Exhibit 10.12
PURCHASE AND SALE AGREEMENT
by and between
WHSUM Real Estate Limited Partnership,
a Delaware limited partnership
"Seller"
and
Mercury Interactive Corporation,
a Delaware corporation
"Buyer"
TABLE OF CONTENTS
Section Page No.
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1. Sale of the Property.......................................... 1
2. Deposits...................................................... 1
3. Purchase Price................................................ 2
4. Conditions to Parties' Obligations............................ 2
5. Remedies/Liquidated Damages................................... 10
6. Closing and Escrow............................................ 12
7. Interim Operation of the Property............................. 13
8. Tenant Improvement Costs and Leasing Commissions.............. 14
9. Seller's Maintenance of the Property.......................... 14
10. Casualty and Condemnation..................................... 15
11. Limited Liability............................................. 16
12. Release....................................................... 16
13. AS-IS Condition of Property................................... 18
14. Prorations and Rent Arrearages................................ 19
15. Closing Costs................................................. 20
16. Brokers....................................................... 21
17. Notices....................................................... 21
18. Entire Agreement.............................................. 22
19. Assignment.................................................... 22
20. Severability.................................................. 23
21. California Law................................................ 23
22. Modifications/Survival........................................ 23
23. Confidentiality............................................... 23
24. Counterparts.................................................. 24
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25. Dispute Costs................................................. 24
26. Seller's Representations...................................... 24
27. Buyer's Representations....................................... 27
28. Time of the Essence; and Business Days........................ 28
29. Agreement Date................................................ 28
30. No Third Party Beneficiaries.................................. 28
31. Discharge of Seller's Bonds................................... 28
32. Drafts not an Offer to Enter into a Legally Binding Contract.. 28
33. Disclosure Items.............................................. 29
EXHIBITS: EXHIBIT A LEGAL DESCRIPTION OF THE REAL PROPERTY
EXHIBIT B ASSIGNMENT AND ASSUMPTION OF LEASES
EXHIBIT C ASSIGNMENT AND ASSUMPTION OF CONTRACTS,
WARRANTIES AND PERMITS
EXHIBIT D GRANT DEED
EXHIBIT E ▇▇▇▇ OF SALE
EXHIBIT F TENANT ESTOPPEL CERTIFICATE
EXHIBIT G NOTICE TO TENANTS
EXHIBIT H LEASING COSTS
EXHIBIT I NATURAL HAZARD DISCLOSURE STATEMENT
EXHIBIT J DISCLOSURE ITEMS
EXHIBIT K LIST OF REPORTS
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PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and entered into as
of December 1, 2000 (the "Agreement Date"), by and between WHSUM Real Estate
Limited Partnership, a Delaware limited partnership ("Seller"), and Mercury
Interactive Corporation, a Delaware corporation ("Buyer"), with reference to the
following facts.
RECITALS
A. Seller is the owner of that certain improved real property located at 242-
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, as legally described in Exhibit A
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attached hereto and made a part hereof (the "Real Property") together with all
(i) improvements, structures and fixtures (other than trade fixtures)
(collectively, the "Improvements") and personal property (the "Personal
Property") actually owned by Seller (if any) located in, on or about the Real
Property or the Improvements and actually used in the operation of the
Improvements, (ii) easements, appurtenances, rights and privileges actually
belonging thereto (collectively, the "Appurtenances"), and (iii) the "Permits"
and "Warranties", as defined in Exhibit C attached hereto. The Real Property,
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the Improvements, the Personal Property, the Appurtenances, the Permits and the
Warranties are collectively referred to herein as the "Property."
B. Seller desires to sell to Buyer and Buyer desires to purchase from Seller
the Property, in accordance with the terms and provisions hereinafter contained
in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Sale of the Property.
Seller shall sell to Buyer and Buyer shall purchase from Seller the Property
at the Closing (defined in Section 6 below), subject to and on the terms and
conditions contained herein.
2. Deposits.
2.1 Initial Deposit. Within one (1) business day after the Agreement Date,
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Buyer shall place on deposit into the escrow account (the "Escrow Account") to
be opened with Fidelity National Title Insurance Company located at ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Attention: ▇▇.
▇▇▇▇ ▇▇▇▇▇) ("Title Company" or "Escrow Holder") the amount of Three Hundred
Fifty Thousand Dollars ($350,000) as an initial deposit (the "Initial Deposit").
The Title Company shall cause the Initial Deposit to be placed into an interest
bearing bank account reasonably acceptable to Buyer and Seller. Any interest
earned on the Initial Deposit shall be included as part of the Initial Deposit.
The Initial Deposit and interest earned thereon, shall be fully refundable to
Buyer during the period commencing on the Agreement Date and ending at 5:00 p.m.
(Pacific Time) on December 22, 2000, which date may be extended at Buyer's sole
option to December 27, 2000 (the "Conditions Period"). For purposes hereof, the
last day of the Conditions Period shall mean and be referred to herein as the
"Approval Date". If Buyer fails to deliver the Initial Deposit into the Escrow
Account strictly as and when contemplated herein, Seller shall have the right to
terminate this Agreement by delivering written notice thereof to Buyer at any
time and thereafter neither party shall
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have any further rights or obligations hereunder except for the indemnities
contained in Sections 4.4 and 16 below, Buyer's covenants made herein which are
expressly intended to survive any such termination and Buyer's obligations under
Section 4.3 below to deliver to Seller the Due Diligence Materials (defined
below) (collectively, "Buyer's Surviving Obligations").
2.2 Additional Deposit. Unless Buyer notifies Seller prior to 5:00
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p.m. (Pacific Time) on the Approval Date that there are Pre-Closing Conditions
(defined below) remaining unsatisfied and that Buyer will not waive such
conditions (any such notice shall serve as a termination of this Agreement), (i)
at the end of the Conditions Period the Initial Deposit shall become non-
refundable to Buyer, and (ii) within one (1) business day after the Approval
Date Buyer shall place on deposit into the Escrow Account, the amount of Five
Hundred Thousand Dollars ($500,000) as the additional deposit (the "Additional
Deposit"). The Escrow Holder shall cause the Additional Deposit to be placed
into an interest bearing bank account acceptable to Buyer and Seller. Any
interest earned on the Additional Deposit shall be included as part of the
Additional Deposit. The Additional Deposit shall be retained in the Escrow
Account until the Closing (defined below), and the Additional Deposit shall be
non-refundable to Buyer; provided, however, the Initial Deposit and the
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Additional Deposit (including any interest earned thereon) shall be refundable
to Buyer if all of the Buyer's Closing Conditions (defined below) are not
satisfied or otherwise waived by Buyer in accordance with the provisions of
Section 4.3 of this Agreement, or, at Buyer's election, if Seller fails to
complete the sale of the Property by reason of any default of Seller pursuant to
Section 5.2. If Buyer fails to deliver the Additional Deposit into the Escrow
Account strictly as and when contemplated herein, Seller shall have the right to
terminate this Agreement by delivering written notice thereof to Buyer at any
time and thereafter neither party shall have any further rights or obligations
hereunder except for Buyer's Surviving Obligations. The Initial Deposit and the
Additional Deposit shall be applied to the Purchase Price at the Closing. The
Initial Deposit and the Additional Deposit, together with any interest thereon,
are collectively referred to herein as the "Deposits."
3. Purchase Price.
The purchase price for the Property is Nineteen Million Two Hundred
Thousand Dollars ($19,200,000) (the "Purchase Price"), as such amount may be
adjusted for prorations in accordance with the provisions of Section 14 below.
At the Closing, the balance of the Purchase Price remaining after deduction for
the Deposits, shall be paid by Buyer to Seller in cash, in immediately available
funds via wire transfer.
4. Conditions to Parties' Obligations.
4.1 Buyer's Pre-Closing Conditions. Buyer's obligations under this
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Agreement shall be subject to the satisfaction of or waiver by Buyer of the
following described matters (collectively, the "Pre-Closing Conditions") on or
before the earlier of (i) the time periods specified in each subsection below,
or (ii) 5:00 p.m. (Pacific Time) on the Approval Date:
4.1.1 Title; Survey.
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4.1.1.1 If not already delivered prior to the
Agreement Date, within five (5) business days after the Agreement Date,
Seller will cause to be issued and delivered to Buyer a preliminary title
report for the Property, together with all documents evidencing exceptions
to title referred to therein issued by the Title Company (collectively, the
"Title Report"). Buyer shall have a period of twenty-five (25) days after
the Agreement Date to either
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approve of any ALTA Survey (whether received from Seller or contracted for
by Buyer at Buyer's sole cost and expense) and the exceptions (if any)
contained in the Title Report, or to notify Seller in writing, specifying
any exceptions to which Buyer objects in either the ALTA Survey or the
Title Report ("Title Objection Notice"). Seller shall have a period of
three (3) business days after Seller's receipt of the Title Objection
Notice (a) to remove, or agree to remove prior to the Closing, some or all
of those exceptions to which Buyer has objected in the Title Objection
Notice, and to inform Buyer of the same, or (b) to advise Buyer, in
writing, that Seller will not agree to remove some or all of those
exceptions to which Buyer has objected in the Title Objection Notice; the
foregoing election by Seller being at Seller's sole option and discretion
("Title Response Notice"). If Seller fails to timely deliver to Buyer the
Title Response Notice, it shall be conclusively deemed that Seller has
elected not to remove any of those exceptions to which Buyer has objected
as specified in the Title Objection Notice. If Seller advises Buyer in its
Title Response Notice that it will not remove or agree to remove some or
all of those exceptions to which Buyer has objected in the Title Objection
Notice (or Seller is deemed to have so advised Buyer), then Buyer shall
have until 5:00 p.m. (Pacific Time) on the Approval Date to advise Seller,
in writing, whether Buyer elects to waive such objections and proceed with
the acquisition of the Property or to terminate this Agreement. Failure by
Seller to remove those specified exceptions which Seller has expressly
agreed to remove in either this Agreement or in the Title Response Notice
within the specified period shall be deemed to be a failure of this
condition, in which event the Agreement shall terminate, and the Deposits
(to the extent made) shall be returned to Buyer, and the parties shall have
no further obligations hereunder except for the Buyer's Surviving
Obligations unless Buyer withdraws its objections in writing.
Notwithstanding the foregoing, on or prior to Closing Seller shall remove
or cause to be removed those certain monetary liens or encumbrances
affecting the Property which Seller has created or expressly permitted to
exist other than current taxes and assessments.
4.1.1.2 New Exceptions. If this Agreement is not terminated
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pursuant to Section 4.3 below, and after the Approval Date but prior to
Closing the Title Company informs Buyer that it has or intends to schedule
as title exceptions to the ALTA Title Policy (as defined below) any
additional matters not previously included in the Title Report (other than
the permitted exceptions approved by Buyer and such matters, if any, that
are created or caused by Buyer) which are either monetary liens or which,
in Buyer's reasonable judgment, would have a material adverse effect on the
Property or on Buyer's intended development of the Property (any such
matters being referred to herein as the "New Exceptions"), then Buyer may
by written notice to Seller request that the New Exceptions be removed.
Seller shall be under no obligation to cause the New Exceptions to be
removed; provided, however, that if Seller is unable or unwilling to remove
the New Exceptions on or before the Closing, and Buyer does not withdraw
its objections in writing, then Buyer may terminate this Agreement for a
failure of condition, in which event the Agreement shall terminate, and the
Deposits (to the extent made) shall be returned to Buyer, and the parties
shall have no further obligations hereunder except for the Buyer's
Surviving Obligations.
4.1.2 Physical Inspections. Within five (5) business days after
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the Agreement Date, but only to the extent (a) the same is actually in
Seller's or Seller's property manager's possession, or, to the extent
Seller has the legal right to obtain a copy of same, in the possession of
Seller's consultant previously hired to prepare such report(s), and (b)
said report(s) has not already been delivered to Buyer by Seller prior to
the Agreement Date, Seller will either deliver to Buyer, or, at absolutely
no cost or liability to Seller, will use
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commercially reasonable efforts to assist Buyer to obtain from Seller's
consultant, in either event without any warranty or representation as to
the accuracy or thoroughness thereof or to the ability of Buyer to rely
thereon, a true and complete copy of all environmental site assessment
report(s) with respect to an evaluation of Hazardous Materials (defined
below) in, on or under the Property. After Buyer has provided to Seller a
certificate of insurance(s) evidencing Buyer's or Buyer's agents',
consultants' and/or contractors' (as the case may be) procurement of a
commercial general liability insurance policy as required herein, Seller
shall permit Buyer and its authorized agents, consultants and contractors
to enter upon the Property during reasonable business hours (provided,
Buyer shall not interfere with or disturb any tenants' operations therein
or Seller's operation of the Property) to make and perform such
environmental evaluations, and other inspections and investigations of the
physical condition of the Property. Buyer shall maintain for itself and on
behalf of its consultants and contractors, or Buyer shall maintain and
shall ensure that its agents, consultants and contractors maintain, public
liability and property damage insurance insuring against any liability
arising out of any entry, tests or investigations of the Property pursuant
to the provisions hereof. Such insurance maintained by Buyer and/or its
consultants, agents and contractors (as applicable) shall be in the amount
of Two Million Dollars ($2,000,000.00) combined single limit for injury to
or death of one or more persons in an occurrence, and for damage to
tangible property (including loss of use) in an occurrence. The policy
maintained by Buyer shall insure the contractual liability of Buyer
covering the indemnities herein and shall (i) name the Seller and its
manager (and their successors, assigns and affiliates) as additional
insureds, (ii) contain a cross-liability provision, and (iii) contain a
provision that "the insurance provided by Buyer hereunder shall be primary
and non-contributing with any other insurance available to Seller." Buyer
shall provide Seller with evidence of such insurance coverage prior to any
entry, tests or investigations of the Property. The aforementioned
insurance coverage may be obtained under a blanket policy carried by Buyer
or its agents, consultants or contractors, as the case may be.
Notwithstanding the foregoing, Buyer shall not be permitted to undertake
any intrusive or destructive testing of the Property, including without
limitation a "Phase II" environmental assessment, without in each instance
first obtaining Seller's written consent thereto, which consent Seller may
give or withhold in Seller's sole and absolute discretion. Prior to
entering the Property (and on each and every occasion), Buyer shall deliver
to Seller prior written notice thereof [or verbal notice wherein Buyer
actually speaks with a representative of Seller (not a voicemail message)
with written notice delivered immediately thereafter, if requested at such
time], and shall afford Seller a reasonable opportunity to have a
representative of Seller present to accompany Buyer while Buyer performs
its evaluations, inspections, tests and other investigations of the
physical condition, including without limitation, the environmental
condition of the Property. Buyer also shall have the right to contact any
governmental agency with respect to any Hazardous Materials on, or the
environmental condition of, the Property, including, without limitation, in
connection with a "Phase I" environmental report. Prior to any such
contact, Buyer shall give Seller written notice thereof [or verbal notice
wherein Buyer actually speaks with a representative of Seller (not a
voicemail message) with written notice delivered immediately thereafter, if
requested at such time], and shall afford Seller a reasonable opportunity
to have a representative of Seller present to accompany Buyer while Buyer
contacts any such governmental agency. In addition, prior to any entry to
perform any necessary on-site inspections, tests or investigations with
respect to the physical condition of the Property, Buyer shall give Seller
written notice thereof [or verbal notice wherein Buyer actually speaks with
a representative of Seller (not a voicemail message) with written notice
delivered immediately thereafter, if requested at such time], including the
identity of the company or party(s) who will perform such inspections,
tests or investigations and the proposed scope of the inspections, tests
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or investigations, including, without limitation, the soil, drainage and
seismic condition of the Property, its compliance with applicable laws,
codes, regulations and governmental approvals, and the zoning, availability
of utilities and feasibility of the Property for the use intended by Buyer.
