exv10w1






Exhibit 10.1




AGREEMENT OF PURCHASE AND SALE

AND JOINT ESCROW INSTRUCTIONS




          THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS (“Agreement”) is made and
entered into as of this 13 day of May, 2009 (“Execution Date”), by and between U.S. Bank National
Association (“Seller”), and SPT-Lake Elsinore Holding Co., LLC, a Delaware limited liability
company (“Buyer”).




RECITALS




          A. Downey Savings and Loan Association, F.A. (“Downey”) was the owner of certain real property
consisting of approximately two hundred and twenty five (225) acres of unimproved land, commonly
referred to as tract 29835, located in the city of Menifee (“City”), county of Riverside
(“County”), all in the State of California (“State”), which real property is more particularly
described on Exhibit A attached hereto (the “Property”).




          B. On November 21, 2008, Downey was closed by the Office of Thrift Supervision and the Federal
Deposit Insurance Corporation was appointed as receiver for Downey (the “Receiver”). Pursuant to
12 U.S.C. § 1821(d)(2)(A)(i), the Receiver, by operation of law, succeeded to all of the rights,
title, and interests of Downey in and to the assets of Downey, including, without limitation, the
Property, and subsequently transferred the same to Seller.




          C. Seller is now the owner of the Property and desires to sell the Property to Buyer, and
Buyer desires to purchase the Property from Seller, upon the terms and conditions set forth in this
Agreement.




BASIC PROVISIONS





	 	I.	Buyer: 	SPT-Lake Elsinore Holding Co., LLC

c/o Shopoff Advisors, L.P.

8951 Research Drive

Irvine, CA 92618

Attn: Mr. Tim McSunas

Telephone: (949) 417-9945

Facsimile: (949) 417-1399

E-mail: tmcsunas@shopoff.com
	 
	 	II.	Buyer’s Counsel: 	Gromet & Associates

114 Pacifica, Suite 250

Irvine, CA 92618-3321

Attn: Stevan J. Gromet, Esq.

Telephone: (949) 261-1110

Facsimile: (949) 261-1818

E-mail: sjgromet@grometlaw.com
	 
	 	III.	Buyer’s Tax ID No.: 	
[OMITTED]
[Insert Buyer’s Tax ID number]
	 
	 	IV.	Seller: 	U.S. Bank National Association

3501 Jamboree Road, North Tower, 5th Floor

Newport Beach, CA 92660

Attn: Mr. David Casty

Telephone: (949) 509-4241

Facsimile: (949) 606-9342

E-mail: dcasty@downeysavings.com




-1-









 






	 	With a copy to:  	U.S. Bank National Association

3501 Jamboree Road

Newport Beach, CA 92660

Attn: Natalie Matsler, Esq.

Telephone: (949) 725-4721

Facsimile: (949) 725-0619

E-mail: nmatsler@downeysavings.com
	 
	 	V.	Seller’s Counsel: 	Kennerly, Lamishaw & Rossi LLP

707 Wilshire Blvd., Suite 1400

Los Angeles, CA 90017

Attn: Robert L. Madok, Esq.

Telephone: (213) 426-2090

Facsimile: (213) 312-1266

Email: robertmadok@klrfirm.com
	 
	 	VI.	Seller’s Broker: 	Park Place Partners

8105 Irvine Center Drive, Suite 1460

Irvine, CA 92618

Attn: Mr. Jeff Spindler

Telephone: (949) 852-8288

Facsimile: (949) 852-8108

E-mail: jspindler@parkplacepartners.com
	 
	 	VII.	Escrow Holder: 	Commonwealth Land Title Insurance Company

4100 Newport Place Dr., Suite 120

Newport Beach, CA 92660

Attn: Ms. Michele Y. Mesh

Telephone: (949) 724-3141

Facsimile: (714) 459-7217

E-mail: mmesh@ltic.com
	 
	 	VIII.	Title Company: 	Commonwealth Land Title Insurance Company

801 South Figueroa Street, Suite 870

Los Angeles, CA 90017

Attn: Ms. Diane Greer

Telephone: (213) 330-2330

Facsimile: (213) 330-3105

E-mail: dgreer@ltic.com






	 	IX.	 	Purchase Price: One Million Six Hundred Fifty Thousand
and No/100 Dollars ($1,650,000.00).
	 
	 	X.	 	Deposit: One Hundred Sixty Five Thousand and No/100
Dollars ($165,000.00), payable in accordance with Paragraph 3.1.1
below.
	 
	 	XI.	 	Closing: Defined in Paragraph 4.2 below.
	 
	 	XII.	 	Scheduled Closing Date: May 18, 2009
	 
	 	XIII.	 	Transaction Documents: All references in this
Agreement to the “Transaction Documents” shall mean and include this Agreement
and any documents executed by either party in connection with this the
transactions contemplated by this Agreement (including, without limitation, the
Deed, the General Assignment and Assumption, and any other document or
agreement necessary or appropriate in connection with the transactions
contemplated by this Agreement).





-2-









 





AGREEMENT




          NOW, THEREFORE, incorporating the foregoing recitals and Basic Provisions, and in
consideration of the mutual covenants and agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged, Seller and Buyer
agree that the terms and
conditions of this Agreement and the instructions Escrow Holder with regard to the escrow
(“Escrow”) created pursuant hereto are as follows:




     1. Purchase and Sale. Seller agrees to sell the Property to Buyer, and Buyer agrees
to purchase the Property from Seller, upon the terms and conditions set forth in this Agreement.



     2. Purchase Price. The Purchase Price for the Property shall be as stated in
Paragraph IX of the Basic Provisions.



     3. Payment of Purchase Price. The Purchase Price for the Property shall be paid by
Buyer as set forth below in this Paragraph 3.



               3.1 Deposit; Payment of Purchase Price.



                    3.1.1 Deposit. Within one (1) business day following the Execution Date, Buyer shall
deposit or cause to be deposited with Escrow Holder a sum equal to the entirety of the Purchase
Price (the “Buyer Funds”), with a portion of the same as provided in Paragraph X of the
Basic Provisions serving as the Deposit. Escrow Holder shall immediately invest the Buyer Funds in
a federally-insured, interest-bearing account. All interest earned on the Buyer Funds shall at all
times remain the property of Buyer. The Deposit shall not be refundable to Buyer unless the
transaction contemplated by this Agreement is not consummated solely as the result of Seller’s
default or as a result of the failure of other conditions to closing contained in Paragraph
7 below. Upon the Close of Escrow (as defined below in Paragraph 4.2), the Deposit
shall be credited toward payment of the Purchase Price. That portion of the Buyer Funds not
forming the Deposit, in the amount of One Million Four Hundred Eighty Five Thousand and No/100
Dollars ($1,485,000.00), shall remain refundable to Buyer until the Close of Escrow actually occurs
hereunder.



                    3.1.2 Cash Balance. Not less than one (1) business day prior to the Close of Escrow
(as defined below), Buyer shall deposit or cause to be deposited, with Escrow Holder, in
immediately available funds, such other funds as may be necessary in accordance with the terms
hereof to pay for Buyer’s share of closing costs and charges set forth in Paragraph 10
below and Buyer’s share of prorations set forth on the Proration and Expense Schedule (as defined
below in Paragraph 11) and all other amounts payable pursuant to this Agreement.



     4. Escrow.



               4.1 Opening of Escrow. For the purposes of this Agreement, the Escrow shall be deemed
opened (“Opening of Escrow”) on the date Escrow Holder receives the Buyer Funds. Each party shall
deliver to Escrow Holder original counterparts of the signing party’s executed Agreement within two
(2) business days after this Agreement is executed and delivered by the parties. Buyer and Seller
agree to execute, deliver and be bound by any reasonable or customary supplemental escrow
instructions or other instruments reasonably required by Escrow Holder to consummate the
transaction contemplated by this Agreement; provided, however, that no such instruments shall be
inconsistent or in conflict with, amend or supersede any portion of this Agreement. If there is
any conflict or inconsistency between the terms of such instruments and the terms of this
Agreement, then the terms of this Agreement shall control.



               4.2 Close of Escrow. For purposes of this Agreement, the “Close of Escrow” or the
“Closing” shall be the date (the “Closing Date”) that the Deed (as defined below in Paragraph
9.1.1) is recorded in the Official Records of the County (the “Official Records”). Unless
changed in writing by Buyer and Seller, the Close of Escrow shall occur on the Scheduled Closing
Date as defined in Paragraph XIII of the Basic Provisions.



-3-









 





     5. Condition of Title. The Property shall be conveyed to Buyer by Seller by the Deed
subject only to the following approved conditions of title (collectively, the “Approved Title
Conditions”).



               5.1 Taxes. A lien to secure payment of real estate taxes, bonds, and assessments not
delinquent.



               5.2 Approved Matters. Matters affecting the Property created by or with the written
consent of Buyer, or by Buyer’s consultants, contractors, or agents.



               5.3 Additional Matters. All other matters affecting title to the Property that are
disclosed by the Report (as defined below in Paragraph 7.1), except any which are first
created following the Execution Date.



     6. Buyer’s Title Insurance. At the Close of Escrow, the Title Company shall issue to
Buyer its standard Owner’s Policy of Title Insurance (“Title Policy”) for the Property in the
amount of the Purchase Price, showing title to the Property vested in Buyer and subject only to the
Approved Title Conditions. Buyer shall have the right, conditioned upon its payment of all
premiums and other costs incurred in connection with the ALTA portion of Buyer’s Title Policy or
other additional coverage beyond a standard CLTA title policy, to request and obtain an ALTA
extended coverage policy of title insurance for the Property and such additional endorsements as
Buyer may request, provided that such additional coverage or endorsements shall not be a condition
precedent to, or otherwise excuse or delay any of, Buyer’s obligations under this Agreement. Buyer
shall have sole responsibility for obtaining, and bearing the cost of, any survey(s) required by
the Title Company.



     7. Conditions Precedent to the Close of Escrow for the Benefit of Buyer. The Close of
Escrow and Buyer’s obligation to consummate the transaction contemplated by this Agreement are
subject only to the satisfaction or written waiver of the following conditions precedent for
Buyer’s benefit by the dates designated below:



               7.1 Title. Buyer hereby approves any matters of title disclosed by the following
documents (collectively, the “Title Documents”) prepared and delivered to Buyer by the Title
Company: (a) the Preliminary Report v. 4 dated March 16, 2009, prepared and issued by the Title
Company with respect to the Property and attached hereto as Exhibit E (the “Report”); and
(b) copies of all recorded documents referred to in the Report. Upon the issuance of any
amendment or supplement to the Report which adds additional exceptions not created or caused by
Buyer, Buyer shall have the right of review and approval of said amendment or supplement (provided
that the period for Buyer to review such amendment or supplement shall be one (1) business day from
receipt of the amendment or supplement). If Buyer fails to notify Seller of its disapproval of any
such new title exception(s) within said one (1) business day period, Buyer shall be deemed to have
approved the same. If Buyer does notify Seller of its disapproval of any such new title
exception(s) in writing within said one (1) business day period, Seller shall have the right, but
not the obligation, to notify Buyer in writing within two (2) business days after receipt of
Buyer’s written objection notice that Seller desires to have until the Close of Escrow in which to
attempt to remove or to cure some or all of the disapproved items to Buyer’s reasonable
satisfaction. In connection therewith, Seller shall have the option, in Seller’s sole discretion
and without obtaining Buyer consent, of curing Buyer’s objection to any new mechanic’s lien in the
face amount of Seventy-Five Thousand and No/100 Dollars ($75,000.00) or less by the posting of a
bond by a reputable bonding company reasonably acceptable to Buyer, provided that Buyer shall have
reasonable approval rights with respect to the form, terms, and amount of the bond so posted. If,
in Seller’s reasonable estimation, such cure will require additional time, Seller shall have the
right, but not the obligation, to extend the Scheduled Closing Date by five (5) business days.
Seller’s notice may limit such attempts to cure or remove to exclude payment of money or taking any
judicial action. Seller’s failure to deliver such notice to Buyer within such two (2) business day
period with respect to any disapproved item shall be deemed to be an election by Seller not to
attempt to remove or to cure such items. If Seller elects not to attempt to remove or to cure some
or all of the disapproved items pursuant hereto, to Buyer’s reasonable satisfaction, or if Seller
has agreed to attempt to remove or cure some or all of such disapproved items and is unable to or
has failed to remove or cure the same, then Buyer shall have, as Buyer’s sole and exclusive remedy,
the right exercisable on or before one (1) business day prior to the Scheduled Closing Date either
(i) to waive such exceptions to title,



-4-









 







and proceed to take title to the Property without any
deduction or offset in the Purchase Price, or (ii) to terminate this Agreement and the Escrow by
giving written notice of such termination to Seller and to Escrow Holder in which event Buyer and
Seller shall have no further liability to the other hereunder except for those provisions that
specifically survive the termination of this Agreement and the Deposit as well as the remainder of
the Buyer Funds shall be returned to Buyer. Buyer’s failure to provide Seller or Escrow Holder
with written notice of termination no later than one (1) business day prior to the Scheduled
Closing Date shall constitute Buyer’s election under clause (i) above.



