EXHIBIT 10.1
PURCHASE AND SALE CONTRACT
BETWEEN
SERRAMONTE PLAZA
AS SELLER
AND
STRATEGIC ACQUISITION CORPORATION
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of
the 6th day of July,1999 (the "Effective Date") by and between SERRAMONTE
PLAZA, a California limited partnership, having a principal address at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller") and
STRATEGIC ACQUISITION CORPORATION, a Delaware corporation, having a principal
address at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to the following parcels of real estate located in
San Mateo County, California, as more particularly described in Exhibit A
attached hereto and made a part hereof. Improvements have been constructed on
the parcels described in this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date (as hereinafter defined) the Property will be conveyed by grant
deed to Purchaser.
R-3. The Property is currently encumbered by the Deed of Trust (as hereinafter
defined). The Closing shall be conditioned upon, among other things, Lender's
(a) consent in writing to the assumption of the Loan by Purchaser, and (b)
release from the lien of the Deed of Trust that portion of the Property legally
described on Exhibit C attached hereto.
R-4. Purchaser has agreed to pay to Seller the Purchase Price (as hereinafter
defined) for the Property, and Seller has agreed to sell the Property to
Purchaser on the terms and conditions set forth below.`
R-5. Purchaser has made such investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser has deemed
necessary and desirable, has approved the same in all respects, subject only to
the representations, warranties and covenants set forth in this Purchase
Contract and does hereby agree to consummate the transactions contemplated by
this Purchase Contract as set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract shall have the
meanings set forth in this Article 1 below.
1.1.1 "BUSINESS DAY" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the State of California.
1.1.2 "CLOSING" means the consummation of the purchase and sale and related
transactions contemplated by this Purchase Contract in accordance with the
terms and conditions of this Purchase Contract.
1.1.3 "CLOSING DATE" means the date on which date the Closing of the
conveyance of the Property is held under the terms and conditions of this
Purchase Contract and on which date full payment of the Purchase Price for
the Property shall have been paid to and received by Seller in immediately
available U.S. funds. Subject to the terms and conditions of this Purchase
Contract, the Closing Date shall be within Forty (40) days following the
expiration of the Feasibility Period.
1.1.4 "COMMERCIAL LEASE(S)" means the interest of Seller in and to all
leases, subleases and other occupancy agreements, whether or not of record,
which provide for the use or occupancy of space or facilities on or
relating to the Property and which are in force as of the Closing Date.
1.1.5 "DEED OF TRUST" means that certain Deed of Trust, Security Agreement,
Fixture Filing and Assignment of Leases and Rents dated June 27, 1997,
executed by Seller, as Trustor, to Lawyers Title Insurance Corporation, as
Trustee, for the benefit of ▇▇▇▇▇▇ Brothers Holdings Inc. d/b/a ▇▇▇▇▇▇
Capital, a Division of ▇▇▇▇▇▇ Brothers Holdings Inc, as Beneficiary, and
recorded on July 2, 1997 as Instrument No. 97080016 in the Official Records
of San Mateo County, California.
1.1.6 "EXCLUDED PERMITS" means those Permits which, under applicable law,
are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.6 if any, attached hereto.
1.1.7 "FEASIBILITY PERIOD" shall have the meaning ascribed thereto in
Section 5.1.
1.1.8 "FIXTURES AND TANGIBLE PERSONAL PROPERTY" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus,
appliances and other articles of personal property now located on the Land
or in the Improvements as of the date of this Purchase Contract and used or
usable in connection with any present or future occupation or operation of
all or any part of the Property. The term "Fixtures and Tangible Personal
Property" does not include (i) equipment leased by Seller and the interest
of Seller in any equipment provided to the Property for use, but not owned
or leased by Seller, as expressly identified in Exhibit 1.1.8 or (ii)
property owned or leased by Tenants and guests, employees or other persons
furnishing goods or services to the Property or (iii) property and
equipment owned by Seller, which in the ordinary course of business of the
Property is not used exclusively for the business, operation or management
of the Property, as expressly identified in Exhibit 1.1.8, or (iv) the
property and equipment, if any, expressly identified in Exhibit 1.1.8.
1.1.9 "IMPROVEMENTS" means all buildings and improvements, located on the
Land taken "as is" (subject to any express representations or warranties of
Seller contained herein).
1.1.10 "LAND" means all of those certain tracts of land located in the State
of California, commonly known as Serramonte Plaza (described on Exhibit A
attached hereto), and all rights, privileges and appurtenances pertaining
thereto.
1.1.11 "LENDER" means ▇▇▇▇▇▇ Brothers Holdings Inc. d/b/a ▇▇▇▇▇▇ Capital, a
Division of ▇▇▇▇▇▇ Brothers Holdings Inc.
1.1.12 "LOAN" means that certain loan in the original principal amount of
$12,000,000.00, made on or about June 27, 1997 by Lender to Seller,
evidenced by a promissory note dated June 27, 1997 in the original
principal amount of $12,000,000.00 (with an approximate unpaid principal
balance as of the date of this Purchase Contract of $11,420,648.00),
executed by Seller in favor of Lender, and secured by the Deed of Trust.
1.1.13 "MISCELLANEOUS PROPERTY ASSETS" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property
and owned by Seller, excluding, however, (i) receivables, (ii) Property
Contracts, (iii) Commercial Leases, (iv) Permits, (v) cash or other funds,
whether in ▇▇▇▇▇ cash or house "banks," or on deposit in bank accounts or
in transit for deposit, (vi) refunds, rebates or other claims, or any
interest thereon, for periods or events occurring prior to the Closing
Date, (vii) utility and similar deposits, (viii) insurance or other prepaid
Items or (ix) books and records, except to the extent that Seller receives
a credit on the Closing Statement for any such item.
1.1.14 "PERMITS" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the matter
to which the applicable license or permit applies and owned by Seller or
used in or relating to the ownership, occupancy or operation of the
Property or any part thereof.
1.1.15 "PERMITTED EXCEPTIONS" means those exceptions or conditions permitted
to encumber the title to the Property in accordance with the provisions of
Section 6.2.
1.1.16 "PROPERTY" means the Land and Improvements and all rights of Seller
relating to the Land and the Improvements, including without limitation,
any rights, title and interest of Seller, if any, in and to (i) any strips
and gores adjacent to the Land and any land lying in the bed of any street,
road, or avenue opened or proposed, in front of or adjoining the Land, to
the center line thereof; (ii) any unpaid award for any taking by
condemnation or any damage to the Property by reason of a change of grade
of any street or highway; (iii) all of the easements, rights, privileges,
and appurtenances belonging or in any way appertaining to the Property;
(iv) all Commercial Leases; together with all Fixtures and Tangible
Personal Property, the right, if any and only to the extent transferable,
of Seller in and to Property Contracts, Permits other than Excluded Permits
and the Miscellaneous Property Assets owned by Seller which are located on
the Property and used in its operation.
1.1.17 "PROPERTY CONTRACTS" means all purchase orders, maintenance, service,
or utility contracts and similar contracts, which relate to the ownership,
maintenance, construction or repair and/or operation of the Property and
which Purchaser has elected in writing to assume prior to the expiration of
the Feasibility Period, except Commercial Leases.
1.1.18 "PURCHASE CONTRACT" means this Purchase and Sale Contract by and
between Seller and Purchaser.
1.1.19 "PURCHASE PRICE" means the total consideration to be paid by Purchaser
to Seller for the purchase of the Property.
1.1.20 "SURVEY" shall have the meaning ascribed thereto in Section 6.12.
1.1.21 "TENANT" means any person or entity entitled to occupy any portion of
the Property under a Commercial Lease.
1.1.22 "TITLE COMMITMENT" or "Title Commitments" shall have the meaning
ascribed thereto in Section 6.1.
1.1.23 "TITLE INSURER" shall have the meaning set forth in Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms
and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be
Twenty Million One Hundred Fifty Thousand Dollars ($20,150,000.00), which
shall be paid by Purchaser, as follows:
3.1.1 On the first Business Day after the Effective Date, Purchaser shall
deliver to Fidelity National Title Insurance Company ("Escrow Agent" or the
"Title Insurer") a deposit in the sum of One Hundred Thousand and no/100
Dollars ($100,000.00), in cash, (such sum being hereinafter referred to and
held as the "Initial Deposit"). Purchaser and Seller each approve the form
of Escrow Agreement attached as Exhibit B. In addition, within one (1) day
after the expiration of the Feasibility Period (as hereinafter defined),
provided Purchaser has not terminated this Purchase Contract prior to the
expiration of the Feasibility Period, Purchaser shall also deliver to
Escrow Agent an additional deposit in the sum of One Hundred Thousand and
no/100 Dollars ($100,000.00) in cash (such sum being hereinafter referred
to and held as the "Additional Deposit"). The Initial Deposit and the
Additional Deposit, together with any accrued interest thereon, are
hereinafter collectively referred to as the "Deposit".
3.1.2 The Escrow Agent shall hold the Deposit and make delivery of the
Deposit to the party entitled thereto under the terms hereof. Escrow Agent
shall invest the Deposit in such short-term, high-grade securities,
interest-bearing bank accounts, money market funds or accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in
its reasonable discretion, deems suitable, (provided that Escrow Agent
shall invest the Deposit as directed by Purchaser should Purchaser
determine to issue investment instructions to the Escrow Agent) and all
interest and income thereon shall become part of the Deposit and shall be
remitted to the party entitled to the Deposit, as set forth below.
3.1.3 If the sale of the Property is closed by the date fixed therefor (or
any extension date provided for by the mutual written consent of the
parties hereto, given or withheld in their respective sole discretion),
monies held as the Deposit shall be applied (and paid over to the Seller)
on the Closing Date. If the sale of the Property is not closed by the date
fixed therefor (or any such extension date) owing to failure of
satisfaction of a condition precedent to Purchaser's obligations or to
failure of satisfaction of the conditions precedent to Seller's obligations
set forth in Section 9.2.4, the Deposit shall be returned and refunded to
Purchaser, and neither party shall have any further liability hereunder,
subject to and except for Purchaser's liability under Section 5.3.
3.1.4. If the sale of the Property is not closed by the date fixed therefor
(or any such extension date) owing to failure of performance by Seller,
Purchaser shall be entitled to the remedies set forth in ARTICLE 12 hereof.
If the sale of the Property is not closed by the date fixed therefor (or
any such extension date) owing to failure of performance by Purchaser, the
Deposit shall be forfeited by Purchaser and the sum thereof shall go to
Seller forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in ARTICLE
12 below.
3.1.5. Purchaser shall assume the Loan in writing pursuant to an assumption
agreement which is in recordable form and in form and substance
satisfactory to the Lender and Seller. Purchaser shall be credited with
the balance of principal due the Lender on the Closing Date. Purchaser
shall pay all costs, including, but not limited to, Lender's reasonable
attorneys' fees, reasonable disbursements and expenses, and all recording
fees, mortgage or intangible taxes, and title insurance premiums, which may
be incurred in connection with the assumption of the Loan.
3.1.6. Purchaser shall wire transfer to Escrow Agent the balance of the
Purchase Price (less the Deposit) at least one (1) Business Day before the
Closing Date. Subject to the terms hereof, said balance of the Purchase
Price, together with the Deposit, shall be paid to Seller on the Closing
Date.
ARTICLE 4
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
the cash portion of the Purchase Price, and Purchaser's acquisition of such
funds shall not be a contingency to the Closing.