Seller shall approve or disapprove any proposed inspections, tests or
investigations and the party(s) performing the same within two (2) business
days after receipt of such notice. Seller's failure to advise Buyer of its
disapproval of any proposed inspections, tests or investigations and the
party(s) performing the same within such two (2) business day period shall
be deemed Seller's approval thereof, except to the extent said proposed
inspections, tests or investigations relate to "Phase II" environmental
matters, in which event Seller's failure to advise Buyer of its approval or
disapproval of any proposed environmental inspections, tests or
investigations and the party(s) performing the same within such two (2)
business day period shall be deemed Seller's disapproval thereof. Upon
termination of this Agreement for any reason other than due to a default by
Seller, Buyer shall promptly deliver to Seller copies of any reports
relating to any inspections, tests or investigations of the Property
performed by or on behalf of Buyer, provided, however, that any such
delivery shall be made without representation or warranty of any kind as to
the thoroughness or accuracy of any information contained therein or
Seller's ability to rely thereon. Prior to Buyer contacting the tenants,
Buyer shall give Seller written notice thereof, including the identity of
the company or persons who will perform any tenant interview or contacts.
Seller or its representative(s) may be present at any such interview or
meeting with the tenants and Buyer will reasonably cooperate and coordinate
with Seller to effectuate same. Buyer shall have until 5:00 p.m. (Pacific
Time) on the Approval Date to notify Seller in writing of its approval or
disapproval of any such evaluations, inspections and investigations.
4.1.3 Plans, Permits, Reports and Related Information. Within
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five (5) business days after the Agreement Date, but only to the extent (a)
the same is actually in Seller's or Seller's property manager's possession,
or, to the extent Seller has the legal right to obtain a copy of same, in
the possession of Seller's consultant previously hired to prepare such
report(s), and (b) said report(s) has not already been delivered to Buyer
by Seller prior to the Agreement Date, Seller will either deliver to Buyer,
or, at absolutely no cost or liability to Seller, will use commercially
reasonable efforts to assist Buyer to obtain from Seller's consultant, in
either event, Seller will deliver to Buyer a true and complete copy of (a)
property tax bills for the two (2) most recent tax fiscal years; (b)
without any warranty or representation as to the accuracy thereof or to the
ability of Buyer to rely thereon, soils reports, ADA reports, as-built
plans and specifications, drawings, and structural or engineering studies
or reports; and (c) without any warranty or representation as to the
accuracy thereof or to the ability of Buyer to rely thereon, a copy of any
existing survey(s) of the Property. Buyer shall have until 5:00 p.m.
(Pacific Time) on the Approval Date to notify Seller in writing of its
disapproval of any such matters. In no event shall Seller be required to
prepare or obtain any information, report, document or survey not presently
in Seller's possession.
4.1.4 Leases and Other Information. Within five (5) business
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days after the Agreement Date, but only to the extent (a) the same is
actually in Seller's or Seller's property manager's possession, or, to the
extent Seller has the legal right to obtain a copy of same, in the
possession of Seller's consultant previously hired to prepare such
report(s), and (b) said report(s) has not already been delivered to Buyer
by Seller prior to the Agreement Date, Seller will either deliver to Buyer,
or, at absolutely no cost or liability to Seller, will use commercially
reasonable efforts to assist Buyer to obtain from Seller's consultant, in
either event, Seller will deliver to Buyer or otherwise make available to
Buyer at Seller's property
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management company's offices during normal business hours for inspection by
Buyer, the following described documents and information: (i) a copy of all
existing and pending leases and subleases together with any amendments or
modifications thereof affecting any portion of the Property (collectively,
the "Leases"), and any correspondence with the tenants of the Property of a
material nature; (ii) a current rent roll for the Property, in the format
customarily used by Seller, with the information contained therein made as
of the date specified therein; (iii) a copy of project operating reports,
in the format and for the time periods customarily prepared by Seller; and
(iv) a copy of CAM reconciliations for the most recent full calendar year
prior to the Closing and to the extent available, a summary of expenses for
the current year. Buyer shall until 5:00 p.m. (Pacific Time) on the
Approval Date to notify Seller in writing, of its approval or disapproval
of the Leases and other information; provided, however, in no event shall
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Seller be required to modify, terminate or otherwise supplement any of the
Leases. At the Closing Seller shall assign to Buyer its rights and
interests in and to the Leases and all security deposits then being held by
Seller pursuant to the Assignment and Assumption of Leases in substantially
the form attached hereto as Exhibit B, and made a part hereof.
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4.1.5 Contracts. Within five (5) business days after the
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Agreement Date, but only to the extent (a) the same is actually in Seller's
or Seller's property manager's possession, or, to the extent Seller has the
legal right to obtain a copy of same, in the possession of Seller's
consultant previously hired to prepare such report(s), and (b) said
report(s) has not already been delivered to Buyer by Seller prior to the
Agreement Date, Seller will either deliver to Buyer, or, at absolutely no
cost or liability to Seller, will use commercially reasonable efforts to
assist Buyer to obtain from Seller's consultant, in either event, Seller
will deliver to Buyer a copy of all service agreements, commission
agreements, maintenance agreements, easement agreements, improvement
agreements, license agreements, and other agreements related to or
affecting the Property and not included as part of the title documents
delivered pursuant to Section 4.1.1 hereof (collectively, the "Contracts").
Buyer shall have a period of twenty-five (25) days after the Agreement Date
to either approve of any such Contracts, or to notify Seller in writing,
specifying any Contracts which Buyer desires be terminated on or before the
Closing, and which, by their express terms, may be terminated on or before
the Closing (the "Disapproved Contracts"); provided, however, in no event
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shall Seller be required to terminate any Contracts which by their terms
are not terminable prior to the Closing unless Buyer agrees, in writing, to
pay the prorated charges or costs thereunder as of the Closing Date. Seller
shall have until one (1) business day prior to the Approval Date to notify
Buyer, in writing, of its agreement to lawfully terminate such Disapproved
Contracts prior to the Closing, with such Disapproved Contracts being
terminated effective on or before the Closing. Those Contracts not
expressly disapproved by Buyer and those Disapproved Contracts which Seller
has advised Buyer it will not terminate at or prior to the Closing
(collectively, the "Approved Contracts") shall be assigned by Seller to
Buyer at the Closing. Seller shall assign its rights and interests under
the Approved Contracts to Buyer at the Closing pursuant to the Assignment
and Assumption of Contracts, Warranties and Permits in substantially the
form attached hereto as Exhibit C, and made a part hereof. Failure by
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Seller to agree to so terminate some or all of the Disapproved Contracts
within the specified period shall be deemed to be a failure of this
condition, unless Buyer withdraws its disapproval or rejection, in writing,
prior to the 5:00 p.m. (Pacific Time) on the Approval Date.
4.1.6 Economic Feasibility. Buyer's determination, in its sole
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and absolute discretion, of the economic feasibility of the Property for
Buyer's intended ownership.
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4.1.7 Natural Hazard Disclosure Statement. By the date which is
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seven (7) business days after the Agreement Date, Seller shall have
executed and delivered to Buyer, a Natural Hazard Disclosure Statement, as
and to the extent prescribed by California law, in substantially the form
of Exhibit I attached hereto and made a part hereof (the "NHDS"). On or
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prior to the Approval Date, Buyer shall execute and deliver to Seller one
(1) counterpart original of the NHDS which signature shall, among other
things, serve to acknowledge Buyer's receipt from Seller of such NHDS and
Buyer's understanding and acceptance thereof.
4.1.8 Other Matters. Buyer shall have reviewed and approved any
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other matters Buyer deems relevant to the Property prior to 5:00 p.m.
(Pacific Time) on the Approval Date.
4.2 Closing Conditions.
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4.2.1 Buyer's Closing Conditions. Following the Approval Date,
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Buyer's obligation to consummate the purchase of the Property shall be
subject to the satisfaction or waiver by Buyer of the following conditions
(collectively, the "Buyer's Closing Conditions"):
4.2.1.1 Seller's Delivery of Estoppel Certificates. Seller will
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obtain and deliver to Buyer by no later than five (5) business days
prior to the Closing (the "Estoppel Delivery Date"), estoppel
certificates from all of the tenants of the Property. Said
certificates shall be substantially in the form (i) prescribed in such
tenants' leases, or (ii) of the Tenant Estoppel Certificate attached
hereto as Exhibit F, and made a part hereof, as applicable (provided,
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however, that in the event that a tenant returns its estoppel
certificate with Section 12 altered, deleted, or marked out, the same
shall still qualify as having been properly delivered by Buyer) (the
"Estoppel Certificates"). Buyer shall be deemed to have approved each
of the Estoppel Certificates so long as, in Buyer's reasonable
judgment, there are no material defaults specified therein and no
material deviations between the information specified in said estoppel
certificates and the leases to which such estoppel certificates
relate. If Seller is unable to provide Buyer with Estoppel
Certificates from all of the tenants of the Property, Seller may elect
to extend the Estoppel Delivery Date and the Closing Date for a period
of up to an additional thirty (30) days in order to obtain said
missing Estoppel Certificates. Seller shall notify Buyer, in writing,
of its election by the Estoppel Delivery Date and shall specify
therein the extended estoppel delivery date (the "Extended Estoppel
Delivery Date") and the extended Closing Date. If Seller is unable to
provide Buyer with Estoppel Certificates from all of the tenants of
the Property by the Estoppel Delivery Date or the Extended Estoppel
Delivery Date, as applicable, Buyer may either elect to (a) terminate
this Agreement in which case the Deposits (to the extent then made)
shall be returned to Buyer, or (b) consummate the transaction in
accordance with the provisions hereof without Seller being required to
obtain the missing Estoppel Certificates. Buyer shall notify Seller of
its disapproval or approval of the Estoppel Certificates and, if
applicable, of its election under clauses (a) or (b) hereof, in
writing, by the earlier of the date which is two (2) business days
after Seller's delivery to Buyer of the required number of Estoppel
Certificates or the Estoppel Delivery Date or the Extended Estoppel
Delivery Date, as the case may be.
4.2.1.2 Seller's Delivery of Closing Documents. Seller shall
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have delivered to Escrow Holder or Buyer, as appropriate, all of the
documents referred to in Section
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6.4.1 below, and Seller otherwise shall not be in material default of
its obligations hereunder.
4.2.1.3 Delivery of Title Policy. At the Closing, if Buyer has
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timely delivered to the Title Company an ALTA Survey in insurable form
reasonably acceptable to the Title Company, the Title Company shall be
irrevocably committed to issue to Buyer the ALTA Policy (defined
below). Alternatively, if Buyer has not timely delivered to the Title
Company an ALTA Survey in insurable form reasonably acceptable to the
Title Company, the Title Company shall be irrevocably committed to
issue to Buyer the CLTA Title Policy (defined below). The ALTA Policy
or the CLTA Title Policy, as the case may be, shall be subject only to
(i) a lien for real property taxes and assessments not then
delinquent; (ii) matters of title respecting the Real Property
approved or deemed approved by Buyer pursuant to the provisions of
this Agreement; and (iii) matters affecting the condition of title to
the Real Property created or permitted by, or with the written consent
of, Buyer or its agents, representatives, consultants or contractors
(collectively, the "Permitted Exceptions").
4.2.1.4 Representations. Except as Seller otherwise discloses to
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Buyer, in writing, prior to the Approval Date, Seller's
representations contained in Section 26 of this Agreement shall have
been true and correct in all material respects when made and, except
as otherwise disclosed to Buyer in writing prior to the Closing Date,
shall be true and correct in all material respects as of the Closing
Date.
4.2.1.5 Termination of Disapproved Instruments. Seller lawfully
--------------------------------------
terminating, or causing the lawful termination of, the Disapproved
Contracts which Seller has agreed to terminate in accordance with the
provisions of Section 4.1.5 hereof, all of which having an effective
date of termination being on or before the Closing. Additionally,
effective as of the Closing Date, Seller shall terminate any property
management agreement made with its property management company with
respect to the Property.
4.2.1.6 Lease Terms. As of the Closing Date, no tenant under any
-----------
of the Leases shall have any legal right by option or otherwise either
to extend any lease term beyond April 15, 2001, or to otherwise occupy
all or any portion of the Real Property or Improvements after April
15, 2001.
4.2.2 Seller's Closing Conditions. Seller's obligation to
---------------------------
consummate the sale of the Property is conditioned upon the approval or
Seller's written waiver on or prior to the Closing Date of the following
conditions (collectively, the "Seller's Closing Conditions"):
4.2.2.1 Not later than one (1) business day prior to Closing,
Buyer shall deliver into the Escrow Account (for payment to Seller),
in immediately available funds, cash in an amount of the balance of
the Purchase Price remaining after deduction for the Deposits plus the
----
costs, expenses and prorations required to be paid by Buyer hereunder.
4.2.2.2 Buyer shall not be in material default of its
obligations hereunder.
8
4.2.2.3 Each of the documents required to be delivered by Buyer
pursuant to Section 6.4.2 shall have been timely delivered as provided
therein.
4.2.2.4 All of Buyer's representations and warranties contained
herein shall be true and correct in all material respects when made
and shall be true and correct in all material respects as of the
Closing Date.