               7.2 Physical Condition. Buyer acknowledges that, as of the Execution Date, Buyer has
conducted all such inspections, investigations, tests and studies, including, without limitation,
investigations
with regard to zoning, building codes and other governmental regulations, architectural
inspections, engineering tests, and soils, seismic and geologic reports with respect to the
Property, inspections of all or any portion of the Improvements (including, without limitation,
structural, mechanical and electrical systems, roofs, pavement, landscaping and public utilities),
development agreements and rights relating to the Property, the occupancy status of the Property
and any other physical inspections and/or investigations as Buyer deemed necessary. In the event
the physical condition of the Property undergoes any material adverse changes from its condition as
of the Execution Date which would affect the use of the Property for development purposes in
violation of Paragraph 23.2 below, Buyer shall have the right to terminate this Agreement
as provided in Paragraph 7.7 below and the Deposit shall be refunded to Buyer.



               7.3 Receipt of Materials. By executing this Agreement, Buyer acknowledges that (i) it
has been given an adequate chance to review materials related to the Property at Seller’s offices
(the “Materials”), and (ii) it has waived the right to review any other documents relating to the
physical or environmental condition of the Property, service contracts for the Property, and any
other documents that Seller may possess, control, or have access to relating to the Property.
Buyer shall rely on the Materials at its own risk, and acknowledges that Seller is under has made
no representations or warranties of any kind whatsoever to Buyer as to the accuracy or completeness
of the content of the Materials or any other information delivered to or made available to Buyer
pursuant to this Agreement, as more fully provided in Paragraph 13.3 below. Seller shall
not have any liability or responsibility to Buyer with respect to the accuracy or completeness of
any of the Materials or other information or based upon or arising out of any use Buyer may make of
the Materials or other information.



               For purposes of this Agreement, the term “Excluded Materials” shall mean any appraisals,
internal reports, valuations, other offers or agreements relating to the acquisition or sale of the
Property, economic evaluations of the Property, reports regarding the Property prepared by Seller
or any affiliate of Seller for the internal use or for the information of the investors in Seller,
privileged information, information related to Seller’s previous loans in connection with the
Property, and any other proprietary information not relating to the physical or environmental
condition of the Property. By executing this Agreement, Buyer acknowledges that it has no right to
review any of the Excluded Materials.



               7.4 Covenants. By Scheduled Closing Date, Seller shall not be in material default in
the performance of any material covenant or agreement to be performed by Seller under this
Agreement.



               7.5 Seller’s Deliveries. On or prior to the Scheduled Closing Date, Seller shall have
delivered to Escrow Holder the documents described in Paragraph 9.1.



               7.6 Representations and Warranties. All representations and warranties of Seller
contained in Paragraph 13 of this Agreement shall be true and correct in all material
respects as of the date made and as of the Close of Escrow with the same effect as if those
representations and warranties were made at and as of the Close of Escrow.



               7.7 Election to Terminate or Waiver of Termination Right. The conditions set forth in
this Paragraph 7 are solely for the benefit of Buyer and may be waived only by Buyer.
Buyer shall at all times have the right to waive any such condition. Buyer shall not act or fail to
act for the purpose of permitting or causing any condition to fail. Nothing contained in this
Agreement shall require Seller to bring any suit or other proceeding, or to pay any sum, to satisfy
any of such conditions. If any of the conditions



-5-









 







in this Paragraph 7 are not timely
satisfied by Seller or waived by Buyer, Buyer shall deliver written notice to Escrow Holder and
Seller on or before the date which is one (1) business day prior to the Scheduled Closing Date, and
Buyer shall have the right by any such timely notice to terminate this Agreement and the Escrow.
If Buyer timely and properly terminates this Agreement in accordance with the foregoing, then,
unless the failure of the condition in question is due to a breach of this Agreement by Buyer (in
which event, the Deposit shall be paid to and retained by Seller), the Deposit, or such portion
thereof that has theretofore been deposited by Buyer with Escrow Holder (less Buyer’s fifty percent
(50%) share of any escrow and title cancellation fees and costs) shall be refunded to Buyer, all
documents deposited into Escrow shall be returned to the party depositing such documents, and
neither party shall have any further rights or obligations under this Agreement, except for those
rights or obligations which expressly survive the termination of this Agreement. Buyer’s failure
to notify Seller and Escrow Holder of its waiver of its right to terminate this Agreement pursuant
to its rights set forth in this Paragraph 7.7 shall be deemed Buyer’s election to proceed
with the Closing. Closing shall constitute conclusive evidence that
Seller has fully performed its obligations under this Agreement and shall further constitute a
waiver by Buyer of any claims, demands and causes of action that Buyer may have against Seller
based upon any failure to perform such obligations prior to Closing. In the event that this
Agreement is terminated prior to the Close of Escrow for any reason other than Seller’s default,
Buyer shall be obligated to deliver to Seller copies of all studies, reports, tests, surveys, and
other analyses pertaining to the Property received by Buyer, whether performed by Buyer itself or
its consultants, agents, or vendors, provided that Buyer shall be deemed to make no representation
as to and shall bear no responsibility for, the accuracy or completeness of said materials, and
Seller shall rely on the same at its sole risk. Buyer’s obligation to deliver the information set
forth in the immediately preceding sentence shall survive the termination of this Agreement.



     8. Conditions Precedent to the Close of Escrow for the Benefit of Seller. The Close
of Escrow and Seller’s obligations with respect to the transaction contemplated by this Agreement
are subject to the timely satisfaction or written waiver of the following conditions precedent for
Seller’s benefit by the dates designated below:



               8.1 Buyer’s Deliveries. On or prior to the Scheduled Closing Date, Buyer shall have
delivered to Escrow Holder the documents described in Paragraph 9.2.



               8.2 Representations and Warranties. All representations and warranties of Buyer
contained in Paragraph 13 of this Agreement shall be true and correct in all material
respects as of the date made and as of the Close of Escrow with the same effect as if those
representations and warranties were made at and as of the Close of Escrow.



               8.3 Covenants. By the Closing, Buyer shall not be in default in the performance of
any covenant or agreement to be performed by Buyer under this Agreement.



          The conditions set forth in this Paragraph 8 are solely for the benefit of Seller and
may be waived only by Seller. Seller shall at all times have the right to waive any condition.
Any such waiver or waivers shall be in writing and shall be delivered to Buyer. If any of the
conditions in this Paragraph 8 is not satisfied or has not been so waived by Seller prior
to the Scheduled Closing Date, Seller shall deliver written notice to Buyer describing the
condition that has not been satisfied or waived, and if such condition remains unsatisfied as of
the Scheduled Closing Date, then Seller shall have the right to terminate this Agreement and the
Escrow by written notice to Buyer.



     9. Deliveries to Escrow Holder.



               9.1 Deliveries by Seller. At least one (1) business day prior to the Scheduled
Closing Date, Seller shall deposit or cause to be deposited with Escrow Holder the following
documents and instruments:



                    9.1.1 Deed. Seller shall deliver to Escrow Holder one (1) original of the grant deed
in the form attached as Exhibit B for the Property, duly executed by Seller and
acknowledged (the “Deed”).



-6-









 





                    9.1.2 FIRPTA. Seller shall deliver to Escrow Holder a Transferor’s Certification of
Non-Foreign Status, in the form attached as Exhibit C, duly executed by Seller (“FIRPTA
Certificate”) and California Form 593 satisfying the requirements of Section 18815 of the
California Revenue and Taxation Code.



                    9.1.3 General Assignment. Seller shall deliver to Escrow Holder four (4) original
counterparts of a General Assignment in the form attached hereto as Exhibit D (“General
Assignment”), duly executed by Seller.



                    9.1.4 Other Documents. Seller shall deliver such other instruments and documents as
may be reasonably requested by the Title Company and/or Escrow Holder.



               9.2 Deliveries by Buyer. At least one (1) business day prior to the Scheduled Closing
Date, Buyer shall deposit or cause to be deposited with Escrow Holder the following:



                    9.2.1 Funds. Buyer shall deliver to Escrow Holder all funds necessary to close the
Escrow in accordance with the terms of this Agreement (including, without limitation, the
balance of Purchase Price as adjusted by any prorations).



                    9.2.2 General Assignment. Buyer shall deliver to Escrow Holder four (4) original
counterparts of the General Assignment duly executed by Buyer.



                    9.2.3 Other Documents. Buyer shall deliver such other instruments and documents as
may be reasonably requested by the Title Company and/or Escrow Holder (including, without
limitation, with respect to Buyer’s authority). 



     10. Costs and Expenses. If the transaction contemplated by this Agreement is
consummated, then Seller shall bear the following costs and expenses: (A) all County and, if
applicable, City documentary transfer taxes in connection with the recording of the Deed (except
in connection with any financing obtained by Buyer); (B) the premium for the standard CLTA Owner’s
title policy in the amount of the Purchase Price; (C) one-half (1/2) of Escrow Holder’s fees; (D) all
document recording charges; and (E) Seller’s share of prorations under this Agreement. If the
transaction contemplated by this Agreement is consummated, then Buyer shall bear the following
costs and expenses: (i) the ALTA portion of title insurance premiums for the standard or extended
ALTA Owners title policy, if any; (ii) the cost of any survey and the cost of any endorsements to
the Title Policy; (iii) one-half (1/2) of Escrow Holder’s fees; and (vi) Buyer’s share of prorations
under this Agreement. If, as a result of no fault of Buyer or Seller, Escrow fails to close, Buyer
and Seller shall share equally all of Escrow Holder’s fees and charges; however, if the transaction
fails to close as the result of the default of either party, then such defaulting party shall bear
all Escrow Holder’s fees and expenses. Buyer shall bear all costs associated with its due
diligence inspections regarding the Property, including, without limitation, the cost of any
survey(s) procured by Buyer. Subject to the provisions of Paragraph 18 below, each party
shall bear the cost of its own attorneys and consultants. All other costs and expenses shall be
allocated between Buyer and Seller in accordance with the customary practice of Riverside County
for transactions of this type.



