Exhibit 10.29
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is entered into as
of the 21 day of August, 1999, by and among Xxxxxxx-Xxxxxxx Company, a
California Corporation ("Seller"), and Lincoln Property Company Commercial,
Inc., a Texas Corporation, and/or its assigns ("Buyer") and is as follows:
Terms and Conditions of Sale
1. Sale. Seller agrees to sell and convey to Buyer "As Is" (as defined
in paragraph 26 below), and Buyer agrees to purchase from Seller "As Is", for
the purchase price set forth below, the land and buildings and other real
property improvements thereon, and easements, entitlements, privileges, and
other appurtenances thereto, located at 0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx, A.P.N. 97-45-40, comprising approximately 14.19 acres,
as set forth in Exhibit "A" attached hereto, with certain easements as set forth
in the Preliminary Report as hereinafter defined (the "Property"), on all of the
terms and conditions set forth in this Agreement. There is no personal property
associated with this sale except as specifically set forth in this Agreement.
2. Purchase Price and Terms of Payment. The Purchase Price for the
Property shall be Seventeen Million Five Hundred Thousand and no/100 Dollars
($17,500,000.00) (the "Purchase Price").
2.1. Within one (1) business day after the date hereof, Buyer
shall deposit with Escrow Holder (as defined below) a deposit of One Million and
no/100 Dollars ($1,000,000.00) to be placed into an interest-bearing account,
with interest for the benefit of Buyer's application to the Purchase Price
("Deposit").
2.2 On or before the Closing Date (as defined below), Buyer
shall deposit with Escrow Holder the balance of the Purchase Price, as well as
Buyer's share of closing costs.
3. Escrow and Closing.
3.1. Opening of Escrow. Within one (1) business day after the
date hereof the parties shall open escrow with Alliance Title Company, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 (the "Escrow Holder"), escrow officer,
Xxx Xxxxxxx, by the deposit of a copy of this Agreement with the Escrow Holder.
Seller and Buyer agree to prepare and execute such joint escrow instructions as
may be necessary and appropriate to close the
transaction in accordance with the terms of this Agreement, provided that
neither party shall be obligated to execute escrow instructions that are
inconsistent with the terms of this Agreement. Should said instructions fail to
be executed as required, Escrow Holder shall be and hereby is directed to close
escrow pursuant to the terms and conditions of this Agreement.
3.2. Close of Escrow. The closing of the escrow ("Close of
Escrow"), which shall mean the date on which the deed transferring title is
recorded (the "Closing Date"), and shall occur on or before September 15, 1999
(the "Final Closing Date").
3.3 Delivery of Seller's Documents. On or before the Closing
Date, Seller shall deposit with Escrow Holder all of the following: (i) the Deed
described in Paragraph 5.1.1 below; (ii) the Assignment of Permits described in
Paragraph 5.1.3 below, if any; (iii) Seller's escrow instructions (or an
original set of joint escrow instructions executed by Seller) sufficient to
enable Escrow Holder to close the escrow in accordance with the terms of this
Agreement; (iv) the FIRPTA affidavit and other documents described in Paragraph
5.3 hereof.
3.4. Delivery of Buyer's Documents and Funds. On or before the
Closing Date, Buyer shall deposit with Escrow Holder all of the following: (i)
balance of the purchase price as well as Buyer's share of closing costs; (ii)
Buyer's escrow instructions sufficient to enable Escrow Holder to close the
escrow in accordance with the terms of this Agreement; and (iii) any other
documents, records, agreements, or funds called for hereunder that have not
previously been delivered.
3.5. Prorations. Escrow holder shall prorate the following
between the parties as of the Close of Escrow: real estate taxes and
assessments. All prorations shall be based on a thirty (30) day month.
3.6. Utilities and Service Contracts. Seller shall cause all
meters read and final bills rendered for all utilities and Service Contracts
servicing the Property, including, without limitation, water, sewer, gas,
electricity, and elevator and HVAC Service Contracts for the period to and
including the day preceding the Close of Escrow, and Seller shall pay such bills
and terminate such Service Contracts effective as of Close of Escrow. Buyer
shall arrange for utility service and Service Contracts to the Property after
the Closing Date.
