AMRESCO RESIDENTIAL MORTGAGE CORPORATION,
SELLER
FIRST ALLIANCE MORTGAGE COMPANY
BUYER
PURCHASE AND SALE AGREEMENT
00000 XXXXXXXX, XXXXXX, XXXXXXXXXX
MAY ______, 1997
PURCHASE AND SALE AGREEMENT AND
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JOINT ESCROW INSTRUCTIONS
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THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of May __, 1997 ("Contract Date"),
by and between AMRESCO RESIDENTIAL MORTGAGE CORPORATION, a Delaware
corporation ("Seller"), and FIRST ALLIANCE MORTGAGE COMPANY, a California
corporation ("Buyer"), upon the following terms and conditions:
1. PURCHASE AND SALE. Seller agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, the Property (as defined below) upon the terms and
conditions set forth herein. The property being sold pursuant to this
Agreement (collectively, the "PROPERTY") consists of (a) that certain land
located at 00000 Xxxxxxxx, Xxxxxx, Xxxxxxxxxx, and more particularly
described on Exhibit A attached hereto and by this reference made a part
hereof, together with all rights of way, privileges and appurtenances
pertaining thereto, including any right, title and interest of Seller in and
to any street adjoining any portion thereof (collectively, the "LAND"); (b)
all structures, buildings, compressors, appliances, engines, electrical,
plumbing, heating, ventilating, and air conditioning machinery and property
of every kind, character and description appurtenant thereto (the
"IMPROVEMENTS"); (c) all furniture or equipment owned by Seller, and any
replacements to any of the same, located on any portion of the Land
(including that used in any rental or management office located on the Land)
and used in connection with the ownership, maintenance or operation of the
Land and the Improvements (including, without limitation, those items set
forth on Exhibit B which is or shall be attached hereto and made a part
hereof) (collectively, the "TANGIBLE PERSONAL PROPERTY"); (d) all intangible
personal property owned by Seller and used exclusively in the management,
operation or marketing or the service provided thereon, including, but not
limited to, any assignable operating permits, governmental permits,
governmental entitlements, utility agreements, use permits and traffic
allowances, and any service marks or tradenames, if any (collectively, the
"INTANGIBLE PERSONAL PROPERTY"); and (e) all written agreements granting any
person or entity the right to use or occupy any portion of the Property (the
"LEASES") and security deposits and other deposits held in connection with
the Leases.
2. [INTENTIONALLY OMITTED.]
3. PURCHASE PRICE
3.1 AMOUNT. The purchase price for the Property is Three Million Four
Hundred Fifteen Thousand and No/1OO Dollars ($3,415,000.00)(the "PURCHASE
PRICE"). The purchase and sale of the Property is intended by the parties
to be a sale of all elements of the Property and is not severable or
divisible. The Purchase Price shall be paid as provided in this Section 3
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3.2 DEPOSIT.
3.2.1 Buyer shall deposit the sum of Fifty Thousand and No/100
Dollars ($50,000.00) as an xxxxxxx money deposit (together with any interest
earned thereon as set forth in Section 3.2.3, the "DEPOSIT") with First
American Title Guaranty Company ("TITLE COMPANY"), located at 0000 Xx.
Xxxxxx Xxxx., Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xx.
Xxxxx Xxxxxxxxxxx, in immediately available funds to the Title Company no
later than three (3) days after the Contract Date. Title Company shall
deliver to Seller and Buyer a receipt for the Deposit. Unless this
Agreement is sooner terminated by Buyer, the Deposit shall become non-
refundable upon the expiration of the Due Diligence Date and subject to the
liquidated damages provisions set forth in Section 7.
3.2.2 The Deposit shall be released to Seller without liability on
the part of Title Company and without further instruction by Buyer or Seller
on the first business day following the Due Diligence Date (as defined in
Section 6.2.1). Buyer and Seller shall, concurrently with the execution and
delivery of this Agreement, execute and deliver to Title Company confirming
instructions regarding the Deposit in the form set forth in EXHIBIT C,
attached hereto and by this reference made a part hereof.
3.2.3 Title Company shall place the Deposit in an interest-bearing
account controlled by Title Company with a major independent financial
institution and drawing interest at a commercially available rate for
immediately-withdrawable funds as Buyer shall reasonably approve. All such
accrued interest shall be credited toward the Purchase Price at Closing and,
in the event the Deposit is retained by Seller as liquidated damages
pursuant to Section 7, such liquidated damages shall include any and all
accrued interest. Under any circumstance where the Deposit is returned to
Buyer, Buyer shall likewise receive all accrued interest.
3.3 CASH PAYMENT ON CLOSING. One business day prior to the Closing
Date (as defined in Section 4.1), Buyer shall deposit with Title Company (a)
the cash amount of the full Purchase Price (less the amount of the Option
Consideration and the Deposit), as adjusted by the estimated prorations and
adjustments called for by Section 4.3, and (b) Buyer's share of closing
costs, fees and expenses.
3.4 FUNDS. All payments made by any party hereto shall be in legal
tender of the United States of America, paid in cash, by wire transfer
through the Federal Reserve System.
4 CLOSING MATTERS.
4.1 CLOSING. The transactions contemplated by this Agreement shall
close not later than June 3O, 1997 (i.e., forty-five (45) days after the
Contract Date) or the next business day if such date falls on a Saturday,
Sunday or holiday. The date upon which the Closing occurs shall be referred
to herein as the "CLOSING DATE".
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4.2 FEES AND COSTS. Any escrow fee charged by Title Company shall be
paid equally by Seller and Buyer. Seller shall pay all transfer taxes
required in order to record the Deed. All title premiums and other closing
costs not specifically allocated herein shall be paid by the parties as is
customary in the county where the Property is located. Except as set forth
in Section 18, the parties shall bear their own legal costs in connection
with the transactions contemplated by this Agreement.