4.2 Seller shall request the Lender to (a) consent in writing to the transfer
of title to the Property (other than that portion legally described in
Exhibit C attached hereto) to a Single Purpose Entity Transferee designated
by Purchaser and the assumption of the Loan by such Single Purpose Entity
Transferee, and (b) release, effective as of closing, from the lien of the
Deed of Trust that portion of the Property legally described on Exhibit C
attached hereto. Purchaser shall cooperate with Seller and the Lender in
connection therewith, shall execute and deliver all documents and
information which may be required under the Deed of Trust in connection
therewith (including, without limitation, an assumption agreement in
recordable form and in form and substance satisfactory to the Lender and
Seller), and shall pay all costs which may be incurred in connection
therewith. If the Lender fails to comply with Seller's request as set
forth above, then this Purchase Contract shall automatically terminate, in
which event the Deposit shall be returned to Purchaser, and the parties
hereto shall have no further obligations to each other, except for
Purchaser's obligations under Section 5.3.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Subject to the terms of section 5.3 below, for twenty-five (25) calendar
days following the Effective Date (i.e., through July 31, 1999 if the
Effective Date is July 6, 1999) (the "Feasibility Period"), Purchaser, and
its agents, contractors, engineers, surveyors, attorneys, and employees
("Consultants") shall have the right from time to time to enter onto the
Property:
5.1.1 To conduct and make any and all customary studies, tests, examinations
and inspections, or investigations of or concerning the Property (including
without limitation, engineering and feasibility studies, evaluation of
drainage and flood plain, soil tests for bearing capacity and percolation
and surveys, including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably desire
to confirm with respect to the Property, and to review copies of Seller's
files with respect to the Property (other than proprietary information and
confidential financial information of Seller relating to Seller's loan
application). Seller agrees to use its best efforts to provide copies of
such documents or give Purchaser access to such documents (including all
documentation evidencing the Loan, other than proprietary information and
confidential financial information of Seller relating to Seller's loan
application) promptly after the Effective Date.
5.1.3 To ascertain and confirm the suitability of the property for
Purchaser's intended use of the Property.
5.2 Should the results of any of the matters referred to in sub-paragraphs
5.1.1, 5.1.2 and 5.1.3 above appear unsatisfactory to Purchaser for any
reason, then Purchaser shall have the right to allow this Purchase Contract
to terminate by failing to give written Notice of its approval of the
matters referred to in sub-paragraphs 5.1.1, 5.1.2 and 5.1.3 above to
Seller and Escrow Agent on or before 5:00 p.m. EST on the date of
expiration of the Feasibility Period. If Purchaser fails to timely deliver
such Notice to Seller and Escrow Agent, this Purchase Contract shall
terminate and be of no further force and effect, subject to and except for
any liability of Purchaser under Section 5.3, and Escrow Agent shall then
promptly return the Initial Deposit to Purchaser. If Purchaser provides
Seller with written Notice of its approval of the matters referred to in
sub-paragraphs 5.1.1, 5.1.2 and 5.1.3 above prior to the end of the
Feasibility Period in strict accordance with the Notice provisions of this
Purchase Contract, Purchaser shall deliver the Additional Deposit to Escrow
Agent, this Purchase Contract shall remain in full force and effect and
Purchaser's obligation to purchase the Property shall be non-contingent and
unconditional except only for satisfaction of the conditions expressly
stated in this ARTICLE 5 and in ARTICLE 9 and the performance by Seller of
its obligations hereunder.
5.3 Purchaser shall indemnify and hold Seller harmless for any actions taken by
Purchaser and its Consultants on the Property. Purchaser shall indemnify,
defend (with attorneys selected by Seller) and hold Seller harmless from
any and all claims, damages, costs and liability which may arise due to
such entries, surveys, tests, investigations and the like; provided,
however, the foregoing indemnity does not include liability for claims,
damages and costs resulting from conditions in existence prior to such
entry by Purchaser or its Consultants unless, and then only to the extent
that such actions by Purchaser or its Consultants increase Seller's
liability therefor. Without limiting the generality of the foregoing,
Purchaser shall have no liability for the discovery or, to the extent
required by applicable law, reporting of adverse conditions at the
Property; provided, however, that Purchaser shall use its best efforts to
advise Seller, in writing, of any such adverse conditions at the Property.
Seller shall have the right, without limitation, to disapprove any and all
entries, surveys, tests, investigations and the like that in their
reasonable judgment could result in any injury to the Property or breach of
any agreement, or expose Seller to any liability, costs, liens or
violations of applicable law, or otherwise adversely affect the Property or
Seller's interest therein (but Seller agrees not to unreasonably withhold
its approval to any commercially reasonable activities described in Section
5.1.1 hereof and specifically agrees that the performance of a "Phase I"
environmental site assessment and any subsequent testing or assessment
recommended by such "Phase I" assessment shall be permitted). No consent
by the Seller to any such activity shall be deemed to constitute a waiver
by Seller or assumption of liability or risk by Seller. Purchaser hereby
agrees to restore the Property to the same condition existing immediately
prior to Purchaser's exercise of its rights pursuant to this ARTICLE 5 at
Purchaser's sole cost and expense. Purchaser shall maintain casualty
insurance and comprehensive public liability insurance with broad form
contractual and personal injury liability endorsements with respect to the
Property and Purchaser's activities carried on therein, in amounts
(including deductible amounts) and with such insurance carriers as shall be
approved by Seller and naming Seller and its affiliates as Loss Payees or
Additional Insureds (at the option of Seller), with endorsements acceptable
to Seller, including a waiver of defenses of the insurer based on the
actions or inaction of Purchaser. Such liability insurance shall provide
coverages of not less than $1,000,000.00 for injury or death to any one
person and $3,000,000.00 for injury or death to more than one person and
$500,000.00 with respect to property damage, by water or otherwise). The
provisions of this Section shall survive the Closing or termination of this
Purchase Contract.
5.4 Purchaser shall not permit any mechanic's or materialman's liens or any
other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser.
Purchaser shall give Notice to Seller a reasonable time (i.e., at least
Twenty-four [24] hours) prior to entry onto the Property and shall permit
Seller to have a representative present during all investigations and
inspections conducted with respect to the Property. Purchaser shall take
all reasonable actions and implement all protections reasonably necessary
to ensure that all actions taken in connection with the investigations and
inspections of the Property, and all equipment, materials and substances
generated, used or brought onto the Property pose no material threat to the
safety of persons or the environment and cause no damage to the Property or
other property of Seller or other persons. All information made available
by Seller to Purchaser in accordance with this Purchase Contract or
obtained by Purchaser in the course of its investigations shall be treated
as confidential information by Purchaser, and, prior to the purchase of the
Property by Purchaser, Purchaser shall use its commercially reasonable
efforts to prevent its agents and employees from divulging such information
to any unrelated third parties except as reasonably necessary to third
parties engaged by Purchaser for the limited purpose of analyzing and
investigating such information for the purpose of consummating the
transaction contemplated by this Purchase Contract, including Purchaser's
attorneys and representatives, prospective lenders and engineers and
prospective financial partners.
ARTICLE 6
TITLE
6.1 Purchaser shall promptly secure a commitment for title insurance for the
Property in an amount equal to the Purchase Price ("Title Commitment,")
issued by Fidelity National Title Insurance Company ("Title Insurer") for
an owner's title insurance policy on the most recent standard American Land
Title Association ("ALTA") Policy form, together with legible copies of all
instruments identified as exceptions therein. Seller agrees that it shall
be solely responsible for payment of all costs relating to procurement of a
CLTA Owner's Policy of Title Insurance and Purchaser shall be responsible
for all other title costs (including title endorsements [other than those
issued to cure an objection by Purchaser to a title exception, which shall
be at Seller's cost], ALTA coverage and any Lender's policy).
6.2 Purchaser agrees to accept title to the Land and Improvements, so long as
the same is insurable at ordinary rates and any conveyance by grant deed
pursuant to this Purchase Contract shall be subject to the following, all
of which shall be deemed "Permitted Exceptions" and Purchaser agrees to
accept the deed and title subject thereto:
6.2.1 All exceptions shown in the Title Commitment and all exceptions noted
in Exhibit 6.2.1 attached hereto (as the same must be approved in writing
by Purchaser during the Feasibility Period); and
6.2.2 Such exceptions and matters as the Title Insurer shall not be willing
to omit as exceptions to coverage (provided, however, if Purchaser
disapproves an exception during the Feasibility Period which Title Insurer
is not willing to omit, Purchaser shall be entitled to terminate this
Purchase Contract and have the Initial Deposit, or Deposit, as applicable,
returned to Purchaser).
6.2.3 All Commercial Leases; and
6.2.4 All Property Contracts and any other existing contracts created in the
ordinary course of business by Seller, which Purchaser has agreed to assume
and which are not identified for termination by Purchaser during the
Feasibility Period;
6.2.5 Real estate and property taxes to the extent not due and payable; and
6.2.6 With respect to the portion of the Property other than that legally
described on the attached Exhibit C, the Deed of Trust.
6.3 The existence of other mortgages, liens, or encumbrances shall not be
objections to title, provided that properly executed instruments in
recordable form necessary to satisfy and remove the same of record are
delivered to the Purchaser at Closing or, in the alternative, with respect
to any mortgage or deed of trust liens, that payoff letters from the holder
of the mortgage or deed of trust liens shall have been delivered to and
accepted by the Title Insurer (sufficient to remove the same from the
policy issued at Closing), together in either case, with recording and/or
filing fees.
6.4 At Purchaser's option, unpaid liens for taxes, charges, and assessments
shall not be objections to title, but the amount thereof plus interest and
penalties thereon shall be deducted from the Purchase Price to be paid for
the Property hereunder and allowed to Purchaser, subject to the provisions
for apportionment of taxes and charges contained in ARTICLE 7 herein.
6.5 Unpaid franchise or business corporation taxes of any corporations in the
chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the Property or
otherwise against Purchaser or its affiliates, and provided further that
the Title Insurer agrees to omit such taxes as exceptions to coverage with
respect to any lender's mortgagee insurance policy.
6.6 Intentionally Deleted
6.7 If on the Closing Date, the state of title is other than in accordance with
the requirements set forth in this Purchase Contract or if any condition to
be fulfilled by Seller shall not be satisfied, Purchaser shall provide
Seller with written Notice thereof at such time, or such title objection or
unfulfilled condition shall be deemed waived by Purchaser in which case
Purchaser and Seller shall proceed to consummate the Closing on the Closing
Date. If Purchaser timely gives Seller such Notice, Seller at its sole
option and within Two (2) Business Days following receipt of such Notice
may elect to cure such objection or unfulfilled condition for up to Ten
(10) calendar days following the originally scheduled Closing Date. Should
Seller be able to timely cure such title objection or condition, or should
Seller be able to timely cause Title Insurer to insure over the same, or
should Purchaser waive such objection or condition within such period for
cure, then the Closing shall take place on or before Seven (7) calendar
days after Notice of such cure or waiver.
6.8 If during the period of cure Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such title objection or cause Title
Insurer to insure over such matter or satisfy such unfulfilled condition,
Seller shall give Purchaser written Notice thereof, and if Purchaser does
not waive such objection by written Notice delivered to Seller and the
title company issuing the Title Commitment on or before Seven (7) calendar
days following the date Seller gives such Notice, then this Purchase
Contract shall automatically terminate, in which event the Deposit shall be
returned to Purchaser, and the parties hereto shall have no further
obligations to each other, except for Purchaser's obligations under Section
5.3..
6.9 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance (other than Commercial Leases entered into in accordance with
the requirements of Section 16.21 below and Property Contracts approved in
writing by Purchaser, which approval shall not be unreasonably withheld or
delayed) to attach to the Property between the date of this Purchase
Contract and the Closing Date; any such monetary lien or encumbrance so
attaching by voluntary act of Seller shall be discharged by the Seller at
or prior to Closing on the Closing Date or any postponed Closing Date.
Except as expressly provided above, Seller shall not be required to
undertake efforts to remove any other lien, encumbrance, security interest,
exception, objection or other matter, to make any expenditure of money or
institute litigation or any other judicial or administrative proceeding and
Seller may elect not to discharge the same.
6.10 Anything to the contrary notwithstanding, Purchaser shall not have any
right to terminate this Purchase Contract or object to any lien,
encumbrance, exception or other matter that is a Permitted Exception, that
has been waived or deemed to have been waived by Purchaser.
