Exhibit 10.01
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 27th day of April, 2004, by and between ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, LLC, a California limited liability company (hereinafter referred to
as "Seller") and TRIPLE NET PROPERTIES, LLC, a Virginia limited liability
company (hereinafter referred to as "Purchaser"), who agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) the parcels of land located in the City of San Diego,
California located at ▇▇▇ ▇ ▇▇▇▇▇▇, and ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, being
more particularly described on Exhibit "A" attached hereto (hereinafter
referred to as the "Land"); and
(b) all rights, privileges, and easements appurtenant to the Land,
including all water rights, mineral rights, development rights, air
rights, reversions, or other appurtenances to said Land, and all right,
title, and interest of Seller, if any, in and to any land lying in the bed
of any street, road, alley, or right-of-way, open or proposed, adjacent to
or abutting the Land; and
(c) Seller's right, title and interest in all buildings,
structures, and improvements situated on the Land and the property
underlying the Ground Leases, including, without limitation, those two
office buildings containing approximately 781,000 square feet of net
rentable floor area, all parking areas and other amenities located on the
Land, and all apparatus, elevators, built-in appliances, equipment, pumps,
machinery, plumbing, heating, air conditioning, and electrical and other
fixtures located on the Land (all of which are together hereinafter
referred to as the "Improvements"); and
(d) Seller's right, title and interest in the ground tenant's
interest in those five ground leases underlying a portion of the
Improvements located at ▇▇▇ ▇ ▇▇▇▇▇▇ all dated as of June 28, 1963 and
more particularly described on Exhibit "B" attached hereto (hereinafter
referred to as the "Ground Leases"); and
(e) all equipment, supplies, tools, furniture, furnishings, office
equipment, fittings, appliances, shades, wall-to-wall carpet, draperies,
screens and screening, art, awnings, plants, shrubbery, landscaping, lawn
care and building maintenance equipment, vending machines and other
furnishings or items of personal property owned by Seller and located at
the Land and Improvements (all of which are together hereinafter referred
to as the "Personal Property"); and
(f) all of Seller's right, title, and interest, as landlord or
lessor, in and to each of the Leases (as hereinafter defined) and any and
all guaranties of the Leases; and
(g) all of Seller's right, title, and interest in and to the plans
and specifications with respect to the Improvements and any guarantees,
trademarks, rights of copyright, warranties, or other rights related to
the ownership of or use and operation of the Land, Personal Property, or
Improvements, all governmental licenses and permits, and all intangibles
associated with the Land, Personal Property, and Improvements.
(h) of Seller's right, title and interest in and to the contracts,
if any, described on Exhibit "F" attached hereto (the "Contracts"), to the
extent the same survive the Closing or require performance after Closing.
2. ▇▇▇▇▇▇▇ Money. Within two (2) business days after the full execution
of this Agreement, Purchaser shall deliver to Chicago Title Company, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇ ("Escrow Agent"), whose offices are at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a wire transfer of immediately available federal
funds in the amount of Two Million Dollars ($2,000,000.00) (the "Initial
Deposit"), which Initial Deposit shall be held and disbursed by Escrow Agent
pursuant to this Agreement and Escrow Agent's standard instructions attached
hereto as Exhibit "I". Upon the expiration of the Inspection Period (as defined
in Section 5), Purchaser shall deliver to Escrow Agent an additional wire
transfer of immediately available federal funds in the amount of Two Million
Dollars ($2,000,000.00) ("Second Deposit"), which Second Deposit also shall be
held and disbursed by Escrow Agent pursuant to this Agreement and Escrow Agent's
standard instructions. The Initial Deposit and the Second Deposit are
collectively referred to as the "▇▇▇▇▇▇▇ Money." The ▇▇▇▇▇▇▇ Money shall be paid
by Escrow Agent to Seller at Closing and shall be applied as a credit to the
Purchase Price (as hereinafter defined), or shall otherwise be paid to Seller or
refunded to Purchaser in accordance with the terms of this Agreement. All
interest and other income from time to time earned on the ▇▇▇▇▇▇▇ Money shall
belong to Purchaser and shall be disbursed to Purchaser at any time or from time
to time as Purchaser shall direct Escrow Agent, all as provided in the Escrow
Agreement. In no event shall any such interest or other income be deemed a part
of the ▇▇▇▇▇▇▇ Money.
3. Purchase Price. Subject to adjustment and credits as otherwise
specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be One Hundred Seventy Seven
Million Six Hundred Thousand Dollars ($177,600,000.00). The Purchase Price shall
be paid by Purchaser to Seller at the Closing (as hereinafter defined) by wire
transfer of immediately available federal funds, less the amount of ▇▇▇▇▇▇▇
Money and subject to prorations, adjustments, and credits as otherwise specified
in this Agreement.
4. Purchaser's Inspection and Review Rights.
(a) Commencing on the effective date of this Agreement and subject
to the rights of the Tenants (as hereinafter defined), upon giving
reasonable advance notice to Seller's property manager, Purchaser and its
agents, engineers, or representatives, with Seller's reasonable, good
faith cooperation, shall have the privilege of going upon the Property as
needed to inspect, examine, test, and survey the Property at all
reasonable times and from time to time. Purchaser shall be additionally
entitled to conduct interviews with the Tenants provided Purchaser has
provided Seller with twenty-four (24) hours' prior notice thereof and the
opportunity to attend said meetings. Such privilege
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shall include the right to make borings and other tests to obtain
information necessary to determine surface and subsurface conditions,
provided that such activities do not materially interfere with the rights
of Tenants or the ongoing operation of the Property.
(b) Purchaser shall maintain or shall cause to be maintained at
all times during its entry upon the Property, commercial general liability
insurance with limits of not less than Two Million and No/100 Dollars
($2,000,000.00) per occurrence combined single limit. Such policy of
insurance shall name Seller as an additional insured, and such policy
shall be primary with respect to the activities of Purchaser and its
agents, engineers or representatives at the Property, whether or not
Seller holds other policies of insurance. Purchaser or its agents,
engineers or representatives shall deliver a certificate issued by the
insurance carrier of such policy to Seller prior to entry upon the
Property.
(c) Purchaser hereby agrees to indemnify, defend (with counsel
selected by Purchaser and reasonably acceptable to Seller) and hold Seller
harmless from any liens, claims, liabilities, and damages incurred through
the exercise of the inspection privilege referred to in Paragraph 4(a)
(but excluding any liability arising out of the existing environmental
condition of the Property or the presence of toxic or hazardous substances
thereon and excluding any claims arising out of a release of existing or
in-place hazardous or toxic substances on or under the Property), and
Purchaser further agrees to repair any damage to the Property caused by
the exercise of such privilege (excluding any damage arising out of a
release of existing or in-place hazardous or toxic substances on or under
the Property). The foregoing indemnification and repair obligations of
Purchaser shall survive the termination of this Agreement.
(d) At all reasonable times prior to the Closing, Seller shall
make available to Purchaser, or Purchaser's agents and representatives, at
Seller's office in San Diego, California for review and copying at
Purchaser's expense, all books, records, and files relating to the
ownership and operation of the Property, including, without limitation,
title matters, tenant files, tenant credit information, commission
agreements, service and maintenance agreements, maintenance records for
HVAC and other equipment and the roof(s) on the Improvements, as-built
plans and specifications, environmental reports, engineering reports,
reports of insurance carriers insuring the Property, and other contracts,
books, records, operating statements, expense budgets, and other
information relating to the Property. Seller further agrees to provide to
Purchaser prior to the date which is five (5) days after the effective
date of this Agreement, to the extent the same are in the possession of or
under the control of Seller, the most current boundary and "as- built"
surveys of the Land and Improvements and any title insurance policies,
environmental reports, certificates of occupancy, building permits, zoning
letters and instruments reflecting the approval of any association
governing the Property or relating thereto. At no cost or liability to
Seller, Seller shall cooperate with Purchaser, its counsel, accountants,
agents, and representatives, provide them with access to Seller's books
and records with respect to the ownership, management, maintenance, and
operation of the Property for the applicable period, and permit them to
copy the same. At no cost to Purchaser, Seller shall use commercially
reasonable efforts to cause the authors of environmental reports to issue
reliance letters addressed to Purchaser and Purchaser's
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lender, if any, in form and substance reasonably acceptable to Purchaser,
at least five (5) days prior to the expiration of the Inspection Period.
Notwithstanding the terms of this Paragraph 4, Seller has not and shall
not be required to provide or make available to Purchaser copies of
appraisals, building inspection reports, internal financial analysis and
calculations, documents protected by the attorney-client or attorney
work-product privileges, Seller's formative documents or that of its
members or investors (except to the extent required to confirm the
authority of Seller to execute this Agreement and consummate the
transaction contemplated hereby), or Seller's inter-member communications.
In addition, Purchaser agrees to return to Seller or otherwise destroy all
documents provided by Seller to Purchaser relating to the Property if
Purchaser or Seller terminates this Agreement, except for documentation
retained by Purchaser in connection with any pending or threatened
litigation related to such termination or claimed default by Seller or
Purchaser.
(e) Seller acknowledges that Purchaser may be required by the
Securities and Exchange Commission to file audited financial statements
for one (1) to three (3) years with regard to the Property. At no cost or
liability to Seller, Seller shall (i) reasonably cooperate with Purchaser,
its counsel, accountants, agents, and representatives, provide them with
access to Seller's books and records with respect to the ownership,
management, maintenance, and operation of the Property for the applicable
period, and permit them to copy the same, and (ii) execute a form of
accounting letter in the form attached hereto as Exhibit "N". Purchaser
will pay the costs associated with any such audit.
(f) To the extent Seller provides Purchaser with any information
regarding the Property, Purchaser will be solely responsible for
evaluating any such information provided by Seller to Purchaser for
purposes of determining the suitability of the Property for Purchaser's
intended use, and Seller makes no representations or warranties concerning
such information.
