMOUNT OF THE DEPOSIT SHALL BE
THE TOTAL AMOUNT SELLER IS ENTITLED TO RECEIVE AS LIQUIDATED DAMAGES. SELLER SHALL HAVE NO RIGHT TO
ADDITIONAL DAMAGES, AND SELLER WAIVES ALL RIGHT TO AN ACTION FOR SPECIFIC PERFORMANCE OF THIS
AGREEMENT. THE PARTIES WITNESS THEIR AGREEMENT TO THIS LIQUIDATED DAMAGES PROVISION BY INITIALING
THIS SECTION 5.



	 	 	 	 	 
	

	 		 	 
	 

Initials of Seller

	 	 

Initials of Purchaser
	 	 






     Section 6. Conditions Precedent




     (a) Conditions Precedent to Closing. Purchaser’s obligation to purchase the Property
from Seller is subject to the following conditions precedent (collectively, the “Conditions
Precedent”), each of which are for Purchaser’s benefit only:



 









 






     (i) Title. Within seven (7) calendar days from the Seller’s execution of this Agreement,
Seller shall cause the Title Company (as hereinafter defined) to provide Purchaser, at Seller’s
expense, with a preliminary title report for the Real Property (the “Preliminary Report”), which
Preliminary Report shall be issued by Orange Coast Title Company, whose offices are located at 3536
Concours Avenue, Suite 120, Ontario, California 91764 (the “Title Company”; attention Ms. Helen
Johnson), together with copies of all exceptions and the documents supporting the exceptions
(collectively, the “Exceptions”) in the Preliminary Report. Within fourteen (14) calendar days
after the Effective Date (said period commencing on the Effective Date and ending on the fourteenth
(14th) calendar day thereafter being herein defined as the “Due Diligence Period”), Purchaser shall review the Preliminary Report and approve or disapprove of the condition of the
title reflected in the Preliminary Report (the “Condition of Title”), which approval or disapproval
must be in a writing which shall be received by Seller and Escrow Agent prior to the end of the Due
Diligence Period. Should both the Escrow Agent and Seller not actually receive Purchaser’s written
approval or disapproval of the Preliminary Report prior to the end of the Due Diligence Period,
said non-receipt shall be deemed to be Purchaser’s acceptance of the Property, and Purchaser does
hereby expressly waive any and all rights it may otherwise have or had to cancel the Escrow from
and after that point in time for any reason whatsoever that is associated with title to the Real
Property. If Purchaser’s notice of disapproval of the Condition of Title is received by both Seller
and Escrow Agent prior to the end of the Due Diligence Period, in that event Seller shall have the
right to either (a) terminate the escrow, cancel the title request and direct the Escrow Agent to
return the Deposit to Purchaser, or (b) elect to try and modify the Condition of Title so as to
eliminate the reason for Purchaser’s disapproval of the Condition of Title. If Seller elects to
pursue the right granted in subparagraph (b), above, Seller shall have thirty (30) calendar days to
perfect that change and the Close of Escrow shall be moved, on a day-for-day basis, to allow for
that action. Notwithstanding anything else to the contrary within this Agreement, after the date
on which the Seller executes this Agreement, Seller shall not alter the Condition of Title without
the express written consent of Purchaser.




     (ii) Financing. Prior to the end of the Due Diligence Period, Purchaser shall have received,
and shall provide the Escrow Agent and Seller with legible copies of, a loan commitment (the
“Loan Commitment”) from a lender that shall have been selected by Purchaser in its sole
discretion (the “Lender”), and which Loan Commitment shall expressly state that the Lender will,
at the Close of Escrow, be ready, willing and able to fund up to a maximum of Nine Million Two
Hundred Fifty Thousand Dollars and No Cents ($9,250,000.00) of the Purchase Price (the “Loan”).
Purchaser shall be responsible for paying, in addition to the Deposit, the Loan Shortfall, to
Seller, in cash at Closing. If Purchaser fails to deliver said Loan Commitment to Seller and
Escrow Agent prior to the end of the Due Diligence Period, said non-delivery shall be deemed to
be Purchaser’s disapproval of the Property and Escrow Agent shall thereupon immediately terminate
the Escrow and the Deposit shall be handled as provided for in Section 3.




     (iii) Financing Documents. On or before the Close of Escrow, Purchaser shall have received
loan documents in connection with the Loan (the “Loan Documents”) in a form and of a substance
that is reasonably satisfactory to Purchaser.



 









 






     (iv) Title Policies. On or before the Close of Escrow, Purchaser shall have received
evidence that the Title Company is ready, willing, and able to issue, upon payment of Title
Company’s regularly scheduled premium, (A) an American Land Title Association (ALTA) standard
owner’s policy of title insurance, without survey (the “Owner’s Policy”) in the face amount of
the Purchase Price, and (B) an American Land Title Association (ALTA) lender’s policy of title
insurance (the “Lender’s Policy” and together with the Owner’s Policy, collectively, the “Title
Policies”) in the original principal amount of the Loan, each with the endorsements Purchaser and
Lender may respectively require (collectively, the “Endorsements”), showing title to the Property
vested in Purchaser, subject only to the Condition of Title, the lien of real property taxes for
the current fiscal year not yet due or payable, the lien of the Loan Documents, and the standard
preprinted exceptions and stipulations of the Title Policies. The cost for any and all
Endorsements shall be billed to and paid in full by Purchaser, without any right of off-set,
deduction or credit from the Purchase Price or any payment from Seller.




     (v) Physical Condition of the Property. Within the Due Diligence Period, Purchaser shall
review and approve or disapprove of the physical condition of the Property, providing both Escrow
Agent and Seller with a writing setting out Purchaser’s approval or disapproval of the Property’s
condition. In the event Escrow Agent and Seller do not actually receive Purchaser’s written
approval or disapproval of the Property’s condition prior to the end of the Due Diligence Period,
said non-receipt shall be deemed to be Purchaser’s acceptance of the Property, and Purchaser does
hereby expressly waive any and all rights it may otherwise have, or have had, to cancel the Escrow
from and after that point in time for any reason whatsoever. Seller shall not cause the physical
condition of the Property to materially deteriorate or change after the date of the inspection,
normal wear and tear excepted, without the prior written consent of Purchaser.




