EXHIBIT 10.29
PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
▇.▇. ▇▇▇▇▇▇▇▇▇▇ & SONS,
a California general partnership
as "Seller,"
and
EMULEX CORPORATION,
a California corporation,
as "Buyer"
TABLE OF CONTENTS
PAGE
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1. DEFINITIONS............................................................................................. 1
1.1 "Sale Land".................................................................................... 1
1.2 [Intentionally Deleted]........................................................................ 1
1.3 "Funds"........................................................................................ 1
1.4 "Improvements"................................................................................. 2
1.5 "Laws"......................................................................................... 2
1.6 "Liabilities".................................................................................. 2
1.7 "Property"..................................................................................... 2
1.8 "Personal Property"............................................................................ 2
1.9 "Closing Date," "Closing," "Close of Escrow"................................................... 2
1.10 "City"......................................................................................... 2
1.11 "Days"......................................................................................... 2
1.12 "Opening of Escrow"............................................................................ 2
1.13 "Escrow Holder"................................................................................ 2
1.14 "Business Day"................................................................................. 2
1.15 "Lease"........................................................................................ 2
1.16 "Construction Contracts"....................................................................... 2
1.17 "Construction Deliveries"...................................................................... 3
1.18 "Warranties"................................................................................... 3
1.19 "Deposit"...................................................................................... 3
1.20 "Escrow"....................................................................................... 3
1.21 "Development Agreement"........................................................................ 3
1.22 "Breakage Fee"................................................................................. 3
1.23 "Traffic Impact Fees".......................................................................... 3
1.24 "Trip Ends".................................................................................... 3
1.25 "Tenant's Deed of Trust"....................................................................... 3
1.26 "Utility Deposits"............................................................................. 4
1.27 "Development Deposits"......................................................................... 4
2. SALE OF THE PROPERTY.................................................................................... 4
3. ESCROW.................................................................................................. 4
3.1 General Instructions........................................................................... 4
3.2 Tax Reporting Person........................................................................... 4
3.3 Opening of Escrow.............................................................................. 4
4. PURCHASE PRICE.......................................................................................... 4
4.1 Purchase Price................................................................................. 4
4.2 Deposit........................................................................................ 5
4.3 Closing Funds.................................................................................. 5
5. CONDITIONS TO CLOSING................................................................................... 6
5.1 Buyer's Contingencies.......................................................................... 6
5.1.1 Title Approval...................................................................... 6
5.1.2 Due Diligence Review................................................................ 8
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5.1.3 Performance by Seller............................................................... 8
5.1.4 Truth of Seller's Representations and Warranties.................................... 9
5.1.5 Title Policy........................................................................ 9
5.1.6 Certificate(s) of Occupancy......................................................... 9
5.1.7 No Condemnation..................................................................... 9
5.1.8 Casualty............................................................................ 9
5.2 Seller's Opportunity to Cure; Termination of Escrow and This Agreement......................... 9
5.2.1 Seller's Cure with Respect to Title................................................. 9
5.2.2 Termination of Escrow and This Agreement by Buyer................................... 10
5.3 Seller's Contingency........................................................................... 10
5.4 Limited Representations and Warranties......................................................... 10
5.5 Rights Upon Termination........................................................................ 11
5.6 Seller's Inability To Cure..................................................................... 12
5.7 Force Majeure.................................................................................. 12
5.8 Satisfaction of Conditions..................................................................... 12
6. CLOSING OF ESCROW....................................................................................... 12
6.1 Closing Date................................................................................... 12
6.2 Deposits by Seller............................................................................. 13
6.2.1 Grant Deed.......................................................................... 13
6.2.2 FIRPTA Affidavit.................................................................... 13
6.2.3 Mutual Cancellation................................................................. 13
6.2.4 Assignment.......................................................................... 13
6.2.5 Evidence of Authority............................................................... 13
6.2.6 Additional Items.................................................................... 13
6.2.7 Assignment of Development Agreement................................................. 13
6.3 Deposits by Buyer.............................................................................. 13
6.3.1 Mutual Cancellation................................................................. 13
6.3.2 Evidence of Authority............................................................... 14
6.3.3 Additional Items.................................................................... 14
6.3.4 Assignment.......................................................................... 14
6.3.5 Development Agreement Assignment.................................................... 14
6.4 Issuance of Title Policy....................................................................... 14
6.5 Prorations..................................................................................... 15
6.6 Closing Costs.................................................................................. 16
6.7 Disbursements by Escrow Holder................................................................. 16
6.8 Completion and Distribution of Documents....................................................... 16
6.9 Seller's Election of 1031 Exchange............................................................. 17
6.9.1 Simultaneous Exchange............................................................... 17
6.9.2 Non-Simultaneous Exchange........................................................... 17
6.9.3 Expenses and Documents.............................................................. 17
6.9.4 Indemnity........................................................................... 18
6.10 Landlord Improvements.......................................................................... 18
7. DEFAULTS AND REMEDIES................................................................................... 19
7.1 Default by Either Party........................................................................ 19
7.2 Cancellation Charges........................................................................... 20
7.3 LIQUIDATED DAMAGES............................................................................. 20
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7.4 Specific Performance by Seller................................................................. 21
8. REPRESENTATIONS AND WARRANTIES.......................................................................... 21
8.1 In General..................................................................................... 21
8.2 By Each Party.................................................................................. 21
8.2.1 Authority........................................................................... 21
8.2.2 Binding Effect...................................................................... 21
8.2.3 Compliance.......................................................................... 22
8.3 By Seller Only................................................................................. 22
8.3.1 Not a Foreign Person................................................................ 22
8.3.2 Agreements.......................................................................... 22
8.3.3 Documents........................................................................... 22
8.3.4 Hazardous Materials................................................................. 22
8.3.5 Organization........................................................................ 22
8.3.6 Fee Ownership....................................................................... 22
8.3.7 No Litigation....................................................................... 22
8.3.8 Condemnation........................................................................ 23
8.3.9 Zoning.............................................................................. 23
8.3.10 No Violation........................................................................ 23
8.3.11 Utility Service..................................................................... 23
8.3.12 Development Agreement............................................................... 23
8.3.13 Entitlement and Trip Budget......................................................... 23
9. CERTAIN EVENTS PRIOR TO CLOSING......................................................................... 23
10. POST-CLOSING MATTERS.................................................................................... 24
10.1 Confidentiality................................................................................ 24
10.2 Seller's Construction Warranty................................................................. 25
10.3 Assignment of Warranties....................................................................... 25
10.4 General Release and Indemnification............................................................ 25
11. BROKERS................................................................................................. 26
12. MISCELLANEOUS PROVISIONS................................................................................ 27
12.1 Assignment; Binding on Successors.............................................................. 27
12.2 Fees and Other Expenses........................................................................ 27
12.3 Approval and Notices........................................................................... 27
12.4 Jurisdiction................................................................................... 28
12.5 Interpretation................................................................................. 28
12.6 Gender; Joint Obligations...................................................................... 28
12.7 No Waiver...................................................................................... 28
12.8 Modifications.................................................................................. 28
12.9 Severability................................................................................... 28
12.10 Survival....................................................................................... 29
12.11 Merger of Prior Agreements..................................................................... 29
12.12 Time of Essence................................................................................ 29
12.13 Counterparts................................................................................... 29
12.14 Exhibits....................................................................................... 29
12.15 Cooperation of Parties......................................................................... 29
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12.16 Preliminary Change of Ownership Report......................................................... 29
12.17 No Third Party Beneficiaries................................................................... 29
12.18 Alternative Dispute Resolution Procedure....................................................... 30
12.19 Property Disclosures........................................................................... 31
12.20 Escrow Holder Not to Be Concerned.............................................................. 32
12.21 Possession..................................................................................... 32
12.22 Calculation of Days............................................................................ 32
12.23 Covenant as to Trip Ends....................................................................... 32
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TABLE OF EXHIBITS
Exhibit Description
------- -----------
A Legal Description of Land
A-1 Depiction of Land
B Escrow General Provisions
C-1 Prorated Monthly Base Rent
C-2 Prorated Expansion Land Rent
C-3 Prorated Builder's Risk/Property Insurance Premiums
C-4 Agreed Summary of Closing Funds
D Remaining Punch List Items
E Form of Grant Deed
F Form of FIRPTA Certificate
G Form of Mutual Cancellation of Lease
H Form of Assignment of Personal Property
I Form of Development Agreement Assignment
J-1 Form of Request for Full Reconveyance
J-2 Form of Full Release and Reconveyance
K Approved Draw Request and Pending Change Orders
L Pro Forma
M Development Cost Summary
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
To: Chicago Title Company Sub-Escrow Identification:
16969 ▇▇▇ ▇▇▇▇▇▇ Avenue 33803811 ("Escrow")
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Escrow Officer
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
This Purchase and Sale Agreement and Joint Escrow Instructions
(the "Agreement") is entered into as of January 27, 2004, by and between ▇.▇.
▇▇▇▇▇▇▇▇▇▇ & SONS, a California general partnership ("Seller"), and EMULEX
CORPORATION, a California corporation ("Buyer"), as follows:
RECITALS
A. Seller is the landlord and Buyer is the tenant
pursuant to a certain Build To Suite Lease dated April 15, 2002 (the "Lease")
covering certain Land and Landlord Improvements, both as defined in the Lease.
B. Pursuant to Section 15.1 of the Lease, on December
23, 2003 Buyer exercised the Purchase Option, as defined in such Section, to
purchase all of the Land and all Landlord Improvements constructed on the Land.
C. Seller and Buyer enter into this Agreement to set
forth more fully the terms of the purchase in accordance with Recital B above.
AGREEMENT
1. DEFINITIONS
The following terms, when used in this Agreement, shall have the
following meanings, unless the context clearly indicates otherwise:
1.1 "SALE LAND" shall mean that certain real property located
between Sunflower Avenue and South Coast Drive to the west of ▇▇▇▇▇ ▇▇▇▇▇▇ in
the City of Costa Mesa, California, together with all appurtenant rights
thereto, including, without limitation, all appurtenant easements and
development rights relating to the Sale Land and Improvements, but excluding
those rights reserved to Seller pursuant to Section 1.7. The Sale Land is
described on Exhibit A attached hereto and incorporated herein by this
reference. The Sale Land is as depicted on Exhibit A-1 attached hereto and
incorporated herein by this reference.
1.2 [INTENTIONALLY DELETED]
1.3 "FUNDS" shall mean immediately available funds in the form of
cash, wire transfer of funds, or a certified or bank cashier's check drawn on a
reputable financial institution.
Exhibit M
1.4 "IMPROVEMENTS" shall mean all Improvements located on the Sale
Land, or any portion thereof, including all Landlord Improvements, as defined in
the Lease.
1.5 "LAWS" shall mean all applicable governmental laws, codes,
ordinances, regulations, judgments, permits, approvals and other requirements.
1.6 "LIABILITIES" shall mean any claim, liability, loss, cost,
action, damage, expense or fee, including but not limited to reasonable
attorneys' fees and costs of defense.
1.7 "PROPERTY" shall mean, collectively, the Sale Land, the
Improvements and the Personal Property. The Property shall not include, and
there are hereby excluded from the Property and reserved to Seller, all water,
oil, minerals and gas located beneath the surface of the Sale Land but without
right of surface entry or entry within 200 vertical feet of the surface of the
Sale Land and without the right to deprive the Sale Land of structural support
or to interfere with Buyer's use of the Sale Land and Improvements.
1.8 "PERSONAL PROPERTY" shall mean, collectively, all Warranties,
as defined below, all Development Deposits, as defined below, and all
agreements, utility contracts, approvals (governmental or otherwise), plans and
specifications, entitlements and other rights relating to the construction,
ownership, use and operation of all or any part of the Sale Land or the
Improvements.
1.9 "CLOSING DATE," "CLOSING," "CLOSE OF ESCROW" shall have the
meanings set forth in Section 6.1.
