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Landmark Land/Tampico 35 Acre 94PURCHASE AND SALE AGREEMENT for property known as Tampico Land 1994 Effective Date: January 6, 1993- THE BLANKS IN PART I OF THIS AGREEMENT AND ON THE SIGNATURE PAGES NEED TO BE COMPLETED AND VARIOUS EXHIBITS, IF APPLICABLE, NEED TO BE INSERTED RTC Form Raw Land Contract ($500.000+) Ver. 1.0 Approved December 18. 1991 RTC Committee on Management and Disposition of Assets PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT ("Agreement"), dated as of the Effective Date, is entered into by and between LANDMARK LAND COMPANY OF CALIFORNIA, INC., a Delaware corporation ("Seller"), and LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Buyer"). PART I Part II (including the Exhibits) of this Agreement makes reference to the following items that must be completed or noted as "Not Applicable" prior to execution of this Agreement: The real property is described on Exhibit "A". 2. "Purchase Price" is One Million Four Hundred Thousand Dollars ($1,400,000.00). 3. "Deposit" is Forty Thousand Dollars ($40,000.00). 4. "Broker" is Landmark Land Company of California, Inc., a Delaware corporation, doing business as Landmark Real Estate Company. 5. "Closing Agent" is Dixie Escrow. 6. "Closing'_ Date" is March 27, 1994. 7. "Effective Date" is January 6, 1994, which is the date upon which this Agreement is executed by Seller, as evidenced by the insertion of such date below Seller's signature, provided that if this Agreement is not executed by Seller on or before January 6, 1994 and delivered to Buyer immediately thereafter, this Agreement shall be deemed void and of no further force or effect. 8. "Title Company" is First American Title Insurance Company. 9. The allocation of Closing costs under Section 13.3 is to be as follows: All reconveyance fees, the cost of the documentary transfer tax, if any, on the "Deed" (as hereinafter defined), the cost of the premium for CLTA Standard Coverage under a policy of title insurance insuring the interest of the Buyer in the Property in the amount of the Purchase Price, and one- half (1/2) of all of the escrow fees and charges shall be paid through escrow by the Seller on the Closing Date. All recording fees for the Deed, the additional premium for any ALTA Extended Coverage requested by Buyer under a policy of title insurance, and one-half (1/2) of all of the escrow fees and charges shall be paid through escrow on the Closing Date by Buyer. RFAL:3671 5'11331 B2338.41 PART II TABLE OF CONTENTS Page PART..................................................... 1 PARTII..................................................... 2 ARTICLE 1. Purchase and Sale ................................. 6 ARTICLE 2. Purchase Price ................................... 6 ARTICLE 3. Deposit ....................................... 6 ARTICLE 4. Payment of Purchase Price: Financing .................... 6 ARTICLE 5. Property Information Materials ......................... 6 ARTICLE 6. Title ........................................ 7 ARTICLE 7. Inspection Period: Material Deficiencies ................... 7 ARTICLE 8. Confidentiality Agreement ........................... 11 ARTICLE 9. Representations and Warranties ........................ 11 ARTICLE 10. Condition of Property: Disclaimer: Release of Claims ........ 13 ARTICLE 11. Conditions Precedent to Closing ..................... 14 ARTICLE 12. Closing: Deliveries at Closing ...................... 14 ARTICLE 13. Costs. Taxes and Adjustments ...................... 15 ARTICLE 14. Default .................................... 17 ARTICLE 15. Liability of Seller and Related Persons ................. 18 ARTICLE 16. Condemnation ................................ 18 ARTICLE 17. Risk of Loss: Casualty ........................... 19 ARTICLE 18. Brokers .................................... 19 ARTICLE 19. Survival .................................... 19 ARTICLE 20. Assignments of this Agreement or of Buyer .............. 19 ARTICLE 21. Notices .................................... 20 ARTICLE 22. Time of the Essence ............................ 20 ARTICLE 23. Miscellaneous ................................ 21 ARTICLE 24. Provisions with Respect to the Closing Agent ............. 22 ARTICLE 25. Specific Provisions Required by the Jurisdiction in Which the Property is Located ............................... 23 ARTICLE 26. Execution and Delivery .......................... 23 ARTICLE 27. Liquidated Damages Provision ...................... 23 EXHIBITS: Exhibit "A" - Description of the Property Exhibit "B" - Intentionally Omitted Exhibit "B-1" - Intentionally Omitted Exhibit "C" - Property Information Materials Exhibit "D" - [This Exhibit has been intentionally deleted.] Exhibit "E" - Confidentiality Agreement Exhibit "F" - Deed _ REAL: 3671 51 1331132338.41 2 Exhibit "G" - ['Phis Exhibit has been intentionally deleted.] Exhibit "H" - [This Exhibit has been intentionally deleted.] Exhibit "I" - Intentionally Omitted Exhibit "J" - Provisions With Respect to Closing Agent Exhibit "K" - Specific Provisions Required by the Jurisdiction in which the Property is Located Exhibit "L" - Public Improvement Agreement and Resolutions Rflnu3671_511331B2338.41 3 INDEX TO DEFINED TERMS Term Part/Article/Section (All Article and Section references are to Part II) Accounting Period ....................................... 13.4 Adjustment Time ....................................... 13.4 Agreement ........................................... PartI Alternate A .......................................... 7.2 AlternateB........................................... 7.2 Broker .............................................. PartI Business Day .......................................... 23.3 Buyer.............................................. PartI Buyer's Deficiencies Notice ................................. 7.2 Buyer's Representatives ................................... 7.3(b) Purchase Price ......................................... Part I Claims.............................................. 5 Closing ............................................. 12.1 Closing Agent ......................................... Part I Closing Date .......................................... Part I Confidential Files ....................................... 7.1 Deed ............................................... 12.2(a) Deficiency(ies)........................................ 7.1 Deposit ............................................. PartI Due Diligence Review .................................... 7.1 Effective Date ......................................... Part I Environmental Laws ..................................... 10.2 Escrow Account ........................................ 3.2 Inspection Period ....................................... 7.1 Inspection Studies ....................................... 7.1 Litigation ............................................ 9.2(c) Material Deficiencies ..................................... 7.1 Non -Material Deficiencies .................................. 7.1 Notices............................................. 21.1 REAL: 3671 511331B2338.41 4 ti Permitted Encumbrances ................................... Property............................................. Property Information Materials .............................. . Purchase Price ........................................ . Seller............................................... Seller's Deficiencies Notice ................................ . Taking.............................................. Taxes.............................................. TitleCompany ......................................... Title Evidence ........................................ . 6.1 1 5 Part I Part I 7.2 16.1 13.4(a) Part I 6.2 REnL:3671 511331B2338.41 5 ARTICLE 1. Purchase and Sale. Seller agrees to sell and convey to Buyer and Buyer agrees to purchase from Seller, under the terms and conditions set forth in this Agreement, all right, title and interest of Seller in and to the real property described in Part I and any improvements situated on such real property, together with any and all easements, covenants and other rights appurtenant to such real property (collectively, "Property"). ARTICLE 2. Purchase Price. The Purchase Price is set forth in Part I. ARTICLE 3. Deposit. 3.1. Simultaneously with delivery by Buyer of an executed copy of this Agreement to Seller, Buyer shall tender the Deposit to Closing Agent. The Deposit shall be tendered by certified check or cashier's check made payable to Closing Agent or by wire transfer of current federal funds received and credited to the account of Closing Agent. 3.2. The Deposit shall be promptly deposited by Closing Agent in a separate, federally insured, interest bearing escrow account reasonably satisfactory to Seller ("Escrow Account"). The interest accruing thereon shall be part of the Deposit, and all references in this Agreement to the Deposit shall include the interest thereon. To allow the interest bearing account to be opened, Buyer is stating Buyer's federal tax employer identification number or social security number, whichever is applicable, below its signature. ARTICLE 4. Payment of Purchase Price; Financing. 4.1. The Purchase Price shall be paid at Closing as follows: (a) The Deposit shall be credited against the Purchase Price; (b) Buyer shall deliver to Closing Agent, for the account of Seller, the balance of the Purchase Price by certified check or cashier's check made payable to Closing Agent, or by wire transfer of current federal funds received and credited to the Escrow Account. ARTICLE 5. Property Information Materials. Buyer acknowledges that, prior to Buyer's execution of this Agreement, Seller delivered to Buyer and Buyer reviewed the materials and information concerning the Property identified on Exhibit "C" (collectively, "Property Information Materials"). Buyer acknowledges and understands that the Property Information Materials may have been prepared by parties other than Seller and that Seller makes no representation or warranty whatsoever, express or implied, as to the completeness, content or accuracy of the Property Information Materials. Buyer specifically releases Seller from all claims, demands, causes of action, judgments, losses, damages, liabilities, costs and expenses (including attorneys' fees whether suit is instituted or not) - whether known or unknown, liquidated or contingent - (collectively, "Claims") asserted against or incurred by Buyer by reason of the information contained in, or that should have been contained in, the Property Information Materials; however, the foregoing REAL: 3671 511331 B2338.41 6 release shall not apply to any Claims resulting from any intentional misstatements or willful misconduct on the part of Seller. ARTICLE 6. Title. 6.1. Title to the Property is to be conveyed to Buyer at Closing subject to only Permitted Encumbrances. "Permitted Encumbrances" means any and all of the following to which Buyer does not give notice of objection on or before the date forty-five (45) days following the Effective Date of this Agreement: (a) matters disclosed by the Property Information Materials, (b) matters of public record as of the effective date of the Title Evidence, other than such mortgages and deeds of trust and other monetary liens as Buyer does not assume under Section 4.1, (c) matters that would be revealed by a physical inspection, or a complete and accurate survey, of the Property as of the effective date of the Title Evidence, (d) rights -of -way and easements that do not materially interfere with the existing use of the Property, (e) zoning and other governmental restrictions, (f) matters common to any plat or subdivision in which the Property is located, and (g) taxes, assessments and other public charges not due as of the Closing Date; title is to be insurable, by First American Title Insurance Company, subject only to the Permitted Encumbrances. If Buyer gives notice of disapproval to Seller in accordance with the foregoing, Seller shall have the right, but not the obligation, to remove any disapproved matters within twenty (20) days after receiving written notice of Buyer's disapproval or provide assurances satisfactory to Buyer that such matters will be removed on or before the Closing. If Seller cannot or does not elect to remove any of the disapproved matters within that period, Buyer shall have fifteen (15) business days after expiration of said twenty (20) day period to give the Seller written notice that Buyer elects to proceed with the purchase of the Property subject to the disapproved matter(s). If Buyer does not give such notice, this Agreement shall be deemed terminated and the Deposit shall be immediately returned to Buyer. In the event this Agreement is deemed terminated in accordance with the foregoing as a result of Buyer not giving notice, Buyer shall provide written confirmation of such termination within thirty (30) days following written request therefor by Seller. 6.2. Within fourteen (14) days after the Effective Date, Seller shall deliver to Buyer the Title Evidence. "Title Evidence" means a preliminary title report, title commitment, title abstract or similar document in use in the jurisdiction in which the Property is located, shall include true and complete copies of all documents noted as exceptions therein, and shall have an effective date that is not more than one (1) month old. Seller makes no representation or warranty whatsoever, express or implied, as to the completeness, content or accuracy of the Title Evidence. ARTICLE 7. Inspection Period: Material Deficiencies. 