4.3 PRORATIONS AT CLOSING. At the Closing, the following items of
revenue and expense shall be adjusted and apportioned in cash as of 12:01
A.M. on the Closing Date. At or prior to the Closing, Title Company shall
obtain the written approval of Buyer and Seller to a proration and
adjustment statement in connection with consummation of the transaction
contemplated in this Agreement, which approvals shall be a condition
precedent to the parties' obligations to close, and which approvals shall
not unreasonably be withheld or delayed.
4.3.1 Real property taxes, personal property or use taxes, and any
current installment of a special assessment shall be prorated based upon the
fiscal year for which assessed, except that if the Closing Date shall occur
before the assessed value or the tax rate, or both, for the current fiscal
year has been fixed, then the proration of such taxes shall be based upon
the most recently available assessed value and tax rate. If, however,
subsequent to the Closing, by reason of any change in assessment or change
in rate or any other change, the real estate taxes for the current fiscal
year shall be determined to vary from those upon which proration was made as
provided in this Section 4.3, the amount of any refund received or
additional payment due shall be prorated between Seller and Buyer as of the
Closing Date, such proration to be net, after the payment of all costs, if
any, including attorneys' fees, incurred in connection with obtaining any
reduction in assessment. Any refunds of real property taxes or assessments
attributable to prior fiscal years shall be paid to Seller upon receipt,
whether such receipt occurs before or after Close of Escrow.
4.3.2 All rentals and other revenues generated by the Property
shall be prorated as of the Closing Date except as otherwise set forth in
this paragraph. Delinquent rentals shall be prorated between Buyer and
Seller as of the Closing Date but not until they are actually collected by
Buyer. Rentals are delinquent when payment thereof is more than thirty (30)
days past due as of the Closing Date. Buyer shall have the sole right to
collect any delinquent rentals, but shall not have the obligation to do so.
Delinquent rentals collected by Buyer, net of the costs of collection
(including, attorneys' fees), shall be applied first against amounts most
overdue. Buyer agrees that any payments due to Seller as a result of
collected delinquent rentals shall be payable by Buyer to Seller promptly
upon receipt thereof. Operating Cost pass-throughs, percentage rentals and
other retroactive rental escalations or charges payable by tenants, which
accrue as of the Closing Date but are not then due and payable, shall be
prorated as of the Closing Date; provided, however, no payment thereof shall
be made to Seller unless and until Buyer collects same from the tenant.
Upon such collection, Seller shall be due an amount equal to all such sums
accruing prior to the Closing, Date, computing same on a per diem basis
after amortizing them over the respective periods for which such items are
payable. Payments of such prorated amounts collected by Buyer shall be made
to Seller promptly following receipt and shall be accompanied by a report
showing how same was calculated and such supporting documentation as Seller
reasonably requests.
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4.3.3 All utility service charges for electricity, heat and air
conditioning service, elevator maintenance, common area maintenance, and
other expenses affecting the Property which are payable by Seller and any
other costs incurred in the ordinary course of business or the management
and operation of the Property shall be prorated on an accrual basis. Seller
shall pay all such expenses that accrue prior to the Closing Date and Buyer
shall pay all such expenses accruing on the Closing Date and thereafter. To
the extent possible, Seller and Buyer shall obtain xxxxxxxx and meter
readings as of the Closing Date to aid in such prorations.
4.3.4 All capital expenditures payable by Seller and not
reimbursable by other third parties with respect to capital work relating to
the Property conducted by or on behalf of Seller shall be paid in full by
Buyer (or reimbursed by Buyer to Seller, if applicable) with respect to all
such capital work which has not been substantially completed as of the
Contract Date.
4.3.5 Seller shall pay in full all leasing commissions and
documented tenant improvement costs, if any, payable prior to the Closing
Date with respect to Leases which were executed prior to the Contract Date,
as shown on the proration schedule to be prepared pursuant to Section 4.3,
and otherwise Buyer shall pay in full when due all other leasing commissions
and tenant improvement costs payable by the lessor with respect to Leases.
4.4 SECURITY DEPOSITS. At the Closing, all security deposits,
cleaning fees and similar deposits and fees held by, or paid to, Seller
under the Leases (and any interest thereon which is payable to tenants
pursuant to local law or the terms of the Leases) shall be delivered to
Buyer or credited against the Purchase Price.
4.5 SURVIVAL AFTER CLOSING. The provisions of Sections 4.3 and 4.4
shall survive the Closing.
4.6 ITEMS TO BE DELIVERED AT CLOSING. Seller shall deliver the
following documents to Title Company on or before the Closing Date:
4.6.1 A grant deed (the "DEED") in the form attached as EXHIBIT D
hereto, conveying to Buyer title to the Land and the Improvements subject
only to the Permitted Exceptions (as defined below).
4.6.2 A Xxxx of Sale from Seller in the form attached hereto as
EXHIBIT E conveying and assigning to Buyer the Tangible Personal Property.
4.6.3 An Assignment and Assumption of Leases ("ASSIGNMENT OF
LEASES") in the form attached hereto as EXHIBIT F assigning the Leases to
Buyer.
4.6.4 A General Assignment ("GENERAL ASSIGNMENT") in the form
attached hereto as EXHIBIT G assigning to Buyer all of Seller's right, title
and interest in the Intangible Personal Property.
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4.6.5 A non-foreign affidavit ("FIRPTA Certificate"), properly
executed containing such information as shall be required by Internal
Revenue Code Section 1445(b)(2) and the regulations issued thereunder and
Sections 18861, 18662 and 18668 of the California Revenue and Taxation Code
in the form attached hereto as EXHIBIT H.
4.6.6 All executed original Leases to the extent such Leases are
in Seller's possession or control.
4.6.7 All originals of reports, documents and other materials,
including "as built" plans relating to ownership of Property to the extent
such materials are in Seller's possession or control.
4.7 BUYER'S CONDITIONS TO CLOSING. Buyer's obligation to close the
transactions contemplated by this Agreement is subject to and contingent on
the satisfaction of the following conditions or the waiver of the same by
Buyer in writing:
4.7.1 All representations and warranties of Seller contained in
this Agreement shall be true and correct as of the Closing.