1.10 "CITY" shall mean the City of Costa Mesa, California.
1.11 "DAYS" shall mean, whenever a number of days is referred to
herein, calendar days unless expressly stated to be Business Days.
1.12 "OPENING OF ESCROW" shall have the meaning set forth in
Section 3.3.
1.13 "ESCROW HOLDER" shall be the entity designated as such
pursuant to Section 3.1.
1.14 "BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or other day on which banks located in Orange County, California may or
must be closed.
1.15 "LEASE" shall have the meaning set forth in Recital A.
1.16 "CONSTRUCTION CONTRACTS" shall mean any construction
management, construction or professional services contracts entered into by
Seller, any affiliate of Seller or any other person or entity on behalf of or
for Seller, on the one hand, and the respective contractors and consultants
named therein (the "Contractors"), on the other hand, in connection with the
performance of Seller's obligations to construct or perform Landlord's
Improvements (also defined as "Landlord's Work"), as defined in the Lease.
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1.17 "CONSTRUCTION DELIVERIES" shall mean those respective
documents, "as built" plans, ratifications, reports, surveys and studies which
the Contractors are required to deliver under the respective Construction
Contracts, but excluding the Warranties.
1.18 "WARRANTIES" shall mean all Contractor warranties and
guaranties, and all rights and claims of Seller, any affiliate of Seller or any
other person or entity acting on behalf of or for Seller with respect to the
Improvements, including without limitation, all rights of Seller under the
Construction Contracts for the Improvements and any bonds issued by any
Contractor in connection therewith, and all construction or manufacturer's
warranties, guaranties or certifications which are required to be delivered to
Seller (or to Buyer, if so provided in the Lease) under the Construction
Contracts. Each Warranty shall, at the time such Warranty is transferred to
Buyer pursuant to this Agreement, be either (a) fully assignable to Buyer, with
no consent of any third party required or with such third party's unconditional
written consent, if required or (b) issued in the name of Buyer.
1.19 "DEPOSIT" shall mean the entire deposit held by Escrow Agent
pursuant to Section 4.2, including all accrued interest thereon.
1.20 "ESCROW" shall mean the purchase and sale escrow with respect
to the Property established by Seller and Buyer pursuant to Section 3.1 below.
1.21 "DEVELOPMENT AGREEMENT" shall mean that certain Development
Agreement for the Home Ranch dated December 3, 2001 and effective January 3,
2002 between the City, on the one hand, and Seller, Segerstrom Properties LLC
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Properties LLC, on the other hand, and recorded on March
20, 2002, as Instrument No. 2002-0229863, in the Official Records of the County
Recorder of Orange County, California (the "Official Records"), as amended by
First Amendment to the Development Agreement for Home Ranch executed August,
2003 and the other amendments listed in the Development Agreement Assignment.
1.22 "BREAKAGE FEE" shall mean an amount, if any, determined
pursuant to Section 15.1 of the Lease and payable by Buyer to Seller at Close of
Escrow. The parties acknowledge that there is no Breakage Fee.
1.23 "TRAFFIC IMPACT FEES" shall mean the amount determined
pursuant to Section 17.6 of the Lease. The Traffic Impact Fees are in addition
to and not included in the Purchase Price. For this purpose, the parties
acknowledge that the Traffic Impact Fees for the Initial Premises have been
funded as part of the Development Costs, and that the Traffic Impact Fees for
the Expansion Land, as defined in the Lease, shall be determined as if the
Expansion Land is classified as "Corporate Headquarters" and have been prepaid
by Seller. The foregoing Traffic Impact Fees shall be the only reimbursement
required from Buyer to Seller related to such fees.
1.24 "TRIP ENDS" shall mean the aggregate daily number of vehicle
trips into or out of the Property, consisting of both A.M. and P.M. trips, set
forth in Exhibit I to this Agreement and applicable to the Property.
1.25 "TENANT'S DEED OF TRUST" shall mean that certain Deed of
Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing
dated April 15, 2002, executed by
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Seller in favor of Buyer, as Beneficiary, and Escrow Holder, as Trustee, and
recorded on April 16, 2002, as Instrument No. 2002-0316608, in the Official
Records.
1.26 "UTILITY DEPOSITS" means (a) that certain deposit by Seller
with the City of Costa Mesa in the amount of $2,500.00 and (b) that certain
deposit by Seller with Mesa Consolidated Water District in the amount of
$3,440.00. Buyer and Seller acknowledge that both such deposits were included in
Development Costs, as defined in the Lease, provided by Buyer.
1.27 "DEVELOPMENT DEPOSITS" means any rights or interest in any
deposits or refundable costs that were funded as part of the Development Costs,
including, without limitation, the Utility Deposits.
2. SALE OF THE PROPERTY
Buyer agrees to purchase from Seller, and Seller agrees to sell to
Buyer, the Property upon the terms, covenants and conditions set forth in this
Agreement.
3. ESCROW
3.1 GENERAL INSTRUCTIONS. Chicago Title Company is hereby
designated as escrow holder (the "Escrow Holder"). Escrow Holder's general
conditions or provisions, which are attached hereto as Exhibit B, are
incorporated by reference herein; provided, however, that in the event of any
inconsistency between Exhibit B and any of the provisions of this Agreement, the
provisions of this Agreement shall control. Buyer and Seller each shall also
execute, deliver and be bound by such further escrow instructions or other
instruments as may be reasonably requested by the other party or by Escrow
Holder from time to time, so long as the same are consistent with this
Agreement. Escrow Holder shall comply, but shall have no liability whatsoever
for complying, with the unilateral instructions of only one party without the
consent of the other party hereto if expressly required to do so in this
Agreement.
3.2 TAX REPORTING PERSON. For purposes of complying with Internal
Revenue Code Section 6045(e), as amended effective January 1, 1991, Escrow
Holder is hereby designated as the "person responsible for closing the
transaction," and also as the "reporting person" for purposes of filing any
information returns (and Escrow Holder shall file any such required returns)
with the Internal Revenue Service concerning this transaction, as required by
law.
3.3 OPENING OF ESCROW. Escrow shall be deemed open when (a) this
Agreement, fully signed by both parties either together or in counterparts, is
delivered to Escrow Holder and (b) Buyer has delivered to Escrow Holder the
Deposit provided for, in Funds. The last of such events shall be the "Opening of
Escrow." The Opening of Escrow shall occur within five (5) Business Days after
the last execution of this Agreement. Escrow Holder shall immediately notify
Buyer, Seller and their respective attorneys orally and in writing of the
official date of the Opening of Escrow.
4. PURCHASE PRICE
4.1 PURCHASE PRICE. The purchase price for the Property (the
"Purchase Price") shall be the sum of (a) Twelve Million Four Hundred Sixteen
Thousand Three Hundred Forty-Two
4
and 40/100 Dollars ($12,416,342.40) which is equal to 14.252 acres of the Sale
Land (620,817.12 square feet) times $20.00 per square foot, (b) the amount of
Tenant's Loan, as defined in the Lease, which is agreed will be $16,437,925.94
as of the Closing (which sum includes the $465,863.06 to be funded for Draw
Request #20 prior to the Close of Escrow), and (c) the prepaid Traffic Impact
Fees with respect to the Expansion Land as provided in 4.3(ii) below. The
Purchase Price shall be paid as provided in Sections 4.2 and 4.3.
4.2 DEPOSIT. At the Opening of Escrow, Buyer shall deposit with
Escrow Holder the sum of $100,000 in Funds (the "Deposit"). Escrow Holder shall
hold the Deposit in such number of interest-bearing accounts as shall be fully
insured by the Federal Deposit Insurance Corporation, such account(s) to be
selected by Buyer on a funds investment form provided by Escrow Holder, subject
to collection and subject to availability of the Deposit for use in accordance
with the provisions of this Section. All interest earned on the Deposit shall
accrue to Buyer's benefit.
Except as provided in Section 5.5, the Deposit and all accrued
interest thereon is non-refundable upon deposit with Escrow Holder, provided
that Buyer does not terminate this Agreement and the Escrow pursuant to Article
5. If Escrow closes, the entire Deposit and all accrued interest thereon shall
be credited against the Purchase Price.
If Escrow fails to close pursuant to the provisions of this
Agreement for any reason other than Buyer's default, the Deposit and all accrued
interest thereon, less any Escrow fees and costs for which Buyer is responsible,
shall be returned to Buyer in full. If Escrow fails to close under the
provisions of this Agreement as a result of Buyer's default, the entire Deposit
plus all accrued interest thereon shall be delivered to and retained by Seller
as non-refundable liquidated damages under Section 7.3 below.
4.3 CLOSING FUNDS. On the last Business Day before the Close of
Escrow, Escrow Holder shall calculate and Buyer shall wire Funds into Escrow
(using wiring instructions reasonably satisfactory to Escrow Holder) in an
amount which, together with the Deposit and any accrued interest thereon, shall
equal the sum of:
(a) The Purchase Price, net of Tenant's Loan as provided
in clause (iii) below, and all prepaid Traffic Impact Fees with respect to the
Expansion Land.
(b) Monthly Base Rent for the Initial Premises, as
defined in the Lease, through the day prior to the Closing Date in accordance
with Exhibit C-1.
(c) Expansion Land Rent for the Expansion Land from
December 15, 2003 through December 23, 2003 in accordance with Exhibit C-2.
(d) Prorated builder's risk/property insurance premiums
through the day prior to the Closing Date in accordance with Exhibit C-3.
(e) Any other sums payable by Buyer hereunder.
For purposes of determining the amount payable by Buyer
pursuant to this Section:
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(i) There are no Development Costs pursuant to
subparagraph (a) and the surveying cost to RBF Consulting are included in
Development Costs (a portion has already been paid and the remainder will funded
as part of Draw 20).
(ii) Prepaid Traffic Impact Fees pursuant to
subparagraph (a) are agreed to be in the amount of $102,245.26. Notwithstanding
the amount of floor area of improvements ultimately constructed by Seller or any
transferee or successor on the Expansion Land, no additional Traffic Impact Fees
shall be payable by Buyer or any transferee or successor to Seller. Without
limiting the generality of the foregoing, Buyer may, subject to the approval of
the City, recalculate the floor area of the Landlord Improvements.
(iii) There shall be a credit for the amount of
Tenant's Loan (i.e., Tenant's Loan shall, at Buyer's election, be forgiven or
assumed by Buyer or an affiliate and shall not impact the calculation of the
cash payment due pursuant to Section 4.1 and this Section 4.3).
(iv) Buyer shall receive a Purchase Price credit
equal to the credit against the title insurance premium payable by Seller
pursuant to Section 6.6 as the result of the prior issuance to Buyer of a
leasehold policy of title insurance with respect to the Lease. This amount is
agreed to be $13,260.
The net amount to be paid by Buyer pursuant to this Section is
herein referred to as the "Closing Funds." An agreed summary of the Closing
Funds is set forth on Exhibit C-4.
5. CONDITIONS TO CLOSING
5.1 BUYER'S CONTINGENCIES. The obligation of Buyer to purchase the
Property shall be subject to satisfaction of each of the conditions set forth in
this Section 5.1 and elsewhere in this Agreement, which conditions must be
satisfied within the respective time periods specified therefor. Seller and
Buyer expressly acknowledge and agree that each of the conditions in this
Section 5.1 is for the benefit of and may be waived by Buyer as hereinafter
provided in its sole discretion.
5.1.1 TITLE APPROVAL.
(a) Buyer shall have approved the condition of title to
the Sale Land as provided in this Section 5.1.1. Seller has obtained from
Chicago Title Company (the "Title Company"), under order number 203008184, a
leasehold policy pursuant to the Lease and a title binder covering the Sale Land
(herein, the "Preliminary Report"), together with legible copies of all
documents (the "Title Documents") shown as exceptions affecting title to the
Property thereon. Buyer has previously approved all exceptions shown on Schedule
B to the Preliminary Report, which exceptions are listed on Exhibit "G" to the
Lease. Title Company has delivered to Buyer a Proforma 1970 ALTA Owner's Title
Policy ("Proforma"), a copy of which is attached hereto as Exhibit "L", together
with legible copies of all new exceptions, if any, appearing on the Proforma.