(g) If Purchaser or Seller terminates this Agreement and Seller is
not in default of its obligations hereunder, Purchaser agrees to deliver
to Seller copies of third-party reports, but excluding appraisals and
documents protected by the attorney-client or work-product privileges,
within thirty (30) days after the date of termination.
5. Special Condition to Closing. Purchaser shall have a period from the
effective date hereof until April 30, 2004 (the "Inspection Period") to make
investigations, examinations, inspections, market studies, feasibility studies,
lease reviews, and tests relating to the Property and the operation thereof in
order to determine, in Purchaser's sole opinion and discretion, the suitability
of the Property for acquisition by Purchaser. Purchaser shall have the right to
terminate this Agreement at any time prior to the expiration of the Inspection
Period by giving written notice to Seller of such election to terminate. In the
event Purchaser so elects to terminate this Agreement, Seller shall be entitled
to retain the sum of Twenty-Five Dollars ($25.00) of the ▇▇▇▇▇▇▇ Money, and the
balance of the ▇▇▇▇▇▇▇ Money shall be refunded by Seller to Purchaser,
whereupon, except as expressly provided to the contrary in this Agreement, no
party hereto shall have any other or further rights or obligations under this
Agreement. Seller acknowledges that the sum of $25.00 is good and adequate
consideration for the termination
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rights granted to Purchaser hereunder. Purchaser's delivery to Escrow Agent of
the Second Deposit on or before the expiration of the Inspection Period shall be
deemed Purchaser's approval of its investigation of the Property. If Purchaser
fails to deliver the Second Deposit on or before the expiration of the
Inspection Period, then Seller or Purchaser, until such time that Purchaser
delivers the Second Deposit to Escrow Agent, may terminate this Agreement by
giving written notice to the other party and the ▇▇▇▇▇▇▇ Money shall be returned
to Purchaser.
6. General Conditions Precedent to Purchaser's Obligations Regarding
the Closing. In addition to the conditions to Purchaser's obligations set forth
in Paragraph 5 above, the obligations and liabilities of Purchaser hereunder
shall in all respects be conditioned upon the satisfaction of each of the
following conditions prior to or simultaneously with the Closing, any of which
may be waived by written notice from Purchaser to Seller:
(a) Seller has complied with and otherwise performed, in all
material respects each of the covenants and obligations of Seller set
forth in this Agreement.
(b) All representations and warranties of Seller as set forth in
this Agreement shall be in all material respects true and correct when
made and, except with respect to Section 8.(c) below, as of the date of
Closing.
(c) There has been no adverse change to the title to the Property
since the effective date of the Title Commitment (as hereinafter defined)
which has not been cured and the Title Company (as hereinafter defined)
has issued an owner's title insurance commitment on the Land, the Ground
Leases and Improvements and is prepared to issue to Purchaser upon the
Closing a fee simple owner's title insurance policy on the Land, Ground
Leases and Improvements which shall include only the Permitted Exceptions.
(d) Purchaser shall have received by June 4, 2004, Tenant Estoppel
Certificates (as defined in Section 9(d) below) from eighty percent (80%)
(by square footage) of the Tenants occupying the Property, which shall
include all Major Tenants (except Purchaser shall receive from GSA the
"GSA Certificate" as defined below), duly executed by the corresponding
Tenants. If Purchaser has not received the required amount of estoppels
and the subordination non-disturbance and attornment agreements described
in 6(e) below, then Seller shall be permitted to extend the Closing Date
until five (5) days after the receipt of all such estoppels, to permit
Seller to secure such estoppels.
(e) Purchaser shall have received by June 4, 2004, a
subordination, non-disturbance and attornment agreement from eighty
percent (80%) (by square footage) of the Tenants occupying the Property
(which shall include all Major Tenants) in a form consistent with those
specified in Tenant's Leases (except for the GSA, for which the GSA
Certificate shall be sufficient). Notwithstanding the foregoing, if
Purchaser provides Seller with an alternate form of subordination,
non-disturbance and attornment agreement prior to April 21, 2004 and
Seller reasonably approves such alternate form (which Seller shall approve
or disapprove within two (2) days of receipt), then Seller shall present
such form to the Tenants, but Purchaser's obligations hereunder shall only
be conditioned upon the receipt of subordination, non-disturbance and
attornment
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agreements in either the form attached to the Leases or the form provided
to Seller on or before April 21,2004, or any combination thereof.
(f) Eighty percent (80%) of the lessors under the Ground Leases
shall have executed a consent, assignment and release agreement
("Consent") in the form of Exhibit "B-1" attached hereto consenting to the
assignment of the Ground Leases to Purchaser and releasing Seller from all
obligations under the Ground Leases and a separate estoppel certificate
from the lessors under the Ground Leases indicating that Seller is not in
default under the Ground Leases. Seller's failure to obtain such Consent
and estoppel certificate shall not be considered a default hereunder and
Seller shall be permitted to extend the Closing Date until five (5) days
after the receipt of such consent and estoppel certificate, to permit
Seller to secure them. Purchaser shall provide all documents requested by
the lessors under the Ground Leases to approve the release of Seller
thereunder and shall execute all documentation requested by the lessors
related to Purchaser's assumption of the obligations under the Ground
Leases. If on or before April 21, 2004 Purchaser provides Seller with an
alternate form of estoppel certificate for the Ground Leases (addressing
items other than those contained in Section 8(b) of the Ground Lease,
which contains the procedures for the estoppel certificate to be furnished
by the lessors under the Ground Leases) and Seller reasonably approves
such alternate form of estoppel certificate (which Seller shall approve or
disapprove within two (2) business days of receipt), then Seller shall
present such form to the lessors under the Ground Leases, but the
condition of receipt of estoppel certificates from the lessors under the
Ground Leases shall be satisfied by either the receipt of an estoppel
certificate as described in Section 8(b) of the Ground Leases or the
alternate form of estoppel certificate provided by Purchaser. This
condition is also a condition for Seller's benefit and, notwithstanding
anything to the contrary contained in this Agreement, may not be waived by
Purchaser without Seller's prior written consent.
(g) Seller and Purchaser are simultaneously with the execution of
this Agreement entering into an agreement for the purchase and sale of
Seller's interest in real property located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ in San
Diego, California ("Related Agreement"). The Related Agreement shall close
simultaneously with the Closing of this Agreement. This condition is also
a condition for Seller's benefit and, notwithstanding anything to the
contrary contained in this Agreement, may not be waived by Purchaser
without Seller's prior written consent. Purchaser's default under the
Related Agreement shall be deemed a default hereunder and shall entitle
Seller to receive the ▇▇▇▇▇▇▇ Money as liquidated damages as provided in
Section 15.
(h) At the time of the Closing: (i) no Tenant occupying more than
25,000 rentable square feet shall be in monetary default under its Lease
for a period exceeding thirty (30) days; (ii) no Tenant occupying more
than 25,000 rentable square feet shall have given notice of its intention
to vacate the Premises (or actually vacated the Premises) prior to the
termination of its Lease (except for termination rights contained in the
Tenant's Lease); and (iii) no Tenant occupying more than 25,000 rentable
square feet shall have filed bankruptcy proceedings.
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In the event Purchaser shall terminate this Agreement as a result of the
non-satisfaction of any of the foregoing conditions, Purchaser shall be entitled
to an immediate return of the ▇▇▇▇▇▇▇ Money from Escrow Agent. The
non-satisfaction of any of the foregoing conditions shall not, in and of itself,
be construed to be a default by Seller hereunder.
7. Title to the Property. Good and marketable fee simple record title
to the Land and Improvements shall be conveyed by Seller to Purchaser by Grant
Deed and leasehold title shall be conveyed by the free and clear of all liens,
easements, restrictions, and encumbrances whatsoever, excepting only the matters
set forth on Exhibit "C" attached hereto (hereinafter referred to as the
"Permitted Exceptions").
(a) Purchaser has obtained from New Century Title Company (herein
referred to as "Title Company") its commitment (hereinafter referred to as
the "Title Commitment") to issue to Purchaser upon the recording of both
the Grant Deed conveying title to the Land and Improvements from Seller to
Purchaser and the assignment of the Ground Leases, the payment of the
Purchase Price, and the payment to the Title Company of the policy premium
therefor, an ALTA owner's policy of title insurance, in the amount of the
Purchase Price, insuring good and marketable fee simple record title to
the Land and Improvements and leasehold interest in the Ground Leases to
be in Purchaser without exception (including any standard exception)
except for the Permitted Exceptions, which contains the following
endorsements to the extent the same are available in the State of
California: comprehensive, zoning, covenants and restrictions, creditor's
rights, survey, and access (provided, however that Purchaser shall be
solely responsible for the portion of the premium charged by the Title
Company in order to upgrade the title policy from a CLTA policy to an ALTA
policy and the cost of any premiums charged by Title Company in connection
with any and all such endorsements). The title policy issued pursuant to
the Title Commitment shall not contain any exception for mechanic's or
materialmen's liens or any exception for unpaid taxes other than an
exception for taxes for 2004 and subsequent years not yet due or payable.
The title policy issued pursuant to the Title Commitment shall not contain
any exception for rights of parties in possession other than an exception
for the rights of the Tenants (as hereinafter defined), as tenants only,
under the Leases. The title policy issued pursuant to the Title Commitment
shall also contain such other special endorsements as Purchaser shall
reasonably require (the "Endorsements"). Purchaser has delivered to Seller
a true and complete copy of the Title Commitment.
(b) Purchaser has also received Seller's most recent surveys of
the Property. From time to time, Purchaser may request an update to the
effective date of such Title Commitment or may update the date of the
survey and give notice to Seller of all defects or objections appearing
subsequent to the effective date of the Title Commitment (or previous
update thereof) or survey, as the case may be (including any reduction of
parking spaces). Seller agrees to cause the satisfaction and release of
the monetary encumbrances on the Property in favor of Istar Financial. All
matters disclosed by an updated Title Commitment and/or survey and not
objected to by Purchaser within five (5) days after receipt of such
updates shall be deemed to be additional "Permitted Exceptions"; provided,
however, encumbrances created by Seller in violation of this
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Agreement, taxes due and payable prior to Closing, and any mortgages,
deeds of trust, mechanic's or materialmen's liens and other such monetary
encumbrances shall in no event be deemed to be Permitted Exceptions.