     (vi) Property Documents. Within three (3) calendar days of this Agreement, Seller shall
deliver to Purchaser copies of all permits, soils reports, licenses, maintenance contracts, utility
contracts, operating contracts, management contracts, service contracts, and other contracts
pertaining to the Property that are still in effect as to the Property as of that day, together
with any amendments or modifications (collectively, the “Property Documents”). Prior to the end of
the Due Diligence Period, Purchaser shall review each Property Document, providing both Escrow
Agent and Seller with a writing setting out Purchaser’s approval or disapproval of the Property
Documents. In the event Escrow Agent and Seller do not actually receive the Purchaser’s written
approval or disapproval of the Property Documents prior to the end of the Due Diligence Period,
said non-receipt shall be deemed to be Purchaser’s acceptance of the Property Documents, and
Purchaser does hereby expressly waive any and all rights it may otherwise have or had to cancel the
Escrow from and after that point in time for any reason whatsoever. Should Purchaser approve, or be
deemed to have approved, of the Property Documents, then in that event at the Close of Escrow (a)
Seller shall assign to Purchaser all of Seller’s rights and remedies under the Property Documents
which Purchaser indicates in writing to Seller that Purchaser wishes to assume, to the extent
assignable, pursuant to an assignment of contracts, warranties and other intangible property rights
agreement; and (b) Purchaser shall assume all of the obligations and duties owing from Seller under
the Property Documents (the “Assignment of Contracts”), which Assignment of Contracts shall be in a
form and of a substance that is reasonably satisfactory to both Seller and Purchaser. With respect
to Property Documents that are not assigned to



 









 







Purchaser, Seller shall terminate those Property Documents by delivering notices of Purchaser’s
election to terminate to those affected contracting parties.




     (vii) Survey. Purchaser shall have the right to commission a licensed third-party to prepare
an as-built survey of the Property (the “Survey”) prior to the Close of Escrow, provided that in
doing so the attainment of the Survey does not delay or otherwise extend the Close of Escrow date
set out in Section 11 of this Agreement. Notwithstanding Purchaser’s right to commission
a Survey of the Property, if Purchaser shall elect to so act, all costs and expenses that are in
any way related (directly or indirectly) to such Survey shall be paid for solely by Purchaser,
without any right of off-set, deduction or credit from the Purchase Price or any payment from
Seller.




     (viii) Rent Roll. Within three (3) calendar days after the Seller’s execution of this
Agreement, Seller shall deliver to Purchaser a current rent roll (the “Rent Roll”) for the
Property listing each tenant at the Property, along with the (a) name of each tenant, (b) unit or
suite occupied by each tenant, (c) monthly rent owing from each tenant, (d) amount of each
tenants’ deposit, (e) amount of any prepaid rent made by any tenant, and (f) term of each tenants’
lease. Prior to the end of the Due Diligence Period, Purchaser shall review and approve or
disapprove of the Rent Roll. Should both the Escrow Agent and Seller not actually receive
Purchaser’s written approval or disapproval of the Rent Roll prior to the end of the Due Diligence
Period, said non-receipt shall be deemed to be Purchaser’s acceptance of the Rent Roll, and
Purchaser does hereby expressly waive any and all rights it may otherwise have or had to cancel
the Escrow from and after that point in time for any reason whatsoever.




     (ix) Tenant Leases. Within three (3) calendar days after the date of Seller’s execution of
this Agreement, Seller shall deliver to Purchaser copies of all tenant leases, including any
amendments and modifications (collectively, the “Tenant Leases”). Prior to the end of the Due
Diligence Period, Purchaser shall review and approve or disapprove of the Tenant Leases. Should
both the Escrow Agent and Seller not actually receive Purchaser’s written approval or disapproval
of the Tenant Leases prior to the end of the Due Diligence Period, said non-receipt shall be deemed
to be Purchaser’s acceptance of the Tenant Leases, and Purchaser does hereby expressly waive any
and all rights it may otherwise have or had to cancel the Escrow from and after that point in time
for any reason whatsoever that is related to the Tenant Leases. On or as of the Close of Escrow,
Seller shall assign all of Seller’s rights, remedies arising under the Tenant Leases, including the
right to any security deposits and prepaid rent, to Purchaser, and Purchaser shall assume all of
Seller’s duties and obligations arising in relation to the Tenant Leases, pursuant to an assignment
and assumption of leases and security deposits (the “Assignment of Leases”) in a form and of a
substance that is reasonably satisfactory to both Seller and Purchaser.




     (x) Warranty Bill of Sale. On or as of the Close of Escrow, Seller shall deliver to Purchaser
a warranty bill of sale (the “Warranty Bill of Sale”), by which Seller shall be deemed to have
transferred to Purchaser any and all personal property that is, as of the Close of Escrow, owned
by Seller and in service solely related for the operation of the Property (the “Personal
Property”). Said Warranty Bill of Sale shall be in the form set out in the attached
Exhibit D.



 









 






     (xi) Operating Statement. Within three (3) calendar days from the date of the
Seller’s execution of this Agreement, Seller shall deliver to Purchaser an unaudited
operating statement for the Property for the period of January 1, 2009 through August
31, 2009 (the “Operating Statement”). Prior to the end of the Due Diligence Period,
Purchaser shall review and approve or disapprove of the Operating Statement. Should both
the Escrow Agent and Seller not actually receive Purchaser’s written approval or
disapproval of the Operating Statement prior to the end of the Due Diligence Period,
said non-receipt shall be deemed to be Purchaser’s acceptance of the Operating
Statement, and Purchaser does hereby expressly waive any and all rights it may otherwise
have or had to cancel the Escrow from and after that point in time for any reason
whatsoever.




     (xii) Non-Foreign Affidavit. On or before the Close of Escrow, Seller shall deliver
to Escrow Agent the Non-Foreign Affidavit (the “Non-Foreign Affidavit”) in the
form of attached Exhibit B, executed by a duly authorized member of the Seller.




     (xiii) Seller’s Obligations. The performance by Seller of every covenant,
condition, agreement, and promise to be performed by Seller pursuant to this Agreement.