7.1. From the Effective Date of this Agreement until 5:00 p.m. Central Standard Time on the forty-fifth (45th) day after the Effective Date ("Inspection Period"), Buyer, at its sole cost and expense, shall have the right to a Due Diligence Review in accordance with the following terms and conditions. A "Due Diligence Review" means (a) an inspection of those documents, files and other information in Seller's possession with respect to the Property that Seller is not prohibited from disclosing ("Confidential Files"). and (b) the conduct of such physical tests, inspections and other investigations (including ALTA survey and soils test) as are reasonably necessary to determine the Permitted Encumbrances and whether there are any Material Deficiencies with respect to the Property ("Inspection Studies"). If the aggregate value - REAL:36715;1331B2338.41 7 of all Deficiencies (if any) as determined hereunder exceeds two percent (2 %) of the Purchase Price, then such Deficiencies shall, together, constitute the "Material Deficiencies". A "Deficiency" or "Deficiencies" consist of only the following conditions: (a) any material defect in the soils of the Property that is neither disclosed in the Property Information Materials nor discoverable by a physical inspection of the Property, (b) any failure of the Property to comply with any applicable governmental regulations (including environmental) in any material respect, except as disclosed in the Property Information Materials and except zoning and building laws and codes, (c) any material inaccuracy in the Property Information Materials, or (d) any material defect in Seller's title to the Property that is not one of the Permitted Encumbrances. The value of each Deficiency (if any) shall be the lesser of the reasonably anticipated costs to cure that Deficiency or the diminution in the fair market value of the Property caused by that Deficiency; if there is any dispute as to the amount of such cost or diminution, then Seller's reasonable determination thereof shall apply. "Non -Material Deficiencies" shall be all conditions of or affecting the Property that are not included within Material Deficiencies. 7.2. Buyer shall be obligated to purchase the Property in accordance with this Agreement notwithstanding the existence of any Non -Material Deficiencies, without any reduction in the Purchase Price. However, if within the Inspection Period, Buyer discovers Material Deficiencies, then Buyer may, on or before the expiration of the Inspection Period, give notice to Seller citing each Deficiency included within the Material Deficiencies and enclosing a copy of any and all reports of the inspector(s) that disclose such Deficiencies ("Buyer's Deficiencies Notice"). If Buyer does not give Seller a Buyer's Deficiencies Notice within that period, then Buyer shall have no further right to object to Material Deficiencies and shall be required to accept any and all Material Deficiencies without postponement of the Closing Date, reduction in the Purchase Price or claim against Seller on account thereof. Seller shall have the right, by giving notice to Buyer ("Seller's Deficiencies Notice") within twenty-one (21) days after receiving Buyer's Deficiencies Notice, to elect (a) to decline to take any action with respect to the cited Material Deficiencies ("Alternate A"), (b) to agree to attempt to cure the cited Material Deficiencies if Seller reasonably determines that they may be curable within forty-five (45) days after the date of Seller's Deficiencies Notice ("Alternate B"), or (c) to reduce the Purchase Price by an amount, reasonably determined by Seller, equal to, with respect to each of the cited Deficiencies, the lesser of the reasonably anticipated costs to cure the Deficiency or the diminution in the fair market value of the Property caused by the Deficiency. (a) If Seller elects Alternate A, then Buyer shall have the right, exercisable only by giving notice to Seller (with a copy to Closing Agent) within fifteen (15) days after receiving Seller's Deficiencies Notice, to terminate this Agreement. If Buyer duly exercises that right, then Closing Agent is hereby instructed to return the Deposit to Buyer in accordance with Exhibit ".I" as Buyer's sole remedy. If Buyer does not duly exercise that right, then (i) Buyer shall have no further right to object to the cited Material Deficiencies, (ii) Closing shall occur as described in this Agreement without postponement, and (iii) at Closing, Buyer shall accept the Property subject to the cited Material Deficiencies without any reduction in the Purchase Price or claims against Seller on account thereof. (b) If Seller elects Alternate B, then Seller shall promptly attempt to cure the cited Material Deficiencies, using reasonable efforts; however, Seller shall not be required to institute any litigation in pursuit of such cure. If Seller fails to cure those Material Deficiencies within forty-five (45) days after the date of Seller's Deficiencies Notice, then Seller shall have the right, exercisable only by giving notice to Buyer within that forty-five (45)-day - RFAL:3671 5'1133'1B2338.41 8 period, to extend the time within which to cure those Material Deficiencies for an additional —period of thirty (30) days. If Seller fails to cure those Material Deficiencies within the applicable period, then Buyer shall have the right, exercisable only by giving notice to Seller (with a copy to Closing Agent) within fifteen (15) days after the applicable period, to terminate this Agreement. If Buyer duly exercises that right, then Closing Agent is hereby instructed to return the Deposit to Buyer in accordance with Exhibit "J" as Buyer's sole remedy. If Buyer does not duly exercise that right, then (i) Seller shall have no further obligation to attempt to cure those Material Deficiencies, and (ii) at Closing, Buyer shall accept the Property subject to those Material Deficiencies without any reduction in the Purchase Price or claims against Seller on account of those Material Deficiencies. (c) If a period described in the foregoing provisions of this Section 7.2 becomes applicable and the Closing Date would otherwise occur during such period, then the Closing Date shall be extended to be a date selected by Seller. Such new Closing Date shall be within thirty (30) days after the applicable period(s). (d) The procedures set forth in this Section 7.2 shall be Buyer's sole rights and remedies with respect to any defects or deficiencies in the Property or in Seller's title to the Property. Buyer shall have no right to take any other action, or to assert any other claims or cause of action, against Seller based upon any such defect or deficiency. 7.3. The inspection of Confidential Files shall be conducted, if at all, only in accordance with the following procedures: (a) Subject to Article 8, the Confidential Files shall be made available to Buyer and Buyer's Representatives, by appointment, at the Property or at such other location as is reasonably designated by Seller. (b) Neither Buyer nor any of Buyer's Representatives shall make any reproduction of Confidential Files (other than handwritten summaries or notes) without the prior approval of Seller in each instance. "Buyer's Representatives" are any employees, officers, directors, partners, principals, agents, independent contractors, consultants, attorneys and accountants of or retained by Buyer with respect to the Property, reviewing this Agreement, or providing debt or equity financing. 7.4. The Inspection Studies shall be conducted only in accordance with the following procedures: (a) In each instance, at least two (2) Business Days prior to the intended date of entry, Buyer shall request of Seller the right to enter upon the Property. Each such request shall specify the intended date of entry. Neither Buyer nor any of Buyer's Representatives shall enter the Property without Seller's prior approval based upon such a request. (b) No test or investigation involving physical disturbance of any portion of the Property shall be conducted without Seller's prior approval of the specific test or investigation. REAL: 3671 511331B2338.41 9 (c) A representative of Seller shall have the right to be present during the Inspection Studies. (d) Neither Buyer nor any of Buyer's Representatives shall interfere with the use, occupancy or enjoyment rights of any tenants or subtenants of the Property or their applicable employees, contractors, customers or guests. (e) Buyer has no authority to do anything that may result in a lien or encumbrance against the Property in connection with the Inspection Studies. Without limiting the foregoing, however, Buyer agrees to pay promptly all costs associated with the Inspection Studies and not to permit any lien or encumbrance to be asserted against the Property in connection with any Inspection Studies. (f) Seller shall require that, before or during any Inspection Studies, Buyer deliver to Seller a certificate of insurance evidencing public liability insurance with limits of at least One Million Dollars ($1,000,000.00) for bodily or personal injury or death, property damage insurance in the amount of at least Two Hundred Fifty Thousand Dollars ($250,000.00), and contractual liability insurance with respect to Buyer's obligations under Section 7.5. Each such insurance policy shall be written by a reputable insurance company having a rating of at least "A" by A.M. Best (or a comparable rating by a successor rating service), and shall otherwise be subject to Seller's prior approval. Such insurance policies shall name Seller, as well as other parties in interest designated by Seller, as additional insureds. (g) Buyer shall, at its own expense, promptly fill and compact any holes, and otherwise restore any damage to the Property, caused by the conduct of any Inspection Studies. Buyer and Buyer's Representatives shall immediately thereafter vacate the Property. (h) Seller's approval under this Section 7.4 shall be granted or denied in Seller's reasonable judgment. 7.5. Buyer shall defend, indemnify and hold harmless Seller from and against any and all Claims asserted against or incurred by Seller as a result of the conduct of Inspection Studies, including (a) any violation of, or failure to comply with, the foregoing terms of this Article by Buyer or Buyer's Representatives, or (b) any injury to or death of persons, or damage to or loss of property, caused by Buyer or Buyer's Representatives in connection with the conduct of Inspection Studies, provided that the provisions of this Section 7.5 shall not apply to any Claim arising from the result of any Inspection Studies. 7.6. Buyer shall promptly deliver to Seller, at no cost or expense to Seller, copies of any and all environmental information Buyer has obtained or hereafter obtains with respect to the Property. If Buyer shall be in default under this Agreement beyond any applicable cure period, or if this Agreement shall be terminated in accordance with its terms, then Buyer shall promptly deliver to Seller, at no cost or expense to Seller, copies of any and all Inspection Studies obtained by Buyer. ARTICLE 7A. Additional Inspections and Studies. Notwithstanding anything to the contrary contained in Article 7 or elsewhere in this Agreement, (i) Seller shall, at its sole cost and expense, cause all asphalt, concrete and similar _ REnL:3671 5!1331E2338.41 10 debris located on the Property to be removed during the Inspection Period in compliance with all applicable laws, rules and regulations, and should Seller fail to do so for any reason Buyer shall have the right to terminate this Agreement and receive an immediate full refund of the Deposit, and (ii) Buyer shall have the right during the Inspection Period (a) to have engineering reports for the Property prepared and if such reports reflect soils conditions (including compaction, liquifaction, and hazardous conditions, contamination or materials), drainage conditions, sewer capacity or utility capacity that are in Buyer's reasonable judgment insufficient or unsatisfactory to support the proposed development of the Property consisting of institutional structures, single family structures, multifamily structures, detention basin, sewer and flood water evacuation system and public roadways, then Buyer shall have the right to terminate this Agreement and receive an immediate full refund of the Deposit, and (b) to review all applicable land use restrictions pertaining to the Property and if any such restrictions in Buyer's reasonable judgment prevent the proposed development of the Property consisting of institutional structures, single family structures, multifamily structures, detention basin, sewer and flood evacuation system and public roadways, then Buyer shall have the right to terminate this Agreement and receive an immediate full refund of the Deposit. ARTICLE 8. Confidentialit�greement. The provisions of the form of Confidentiality Agreement attached hereto as Exhibit "E" are part of this Agreement. ARTICLE 9. Representations and Warranties. 