3.7. Closing Costs. Each party shall pay its own attorney's
fees associated with the negotiation of this Agreement. Recording and Escrow
fees and the cost of the Title Policy (as hereinafter defined) shall be paid by
Seller. The County transfer tax shall be paid by Seller and the City transfer
tax shall be paid fifty percent (50%) each by Buyer and Seller. All other
closing costs not specifically allocated hereafter to Buyer or Seller shall be
divided and paid fifty percent (50%) each by Buyer and Seller.
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4. Title and Other Contingencies.
4.1. Title to be Conveyed. Seller shall convey a fee title
interest in the Property, by grant deed to Buyer at Close of Escrow, subject
only to the Approved Exceptions (as hereinafter defined).
4.2. Title Insurance and Survey. Buyer acknowledges the
receipt of that certain Preliminary Title Report No. 99006567-004, issued by
Alliance Title, dated July 15, 1999 (the "Title Report") and the survey prepared
by Xxxx & Xxxxxx, dated July 16, 1999 (the "Survey") concerning the Property.
Buyer hereby accepts the Title Report, except for items 12 and 14 of Schedule B
thereof, and the Survey. All of the fourteen (14) exceptions to title set forth
in the Title Report with the exception of items 12 and 14 of Schedule B thereof,
shall be hereinafter collectively referred to as the "Approved Exceptions."
4.3. [Intentionally omitted]
4.4. Form of Title Policy. Upon the Close of Escrow, Title
Company shall issue its ALTA Extended Coverage owner's policy of title insurance
(the "Title Policy") in the face amount of the Purchase Price, insuring that fee
title to the Property is vested in Buyer subject only to the Approved
Exceptions. Seller shall pay that portion of the premium which would be payable
for a CLTA Standard policy without extended coverage and Buyer shall pay the
excess premium. Buyer shall also pay for the cost of any endorsements or further
coverage in excess of the cost of the Title Policy, provided, however, that
Seller shall pay the cost of any endorsements which Seller agrees to cause the
Title Company to issue to cure title exceptions which are disapproved by Buyer.
The unwillingness of Title Company to issue the Title Policy shall not
constitute an event of default hereunder by Seller, except to the extent such
unwillingness is solely caused by the breach of any Seller's obligations
hereunder, but shall entitle the Buyer to terminate this Agreement pursuant to
Paragraph 5.6 hereof, if the Title Company is unable to deliver the Title Policy
except for any special endorsements that may be requested by Buyer. Seller
hereby covenants and agrees that from and after the date of this Agreement,
Seller shall not sell, assign, encumber, or create any right, title, or interest
in the Property, or any part thereof, or permit to exist any lien, encumbrance,
or charge thereon, not shown on the Preliminary Report, without the prior
written consent of Buyer. Seller will give the necessary information, at no cost
to Seller, for the issuance of an ALTA policy.
4.5. [Intentionally omitted]
4.6. Delivery of Certain Documents. Seller has delivered to
Buyer true copies of the following documents: (i) Post-closure report to San
Xxxx Fire Department Permit No. CR 361012595, prepared by C.H.A.S.E. dated July
1995 and a Phase II Investigation Report dated September 11, 1992 by
Xxxxxxx-Xxxxxxx Environmental; (ii) copies of all maintenance agreements and/or
service contracts in effect relating to the
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Property (the "Service Contracts"); (iii) each permit issued by any governmental
entity(ies) having jurisdiction over the Property (the "Permits"), if any, and
in Seller's possession.
4.7. [Intentionally omitted]
5. Buyer's Conditions to Close. For Buyer's sole benefit, Buyer's
obligation to complete the purchase of the Property is subject to satisfaction
of the following condition at or prior to the Closing Date, unless waived by
Buyer in writing:
5.1. Delivery of Title Documents.
5.1.1. Grant Deed. Seller shall have executed,
acknowledged and delivered into Escrow for recording and subsequent delivery to
Buyer, a grant deed ("Deed") to the Property in recordable form, conveying
Seller's fee title to the Property to Buyer, subject only to the Approved
Exceptions.