     (xiv) Seller’s Representations. The truth and accuracy of all Seller’s
representations and warranties that are expressly set out in this Agreement, with the
express qualification and acknowledgement by Purchaser, that if a Seller’s statement
expresses that it is “unaudited” or is being made as to an “approximate” or “estimated”
amount, or is being made “in the Seller’s belief”, or is being made to the “best of
Seller’s knowledge”, or contains any words of similar import or effect, then in those
events Seller shall not be held liable for any inaccuracies relating to such statements,
absent Purchaser’s actual proof of Seller’s actual knowledge thereof.




     (b) Failure of Conditions Precedent. Subject to Purchaser’s rights in Section 11
hereof, if any of the Conditions Precedent have not been fulfilled within the applicable time
periods or if Purchaser expressly disapproves, in writing, of any Conditions Precedent pursuant to
this Section 6, matters for which Purchaser’s approval is required, or Seller defaults in
its obligations hereunder, Purchaser may do any one (1) of the following:




     (i) Waive and Close. Waive the condition or disapproval or default and close Escrow in
accordance with this Agreement, without adjustment or abatement of the Purchase Price; or




     (ii) Terminate. Terminate this Agreement by written notice to Seller and to Title
Company (“Purchaser’s Termination Notice”) in the form shown on the attached
Exhibit C, and Seller shall be solely responsible for any escrow or title costs
associated with such termination.




          Notwithstanding the above two (2) options, should Purchaser, by its inaction, be deemed to
have waived any of its rights as to any of the Conditions Precedent, then in that event Purchaser
shall also be deemed to have elected the waiver and closing provision set out in Section
6(b)(i).



 









 




     Section 7. Representations and Warranties


     A.     Seller represents and warrants to Purchaser that as of the Close of Escrow:


     (a) Disclosure. Seller has disclosed to Purchaser all material documents
concerning the Property that is in Seller’s actual possession; provided, however, in
doing so Seller advises Purchaser that Seller is making no representations or warranties
as to the completeness or accuracy of said materials, and Purchaser acknowledges and
agrees that Purchaser shall make its own independent review of said materials and will
subsequently make its own determination as to whether or not to acquire the Property
based solely upon its own investigation and analyses.


     (b) Title.


     (i) Ownership. Seller is the legal and equitable owner of the Property, with
full right to convey the Property to Purchaser, subject to the approval of
KeyBank National Association (“KeyBank”), Seller’s lender in relation to the
Property.


     (ii) Encumbrances. The Property is free and clear of all liens,
encumbrances, claims, rights, demands, easements, leases, agreements, covenants,
conditions, and restrictions of any kind, except for (A) the Exceptions, (B) the
Tenant Leases and (C) the debt owing to KeyBank.


     (c) Consents and Releases. As of the Close of Escrow Seller shall have obtained all
required consents, releases, and permissions from KeyBank that may be required to convey
to Purchaser good and marketable title to the Property.


     (d) Authority. This Agreement and any applicable documents that are contained
herein as exhibits (i) have been duly authorized, executed, and delivered by Seller;
(ii) are binding obligations of Seller; (iii) to the best of Seller’s knowledge are
sufficient to transfer all of Seller’s rights to the Property, Property Documents,
Tenant Leases and Personal Property; and (iv) once approved by KeyBank do not violate
the provisions of any agreement to which Seller is a party or which directly affects the
Property. Seller further represents that it is a limited liability company that was duly
organized and exists under the laws of the State, with its principal place of business
in the County.


     (e) Foreign Investment Real Property Tax Act. Seller is not a “foreign person”
within the meaning of 26 U.S.C.A. §1445(f)(3).


     (f) Toxic or Hazardous Waste. To the best of Seller’s present knowledge, without
having conducted any investigation of its own, the Property is free from Hazardous
Substances and is not in violation of any Environmental Laws.


     (g) Leases. The Rent Roll delivered to Purchaser by Seller is correct as of the
Effective Date and conforms to the Tenant Leases, but cautions Purchaser of the need for
the Purchaser to conduct its own independent review of the Tenant Leases to make its own
determination as to the accuracy of the Rent Roll.


     B.      Purchaser represents and warrants to Seller that as of the Effective Date, and again
as of the Close of Escrow:


 







 






     (a) Consents and Releases. As of the Close of Escrow Purchaser shall have obtained all
required consents, releases, and permissions from any persons and/or entities that may be
required to accept title to the Property.




     (b) Authority. This Agreement and any applicable documents that are contained herein as
exhibits (i) have been duly authorized, executed, and delivered by Purchaser; (ii) are binding
obligations of Purchaser; and (iii) are sufficient in form and content to assume all of
Seller’s duties and obligations arising therefrom which shall survive the Close of Escrow,
including, without limitation, the Property Documents, the Tenant Leases and the Personal
Property




     (c) Buyer’s Release of Seller. Except for the express covenants, representations and
warranties of Seller set forth in this Agreement, Purchaser, from and after the Close of
Escrow, hereby waives, releases, remises, acquits and forever discharges the Seller and
Seller’s officers, directors, members, and employees (collectively, “Seller’s
Representatives”) of and from any and all actions, suits, legal or administrative orders
or proceedings, demands, actual damages, punitive damages, loss, costs, liabilities and
expenses, which concern or in any way relate to the Property, Tenant Leases, Property
Documents and/or Personal Property, whether existing prior to, at or after such Close of
Escrow, including, without limitation, matters relating to the condition of title to the
Property, zoning, compliance of the Property, the release or threatened release of Hazardous
Materials therefrom, the condition of such Property, the development or use of the Property;
any slope failure or subsurface geologic or groundwater condition; the design, construction,
engineering or other work with respect to the Buildings; or any act or omission by Seller or
Seller’s Representatives in connection with the Property, Tenant Leases, Property Documents
and/or Personal Property, excepting, however, the proven fraud of Seller or Seller’s
Representatives. It is the intention of the parties pursuant to this release that any and all
responsibilities and obligations of Seller, and any and all rights, claims, rights of action,
causes of action, demands or legal rights of any kind of Purchaser, its successors, assigns or
any affiliated entity of Purchaser, arising by virtue of the Property, the Tenant Leases, the
Property Documents and/or the Personal Property, whether existing prior to, at or after the
Close of Escrow, are by this release provision declared null and void and of no present or
future force and effect as to the parties. In connection with the above release, Purchaser
expressly agrees to waive any and all rights which said party may have under Section 1542 of
the California Civil Code which provides as follows:




          “A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.”