9.1. Seller's Representations and Warranties. Seller represents and warrants to Buyer as follows: (a) Authority. Seller has full right, power and lawful authority to grant, sell and convey the Property as provided herein and the execution, performance and delivery of this Agreement by Seller has been fully authorized by all requisite corporate action on the part of Seller. (b) Leases. There are no tenants or other persons other than Seller who have a lawful interest in the Property. (c) Title. Seller, at the time of the execution of this Agreement, is seized of the Property in fee simple and is the lawful owner of the Property subject only to Permitted Encumbrances. (d) Liti atg ion. There are no actions, suits, material claims, legal proceedings, or any other proceedings affecting the Property or any portion thereof, at law, or in equity before any court or governmental agency, domestic or foreign. (e) Condition of Property. The Property is in good condition, and until vacated, Seller shall maintain the Property in such condition. (f) No Violation. Neither the execution of this Agreement nor the performance of the obligations herein will conflict with, or breach any of the - RenL:3671 5', 133 1 B2338.41 1 I provisions of any bond, note, evidence of indebtedness, contract, lease, or other agreement or instrument which affects the Property. (g) FIRPTA. Seller is not a "foreign person" wthin the parameters of FIRPTA or any similar state statute, or is exempt from the provisions of FIRPTA or any similar state statute, or that Seller has complied and will comply with all the requirements under FIRPTA or any similar state statute. (h) No Conflict. Seller's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Seller is a party or by which it is bound. (i) Governmental Compliance. Seller has not received any notice from any governmental agency or authority alleging that the Property is currently in violation of any law, ordinance, rule, regulation or requirement applicable to its use and operation. If any such notice or notices are received by Seller following the date this Agreement is signed by Buyer, Seller shall, within ten (10) days of receipt of such notice notify Buyer; Seller then, at its option, may either elect to perform the work or take the necessary corrective action prior to the Closing or refuse to do so, in which case Seller shall notify Buyer of such refusal and Buyer shall be entitled to either close Escrow with knowledge of such notice(s) or terminate this Agreement. Q) Condemnation. Seller has no actual knowledge of any pending or threatened condemnation of all or any portion of the Property. (k) Contracts. Other than the Permitted Encumbrances, there are no agreements or contracts pertaining to the Property that will survive the Close of Escrow. (1) Right to Possession. No person, firm, partnership or corporation has the right to possess the Property or any portion of it. Until the Closing, Seller shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 9.1 not to be true as of closing, immediately give written notice of such fact or condition to Buyer. Such exception to a representation shall not be deemed a breach by Seller hereunder, but shall constitute an exception which Buyer shall have a right to approve or disapprove if such exception would have an effect on the value and/or operation of the Property. If Buyer elects to close Escrow following disclosure of such information, Seller's representations and warranties contained herein shall be deemed to have been made as of the Closing, subject to such exception(s). If, following the disclosure of such information, Buyer elects to not close Escrow, then this Agreement and the Escrow shall automatically terminate, the Deposit shall be immediately returned to Buyer, and neither party shall have any further rights, obligations or liabilities hereunder. 9.2. Buyer's Representations and Warranties. Buyer represents and warrants to Seller that the following are true, accurate and complete as of the Effective Date: REAL: 3671 511331B2338.41 12 (a) Organization. Buyer is a public body corporate and politic duly incorporated pursuant to an ordinance of the City of La Quinta. (b) Authori . Each of the persons executing this Agreement on behalf of Buyer is duly authorized to do so. Buyer has full right and authority to enter into this Agreement and to consummate the transaction described in this Agreement. This Agreement constitutes the valid and legally binding obligation of Buyer and is enforceable against Buyer in accordance with its terms. Neither the execution or delivery of this Agreement nor the performance of Buyer's obligations under this Agreement violates, or will violate, any contract or agreement to which Buyer is a party or by which Buyer is otherwise bound. (c) Litigation. There are no actions, suits, Claims or other proceedings (collectively, "Litigation") pending or, to the best of Buyer's knowledge, contemplated or threatened against Buyer that could affect Buyer's ability to perform its obligations when and as required under the terms of this Agreement. ARTICLE 10. Condition of Property: Disclaimer; Release of Claims. 10.1. THE PROPERTY IS BEING SOLD "AS IS", "WHERE IS", AND "WITH ALL FAULTS" AS OF CLOSING, WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER AS TO ITS CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING THE PROPERTY, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. BUYER ACKNOWLEDGES THAT BUYER IS PURCHASING THE PROPERTY BASED SOLELY ON BUYER'S OWN INDEPENDENT INVESTIGATIONS AND FINDINGS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY SELLER OR SELLER'S AGENTS OR CONTRACTORS. SELLER HAS MADE NO AGREEMENT TO ALTER, REPAIR OR IMPROVE ANY OF THE PROPERTY. However, nothing contained in this section is intended to modify any of the provisions of Section 7.2. 10.2. Without limiting the provisions of Section 10.1, Buyer releases Seller from any and all Claims (whether known or unknown, and whether contingent or liquidated) arising from or related to (a) any construction defects, errors or omissions in the design or construction of any improvements upon the Property, or (b) other conditions (including environmental conditions) affecting the Property. The release set forth in this Section specifically includes any Claims under any Environmental Laws. "Environmental Laws" includes the Resource Conservation and Recovery Act (42 U.S.C. 6901, et SeMc .), the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act (42 U.S.C. 9601, et M.), and the Clean Air Act (42 U.S.C. 4701, et seMc .), as any of the same may be amended from time to time, and any comparable or successor provisions of federal, state or local law, and any regulations, orders, rules, procedures, guidelines and the like promulgated in connection therewith. REAL:3671 51 1331 B2338.41 13 ARTICLE 11. Conditions Precedent to Closing. 11.1. Conditions Benefitting_Buyer. The obligations of Buyer under Articles 12 and 13 are subject to the performance by Seller of all of its obligations hereunder and to the representations and warranties of Seller set forth herein being true and correct as of the Closing Date. 11.2. Conditions Benefitting Seller. The obligations of Seller under Articles 12 and 13 are subject to the satisfaction, as of the Closing Date, of each of the following conditions: (a) Neither Buyer nor any of its Affiliates (i) shall be in receivership or dissolution, (ii) shall have made an assignment for the benefit of creditors or admitted in writing its inability to pay its debts as they mature, or (iii) shall have been adjudicated a bankrupt or filed a petition in voluntary bankruptcy or a petition or answer seeking reorganization or an arrangement with creditors under the Federal bankruptcy law or any other similar law or statute of the United States or any jurisdiction and no such petition shall have been filed against Buyer or any of its general partner(s), if any; and (b) There shall not be pending any Litigation of the type described in Section 9.2(c) that arises after the Effective Date. If any of the conditions set forth in this Section 11.2 is not satisfied as of the Closing Date, then Seller shall have the right, exercisable only by giving notice to Buyer (with a copy to Closing Agent), to terminate this Agreement. If Seller duly exercises that right, then Closing Agent is hereby instructed to return the Deposit to Buyer in accordance with Exhibit "J". Buyer shall give Seller prompt and detailed notice of any circumstance, actual or threatened, that may prevent the satisfaction of any of the conditions set forth in this Section 11.2. ARTICLE 12. Closine: Deliveries at Closing. 12.1. The closing of the transaction described in this Agreement ("Closing") shall take place at the offices of Closing Agent (or such other location on which Seller and Buyer may agree) at 10:00 a.m. (local time at the place of Closing) on the Closing Date. 12.2. At Closing, Seller shall deliver to Closing Agent the following (duly and fully executed, and acknowledged or notarized, as appropriate): (a) A grant deed in substantially the form of Exhibit "F", conveying fee title to the Property ("Deed"); (b) An affidavit in favor of the Title Company, Closing Agent and Buyer with respect to (i) compliance with the Foreign Investment in Real Property Tax Act (Internal Revenue Code §1445, as amended, and the regulations issued thereunder), (ii) the elimination of any standard or printed exceptions in Buyer's final policy of title insurance for unfiled mechanics' liens, and (iii) Seller's authority to sell and convey the Property in accordance with this Agreement; and Renu3671 5 1133 1 B2338.41 14 (c) A certificate by Seller that the representations and warranties of Seller contained in Article 9 of this Agreement are true and accurate at and as of the Closing Date. At Closing, Seller shall tender to Buyer possession of the Property free and clear of all parties in possession, except under the Permitted Encumbrances. Seller shall also make available to Buyer on the Closing Date copies of all books and records in Seller's possession necessary for the orderly transition of operation of the Property. 12.3. At Closing, Buyer shall deliver to Closing Agent the following (duly and fully executed, and acknowledged or notarized, as appropriate): (a) Written instructions to Closing Agent to release the Deposit for disbursement to Seller; (b) The balance of the Cash Portion of the Purchase Price and other funds sufficient to pay all Closing and other costs and all adjustments required to be paid by Buyer under this Agreement; (c) All documents reasonably requested by Title Company, Closing Agent or Seller; and (d) A certificate by Buyer that the representations and warranties of Buyer contained in Article 9 of this Agreement are true and accurate at and as of the Closing Date, except with respect to any Litigation of the type described in Section 9.2(c) that arises after the Effective Date. 12.4. At the Closing, both parties shall duly execute and deliver all other documents reasonably necessary to consummate the transaction described in this Agreement, including a closing statement setting forth the charges, adjustments and credits to each party. 12.5. At Closing, Closing Agent shall record, among all of the appropriate public records, all documents to be recorded, disburse all funds, and deliver all original documents and copies thereof, in accordance with the local custom then prevailing in the jurisdiction in which Closing occurs; provided, however, that disbursement of the funds due Seller shall be made no later than the time that the Title Company commits to issue a title insurance policy showing the transfer of title to Buyer. ARTICLE 13. Costs. Taxes and Adjustments. 13.1. At Closing, Seller shall pay (a) the costs of releasing all liens, judgments and other encumbrances that are to be released and of recording such releases, (b) one-half of the fees and costs due Closing Agent for its services, and (c) all other costs to be paid by Seller under the provisions of this Agreement. Seller shall be responsible for the payment of its own attorneys' fees. 13.2. At Closing, Buyer shall pay (a) all costs of securing financing for the purchase of the Property, including preparation of all documentation relating thereto, (b) one-half REAL: 3671_5; 1331 B2338.41 15 of the fees and costs due Closing Agent for its services, (c) all other costs to be paid by Buyer under the provisions of this Agreement, and (d) all other costs connected with Closing except as otherwise provided in Section 13.1 or 13.3. Buyer shall be responsible for the payment of its own attorneys' fees. 13.3. The cost of all grantor, grantee, transfer, recordation, documentary, deed, sales, and similar taxes, stamps and charges, title examination and the issuance of a title insurance policy, and all other costs of Closing shall be paid by Seller or Buyer in accordance with the custom or statutory requirements in effect in the jurisdiction in which the Property is located as of the Effective Date. Seller and Buyer shall specify, in Part I, their agreement as to such custom and requirements with regard to the allocation of such costs between them. If, however, Part I does not address one or more of such costs (other than income taxes) necessary to consummate Closing, then such costs shall be paid one-half (1/2) by Seller and one-half (1/2) by Buyer. 13.4. Subject to the following provisions and without affecting the Purchase Price, all items of income and expense relating to the Property shall be apportioned between Buyer and Seller on an accrual basis, as of 12:01 a.m. (local time at the Property) on the Closing Date (the "Adjustment Time"), in the form of a cash payment by or credit to Buyer at Closing (it being understood and agreed that none of said items is included within the Purchase Price): (a) Real estate taxes and assessments, personal property taxes, water or sewer charges not based upon consumption, and other governmental charges based upon the Property per se (collectively, "Taxes") shall be adjusted on an accrual basis regardless of when the same are due and payable. If the amount of any Taxes for an Accounting Period in which the Adjustment Time occurs is not available at Closing, then (i) such Taxes shall be adjusted preliminarily, by payment or credit at Closing, based upon the amount thereof for the then immediately preceding Accounting Period, and (ii) such Taxes shall be adjusted finally, under the following provisions, once the amount thereof becomes available for the Accounting Period in which the Adjustment Time occurs. All assessments for public improvements shall be adjusted as aforesaid with respect to the period of time over which such assessments are then being paid ( such assessments shall not be prepaid). (b) Seller shall be credited at Closing with the amount of any and all deposits held on behalf of Seller by utility companies with respect to the Property. Except as otherwise provided in the foregoing provisions of this Section 13.4, if the amount of any item to be adjusted is not available at Closing or if an item of income or expense arises or becomes known after Closing that relates to the period before the Adjustment Time, then the foregoing adjustment shall be made with respect thereto by payment by Buyer or Seller, as applicable, promptly after the amount thereof becomes available or known. An "Accounting Period" is the period for or over which the applicable amount is measured or assessed. Renu3671 51 133'1 B2338.41 16 ARTICLE 14. Default. 