6.11 Intentionally Deleted
6.12 Seller at Seller's sole cost and expense, promptly shall cause to be
prepared a survey for the Property ("Survey") to be delivered to Purchaser
and Seller within the Feasibility Period. The Survey (i) shall be prepared
in accordance with and shall comply with the minimum requirements of the
ALTA; and (ii) shall be in a form, and shall be certified as of a date
satisfactory to Title Insurer to enable Title Insurer to delete standard
survey exceptions from the title insurance policy to be issued pursuant to
the Title Commitments, except for any Permitted Exceptions. In the event
the perimeter legal description of the Property contained in the Survey
differs from that contained in the deed or deeds by which Seller took title
to the Property, the latter description shall be used in the grant deed
delivered to Purchaser at Closing, and the balance of the Survey legal
shall be used in a quitclaim deed to the Property which also shall be
delivered to Purchaser at Closing. Nothing contained in the foregoing
sentence shall prevent Purchaser from requiring the Title Insurer to
include the Survey legal in the Title Commitment.
6.12.1 Should such Survey disclose conditions that give rise to a title
exception other than a Permitted Exception, Purchaser shall have the right
to object thereto within the Feasibility Period in accordance with the
procedures set forth in this ARTICLE 6.
ARTICLE 7
CLOSING
7.1 DATES, PLACES OF CLOSING, PRORATIONS, DELINQUENT RENT AND CLOSING COSTS.
7.1.1 The Closing shall take place in the offices of Escrow Agent at a time
mutually agreed upon on the Closing Date except as set forth in Section
7.1.2 below, but in no event later than Forty (40) days after the
expiration of the Feasibility Period. If requested by either party, the
other party shall agree to conduct the Closing through a pre-closing, an
escrow or other arrangement reasonably requested by either party, whereby
the Seller, Purchaser and their attorneys need not be physically present at
the Closing and may deliver documents by overnight air courier or other
means.
7.1.2 The Closing Date may be extended without penalty at the option of
Seller to a date not later than Ten (10) days following the Closing Date
specified above to satisfy a condition to be satisfied by Seller, or such
later date as is mutually acceptable to Seller and Purchaser.
7.1.3. All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal property
taxes, other operating expenses and fees, shall be prorated as of the
Closing Date, Seller being charged and credited for all of same
attributable to the period up to the Closing Date (and credited for any
amounts paid by Seller attributable to the period on or after the Closing
Date) and Purchaser being responsible for, and credited or charged, as the
case may be, for all of same attributable to the period on and after the
Closing Date. All unapplied deposits under Commercial Leases, if any,
shall be transferred by Seller to Purchaser at the Closing. Purchaser
shall assume at Closing the obligation to pay any accrued but unpaid Tenant
improvement allowances and leasing commissions for any leases made after
the Effective Date hereof, together with any payments of amounts accruing
on or after the Closing Date and due parties to other agreements affecting
the Property which survive Closing. Seller shall pay at or prior to
Closing any obligations for accrued but unpaid Tenant improvement
allowances and leasing commissions for all leases in existence as of the
Effective Date. Any real estate ad valorem or similar taxes or the
Property, or any installment of assessments payable in installments which
installment is payable in the year of Closing, shall be prorated to the
date of Closing, based upon actual days involved. The proration of real
property taxes or installments of assessments shall be based upon the
assessed valuation and tax rate figures for the year in which the Closing
occurs to the extent the same are available; provided, that in the event
that actual figures (whether for the assessed value of the Property or for
the tax rate) for the year of Closing are not available at the Closing
Date, the proration shall be made using figures from the preceding year.
The proration shall be final and unadjustable except as provided in the
following paragraph. For purposes of this Section 7.1.3. and Section
7.1.4. and 7.1.5. the terms "Rent" and "Rents" shall include, without
limitation, base rents, additional rents, percentage rents and common area
maintenance charges. The provisions of this Section 7.1.3. shall apply
during the Proration Period (as defined below).
7.1.4. If any of the items subject to proration hereunder cannot be prorated
at the Closing because the information necessary to compute such proration
is unavailable, or if any errors or omissions in computing prorations at
the Closing are discovered subsequent to the Closing, then such item shall
be reapportioned and such errors and omissions corrected as soon as
practicable after the Closing Date and the proper party reimbursed, which
obligation shall survive the Closing for a period (the "Proration Period")
from the Closing Date until one (1) year after the Closing Date. Neither
party hereto shall have the right to require a recomputation of a Closing
proration or a correction of an error or omission in a Closing proration
unless within the Proration Period one of the parties hereto (i) has
obtained the previously unavailable information or has discovered the error
or omission, and (ii) has given Notice thereof to the other party together
with a copy of its good faith recomputation of the proration and copies of
all substantiating information used in such recomputation. The failure of
a party to obtain any previously unavailable information or discover an
error or omission with respect to an item subject to proration hereunder
and to give Notice thereof as provided above within the Proration Period
shall be deemed a waiver of its right to cause a recomputation or a
correction of an error or omission with respect to such item after the
Closing Date.
7.1.5. If on the Closing Date any Tenant is in arrears in any Rent payment
under any Commercial Lease (the "Delinquent Rent"), any Delinquent Rent
received by Purchaser and Seller from such Tenant after the Closing shall
be applied to amounts due and payable by such Tenant during the following
periods in the following order of priority: (i) first, to the period of
time after the Closing Date, and (ii) second, to the period of time before
the Closing Date. If Delinquent Rent or any portion thereof received by
Seller or Purchaser after the Closing are due and payable to the other
party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and
expenses expended in connection with the collection thereof, shall be
promptly paid to the other party. After the Closing, Seller shall continue
to have the right, but not the obligation, in its own name, to demand
payment of and to collect Delinquent Rent owed to Seller by any Tenant,
which right shall include, without limitation, the right to continue or
commence legal actions or proceedings against any Tenant (provided, that
Seller shall not commence any legal actions or proceedings for eviction
against any Tenant which continues as a Tenant at the Property after
Closing without the prior consent of Purchaser, which will not be
unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost or liability
to Purchaser in connection with all reasonable efforts by Seller to collect
such Delinquent Rent and to take all steps, whether before or after the
Closing Date, as may be necessary to carry out the intention of the
foregoing, including, without limitation, the delivery to Seller, upon
demand, of any relevant books and records (including, without limitation,
rent statements, receipted bills and copies of Tenant checks used in
payment of such rent); provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate
Purchaser to terminate any Commercial Lease with an existing Tenant or
evict any existing Tenant from the Property. The provisions of this
Section 7.1.5. shall apply during the Proration Period.
7.1.6. Seller and Purchaser shall share equally in the cost of all transfer
taxes and recording costs with respect to the Closing. Seller and
Purchaser shall share equally in the costs of the Escrow Agent for escrow
fees.
7.2 ITEMS TO BE DELIVERED PRIOR TO OR AT CLOSING.
7.2.1 SELLER. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1Grant deed in the form attached as Exhibit 7.2.1.1 to Purchaser. The
acceptance of the deed at Closing, shall be deemed to be full
performance of, and discharge of, every agreement and obligation on
Seller's part to be performed under this Purchase Contract, except for
those that this Purchase Contract specifically provides shall survive
Closing.
7.2.1.2A ▇▇▇▇ of Sale without recourse or warranty, except as expressly
provided therein, in the form attached as Exhibit 7.2.1.2 covering all
Property Contracts (which Purchaser has agreed to assume), Commercial
Leases, Permits (other than Excluded Permits) and Fixtures and Tangible
Personal Property required to be transferred to Purchaser with respect
to such Property. Purchaser shall countersign the same so as to effect
an assumption by Purchaser, including, without limitation, of Seller's
obligations thereunder which accrue from and after the Closing Date.
7.2.1.3An Assignment (to the extent assignable and in force and effect) without
recourse or warranty in the form attached as Exhibit 7.2.1.3 of all of
Seller's right, title and interest in and to the Miscellaneous Property
Assets, subject to any required consents. Purchaser shall countersign
the same so as to effect an assumption by Purchaser, including, without
limitation, of Seller's obligations thereunder which accrue from and
after the Closing Date.
7.2.1.4A closing statement executed by Seller.
7.2.1.5A vendor's affidavit or at Seller's option an indemnity, as applicable,
in the customary form reasonably acceptable to Seller to enable Title
Insurer to delete the standard exceptions, (other than matters
constituting any Permitted Exceptions to the title insurance policy set
forth in this Purchase Contract and matters which are to be completed or
performed post-Closing) to be issued pursuant to the Title Commitments;
provided that such affidavit does not subject Seller to any greater
liability, or impose any additional obligations, other than as set forth
in this Purchase Contract.
7.2.1.6A certification of Seller's non-foreign status pursuant to Section 1445
of the Internal Revenue Code of 1986, as amended.
7.2.1.7A certified rent roll listing all Commercial Leases affecting the
Property, together with such other information related thereto as
Purchaser may reasonably request, signed by Seller and dated within one
(1) Business Day of the Closing Date.
7.2.1.8Executed Tenant estoppel certificates in substantially the form attached
hereto as Exhibit 7.2.1.8 (or in such form as may be required by the
applicable Commercial Lease, provided that Seller will use commercially
reasonable efforts to obtain tenant estoppel certificates in
substantially the attached form) for Tenants occupying not less than 75%
of the net rentable area in the Improvements.
7.2.1.9Such other instruments, documents or certificates as are required to be
delivered by Seller to Purchaser in accordance with any of the other
provisions of this Purchase Contract.
7.2.1.10 Except for the items expressly listed above to be delivered at
Closing, delivery of any other required items shall be deemed made by
Seller to Purchaser, if Seller leaves such documents at the Property in
their customary place of storage or in the custody of Purchaser's
representatives.
7.2.2 PURCHASER. At Closing, Purchaser shall deliver to Seller the
following items with respect to the Property being conveyed or transferred
by merger at such Closing:
7.2.2.1The cash portion of the Purchase Price as required by ARTICLE 3 hereof
plus or minus the adjustments or prorations required by this Purchase
Contract. If at Closing there are any liens or encumbrances on the
Property that Seller is obligated or elects to pay and discharge, Seller
may use any portion of the cash portion of the Purchase Price for the
Property to satisfy the same, provided that Seller shall have delivered
to Purchaser, or to Purchaser's designee, on such Closing Date
instruments in recordable form sufficient to satisfy such liens and
encumbrances of record (or, as to any mortgages or deeds of trust,
appropriate payoff letters, acceptable to the Title Insurer), together
with the cost of recording or filing such instruments. Purchaser, if
request is made within a reasonable time prior to Closing, agrees to
provide at Closing separate certified or cashier's checks as requested,
aggregating not more than the amount of the balance of the cash portion
of the Purchase Price, to facilitate the satisfaction of any such liens
or encumbrances. The existence of any such liens or encumbrances shall
not be deemed objections to title if Seller shall comply with the
foregoing requirements so that such items will not appear as exceptions
on Purchaser's title insurance policy.
7.2.2.2A closing statement executed by Purchaser.
7.2.2.3A countersigned counterpart of the ▇▇▇▇ of Sale in the form attached as
Exhibit 7.2.1.2.
7.2.2.4A countersigned counterpart of the Assignment in the form attached as
Exhibit 7.2.1.3.
7.2.2.5A countersigned counterpart of an assumption agreement in recordable
form and in form and substance satisfactory to the Lender and Seller, so
as to effect the assumption of the Loan by Purchaser, including, without
limitation, of Seller's obligations thereunder which accrue from and
after the Closing Date, together with such other items as may be
required under the Deed of Trust in connection with Purchaser's
assumption of the Loan.