Buyer has approved the Proforma and a survey showing the exceptions to title
shown thereon subject to the elimination of Exception 14 regarding the rights of
parties in possession and either the elimination of Exception 15 or the revision
of such exception to add specific survey matters which are reasonably acceptable
to Buyer. Buyer shall take title to, and Seller
6
shall deliver, title to the Property subject only to the exceptions shown in the
Proforma and any exceptions created or caused by Buyer (the "Title Exceptions").
Seller covenants that (x) Seller shall not create or cause any
liens or encumbrances against the Property other than Tenant's Deed of Trust and
the Permitted Development Easements and (y) Seller shall cause to be removed
from record title to the Property at or prior to the Close of Escrow all
delinquent taxes, bonds and assessments which are not the responsibility of
Buyer pursuant to the Lease, all involuntary liens or encumbrances against the
Property other than those which are created or caused by Buyer and any judgment
liens against Seller which affect title to the Property. The aggregate
obligation of Seller pursuant to clause (y) shall not exceed the cash portion of
the Purchase Price. As to any liens or encumbrances created by Seller against
the Property in violation of clause (x), Seller must remove the same at or prior
to Closing without regard to the amount thereof. If Buyer desires to have the
Title Company issue any endorsements to the Title Policy, then Buyer shall
notify Seller and Escrow Holder of the desired endorsements at least five (5)
business days prior to the Closing Date. Any such endorsements shall be at the
cost and expense of Buyer, and issuance of such endorsements shall not be a
condition to Closing.
For the purposes of the immediately preceding paragraph:
(1) Seller shall make arrangements to remove from record
title to the Property at or prior to Close of Escrow all items described in
clause (x) other than Tenant's Deed of Trust and the Permitted Development
Easements. Such removal may be effected by payment, bonding or other method
sufficient to permit the Title Company to issue the Title Policy, as defined in
Section 6.4.
(2) Buyer has recorded a memorandum of the Purchase
Option to establish Buyer's priority as to the Property. As to delinquent taxes,
bonds and assessments for which Seller is responsible, Seller must remove the
same from record title to the Property at or prior to Close of Escrow in any
manner provided in clause (1). As to all other involuntary liens, encumbrances
and judgment liens against the Property, Buyer does not agree to subordinate its
priority as to the Property. Rather, Seller shall cause the same to be removed
from the Title Policy at or before Close of Escrow in any manner described in
clause (1), including escrow of the entire cash portion of the Purchase Price
for the benefit of the holders of such involuntary liens, encumbrances and
judgment liens, if necessary.
(3) To the extent necessary to accomplish the matters
described in clause (2) or to address Intervening Liens pursuant to Section
5.1.1(b), Buyer and Seller shall extend the Close of Escrow for such time as may
be reasonably necessary, not to exceed 120 days, without reduction in the
Purchase Price, but Buyer's Base Rent pursuant to the Lease shall be reduced in
the manner set forth in the last paragraph of Section 6.1 for any portion of
such extension in excess of thirty (30) days or, if Seller is not diligently
attempting to eliminate such Intervening Lien, for the entire period of such
extension.
(b) Any liens, encumbrances, easements, restrictions,
conditions, covenants, rights, rights-of-way, and other matters affecting title
to the Property which are created or which may appear of record after the date
of the Update but before the Closing Date and which are not Title Exceptions and
are not created or caused by Buyer (collectively, the "Intervening Liens")
7
shall also be subject to Buyer's approval (after written notice to Buyer thereof
from any source) and, unless so approved, must be addressed by Seller pursuant
to the last two paragraphs of Section 5.1.1(a). Any item(s) not so expressly
approved within ten (10) days after such written notice shall be deemed
disapproved.
5.1.2 DUE DILIGENCE REVIEW. Buyer has satisfactorily
completed its due diligence review of the Property and, subject to the
limitations in this Section 5.1.2 and Section 10.2 below, shall have approved or
be deemed to have approved the condition of the Property.
Except for the Pending Construction Deliveries (defined
below), Seller has previously delivered to Buyer correct and complete copies of
pertinent reports, maps, surveys, contracts, studies, warranties, guaranties and
other written information in Seller's possession or control with respect to the
ownership or construction of the Property, including, without limitation, all
reports, maps, studies, notifications and other written information in Seller's
possession or control, if any, which relate to the environmental condition of
the Property (collectively, the "Diligence Documents"). As used herein, the term
"pertinent" shall mean related to or concerning the Property as currently
configured, approved and occupied, and shall not include superseded parcel maps,
outdated surveys, title reports and policies, and similar material which is
outdated (for whatever reason), superseded or replaced by more current
materials.
Seller shall within thirty (30) days after the Closing Date
compile and deliver to Buyer a copy of all Construction Deliveries, Warranties
and other development project files related to the Landlord Improvement work and
Other Work (the "Pending Construction Deliveries"). As used herein, the
"Contract" shall mean that certain construction contract dated September 20,
2002, as amended, between Seller, as "owner" and ▇▇▇▇▇▇▇ Construction Co., as
"contractor."
Buyer and Seller specifically agree that there is NO financing
condition to the close of the purchase of the Property. Accordingly, Buyer's due
diligence review pursuant to this Section shall not include such item (i.e.,
financing) and such issue shall not be a ground for termination of this
Agreement and the Escrow by Buyer pursuant to this Section or any other
provision of this Agreement.
5.1.3 PERFORMANCE BY SELLER. On or before the Closing Date,
Seller shall have performed, and hereby covenants to perform, all obligations of
Seller hereunder to be performed by the Closing Date, including this Article 5
and Seller shall have executed and delivered to Escrow Holder each and all of
the documents to be delivered to Escrow Holder by Seller and described in
Section 6.2.
Seller and Buyer acknowledge and agree that the date of
Substantial Completion of Landlord's Improvements for purposes of Section 6.1(b)
of the Lease is December 1, 2003 (the "Substantial Completion Date"). Subsequent
to the Substantial Completion Date, Seller and Buyer developed and approved a
series of punch-lists with respect to the Landlord Improvements. Seller and
Buyer agree that all work on such punch-lists has been completed other than the
items listed on Exhibit D attached hereto. All items listed on Exhibit D shall
be completed by the Closing Date or as soon thereafter as practicable.
8
5.1.4 TRUTH OF SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller's representations and warranties set forth in Sections 8.2 and 8.3 shall
be true and correct as of the Close of Escrow.
5.1.5 TITLE POLICY. The Title Company shall be irrevocably
and unconditionally committed to issue to Buyer the Title Policy, subject only
to the matters set forth in Section 6.4.
5.1.6 CERTIFICATE(S) OF OCCUPANCY. Unless revoked or
rendered invalid due to the actions of Buyer, the certificate(s) or temporary
certificate(s) of occupancy issued for the Improvements (to the extent such
certificate(s) is (are) required for Buyer to occupy the Improvements) shall
have been issued and shall be in full force and effect. By its signature hereto,
Buyer confirms that such certificates have been issued and are in full force and
effect.
5.1.7 NO CONDEMNATION. There shall be neither pending nor
threatened a condemnation proceeding of the type described in the second
paragraph of Article 9.
5.1.8 CASUALTY. The Lease shall not have been terminated
pursuant to Article VIII thereof.
5.2 SELLER'S OPPORTUNITY TO CURE; TERMINATION OF ESCROW AND THIS
AGREEMENT SELLER'S CURE WITH RESPECT TO TITLE. To the extent that any title
exception, condition or Intervening Lien is not a Title Exception and is not
approved by Buyer in writing pursuant to Section 5.1.1(a) or Section 5.1.1(b),
then Seller shall have until 5:00 p.m. Pacific Time on the fifth (5th) Business
Day following the expiration of Buyer's approval period without approval by
Buyer in which to investigate the disapproved item(s) and to notify Buyer and
Escrow Holder in writing how Seller has cured or will cure the items not
approved prior to the Close of Escrow.
Any cure or proposed cure by Seller pursuant to this Section
5.2.1 shall be subject to the approval of Buyer in Buyer's reasonable
discretion. Such reasonable discretion shall include the right to review and
approve or disapprove any Seller Endorsement, as defined in Section 6.4, offered
as a cure of a title exception not approved by Buyer. Such approval shall be
deemed given unless Buyer disapproves of such cure or proposed cure by written
notice to Seller and Escrow Holder given within five (5) Business Days after
Buyer's receipt of Seller's written notice pursuant to this Section 5.2.1
describing in reasonable detail the cure effected or to be effected. Such
approval shall not be unreasonably withheld so long as the cure effected or
proposed by Seller does not materially adversely affect the value,
financeability or use of the Property and is sufficient to (i) permit issuance
of the Title Policy pursuant to Section 6.4 and (ii) permit Buyer to obtain a
policy of ALTA Lender's Title Insurance without the disapproved items for a loan
to Buyer with respect to the Property. It shall be reasonable for Buyer to
disapprove a Seller Endorsement offered as a cure if the Title Company is
unwilling to commit to issue the same endorsement on a subsequent sale of the
Property by Buyer and, absent such Seller Endorsement, the title exception
endorsed over would materially adversely affect the use or value of the
Property. If Seller proposes a cure pursuant to this Section 5.2.1, and Buyer
approves or is deemed to approve such cure, Seller shall use commercially
reasonable efforts, at Seller's sole cost and expense, to effect the cure
proposed by Seller on or prior to the Closing Date. If (A) Seller proposes a
cure, Buyer approves or is deemed to approve such cure but Seller
9
is unable to effect such cure or (B) if Buyer timely disapproves Seller's
proposed cure with respect to any item(s) described in this Section, then, in
any such case, Buyer may within five (5) business days after the event described
in clause (A) or (B), as applicable, in its sole and absolute discretion, elect
by written notice to Seller and Escrow Holder to cure such item(s). In the event
of an election by Buyer to cure pursuant to this Section, Close of Escrow shall
be extended as necessary as provided in Section 5.1.1(a), such cure shall be at
Seller's cost and expense (but only to the extent provided in Section 5.1.1(a))
and Seller shall cooperate with Buyer and execute and deliver such documents,
affidavits and other instruments as reasonably necessary to enable Buyer to
effect such cure. Such covenant of cooperation shall not require Seller to incur
any costs or assume any obligations other than or in addition to those costs and
obligations to be paid or assumed by Seller pursuant to this Agreement,
including those set forth in Section 5.1.1(a).
5.2.2 TERMINATION OF ESCROW AND THIS AGREEMENT BY BUYER
(a) If (i)(A) there is a title exception, condition or
Intervening Lien which is not a Title Exception and is not approved by Buyer in
writing pursuant to Sections 5.1.1(a) or 5.1.1(b), AND (B) Buyer reasonably
disapproves a proposed cure by Seller pursuant to Section 5.2.1, then Buyer
shall have until 5:00 p.m. Pacific Time on the tenth (10th) Business Day
following the later of (1) its receipt of Seller's notice and (2) the date that
Buyer is notified of and/or reasonably determines that Seller has not cured or
will not be able to cure such disapproved condition(s), to notify Seller and
Escrow Holder in writing that Buyer, in its sole and absolute discretion,
either:
(A) Waives its prior objections to such
condition and will proceed to purchase the Property, subject to any then
remaining conditions, without any reduction in or offset to the Purchase Price;
or
(B) Elects to cure such disapproved item(s)
itself pursuant to the terms of Section 5.2.1; and
(C) Elects to extend the Escrow within the time
frame set forth in Section 5.1.1(a) as reasonably necessary to cure such
disapproved condition; or
(D) Terminates Escrow and this Agreement.