Seller shall have five (5) days after receipt of such notice of
title defects or objections from Purchaser to advise Purchaser in writing
which of such title defects or objections Seller does not intend to
satisfy or cure; provided, however, Seller hereby agrees that Seller shall
satisfy or cure prior to Closing any such defects or objections consisting
of encumbrances created by Seller in violation of this Agreement, any
taxes due and payable prior to Closing, and any mortgages, deeds of trust,
mechanic's or materialmen's liens and other such monetary encumbrances. In
the event Seller fails to give such written advice to Purchaser within
such five (5) day period, Seller shall be deemed to have agreed to satisfy
or cure all such defects or objections set forth in Purchaser's notice. If
Seller shall advise Purchaser in writing that Seller does not intend to
satisfy or cure any specific encumbrances which Seller is not obligated to
satisfy or cure under the second preceding sentence, Purchaser may elect
either (a) to terminate this Agreement by written notice to Seller, in
which event the ▇▇▇▇▇▇▇ Money shall be immediately refunded to Purchaser
and this Agreement shall be of no further force or effect and Purchaser
and Seller shall have no further rights, obligations or liabilities
hereunder, except for the obligations hereunder which expressly survive
termination, or (b) to accept title subject to such specific encumbrances,
in which case such specific encumbrances shall become additional
"Permitted Exceptions". Seller shall have until Closing to satisfy or cure
all such defects and objections which Seller agreed (or is deemed to have
agreed) to satisfy or cure as provided above. In the event Seller fails or
refuses to cure any defects and objections which are required herein to be
satisfied or cured by Seller prior to the Closing, then (i) Purchaser may
terminate this Agreement by written notice to Seller, in which event the
▇▇▇▇▇▇▇ Money shall be immediately refunded to Purchaser, and this
Agreement shall be of no further force and effect and Purchaser and Seller
shall have no further rights, obligations or liabilities hereunder, except
for the obligations which expressly survive termination.
8. Representations and Warranties of Seller. Seller hereby makes the
following representations and warranties to Purchaser, each of which shall be
deemed material:
(a) Leases. Attached hereto as Exhibit "D" is a complete list
setting forth all leases in effect relating to the Property and all
modifications and amendments to such leases (such leases, as modified and
amended, being herein collectively referred to as the "Leases" or
individually as "Lease"). Seller has delivered to Purchaser complete and
accurate copies of all of the Leases. Seller is the "landlord" under all
of the Leases and owns unencumbered legal and beneficial title to all of
the Leases and the rents and other income thereunder, subject only to the
collateral assignment of the Leases and rents thereunder in favor of the
holder of a deed of trust encumbering the Property, which deed of trust
shall be cancelled and satisfied by Seller at the Closing. The lessees or
tenants identified in the Leases are hereinafter collectively referred to
as "Tenants" or individually as "Tenant".
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(b) Leases - Assignment. To the best of Seller's knowledge, no
Tenant has assigned its interest in its Lease or sublet any portion of the
premises leased to such Tenant under its Lease except as indicated on
Exhibit "D".
(c) Leases - Default. Except as shown on Exhibit "D-1" attached
hereto, (i) Seller has not received any notice of termination or default
under any of the Leases, (ii) to the best of Seller's knowledge, there are
no existing or uncured defaults by Seller, by any predecessor landlord,
or, by any Tenant under the Leases, (iii) to the best of Seller's
knowledge there are no events which with passage of time or notice, or
both, would constitute a default by Seller or by any Tenant, and, to the
best of Seller's knowledge, Seller has complied with each and every
material undertaking, covenant, and obligation of Seller under each Lease
required to be performed or observed through the date hereof, (iv) no
Tenant has asserted in writing to Seller any defense, set-off, or
counterclaim with respect to its tenancy or its obligation to pay rent,
additional rent, or other charges pursuant to its Lease, and (v) to the
best of Seller's knowledge, no Tenant is using its premises in violation
of an "exclusive" granted to another Tenant or occupant of the Property.
(d) Leases - Rents and Special Consideration. Except as reflected
on the Tenant Concession and Commission Schedule attached hereto as
Exhibit "E", no Tenant: (i) has prepaid rent for more than the current
month under such Tenant's Lease, (ii) is entitled to receive any rent
concession (not already taken) in connection with its tenancy under its
Lease, (iii) is entitled to any special work (not yet performed) or
consideration (not yet given) in connection with its tenancy, and (iv) has
any deed, option, or other evidence of any right or interest in or to the
Property, except for such Tenant's tenancy as evidenced by the express
terms of the Tenant's Lease. Seller shall deliver to Purchaser at closing
an amount equal to the undisbursed tenant allowance sums set forth in
Exhibit "E".
(e) Leases - Commissions. No rental, lease, or other commissions
with respect to any Lease are payable to Seller, to any partner or member
of Seller, any party affiliated with or related to Seller or any partner
or member of Seller or to any third party whatsoever. All commissions
payable under, relating to, or as a result of the Leases have been
cashed-out and paid and satisfied in full by Seller or by Seller's
predecessor in title to the Property, and no further commissions shall be
due or payable as a result of any Lease, excluding, however, any brokerage
commissions for any extension of the term of any Lease or any expansion of
the space leased thereunder pursuant to the commission agreements
described on the Tenant Concession and Commission Schedule attached hereto
as Exhibit "E". Seller has delivered to Purchaser complete and accurate
copies of all such commission agreements. Upon Closing, Seller shall have
no further responsibility or liability for any brokerage commissions due
upon any extension of the terms of any Lease or any expansion of the space
leased thereunder, if any.
(f) Leases - Acceptance of Premises. Seller has not received
notice from any Tenant that such Tenant's premises are not in full
compliance with the terms and provisions of such Tenant's Lease or are not
satisfactory for such Tenant's purposes. None of the Tenants has indicated
to Seller in writing its request or its intent to terminate
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its Lease prior to the expiration of the respective term of such Lease or
to reduce the size of the premises leased by such Tenant.
(g) Service Contracts. Attached hereto as Exhibit "F" is a
complete and accurate list and description of all of the service
contracts, management agreements, or other agreements (other than the
Leases) which are in effect and which relate to the operation, management,
or maintenance of the Property (said agreements being herein collectively
referred to as the "Service Contracts"). Seller has provided Purchaser
with complete and accurate copies of all Service Contracts. All such
Service Contracts are in full force and effect in accordance with their
respective provisions, all payments required to be made by Seller or the
"Owner" thereunder have been paid in full, and, to the best of Seller's
knowledge, there is no default, or claim of default, or any event which
the passage of time or notice, or both, would constitute a default on the
part of any party to any of such Service Contracts. All such Service
Contracts are terminable without penalty or obligation to pay any
severance or similar compensation on no more than thirty (30) days'
notice, except as expressly set forth on Exhibit "F". Seller agrees to
cancel, effective no later than the Closing, any of the Service Contracts
specified by Purchaser in a written notice to Seller given at least thirty
(30) days prior to the Closing. All Service Contracts are assignable by
Seller to Purchaser and no Service Contract prohibits such assignment or
provides for any right, claim, or cause of action against Purchaser or the
Property upon such Assignment. Except as may otherwise be agreed in
writing by Purchaser and Seller, Seller has cancelled or will cancel,
effective as of the Closing, any agreement in the nature of a management
agreement or service contract between Seller and any partner or member of
Seller or any party affiliated with or related to Seller or any partner or
member of Seller.
(h) Warranties and Guaranties. Attached hereto as Exhibit "G" is a
complete and accurate list and description of all of the warranties and
guaranties of contractors, vendors, manufacturers and other parties which
are known by Seller to be in effect and to relate to the Property.
(i) No Other Agreements. Other than the Leases, the Service
Contracts, and the Permitted Exceptions, there are no leases, service
contracts, management agreements, or other agreements or instruments in
force and effect, oral or written, that grant to any person whomsoever or
any entity whatsoever any right, title, interest or benefit in or to all
or any part of the Property, any rights to acquire all or any part of the
Property or any rights relating to the use, operation, management,
maintenance, or repair of all or any part of the Property.
(j) No Litigation. No actions, suits, or proceedings are pending,
or to the best of Seller's knowledge have been threatened by any
organization, person, individual, or governmental agency that concerns or
affects the Property or Seller's right to perform its obligations
hereunder except as listed on attached Exhibit "O". Seller also has no
knowledge of any pending or threatened application for changes in the
zoning applicable to the Property or any portion thereof.
10
(k) Condemnation. No condemnation or other taking by eminent
domain of the Property or any portion thereof has been instituted and, to
the best of Seller's knowledge, there are no pending or threatened
condemnation or eminent domain proceedings (or proceedings in the nature
or in lieu thereof) affecting the Property or any portion thereof or its
use.
(l) No Roll-Back Taxes. To the best of Seller's knowledge, the
Property has not been classified under any designation authorized by law
to obtain a special low ad valorem tax rate or to receive a reduction,
abatement or deferment of ad valorem taxes which, in such case, will
result in additional, catch-up or roll-back ad valorem taxes in the future
in order to recover the amounts previously reduced, abated or deferred.
(m) No Assessments. To the best of Seller's knowledge, no
assessments have been made against the Property that are unpaid, whether
or not they have become liens, and no impact fees or similar charges or
sums are payable as result of the construction of the Improvements.
(n) Certificates. There are presently in effect permanent
certificates of occupancy, licenses, and permits as may be required for
the Property, and the present use and occupation of the Property is in
compliance and conformity with the certificates of occupancy and all
licenses and permits. Within three (3) days after the effective date of
this Agreement, Seller shall provide Purchaser with complete and accurate
copies of all such Certificates of Occupancy, licenses and permits that
are known by Seller to relate to the Property and which are in the
possession or control of Seller. To the best of Seller's knowledge, there
has been no notice or request of any municipal department, insurance
company or board of fire underwriters (or organization exercising
functions similar thereto), directed to Seller and requesting the
performance of any work or alteration in respect to the Property which has
not been complied with.