14.1. Buyer's Default. 6- (a) If Buyer fails to perform one or more of its obligations under Article 12 or 13 that are to be performed at Closing, then Seller's sole remedy for such default shall be to terminate this Agreement by giving notice of such termination to Buyer (with a copy to Closing Agent). If Seller does so terminate this Agreement, then Closing Agent is hereby instructed to pay the Deposit to Seller in accordance with Exhibit "J". (b) If Buyer fails to perform any of Buyer's obligations under this Agreement other than those set forth in Article 12 or 13, then Seller may give notice to Buyer (with a copy to Closing Agent) specifying the nature of the default. Buyer shall have thirty (30) days after receiving such notice, but in no event beyond the Closing Date, within which to cure the default. If Buyer fails to cure the default within that period, then Seller shall have the right, exercisable only by giving notice to Buyer (with a copy to Closing Agent) within thirty (30) days thereafter, to terminate this Agreement. If Seller duly exercises that right, then Closing Agent is hereby instructed to pay the Deposit to Seller in accordance with Exhibit "J". If Seller has the right to terminate this Agreement under the foregoing provisions of this Section 14.1(b) and the Closing Date would otherwise occur during the foregoing thirty (30)-day termination period, then Seller may extend the Closing Date to a date that is within thirty (30) days after said termination period. (c) SELLER AND BUYER AGREE THAT PAYMENT OF THE DEPOSIT TO SELLER UNDER THIS SECTION 14.1 SHALL BE AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. Buyer is directed to the provisions of Article 27 concerning such payment of the Deposit. 14.2. Seller's Default. If Buyer tenders to Closing Agent the Cash Portion of the Purchase Price and the other moneys and the documents required of Buyer at Closing but Seller fails to perform one or more of its obligations under Article 12 or 13 that are to be performed at Closing, or if Seller shall otherwise be in material default of any of Seller's obligations under this Agreement that are to be performed at or before Closing, then Buyer shall give notice to Seller (with a copy to Closing Agent) within fifteen (15) days thereafter specifying the nature of the default. Seller shall have ten (10) days after receiving such notice within which to cure the specified default. If Seller fails to cure the default within the applicable period, then Buyer shall have the right, exercisable only by giving notice to Seller (with a copy to Closing Agent) within fifteen (15) days after the applicable period, to terminate this Agreement. If Buyer duly gives Seller a notice of termination hereunder, then (a) Closing Agent is hereby instructed to return the Deposit to Buyer in accordance with Exhibit "J", and (b) Buyer may seek actual damages against Seller with respect to the default. If Seller timely cures the default or if the default is treated as waived, then the Closing Date shall be the later of a date selected by Seller (which date shall be within ten (10) days after such cure or waiver) or the date that would otherwise be the Closing Date under the terms of this Agreement. 14.3. Attendance at Closine. Neither Buyer's nor Seller's attendance or appearance at Closing shall affect the foregoing provisions of this Article. REAL:3671 5; 1331 B2338.41 17 14.4. Attorneys' Fees. Attorneys' fees and costs incurred by any party seeking to enforce the provisions of this Agreement (whether incurred in preparation for or in pursuit of litigation, or both) shall be paid by the losing party. ARTICLE 15. Liability of Seller and Related Persons. Notwithstanding any provisions to the contrary contained in this Agreement, Seller shall have no personal liability with regard to this Agreement or the transaction described in this Agreement. If Buyer asserts any Claim arising out of or in connection with this Agreement or the transaction described in this Agreement, Buyer's sole recourse shall be to the estate and interest of Seller in and to the Property. No other properties or assets of Seller shall be subject to levy, attachment, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) or for the satisfaction of any other remedy of Buyer arising out of or in connection with this Agreement or the transaction described in this Agreement. Neither the Resolution Trust Corporation in its corporate or any other capacity nor any of its or Seller's employees, officers, directors, agents, contractors or affiliates shall have any liability or obligation whatsoever in connection with this Agreement. ARTICLE 16. Condemnation. 16.1. If Seller has or obtains actual knowledge of any pending or threatened condemnation proceedings or actions, then Seller shall notify Buyer promptly. If on or prior to the Closing Date material access to, or more than ten percent (10%) of, the Property shall be taken or condemned pursuant to any governmental or other power of eminent domain, any written notice of such a taking or condemnation shall be issued by any governmental authority having the power of eminent domain, or any proceeding for such a taking or condemnation shall be instituted by any governmental authority having the power of eminent domain (collectively, "Taking"), then Buyer shall have the right, exercisable only by giving notice to Seller (with a copy to Closing Agent) within twenty (20) days after receiving Seller's notice of the Taking, to terminate this Agreement. If Buyer duly exercises that right, then Closing Agent is hereby instructed to return the Deposit to Buyer in accordance with Exhibit "J" as Buyer's sole remedy. If Buyer does not duly exercise that right, then Buyer shall have no further right to object to the Taking. If Buyer shall not have the right to terminate this Agreement under the foregoing provisions of this Section on account of a Taking or if Buyer shall have waived any objection (or shall have no further right to object) to a Taking under those provisions, then, at Closing (a) Buyer shall accept the Property subject to the Taking, (b) the Purchase Price shall be reduced by the amount of any award theretofore received by Seller with respect to the Taking, and (c) Seller shall assign to Buyer all of Seller's rights to any and all awards not theretofore made or paid with respect to the Taking. 16.2. Notwithstanding the foregoing provisions of this Article, if the amount of the award that is payable or reasonably anticipated on account of a Taking exceeds the Purchase Price, then Seller shall have the right, exercisable only by giving notice to Buyer (with a copy to Closing Agent) within twenty (20) days after Seller is notified of that amount or anticipated amount. to terminate this Agreement. If Seller duly exercises that right, then Closing Agent is hereby instructed to return the Deposit to Buyer in accordance with Exhibit "J". 16.3. If a period described in the foregoing provisions of this Article becomes applicable and the Closing Date would otherwise occur during such period, then the Closing Date _ REnL:3671 511331 B233&41 18 shall be extended to be a date selected by Seller. Such new Closing Date shall be within thirty (30) days after the applicable period(s). ARTICLE 17. Risk of Loss, Casualty. No loss, destruction or damage of or to any improvements upon the Property prior to Closing shall affect Buyer's duty to close, the Closing Date, or the Purchase Price. ARTICLE 18. Brokers. Buyer represents and warrants to Seller that Buyer has not dealt with any real estate broker, agent or finder in connection with the transaction described in this Agreement, except the Broker. Seller shall pay, upon completion of Closing and recordation of the Deed, pursuant to the terms of a separate agreement between Seller and Broker, the Broker's commission due in connection with the transaction described in this Agreement. Buyer shall defend, indemnify and hold harmless Seller from and against any and all Claims that may be asserted against or incurred by Seller and arise from or pertain to any brokerage commissions, fees, costs or other expenses that may be due to or claimed by any brokers, agents or finders (except the Broker) with whom Buyer has dealt or is claimed to have dealt. ARTICLE 19. Survival. 19.1. None of the provisions of this Agreement shall survive Closing except Section 7.5, Section 9.1(a), (b), (c), (d), (f), (g), (i), (k), and (1), Section 9.2(e), Article 10, Section 13.4 insofar as it relates to adjustments to be made after Closing, Article 18, and the provisions limiting the liability of Seller or of persons or entities related to Seller. 19.2. Upon any termination of this Agreement in accordance with its terms, Seller and Buyer shall each be relieved from all further obligations and liability under this Agreement, at law or in equity, except that (a) Section 7.3, Section 7.5, Section 7.6, Article 8, Article 18, the provisions limiting the liability of Seller or of persons or entities related to Seller, and the Confidentiality Agreement referenced in Exhibit "E" shall survive any such termination, (b) Seller and Buyer shall remain obligated to instruct the Closing Agent to deliver the Deposit in accordance with the provisions of this Agreement, and (c) subject to the provisions of Article 14 and those cited in clause (a) of this sentence, each party shall remain liable for any breaches on its part that shall have occurred prior to such termination. ARTICLE 20. Assignments of this Agreement or of Buyer. 20.1. Buyer shall not assign or transfer this Agreement, or any interest in this Agreement, without the prior written consent of Seller. Seller may require, as a condition of such consent, that Seller (a) have a right to approve the instrument of assignment or transfer prior to the execution thereof, and/or (b) receive any and all amounts paid by an assignee or transferee, directly or indirectly, to Buyer, as consideration for such assignment or transfer. No permitted assignment or transfer shall relieve Buyer of any of its liabilities or obligations under this Agreement. Furthermore, no permitted assignment or transfer shall be valid'unless and until Seller shall have received a true and complete copy of the instrument of assignment or transfer, together with the name and address of the assignee or transferee. Notwithstanding any consent aEAL:3671 5'1I33'1B2338.41 19 by Seller to any assignment or transfer of this Agreement, no assignee or transferee shall assign or transfer this Agreement without Seller's prior written consent hereunder in each instance. 20.2. Any assignment or transfer, directly or indirectly, of the following shall constitute an assignment of this Agreement and, as such, shall be subject to the provisions of Section 20.1, unless the transferee was theretofor an Affiliate of Buyer: (a) if Buyer is a partnership, a total of the majority of the general partnership interests in Buyer, (b) if Buyer is a Publicly Held corporation, partnership or trust, ownership or control of a total of more than five percent (5%) of the equity or beneficial interests in Buyer to a single person or entity or to Affiliates of that person or entity, or (c) if Buyer is not a Publicly Held corporation, partnership or trust, ownership or control of a total of more than thirty percent (30%) of the equity or beneficial interests in Buyer. 20.3. Seller may grant or withhold its consent under this Article in Seller's sole and absolute discretion. 20.4. Notwithstanding anything else contained in this Agreement to the contrary, any assignment or transfer, directly or indirectly, of this Agreement, or of any capital stock, partnership interest, or beneficial interest in or to Buyer, to a Prohibited Buyer is expressly prohibited. Furthermore, no Prohibited Buyer may become a director, officer or trustee of Buyer. ARTICLE 21. Notices. 21.1. All notices, waivers, demands, requests and other communications required or permitted by this Agreement (collectively, "Notices") shall be in writing and given as follows by (a) personal delivery, (b) established overnight commercial courier with delivery charges prepaid or duly charged, or (c) registered or certified mail, return receipt requested, first class postage prepaid. All Notices shall be addressed to the applicable addresses for Seller, Buyer and Closing Agent set forth below their respective signatures, or to any other address or addressee as any party entitled to receive Notices under this Agreement shall designate, from time to time, by Notice given to the others in the manner provided in this Article. 21.2. Notices so given by personal delivery shall be presumed to have been received upon tender to the applicable natural person designated below to receive notices or, in the absence of such a designation, upon tender to the person signing this Agreement on behalf of the applicable party. Notices so given by overnight courier shall be presumed to have been received the next business day after delivery to such overnight commercial courier. Notices so given by mail shall be presumed to have been received on the second (2nd) day after deposit into the United States Postal System. All copies to the applicable persons or entity(ies) designated below to receive copies shall be given in the same manner as the original Notice, and such giving shall be a prerequisite to the effectiveness of any Notice. ARTICLE 22. Time of the Essence. TIME IS OF THE ESSENCE WITH RESPECT TO EACH PROVISION OF THIS AGREEMENT. REAL:3671 5'1133;B2338.41 20 ARTICLE 23. Miscellaneous. 23.1. Right to Waive Conditions. Either party may waive any of the provisions of this Agreement made for such parry's benefit, provided that such waiver is in writing and signed by the waiving party. 23.2. Binding Effect. Subject to the limitations set forth in Article 20 of this Agreement, all of the provisions of this Agreement shall be binding upon, and inure to the benefit of, the applicable parties and their respective heirs, legal representatives, successors and assigns. 