4.7.2 Seller having performed and satisfied all material
agreements and covenants required hereby to be performed by Seller prior to
or at the Closing.
4.7.3 Buyer's approval or deemed approval of its due diligence
investigation of the Property pursuant to Section 6.2 below prior to 5:00
p.m. Pacific time on the Due Diligence Date.
4.7.4 The Title Company's issuance of the Owner's Policy complying
with the requirements of Section 5 below.
4.8 SELLER'S CONDITIONS TO CLOSING. Seller's obligation to close the
transactions contemplated by this Agreement is subject to and contingent on
the satisfaction of the following conditions or the waiver of the same by
Seller in writing:
4.8.1 All representations and warranties of Buyer contained in
this Agreement shall be true and correct as of the Closing.
4.8.2 Buyer having performed and satisfied all agreements and
covenants required hereby to be performed by Buyer prior to or at the
Closing.
4.8.3 Buyer's delivery to Title Company on or before the Closing
Date of executed counterpart originals of the Assignment of Leases and the
General Assignment.
4.9 CLOSING. Provided that Title Company holds for delivery to
Seller all cash required to complete the closing of the transaction
contemplated by this Agreement ("CLOSING") as provided herein and all other
conditions to closing set forth in this Agreement have been satisfied or, as
to any condition not satisfied, waived in writing by the party intended to
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be benefited thereby, on the Closing Date Title Company shall conduct the
Closing by recording or distributing the following documents and funds in
the following manner:
4.9.1 Record the Deed in the Official Records of the county in
which the Property is located;
4.9.2 Deliver to Buyer: (a) a conformed copy of the Deed; (b) the
original Owner's Policy; (c) the original Xxxx of Sale; (d) the original
Assignment of Leases; (e) the original General Assignment; and (f) the
original FIRPTA Certificate.
4.9.3 Deliver to Seller a copy of every document delivered to
Buyer and an original Assignment of Leases and an original General
Assignment.
4.9.4 Deliver to Seller the Purchase Price (less the Option
Consideration and the Deposit) and such other funds, if any, as may be due
to Seller by reason of credits under this Agreement, less all items
chargeable to Seller under this Agreement.
5. TITLE. Seller shall equally pay the premium cost for a standard
coverage Owner's Title Insurance Policy (the "OWNER'S POLICY") in Buyer's
favor in the amount of the Purchase Price, and Buyer shall pay (a) the cost
of any customary and commercially available supplemental endorsements as
Buyer may reasonably require, and (b) the additional costs of procuring an
extended coverage Owner's Policy in the event Buyer desires such coverage,
as well as the cost of obtaining any ALTA Survey the Title Company may
require to issue such extended coverage title policy. Attached as EXHIBIT J
hereto is a preliminary title report covering the Property (the "TITLE
COMMITMENT"). The Owner's Policy when issued at Closing shall be in the
amount of the Purchase Price and shall insure fee title to the Property as
vested in Buyer subject to (a) the standard printed exceptions set forth in
the printed jacket to the Owner's Policy, (b) the exceptions contained in
the Title Commitment and approved in accordance with Section 6.2.10, (c) the
liens of current property taxes and assessments which are not delinquent,
and (d) matters created or suffered by Buyer (collectively, the "PERMITTED
EXCEPTIONS").
6. PROPERTY EXAMINATION.
6.1 "AS-IS" PURCHASE.
6.1.1 Buyer shall have the right to thoroughly and diligently
inspect the Property as provided in Section 6.2
6.1.2 Except as expressly set forth in Section 10 2, Seller makes
no representations or warranties with respect to the physical condition or
any other aspect of the Property, including, without limitation, (1) the
structural integrity of any improvements on the Property, (2) the conformity
of the improvements to any plans or specifications for the Property
including, but not limited to, any plans and specifications that may have
been or which may be provided to Buyer), (3) the conformity of the Property
to past, current or future applicable zoning or building code requirements,
(4) the existence of soil instability, past soil repairs, soil additions or
conditions of soil fill, or susceptibility to landslides, (5) the
sufficiency of any undershoring,
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(6) the sufficiency of any drainage, (7) whether the Property is located
wholly or partially in a flood plain or a flood hazard boundary or similar
area, (8) the existence or non-existence of underground storage tanks, (9)
any other matter affecting the stability or integrity of the land, or any
buildings or improvements situated on or as part of the Property, (10) the
availability of public utilities and services for the Property, (11) the
fitness or suitability of the Property for any intended use, (12) the
potential for further development of the Property, (13) the existence of
vested land use, zoning or building entitlements affecting the Property, or
(14) the presence of toxic wastes, hazardous materials or friable asbestos
in, on or about the Property (collectively, the "PROPERTY CONDITIONS").
6.1.3 Seller shall make available to Buyer, or cause to be made
available to Buyer, on or promptly following the Contract Date and
continuing through the Closing Date any and all material records, reports,
studies, plans, drawings, maps, surveys, plats, title reports, soil reports,
engineering studies, environmental studies, inspection reports, maintenance
records, Leases and other documents pertaining to the use and occupancy of
the Property, the income thereof, the cost and expenses of maintenance
thereof, and any and all other matters concerning the Property Conditions,
or other attributes or aspects of the Property, to the extent same are
within the possession or control of Seller (collectively, the "PROPERTY
INFORMATION"), other than the Excluded Items, without any representation or
warranty (other than as set forth in Section 10.2) as to the completeness or
accuracy of the data or information contained in the Property Information.
Buyer acknowledges that any Property Information is furnished to Buyer
solely as a courtesy, and Seller has neither verified the accuracy of any
statements or other information therein contained nor the qualifications of
the persons preparing such Property Information. Seller does not warrant
the accuracy of any Property Information. Anything contained in this
Section to the contrary notwithstanding, Seller shall not be obligated to
disclose to Buyer any Excluded Items. "EXCLUDED ITEMS" means any appraisal
of the Property or broker's opinions of value with respect to the Property
and any other proprietary, privileged or confidential information of Seller
relating to the Property, including but not limited to, Seller's internal
financial analyses, Seller's credit analyses and business and collection
plans, materials relating to Seller's cost to acquire the Property and any
documents or communications subject to the attorney/client privilege.