     Section 8. Indemnification




     Purchaser and Seller shall indemnify, defend, and hold the other harmless from any and all
liabilities, losses, and claims for damages, including without limitation, costs and reasonable
attorney’s fees, arising directly from a breach of their express covenants that are contained
within this Agreement and are expressly stated to survive the Close of Escrow.




 









 








     Section 9. Covenants




     Purchaser and Seller hereby covenant as follows:




     (a) Brokers. Other than Grubb & Ellis Company (the “Broker”), neither Purchaser, nor
Seller, has not hired any broker or other finder in relation to Purchaser’s acquisition of
the Property, and in light of that statement each of them does hereby agree to indemnify,
defend, and hold the other harmless from any and all losses, costs, and expenses, including
but not limited to attorney’s fees and court costs, resulting from any fee or commission
claim by any broker or finder, other than the Broker, claiming through said party. Broker’s
potential for compensation shall be set out in a separate agreement and any compensation
which Seller may agree is owing to Broker at the Close of Escrow shall be deducted from the
proceeds otherwise owing to Seller at such Closing.




     (b) Tenant Leases. From and after the Effective Date, or such earlier date as Purchaser
shall approve of the Property, in writing to both Escrow Agent and Seller, Seller agrees that
it shall not modify, cancel, or amend any Tenant Lease, or enter into any new Tenant Lease
without Purchaser’s prior written approval, which approval shall not be unreasonably
withheld, delayed or denied.




     (c) Litigation. From and after the Effective Date, Seller shall verbally notify
Purchaser of any lawsuits that are on or after that date served on Seller by any person or
entity as against the Property.




     (d) Purchaser’s Disclaimer. The Property and the fixtures and personal property
contained therein, if any, are not new, and have been subject to normal wear and tear.
Purchaser understands and covenants that Seller makes no express or implied warranty with
respect to the condition of any of the Property, fixtures or Personal Property. Purchaser
further covenants that Seller has made no oral or written representation regarding the age of
the Improvements, the size and square footage of the parcel or any Building, or the location
of any Property line, and that any apparent boundary line indicators such as driveways,
fences, hedges, walls, or other barriers may not represent the true boundary lines, which
only a surveyor can accurately determine. Purchaser does still further covenant that if any
of these issues are important to its decision to purchase the Property, then Purchaser hereby
agrees that it shall independently investigate the Property and Personal Property. Purchaser
acknowledges that it has not relied upon any representations by Seller with respect to the
condition, status or any other aspect of the Property or the Personal Property, or the status
of permits, zoning, or code compliance in relation to the Property. Purchaser hereby
expressly agrees that it shall independently satisfy itself, through whatever means it deems
to be necessary, concerning each and all of these issues.



     Section 10. AS-IS, WHERE-IS Provision




          Purchaser’s Acknowledgement as to the AS-IS, WHERE-IS nature of the Sale.




          PURCHASER HEREBY EXPRESSLY ACKNOWLEDGES THAT, DURING THE DUE DILIGENCE PERIOD, IT WILL HAVE
AMPLE OPPORTUNITY TO FULLY INSPECT, EXAMINE, STUDY AND ANALYZE TO ITS SATISFACTION ALL ASPECTS OF
THE PROPERTY AND PERSONAL PROPERTY, INCLUDING, WITHOUT LIMITATION, (I) THE SUITABILITY OR
CONDITION OF THE PROPERTY FOR ANY PURPOSE OR ITS FITNESS FOR ANY PARTICULAR USE, (II) THE
PROFITABILITY AND/OR FEASIBILITY OF OWNING, OPERATING AND/OR IMPROVING THE




 









 









PROPERTY, (III) THE PHYSICAL CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE CURRENT
OR FORMER PRESENCE OR ABSENCE OF ENVIRONMENTAL HAZARDS OR HAZARDOUS MATERIALS, ASBESTOS, RADON GAS,
UNDERGROUND STORAGE TANKS, ELECTROMAGNETIC FIELDS, OR OTHER SUBSTANCES OR CONDITION WHICH MAY
AFFECT THE PROPERTY OR ITS CURRENT OR FUTURE USES, 
HABITABILITY, VALUE OR DESIRABILITY, (IV) THE
RENTALS, INCOME, COSTS OR EXPENSES THEREOF, (V) THE NET OR GROSS ACREAGE, USABLE OR UNUSABLE,
CONTAINED THEREIN, (VI) THE ZONING OF THE PROPERTY, (VII) THE CONDITION OF TITLE, (VIII) THE
COMPLIANCE BY THE PROPERTY WITH APPLICABLE LAWS, CODES, RULES AND REGULATIONS, INCLUDING, WITHOUT
LIMITATION, ZONING LAWS, BUILDING CODES AND ENVIRONMENTAL AND SIMILAR LAWS, GOVERNING OR RELATING
TO ENVIRONMENTAL HAZARDS OR HAZARDOUS MATERIALS, ASBESTOS, RADON GAS, UNDERGROUND STORAGE TANKS,
ELECTROMAGNETIC FIELDS, OR OTHER SUBSTANCES OR CONDITION WHICH MAY AFFECT THE PROPERTY, (IX) WATER
OR UTILITY AVAILABILITY OR USE RESTRICTIONS, (X) GEOLOGIC/SEISMIC CONDITIONS, SOIL AND TERRAIN
STABILITY OR DRAINAGE, (XI) SEWER, SEPTIC AND WELL SYSTEMS AND COMPONENTS, (XII) OTHER NEIGHBORHOOD
OR PROPERTY CONDITIONS, INCLUDING, WITHOUT LIMITATION, PROXIMITY AND ADEQUACY OF LAW ENFORCEMENT
AND FIRE PROTECTION, CRIME STATISTICS, NOISE OR ODOR FROM ANY SOURCES, LANDFILLS, PROPOSED FUTURE
DEVELOPMENTS, AND (XIII) ANY OTHER PAST, PRESENT OR FUTURE MATTER RELATING TO THE PROPERTY WHICH
MAY AFFECT THE PROPERTY OR ITS CURRENT OR FUTURE USE, HABITABILITY, VALUE OR DESIRABILITY. ON THE
BASIS OF SUCH OPPORTUNITY AND TO INDUCE SELLER TO ENTER INTO THIS AGREEMENT WITH PURCHASER,
PURCHASER REPRESENTS AND WARRANTS TO SELLER THAT, (1) PURCHASER IS RELYING SOLELY ON PURCHASER’S
OWN INVESTIGATION OF THE PROPERTY AND PERSONAL PROPERTY, AND ITS REVIEW OF SUCH INFORMATION AND
DOCUMENTATION (INCLUDING, WITHOUT LIMITATION, THE PROPERTY DOCUMENTS) IN DETERMINING WHETHER OR NOT
TO PURCHASE THE PROPERTY AND PERSONAL PROPERTY, (2) ANY AND ALL INFORMATION MADE AVAILABLE TO
PURCHASER OR PROVIDED OR TO BE PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO THE PROPERTY
AND/OR PERSONAL PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO
THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION, AND (3) EXCEPT AS MAY BE EXPRESSLY SET FORTH TO
THE CONTRARY ELSEWHERE WITHIN THIS AGREEMENT, SELLER DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY OR
PERSONAL PROPERTY, OR ANY RELATED MATTERS INCLUDING, BUT NOT LIMITED TO, THE MATTERS REFERENCED IN
THIS SECTION, AND



