PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(hereinafter the "Agreement") is entered into effective March 1, 2006
(hereinafter the "Effective Date"), by and between Gull Avenue, LLC, a Delaware
limited liability company, or its Assignee (hereinafter the "Buyer") and
XXXXXXXXXX REALTY GROUP, INC. A NEVADA CORPORATION (hereinafter the "Seller"),
for the purposes of setting forth the agreement of the parties and of
instructing FIRST AMERICAN TITLE INSURANCE COMPANY (hereinafter the "Escrow
Agent" and/or "Title Company") with respect to the transaction contemplated by
this Agreement, and is based upon the following facts and representations:
R E C I T A L S
A. Seller owns that certain real property consisting of
approximately 7.43 acres and commonly known as 000 Xxxxxx
Xxxxxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxx of Xxx Xxxxx, Xxxxx xx
Xxxxxxxxxx, 00000, and more particularly described on Exhibit
"A" attached hereto (hereinafter the "Real Property").
B. The Real Property is an undeveloped parcel of land situated in
the "East of 101" area of South San Francisco, California. The
land is adjacent to Gull Avenue and has ingress and egress
easements (the "Easements") to Eccles Avenue, South San
Francisco, California. The Real Property has no tenants and is
not occupied or used by Seller.
C. Buyer wishes to purchase the "Property" (as hereinafter
defined) and Seller wishes to sell the Property on the price
and terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, Seller and Buyer agree as follows:
AGREEMENT
1. ASSETS INCLUDED IN SALE
Seller hereby agrees to sell, transfer and convey to Buyer, and Buyer
hereby agrees to purchase from Seller, the following (collectively being, the
"Property"):
(a) Real Property. The fee simple interest in that certain parcel of
real property commonly known as 000 Xxxxxx Xxxxxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxx
of Xxx Xxxxx, Xxxxx xx Xxxxxxxxxx, 00000, and situated on approximately 7.43
acres, being Assessors Parcel Number 000-000-000 and more particularly described
in Exhibit "A" attached hereto.
(b) Appurtenances. Any and all rights, privileges, and easements
appurtenant to or used in connection with the Real Property, including, without
limitation, all minerals on and under the Real Property, all oil, gas or
hydrocarbon drilling rights, as well as all development rights and credits, air
rights, solar rights, water, water rights, whether within or without the Real
Property, and any easements, rights-of-way, strips and gores or other
appurtenances used in connection with the beneficial use and enjoyment of the
Real Property, including, but not limited to, all existing licenses,
authorizations, approvals, zoning permits, together with any development
permits, subdivision map applications, surveys, or similar rights which may
accrue to the benefit of the Real Property from the date this Agreement is
entered into until the closing date, as the same may be incidental to or
appurtenant to the Real Property (hereinafter, collectively, the
"Appurtenances");
(c) Improvements. There are no known improvements to the Real Property;
however, to the extent that any such improvements exist, Seller shall convey any
and all buildings and improvements together with fixtures and articles of
attached or appurtenant to or used in connection with the Real Property,
including, but not limited to, all apparatus, equipment and appliances used in
connection with the operation and occupancy thereof and facilities used to
provide any utility services, ventilation, or other services thereto, together
with all plumbing, lighting, electrical, and related fixtures, to the extent
that they are located in or on the premises herein described (all of which
hereinafter, collectively, the "Improvements").
(d) Personal Property. Any and all personal property, equipment and
supplies of Seller located on or in or used in connection with the operation of
the Real Property, if any. The personal property that will be transferred by
Xxxx of Sale at the closing is more fully set forth on a completed inventory
list attached hereto as Exhibit "B" (hereinafter the "Personal Property").
(e) Intangibles. Any and all interest of Seller in intangible property
now or hereafter owned by Seller and used in connection with the Property,
including, but not limited to, any and all leases and/or rights of first refusal
as the same may be connected with the Property, together with any and all
applications, architectural, site landscaping or other permits, maps, approvals,
authorizations and other entitlements, surveys, licenses, studies, transferable
guarantees and warranties covering the Real Property and/or Improvements,
contract rights (except for those contracts described in Section 1(g) hereof),
books, records, reports, test results, environmental assessments, transferable
utility contracts or other rights that may currently exist or which may
hereafter arise (hereinafter, collectively, the "Intangibles"). Seller shall
convey all Intangibles, including, but not limited to, certificates of
occupancy, licenses, authorizations, approvals, permits, and signage rights
relating to or affecting the Property to the extent the same may be owned or
controlled by Seller and are assignable to Buyer.
(f) Leases and Security Deposits. There are no known tenants in
possession or tenants with a contractual right to possession.
(g) Other Contracts. Seller shall assign such maintenance contracts,
service contracts, and similar matters as Buyer may choose to assume. Buyer
shall determine which contracts Buyer wishes to assume and Buyer and Seller
shall execute an Assignment of Service Contracts, Warranties, Guaranties and
Other Intangibles as to said contracts in the form substantially similar to that
set forth on Exhibit "G" attached hereto. As to all maintenance, service, and
similar contracts which Buyer does not wish to assume, Seller shall terminate
said contracts effective as of the "Closing Date" (as hereinafter defined) at no
cost or expense to Buyer. The tenant leases, together with the maintenance,
service, and related contract rights that Buyer elects to assume are
hereinafter, collectively, the "Contract Rights."
All of the items described in subsections (a), (b), (c), (d), (e), (f),
and (g) above are intended to be consistent with each other and in furtherance
of the parties objective that Buyer is purchasing all of Seller's interests in
the Property itself so as to own and control such interests to the same extent
that Seller owns and controls them except as to those rights are non-assignable,
related to adjacent properties, or specifically excepted by other provisions of
this Agreement.
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2. PURCHASE PRICE.
The Purchase Price of the Property is Ten Million Five Hundred Thousand
Dollars ($10,500,000) (hereinafter the "Purchase Price"). The Purchase Price
shall be paid all cash at the "Closing" (as hereinafter defined).
3. BUYER'S DEPOSIT.
(a) On or before the fifth (5th) business day after the Effective Date
Buyer shall cause immediately available funds to be deposited into "Escrow" (as
hereinafter defined) in the amount of One Hundred Thousand Dollars ($100,000)
(hereinafter together with all interest thereon, the "Deposit") which Escrow
Agent shall hold in a non-commingled trust account for the benefit of Buyer, and
which shall be invested in insured money market accounts, certificates of
deposit, United States Treasury Bills or such other instruments as Buyer may
instruct from time to time. If the sale of the Property is not consummated
because of the termination of this Agreement by Buyer in accordance with any
right to so terminate provided herein, or the failure of any "Buyer's
Contingencies" (as hereinafter defined), or for any other reason except for a
default under this Agreement solely on the part of Buyer, Buyer shall notify
Escrow Agent in writing of the same, and the Deposit shall be immediately
returned to Buyer.
(b) After the expiration of the contingency periods set forth in
Sections 5 and 6 below, the Deposit shall become non-refundable and shall be
applied to the Purchase Price at Closing. However, if Escrow and this
transaction fail to close solely as the result of Buyer's material breach of
this Agreement after the expiration of the contingency periods set forth in
Sections 5, 6 and 8 below, and Seller is ready, willing and able to perform its
obligations hereunder, Seller shall be relieved of its obligation to convey
title to the Property and, as Seller's sole and exclusive remedy, shall be
entitled to the Deposit (exclusive of interest and dividends earned thereon) as
liquidated damages.
THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE
EVENT OF A DEFAULT BY BUYER, WOULD BE EXTREMELY DIFFICULT OR
IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR
INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT
AMOUNT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE
PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS
SELLER'S EXCLUSIVE REMEDY AGAINST BUYER, AT LAW OR IN EQUITY,
IN THE EVENT OF A DEFAULT UNDER THIS AGREEMENT SOLELY ON THE
PART OF BUYER. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED
DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE
MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT
TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. SELLER
HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION
3389.
Seller: _______ Buyer: ______
(c) Notwithstanding any provision of this Agreement to the contrary but
subject to Section 21(l) hereof, in the event this Agreement terminates for any
reason within the first forty-five (45) days from the Effective Date of this
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Agreement, all deposits, including interest which are held in Escrow, shall be
refunded to Buyer (together with interest thereon, if any) and neither Buyer nor
Seller shall have any further obligation under this Agreement.
4. TRANSFER OF THE PROPERTY.
(a) Real Property At the Closing, Seller shall convey to Buyer (or
assignee) marketable and insurable fee simple title to the Real Property,
Appurtenances and Improvements by duly executed and acknowledged grant deed in
the form attached hereto as Exhibit "D" (the "Deed"). Evidence of delivery of
marketable and insurable fee simple title shall be the issuance by: First
American Title Insurance Company, 0000 Xx. Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx
Xxxxx, Xxxxxxxxxx 00000, escrow number 215757; attention: Xx. Xxx Xxxxxxxx, in
the full amount of the Purchase Price insuring fee simple title to the Real
Property in Buyer, subject only to those exceptions as Buyer approves pursuant
to Section 5 below (the "Permitted Exceptions"). Said policy shall provide full
coverage against mechanics' or materialmen's liens and shall contain such
special endorsements as Buyer may reasonably require. The Title Company shall
obtain, if requested by Buyer, such endorsements and/or reinsurance agreements
from such companies and in such amounts as Buyer may request.
(b) Personal Property. At the Closing, Seller shall transfer title to
the personal property by means of the Xxxx of Sale attached hereto as Exhibit
"C", such title to be free of any liens and encumbrances.