4.3 Failure of Conditions. If any or all of the Pre-Closing
---------------------
Conditions are not satisfied or waived within the applicable time periods
specified in Section 4.1 above, then Buyer may terminate this Agreement by
delivering written notice thereof to Seller on or before the expiration of said
time periods. If Buyer so elects to terminate this Agreement, the Initial
Deposit shall be returned to Buyer and neither Buyer nor Seller shall have any
further liability or obligation to each other, except for Buyer's Surviving
Obligations. Notwithstanding anything to the contrary contained herein, if Buyer
terminates this Agreement for failure of a Pre-Closing Condition or for any
other reason other than a termination due to a default by Seller, within ten
(10) days after such termination Buyer shall deliver to Seller a copy of all
materials, tests, audits, surveys, reports, studies and the results of any and
all investigations and inspections conducted by Buyer (excluding any proprietary
materials) (collectively, the "Buyer's Documents") and Buyer shall also return
to Seller any and all documents, leases, agreements, reports and other materials
given to Buyer by or on behalf of Seller (collectively, the "Seller's
Documents") (the Buyer's Documents and the Seller's Documents are collectively
referred to herein as the "Due Diligence Materials"). Notwithstanding anything
to the contrary contained in this Agreement, if Buyer terminates this Agreement
as a result of a default by Seller, Buyer shall not be obligated to deliver the
Buyer's Documents to Seller upon or after such termination. The foregoing
covenants of Buyer shall survive any such termination of this Agreement. If
Buyer fails to terminate this Agreement by delivering written notice thereof to
Seller prior to 5:00 p.m. (Pacific Time) on the Approval Date, (i) the Initial
Deposit shall become non-refundable to Buyer, and (ii) within one (1) business
day after the Approval Date, Buyer shall deposit into the Escrow Account, the
Additional Deposit which shall also become non-refundable to Buyer subject to
the satisfaction or waiver of the Buyer's Closing Conditions. The funding by
Buyer of the Additional Deposit shall conclusively constitute Buyer's approval
of the Pre-Closing Conditions. If the Pre-Closing Conditions are satisfied or
waived by Buyer but any or all of the Buyer's Closing Conditions are not
satisfied or waived by Buyer on or before the date established for the Closing,
then Buyer shall notify Seller in writing of those Buyer's Closing Conditions
which have not been satisfied or otherwise waived by Buyer (the "Buyer's Closing
Conditions Failure Notice"). Seller shall have three (3) business days after
Buyer has delivered to Seller the Buyer's Closing Conditions Failure Notice (and
the Closing shall be extended, if necessary to give Seller such three (3)
business day period) to notify Buyer in writing of Seller's election either to
(a) take such actions as may be necessary to cure such matters to Buyer's
reasonable satisfaction prior to the date of Closing (as same may be extended),
or (b) advise Buyer that Seller will not cure such matters (the "Seller's
Conditions Notice"). If Seller elects not to cure such matters, then within two
(2) business days after Buyer's receipt of the Seller's Conditions Notice (and
the Closing shall be extended, if necessary to give Buyer such two (2) business
day period), Buyer, at its sole option, may elect to do any of the following:
(1) Buyer may elect to terminate this Agreement by delivering written notice
thereof to Seller, in which event Seller shall promptly cause the return to
Buyer of the Deposits, and the parties shall have no further obligations
hereunder except for Buyer's Surviving Obligations; (2) if the Buyer's Closing
Condition in question is any of those conditions specified in Sections 4.2.1.1,
4.2.1.3, 4.2.1.4 or 4.2.1.6 and Seller is not in any material manner responsible
for the deviation or failure of such Buyer's Closing Condition, then Buyer may
elect to terminate this Agreement by delivering written notice thereof to
Seller, in which event Seller shall promptly cause the return to Buyer of the
Deposits, and the parties shall have no further obligations
9
hereunder except for Buyer's Surviving Obligations; (3) if the Buyer's Closing
Condition in question is any of those conditions specified in Sections 4.2.1.2
or 4.2.1.5, or if the Buyer's Closing Condition in question is any of those
conditions specified in Sections 4.2.1.1, 4.2.1.3 or 4.2.1.4 and Seller is
actually responsible for the deviation or failure of such Closing Condition,
then Buyer may pursue the remedies available to it pursuant to Section 5.2
below; or (4) Buyer may elect to waive the Buyer's Closing Condition(s) in
question and proceed with the purchase of the Property. If Buyer elects to
terminate the Agreement, neither party shall have any further liability or
obligation hereunder except for Buyer's Surviving Obligations. If Seller elects
to cure such matters as set forth in the Buyer's Closing Conditions Failure
Notice, Seller shall promptly take any and all actions as may be necessary to
cure same and the date of the Closing may be extended for a period of time
reasonably acceptable to both Seller and Buyer to enable Seller to accomplish
same. Failure by Buyer to notify Seller within the specified time periods set
forth herein, shall be deemed an approval by Buyer of each such matter, in which
event all such conditions and contingencies shall be conclusively deemed to be
satisfied and approved. If any of the Seller's Closing Conditions are not
satisfied or otherwise waived by Seller prior to the Closing Date, Seller may
elect, in its sole and absolute discretion, to terminate this Agreement and
pursue the remedy available to it pursuant to Section 5.1 below.
4.4 Investigations Indemnity. Buyer shall keep the Property free from
------------------------
all liens and shall indemnify, defend (with counsel reasonably satisfactory to
Seller), protect, and hold Seller and each of the parties comprising Seller and
each of their members, officers, trustees, employees, representatives, agents,
lenders, related and affiliated entities, successors and assigns harmless from
and against any and all claims, demands, liabilities, judgments, penalties,
losses, costs, damages, and expenses (including, without limitation, reasonable
attorneys' and experts' fees and costs) relating to or arising in any manner
whatsoever from any studies, evaluations, inspections, investigations or tests
made by Buyer or Buyer's agents or representatives relating to or in connection
with the Property or entries by Buyer or its agents or representatives in, on or
about the Property; provided, Buyer shall not be liable to Seller under the
foregoing indemnity solely as a result of the discovery by Buyer of a pre-
existing condition in or on the Property. Notwithstanding any provision to the
contrary in this Agreement, the indemnity obligations of Buyer under this
Agreement shall survive any termination of this Agreement or, if the delivery of
the Grant Deed and the transfer of title occurs, the indemnity obligations of
Buyer pursuant to this Section 4.4 shall survive for a period of twelve (12)
months from the Closing Date. In addition to the foregoing indemnity, if there
is any damage to the Property caused by Buyer's and/or its agents' or
representatives' entry in or on the Property, Buyer shall immediately restore
the Property substantially to the same condition existing prior to Buyer's and
its agents' or representatives' entry in, on or about the Property. The term
"Hazardous Materials" as used in this Agreement shall mean and refer to (a) any
hazardous or toxic wastes, materials or substances, or chemicals, and other
pollutants or contaminants, which are or become regulated by applicable local,
state, regional and/or federal orders, ordinances, statutes, rules, regulations
(as interpreted by judicial and administrative decisions) and laws; (b)
asbestos, asbestos-containing materials or urea formaldehyde; (c)
polychlorinated biphenyls; (d) flammables, explosive, corrosive or radioactive
materials; (e) medical waste and biochemicals; and (f) gasoline, diesel,
petroleum or petroleum by-products.
5. Remedies/Liquidated Damages.
5.1 Buyer's Default. If Buyer fails to complete the purchase of the
---------------
Property as provided in this Agreement solely by reason of any material default
of Buyer (and not due to a failure of a condition precedent), Seller shall be
released from its obligation to sell the Property to Buyer. Buyer and Seller
hereby
10
Acknowledge And Agree That It Would Be Impractical And/or Extremely Difficult To
Fix Or Establish The Actual Damage Sustained By Seller As A Result Of Such
Default By Buyer, And Agree That The Deposits (Including All Interest) And The
Delivery To Seller By Buyer Of The Due Diligence Materials Is A Reasonable
Approximation Thereof. Accordingly, In The Event That Buyer Breaches This
Agreement By Defaulting In The Completion Of The Purchase, The Deposits
(Including All Interest) And The Delivery To Seller By Buyer Of The Due
Diligence Materials Shall Constitute And Be Deemed To Be The Agreed And
Liquidated Damages Of Seller, And Shall Be Paid By Buyer To Seller And The Title
Company As Seller's Sole And Exclusive Remedy. Seller Agrees To Waive All Other
Remedies Against Buyer Which Seller Might Otherwise Have At Law Or In Equity,
Including, Without Limitation, Specific Performance, Which Remedy Seller Hereby
Expressly Waives, By Reason Of Such Default By Buyer; Provided, However, The
Foregoing Shall Not Limit (I) Buyer's Obligations To Pay To Seller All
Attorneys' Fees And Costs Of Seller To Enforce The Provisions Of This Section
5.1 And/or Buyer's Indemnity Obligations Under Sections 4.4 And 16 Hereof, (Ii)
Buyer's Indemnity Obligations Under Sections 4.4 And 16 Hereof, Or (Iii) The
Ability And Right Of Seller To Enforce Such Indemnities. Each Of The Payment Of
The Deposits (Including All Interest), The Payment By Buyer Of All Escrow
Cancellation Charges And Fees, And The Delivery To Seller By Buyer Of The Due
Diligence Materials As Liquidated Damages Is Not Intended To Be A Forfeiture Or
Penalty, But Is Intended To Constitute Liquidated Damages To Seller Pursuant To
California Civil Code Sections 1671, 1676 And 1677.
Seller's Initials: ___________ Buyer's Initials: ____________
5.2 Seller's Default. If Seller Fails To Complete The Sale Of The
----------------
Property As Provided In This Agreement Solely By Reason Of Any Material Default
Of Seller (And Not Due To A Failure Of A Condition Precedent), Buyer Shall Be
Released From Its Obligation To Purchase The Property From Seller, And Buyer May
Either (I) Proceed Against Seller By Bringing An Action For Specific Performance
Under This Agreement Without Any Right To Seek Damages Of Any Kind Or Nature, Or
(Ii) Terminate This Agreement In Which Event The Deposits Shall Be Returned To
Buyer, Together With Buyer's Reasonable Out-of-pocket Expenses Incurred In
Connection With Buyer's Due Diligence Up To (But Not Exceeding) Twenty-five
Thousand Dollars ($25,000.00), Seller Shall Be Responsible For Payment Of All
Escrow Cancellation Charges And Fees, And Buyer Shall Promptly Return To Seller
The Seller's Documents. Buyer And Seller Hereby Acknowledge And Agree That It
Would Be Impractical And/or Extremely Difficult To Fix Or Establish The Actual
Damage Sustained By Buyer As A Result Of Such Material Default By Seller, And
Agree That The Remedy Set Forth In Clause (Ii) Above Is A Reasonable
Approximation Thereof. Accordingly, In The Event That Seller Breaches This
Agreement By Materially Defaulting In The Completion Of The Sale, And Buyer
Elects Not To Exercise The Remedy Set Forth In Clause (I) Above But Instead
Elects The Remedy Set Forth In Clause (Ii) Above, Such Sums Shall Constitute And
Be Deemed To Be The Agreed And Liquidated Damages Of Buyer Which Is Not Intended
To Be A Forfeiture Or Penalty, But Is Intended To Constitute Liquidated Damages
To Buyer Pursuant To California Civil Code Sections 1671, 1676 And 1677. Buyer
Agrees To, And Does Hereby, Waive All Other Remedies Against Seller Which Buyer
Might Otherwise Have At Law Or In Equity By Reason Of Such Default By Seller In
Failing To Complete The Sale Of The Property.
11
Nothing Herein Shall Be Deemed A Waiver Of Buyer's Right To ▇▇▇ Seller For
Damages For A Breach Or Default By Seller Of Its Obligations Under This
Agreement, To The Extent Such Damages Do Not Arise Out Of Seller's Default In
Failing To Complete The Sale Of The Property, So Long As Such Damages Do Not
Exceed One Hundred Fifty Thousand Dollars ($150,000.00), And Provided That Any
Claim, Action, Suit Or Proceeding With Respect To Any Such Alleged Breach Or
Default By Seller Hereunder Shall Be Commenced, If At All, On Or Before The Date
Which Is Six (6) Months After The Closing Date And, If Not So Commenced On Or
Before Such Date, Thereafter Buyer Shall Be Forever Barred From Making Or
Bringing Any Such Claim, Action, Suit Or Proceeding.
Seller's Initials: ____________ Buyer's Initials: ____________
6. Closing and Escrow.
6.1 Escrow Instructions. Upon execution of this Agreement, the parties
-------------------
hereto shall deposit a copy of an executed counterpart of this Agreement with
Escrow Holder and this instrument shall serve as the instructions to Escrow
Holder for consummation of the purchase and sale contemplated hereby. Seller
and Buyer agree to execute such additional and supplementary escrow instructions
as may be appropriate to enable the Escrow Holder to comply with the terms of
this Agreement; provided, however, that in the event of any conflict between the
provisions of this Agreement and any supplementary escrow instructions, the
terms of this Agreement shall control.
6.2 Date of Closing. Unless otherwise agreed to in writing by the
---------------
parties, escrow shall close on or before 8:00 a.m. (Pacific Time) on the date
which is fifteen (15) business days following the expiration of the Conditions
Period, but in no event later than December 28, 2000 (the "Closing Date"), with
time being of the essence. Such Closing Date may not be extended without the
prior written approval of both Seller and Buyer, except as otherwise expressly
provided in this Agreement and, in particular, in Section 4.2.1.1 hereof. In the
event the Closing does not occur on or before the Closing Date (as same may be
extended) the Escrow Holder shall, unless it is notified by both parties to the
contrary within three (3) days prior to the actual date on which the Closing
occurs, return to the depositor thereof items which may have been deposited
hereunder. Any such return shall not, however, relieve either party hereto of
any liability it may have for its wrongful failure to close.
6.3 Conveyance. At Closing, Seller shall convey to Buyer fee simple
----------
title to the Property (excluding the Personal Property), by means of a grant
deed in substantially the form of Exhibit D attached hereto and made a part
---------
hereof ("Grant Deed"), subject to all applicable laws, rules, regulations,
codes, ordinances and orders, and the Permitted Exceptions. The Closing shall
mean the date that the Grant Deed is recorded in the official records of Santa
▇▇▇▇▇ County, possession of the Property is delivered to Buyer, and Buyer
fulfills all of its obligations hereunder. If Seller cannot so deliver title to
the Property to Buyer, Buyer may, at its option, take title to the Property in
such condition as Seller can then convey, without abatement of the Purchase
Price or, at Buyer's option, Buyer may exercise its remedies in accordance with
the provisions of Section 5.2 above.
6.4 Closing Documents.
-----------------
6.4.1 Seller's Closing Documents. At Closing, in addition to the
--------------------------
Grant Deed (with the amount of the documentary transfer taxes affixed on a
separate sheet to be attached to the Grant Deed after recordation), Seller
shall deliver to Buyer, or Escrow Holder for delivery
12
to Buyer, all of the following documents: (i) originals or true and
complete copies of the Approved Contracts, if any; (ii) two (2)
counterparts of the Assignment and Assumption of Leases in substantially
the form attached hereto as Exhibit B, duly executed by Seller; (iii) two
---------
(2) counterparts of the Assignment and Assumption of Contracts, Warranties
and Permits in substantially the form attached hereto as Exhibit C, duly
---------
executed by Seller; (iv) two (2) counterparts of a ▇▇▇▇ of sale (the "▇▇▇▇
of Sale") for the Personal Property, if any, in substantially the form
attached hereto as Exhibit E and made a part hereof, duly executed by
---------
Seller; (v) a certificate of non-foreign status in accordance with the
requirements of Internal Revenue Code Section 1445, as amended ("FIRPTA
Certificate") and a California Form 597-W with respect to the Property,
duly executed by Seller; (vi) notices to the tenants with respect to the
Leases, in substantially the form attached hereto as Exhibit G and made a
---------
part hereof, duly executed by Seller or Seller's property manager; and (vi)
such other documents and instruments as may be reasonably required by the
Title Company to consummate the transaction contemplated herein. Seller's
timely making and delivery of the aforesaid documents and information shall
be a condition precedent to Buyer's obligations under this Agreement. Time
is of the essence with respect hereto.
6.4.2 Buyer's Closing Payments and Documents. At Closing, in
--------------------------------------
addition to Buyer's payment to Seller of the Purchase Price, Buyer shall
deliver to Seller or Escrow Holder for delivery to Seller, as applicable,
the following: (i) two (2) counterparts of the Assignment and Assumption of
Leases in substantially the form attached hereto as Exhibit B, duly
---------
executed by Buyer; (ii) two (2) counterparts of the Assignment and
Assumption of Contracts, Warranties and Permits in substantially the form
attached hereto as Exhibit C, duly executed by Buyer; (iii) two (2)
---------
counterparts of the ▇▇▇▇ of Sale in substantially the form attached hereto
as Exhibit E, duly executed by Buyer; and (iv) such other documents and
---------
instruments as may be reasonably required by Seller or the Title Company to
consummate the transaction contemplated herein. Buyer's timely making and
delivery of the aforesaid funds, documents and information shall be a
condition precedent to Seller's obligations under this Agreement. Time is
of the essence with respect hereto.