(o) Compliance With Governmental Requirements. Seller has received
no notice of any violations of law, municipal or county ordinances, or
other legal requirements with respect to the Property, including any legal
requirements with respect to the use, occupancy or construction of the
Improvements. To the best of Seller's knowledge, the Property is currently
zoned in a classification such as will permit the operation of the
Property as office buildings and the conditions, if any, to the granting
of the zoning of the Property have been satisfied. To the best of Seller's
knowledge, the Property is not located in a wetland area or in a
designated or recognized flood plain, flood plain district, flood hazard
area or area of similar characterization or in an area of special risk
with respect to earth movement, rising groundwater, or other natural
hazards.
(p) Utilities. To the best of Seller's knowledge, all utilities
necessary for the use of the Property as an office building of the size
and nature situated thereon, including water, sanitary sewer, storm sewer,
natural gas, electricity, and telephone, are installed and operational,
and such utilities either enter the Property through adjoining public
streets, or, if they pass through adjoining private land, do so in
accordance with valid public easements or private easements which inure to
the benefit of the Property.
11
(q) Surveys. Seller has heretofore delivered to Purchaser the most
current boundary and "as-built" surveys of the Land and Improvements in
the possession or control of Seller.
(r) Initial Utility Charges. All installation and connection
charges for utilities serving the Property have been paid in full.
(s) No Liens. Except for the contractors, subcontractors, and
other persons or entities described in the form of Owner's Declaration
provided by the Title Company, all contractors, subcontractors, and other
persons or entities furnishing work, labor, materials, or supplies by or
at the instance of Seller for the Property have been paid in full and,
other than routine ongoing charges pursuant to the Service Contracts,
there are no claims against the Property or Seller in connection
therewith.
(t) No Liens Upon Building Service Equipment. None of the
fixtures, equipment, apparatus, fittings, machinery, appliances,
furniture, furnishings, and articles of personal property attached or
appurtenant to, or used in connection with the occupation or operation of,
all or any part of the Property are leased by Seller from third parties,
and all of same which are owned by Seller, including the Personal
Property, are free of any and all liens, encumbrances, charges, or adverse
interests, except for the security interest granted to the holder of the
existing deed of trust encumbering the Property, which security interest
shall be terminated or cancelled at the time of the Closing.
(u) Tax Returns. All property tax returns required to be filed by
Seller relating to the Property under any law, ordinance, rule,
regulation, order, or requirement of any governmental authority have been,
or will be, as the case may be, truthfully, correctly, and timely filed.
(v) Employees. There are no employment, collective bargaining, or
similar agreements or arrangements between Seller and any of its employees
or others that will be binding on Purchaser or any of Purchaser's
successors in title.
(w) Bankruptcy. Seller is solvent and has not made a general
assignment for the benefit of creditors nor been adjudicated a bankrupt or
insolvent, nor has a receiver, liquidator, or trustee for any of Seller's
properties (including the Property) been appointed or a petition filed by
or against Seller for bankruptcy, reorganization, or arrangement pursuant
to the Federal Bankruptcy Act or any similar Federal or state statute, or
any proceeding instituted for the dissolution or liquidation of Seller.
(x) Pre-existing Right to Acquire. No person or entity has any
right or option to acquire the Property or any portion thereof that will
have any force or effect after execution hereof.
(y) Authorization. Seller is a duly organized and validly existing
limited liability company under the laws of the State of California and
has duly registered and is qualified to transact business in the State of
California. This Agreement has been duly authorized and executed on behalf
of Seller, all necessary action on the part of Seller to
12
authorize the transactions herein contemplated has been taken, and no
further action is necessary for such purpose, and this Agreement
constitutes the valid and binding agreement of Seller, enforceable in
accordance with its terms, subject to bankruptcy, insolvency and similar
laws affecting generally the enforcement of creditor's rights. Neither the
execution and delivery of this Agreement nor the consummation of the
transaction contemplated hereby will (i) be in violation of Seller's
Articles of Organization or Operating Agreement, (ii) conflict with or
result in the breach or violation of any law, regulation, writ, injunction
or decree of any court or governmental instrumentality applicable to
Seller, or (iii) constitute a breach of any evidence of indebtedness or
agreement of which Seller is a party or by which Seller is bound.
(z) Seller Not a Foreign Person. Seller is not a "foreign person"
which would subject Purchaser to the withholding tax provisions of Section
1445 of the Internal Revenue Code of 1986, as amended.
(aa) Hazardous Substances. To the best of Seller's knowledge, and
except as otherwise disclosed in the environmental reports delivered to
Purchaser by Seller, (i) no "hazardous substances", as that term is
defined in the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq., the
Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C.
Section 6901, et seq., and the rules and regulations promulgated pursuant
to these acts, any so-called "super-fund" or "super lien" laws or any
applicable state or local laws, nor any other pollutants, toxic materials,
or contaminants have been or shall prior to Closing be discharged,
disbursed, released, stored, treated, generated, disposed of, or allowed
to escape on the Property, (ii) no asbestos or asbestos containing
materials have been installed, used, incorporated into, or disposed of on
the Property, (iii) no polychlorinated biphenyls are located on or in the
Property, in the form of electrical transformers, fluorescent light
fixtures with ballasts, cooling oils, or any other device or form, (iv) no
underground storage tanks are located on the Property or were located on
the Property and subsequently removed or filled, (v) no investigation,
administrative order, consent order and agreement, litigation, or
settlement with respect to hazardous substances is proposed, threatened,
anticipated or in existence with respect to the Property, and (vi) the
Property has not previously been used as a landfill, cemetery, or as a
dump for garbage or refuse.
At Closing, Seller and Purchaser shall represent and warrant to each other that
all such representations and warranties of each party in this Agreement remain
true and correct as of the date of the Closing, except for any changes in any
such representations or warranties that occur and are disclosed by the party
making such representation or warranty (either to Purchaser or Seller, as the
case may be), expressly and in writing at any time and from time to time prior
to Closing upon their occurrence, which disclosures shall thereafter be updated
by such party to the date of Closing. Each and all of the express
representations and warranties made and given by Seller or Purchaser herein
shall survive the execution and delivery of the Grant Deed by Seller to
Purchaser for a period of six (6) months after the Closing, except to the extent
that a notice of breach of any representation or warranty has been given prior
to such expiration. If there is any material change in any of Seller's
representations or warranties and Seller does not cure or
13
correct such changes prior to Closing, then Purchaser may, at Purchaser's
option, (i) close and consummate the transaction contemplated by this Agreement,
except that after such closing and consummation Purchaser shall have the right
to seek monetary damages from Seller for any such changes willfully caused by
Seller or any such representations or warranties willfully breached by Seller,
or (ii) terminate this Agreement by written notice to Seller, whereupon the
▇▇▇▇▇▇▇ Money shall be immediately returned to Purchaser, and thereafter the
parties hereto shall have no further rights or obligations hereunder, except
only (1) for such rights or obligations that, by the express terms hereof,
survive any termination of this Agreement and (2) that Purchaser shall have the
right to seek monetary damages from Seller for any changes in such
representations and warranties willfully caused by Seller or any such
representations and warranties willfully breached by Seller.
Whenever a representation or warranty is made in this Agreement "to the
best knowledge of Seller", such representation and warranty is made solely on
the basis of the actual, as distinguished from implied, imputed and
constructive, knowledge on the date of such representation or warranty is made
of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, principal of Seller having responsibility for the
management, operation and sale of the Property, without attribution to ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ of facts and matters otherwise within the personal knowledge of any
other principals or employees of Seller or third parties. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ shall
have no personal liability or obligation hereunder to Purchaser nor shall such
individuals owe any duty whatsoever to Purchaser.
9. Seller's Additional Covenants. Seller does hereby further covenant
and agree as follows:
(a) Operation of Property. Seller hereby covenants that, from
April 27, 2004 up to and including the date of Closing, Seller shall: (i)
not modify, amend, or terminate any of the Leases or enter into any new
lease, contract, or other agreement respecting the Property, unless Seller
obtains the prior written consent to same from Purchaser, (ii) not waive
any rights of Seller under any Lease or material contract, (iii) not grant
or otherwise create or consent to the creation of any easement,
restriction, lien, assessment, or encumbrance respecting the Property, and
(iv) cause the Property to be operated, maintained, and repaired in the
same manner as the Property is currently being operated, maintained, and
repaired. Seller shall give notice and copies of any documents to
Purchaser within three (3) days of execution if Seller undertakes any of
the actions described in this Section 9(a) between the Effective Date and
April 27, 2004.
(b) Removal of Personal Property. Seller shall neither transfer
nor remove any Personal Property or fixtures from the Property after the
date of this Agreement except for the purposes of replacement thereof, in
which case such replacements shall be promptly installed and shall be
comparable in quality to the items being replaced.
(c) Preservation of Leases. Seller shall, from and after the date
of this Agreement to the date of Closing, use its best efforts to perform
and discharge all of the duties and obligations and shall otherwise comply
with every covenant and agreement of the landlord or lessor under the
Leases, at Seller's expense, in the manner and within the time limits
required thereunder. Furthermore, Seller shall, for the same period of
time,
14
use diligent and good faith efforts to cause the Tenants under the Leases
to perform all of their respective duties and obligations and otherwise
comply with each and every one of their covenants and agreements under
such Leases and shall take such actions as are reasonably necessary to
enforce the terms and provisions of such Leases.