(c) Permits, Licenses and Intangibles. At the Closing, Seller shall
transfer all Intangibles together with other development rights by means of the
Assignment of Service Contracts, Warranties, Guaranties and Other Intangibles
attached hereto as Exhibit "G".
(d) Assignment & Assumption of Service Contracts. At the Closing,
Seller shall transfer to Buyer and Buyer shall assume all liability under those
service contracts affecting the Property which Buyer elects to assume. Such
assignment and assumption shall be done by means of the Assignment of Service
Contracts, Warranties, Guaranties and Other Intangibles attached hereto as
Exhibit "G".
5. TITLE INSPECTION AND CONTINGENCY REMOVAL.
(a) Title. During the time periods set forth below, Buyer shall review
and approve title to the Real Property. Within three (3) days from the execution
date of this Agreement, at Seller's sole cost and expense, Seller or Seller's
agent shall deliver to Buyer:
(i) a current preliminary title report on the Real
Property issued by Title Company together with
legible copies of the underlying documents referenced
therein (the "PTR");
(ii) Seller's existing title policy for the Real Property,
together with legible copies of the underlying
documents referenced therein;
(iii) the most recently updated American Land Title
Association ("ALTA") survey for the Real Property
(the "Survey");
(iv) copies of the two (2) most recent property tax bills
for the property; and
(v) the vesting deed for the Real Property and the
Appurtenances.
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Any exception to title is deemed accepted by Buyer and a
Permitted Exception hereunder unless Buyer notifies Seller otherwise in writing
on or before the expiration of the Title Contingency Period. Notwithstanding the
foregoing, if any updates to the PTR or the Survey are received by Buyer, Buyer
shall have an additional five (5) business days, regardless of the expiration of
the Title Contingency Period or the proposed Closing Date, following Buyer's
receipt of such update and legible copies of all documents referenced therein to
notify Seller of objections to items shown on any such update.
As a condition to Closing, Seller shall take all action
necessary to remove from title to the Property at or prior to the Closing (or in
the alternative, Seller shall obtain for Buyer title insurance insuring over
such exceptions or matters, such insurance to be in form and substance
satisfactory to Buyer in its sole discretion) the following matters: (A) all
non-monetary exceptions to title and survey matters created on or after the
Effective Date without the prior written consent of Buyer (which consent may be
withheld in Buyer's sole and absolute discretion); (B) other than monetary
exceptions which Seller removes at the Closing, any and all liens and
encumbrances affecting the Property which secure an obligation to pay money
(other than installments of real estate taxes or assessments not delinquent as
of the Closing); and (C) all taxes and assessments due and payable for any
period prior to the Closing (collectively, the "Obligatory Removal Exceptions").
If, prior to the Closing, Seller is unable to remove or satisfactorily insure
over any of the Obligatory Removal Exceptions, then, in addition to any and all
other rights and remedies which Buyer may have under Section 21(l) hereof, Buyer
may (1) terminate this Agreement by delivering written notice to Seller and
Escrow Agent (in which case Escrow Agent shall return the Deposit to Buyer, and
the parties shall equally share the cancellation charges of Title Company and
Escrow Agent [the "Cancellation Charges"]), Seller shall reimburse Buyer for all
of Buyer's direct out-of-pocket costs and expenses incurred in connection with
the transaction contemplated by this Agreement, and thereafter neither party
shall thereafter have any rights or obligations to the other hereunder, other
than pursuant to any provision hereof which expressly survives the termination
of this Agreement; (2) pursue an action for specific performance to compel
Seller to remove the Obligatory Removal Exceptions; or (3) waive Buyer's
objections to such Obligatory Removal Exceptions and proceed to a timely Closing
whereupon such Obligatory Removal Exceptions shall be deemed accepted by Buyer.
(b) Buyer's Contingency Removal Period. Buyer shall have twenty (20)
business days from the receipt of all of the documents and information set forth
in Subsection 5(a) above (the "Title Documents") to determine if, other than the
Obligatory Removal Exceptions which will be paid off at the close of Escrow,
there are any exceptions to title to which Buyer objects. Unless written
rejection of said title matters is received within twenty (20) business days of
delivery of all Title Documents, Buyer shall be deemed to have accepted all
title matters and such title matters shall be deemed to be Permitted Exceptions.
From the date of Buyer's approval of title, Seller shall not permit any adverse
change to arise to the title (other than monetary encumbrances removable at the
Closing) nor shall Seller permit any cloud upon title not disclosed in the Title
Documents to arise so as to affect title at Closing. If Buyer objects to any
title matter, then Seller shall have five (5) business days from receipt of
Seller's written notice to advise Buyer in writing that: (i) Seller can remove
the title matter prior to, or at, the Closing; or (ii) that the title matter is
not curable by Seller prior to or at the Closing. If Seller is able to remove
the title objection as set forth in (i) above, the transaction shall proceed. If
Seller advises Buyer that Seller cannot (or will not) remove the title objection
or fails to reply at all, then Buyer shall have until the later of (A) the
expiration of Buyer's due diligence period and (B) three (3) business days from
Seller's written reply to determine if Buyer will accept title as Seller has
indicated pursuant to this subsection (b). If Buyer elects not to accept title
as Seller has indicated, then, subject to Section 21(l) hereof, this Agreement
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shall terminate and thereafter neither party shall thereafter have any rights or
obligations to the other hereunder, other than pursuant to any provision hereof
which expressly survives the termination of this Agreement, Seller shall pay all
the Cancellation Charges and the Deposit (together with interest thereon) shall
be returned to Buyer. If Seller advises Buyer that Seller will remove the title
objection, but, prior to or at the Closing, Seller is unable to remove or
satisfactorily insure over such objection, then, in addition to any and all
other rights and remedies which Buyer may have hereunder, Buyer may (1)
terminate this Agreement by delivering written notice to Seller and Escrow Agent
(in which case Escrow Agent shall return the Deposit to Buyer, and the parties
shall equally share the Cancellation Charges), and thereafter neither party
shall thereafter have any rights or obligations to the other hereunder, other
than pursuant to any provision hereof which expressly survives the termination
of this Agreement; or (2) waive Buyer's objections to such other exceptions and
matters (other than Obligatory Removal Exceptions) and proceed to a timely
Closing whereupon such other exceptions and matters shall be deemed "Permitted
Exceptions."
6. PROPERTY DUE DILIGENCE CONDITIONS.
Except for title matters as set forth in Section 5 hereof, Buyer shall
conduct its due diligence and either terminate this Agreement or remove Buyer's
due diligence contingencies and proceed with this Agreement within forty five
(45) days after the Effective Date of this Agreement (hereinafter "Buyer's due
diligence period"). Said forty five (45) day period shall commence on the
Effective Date of this Agreement and end at 5:00 p.m. (Los Angeles, California
time) on the forty fifth day thereafter. All of Buyer's due diligence
contingencies are set forth in this Section 6. To facilitate Buyer's due
diligence, subject to Section 6(e) hereof, Seller shall allow Buyer (together
with its agents, representatives, employees, and nominees) reasonable access to
the Property to (i) perform any inspections, investigations, studies and tests
of the Property, including, without limitation, physical, structural,
mechanical, architectural, engineering, soils, geotechnical and
environmental/asbestos tests that Buyer deems reasonable and/or (ii) cause an
environmental assessment of the Property to be performed. Buyers due diligence
investigation shall include such items as Buyer, in Buyer's reasonable
discretion deems appropriate. Buyer shall pay for all costs and expenses
associated with the due diligence investigation of the Property .
(a) Property Documents. Within three (3) business days of the Effective
Date of this Agreement, Seller shall, at Seller's sole cost and expense, to the
extent the same are in Seller's actual possession or control (or are reasonably
available to Seller including but not limited to in the possession or control of
its property manager) Seller shall provide Buyer with the documents as more
fully set forth below in Exhibit "I" (the "Property Documents"). Said documents
shall be supplied at a single time (except as otherwise agreed upon between
Buyer and Seller) and shall be delivered with a cover letter setting forth all
documents delivered pursuant to this Section 6. To the extent that Seller does
not have any of the following documents in its actual possession or control,
Seller shall indicate in its cover letter that it does not have any such
documents.
(i) The documents to be provided by Seller to Buyer shall
include such other contracts or documents of
significance to the Property as Buyer and Seller may
agree upon.
(ii) Review and approval or disapproval of reports
generated is at the Buyer's sole discretion.
(b) Survey. If Seller has a survey of the Property in his actual
possession it shall be delivered to Buyer together with the Title Documents.
However, if Seller do not have a survey, or if the survey is no sufficient to
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obtain an ALTA Title Policy or equivalent, then Buyer may obtain an ALTA survey
or equivalent of the Property. The costs of such a survey shall be borne solely
by Buyer.
(c) Documents to Be Provided. The documents to be provided by Seller to
Buyer shall be limited to those in Seller's actual possession (or readily
attainable by Seller's agents, auditors, brokers, property managers and title
company).
(d) Other Matters. Buyer shall review and approve within the due
diligence period all other matters relating to or effecting the Property
pursuant to Sections 7 and 8 below.