(b) If the conditions set forth in Section 5.1 (other
than Section 5.1.1) fail to occur, then Escrow and this Agreement shall
automatically terminate upon receipt by Seller and Escrow Holder of Buyer's
written notice indicating such disapproval or the failure of such condition(s).
Such notice, in the case of all conditions set forth in Section 5.1 (other than
Sections 5.1.1 and 5.1.2), may be given at any time prior to the Closing Date.
5.3 SELLER'S CONTINGENCY. The obligation of Seller to sell the
Property shall be subject to Buyer performing all obligations of Buyer hereunder
to be performed by the Closing Date.
5.4 LIMITED REPRESENTATIONS AND WARRANTIES. Except as expressly
provided to the contrary in this Agreement, including, without limitation,
Sections 8.2, 8.3 and 10.1, it is
10
expressly understood and agreed that Buyer is acquiring the Property "AS IS," in
its present state and condition, without any representations or warranties from
Seller of any kind whatsoever, either express or implied. In particular, subject
to the foregoing, Seller makes no representation or warranty respecting the use,
condition, title, operation or management of the Property, or compliance with
any applicable Laws relating to zoning, subdivision, planning, buildings, fire,
safety, earthquake, health or environmental matters, the presence or absence of
toxic or hazardous waste or materials, or compliance with any other covenants,
conditions and restrictions (whether or not of record). Seller has disclosed to
Buyer the facts that (a) the Sale Land was used in the farming operations of
Seller, (b) in connection with such farming operations, chemical pesticides and
weed control agents may have been applied, which applications may have resulted
in residual levels of such chemicals in the soil on the Sale Land and (c) Seller
is aware of, and has advised Buyer that, the property located to the west of the
Sale Land (the "Western Parcel") and owned by the Los Angeles Times (the
"Times") has underground hazardous materials contamination believed to result
from leakage from an underground fuel tank maintained by the Times. To Seller's
knowledge, such hazardous materials have not migrated from the Western Parcel
onto or under the Sale Land. Apart from the foregoing usages, Seller is not
aware of any prior use of the Property which would indicate that there are or
may be hazardous materials present in or on the Property. Buyer represents that
it is knowledgeable in real estate matters and is relying upon Buyer's own
investigation and analysis in purchasing the Property, together with the express
representations and warranties of Seller set forth herein. Buyer further
represents that it has had, and will have, ample opportunity to inspect and
will, in fact, make all of the investigations Buyer deems necessary in
purchasing the Property. The foregoing representation is expressly subject to
Seller's cooperation and compliance with the terms of this Agreement, including
but not limited to Section 5.1.2. If this Agreement is not terminated but Buyer
acquires the Property as provided herein, Buyer shall have thereby approved all
aspects of the Property and this transaction and thereby waives any claim or
liability against Seller, except as specifically provided herein to the
contrary.
5.5 RIGHTS UPON TERMINATION.
(a) If the Escrow and this Agreement are terminated by
Buyer in the manner and within the applicable time period(s) provided pursuant
to Section 5.2.2, or otherwise for failure of Seller to perform its obligations
pursuant to this Agreement, then (i) all instruments in Escrow shall be returned
to the party depositing the same, (ii) Buyer shall return all items previously
delivered by Seller to Buyer, (iii) Buyer and Seller shall each pay one-half
(1/2) of all Escrow and title cancellation charges (unless Section 7.2
applies), (iv) the Deposit and all accrued interest thereon shall be returned to
Buyer and (v) neither party shall have any further rights, obligations or
liabilities whatsoever to the other party concerning the Property by reason of
this Agreement, except as expressly stated in this Agreement to survive
termination.
(b) If the Escrow and this Agreement are terminated by
Seller for failure of Buyer to perform its obligations pursuant to this
Agreement, then (i) all instruments in Escrow shall be returned to the party
depositing the same, (ii) Buyer shall return all items previously delivered by
Seller to Buyer, (iii) Buyer and Seller shall each pay one-half (1/2) of all
Escrow and title cancellation charges (unless Section 7.2 applies) and (iv)
neither party shall have any further rights, obligations or liabilities
whatsoever to the other party concerning the Property by reason of this
Agreement, except as expressly stated in this Agreement to survive termination.
11
Moreover, Seller shall be entitled to retain the entire Deposit and all interest
accrued thereon. Notwithstanding anything to the contrary set forth in this
Agreement, the Lease shall survive any termination of this Agreement and shall
remain in full force and effect.
5.6 SELLER'S INABILITY TO CURE. If a cure by Seller has been
approved by Buyer pursuant to Section 5.2, Seller shall use all commercially
reasonable efforts to effect, on or prior to the Closing Date, the approved cure
proposed by Seller. If Seller proposes a cure, Buyer approves such cure, and
Seller fails to effect such cure on or before the last Business Day before Close
of Escrow, then Buyer, in its sole discretion, may elect in writing any of the
alternatives available to Buyer pursuant to Sections 5.2.1 and 5.2.2; provided,
however, that by mutual agreement the parties may elect to extend the Close of
Escrow as provided in Section 5.1.1(a) in order to provide Seller with
additional time to cure any title item. The provisions of this Section shall not
apply to Seller's cure obligations pursuant to the second paragraph of Section
5.1.1(a), which obligations shall be absolute.
5.7 FORCE MAJEURE. In the event that, as of the Closing Date, (a)
each of the parties has performed its respective obligations hereunder, (b) the
Escrow is in a position to close pursuant to Article 6 and (c) the parties are
prevented from closing due to a cause beyond the reasonable control of the
parties, then:
(a) The Escrow shall be extended for up to an additional
thirty (30) days beyond the date specified for closing in Section 6.1;
(b) The parties shall take all actions reasonably
available to them to attempt to eliminate such delaying cause and close the
Escrow; and
(c) If the parties are unable to close the Escrow within
such additional thirty (30) day period, either party may terminate this
Agreement and the Escrow by written notice to the other party and Escrow Holder
given at any time after the end of such thirty (30) day period and prior to the
close of the Escrow. Any termination pursuant to this clause (c) shall have the
effects described in clauses (i) through (v) of Section 5.5(a).
5.8 SATISFACTION OF CONDITIONS. Each party shall cooperate as
reasonably requested by the other party to permit satisfaction of all conditions
to closing of the within transaction. The foregoing covenant of cooperation
shall not, however, require either party to pay any money or assume any
obligations in addition to those amounts and obligations agreed to be paid or
assumed by such party pursuant to this Agreement.
6. CLOSING OF ESCROW
6.1 CLOSING DATE. Escrow shall close on or before 5:00 p.m.
Pacific Time on February 5, 2004 (the "Scheduled Closing Date"), unless (i)
earlier terminated by Buyer or Seller, (ii) extended pursuant to any express
provision of this Agreement, including but not limited to Sections 5.6 and 5.7
hereof or (iii) extended by mutual agreement of Seller and Buyer, in each case
pursuant to the applicable provision(s) of this Agreement. The terms "Close of
Escrow," "Closing Date" and/or "Closing" are used in this Agreement to mean the
time and date the Grant Deed is recorded in the Official Records.
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6.2 DEPOSITS BY SELLER. At or before 2:00 p.m. on February 4,
2004, Seller shall deliver to Escrow Holder the following items for handling as
described below; provided that Escrow Holder need not be concerned with the form
or content but only with manual delivery of all of the following other than the
items described in Sections 6.2.1, 6.2.2 and 6.2.3:
6.2.1 GRANT DEED. A duly executed and acknowledged grant
deed conveying the Land and Improvements to Buyer in the form of attached
Exhibit E (the "Grant Deed");
6.2.2 FIRPTA AFFIDAVIT. At least two (2) counterparts of
(i) a duly executed certificate, executed by Seller and in the form of Exhibit F
attached hereto (the "FIRPTA Affidavit") and (ii) a California non-foreign
affidavit on Form 593-W under the California Revenue & Taxation Code;
6.2.3 MUTUAL CANCELLATION. At least two (2) counterparts,
duly executed and acknowledged by Seller, of a mutual cancellation of the Lease
in the form attached as Exhibit G hereto (the "Mutual Cancellation");
6.2.4 ASSIGNMENT. At least two (2) counterparts, duly
executed by Seller, of an assignment (the "Personal Property Assignment") to
Buyer of all rights of Seller (or any affiliate of or person or entity acting
for or on behalf of Seller) in and to the Personal Property, the Construction
Contracts and the Construction Deliveries in the form of Exhibit H attached
hereto;
6.2.5 EVIDENCE OF AUTHORITY. Such certificates or documents
as may be reasonably required by Escrow Holder in order to cause the Title
Policy to be issued and the Close of Escrow to occur;
6.2.6 ADDITIONAL ITEMS. Any additional funds and/or
instruments, signed and properly acknowledged by Seller, if appropriate, as may
be reasonably necessary to comply with Seller's obligations under this
Agreement; and
6.2.7 ASSIGNMENT OF DEVELOPMENT AGREEMENT. At least two (2)
counterparts, duly executed and acknowledged by Seller, the other entities
identified as "Assignor" therein and the City, of a partial assignment and
assumption of the Development Agreement in the form attached hereto as Exhibit I
(the "Development Agreement Assignment"). For this purpose, Seller shall use
good faith, commercially reasonable efforts to cause the City to execute,
acknowledge and deliver the Development Agreement Assignment at or prior to
Close of Escrow (and Buyer shall have the right to extend the Closing Date as
reasonably necessary in order to obtain City's execution of the Development
Agreement Assignment).
6.3 DEPOSITS BY BUYER. At or before 2:00 p.m. on February 4, 2004
(early enough on the Closing Date as to the wire transfer provided for in
Section 6.3.2 to permit closing on the Closing Date), Buyer shall deliver or
cause to be delivered to Escrow Holder:
6.3.1 MUTUAL CANCELLATION. At least two (2) counterparts,
duly executed and acknowledged by Buyer, of the Mutual Cancellation;
6.3.2 FUNDS. Immediately available Closing Funds by wire
transfer into Escrow Holder's depository bank account in an amount equal to the
Purchase Price plus the
13
Traffic Impact Fees, the other amounts payable pursuant to Section 4.3 and all
closing costs, charges and prorations payable by Buyer hereunder less (a) the
Deposit and all accrued interest thereon and (b) any credit to which Buyer is
entitled pursuant to Section 4.3 above. Concurrently with the delivery of the
Closing Funds, Buyer shall deliver to Escrow Holder an executed request for full
reconveyance and a full release and reconveyance of Tenant's Deed of Trust, duly
executed and acknowledged by the Trustee thereunder (the "Full Reconveyance").
Such request and the form of Full Reconveyance shall be in the forms attached
hereto, respectively, as Exhibit J-1 and J-2. For the purposes of this
subsection, the parties acknowledge that there is no Breakage Fee.
6.3.2 EVIDENCE OF AUTHORITY. Any documents authorizing
purchase of the Property by Buyer which may be reasonably required by the Title
Company in order to issue the Title Policy described in Section 6.4 and close
Escrow; and
6.3.3 ADDITIONAL ITEMS. Any additional Funds and/or
instruments, signed and properly acknowledged by Buyer, if appropriate, as may
be reasonably necessary to comply with Buyer's obligations under this Agreement.
6.3.4 ASSIGNMENT. At least two (2) counterparts, duly
executed by Buyer, of the Personal Property Assignment.
6.3.5 DEVELOPMENT AGREEMENT ASSIGNMENT. At least two (2)
counterparts, duly executed and acknowledged by Buyer, of the Development
Agreement Assignment.