6.1.4 The Property Information, other than maps, surveys, plats,
title reports and other documents and instruments which are a matter of
public record is sometimes referred to herein as the "CONFIDENTIAL
INFORMATION" irrespective of whether such items and their contents are so
specifically identified by Seller. Without Seller' s prior written consent,
Buyer: (a) shall not divulge to any third party any of the Confidential
Information and shall not use the Confidential Information in Buyer's
business prior to the Closing, except in connection with the evaluation of
the acquisition of the Property; (b) shall ensure that the Confidential
Information is disclosed only to such of Buyer's officers, directors,
employees. consultants, attorneys, investors and lenders, as have actual
need for the Confidential Information; (c) shall act diligently to prevent
any further disclosure of the Confidential Information; and (d) shall, if
the Closing does not occur, promptly return to Seller (without keeping
copies) all Confidential Information.
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6.1.5 Seller shall not be responsible for any failure to
investigate the Property on the part of Seller, or for any statements or
activities of any real estate broker or sales agent, or any other purported
or acknowledged agent, representative, contractor, consultant or employee of
Seller, or any third party.
6.1.6 Buyer expressly acknowledges that the Property is being sold
and accepted "AS-IS, WHERE-IS," and is being accepted without any
representation or warranty. Buyer agrees to make such investigation of the
condition of the Property as Buyer deems adequate during the period
specified in Section 6.2, and shall rely solely upon its own investigation
of such condition and not upon any statement or opinion by Seller or any
agent of Seller (except as expressly set forth in this Agreement),
including, without limitation, Seller's broker as described in Section 14.
6.1.7 As part of Buyer's agreement to purchase and accept the
Property " AS-IS, WHERE-IS," and not as a limitation on such agreement,
Buyer hereby unconditionally and irrevocably waives any and all actual or
potential rights Buyer might have against Seller regarding any form of
warranty, express or implied, of any kind or type, relating to the Property,
its improvements or the Property Conditions. Such waiver is absolute,
complete, total and unlimited in every way. Such waiver includes, but is
not limited to, a waiver of express warranties, implied warranties,
warranties of fitness for a particular use, warranties of merchantability,
warranties of habitability, strict liability rights, and claims of every
kind and type, including, but not limited to, claims regarding defects which
might have been discoverable, claims regarding defects which were not or are
not discoverable, product liability claims, product liability type claims,
and all other extant or later created or conceived of strict liability or
strict liability type claims and rights.
6.1.8 Effective upon Closing, and to the fullest extent permitted
by law, Buyer hereby (a) releases, discharges and forever acquits Seller and
every entity affiliated with Seller and all of their members and partners
and AMRESCO Management Inc. and their respective officers, directors,
shareholders, employees, agents and independent contractors (collectively
the "INDEMNITEES") from all demands, claims, liabilities, obligations, costs
and expenses which Buyer may suffer or incur relating to the Property
Conditions or any other aspect (as delineated in Section 6.1.2) of the
Property, or its improvements or any defect related thereto, and (b) agrees
to indemnify, defend, protect and hold harmless the Indemnitees against all
demands, claims, liabilities, obligations, costs and expenses, including
reasonable attorneys' fees and costs incurred by any of them, which may be
asserted by a third party at any time relating to the Property Conditions or
any other aspect (as delineated in Section 6 1.2) the Property, or its
improvements or any defect related thereto, no matter whether earlier
discoverable or not, except that Buyer's obligation of indemnification with
respect to claims for injury or damage by third parties shall be limited to
Claims asserted with respect to occurrences subsequent to the Closing Date.
The obligation of indemnification contained in this Section shall not be
deemed to limit or diminish the scope of the indemnification set forth in
Section 6.2.7.
6.1.9 As part of the provisions of this Section 6.1, but not as a
limitation thereon, Buyer hereby agrees, represents and warrants that the
matters released herein are not limited to matters which are known or
disclosed. In this connection and to the extent
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permitted by law, Buyer hereby agrees, represents and warrants that Buyer
realizes and acknowledges that factual matters now unknown to it may have
given or may hereafter give rise to causes of action, claims, demands,
debts, controversies, damages, costs, losses and expenses which are
presently unknown, unanticipated and unsuspected, and Buyer further agrees,
represents and warrants that the waivers and releases herein have been
negotiated and agreed upon in light of that realization and that Buyer
nevertheless hereby intends to release, discharge and acquit Seller from any
such unknown causes of action, claims, demands, debts, controversies,
damages, costs, losses and expenses which might in any way be included in
the waivers and matters released as set forth in this Section 6.1. Buyer
expressly waives any and all rights conferred upon it by the provisions of
California Civil Code Section 1542, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR.
The provisions of this Section 6.1 are material and included as a material
portion of the consideration given to Seller by Buyer in exchange for
Seller's performance hereunder.
Seller has given Buyer material concessions regarding this transaction in
exchange for Buyer agreeing to the provisions of this Section 6.1 of the
Agreement. Seller and Buyer have each initialed this Section 6.1 to further
indicate their awareness and acceptance of each and every provision hereof.
BUYER'S INITIALS: /s/ J.W.S.
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SELLER'S INITIALS: /s/ M.E.T.
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6.2 BUYER'S DUE DILIGENCE INVESTIGATION AND DUTIES.
6.2.1 Buyer shall have until 5:00 p.m. Pacific time on June 16,
1997 (i.e., thirty (30) days after the Contract Date) (the "DUE DILIGENCE
DATE") within which to complete its due diligence inspection of the Property
and the Property Information and to determine in Buyer's sole discretion
whether Buyer desires to proceed with the transaction contemplated by this
Agreement.
6.2.2 Buyer agrees to diligently and thoroughly inspect the
Property, and to hire such experts as may be required to thoroughly evaluate
and analyze the Property Conditions, including contractors, engineers, soils
analysts, pest control specialists and the like, all at Buyer's expense.