(e) Cooperation of Seller. Seller shall cooperate with Buyer, at no
cost to Seller, to assist Buyer in Buyer's efforts to access to the Property to
conduct Buyer's due diligence investigation. To the extent that Buyer requests
soils testing, a Phase II environmental report, geological investigation, than
Buyer and Seller shall arrange a mutually acceptable work plan which shall
include appropriate scheduling, scope of work and restoration activities. All
such investigation performed by Buyer or its agents, shall be performed in a
professional manner and Buyer shall restore the Property to the same condition
(or better) than it was in prior to the investigation; provided, however, that
Buyer shall have no obligation to repair any damage caused by the acts or
omissions of Seller, its agents or representatives or to remediate, contain,
xxxxx or control any pre-existing condition of the Property which existed prior
to Buyer's entry thereon. Buyer and its agents shall have appropriate workers
compensation insurance, shall have a liability insurance policy in an amount of
not less than One Million Dollars ($1,000,000) which policy shall name Seller as
an additional insured and all investigative work performed by Buyer or its
agents shall comply with all governmental codes and regulations.
(f) Copies of Reports. To the extent that professional reports or
studies regarding the physical condition of the Property or its developmental
suitability are generated by third parties other than Buyer or its affiliates,
including, but not limited to, soils reports, seismic surveys, environmental
reports and similar matters, Buyer shall provide to Seller true and accurate
photocopies of all such reports, studies and other professional work products.
Said copies shall be supplied at Buyer's sole cost and expense. Notwithstanding
the preceding, Buyer shall have no obligation to provide to Seller any reports,
studies or other professional work products that are proprietary in nature
including, without limitation, architectural, financial projections, business
plans and massing and density studies. If Buyer provides Seller with photocopies
of any reports, studies or other professional work products pursuant hereto,
Seller acknowledges that such reports, studies or other professional work
products will be delivered in their "as-is" condition, that Buyer shall not in
any way be liable or otherwise responsible for any inaccuracies or misstatements
set forth therein and that Seller will not be entitled to rely on such reports,
studies or other professional work products and, to the extent it does so, will
do so at its sole risk.
(g) Due Diligence Conditions. The foregoing conditions in this Section
6 are all of Buyer's due diligence conditions precedent, and these conditions
precedent are intended solely for the benefit of Buyer. If within Buyer's due
diligence period, Buyer does not give Seller written notice of approval of the
due diligence contingencies in Buyer's sole and absolute discretion, Buyer shall
be deemed to have elected to terminate this Agreement and the Deposit shall be
returned to Buyer (together with interest thereon, if any) as more particularly
set forth in Section 8 below. In the event Buyer gives written notice of Buyer's
acceptance and/or waiver of all said due diligence contingencies, in Buyer's
sole and absolute discretion, then this Agreement shall continue in full force
and effect. Once Buyer has approved and/or waived its due diligence
contingencies, Buyer may not cancel this Agreement except as otherwise set forth
herein.
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(h) CC&Rs. Buyer may conduct such inquiries and investigations of any
and all declarants or associations created by any covenants, conditions or
restrictions encumbering the Property ("CC&Rs") as Buyer, in its sole
discretion, deems advisable or necessary.
(i) Easements. Buyer may conduct such inquiries and investigations of
the Easements as Buyer, in its sole discretion, deems advisable or necessary.
Seller shall use reasonable commercial efforts to obtain, before the expiration
of Buyer's due diligence period, an estoppel certificate, each substantially in
form and substance acceptable to Buyer, executed by each owner of any and all
servient estates underlying the Easements (collectively, the "Easement
Estoppels").
7. BUYER'S INVESTIGATIONS OF PROPERTY CONDITION.
(a) Reasonable Access. Seller shall afford authorized representatives
of Buyer reasonable access to the Property for the purposes of satisfying Buyer
with respect to Buyer's due diligence inspections and the representations and
warranties of Seller herein, and with respect to satisfaction of any conditions
precedent to the Closing herein. Buyer shall also have access to the Property
for the purpose of conducting environmental surveys, property condition
investigations, market studies, other investigations, surveys or other physical
inspections or studies, including, but not limited to, the roof, plumbing,
heating, and air conditioning systems, structural integrity of the improvements
and any environmental or geologic conditions, or other matters that Buyer may
wish to include in its due diligence inquiry of the Property. Seller shall
cooperate with Buyer in providing access to the Property and satisfying the
conditions contained herein.
(b) Cost of Inspection. Buyer shall bear the cost of any inspections or
studies undertaken. Buyer shall indemnify and hold Seller free and harmless from
all claims and liability with respect to such physical inspection or study or
any costs arising in connection with respect to such physical inspection or
study or any costs arising in connection with the same prior to the Closing
which indemnity shall survive the termination of this Agreement or Closing for a
period of ninety (90) days; provided, however, that Buyer's indemnity hereunder
shall not include any losses, cost, damage or expenses resulting from (i) the
acts of Seller, its agents or representatives or (ii) the discovery of any
pre-existing condition of the Property. Buyer shall repair any damages to the
Property caused by such inspection or study, and shall otherwise restore the
Property to substantially the condition which existed prior to conduct of the
same; provided, however, that Buyer shall have no obligation to repair any
damage caused by the acts or omissions of Seller, its agents or representatives
or to remediate, contain, xxxxx or control any pre-existing condition of the
Property which existed prior to Buyer's entry thereon.
8. BUYER'S TERMINATION OF CONTRACT.
At the expiration of the due diligence period set forth in Section 6
hereof (or such earlier date if Buyer so elects) Buyer shall advise Seller in
writing of either (a) its approval of the due diligence conditions of the
Property, or (b) its disapproval of the due diligence conditions of the Property
in Buyer's sole and absolute discretion. In the event that Buyer approves the
due diligence conditions of the Property, Buyer's deposit shall become
non-refundable, Buyer shall not have to provide Seller with copies of any
reports pursuant to Section 6(f) above and Buyer and Seller shall agree upon a
Closing Date. If Buyer disapproves the due diligence conditions of the Property
in Buyer's sole and absolute discretion, then, subject to Section 21(l) hereof,
the Deposit shall be returned to Buyer, together with interest thereon, the
parties shall equally share the Cancellation Charges, this Agreement shall
automatically terminate and be of no further force or effect and neither party
shall have any further rights or obligations hereunder, other than pursuant to
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any provision hereof which expressly survives the termination of this Agreement.
Disapproval of the due diligence conditions by Buyer in writing shall be
sufficient to induce Escrow Holder to release the deposit (together with
interest thereon) to Buyer without further written instruction by Seller.
9. CONDITIONS PRECEDENT TO CLOSING.
(a) Buyer's Contingencies. This Agreement is expressly contingent upon
satisfaction of the following conditions (hereinafter "Buyer's Contingencies")
and Buyer shall have no obligation to close under this Agreement unless all the
following conditions have been satisfied or have been waived (in writing) by
Buyer; provided, however, that any such waiver shall not affect Buyer's ability
to pursue any remedy set forth in Section 21(l) hereof.
(b) Buyer's Title Contingencies. Title Company shall be prepared and
irrevocably committed to issue to Buyer an ALTA extended coverage owner's policy
of title insurance (Form B)-1970 (expressly deleting any creditor's rights
exclusion) in favor of Buyer in an amount equal to the Purchase Price showing
indefeasible fee simple title to the Property vested in Buyer, with those
endorsements and reinsurance reasonably requested by Buyer, subject only to the
Permitted Exceptions (collectively, the "Owner's Title Policy").
(c) Buyer's Property Due Diligence. Approval by Buyer of all
contingencies set forth in Section 6 above, during Buyer's due diligence period
as set forth herein.
(d) Seller's Due Performance. All of the representations and warranties
of Seller set forth in Section 11 shall be true and correct as of the Closing
Date, and Seller, on or prior to the Closing Date, shall have complied with
and/or substantially performed all of the obligations, covenants and agreements
required on the part of Seller to be complied with or performed pursuant to the
terms of this Agreement, including, without limitation, the deliveries required
to be made by Seller pursuant to Sections 10(d), 10(f) and 10(j) hereof. Buyer
shall use its best efforts to provide Seller with adequate advance written
notice of any anticipated delivery failure prior to any such failure amounting
to a failure of the condition precedent set forth herein.
(e) Condition of Property. Subject to the provisions of Section 18
below, the condition of the Property shall be substantially the same on the
Closing Date as on the Execution Date, except for reasonable wear and tear and
any damages due to any act of Buyer or Buyer's representatives.
(f) Bankruptcy. No action or proceeding shall have been commenced by or
against Seller under the federal bankruptcy code or any state law for the relief
of debtors or for the enforcement of the rights of creditors and no attachment,
execution, lien or levy shall have attached to or been issued with respect to
the Property or any portion thereof.
(g) No Moratoria. Between the Effective Date of this Agreement and the
Closing, no moratorium, statute, regulation, ordinance, or federal, state,
county or local legislation, or order, judgment, ruling or decree of any
governmental agency or of any court shall have been enacted, adopted, issued,
entered or pending which would adversely affect Buyer's intended use of the
Property.
(h) Failure of the Buyer's Contingencies. Subject and without
limitation to Buyer's rights hereunder, including, without limitation, Section
21(l) hereof, if any of Buyer's Contingencies have not been fulfilled within the
applicable time periods, Buyer may (i) waive the applicable Buyer's
Contingency(ies) and close Escrow in accordance with this Agreement, or (ii)
9
terminate this Agreement by delivering written notice to Seller and to Escrow
Agent, in which event Escrow Agent shall return the Deposit to Buyer, Seller
shall pay the Cancellation Charges and Buyer shall be entitled to pursue any
other rights and remedies which it may have against Seller in connection
herewith.