 









 




THAT THE PROPERTY AND PERSONAL PROPERTY IS BEING SOLD TO PURCHASER, AND THAT PURCHASER IS
ACCEPTING THE PROPERTY AND PERSONAL PROPERTY IT THEIR RESPECTIVE AND COLLECTIVE “AS IS”,
“WHERE-IS” CONDITION, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY TYPE OR KIND FROM
SELLER. IN THIS REGARD, PURCHASER ALSO ACKNOWLEDGES THAT, DUE TO ITS PREVIOUS REAL ESTATE
EXPERIENCE, IT IS KNOWLEDGEABLE ABOUT THE EFFECT AND IMPACT OF AN “AS IS”, “WHERE-IS” CLAUSE
SUCH AS SET FORTH IN THIS SECTION 10, AND IS INSERTING ITS INITIALS, BELOW, IN
ACKNOWLEDGEMENT OF ALL THE STATEMENTS CONTAINED WITHIN THIS SECTION 10.


	 	 	 	 	 
	
	 		 	 
	 

Seller’s Initials
	 	 

Purchaser’s Initials	 	 




     Section 11. Escrow


     Upon Seller’s execution of this Agreement, Seller shall establish an escrow for the sale of
the Property to Purchaser (the “Escrow”) at the office of Orange Coast Title Company, whose office
is located at 3536 Concours Avenue, Suite 120, Ontario, California 91764 (the “Escrow Agent”)
attention Ms. Irene Genders, whose contact numbers are (a) telephone — 909-987-5433; (b) facsimile
— 909-297-2547. If the Escrow Agent is unwilling or unable to perform, Seller shall designate
another escrow agent. Upon (i) the Grant Deed being submitted for recordation by the Escrow Agent
and/or Title Company, and (ii) the Purchase Price (including the Deposit) being confirmed as having
been received by Seller via wire transfer, the occurrence of said events shall be defined as being
the “Close of Escrow”, and the Escrow Agent and Title Company shall perform all other tasks
required of them as a result of the Close of Escrow. Unless Seller shall otherwise expressly
provide to the contrary through a subsequent writing which Seller shall deliver to both the Escrow
Agent and Purchaser, the Close of Escrow shall occur on the Business Day that is five (5) days
after the end of the Due Diligence Period (said date being defined as, the “Closing Deadline”).
Should Escrow not Close by the Closing Deadline due to Purchaser’s default or inactions, then in
that event Seller alone shall have the option to either (x) extend the Escrow for such period of
time as is necessary to perfect the Close, or (y) terminate the Escrow and, so long as Seller is
not then in default under this Agreement, pursuant to a writing that Purchaser shall have
theretofore delivered to both the Escrow Agent and Seller advising of such Seller’s default, in
which event the Deposit shall be deemed to be Liquidated Damages in accordance with the provisions
set out in Section 5 of this Agreement.


     Section 12. Closing Funds


     On or before Close of Escrow, Seller and Purchaser shall deposit with Escrow Agent the
following documents and funds and Escrow Agent shall close Escrow as follows:


     (a) Seller’s Deposits. Seller shall deposit with Escrow Agent the following:


     (i) Deed. The original executed and acknowledged Grant Deed conveying the Property
to Purchaser (the “Grant Deed”);


     (ii) Non-Foreign Affidavit. The original Non-Foreign Affidavit executed by
Seller;


 







 






     (iii) Property Documents. The originals of all Property Documents;




     (iv) Assignment of Contracts. The original Assignment of Contracts;




     (v) Assignment of Leases. The original Assignment of Leases;




     (vi) Warranty Bill of Sale. The original Warranty Bill of Sale;

     (vii) Tenant Leases. The original Tenant Leases;




     (viii) Escrow Instructions. The Escrow Instructions executed by Seller; and




     (ix) Additional Documents. Any other documents or funds required of Seller to in order
to close Escrow in accordance with this Agreement.




     (b) Purchaser’s Deposits. On or before the Close of Escrow, Purchaser shall deposit with
Escrow Agent the following:




     (i) Deed of Trust. Any deed of trust Purchaser may need to have recorded in order
to perfect the interests of the Lender pursuant to the transaction that is described
within this Agreement.




     (ii) Cash Payment. Cash in the amount of the Purchase Price, less the proceeds
from any Loan. The sum paid into Escrow by the Purchaser shall include the Loan
Shortfall sum;




     (iii) Closing Costs. Additional cash in the amount necessary to pay Purchaser’s
share of closing costs, as set forth in Section 13 hereof;




     (iv) Escrow Instructions. The Escrow Instructions executed by Purchaser; and




     (v) Additional Documents. Any other documents or funds required of Purchaser to
close Escrow in accordance with this Agreement.