7. Interim Operation of the Property.
7.1 Except as otherwise contemplated or permitted by this Agreement
or approved by Buyer in writing, from the Agreement Date to the Closing Date,
Seller agrees that it will operate, maintain, repair and lease the Property in
the ordinary course and consistent with such Seller's past practices and will
not dispose of or encumber its Property, except for dispositions of personal
property in the ordinary course of business or as otherwise permitted hereunder.
Without limiting the foregoing, Seller shall, in the ordinary course, enforce
the terms of the Leases in all material respects and perform in all material
respects all of landlord's obligations under the Leases (other than Leases that
are or that are in process of being terminated due to the tenant's default
thereunder). In no event shall Seller extend the term of any Lease.
7.2 From and after the Agreement Date, in no event shall Seller enter
any new lease or other use agreement for the Property, nor modify or amend any
existing Lease, without the prior written consent of Buyer, which may be
withheld in Buyer's sole and absolute discretion.
7.3 Seller shall not enter into any agreement after the Agreement
Date to create a lien or encumbrance on the Property which will survive the
Closing without Buyer's prior written consent, which may be withheld in Buyer's
sole and absolute discretion; provided, however, that such
--------
13
consent shall not be unreasonably withheld, conditioned or delayed with respect
to any utility or similar easement necessary for the operation of the Property.
Seller also shall not enter into any modification, amendment or renewal of any
Approved Contract from and after the Agreement Date without Buyer's prior
written consent, which may be withheld in Buyer's sole and absolute discretion;
provided, however, that without Buyer's consent, Seller for cause may (i)
terminate any Approved Contract for any material default thereunder or enter a
new contract which replaces an existing Approved Contract, provided that such
new Approved Contract is on substantially the same terms as the Approved
Contract being replaced with the same or shorter period for termination thereto
(but in any event any replacement Approved Contract shall permit termination by
the then owner of the Property without penalty on not more than thirty (30)
days' notice), and provided further that Seller promptly notifies Buyer upon
terminating any such Approved Contract or entering into any replacement Approved
Contract. Buyer's consent shall be deemed withheld if Buyer does not respond in
writing to Seller's request for said consent within three (3) business days
thereafter. In addition, during the period from the Agreement Date through
Closing, Seller promptly shall give notice to Buyer in writing of all actions or
decisions by Seller materially affecting the Property, including without
limitation creation of any liens or encumbrances or entering into of any
Contracts that would survive Closing, and Seller shall give notice to Buyer in
writing of any damage to the Real Property (including damage resulting from the
use, storage, disposal or release of Hazardous Materials on, in or under the
Property by any tenant under the Leases) or destruction of any improvement
thereon or condemnation of any portion of the Property of which Seller shall
have actual knowledge within one (1) business day of Seller's receipt of such
actual knowledge. If Buyer is entitled to withhold its consent under this
Section 7.3 to any action by Seller and does so withhold its consent, Seller
shall not take the action not consented to.
8. Intentionally Omitted.
9. Seller's Maintenance of the Property.
Between the Agreement Date and the Closing Date, Seller, at its expense,
shall (i) maintain the Property in substantially the same condition as it was on
the date of full execution hereof and in accordance with Seller's normal course
of business, including making all routine repairs and replacements arising after
the date hereof, subject to reasonable wear and tear and further subject to the
occurrence of any damage or destruction to the Property by casualty or other
causes or events beyond the control of such Seller; provided, however, that such
--------
Seller's maintenance obligations under this Section 9 shall not include any
obligation to make capital expenditures or any other expenditures not incurred
in Seller's normal course of business, except that Seller shall not be relieved
from any maintenance or repair obligation imposed by the Leases; and (ii)
continue to maintain its existing insurance coverage. Notwithstanding the
foregoing, in the event Seller makes emergency capital expenditures after the
Agreement Date to the Property, Seller shall deliver to Buyer promptly following
the occurrence of an event that would require Seller to make such emergency
capital expenditure, a written notice describing in reasonable detail the nature
and cost of such emergency capital expenditure, and Buyer shall be obligated to
reimburse Seller for such emergency capital expenditures to the extent tenants
are required to pay such costs under the terms of the Leases and shall have
confirmed in writing their obligation and the amount that they will so pay, and
the Purchase Price payable at the Closing shall be increased by an amount equal
to the amount spent by Seller in respect of such emergency capital expenditure.
For purposes of this Agreement, "emergency capital expenditures" shall mean any
emergency capital expenditures performed by Seller that are reasonably necessary
to prevent an immediate threat to the health or safety of any person. Prior to
the Closing Date, Seller shall have the right, but not the obligation (except to
the extent that Seller's failure to act shall constitute a waiver of such rights
or remedies), to apply all or any portion of any security deposits then held by
Seller toward
14
any loss or damage incurred by Seller by reason of any defaults by any tenant,
provided, that with respect to any application by Seller of tenant security
deposits held by Seller, the Seller will deliver, in connection with any such
application, written notice to the affected tenant(s) indicating that their
security deposits have been or are being so applied. Seller shall provide Buyer
with written notice of any action taken by Seller pursuant to the foregoing
provisions.
10. Casualty and Condemnation.
In the event there is any damage to the Real Property (including damage
resulting from the use, storage, disposal or release of Hazardous Materials on,
in or under the Property by any tenant under the Leases) or destruction of any
improvement thereon or condemnation of any portion of the Property, after the
Approval Date, and the estimated cost of repairs is (i) Five Hundred Thousand
Dollars ($500,000.00) or less for structural repairs, and One Million Dollars
($1,000,000,00) or less for all repairs other than structural repairs, Buyer
shall be required to purchase the Property with a credit against the Purchase
Price otherwise due hereunder equal to the amount of any insurance proceeds or
condemnation awards actually collected by Seller prior to the Closing as a
result of any such damage or destruction or condemnation, plus the amount of any
----
insurance deductible or any uninsured amount or retention, less any sums
----
expended by Seller prior to the Closing for the restoration or repair of the
Property and/or in collecting such insurance proceeds or condemnation awards.
Seller agrees that it will maintain its present casualty insurance policy with
respect to the Property in full force and effect until the Closing. If the
insurance proceeds or condemnation awards have not been collected as of the
Closing, then such proceeds or awards shall be assigned to Buyer, except to the
extent needed to reimburse Seller for sums it expended prior to the Closing for
the restoration or repair of the Property or in collecting such insurance
proceeds or condemnation awards, and Seller shall cooperate with Buyer and use
diligent, good faith efforts to obtain such proceeds or awards. The foregoing
obligation of Seller shall survive the Closing.
Notwithstanding the foregoing, if (i) the Property is damaged (including
damage resulting from the use, storage, disposal or release of Hazardous
Materials on, in or under the Property by any tenant under the Leases) or
destroyed by a casualty, to the extent that the cost of repair or restoration to
substantially the same condition existing prior to such casualty would exceed
Five Hundred Thousand Dollars ($500,000.00) for structural repairs or One
Million Dollars ($1,000,000.00) for all repairs other than structural repairs,
or (ii) in the case of a condemnation, the value of the Property or portion
thereof so condemned is in excess of Five Hundred Thousand Dollars
($500,000.00), then Seller shall give Buyer prompt notice thereof and the Buyer
may, at its option to be exercised by delivery of written notice to Seller
within five (5) business days of Seller's notice to the Buyer of the occurrence
of such casualty or condemnation, elect not to purchase the Property under this
Agreement. If Buyer so duly elects not to purchase the Property, this Agreement
shall terminate, the Deposits (to the extent made) shall be returned to Buyer
and neither party shall have any further rights or obligations under this
Agreement other than Buyer's Surviving Obligations. Any dispute as to the costs
of such repair or restoration or value of a condemned portion of the Property
shall be referred to a licensed architect jointly selected by Buyer and Seller
for resolution, and the determination of such architect, which shall be made
within a period of twenty (20) days after such submittal by the parties, shall
be final, conclusive and binding on the parties. If the parties fail to agree
upon the identity of such architect within five (5) business days after either
party has notified the other of its choice of architect, then either party may
at any time thereafter apply to a court of competent jurisdiction to appoint
immediately such architect. The fees and expenses of such architect shall be
paid equally by Buyer and Seller, and the parties shall cooperate with such
architect by providing such information as such architect may reasonably require
to resolve the dispute. If Buyer does not elect, in writing, not to purchase
the
15
Property, Buyer shall be obligated to consummate the purchase of the Property as
required by the terms hereof, with a credit against the Purchase Price otherwise
due hereunder equal to the amount of any insurance proceeds or condemnation
awards actually collected by Seller prior to the Closing as a result of any such
damage or destruction or condemnation, plus the amount of any insurance
----
deductible or any uninsured amount or retention, less any sums expended by
----
Seller prior to the Closing for the restoration or repair of the Property and/or
in collecting such insurance proceeds or condemnation awards. If the insurance
proceeds or condemnation awards have not been collected as of the Closing, then
such proceeds or awards shall be assigned to Buyer, except to the extent needed
to reimburse Seller for sums it expended prior to the Closing for the
restoration or repair of the Property or in collecting such insurance proceeds
or condemnation awards, and Seller shall cooperate with Buyer and use diligent
good faith efforts to obtain such proceeds or awards. The foregoing obligation
of Seller shall survive the Closing.
11. Limited Liability.
Buyer on its own behalf and on behalf of its agents, members, partners,
employees, representatives, related and affiliated entities, successors and
assigns (collectively, the "Buyer Parties") hereby agrees that in no event or
circumstance shall any of the members, partners, employees, representatives,
officers, directors, agents, property management company, affiliated or related
entities of Seller or Seller's property management company, namely Legacy
Partners Commercial, Inc. (formerly known as Lincoln Property Company Management
Services, Inc. and LPC MS, Inc.), have any personal liability under this
Agreement, or to any of Buyer's creditors, or to any other party in connection
with the Property.
12. Release.
Buyer on its own behalf and on behalf of each of the Buyer Parties hereby
agrees that each of Seller, Seller's partners or members, as the case may be,
and each of their partners, members, trustees, directors, officers, employees,
representatives, property managers, asset managers, agents, attorneys,
affiliated and related entities, heirs, successors and assigns (collectively,
the "Releasees") shall be, and are hereby, fully and forever released and
discharged from any and all liabilities, losses, claims (including third party
claims), demands, damages (of any nature whatsoever), causes of action, costs,
penalties, fines, judgments, attorneys' fees, consultants' fees and costs and
experts' fees (collectively, the "Claims") with respect to any and all Claims,
whether direct or indirect, known or unknown, foreseen or unforeseen, that may
arise on account of or in any way be connected with the Property including,
without limitation, the physical, environmental and structural condition of the
related Real Property or any law or regulation applicable thereto, including,
without limitation, any Claim or matter (regardless of when it first appeared)
relating to or arising from (i) the presence of any environmental problems, or
the use, presence, storage, release, discharge, or migration of Hazardous
Materials on, in, under or around the Property regardless of when such Hazardous
Materials were first introduced in, on or about the Property, (ii) any patent or
latent defects or deficiencies with respect to the Property, (iii) any and all
matters related to the Property or any portion thereof, including without
limitation, the condition and/or operation of the Property and each part
thereof, and (iv) the presence, release and/or remediation of asbestos and
asbestos containing materials in, on or about the Property regardless of when
such asbestos and asbestos containing materials were first introduced in, on or
about the Property. Buyer hereby waives and agrees not to commence any action,
legal proceeding, cause of action or suits in law or equity, of whatever kind or
nature, including, but not limited to, a private right of action under the
federal superfund laws, 42 U.S.C. Sections 9601 et seq. and California Health
and Safety Code Sections 25300 et seq. (as such laws and statutes may be
amended, supplemented or replaced
16
from time to time), directly or indirectly, against the Releasees or their
agents in connection with Claims described above and expressly waives the
provisions of Section 1542 of the California Civil Code which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR
and all similar provisions or rules of law. Buyer elects to and does assume all
risk for such Claims heretofore and hereafter arising, whether now known or
unknown by Buyer. The aforementioned release shall not include or be applicable
to any Claims arising out of the entry into or performance of this Agreement by
Seller nor any Claims directly resulting from or relating to a breach by Seller
of any of the representations made in Section 26 hereof so long as any such
Claim (in each instance) is made by Buyer within the six (6) month survival
period specified in Section 26 below. After the expiration of said six (6)
month period the aforementioned release will also include all Claims resulting
from or relating to any breach by Seller of the representations made in Section
26 of this Agreement. In this connection and to the greatest extent permitted
by law, Buyer hereby agrees, represents and warrants that Buyer realizes and
acknowledges that factual matters now unknown to it may have given or may
hereafter give rise to causes of action, claims, demands, debts, controversies,
damages, costs, losses and expenses which are presently unknown, unanticipated
and unsuspected, and Buyer further agrees, represents and warrants that the
waivers and releases herein have been negotiated and agreed upon in light of
that realization and that Buyer nevertheless hereby intends to release,
discharge and acquit Seller from any such unknown Claims, debts, and
controversies which might in any way be included as a material portion of the
consideration given to Seller by Buyer in exchange for Seller's performance
hereunder. Without limiting the foregoing, if Buyer has actual knowledge of (a)
a default in any of the covenants, agreements or obligations to be performed by
Seller under this Agreement and/or (b) any breach or inaccuracy in any
representation of Seller made in this Agreement, and Buyer nonetheless elects to
proceed to Closing, then, upon the consummation of the Closing, Buyer shall be
conclusively deemed to have waived any such default and/or breach or inaccuracy
and shall have no Claim against Seller or hereunder with respect thereto.
Notwithstanding anything to the contrary contained herein, if Buyer obtains
actual knowledge of any material default by Seller or any breach or inaccuracy
in any such representation of Seller which, in Buyer's reasonable judgment,
would have a material adverse effect on the Property or on Buyer's intended
development of the Property, Buyer may terminate this Agreement and receive a
return of the Deposits upon written notice to Seller within five (5) days after
Buyer learns of such default or breach if, within five (5) days after Buyer's
notice to Seller, Seller notifies Buyer in writing that Seller elects not to
cure or remedy any such default or breach. Failure by Seller to so notify Buyer
shall be deemed Seller's election not to cure or remedy any such default or
breach. Upon such termination, the parties shall have no further obligations
hereunder except for Buyer's Surviving Obligations. Notwithstanding anything to
the contrary herein, subject to Buyer's termination right, Seller shall not have
any liability whatsoever to Buyer with respect to any matter disclosed to or
discovered by Buyer or its agents or representatives prior to the Closing Date.
Seller has given Buyer material concessions regarding this transaction in
exchange for Buyer agreeing to the provisions of this Section 12. Seller and
Buyer have each initialed this Section 12 to further indicate their awareness
and acceptance of each and every provision hereof. The provisions of
17
this Section 12 shall survive the Closing and shall not be deemed merged into
any instrument or conveyance delivered at the Closing.