(i) Failure to Close. Failure by Seller or Buyer, after the
satisfaction or waiver of the Buyer's Contingencies, to conclude this Agreement
shall constitute a material breach by said party of this Agreement. In the event
Seller is in material breach of the Closing conditions, in addition to any
remedy available to Buyer hereunder including, without limitation, pursuant to
Section 21(l) hereof, Buyer shall be entitled to a full refund of its otherwise
non-refundable Deposit (together with interest thereon). Except for any remedy
set forth in Section 21(l) hereof, if Buyer is in material breach of the Closing
conditions as set forth in Section 10(e) et seq., then Seller shall not be
required to convey title and may retain the non-refundable Deposit as damages.
10. CLOSING AND ESCROW.
(a) Closing Date. The closing hereunder shall be on such date that is
mutually agreed to between Buyer and Seller, which date shall not be more than
ten (10) days after Buyer's approval of its due diligence contingencies. As used
herein, the "Closing" shall mean the recordation of the Deed in the Official
Records of the County of San Mateo, State of California (the "Official
Records"), and the "Closing Date" shall mean the date upon which the Closing
actually occurs.
(b) Escrow Funds. If after the expiration of the contingency periods
set forth in Sections 5, 6, and 8 above, the Closing does not occur on or before
that date which is ten (10) days after Buyer's written approval of the due
diligence conditions solely as a result of Buyer's material breach of this
Agreement and Seller is ready, willing and able to perform its obligations
hereunder, then Seller may terminate this Agreement by delivery of written
notice to Buyer and Escrow Agent, in which event Escrow Agent shall return the
Deposit (exclusive of interest and dividends earned thereon) to Seller (as
Seller's sole and exclusive remedy), the parties shall equally share the
Cancellation Charges and neither party shall thereafter have any rights or
obligations to the other hereunder.
(c) Escrow Instructions. This Agreement shall constitute joint escrow
instructions by both Buyer and Seller to Title Company. Promptly following the
Effective Date, Buyer and Seller shall each cause a purchase and sale escrow
("Escrow") to be opened with Escrow Agent by delivery to Escrow Agent of two (2)
duplicate partially executed originals of this Agreement executed by Seller and
Buyer. Upon receipt of such partially executed originals of this Agreement,
Escrow Agent shall form two (2) duplicate original counterparts of this
Agreement and telephonically confirm to Buyer and Seller the date upon which
Escrow is opened (the "Opening of Escrow"). On or immediately after the Opening
of Escrow, Escrow Agent shall (i) confirm the same by executing and dating the
three (3) duplicate original counterparts of this Agreement in the space
provided for Escrow Agent, and (ii) deliver a fully executed original of this
Agreement to each of Seller and Buyer. Buyer and Seller shall each submit to the
Title Company, not less than three (3) days prior to the Closing Date,
additional escrow instructions consistent with the provisions of this Agreement.
In the event of any inconsistency between this Agreement and such additional
escrow instructions, the provisions of this Agreement shall govern.
(d) Seller's Documents. At least two (2) business days prior to the
Closing, Seller shall, at its sole cost and expense, deliver to Title Company as
escrow, the following documents and instruments, each effective as of the
Closing Date and executed by Seller, in addition to the other terms and payments
required by this Agreement to be delivered by Seller:
10
(i) a duly executed and acknowledged Deed;
(ii) a duly executed Xxxx of Sale covering the Personal
Property, in the form attached hereto as Exhibit "C";
(iii) a Certificate from the California Secretary of State
(or a commercial reporting service satisfactory to
Buyer) that indicates that as of the Certificate Date
there are no filings against Seller in the office of
the Secretary of State under California Commercial
Code (or similar statute) that would be a lien on any
of the items specified in said Xxxx of Sale above
(other than such filings, if any, as are being
released at the time of the Closing);
(iv) two (2) originals of a certificate, in the form of
Exhibit "E" attached hereto;
(v) an Assignment of Service Contracts, Warranties,
Guaranties and Other Intangibles in the form attached
hereto as Exhibit "G";
(vi) two (2) originals of an affidavit of Seller that
Seller is not a "foreign person" within the meaning
of 26 U.S.C. ss. 1445 duly executed by Seller in the
form attached hereto as Exhibit "F";
(vii) the "Closing Statement" (as hereinafter defined);
(viii) two (2) originals of a California FTB Form 590-RE;
(ix) such proof of Seller's authority and authorization to
enter into this Agreement and the transaction
contemplated hereby, and such proof of the power and
authority of the individual(s) executing or
delivering any instruments, documents or certificates
on behalf of Seller to act for and bind Seller as may
be reasonably required by Title Company or Buyer; and
(x) such other documents and instruments, signed and
properly acknowledged by Seller, if appropriate, as
may be reasonably required by Buyer, Escrow Agent or
otherwise in order to effectuate the provisions of
this Agreement and the Closing of the transactions
contemplated herein, including, without limitation,
reasonable or customary title affidavits and
indemnities.
Buyer may waive compliance on Seller's part under any of the
foregoing items by an instrument in writing.
(e) Buyer's Documents and Funds. On or before the Closing, Buyer shall,
at its sole cost and expense, deliver to Title Company as escrow, the following:
(i) the balance of the Purchase Price in immediately
available funds;
(ii) immediately available funds sufficient to pay all
title insurance and other Closing Expenses allocable
to Buyer as provided for herein;
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(iii) execution of the Assignment of Service Contract,
Warranties, Guaranties and Other Intangibles in the
form attached hereto as Exhibit "G";
(iv) the Closing Statement;
(v) such other documents and instruments, signed and
properly acknowledged by Buyer, if appropriate, as
may reasonably be required by Escrow Agent or
otherwise in order to effectuate the provisions of
this Agreement and the closing of the transactions
contemplated herein.
Seller may waive compliance on Buyer's part under any of the
foregoing items by an instrument in writing. Seller shall use its best efforts
to provide Buyer with adequate advance written notice of any anticipated
delivery failure prior to any such failure amounting to a failure of the
condition precedent set forth herein.
(f) Other Documents. Seller and Buyer shall each deposit such other
instruments as are reasonably required by the Title Company as escrow holder or
otherwise required to close the Escrow and consummate the purchase of the
Property in accordance with the terms hereof.
(g) Prorations. Seller represents and warrants that there are no
rentals, revenues or income related to the Property. The Title Company shall
prorate all non-delinquent real property taxes, assessments, improvement bonds,
water, sewer, and utility charges, amounts payable under the Service Contracts,
annual permits and/or inspection fees (calculated on the basis of the period
covered), insurance premiums (as to those policies, if any, that Buyer
determines will be continued after the Closing), and other expenses normal to
the operation and maintenance of the Property on the basis of a 365-day year as
of 12:01 a.m. on the Closing Date. All non-delinquent real estate taxes or
assessments on the Property shall be prorated based on the actual current tax
xxxx, but if such tax xxxx has not yet been received by Seller by the Closing
Date or if supplemental taxes are assessed after the Closing for the period
prior to the Closing, the parties shall make any necessary adjustment after the
Closing by cash payment to the party entitled thereto so that Seller shall have
borne all taxes, including all supplemental taxes, allocable to the period prior
to the Closing and Buyer shall bear all taxes, including all supplemental taxes,
allocable to the period after the Closing. Seller shall endeavor to have all
meters for serving utilities, including, but not limited to, water, sewer, gas,
and electricity read on the day before the Closing Date for proration purposes.
If any expenses attributable to the Property and allocable to the period prior
to the Closing are discovered or billed after the Closing, the parties shall
make any necessary adjustment after the Closing by cash payment to the party
entitled thereto so that Seller shall have borne all expenses allocable to the
period prior to the Closing and Buyer shall bear all expenses allocable to the
period from and after the Closing. Five (5) business days prior to the Closing,
Escrow Agent shall deliver to each of the parties for their review and approval
a preliminary closing statement (the "Preliminary Closing Statement") based on
an expense statement prepared by Seller, approved by Buyer, and delivered to
Escrow Agent prior to said date, setting forth (i) the proration amounts
allocable to each of the parties pursuant to this Section 10 and (ii) the
Closing Expenses allocable to each of the parties pursuant to Section 10(h)
hereof. Based on each of the party's comments, if any, regarding the Preliminary
Closing Statement, Escrow Agent shall revise the Preliminary Closing Statement
and deliver a final, signed version of a closing statement to each of the
parties at the Closing (the "Closing Statement").
(h) Closing Expenses. Each party shall pay its own costs and expenses
arising in connection with the Closing (including, without limitation, its own
attorneys' and advisors' fees), except the following costs (the "Closing
Expenses"), which shall be allocated between the parties as follows. Buyer shall
12
pay the fee for the Owner's Title Policy. Seller shall pay the cost of all
transfer taxes, if any, applicable to the sale as well as the full amount of any
assessments or bonds on the Real Property. Buyer and Seller shall each pay fifty
percent (50%) of all Escrow charges, document processing fees and other charges
(other than attorneys fees) as the same may relate to the closing of this
transaction.
(i) Closing. Upon satisfaction and completion of all other matters set
forth in this Section 10, Escrow shall close and the Deed shall be delivered to
Buyer and recorded and all of Seller's other documents as set forth above shall
be delivered by the Escrow Agent to Buyer. Upon the Closing, Buyer's funds shall
be paid to Seller, as Seller may so designate, and all of the Buyer's documents
as set forth above shall be delivered by the Escrow Agent to Seller.