23.3. Intentionally Omitted. 23.4. Partial Invalidity. If any provision of this Agreement, or the application thereof to any person or circumstance, shall be invalid or unenforceable, at any time or to any extent, then the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby. Each provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 23.5. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the Property. There are no promises, agreements, conditions, undertakings, understandings, warranties, covenants or representations, oral or written, express or implied, between them with respect to the Property, this Agreement, or the transaction described in this Agreement, except as set forth in this Agreement. 23.6. Modifications. This Agreement may not be modified orally or in any manner, except by an agreement in writing signed by Seller and Buyer (or their respective successors in interest) and, if and to the extent Closing Agent is to be bound thereby under Article 24, by Closing Agent. 23.7. No Recordation. Neither Seller nor Buyer shall be entitled to record this Agreement or a memorandum or other notice of this Agreement among the land records or other public records of the jurisdiction in which the Property is located. This Section is a specific directive to the officials of such jurisdiction NOT to record this Agreement or a memorandum or other notice of this Agreement. 23.8. Further Assurances. In addition to the obligations required to be performed under this Agreement by Seller and Buyer, Seller and Buyer shall perform, at Closing or from time to time thereafter, such other acts, and shall execute, acknowledge and/or deliver such other instruments, documents and other materials, as may be reasonably required in order to consummate the transaction described in this Agreement. However, Seller need not satisfy or comply with any condition or requirement that may be imposed by any title insurance company other than the Title Company. 23.9. Up -Dates. If after the Effective Date Seller receives any actual written notice specifically concerning the Property from any governmental or judicial authority, then Seller shall provide Buyer a true and complete copy thereof promptly. RE.aL.3671_511331B2338.41 21 23.10. Headings. The headings used in this Agreement are for reference and convenience only, and shall not enter into the interpretation of this Agreement. 23.11. Attorneys' Fees. Whenever in this Agreement provision is made for the payment of attorneys' fees, such provision shall mean reasonable attorneys' fees. 23.12. Plurality and Gender. Wherever in this Agreement the singular number is used, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and vice versa, as the context shall require. 23.13. Exhibits. All Exhibits to this Agreement shall be treated as incorporated herein by reference and made a material part hereof. 23.14. Definitions. All capitalized terms used in this Agreement are defined in the respective Part, Article or Section listed in the Index to Defined Terms. 23.15. Rule of Construction. Buyer and Seller have each read and fully understand the terms of this Agreement, and each has had the opportunity to have this Agreement reviewed by its own counsel. The rule of construction providing that ambiguities in an agreement shall be construed against the parry drafting the same shall not apply. 23.16. Scope of Releases. In this Agreement, whenever Buyer releases Seller from any Claims or from further obligation or liability, such release includes a release of Seller and of Seller's predecessors in interest, and of the agents, employees, contractors, officers, directors, and representatives of Seller's predecessors in interest. In this Agreement, whenever Seller releases Buyer from any Claims or from further obligation or liability, such release includes a release of Buyer and of Buyer's Representatives. 23.17. Governing Law. All questions with respect to the construction of this Agreement and the rights and liabilities of the parties under this Agreement shall be determined in accordance with the laws of the jurisdiction in which the Property is located, without regard to the application of choice of law principles, except to the extent that such laws are superseded by federal law. ARTICLE 24. Provisions with Respect to the Closing Agent. Closing Agent is signing this Agreement for the sole purposes of acknowledging, accepting, and agreeing to perform, Closing Agent's responsibilities under this Agreement, including those set forth in Exhibit "J". Closing Agent shall not demand any releases or indemnities, or impose any other requirements or conditions, with respect to such performance except as set forth in this Agreement. Closing Agent's rights or responsibilities may be modified only by a written amendment to this Agreement signed by Closing Agent as well as by Seller and Buyer. Any amendment to this Agreement that is not signed by Closing Agent shall be effective as to the parties to such amendment, but shall not be binding upon Closing Agent. REAL:3671 5;133;B2338.41 22 ARTICLE 25. Specific Provisions Required by the Jurisdiction in Which the Property is Located. Specific provisions (if any) relating solely to the jurisdiction in which the Property is located are attached as Exhibit "K" and made a part of this Agreement. ARTICLE 26. Execution and Delivery. Buyer is executing this Agreement first and delivering it to Seller. If item 5, 7 or 8 of Part I is not completed at the time of Buyer's execution, then Seller is authorized to complete such item, and the completions so made by Seller shall be a part of this Agreement, just as though they had been made prior to Buyer's execution of this Agreement. ARTICLE 27. Liquidated Damages Provision. SELLER AND BUYER AGREE THAT PAYMENT OF THE DEPOSIT TO SELLER UNDER SECTION 14.1 SHALL BE AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, THAT ACTUAL DAMAGES RESULTING TO SELLER FROM BUYER'S BREACH OF THIS AGREEMENT WOULD BE DIFFICULT OR IMPOSSIBLE TO MEASURE BECAUSE OF THE UNCERTAINTIES OF THE REAL ESTATE MARKET AND FLUCTUATIONS OF PROPERTY VALUES AND DIFFERENCES WITH RESPECT THERETO, AND THAT THE DEPOSIT IS A REASONABLE ESTIMATE OF WHAT THOSE DAMAGES WOULD BE. CLOSING AGENT SHALL DELIVER THE DEPOSIT TO SELLER PROMPTLY UPON RECEIVING WRITTEN NOTICE FROM SELLER THAT BUYER IS IN DEFAULT BEYOND THE APPLICABLE CURE PERIOD (IF ANY), THAT THE PROVISIONS OF SECTION 14.1 APPLY, AND THAT SELLER HAS ELECTED TO RECEIVE THE DEPOSIT HEREUNDER. BUYER HEREBY RELEASES CLOSING AGENT FROM ALL LIABILITY TO BUYER FOR COE WITH THE PROVISIONS OF SECTION 14.1. MP�C`6f1 Buyer's initials as to Article 27 Seller's initials as to Article 27 ARTICLE 28. Cooperation Regarding Use of Flood Water Evacuation System. Buyer agrees to reasonably cooperate with Seller at the time of the public hearing, which cooperation shall include cooperating with and not opposing Seller at the public hearing, on the subdivision or development agreement coordination by the City of La Quinta of Seller's tie into the proposed flood water evacuation system that is contemplated to be located on the Property following acquisition of the Property by Buyer pursuant hereto ("Evacuation System") from certain property owned by Seller that is adjacent to the Property, subject to payment for the costs of any necessary oversizing of the Evacuation System. In furtherance of the foregoing and concurrently with the execution of this Agreement, (a) Buyer hereby covenants to execute and deliver to Seller, and to cause the City of La Quinta to execute and deliver to Seller, that certain Public Improvement Agreement in the form attached hereto as Exhibit "L" and incorporated herein by this reference ("Public Improvement Agreement"), and to enact and to cause the City of La Quinta to enact resolutions substantially in the form attached hereto as Exhibit "L", and (b) Seller hereby covenants to execute and deliver to Buyer the Public Improvement Agreement. _ REAL: 3671 51 133 1132338.41 23 IN WITNESS WHEREOF, Buyer has signed and delivered this Agreement as its own free act and deed. ATTEST: BUYER: LA QUINTA REDEVELOPMENT AGENCY a public body, corporate and politic Executive Director APPROVED AS TO FORM AND LEGAL CONTENT: STRADLING, YOCCA, CARLSON & RAUTH, a professional corporation By: Agenc ounsel APPROVED AS TO PROGRAM: By: Address for Notices to Buyer: La Quinta Redevelopment Agency 48-495 Calle Tampico La Quinta, California 92253 Attention: Executive Director with a copy to Mark Huebsch, Esq. Stradling, Yocca, Carlson & Rauth 660 Newport Center Drive, #1600 Newport Beach, California 92660 [SIGNATURE PAGES FOLLOW] REAL:3671 5; 1331 B2338.41 24 IN WITNESS WHEREOF, Seller has signed and delivered this Agreement as its own free act and deed. Witn /Attest: �- Address for Notices to Seller: S. Chevis Hosea Resolution Trust Corporation Post Office Box 1000 La Quinta, California 92253 with a copy to SELLER: LANDMARK LAND COMPANY OF CALIFORNIA, INC., a Delaware corporation N By: 4 l% .�—.r 9 /-- ". - — Print: a rhovia 11n(on Title: Vice Pxe6.i.dent Date: January 3, 1994 Don Tanahill, President Landmark Real Estate Company Post Office Box 840 La Quinta, California 92253 [SIGNATURE PAGE FOLLOWS] REAL 3671_5'1 1331 B2338.41 25 IN WITNESS WHEREOF, Closing Agent has signed this Agreement for the limited purposes set forth in Article 24 of Part II. Witness/Attest: CLOSING AGENT: DIXIE ESCROW By: _ Print: Title: Date: Address for Notices to Closing Agent: Attention: with a copy to Attention: REAL:3671 5; 133; B2338.41 26 Exhibit "A" (Description of the Property) REAL: 3671 5;1331B2 W41 A-1 Exhibit "A" (Description of the Property) LFGA.Tr AUGEfTloly The land referred to in this report is situated ht the State of Calfrnia, County of Riverside, City of La Qulnta and is described as follows: PARM1 L A: Parcel 3 of Parcel Map No. 19730, as shown by Parcel Map on file to Book 122, Pages 89 and 90 of Parcel Maps, Records of Riverside County, California. ?ARCEX R: Tlrtrt pnrrion of the Northwest quarter of Section 6, Township 5 South, Range 7 East, San Bernardino Base and Aleridian,.according to United States Government Survey thereof, more particularly described as follows: Beginning at the Southeast corner of the said Northwest quarter of said Section 6; Thence South 89°53120" West, and along the Southerly line of the said Northwest quarter hvel ve-hundred eighty- six and hmnly hundredths (2286.20) feet, Thence North 00°05140" Nest, fifty and no hundredths (50.00) feet, to the Point of True Beginning; Thence continuing North 00"05140" West, four hundred thirty-four and ninety j7ve hundrediks (434.95) feet; Tlietrce south 89°53'20" West, two hundred and no hundredths (200.00) feet; Thence 00°05'40" ,East, four hundred thirty four and ninety-five hundredths (434.95) feet; Thence North 89°53120" ,East, two hundred and no hundredths (200,00) feet, more or kss, to the Trite Polrtt of Beginning and containing 2.00 acres; P4 6 CAL C4 Tltal portlon of the Northwest quarter of Section 6, Townsh 1p 6 South, Range 7 Base, San Bernar tfirto Base and Meridian, according to UnU d Slags Government Survey thereof, described as follows: Commencing at the Southeast corner of the Northwest quarter of said Section; T/rerice North 89°53120" West on she South line of the Northwest quarter of said Section, 82$.9S feet, to the Trite Point of Begirtlting; r1rence North, parallel with the East line of said Northwest quarter, 3,55 feet, to a point on the South line of Parcel 3 of Parcel Map No. 19730, as shown by map on,ftle in ,Book 122, Pages 89 and 90 of Parcel ,1?aps, Records,. of Rtverside County, California; Thence West, along said South line 16S feet, more or less, to a point on the West line of the East 30 acres of the Southeast quarter of the Northwest quarter of said Section; Thence voutintiing Wo# along said South line 300 feer, Thennce South at a right angle, 3SS feet to the South line of said Northwest quarter; Thence East on the South line of said Northwest quarter, 300 feet to a point on the West line of the .East 30 acres of the Southeast quarter of the Northwest quarter of said Section; Thence continuing East on the South line of said Northwest quarter, 165 feet, more or less, to the True Point of llegl,u:lnq; Excepting therefrom the Southerly 50.00 fact thereof. REAL:3671 5'1 133 1 B2338.41 A- I Exhibit 'B" (Intentionally Omitted) Califomia Sm derd Fonn Seller Finmcing Addendum(Unmproved Land) REAL:3671_5I 133 1 B2338.41 B-] Prepared 02/12/93 Exhibit "C" (Property Information Materials) RE.AL:3671 51133:B2338.41 California Standard Fonn Seller Financing Addendwn(Unmproved Land) Prepared 02/12/93 Exhibit "E" CONFIDENTIALITY AGREEMENT FOR REVIEW OF ASSETS THIS CONFIDENTIALITY AGREEMENT FOR REVIEW OF ASSETS ("Agreement") is made for the benefit of the RESOLUTION TRUST CORPORATION, acting in its capacity as conservator or receiver of various savings and loan institutions or subsidiaries of such institutions ("RTC"), by the undersigned party ("Receiving Party"). NOW, THEREFORE, in consideration of the privileges granted to Receiving Party with respect to receiving certain confidential information, and for other good and valuable consideration, Receiving Party hereby agrees with the RTC as follows: Section l: Sale of Assets: Confidential Materials The RTC is considering selling certain assets (individually, "Asset" and collectively, "Assets"). Receiving Party has requested from the RTC information for one or more of the Assets ("Property Information"), and the RTC is willing to provide Receiving Party with the requested Property Information for Receiving Party's use; provided that Receiving Party executes and delivers this Agreement as a condition to the release of the Property Information to Receiving Party. The Property Information contains documents, reports and other confidential and/or proprietary information in the RTC's possession (collectively, "Confidential