     11. Prorations.



               11.1 General. Subject to the provisions of this Paragraph 11 and subject to
the provisions of Paragraph 10 above, all revenues and expenses relating to the Property,
including without limitation, real property taxes and assessments, homeowners association dues, and
the like, shall be prorated on an accrual basis as of the Close of Escrow, based upon the actual
number of days in the month the transfer occurs and the most current statement available to Escrow
Holder. Such proration shall be made as of 12:01 a.m. Pacific Time on the Closing Date (the
“Proration Time”). Notwithstanding the foregoing, (i) after the Close of Escrow, Buyer shall be
solely liable and responsible for any real estate taxes and assessments, including, without
limitation, any supplemental, “escape assessment” and “roll-back taxes”, and (ii) Seller shall have
no responsibility for any real estate taxes or assessments after the Close of Escrow. All monthly
prorations shall be calculated on actual days of the applicable month and all annual prorations
shall be calculated based on a 365-day year. Not less than five (5) business days prior



-7-









 







to the
date on which the Close of Escrow shall occur, upon written request of Seller or Escrow Holder,
Seller and Buyer shall agree upon a schedule of expenses and prorations (“Proration and Expense
Schedule”), and Seller and Buyer shall cooperate to update promptly such Proration and Expense
Schedule to the extent the anticipated date on which the Close of Escrow under this Agreement shall
occur changes. If any prorations, apportionments or computations cannot be made under this
Paragraph 11 because the necessary information is unavailable at the Proration Time, then
the most recent information available for the Property shall be used by the parties in making such
Prorations.



               11.2 Utilities. Without limiting the provisions of Paragraphs 10 and 11.1
above, as of the Closing, from and after the Close of Escrow, Seller shall not be responsible for
any charges, fees, assessments or other amounts relating to utilities, including, without
limitation, those for sewer, electricity, water and gas (the “Utility Charges”). Utility Charges
shall not be prorated hereunder as part of Closing. Buyer shall be responsible to have any utility
companies providing service to the Property, if any, switch service into Buyer’s name at Closing
and shall be solely responsible to pay all Utility Charges owing in connection with any of the
Property from and after the Closing. Nothing herein shall limit Seller’s liability directly to any
utility company for any charges or fees which may be owing and are applicable to the period prior
to Closing, provided that in no event shall Seller have any liability to Buyer in connection with
any Utility Charges that may be applicable to periods prior to the Closing. Seller shall have the
right, but not the obligation, to instruct any utility company that Seller no longer owns the
Property.



     12. Disbursements and Other Actions by Escrow Holder. Upon the Close of Escrow,
Escrow Holder shall promptly undertake all of the following in the manner and order set forth
below.



               12.1 Disburse Funds. Escrow Holder shall credit all matters stated to be credited in
Paragraphs 3 and 10 and prorate all matters addressed in Paragraph 11 based
upon the Proration and Expense Schedule and disburse the balance of the Purchase Price (together
with all other items payable to Seller) to Seller promptly upon the Close of Escrow and remaining
funds, if any, to Buyer.



               12.2 Recording. Escrow Holder shall cause the Deed, and any other documents which the
parties hereto may mutually direct in writing, to be recorded in the Official Records and obtain
conformed copies thereof for distribution to Buyer and Seller.



               12.3 Documents to Seller. Escrow Holder shall disburse to Seller two (2) originals of
the General Assignment, one (1) conformed copy of the Deed recorded in the Official Records, and
one (1) copy of any other document deposited into Escrow by Buyer pursuant hereto.



               12.4 Documents to Buyer. Escrow Holder shall deliver to Buyer the original FIRPTA
Certificate executed by Seller, two (2) originals of the General Assignment, one (1) copy of any
other document deposited into Escrow by Seller pursuant hereto, and one (1) conformed copy of the
Deed recorded in the Official Records.



               12.5 Title Company. Escrow Holder shall direct the Title Company to issue the Title
Policy for the Property to Buyer.



     13. Representations and Warranties.



               13.1 Seller’s Representations and Warranties. In consideration of Buyer entering into
this Agreement and as an inducement to Buyer to purchase the Property, Seller makes the following
representations and warranties, each of which is material and is being relied upon by Buyer (and
the truth and accuracy of which shall constitute a condition precedent to Seller’s obligations
hereunder).



                    13.1.1 Power. Seller has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein, and to consummate the transaction contemplated by
this Agreement.



                    13.1.2 Requisite Action. All requisite action (corporate, trust, partnership or



-8-









 







otherwise) has been taken by Seller in connection with entering into this Agreement and the
instruments referenced herein; and, by the Close of Escrow all such necessary action will have been
taken to authorize the consummation of the transaction contemplated by this Agreement. By the
Close of Escrow no additional consent of any partner, shareholder, trustee, trustor, beneficiary,
creditor, investor, judicial or administrative body, governmental authority or other party shall be
required for Seller to consummate the transaction contemplated by this Agreement.



                    13.1.3 Individual Authority. The individuals executing this Agreement and the
instruments referenced herein on behalf of Seller have the legal power, right, and actual authority
to bind Seller to the terms and conditions hereof and thereof.



                    13.1.4 No Conflict. Neither the execution and delivery of this Agreement and the
documents and instruments referenced herein, nor the occurrence of the obligations set forth
herein, nor the consummation of the transaction contemplated herein, nor compliance with the terms
of this Agreement and the documents and instruments referenced herein conflict with or result in
the material breach of any terms, conditions or provisions of, or constitute a default under, any
bond, note, or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust,
loan, partnership agreement, lease or other agreement or instrument to which Seller is a party.



                    13.1.5 Non-Foreign Entity. Seller is not a foreign person or entity under the Foreign
Investment in Real Property Tax Act of 1980, as amended.



                    13.1.6 Prior Loan Litigation. The Prior Loan Litigation, as defined in Paragraph
22 below, (i) is not related to any rights of possession of the Property, and (ii) does not
affect Seller’s right to transfer its ownership interest to the Property to Buyer.



               13.2 Buyer’s Representations and Warranties. In consideration of Seller entering into
this Agreement and as an inducement to Seller to sell the Property, Buyer makes the following
representations and warranties, each of which is material and is being relied upon by Seller (and
the truth and accuracy of which shall constitute a condition precedent to Seller’s obligations
hereunder).



                    13.2.1 Power. Buyer has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein, and to consummate the transaction contemplated by
this Agreement.



                    13.2.2 Requisite Action. All requisite action (corporate, trust, partnership or
otherwise) has been taken by Buyer in connection with entering into this Agreement and the
instruments referenced herein; and, by the Close of Escrow all such necessary action will have been
taken to authorize the consummation of the transaction contemplated by this Agreement. By the
Close of Escrow no additional consent of any partner, shareholder, trustee, trustor, beneficiary,
creditor, investor, judicial or administrative body, governmental authority or other party shall be
required for Buyer to consummate the transaction contemplated by this Agreement.



                    13.2.3 Individual Authority. The individuals executing this Agreement and the
instruments referenced herein on behalf of Buyer have the legal power, right, and actual authority
to bind Buyer to the terms and conditions hereof and thereof.



                    13.2.4 No Conflict. Neither the execution and delivery of this Agreement and the
documents and instruments referenced herein, nor the occurrence of the obligations set forth
herein, nor the consummation of the transaction contemplated herein, nor compliance with the terms
of this Agreement and the documents and instruments referenced herein conflict with or result in
the material breach of any terms, conditions or provisions of, or constitute a default under, any
bond, note, or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust,
loan, partnership agreement, lease or other agreement or instrument to which Buyer is a party.



                    13.2.5 Bankruptcy. Buyer has not (a) commenced a voluntary case, or had entered
against it a petition, for relief under any federal bankruptcy act or any similar petition, order
or



-9-









 







decree under any federal or state law or statute relative to bankruptcy, insolvency or other
relief for debtors, (b) caused, suffered or consented to the appointment of a receiver, trustee,
administrator, conservator, liquidator, or similar official in any federal, state, or foreign
judicial or non-judicial proceeding, to hold, administer and/or liquidate all or substantially all
of its assets, or (c) made an assignment for the benefit of creditors.



               13.3 As-Is. BUYER HEREBY ACKNOWLEDGES THAT THE PROPERTY WAS ACQUIRED BY SELLER’S
PREDECESSOR-IN-INTEREST PURSUANT TO A NON-JUDICIAL FORECLOSURE ACTION PURSUANT TO WHICH SELLER
PERFORMED LITTLE OR NO INVESTIGATION AS TO THE PHYSICAL AND/OR ENVIRONMENTAL CONDITION OF THE
PROPERTY, THE CONDITION OF TITLE THEREOF, THE ZONING AND/OR ENTITLEMENT STATUS THEREOF, OCCUPANCY
STATUS, OR ANY OTHER ASPECT RELATING TO THE VALUE, USE, OR SUITABILITY OF THE PROPERTY OR ANY
ELEMENT THEREOF FOR ANY PARTICULAR USE. BUYER FURTHER ACKNOWLEDGES THAT THE PURCHASE PRICE OF THE
PROPERTY TAKES INTO ACCOUNT ANY RISK THAT BUYER MAY ACQUIRE PROPERTY THAT IS IN A CONDITION OR HAS
CHARACTERISTICS THAT MAY PROVE UNSATISFACTORY TO BUYER. ACCORDINGLY, AS A MATERIAL INDUCEMENT TO
THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY SELLER OF ITS DUTIES
AND OBLIGATIONS HEREUNDER, BUYER DOES HEREBY ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE, TO AND WITH
SELLER, THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) BUYER IS PURCHASING THE PROPERTY IN AN
“AS-IS, WHERE IS, WITH ALL FAULTS” CONDITION AS OF THE DATE OF THE CLOSE OF ESCROW WITH RESPECT TO
ANY FACTS, CIRCUMSTANCES, CONDITIONS AND DEFECTS; (B) SELLER HAS NO OBLIGATION TO REPAIR OR CORRECT
ANY SUCH FACTS, CIRCUMSTANCES, CONDITIONS OR DEFECTS OR COMPENSATE BUYER FOR SAME; (C) OTHER THAN
THE MATERIALS, SELLER HAS NOT PROVIDED, NOR DOES SELLER HAVE ANY OBLIGATION TO PROVIDE ANY
DOCUMENTS RELATING TO THE PHYSICAL, OCCUPANCY, OR ENVIRONMENTAL CONDITION OF THE PROPERTY OR
SERVICE CONTRACTS FOR THE PROPERTY OR ANY OTHER SIMILAR INFORMATION RELATED TO THE PROPERTY; (D)
SELLER HAS MADE NO REPRESENTATIONS OR WARRANTIES REGARDING THE COMPLETENESS OR ACCURACY OF THE
MATERIALS; AND (E) BY THE CLOSE OF ESCROW, BUYER SHALL HAVE UNDERTAKEN ALL SUCH INSPECTIONS AND
EXAMINATIONS IN CONNECTION WITH THE PROPERTY AS BUYER DEEMS NECESSARY OR APPROPRIATE UNDER THE
CIRCUMSTANCES (INCLUDING, WITHOUT LIMITATION, THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE
PROPERTY, THE ZONING OF THE PROPERTY, THE PROPERTY’S COMPLIANCE WITH APPLICABLE LAWS, THE CONDITION
OF ANY IMPROVEMENTS ON THE PROPERTY, THE OCCUPANCY STATUS OF THE PROPERTY, AND THE AVAILABILITY OR
LACK THEREOF OF ENTITLEMENTS FOR THE DEVELOPMENT AND USE OF THE PROPERTY), AND THAT BASED UPON THE
SAME, BUYER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND EXAMINATIONS AND
THE ADVICE AND COUNSEL OF ITS AGENTS, CONSULTANTS, CONTRACTORS, VENDORS AND OFFICERS. BUYER IS AND
WILL BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE CONSIDERATION FOR THE PROPERTY
IN LIGHT OF THE CONDITION OF THE PROPERTY AND THE CIRCUMSTANCES AND MANNER IN WHICH SELLER HAS
ACQUIRED THE SAME AND HAS ELECTED TO CONVEY THE SAME TO BUYER PURSUANT TO THIS AGREEMENT. NEITHER
SELLER NOR ANY REPRESENTATIVE, MEMBER, AGENT, EMPLOYEE, PROPERTY MANAGER, BROKER, PRINCIPAL,
PARTNER, AFFILIATE OR CONSULTANT OF SELLER IS MAKING OR HAS MADE ANY WARRANTY OR REPRESENTATION
(EITHER EXPRESS OR IMPLIED) WITH RESPECT TO ALL OR ANY PART OF THE PROPERTY (INCLUDING, BUT NOT
LIMITED TO, ANY MATTERS CONTAINED IN THE MATERIALS OR ANY OTHER DOCUMENTS MADE AVAILABLE OR
DELIVERED TO BUYER IN CONNECTION WITH THIS AGREEMENT) AS AN INDUCEMENT TO BUYER TO ENTER INTO THIS
ESCROW AND THEREAFTER TO PURCHASE THE PROPERTY OR FOR ANY OTHER PURPOSE. BUYER HEREBY EXPRESSLY
DISCLAIMS (ON BEHALF OF ITSELF AND ANY PARTY AFFILIATED WITH OR RELATED TO BUYER) ANY AND ALL
SELLER REPRESENTATIONS AND WARRANTIES (EITHER EXPRESS OR IMPLIED), EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED IN PARAGRAPH 13.1 ABOVE. BY REASON OF ALL OF THE FOREGOING, BUYER SHALL ASSUME
THE FULL RISK OF ANY LOSS OR DAMAGE OCCASIONED BY ANY FACT, CIRCUMSTANCE, CONDITION, OR DEFECT IN
CONNECTION WITH THE PROPERTY, INCLUDING WITHOUT LIMITATION THE PRESENCE OF ANY ASBESTOS CONTAINING
MATERIAL, HAZARDOUS, TOXIC