(d) Tenant Estoppel Certificates. Seller shall use commercially
reasonable efforts to obtain and deliver to Purchaser fully completed
estoppel certificates from eighty percent (80%) of the Tenants of the
Property (by square footage) occupying the Property as of the Closing,
which eighty percent (80%) shall include all Tenants of the Property
occupying more than 10,000 rentable square feet at the time of the Closing
(including, without limitation, GSA) (each a "Major Tenant") in the form
attached hereto as Exhibit "H" (herein referred to as the "Tenant Estoppel
Certificates"), duly executed by the Tenant thereunder. Notwithstanding
the foregoing, with respect to GSA, which is a Major Tenant, Seller shall
obtain a letter in the form of Exhibit "H-1" (herein referred to as the
"GSA Certificate") in lieu of a Tenant Estoppel Certificate. Seller shall
use all reasonable efforts to cause the executed Tenant Estoppel
Certificates and GSA Certificate to be delivered to Purchaser prior to
June 4, 2004. If Purchaser furnishes an alternate form of estoppel
certificate to Seller on or before April 21, 2004 and Seller reasonably
approves such alternate form (which Seller shall approve or disapprove
within two (2) business days of receipt), then Seller will present such
alternate certificate to the Tenants, but Purchaser's obligations as
described in Section 6.(d) of this Agreement shall be conditioned upon the
receipt of estoppel certificates from the Tenants in the form of either
the attached Exhibit "H" or "H-1", as the case may be, or the form that
Purchaser provides to Seller on or before April 21, 2004, or any
combination thereof. The Tenant Estoppel Certificates and GSA Certificate
shall be executed as of the date not more than sixty (60) days prior to
Closing. Purchaser's obligations under this Agreement shall be conditioned
upon Purchaser receiving an executed Estoppel Certificate (and, with
respect to GSA, the GSA Certificate) from eighty percent (80%) (by square
footage) of the Tenants (including the Major Tenants) prior to June 4,
2004, as such date may be extended pursuant to Paragraph 6(d) above.
(e) Insurance. From and after the date of this Agreement to the
date and time of Closing, Seller shall, at its expense, continue to
maintain the same special form/"all risk" insurance covering the Property
which is currently in force and effect.
(f) Tenant Correspondence. From and after the date of this
Agreement to the date and time of Closing, Seller shall furnish to
Purchaser, promptly upon Seller's receipt, copies of notices from and
correspondence with any Tenant occupying greater than 25,000 rentable
square feet with respect to such Tenant's bankruptcy, vacating of the
Property or default under its Lease..
10. Closing. Provided that all of the conditions set forth in this
Agreement are theretofore fully satisfied or performed, it being fully
understood and agreed, however, that Purchaser may waive expressly and in
writing, at or prior to Closing, any conditions for its sole benefit that are
unsatisfied or unperformed at such time, the consummation of the sale by Seller
and purchase by Purchaser of the Property (herein referred to as the "Closing")
shall be held on or before June 11, 2004 ("Closing Date"), at an office in San
Diego, California at such specific
15
office, and at such specific time and date as shall be designated by Purchaser
in a written notice to Seller not less than three (3) business days prior to
Closing. In the event Purchaser fails to give such notice of the time, date and
place of Closing, the Closing shall occur at 1:30 p.m. on the last date for such
Closing as provided above, at the San Diego, California office of the Title
Company. Notwithstanding the foregoing, if the conditions in this Agreement are
not satisfied or waived by the party benefited by such conditions on or before
August 31, 2004, then either party may thereafter terminate this Agreement by
written notice to the other party and Escrow Agent.
11. Seller's Closing Documents. For and in consideration of, and as a
condition precedent to Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Grant Deed. A Grant Deed conveying to Purchaser marketable fee
simple title to the Land and Improvements, together with all rights,
members, easements, and appurtenances thereof, subject only to the
Permitted Exceptions. The legal description set forth in the Grant Deed
shall be identical to Exhibit "A" attached hereto. In the event the
as-built survey of the Land and Improvements updated by Purchaser shall
differ from the legal description set forth on Exhibit "A" hereto, Seller
shall, if required by Purchaser, execute and deliver to Purchaser a
quitclaim deed containing a legal description based upon such updated
as-built survey;
(b) Assignment of Ground Leases. An assignment of the tenant's
interest in the Ground Leases in a form permitted pursuant to the Ground
Leases.
(c) ▇▇▇▇ of Sale. A ▇▇▇▇ of Sale conveying to Purchaser marketable
title to the Personal Property in the form and substance of Exhibit "J"
attached hereto;
(d) Blanket Transfer. A Blanket Transfer and Assignment in the
form and substance of Exhibit "K" attached hereto;
(e) Assignment and Assumption of Leases. An Assignment and
Assumption of Leases in the form and substance of Exhibit "L" attached
hereto, assigning to Purchaser all of Seller's right, title, and interest
in and to the Leases and the rents thereunder;
(f) Seller's Affidavit. A customary Seller's Affidavit in the form
required by the Title Company;
(g) FIRPTA Certificate. A FIRPTA Certificate in the form and
substance of Exhibit "M" attached hereto;
(h) Surveys and Plans. Such surveys, site plans, plans and
specifications, and other matters relating to the Property as are
described in subparagraph (a) of the Blanket Transfer and Assignment and
are in the possession or control of Seller;
16
(i) Certificates of Occupancy. Original Certificates of Occupancy
for all space within the Improvements, to the extent same are in the
possession or control of Seller;
(j) Leases. An original executed counterpart of each Lease and any
guaranties thereof;
(k) Service Contracts. An original executed counterpart of each
Service Contract;
(l) Limited Liability Company Consent. A certified consent to this
Agreement, the transactions contemplated herein, and the execution and
delivery of the documents required hereunder, signed by all members of
Seller, together with written authorization of such members authorizing
the execution and delivery of documents required hereunder, and
designating and guaranteeing the signatures of the manager(s) or member(s)
of Seller who are to execute and deliver all such documents on behalf of
Seller;
(m) Keys and Records. All of the keys to any doors or locks on the
Property and the original tenant files and other books and records
relating to the Property in Seller's possession or control;
(n) Tenant Notices. Notice from Seller to the Tenants of the sale
of the Property to Purchaser in such form as Purchaser shall reasonably
approve;
(o) Settlement Statement. A settlement statement setting forth the
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
(p) Non-Cash Security Deposits. Seller cause to be transferred
into Purchaser's name any non-cash security deposits held pursuant to the
Leases and shall provide documentation evidencing such transfer; and
(q) Other Documents. Such other documents as shall be reasonably
required by Purchaser's counsel.
12. Purchaser's Closing Documents. Purchaser shall obtain or execute, at
Purchaser's expense, and deliver to Seller at Closing the following documents,
all of which shall be duly executed and acknowledged where required and shall
survive the Closing:
(a) Blanket Transfer. A Blanket Transfer and Assignment in the
form and substance of Exhibit "K" attached hereto;
(b) Assignment and Assumption of Leases. The Assignment and
Assumption of Leases in the form and substance of Exhibit "L" attached
hereto;
17
(c) Assignment of Ground Leases. Any documentation requested by
lessors under the Ground Leases to assign the Ground Leases to Purchaser
and release Seller from all obligations under the Ground Leases.
(d) Settlement Statement. A settlement statement setting forth the
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
(e) Corporate Resolution. A copy of a resolution of the Board of
Directors of Purchaser, certified by the Secretary or Assistant Secretary
of the corporate general partner of Purchaser to be in force and
unmodified as of the date and time of Closing, authorizing the execution
and delivery of documents required hereunder, and designating and
guaranteeing the signatures of the officers of the corporate general
partner of Purchaser who are to execute and deliver all such documents on
behalf of the corporate general partner of Purchaser;
(f) Other Documents. Such other documents as shall be reasonably
required by Seller's counsel.
13. Closing Costs. Seller shall pay the cost of the Title Commitment,
including the cost of the examination of title to the Property made in
connection therewith, the cost (which may be a credit to Purchaser) of the
premium payable for a CLTA form owner's policy of title insurance issued
pursuant to the Title Commitment, (except for any additional cost attributable
to the Endorsements or increased costs based on Purchaser's request to use an
ALTA form of title insurance), the cost of any state, county or municipal
transfer taxes imposed upon the conveyance of the Property pursuant hereto, the
attorneys' fees of Seller, and all other costs and expenses incurred by Seller
in closing and consummating the purchase and sale of the Property pursuant
hereto. Purchaser shall pay the recording fees on both the Grant Deed (and
quitclaim deed if required pursuant to Paragraph 11[a] hereof) and the
assignment of Ground Leases of the Property from Seller to Purchaser to be
recorded in connection with this transaction, the additional cost of the Title
Policy attributable to the Endorsements, the cost of any title insurance
coverage for Purchaser's lender, the additional cost of the issuance of a ALTA
form instead of an CLTA form of title policy, the costs of updating the survey,
the attorneys' fees of Purchaser, and all other costs and expenses incurred by
Purchaser in closing and consummating the purchase and sale of the Property
pursuant hereto.
14. Prorations. The following items shall be prorated and/or credited
between Seller and Purchaser as of 12:00 a.m. on the date of Closing:
(a) Rents. Rents, additional rents, operating costs, and other
income of the Property (other than security deposits) collected by Seller
from the Tenants for the month of Closing shall be prorated as of 12:00
a.m. on the date of Closing. Purchaser shall also receive a credit against
the Purchase Price payable by Purchaser to Seller at Closing for any rents
or other sums (not including security deposits) prepaid by the Tenants for
any period following the month of Closing, or otherwise. Purchaser shall
receive a credit against the Purchase Price payable by Purchaser to Seller
at Closing for the total sum of all security deposits paid by Tenants
under Leases and not theretofore applied to
18
delinquent rent and other charges payable by the applicable Tenant. Seller
hereby acknowledges that Purchaser shall not be legally responsible to
Seller for the collection of any uncollected rent or other income under
any of the Leases that is past due or otherwise due and payable as of the
date of Closing. Purchaser agrees that if (i) a Tenant is in arrears on
the date of Closing in the payment of rent or other charges under such
Tenant's Lease, and (ii) upon Purchaser's receipt of any rental or other
payment from such Tenant, such Tenant is, or after application of a
portion of such payment will be, current under such Lease in the payment
of all accrued rental and other charges that become due and payable on the
date of Closing or thereafter and in the payment of any other obligations
of such Tenant to Purchaser, then Purchaser shall refund to Seller, out of
and to the extent of the portion of such payment remaining after Purchaser
deducts therefrom any and all sums due and owing it from such Tenant from
and after the date of Closing, an amount up to the full amount of any
arrearage existing on the date of Closing.