7.2.2.6Such other instruments, documents or certificates as are required to be
delivered by Purchaser to Seller in accordance with any of the other
provisions of this Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
8.1.1 For the purpose of inducing Purchaser to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the
following as of the Effective Date and as of the Closing Date:
8.1.1.1Seller identified in the Recitals is lawfully and duly organized, and in
good standing under the laws of the state of its formation set forth in
the initial paragraph of this Purchase Contract; and has or at Closing
shall have the power and authority to sell and convey the Property and
to execute the documents to be executed by Seller and prior to Closing
will have taken as applicable, all corporate, partnership, limited
liability company or equivalent entity actions required for the
execution and delivery of this Purchase Contract, and the consummation
of the transactions contemplated by this Purchase Contract. The
compliance with or fulfillment of the terms and conditions hereof will
not conflict with, or result in a breach of, the terms, conditions or
provisions of, or constitute a default under, any agreement to which
Seller is a party or by which Seller is otherwise bound. Seller has not
made any other agreement for the sale of, or given any other person the
right to purchase, all or any part of any of the Property;
8.1.1.2Seller owns insurable, fee title to the Property, including all real
property contained therein required to be sold to Purchaser, subject
only to the Permitted Exceptions (provided, however, that if this
representation is or becomes untrue, Purchaser's remedies shall be
limited to the remedies set forth in Section 6.8 hereof);
8.1.1.3There are no adverse or other parties in possession of the Property,
except for occupants, guests and Tenants under the Commercial Leases
(provided, however, that if this representation is or becomes untrue,
Purchaser's remedies shall be limited to the remedies set forth in
Section 6.8 hereof).
8.1.1.4The joinder of no person or entity other than Seller is necessary to
convey the Property, fully and completely to Purchaser at Closing, or to
fulfill Seller's obligations and Seller has all necessary right and
authority to convey and assign to Purchaser all contract rights and
warranties required to be conveyed and assigned to Purchaser hereunder;
8.1.1.5Purchaser has no duty to collect withholding taxes for Seller pursuant
to the Foreign Investors Real Property Tax Act of 1980, as amended;
8.1.1.6To Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations or condemnation actions either pending or
threatened against the Property, as applicable;
8.1.1.7Seller has no knowledge of any claims for labor performed, materials
furnished or services rendered in connection with constructing,
improving or repairing any of the Property, as applicable, caused by
Seller and which remain unpaid beyond the date for which payment was due
and in respect of which liens may or could be filed against any of the
Property, as applicable;
8.1.1.8To the best of Seller's knowledge, there are no contracts affecting the
Property which would be binding on Purchaser after the Closing other
than the Commercial Leases, Property Contracts and those contracts
described on Exhibit 8.1.1.8 attached hereto.
8.1.1.9To the best of Seller's knowledge, the Rent Roll attached as Exhibit
8.1.1.9 hereto is true, correct and complete.
8.1.2 Except for the representations and warranties expressly set forth
above in Subsection 8.1.1, the Property is expressly purchased and sold "AS
IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price and the terms
and conditions set forth herein are the result of arm's-length bargaining
between entities familiar with transactions of this kind, and said price,
terms and conditions reflect the fact that Purchaser shall have the benefit
of, and is relying upon, no information provided by Seller or Broker and no
statements, representations or warranties, express or implied, made by or
enforceable directly against Seller or Broker, including, without
limitation, any relating to the value of the Property, the physical or
environmental condition of the Property, the state, federal, county or
local law, ordinance, order, permit or suitability, compliance or lack of
compliance of the Property with any regulation, or any other attribute or
matter of or relating to the Property (other than any covenants of title
contained in the deeds conveying the Property and the representations set
forth above). Purchaser represents and warrants that as of the date hereof
and as of the Closing Date, it has and shall have reviewed and conducted
such independent analyses, studies, reports, investigations and inspections
as it deems appropriate in connection with the Property. If Seller
provides or has provided any documents, summaries, opinions or work product
of consultants, surveyors, architects, engineers, title companies,
governmental authorities or any other person or entity with respect to the
Property, including, without limitation, the Offering prepared by Broker,
Purchaser and Seller agree that Seller has done so or shall do so only for
the convenience of both parties, Purchaser shall not rely thereon and the
reliance by Purchaser upon any such documents, summaries, opinions or work
product shall not create or give rise to any liability of or against
Seller, Seller's partners or affiliates or any of their respective
partners, officers, directors, participants, employees, contractors,
attorneys, consultants, representatives, agents, successors, assigns or
predecessors-in-interest. Purchaser shall rely only upon any title
insurance obtained by Purchaser with respect to title to the Property.
Purchaser acknowledges and agrees that no representation has been made and
no responsibility is assumed by Seller with respect to current and future
applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the
financial earning capacity or expense history of the Property, the
continuation of contracts, continued occupancy levels of the Property, or
any part thereof, or the continued occupancy by Tenants of any Commercial
Leases or, without limiting any of the foregoing, occupancy at Closing.
Prior to Closing, Seller shall have the right, but not the obligation, to
enforce its rights against any and all Property occupants, guests or
Tenants, provided that Seller shall keep Purchaser informed of all unlawful
detainer or other eviction proceedings that may be commenced against any
Tenant. Purchaser agrees that the departure prior to Closing, of any of
such guests, occupants or Tenants after the expiration of the Feasibility
Period shall not be the basis for, nor shall it give rise to, any claim on
the part of Purchaser, nor shall it affect the obligations of Purchaser
under this Purchase Contract in any manner whatsoever; and Purchaser shall
close title and accept delivery of the deed with or without such Tenants in
possession and without any allowance or reduction in the Purchase Price
under this Purchase Contract; provided, however, Seller agrees that after
the expiration of the Feasibility Period, Seller shall obtain Purchaser's
consent prior to pursuing legal remedies against any Tenant (which consent
may not be unreasonably withheld or delayed). Purchaser hereby releases
Seller from any and all claims and liabilities relating to the foregoing
matters, except as provided in Section 8.1.3 below.
8.1.3 Seller and Purchaser agree that those representations contained in
Section 8.1 shall survive Closing for a period of One (1) year (that is,
any proceeding based on the breach of a representation contained in Section
8.1 must be commenced within One (1) year subsequent to the Closing Date).
In the event that Seller breaches any representation contained in Section
8.1 and Purchaser had knowledge of such breach, Purchaser shall be deemed
to have waived any right of recovery and Seller shall not have any
liability in connection therewith.
8.1.4 Representations and warranties above made to the knowledge of Seller
shall not be deemed to imply any duty of inquiry. For purposes of this
Purchase Contract, the term Seller's "knowledge" shall mean and refer to
only actual knowledge of the Designated Representative (as hereinafter
defined) of the Seller and shall not be construed to refer to the knowledge
of any other partner, officer, director, agent, employee or representative
of the Seller, or any affiliate of the Seller, or to impose upon such
Designated Representative any duty to investigate the matter to which such
actual knowledge or the absence thereof pertains, or to impose upon such
Designated Representative any individual personal liability. As used
herein, the term "Designated Representative" shall refer to ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇.
8.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER
8.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Purchaser represents and warrants to Seller the
following as of the Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of Delaware.
8.2.2.2Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary power and authority to
own and use its properties and to transact the business in which it is
engaged, and has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and instruments required
of Purchaser herein, and to perform its obligations hereunder; and no
consent of any of Purchaser's officers or members are required to so
empower or authorize Purchaser.
8.2.2.3No pending or, to the knowledge of Purchaser, threatened litigation
exists which if determined adversely would restrain the consummation of
the transactions contemplated by this Purchase Contract or would declare
illegal, invalid or non-binding any of Purchaser's obligations or
covenants to Seller.
8.2.2.4Purchaser is duly authorized to execute and deliver, acting through its
duly empowered and authorized officers and members, respectively, and
perform this Purchase Contract and all documents and instruments and
transactions contemplated hereby or incidental hereto, and such
execution, delivery and performance by Purchaser does not (i) violate
any of the provisions of their respective certificates of incorporation
or bylaws, (ii) violate any provision of any law, governmental rule or
regulation currently in effect, (iii) violate any judgment, decree,
writ, injunction, award, determination or order currently in effect that
names or is specifically directed at Purchaser or its property, and (iv)
require the consent, approval, order or authorization of, or any filing
with or notice to, any court or other governmental authority.
8.2.2.5The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser
has all necessary right and authority to perform such acts as are
required and contemplated by this Purchase Contract.
8.2.3 Purchaser has not dealt with any broker, finder or any other person,
in connection with the purchase of or the negotiation of the purchase of
the Property that might give rise to any claim for commission against
Seller or lien or claim against the Property.
8.2.4 Purchaser's representations and warranties shall survive the Closing
for a period of one (1) year and shall not merge with the limited warranty
deed or any other closing documents (that is, any proceeding based on the
breach of a representation contained in Section 8.2 must be commenced
within one (1) year subsequent to the Closing Date).
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Without limiting any of the rights of Purchaser elsewhere provided for in
this Purchase Contract, Purchaser's obligation to close under this Purchase
Contract, shall be subject to and conditioned upon the fulfillment of each
and all of the following conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser
at the Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
9.1.2 Seller's representations and warranties set forth in this Purchase
Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing
Date and as of the Effective Date as though such representations and
warranties were made at and as of such date and time.
9.1.3 Seller shall have fully performed and complied with all covenants,
conditions, and other obligations in this Purchase Contract to be performed
or complied with by it at or prior to Closing.
9.1.4 Lender shall have (a) consented in writing to the transfer of title to
the Property to a Special Purpose Entity Transferee designated by Purchaser
and the assumption of the Loan by such Special Purpose Entity Transferee,
and (b) released from the lien of the Deed of Trust that portion of the
Property legally described on Exhibit C attached hereto.
9.1.5 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to close except as expressly set forth
above.
9.2 Without limiting any of the rights of Seller elsewhere provided for in this
Purchase Contract, Seller's obligation to close under this Purchase
Contract shall be subject to and conditioned upon the fulfillment of each
and all of the following conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this Purchase
Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing
Date and as of the Effective Date as though such representations and
warranties were made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all covenants,
conditions, and other obligations in this Purchase Contract to be performed
or complied with by it at or prior to Closing including, without
limitation, payment in full of the Purchase Price.
9.2.3 If applicable, Purchaser shall have produced evidence reasonably
satisfactory to Seller of Purchaser's compliance with ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act
requirements or of the non-applicability thereof to the transactions
contemplated by this Purchase Contract.
9.2.4 Lender shall have (a) consented in writing to the transfer of title to
the Property to Purchaser and the assumption of the Loan by Purchaser, and
(b) released from the lien of the Deed of Trust that portion of the
Property legally described on Exhibit C attached hereto.
9.2.5 Seller shall have obtained the written consent to the sale of the
Property pursuant to this Purchase Contract of all partners of Seller whose
consent is required under Seller's partnership agreement; provided,
however, that if Seller elects not to close under this Purchase Contract
due to the failure of the condition precedent set forth in this Section
9.2.5, the Deposit shall be promptly returned to Purchaser and Seller shall
pay to Purchaser the amount of $200,000.00. Upon such payment, neither
party shall have any further liability hereunder, subject to and except for
Purchaser's liability under Section 5.3.