-10-









 




OR RADIOACTIVE WASTE, SUBSTANCE OR MATERIALS IN, ON, UNDER OR ABOUT THE
PROPERTY, AND THE RIGHTS OF ANY TENANTS OR OCCUPANTS OF THE PROPERTY TO OCCUPY ANY PORTION THEREOF.
BUYER HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVES AND RELEASES SELLER AND ALL OF ITS PARENTS,
MEMBERS, SUBSIDIARIES, AFFILIATES, PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, CONSULTANTS,
ATTORNEYS, AGENTS, AND EMPLOYEES, AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS AND EACH OF
THEM (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL RIGHTS AND CLAIMS
AGAINST SELLER AND/OR THE RELEASED PARTIES IN CONNECTION WITH THE PROPERTY INCLUDING, WITHOUT
LIMITATION, THE CONDITION, VALUATION, MARKETABILITY, OR UTILITY OF THE PROPERTY FOR ANY USE
(INCLUDING WITHOUT LIMITATION ANY RIGHTS OF BUYER UNDER THE STATE OR FEDERAL COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, AS AMENDED FROM TIME TO TIME, OR SIMILAR
LAWS). BUYER ACKNOWLEDGES AND AGREES THAT THE FOREGOING WAIVER AND RELEASE INCLUDES ALL RIGHTS AND
CLAIMS OF BUYER AGAINST SELLER IN CONNECTION WITH THE PROPERTY, WHETHER HERETOFORE OR NOW EXISTING
OR HEREAFTER ARISING, OR WHICH COULD, MIGHT, OR MAY BE CLAIMED TO EXIST, OF WHATEVER KIND OR
NATURE, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, LIQUIDATED OR UNLIQUIDATED, EACH AS
THOUGH FULLY SET FORTH HEREIN AT LENGTH, WHICH IN ANY WAY ARISE OUT OF, OR ARE CONNECTED WITH, OR
RELATE TO, THE PROPERTY. THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OF WHICH
BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S
RELEASE TO SELLER. IN CONNECTION WITH THE SAME AND TO THE EXTENT PERMITTED BY LAW, BUYER HEREBY
AGREES, REPRESENTS AND WARRANTS THAT BUYER REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW
UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS,
DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN,
UNANTICIPATED AND UNSUSPECTED, AND BUYER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE WAIVERS
AND RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT FACT AND THAT BUYER
NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE AND ACQUIT SELLER AND THE RELEASED PARTIES FROM
ANY
SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES
AND EXPENSES. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS PARAGRAPH 13.3
SHALL BE DEEMED TO CONTRAVENE, LIMIT, OR OTHERWISE NEGATE ANY OF SELLER’S EXPRESS REPRESENTATIONS
AND WARRANTIES SET FORTH IN THIS AGREEMENT.


BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE OR, IF THE
PROPERTY IS NOT LOCATED IN CALIFORNIA, ANY SIMILAR STATUTE IN THE STATE, WHICH PROVIDES AS FOLLOWS:


“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.”



                    WAS
 
Buyer’s Initials


     14. Entry onto Land. Provided that Buyer is not in default of its obligations under
this Agreement from and after the Execution Date through the earlier of the termination of this
Agreement or the Closing, upon not less than twenty-four (24) hours’ advance written notice to
Seller and at times reasonably agreed to by Seller, Buyer, its agents, consultants, contractors and
subcontractors shall have the right to enter upon any portion of the Property to conduct or make
any and all non-intrusive and non-invasive inspections and tests as may be necessary or desirable,
subject to the limitations set forth below in this Paragraph 14. Said entry shall be
solely for the purpose of verifying the condition to closing set forth in Paragraph 7.2
above and shall not deemed to create any additional rights of disapproval or inspection by Buyer.
Nothing herein shall authorize any subsurface testing or drilling on the Property by 


-11-








 







Buyer or its
environmental consultant unless specifically approved in writing by Seller, which Seller may
condition or deny in its sole discretion. Prior to any entry upon the Property pursuant to this
Paragraph 14 by Buyer or any of its employees, contractors, vendors, consultants, or
agents, and prior to any meeting with any governmental officials or departments having jurisdiction
over the Property, and subject to Seller’s reasonable agreement as to the time, place, and manner
of Buyer’s entry upon any portion of the Property, Buyer shall provide Seller with at least
twenty-four (24) hours’ advance written notice, and Seller shall have the right to be present (or
to cause an employee, agent, contractor, or consultant of Seller to be present) for such entry,
inspection and/or meeting, as applicable. Buyer shall obtain or cause its consultants to obtain
(and provide evidence to Seller), at Buyer’s sole cost and expense, prior to commencement of any
investigative activities on the Property, a policy of commercial general liability insurance
covering any and all liability of Buyer and Seller with respect to or arising out of any
investigative activities. Such policy of insurance shall name Seller as an additional insured and
shall be kept and maintained in force during the term of this Agreement and so long thereafter as
necessary to cover any claims of damages suffered by persons or property resulting from any acts or
omissions of Buyer, Buyer’s employees, agents, contractors, suppliers, consultants or other related
parties. Such policy of insurance shall have liability limits of not less than Two Million Dollars
($2,000,000.00) combined single limit per occurrence for bodily injury, personal injury and
property damage liability.



          Buyer shall promptly, upon its receipt thereof, deliver to Seller, at no cost or expense to
Seller, a copy of all tests, reports, analysis and the like, excluding financial analysis, obtained
and/or prepared pursuant to the provisions of this Paragraph 14, provided that Buyer shall
be deemed to make no representation as to and shall bear no responsibility for, the accuracy or
completeness of said materials, and Seller shall rely on the same at its sole risk. Buyer shall
keep all documents and information received from Seller and/or its agents and the results of all of
its inspections, studies, investigations, analysis, reports and the like confidential except as
required by law and except for disclosures made to Buyer’s agents, consultants and employees.
Buyer hereby consents and agrees, upon written demand from Seller, to indemnify, defend, by counsel
of Seller’s choosing, and hold the Property, Seller and their respective officers, members,
partners, directors, shareholders, participants, affiliates, employers, representatives, invitees,
agents and contractors free and harmless from and against any and all claims, costs, including,
without limitation, attorneys’ fees and legal costs, losses, liabilities, damages, liquidated or
unliquidated, and expenses arising out of or resulting from such entry by Buyer, its agents,
consultants, contractors, subcontractors and employees, whether or not the same have been
adjudicated or determined by a court or by another legal procedure. Additionally, Buyer shall
immediately, at its sole cost and expense, repair any and all damage arising out of or resulting
from any such entry upon the
Property and any acts or omissions by Buyer, its agents, employees, consultants, contractors,
subcontractors, and shall immediately, at its sole cost and expense, restore the Property to the
condition that existed immediately prior to such entry by Buyer, its agents, employees,
consultants, contractors and subcontractors. Furthermore, Buyer hereby agrees not to contact any
governmental agencies with respect to the Property without Seller’s prior written consent, which
Seller may withhold or condition in its sole discretion. Buyer shall keep the Property free and
clear of any mechanics’ liens or materialmen’s liens related to Buyer’s inspection and the other
activities contemplated in this Paragraph 14. All of Buyer’s obligations set forth in this
Paragraph 14 shall survive the Close of Escrow and shall not be merged with the Deed, and
shall survive the termination of this Agreement and Escrow prior to the Close of Escrow, and shall
not be limited by any provision of this Agreement.




     15. Enforcement and Legal Fees.



               15.1 BUYER’S DEFAULT. IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS
PROVIDED IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER, SELLER’S SOLE REMEDY (EXCEPT AS
PROVIDED BELOW) SHALL BE TO TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES
AND SELLER SHALL BE RELEASED FROM ITS OBLIGATION TO SELL THE PROPERTY TO BUYER. BUYER AND SELLER
AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY
SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS
HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET
DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER’S DEFAULT OR BREACH



-12-









 




HEREUNDER IS AN AMOUNT
OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES
ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY
WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE
FOREGOING SHALL NOT LIMIT SELLER’S REMEDIES WITH RESPECT TO BUYER’S OBLIGATIONS (INCLUDING, WITHOUT
LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14, 17 AND 21.15 OF
THIS AGREEMENT AND THE ATTORNEYS’ FEES PROVISION SET FORTH IN PARAGRAPH 18 BELOW, AND ANY
OBLIGATIONS UNDER THIS AGREEMENT THAT EXPRESSLY SURVIVE THE CLOSE OF ESCROW OR ANY EXPIRATION OR
TERMINATION OF THIS AGREEMENT.



	 	 	 
	
                    RJM
 
SELLER’S INITIALS
	 	
                    WAS

 
BUYER’S INITIALS





               15.2 SELLER’S DEFAULT. IF SELLER FAILS TO COMPLETE THE PURCHASE AS PROVIDED HEREIN,
THEN BUYER SHALL BE ENTITLED, AS ITS SOLE AND EXCLUSIVE REMEDY, WHETHER AT LAW OR IN EQUITY, TO
TERMINATE THIS AGREEMENT AND RECOVER THE DEPOSIT TO THE EXTENT MADE BY BUYER AS OF THE DATE OF THE
SUBJECT TERMINATION OF THIS AGREEMENT; PROVIDED HOWEVER THAT IN LIEU OF TERMINATING THIS AGREEMENT
AND RECOVERING ITS DEPOSIT, BUYER SHALL BE ENTITLED TO PURSUE SPECIFIC PERFORMANCE OF THIS
AGREEMENT WITHOUT RIGHT TO ANY DAMAGES OR OTHER EQUITABLE RELIEF WHATSOEVER, BUT ONLY IF: (A) BUYER
DEPOSITS WITH ESCROW HOLDER, BY 12:00 P.M. PACIFIC TIME ON THE SCHEDULED CLOSING DATE THE
FOLLOWING: (1) THE CASH BALANCE OF THE PURCHASE PRICE; (2) ALL CLOSING DOCUMENTS REQUIRED HEREUNDER
FROM BUYER; (3) AN UNCONDITIONAL RELEASE OF SELLER FROM ALL LIABILITIES AND OBLIGATIONS ARISING
UNDER THE TRANSACTION DOCUMENTS OTHER THAN THE OBLIGATION TO DELIVER THE DOCUMENTS NECESSARY TO
CAUSE THE CLOSE OF ESCROW TO OCCUR AS REQUIRED UNDER THIS AGREEMENT AND ANY OTHER OBLIGATIONS OF
SELLER UNDER THIS AGREEMENT THAT EXPRESSLY SURVIVE THE CLOSE OF ESCROW; AND (4) AN UNCONDITIONAL,
IRREVOCABLE WRITTEN INSTRUCTION TO ESCROW HOLDER TO CLOSE THE TRANSACTION THAT IS THE SUBJECT OF
THIS AGREEMENT; (B) BUYER FILES SUCH SPECIFIC PERFORMANCE ACTION WITHIN FIVE (5) BUSINESS DAYS OF
THE DATE ON WHICH BUYER FIRST ALLEGES THAT SELLER BREACHED THIS AGREEMENT; AND (C) BUYER THEREAFTER
DILIGENTLY PROSECUTES SUCH ACTION TO COMPLETION.