Section 13. Closing Costs





     (a) Seller’s Costs. Seller shall pay the title insurance premium for (i) a standard
American Land Title Association standard owner’s policy of title insurance, without a survey or
any endorsements of any kind; (ii) one-half (1/2) of the Title Company’s fees in relation to
the Escrow; (iii) all of the real property transfer taxes and documentary transfer taxes
payable upon recordation of the Grant Deed; and (iv) any sales, use, and ad valorem taxes
connected with the Close of Escrow.




     (b) Purchaser’s Costs. Purchaser shall pay (i) one-half (1/2) of Title Company’s fees in
any way relating to the Escrow; (ii) the title insurance premium for the Lender’s Policy,
including any and all endorsements; (iii) the additional cost of the title insurance premium
for a Survey, extended owner’s policy of title insurance, and/or any endorsements of any kind;
and (iv) the costs of recording any deed of trust associated with a Loan.




     (c) Loan Costs. Purchaser shall pay all costs of any kind and amount relating to the Loan
Commitment and the Loan, including without limitation, all fees (including attorneys’ fees),
costs, and points. Purchaser’s costs and fees in relation to this provision shall not be
limited in any manner, nor shall the cost of such costs and/or



 









 




fees be justification for Purchaser’s disapproval of the Property during the Due Diligence
Period.


     Section 14. Prorations




     The following receipts, income, debts and expenses are to be prorated between the Seller
and Purchaser as of the Close of Escrow, as follows:



     (a) Current Rent. Current rent shall be prorated as of the Close of Escrow when and as
collected.



     (b) Rent Arrears. Seller shall assign the rent arrearages to Purchaser, Purchaser hereby
agrees that it shall then pay rent such arrearages to Seller when and as collected, less
Purchaser’s reasonable and detailed out-of-pocket collection charges.



     (c) Security Deposits. Security deposits paid by tenants shall be fully credited to
Purchaser as of the Close of Escrow.



     (d) Utility Charges. Purchaser will cause all utility and water meters to be read on the
date of the Close of Escrow, and will provide Seller and Escrow Holder with a copy of
whatever writing those utility providers may give to Purchaser to verify that such utilities
have been turned off in the name of Seller and turned on in the name of Purchaser as of the
Close of Escrow. Provided that Purchaser acts in accordance with the above requirements of
this Section 14(d), then in that event Seller shall be responsible for the cost of
all utilities and water used prior to the Close of Escrow.



     (e) Other Prorations. Liability for real property taxes, assessments, Property operation
expenses, insurance premiums, to the extent Purchaser elects to retain them at the actual
pay-rate, and other recurring costs shall be prorated as of the Close of Escrow.


     Section 15. Investigations




     Prior to the end of the Due Diligence Period, Purchaser shall have the right to conduct any
investigations of the Property as Purchaser desires, including without limitation, soils
conditions, engineering, and accessibility. Purchaser shall indemnify, defend, and hold Seller
harmless from all liabilities, costs, and expenses resulting from Purchaser’s and/or agents or
representatives of Purchaser’s, investigations, studies and tests regarding the Property and/or
Personal Property. If Purchaser disturbs the physical condition of the Property, and Escrow does
not close due to Purchaser’s election or default, Purchaser shall restore the Property, at its sole
cost and expense, to the condition existing prior to Purchaser’s disturbing of the Property. The
provisions of this Section 15 shall survive the Close of Escrow or any termination of the
Escrow and shall be fully enforceable as against the Purchaser and all persons and entities who
make up the Purchaser, without qualification or limitation of any nature.


     Section 16. Further Assurances



     Whenever requested by the other party, each party shall execute, acknowledge, and deliver any
further conveyances, assignments, confirmations, satisfactions, releases, approvals, consents, and
any other instruments and documents as the Escrow Agent may deem to be necessary, expedient, or
proper, to complete any conveyance, transfer, sale, or assignment contemplated by this Agreement.
Each party does further agree to do any other acts and to execute, acknowledge, and deliver any
documents the Escrow Agent may require in order to carry out the intent and purposes of this
Agreement.


 








 




     Section 17. Assignment


     (a) Seller’s Right to Assign. Seller shall have the right, power and authority to assign
this Agreement or any portion of this Agreement, or to delegate any duties or obligations
arising under this Agreement, voluntarily, involuntarily, or by operation of law, without
Purchaser’s prior written consent, so long as such actions are being directed by KeyBank.
Other than as required by KeyBank, Seller shall not have the right to do any of the things
noted in this Section 17(a), without the prior written consent of Purchaser.


     (b) Purchaser’s Right to Assign. Except as otherwise provided in this Agreement,
Purchaser shall have no right, power, or authority to assign this Agreement or any portion of
this Agreement or to delegate any duties or obligations arising under this Agreement,
voluntarily, involuntarily or by operation of law, except as may be expressly provided for in
this Section 17(b), without the Seller’s prior written consent, which may be granted or
denied in Seller’s sole discretion. Notwithstanding this provision, Seller does
hereby agree to cooperate with  Purchaser in consummating this sale as a part of
any Internal Revenue Code Section 1031 exchange transaction to which the Purchaser may be a
party; provided that if Seller is called on to so act, Purchaser does hereby further agree
that in so acting (i) Seller shall not incur any costs or expenses of any kind, Purchaser
hereby covenanting and agreeing to have all such costs paid for, directly by Purchaser as
they are incurred, and (ii) the Close of Escrow shall not be delayed, nor shall the Closing
Deadline be extended, in any manner whatsoever. Purchaser shall also have the right to
assign this Agreement to an entity in which the Purchaser owns more than fifty percent
(50.0%), or is directly controlled by Purchaser.


     Section 18. Successors and Assigns


     Without
waiver of the provisions of Section 17 hereof, all of the rights, benefits, duties,
liabilities, and obligations of the parties shall inure to the benefit of, and be binding upon,
their respective successors and assigns.