Materials") with respect to the Asset or Assets to which it pertains; as well as information available in public records, information that is or becomes generally available to the public because of release by the RTC or information that must be released pursuant to applicable law or a valid, final judicial or administrative order. Section 2: Inspection of the Confidential Materials. The Confidential Materials shall be received for use by Receiving Party only in accordance with the following procedures: (a) Receiving Parry shall keep the Confidential Materials confidential and shall use the Confidential Materials solely for the purposes of (i) evaluating the suitability of an Asset for purchase, and/or (ii) interesting a prospective buyer in one of the Assets, and for no other purposes. Except to the extent required by applicable law, Receiving Party shall not disclose the Confidential Materials to any person other than directors, officers, partners, employees, agents, contractors, advisors, accountants, attorneys, consultants, bankers, financial advisors and clients of Receiving Party or its affiliates (collectively, "Representatives") and may only disclose the Confidential Materials to Representatives on a "need to know" basis. Prior to receipt of any Confidential Materials, Receiving Party shall require its Representatives to agree to be bound by the terms of this Agreement. Receiving Party shall be responsible for any breach of this Agreement by any of its Representatives or by any other party receiving Confidential Materials from or through Receiving Party. (b) Neither Receiving Party nor its Representatives shall make any reproduction of Confidential Materials (other than handwritten summaries or notes or self -generated computer rtccunf.fmi RTC STANDARD FORM CONFIDENTIALITY AGREEMENT Ver. LO REAL:3671 511331B2338.41 E-1 December4, 1991 records) except for the express purposes of evaluating an Asset for purchase or interesting a prospective buyer in such Asset. Section 3: No Representations or Warranties. Receiving Party acknowledges and understands that the Property Information may have been prepared by parties other than the RTC and that the RTC makes no representation or warranty whatsoever, express or implied, with respect to the content, completeness or accuracy of the Property Information. Receiving Party hereby releases the RTC acting in its corporate or any other capacity, and the RTC's agents, brokers, employees, contractors, officers, directors, and representatives, from all claims, demands, causes of action, judgments, losses, damages, liabilities, costs or expenses (including attorneys' fees whether suit is instituted or not) (collectively, "Claims") asserted against or incurred by Receiving Party by reason of the information contained in, or that should have been contained in, the Property Information. Section 4: Indemnification. Receiving Party shall defend, indemnify and hold harmless the RTC from and against any and all Claims asserted against or incurred by the RTC as a result of any violation of, or failure to comply with, the provisions of this Agreement by Receiving Party or its Representatives. Section 5: Default If the RTC determines that Receiving Party has defaulted under or has breached any provision of this Agreement, the RTC may, in its sole and absolute discretion, refuse to consider an offer to purchase from Receiving Party (or any client of Receiving Party) on any Asset or to allow Receiving Parry to purchase any other assets offered for sale by the RTC. The RTC also may notify the Federal Deposit Insurance Corporation of Receiving Party's breach or default. The rights and remedies described in this Section 5 shall be available in addition to, not in lieu of, any other legal or equitable right or remedy to which the RTC is entitled on account of Receiving Party's default of any of the provisions of this Agreement, including, without limitation, the seeking of an injunction to prevent breaches of this Agreement and an order compelling specific performance of this Agreement. The RTC shall not be deemed to have waived any of its rights or remedies on account of its failure, delay or forbearance in exercising any such right or remedy in a particular instance. Section 6: Notices. All notices, waivers, demands, requests and other communications required or permitted by this Agreement (collectively, "Notices") shall be in writing and given as follows by (a) personal delivery, (b) established overnight commercial courier with delivery charges prepaid or duly charged, or (c) registered or certified mail, return receipt requested, first class postage prepaid: If to RTC: S. Chevis Hosea Resolution Trust Corporation Post Office Box 1000 La Quinta, California 92253 ncconf if RTC STANDARD FORM CONFIDENTIALITY AGREEMENT Ver. LO REAL:3671_5 1133 1 B2338.41 E-2 December4.1991 With a copy to: RESOLUTION TRUST CORPORATION Attention: Neil B. Van Winkle Assistant General Counsel Legal Division 4000 MacArthur Boulevard Newport Beach, California 92660 If to Receiving Party: La Quinta Redevelopment Agency 48-495 Calle Tampico La Quinta, California 92253 Attention: Executive Director With a copy to: Mark Huebsch, Esq. Stradling, Yocca, Carlson & Rauth 660 Newport Center Drive, #1600 Newport Beach, California 92660 or to any other address or addressee as any party entitled to receive Notices under this Agreement shall designate, from time to time, by Notice given to the others in the manner provided in this Section. Notices thus given by personal delivery shall be deemed to have been received upon tender to the applicable natural person named above. Notices thus given by overnight courier shall be deemed to have been received the next business day after delivery to such overnight commercial courier. Notices thus given by mail shall be deemed to have been received on the second (2nd) day after deposit into the United States Postal System. All copies to the applicable person(s) or entity(ies) designated above to receive copies shall be given in the same manner as the original Notice, and such giving shall be a prerequisite to the effectiveness of any Notice. Section 7: Legal Requirements. Receiving Party acknowledges that (i) the Confidential Materials are subject to the confidentiality provisions of 12 C.F.R. Part 309 and may contain customer information subject to the Right to Financial Privacy Act, and (ii) any unauthorized use of the Confidential Materials may result in the imposition of criminal penalties under 18 U.S.C. Section 641. Section 8: Termination. The restrictions in this Agreement shall terminate upon the purchase of any Asset by Receiving Party, solely with respect to the Asset acquired. Regardless of any purchase, however, any claim by the RTC based on (a) a breach of or default under any provision of this Agreement or (b) the indemnification in Section 4, which claim arose from events occurring prior to such purchase shall not be extinguished unless waived by the RTC in writing. The terms and conditions of this Agreement shall remain in full force and effect indefinitely with respect to any Assets not acquired by Receiving Party. ❑cconf.frm RTC STANDARD FORM CONFIDENTIALITY AGREEMENT Vcr. 1.0 REAL:3671_51 1331 B2338.41 E-3 December4. 1991 Section 9: Entire Agreement: Counterparts. (a) This Agreement represents the entire agreement between Receiving Party and the RTC relating to the receipt and use of any Confidential Materials Receiving Party may have obtained whether prior to or after the execution of this Agreement. (b) This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Section 10: Reliance by Managing Agents, Loan Sales Advisors and Similar Parties. All managing agents, loan sales advisors, employees, contractors, brokers or other representatives of the RTC shall be authorized to accept a copy of this Agreement executed by Receiving Party as a basis for allowing Receiving Party or its Representatives to receive the Confidential Materials. IN WITNESS WHEREOF, Receiving Party has signed and delivered this Agreement as its own free act and deed. WITNESS: Receiving Party: LA QUINTA REDEVELOPMENT AGENCY, a public body corporate and politic By: 11�cF , l . � 14cAi l Print Name: Robert L. Hunt Title: City Manager Executive Director Date: January 4, 1994 Mc 00f.f. RTC STANDARD FORM CONFIDENTIALITY AGREEMENT Ver. 1.0 REAL.3671 51 1331 B2338.41 E-4 December4. 1991 Exhibit "F" GRANT DEED (Deed) REAL:3671 5'11331B2338.41 F-I Exhibit "I" (Intentionally Omitted) REAL: 3671_51133'1B2338.41 I-1 Exhibit "J" (Provisions with Respect to Closing Agent) All terms used in this Exhibit shall have the same respective meanings as are set forth in the Purchase and Sale Agreement to which this Exhibit is attached. 1. If Seller notifies Closing Agent that Seller is entitled to the Deposit pursuant to the terms of the Agreement ("Seller's Notice"), then Closing Agent shall promptly give a copy of the Seller's Notice to Buyer. Buyer shall have twenty (20) days after Buyer's receipt of said copy to give notice to Closing Agent objecting to the release of the Deposit to Seller ("Buyer's Objection Notice"). If Closing Agent does not receive a Buyer's Objection Notice within said period, then Closing Agent shall pay the Deposit to Seller. If Closing Agent does receive a Buyer's Objection Notice within said period, then Closing Agent shall not release the Deposit except (a) in accordance with written instructions signed by both Buyer and Seller or a final order of a court of competent jurisdiction, or (b) by depositing the same in a court of competent jurisdiction in connection with an interpleader. 2. If Buyer notifies Closing Agent that Buyer is entitled to the Deposit pursuant to the terms of the Agreement ("Buyer's Notice"), then Closing Agent shall promptly give a copy of the Buyer's Notice to Seller. Seller shall have twenty (20) days after Seller's receipt of said copy to give notice to Closing Agent objecting to the release of the Deposit to Buyer ("Seller's Objection Notice"). If Closing Agent does not receive a Seller's Objection Notice within said period, then Closing Agent shall pay the Deposit to Buyer. If Closing Agent does receive a Seller's Objection Notice within said period, then Closing Agent shall not release the Deposit except (a) in accordance with written instructions signed by both Buyer and Seller or a final order of a court of competent jurisdiction, or (b) by depositing the same in a court of competent jurisdiction in connection with an interpleader. 3. Any failure on the part of Buyer to give a Buyer's Objection Notice, or any failure on the part of Seller to give a Seller's Objection Notice, within the applicable twenty (20)-day period shall serve only to direct the Closing Agent as aforesaid, but shall not serve as a waiver of any Claims or defenses the Buyer or the Seller may have against one another. 4. In performing its duties under the Agreement, Closing Agent may rely upon any Notices given to Closing Agent under the Agreement and reasonably believed by Closing Agent to be genuine and to have been signed and given by the proper party or parties. Closing Agent shall be under no duty to make any inquiry as to the form, genuineness, proper execution, or accuracy of any such Notice. 5. Closing Agent shall not be liable for any funds lost in connection with the take- over or failure of any bank or savings and loan wherein Closing Agent has deposited those funds. Closing Agent shall have sole discretion as to the type of account into which the funds are deposited so long as that account is insured by the F.D.I.C. Closing Agent shall have no obligation to split funds in multiple accounts to stay within F.D.I.C. insurance limits on each account. 6. Closing Agent shall not be liable for any action taken by Closing Agent in good faith and reasonably believed by Closing Agent to be authorized or within the rights or powers _ RFAL:3671 5',133'1B2338.41 J-1 conferred upon Closing Agent by the Agreement. Closing Agent may consult with an independent attorney of its own choice. Closing Agent shall have full and complete authorization and protection for any actions taken or suffered by Closing Agent in good faith and in accordance with the opinion of such attorney. 7. Closing Agent may resign from any further duties or obligations under the Agreement by giving notice of such resignation and of the date when the resignation shall take effect. Such date shall not be earlier than thirty (30) days after the giving of said notice. Furthermore, Seller may, with or without cause, in Seller's sole and absolute discretion, discharge Closing Agent at any time. If Closing Agent resigns or is discharged, Seller shall arrange for an independent person or entity, chosen by Seller in Seller's sole and absolute discretion ("New Closing Agent") to assume the duties of Closing Agent. The New Closing Agent shall execute an instrument evidencing its assumption of the duties of Closing Agent under the Agreement. Seller shall notify Buyer and Closing Agent promptly of the appointment of the New Closing Agent. Upon its receipt of such notice, Closing Agent shall deliver the Deposit to the New Closing Agent. If Closing Agent does not receive notice of the appointment of the New Closing Agent by the effective date of the Closing Agent's resignation, the Closing Agent shall deposit the Deposit with a court of competent jurisdiction. 8. If conflicting demands or notices are served upon the Closing Agent with respect to the Agreement within the applicable time limits set forth herein (if any), then Closing Agent (a) shall not comply with any of said demands or notices, and (b) may file a suit in interpleader in a court of competent jurisdiction and deposit the Deposit with that court pursuant to such filing. Under those circumstances, the Closing Agent shall not be liable for damages or injuries to Seller or Buyer or any other person for such failure to comply. Closing Agent shall continue to so refuse to comply with such conflicting demands or notices until either (a) the rights of claimants have been finally adjudicated by a court of competent jurisdiction, or (b) Buyer and Seller have resolved the conflict and have so notified Closing Agent. 