5.1.2. [Intentionally omitted]
5.1.3. Assignment of Permits. Seller shall have
executed, acknowledged and delivered into Escrow for delivery to Buyer, an
assignment of all of Seller's right, title, and interest, in and to each of the
Permits, if any and/or if assignable and Seller's intangible rights to the
Property, if any exist (the "Assignment of Permits").
5.1.4. [Intentionally omitted]
5.2. Title Policy. Title Company shall be irrevocably
committed to issue the Title Policy.
5.3. FIRPTA Affidavit. Seller shall have executed and
delivered to Escrow Holder an affidavit satisfying the requirements of Section
1445 of the Internal Revenue Code of 1986, as amended (the "FIRPTA Affidavit"),
as well as the appropriate California documents contemplated under California
Revenue and Tax Code Sections 18805 and 26131.
5.4. Seller's Performance. Seller shall have performed all of
the other material terms and conditions to be performed by Seller prior to the
Close of Escrow under the terms of this Agreement, including but not limited to
that Seller's representations and warranties in Paragraph 8 and elsewhere in
this Agreement, if any, are true and correct as of the Close of Escrow.
5.5. Condition of Property. Except as otherwise provided in
Paragraph 10, the physical condition of the Property shall be substantially the
same on the day of Closing as at the date of execution of this Agreement, unless
caused by Buyer or its agents.
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5.6. Termination of Escrow. If any condition described in this
Paragraph 5 is not timely satisfied (or waived by Buyer in writing) on or prior
to the Close of Escrow, then (i) the Escrow shall terminate immediately upon
receipt by Escrow Holder of notification from Buyer of the failure of such
condition, and Buyer and Seller shall share equally any applicable escrow
cancellation fees, (ii) Escrow Holder shall return all instruments and documents
deposited into the Escrow to the parties depositing the same, (iii) Escrow
Holder shall return to Buyer any funds in Escrow Holder's possession deposited
by Buyer including the Deposit to the extent delivered to Escrow by Buyer, and
interest collected thereon, less only Buyer's share of applicable escrow
cancellation fees, if any, and (iv) neither party shall have any further rights
or obligations under this Agreement, except to the extent that the failure of a
condition also constitutes a default by Seller with respect to any of Seller's
covenants or obligations under this Agreement and in that case, Buyer shall have
the rights and remedies set forth in Paragraph 12.
6. Seller's Conditions to Close. For Seller's sole benefit, Seller's
obligation to complete the sale of the Property is subject to satisfaction of
the following conditions at or prior to the Closing Date, unless waived by
Seller in writing:
6.1. Delivery of Documents. Buyer shall have timely performed
its obligations under Paragraph 3.4 hereof.
6.2. Receipt of Purchase Price. Title Company, and/or Seller,
shall have received the Purchase Price for the Property.
6.3. Buyer's Performance. Buyer shall have performed all of
the other material terms and conditions to be performed by Buyer prior to the
Close of Escrow under the terms of this Agreement, including but not limited to
that Buyer's representations and warranties in Paragraph 7 are true and correct
as of the Close of Escrow.
6.4. Termination of Escrow. If any condition described in this
Paragraph 6 is not timely satisfied (or waived by Seller in writing) on or prior
to Closing Date and the Paragraph 5 conditions have been satisfied, (i) the
Escrow shall terminate immediately upon receipt by Escrow Holder of notification
from Seller of the failure of such condition, (ii) Escrow Holder shall return
all instruments and documents deposited into the Escrow to the parties
depositing the same, (iii) neither party shall have any further rights or
obligations to the other under this Agreement, except to the extent that a
failure of a condition also constitutes a default by Buyer with respect to any
of Buyer's covenants or obligations under this Agreement, and (iv) the
provisions of Paragraph 13 apply.