Seller's Initials: _______________ Buyer's Initials: ______________
13. AS-IS Condition of Property.
13.1 Buyer specifically acknowledges, represents and warrants that
prior to Closing, it and its agents and representatives will have thoroughly
inspected the Property and observed the physical characteristics and condition
of the Property. By Buyer purchasing the Property and upon the occurrence of the
Closing, Buyer waives any and all right or ability to make a claim of any kind
or nature against any of the Releasees for any and all deficiencies or defects
in the physical characteristics and condition of the Property which would be
disclosed by such inspection and expressly agrees to acquire the Property with
any and all of such deficiencies and defects and subject to all matters
disclosed by Seller herein or in any separate writing with respect to the
Property and/or disclosed in and set forth in the NHDS for the Property. Buyer
further acknowledges and agrees that except for any representations expressly
made by Seller in Section 26 of this Agreement neither Seller or any of Seller's
employees, agents or representatives have made any representations, warranties
or agreements by or on behalf of Seller of any kind whatsoever, whether oral or
written, express or implied, statutory or otherwise, as to any matters
concerning the Property, the condition of the Property, the size of the Real
Property, the size of the Improvements (including without limitation, any
discrepancies in the actual rentable square footage of any leased premises
within the Improvements), the present use of the Property or the suitability of
Buyer's intended use of the Property. Buyer hereby acknowledges, agrees and
represents that the Property is to be purchased, conveyed and accepted by Buyer
in its present condition, "AS IS", "WHERE IS" AND WITH ALL FAULTS, and that no
patent or latent defect or deficiency in the condition of the Property whether
or not known or discovered, shall affect the rights of either Seller or Buyer
hereunder nor shall the Purchase Price be reduced as a consequence thereof. Any
and all information and documents furnished to Buyer by or on behalf of Seller
relating to the Property shall be deemed furnished as a courtesy to Buyer but
without any warranty of any kind from or on behalf of Seller. Buyer hereby
represents and warrants to Seller that Buyer has performed an independent
inspection and investigation of the Property and has also investigated and has
knowledge of operative or proposed governmental laws and regulations including
without limitation, land use laws and regulations to which the Property may be
subject. Buyer further represents that, except for any representations expressly
made by Seller in Section 26 of this Agreement, it shall acquire the Property
solely upon the basis of its independent inspection and investigation of the
Property, including without limitation, (i) the quality, nature, habitability,
merchantability, use, operation, value, marketability, adequacy or physical
condition of the Property or any aspect or portion thereof, including, without
limitation, structural elements, foundation, roof, appurtenances, access,
landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage,
and utility systems, facilities and appliances, soils, geology and groundwater,
or whether the Real Property lies within a special flood hazard area, an area of
potential flooding, a very high fire hazard severity zone, a wildland fire area,
an earthquake fault zone or a seismic hazard zone, (ii) the dimensions or lot
size of the Real Property or the square footage of the Improvements thereon or
of any tenant space therein, (iii) the development or income potential, or
rights of or relating to, the Real Property or its use, habitability,
merchantability, or fitness, or the suitability, value or adequacy of such Real
Property for any particular purpose, (iv) the zoning or other legal status of
the Real Property or any other public or private restrictions on the use of the
Real Property, (v) the compliance of the Real Property or its operation with any
applicable codes, laws, regulations, statutes, ordinances, covenants, conditions
and restrictions of any governmental or regulatory agency or authority or of any
other person or entity (including, without limitation, the
18
American with Disabilities Act), (vi) the ability of Buyer to obtain any
necessary governmental approvals, licenses or permits for Buyer's intended use
or development of the Real Property, (vii) the presence or absence of Hazardous
Materials on, in, under, above or about the Real Property or any adjoining or
neighboring property, (viii) the quality of any labor and materials used in any
Improvements, (ix) the condition of title to the Real Property, (x) the Leases,
Contracts or any other agreements affecting the Real Property or the intentions
of any party with respect to the negotiation and/or execution of any lease or
contract with respect to the Property, (xi) Seller's ownership of the Property
or any portion thereof, or (xii) the economics of, or the income and expenses,
revenue or expense projections or other financial matters, relating to the
operation of the Property. Without limiting the generality of the foregoing,
Buyer expressly acknowledges and agrees that Buyer is not relying on any
representation or warranty of Seller, nor any member partner, officer, employee,
attorney, property manager, agent or broker of Seller, whether implied, presumed
or expressly provided at law or otherwise, arising by virtue of any statute,
common law or other legally binding right or remedy in favor of Buyer except as
expressly provided in Section 26 below. Buyer further acknowledges and agrees
that Seller is not under any duty to make any inquiry regarding any matter that
may or may not be known to the Seller or any member, partner, officer, employee,
attorney, property manager, agent or broker of Seller.
Seller's Initials: _____________ Buyer's Initials: _____________
13.2 Except as may otherwise be required to be performed by Seller
under the provisions of Section 9 hereof, any reports, repairs or work required
by Buyer are the sole responsibility of Buyer, and Buyer agrees that there is no
obligation on the part of Seller to make any changes, alterations or repairs to
the Property or to cure any violations of law or to comply with the requirements
of any insurer. Buyer is solely responsible for obtaining any certificate of
occupancy or any other approval or permit necessary for transfer or occupancy of
the Property and for any repairs or alterations necessary to obtain the same,
all at Buyer's sole cost and expense. The provisions of this Section 13 shall
survive the Closing and shall not be deemed merged into any instrument or
conveyance delivered at the Closing.
14. Prorations and Rent Arrearages.
14.1 At Closing, all rents actually paid and collected, and any other
charges owing and which have been collected by Seller for or in respect of the
month in which the Closing occurs shall be prorated as of and through the
Closing Date on the basis of a 365-day year, and the prorated amount
attributable to the period following the Closing shall either be paid to Buyer
at the Closing or credited against the Purchase Price, at Seller's option. Any
CAM and other charges and expenses payable by the tenants under the Leases
(collectively, the "Tenant Charges") on an estimated basis shall be reconciled
against actual charges and expenses as of and at the Closing, to the extent then
possible, and Seller shall provide a proposed reconciliation for Buyer's
approval. Seller shall have a period of ninety (90) days following the actual
Closing Date to provide Buyer with a final reconciliation of Tenant Charges.
Buyer shall have the right to review and give or withhold its approval, such
approval not to be unreasonably withheld, the final reconciliation within five
(5) business days after receipt from Seller. If the approved final
reconciliation shows that Seller owes Buyer additional sums, Seller shall
deliver such amount to Buyer together with the delivery of the final
reconciliation of the Tenant Charges. If the approved final reconciliation shows
that Buyer owes Seller additional sums, Buyer shall pay such amount to Seller
within ten (10) days after Buyer's receipt of the final reconciliation. Other
than as set forth above, there shall not be any further reconciliation of such
Tenant Charges after the approved final
19
reconciliation thereof, the proration of such Tenant Charges pursuant to the
approved final reconciliation being conclusively presumed to be accurate. After
the approved final reconciliation of the Tenant Charges is made by and between
the parties, Buyer shall be solely liable and responsible to the tenants for
such reconciliation of Tenant Charges under the Leases. The foregoing covenants
made by the parties with respect to the final reconciliation of the Tenant
Charges shall survive the Closing.
14.2 In addition, to the extent not paid directly by any tenants of the
Property, real property taxes and assessments, water, sewer and utility charges
and amounts payable under the Approved Contracts (calculated on the basis of the
period covered), and other expenses normal to the operation and maintenance of
the Property shall be prorated as of and through the Closing Date on the basis
of a 365-day year.
14.3 At the Closing Seller shall credit against the Purchase Price the
amount equal to the aggregate of all security deposits paid by the tenants under
the Leases and received by Seller in connection with the Leases, to the extent
Seller has not already returned or applied any of such security deposits in
accordance with the terms of the applicable Leases; provided, however, that
Seller shall use commercially reasonable efforts to compel any tenant who has
failed to restore its security deposit after any application thereof by Seller
to restore such amount prior to Closing. Buyer and Seller shall execute an
assignment in a form reasonably acceptable to Buyer and Seller for any and all
letters of credit posted by any of the tenants and Seller shall use all diligent
efforts to cause the issuers of such letters of credit to consent thereto;
provided, the receipt of such consents shall not be a condition precedent to
--------
Buyer's obligations under this Agreement. Notwithstanding the foregoing, if
Seller is unable to obtain the issuers' consents to said assignments prior to
the Closing Date, Seller shall use commercially reasonable efforts to cooperate
with Buyer and assist Buyer to obtain said consents after the Closing Date.
Buyer shall use commercially reasonable efforts after the Closing to attempt to
collect any delinquent or other rental and reimbursable Tenant Charges and other
expense arrearages attributable to the period prior to the Closing. After
deduction of Buyer's out-of-pocket costs to collect same, Buyer shall promptly
account to Seller and shall immediately reimburse Seller for all rents, expense
reimbursements, Tenant Charges and other charges received by Buyer after the
Closing which apply to any period prior to the Closing to the extent Seller has
not already been paid for or credited with such sums. With respect to any rent
or Tenant Charges arrears arising under any of the Leases, Seller shall have the
right to attempt to collect such pre-closing delinquent rental obligations
(including without limitation, all Tenant Charges) and Buyer will cooperate with
Seller in such regard, at no cost to Buyer, provided that Buyer shall not be
required to declare a default against such tenants under such Leases for such
pre-closing delinquent rental obligations (including without limitation, all
taxes and Tenant Charges). Notwithstanding the foregoing, after the Closing
Seller shall not bring an action against any tenant under any of the Leases
while such tenants are tenants of any portion of the Property which would seek
to terminate any such tenant's lease. The provisions of this Section 14 shall
survive the Closing.
15. Closing Costs.
Except as expressly set forth herein, all costs associated with the
transfer of title and the associated escrow shall be in accordance with the
customary practices in Santa ▇▇▇▇▇ County. Seller shall pay the documentary
county transfer taxes, the premium charged by the Title Company for the CLTA
Title Policy (excluding any endorsements thereto), and any escrow fees. At
Closing, Buyer shall obtain from the Title Company a CLTA Owner's Policy of
Title Insurance in the amount of the Purchase Price insuring fee simple title to
the Property in Buyer (the "CLTA Title Policy"). Buyer may elect to cause the
Title Company to issue an ALTA Owner's Policy of Title Insurance and if Buyer so
elects in writing, Buyer shall timely provide the Title Company with an
insurable ALTA Survey of
20
the Property (and as is reasonably acceptable to the Title Company), at Buyer's
sole cost and expense (the "ALTA Policy"). At Closing, Buyer shall pay any and
all costs and incremental premiums or other charges related to the ALTA Policy
(including all endorsements thereto) and the recording fees. Each party shall be
solely responsible for its own legal fees and costs.
16. Brokers.
16.1 Brokerage Commission. Seller and Buyer respectively represent
--------------------
that there are no brokers or other intermediaries entitled to receive brokerage
commissions or fees or other compensation out of or with respect to the sale of
the Property except for Colliers International (the "Broker"). Buyer is solely
responsible for payment of a brokerage commission to the Broker, the amount of
which shall be as specified in the separate agreement between Buyer and the
Broker. Seller and Buyer shall indemnify and save and hold each other harmless
from and against all claims, suits, damages and costs incurred or resulting from
the claim of any person, except the Broker (payment of the Broker being Buyer's
responsibility), that a commission, fee or remuneration is due in connection
with this transaction pursuant to a written agreement made with said claimant.
The provisions of this Section 16.1 shall survive the Closing or any termination
of this Agreement.
16.2 Separate Representation. Seller and Buyer hereby acknowledge
-----------------------
and agree that the Broker is the broker representing only the Buyer in
connection with this transaction.
17. Notices.
Any notice required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been given when delivered by U.S. mail,
registered or certified, return receipt requested, postage prepaid, or by
overnight delivery service showing receipt of delivery, or by personal delivery,
or by facsimile transmission. Such notices shall be sent to the parties at the
following addresses, or such other address as may otherwise be indicated by any
such party in writing.
If to Seller: c/o Legacy Partners Commercial, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone number: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇ (▇▇. ▇▇▇▇▇▇), ▇▇▇-▇▇▇-▇▇▇▇
(▇▇. ▇▇▇▇▇▇▇) and ▇▇▇-▇▇▇-▇▇▇▇ (▇▇. ▇▇▇▇▇▇)
with a copy to: c/o Goldman, ▇▇▇▇▇ & Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
21
and a copy to: c/o Goldman, ▇▇▇▇▇ & Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Phone number: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
and a copy to: Real Estate Law Group, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esquire
Phone number: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
If to Buyer: Mercury Interactive
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone number: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: General Counsel Associates LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Phone number: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile number: 650-428-3901
Notices as aforesaid shall be effective upon the earlier of actual receipt, or
twenty-four (24) hours after deposit with the messenger or delivery service, or
the next business day after delivery to an overnight delivery service, or within
three (3) days after the deposit in the U.S. mail, or upon confirmation of
transmission by facsimile, or when receipt is refused.
18. Entire Agreement.
This Agreement constitutes the entire understanding of the parties and all
prior agreements, representations, and understandings between the parties,
whether oral or written, are deemed null and void, all of the foregoing having
been merged into this Agreement. The parties acknowledge that each party and/or
its counsel have reviewed and revised this Agreement and that no rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall be employed in the interpretation or enforcement of this
Agreement or any amendments or exhibits to this Agreement or any document
executed and delivered by either party in connection with this Agreement.
19. Assignment.
Buyer may not assign its rights, obligations and interest in this Agreement
to any other person or entity, without first obtaining Seller's prior written
consent thereto, which consent shall not be unreasonably withheld or delayed,
except that Buyer, without the prior written consent of Seller, may assign its
interest in and to this Agreement and the Property so long as (i) the assignee
of Buyer is an
22
affiliated entity of Buyer (i.e., an entity that controls, is controlled by or
is under common control with Buyer), (ii) the assignee of Buyer assumes all of
Buyer's obligations under this Agreement and agrees to timely perform same
pursuant to an assignment agreement in form reasonably acceptable to Seller,
(iii) Buyer delivers to Seller at least ten (10) business days prior to the
Closing (a) written notice of said proposed assignment and (b) a copy of the
draft of the assignment agreement for Seller's reasonable approval, and (iv) the
assignee of Buyer unconditionally ratifies and remakes all covenants,
indemnities, representations and warranties of Buyer made in or in connection
with this Agreement, all of the foregoing for the express benefit and reliance
of Seller. No assignment shall relieve Buyer from any liability or its
obligations under or in connection with this Agreement. Any attempted assignment
not in compliance with the provisions of this Section 19 shall be null and void.
This Agreement shall inure to the benefit of and be binding upon the parties to
this Agreement and their respective successors and permitted assigns.
20. Severability.
If for any reason, any provision of this Agreement shall be held to be
unenforceable, it shall not affect the validity or enforceability of any other
provision of this Agreement and to the extent any provision of this Agreement is
not determined to be unenforceable, such provision, or portion thereof, shall
be, and remain, in full force and effect.