(j) Deliveries Outside of Escrow. Seller hereby covenants and agrees,
at its sole cost and expense, to deliver or cause to be delivered to Buyer
outside of Escrow, on or prior to the Closing, (to the extent the same are in
Seller's actual possession) the following items:
(i) originals of all, plans, specifications, reports and
similar documents of significance as the same relate
to the Property, if any;
(ii) originals or copies of all service contracts,
maintenance contracts, and management contracts, if
any, affecting the Property (and any amendments,
modifications, supplements and restatements thereto)
(hereinafter, collectively, "Service Contracts") to
be continued by Buyer, as determined by Buyer in its
sole discretion, after the Closing, and any
warranties or guaranties received by Seller from any
contractors, subcontractors, suppliers, materialmen,
consultants, architects, engineers, and others who
have performed work on the Property;
(iii) to the extent available to Seller originals of all
architectural plans, designs, permits, studies,
reports, or similar documents of significance
relating to the Property;
(iv) the original of each document evidencing the
Intangibles or rights to ownership and use thereof;
(v) to the extent not previously delivered, originals of
all of the Property Documents;
(vi) the Personal Property; and
(vii) keys, combinations or card keys to all locks and
security systems, and such other documents and
instruments, as may be reasonably required by Buyer
or otherwise in order to effectuate the provisions of
this Agreement and the Closing of the transactions
contemplated herein.
(k) Real Estate Reporting Person. Escrow Agent is designated the "real
estate reporting person" for purposes of section 6045 of title 26 of the United
States Code and Treasury Regulation 1.6045-4 and any instructions or settlement
statement prepared by Escrow Agent shall so provide. Upon the consummation of
the transaction contemplated by this Agreement, Escrow Agent shall file Form
1099 information return and send the statement to Seller as required under the
aforementioned statute and regulation.
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11. WARRANTIES AND REPRESENTATIONS BY SELLER.
(a) Seller hereby makes the following representations, covenants and
warranties as of the Effective Date and the Closing Date and acknowledges that
the execution of this Agreement by Buyer has been made and the acquisition by
Buyer of the Property will have been made in material reliance by Buyer on such
covenants, representations and warranties:
(i) Warranties True. Each and every undertaking and
obligation of the Seller under this Agreement shall
be performed by the Seller timely when due; and that
all representations and warranties of the Seller
under this Agreement and its exhibits shall be true
at the Closing as though they were made at the time
of Closing.
(ii) Title. Seller is now and at all times between the
Effective Date and the Closing, inclusive, will be
the owner (either of record or beneficially) of (and
Buyer will acquire hereunder) the entire right, title
and interest in and to the Property to effectively
vest in the Buyer good and marketable fee simple
title to the Property. There are no conditional sales
contracts, options, rights of first refusal or
similar agreements affecting the Property.
(iii) No Infringement. To Seller's Knowledge, the use by
Buyer of any name, trademark, trade style, trade name
or other Intangibles assigned to Buyer hereunder will
not infringe upon any copyright or any United States
or State trademark existing on the Closing Date, or
constitute unfair competition or actionable
appropriation of rights with respect to any other
person, business or entity.
(iv) Zoning and Use. Seller has not received written
notice from any governmental authority that the
Property is not in compliance with or violates
applicable environmental, building and zoning laws,
rules or regulations or governmental rules or
regulations. Seller has not requested, applied for,
given its consent to nor has knowledge of any pending
zoning variances or change with respect to the
Property. To Seller's Knowledge, there is no plan,
study, or effort by any governmental authority or
agency or any nongovernmental person or entity which
in any way affects or would affect, the use of the
Real Property or the Property. To the Seller's
Knowledge, there is no existing, proposed, or
contemplated plan to widen, modify or realign any
street or highway adjoining the Property which would
affect access thereto, or any existing proposed or
contemplated eminent domain proceeding that would
affect the Real Property in any way whatsoever.
(v) Governmental Inspection. To Seller's Knowledge, there
is no ruling, ordinance, regulation, or statute that
requires any governmental agency to inspect the
Property and/or issue any documents affecting the
occupancy and specifications of the Property as a
result of the sale of the Property to Buyer.
(vi) No Litigation. Except as specifically disclosed to
Buyer on Exhibit "H", there are no pending or, to
Seller's Knowledge, threatened claims, allegations or
lawsuits of any kind, whether for personal injury,
property damage, landlord-tenant disputes, property
taxes or otherwise, against or affecting the Property
or which prohibits the sale thereof, nor to Seller's
14
Knowledge, is there any governmental investigation of
any type or nature pending or threatened against or
relating to the Property or the transactions
contemplated hereby.
(vii) Insurance Indemnifications. Seller has not received
notices by any insurance company which has issued a
policy with respect to any portion of the Property,
or by any board of fire underwriters, or from any
governmental authority, of zoning, building, fire, or
health code violations in respect to the Property or
requesting any work or attention to the Property.
Seller has received no notice from any insurance
company concerning, nor, to Seller's Knowledge, are
there any defects or inadequacies in the Property
which, if not corrected, would result in the
termination of insurance coverage or increase its
cost.
(viii) Enforceability of Agreement. The person executing
this Agreement and any other instruments for or on
behalf of the Seller was fully authorized to act on
behalf of Seller and that the Agreement is valid and
enforceable against Seller in accordance with its
terms and each instrument to be executed by Seller
pursuant hereto or in connection therewith will, when
executed, be valid and enforceable against Seller in
accordance with its terms. No approval, consent,
order or authorization of, or designation,
registration or declaration with, any governmental
authority, including, but not limited to, subdivision
approval, is required in connection with the valid
execution and delivery of and compliance with this
Agreement by Seller. Seller has obtained all required
consents, releases, and approvals necessary to
execute this Agreement and consummate the transaction
contemplated by this Agreement. Seller further
represents that it is a corporation, duly organized
and existing in good standing under the laws of the
State of Nevada, with its principal place of business
in California.
(ix) Service Contracts. Except as set forth on the list of
Contracts attached hereto as Exhibit "F", there is no
agreement, in writing or otherwise, for service,
supply, maintenance, management or the operation of
the Property or any portion of the business conducted
thereon or thereat, which is not cancelable upon
thirty (30) days notice, without payment of any
penalty or premium.
(x) Property Fully Taxed; Condemnation. The Property and
all parts thereof were fully assessed for general tax
purposes and there has not been, at any time, a tax
break, concession or adjustment (in the condition
factor, assessed valuation or otherwise) given or
applied, and that no portion of the Property is, or
as of the Closing will be subject to or affected by
special assessments, whether or not a lien thereon.
To Seller's Knowledge, there are no existing or
proposed assessments affecting the Property. To
Seller's Knowledge, there are no existing, proposed
or contemplated condemnation actions against the
Property or any part, and Seller has not received
notice of any contemplated special assessments or
eminent domain proceedings that would affect the
Property.
(xi) Compliance with Laws. To Seller's Knowledge, the
Property is in compliance with all laws including,
without limitation: (A) all laws related to
"Environmental Materials" (as hereinafter defined)
and (B) all laws with respect to zoning, building,
fire, life safety, health codes and sanitation
(collectively, "Laws"). Seller has not received any
notices of, including from any governmental
authority, of any past or present violations of any
Laws pertaining to the use and occupancy of the
Property, including, without limitation,
discrimination on any prohibited basis.
(xii) Employees. With reference to the Property, no
employees of Seller or its property manager are under
contracts which will not be terminated as of the
Closing Date. There are no employee benefit plans in
effect and there are no unfunded liabilities with
respect to employee fringe benefits. On and after the
Closing, there will be no obligations concerning any
pre-Closing employees of Seller or the property
manager which will be binding upon Buyer or the
Property.
(xiii) Special Studies Zone. To Seller's Knowledge, the
Property is not located within either a designated
earthquake fault zone or a designated area that is
particularly susceptible to ground shaking,
liquefaction, landslides or other ground failure
during an earthquake.
(xiv) No Conflicts. The execution and delivery of this
Agreement, the consummation of the transactions
herein contemplated, and compliance with the terms of
this Agreement will not conflict with, or, with or
without notice or the passage of time or both, result
in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, deed of
trust, mortgage, loan agreement, or other document,
or instrument or agreement, oral or written, to which
Seller is a party or by which Seller or the Property
is bound, or any applicable regulation of any
governmental agency, or any judgment, order or decree
of any court having jurisdiction over Seller or all
or any portion of the Property.
(xv) Property Documents. To the actual knowledge of Seller
following due and diligent inquiry, the Property
Documents delivered by Seller pursuant to Section
6(a) hereof constitute all of the material documents
relating to the Property, and each Property Document
as delivered by Seller constitutes a true, correct
and complete copy of such Property Document. There
are no commitments or agreements affecting the
Property which have not been disclosed by Seller to
Buyer in writing. Seller is not in default of
Seller's obligations or liabilities pertaining to the
Property or the Property Documents (other than a "due
on sale clause" resulting from the transactions
contemplated herein); nor, to Seller's Knowledge, are
there facts, circumstances, conditions, or events
which, after notice or lapse of time, would
constitute a default. Seller has not received notice
or information that any party to any of the Property
Documents considers a breach or default to have
occurred.
(xvi) Material Information. To Seller's Knowledge, (A)
there is no material fact which has not been
disclosed to Buyer in writing which has or could
reasonably be expected to have a material adverse
effect upon the Property, or the use or value
thereof, and (B) this Agreement, together with the
Property Documents and any matters heretofore
disclosed to Buyer in writing by Seller, do not
contain any untrue statement of a material fact or
omit to state a material fact necessary to make the
statements contained herein not materially
misleading.