7. Buyer's Representations and Warranties. Buyer hereby represents and
warrants to Seller, effective both as of the date of this Agreement and as of
Close of Escrow:
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7.1. Buyer's Due Organization and Authorization. Buyer and
those individuals and entities signing this Agreement on behalf of Buyer,
respectively have the right, power, and authority to make and perform their
obligations under this Agreement. The execution, delivery, and performance of
this Agreement does not violate any contract, agreement, or commitment to which
any party comprising Buyer is a party or by which any party comprising Buyer is
bound.
7.2. Inspection and Feasibility. Buyer represents, warrants
and acknowledges that prior to the date of execution of this Agreement, Buyer
conducted all inspections and investigations with respect to the Property that
Buyer deemed necessary and that Buyer waives, denies, and disclaims any
inspection or feasibility contingency with respect to the Property.
7.3. Seller to Deliver Documents. Except for the documents set
forth in Paragraph 3.3, Buyer represents, warrants and acknowledges that Seller
has delivered all documents required by Buyer pertaining to the Property.
7.4. Zoning. Buyer represents, warrants and acknowledges that
it accepts the zoning and the status of all permits regulatory requirements of
the Property.
7.5. Buyer's Knowledge. If Buyer has knowledge of the
incorrectness of any representation or warranty made by Seller in the Agreement
prior to Close of Escrow and fails to so notify Seller prior to the Closing
Date, then such representation or warranty shall be deemed to be stricken from
this Agreement ab initio and shall be of no further force or effect. Seller
shall have the right to qualify such representations and warranties with any
information it receives concerning such representations and warranties after the
date of this Agreement by written notice to Buyer. Seller shall not take or
knowingly permit any action after the date of this Agreement which would cause
any representation or warranty made by Seller in the Agreement to be untrue or
inaccurate, and Seller's taking of or knowingly permitting any such action shall
be a breach of this Agreement by Seller. If Seller qualifies a representation
such that it materially affects the value of the Property, Buyer's sole remedy
is to terminate this Agreement pursuant to Paragraph 5.6.
8. Seller's Representations and Warranties. Seller hereby represents
and warrants to Buyer, effective both as of the date of this Agreement and as of
Close of Escrow:
8.1. Seller's Due Organization and Authorization. Seller and
those individuals and entities signing this Agreement on behalf of Seller,
respectively have the right, power, and authority to make and perform their
obligations under this Agreement. The execution, delivery, and performance of
this Agreement does not violate any contract, agreement, judicial order, or
commitment to which any party comprising Seller is a party or by which any party
comprising Seller is bound.
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8.2. No Litigation or Proceeding. Seller represents and
warrants that there is, to its knowledge, no litigation or governmental or
agency investigation or governmental or agency proceeding including condemnation
pending, nor, to the knowledge of Seller, threatened against Seller or the
Property which would impair or adversely affect the property or Seller's ability
to perform its obligations under this Agreement.
8.3. Documents. All documents delivered to Buyer by Seller
pursuant to this Agreement are or will be to Seller's knowledge true and correct
copies of originals, to the extent not the originals thereof, and any and all
information supplied to Buyer by Seller in accordance with this Agreement and
all statements or representations made by Seller herein are and will be to
Seller's reasonable knowledge true, complete, and accurate in all material
respects except as specifically qualified otherwise in this Agreement.
8.4. Tax Withholding. Seller is not subject to tax withholding
in connection with this transaction under the Internal Revenue Code or other
federal or state law. Seller agrees to furnish to Buyer at least ten (10) days
prior to the Close of Escrow appropriate exemption certificates under the
Internal Revenue Code and the California Revenue and Taxation Code.
8.5. Bankruptcy or Insolvency. Seller has not made a general
assignment for the benefit of creditors, filed any voluntary petition in
bankruptcy or suffered the filing of an involuntary petition by its creditors,
suffered the appointment of a receiver to take possession of substantially all
of its assets, suffered the attachment or other judicial seizure of
substantially all of its assets, admitted its inability to pay its debts as they
come due, or made an offer of settlement, extension, or compromise to its
creditors generally.