6.4 ISSUANCE OF TITLE POLICY. At the Close of Escrow, the Title
Company shall be irrevocably committed to issue to Buyer a 1970 Form ALTA
owner's extended coverage policy of title insurance (the "Title Policy"),
together with such endorsements required by Buyer pursuant to Section 5.1 and/or
such endorsements, if any, which have been approved by Buyer and are required to
cure Buyer's objections to title ("Seller's Endorsements"), as applicable. Such
Title Policy shall have a liability amount in the amount of the gross Purchase
Price set forth in or determined pursuant to Section 4.1, shall cover the
Property and shall insure fee title vested in Buyer, free of all encumbrances,
except:
(a) All general and special real property taxes and
assessments a lien not yet delinquent or for which Buyer is responsible under
the Lease;
(b) The Title Exceptions;
(c) The reservations contained in the Grant Deed;
(d) Any exceptions created or caused by the actions of
Buyer or its agents or employees;
(e) The Permitted Development Easements; and
(f) Any other title exceptions expressly approved in
writing by Buyer pursuant to Sections 5.1.1(a) and/or 5.1.1(b).
14
Buyer shall be responsible, at Buyer's cost, to provide any survey required in
connection with the Title Policy and neither such survey nor such Title Policy
shall delay the Closing Date. If Buyer fails to provide any survey or other
requirement for the Title Policy by the Closing Date, Escrow Holder shall
nevertheless close the Escrow and provide to Buyer a CLTA Standard Owner's
Policy which complies with the provisions of this Section 6.4. The cost of the
Title Policy and the endorsements thereon shall be borne by Buyer and Seller as
provided in Section 6.6 below. In addition, Seller shall execute and deliver
such certificates, mechanics lien indemnifications and other instruments as
shall be reasonably required for the issuance of the Title Policy and/or the
endorsements described in this Section and in Section 5.1. Nothing herein,
however, shall be deemed or construed to require Seller to bear any costs or to
assume any obligations over and above those costs to be borne and those
obligations to be undertaken by Seller pursuant to this Agreement and/or the
Lease. For the purposes of this provision, Seller and Buyer acknowledge that
they have previously caused RBF Consulting (the "Surveyor") to prepare an ALTA
survey with respect to the Sale Land dated October 22, 2003 (the "Survey"). All
costs of such Survey and the revisions thereto shall be borne by Buyer as
provided in Section 4.3.
6.5 PRORATIONS.
(a) The first half of real property taxes with respect to
the Property for fiscal year July 1, 2003 through June 30, 2004 (the "Tax Year")
have been paid as a part of Development Costs. Buyer shall pay, outside of and
after the Close of Escrow, the second half of such real property taxes for the
Tax Year. Accordingly, there shall be no real property tax proration through
Escrow. In addition, any supplemental property tax assessments resulting from
the construction of Landlord's Work and Tenant's Work, each as defined in the
Lease, on the Sale Land, regardless of date of issuance or the period covered,
are the responsibility of and shall be paid by Buyer. Any of such supplemental
assessments received by Seller shall be forwarded to Buyer for payment.
(b) Buyer shall obtain its own insurance with respect to
the Property and shall not succeed to Seller's insurance. There shall be no
proration with respect to liability insurance with respect to the Property.
Seller has carried casualty insurance with respect to the Property and
Landlord's Improvements thereon, and Buyer shall be responsible for the premiums
therefor (and Seller's overhead allowance with respect thereto) through the
Closing Date as provided on Exhibit C-3, provided that it is acknowledged that
Seller will cease carrying earthquake insurance on the Property as of February
1, 2004. Seller may cancel such insurance as of the Closing Date and Buyer shall
place its own casualty insurance with respect to the Property and the
improvements thereon. Except as provided in subsection (a) above, this
subsection (b) and Section 4.3, there shall be no prorations or adjustments with
respect to the Property.
(c) Buyer shall be entitled to the Utility Deposits when
the same are refunded, outside of and after the Close of Escrow. Seller shall
reasonably cooperate with Buyer in obtaining such refunds. If either or both of
the Utility Deposits are refunded to Seller, Seller shall promptly remit the
same to Buyer. The parties shall cooperate to have utility bills for the
Property changed into Buyer's name by the Closing, if possible, or otherwise as
soon as possible after the Closing Date. If any such utility bills remain in
Seller's name after the Closing Date, Seller shall promptly forward same to
Buyer upon receipt and Buyer shall pay such bills directly.
15
6.6 CLOSING COSTS Subject to Section 7.2, Seller shall pay the
premium for a CLTA owner's standard title policy, any premiums for the Seller
Endorsements, if any, all documentary transfer taxes, all costs for recording
the Grant Deed and the Development Agreement Assignment, and one-half (-1/2) of
all Escrow costs and fees. Buyer shall pay any additional premium for the Title
Policy (i.e., the difference between the premium for the aforementioned CLTA
policy and the premium for the Title Policy), the premiums for any endorsements
to the Title Policy (other than the Seller's Endorsements), all costs for
recording the Mutual Cancellation and the Full Reconveyance, one-half (-1/2) of
all Escrow costs and fees, and any costs and expenses relating to Buyer's
obtaining the Full Reconveyance and any financing to acquire the Property. Any
other costs and fees shall be paid by the party causing the same to be incurred
or, if not directly attributable to a party, in accordance with southern
California escrow practice. Buyer and Seller shall each bear their own legal and
accounting costs and fees.
6.7 DISBURSEMENTS BY ESCROW HOLDER. Upon the Close of Escrow,
Escrow Holder shall disburse all Funds deposited with Escrow Holder by Buyer in
payment of the Purchase Price, the Traffic Impact Fees and the other adjustments
due to Seller, as follows:
6.7.1 Deduct therefrom all costs chargeable to the account
of Seller pursuant hereto;
6.7.2 Distribute the remaining balance of the Funds to or
at the direction of Seller promptly upon the Close of Escrow. If such Funds to
be disbursed to Seller cannot be transferred to Seller in sufficient time after
the Closing for Seller to invest the Funds itself on the Closing Date, then
Escrow Holder shall hold and invest the Funds overnight as instructed by Seller;
and
6.7.3 To the extent that Buyer has deposited total Funds in
excess of the Purchase Price, costs and fees payable by Buyer and any other
amounts payable by Buyer, distribute such excess funds to or at the direction of
Buyer promptly upon the Close of Escrow.
6.8 COMPLETION AND DISTRIBUTION OF DOCUMENTS. Escrow Holder shall
also undertake the following at or promptly after the Close of Escrow:
6.8.1 Determine the documentary transfer tax based upon the
Purchase Price and complete the documentary transfer tax statement.
6.8.2 If necessary, Escrow Holder is authorized and
instructed to insert the date Escrow closes as the date of any documents
conveying or terminating interests herein or to become operative as of the
Closing Date (including the Mutual Cancellation, Personal Property Assignment,
Development Agreement Assignment and Full Reconveyance). Compile completely
executed (and acknowledged, if required) copies of the Mutual Cancellation,
Personal Property Assignment and Development Agreement Assignment, if delivered
in partially executed and acknowledged counterparts.
6.8.3 Cause the Grant Deed, the Full Reconveyance, the
Mutual Cancellation and the Development Agreement Assignment, in that order, and
any other recordable instruments which the parties so direct, to be recorded in
the Official Records. Escrow Holder is hereby instructed not to affix the amount
of the documentary transfer tax on the face of the Deed but to
16
pay on the basis of a separate affidavit of Seller not made a part of the public
record, in accordance with Section 11932 of the California Revenue and Taxation
Code.
6.8.4 Cause each non-recorded document to be delivered to
the party acquiring rights thereunder, or for whose benefit such document was
obtained.
6.9 SELLER'S ELECTION OF 1031 EXCHANGE. Seller may elect to sell
the Property to Buyer in the form of a tax-deferred exchange pursuant to Section
1031 of the Internal Revenue Code of 1986, as amended (a "1031 Exchange"). In
the event that Seller shall so elect, Seller shall give written notice to Buyer
and Escrow Holder of such election not less than five (5) days before the Close
of Escrow and the following shall apply:
6.9.1 SIMULTANEOUS EXCHANGE. Seller shall attempt to
identify before the Closing other property which qualifies as "like-kind"
property for a 1031 Exchange (the "Target Property") by Seller giving written
notice to Buyer and Escrow Holder identifying the Target Property prior to the
Closing.
6.9.2 NON-SIMULTANEOUS EXCHANGE. If Seller has not so
identified the Target Property before the Closing Date, then Seller shall
proceed to Close of Escrow as provided in this Agreement unless Seller at its
option enters into an exchange agreement with an accommodation party
("Accommodator") in order to facilitate a non-simultaneous or so-called "Starker
deferred" exchange. If an Accommodator is so designated, Seller shall cause the
Accommodator (i) to acquire title to the Property from Seller at or before the
Closing, (ii) to transfer title to the Property to Buyer at the Closing for the
Purchase Price, and (iii) to acquire and convey the Target Property to Seller
after the Closing.
6.9.3 EXPENSES AND DOCUMENTS. Buyer shall cooperate with
any such 1031 Exchange, including but not limited to executing and delivering
additional documents reasonably requested or approved by Seller; provided, that
Buyer shall not be required to incur any additional Liabilities or financial
obligations as a consequence of any of the foregoing exchange transactions and
Buyer's cooperation shall be subject to the specific limitations set forth in
this Section. Without limiting the generality of the foregoing, Buyer shall not
be required to execute any agreement with an Accommodator unless such agreement
is required by Laws to effect such exchange. All expenses beyond those amounts
agreed to be paid by Buyer in this Agreement resulting from any aspect of the
1031 Exchange, and any difference in equity between the Target Property and the
Property, shall be borne solely by Seller. Any risk that such an exchange or
conveyance might not qualify as a tax-deferred transaction shall also be borne
by Seller. In no event shall the 1031 Exchange delay or extend the Closing Date.
Moreover, any out-of-pocket expenses incurred by Buyer in cooperating with such
exchange shall be credited against the Purchase Price.
In no event shall Buyer be required to take title to any
property, including the Target Property, other than the Property in connection
with the 1031 Exchange, and the Close of the Escrow shall not be contingent in
any way upon the acquisition of the Target Property. The 1031 Exchange shall not
relieve Seller from liability for any representation, warranty or covenant of
Seller or diminish any right or remedy of Buyer with respect to Seller. Buyer
shall not be liable to Seller for any adverse tax consequences suffered or
incurred by Seller in the event this
17
Agreement is terminated or fails to close on the Closing Date, whether or not
such termination or failure is due to an actual or alleged default by Buyer
hereunder. This Section 6.9.3 shall survive the Close of Escrow or termination
of this Agreement.
6.9.4 INDEMNITY. Seller shall defend, indemnify and hold
Buyer harmless against and reimburse Buyer for any claims, demands, actions,
liabilities, damages, losses, obligations, fines, penalties, costs and expenses,
including, without limitation, attorneys' fees and all court costs which may
arise or be asserted against Buyer in connection with the 1031 Exchange, which
are greater, by reason of Seller's participation in any 1031 Exchange, than
those which Buyer would have incurred were it not for such 1031 Exchange.
6.10 LANDLORD IMPROVEMENTS.
(a) As described in Section 5.1.3, the Substantial
Completion Date for the Landlord Improvements was December 1, 2003 and the final
punch-list for the Landlord Improvements has been agreed upon and the work
thereon has been completed, except as provided in Exhibit D, and possession of
the entire Property has been delivered to Buyer. Certain close-out items remain
to be accomplished. For that purpose, Seller and Buyer agree as follows:
(i) The Funding Account, as defined in Section
14.3 of the Lease, shall remain open until completion of the matters described
in this Section.
(ii) There is currently pending one draw request
as identified in Exhibit K ( "Draw Request No. 20"). Draw Request No. 20 is
hereby approved in the amount indicated on Exhibit K. Such Draw Request No. 20
shall be Funded through the Funding Account (and outside the Escrow hereunder)
prior to the Close of Escrow.