15
(xvii) Bankruptcy. No attachments, execution proceedings,
assignments for the benefit of creditors, insolvency,
bankruptcy, reorganization or other proceedings are
pending, or, to Seller's Knowledge, threatened,
against Seller.
(xviii) Environmental Materials.
(A) Definitions.
(1) "Environmental Claim" means any and
all actions (including, without
limitation, investigatory, remedial
or enforcement actions of any kind,
administrative or judicial
proceedings, and orders or judgments
arising out of or resulting
therefrom), costs, claims, damages
(including, without limitation,
punitive damages), expenses
(including, without limitation,
attorneys', consultants' and
experts' fees, court costs and
amounts paid in settlement of any
claims or actions), fines,
forfeitures or other civil,
administrative or criminal
penalties, injunctive or other
relief (whether or not based upon
personal injury, property damage, or
contamination of, or adverse effects
upon, the environment, water tables
or natural resources), liabilities
or losses arising from or relating
to the presence or suspected
presence of any Environmental
Materials in, on, under, or about
the Property or properties adjacent
thereto.
(2) "Environmental Materials" means
chemicals, pollutants, contaminants,
wastes, toxic substances, petroleum
and petroleum products or any other
chemical, material, or substance
that, because of its quantity,
concentration, or physical or
chemical characteristics, exposure
to which is limited or regulated for
health and safety reasons by any
governmental authority, or which
poses a significant present or
potential hazard to human health and
safety or to the environment if
released into the workplace or the
environment.
(B) Representations and Warranties. There is no
Environmental Claim pending or, to Seller's
Knowledge, threatened with regard to the
Property. To Seller's Knowledge, there are
no past or present actions, activities,
circumstances, conditions, events or
incidents relating to the Environmental
Materials that could form the basis of any
Environmental Claim against Seller or
against any person or entity, including,
without limitation, persons or entities
whose liability for any such Environmental
Claim Seller has or may have retained or
assumed either contractually or by operation
of law. Without in any way limiting the
generality of the foregoing, (1) Seller has
not used, stored, generated, released,
disposed or arranged for the disposal of
Environmental Materials on the Property, (2)
to Seller's Knowledge, there are no
underground storage tanks located on the
Property and (3) to Seller's Knowledge there
no polychlorinated biphenyls (PCBs) are used
or stored at the Property.
16
(xix) Survival. All of the representations, warranties and
agreements of Seller set forth in this Agreement
shall be true upon the execution of this Agreement,
shall be deemed to be repeated at and as of the
Closing Date without the necessity of a separate
certificate with respect thereto. Seller's
representations shall be true at the Closing but
shall not be deemed a continuing representation as to
facts first occurring after the Closing. However,
Buyer's right to seek redress for any false or
fraudulent representation by Seller as of the Closing
shall survive the Closing for a period of eighteen
(18) months.
(b) As used in this Agreement, the phrase "to Seller's Knowledge" and
words of similar import shall mean the actual knowledge of Xxxxxx Xxxxxx and
Xxxxxxxx Xxxxxx after reasonable inquiry and investigation of the files and
materials in the possession or control of such persons as well as Seller's
property manager. Seller represents and warrants that the foregoing persons are
those persons affiliated with Seller most knowledgeable regarding the ownership
and operation of the Property, possessing the greatest experience and
familiarity with the Property, that no other person presently or previously
affiliated with Seller possesses any equal or greater familiarity and experience
with the Property and that the foregoing persons have been involved with the
Property since Seller's acquisition of the Property in June 1999.
12. NO REPRESENTATIONS BY SELLER AS TO CERTAIN MATTERS.
Seller makes no representations that the Property can be converted to
another use or that the Property is fit for a particular purpose (other than its
current use), or that the Property is a suitable redevelopment site. Any
determinations as to such matters shall be made solely by Buyer who shall rely
solely upon its own experts, agents, consultants, employees, brokers, and other
agents.
13. WAIVER AND SUNSET.
(a) No Side Agreements or Representations; "As-Is" Purchase. Buyer
represents, warrants, and covenants to Seller that Buyer will during the Due
Diligence Period independently and personally inspect the Property and
Improvements, and that Buyer has entered into this Agreement based upon its
rights and intentions to make such personal examination and inspection. Except
as specifically provided in this Agreement, and except for those warranties,
expressly set forth above, in the Deed or other documents delivered at the
Closing, Buyer agrees that Buyer will accept the Property, in its then condition
"as-is and with all faults", including, without limitation, any faults and
conditions specifically referenced in this Agreement. No person acting on behalf
of Seller is authorized to make, and by execution hereof, Buyer acknowledges and
agrees that, except as specifically provided in this Agreement, and except for
those warranties, expressly set forth above, in the Deed or other documents
delivered at the Closing, Seller has not made, does not make, and specifically
negates and disclaims any representations, warranties, promises, covenants,
agreements, or guaranties of any kind or character whatsoever, whether express
or implied, oral or written, past, present or future, of, as to, concerning or
with respect to:
(i) the value of the Property;
(ii) the income to be derived from the Property;
(iii) the suitability of the Property for any and all
activities and uses which Buyer may conduct thereon;
17
(vi) the habitability, merchantability, marketability,
profitability, or fitness for a particular purpose of
the Property;
(v) the manner, quality, state of repair, or lack of
repair of the Property;
(vi) the size or dimensions of the Property;
(vii) the nature, quality, or condition of the Property,
including, without limitation, the water, water
rights, air, soil, sub-soil, and geology;
(viii) the compliance of or by the Property or its operation
with any laws, rules, ordinances, or regulations of
any applicable governmental authority or body with
respect to the use, improvement, or sale of the
Property;
(ix) parking ordinances, regulations, and requirements;
(x) access to public roads, proposed routes of roads, or
extensions thereof;
(xi) the manner, condition, or quality of the construction
or materials, if any, incorporated into the Property;
(xii) compliance with any environmental protection,
pollution, or land use laws, rules, regulation,
orders, or requirements, including, but not limited
to:
(1) Endangered Species Act;
(2) Title III of the Americans with Disabilities
Act of 1990 and any other law, rule, or
regulation governing access by disabled
persons;
(3) California Health & Safety Code;
(4) Federal Water Pollution Control Act;
(5) Federal Resource Conservation and Recovery
Act;
(6) U.S. Environmental Protection Agency
Regulations Act, 40 C.F.R., Part 261;
(7) Comprehensive Environmental Response
Compensation and Liability Act of 1980, as
amended;
(8) Resources Conservation and Recovery Act of
1976;
(9) Clean Water Act;
(10) Safe Drinking Water Act;
(11) Hazardous Materials Transportation Act;
18
(12) Toxic Substance Control Act; and
(13) Regulations promulgated under any of the
foregoing.
(xiii) the presence or absence of hazardous materials at,
on, under, or adjacent to the Property;
(xiv) the content, completeness, or accuracy of the
Property Documents, including any informational
package, cost to complete estimate, or other
materials prepared by Seller;
(xv) the conformity of the Improvements, if any, to any
plans or specifications for the Property, including
any plans and specifications that may have been or
may be provided to the Buyer;
(xvi) the sufficiency of parking;
(xvii) the conformity of the Property to past, current or
future applicable zoning or building requirements;
(xviii) deficiency of any undershoring;
(xix) deficiency of any drainage;
(xx) the fact that all or a portion of the Property may be
located on or near an earthquake fault line;
(xxi) the existence of vested land use, zoning, or building
entitlements affecting the Property; or
(xxii) any other matter concerning the Property except as
may be otherwise expressly stated herein, and except
for those warranties, expressly set forth or implied
by law, in the Deed or other documents delivered at
the Closing, including any and all such matters
referenced, discussed, or disclosed in any documents
delivered by Seller to Buyer, in any public records
of any governmental authority or utility company, or
in any other documents available to Buyer.
Buyer further acknowledges and agrees that any information
made available to Buyer or provided or to be provided by or on behalf of Seller
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 as may otherwise be provided herein. Seller is not
liable or bound in any manner by any oral or written statements,
representations, or information pertaining to the Property, or the operation
thereof, furnished by any of the foregoing entities and individuals or any other
individual or entity. Buyer further acknowledges and agrees that to the maximum
extent permitted by law, except as may be otherwise expressly stated herein, and
except for those warranties, expressly set forth or implied by law, in the Deed
or other documents delivered at the Closing, the sale of the Property as
19
provided for herein is made on an "as-is" condition and basis with all faults as
of the Closing Date, and that Seller has no obligations to make repairs,
replacements, or improvements or to compensate Buyer for same except as may
otherwise be expressly stated herein.
(b) Release. Except as expressly provided in this Agreement including,
without limitation, pursuant to Section 15 hereof, Buyer and anyone claiming by,
through or under Buyer hereby fully and irrevocably releases Seller and its
employees, officers, directors, representatives, agents, servants, attorneys,
affiliates, parent companies, subsidiaries, successors, and assigns, and all
persons, firms, corporations, and organizations acting on its behalf
(collectively with Seller, the "Seller Parties"), from any and all claims that
it may now have or hereafter acquire against Seller or any or all of the Seller
Parties for any costs, loss, liability, damage, expenses, demand, action, or
cause of action arising from or related to any construction defects, errors or
omissions, or other physical conditions, latent or otherwise, geotechnical and
seismic, affecting the Property or any portion thereof, including, without
limitation, environmental matters, which were: (i) described or referred to in
any environmental audit obtained by Buyer; or (ii) reasonably discoverable by
prudent investigation during the Due Diligence Period; or (iii) otherwise
disclosed by Seller to Buyer or discovered by Buyer at any time prior to the
Closing (collectively, the "Claims").