(b) Property Taxes. City, state, county, and school district ad
valorem taxes based on the ad valorem tax bills for the Property, if then
available, or if not, then on the basis of the latest available tax
figures and information and applicable statutory increases. Should such
proration be based on such latest available tax figures and information
and applicable statutory increases and prove to be inaccurate on receipt
of the ad valorem tax bills for the Property for the year of Closing,
either Seller or Purchaser, as the case may be, may demand at any time
after Closing a payment from the other correcting such malapportionment.
In addition, if after Closing there is an adjustment or reassessment by
any governmental authority with respect to, or affecting, any ad valorem
taxes for the Property for the year of Closing or any prior year, any
additional tax payment for the Property required to be paid with respect
the year of Closing (excluding any increase in taxes solely as a
consequence of the "transfer of ownership" to Seller and excluding any
increase in taxes solely as a consequence of tenant improvement work
completed after Closing) shall be prorated between Purchaser and Seller
and any such additional tax payment for the Property for any year prior to
the year of Closing shall be paid by Seller. This agreement shall
expressly survive the Closing.
(c) Utility Charges. Except for utilities which are the direct
responsibility of the Tenants to the applicable public or private
utilities supplier, Seller shall pay all utility bills received prior to
Closing and shall be responsible for utilities furnished to the Property
prior to Closing. Purchaser shall be responsible for the payment of all
bills for utilities furnished to the Property subsequent to the Closing.
Seller and Purchaser hereby agree to prorate as of midnight preceding the
date of Closing and pay their respective shares of all utility bills
received subsequent to Closing (if they include a service period prior to
the date of Closing), which agreement shall survive Closing. Seller shall
be entitled to all deposits presently in effect with the utility
providers.
(d) Service Contracts. Charges under the Service Contracts shall
be prorated as of midnight preceding the date of Closing.
(e) Other Tenant Charges. Where the Leases contain Tenant
obligations for taxes, common area expenses, operating expenses or
additional charges of any nature, and where Seller shall have collected on
an estimated basis any portion thereof in excess
19
of amounts owed by Seller for such items for the period prior to the date
of Closing, then there shall be an adjustment and credit given to
Purchaser on the date of Closing for such excess amounts collected.
Purchaser shall apply all such excess amounts to the charges owed by
Purchaser for such items for the period after the date of Closing, and if
required by the Leases, shall rebate or credit Tenants with any remainder.
If it is determined subsequent to the Closing that the amount collected
during Seller's ownership period exceeded expenses incurred during the
same period by more than the amount previously credited to Purchaser at
Closing, then Seller shall promptly pay to Purchaser the deficiency. If it
is determined subsequent to Closing that the amount collected during
Seller's ownership period exceeded expenses incurred during the same
period by less than the amount previously credited to Purchaser at
Closing, then Purchaser shall promptly pay to Seller the overpayment.
(f) Tenant Inducements and Unpaid Commissions. Seller shall pay
all leasing commissions in connection with any Lease executed on or before
the effective date of this Agreement (including leasing commissions
attributable to the exercise by the Tenants of any expansion or extension
options set forth in the Lease which are not exercised until after the
Closing). Purchaser shall be entitled to a credit against the Purchase
Price for the total sum of any unexpired concessions under any Leases to
the extent they apply to any period after the Closing. Purchaser shall
also be entitled to a credit against the Purchase Price for the total sum
of any remaining improvement allowances the payment of which may become
the obligation of the landlord or lessor under the Leases after the
Closing, but Purchaser shall receive no such credit against the Purchase
Price for any improvement allowances payable by the landlord or lessor
under the Leases as a result of the exercise by a Tenant after the Closing
of any expansion or extension option in such Tenant's Lease.
15. Purchaser's Default. THE PARTIES AGREE THAT IT WOULD BE EXTREMELY
IMPRACTICAL AND DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES SUFFERED BY SELLER AS
A RESULT OF PURCHASER'S DEFAULT HEREUNDER, AND THAT UNDER THE CIRCUMSTANCES
EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR
IN THIS PARAGRAPH REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER
WILL INCUR AS A RESULT OF SUCH FAILURE. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT
OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE
MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369, BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE
SECTION 1671, 1676, AND 1677. THE PARTIES HAVE SET FORTH THEIR INITIALS BELOW TO
INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES PROVISION CONTAINED IN THIS
PARAGRAPH. IN THE EVENT OF DEFAULT BY PURCHASER UNDER THE TERMS OF THIS
AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY DEFAULT OR FAILURE TO CLOSE UNDER
THE RELATED AGREEMENT), SELLER'S SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE
THE ▇▇▇▇▇▇▇ MONEY AS LIQUIDATED DAMAGES AND THEREAFTER THE PARTIES HERETO SHALL
HAVE NO FURTHER RIGHTS OR OBLIGATIONS
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HEREUNDER WHATSOEVER. THE LIMITATIONS ON PURCHASER'S LIABILITY UNDER THIS
PARAGRAPH 15 SHALL BE INAPPLICABLE TO THE LIABILITY OF PURCHASER FOR PAYMENTS,
IF ANY, DUE BY PURCHASER TO SELLER UNDER PARAGRAPH 4 HEREOF.
/s/ A.W.T.
_________________ --------------------
SELLER'S INITIALS PURCHASER'S INITIALS
16. Seller's Default. In the event of default by Seller under the terms
of this Agreement, except as otherwise specifically set forth herein, at
Purchaser's option: (i) Purchaser may terminate this Agreement by written notice
to Seller, whereupon the ▇▇▇▇▇▇▇ Money shall be immediately returned by Escrow
Agent to Purchaser, and the parties hereto shall have no further rights or
obligations hereunder whatsoever; or (ii) Purchaser shall be entitled to an
immediate refund of all but $25.00 of the ▇▇▇▇▇▇▇ Money and to pursue against
Seller the remedy of specific performance.
17. Condemnation. If, prior to the Closing, all or any part of the
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received notice that any condemnation action
or proceeding with respect to the Property is contemplated by a body having the
power of eminent domain, Seller shall give Purchaser immediate written notice of
such threatened or contemplated condemnation or of such taking or sale, and
Purchaser may by written notice to Seller given within thirty (30) days of the
receipt of such notice from Seller, elect to cancel this Agreement. If Purchaser
chooses to cancel this Agreement in accordance with this Paragraph 17, then the
▇▇▇▇▇▇▇ Money shall be returned immediately to Purchaser by Escrow Agent and the
rights, duties, obligations, and liabilities of the parties hereunder shall
immediately terminate and be of no further force and effect, except for those
obligations that expressly survive the termination hereof. If Purchaser does not
elect to cancel this Agreement in accordance herewith, this Agreement shall
remain in full force and effect and the sale of the Property contemplated by
this Agreement, less any interest taken by eminent domain or condemnation, or
sale in lieu thereof, shall be effected with no further adjustment and without
reduction of the Purchase Price, and at the Closing, Seller shall assign,
transfer, and set over to Purchaser all of the right, title, and interest of
Seller in and to any awards that have been or that may thereafter be made for
such taking. At such time as all or a part of the Property is subjected to a
bona fide threat of condemnation and Purchaser shall not have elected to
terminate this Agreement as hereinabove provided, Purchaser shall be permitted
to participate in the proceedings as if Purchaser were a party to the action.
Seller shall not settle or agree to any award or payment pursuant to
condemnation, eminent domain, or sale in lieu thereof without obtaining
Purchaser's prior written consent thereto in each case.
18. Damage or Destruction. If any of the Improvements shall be destroyed
or damaged prior to the Closing, and if either the estimated cost of repair or
replacement exceeds One Million Dollars ($1,000,000.00) or the damage results in
the termination of one or more of the Leases that together comprise more than
fifty thousand (50,000) rentable square feet, Purchaser may, by written notice
given to Seller within twenty (20) days after receipt of written notice from
Seller of such damage or destruction, elect to terminate this Agreement, in
which
21
event the ▇▇▇▇▇▇▇ Money shall immediately be returned by Escrow Agent to
Purchaser and the rights, duties, obligations, and liabilities of all parties
hereunder shall immediately terminate and be of no further force or effect,
except for those obligations that expressly survive the termination hereof. If
Purchaser does not elect to terminate this Agreement pursuant to this Paragraph
18, or has no right to terminate this Agreement (because the damage or
destruction does not exceed One Million Dollars ($1,000,000.00) and has not
resulted in the termination of one or more of the Leases that together comprise
more than fifty thousand (50,000) rentable square feet), and the sale of the
Property is consummated, Purchaser shall be entitled to receive all insurance
proceeds paid or payable to Seller by reason of such destruction or damage under
the insurance required to be maintained by Seller pursuant to Paragraph 9(a)
hereof (less amounts of insurance theretofore received and applied by Seller to
costs actually incurred for restoration). Seller shall not settle or release any
damage or destruction claims without obtaining Purchaser's prior written consent
in each case. All said insurance proceeds received by Seller by the date of
Closing shall be paid by Seller to Purchaser at Closing, together with the
lesser of (i) that amount necessary to cover any difference between the amount
of such proceeds and the estimated cost of repair or replacement, or (ii) the
amount of the deductible under Seller's all-risk property damage insurance
policy. In addition, at Closing, Seller shall pay over to Purchaser, and assign
to Purchaser, all proceeds of any rent loss insurance for the period of time
commencing on the date of Closing. If the amount of said casualty or rent loss
insurance proceeds is not settled by the date of Closing, Seller shall execute
at Closing all proofs of loss, assignments of claim, and other similar
instruments in order that Purchaser receive all of Seller's right, title, and
interest in and under said insurance proceeds.