8.6. No Leases, etc. There are no leases of the Property, no
management or leasing agreements, and to Seller's knowledge no other contracts
or permits that affect the Property other than those provided pursuant to
Paragraph 4.6 of this Agreement.
8.7. Hazardous Materials. To Seller's knowledge and except as
disclosed by Seller to Buyer in writing, there are no Hazardous Materials (as
defined in Paragraph 26 below) located on or under the Property.
8.8. Seller's Knowledge. The term "Seller's knowledge" or
similar phrases, as used in this Agreement, shall refer to the actual, present
knowledge of Xxxxx Xxxxxxxx, V.P. and CFO and Xxxxx Xxxxxxx, CEO for Seller, as
of the date of this Agreement and as of Close of Escrow without any duty of
investigation or inquiry of any kind or nature whatsoever. There are no
individual employees of Seller that to Seller's reasonable knowledge are more
knowledgeable about the Property than the above listed individual.
8.9. Violation of Law: Notices: To Seller's knowledge, no part
of the Property is in violation of any governmental order, regulation, statute,
ordinance, rule or
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restriction dealing with the use, operation, safety or maintenance thereof, and
Seller has received no notices from any governmental authority or insurance
carriers requiring repairs or alterations to the Property.
9. Indemnity. Each party hereby agrees to indemnify, defend, and hold
the other party harmless from and against any and all claims, demands,
liabilities, costs, expenses, damages, and loss (including, without limitation,
attorneys' fees and costs) resulting from any misrepresentation or breach of
warranty made by such party in this Agreement. This indemnity shall continue in
effect and survive Close of Escrow, the waiver of any conditions to Closing set
forth herein, and the conveyance and delivery of title, or, if title is not
transferred pursuant to this Agreement, beyond any termination of this
Agreement, except as otherwise provided in Paragraph 12 below.
10. Risk of Loss. The parties agree in the event that, prior to
Closing, any improvements located on the Property, or any part thereof, are
destroyed or materially damaged, the transaction shall go forward without any
adjustment to the Purchase Price, but Buyer shall be entitled to any available
insurance proceeds resulting from such damage or destruction to be paid to Buyer
by Seller at the Close of Escrow (if received by Seller prior to Close of
Escrow), or after the Close of Escrow by Seller or the insurer ("Insurance
Proceeds") and a credit for Seller's insurance deductible. Seller agrees to
maintain its property damage insurance on the Property up through the Closing
Date.
11. Possession. Seller shall deliver possession of the Property to
Buyer, free and clear of any tenancies or contracts or rights of third parties
not previously approved in writing by Buyer as a part of this Agreement as well
as cleared of all vehicles and personal property upon Close of Escrow.
12. Default. In the event that the sale of the Property fails to close
as a result of a default of Seller, Buyer may, as its sole and exclusive remedy,
elect to either: (a) enforce the terms of this Agreement by action for specific
performance, but with no reduction in the Purchase Price; provided, however,
that no action for specific performance shall compel Seller to commence
litigation or cure or deal with any matters outside of its reasonable control or
expend funds as to such matters; or (b) terminate this Agreement, in which event
the Deposit shall be returned to Buyer, and the parties shall be released from
all further obligations and liability under this Agreement except as otherwise
specifically provided in this Agreement and Buyer's right to seek reimbursement
of its due diligence costs not to exceed One Hundred Thousand and no/100 Dollars
($100,000.00). Under no circumstances of any nature whatsoever shall Buyer have
any right to collect damages, whether actual, punitive, consequential or
otherwise, from Seller under this Agreement except actual damages for breach of
representations or warranties under this Agreement discovered after the Close of
Escrow or covenants expressly intended to survive Close of Escrow. In the event
that the sale of the Property fails to close on or before the Closing Date for
any reason other than default on the part of Seller, or a failure of a Buyer
condition set forth in
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Paragraph 5, Seller shall retain the Deposit and all interest earned thereon as
liquidated damages, it being understood that Seller's actual damages in such
event are difficult to ascertain and that such proceeds represent the parties'
best current estimate of such damages.