21. California Law.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of California.
22. Modifications/Survival.
Any and all exhibits attached hereto shall be deemed a part hereof. This
Agreement, including exhibits, if any, expresses the entire agreement of the
parties and supersedes any and all previous agreements between the parties with
regard to the Property, including without limitation, that certain letter of
intent, dated October 23, 2000. There are no other understandings, oral or
written, which in any way alter or enlarge its terms, and there are no
warranties or representations of any nature whatsoever, either expressed or
implied, except as may expressly be set forth herein. After the expiration of
the six (6) month survival period specified in Sections 26 and 27 hereof with
respect to Buyer's and Seller's representations made herein, all of Seller's
representations in Section 26 and Buyer's representations in Section 27 made
herein shall be deemed merged into the Grant Deed and shall be of no further
force or effect. Any and all future modifications of this Agreement will be
effective only if it is in writing and signed by the parties hereto. The terms
and conditions of such future modifications of this Agreement shall supersede
and replace any inconsistent provisions in this Agreement.
23. Confidentiality.
Buyer agrees that, (a) except as otherwise provided or required by valid
law, (b) except to the extent Buyer considers such documents or information
reasonably necessary to prosecute and/or defend any claim made with respect to
the Property or this Agreement, (c) except to the extent reasonably necessary to
deliver such documents or information to Buyer's employees, paralegals,
attorneys and/or consultants in connection with Buyer's evaluation of this
transaction, and (d) except to the extent necessary to contact any governmental
authority or regulatory agency regarding any Hazardous
23
Material on or environmental condition of the Property, including, without
limitation, in connection with Buyer's performance of a "Phase I" environmental
site assessment, (i) Buyer and Buyer's agents, consultants, representatives,
attorneys, employees, successors and assigns (collectively, the "Buyer's
Representatives"), shall use all diligent efforts to keep the contents of any
materials, reports, documents, data, test results, and other information related
to the transaction contemplated hereby, including without limitation, the Due
Diligence Materials and all information regarding Buyer's acquisition or
ownership of the Property strictly confidential, (ii) Buyer and Buyer's
Representatives shall keep and maintain the contents of this Agreement,
including without limitation, the amount of consideration being paid by Buyer
for the Property strictly confidential, and (iii) prior to the Closing Buyer and
Buyer's Representatives shall refrain from generating or participating in any
publicity or press release regarding this transaction without the prior written
consent of Seller. Buyer acknowledges that significant portions of the Due
Diligence Materials are proprietary in nature and that Seller would suffer
significant and irreparable harm in the event of the misuse or disclosure of the
Due Diligence Materials. Without affecting any other rights or remedies that
either party may have, Buyer acknowledges and agrees that Seller shall be
entitled to seek the remedies of injunction, specific performance and other
equitable relief for any breach, threatened breach or anticipatory breach of the
provisions of this Section 23 by Buyer or any of Buyer's Representatives. The
provisions of this Section 23 shall survive any termination of this Agreement
for a period of twelve (12) months but shall not survive the Closing except for
Buyer's covenants in clause (ii) hereof, which covenant shall survive the
Closing for a period of twelve (12)months. Upon execution of this Agreement by
Buyer and Seller the terms and conditions of that certain Confidentiality,
Access and Indemnity Agreement executed by Buyer and Seller as of November 14,
2000 shall be superceded by any inconsistent provisions of this Agreement.
24. Counterparts.
This Agreement may be executed in counterparts. All executed counterparts
shall constitute one agreement, and each counterpart shall be deemed an
original. Buyer and Seller agree that the delivery of an executed copy of this
Agreement by facsimile shall be legal and binding and shall have the same full
force and effect as if an original executed copy of this Agreement had been
delivered.
25. Dispute Costs.
In the event any dispute between the parties with respect to this Agreement
result in litigation or other proceeding, the prevailing party shall be
reimbursed by the party not prevailing in such proceeding for all reasonable
costs and expenses, including, without limitation, reasonable attorneys' and
experts' fees and costs incurred by the prevailing party in connection with such
litigation or other proceeding and any appeal thereof. Such costs, expenses and
fees shall be included in and made a part of the judgment recovered by the
prevailing party, if any. The provisions of this Section 25 shall survive any
termination of this Agreement or the Closing.
26. Seller's Representations.
Seller hereby represents to Buyer that the following matters are true and
correct as of the date of execution of this Agreement, are material and are
being relied upon by Buyer and shall, except as otherwise disclosed in writing
by Seller to Buyer, be true and correct as of the Closing:
26.1 Seller is a limited partnership, duly formed, validly existing
and in good standing under the laws of the State of Delaware.
24
26.2 This Agreement and all documents executed by Seller that are to
be delivered to Buyer at Closing (i) are, or at the time of Closing will be,
duly authorized, executed and delivered by Seller, (ii) do not, and at the time
of Closing will not, violate any provision of any judicial order to which Seller
is a party or to which Seller or the Property is subject and (iii) constitute
(or in the case of closing documents will constitute) a valid and legally
binding obligation of Seller. Seller has full and complete power and authority
to enter into this Agreement and, subject to obtaining any consents or waivers
required to be obtained prior to Closing, to perform its obligations hereunder.
26.3 Except as set forth in the materials delivered to Buyer or made
available to Buyer pursuant to Section 4 above, or as otherwise disclosed in
writing by Seller to Buyer prior to Closing, to Seller's actual knowledge, (i)
there are no pending or threatened legal proceedings, including, without
limitation, condemnation proceedings, or administrative actions of any kind or
character materially and adversely affecting the Property or Seller's interest
therein, and (ii) Seller has not received written notice of any special
assessment proceedings affecting the Property.
26.4 Except as set forth in the materials delivered to Buyer or made
available to Buyer pursuant to Section 4 above, or as otherwise disclosed in
writing by Seller to Buyer prior to Closing, Seller has received no written
notice from any city, county, state or other government authority of any
violation of any statute, ordinance, regulation, or administrative or judicial
order or holding, including, without limitation, any laws regarding
environmental matters, including, without limitation, laws with respect to a
release of Hazardous Materials on or under the Property, whether or not
appearing in public records, with respect to the Property, which violation has
not been corrected.
26.5 Except as set forth in the materials delivered to Buyer or made
available to Buyer pursuant to Section 4 above, or as otherwise disclosed in
writing by Seller to Buyer prior to Closing, Seller has received no written
notice from any city, county, state or other government authority (i) of any
order or directive requiring any work of repair, maintenance or improvement be
performed on the Property, or (ii) relating to defects in the Improvements or
relating to noncompliance with any applicable building code or restriction,
including, without limitation, the Americans with Disabilities Act of 1990
("ADA"), Title 24 of the California Administrative Code and other federal, state
and local laws (including laws or codes regulating fire, safety, handicapped
access or seismic design), that has not been corrected, or relating to any
threat of impending condemnation.
26.6 Except as set forth in the materials delivered to Buyer or made
available to Buyer pursuant to Section 4 above, or as set forth in the tenant
estoppel certificates delivered to Buyer pursuant to Section 4.2.1.1 above, or
as otherwise specifically disclosed in writing to Buyer prior to Closing, (i)
the Leases are in full force and effect and have not been modified in any
material manner, and (ii) to Seller's actual knowledge, there are no current
defaults in the performance of the obligations of any party under the Leases.
Additionally, (a) there are no outstanding assignments by Seller of Seller's
interest in the Leases, and (b) there are no other leases, service contracts,
maintenance agreements or other agreements with respect to the Property other
than those delivered to or made available to Buyer pursuant to the provisions
hereof.
26.7 The materials delivered to Buyer or made available to Buyer
pursuant to Section 4 above contain true, correct and complete copies of all
Leases, all material Contracts and all material environmental and structural
reports to the extent in the actual possession of Seller and, to Seller's actual
knowledge, said materials delivered to or otherwise made available to Buyer
under this Agreement by Seller contain complete copies of the documents in
Seller's possession. Notwithstanding
25
anything contained herein to the contrary, Seller is only delivering and making
available said materials to the extent currently in Seller's possession and
Seller shall not be required to prepare or obtain any information, document,
report or survey. Seller is not making any express or implied representation as
to the accuracy or thoroughness of the contents of any of said materials or of
the ability of Buyer to rely on any of said materials. This representation shall
not be deemed breached by virtue of any new leases or new agreements entered
into after the Agreement Date in accordance with the provisions of Section 7
hereof.
26.8 Foreign Person. Seller is not a "foreign person" within the
--------------
meaning of Section 1445(f)(3) of the Internal Revenue Code, as amended.
26.9 No Bankruptcy. Seller has not (i) made a general assignment for
the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition by Seller's creditors, (iii)
suffered the appointment of a receiver to take possession of all, or
substantially all, of Seller's assets, (iv) suffered the attachment or other
judicial seizure of all, or substantially all, of Seller's assets, (v) admitted
in writing its inability to pay its debts as they come due, or (vi) make an
offer of settlement, extension or composition to its creditors generally.
Buyer and Seller each specifically acknowledge and agree that all
references in this Agreement, in any of the exhibits attached hereto and in any
document, certificate or statement to be delivered by Seller to Buyer hereunder
to the phrases "to Seller's actual knowledge," or "known to Seller" (whether
used in the phrase "to the actual knowledge of Seller," "actually known to
Seller," "Seller's knowledge," or in similar or other contexts) (1) shall mean
the actual (not constructive or imputed) personal knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ (collectively, the "Seller's Personnel"); (2)
shall in no case mean or refer to the actual or constructive knowledge of any
other employee, partner, member, officer, director, agent, trustee or member,
partner, representative or employee of a partner, member, officer, director,
agent or other representative of Seller or any investment advisor, attorney,
management company, contractor or representative of Seller (together with
Seller's Personnel, the "Seller Representatives"); and (3) shall in no event or
circumstance impose upon Seller or any of the Seller Representatives any duty or
obligation to verify, inquire or make any independent inquiry or investigation
of any such representation, warranty or statement, or to otherwise investigate
the facts or circumstances relating or otherwise pertinent thereto. Buyer
further acknowledges and agrees that none of the Seller Representatives shall be
personally liable, or otherwise have any personal liability, under or in
connection with this Agreement, including without limitation, in connection with
any of the representations, warranties or statements made in connection with, or
pursuant to, this Agreement. The foregoing representations of Seller made
hereinabove shall survive the Closing for a period of six (6) months after the
Closing Date; provided, however, that any claim, action, suit or proceeding with
respect to the truth, accuracy or completeness of any representations made by
Seller herein shall be commenced, if at all, on or before the date which is six
(6) months after the Closing Date and, if not so commenced on or before such
date, thereafter Buyer shall be forever barred from making or bringing any such
claim, action, suit or proceeding as though said representations are then void
and of no further force or effect. Notwithstanding any provision contained
herein to the contrary, Buyer shall have no right to rely on, and Seller shall
have no liability with respect to, any representation or warranty (including any
future certification or statement, actually or deemed made, as to
representations or warranties) which Buyer actually knows to be inaccurate or
untrue at the time such representation or warranty is given.
26
27. Buyer's Representations.
Buyer hereby represents and warrants to Seller that the following matters
are true and correct as of the date of execution of this Agreement, are material
and are being relied upon by Seller, and shall, except as otherwise disclosed in
writing by Buyer to Seller, be true and correct as of the Closing: (i) Buyer is
a corporation, duly formed, validly existing and in good standing under the laws
of the State of Delaware; (ii) this Agreement and all documents executed by
Buyer that are to be delivered to Seller at Closing (a) are, or at the time of
Closing will be, duly authorized, executed and delivered by Buyer, (b) do not,
and at the time of Closing will not, violate any provision of any judicial order
to which Buyer is a party or to which Buyer is subject and (c) constitute (or in
the case of closing documents will constitute) a valid and legally binding
obligation of Buyer; (iii)Buyer has full and complete power and authority to
enter into this Agreement and, subject to obtaining any consents or waivers
required to be obtained prior to Closing, to perform its obligations hereunder;
and (iv) (a) Buyer is not presently the subject of a bankruptcy, insolvency or
probate proceedings and Buyer does not anticipate nor intend to file or cause to
be filed any bankruptcy or insolvency proceeding involving Buyer or Buyer's
assets during the pendency of this Agreement, (b) Buyer has such knowledge and
experience in financial and business matters that Buyer is capable of evaluating
the merits and risks of an investment in the Property, (c) Buyer is represented
by competent counsel, (d) Buyer shall furnish all of the funds for the purchase
of the Property (other than funds supplied by institutional lenders which will
hold valid mortgage liens against the Property) and such funds will not be from
sources of funds or properties derived from any unlawful activity, (e) prior to
Closing, Buyer and its agents will have thoroughly inspected the Property, fully
observed the physical characteristics and condition of the Property, and
performed a thorough investigation of the suitability of Buyer's intended use of
the Property, including without limitation, the suitability of the topography;
the availability of water rights or utilities; any natural hazard of any kind or
nature, including without limitation, flood hazard, earthquake fault or seismic
hazard, or forest fire risk or hazard; the present and future zoning,
subdivision and any and all other land use matters; the condition of the soil,
subsoil or groundwater of the Property and any and all other environmental
matters; the purpose(s) to which the Property is suited; drainage; flooding;
access to public roads; and proposed routes or roads or extensions relative to
the Property, (f) Buyer acknowledges and confirms that, as of the date of
Buyer's receipt of the NHDS, Buyer has received, read and understood the NHDS
for the Property and agrees to accept the Property with all matters reflected,
disclosed and set forth in the NHDS for the Property, and (g) Buyer understands
it will have no recourse whatsoever against Seller or any of the other Releasees
except as otherwise expressly set forth in this Agreement.
Seller acknowledges and agrees that no employee, partner, member, officer,
director, agent, trustee or member, partner, representative or employee of a
partner, member, officer, director, agent or other representative of Buyer or
any investment advisor, attorney, management company, contractor or
representative of Buyer ("Buyer's Representatives"), shall be personally liable,
or otherwise have any personal liability, under or in connection with this
Agreement, including, without limitation, in connection with any of the
representations, warranties or statements made in connection with, or pursuant
to, this Agreement. The foregoing representations of Buyer made hereinabove
shall survive the Closing for a period of six (6) months after the Closing Date;
provided, however, that any claim, action, suit or proceeding with respect to
the truth, accuracy or completeness of any representations made by Buyer herein
shall be commenced, if at all, on or before the date which is six (6) months
after the Closing Date and, if not so commenced on or before such date,
thereafter Seller shall be forever barred from making or bringing any such
claim, action, suit or proceeding as though said representations are then void
and of no further force or effect. Notwithstanding any provision contained
herein to the contrary, Seller shall have no right to rely on, and Buyer shall
have no liability
27
with respect to, any representation or warranty (including any future
certification or statement, actually or deemed made, as to representations or
warranties) which Seller actually knows to be inaccurate or untrue at the time
such representation or warranty is given.
28. Time of the Essence; and Business Days.
Time is of the essence in the performance of each of the parties'
respective obligations contained herein. Unless the context otherwise requires,
all periods terminating on a given day, period of days, or date shall terminate
at 5:00 p.m. (Pacific Time) on such date or dates and references to "days" shall
refer to calendar days except if such references are to "business days" which
shall refer to days which are not a Saturday, Sunday or legal holiday.
Notwithstanding the foregoing, if any period terminates on a Saturday, Sunday or
legal holiday, under the laws of the State of California, the termination of
such period shall be on the next succeeding business day. The time in which any
act provided under this Agreement is to be done, shall be computed by excluding
the first day and including the last day, unless the last day is a Saturday,
Sunday or legal holiday under the laws of the State of California, and then it
is also so excluded.