     Section 19. Notices


     All notices to be given under this Agreement shall be in writing and mailed postage prepaid
by certified or registered mail, return receipt requested, or by personal delivery (albeit by
overnight mail via a reputable regional overnight mail carrier, or otherwise) to the address
indicated below or at other places designated by Purchaser or Seller in a written notice given to
the other. Notices shall be deemed served on the earlier of: (a) four (4) days after the date of
mailing, or (b) upon personal delivery.


	 	 	 	 	 	 	 
	 
	 	To Purchaser:
	 	Bill and John Skeffington	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 

	 	 
	 
	 	 	 	Attn: Mr. 
	 	 
	 
	 	 	 	Telephone: (714) 540-1700	 	 
	 
	 	 	 	Facsimile: (714) 540-1709	 	 




 







 





	 	 	 	 	 	 	 
	 

	 	To Seller:
	 	Moreno Marketplace, LLC	 	 
	 

	 	 	 	1809 Excise Avenue, Suite #208	 	 
	 

	 	 	 	Ontario, California 91761	 	 
	 

	 	 	 	Attn: Chief Legal Officer	 	 
	 

	 	 	 	Telephone: (909) 544-5000	 	 
	 

	 	 	 	Facsimile: (909) 544-5035	 	 
	 
	 	 	 	 	 	 
	 	 	To Escrow Agent:	 	To the address set forth in Section 11 of this Agreement.






     Section 20. Possession




     Possession of the Property shall transfer to Purchaser at the Close of Escrow, subject
to Purchaser’s rights of investigation during the Due Diligence Period, as well as the rights
of all tenants-in-possession at any time during the existence of this Agreement.



     Section 21. Attorney’s Fees; Litigation Costs




     If any legal action or other proceeding, including arbitration, mediation, or an action
for declaratory relief, is brought to enforce or interpret this Agreement, or because of a
dispute, breach, default, or misrepresentation in connection with this Agreement, the
prevailing party (as determined by the person or panel presiding over such proceeding) shall
be entitled to recover their reasonable attorney’s fees and other costs, in addition to any
other relief that may be granted. “Prevailing party” includes (a) a party who dismisses an
action in exchange for sums allegedly due; (b) the party that receives performance from the
other party of an alleged breach of covenant or a desired remedy, if it is substantially
equal to the relief sought in an action; or (c) the party determined to be prevailing by the
person or panel presiding over such proceeding.



     Section 22. Time of the Essence




     Time is of the essence in this Agreement and every provision contained in this
Agreement, and the interpretation of this provision shall be construed in its broadest scope
in the event of the use of this provision in any dispute between the parties or any
interpretation of this Agreement.



     Section 23. Construction




     The titles and headings of the Sections contained within this Agreement are intended
solely for reference purposes and are not intended to, nor shall they, modify, explain, or
construe any provision of this Agreement. All references to sections, recitals, and the
preamble shall, unless otherwise stated, refer to the Sections, Recitals, and Preamble set
out in this Agreement. In construing this Agreement, the singular form shall include the
plural and vice versa, and the word “and” shall include the words “or” and “and/or”, and the
words “he”, “she”, “it” and “they” shall be deemed to be interchangeable wherever found and
used. This Agreement shall not be construed as if it had been prepared by one of the parties,
but rather shall be construed recognizing that both parties actively participated in the
negotiation and preparation of this Agreement. Furthermore, each of the parties have had the
opportunity to seek the guidance and counsel of one or more attorneys of their sole choosing
and each party in entering into this Agreement does acknowledge that they are entering into
it with the guidance and counsel of their attorneys or that they have



 









 







elected, on their own, to enter into this Agreement without the guidance and counsel of attorneys
of their sole choosing.



     Section 24. Integration




     This Agreement, all attached exhibits, and all related documents referred to in this
Agreement, are intended to, and shall, constitute the entire agreement between the parties with
regard to the subject matter set out in this Agreement. Each party does further acknowledge that
there the other party has not made, nor are they relying upon, any oral or parole agreements which
are not expressly set forth in this Agreement or the related documents being executed in connection
with this Agreement. This Agreement may not be modified, amended, or otherwise changed except by a
writing executed by the party to be charged.



     Section 25. Third-Party Rights




     Nothing in this Agreement, express or implied, is intended to, nor shall it, confer upon any
person or entity, other than the parties to this Agreement and their respective successors, heirs
and assigns, any rights, privileges, standing or remedies.



     Section 26. Severability




     If any term or provision of this Agreement is hereafter determined to be invalid or
unenforceable, the remainder of this Agreement shall not be affected and shall be interpreted in
such a manner as to give full force and effect to the remaining portions of this Agreement in
accordance with the terms and conditions set out in this Agreement.



     Section 27. Waivers




     No waiver or breach of any one or more provisions of this Agreement shall be deemed to be a
waiver of any one or more other provisions set out in this Agreement. Furthermore, no waiver made,
or deemed made, shall be valid unless it is in writing and executed by the waiving party. No
extension of time for performance of any obligation or act shall be deemed an extension of time for
any other obligation or act, whether similar or dissimilar in nature.



     Section 28. Counterparts




     This Agreement may be executed in one or more counterparts, each of which when so executed
shall be deemed an original and all of which when taken together shall constitute one and the same
instrument. As such, the execution of this Agreement shall be deemed to have occurred, and this
Agreement shall be enforceable and effective, upon the execution of this Agreement, in counterpart
or in one document, by Seller and Purchaser.



     Section 29. Survival




     Each of Purchaser’s and Seller’s representations and warranties set out in Section 7
of this Agreement, and elsewhere where expressly so stated, shall survive the Close of Escrow and
the delivery and recordation of the Deed.



     Section 30. Incorporation of Exhibits




     All exhibits which are attached to this Agreement are hereby expressly made a part of, and
are incorporated into, this Agreement by reference.