13. Liquidated Damages. BY PLACING THEIR INITIALS IMMEDIATELY BELOW,
BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO
FIX ACTUAL DAMAGES IN THE EVENT ESCROW FAILS TO CLOSE ON ACCOUNT OF A DEFAULT BY
BUYER, THAT THE SUM OF BUYER'S DEPOSIT IS THE PARTIES' REASONABLE ESTIMATE OF
SELLER'S DAMAGES IN THE EVENT OF BUYER'S DEFAULT, AND THAT IN THE EVENT BUYER
FAILS TO TIMELY PURCHASE THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT BECAUSE OF A DEFAULT BY BUYER, SELLER SHALL BE RELEASED FROM ITS
OBLIGATION TO SELL THE PROPERTY, AND SELLER SHALL BE ENTITLED TO RETAIN BUYER'S
DEPOSIT AND ALL INTEREST EARNED THEREON AS LIQUIDATED DAMAGES.
SELLER'S INITIALS ___ BUYER'S INITIALS ___
14. No Commissions. Except as to Xxxx X. Xxxxxxxxxx and Xxxxx Xxxxxx of
Xxxxxxx & Xxxxx Commercial, Santa Clara, California ("Broker"), representing
Seller, neither party has had any contact or dealings regarding the Property, or
any communication in connection with the subject matter of this transaction,
through any licensed real estate broker or other person who can claim a right to
a commission or finder's fee as a procuring cause of the sale contemplated
herein. Seller shall be responsible for any commission to Broker. In the event
that any broker or finder other than Broker asserts a claim for a commission or
a finder's fee based upon any contract, dealings, or communication, the party
through whom the broker or finder makes his claim for a commission or fee shall
be responsible for said commission or fee and shall indemnify and hold harmless
as to all claims, liabilities, costs, and expenses (including without limitation
as to attorneys' fees and court costs) suffered or incurred by the other party
in defending against same.
15. Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
16. Attorneys' Fees. In the event either party hereto fails to perform
any of its obligations under this Agreement or in the event a dispute arises
concerning the meaning or interpretation of any provision of this Agreement, the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other party in
enforcing or establishing its rights hereunder, including, without limitation,
court costs and attorneys' fees.
17. Time. Time is of the essence of this Agreement as to each and every
provision hereof.
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18. Notices. All notices or other communications to be given hereunder
shall be in writing and shall be deemed received when personally delivered by
commercial courier, including an overnight courier such as Federal Express, or
upon confirmation of receipt when given by telecopy or facsimile to the
addressee and facsimile number(s) set forth below or otherwise, or three (3)
business days after deposit in the United States certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Seller: Copy to:
Xxxxxxx-Xxxxxxx Company Xxxxx X. Xxxxxxx, Esq.
Stanford Research Park Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxxx 0 Xxxx Xxxxx Xxxxx Xxxxxx, 0xx Xxx.
Xxxx Xxxx, Xxxxxxxxxx 00000-0000 Xxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxxxx Tele: (000) 000-0000
Tele: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
If to Buyer: Copy to:
Lincoln Property Company Xxxxxxx X. Xxxxxx, Esq.
Commercial Inc. Xxxxxx, Sweet & Xxxxxxx
0000 Xxxxxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxx Xxxxxxxxx, XX 00000 Suite 1380
Attention: Xxxx X. Xxxx Xxxxxx, XX 00000
Tele: (000) 000-0000 Tele: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Lincoln Property Company
000 Xxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Tele: (000) 000-0000
FAX: (000) 000-0000
Any party may change its address for the purpose of this paragraph by
giving written notice of such change to the other party in the manner herein
provided.