6.2.3 If Buyer notifies Seller and Title Company in writing on or
before the Due Diligence Date that Buyer is unwilling to proceed with the
transaction, then Buyer shall terminate this Agreement and Buyer's Deposit,
including accrued interest, if any, less any Title Company cancellation fees
and costs shall be returned to Buyer. Buyer's failure to notify
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Seller and Title Company of Buyer's election to terminate this Agreement on
or before the Due Diligence Date shall constitute Buyer's election to waive
its right to terminate this Agreement pursuant to this Section 6.2.
6.2.4 On and after the Contract Date until Closing or sooner
termination of this Agreement, Buyer and its agents and employees shall have
the right to thoroughly inspect the Property, and to hire such experts as
may be required to thoroughly evaluate and analyze the Property Information
and the Property Conditions, including contractors, engineers, soils
analysts, pest control specialists and the like, all at Buyer's expense.
Buyer and its experts shall have access to the Property for such purposes
during normal business hours from the Contract Date through the Closing
subject to Section 6.2.6.
6.2.5 Subject to Section 6.2.6, on and after the Contract Date
until Closing or sooner termination of this Agreement Buyer's environmental
consultant ("BUYER'S ENVIRONMENTAL CONSULTANT") shall have the right to
enter upon the Property during normal business hours for purposes of
conducting a Phase I Environmental Site Assessment. Buyer shall have no
right to conduct any Phase II environmental assessment work or any invasive
environmental testing at the Property without Seller's prior written
consent, which consent may be withheld in Seller's sole discretion. The
following conditions must be satisfied prior to the entry onto the Property
by Buyer's Environmental Consultant for purposes of conducting or performing
any environmental assessment of the Property:
(a) Buyer's Environmental Consultant shall have the appropriate
level of expertise and experience necessary to perform the Tests and shall
be approved in writing by Seller;
(b) Buyer and Buyer's Environmental Consultant shall execute an
Insurance, Indemnification, and Confidentiality Agreement, in the form
attached hereto as EXHIBIT "I", protecting the Indemnitees from all
activities performed by Buyer's Environmental Consultant at the Property,
and
(c) Buyer's Environmental Consultant shall enter onto the
Property within one (1) business day following Buyer's delivery to Seller of
written notice specifying the date and time thereof and, if required by
Seller, in the presence of Seller's personnel, Seller's environmental
consultant or Seller's property manager.
6.2.6 If requested by Seller, Buyer and its consultants shall be
accompanied by a representative of Seller or Seller's property manager, as
applicable, when conducting any inspection of the Property.
6.2.7 Buyer hereby agrees to and shall defend, protect, indemnify
and hold the Indemnitees harmless of, from and against any and all claims,
suits, losses, demands, liabilities, damages, costs and expenses. including,
without limitation, reasonable attorneys' fees, court and other costs,
resulting from personal injury (including, but not limited to, physical
damage or injury to Buyer's employees, agents or contractors) or property
damage (including, but
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not limited to, any mechanics' and materialmen's liens) incurred by reason
of, or arising out of, the entry, examinations or activities of Buyer,
Buyer's Environmental Consultant or any other consultant, employee,
contractor or agent of Buyer on the Property. All such activities shall be
conducted in such a fashion so as not to interfere with the rights or
property of any persons with any possessory interest in any part of any
portion of the Property.
6.2.8 If for any reason the purchase and sale contemplated under
this Agreement is not consummated, Buyer agrees to deliver promptly to
Seller any and all reports, schedules, spreadsheets and other data,
including, without limitations hard copy reports and information that may
have been stored in computerized records pertaining to the Property and any
and all inspections or examinations conducted hereunder.
6.2.9 Except for the specific warranties and representations given
by Seller elsewhere in this Agreement and without limiting the foregoing in
any manner, Buyer acknowledges that Seller has made no representations or
warranties of any kind or nature whatsoever concerning the Property
Conditions, and Buyer acknowledges further that Buyer is relying solely upon
Buyer's own investigation under this Section 6.2 in regard to each and all
such matters, and undertakes the risk that the Property may or may not be
suitable or feasible for any intended use by Buyer including,
notwithstanding the delivery by Seller to Buyer of a copy of a Phase I
environmental investigation of the Property prepared by an independent
consultant, the presence of toxic wastes, hazardous material, underground
tanks or friable asbestos in, on or about the Property.
6.2.10 Notwithstanding anything to the contrary contained herein,
Buyer shall have until ten (10) days prior to the Due Diligence Date to
deliver to Seller written notice of Buyer's disapproval or conditional
approval of any exceptions set forth in the Title Commitment (the
"DISAPPROVED EXCEPTIONS"). Buyer's failure to timely deliver such written
notice to Seller shall be deemed to constitute Buyer's approval of all
matters of title. Within five (5) business days after receipt by Seller of
Buyer's written notice, Seller shall notify Buyer that either (a) the
Disapproved Exceptions will be removed at Closing or (b) which Disapproved
Exceptions will not be removed as of Closing. If Buyer does not terminate
this Agreement as of the Due Diligence Date, whether by reason of Seller's
failure to agree to have all Disapproved Exceptions removed as of Closing or
for any other reason, Buyer shall be conclusively deemed to have waived its
objections to the Disapproved Exceptions which Seller has not affirmatively
agreed to remove as of the Closing. Seller's failure to provide timely
notice to Buyer with respect to the Disapproved Exceptions shall be deemed
to constitute Seller's notice to Buyer that Seller will not have any of the
Disapproved Exceptions removed as of the Closing.
6.3 UTILITY DEPOSITS AND LEASES. Buyer agrees to assume the benefit
and burden of all Leases, and to indemnify and hold Seller harmless from any
claim for prepaid rent, security or cleaning deposits. All utility
deposits, if any, paid by Seller (power, water, telephone. sewer, etc.)
shall at all times remain the property of Seller, and Buyer shall cooperate
reasonably to ensure the prompt release of all such utility deposits to
Seller or, at the election of Seller, all such utility deposits shall be
assigned to Buyer and Seller shall be credited with the amount of all such
deposits at Closing.