	 	 	 
	
                    RJM
 
SELLER’S INITIALS
	 	
                    WAS
 
BUYER’S INITIALS






     16. Notices. Any notice, demand, consent, approval, request, or other communication
or document to be provided hereunder to a party hereto shall be in writing and shall be given to
such party and its counsel at the addresses or facsimile numbers set forth in the Basic Provisions
above, or such other address or facsimile number as such party may hereafter specify for that
purpose by notice to the other party. Each such notice, request, or communication shall, for all
purposes, be deemed given and received: (a) if given by facsimile, when such facsimile is
transmitted to the facsimile number specified above during normal business hours (i.e., 8:00 a.m.
to 5:00 p.m. Pacific Time) and confirmation of complete receipt is received during normal business
hours (e.g., if a facsimile confirmation is received at 7:00 P.M. Pacific Time, such facsimile
shall be deemed to have been delivered at 8:00 A.M. the following business day); (b) if hand
delivered against receipted copy, when the copy thereof is receipted; (c) if given by a recognized
overnight delivery service, the day on which such notice, request, or other communication is
actually received, or if on a weekend or nationally recognized holiday, the following business day;
or (d) or if given by certified mail, return receipt requested, postage prepaid, two (2) business
days after it is posted with the United States Postal Service, to the addresses specified in the
Basic Provisions. Notices to Seller shall be directed to Seller and Seller’s Counsel and notices
to Buyer shall be directed to Buyer and Buyer’s Counsel. Notices by electronic mail shall not be
permitted.


-13-








 





               Notice of change of address shall be given by written notice in the manner detailed in this
Paragraph 16. Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to constitute receipt of the notice,
demand, request or communication sent.



     17. Broker. Upon the Close of Escrow as contemplated herein (but not otherwise),
Seller shall pay a real estate brokerage commission to the broker identified in Paragraph
VI of the Basic Provisions (“Broker”), in accordance with Seller’s separate agreement with
Broker. Each party hereto agrees to indemnify, defend, protect, and hold harmless the other party
from and against any and all losses, liens, claims, judgments, liabilities, costs, expenses and
damages (including reasonable attorneys’ fees and other legal costs) of any kind of character
arising out of or resulting from any agreement, arrangement or understanding (except as set forth
above with respect to Broker) alleged to have been made by such party or on its behalf with any
broker or finder in connection with this Agreement or transaction contemplated under this
Agreement. The foregoing indemnity shall survive the Close of Escrow or the earlier termination of
this Agreement and shall not be limited by any provision of this Agreement.



     18. Legal Fees. If either Buyer or Seller brings any action, arbitration or suit
against the other for any matter relating to or arising out of this Agreement, then the prevailing
party in such action or dispute, whether by final judgment or settlement, shall be entitled to
recover from the other party all costs and expenses of suit, including actual attorneys’ fees. Any
judgment or order entered in any final judgment shall contain a specific provision providing for
the recovery of all costs and expenses of suit, including actual attorneys’ fees incurred in
enforcing, perfecting and executing such judgment. For the purposes of this paragraph, such costs
shall include, without limitation, in-house and outside attorneys’ fees, costs and expenses.



     19. Assignment. Buyer may not assign, transfer or convey its rights or obligations
under this Agreement at any time without the prior written consent of Seller, which Seller may
withhold in its sole and absolute discretion; provided, however, Buyer may, without the consent of
Seller, assign its rights under this Agreement to an entity controlled by, controlling or under
common control with Buyer upon the following conditions: (a) the assignee of Buyer shall assume
all obligations of Buyer hereunder, but Buyer shall remain primarily liable for the performance of
Buyer’s obligations; and (b) a copy of the fully executed written assignment and assumption
agreement shall be delivered to Seller at least three (3) business days prior to Closing.



     20. Damage or Destruction, Condemnation, Insurance.



               20.1 Condemnation. If at any time prior to the Closing any “material” portion of the
Property is condemned or taken by eminent domain proceedings by any public authority, then at
Buyer’s sole option, to be exercised within ten (10) days after Buyer’s receipt of notice of such
taking, this Agreement shall terminate, and the Deposit shall be promptly returned to Buyer, and
except as expressly set forth herein, neither party shall have any further liability or obligation
to the other hereunder. As used in this Paragraph 20.1, the
term “material” shall mean a taking which materially and adversely affects the value or
operations of the Property and adversely affects the value of the Property by more than twenty
percent (20%) of the Purchase Price. Seller shall give Buyer written notice of any taking promptly
after Seller obtains knowledge thereof. If Buyer does not timely notify Seller in writing of its
election to terminate this Agreement, Buyer shall be deemed to have elected not to terminate this
Agreement. If Buyer elects or is deemed to have elected not to terminate this Agreement, the
parties shall proceed to the Closing without a reduction in the Purchase Price and all condemnation
proceeds paid or payable to Seller, if any, shall belong to Buyer and shall be paid over and
assigned to Buyer when and if received by Seller. Seller shall have no obligation to make any
repairs to the Property in the event of any condemnation.



               20.2 Damage and Destruction. If at any time prior to the Closing a material portion
of the Property is destroyed or damaged as a result of fire or any other casualty whatsoever, then
at Buyer’s sole option, to be exercised within five (5) days after Buyer’s receipt of notice of
such destruction or damage, this Agreement shall terminate, the Deposit shall be returned to Buyer,
and except as expressly



-14-









 







set forth herein, neither party shall have any further liability or
obligation to the other hereunder. If Buyer does not timely notify Seller in writing of its
election to terminate this Agreement, Buyer shall be deemed to have elected not to terminate this
Agreement. As used in this Paragraph 20.2, the term “material” shall be deemed to be a
damage or destruction in excess of twenty percent (20%) of the Purchase Price. If less than a
material portion of the Property is damaged or destroyed or if a material portion is damaged or
destroyed and Buyer elects or is deemed to have elected not to terminate this Agreement, the
parties shall proceed to the Closing without reduction in the Purchase Price and all insurance
proceeds paid or payable to Seller, if any, as a result of such casualty shall belong to Buyer and
shall be paid over and assigned to Buyer when and if received by Seller. Seller shall have no
obligation to make any repairs to the Property in the event of any damage or destruction.



     21. Miscellaneous.



               21.1 Not an Offer. Notwithstanding anything to the contrary in this to Agreement, the
signing of this Agreement by Buyer constitutes an offer which shall not be deemed accepted by
Seller unless and until Seller has signed this Agreement and delivered a duplicate original to
Buyer and Escrow Holder and Buyer has deposited the Deposit with Escrow Holder. Seller’s delivery
of unsigned copies of this Agreement is solely for the purpose of review by Buyer, and unless and
until this Agreement has been mutually executed by Seller and Buyer and deposited with Escrow
Holder and Buyer has deposited the Deposit with Escrow Holder as required under this Agreement,
neither the this Agreement, nor the transmittal thereof to Buyer or any officer, director,
employee, consultant, broker, or agent of Buyer, nor any communication by Seller, or any officer,
director, employee, consultant, broker, or agent of Seller, shall create any obligation on the part
of Seller.



               21.2 No Obligations Prior to Execution. This Agreement and all other communications
relating to this Agreement, the Property and/or any matters relating thereto are made based on the
express understanding of Seller that, unless and until this Agreement has been mutually executed by
Seller and Buyer and deposited with Escrow Holder and Buyer has deposited the Deposit with Escrow
Holder, (a) Seller shall have no obligation whatsoever in connection with this Agreement or the
conveyance of the Property to Buyer, including, but not limited to, any obligation to continue
negotiating with Buyer or any affiliate, officer, director, employee, agent, or consultant thereof,
regarding the Property, this Agreement, or any other agreement or document relating to the
Property, in good faith or otherwise, (b) Seller shall retain at all times the right, in its sole
and subjective discretion, to reject any and all proposals and other expressions of interest
regarding any possible transaction between Seller and Buyer or any affiliate of Buyer relating to
the Property, (c) Seller shall retain at all times the right, in its sole and subjective
discretion, to unilaterally terminate any and all negotiations with Buyer and/or any affiliate of
Buyer relating to this Agreement or the Property, and (d) Seller shall retain at all times the
right, without any restraint whatsoever, to negotiate with other parties and/or enter into an
Agreement of Purchase and Sale or any other transaction with any other party involving all or any
part of the Property.



               21.3 Back-Up Offers. Notwithstanding the mutual execution and delivery of this
Agreement by Seller and Buyer and Buyer’s making the Deposit as required under this Agreement,
until such time as the Property is conveyed to Buyer, or the provisions of Paragraph 23
below, Seller shall retain the right, in its sole and subjective discretion, to seek and obtain
back-up offers and agreements for the purchase of the Property by parties other than Buyer.



               21.4 Computation of Time Periods. If the Contingency Date, the Scheduled Closing
Date, the Closing or any other date or time period provided for in this Agreement occurs on a
Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended
until the next day which is not a Saturday, Sunday or federal, state or legal holiday.



               21.5 Captions. Any captions to, or headings of, the paragraphs or subparagraphs of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of this
Agreement or any provision hereof.



-15-









 





               21.6 No Obligations to Third Parties. Except as otherwise expressly provided herein,
the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor
obligate any of the parties hereto, to any person or entity other than the parties hereto. No
Broker shall be a third party beneficiary of this Agreement.



               21.7 Exhibits and Schedules. The exhibits and schedules attached to this Agreement
are incorporated in this Agreement by this reference for all purposes.



               21.8 Amendment to this Agreement. The terms of this Agreement may not be modified or
amended except by an instrument in writing executed by each of the parties hereto.



               21.9 Waiver. The waiver or failure to enforce any provision of this Agreement shall
not operate as a waiver of any future breach of any such provision or any other provision hereof.



               21.10 Applicable Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, except for any choice-of-law principles which
provide for the application of the laws of another jurisdiction. Venue for any action or legal
proceeding arising under or in connection with this Agreement shall be in the appropriate court in
Orange County, California.



               21.11 Fees and Other Expenses; Utilities and Services. Except as otherwise provided
herein, each of the parties hereto shall pay its own fees and expenses in connection with this
Agreement. Buyer shall, at its sole cost and expense, upon the Close of Escrow, transfer all
utilities and services at the Property into Buyer’s name, so that Seller has no further obligations
in connection therewith; the provisions of this sentence shall survive the Close of Escrow and
shall not be merged with the Deed.