9.2.6 Notwithstanding anything to the contrary, there are no other
conditions on Seller's obligation to close except as expressly set forth
above.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only with TC
Northern California, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Broker") in connection with this Purchase
Contract. Seller and Purchaser each represents and warrants to the other
that other than Broker, it has not dealt with or utilized the services of
any other real estate broker, sales person or finder in connection with
this Purchase Contract, and each party agrees to indemnify the other party
from and against all claims for brokerage commissions and finder's fees
arising from or attributable to the acts of omissions of the indemnifying
party.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller
or Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of
entry for inspection as set forth in ARTICLE 5.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 IN THE EVENT PURCHASER TERMINATES THIS PURCHASE CONTRACT FOLLOWING THE
FEASIBILITY PERIOD FOR ANY REASON OTHER THAN (I) SELLER'S INABILITY TO
PERFORM AS REQUIRED BY THIS PURCHASE CONTRACT OR (II) THE FAILURE OF A
CONDITION PRECEDENT TO PURCHASER'S OBLIGATIONS HEREUNDER, OR DEFAULTS
HEREUNDER PRIOR TO THE CLOSING DATE AND CONSUMMATION OF THE CLOSING DOES
NOT OCCUR BY REASON OF SUCH TERMINATION OR DEFAULT BY PURCHASER, SELLER AND
PURCHASER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO
ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE, SELLER AND
PURCHASER HEREBY AGREE THAT, EXCEPT FOR THE PURCHASER'S OBLIGATIONS TO
SELLER UNDER SECTION 5.3, THE REASONABLE ESTIMATE OF THE TOTAL NET
DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT PURCHASER TERMINATES
THIS PURCHASE CONTRACT FOLLOWING THE FEASIBILITY PERIOD FOR ANY REASON
OTHER THAN SELLER'S INABILITY TO PERFORM AS REQUIRED BY THIS PURCHASE
CONTRACT OR THE FAILURE OF A CONDITION PRECEDENT TO PURCHASER'S OBLIGATIONS
HEREUNDER, OR DEFAULTS HEREUNDER PRIOR TO THE CLOSING DATE, IS AND SHALL
BE, AS SELLER'S SOLE REMEDY (WHETHER AT LAW OR IN EQUITY), THE RIGHT TO
RECEIVE FROM THE ESCROW AGENT AND RETAIN THE FULL AMOUNT OF THE DEPOSIT.
THE PAYMENT AND PERFORMANCE OF THE ABOVE AS LIQUIDATED DAMAGES IS NOT
INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE LAW
AND IS INTENDED TO SETTLE ALL ISSUES AND QUESTIONS ABOUT THE AMOUNT OF
DAMAGES SUFFERED BY SELLER IN THE APPLICABLE EVENT, EXCEPT ONLY FOR DAMAGES
UNDER SECTION 5.3 ABOVE, IRRESPECTIVE OF THE TIME WHEN THE INQUIRY ABOUT
SUCH DAMAGES MAY TAKE PLACE. UPON ANY SUCH FAILURE BY PURCHASER HEREUNDER,
THIS PURCHASE CONTRACT SHALL BE TERMINATED, AND NEITHER PARTY SHALL HAVE
ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR
THE PURCHASER'S OBLIGATIONS TO SELLER UNDER SECTION 5.3 ABOVE, AND THE
RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES TO THE EXTENT NOT
THERETOFORE PAID BY PURCHASER.
______________________ ______________________
SELLER'S INITIALS PURCHASER'S INITIALS
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a
result of Seller's default hereunder, Purchaser's sole remedy shall be to
elect to terminate this Purchase Contract and receive reimbursement of the
Deposit (or so much thereof as has been received by Escrow Agent) or to
seek specific performance of this Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 If all of the Property or any substantial portion of the Property (where
the loss is in excess of $300,000) is destroyed, or damaged, the occurrence
of any of which events is hereinafter called a "Loss" in this Section
13.1), Seller shall promptly notify Buyer in writing of the nature and
scope of the Loss and whether the Loss is covered in whole or in part by
applicable insurance. Buyer, after completing whatever inquiries and
analyses Buyer may deem appropriate, but in no event later than twenty (20)
days after Purchaser is notified of such Loss, shall promptly notify Seller
in writing whether Buyer elects to cancel this Agreement or to close the
purchase of the Property. If Buyer elects to cancel, neither party shall
have any further liability or obligations to the other hereunder other than
the indemnification provisions described in Section 5.3 of this Purchase
Contract and the Deposit shall promptly be returned to the Purchaser. If
Buyer elects to proceed to close the purchase, there shall be no reduction
or abatement of the Purchase Price, but Buyer shall have the right to
require Seller to assign to Buyer any available insurance proceeds or
claims for insurance proceeds with respect to the Loss (subject to the
rights of Lender under the Loan) and Seller shall pay Buyer cash, or
authorize a credit against the Purchase Price, equal to the full amount of
any deductible under the applicable insurance policy. If Buyer requires
Seller so to assign any proceeds, or claim therefor to Buyer in connection
with the Loss, then subject to the rights of Lender under the Loan, (i) all
insurance proceeds and damages payable with respect to the Loss or damage
shall be payable to Buyer, and (ii) Buyer shall have the exclusive right to
direct any negotiations, litigation or settlement related thereto.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before July 9, 1999.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or is about to be acquired, by authority
of any governmental agency in purchase in lieu thereof (or in the event
that at such time there is any notice of any such acquisition by any such
governmental agency), Purchaser shall have the right, at Purchaser's
option, to terminate this Purchase Contract by giving written Notice
thereof to Seller and recover the Deposit hereunder, or to settle in
accordance with the terms of this Purchase Contract for the full Purchase
Price and receive the full benefit or any condemnation award. It is
expressly agreed between the parties hereto that this paragraph shall in no
way apply to customary dedications for public purposes which may be
necessary for the development of the Property.
ARTICLE 16
MISCELLANEOUS
16.1 EXHIBITS AND SCHEDULES
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
16.2 ASSIGNABILITY
Subject to Section 16.18, this Purchase Contract is not assignable without
first obtaining the prior written approval of the non-assigning party
(which consent shall not be unreasonably withheld or delayed). Without
limiting the foregoing, it shall not be deemed unreasonable for Seller to
withhold its consent to a proposed assignment by Purchaser if such
assignment is not permitted under the terms of the Loan documents or if the
Lender disapproves such assignment. Notwithstanding anything to the
contrary contained herein, (i) provided that this Purchase Contract remains
in effect following the expiration of the Feasibility Period, Purchaser
shall, subject to Section 9.1.4, be obligated, at any time on or before the
date which is five (5) days prior to the Closing Date, to assign (without
releasing Strategic Acquisition Corporation from its obligations under this
Purchase Contract) its right under this Purchase Contract to purchase the
portion of the Property other than that legally described on Exhibit C
attached hereto, together with all other rights and obligations hereunder
that relate to such portion of the Property, to a Single Purpose Entity
Transferee approved by Lender, and (ii) Purchaser shall have the right, at
any time on or before the date which is five days prior to the Closing
Date, to assign (without releasing Strategic Acquisition Corporation from
its obligations under this Purchase Contract) its right under this Purchase
Contract to purchase that portion of the Property legally described on
Exhibit C attached hereto, together with all other rights and obligations
hereunder that relate to such portion of the Property, to an entity in
which an affiliate of Insignia/ESG, Inc. is a member or partner, as
applicable. The Purchase Price shall be allocated among the parcels
described in clauses (i) and (ii) above as reasonably agreed by Seller and
Purchaser.
16.3 BINDING EFFECT
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
16.4 CAPTIONS
The captions, headings, and arrangements used in this Purchase Contract are
for convenience only and do not in any way affect, limit, amplify, or
modify the terms and provisions hereof.
16.5 NUMBER AND GENDER OF WORDS
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 NOTICES
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing
and shall be deemed to have been properly given or served for all purposes
(i) if sent by Federal Express or the nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, or (ii) if personally delivered,
on the actual date of delivery or (iii) if sent by certified mail, return
receipt requested postage prepaid, on the Fifth (5th) business day
following the date of mailing addressed as follows:
If to Seller: If to Purchaser:
Serramonte Plaza Strategic Acquisition
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Corporation
Floor ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1850
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
and With a copy to:
Strategic Acquisition
Argent Real Estate Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
with a copy to:
Loeb & Loeb
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to Escrow Agent or Title
Insurer:
Fidelity National Title Insurance
Company
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇ ▇▇▇▇▇▇
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of
Notice by mail or otherwise is required, the giving of such Notice may be
waived in writing by the person or persons entitled to receive such Notice.
If any increase in title and/or escrow costs results from designating Mr.
▇▇▇▇ ▇▇▇▇▇▇ and Fidelity National Title Insurance Company's Dallas office
as Escrow Agent or Title Insurer, instead of ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ and Fidelity
National Title Insurance Company's Houston office, Purchaser shall be
responsible for payment of any such increase in costs.
16.7 GOVERNING LAW AND VENUE
The laws of the State of California shall govern the validity,
construction, enforcement, and interpretation of this Purchase Contract,
unless otherwise specified herein except for the conflict of laws
provisions thereof. All claims, disputes and other matters in question
arising out of or relating to this Purchase Contract, or the breach
thereof, shall be decided by proceedings instituted and litigated in the
United States District Court for the district in which the Property is
situated, and the parties hereto expressly consent to the venue and
jurisdiction of such court.
16.8 ENTIRETY AND AMENDMENTS
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if
any, relating to the Property, and may be amended or supplemented only by
an instrument in writing executed by the party against whom enforcement is
sought.
16.9 SEVERABILITY
If any of the provisions of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision
shall be fully severable. The Purchase Contract shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Purchase Contract; and the remaining provisions of
this Purchase Contract shall remain in full force and effect and shall not
be affected by the illegal, invalid, or unenforceable provision or by its
severance from this Purchase Contract. In lieu of such illegal, invalid,
or unenforceable provision, there shall be added automatically as a part of
this Purchase Contract a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible to make such
provision legal, valid, and enforceable.
16.10 MULTIPLE COUNTERPARTS
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase
Contract, it shall not be necessary to produce or account for more than one
such counterparts.
16.11 FURTHER ACTS
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be
performed, executed and/or delivered any and all such further acts, deeds,
and assurances as may be necessary to consummate the transactions
contemplated hereby.
16.12 CONSTRUCTION
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to
the drafting of this Purchase Contract; both parties, being represented by
counsel, having fully participated in the negotiation of this instrument.
16.13 CONFIDENTIALITY
Purchaser, Seller and Broker shall not disclose the terms and conditions
contained in this Purchase Contract, and shall keep the same confidential,
provided that such parties may disclose the terms and conditions of this
Purchase Contract (i) as required by law, (ii) to consummate the terms of
this Purchase Contract, or any financing relating thereto, or (iii) to
Purchaser's or Seller's lenders, attorneys and accountants. Any
information provided to Purchaser by Seller hereunder is confidential and
Purchaser shall be prohibited from making such information public to any
other person or entity other than its agents and legal representatives,
without Seller's prior written authorization, which may be granted or
denied in Seller's sole discretion. Each party agrees to submit press
releases for the other parties' reasonable approval prior to the issuance
of such press releases. The obligations contained in this Section 16.13
shall survive Closing for a period of Six (6) months.
16.14 TIME OF THE ESSENCE
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
16.15 CUMULATIVE REMEDIES AND WAIVER
No remedy herein conferred or reserved is intended to be exclusive of any
other available remedy or remedies herein conferred or referred, but each
and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Purchase Contract. No delay or omission to
exercise any right or power accruing upon any default, omission, or failure
of performance hereunder shall impair any right or power or shall be
construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. No
waiver, amendment, release, or modification of this Purchase Contract shall
be established by conduct, custom, or course of dealing.
16.16 LITIGATION EXPENSES
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall
be entitled to recover from the other party its reasonable attorneys' fees
and expenses incidental to such litigation.
16.17 TIME PERIODS
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time
period.
16.18 EXCHANGE
At Seller's sole cost and expense, Seller may structure the sale of the Property
to Purchaser as a Like Kind Exchange under Internal Revenue Code Section 1031
whereby Seller will acquire certain property (the "Like Kind Exchange Property")
in conjunction with the sale of the Property (the "Like Kind Exchange").
Purchaser shall cooperate fully and promptly with Seller's conduct of the Like
Kind Exchange, provided that all costs and expenses generated in connection with
the Like Kind Exchange shall be borne solely by Seller, and Purchaser shall not
be required to take title to or contract for the purchase of any other property.
If Seller uses a qualified intermediary to effectuate the exchange, any
assignment of the rights or obligations of Seller hereunder shall not relieve,
release or absolve Seller of its obligations to Purchaser. In no event shall
the Closing Date be delayed by the Like Kind Exchange. Seller shall indemnify
and hold harmless Purchaser from and against any and all liability arising from
and out of the Like Kind Exchange.