This Release includes claims which Buyer is presently unaware
of which Buyer does not presently suspect to exist which, if known by Buyer,
would materially affect Buyer's release to Seller. Buyer specifically waives the
provisions of California Civil Code ss. 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR EXPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM MUST HAVE
MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR"
Seller:__________ Buyer:__________
It is understood and agreed that the Purchase Price has been
adjusted by prior negotiations to reflect that all of the Property is sold by
Seller and purchased by Buyer subject to the foregoing. It is not contemplated
that the Purchase Price will be increased if costs to Buyer associated with the
Property prove to be less than expected nor will the Purchase Price be reduced
if the Buyer's plan for the Property leads to higher cost projections. The sole
remedy of the Buyer will be to terminate this Agreement as provided herein prior
to the end of the Due Diligence Period.
The foregoing waiver and release applies only to Claims that
Buyer may have or assert against any Seller Party in connection with the
Property, and under no circumstances shall such waiver and release be deemed,
construed, or interpreted as an assumption, undertaking, or agreement by Buyer
to be responsible for any Claim by any other person or entity may have or assert
against any Seller Party in connection with the Property. In addition, Buyer
does not intend by the foregoing waiver and release to confer any right, remedy,
or benefit upon any third party, and no third party shall be entitled to
enforce, or otherwise shall acquire any right, remedy, or benefit by reason of,
such waiver and release. Further, notwithstanding the generality of the
foregoing waiver and release, until the date that is eighteen (18) months after
the Closing Date (the "Full Release Date"), such waiver and release shall not
apply to or cover any Claims arising from any of the following ("Release
Exception Claims"): (i) any fraud committed by any Seller Party in connection
with the Property and/or the transactions contemplated in this Agreement; (ii)
any intentional or reckless misrepresentation of any material fact related to
the Property made by any Seller Party; (iii) any intentional or reckless failure
or refusal by any Seller Party to deliver or make available to Buyer any
20
material information concerning the Property in Seller's possession or control;
(iv) any intentional, reckless, or negligent violation of any Laws committed by
any Seller Party with respect to the Property and/or the transactions
contemplated in this Agreement; (v) any intentional, reckless, or negligent act
committed by any Seller Party that results in material physical waste to the
Property prior to the Closing; (vi) any intentional, reckless, or negligent
breach of any covenant contained in Section 14; or (vii) any breach of a
representation or warranty contained in Section 11 above. If, however, Buyer has
actual knowledge as of the Closing Date of the existence of any specific Release
Exception Claim and Buyer nonetheless closes the transactions contemplated
hereunder and acquires the Property, then Seller shall have no liability or
obligation with respect to such specific Release Exception Claim, which shall be
deemed released by Buyer upon the Closing. Buyer will not have any right to
bring an action against Seller as a result of a Release Exception Claim unless
and until: (a) the claim is based upon a direct act or failure to act of any
Seller Party which constitutes a material breach of this Agreement; and (b) the
aggregate amount of all liability and losses arising out of such Release
Exception Claim exceeds Fifty Thousand Dollars ($50,000); provided, however, in
no event will Seller's liability for all Release Exception Claims exceed, in the
aggregate, Five Hundred Thousand Dollars ($500,000). After the Full Release
Date, Buyer may not maintain any action based on a Release Exception Claim
unless Buyer has given Seller written notice of such Release Exception Claim
prior to the Full Release Date.
(c) Sunset Provision. Seller has given certain representations in this
Agreement and it is the intent of the parties hereto that said representations
are given by Seller to Buyer for purposes of assisting Buyer with the due
diligence and Closing of this transaction. Except as set forth in Section
11(c)(xix) hereof, at the Closing, any and all representations and warranties of
Seller to Buyer shall cease.
(d) [Intentionally Deleted].
(e) Contractual Statute of Limitations. In no event may any action for
any reason be commenced against (i) Seller by Buyer, Buyer's assignee, or any
successor in interest or (ii) Buyer by Seller, Seller's assignee, or any
successor in interest, more than eighteen (18) months after the Closing Date,
and Buyer and Seller on behalf of themselves, their assignees, successors and
assigns hereby waive any and all rights to recover any money from the other for
any reason, unless action thereon is commenced within said eighteen (18) month
period following the Closing Date. This "sunset" provision shall apply to any
action brought against Seller including, but not limited to actions based on
Environmental Materials or Seller's representations.
(f) No Oral Representation. Buyer and Seller agree that there are no
oral representations from either party.
14. COVENANTS OF SELLER.
During the pendency of Escrow, Seller covenants and agrees as follows:
(a) Insurance. Seller will keep all Property conveyed hereunder fully
insured for liability against all usual risks. Seller does not carry and will
not carry property insurance. Seller will maintain in effect all insurance
policies now in effect, up to and including the Closing Date.
(b) Further Tenancies & Contracts. Between the date of the execution of
this Agreement and the Closing Date, without the prior written consent of the
Buyer, Seller shall not enter into any lease or other possessory contract
regarding the Property.
21
(c) Operation and Condition Pending Closing. Between the date of this
Agreement and the Closing Date, Seller will continue to manage, operate and
maintain the Property in the same manner as existed prior to the execution of
this Agreement in accordance with all Laws.
(d) Condition of Property. On the Closing Date, Seller shall deliver
the Property in its current "AS IS" condition, ordinary wear and tear excepted.
(e) Title. Seller shall not (i) directly or indirectly sell, assign or
create any right, title or interest whatsoever in or to the Property or (ii)
take any action, create, commit, permit to exist or suffer any acts which would
(A) give rise to a variance from the current legal description of the Real
Property, or (B) cause the creation of any lien, charge or encumbrance other
than the Permitted Exceptions, or (C) enter into any agreement to do any of the
foregoing without Buyer's prior written consent (which consent may be withheld
in Buyer's sole and absolute discretion).
(f) Property Management Agreements and Employees. Seller shall
terminate as of the Closing any property management agreement affecting the
Property. Seller shall be solely responsible for the payment of any and all
wages, salaries, vacation and/or sick leave compensation, pension or profit
sharing benefits and other benefits or compensation inuring to the benefit of
any and all employees of Seller, any affiliate or agent, employed at the
Property through the Closing Date, and all such employees shall, at Seller's
cost and expense, be terminated or otherwise employed by Seller effective as of
the Closing Date.
(g) Notice of Change in Circumstances. Seller shall promptly notify
Buyer of any change in any condition with respect to the Property or any portion
thereof or of any event or circumstance of which Seller has Knowledge subsequent
to the date of this Agreement which (i) materially, adversely affects the
Property or any portion thereof or the use or operation of the Property or any
portion thereof, (ii) makes any representation or warranty of Seller to Buyer
under this Agreement untrue or misleading, or (iii) makes any covenant or
agreement of Seller under this Agreement incapable or less likely of being
performed, it being expressly understood that Seller's obligation to provide
information to Buyer under this Section shall in no way relieve Seller of any
liability for a breach by Seller of any of its representations, warranties,
covenants or agreements under this Agreement.
(i) Development Activities. Seller shall not take any actions with
respect to the development of the Property, including, without limitation,
applying for, pursuing, accepting or obtaining any permits, approvals or other
development entitlements from any governmental or other regulatory entities or
finalizing or entering into any agreements relating thereto without Buyer's
prior written consent (which consent may be withheld in Buyer's sole and
absolute discretion). Seller hereby agrees to reasonably cooperate with Buyer in
Buyer's efforts to obtain such governmental approvals as Buyer deems necessary
to permit Buyer to operate the Property as Buyer wishes.
(j) Litigation. Seller shall not allow to be commenced on its behalf
any action, suit or proceeding with respect to all or any portion of the
Property without Buyer's prior written consent (which consent may be withheld in
Buyer's sole and absolute discretion). In the event Seller receives any notice
of any proceeding of the character described in Sections 11(a)(vi) or
11(a)(xviii) which has not been previously disclosed to Buyer prior to the
Closing, Seller shall promptly advise Buyer in writing.
22
15. INDEMNIFICATION.
Except as otherwise set forth herein, Buyer hereby indemnifies and
agrees to defend and hold Seller harmless from and against any claims, demands,
obligations, losses, costs, damages, liabilities, judgments or expenses
(including reasonable attorneys' fees, charges and disbursements) arising out of
or in connection with the ownership, operation or maintenance of the Property
after the Closing. Seller hereby indemnifies and agrees to defend and hold Buyer
harmless from and against any claims, demands, obligations, losses, costs,
damages, liabilities, judgments or expenses (including reasonable attorneys'
fees, charges and disbursements) arising out of or in connection with the
ownership, operation or maintenance of the Property prior to the Closing. Each
party shall do, execute and deliver, or shall cause to be done, executed and
delivered, all such further acts and instruments which the other party may
reasonably request in order to more fully effectuate the indemnifications
provided for in this Agreement. The provisions of this Section 15 shall survive
the Closing.
16. AFFIRMATIVE REPRESENTATIONS BY SELLER.
All documents executed by Seller which are to be delivered to Buyer at
the Closing are to be or at the time of Closing will be duly executed and
delivered by Seller (or assignee), and are or at the Closing will be legal,
valid and binding obligations of Seller, and do not and at the time of Closing
will not violate any provisions of any agreement, mortgage, deed, note or other
document or instrument to which Seller is a party or to any court order to which
Seller is subject.