               21.12 Entire Agreement. This Agreement (including all Exhibits attached hereto)
supersedes any prior agreements (including, without limitation, any “confidentiality” or other
agreement executed by Seller and Buyer), negotiations and communications, oral or written, and
contains the entire agreement between, and the final expression of, Buyer and Seller with respect
to the subject matter hereof. No subsequent agreement, representation, or made by either party
hereto, or by or to an employee, officer, agent or representative of either party hereto shall be
of any effect unless it is in writing and executed by the party to be bound thereby.



               21.13 Successors and Assigns. Subject to the restrictions set forth in Paragraph
19 hereof, this Agreement shall be binding upon and shall inure to the benefit of the permitted
successors and assigns of the parties hereto.



               21.14 Construction. The parties acknowledge and agree that (A) each party hereto is
of equal bargaining strength, (B) each such party has actively participated in the drafting,
preparation and negotiation of this Agreement, (C) each such party has consulted with such party’s
own, independent counsel, and such other professional advisors as such party has deemed
appropriate, relating to any and all matters contemplated under this Agreement, (D) each such party
and such party’s counsel and advisors have reviewed this Agreement, (E) each such party has agreed
to enter into this Agreement following such review and the rendering of such advice, and (F) any
rule of construction to the effect that ambiguities are to be resolved against the drafting parties
shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments
hereto.



               21.15 Limitation of Liability; Indemnity. Buyer acknowledges and agrees that neither
the trustees, shareholders, officers, members, investment managers, affiliates, employees, partners
nor advisors
of Seller, assume any personal liability for obligations entered into by or on behalf of
Seller. Notwithstanding any other provision of this Agreement to the contrary or any rights that
Buyer may have at law or in equity, (a) in no event shall Seller have any liability for
speculative, special, consequential or punitive damages, and (b) in no event shall Seller’s
liability under or otherwise in connection with Transaction Documents including, without
limitation, any representations, warranties, covenants and other obligations (whether express or
implied) set forth in this Agreement or any other agreements

or


-16-









 







 documents executed in connection
herewith and/or otherwise in connection with the Property exceed the sum of one hundred thousand
dollars ($100,000). Notwithstanding anything to the contrary contained in this Agreement, Buyer
hereby agrees that any action or claim under or otherwise in connection with the Transaction
Documents and/or otherwise in connection with the Property asserted by Buyer against Seller or any
of the Released Parties must be filed (if at all) within six (6) months following the Closing in a
court of competent jurisdiction, and Buyer hereby waives any right to bring any such claim or
action thereafter. Buyer’s remedies prior to Closing shall be limited as set forth in
Paragraph 15.2.



          Notwithstanding anything to the contrary set forth in this Agreement, Buyer hereby covenants
and agrees to indemnify, defend, protect, and hold Seller and the Released Parties free and
harmless from and against any and all claims, costs, losses, liabilities, damages and expenses
arising in connection with and/or relating to the Property (including, without limitation, any
tenants) and/or the ownership, use and/or operation thereof on and after the Close of Escrow. The
foregoing indemnity shall survive the Close of Escrow and shall not be limited by any provision of
this Agreement.




          The provisions of this Paragraph 21.15 shall survive the Closing.




               21.16 Time of the Essence. All times provided for in this Agreement for the
performance of any act shall be strictly construed, time being of the essence.



               21.17 Recording. The parties agree that this Agreement shall not be recorded. If
Buyer causes this Agreement or any notice or memorandum thereof to be recorded, this Agreement
shall be null and void at the option of Seller.



               21.18 Confidentiality. Until the Close of Escrow, Buyer will keep confidential the
Purchase Price, the other terms of this Agreement, and all information concerning the Property (as
disclosed, discovered or determined in connection with this transaction); provided, however, Buyer
may disclose such information to (a) those employed by Buyer (subject to their agreement to abide
by the terms of this paragraph); (b) third parties as required under applicable law; and (c)
Buyer’s potential financial partners and lenders (subject to their agreement to abide by the terms
of this paragraph).



          Without limiting the foregoing, between the Effective Date and the Close of Escrow, Buyer will
not release or cause or permit to be released any press notices, or other publicity (oral or
written) or advertising or promotion relating to, or otherwise announce or disclose or cause or
permit to be announced or disclosed, in any manner whatsoever, the terms and/or conditions or the
fact of or substance of this Agreement, except for disclosures required by law in connection with
Buyer’s status as a publicly traded entity, without first obtaining the written consent of Seller,
which consent shall not be unreasonably withheld. Additionally, after the Close of Escrow, Buyer
shall not release or cause or permit to be released any press notices, or other publicity (oral or
written) or advertising or promotion relating to this Agreement or the sale of the Property by
Seller to Buyer, without the prior written consent of Seller. The provisions of this paragraph
shall survive the Close of Escrow and shall not be merged with the Deed.




               21.19 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY
HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION SEEKING SPECIFIC PERFORMANCE OF ANY
PROVISION OF THIS AGREEMENT, FOR DAMAGES FOR ANY BREACH UNDER THIS AGREEMENT, OR OTHERWISE FOR
ENFORCEMENT OF ANY RIGHT OR REMEDY HEREUNDER.



               21.20 Recordation; Actions to Clear Title. Buyer shall not record this Agreement, any
memorandum of this Agreement, any assignment of this Agreement or any other document which would
cause a cloud on the title to the Property. If Buyer fails to complete its purchase of the
Property for any reason except Seller’s default, at Seller’s request, Buyer shall, at no cost to
Seller, promptly execute, acknowledge and deliver to Seller a quitclaim deed prepared by Seller at
its cost, in recordable form, in favor of Seller and any other documents requested by and prepared
by Seller at its cost to confirm that neither this Agreement nor any
Escrow relating to this Agreement in any manner created any interest running to the benefit of
Buyer affecting title to the Property; Buyer’s compliance with this sentence shall be a condition
precedent to the return of the Deposit to Buyer. Seller shall pay the cost to record such



-17-









 







quitclaim deed. Without limiting the foregoing, if Buyer fails to so execute and deliver such
document, in addition to any liquidated damages payable to Seller pursuant to this Agreement, Buyer
shall pay all losses, damages, costs and expenses, including, but not limited to, Seller’s
reasonable attorneys’ fees, incurred in connection with Buyer’s breach of its obligations under
this Paragraph 21.20.



               21.21 1031 Exchange. Buyer and Seller hereby agrees to reasonably cooperate with each
other and shall execute any and all documents necessary, in the form reasonably approved by the
both parties, which shall assign all of such party’s right, title and interest in and to this
Agreement to an intermediary, which intermediary shall complete the sale/purchase of the Property,
in order to accommodate a tax-deferred exchange for such party pursuant to the provisions of
Section 1031 of the Internal Revenue Code of 1986, as amended; provided, however, that in no event
shall (i) either party hereto be required to incur any additional costs, expenses, obligations or
other liabilities in connection with assisting the other party with a tax-deferred exchange (other
than any costs and expenses resulting from the review of exchange documents), (ii) such exchange
delay or be a condition to the Closing, or (iii) either party hereto be required to take title to
any real property other than the Property.



               21.22 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which, together, shall constitute but one and the
same instrument.



               21.23 True Sale. It is the intention of the parties that the Buyer is purchasing, and
the Seller is selling, the Property and not a debt instrument of the Seller or another security.
Accordingly, the parties hereto each intend to treat the transaction for reporting, accounting and
Federal income tax purposes as a sale by the Seller, and a purchase by the Buyer, of the Property.
The Buyer shall have the right to review the Property to determine the characteristics of the
Property and the transactions contemplated under this Agreement which shall affect the Federal
income tax consequences of owning the Property and the Seller shall cooperate with all reasonable
requests made by the Buyer in the course of such review.



     22. Litigation. Buyer acknowledges that (i) Seller (or Seller’s
predecessor-in-interest), as lender, acquired the Property from the prior owner through
foreclosure, deed-in-lieu of foreclosure, or otherwise as a result of the prior owner’s default
under the terms and conditions set forth in one or more agreements evidencing a loan made by Seller
(or Seller’s predecessor-in-interest) which was secured in whole or in part by the Property (“Prior
Loan”), and (ii) Seller is currently engaged in ongoing litigation against the prior owner and
certain other related parties (collectively, the “Prior Owner Parties”) emanating from the Prior
Owner Parties’ obligations under the terms of a personal guarantee issued by one or more of the
Prior Owner Parties in connection with the Prior Loan (the “Prior Loan Litigation”). Seller hereby
represents and warrants to Buyer that, the Prior Loan Litigation pertains only to the personal
guarantee obligations of the Prior Loan Parties and, to Seller’s knowledge, shall have no effect on
the status of Buyer’s title to the Property following the Closing. Nothing in this Agreement nor
any of the documents to be entered into by Seller and Buyer pursuant to this Agreement, including,
without limitation, the Grant Deed and/or the General Assignment, shall in any way prevent,
prohibit, or otherwise limit Seller’s right to continue to pursue the Prior Loan Litigation or to
exercise any other legal remedies it may have against the Prior Loan Parties, and Seller shall in
all events retain all right, title, and interest in and to the Prior Loan Litigation and any and
all amounts which Seller may recover in connection with the Prior Loan Litigation including,
without limitation, any settlement amounts, judgments, awards, cost reimbursements, or otherwise.



     23. Operation of Property Pending Close of Escrow. From and after the Execution Date
and continuing until the earlier of (i) the Closing, or (ii) the termination of this Agreement, the
following shall apply:




          23.1 Seller shall not sell, convey, grant, assign or otherwise transfer (on or off record)
the Property or any interest therein which would survive the Closing, and which would materially
and adversely affect the use of the Property by Buyer, without the prior written consent of
Buyer, which consent shall not be unreasonably withheld, conditioned or delayed.



-18-









 






          23.2 Seller shall not alter the physical condition of the Property in a way that which
would materially and adversely affect the use of the Property for development purposes.




          23.3 Seller shall convey to Buyer all material notices and/or communications Seller may
receive from any governmental body pertaining to the Property within three (3) business days
upon Seller’s receipt thereof.



[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]




-19-









 





               IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the day and year first
written above.





	 	 	 	 	 
	BUYER: 



SPT-LAKE ELSINORE HOLDING CO., LLC, 

a Delaware limited liability company 



By: Shopoff Partners, L.P., a Delaware 

      limited partnership, sole member 



By: Shopoff General Partner, LLC, a 

      Delaware limited liability company, 

      general partner 



By: Shopoff Properties Trust, Inc.,

      a Maryland corporation, manager

 	 	 
	By:  	/s/ William A. Shopoff 	 	 
	 	William A. Shopoff, 	 	 
	 	President and CEO 	 	 
	 






	 	 	 	 	 
	SELLER:



U.S. BANK NATIONAL ASSOCIATION


 	 	 
	By:  	/s/ Richard J. Mikos	 	 
	 	Name:  	Richard J. Mikos 	 	 
	 	Its: 	Executive Vice President	 
	 
	 	 	 
	By:  	
 	 	 
	 	Name:  	 	 	 
	 	Its: 	 	 	 
	 









ACCEPTANCE BY ESCROW HOLDER


               First American Title Insurance Company acknowledges that it has received a fully executed
original or original executed counterparts of the foregoing Agreement of Purchase and Sale and
Joint Escrow Instructions (the “Agreement”) and agrees to act as Escrow Holder under the Agreement
and to be bound by and strictly perform the terms thereof as such terms apply to Escrow Holder.


	 	 	 	 	 
	Dated:  May 13, 2009 	COMMONWEALTH LAND TITLE COMPANY
 	 
	 	By:  	/s/ Nathan Thompson	 
	 	 	Name:  	Nathan Thompson 	 
	 	 	Its: 	Escrow Officer 	 
	 



-20-








 





EXHIBIT A




LEGAL DESCRIPTION OF PROPERTY



All that certain real property situated in the County of Riverside, State of California, described
as follows:




PARCEL A:



THE SOUTH HALF OF THE SOUTHWEST QUARTER OF SECTION 14, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN
BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.