9. Closing Agent's duties under the Agreement shall include the preparation and delivery of an estimated closing statement for approval by Buyer and Seller prior to the Closing, and delivery of a final closing statement after the Closing. Such closing statement shall include, in addition to the items generally included in such statements in accordance with the custom or statutory requirements in effect in the jurisdiction in which the Property is located, a detailed breakdown of each item of real estate taxes and assessments, personal property taxes, water or sewer charges not based upon consumption, and other governmental charges based upon the Property per se as reflected in the prorations calculated under Paragraph 13.4 of the Agreement. 10. Closing Agent's and New Closing Agent's respective fees for the performance of their respective duties under the Agreement shall be such amount as is negotiated by Seller and Closing Agent, or Seller and New Closing Agent, as the case may be. Buyer and Seller shall be jointly and severally liable for those fees and expenses. 11. Buyer and Seller shall, jointly and severally, defend, indemnify and hold harmless Closing Agent from and against all Claims asserted against or incurred by Closing Agent in connection with the performance of Closing Agent's duties under the Agreement, except any Claims that arise out of (a) any intentional misconduct of Closing Agent, or (b) any default with respect to Closing Agent's duties under the Agreement. Reau3671 51 133'1 B2338.41 J-2 All terms used in this Exhibit shall have the same respective meanings as are set forth in the Purchase and Sale Agreement to which this Exhibit is attached. Rewu3671-5;1331B2338.41 J-3 Exhibit "K" (Specific Provisions Relating to the Jurisdiction in which the Property is Located) Notwithstanding anything contained in this Agreement (to which this Exhibit is attached), the following provisions shall apply: For California: (a) The following is added to the Agreement: "BUYER ACKNOWLEDGES THAT, WITH RESPECT TO THE RELEASES OF SELLER AND CLOSING AGENT FROM LIABILITY, AS SET FORTH IN ARTICLE 5, SECTION 10.2, SECTION 23.16, ARTICLE 27, EXHIBIT ".I", AND ELSEWHERE IN THIS AGREEMENT, IT HAS BEEN ADVISED BY LEGAL COUNSEL, OR HAS BEEN ADVISED TO SEEK LEGAL COUNSEL AND HAS HAD ADEQUATE OPPORTUNITY TO DO SO, AND IS FAMILIAR WITH AND THEREBY WAIVES APPLICATION OF THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." AND INDICATES THAT FACT BY IINI�TIIAALLLING HERE: 1% Buyer's initials as to the immediately preceding paragraph" (b) If a California Land Title Association owner's title insurance policy is used, then, notwithstanding Section 12.2 of Part II or any other provision of the Agreement, Seller need not have any exception for unfiled mechanic's liens removed from that policy. 2. The following is added to the Agreement: "Possible Transfer of Property to RTC Corporate Prior to Closing. (a) The provisions of this paragraph 2 are applicable only if Seller is the Resolution Trust Corporation ("RTC") acting as receiver of a savings association. _ REAL: 3671 511331B2338.41 K-1 (b) Seller and Buyer acknowledge that Seller is an RTC receivership. Seller and Buyer further acknowledge that RTC may, in the ordinary course of receivership affairs, determine to terminate the Seller receivership ("Termination"). (c) In connection with a Termination or contemplated Termination, Seller may, at any time and without notice to or consent of Buyer, transfer all of Seller's right, title and interest in the Property and in this Agreement to RTC in its corporate capacity ("RTC Corporate"), subject to the following subparagraph (d). (d) In the event of such a transfer to RTC Corporate, RTC Corporate will succeed to all of Seller's right, title and interest and will take the Property subject to and assume all of Seller's duties, liabilities and obligations under this Agreement as fully as if RTC Corporate had been "Seller" under this Agreement at all times. (e) In the event of such a transfer to RTC Corporate, the term "Seller" shall be redefined under this Agreement to mean RTC Corporate, without need for amendment of this Agreement." 3. For Florida (a) Radon Disclosure. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to personnel who are exposed to it over time. Levels of radon gas that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from the county public health unit. This notice is given to Buyer pursuant to Section 404.056(8) of the Florida Statutes. (b) Closing Costs Disclosure. Upon closing the sale of the Property, additional costs may be demanded from the Buyer in the form of Closing costs. Such Closing costs items to be charged to the Buyer in this transaction shall include attorney's fees, Taxes, abstract charges, escrow fees, document stamps, recording fees, and other costs as set forth in Article 13 of the Agreement. In addition, if Buyer is obtaining Seller Financing or other financing in connection with this transaction, other Closing costs items to be charged to the Buyer may include premiums for title insurance, premiums for other insurance, survey charges, loan commitment fees and charges, mortgage transfer or service fees and costs, and possibly points and other charges connected with that financing. 4. For Louisiana (a) The term "Deposit" as used in this Agreement shall not constitute "Earnest money" or "earnest" as referred to in Article 2463 of the Louisiana Civil Code of 1870, as amended and revised. (b) The following is added to Article 3 of Part II of this Agreement: "The rights, remedies and consequences resulting from the Deposit or the giving of the Deposit shall be governed solely by the terms of this Agreement." REAL: 367i 511331B2338.41 K-2 (c) Section 10.1 of Part II of this Agreement is amended by adding the following immediately preceding the last sentence: "THE BUYER FURTHER DECLARES AND ACKNOWLEDGES THAT THE SELLER DOES NOT WARRANT THAT THE WITHIN CONVEYED PROPERTY IS FREE FROM REDHIBITORY OR LATENT DEFECTS OR VICES AND RELEASES THE SELLER OF ANY LIABILITY FOR REDHIBITORY OR LATENT DEFECTS OR VICES UNDER LOUISIANA CIVIL CODE ARTICLE 2520 (1870) THROUGH ARTICLE 2548 (1870). BUYER DECLARES AND ACKNOWLEDGES THAT IT DOES HEREBY WAIVE THE WARRANTY OF FITNESS FOR INTENDED PURPOSES, OR GUARANTEE AGAINST HIDDEN OR LATENT REDHIBITORY VICES UNDER LOUISIANA LAW, INCLUDING LOUISIANA CIVIL CODE ARTICLES 2520 (1870) THROUGH ARTICLE 2548 (1870), AND THAT WARRANTY IMPOSED BY LOUISIANA CIVIL CODE ARTICLE 2476, AND WAIVES ALL RIGHTS IN REDHIBITION PURSUANT TO LOUISIANA CIVIL CODE ARTICLE 2520, ET SEO. BUYER FURTHER DECLARES AND ACKNOWLEDGES THAT THIS EXPRESS WAIVER SHALL BE CONSIDERED A MATERIAL AND INTEGRAL PART OF THIS AGREEMENT AND THE CONSIDERATION THEREOF. BUYER FURTHER DECLARES AND ACKNOWLEDGES THAT THIS WAIVER HAS BEEN BROUGHT TO THE ATTENTION OF THE BUYER AND EXPLAINED IN DETAIL AND THAT BUYER HAS VOLUNTARILY AND KNOWINGLY CONSENTED TO THIS WAIVER OF WARRANTY OF FITNESS AND/OR WARRANTY AGAINST REDHIBITORY VICES AND DEFECTS FOR THE PROPERTY." (d) Section 12.2(a) of Part II of the Agreement is deleted in its entirety, and the following inserted in lieu thereof: "An Active Sale of Property in substantially the form of Exhibit "F", conveying fee title to the Real Property (or, if the Real Property consists of more than one parcel, such an instrument for each such parcel) ("Deed");" (e) The Exhibit "F" attached hereto is substituted for Exhibit "F" to the Agreement. REAL:3671 5'1 1331 E2338.41 K-3 Exhibit "F" (Form of Deed) UNITED STATES OF AMERICA* ACT OF SALE * BY * * RESOLUTION TRUST CORPORATION STATE OF LOUISIANA * (CONSERVATOR/RECEIVER OF) * s * * UNTO * PARISH OF BE IT KNOWN, that on the dates hereinafter set forth, BEFORE EACH OF US, the undersigned Notary Public, duly commissioned and qualified in and for the Parish and State hereinafter set forth, and in the presence of the undersigned and competent witnesses, PERSONALLY CAME AND APPEARED: whose address is authorized ("Seller") appearing herein through its , hereunto duly who declared that Seller does by these presence grant, bargain, sell, convey, transfer, assign, set over, abandon and deliver without any warranty whatsoever as to title or the merchantability of the title herein conveyed, even as to the return or reduction of purchase price, but with full substitution and subrogation in and to any and all rights and actions of warranty which Seller has or may have against all preceding owners and vendors unto a , whose address is ("Buyer") the following described property, to -wit: REAL: 3671 51 1331 B2338.41 K- "F" - 1 TO HAVE AND TO HOLD the above described property unto Buyer, Buyer's successors and assigns forever. This sale is made and accepted in and for the consideration of the price of ($ ) Dollars, cash, which Buyer has well and truly paid to said Seller, who hereby acknowledges the sufficiency and receipt thereof and grants full acquittance and discharge therefor. This sale is made subject to any servitudes, rights -of -way, or mineral servitudes and leases established by law or of record in the records of Parish, Louisiana, affecting the property hereby conveyed by Seller to Buyer. It is agreed that the immovable property herein conveyed and all improvements and component parts, all plumbing, electrical systems, built-in appliances, and all other items located thereon are conveyed by Seller and accepted by Buyer "AS IS, WHERE IS," without any warranty of any kind whatsoever, even as to the metes and bounds, zoning, operation or suitability of such property for the use intended by Buyer, and without regard to the presence of apparent or hidden defects and with Buyer's full and complete waiver of any and all rights for the return of all or any part of the purchase price by the reason of any such defects. Buyer acknowledges and declares that neither Seller nor any party, whomsoever, acting or purporting to act in any capacity whatsoever on behalf of Seller has made any direct, indirect, explicit or implicit statement, representation or declaration, whether by written or oral statement or otherwise, and upon which Buyer has relied, concerning the existence or non-existence of any quality, characteristic or condition of the property herein conveyed. Buyer has had full, complete and unlimited access to the property herein conveyed for all tests and inspections which Buyer, in its sole discretion, deems sufficiently diligent for the protection of its interests. Buyer expressly waives the warranty against eviction, warranty of fitness and the warranty against redhibitory vices and defects, whether apparent or latent, imposed by Louisiana Civil Code Article 2476, 2501, any other applicable state or federal law and the jurisprudence thereunder. Buyer also waives any rights it may have in redhibition or to a reduction of purchase price pursuant to Louisiana Civil Code Articles 2520 through 2548, inclusive, in connection with the property hereby conveyed to it by Seller. By its signature, Buyer expressly acknowledges all such waivers and its exercise of the Buyer's right to waive warranty pursuant to Louisiana Civil Code Article 2503. By reference to the tax researches annexed hereto, it appears that all Parish, City and Levee taxes up to and including those due on the said property for the year 199_, have been paid and payment of the same is warranted by Seller. Taxes for the current year have been prorated between Seller and Buyer as of the date hereof. The parties to this Act waive the production of mortgage and conveyance certificates and relieve and release the undersigned Notaries from all liability by reason thereof. STATE OF LOUISIANA PARISH OF REAL: 367I S; 1331 B2338.41 K- "F" - 2 THUS DONE and signed in the Parish of , State of Louisiana, in the presence of the undersigned competent witnesses, who have hereunto signed their names together with said Appearers and me, Notary, on the day of , 199_ WITNESSES: Name: Name: SELLER: By: _ Title: Notary Public RewL:3671_51133I B2338A1 K- "F" - 3 STATE OF LOUISIANA PARISH OF THUS DONE and signed in the Parish of , State of Louisiana, in the presence of the undersigned competent witnesses, who have hereunto signed their names together with said Appearers and me, Notary, on the day of , 199_ WITNESSES: BUYER: a of Name: By: Name: Title: Notary Public REAL: 3671 51133IB2338.41 K- 7" - 4 5. For Texas: (a) The following is added to the Agreement: "Notice is hereby given that the Real Property, or a portion thereof, may be located in a utility district of the type described in Section 50.301 of the Texas Water Code (a "Utility District"). If the Real Property, or a portion thereof, is located within a Utility District, Seller shall deliver to Buyer a written disclosure, in the form attached hereto as Exhibit "K - Texas No. 1" (the "Utility District Disclosure"). Buyer shall then have the right, exercisable only by giving notice to that effect to Seller (with a copy to Escrow Agent) within five (5) Business Days after Buyer's receipt of the Utility District Disclosure, to terminate this Agreement. If Buyer duly exercises that right, Closing Agent is hereby instructed to return the Deposit to Buyer promptly. If Buyer does not duly exercise that right to terminate this Agreement, then Buyer shall have elected to enter into a binding contract after having received the Utility District Disclosure in satisfaction of Section 50.301 of the Texas Water Code. Any unpaid standby fees shall be the responsibility of Buyer. Any taxes imposed pursuant to the Utility District for the current fiscal year in which the Closing occurs shall be adjusted between Seller and Buyer on a per diem basis." (b) (If applicable) The following is added to the Agreement: "Notice is hereby given that the Real Property, or a portion thereof, is located in a county that borders the Gulf of Mexico and