19. Entire Agreement. This Agreement expresses the entire agreement of
the parties and supersedes any and all previous agreements between the parties
with regard to the Property. There are no other understandings, oral or written,
which in any way alter or enlarge its terms, and there are no warranties or
representations of any nature whatsoever,
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either express or implied, except as set forth herein. Any future modification
of this Agreement will be effective only if it is in writing and signed by the
party to be charged.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
21. Waiver. The waiver by either party of a breach of any provision of
this Agreement shall not be deemed a continuing waiver or a waiver of any
subsequent breach, whether of a like nature or otherwise.
22. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but such counterparts together shall
constitute only one agreement.
23. Headings. The paragraph and subparagraph headings throughout this
Agreement are for convenience and reference only, and the words contained
therein shall not be held to expand, modify, amplify or aid in the
interpretation, construction or meaning of this Agreement.
24. Survival. All representations and warranties by the respective
parties contained herein or made in writing pursuant to this Agreement are
intended to and shall remain true and correct as of the Closing, shall be deemed
material and shall survive the execution and delivery of this Agreement, the
Closing, the delivery of the Grant Deed and the transfer of title, or, if title
is not transferred pursuant to this Agreement, beyond any termination of this
Agreement.
25. Further Assurances. Each party hereto agrees to execute such other
documents or instruments as are necessary or appropriate to effectuate this
Agreement and consummate the transaction provided herein promptly upon request
therefor.
26. "As Is" Clause. EXCEPT AS TO THOSE SPECIFIC REPRESENTATIONS AND
WARRANTIES BY SELLER IN THIS AGREEMENT, BUYER SPECIFICALLY ACKNOWLEDGES THAT
SELLER IS SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN "AS IS WITH ALL
FAULTS" BASIS AND THAT BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES
OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ITS AGENTS, OR BROKERS
AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING WITHOUT LIMITATION: (i) the
quality, nature, adequacy, and physical condition of the Property, including,
but not limited to, the quality, nature, adequacy, and physical condition of
soils, geology and any groundwater, (ii) the existence, quality, nature,
adequacy, and physical condition of utilities serving the Property, (iii) the
development potential of the Property, and the Property's use, habitability,
merchantability, or fitness, suitability, value or adequacy of the Property for
any particular purpose, (iv) the zoning or other legal status of
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the Property or any other public or private restrictions on use of the Property,
(v) the compliance of the Property or its operation with any applicable codes,
laws, regulations, statutes, ordinances, covenants, conditions and restrictions
of any governmental or quasi-governmental entity or of any other person or
entity, (vi) the presence or removal of Hazardous Materials under or about the
Property or the adjoining or neighboring property; and (vii) the condition of
title to the Property. The term "Hazardous Materials" shall mean any hazardous
or toxic materials, substances or wastes, such as (A) those materials identified
in Sections 66680 through 66685 and Sections 66693 through 66740 of Title 22 of
the California Administrative Code, Division 4, Chapter 30, as amended from time
to time, (B) those materials defined in Section 25501 of the California Health
and Safety Code, (C) any materials, substances or wastes which are toxic,
ignitable, corrosive or reactive and which are regulated by any local
governmental authority, any agency of the state of California or any agency of
the United States Government, (D) asbestos, (E) petroleum and petroleum based
products, (F) urea formaldehyde foam insulation, (G) polychlorinated biphenyls
(PCBs), and (H) freon and other chlorofluorocarbons. Buyer further represents
and warrants that it has performed to the extent it deems appropriate
investigations and inspections of the Property, and has satisfied itself to the
extent it deems appropriate as to the condition of the Property and its
suitability for the purposes intended by Buyer. "As Is" shall include but not be
limited to, except as to any representation or warranty set forth in the
Agreement, the Property's present state and condition, including, without
limitation, as to toxic or hazardous materials, and that any and all
improvements and utilities required within the perimeter of the Property
("On-site") and any and all improvements, utilities, and utility extensions
outside the perimeter of the Property ("Off-site") required to serve the
Property, and all costs and expenses thereof, shall be the sole responsibility
of Buyer. In purchasing the Property, Buyer is relying solely upon its own
inspection and investigation of the Property, including, without limitation, as
to toxic or hazardous materials contamination, and except as expressly provided
in or pursuant to this Agreement, not upon any representation, warranty,
statement, study, report, description, guideline, or other information or
material made or furnished by Seller or any of its officers, employees, agents,
brokers, attorneys, or representatives, whether written or oral, express or
implied, of any nature whatsoever.