16.19 NO PERSONAL LIABILITY OF OFFICERS, TRUSTEES OR DIRECTORS OF SELLER
Purchaser acknowledges that this Agreement is entered into by Seller which is a
California business trust, and Purchaser agrees that no individual officer,
trustee, director or representative of Seller shall have any personal liability
under this Agreement or any document executed in connection with the
transactions contemplated by this Agreement.
16.20 NO EXCLUSIVE NEGOTIATIONS
Seller shall have the right, at all times prior to the expiration of the
Feasibility Period, to solicit backup offers and enter into discussions,
negotiations, or any other communications concerning or related to the sale of
the Property with any third-party; provided, however, that such communications
are subject to the terms of this Agreement, and that Seller shall not enter into
any contract or binding agreement with a third-party for the sale of the
Property unless such agreement is contingent on the termination of this
Agreement without the Property having been conveyed to Purchaser.
16.21 COVENANTS REGARDING LEASES
Seller agrees to timely provide Purchaser with copies of any lease proposals
(including new leases and requests for any lease modifications) and Seller
agrees not to enter into any new leases on the Property, or terminate or modify
any existing leases on the Property without the prior written consent of
Purchaser (which consent shall not be unreasonably withheld). If Seller desires
to enter into any new lease, or terminate or modify any existing leases, Seller
shall provide Purchaser written Notice thereof. If Purchaser fails to deliver
written disapproval thereof to Seller within five (5) days after Purchaser's
receipt of such Notice, Purchaser shall be deemed to have approved the proposed
action. If during the Feasibility Period Purchaser unreasonably disapproves of
any proposed action (as determined by Seller in its reasonable discretion),
Seller shall have the option to terminate this Purchase Contract upon five (5)
days written Notice to Purchaser. Upon Purchaser's receipt of such termination
Notice, Purchaser shall have the right to either accept the termination (in
which case the Deposit shall be returned to Purchaser and neither party shall
have any obligation to the other, except as expressly set forth herein for
provisions which survive termination), or Purchaser may approve the proposed
action (which was previously disapproved), and permit the Purchase Contract to
continue. If Notice of approval of the proposed lease is not delivered to
Seller within five (5) days after Purchaser's receipt of the termination Notice,
Purchaser shall be deemed to have accepted Seller's termination. Seller shall
not have the foregoing right of termination after the expiration of the
Feasibility Period.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
SELLER: SERRAMONTE PLAZA, a California limited partnership
By: GP Services XVII, Inc., a South Carolina
corporation, Its General Partner
By:
Its:
[SIGNATURES ARE CONTINUED ON THE NEXT PAGE]
PURCHASER: STRATEGIC ACQUISITION CORPORATION, a Delaware corporation
By:
Its:
Escrow Agent joins in the execution of this Purchase Contract solely for the
purpose of approving the form of Escrow Agreement attached as Exhibit B:
ESCROW AGENT: FIDELITY NATIONAL TITLE INSURANCE COMPANY
By:
Its:
Broker joins in the execution of this Purchase Contract solely for the purpose
of acknowledging its obligations under Section 16.13 hereof:
BROKER: TC NORTHERN CALIFORNIA, INC.
By:
Its:
EXHIBIT A
LEGAL DESCRIPTION FOR SERRAMONTE PLAZA
All that certain land situated in San Mateo County, California described as
follows:
PARCEL I:
▇▇▇▇ ▇, ▇, ▇, ▇, ▇, ▇▇, ▇▇, ▇▇, 14, 15, 16, 17 and 18, Block 58, as shown on
that certain Map entitled, "RESUBDIVISION OF ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ UNIT
NO. 13 VOL. 72 OF MAPS, PAGES 1 & 2, ▇▇▇▇ CITY, SAN MATEO COUNTY, CALIFORNIA",
filed in the office of the recorder of the County of San Mateo, State of
California, on March 04, 1975 in Book 86 of Maps at page(s) 46 & 47.
EXCEPTING THEREFROM all buildings and improvements of any nature located on
aforesaid ▇▇▇▇ ▇, ▇, ▇▇▇ ▇▇, ▇▇▇▇▇ 58, as granted in the Deed from ▇▇▇▇▇▇▇ Land
Company, to Citizens Savings and Loan Association, a California corporation,
recorded January 17, 1977, in Book 7358, Page 221, Official Records.
Assessors Parcel No: ▇▇▇-▇▇▇-▇▇▇/ Joint Plant No.: 086-046-058-0004t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0005t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0006t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0007t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0009t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0010t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No.: 086-046-058-0012t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0013t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No. 086-046-058-0014t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0015t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0016t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0017t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0018t
PARCEL II:
Parcel A and Parcel B, as shown on that certain Map entitled, "PARCEL MAP BEING
A RESUBDIVISION OF LOT 9 AS SHOWN ON THAT CERTAIN MAP ENTITLED, "RESUBDIVISION
OF ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇" RECORDED MARCH 4, 1975 IN BOOK 86 OF
MAPS AT PAGES 47 AND 47, SAN MATEO COUNTY RECORDS, ▇▇▇▇ CITY, SAN MATEO COUNTY,
CALIFORNIA", filed in the office of the County Recorder of the County of San
Mateo, State of California on May 13, 1976, in Book 31 of Parcel Maps at page
47.
Assessors Parcel No's: ▇▇▇-▇▇▇-▇▇▇ (PCL A) & ▇▇▇-▇▇▇-▇▇▇ (PCL B)
Joint Plant No: 086-046-058-0009t
PARCEL III:
Parcel B, as shown on that certain Map entitled, "PARCEL MAP BEING A
RESUBDIVISION OF LOT 11 AS SHOWN ON THAT CERTAIN MAP ENTITLED "RESUBDIVISION OF
▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ UNIT NO. 13" RECORDED MARCH 4, 1975 IN BOOK 86 OF
MAPS AT PAGES 46 AND 47, SAN MATEO COUNTY RECORDS, ▇▇▇▇ CITY, SAN MATEO COUNTY,
CALIFORNIA", filed in the office of the County Recorder of San Mateo County,
State of California on June 1, 1977 in Book 37 of Parcel Maps at page 11.
Assessors Parcel No: ▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0011t
PARCEL IV:
Parcel 3, as shown on that certain Map entitled, "PARCEL MAP OF LOTS 1, 2, 3, &
19, BOOK 86 OF MAPS, PAGE 46, SAN MATEO COUNTY RECORDS, PARCEL "A", BOOK 37 OF
PARCEL MAPS, PAGE 11, SAN MATEO COUNTY RECORDS, AND A PORTION OF LOT 1, BLOCK
58, BOOK 72 OF MAPS, PAGE 1, SAN MATEO COUNTY RECORDS, CITY OF ▇▇▇▇ CITY, SAN
MATEO COUNTY, CALIFORNIA", filed in the office of the County Recorder of the
County of San Mateo, State of California on April 8, 1997 in Book 69 of Parcel
Maps at pages 74 and 75.
Assessors Parcel No: ▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0020t
PARCEL V:
A permanent easement over the "East Parking Area" of Parcel II, which includes
six (6) parking spaces as depicted on Exhibit C-2, and more particularly
described in Exhibit C-1, for purposes of Access and Parking, and a non-
exclusive easement over the "Parcel 19 Area" of Parcel II as depicted on Exhibit
E-2, and as more particularly described in Exhibit E-1, solely for the purpose
of Access and Parking, as said easements and areas are described and granted by
document entitled, "Reciprocal Easement Agreement, Declaration of Covenants and
Grant of License", dated March 11, 1996, executed by Serramonte Plaza, a
California limited partnership, ▇▇▇▇ City Partners, LLC, a California limited
liability company, ▇▇▇▇ City Partners II, L.P., a California limited
partnership, ▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation, and LaSalle
National Bank as Trustee for the Structured Asset Securities Corporation,
Multiclass Pass-Through Certificates, Series 1996-C1 Trust, recorded April 10,
1997, as Document No. 97041416, Official Records
EXHIBIT 1.1.6
LIST OF EXCLUDED PERMITS
None.
EXHIBIT 1.1.8
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
None.
EXHIBIT 6.2.1
ADDITIONAL TITLE EXCEPTIONS
None.
EXHIBIT 7.2.1.1
SELLER'S GRANT DEED
RECORDING REQUESTED BY AND WHEN
RECORDED MAIL THIS DEED AND,
UNLESS OTHERWISE SHOWN BELOW,
MAIL TAX STATEMENTS TO:
_______________________________
_______________________________
_______________________________
_____________________________
THIS SPACE ABOVE FOR RECORDER'S USE
________________________________________________________________________
GRANT DEED
State of California
County of San Mateo
Documentary Transfer Tax Shown
by Separate Affidavit Not of Record
THIS GRANT DEED is made this day of , 1999, by
SERRAMONTE PLAZA, a California limited partnership ("Grantor"), to STRATEGIC
ACQUISITION CORPORATION, a Delaware corporation ("Grantee").
WHEREAS, Grantor holds legal title to certain real property more
particularly described in Exhibit "A" attached hereto (the "Property"); and
WHEREAS, Grantor desires to convey to Grantee in fee simple all of its
right, title and interest in and to the Property.
NOW THEREFORE in consideration of Ten Dollars and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
Grantor, the Grantor does hereby grant, bargain, sell and convey unto the
Grantee in fee simple the Property.
TOGETHER WITH all and singular the ways, easements, rights, privileges and
appurtenances thereto or in any way appertaining, all improvements thereon and
all the estate, right, title, interest and claim, either at law or in equity, of
the Grantor in the said Property.
However, this conveyance is made subject to the liens securing payment of
ad valorem taxes for the current and all subsequent years, as well as to those
matters of record, or matters that could be disclosed by a visual inspection or
accurate survey of the Property, as of the date hereof.
IN WITNESS WHEREOF, Grantor has caused this Deed to be executed by its
representative thereunto duly authorized as of the day and year first above
written.
"Grantor":
SERRAMONTE PLAZA, a
California limited partnership
By: GP Services XVII, Inc., a South
Carolina corporation, its
General Partner
By:__________________________
Name:__________________
Title:___________________
STATE OF COLORADO )
) ss.
COUNTY OF ___________ )
On ________________________, before me, ________________________, a Notary
Public in and for said state, personally appeared _______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and
that by his signature on the instrument, the person, or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________
Notary Public in and for said State
EXHIBIT A
LEGAL DESCRIPTION FOR SERRAMONTE PLAZA
All that certain land situated in San Mateo County, California described as
follows:
PARCEL I:
▇▇▇▇ ▇, ▇, ▇, ▇, ▇, ▇▇, ▇▇, ▇▇, 14, 15, 16, 17 and 18, Block 58, as shown on
that certain Map entitled, "RESUBDIVISION OF ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ UNIT
NO. 13 VOL. 72 OF MAPS, PAGES 1 & 2, ▇▇▇▇ CITY, SAN MATEO COUNTY, CALIFORNIA",
filed in the office of the recorder of the County of San Mateo, State of
California, on March 04, 1975 in Book 86 of Maps at page(s) 46 & 47.
EXCEPTING THEREFROM all buildings and improvements of any nature located on
aforesaid ▇▇▇▇ ▇, ▇, ▇▇▇ ▇▇, ▇▇▇▇▇ 58, as granted in the Deed from ▇▇▇▇▇▇▇ Land
Company, to Citizens Savings and Loan Association, a California corporation,
recorded January 17, 1977, in Book 7358, Page 221, Official Records.
Assessors Parcel No: ▇▇▇-▇▇▇-▇▇▇/ Joint Plant No.: 086-046-058-0004t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0005t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0006t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0007t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0009t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0010t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No.: 086-046-058-0012t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0013t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No. 086-046-058-0014t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0015t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0016t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0017t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0018t
PARCEL II:
Parcel A and Parcel B, as shown on that certain Map entitled, "PARCEL MAP BEING
A RESUBDIVISION OF LOT 9 AS SHOWN ON THAT CERTAIN MAP ENTITLED, "RESUBDIVISION
OF ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇" RECORDED MARCH 4, 1975 IN BOOK 86 OF
MAPS AT PAGES 47 AND 47, SAN MATEO COUNTY RECORDS, ▇▇▇▇ CITY, SAN MATEO COUNTY,
CALIFORNIA", filed in the office of the County Recorder of the County of San
Mateo, State of California on May 13, 1976, in Book 31 of Parcel Maps at page
47.