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6.4 OWNERS' ASSOCIATION LIABILITIES. Seller makes no representations
or warranties as to the status, standing, existence or non-existence of any
owners' association or owners' association liabilities or duties which
Seller may owe to any such association relative to the Property. Buyer
agrees to release Seller and hold Seller harmless from any damages or
claimed deficiencies arising out of the formation, operation, status,
standing and/or funding of said owners association, including, without
limitation, any deficiency in reserves for maintenance and repair,
mismanagement, negligence, misrepresentation, unpaid dues or assessments by
third parties, payment of taxes or franchise fees or standing with the
California Secretary of State Current dues and/or assessments for the
Property, if any, shall be prorated as of Closing.
6.5 ADMINISTRATIVE COMPLIANCE. Buyer agrees to defend and indemnify
Seller and hold Seller harmless from any claim, loss, penalty or damages
arising out of Buyer's failure to observe all rules, regulations, regulatory
schemes, law and ordinances that may apply to (a) the further development,
subdivision, or re-subdivision of the Property or any part thereof, (b) the
sale or transfer of any divided or common-interest units or any interest
therein, and (c) the ownership, maintenance, management and repair of the
Property, including, without limitation, the creation, organization and
funding of a governing association, the completion of all master management
documents required by state, local or federal law (including covenants,
conditions and restrictions, by-laws, project rules and the like), and the
formulation and enforcement of an adequate budget which provides for current
maintenance and reserves for future maintenance and repairs.
7. DEFAULT LIQUIDATED DAMAGES. NOT WITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, IF BUYER HAS NOT TERMINATED THIS
AGREEMENT ON OR BEFORE THE DUE DILIGENCE DATE AND IF THE SALE OF THE
PROPERTY TO BUYER IS NOT CONSUMMATED ON THE CLOSING DATE FOR ANY REASON
OTHER THAN SELLER'S DEFAULT UNDER THIS AGREEMENT, SELLER SHALL BE ENTITLED
TO RETAIN THE DEPOSIT, TOGETHER WITH ALL INTEREST ACCRUED THEREON, AS
SELLER'S SOLE REMEDY AND LIQUIDATED DAMAGES. THE PARTIES AGREE THAT IT
WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES
SUFFERED BY SELLER AS A RESULT OF BUYER'S FAILURE TO COMPLETE THE PURCHASE
OF THE PROPERTY PURSUANT TO THIS AGREEMENT, AND THAT UNDER THE CIRCUMSTANCES
EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED
FOR IN THIS SECTION REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES WHICH
SELLER WILL INCUR AS A RESULT OF SUCH FAILURE, PROVIDED, HOWEVER, THAT THIS
PROVISION SHALL NOT LIMIT SELLER'S RIGHT TO RECEIVE REIMBURSEMENT FOR THE
SUMS DESCRIBED IN SECTION 18, NOR WAIVE OR AFFECT SELLER'S RIGHTS AND BUYERS
INDEMNITY OBLIGATIONS WITH RESPECT TO THE CONFIDENTIAL INFORMATION, BUYER'S
ENTRY UPON THE PROPERTY, OR OTHER PRE-CLOSING COVENANTS SPECIFIED IN THIS
AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED
DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF
CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA
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CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE PARTIES HAVE SET FORTH THEIR
INITIALS BELOW TO INDICATE THAT EACH PARTY FULLY UNDERSTANDS THE
CONSEQUENCES OF THIS PROVISION AND THEIR AGREEMENT WITH THE TERMS HEREOF.
----------------- ----------------
SELLER'S INITIALS BUYER'S INITIALS
8. SELLER'S DEFAULT. If Seller defaults in the performance of any of
its obligations pursuant to this Agreement and Closing fails to occur by
reason thereof, Buyer's sole remedy shall be either to terminate this
Agreement and receive the Option Consideration, and the Deposit, together
with all interest accrued thereon, if any, plus its documented out-of-pocket
due diligence expenses, not to exceed Ten Thousand Dollars (S10,000) or, in
the alternative, pursue specific performance.
9. ADDITIONAL COVENANTS.
9.1 TERMINATION OF MANAGEMENT AGREEMENT. Seller covenants and agrees
that it will cause any management agreement for the Property to be
terminated as of the Closing Date, along with any other agreements with
respect to the Property as may be requested by Buyer.
9.2 NOTICES TO TENANTS. Promptly after Closing, Buyer shall mail, by
first class mail, a notice complying with any requirements of the laws of
the State of California, as appropriate, to each tenant occupying any
portion of the Property and for whom or which any prepaid rent, security or
cleaning deposit has been transferred to Buyer by Seller, whether through
actual cash transfer or through any credit allowed through escrow. Buyer
shall provide Seller with copies of all such notices and a certificate of
mailing within ten (10) calendar days following Closing.
9.3 OPERATION OF PROPERTY. Seller hereby covenants and agrees that
until Closing it shall continue to operate, manage and maintain the Property
in the same manner that it is operating, managing and maintaining the
Property on the Contract Date, subject to Section 12 below.
10. REPRESENTATIONS AND WARRANTIES.
10.1 BUYER'S REPRESENTATIONS AND WARRANTIES. In consideration of
Seller entering into this Agreement and as an inducement to Seller to sell
the Property, Buyer hereby makes the following representations and
warranties to Seller as of the date of this Agreement. Such representations
and warranties shall also be true and correct as of the Closing Date. It is
expressly understood and agreed that (a) the following representations and
warranties shall survive the Closing but all liability of Buyer for breach
of any of such representations and warranties shall terminate as to such
representation and warranty if no written claim of breach,
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specifying such representation or warranty allegedly breached and the
supporting evidence for the alleged breach, shall be delivered to Buyer on
or prior to the date which is six (6) months following the Closing Date, and
(b) notwithstanding the existence of a claim of breach with respect to any
one or more representations or warranties within such six (6) month period,
the remaining representations and warranties for which no such claim of
breach has been delivered within such six (6) month period shall expire as
provided above:
10.1.1 Buyer is and as of the Closing will be a corporation duly
organized, validly existing, and in good standing under the laws of the
state of its formation;
10.1.2 Buyer has and as of the Closing will have the requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby, and
10.1.3 This Agreement and all agreements, instruments and
documents herein provided to be executed by Buyer are and as of the Closing
will be duly authorized, executed and delivered by and are and will be
binding upon Buyer.