(iii) There are currently pending for approval
those change orders identified on Exhibit K (the "Pending Change Orders"). The
Pending Change Orders shall be processed and approved as provided in the Lease
and the instructions for the Funding Account. Upon approval of the Pending
Change Orders, Seller shall create a final Draw Request No. 21, and Buyer shall
deposit in the Funding Account its written approval thereof and the funds
necessary to pay the approved amounts. Upon the last of the approvals and
fundings pursuant to clause (ii) and this clause (iii), Seller shall make the
draws and the payments provided for in the Lease and the instructions for the
Funding Account.
(iv) Any new construction work by any Contractors
after the date of this Agreement (not reflected in the Contract or the Pending
Change Orders) shall be contracted for separately by Buyer and the Contractor,
and Seller shall not be involved therewith. Payment therefor shall be directly
by Buyer to Contractor outside of the Funding Account and there shall be no
Development Fee with respect thereto.
(v) There shall be no holdback with respect to
the Development Fees included in clauses (ii) and (iii) above.
(vi) Upon completion of the matters described in
clauses (ii) and (iii), all final fees due the escrow agent with respect to the
Funding Account shall be paid and the
18
Funding Account shall be closed and terminated. The termination of the Funding
Account shall not terminate Buyer responsibility to pay any subsequently
discovered Development Costs, to the extent such costs are properly chargeable
to Buyer as Development Costs under the applicable terms of the Lease.
(vii) The parties have attached hereto as Exhibit
M, a summary of the estimated Development Costs through the close-out, which
summary is attached hereto solely for reference purposes in connection with the
close-out of the Landlord Improvement work and the Funding account in accordance
with 6.10(b) above.
(b) Seller and Buyer shall reasonably cooperate to
attempt to "close-out" all required payments with respect to Landlord's
Improvements within thirty (30) days after the Closing Date. Such cooperation
shall include timely processing of the Pending Change Orders as well as
collecting and processing any other final fee and expense ▇▇▇▇▇▇▇▇ from all
consultants with respect to Landlord's Improvements. Nothing in this subsection
shall, however, defeat the last sentence of clause (a)(vi).
(i) Buyer acknowledges that, in connection with
Landlord's Improvements, the Orange County Sanitation District (the "District")
has requested Seller to execute and deliver an encroachment permit (the
"Permit"). Buyer has requested that Seller not execute and deliver the Permit.
Buyer shall be responsible to review the Permit, to negotiate the terms of the
Permit as Buyer deems necessary and, if Buyer so elects, to execute and deliver
the Permit. Seller shall have no responsibility with respect to the Permit, and
Buyer's release pursuant to Section 10.4 and any applicable indemnity
obligations under the Lease shall specifically extend to all claims by Buyer
and/or the District arising out of Seller's failure to execute and deliver the
Permit.
7. DEFAULTS AND REMEDIES
7.1 DEFAULT BY EITHER PARTY. If Escrow fails to close when and as
provided in Section 6.1 above (including any applicable extensions pursuant to
this Agreement) due to the failure of either party to perform any obligation
under this Agreement, then the nondefaulting party may elect, by written notice
to the defaulting party and to Escrow Holder, to terminate Escrow and this
Agreement. That termination shall be effective three (3) days after delivery of
such notice; provided, that (i) the nondefaulting party has performed or is in a
position to perform all conditions on its part to be performed as of the
termination date; and (ii) the defaulting party has not cured the default and
the nondefaulting party has not waived such default by the effective termination
date. Without in any way affecting the validity of such termination, both Buyer
and Seller agree to execute and deliver mutual termination instructions in a
form specified by Escrow Holder in order to satisfy Escrow Holder's reasonable
cancellation requirements. Except as otherwise provided in this Article 7,
Escrow Holder and the parties shall, upon such termination, return all of the
other party's funds and documents then held by them to the party depositing or
delivering the same. Thereafter, each of the parties shall be discharged and
released from all obligations and liabilities except as otherwise provided in
19
Sections 7.2, 7.3 and 7.4 and except for those obligations and liabilities which
are expressly intended to survive the termination of this Agreement.
7.2 CANCELLATION CHARGES. A defaulting party shall be liable for
all escrow, title cancellation and similar charges, in addition to any other
damages or remedies due the nondefaulting party (except as limited by Sections
7.1, 7.3 or 7.4). If Close of Escrow fails to occur for any reason other than a
party's default, Buyer and Seller shall each pay one-half (1/2) of any escrow,
title cancellation or similar charges.
7.3 LIQUIDATED DAMAGES. IF BUYER FAILS TO COMPLETE THE PURCHASE OF
THE PROPERTY AND SUCH FAILURE CONSTITUTES A BREACH OF THIS AGREEMENT, BUYER, BY
ITS INITIALS FOLLOWING THIS SECTION, AGREES THAT THE DEPOSIT AND ALL INTEREST
ACCRUED THEREON SHALL CONSTITUTE LIQUIDATED DAMAGES TO SELLER FOR SUCH BREACH
AND FAILURE TO CLOSE BY BUYER. THE PAYMENT OF SUCH AMOUNT IS NOT INTENDED AS A
FORFEITURE OR A PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS
3275 OR 3369 OR SIMILAR AUTHORITIES, BUT IS INTENDED TO CONSTITUTE LIQUIDATED
DAMAGES TO SELLER PURSUANT TO THE REQUIREMENTS OF CALIFORNIA CIVIL CODE SECTIONS
1671, 1676 AND 1677. BUYER AND SELLER AGREE THAT THE AFORESAID SUM IS A FAIR AND
REASONABLE AMOUNT FOR LIQUIDATED DAMAGES FOR SUCH A BREACH AND FAILURE TO CLOSE
UNDER THE CIRCUMSTANCES EXISTING AT THE TIME THIS AGREEMENT IS ENTERED INTO.
ESCROW HOLDER IS HEREBY AUTHORIZED AND INSTRUCTED TO RELEASE SUCH SUMS TO SELLER
UPON THE DELIVERY OF UNILATERAL WRITTEN INSTRUCTIONS TO ESCROW HOLDER BY SELLER,
AND ESCROW HOLDER IS HEREBY RELIEVED OF ALL LIABILITY THEREFOR. SELLER
ACKNOWLEDGES AND AGREES THAT SELLER'S RETENTION OF THE DEPOSIT AND THE ACCRUED
INTEREST THEREON PURSUANT TO THIS SECTION SHALL BE SELLER'S SOLE AND EXCLUSIVE
REMEDY AS TO SUCH DEFAULT(S) AND FAILURE TO CLOSE IN THE EVENT OF ANY DEFAULT(S)
AND FAILURE TO CLOSE BY BUYER. IT IS UNDERSTOOD AND AGREED THAT THIS SECTION
APPLIES ONLY TO A FAILURE OF BUYER TO CLOSE THE ESCROW, WHICH FAILURE IS A
DEFAULT OR BREACH OF THIS AGREEMENT. AS USED HEREIN, ALL REFERENCES TO THE
"DEPOSIT" SHALL MEAN THE AGGREGATE AMOUNT THEN HELD BY ESCROW HOLDER PURSUANT TO
ARTICLE 4.
20
NOTWITHSTANDING THE FOREGOING, (a) IN NO EVENT SHALL THIS
SECTION 7.3 LIMIT THE DAMAGES RECOVERABLE BY EITHER PARTY AGAINST THE OTHER
PARTY (i) UPON SUCH OTHER PARTY'S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS
AGREEMENT OR (ii) UPON OR WITH RESPECT TO THIRD PARTY CLAIMS AND (b) THIS
SECTION 7.3 SHALL NOT LIMIT SELLER'S RIGHT TO RECOVER COSTS, EXPENSES AND
ATTORNEYS' FEES TO ENFORCE THE PROVISIONS OF THIS SECTION 7.3. NOTWITHSTANDING
ANYTHING TO THE CONTRARY HEREIN, NEITHER BUYER'S DEFAULT HEREUNDER NOR SELLER'S
TERMINATION OF THIS AGREEMENT AS A RESULT THEREOF SHALL TERMINATE THE LEASE.
----------------- -----------------
Seller's Initials Buyer's Initials
7.4 SPECIFIC PERFORMANCE BY SELLER. If Seller defaults under any
obligation in this Agreement, then in lieu of termination as provided in Section
7.1, Buyer may compel specific performance by Seller of Seller's obligation to
convey the Property as provided herein. In addition, Buyer may recover any
provable actual damages which Buyer may incur as the result of such default by
Seller, in addition to such specific performance. In no event, however, shall
Seller ever be liable for any punitive or consequential damages and Buyer hereby
specifically waives the right to recover the same. Actual damages recoverable by
Buyer may include those provided for in Sections 11 and 12.2 below. By its
signature hereto, Seller acknowledges that damages would be an inadequate remedy
to Buyer in the event of a default by Seller pursuant to this Agreement and
consents to the entry of an order or judgment for specific performance in the
event of a default by Seller. Nothing contained in this Section shall preclude
Buyer from recovering the Deposit and Buyer's attorneys' fees and expenses of so
doing pursuant to Section 12.2 if Seller defaults and Buyer elects not to seek
specific performance.
8. REPRESENTATIONS AND WARRANTIES
8.1 IN GENERAL. In addition to any express agreements of either
party contained herein, the following constitute representations and warranties
by each party to the other, which shall be true and correct as of the Close of
Escrow, and the truth and accuracy of such representations shall constitute a
condition to the Close of Escrow for the benefit of the party to whom such
representations and warranties were made.
8.2 BY EACH PARTY. Each party hereto covenants, represents and
warrants to the other as follows:
8.2.1 AUTHORITY. Such party has full power and authority to
enter into and comply with the terms of this Agreement, and the individuals
executing this Agreement on behalf of such party have actual right and authority
to bind that party to the terms of this Agreement.
8.2.2 BINDING EFFECT. No action or consent which has not
been obtained is necessary to make this Agreement, and this Agreement and all
documents to be executed
21
hereunder are, the valid and legally binding obligations of such party,
enforceable in accordance with their respective terms.
8.2.3 COMPLIANCE. To the best knowledge of such party, this
Agreement and that party's performance of the obligations herein contained do
not and will not contravene any provision of any present judgment, order,
decree, writ or injunction, or any provision of any Laws currently applicable to
such party, or any evidence of indebtedness or security therefor or other
agreement to which such party is a participant or by which any of such party's
properties may be bound.
8.3 BY SELLER ONLY.
8.3.1 NOT A FOREIGN PERSON. Seller represents and warrants
to Buyer, in accordance with Section 1445 of the Internal Revenue Code and
Sections 18805, 18815 and 26131 of the California Revenue and Taxation Code,
that (a) Seller is not now, and at Closing will not be, a "foreign person," and
(b) Buyer need not withhold tax at the Closing as a result of this transfer.
8.3.2 AGREEMENTS. There are no agreements entered into by
Seller concerning the operation and maintenance of the Property which would bind
Buyer or the Property for more than thirty (30) days after the Close of the
Escrow, other than the Title Exceptions and the Permitted Development Easements.
8.3.3 DOCUMENTS. Seller has delivered to Buyer copies of
all Diligence Documents in Seller's possession or under Seller's control. The
copies are true and correct copies of such Diligence Documents as are in
Seller's possession.
8.3.4 HAZARDOUS MATERIALS. Except as described in Section
5.4 of this Agreement, to the best of Seller's actual knowledge, but with no
duty to investigate, there are no hazardous materials located in, on or under
the Land or located near the Land which could migrate onto the Land.
8.3.5 ORGANIZATION. Seller and each partner of Seller which
is not a natural person has been duly organized and is validly existing under
the laws of the State of California. Seller has the full right, power and
authority to execute and deliver this Agreement and to perform the obligations
of Seller hereunder. The persons executing this Agreement on behalf of Seller
are authorized to do so and to bind Seller to the obligations of Seller
hereunder.
8.3.6 FEE OWNERSHIP. Seller is the fee owner of the
Property and no person or entity other than Buyer has any present or future
right (whether or not contingent) to occupy, use or acquire any interest in the
Property, or any portion thereof, except as listed in the Title Report.