EXCEPTING THEREFROM THAT PORTION THEREOF INCLUDED IN ROMOLA FARMS NO. 15, AS SHOWN BY MAP ON FILE
IN BOOK 15, PAGES 98, 99 AND 100 OF MAPS, RIVERSIDE COUNTY RECORDS.



ALSO EXCEPTING THEREFROM THE SOUTHERLY 390 FEET OF SAID SOUTHWEST QUARTER AS GRANTED TO SOUTHERN
CALIFORNIA EDISON COMPANY BY DEED RECORDED MAY 13, 1969 AS INSTRUMENT NO. 46789 OF OFFICIAL
RECORDS.




PARCEL B:



LOTS 1686, 1687, 1690, 1691, 1692, 1693 OF ROMOLA FARMS 15 AS SHOWN BY MAP ON FILE IN BOOK 15,
PAGES 98, 99 AND 100 OF MAPS, RIVERSIDE COUNTY RECORDS, TOGETHER WITH THAT PORTION OF SAN JACINTO
ROAD (LOT “V”) ADJOINING SAID LOTS 1686 AND 1687 ON THE EAST AND LOTS 1690 AND 1691 ON THE WEST,
AND THAT PORTION OF PALOMAR ROAD (LOT “W”) ADJOINING LOTS 1692 AND 1693 ON THE EAST, WHICH WOULD
PASS WITH A CONVEYANCE OF SAID LAND.




PARCEL C:



THE SOUTHERLY 390 FEET OF THE SOUTHWEST ONE-QUARTER OF SECTION 14, TOWNSHIP 5 SOUTH, RANGE 3 WEST,
SAN BERNARDINO MERIDIAN.



EXCEPTING THEREFROM THAT PORTION THEREOF INCLUDED WITHIN ROMOLA FARMS 15 AS SHOWN ON MAP ON FILE IN
BOOK 15, PAGES 98, 99 AND 100 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.




PARCEL D:



LOTS 1688, 1689, 1694 AND 1695 OF ROMOLA FARMS 15 AS SHOWN ON MAP ON FILE IN BOOK 15, PAGES 98, 99
AND 100 OF MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF
SAN JACINTO ROAD (LOT V) ADJACENT TO SAID LOTS 1688 AND 1689 AND THAT PORTION OF PALOMAR ROAD (LOT
W) ADJACENT TO SAID LOTS 1694 AND 1698 AND THAT PORTION OF ROUSE ROAD (LOT Y) ADJACENT TO SAID LOTS
1688 AND 1695, AS SAID ROADS ARE SHOWN ON SAID MAP WHICH WOULD PASS WITH A CONVEYANCE OF SAID LOTS
1688, 1689, 1694 AND 1695.




PARCEL E:



PARCELS 1 TO 3 AND LOTS 6 TO 8 INCLUSIVE OF PARCEL MAP 15905, IN THE COUNTY OF RIVERSIDE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 98, PAGE 59 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.




PARCEL F:



BEING THAT PORTION OF PARCELS 4 AND 5, IN THE COUNTY OF RIVERSIDE, STATE OF


 









 






CALIFORNIA, AS SHOWN ON
PARCEL MAP 15905 RECORDED IN BOOK 98, PAGE 59 OF PARCEL
MAPS, OFFICIAL RECORDS OF SAID COUNTY, SHOWN AS PARCEL “B” OF LOT LINE ADJUSTMENT 4895 RECORDED
JUNE 30, 2005 AS INSTRUMENT NO. 2005-520051 OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:



COMMENCING AT THE CENTER OF SECTION 23, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN BERNARDINO BASE AND
MERIDIAN, ALSO BEING THE SOUTHEAST CORNER OF SAID PARCEL 5, AS SHOWN ON SAID MAP;



THENCE PROCEEDING COINCIDENT WITH THE SOUTH LINE OF THE NORTHWEST QUARTER OF SAID SECTION 23, ALSO
BEING THE SOUTH LINE OF SAID PARCEL 5, SOUTH 89° 24’ 08” WEST 328 FEET TO THE SOUTHWEST CORNER OF
SAID PARCEL 5;



THENCE LEAVING LAST SAID LINE AND PROCEEDING COINCIDENT WITH THE WEST LINE OF SAID PARCEL 5 NORTH
00° 16’ 53” WEST 860.10 FEET TO A POINT OF THE SOUTHEAST CORNER OF SATO PARCEL 4 AND THE TRUE POINT
OF BEGINNING;



THENCE PROCEEDING COINCIDENT WITH SOUTH LINE OF SAID PARCEL 4, NORTH 89° 39’ 22” WEST 484 FEET TO
THE SOUTHWEST CORNER OF SAID PARCEL 4;



THENCE PROCEEDING COINCIDENT WITH THE WEST LINE OF SAID PARCEL 4 NORTH 00” 16’ 56” WEST 1757.42
FEET TO THE NORTHWEST CORNER OF SAID PARCEL 4, ALSO BEING THE SOUTHWEST CORNER OF LOT “G” (ROUSE
ROAD) AS SHOWN ON SAID MAP;



THENCE PROCEEDING COINCIDENT WITH THE WEST LINE OF SAID LOT “G” NORTH 00° 16’ 56” WEST 50 FEET TO
THE NORTHWEST CORNER OF SAID LOT “G”;



THENCE PROCEEDING COINCIDENT WITH THE NORTH LINE OF SAID LOT “G” AND LOT “H” AS SHOWN ON SAID MAP
NORTH 89° 58’ 51” EAST 812 FEET TO THE NORTHEASTERLY CORNER OF SAID LOT “H”;



THENCE PROCEEDING COINCIDENT WITH THE EAST LINE OF LOT “T” (PALOMAR ROAD) AS SHOWN ON SAID MAP
SOUTH 00° 16’ 53” EAST 1313.67 FEET;



THENCE LEAVING LAST SAID LINE AND PROCEEDING SOUTH 89° 55’ 58” WEST 30 FEET TO THE WEST LINE
OF SAID LOT “I”, ALSO BEING THE EAST LINE OF SAID PARCEL 5;



THENCE CONTINUING ON LAST SAID LINE SOUTH 89° 55’ 58” WEST 268 FEET;



THENCE SOUTH 48°30’ 04” WEST 182.08 FEET;



THENCE SOUTH 18° 27’47” WEST 126.80 FEET;



THENCE SOUTH 30° 13’ 54” EAST 295.87 FEET TO THE TRUE POINT OF BEGINNING.




 









 








EXHIBIT B




FORM OF GRANT DEED



WHEN RECORDED MAIL TO AND

MAIL TAX STATEMENTS TO:



                                                            

                                                            

                                                            

                                                            




 
(Space above this line is for recorder’s use)




GRANT DEED




          In accordance with Section 11932 of the California Revenue and Taxation Code, Grantor has
declared the amount of transfer tax which is due by a separate statement that is not being recorded
with this Grant Deed.



FOR VALUE RECEIVED, U.S. Bank National Association (“Grantor”), hereby grants to SPT-Lake Elsinore
Holding Co., LLC, a Delaware limited liability company, that certain real property (the “Property”)
situated in the City of Menifee, County of Riverside, State of California, described in Exhibit A
attached hereto and incorporated by reference.




     THE PROPERTY IS CONVEYED TO GRANTEE SUBJECT TO:



     A. All liens, encumbrances, easements, covenants, conditions and restrictions, whether on- or
off-record;



     B. All matters which would be revealed or disclosed in an accurate survey of the Property; and



     C. Liens for taxes and assessments on real property not yet delinquent, and liens for any
general or special assessments of record against the Property not yet delinquent.



     IN WITNESS WHEREOF, the undersigned Grantor has executed this Grant Deed as of May ___, 2009



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Its: 	 



 









 






	 	 	 	 	 



EXHIBIT “A” TO GRANT DEED




LEGAL DESCRIPTION OF PROPERTY



All that certain real property situated in the County of Riverside, State of California, described
as follows:




PARCEL A:



THE SOUTH HALF OF THE SOUTHWEST QUARTER OF SECTION 14, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN
BERNARDINO BASE AND MERIDIAN, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY.



EXCEPTING THEREFROM THAT PORTION THEREOF INCLUDED IN ROMOLA FARMS NO. 15, AS SHOWN BY MAP ON FILE
IN BOOK 15, PAGES 98, 99 AND 100 OF MAPS, RIVERSIDE COUNTY RECORDS.



ALSO EXCEPTING THEREFROM THE SOUTHERLY 390 FEET OF SAID SOUTHWEST QUARTER AS GRANTED TO SOUTHERN
CALIFORNIA EDISON COMPANY BY DEED RECORDED MAY 13, 1969 AS INSTRUMENT NO. 46789 OF OFFICIAL
RECORDS.




PARCEL B:



LOTS 1686, 1687, 1690, 1691, 1692, 1693 OF ROMOLA FARMS 15 AS SHOWN BY MAP ON FILE IN BOOK 15,
PAGES 98, 99 AND 100 OF MAPS, RIVERSIDE COUNTY RECORDS, TOGETHER WITH THAT PORTION OF SAN JACINTO
ROAD (LOT “V”) ADJOINING SAID LOTS 1686 AND 1687 ON THE EAST AND LOTS 1690 AND 1691 ON THE WEST,
AND THAT PORTION OF PALOMAR ROAD (LOT “W”) ADJOINING LOTS 1692 AND 1693 ON THE EAST, WHICH WOULD
PASS WITH A CONVEYANCE OF SAID LAND.




PARCEL C:



THE SOUTHERLY 390 FEET OF THE SOUTHWEST ONE-QUARTER OF SECTION 14, TOWNSHIP 5 SOUTH, RANGE 3 WEST,
SAN BERNARDINO MERIDIAN.



EXCEPTING THEREFROM THAT PORTION THEREOF INCLUDED WITHIN ROMOLA FARMS 15 AS SHOWN ON MAP ON FILE IN
BOOK 15, PAGES 98, 99 AND 100 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.




PARCEL D:



LOTS 1688, 1689, 1694 AND 1695 OF ROMOLA FARMS 15 AS SHOWN ON MAP ON FILE IN BOOK 15, PAGES 98, 99
AND 100 OF MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF
SAN JACINTO ROAD (LOT V) ADJACENT TO SAID LOTS 1688 AND 1689 AND THAT PORTION OF PALOMAR ROAD (LOT
W) ADJACENT TO SAID LOTS 1694 AND 1698 AND THAT PORTION OF ROUSE ROAD (LOT Y) ADJACENT TO SAID LOTS
1688 AND 1695, AS SAID ROADS ARE SHOWN ON SAID MAP WHICH WOULD PASS WITH A CONVEYANCE OF SAID LOTS
1688, 1689, 1694 AND 1695.




PARCEL E:



PARCELS 1 TO 3 AND LOTS 6 TO 8 INCLUSIVE OF PARCEL MAP 15905, IN THE COUNTY OF RIVERSIDE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 98, PAGE 59 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.