Assessors Parcel No's: ▇▇▇-▇▇▇-▇▇▇ (PCL A) & ▇▇▇-▇▇▇-▇▇▇ (PCL B)
Joint Plant No: 086-046-058-0009t
PARCEL III:
Parcel B, as shown on that certain Map entitled, "PARCEL MAP BEING A
RESUBDIVISION OF LOT 11 AS SHOWN ON THAT CERTAIN MAP ENTITLED "RESUBDIVISION OF
▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ UNIT NO. 13" RECORDED MARCH 4, 1975 IN BOOK 86 OF
MAPS AT PAGES 46 AND 47, SAN MATEO COUNTY RECORDS, ▇▇▇▇ CITY, SAN MATEO COUNTY,
CALIFORNIA", filed in the office of the County Recorder of San Mateo County,
State of California on June 1, 1977 in Book 37 of Parcel Maps at page 11.
Assessors Parcel No: ▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0011t
PARCEL IV:
Parcel 3, as shown on that certain Map entitled, "PARCEL MAP OF LOTS 1, 2, 3, &
19, BOOK 86 OF MAPS, PAGE 46, SAN MATEO COUNTY RECORDS, PARCEL "A", BOOK 37 OF
PARCEL MAPS, PAGE 11, SAN MATEO COUNTY RECORDS, AND A PORTION OF LOT 1, BLOCK
58, BOOK 72 OF MAPS, PAGE 1, SAN MATEO COUNTY RECORDS, CITY OF ▇▇▇▇ CITY, SAN
MATEO COUNTY, CALIFORNIA", filed in the office of the County Recorder of the
County of San Mateo, State of California on April 8, 1997 in Book 69 of Parcel
Maps at pages 74 and 75.
Assessors Parcel No: ▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0020t
PARCEL V:
A permanent easement over the "East Parking Area" of Parcel II, which includes
six (6) parking spaces as depicted on Exhibit C-2, and more particularly
described in Exhibit C-1, for purposes of Access and Parking, and a non-
exclusive easement over the "Parcel 19 Area" of Parcel II as depicted on Exhibit
E-2, and as more particularly described in Exhibit E-1, solely for the purpose
of Access and Parking, as said easements and areas are described and granted by
document entitled, "Reciprocal Easement Agreement, Declaration of Covenants and
Grant of License", dated March 11, 1996, executed by Serramonte Plaza, a
California limited partnership, ▇▇▇▇ City Partners, LLC, a California limited
liability company, ▇▇▇▇ City Partners II, L.P., a California limited
partnership, ▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation, and LaSalle
National Bank as Trustee for the Structured Asset Securities Corporation,
Multiclass Pass-Through Certificates, Series 1996-C1 Trust, recorded April 10,
1997, as Document No. 97041416, Official Records
EXHIBIT 7.2.1.2
FORM OF ▇▇▇▇ OF SALE
This ▇▇▇▇ of Sale ("ASSIGNMENT") is executed by SERRAMONTE PLAZA, a
California limited partnership (collectively "SELLER"), in favor of STRATEGIC
ACQUISITION CORPORATION, a Delaware corporation ("PURCHASER").
Seller and Purchaser have entered into that certain Purchase and Sale
Contract dated as of July 6, 1999 ("PURCHASE CONTRACT"), in which Seller has
agreed to sell and Purchaser has agreed to purchase the real properties
described in Exhibit "A" attached thereto and the improvements located thereon
(collectively, the "PROJECT").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, except as expressly provided herein, to Purchaser all of
Seller's right, title and interest, if any, in and to the Property (as
hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "PROPERTY" shall mean all of Seller's
rights and interests in and to Property Contracts (which Purchaser has elected
to assume), Commercial Leases, Permits (other than Excluded Permits) and
Fixtures and Tangible Personal Property (in each case, as such terms are defined
in the Purchase Contract).
The term "PROPERTY" shall not include any of the foregoing: (i) to the
extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller after using commercially
reasonable efforts to obtain such consent. Nothing herein shall create a
transfer or assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, except as expressly provided herein, to Purchaser all of
Seller's right, title and interest, if any, in and to the Property, subject to
any rights of consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
all liabilities and obligations of the Seller in connection with the Property
which accrue from and after the Closing Date (as defined in the Purchase
Contract) and agrees to perform all of the covenants and obligations of Seller
thereunder which accrue from and after the Closing Date. Purchaser further
agrees to indemnify, defend and hold Seller harmless from and against any and
all cost, loss, harm or damage which may arise in connection with the Property
and which relates to the period from and after the Closing Date.
4. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Miscellaneous. This Assignment shall be binding on the parties and
their respective successors and assigns. The headings to paragraphs of this
Assignment are for convenient reference only and shall not be used in
interpreting this Assignment.
6. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of California.
8. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns.
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE
UNIFORM COMMERCIAL CODE FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
Dated:_____________________, 1999
SELLER: SERRAMONTE PLAZA, a California limited partnership
By: GP Services XVII, Inc., a South Carolina corporation, Its General Partner
By:
Its
AGREED AND ACCEPTED:
PURCHASER: STRATEGIC ACQUISITION CORPORATION,
a Delaware corporation
By:
Its
EXHIBIT 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("ASSIGNMENT") is executed by SERRAMONTE PLAZA, a
California limited partnership ("SELLER"), in favor of STRATEGIC ACQUISITION
CORPORATION, a Delaware corporation ("PURCHASER").
Seller and Purchaser have entered into that certain Purchase and Sale
Contract dated as of July 6, 1999 ("PURCHASE CONTRACT"), in which Seller has
agreed to sell and Purchaser has agreed to purchase the real properties
described in Exhibit "A" attached thereto and the improvements located thereon
collectively, the "PROJECT").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "MISCELLANEOUS PROPERTY ASSETS" shall mean
all contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property to the extent said property is owned by
Seller and used in, held for use in connection with, or necessary for the
operation of the Project.
The term "MISCELLANEOUS PROPERTY ASSETS" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, except as expressly provided herein, to Purchaser all of
Seller's right, title and interest, if any, in and to the Property, subject to
any rights of consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
all liabilities and obligations of the Seller in connection with the
Miscellaneous Property Assets which accrue from and after the Closing Date (as
defined in the Purchase Contract) and agrees to perform all of the covenants and
obligations of Seller thereunder which accrue from and after the Closing Date.
Purchaser further agrees to indemnify, defend and hold Seller harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Miscellaneous Property Assets and which relates to the period from and
after the Closing Date.
4. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Miscellaneous. This Assignment shall be binding on the parties and
their respective successors and assigns. The headings to paragraphs of this
Assignment are for convenient reference only and shall not be used in
interpreting this Assignment.
6. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of California.
8. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE
UNIFORM COMMERCIAL CODE FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
Dated: , 1999
SELLER: SERRAMONTE PLAZA, a California limited partnership
By: GP Services XVII, Inc., a South Carolina corporation, Its General Partner
By: ______________________
Its __________________________
AGREED AND ACCEPTED:
PURCHASER: STRATEGIC ACQUISITION CORPORATION,
a Delaware corporation
By: ______________________
Its __________________________
EXHIBIT 7.2.1.8
TENANT ESTOPPEL CERTIFICATE
This TENANT ESTOPPEL CERTIFICATE is executed as of the Estoppel Execution
Date by Tenant, who is the current tenant or lessee under that certain written
lease agreement ("Lease") dated as of the Lease Date by and between Original
Landlord and Original Tenant for the lease of the Premises.
Definitions:
Estoppel Execution Date: _______________, 19__
Lease Date: _______________, 19__
Tenant: ______________________________
Landlord: ______________________________
Original Tenant: ______________________________
Original Landlord: ______________________________
Premises: ______________________________
______________________________
Tenant Sq. Footage: ____________________
Base Monthly Rental: ____________________
Security Deposit: ____________________
Advance Rent: ____________________
Tenant's Share of Expenses: ____________________
Percentage Rental: ____________________
Free Rent Periods: ____________________
Lease Term (incl. Option
Periods Exercised): ____________________
Commencement Date: _______________, 19__
Expiration Date: _______________, 19__
Unexercised Option Periods: ____________________
Current Rent Date: _______________, 19__
Guarantor: ____________________
Tenant's Address for Notices: ______________________________
______________________________
______________________________
______________________________
Tenant represents, warrants, certifies and states to Strategic Acquisition
Corporation, a Delaware corporation, and its successors, assignees, and lenders
(collectively, "Strategic"), each of the following:
1. A true and correct copy of the Lease and all amendments thereto is attached
hereto as Exhibit "A" incorporated herein by this reference. The Lease is
presently in full force and effect and has not been amended, supplemented,
modified or otherwise changed, except pursuant to the written amendments
attached in Exhibit "A" attached hereto.
2. All space and improvements leased by Tenant pursuant to the Lease have been
completed and furnished in accordance with the provisions of the Lease, and
Tenant has accepted, taken possession of, and is currently occupying, the
Premises.
3. Landlord has satisfied all commitments made to induce Tenant to enter in
the Lease, and to the best of Tenant's knowledge, Landlord is not in any respect
in default in the performance by Landlord of its obligations under the Lease.
4. Tenant is not in any respect in default or breach of the Lease and has not
assigned, sublet, transferred or hypothecated its interest under the Lease,
except as shown on Exhibit "B" attached hereto and incorporated herein by this
reference.
5. Tenant is currently obligated to pay the Base Monthly Rental as its minimum
monthly rental charge, exclusive of any percentage rent or any Tenant's share of
operating costs and expenses. [Tenant is currently obligated to pay the
Percentage Rental amount of its sales, revenues or other income as provided by
and defined in the Lease. Tenant is obligated to reimburse Landlord for taxes
and other operating expenses, and Tenant's share of such items (as may be
defined, described or limited by the provisions of the Lease) is Tenant's Share
of Expenses.]
6. The Lease Term commenced on the Commencement Date and expires on the
Expiration Date.
7. The Lease provides for no extensions or renewals beyond the Lease Term
except the Unexercised Option Periods. Tenant has not exercised any of the
Unexercised Option Periods. Tenant has no option or preferential right to
purchase or lease all or any part of the Premises nor any right, title or
interest with respect to the Premises other than as a tenant or lessee under the
Lease.
8. Tenant has no right to cancel the Lease prior to the Expiration Date.
9. Tenant has paid the Base Monthly Rental and all other monetary obligations
under the Lease through the Current Rent Date.
10. There is no period of free rent, rental abatement or reduction, except the
Free Rent Periods. Landlord has not given or conceded to Tenant any other
concessions, abatements or compromises, free rent, rental abatement or reduction
with respect to the rental obligations under the Lease.
11. If the Lease requires a security deposit, Tenant has deposited an amount
equal to the Security Deposit with Landlord. No person or entity has guaranteed
any portion of Tenant's obligations under the Lease except any Guarantor.
12. There are no offsets or credits against any rentals payable or which have
been paid under the Lease, and Tenant has made no payment to Landlord as a
security deposit or advance or prepaid rental except any Security Deposit and
any Advance Rent and payments made not earlier than ten (10) days prior to the
date upon which such payment is due.
13. Tenant's current address for receipt of notices, elections, demands or
other communications under the Lease is Tenant's Address for Notices.
14. Tenant has received no notice of any sale, transfer, pledge, assignment, or
hypothecation of the Lease, or the rentals owed thereunder, by Landlord.
Tenant makes this statement for the benefit and protection of Strategic and
its successors, assigns, and lenders, with the understanding that each or all of
said parties intends to and may rely on this statement in making a determination
about purchasing or financing certain real property, which real property
includes the Premises.
IN WITNESS WHEREOF, Tenant executes this Tenant Estoppel Certificate as of
the Estoppel Execution Date.