29. Agreement Date.
The parties hereby covenant and agree that the "Agreement Date" shall be
the date on which the Escrow Holder confirms in writing to both Seller and Buyer
that the Escrow Holder has actually received from both parties two (2) signed
and initialed original counterparts of this Agreement and the Escrow Holder is
in a position to release to each of the parties a fully executed original of
this Agreement signed and initialed in counterparts. The Escrow Holder shall
insert such date in each original counterpart of this Agreement on Page 1
hereof. If either party fails to submit two (2) signed and initialed original
counterparts of this Agreement to Escrow Holder within five (5) business days
after the delivery to Escrow Holder by the other party of two (2) signed and
initialed original counterparts of this Agreement, then the party which
delivered to Escrow Holder said signed and initialed counterparts of this
Agreement may, at its option, withdraw such signed and initialed counterparts
therefrom without any obligation to resubmit same to Escrow Holder thereafter.
30. No Third Party Beneficiaries.
Except as otherwise expressly set forth herein, Seller and Buyer do not
intend, and this Agreement shall not be construed, to create a third-party
beneficiary status or interest in, nor give any third-party beneficiary rights
or remedies to, any other person or entity not a party to this Agreement.
31. Discharge of Seller's Bonds - Intentionally Omitted.
32. Drafts not an Offer to Enter into a Legally Binding Contract
The parties hereto agree that the submission of a draft of this Agreement
by one party to another is not intended by either party to be an offer to enter
into a legally binding contract with respect to the purchase and sale of the
Property. The parties shall be legally bound with respect to the purchase and
sale of the Property pursuant to the terms of this Agreement only if and when
the parties have been able to negotiate all of the terms and provisions of this
Agreement in a manner acceptable to each of the parties in their respective sole
discretion, including without limitation, all of the exhibits hereto, and each
of Seller and Buyer have fully executed and delivered (or caused the delivery)
to each other a counterpart of this Agreement, including without limitation, all
exhibits hereto.
28
33. Disclosure Items.
In addition to the provisions of Sections 4, 11, 12 and 13 hereof, Buyer
acknowledges that prior to the date hereof all of the following information and
matters have been disclosed to Buyer by virtue of either the delivery to Buyer
of a copy of reports with respect to said matters or a brief summary of Seller's
understanding and knowledge of the matters set forth in Exhibit J attached
---------
hereto and made a part hereof. Prior to the date hereof, Seller has delivered
to Buyer a copy of the reports listed in Exhibit K attached hereto
---------
(collectively, the "Reports"). Buyer hereby expressly acknowledges and
unequivocally agrees that if it elects to proceed with the Closing (or is deemed
to have approved its contingencies), then it is acquiring the Property subject
to any and all deficiencies, defects and other matters referred to or otherwise
set forth in the Reports and the Due Diligence Materials delivered to Buyer or
otherwise made available to Buyer pursuant to Section 4 hereof. Notwithstanding
anything to the contrary contained herein, Seller makes no representations or
warranties with respect to (i) the adequacy or accuracy of any report, study or
other information prepared by a third party for or on behalf of Seller and
included as part of the Due Diligence Materials, including without limitation,
the Reports, or (ii) the matters set forth in Exhibit J attached hereto and made
---------
a part hereof (collectively, the "Disclosure Items"). Except for any breach of
the representations made by Seller herein as specified in Section 26 above,
Seller shall have no liability with respect to any matters disclosed or
contained in the Due Diligence Materials or the Disclosure.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed as
of the day and year first above written.
BUYER:
Mercury Interactive Corporation,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Chief Financial Officer
-------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: Vice President & General Counsel
-------------------------------------
29
////signatures continued on next page////
30
////signatures continued from prior page////
SELLER:
WHSUM Real Estate Limited Partnership,
a Delaware limited partnership
By: WHSUM Gen-Par, Inc.,
a Delaware corporation
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ____________________________________
Title: V.P.
------------------------------------
31
EXHIBIT A TO PURCHASE AND SALE AGREEMENT
----------------------------------------
LEGAL DESCRIPTION OF THE REAL PROPERTY
All that certain real property situated in the City of Sunnyvale, County of
Santa ▇▇▇▇▇, State of California, described as follows:
Parcel A, as shown on that certain map entitled, "Parcel Map lying within the
City of Sunnyvale, being a resubdivision of Parcel 5 as shown upon that certain
Parcel Map recorded in Book 383 of Maps at Page 19, Santa ▇▇▇▇▇ County Records",
which map was filed in the office of the Recorder of the County of Santa ▇▇▇▇▇,
State of California on February 13, 1979, in Book 435 of Maps at page 28.
A-1
EXHIBIT B TO PURCHASE AND SALE AGREEMENT
----------------------------------------
ASSIGNMENT AND ASSUMPTION OF LEASES
This Assignment and Assumption of Leases (the "Assignment") is made and
entered into as of this ____ day of ________, 2000 ("Assignment Date"), by and
between WHSUM Real Estate Limited Partnership, a Delaware limited partnership
("Assignor"), and Mercury Interactive Corporation, a Delaware corporation
("Assignee"), with reference to the following facts.
RECITALS
--------
A. Assignor and Assignee are parties to that certain Purchase and Sale
Agreement, made and entered into as of December __, 2000 (the "Purchase
Agreement"), pursuant to which Assignor agreed to sell to Assignee, and Assignee
agreed to purchase from Assignor that certain improved real property located at
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, as legally described in Exhibit A
---------
attached hereto and made a part hereof (the "Real Property") together with all
(i) improvements, structures and fixtures (other than trade fixtures)
(collectively, the "Improvements") and personal property (the "Personal
Property") actually owned by Assignor (if any) located in, on or about the Real
Property or the Improvements and actually used in the operation of the
Improvements, and (ii) easements, appurtenances, rights and privileges actually
belonging thereto (collectively, the "Appurtenances"). The Real Property, the
Improvements, the Personal Property and the Appurtenances are collectively
referred to herein as the "Property."
B. Assignor has previously entered into certain leases of the Property,
as more particularly described in Schedule 1 attached hereto and made a part
----------
hereof (collectively, the "Leases").
C. Assignor presently has security deposits from the tenants under the
Leases in the amounts set forth in Schedule 2 attached hereto and made a part
----------
hereof (collectively, the "Security Deposits").
D. Assignee has acquired fee title to the Property from Assignor on the
Assignment Date. Assignor now desires to assign and transfer to Assignee all of
Assignor's rights and interests in and to, and obligations under, the Leases and
the Security Deposits, and Assignee desires to assume all of Assignor's rights,
title, interests and obligations in, to and under the Leases and the Security
Deposits, as set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. Assignment and Assumption. Effective as of the Assignment Date,
-------------------------
Assignor hereby grants, transfers, conveys, assigns and delegates to Assignee
all of the rights, interests and obligations of Assignor in, to and under the
Leases and the Security Deposits. Assignee hereby accepts such assignment and
delegation by Assignor and expressly and unconditionally assumes and covenants
to keep, perform, fulfill and discharge (i) all of the terms, covenants,
conditions and obligations required to be kept, performed, fulfilled and
discharged by Assignor as landlord in and under the Leases and with respect to
the Security Deposits, and (ii) all of the covenants, terms and obligations
required to be
B-1
kept, performed, fulfilled and discharged by Assignor with respect to the
payment and/or provision of those certain tenant improvement costs, tenant
improvement allowances and leasing commissions in the amounts and as more
particularly set forth in Schedule 3 attached hereto (collectively, the "Leasing
----------
Costs"). Notwithstanding the foregoing or anything to the contrary contained
herein, Assignor shall retain all rights, title and interest in and to all
rentals and other amounts payable by the tenants under the Leases for the period
of time prior to the Assignment Date.
2. Intentionally Omitted.
3. Dispute Costs. In the event of any dispute between Assignor and
-------------
Assignee arising out of the obligations of the parties under this Assignment or
concerning the meaning or interpretation of any provision contained herein, the
losing party shall pay the prevailing party's costs and expenses of such
dispute, including without limitation, reasonably attorneys' fees and costs.
Any such attorneys' fees and other expenses incurred by either party in
enforcing a judgment in its favor under this Assignment shall be recoverable
separately from and in addition to any other amount included in such judgment,
and such attorneys' fees obligation is intended to be severable from the other
provisions of this Assignment and to survive and not be merged into any such
judgment.
4. Counterparts. This Assignment may be executed in counterparts, each
------------
of which shall be deemed an original, and all of which shall taken together be
deemed one document. Assignor and Assignee agree that the delivery of an
executed copy of this Assignment by facsimile shall be legal and binding and
shall have the same full force and effect as if an original executed copy of
this Assignment had been delivered.
5. Survival. This Assignment and the provisions hereof shall inure to
--------
the benefit of and be binding upon the parties to this Assignment and their
respective successors, heirs and permitted assigns.
6. Limited Liability. This Assignment is made without recourse and
-----------------
without any express or implied representation or warranty of any kind or nature,
except as expressly set forth in the Purchase Agreement. Assignee and Assignor,
on its own behalf and on behalf of its agents, members, partners, employees,
representatives, successors and assigns each hereby agrees that in no event or
circumstance shall any of the members, partners, employees, representatives,
officers, directors, agents, property management company, affiliated or related
entities of (i) Assignor or Assignor's property management company, namely
Legacy Partners Commercial, Inc. (formerly known as Lincoln Property Company
Management Services, Inc. and LPC MS, Inc.), or of (ii) Assignee have any
personal liability under this Assignment, or to any of the other's creditors, or
to any other party in connection with the Property.
7. No Third Party Beneficiaries. Except as otherwise expressly set forth
----------------------------
herein, Assignor and Assignee do not intend, and this Assignment shall not be
construed, to create a third-party beneficiary status or interest in, nor give
any third-party beneficiary rights or remedies to, any other person or entity
not a party to this Assignment.
\\\\\ continued on next page
B-2
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of
the Assignment Date.
ASSIGNOR:
WHSUM Real Estate Limited Partnership,
a Delaware limited partnership
By: WHSUM Gen-Par, Inc.,
a Delaware corporation
General Partner
By: _________________________
Name: ______________________
Title: _____________________
ASSIGNEE:
Mercury Interactive Corporation,
a Delaware corporation
By: __________________________
Name: __________________________
Title: __________________________
By: __________________________
Name: __________________________
Title: __________________________
B-3
EXHIBIT C TO PURCHASE AND SALE AGREEMENT
----------------------------------------
ASSIGNMENT AND ASSUMPTION OF CONTRACTS, WARRANTIES AND PERMITS
This Assignment and Assumption of Contracts, Warranties and Permits (the
"Assignment") is made and entered into as of this ____ day of ________, 2000
("Assignment Date"), by and between WHSUM Real Estate Limited Partnership, a
Delaware limited partnership ("Assignor"), and Mercury Interactive Corporation,
a Delaware corporation ("Assignee"), with reference to the following facts.
RECITALS
--------
A. Assignor and Assignee are parties to that certain Purchase and Sale
Agreement, made and entered into as of December __, 2000 (the "Purchase
Agreement"), pursuant to which Assignor agreed to sell to Assignee, and Assignee
agreed to purchase from Assignor that certain improved real property located at
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, as legally described in Exhibit A
---------
attached hereto and made a part hereof (the "Real Property") together with all
(i) improvements, structures and fixtures (other than trade fixtures)
(collectively, the "Improvements") and personal property (the "Personal
Property") actually owned by Assignor (if any) located in, on or about the Real
Property or the Improvements and actually used in the operation of the
Improvements, and (ii) easements, appurtenances, rights and privileges actually
belonging thereto (collectively, the "Appurtenances"). The Real Property, the
Improvements, the Personal Property and the Appurtenances are collectively
referred to herein as the "Property."
B. Assignee has acquired fee title to the Property from Assignor on the
Assignment Date. Assignor now desires to assign and transfer to Assignee all of
Assignor's rights and interests in, to and under the Contracts, Warranties and
Permits, as hereinafter defined.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. Assignment and Assumption. Effective as of the Assignment Date,
-------------------------
Assignor hereby grants, transfers, conveys, assigns and delegates to Assignee
all of its rights and interests of Assignor in, to and under (i) those
warranties and guaranties that are set forth in Schedule 1 attached hereto and
----------
made a part hereof (collectively, the "Warranties"); (ii) all intangible
property (other than any tradenames of Seller or any affiliated or related
entities of Seller) now owned by Assignor in connection with any portion of the
Property, including without limitation, all governmental permits, approvals and
licenses (to the extent assignable) (collectively, the "Permits"); and (iii)
those agreements, utility contracts, service contracts, maintenance contracts,
operating contracts and other rights relating to the ownership, use or operation
of the Property that are set forth in Schedule 2 attached hereto and made a part
----------
hereof (collectively, the "Contracts"). Effective as of the Assignment Date,
Assignee hereby accepts such assignment and delegation by Assignor and agrees to
fully perform and assume all the obligations of Assignor under the Warranties,
Permits and Contracts.
2. No Warranties. Assignee does hereby covenant with Assignor, and
-------------
represents and warrants to Assignor, that Assignor is transferring each of the
Warranties, Permits and Contracts to Assignee (to the extent the terms of any of
the Contracts do not limit or restrict such right) without any
C-1
warranty of any kind or nature. This Assignment shall not be construed as a
representation or warranty by Assignor as to the transferability or
enforceability of the Warranties, the Contracts, the Permits or the intangible
property (collectively, the "Interests"), and Assignor shall have no liability
to Assignee in the event that any or all of the Interests (a) are not
transferable to Assignee or (b) are cancelled or terminated by reason of this
Assignment or any acts of Assignee.
3. Dispute Costs. In the event of any dispute between Assignor and
-------------
Assignee arising out of the obligations of the parties under this Assignment or
concerning the meaning or interpretation of any provision contained herein, the
losing party shall pay the prevailing party's costs and expenses of such
dispute, including without limitation, reasonably attorneys' fees and costs.
Any such attorneys' fees and other expenses incurred by either party in
enforcing a judgment in its favor under this Assignment shall be recoverable
separately from and in addition to any other amount included in such judgment,
and such attorneys' fees obligation is intended to be severable from the other
provisions of this Assignment and to survive and not be merged into any such
judgment.
4. Counterparts. This Assignment may be executed in counterparts, each
------------
of which shall be deemed an original, and all of which shall taken together be
deemed one document. Assignor and Assignee agree that the delivery of an
executed copy of this Assignment by facsimile shall be legal and binding and
shall have the same full force and effect as if an original executed copy of
this Assignment had been delivered.
5. Survival. This Assignment and the provisions hereof shall inure to
--------
the benefit of and be binding upon the parties to this Assignment and their
respective successors, heirs and permitted assigns.
6. Limited Liability. This Assignment is made without recourse and
-----------------
without any express or implied representation or warranty of any kind or nature,
except as expressly set forth in the Purchase Agreement. Assignee and Assignor
on its own behalf and on behalf of its agents, members, partners, employees,
representatives, successors and assigns each hereby agrees that in no event or
circumstance shall any of the members, partners, employees, representatives,
officers, directors, agents, property management company, affiliated or related
entities of (i) Assignor or Assignor's property management company, namely
Legacy Partners Commercial, Inc. (formerly known as Lincoln Property Company
Management Services, Inc. and LPC MS, Inc.) or (ii) of Assignee, have any
personal liability under this Assignment, or to any of the other's creditors, or
to any other party in connection with the Property.