8.3.7 NO LITIGATION. There is no action, suit, arbitration,
unsatisfied order or judgment, governmental investigation or proceeding pending,
or to Seller's knowledge, threatened against Seller which, if determined
adversely to Seller, could individually or in the aggregate materially interfere
with the rights of Buyer hereunder. There is no litigation which has been filed
against Seller that arises out of ownership of the Property and which, if
22
determined adversely to Seller, would materially adversely affect the Property,
the Intended Use, as defined in the Lease, or Seller's ability to perform
hereunder.
8.3.8 CONDEMNATION. Seller has not received any written
notice of any condemnation proceeding related to the Property.
8.3.9 ZONING. The Sale Land is currently in the Planned
Development Industrial zoning classification of the City of Costa Mesa (the
"City").
8.3.10 NO VIOLATION. Seller has not received any written
notice from any governmental entity or agency alleging that the Property
violates any provision of any federal or state statute or any ordinance of the
City.
8.3.11 UTILITY SERVICE. Main water, sewer, gas, electrical
and telephone lines are available in the streets adjacent to the Sale Land for
connections from such main lines to the Improvements constructed or to be
constructed on the Sale Land.
8.3.12 DEVELOPMENT AGREEMENT. The Development Agreement has
not been terminated, cancelled, modified or amended and there are no proceedings
pending or threatened to cancel, terminate, modify or amend the Development
Agreement, except as set forth in the Development Agreement Assignment.
8.3.13 ENTITLEMENT AND TRIP BUDGET. The Floor Area, as
defined in the Lease, entitlement of the Sale Land is a 0.4 FAR (the
"Entitlement"). The trip budget for the Sale Land is 376 trips (AM) and 362 (PM)
(the "Trip Budget"). There are no proceedings pending or threatened to modify
the zoning of, the Entitlement of or the Trip Budget for the Sale Land.
For purposes of Sections 8.2.3, 8.3.4 and 8.3.7, Seller's
knowledge shall mean to the knowledge of Seller's agents, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
J. ▇▇▇▇▇▇ ▇▇▇▇, and as to 8.3.4 only, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇.
Notwithstanding anything herein to the contrary, all
representations and warranties set forth in this Section 8 shall survive the
Closing for a period of one (1) year thereafter, but only as to claims made by a
demand for arbitration filed and served within one (1) year after the Closing
Date, or shall be forever barred.
9. CERTAIN EVENTS PRIOR TO CLOSING
If any portion of the Property, or any interest therein, is taken
before the Closing Date as a result of any street widening or other condemnation
(including the filing of any notice of intended condemnation or proceedings in
the nature of eminent domain), Seller shall immediately give Buyer notice of the
taking. Buyer shall nonetheless proceed with the purchase of the Property and
consummate this Agreement in accordance with its terms, and all awards payable
by reason of such taking shall belong to Buyer.
Notwithstanding the foregoing, in the event of any taking by
condemnation (including the filing of any notice of intended condemnation or
proceedings in the nature of eminent domain or the threat of such proceedings)
prior to the Closing Date of such portion of the Property as shall
23
adversely affect the ability of Buyer to utilize the remainder of the Property
for the Intended Use, Buyer shall have the option to terminate this Agreement.
Such option shall be exercised, if at all, by written notice to Seller and
Escrow Holder given within fifteen (15) days after Buyer's receipt from Seller
of written notice of such taking or intended taking and the portion of the
Property taken or proposed to be taken. If Buyer is entitled to terminate and
timely and properly terminates this Agreement pursuant to this Article 9, then:
(a) This Agreement shall terminate upon Seller's receipt
of Buyer's notice of termination;
(b) All instruments in Escrow shall be returned to the
party depositing the same;
(c) Buyer and Seller shall each pay one-half (-1/2) of
all Escrow and title cancellation charges;
(d) Neither party shall have any further rights,
obligations or liabilities whatsoever to the other party concerning the Property
by reason of this Agreement except as expressly stated in this Agreement to
survive termination; and
(e) The Lease shall continue in effect unless terminated
pursuant to Section 10.1 thereof.
If Buyer does not timely and properly terminate this Agreement pursuant to this
Article 9, then the first paragraph hereof shall apply with respect to such
taking or proposed taking.
10. POST-CLOSING MATTERS
10.1 CONFIDENTIALITY. Each party shall hold in strict confidence
the terms and conditions set forth in this Agreement, and the other information
related to the Property obtained from the other (collectively, "Confidential
Information"). Notwithstanding the foregoing, neither party shall incur
liability for disclosure of Confidential Information: (a) to its employees and
employees of its affiliates, accountants, attorneys, insurance brokers,
consultants, and others to the extent such disclosure is necessary or desirable
in connection with Buyer's evaluation of the Property (in which event, to the
fullest extent possible, the person receiving the information shall be informed
of its confidential nature and instructed to maintain the confidentiality of the
same), (b) that is, or hereafter becomes, part of the public domain other than
through a breach by Buyer or Seller of its obligations in this paragraph, (c)
that Buyer receives from a third party who is not under the confidentiality
obligations contained in this paragraph, (d) in response to a subpoena in
litigation, or (e) as otherwise necessary in connection with litigation or as
required by law. Each party will use reasonable efforts to consult with the
other prior to responding to any inquiries made by any third party respecting
the transactions contemplated by this Agreement. Whether or not the Escrow
closes, each party shall treat as Confidential Information the Purchase Price
for a period of twelve (12) months after Close of Escrow or termination of this
Agreement, as applicable. Notwithstanding the foregoing, Seller and Buyer
acknowledge and agree that Buyer may or will be required to disclose the terms
hereof and/or to file this Agreement in or with Buyer's public filings pursuant
to the Securities Act of 1933, the Securities Exchange Act of 1934 or the rules
and regulations under such acts.
24
10.2 SELLER'S CONSTRUCTION WARRANTY. Neither anything contained in
this Agreement nor the Close of the Escrow shall terminate or otherwise affect
Seller's obligations contained in Section 6.1(b) of the Lease, all of which
obligations shall survive for the entire period set forth in such Section (the
"Warranty Period"). The obligations of Seller pursuant to such Section 6.1(b)
are herein referred to as "Seller's Warranty Obligations."
10.3 ASSIGNMENT OF WARRANTIES. Upon the expiration of the Warranty
Period, Seller shall deliver to Buyer the originals of all Warranties. To the
extent that any Warranty runs in favor of a parent, subsidiary or affiliate of
Seller or any other person or entity acting on behalf of or for Seller, Seller
shall cause such parent, subsidiary, affiliate or other person to join in such
assignment. For this purpose, Seller acknowledges that Buyer may transfer title
to the Property to its affiliate, Emulex Design & Manufacturing Corporation
("EDMC") or another affiliate which controls, is controlled by or is under
common control with Buyer (an "Affiliate"). If Buyer transfers the Property to
EDMC or another Affiliate prior to expiration of the Warranty Period, then
Section 10.2 and this Section 10.3 shall thereafter run in favor of EDMC or the
Affiliate transferee, as applicable.
10.4 GENERAL RELEASE AND INDEMNIFICATION.
(a) Except as expressly provided to the contrary in this
Agreement, Buyer hereby releases the "Releasees" hereunder, consisting of Seller
and each of its past, present and future partners, officers, trustees,
beneficiaries, members, managers, employees, agents, representatives, attorneys,
successors and assigns, or any of them, of and from any and all manner of action
or actions, cause or causes of action, in law or in equity, suits, debts, liens,
contracts, agreements, promises or Liabilities of any nature whatsoever, known
or unknown, fixed or contingent, arising out of, based upon or relating to the
Property, including the existence of toxic or hazardous wastes or materials of
any kind, on, under or about the Property, or arising from any use of the
Property, including, any claims for contribution or reimbursement pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 6601, et seq.), or any other or similar
state or federal environmental statute, rule or decision.
The foregoing release shall not apply to (i) any claims with
respect to the rights reserved (i.e., minerals, water, etc.) by Seller as
described in Section 1.7, (ii) any claim in connection with a breach of a
representation, warranty or indemnification obligation hereunder, (iii) claims
for indemnification by Buyer pursuant to Section 13.7(b) of the Lease, (iv) the
other obligations of Seller which survive the Close of Escrow as provided in
this Agreement, (v) the obligations of Seller pursuant to Article 11 of this
Agreement and Section 6.1(b) of the Lease and (vi) any claim for fraud on the
part of Seller in connection with this Agreement or the Lease. Section 12.2
shall apply with respect to any claims of the types described in clauses (i)
through (vi). Any claim described in this paragraph must be made by a demand for
arbitration filed and served within one (1) year after the Closing Date or shall
be forever barred. Provided, however, that, as to the representations and
warranties to be set forth in the assignment provided for in Section 10.3, such
one (1) year period shall run from the date of delivery of such assignment to
Buyer In addition, Buyer agrees that it will not initiate any action (but
excluding a cross-complaint for purposes of bringing Seller into any action
initiated by a third party) against Seller pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of
25
1980, as amended, or any other or similar state or federal environmental
statute, rule, or decision, but shall not be required to indemnify Seller
against any liability which Seller may have under any such statute, rule or
decision as the result of Seller's ownership of the Property.
BUYER ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY LEGAL COUNSEL
AND IS FAMILIAR WITH 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."
BUYER, BEING AWARE OF THIS CODE SECTION, HEREBY EXPRESSLY
WAIVES ANY RIGHTS IT MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR
COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
------------------
Buyer's Initials
(b) In addition to the other indemnities of Buyer
contained herein, those provisions of the Lease by which Buyer indemnifies
Seller from and against Liabilities based upon or relating to the Property,
whether accruing prior to or after the Closing Date, shall survive the Closing.
Payment shall not be a condition precedent to enforcement of any such
indemnification provision.
(c) The provisions of this Section 10.4 shall survive the
execution and delivery of this Agreement and the Grant Deed and the occurrence
of the Closing.
11. BROKERS
Seller shall pay to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc. ("Broker") a commission
with respect to that portion of the Property denominated as the Expansion Land
in the Lease. Such commission shall be in the amount of $89,960.11 and shall be
payable at the time determined in that certain letter agreement dated July 20,
2001 (with any amendments thereto, the "Letter") between Seller and Broker and
shall not be included in Development Costs pursuant to the Lease. Seller shall
indemnify, defend and hold Buyer and the Property harmless against any liability
for the commission due Broker pursuant to the Letter with respect to the within
sale. The last two sentences of the next succeeding paragraph shall also apply
with respect to such indemnification obligation.
Except as provided in the immediately preceding paragraph, Seller and
Buyer each represents and warrants to the other that no broker or finder or
other real estate agent is entitled to any commission, finder's fee or other
compensation with respect to this Agreement resulting from any action on its
part. Each party agrees to indemnify, defend, protect and hold the other party
and the Property harmless against any liability for any broker's commission or
finder's fee
26
for which it is responsible or which is asserted as a result of its own act or
omission in connection with this transaction. Payment shall not be a condition
precedent to enforcement of the foregoing indemnification provision. The
foregoing indemnification provision shall include a covenant by each
indemnifying party to defend the indemnified party against all claims for which
indemnification is available with legal counsel selected by its liability
insurance carrier or otherwise reasonably satisfactory to the indemnified party.
12. MISCELLANEOUS PROVISIONS
12.1 ASSIGNMENT; BINDING ON SUCCESSORS. This Agreement shall be
binding upon and shall inure to the benefit of Buyer and Seller and their
respective representatives, successors and assigns; provided, however, that
Buyer shall not have the right to assign this Agreement or any interest or right
under this Agreement or under the Escrow or to appoint a nominee to act as Buyer
under this Agreement without obtaining the prior written consent of Seller,
which consent shall be in the sole and absolute discretion of Seller. No such
assignment shall relieve Buyer of its obligations hereunder. Any attempted
assignment in violation of this provision shall be null and void.