27. Condition of Property. Buyer acknowledges and understands that
Seller's Broker has disclosed that the Property may be situated within (i) an
Earthquake Fault Zone as so designated under the Xxxxxxx-Xxxxxx Earthquake Fault
Zoning Act, Section 2621 et. seq. of the California Public Resources Code;
and/or (ii) a Seismic Hazards Zone as so designated under the Seismic Hazards
Mapping Act, Section 2690 et. seq. of the California Public Resources Code
(collectively herein referred to as the "Seismic Disclosure Acts"); and (iii) a
100 year flood zone or potentially other special flood hazard area. Buyer
acknowledged that it has had delivered by Seller's agents the Commercial
Property Owner's Guide to Earthquake Safety, published by the State of
California Seismic Safety Commission. Buyer hereby waives any seismic or flood
zone disclosure requirements imposed on Seller by California law.
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28. Limited Liability. Buyer and Seller, on behalf of their respective
partners, directors, officers, representatives, successors, and assigns, hereby
agrees that in no event or circumstance shall any of the partners, members,
directors, officers, representatives or employees of the other party and/or any
related or affiliated entities thereof, have any personal liability under or in
connection with this Agreement, to the other party or its creditors in
connection with Buyer's purchase of the Property, or this Agreement.
29. Confidentiality. Prior to Closing, each party agrees to keep the
terms of this Agreement confidential except that Buyer may disclose the terms
hereof to its consultants and advisors and further as required to be disclosed
in connection with its inspection and development approvals or by applicable
laws and to its investors and lender and prospective tenants.
30. Exclusive Period. Seller agrees not to negotiate with any other
party as a back up offer to the purchase and sale of the Property so long as
Buyer is proceeding with and not in breach of the terms of this Agreement,
except that if unsolicited requests for information occur, Seller may provide an
offering package and if an offer is submitted, Seller will respond to the offer
that the offer, if acceptable, will be considered as a backup offer to this
Agreement.
31. Road Dedication. The Property has a portion of a road known as
Component Drive which will eventually be dedicated to the City of San Xxxx.
Buyer agrees as the owner of the Property to honor this obligation agreed to by
Seller to dedicate to the City of San Xxxx that portion of Component Drive as
set forth in Exhibit B attached hereto.
32. Approval. Upon Buyer's execution of this Agreement, Seller shall
have two (2) business days in which to approve this Agreement. Failure to timely
delivery of an executed agreement by Seller to Buyer shall be deemed rejected
and Buyer's offer will be deemed withdrawn as of the rejection by Seller if no
election by Buyer within two (2) business days thereafter.
33. Business Days. If the final day of any period or any date of
performance under this Agreement falls on a Saturday, Sunday or legal holiday
under the laws of the State of California or the United States, then the final
day of the period or the date of performance shall be extended to the second
consecutive day which is not a Saturday, Sunday or legal holiday.
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Executed as of the date first set forth above.
SELLER BUYER
XXXXXXX-XXXXXXX COMPANY, LINCOLN PROPERTY
a California Corporation COMPANY COMMERCIAL, INC.,
a Texas Corporation
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxx X. Xxxx
----------------------------------- -----------------------------------
By: Xxxxx X. Xxxxxxxx By: Xxxx X. Xxxx
Its: Vice President and Its: Executive Vice President
Chief Financial Officer
By: /s/ W. Xxxxx Xxxxxxx By: /s/ Xxxx X. Xxxx
---------------------------- ----------------------------
Its: President and CEO Its: Executive Vice President
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