7. No Third Party Beneficiaries. Except as otherwise expressly set forth
----------------------------
herein, Assignor and Assignee do not intend, and this Assignment shall not be
construed, to create a third-party beneficiary status or interest in, nor give
any third-party beneficiary rights or remedies to, any other person or entity
not a party to this Assignment.
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C-2
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of
the Assignment Date.
ASSIGNOR:
WHSUM Real Estate Limited Partnership,
a Delaware limited partnership
By: WHSUM Gen-Par, Inc.,
a Delaware corporation
General Partner
By: _________________________
Name: ______________________
Title: _____________________
ASSIGNEE:
Mercury Interactive Corporation,
a Delaware corporation
By: __________________________
Name: __________________________
Title: __________________________
By: __________________________
Name: __________________________
Title: __________________________
C-3
EXHIBIT D TO PURCHASE AND SALE AGREEMENT
----------------------------------------
GRANT DEED
Recording Requested by and
When Recorded Mail to,
and Mail Tax Statements to:
___________________________________
___________________________________
___________________________________
___________________________________
Attention: _______________________
________________________________________________________________________________
Space Above This Line for Recorder's Use
GRANT DEED
----------
The undersigned Grantor declares that Documentary Transfer Tax is not part
of the public records.
For valuable consideration, receipt of which is acknowledged, WHSUM Real
Estate Limited Partnership, a Delaware limited partnership ("Grantor"), hereby
grants to Mercury Interactive Corporation, a Delaware corporation ("Grantee"),
that certain real property located in the City of Sunnyvale, County of Santa
▇▇▇▇▇, State of California, as legally described in Exhibit A attached hereto
---------
and made a part hereof (the "Property") together with all of Grantor's right,
title and interest in and to all improvements and structures located thereon and
all easements, appurtenances, rights and privileges of Grantor appertaining to
the Property.
The Property is conveyed subject to:
(a) The lien of supplemental taxes, if any, assessed pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) of the Revenue and
Taxation Code of the State of California;
(b) The liens for real property taxes for the fiscal year 2000-2001 not
yet due and payable;
(c) All liens, encumbrances, easements, leases, covenants, conditions and
restrictions of record;
(d) All matters which would be disclosed by an inspection of the Property;
and
D-1
(e) Zoning ordinances and regulations and any other laws, ordinances,
regulations or orders of any governmental agency having or claiming jurisdiction
over the use, occupancy or enjoyment of the Property.
IN WITNESS WHEREOF, Grantor has caused its duly authorized representative
to execute this instrument as of the date hereinafter written.
DATED: ______________, 2000
GRANTOR:
WHSUM Real Estate Limited Partnership,
a Delaware limited partnership
By: WHSUM Gen-Par, Inc.,
a Delaware corporation
General Partner
By: _________________________
Name: ______________________
Title: _____________________
D-2
EXHIBIT E TO PURCHASE AND SALE AGREEMENT
----------------------------------------
▇▇▇▇ OF SALE
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, WHSUM Real Estate Limited Partnership, a Delaware limited
partnership ("Seller"), does hereby GRANT, SELL, CONVEY, TRANSFER AND DELIVER to
Mercury Interactive Corporation, a Delaware corporation ("Buyer"), without any
warranty of any kind, any and all of Seller's rights, title and interests in and
to the personal property (the "Personal Property") owned by Seller and utilized
by Seller in connection with the operation and management of the realty
described in Exhibit A attached hereto and made a part hereof (the "Property").
---------
Notwithstanding anything to the contrary contained herein, Seller represents and
warrants for the benefit of Buyer that Seller is conveying title to the Personal
Property free and clear of all liens and encumbrances, except as may have been
previously disclosed to Buyer in writing.
From and after the date of this ▇▇▇▇ of Sale, it is intended by the parties that
Buyer and its successors and assigns shall have the right to use, have, hold and
own the Personal Property forever. This ▇▇▇▇ of Sale may be executed in
counterparts, each of which shall be deemed an original, and all of which shall
taken together be deemed one document. Seller and Buyer agree that the delivery
of an executed copy of this ▇▇▇▇ of Sale by facsimile shall be legal and binding
and shall have the same full force and effect as if an original executed copy of
this ▇▇▇▇ of Sale had been delivered.
Buyer hereby acknowledges, covenants, represents and warrants that Seller has
made absolutely no warranties or representations of any kind or nature regarding
title to the Personal Property, except as expressly set forth herein, or the
condition of the Personal Property.
Buyer on behalf of itself and its officers, directors, employees, partners,
agents, representatives, successors and assigns hereby agrees that in no event
or circumstance shall Seller or its partners, members, trustees, employees,
representatives, officers, related or affiliated entities, successors or assigns
have any personal liability under this ▇▇▇▇ of Sale, or to any of Buyer's
creditors, or to any other party in connection with the Personal Property or the
Property.
In the event of any dispute between Seller and Buyer arising out of the
obligations of the parties under this ▇▇▇▇ of Sale or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay the
prevailing party's costs and expenses of such dispute, including without
limitation, reasonably attorneys' fees and costs. Any such attorneys' fees and
other expenses incurred by either party in enforcing a judgment in its favor
under this ▇▇▇▇ of Sale shall be recoverable separately from and in addition to
any other amount included in such judgment, and such attorneys' fees obligation
is intended to be severable from the other provisions of this ▇▇▇▇ of Sale and
to survive and not be merged into any such judgment.
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E-1
IN WITNESS WHEREOF, the parties have executed this ▇▇▇▇ of Sale as of this
___ day of __________, 2000.
SELLER:
WHSUM Real Estate Limited Partnership,
a Delaware limited partnership
By: WHSUM Gen-Par, Inc.,
a Delaware corporation
General Partner
By: _________________________
Name: ______________________
Title: _____________________
BUYER:
Mercury Interactive Corporation,
a Delaware corporation
By: __________________________
Name: __________________________
Title: __________________________
E-2
EXHIBIT F TO PURCHASE AND SALE AGREEMENT
----------------------------------------
TENANT'S ESTOPPEL CERTIFICATE
TO: _____________________________
_____________________________
_____________________________
RE: ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Premises")
The undersigned (the "Tenant") hereby certifies to WHSUM Real Estate
Limited Partnership, a Delaware limited partnership (the "Buyer"), the Buyer's
lender, and to _____________________, a ______________________ (the "Landlord"),
the following information with respect to that certain lease agreement, dated
_______________, ____ (the "Lease," including any amendments to or modifications
of the same) under which the Tenant is a tenant, and Tenant agrees that the
Landlord, Buyer and Buyer's lender, successors and assigns may rely upon the
same:
1. The Lease is in full force and effect and has not been modified or
amended except as follows: ________________________. The Term of the Lease
commenced on __________ and will expire on _______, including any presently
exercised option or renewal term. Attached hereto as Exhibit A is a true and
complete copy of the Lease and all amendments thereto, and the Lease sets forth
the entire agreement of the parties.
2. The Tenant has unconditionally accepted the Premises and asserts no
claim of default or offset or defense against the payment of rent or other
charges payable by the Tenant and asserts no claim against the Landlord under
the Lease in regard to the premises occupied by Tenant. To the best of Tenant's
knowledge and belief, there is no default by Landlord under the Lease and no
event has occurred that, with the passage of time or the giving of notice, or
both, would constitute a default by Landlord under the Lease.
3. All fixed base rental has been paid to the end of the current calendar
month, which is _____________, and no rent under the Lease had been paid more
than one month in advance of its due date except for any security deposit
referenced herein. Current monthly fixed base rental for the Premises is
$_________________.
4. The Lease provides for an option to renew the Lease term as follows:
____________________. The Lease contains no first right of refusal to lease or
purchase, option to expand, option to terminate, or option to purchase except as
follows: _____________________________________________________________.
5. Landlord currently holds a security deposit in the amount of $_______,
which is to be applied by Landlord or returned to Tenant in accordance with
Paragraph __ of the Lease. Tenant acknowledges and agrees that any successor in
interest to Landlord shall have no responsibility or liability for any security
deposit except to the extent actually received by such successor.
F-1
6. To the best of the Tenant's knowledge, neither Landlord nor Tenant is
in default under the Lease nor has any event occurred which, with the passage of
time or the giving of notice, or both, would constitute a default or breach by
the Tenant. The Tenant is current in the payment of any taxes, utilities, common
area maintenance payments, or other charges required to be paid by the
undersigned.
7. The Tenant certifies that it is required to pay a pro rata share of
real property taxes, common area expenses and operating expenses. The Tenant
presently pays to Landlord $__________ per month for its pro rata share of real
property taxes, common area expenses and operating expenses. All such expenses
have been paid by the Tenant to the end of the current calendar month. All
insurance required to be carried by Tenant under the Lease has been provided by
Tenant, and all premiums have been paid.
8. The Tenant has not entered into any sublease, assignment or any other
agreement transferring any of its interest in the Lease or the Premises leased
by the Tenant under the Lease.
9. The Tenant recognizes and acknowledges it is making these
representations to you with the intent that the Landlord, the Buyer and Buyer's
lenders, successors and assigns may rely hereon and as a material inducement to
the Buyer's transaction with the Landlord, as the seller, and that each of the
representations contained herein is true, correct and complete as of the date
hereof.
10. All contributions required to be paid by Landlord to date for
improvements in the Premises have been paid in full, and all of Landlord's
obligations with respect to tenant improvements have been fully performed.
Tenant has accepted the Premises, subject to no conditions other than those set
forth in the Lease.
11. Tenant is not the subject of any bankruptcy or other voluntary or
involuntary proceeding, in or out of court, for the adjustment of debtor-
creditor relationships.
12. Tenant represents and warrants that it has not used, generated,
released, discharged, stored or disposed of any Hazardous Materials (as defined
in the Lease) on, under, in or about the Premises, the Building or the real
property on which the Premises is constructed, other than
_____________________________, which have been used in compliance with all
applicable law. Except for its use of the foregoing materials, Tenant has no
actual knowledge that any Hazardous Material is present, or has been used,
generated, released, discharged, stored or disposed of by any party on, under,
in or about the Premises, the Building or the real property.
13. The undersigned signatory hereto hereby warrants that he/she has full
and valid legal power and authority to make and deliver this certificate and to
bind the Tenant to the statements and certifications made herein, and that
Landlord and any and all of Landlord's successors in interest may rely upon such
statements and certifications.
Dated: _________________, 2000
Very truly yours,
______________________________________,
______________________________________
F-2
By:__________________________________
Its:_________________________________
F-3
EXHIBIT G TO PURCHASE AND SALE AGREEMENT
----------------------------------------
NOTICE TO TENANTS
[SELLER'S PROPERTY MANAGER'S LETTERHEAD]
VIA CERTIFIED MAIL
------------------
[TENANT'S NAME]
[TENANT'S ADDRESS]
CITY, STATE ZIP
ATTN: __________________
Re: ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Dear _______________:
Please be advised that on [CLOSING DATE], ownership of the above-referenced real
property was transferred to Mercury Interactive Corporation, a Delaware
corporation (the "Buyer"). In connection with the sale of the property, and in
conformance with the laws of the State of California, the obligations under the
tenant security deposits were transferred to the Buyer, whose address is
________________________, __________________________, ______________, California
9_____; Attention: _________________, without deduction or offset.
Hereafter, please make rent payable to "______________," and mail your payments
to:
_________________________________________________
_________________________________________________
_________________________________________________
This Notice is given in accordance with the requirements of California Civil
Code Section 1950.7(d). From and after ____________, 2000, your sole recourse
for the return of your security deposit upon the termination of your tenancy
will be against the Buyer. If you have any questions, please call [Mr./Ms.]
______________ at ________________. Thank you.
Very truly yours,
__________________________________,
a_________________________________
By: ___________________________
Name: ___________________________
Title: ___________________________
cc: [name of Buyer's property manager]
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Esquire
G-1
EXHIBIT H TO PURCHASE AND SALE AGREEMENT
----------------------------------------
LEASING COSTS
None
H-1
EXHIBIT I TO PURCHASE AND SALE AGREEMENT
----------------------------------------
NATURAL HAZARD DISCLOSURE STATEMENT
This statement applies to the following described real property: ▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
The undersigned Seller discloses the following information with the knowledge
that even though this is not a warranty, the undersigned prospective Buyer may
rely on this information in deciding whether and on what terms to purchase the
subject real property. The following disclosures are made by the Seller based
solely upon the information contained in the report attached hereto and made a
part hereof. This information is merely a disclosure and shall not be deemed to
be part of any contract between the Buyer and Seller.
THIS REAL PROPERTY LIES WITHIN THE FOLLOWING HAZARDOUS AREA(S):
A VERY HIGH FIRE HAZARD SEVERITY ZONE pursuant to Section 51178 or 51179 of the
Government Code. The owner of this property is subject to the maintenance
requirements of Section 51182 of the Government Code.
[_] Yes [_] No
A WILDLAND AREA THAT MAY CONTAIN SUBSTANTIAL FOREST FIRE RISKS AND HAZARDS
pursuant to Section 4125 of the Public Resources Code. The owner of this
property is subject to the maintenance requirements of Section 4291 of the
Public Resources Code. Additionally, it is not the state's responsibility to
provide fire protection services to any building or structure located within the
wildlands unless the Department of Forestry and Fire Protection has entered into
a cooperative agreement with a local agency for those purposes pursuant to
Section 4142 of the Public Resources Code.
[_] Yes [_] No
THESE HAZARDS MAY LIMIT YOUR ABILITY TO DEVELOP THE REAL PROPERTY, TO OBTAIN
INSURANCE, OR TO RECEIVE ASSISTANCE AFTER A DISASTER.
THE ATTACHED REPORT ON WHICH THESE DISCLOSURES ARE BASED ESTIMATE WHERE NATURAL
HAZARDS EXIST. THEY ARE NOT DEFINITIVE INDICATORS OF WHETHER OR NOT A PROPERTY
WILL BE AFFECTED BY A NATURAL DISASTER. BUYER IS HEREBY ADVISED TO OBTAIN
INDEPENDENT PROFESSIONAL ADVICE REGARDING THOSE HAZARDS AND OTHER HAZARDS THAT
MAY AFFECT THE SUBJECT PROPERTY.
This statement may be signed in one or more counterparts.
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I-1
Seller hereby states that the information set forth herein is true and correct
to the best of the Seller's knowledge based solely upon the information
contained in the attached report, and such knowledge is limited to be as of the
date specified below. Seller has not independently verified the information
contained in this statement and the attached report, and Seller is not
personally aware of any errors or inaccuracies in the information contained in
this statement.
SELLER:
WHSUM Real Estate Limited Partnership,
a Delaware limited partnership
By: WHSUM Gen-Par, Inc.,
a Delaware corporation
General Partner
By: _________________________
Name: ______________________
Title: _____________________
Buyer hereby represents and warrants that it has read and understands the
information contained in this disclosure statement and in the attached report
and will rely upon the information contained in the report as though the report
were addressed directly to Buyer.
BUYER:
Mercury Interactive Corporation,
a Delaware corporation
By: ___________________________
Name: ___________________________
Title: ___________________________
Date: ____________________________
I-2
EXHIBIT J TO PURCHASE AND SALE AGREEMENT
----------------------------------------
DISCLOSURE ITEMS
None
J-1
EXHIBIT K TO PURCHASE AND SALE AGREEMENT
----------------------------------------
LIST OF REPORTS
None
K-1