10.2 SELLER'S REPRESENTATIONS AND WARRANTIES. In consideration of
Buyer entering into this Agreement and as an inducement to Buyer to purchase
the Property, Seller hereby makes the following representations and
warranties to Buyer as of the date of this Agreement. Such representations
and warranties shall also be true and correct as of the Closing Date. It is
expressly understood and agreed that (a) the following representations and
warranties shall survive the Closing but all liability of Seller for breach
of any of the following representations and warranties shall terminate as to
such representation and warranty if no written claim of breach specifying
such representation or warranty allegedly breached and the supporting
evidence for the alleged breach, shall be delivered to Seller on or prior to
the date which is six (6) months following the Closing Date, and (b)
notwithstanding the existence of a claim of breach with respect to any one
or more representations or warranties within such six (6) month period, the
remaining representations and warranties for which no such claim of breach
has been delivered within such six (6) month period shall expire as provided
above:
10.2.1 Seller is and as of the Closing will be a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware.
10.2.2 Seller has and as of the Closing will have the requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby.
10.2.3 This Agreement and all agreements, instruments and
documents herein provided to be executed by Seller are and as of the Closing
will be duly authorized, executed and delivered by and are and will be
binding upon Seller.
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10.2.4 To Seller's actual knowledge, the Property Information
includes all documents (other than the Excluded Items) relating to the
Property that are in Seller's possession or control.
10.3 SELLER'S KNOWLEDGE STANDARD. The phrase "to Seller's actual
knowledge," as used in this Agreement means the actual, present knowledge of
Xxxxx Xxxxxx, without any duty to investigate or to make inquiry. Seller
represents and warrants that Xxxxx Xxxxxx is the Senior Asset Manager for
the Property and in such position is the person with the responsibility for
managing the Property and the person within Seller most likely to possess
the relevant knowledge upon which Seller's representations and warranties
concerning the Property are based.
11. DELIVERY OF POSSESSION. Possession of the Property shall be
delivered to Buyer at the time of Closing, subject to the rights of tenants
in possession under the Leases and the Permitted Exceptions.
12. RISK OF LOSS. If the Property or any portion thereof is damaged or
destroyed by fire or other casualty or by a partial taking under the
provisions of eminent domain after the Contract Date and prior to the
Closing and the Property is not substantially restored by the Closing Date:
12.1 MINOR LOSS. If the cost of repair or the value of the Property
taken or claimed under the provisions of eminent domain does not exceed
$250,000.00, Buyer shall close this transaction without adjustment to the
Purchase Price but Seller shall assign to Buyer at Closing all insurance or
condemnation proceeds available for such repair or taking and shall
reimburse Buyer by credit to the Purchase Price to the extent of any
deductible or self-insured retention amount applicable thereto.
12.2 MAJOR LOSS. If the cost of repair or the value of the Property
taken or claimed under eminent domain exceeds $250,000.00, Buyer shall have
the option of (i) closing this transaction as provided under Section 12.1,
or (ii) rescinding this Agreement by giving Seller written notice thereof
within ten (10) days from the date Buyer receives notice of such damage, in
which event this Agreement shall be deemed null and void and the parties
hereto shall have no further obligations to or recourse against each other
either under this Agreement or otherwise and except that the Deposit shall
be returned to Buyer.
13. NOTICES. Any notices required or permitted to be given by this
Agreement shall be personally delivered, shipped via Federal Express or
other "next day" courier delivery or sent by facsimile transmission, as
follows:
BUYER: First Alliance Mortgage Company
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxx
Facsimile No. (000) 000-0000
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with a copy to:
Xxxxx X Xxxxxxx
00000 Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No. (000) 000-0000
and a copy by fax to:
Xxxxxxx Realty
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Facsimile No. (000) 000-0000
SELLER: AMRESCO Residential Mortgage Corporation
c/o AMRESCO Management, Inc.
0 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Facsimile No. (000) 000-0000
Notice duly delivered in the manner described above shall be deemed received
(a) one (1) business day after timely deposit with a generally recognized
overnight courier service for next business day delivery, or (b) upon actual
receipt of notice, whichever is earliest. The parties shall promptly give
written notice to each other as provided in this Section 13 of any change of
address or facsimile number, and personal delivery, mailing, shipment to the
addresses or facsimile transmission to the numbers set forth above shall be
deemed sufficient unless written notification of a change of address or
facsimile number has been received.
14. NO COMMISSIONS, FINDER'S FEES OR BROKERAGE FEES. Buyer and Seller
each represent and warrant to the other that there are no commissions,
finder's fees or brokerage fees arising out of the transactions contemplated
by this Agreement, except for the commission in the amount of two percent
(2%) of the Purchase Price which Seller has committed to pay separately and
directly out of escrow proceeds to each of Xxxxxxx Realty Corporation and
The Xxxxxx Company ("COMMISSION") and which Seller shall pay on or prior to
the Closing Date. Buyer agrees that if any claims should be made for
commissions allegedly arising from the execution of this Agreement,
including, without limitation, the Commission, or any sale of the Property
to Buyer by any broker by reason of any acts of Buyer, Buyer will protect,
defend, indemnify and hold Seller harmless from and against any and all
losses, liabilities and expenses in connection therewith. Seller agrees
that if any claims should be made for commissions allegedly arising from the
execution of this Agreement or any sale of the Property to Buyer by any
broker by reason of any acts of Seller, Seller will protect, defend,
indemnify and hold Buyer harmless from and against
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any and all losses, liabilities and expenses in connection therewith.