PARCEL F:




 









 







BEING THAT PORTION OF PARCELS 4 AND 5, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN ON
PARCEL MAP 15905 RECORDED IN BOOK 98, PAGE 59 OF PARCEL MAPS, OFFICIAL RECORDS OF SAID COUNTY,
SHOWN AS PARCEL “B” OF LOT LINE ADJUSTMENT 4895 RECORDED JUNE 30, 2005 AS INSTRUMENT NO.
2005-520051 OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:



COMMENCING AT THE CENTER OF SECTION 23, TOWNSHIP 5 SOUTH, RANGE 3 WEST, SAN BERNARDINO BASE AND
MERIDIAN, ALSO BEING THE SOUTHEAST CORNER OF SAID PARCEL 5, AS SHOWN ON SAID MAP;



THENCE PROCEEDING COINCIDENT WITH THE SOUTH LINE OF THE NORTHWEST QUARTER OF SAID SECTION 23, ALSO
BEING THE SOUTH LINE OF SAID PARCEL 5, SOUTH 89° 24’ 08” WEST 328 FEET TO THE SOUTHWEST CORNER OF
SAID PARCEL 5;



THENCE LEAVING LAST SAID LINE AND PROCEEDING COINCIDENT WITH THE WEST LINE OF SAID PARCEL 5 NORTH
00° 16’ 53” WEST 860.10 FEET TO A POINT OF THE SOUTHEAST CORNER OF SATO PARCEL 4 AND THE TRUE POINT
OF BEGINNING;



THENCE PROCEEDING COINCIDENT WITH SOUTH LINE OF SAID PARCEL 4, NORTH 89° 39’ 22” WEST 484 FEET TO
THE SOUTHWEST CORNER OF SAID PARCEL 4;



THENCE PROCEEDING COINCIDENT WITH THE WEST LINE OF SAID PARCEL 4 NORTH 00” 16’ 56” WEST 1757.42
FEET TO THE NORTHWEST CORNER OF SAID PARCEL 4, ALSO BEING THE SOUTHWEST CORNER OF LOT “G” (ROUSE
ROAD) AS SHOWN ON SAID MAP;



THENCE PROCEEDING COINCIDENT WITH THE WEST LINE OF SAID LOT “G” NORTH 00° 16’ 56” WEST 50 FEET TO
THE NORTHWEST CORNER OF SAID LOT “G”;



THENCE PROCEEDING COINCIDENT WITH THE NORTH LINE OF SAID LOT “G” AND LOT “H” AS SHOWN ON SAID MAP
NORTH 89° 58’ 51” EAST 812 FEET TO THE NORTHEASTERLY CORNER OF SAID LOT “H”;



THENCE PROCEEDING COINCIDENT WITH THE EAST LINE OF LOT “T” (PALOMAR ROAD) AS SHOWN ON SAID MAP
SOUTH 00° 16’ 53” EAST 1313.67 FEET;



THENCE LEAVING LAST SAID LINE AND PROCEEDING SOUTH 89° 55’ 58” WEST 30 FEET TO THE WEST LINE
OF SAID LOT “I”, ALSO BEING THE EAST LINE OF SAID PARCEL 5;



THENCE CONTINUING ON LAST SAID LINE SOUTH 89° 55’ 58” WEST 268 FEET;



THENCE SOUTH 48°30’ 04” WEST 182.08 FEET;



THENCE SOUTH 18° 27’47” WEST 126.80 FEET;



THENCE SOUTH 30° 13’ 54” EAST 295.87 FEET TO THE TRUE POINT OF BEGINNING.




 









 








	 	 	 	 	 
	STATE OF                                 

	 	 	)	 
	 

	 	 	)	 
	COUNTY OF                     

	 	 	)	 






          On                                         , 2009, before me,                    
                     , a Notary Public,
personally appeared                                                                               
  , who provide to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted executed the instrument.




          I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.




          WITNESS my hand and official seal.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Signature of Notary 	 
	 	 	 
	 



(SEAL)




 









 







	 	 	 	 	 
	STATE OF                                 

	 	 	)	 
	 

	 	 	)	 
	COUNTY OF                     

	 	 	)	 






          On                                         , 2009, before me,                    
                     , a Notary Public,
personally appeared
                                                
                        , who provide to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted executed the instrument.




          I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.




          WITNESS my hand and official seal.




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	Signature of Notary 	 
	 	 	 
	 



(SEAL)




 









 








	 	 	 
	Document No.                                                            

	 	Date Recorded:                     






STATEMENT OF TAX DUE AND REQUEST

THAT TAX DECLARATION NOT BE MADE A PART

OF THE PERMANENT RECORD

IN THE OFFICE OF THE

COUNTY RECORDER

(Pursuant to Cal. Rev. & Tax. Code Section 11932)





			
	To	 	Registrar-Recorder

County of Riverside





     Request is hereby made in accordance with the provisions of the Documentary Transfer Tax Act
that the amount of tax due not be shown on the original document which names:



U.S. Bank National Association




as Grantor



and




SPT-Lake Elsinore Holding Co., LLC,

a Delaware limited liability company



as Grantee.




     The property described in the accompanying Grant Deed is located in the City of Menifee,
County of Riverside, State of California.



     The
amount of tax due on said document is
$                    




			
	                    	 	COMPUTED ON FULL VALUE OF PROPERTY CONVEYED






			
	                    	 	COMPUTED ON FULL VALUE LESS LIENS AND ENCUMBRANCES REMAINING AT TIME OF SALE





	 	 	 	 	 
	 	 	 
	 	
 	 
	 	SIGNATURE OF DECLARANT OR AGENT 	 
	 	 	 



 









 






	 	 	 	 	 



EXHIBIT C




TRANSFEROR’S CERTIFICATION OF NON- FOREIGN STATUS



Section 1445 of the Internal Revenue Code (the “Code”) provides that a transferee of a U.S. real
property interest must withhold tax if the transferor is a foreign person. For U.S. tax purposes
(including section 1445), the owner of a disregarded entity (which has legal title to a U.S. real
property interest under local law) will be the transferor of the property and not the disregarded
entity. To inform SPT-Lake Elsinore Holding Co., LLC, a Delaware limited liability company
(“Transferee”), that withholding of tax is not required upon the disposition of a U.S. real
property interest, the undersigned certifies the following on behalf of U.S. Bank National
Association (“Transferor”):





	 	1.	 	Transferor is not a foreign corporation, foreign partnership, foreign trust, foreign
estate or foreign person (as those terms are defined in the Code and the Income Tax
Regulations promulgated thereunder);
	 
	 	2.	 	Transferor is not a disregarded entity as defined in §1.1445-2(b)(2)(iii); and
	 
	 	3.	 	Transferor’s U.S. employer or tax (social security) identification number is 31-0841368;
and
	 
	 	4.	 	The office address of Transferor is 425 Walnut Street, Cincinnati, Ohio 54202.




Transferor understands that this Certification may be disclosed to the Internal Revenue Service by
Transferee and that any false statement contained herein could be punished by fine, imprisonment,
or both.



Under penalty of perjury I declare that I have examined this Certification and to the best of my
knowledge and belief it is true, correct, and complete, and I further declare that I have authority
to sign this document on behalf of Transferor.




	 	 	 	 	 
	Dated:  May _____, 2009       	TRANSFEROR:



U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Position: 	 	 



 









 






	 	 	 	 	 



EXHIBIT D




GENERAL ASSIGNMENT



THIS
GENERAL ASSIGNMENT (“Assignment”) is made this ___ day of May, 2009, by and between
U.S. Bank National Association (“Assignor”), and SPT-Lake Elsinore Holding Co., LLC, a Delaware
limited liability company (“Assignee”).




Recitals




          Assignor and Assignee entered into that certain Agreement of Purchase and Sale and Joint
Escrow Instructions dated as of May ___, 2009 (the “Agreement”), respecting the sale of certain
“Property” (as described and defined in the Agreement).




          Under the Agreement, subject to the exclusion set forth below, Assignor is obligated to assign
any and all of its right, title and interest and delegate any and all of its obligations and
responsibilities in each of the following to Assignee:





               (a) any and all service contracts, warranties, guarantees, management contracts and bonds,
together with all supplements, amendments and modifications thereto, relating to the Property
(collectively, the “Contract(s)”), if any;



               (b) any and all: (i) licenses, permits and entitlements necessary for the construction,
rehabilitation and operation of the Property in accordance with its current use; (ii) entitlement
plans compiled by any previous owner of the Property; (iii) agreements affecting the development of
the Property; and (iv) development rights and other intangible rights, titles, interests,
privileges and appurtenances owned by Assignor and in any way related to or used in connection with
the Property and its operation (collectively “License(s)”), if any; and



               (c) all fixtures, fittings, furniture, furnishings, appliances, apparatus, equipment,
machinery, building materials, and other items of tangible personal property owned by Assignor and
affixed or attached to the Property, if any (all of such properties and assets being collectively
called the “Assigned Properties”).



Agreement




          NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties agree as follows:




     1. To the extent assignable, Assignor assigns, sells, transfers, sets over and delivers unto
Assignee all of Assignor’s estate, right, title and interest in and to the Contracts, Licenses and
Assigned Properties, but only to the extent relating solely to the Property; provided, however,
that such assignment, sale and transfer shall not include any rights or claims arising prior to the
date hereof which Assignor may have against any party with respect to the Contracts, Licenses and
Assigned Properties.



     2. Assignee accepts such assignment.



     3. Assignee acknowledges that (i) Assignor (or Assignor’s predecessor-in-interest), as lender,
acquired the Property from the prior owner through foreclosure, deed-in-lieu of foreclosure, or
otherwise as a result of the prior owner’s default under the terms and conditions set forth in one
or more agreements evidencing a loan made by Assignor (or Assignor’s predecessor-in-interest) which
was secured in whole or in part by the Property (“Prior Loan”), and (ii) Assignor is currently
engaged in ongoing litigation against the prior owner and certain other related parties
(collectively, the “Prior Owner Parties”) emanating from the Prior Owner Parties’ obligations under
the terms of a personal guarantee issued by one or more of the Prior Owner Parties in connection
with the Prior Loan (the “Prior Loan Litigation”). Assignee hereby acknowledges and agrees that
the assignment of the Assigned Properties pursuant to



 









 







this Assignment shall expressly exclude any
and all right, title, and interest in and to the Prior Loan Litigation and any and all
amounts which Assignor may recover in connection with the Prior Loan Litigation including,
without limitation, any settlement amounts, judgments, awards, cost reimbursements, or otherwise.



     4. In the event of the bringing of any action or suit by a party hereto against another party
hereunder by reason of any breach of any of the covenants, conditions, agreements or provisions on
the part of the other party arising out of this Assignment, then in that event the prevailing party
shall be entitled to have and recover of and from the other party all costs and expenses of the
action or suit, including reasonable attorneys’ fees.



     5. This Assignment shall be binding upon and inure to the benefit of the successors,
assignees, personal representatives, heirs and legatees of all the respective parties hereto.



     6. This Assignment shall be governed by, interpreted under, and construed and enforceable in
accordance with, the laws of the State of California.



     7. This Assignment may be executed in counterparts, each of which shall be deemed an original,
but all of which, together, shall constitute one and the same instrument.



          IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this Assignment as of
the day and year first above written.






	 	 	 	 	 
	ASSIGNEE: 



SPT-LAKE ELSINORE HOLDING CO., LLC, 

a Delaware limited liability company 



By: Shopoff Partners, L.P., a Delaware 

      limited partnership, sole member 



By: Shopoff General Partner, LLC, a 

      Delaware limited liability company, 

      general partner 



By: Shopoff Properties Trust, Inc.,

      a Maryland corporation, manager

 	 	 
	By:  	 	 	 
	 	William A. Shopoff, 	 	 
	 	President and CEO 	 	 
	 






	 	 	 	 	 
	ASSIGNOR:



U.S. BANK NATIONAL ASSOCIATION


 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Its: 	 	 
	 
	 	 	 
	By:  	
 	 	 
	 	Name:  	 	 	 
	 	Its: 	 	 	 
	 









 









 





EXHIBIT E




PRELIMINARY TITLE REPORT




SEE ATTACHED




 









 





AGREEMENT OF PURCHASE AND SALE

AND JOINT ESCROW INSTRUCTIONS




by and between




U.S. Bank National Association




as Seller




and




SPT-Lake Elsinore Holding Co., LLC,

a Delaware limited liability company




as Buyer




May ___, 2009