Seller is delivering to Buyer the written disclosure attached hereto as Exhibit "K - Texas No. 2", receipt of which is hereby acknowledged by Buyer." (c) The following is added to the Agreement: "To the extent applicable and permitted by law (and without admitting such applicability), Buyer, as a material inducement to Seller to enter into this Agreement and the transactions contemplated herein, hereby waives the provisions of the Texas Deceptive Trade Practices -Consumer Protection Act, Chapter 17, Subchapter E, Sections 17.41 through 17.63, inclusive (other than Section 17.555, which is not waived), as well as the right to assert a claim under Chapter 27 of the Texas Business and Commerce Code or under any other similar statute or enactment. As a further material inducement to Seller to enter into this Agreement and the transactions contemplated herein, Buyer represents and warrants to Seller that Buyer is acquiring the Property for commercial or business use, has knowledge and experience in financial and business matters that enable Buyer to evaluate the merits and risks of the transactions herein contemplated, has bargained for and obtained a purchase price and other terms under this Agreement which make the acceptance of a contract which substantially limits its recourse against the Seller acceptable and has been and will continue to be represented by counsel in connection with the transactions contemplated herein." REAL: 3671 51 1331 B2338.41 K- "F" - 5 Exhibit "K - Texas No. 1" UTILITY DISTRICT DISCLOSURE STATEMENT This Utility District Disclosure Statement ("Utility District Disclosure") sets forth the form of written disclosure required by Section 50.301 of the Texas Water Code. By its terms that Section applies to real property located in a district which was created under this title i.e., Title 4 of the Texas Water Code, entitled "General Law Districts") or by special act of the legislature, which is providing or proposing to provide, as the district's principal function, water and sewer services, or either of these services to household users, and which, if located within the corporate area of the city, includes less than seventy-five percent (75%) of the incorporated area of the city or which is located outside the corporate area of a city in whole or in substantial part. The form of the written disclosure shall be as follows: The real property, described below, which you are about to purchase, is located in the District. The district has taxing authority separate from any other taxing authority, and may, subject to voter approval, issue an unlimited amount of bonds and levy an unlimited rate of tax in payment of such bonds. As of this date, the rate of taxes levied by the district on real property located in the district is $ on each $100 of assessed valuation. If the district has not yet levied taxes, the most recent projected rate of debt service tax, as of this date, is $ on each $100 of assessed valuation. The total amount of bonds which has been approved by the voters and which have been or may,at this date, be issued is $ , and the aggregate initial principal amounts of all bonds issued for one or more of the specified facilities of the district and payable in whole or in part from property taxes is $ The district also has the authority to adopt and impose a standby fee on property in the district that has water, sewer, sanitary, or drainage facilities and services available but not connected and which does not have a house, building, or other improvement located thereon and does not substantially utilize the utility capacity available to the property. The district may exercise the authority without holding an election on the matter. As of this date, the amount of the standby fee is $ . An unpaid standby fee is a personal obligation of the person that owned the property at the time of imposition and is secured by a lien on the property. Any person may request a certificate from the district stating the amount, if any, of unpaid standby fees on a tract of property in the district. The purpose of this district is to provide water, sewer, drainage, or flood control facilities and services within the district through the issuance of bonds payable in whole or in part from property taxes. The cost of these utility facilities is not included in the purchase price of the Property, and these utility facilities are owned or to be owned by the district. The legal description of the property which is located in the district is described on Schedule "A" attached hereto and made a part hereof. BUYER IS ADVISED THAT THE INFORMATION SHOWN ON THIS FORM IS SUBJECT TO CHANGE BY THE DISTRICT AT ANY TIME. THE REAL: 3671_511331 e2338.41 K - Texas No. 1, page 1 DISTRICT ROUTINELY ESTABLISHES TAX RATES DURING THE MONTHS OF SEPTEMBER THROUGH DECEMBER OF EACH YEAR, EFFECTIVE FOR THE YEAR IN WHICH THE TAX RATES ARE APPROVED BY THE DISTRICT. BUYER IS ADVISED TO CONTACT THE DISTRICT TO DETERMINE THE STATUS OF ANY CURRENT OR PROPOSED CHANGES TO THE INFORMATION SHOWN ON THIS FORM. NOTE: The correct district name, tax rate, bond amount, standby fee amount, and legal description are to be placed in the appropriate spaces. If the district does not propose to provide one or more of the specified facilities and services, the appropriate purpose may be eliminated. If the district has not yet levied taxes, a statement of the district's most recent projected rate of debt service tax, if any, is to be placed in the appropriate space. If the district does not have approval from the commission to adopt and impose a standby fee, the second paragraph of the notice may be deleted. REAL: 3671 _51 1331 B2338.41 K - Texas No. 1, page 2 Schedule "A" REAL: 3671_5 1133 1 e2338.41 K - Texas No. 1, page 3 Exhibit "K - Texas No. 2" COASTAL PROPERTY DISCLOSURE STATEMENT This Coastal Property Disclosure Statement ("Disclosure") sets forth the written disclosure required by Section 61.025 of the Texas Natural Resources Code if the Property is located seaward of the Gulf Intracoastal Waterway to its southernmost point and then seaward of the longitudinal line also known as 97 degrees, 12' 19" which runs southerly to the international boundary from the intersection of the centerline of the Gulf Intracoastal Waterway and the Brownsville Ship Channel. The Property, or portions thereof, as identified in the Agreement to which this Disclosure Statement is attached, is located seaward of the Gulf Intracoastal Waterway to its southernmost point and then seaward of the longitudinal line also known as 97 degrees, 12' 19" which runs southerly to the international boundary from the intersection of the centerline of the Gulf Intracoastal Waterway and the Brownsville Ship Channel. If the Property, or portions thereof, is in close proximity to a beach fronting the Gulf of Mexico, the Buyer is hereby advised that the public has acquired a right of use or easement to or over the area of any public beach by prescription, dedication, or presumption, or has retained a right by virtue of continuous right in the public since time immemorial, as recognized in law and custom. The extreme seaward boundary of natural vegetation that spreads continuously inland customarily marks the landward boundary of the public easement. If there is no clearly marked natural vegetation line, the landward boundary of the easement is as provided by Sections 61.016 and 61.017 Natural Resources Code. State law prohibits any obstruction, barrier, restraint, or interference with the use of the public easement, including placement of structures seaward of the landward boundary of the easement. STRUCTURES ERECTED SEAWARD OF THE VEGETATION LINE (OR OTHER APPLICABLE EASEMENT BOUNDARY) OR THAT BECOME SEAWARD OF THE VEGETATION LINE AS A RESULT OF NATURAL PROCESSES ARE SUBJECT TO A LAWSUIT BY THE STATE OF TEXAS TO REMOVE THE STRUCTURES. The Buyer is hereby notified that the Buyer should seek the advice of an attorney or other qualified person as to the relevance of these statutes and facts to the value of the Property the Buyer is hereby purchasing or contracting to purchase. REAL: 3671_5 1133 1 B2338.41 K - Texas No. 2, page 1 6. For Other States: No special provisions apply under this Exhibit to the following jurisdictions: (a) Alabama (b) Arkansas (c) Arizona (d) Colorado (e) Indiana (f) Maryland (g) Mississippi (h) Missouri (i) Ohio REAL:3671 511331B2338.41 K - 7 Exhibit "L" PUBLIC IMPROVEMENT AGREEMENT AND RESOLUTIONS aewL:3671 5I133'1B2338,41 L - 1 EXHIBIT "L" PUBLIC IMPROVEMENT AGREEMENT THIS PUBLIC IMPROVEMENT AGREEMENT is entered into this o2 / day of �e�ew der 1993, between the La Quinta Redevelopment Agency ("Agency"), the city of La Quinta ("City"), and Landmark Land Company of California, Inc., a Delaware corporation ("Landmark"). RECITALS WHEREAS, Agency and Landmark have entered into a Purchase and Sale Agreement dated as of -Tan . �, , 199�, f which Agreement provides for the conveyance of certain real property located in Project Area No. 1; and, WHEREAS, the subject property will be reconfigured into three parcels, one of which will be used for a future water detention basin and park. IN WITNESS WHEREOF, the parties hereto agree as follows: 1. The Agency, or its assignee, intends to construct a five acre, or larger, detention basin ("City Basin") on the subject parcel and dedicate it to the City of La Quinta for maintenance and operation. 2. The Agency, or its assignee, will construct a pump station that evacuates both nuisance water and storm water from the City Basin. 3. The pressure evacuation line that carries the detention water from the City -owned pump to the existing storm drain in Calle Tampico will be installed in Desert Club Drive. The pressure outfall line will enter the Desert Club Drive right-of-way somewhere in the northerly most 500 feet of Desert Club Drive, at a location to be determined solely by the City of La Quinta. Any and all costs and expenses for the construction of the pressure evacuation line will be the sole cost and expense of the City of La Quinta and/or Agency. 4. The Agency and City agrees that Landmark, or its assignee, at its expense, shall be entitled to hook-up a pressure evacuation line to the pressure evacuation line installed by the Agency. Landmark shall undertake the hook-up in accordance with general engineering practice. 5. At the time the design plans for the proposed pressure evacuation line are prepared, Landmark shall be given thirty (30) days prior written notice, to elect by written notice to the City that Landmark desires an increase in capacity of the evacuation line to allow for simultaneous drainage of the City Basin and Landmark property. The difference in the cost of the pipe required for the proposed pressure evacuation line and the increased capacity of the proposed pressure evacuation line as elected by Landmark in it's notice to the City shall be the cost and expense of Landmark. In the event such written notice is not received by the City Manager prior to the expiration of the thirty (30) day period, it shall be conclusively presumed that Landmark has elected not to increase the capacity of the line and therefore any drainage DOCTG.005 1 Public Improvement Agreement from the Landmark property shall be secondary and the pressure line shall be designed in such a manner that the City's Basin drainage has complete priority and drainage from the Landmark property is secondary to drainage of the City's Basin. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. CITY OF LA QUINTA a California Municipal Corporation Date: By: Me 4-, ayor ATTEST: /I City Clerk APPROVED AS TO FORM: City torney Dated: "CITY" LA QUINTA REDEVELOPMENT AGENCY a public body corporate and politic By: Chair "AGENCY" DOCTG.005 2 Public Improvement Agreement ATTEST: Agency Secretary APPROVED AS TO FORM: -C Age y Counsel LANDMARK LAND OF CALIFORNIA, INC. a Delaware corporation Dated: Jafl=U 3, 1994 By: Name: S. Chevis Hoaea Title: Vice Pne iden t "LANDMARK" DOCTG.005 3 IN WITNESS WHEREOF, Closing Agent has signed this Agreement for the limited purposes set forth in Article 24 of Part II. CLOSING AGENT: DIXIE ESCROW Witness/Attest: By: L�" Print: Carol Fellbaum Title: Escrow Office Date: January 28, 1994 Address for Notices to Closing Agent: Dixie Escrow Co., Inc. 78-451 Highway ill La Quinta, CA 9 253 Attention: Carol Fellbaum with a copy to Attention: REAL: 3671 5; 1331 B2338.41 26 AMENDMENT TO PURCHASE AND SALE AGREEMENT This is an amendment ("Amendment") to that certain PURCHASE AND SALE AGREEMENT ("Agreement") dated as of January 6, 1994, entered into by and between LANDMARK LAND COMPANY OF CALIFORNIA, INC., a Delaware corporation ("Seller"), whose address is Resolution Trust Corporation, Post Office Box 1000, La Quinta, California 92253 - Attention: Wayne E. Burger, Vice President, and LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Buyer"), whose address is 48-495 Calle Tampico, La Quinta, California 92253, Attention: Executive Director. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. The terms used in this Amendment shall be defined as set forth in the Agreement. Section numbers cited herein refer to sections of the Agreement. 2. Except as specifically set forth herein, the terms and conditions set forth in the Agreement shall remain in full force and effect. 3. PART I, Paragraph 2, shall be deleted in its entirety and replaced with a new PART I, Paragraph 2, as follows: 2. "Purchase Price" is One Million Two Hundred Twenty -Five Thousand Dollars ($1,225,000.00) 4. This Amendment shall additionally constitute amended escrow instruction. 5. This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one Amendment, binding on the parties hereto. DATED: ATTES B gency Secretary APPROVED AS TO PROGRAM: MN BUYER: LA QUINTA REDEVELOPMENT AGENCY, a public body corporate and politic BY: E`Lf7lcr �/ JL zc <� Executive Director (Signatures continued on next page) 1 SELLER: DATED: LANDMARK LAND COMPANY OF CALIFORNIA, INC., a Delaware Corporation WITNESS/ATTEST: BY: BY: Wayne E. Burger, Vice President.