Seller shall only be liable for the Commission in the event the transaction
is completed as provided herein.
15. SURVIVAL OF OBLIGATIONS. All covenants, representations,
warranties, agreements and indemnities contained in this Agreement shall be
made as of the Contract Date. Such covenants, representations, warranties,
agreements and indemnities are made as of a date certain, and any cause of
action resulting from the breach of same, whether at law or in equity, shall
survive Closing (subject to the limitations set forth in Sections 10.1 and
10.2). All covenants and other obligations which, by their nature, are to
be performed by Buyer following Closing, shall survive Closing and the
transfer of title to the Property to Buyer. Except as specifically set
forth herein, Closing hereunder shall automatically constitute a merger of,
and shall irrefutably evidence full satisfaction of, all of Seller's
obligations under this Agreement.
16. HEADINGS AND SECTIONS. The use of headings in this Agreement is for
convenience and reference purposes only, and is not intended to limit,
expand or otherwise define the parties' respective obligations. The use of
sections is for convenience and organizational purposes only and is not
intended to create a severable contract.
17. TIME IS OF THE ESSENCE. Time is of the essence in the performance
of all terms and conditions and other obligations, including the giving of
required or permitted notices, under this Agreement.
18. ATTORNEYS' FEES. In the event of any dispute arising hereunder, the
prevailing party in litigation or arbitration, inclusive of any appeals,
shall be entitled to recover attorneys' fees and costs, court costs,
arbitration costs and costs of discovery incurred in connection therewith.
19. GOVERNING LAW. The performance and interpretation of this Agreement
shall be governed by the laws of the State of California.
20. ILLEGALITY/SEVERABILITY. In the event any provision of this
Agreement shall be deemed illegal or unenforceable, the remaining provisions
shall nevertheless be carried into effect and the defective provision shall
be deemed amended to comply with such rule, law or statute rendering same
illegal or unenforceable.
21. NO JOINT VENTURE. The relationship of Seller and Buyer hereunder is
and will be that of seller and buyer, and none of the provisions of this
Agreement are intended to create any relationship other than seller and
buyer. No agency, partnership, joint venture or other relationship is
intended hereby, and neither party shall be deemed the agent, servant,
employee, partner or joint venturer of the other party.
22. SALES, USE, PRIVILEGE TAXES. Notwithstanding any other provisions
of this Agreement, Buyer shall be liable for and shall pay all taxes or
assessments, including, but not limited to, sales, use, intangibles,
privilege, personal property, real property (subject to prorationing as
provided in Section 4.3), or other taxes or assessments resulting from or
assessed with respect to the Property or any of the transactions
contemplated by this Agreement. Buyer
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hereby agrees to hold Seller harmless from, and agrees to indemnify, protect
and defend Seller against, any and all claims by anyone at any time
regarding any such taxes or assessments.
23. FURTHER ASSURANCES. Each party shall execute such further
documents, papers and instruments and take such further action as is
necessary, appropriate or helpful as the other party or Title Company may
reasonably request in order to carry out the purposes and intent of this
Agreement.
24. WAIVER. The waiver by any party of a breach of any provision of
this Agreement shall not be deemed a continuing waiver or a waiver of any
subsequent breach. whether of the same or another provision of this
Agreement.
25. ACTIONS THROUGH SELLER'S AGENTS. Any action or exercise of rights
or duties required or permitted to be taken or done by Seller hereunder
relative to the transactions contemplated by this Agreement may be taken by
any agent, officer, attorney, employee or other person duly designated and
authorized by Seller in writing or otherwise under Seller's customary
policies and procedures to take such action in its behalf. This Section
shall not be construed to delegate authority to any such person or to
entitle Buyer or any other person to rely upon any purported authority
exercised by any person purporting to represent Seller, but shall solely be
interpreted as permitting Seller to so delegate authority for its actions,
exercise of rights, and exercise of duties as above provided.
26. ASSIGNMENT. Buyer may not assign any of its rights under this
Agreement without the prior written consent of Seller, which consent shall
not be unreasonably withheld, and any purported assignment without such
consent shall be null, void and of no force or effect other than to a
nominee or entity of which Buyer is the owner of the majority of the
ownership interests and management rights. Any permitted assignment shall
not relieve Buyer of its obligations hereunder.
27. FINAL AGREEMENT. This Agreement states the entire agreement between
Buyer and Seller, and there are no promises, representations or agreements,
other than those herein contained, either oral or written, which have been
made or relied upon.
28. AMENDMENTS. Any changes or amendments hereto must be made in
writing and signed by both parties.
29. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
30. NO THIRD-PARTY BENEFICIARY. Buyer and Seller do not intend to
confer any benefit hereunder on any person or party other than the parties
hereto.
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31. EXHIBITS. Attached hereto and incorporated herein by this reference
are the following Exhibits:
EXHIBIT A LEGAL DESCRIPTION OF THE REAL PROPERTY
EXHIBIT B SCHEDULE OF FIXTURES, EQUIPMENT, AND PERSONAL PROPERTY,
IF ANY
EXHIBIT C IRREVOCABLE INSTRUCTIONS TO TITLE COMPANY
EXHIBIT D DEED
EXHIBIT E XXXX OF SALE
EXHIBIT F ASSIGNMENT OF LEASES
EXHIBIT G GENERAL ASSIGNMENT
EXHIBIT H FIRPTA CERTIFICATE
EXHIBIT I INSURANCE, INDEMNIFICATION AND CONFIDENTIALITY
AGREEMENT
EXHIBIT J TITLE COMMITMENT
IN WITNESS WHEREOF, Buyer and Seller have executed this
Agreement.
BUYER:
FIRST ALLIANCE MORTGAGE
California corporation
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: XXXXXXX X. XXXXX
Title: Executive Vice President,
SELLER:
AMRESCO RESIDENTIAL MORTGAGE
CORPORATION, a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: XXXX X. XXXXXXXXX XX.
Title: Vice President
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