19. As Is Purchase: Indemnity; Release.
(a) Purchaser hereby acknowledges, represents, warrants, covenants
and agrees that as a material inducement to Seller to execute and accept
this Agreement and in consideration of the performance by Seller of its
duties and obligations under this Agreement, the sale of the Property
hereunder is and will be made on an "as is, where is" basis except as
otherwise expressly provided in this Agreement including Paragraph 8, and
that except as otherwise expressly provided in this Agreement including
Paragraph 8 and all documents delivered to Purchaser at Closing, Seller
has not made, does not make and specifically negates and disclaims any
representations, warranties or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present,
future or otherwise, of, as to, concerning or with respect to the
Property, including, without limitation: (1) the existence of hazardous
materials upon the Property or any portion thereof; (2) geological
conditions, including, without limitation, subsidence, subsurface
conditions, water table, underground water reservoirs, limitations
regarding the withdrawal of water and faulting; (3) whether or not and to
the extent to which the Property or any portion thereof is affected by any
stream (surface or underground), body of water, flood prone area, flood
plain, floodway or special flood hazard; (4) drainage; (5) soil
conditions, including the existence of instability, past soil repairs,
soil additions or conditions of soil fill, or susceptibility to
landslides, or the sufficiency of any undershoring; (6) usages of
adjoining properties; (7) the value, compliance with the plans and
specifications, size, location, age, use, design, quality, description,
durability, structural integrity, operation, title to, or physical or
financial
22
condition of the real property or any portion thereof, or any rights or
claims on or affecting or pertaining to the Property or any part thereof
including, without limitation, whether or not the improvements comply with
the requirements of Title III of the Americans with Disabilities Act of
1990, 42 U.S.C. Sections 12181-12183, 12186(b) - 12189 and related
regulations; (8) the presence of hazardous materials in or on, under or in
the vicinity of the Property; (9) the square footage of the Land or the
Improvements; (10) improvements and infrastructure, if any; (11)
development rights and extractions; (12) water or water rights; (13) the
development potential for the Property; (14) the ability of purchaser to
rezone the Property or change the use of the Property; (15) the ability of
purchaser to acquire adjacent properties; (16) the existence and possible
location of any underground utilities; (17) the existence and possible
location of any encroachments; (18) whether the improvements were built,
in whole or in part, in compliance with applicable building codes; (19)
the status of any life-safety systems in the improvements; (20) the
character of the neighborhood in which the Property is situated; (21) the
condition or use of the Property or compliance of the Property with any or
all past, present or future federal, state or local ordinances, rules,
regulations or laws, building, fire or zoning ordinances, codes or other
similar laws; and(or) (22) the merchantability of the Property or fitness
of the Property for any particular purpose (Purchaser affirming that
Purchaser has not relied on Seller's skill or judgment to select or
furnish the Property for any particular purpose, and that Seller makes no
warranty that the Property is fit for any particular purpose).
Purchaser acknowledges that as of the expiration of the Inspection
Period, Purchaser shall have completed all physical and financial
examinations relating to the Property hereunder and will acquire the same
solely on the basis of such examinations and the title insurance
protection for the Property afforded by Purchaser's title policy and not
on any information provided or to be provided by Seller except for
representations and warranties and indemnities otherwise expressly
provided in this Agreement including Paragraph 8 and all documents
delivered to Purchaser at Closing. Purchaser further acknowledges and
agrees that any information provided or to be provided with respect to the
Property was obtained from a variety of sources and that Seller has not
made any independent investigation or verification of such information and
makes no representations as to the accuracy or completeness of such
information except for representations and warranties and indemnities
otherwise expressly provided in this agreement including Paragraph 8 and
all documents delivered to Purchaser at Closing. Seller shall not be
liable for any negligent misrepresentation or any failure to investigate
the Property nor shall Seller be bound in any manner by any verbal or
written statements, representations, appraisals, environmental assessment
reports, or other information pertaining to the Property or the operation
thereof, furnished by Seller, or by any real estate broker, agent,
representative, employee, servant or other person acting on Seller's
behalf except for representations and warranties and indemnities expressly
provided in this Agreement including Paragraph 8 and all document
delivered to Purchaser at Closing. It is acknowledged and agreed that the
Property is sold by Seller and purchased by Purchaser subject to the
foregoing.
23
The Closing of the purchase of the Property by Purchaser hereunder
shall be conclusive evidence that: (a) Purchaser has fully and completely
inspected (or has caused to be fully and completely inspected) the
Property; (b) Purchaser accepts the Property as being in good and
satisfactory condition and suitable for Purchaser's purposes; and (c) the
Property fully complies with Seller's covenants and obligations hereunder,
except for any breach of representations and warranties and indemnities
expressly provided in this Agreement including Paragraph 8.
Without limiting the generality of the foregoing, except for
reliance on representations and warranties and indemnities expressly
provided in this Agreement including Paragraph 8 and all documents
delivered to Purchaser at Closing. Purchaser shall perform and rely solely
upon its own investigation concerning its intended use of the Property,
and the Property's fitness therefor. Purchaser further acknowledges and
agrees that Seller's cooperation with Purchaser whether by providing the
Property documents or permitting inspection of the Property, shall not be
construed as any warranty or representation, express or implied, of any
kind with respect to the Property, or with respect to the accuracy,
completeness, or relevance of the due diligence documents, provided that
the foregoing shall not be a limitation or modification of the
representations and warranties and indemnities expressly provided in this
Agreement including Paragraph 8 all documents delivered to Purchaser at
Closing.
(b) Indemnity. For the purposes of this Paragraph 19(b), the term
"Claims" shall mean any and all claims, obligations, liabilities, causes
of action, suits, debts, liens, damages, judgments, losses, demands,
orders, penalties, settlements, costs and expenses (including, without
limitation, attorneys' fees and any and all costs and expenses related to,
whether directly or indirectly, any and all clean-up, remediation,
investigations, monitoring, abatement, mitigation measures, fines or
removal with respect to Hazardous Materials) of any kind or nature
whatsoever. Each and every provision of this Paragraph 19(b) shall survive
the Closing. Purchaser acknowledges that but for Purchaser's agreement to
each and every provision of this Paragraph 19(b), Seller would not have
entered into this Agreement. Purchaser, on behalf of itself, its
successors, assigns and successors-in-interest ("Successors"), hereby
agrees to indemnify, defend (with legal counsel selected by Seller) and
hold Seller and its Successors harmless from any and all Claims resulting
from, related to, or based upon, whether directly or indirectly: (i) the
breach by Purchaser of any representation, warranty, covenant or
obligation contained in this Agreement or in any other document delivered
by Purchaser at Closing; and (ii) any Claim or Claims, if the basis of
such Claim or Claims arose on or after the Closing Date except as noted in
subparagraph (iv), and if the basis of such Claim or Claims arose from, is
based upon, relates to or pertains to, directly or indirectly, the
operation, management and use of the Property; (iii) any Claim or Claims
which Claim or Claims (or the basis for which) arose from, is based upon,
relates to or pertains to, directly or indirectly, any act or omission of
Purchaser; and (iv) any Claim or Claims that relate to the condition of
the Property or any defects therein, regardless of whether said condition
or the cause of the same arose either before or after the Closing Date,
including any judgment, order or settlement under or otherwise pursuant to
the lawsuit. Each and every provision of this
24
paragraph shall survive the Closing and but for Purchaser's agreement to
each and every provision of this Paragraph 19(b), Seller would not have
executed this Agreement.
(c) Release and Section 1542 Waiver. Except for Claims for
Seller's breach of representations and warranties of Seller provided in
this Agreement including Paragraph 8 and the Closing documents delivered
to Purchaser at Closing, Purchaser for itself and on behalf of each of its
Successors (collectively, the "Releasors") by this general release of
known and unknown claims (this "Release") hereby irrevocably and
unconditionally release and forever discharge Seller and each of its
Successors (collectively, the "Releasees") or any of them, from and
against any and all Claims of any kind or nature whatsoever, WHETHER KNOWN
OR UNKNOWN, suspected or unsuspected, fixed or contingent, liquidated or
unliquidated which any of the Releasors now have, own, hold, or claim to
have had, owned, or held, against any of the Releasees arising from, based
upon or related to, whether directly or indirectly any facts, matters,
circumstances, conditions or defects (whether patent or latent) of all or
any kinds, related to, arising from, or based upon, whether directly or
indirectly, the Property, including without limitation the presence of
Hazardous Materials in, on, about or under the Real Property or which have
migrated from adjacent lands to the Real Property or from the Property to
adjacent lands.
Except for Claims for Seller's breach of representations and
warranties of Seller provided in this Agreement including Paragraph 8 and
representations and warranties in the documents delivered to Purchaser at
Closing, Releasors hereby further agree as follows:
(i) Releasors acknowledge that there is a risk that
subsequent to the execution of the Release set forth herein,
Releasors may discover, incur, or suffer from Claims which were
unknown or unanticipated at the time this Release is executed,
including, without limitation, unknown or unanticipated Claims
which, if known by Releasors on the date this Release is being
executed, may have materially affected Releasors' decision to
execute this Release. Releasors acknowledge that Releasors are
assuming the risk of such unknown and unanticipated Claims and agree
that this Release applies thereto. Releasors expressly waive the
benefits of Section 1542 of the California Civil Code, which reads
as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
(ii) Releasors represent and warrant that Releasors
have been represented by independent counsel of Releasors' own
choosing in connection with the preparation and review of the
Release set forth herein, that Releasors have specifically discussed
with such counsel the meaning and effect of this Release and that
Releasors have carefully read and understand the scope and
25
effect of each provision contained herein. Releasors further
represent and warrant that Releasors do not rely and have not relied
upon any representation or statement made by any of the Releasees or
any of their representatives, agents, employees, attorneys or
officers with regard to the subject matter, basis or effect of this
Release.
(iii) Releasors represent and warrant to Releasees that
Releasors have not and shall not assign or transfer or purport to
assign or transfer any Claim or Claims or any portion thereof or any
interest therein, and agree to indemnify, defend, and hold the
Releasees harmless from and against any Claim or Claims based on or
arising out of, whether directly or indirectly, any such assignment
or transfer, or purported assignment or transfer.