 









 




     Section 31. Offer and Acceptance


     Seller has delivered two (2) copies of this Agreement to Purchaser on Monday, September 21,
2009. Based on that fact, the delivery of those copies of this Agreement to Purchaser shall not
be deemed to have constituted an offer by Seller, or any other person or entity, to sell the
Property or the Personal Property, or any part thereof, to Purchaser, unless and until Seller
shall have signed both of those copies, or another original of this Agreement which Seller shall
have delivered to Purchaser. Purchaser does hereby further acknowledge and agree that it
understands the affect of this Section 31 on it and as it relates to Seller, and that it
is not relying on the submittal of this Agreement, by Seller, as being an offer to sell the
Property and/or Personal Property to it and will not seek to enforce this Agreement, before it is
signed by Seller, as against the Seller.


     Section 32. Authority of Parties


     All persons executing this Agreement on behalf of a party are hereby warranted by such party
as being duly qualified to act on their behalf and by their signatures to lawfully bind such party
to the provisions set out in this Agreement.


     Section 33. Governing Law


     This Agreement shall be governed by, and construed in accordance with, the laws of the state
of California, without regard to any conflicts of law or diversity issues.


[The remainder of this page has been intentionally left blank]


 







 





     IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute
this Agreement (i) as of the Effective Date as to Purchaser, and (ii) as of the date set out
immediately following its signature block, if such a signature is provided, on behalf of the
Seller.



	 	 	 	 	 	 	 
	 

	 	SELLER:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Moreno Marketplace, LLC, a California limited liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Guardian Commercial Real Estate, L.P., its Sole Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Guardian Realty GP, LLC, a Delaware Limited liability company, its Co-General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James P. Previti	 	 
	 

	 	Name:
	 	 

JAMES P. PREVITI
	 	 
	 

	 	Its:
	 	CEO	 	 
	 

	 	Dated:
	 	OCT. 1, 2009	 	 
	 
	 	 	 	 	 	 
	 	 	PURCHASER:	 	 
	 
	 	 	 	 	 	 
	 	 	Bill and John Skeffington, individuals	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Bill Skeffington	 	 
	 

	 	Name:
	 	Bill Skeffington
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John Skeffington	 	 
	 

	 	Name:
	 	 

John Skeffington
	 	 






 









 





EXHIBIT A




LEGAL DESCRIPTION OF THE REAL PROPERTY



All that certain real property located in Riverside County, California described as follows:



Lot 8, together with the southerly 103.07 feet of Lot 1, in Block 132 of Map No. 1 of Bear
Valley and Alessandro Company, as per Map recorded in Book 11 Page 10 of Maps, in the Office
of the County Recorder of San Bernardino County, California.



Said property is also shown as Parcel B of Lot Line Adjustment No. 980, recorded on February 27,
2007, as Instrument No. 2007-134113, in the Official Records of Riverside County, California.




 









 





EXHIBIT
A-1




PICTORIAL REPRESENTATION OF THE REAL PROPERTY




(to be supplied, by Seller, during the Due Diligence Period)



Purchaser has acknowledged and agreed, in the Agreement which is hereby reaffirmed, that the values
and numbers contained within this Exhibit are not being certified by Seller as being accurate or
true, and as such Purchaser shall conduct its own investigations to determine what it believes the
values and numbers actually are in relation to the Real Property and will make its determination
regarding whether or not to acquire the Property based solely upon its own investigations, studies
and tests which in any way impact on or affect any aspect of the Property




 









 





EXHIBIT B




NON-FOREIGN AFFIDAVIT OF SELLER




(to be provided by the Escrow Agent)




 









 





EXHIBIT C




PURCHASER’S TERMINATION NOTICE




(to be provided by Purchaser during the Due Diligence Period)





 









 








EXHIBIT “D”




WARRANTY BILL OF SALE




     This Warranty Bill of Sale (“Bill of Sale”) is executed as of [date] by Moreno Marketplace,
LLC, a California limited liability company (“Seller”) in favor of Bill and John Skeffington, as
individuals (collectively, the “Purchaser”).



RECITALS




                    A. Seller and Purchaser have entered into an Agreement of Purchase and Sale dated [date] (the
“Purchase Agreement”), in which Purchaser has agreed to purchase improved real property known as
Moreno Marketplace shopping center, located in the City of Moreno Valley, County of Riverside,
State of California (the “Property”), more particularly described in Exhibit “1”, which is attached
hereto and incorporated into this Bill of Sale.



                    B. Pursuant to the Purchase Agreement, Seller has agreed to transfer to Purchaser all Seller’s
rights in all fixtures contained on the Property, together with certain personal property described
in Exhibit “2”, which is attached hereto and incorporated into this Bill of Sale (collectively, the
“Personal Property”).



          NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Seller agrees as follows:



SECTION 1. TRANSFER




               Seller transfers to Purchaser all of Seller’s right, title, and interest in the Personal
Property.



SECTION 2. SELLER’S COVENANT




               Seller covenants to Purchaser that Seller has good and marketable title to the Personal
Property, free of all liens, and has the right to transfer the Personal Property to Purchaser.



SECTION 3. ATTORNEY’S FEES




               If any suit or action is instituted to enforce the rights of either party under this Bill
of Sale, the successful party, as adjudicated by a court of law or other arbiter of such action,
shall be entitled to its reasonable attorneys’ fees and court costs.



SECTION 4. GOVERNING LAW




               This Bill of Sale shall be governed by, and construed in accordance with, California law,
notwithstanding any conflicts of law issues which may otherwise exist.



               Seller has executed this Bill of Sale as of the date first above written.



	 	 	 	 	 	 	 
	 	 	“SELLER”
	 	 
	 
	 	 	 	 	 	 
	 	 	MORENO MARKETPLACE, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Its:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 









 





EXHIBIT “1”

LEGAL DESCRIPTION



All that certain real property located in Riverside County, California described as follows:



Lot 8, together with the southerly 103.07 feet of Lot 1, in Block 132 of Map No. 1 of Bear
Valley and Alessandro Company, as per Map recorded in Book 11 Page 10 of Maps, in the Office
of the County Recorder of San Bernardino County, California.



Said property is also shown as Parcel B of Lot Line Adjustment No. 980, recorded on February 27,
2007, as Instrument No. 2007-134113, in the Official Records of Riverside County, California.




 









 





EXHIBIT “1”

LIST OF PERSONAL PROPERTY BEING SOLD




(to be supplied during Due Diligence)