12.2 FEES AND OTHER EXPENSES. Except as otherwise provided herein,
each of the parties hereto shall pay its own fees and expenses in connection
with this Agreement. In any dispute or action between the parties arising out of
this Agreement or the Escrow, or in connection with the Property, the prevailing
party shall be entitled to have and recover from the other party all losses,
damages, costs and expenses (including without limitation court costs and
reasonable attorneys' fees) related thereto, whether by final judgment or by out
of court settlement.
12.3 APPROVAL AND NOTICES. Any approval, disapproval, demand,
document or other notice or communication (collectively, a "Notice") required or
permitted to be given hereunder shall be in writing and may be served
personally, by commercial delivery or private courier service, by registered or
certified mail (return receipt requested, postage prepaid) or by facsimile
transmission. Any Notice shall be effective (i) upon personal delivery, (ii)
when received or refused as indicated by the date on the return invoice or
receipt showing delivery or refusal or (iii) upon receipt of a legible
transmission on a Business Day. The parties' addresses for Notices are as
follows:
TO BUYER: Emulex Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇,
EVP HR and Facilities
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
COPIES TO: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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TO SELLER: ▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Sons
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
COPIES TO: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Twentieth Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Notice of change of address shall be given by written Notice in the manner
detailed in this paragraph. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no Notice was given
shall be deemed to constitute receipt of the Notice.
12.4 JURISDICTION. This Agreement shall be construed under the laws
of the State of California. Venue and jurisdiction of any action arising out of
this Agreement shall exclusively be in any state or federal court sitting in the
County of Orange, State of California.
12.5 INTERPRETATION. Each provision herein shall be construed in
all cases as a whole according to its fair meaning, neither strictly for nor
against either Buyer or Seller and without regard for the identity of the party
initially preparing this Agreement. Titles and captions are inserted for
convenience only and shall not define, limit or construe in any way the scope or
intent of this Agreement. References to sections are to sections as numbered in
this Agreement unless expressly stated otherwise.
12.6 GENDER; JOINT OBLIGATIONS. As used in this Agreement, the
masculine, feminine or neuter gender and the singular or plural number shall
each be deemed to include the others where and when the context so dictates. If
more than one party is the Buyer or Seller hereunder, the obligations of all
such parties shall be joint and several.
12.7 NO WAIVER. A waiver by either party of a breach of any of the
covenants, conditions or agreements to be performed by the other party shall not
be construed as a waiver of any succeeding breach of the same or other
covenants, conditions or agreements.
12.8 MODIFICATIONS. Any alteration, change or modification of or to
this Agreement, in order to become effective, must be made in writing and in
each instance signed on behalf of each party to be charged.
12.9 SEVERABILITY. If any term, provision, condition or covenant of
this Agreement or its application to any party or circumstances shall be held,
to any extent, invalid or unenforceable, the remainder of this Agreement, or the
application of the term, provision, condition or covenant to persons or
circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted by law.
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12.10 SURVIVAL. Each representation, warranty, covenant and
agreement of the parties to be performed hereunder after the Closing, shall,
subject to the time limitations set forth in Article 8 and the provisions of
Section 10.4, survive Close of Escrow until full performance of such
obligations.
12.11 MERGER OF PRIOR AGREEMENTS. This Agreement and the Exhibits
hereto contain the entire understanding between the parties relating to the sale
transaction contemplated by this Agreement. All prior or contemporaneous
agreements, understandings, representations and statements, whether direct or
indirect, oral or written, are merged into and superseded by this Agreement, and
shall be of no further force or effect. In connection with the foregoing, those
portions of the Lease governing the purchase of the Property by Buyer from
Seller are subsumed into and superseded by the provisions of this Agreement.
Those portions of the Lease which are not so superseded shall survive the
Closing Date as necessary to give effect to the rights and obligations of the
parties hereunder and thereunder until fulfillment of such rights and
satisfaction of such obligations in full. Moreover, all provisions of the Lease
to which reference is made herein for the purpose of any determination required
pursuant to this Agreement are incorporated herein by this reference. Either
party may deliver to Escrow Holder along with this Agreement a true and complete
copy of the Lease. By its signature hereto, Escrow Holder agrees to comply with
the provisions of Section 10.1 with respect to the Lease.
12.12 TIME OF ESSENCE. Time is of the essence of this Agreement.
12.13 COUNTERPARTS. This Agreement may be signed in multiple
counterparts which, when duly delivered and taken together, shall constitute a
single binding Agreement between the parties. It shall not be necessary for both
parties to execute the same counterparts of this Agreement for this Agreement to
become effective.
12.14 EXHIBITS. All exhibits attached to this Agreement are
incorporated herein by reference.
12.15 COOPERATION OF PARTIES. Each party agrees to execute and
deliver any other and further instruments and documents and take such other
actions as may be reasonably necessary or proper in order to accomplish the
intent of this Agreement. The foregoing covenant shall not require either party
to pay any costs or assume any obligations other than or in addition to those to
be paid or assumed by such party pursuant to this Agreement.
12.16 PRELIMINARY CHANGE OF OWNERSHIP REPORT. Buyer shall be fully
responsible for all matters in connection with the filing of a Preliminary
Change of Ownership Report in accordance with California Revenue and Taxation
Code Section 480.3.
12.17 NO THIRD PARTY BENEFICIARIES. The provisions of this Agreement
are intended to be solely for the benefit of the parties hereto, and the
execution and delivery of this Agreement shall not be deemed to confer any
rights upon, nor obligate either of the parties hereunder, to any person or
entity other than the parties to this Agreement.
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12.18 ALTERNATIVE DISPUTE RESOLUTION PROCEDURE.
(a) Except as provided in subsection (b) below, any
controversy, dispute or claim of whatsoever nature arising out of, in connection
with, or in relation to the interpretation, performance or breach of this
Agreement, including any claim based on contract, tort or statute, shall be
determined by final and binding arbitration conducted before a single arbitrator
at a location determined by the arbitrator in Orange County, California and
administered by Judicial Arbitration & Mediation Services, Inc. ("JAMS"), or if
JAMS shall not then exist, such other organization as to which Seller and Buyer
agree. If Seller and Buyer are unable to so agree within fifteen (15) days after
the dispute arises, the organization shall be selected by the presiding judge of
the Orange County Superior Court or his or her designee upon application by any
party to the dispute. Judgment upon any award rendered by the arbitrator may be
entered by any state or federal court having jurisdiction thereof.
(b) The provisions of this Section shall not apply to:
(i) Any specific controversy, dispute, question
or issue as to which this Agreement specifically provides another method of
determining such controversy, dispute, question or issue and provides that a
determination pursuant to such method is final and binding, unless both Seller
and Buyer agree in writing to waive such procedure and to proceed instead
pursuant to this Section.
(ii) Any request or application to any state or
federal court having jurisdiction thereof for an order or decree granting any
provisional or ancillary remedy (such as a temporary restraining order or
injunction) in aid of or with respect to any right or obligation of either party
to this Agreement, and any preliminary determination of the underlying
controversy, dispute, question or issue as is required to determine whether or
not to grant the relief requested or applied for. A final and binding
determination of such underlying controversy, dispute, question or issue shall
be made by an arbitration conducted pursuant to this Section after an
appropriate transfer or reference to JAMS upon motion or application of either
party hereto. Any ancillary or provisional relief which is granted pursuant to
this clause (ii) shall continue in effect pending an arbitration determination
and entry of judgment thereon pursuant to this Section.
(iii) Exercise of any remedies to enforce any
judgment entered based upon a determination made by arbitration pursuant to this
Section.
(c) Any arbitration pursuant to this Section shall be
conducted in accordance with the streamlined Arbitration Rules and Procedures of
JAMS (the "Rules"), regardless of the amount in dispute, except that, whether or
not such Rules so provide:
(i) There shall be a pre-hearing conference
prior to the arbitration hearing to reach agreement on procedural matters,
arrange for the exchange of information, obtain stipulations and attempt to
narrow the issues to be arbitrated.
(ii) There shall be no mediation or settlement
conferences unless all parties agree thereto in writing.
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(iii) Discovery shall be limited to that permitted
by the Rules, and "good cause" where a condition to discovery shall be strictly
construed.
(iv) All motions shall be in letter form and
hearings thereon shall be by conference telephone calls unless the arbitrator
orders otherwise.
(v) Hearings shall require only twenty (20) days
prior written notice.
(vi) All notices in connection with any
arbitration may be served in any manner permitted by Section 12.3 of this
Agreement.
(vii) Fees and costs paid or payable to JAMS shall
be included in "expenses" for purposes of Section 12.2. The arbitrator shall
specifically have the power to award to the prevailing party such party's
reasonable expenses incurred in such proceeding, except as otherwise provided in
subsection (d) below. Reasonable expenses shall include attorneys' fees and fees
and costs paid or payable to JAMS.
(viii) The selection of the arbitrator shall be in
accordance with the then existing Rules of JAMS, provided that Seller and Buyer
may agree to extend the period of time by which an arbitrator must be selected
by them. In the event that the parties are unable to agree upon an arbitrator
within thirty (30) days after submission of a matter to arbitration, the
arbitrator shall be appointed by the administrator of the Orange County office
of JAMS or its successor, if any, as provided in the Rules.
(ix) The arbitration award shall include findings
of fact and conclusions of law and shall not be limited as to amount.
(d) As soon as practicable after selection of the
arbitrator, the arbitrator or his or her designated representative shall
determine a reasonable estimate of anticipated fees and costs of the arbitrator
and shall deliver a statement to each party setting forth that party's pro rata
share of such fees and costs. Each party shall deposit its pro rata share of
such fees and costs with the arbitrator within ten (10) days after receipt of
such statement. If either party fails to make a required deposit hereunder, the
other party may make such deposit on behalf of the defaulting party and the
amount of such deposit, plus interest thereon at ten percent (10%) per annum,
shall be awarded against the defaulting party by the arbitrator in making any
final arbitration award without regard to whether the defaulting party is the
prevailing party in the arbitration pursuant to this Section.
(e) The arbitrator shall have no authority or power to
award any party any exemplary or punitive damages.
12.19 PROPERTY DISCLOSURES. As required by California law, Seller
has delivered to Buyer a natural hazards disclosure report with respect to the
Sale Land.
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12.20 ESCROW HOLDER NOT TO BE CONCERNED. Sections 5.4, 6.10, 8.1,
8.2, 8.3, 10, 12.19, 12.21 and 12.23 are agreements solely between Seller and
Buyer, and Escrow Holder need not be concerned therewith.
12.21 POSSESSION. As to any portion of the Property of which Buyer
does not currently hold possession, Buyer shall be entitled to possession of the
Property from and after the Closing Date.
12.22 CALCULATION OF DAYS. Whenever, as to any action to be taken
within a specified number of days, the last day of the specified period is a
Saturday, Sunday or recognized legal holiday, such specified period shall be
deemed to expire on the first succeeding day which is not a Saturday, Sunday or
recognized legal holiday.
12.23 COVENANT AS TO TRIP ENDS. Tenant covenants that, with respect
to Tenant's use of the Property, Tenant shall not, at any time, utilize or
attempt to utilize any additional trips allocated to the balance of the Home
Ranch except by transfer from the owner of those trips.
[SIGNATURE PAGES FOLLOWING]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"BUYER": "SELLER":
EMULEX CORPORATION, a California ▇.▇. ▇▇▇▇▇▇▇▇▇▇ & SONS, a California
corporation general partnership
By __________________________________ By
▇▇▇▇ ▇. ▇▇▇▇▇▇ ________________________________
Chairman and Chief Executive Manager
"ESCROW HOLDER": By HTS MANAGEMENT CO., INC.,
a California corporation, Manager
The undersigned acknowledges receipt
of this Agreement and agrees to act in By _________________________________
accordance with all applicable Sr. Vice President
provisions contained herein.
CHICAGO TITLE COMPANY, a California
corporation
By ______________________________
Title: ______________________________
Dated: ________________________, 2004
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