TENANT:
By:
Its:
EXHIBIT "A"
LIST OF AMENDMENTS TO LEASES
TENANT AMENDMENT DATE
▇▇▇▇▇▇▇, ▇▇▇▇ Short Term Storage Agreement dated
05/24/99
24 Hour Fitness, Inc. 6/30/98
Ameriquest Mortgage Co. 3/20/98; ▇/▇▇/▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ CPI Increase
08/29/96
California Real Estate Loans 11/16/98
Casanova & ▇▇▇▇▇▇▇▇▇▇ 2/23/96
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 3/16/93
Commonwealth Land Title Co 12/17/97; 12/31/95; 10/18/91
FEBTC Speed Remittance, Inc. 9/18/98
▇▇▇▇, ▇▇▇▇▇ 5/3/99 with
Landlord
for
signature
▇▇▇▇▇▇▇▇'▇ Rainbow, Inc. 01/22/99
01/26/98
Granite Management Corporation, Letter dated 12/10/97 - Notice of
formerly First Nationwide Bank Base Rent Change
▇▇▇, ▇▇▇▇▇ 3/11/98
Landmark Hotels, Inc. 2/11/99
▇▇▇▇▇▇, ▇▇▇▇ (347-R) Signage Agreement dated 12/14/98
▇▇▇▇▇▇, Walorinto & ▇▇▇▇▇▇▇ 6/24/97
▇▇▇▇ Beach Homes, Inc. 10/23/1997 Letter dated
03/03/98 - Tenant notice of
Termination of Amendment #1
Peppermill, Inc. Lease Modification Agreements:
03/01/99; 10/24/78; 9/30/76;
5/1/75; 8/26/74; 8/8/74; 12/17/73
▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ J 12/27/94
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. 8/31/95
▇▇▇▇▇, ▇▇▇▇ 3/18/98
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a prof. Corp. Letters dated 07/20/98,
07/25/97, 07/24/96 (Notices of
CPI rent increase)
Shanghai USA Funding 1/12/99
Corporation and ▇▇▇▇▇▇ ▇▇▇
Sotto, ▇▇. ▇▇▇▇▇▇ S. 5/3/95
▇▇▇▇▇, ▇▇▇▇▇▇ ▇. DMD MS 5/1/97
EXHIBIT "B"
LIST OF ASSIGNMENTS, SUBTENANCIES AND TENANT ENCUMBRANCES
TENANT ASSIGNOR ASSIGNEE DATE OF SUBTENANT
DOCUMENT
Ameriquest Mortgage Long Beach Bank Long Beach 10/6/94 N/A
Co. formerly known as Mortgage Company
Long Beach Mortgage
Company
Bay View Federal Bank Resolution Trust Bay View 7/1/93
Corp., as Conservator Federal Bank
for HomeFed Bank
Coast Federal Marin Savings 11/19/83
Savings, formerly and Loan
known as Coast Association
Federal Savings
and Loan Association
Granite Management 10/20/93 ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Corp. formerly and ▇▇▇▇▇▇ ▇▇▇▇▇▇
First Nationwide Bank
Hollywood
Entertainment Corp. 12/22/95 MMM Carpet
and
renewals
Lucky Money, Inc. 3/1/99 ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
THERE ARE NO TENANT ENCUMBRANCES IN THE LEASES IN OUR POSSESSION.
EXHIBIT 8.1.1.8
LIST OF OTHER CONTRACTS, IF ANY
None.
EXHIBIT 8.1.1.9
RENT ROLL
[See attached]
EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this 6th day of July, 1999
by and among SERRAMONTE PLAZA, a California limited partnership ("SELLER"), and
STRATEGIC ACQUISITION CORPORATION, a Delaware corporation ("PURCHASER"); and
FIDELITY NATIONAL TITLE INSURANCE COMPANY ("ESCROW AGENT");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the 6th day of July,
1999; and
Whereas, the Purchase Contract requires that Purchaser provide an Initial
Deposit (the "Initial Deposit"), in the amount of One Hundred Thousand and
No/100 Dollars ($100,000.00) in cash to be held pursuant to an escrow agreement
approved by Purchaser and Seller.
Whereas, the Purchase Contract requires that one (1) day after the
expiration of the Feasibility Period, Purchaser shall provide an additional
Deposit (the "Additional Deposit") in the amount of One Hundred Thousand and
no/100 Dollars ($100,000.00) in cash to be held by Escrow Agent.
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of One
Hundred Thousand and No/100 dollars ($100,000.00) in cash (the "Initial Escrow
Fund"), to be deposited, held, invested, and disbursed for the benefit of Seller
and Purchaser and their respective successors and assigns, as provided herein
and as provided in the Purchase Contract.
2. Investment of Escrow Fund. All funds received by Escrow Agent (including
the Initial Deposit and the Additional Deposit) shall be held in insured
accounts and invested in such short-term, high-grade securities, money market
funds or accounts, interest bearing bank accounts, bank certificates of deposit
or bank repurchase agreements as Escrow Agent, in its discretion, deems suitable
(provided that Escrow Agent shall invest the Escrow Fund as directed by
Purchaser should Purchaser determine to issue investment instructions to the
Escrow Agent) and all interest and income thereon shall become part of the
Escrow Fund and shall be remitted to the party entitled to the Escrow Fund, as
set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall deliver the Escrow Fund to Seller in immediately available funds by
wire transfer in accordance with the instructions of Seller on the Closing Date
as set forth in the Purchase Contract, (b) if the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Escrow
Agent shall return and refund the Escrow Fund to Purchaser, (c) if the sale of
the Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of performance by Seller, Purchaser shall give Notice to
the Escrow Agent and Seller and in such Notice shall state whether it elects as
its remedy return of the Escrow Fund or specific performance of the Purchase
Contract, if Purchaser elects return of the Escrow Fund, Escrow Agent shall
return and refund the Escrow Fund to Purchaser, (d) if the sale of the Property
is not closed by the date fixed therefor (or any such extension date) owing to
failure of performance by Purchaser, Escrow Agent shall forthwith deliver to
Seller the Escrow Fund in immediately available funds by wire transfer in
accordance with the instructions of Seller, and (e) if Purchaser shall have
canceled the Purchase Contract on or before the expiration of the Feasibility
Period (as defined in the Purchase Contract), the Escrow Agent shall return and
refund the Escrow Fund to Purchaser.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within Ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within Two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
4. Liability. Escrow Agent will be obligated to perform only the duties that
are expressly set forth herein. In case of conflicting demands upon Escrow
Agent, it may (i) refuse to comply therewith as long as such disagreement
continues and make no delivery or other disposition of any funds or property
then held (and Escrow Agent shall not be or become liable in any way for such
failure or refusal to comply with such conflicting or adverse claims or demands,
except for its failure to exercise due care, willful breach and willful
misconduct); and (ii) continue to so refrain and so refuse to act until all
differences have been adjusted by agreement and, Escrow Agent has been notified
thereof in writing signed jointly by Seller and Purchaser or (iii) to interplead
the portion of Escrow Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping and investment of money, instruments, and
securities received by it as Escrow Agent and for their disbursement in
accordance with the written escrow instructions given it in accordance with this
Escrow Agreement.
7. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund in accordance with the joint written instructions
signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under
this Escrow Agreement ("Notice") shall be given as follows. All Notices,
requests, demands and other communications hereunder shall be deemed to have
been duly given if the same shall be in writing and shall be delivered
personally or sent by federal express or other recognized national overnight
courier service maintaining records of delivery, or sent by registered or
certified mail, postage pre-paid, and addressed as set forth below:
(a) If to Seller:
Serramonte Plaza
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
and
Argent Real Estate
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
With a copy to:
Loeb & Loeb, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(b) If to Purchaser:
Strategic Acquisition Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
Strategic Acquisition Corporation
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
(c) If to Escrow Agent:
Fidelity National Title Insurance Company
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇ ▇▇▇▇▇▇
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive an fee of $300.00 for its services
hereunder, and be paid or reimbursed for all expenses, disbursements and
advances, including reasonable attorney's fees, incurred or paid in connection
with carrying out its duties hereunder, all amounts to be shared equally by
Seller and Purchaser and not out of the Escrow Fund. Non-payment of such fee by
Purchaser and/or Seller shall not entitle Escrow Agent to refuse or fail to act
as required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained
in this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or
condition of this Escrow Agreement shall operate as a waiver of any other breach
of such term or condition or of any other term or condition. No failure to
enforce such provision shall operate as a waiver of such provision or of any
other provision hereof, or constitute or be deemed a waiver or release of any
other party for anything arising out of, connected with, or based upon this
Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns. The parties recognize and acknowledge that the powers and
authority granted Escrow Agent herein are each irrevocable and coupled with an
interest. Escrow Agent shall have no liability to any Seller for any mistakes
in judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way
limit the liabilities, obligations and remedies of Seller and Purchaser as set
forth in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of California.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed on its behalf duly authorized persons, all as of the
day and year first above written.
Dated: July 6, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a California limited partnership
By: GP Services XVII, Inc., a South Carolina corporation, Its General Partner
By: ______________________
Its __________________________
[SIGNATURES CONTINUED ON THE NEXT PAGE]
STRATEGIC ACQUISITION CORPORATION,
A Delaware corporation
By: ______________________
Its __________________________
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By: _____________________________________
Title:
EXHIBIT C
[PORTION OF PROPERTY TO BE PARTIALLY RELEASED]
All that certain land situated in San Mateo County, California described as
follows:
PARCEL I:
▇▇▇▇ ▇, ▇, ▇▇, ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ 58, as shown on that certain Map entitled,
"RESUBDIVISION OF ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ UNIT NO. 13 VOL. 72 OF MAPS, PAGES
1 & 2, ▇▇▇▇ CITY, SAN MATEO COUNTY, CALIFORNIA", filed in the office of the
recorder of the County of San Mateo, State of California, on March 04, 1975 in
Book 86 of Maps at page(s) 46 & 47.
EXCEPTING THEREFROM all buildings and improvements of any nature located on
aforesaid Lots 4, and 18, Block 58, as granted in the Deed from ▇▇▇▇▇▇▇ Land
Company, to Citizens Savings and Loan Association, a California corporation,
recorded January 17, 1977, in Book 7358, Page 221, Official Records.
Assessors Parcel No: ▇▇▇-▇▇▇-▇▇▇/ Joint Plant No.: 086-046-058-0004t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0006t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0010t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0017t
▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0018t
PARCEL III:
Parcel B, as shown on that certain Map entitled, "PARCEL MAP BEING A
RESUBDIVISION OF LOT 11 AS SHOWN ON THAT CERTAIN MAP ENTITLED "RESUBDIVISION OF
▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ UNIT NO. 13" RECORDED MARCH 4, 1975 IN BOOK 86 OF
MAPS AT PAGES 46 AND 47, SAN MATEO COUNTY RECORDS, ▇▇▇▇ CITY, SAN MATEO COUNTY,
CALIFORNIA", filed in the office of the County Recorder of San Mateo County,
State of California on June 1, 1977 in Book 37 of Parcel Maps at page 11.
Assessors Parcel No: ▇▇▇-▇▇▇-▇▇▇/ Joint Plant No: 086-046-058-0011t
ARTICLE 1 DEFINED TERMS 3
ARTICLE 2 PURCHASE AND SALE OF PROPERTY 7
ARTICLE 3 PURCHASE PRICE & DEPOSIT 7
ARTICLE 4 FINANCING 9
ARTICLE 5 FEASIBILITY PERIOD 10
ARTICLE 6 TITLE 14
ARTICLE 7 CLOSING 18
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER 25
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING 31
ARTICLE 10 BROKERAGE 34
ARTICLE 11 POSSESSION 34
ARTICLE 12 DEFAULTS AND REMEDIES 35
ARTICLE 13 RISK OF LOSS OR CASUALTY 36
ARTICLE 14 RATIFICATION 37
ARTICLE 15 EMINENT DOMAIN 37
ARTICLE 16 MISCELLANEOUS 38