20. Assignment. This Agreement and Purchaser's rights, duties, and
obligations hereunder may not be delegated, transferred, or assigned by
Purchaser without the prior written consent of Seller, and any assignee or
transferee proposed by Purchaser shall expressly assume all of Purchaser's
duties, liabilities and obligations under this Agreement by written instrument
delivered to Seller. Notwithstanding the foregoing to the contrary, this
Agreement, and Purchaser's rights and duties hereunder, may be freely assigned
and transferred to an entity managed or controlled by Purchaser. In the event of
any such transfer or assignment, Seller shall look solely to such transferee or
assignee for the performance of all obligations, covenants, conditions, and
agreements imposed upon Purchaser pursuant to the terms of this Agreement. For
purposes of this Paragraph 20, the term "control" shall mean a twenty percent
(20%) ownership in the applicable entity. Seller shall have the right to
transfer all or any portion of the Property to its constituent members and
principals prior to the Closing and such transferees of the Property shall take
the Property subject to the obligations of Seller under this Agreement.
21. Broker's Commission. Upon the Closing, and only in the event of
Closing, Seller shall pay to ▇▇▇▇▇ & ▇▇▇▇▇ ("Broker") in cash or its equivalent
a real estate sales commission pursuant to a separate agreement between Seller
and Broker. Broker does hereby agree that, in the event the sale contemplated
hereby is for any reason not consummated, then no commission shall have been
earned, and none shall be payable. Seller shall and does hereby indemnify and
hold harmless Purchaser from and against any claim, whether or not meritorious,
for any real estate sales commission, finder's fees, or like compensation in
connection with the sale contemplated hereby and arising out of any act or
agreement of Seller, including any claim asserted by Broker. Likewise, Purchaser
shall and does hereby indemnify and hold harmless Seller from and against any
claim, whether or not meritorious, for any real estate sales commission,
finder's fees, or like compensation in connection with the sale contemplated
hereby and arising out of any act or agreement of Purchaser, except any such
claim asserted by Broker. This Paragraph 21 shall survive the Closing or any
termination of this Agreement.
22. Notices. Wherever any notice or other communication is required or
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by overnight courier, by hand, facsimile transmission or sent
by U.S. certified mail, return receipt requested, postage prepaid, to the
addresses set out below or at such other addresses as are specified by written
notice delivered in accordance herewith:
26
PURCHASER: Triple Net Properties, LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
SELLER: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC
c/o ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC
c/o Mr. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice or other communication (i) mailed as hereinabove provided shall be
deemed effectively given or received on the third (3rd) business day following
the postmarked date of such notice or other communication, (ii) sent by
overnight courier or by hand shall be deemed effectively given or received on
the date of delivery, and (iii) sent by facsimile transmission shall be deemed
effectively given or received on the first business day after the date of
transmission of such notice and confirmation of such transmission.
23. Possession. Seller shall grant possession of the Property to
Purchaser on the date of Closing, subject only to the Leases and the Permitted
Exceptions.
24. Time Periods. If the time period by which any right, option, or
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
27
25. Survival of Provisions. All covenants, warranties, and agreements
set forth in this Agreement shall survive the execution or delivery of any and
all deeds and other documents at any time executed or delivered under, pursuant
to, or by reason of this Agreement, and shall survive the payment of all monies
made under, pursuant to, or by reason of this Agreement, subject to the survival
time limitation provisions set forth in Paragraph 8 above.
26. Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
27. Authorization. Purchaser represents to Seller that this Agreement
has been duly authorized and executed on behalf of Purchaser and constitutes the
valid and binding agreement of Purchaser, enforceable in accordance with its
terms, and all necessary action on the part of Purchaser to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (i) be in
violation of Purchaser's Articles of Organization or Operating Agreement, (ii)
to the best of Purchaser's knowledge, conflict with or result in the breach or
violation of any law, regulation, writ, injunction or decree of any court or
governmental instrumentality applicable to Purchaser, or (iii) constitute a
breach of any evidence of indebtedness or agreement to which Purchaser is a
party or by which Purchaser is bound.
28. General Provisions. No failure of either party to exercise any power
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. To facilitate the execution and delivery of this Agreement,
the parties may execute and exchange counterparts of the signature pages by
facsimile, and the signature page of either party to any counterpart may be
appended to any other counterpart. The headings inserted at the beginning of
each paragraph are for convenience only, and do not add to or subtract from the
meaning of the contents of each paragraph. The exhibits attached to this
Agreement are an integral part of this Agreement and are hereby incorporated
herein by this reference. This Agreement shall be construed and interpreted
under the laws of the State of California. Except as otherwise provided herein,
all rights, powers, and privileges conferred hereunder upon the parties shall be
cumulative but not restrictive to those given by law. All personal pronouns used
in this Agreement, whether used in
28
the masculine, feminine, or neuter gender shall include all genders, and all
references herein to the singular shall include the plural and vice versa.
29. Effective Date. The "effective date" of this Agreement shall be
deemed to be the date this Agreement is fully executed by both Purchaser and
Seller and both Purchaser and Seller have received a fully executed original
counterpart of this Agreement.
30. Tax-Deferred Exchange. Each party, including each of the Co-Tenants,
agrees to reasonably cooperate with the other party should a party elect to
purchase or sell (as applicable) the Property or any portion thereof as part of
a like-kind exchange under Internal Revenue Code Section 1031. Such cooperation
may include consenting to the assignment of all or a portion of this Agreement
to a third party qualified intermediary or exchange accommodation titleholder
("EAT") or consenting to the substitution of such third party intermediary or
EAT acting as the Purchaser or Seller, as applicable, and the execution of such
documents as may be reasonably necessary to complete the exchange in accordance
with applicable laws and regulations, provided that no such assignment to or
substitution of an intermediary shall relieve the party to the Agreement seeking
to effect such exchange of its obligations and liabilities under this Agreement.
Buyer and Seller agree that the consummation of the Closing is not predicated or
conditioned upon the completion of such an exchange and such an exchange shall
not delay the Closing. No party shall incur any additional liability or
financial obligation as a consequence of the other's contemplated exchange and
the cooperating party shall not be required to take title to any property other
than the Property in connection with the other party's consummation of such
exchange. Seller is in the process of transferring the Property to its
constituent members and at Seller's request at any time prior to the Closing
Date, Purchaser shall execute an amended and restated Agreement for the Purchase
and Sale of the Property that reflects a revised ownership of the Property. Each
and every provision and condition of this Paragraph shall survive the Closing.
31. Property Distribution. SF III-Broadway, LLC, a Delaware limited
liability company, KCI-Broadway, LLC, a Delaware limited liability company,
SDM-Broadway, LLC, a Delaware limited liability company, Belmont-Broadway, LLC,
a Delaware limited liability company, ▇▇▇▇▇-▇▇▇▇▇▇-Broadway, LLC, a Delaware
limited liability company, Italian Pavillions-Broadway, LLC, a Delaware limited
liability company, and Kasun-Broadway, LLC, a Delaware limited liability company
(each a "Co-Tenant", and together with ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC, the
"Co-Tenants"), are parties to this Agreement because (i) Seller is in the
process of distributing an undivided interest to each of the Co-Tenants, as set
forth in Section 20 hereof, and (ii) to the extent, prior to the Closing, each
Co-Tenant actually receives an interest in the Property in accordance with such
distribution, such Co-Tenant will be a record owner of the Property together
with ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC (with respect to any retained interest in the
Property). Therefore:
(a) all references to Seller in this Agreement is also a reference
to the Co-Tenants (to the extent a Co-Tenant actually receives an interest
in the Property), individually and collectively, with respect to their
undivided interest in the Property;
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(b) nothing in this Agreement shall bar or otherwise prohibit ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC, from completing a distribution of the Property to the
Co-Tenants or any of them;
(c) a distribution of the Property to each of the Co-Tenants and
the definition of Seller as set forth herein (specifically, the inclusion
of each of the Co-Tenants as a Seller) shall not alter, modify or affect
in any way any of the obligations, covenants, representations or
warranties of Purchaser; and
(d) each and every obligation of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC is also an
obligation of each and all of the Co-Tenants that actually receive an
interest in the Property.
Nothing in this Section 31 shall be construed as establishing a joint venture or
partnership between ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC and any or all of the Co-Tenants, or
a joint venture or partnership between any of the Co-Tenants amongst themselves.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, LLC,
a California limited liability company
By: Foxfire, L.L.C., an Arizona limited
liability company, its Manager
By: Milro Corporation, an Arizona
corporation, its Manager
BY: __________________________
Name: ________________________
Title: _______________________
SF III-BROADWAY,
a Delaware limited liability company
By: Milro-Broadway, Inc., a Delaware
corporation,
Its Manager
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By: ______________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Vice President and Secretary
KCI-BROADWAY, LLC,
a Delaware limited liability company
By: Milro-Broadway, Inc., a Delaware
corporation,
Its Manager
By: _____________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Vice President and Secretary
SDM-BROADWAY, LLC
a Delaware limited liability company
By: Milro-Broadway, Inc., a Delaware
corporation,
Its Manager
By: _____________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Vice President and Secretary
BELMONT-BROADWAY, LLC,
a Delaware limited liability company
By: Milro-Broadway, Inc., a Delaware
corporation,
Its Manager
By: _____________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Vice President and Secretary
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, LLC,
a Delaware limited liability company
By: Milro-Broadway, Inc., a Delaware
corporation,
Its Manager
By: _______________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Vice President and Secretary
ITALIAN PAVILLIONS-BROADWAY, LLC,
a Delaware limited liability company
By: Milro-Broadway, Inc., a Delaware
corporation,
Its Manager
By: _______________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Vice President and Secretary
KASUN-BROADWAY, LLC,
a Delaware limited liability company
By: Milro-Broadway, Inc., a Delaware
corporation,
Its Manager
By: _________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Vice President and Secretary
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"PURCHASER":
TRIPLE NET PROPERTIES, LLC,
a Virginia limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
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