17. REPRESENTATIONS AND WARRANTIES OF BUYER.
All documents executed by Buyer which are to be delivered to Seller at
the Closing are to be or at the time of Closing will be duly executed and
delivered by Buyer (or assignee), and are or at the Closing will be legal, valid
and binding obligations of Buyer, and do not and at the time of Closing will not
violate any provisions of any agreement, mortgage, deed, note or other document
or instrument to which Buyer is a party or to any court order to which Buyer is
subject.
18. LOSS BY CASUALTY; CONDEMNATION.
(a) Casualty. Until the date of Closing hereunder, the risk of loss of,
or damage to, the Property by fire or other casualty, and the risk of its being
taken in whole or in part by eminent domain, shall be on Seller. If the Property
or any part thereof is damaged by fire or other casualty, Seller shall
immediately notify Buyer of such fact and one of the following shall apply: If
the damage to the Property cannot reasonably be repaired, or if Seller elects
not to repair the damage to the Property, or if the Property is entirely or
substantially destroyed, Buyer shall have the option of taking the Property in
its altered condition, together with the proceeds of all insurance payable with
respect to the damage or destruction, and paying the Purchase Price therefore.
Alternatively, within thirty (30) days following any fire or other casualty
(notwithstanding the expiration of Buyer's due diligence period or the pendency
of the scheduled Closing Date. Buyer may elect to rescind this Agreement, in
which event all amounts theretofore paid by Buyer to or for the account of
Seller shall be returned to Buyer.
(b) Condemnation. If all or any portion of the Property is taken or
threatened by condemnation or eminent domain (or is the subject of a pending or
contemplated taking which has not been consummated), Seller shall immediately
notify Buyer of such fact. In such event, Buyer shall have the option to
terminate this Agreement by delivering written notice to Seller not later than
thirty (30) days after delivery of such notice from Seller. Upon such
termination, Escrow Agent shall immediately return the Deposit to Buyer, the
parties shall equally share the Cancellation Charges, and neither party shall
23
have any further rights or obligations hereunder, other than pursuant to any
provision hereof which expressly survives the termination of this Agreement. If
Buyer does not elect to terminate this Agreement, Seller shall not compromise,
settle or adjust any award without Buyer's prior written consent (which consent
may be withheld in Buyer's sole and absolute discretion); provided, however,
that Buyer is in compliance with the terms, covenants and conditions of this
Agreement. At the Closing, Seller shall assign and turn over to Buyer, and Buyer
shall be entitled to receive and keep all awards for such taking or pending or
contemplated taking.
19. POSSESSION.
Possession of the Property free of any rights of any other party in
possession shall transfer to the Buyer at the Closing.
20. BACK UP OFFERS.
Seller reserves the right to solicit back up offers on the Property and
to enter into contracts for the sale of the Property which are expressly subject
to Buyer's rights under this Agreement. However, Seller agrees that during the
term of this Agreement, Seller shall not list the Property for sale or otherwise
actively market the Property in a manner which would suggest that this Agreement
is not fully binding. Prior to the termination of this Agreement, Seller shall
not distribute any Property Documents to any potential back up buyers and shall
not permit such other buyers to perform any physical diligence of the Property.
21. MISCELLANEOUS.
(a) Notices. Any notice, consent, request, approval, waiver, or other
communication required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered personally,
by reputable overnight delivery service or by facsimile transmission (with in
the case of a facsimile transmission, confirmation by reputable overnight
delivery service) or five (5) days after deposited in the United States mail,
certified mail, postage prepaid, return receipt required, and addressed as
follows:
If to Seller: Xx. Xxxxxx Xxxxxx
XXXXXXXXXX REALTY GROUP, INC.
000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xx. Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxx X. Xxxxx, Esq.
000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xx. Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000-000-0000
If to Buyer: Winston & Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
24
With a copy to: Mayer, Brown, Xxxx & Maw LLP
000 Xxxxx Xxxxx Xxxxxx -- 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as either party may from time to time specify by notice
hereunder to the other. Notices given by facsimile transmission shall be deemed
to be delivered as of the date and time when transmission and receipt of such
facsimile is when confirmed; and all other notices shall have been deemed to
have been delivered on the date of delivery or refusal.
(b) Brokers and Finders. Seller shall be responsible for the payment of
brokerage fees and/or commissions relating to this transaction to Xxxxxx X.
Xxxxxxxx and Xxxxx Xxxxx of CB Xxxxxxx Xxxxx (collectively, the "Brokers") in
such an amount as are set forth in a separate agreement. Said commissions shall
be paid by Seller from Escrow at the Closing. Seller and Buyer each hereby
represent, warrant to and covenant to each other that it has not dealt with any
third party other than the Brokers in a manner which would obligate the other to
pay any brokerage commission, finder's fee or other compensation due or payable
with respect to the transaction contemplated hereby. Seller hereby indemnifies
and agrees to protect, defend and hold Buyer harmless from and against any and
all claims, losses, damages, costs and expenses (including attorneys' fees,
charges and disbursements) incurred by Buyer by reason of any breach or
inaccuracy of the representation, warranty and agreement of Seller contained in
this Section 21(b). Buyer hereby indemnifies and agrees to protect, defend and
hold Seller harmless from and against any and all claims, losses, damages, costs
and expenses (including attorneys' fees, charges and disbursements) incurred by
Seller by reason of any breach or inaccuracy of the representation, warranty and
agreement of Buyer contained in this Section 21(b). Nothing in this Section or
Agreement shall create any third party beneficiary rights in favor of any
broker. The provisions of this paragraph shall survive the Closing.
(c) Successors and Assigns; Third Parties. This Agreement shall bind
and inure to the benefit of the parties hereto and their respective successors,
heirs, administrators and assigns. Without being relieved of any liability under
this Agreement, Buyer reserves the right to take title to the Property in a name
or assignee other than Buyer. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person or entity, other than the parties hereto and
their successors or assigns, any rights or remedies under or by reason of this
Agreement.
(d) Assignment. Except as provided in this Section 21, neither party to
this Agreement may assign this Agreement to another party, except that either
party may assign this Agreement to an IRC ss. 1031 exchange accommodator in
accordance with Section 21(k) hereof.
(e) Amendments. Except as otherwise provided herein, this Agreement may
be amended or modified by, and only by, a written instrument executed by Seller
and Buyer.
(f) Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of California, without
regard to its principles of conflicts of law.
25
(g) Merger of Prior Agreements. This Agreement contains the entire
agreement of the parties and supersedes all prior negotiations, correspondence,
letters or intent, understandings and agreements between the parties, relating
to the subject matter hereof.
(h) Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original, but all such counterparts shall constitute one and the
same instrument.
(i) Venue. Seller and Buyer mutually agree that in the event any
lawsuit is commenced regarding this Agreement or the Property's condition, use
management, or related matters, then the venue shall be in the State of
California, County of San Mateo.
(j) Time of the Essence. Time is of the essence with respect to all
matters contemplated by this Agreement.
(k) Exchange Transaction. In the event that either party elects to
consummate the transaction contemplated herein by virtue of an exchange
transaction under Section 1031 of the Code, the other party shall cooperate with
exchanging party so as to consummate this transaction pursuant to the provisions
of Section 1031 of the Internal Revenue Code of 1986, subject to the following
conditions:
(i) The period for the Closing shall not be extended by
such exchange transaction;
(ii) No stranger to the transaction shall take title to
any property as part of any such exchange
transaction;
(iii) Neither party shall be required to advance any funds
whatsoever or incur any obligation or liability
whatsoever in connection with any such exchange
transaction; and/or
(iv) If either party uses a qualified intermediary or
exchange accommodation titleholder to effectuate the
exchange, any assignment of the rights or obligations
of such party hereunder shall not relieve, release or
absolve such party of its obligations to the other.
(l) Breach by Seller. In the event that Seller breaches its obligations
or defaults under this Agreement, Buyer shall be entitled to pursue any remedy
available to Buyer hereunder at law or in equity, including, without limitation,
the specific performance of this Agreement. Notwithstanding the foregoing, Buyer
shall not be entitled to exercise a remedy to xxx Seller for damages except to
the extent (i) any Seller Party commits fraud or intentional misconduct or (ii)
any Seller Party directly acts or fails to act in violation of this Agreement.
Seller and Buyer hereby acknowledge and agree that the Property, given its
location, entitlements, density, size, condition, access, proximity to other
amenities and other factors, is unique to Buyer and, therefore, Buyer shall be
entitled to the remedy of specific performance in the event of a breach by
Seller. Any damage claim by Buyer shall be limited by Sections 13(b) and 13(e)
hereof.
(m) Attorneys' Fees. Seller and Buyer shall each bear their own
attorneys' fees in the performance of this Agreement; provided, however, that in
the event of a dispute between Buyer and Seller regarding enforcement or
26
interpretation of this Agreement, the prevailing party in such dispute shall be
entitled to recover from the other party all reasonable attorneys' fees costs
and expenses generated by reason of said dispute.
(n) Headings. The headings of the various sections of this Agreement
are for the convenience of the parties and shall not be used in the
interpretation of this Agreement.
(o) Interpretation. This Agreement shall be construed according to the
normal meaning of words and phrases, and shall not be read against either party
to this Agreement. In any dispute regarding interpretation of this Agreement,
the Court shall seek to base its interpretation on the normal meaning of such
words and phrases.
(p) Days and Business Days. As used in this Agreement, the term "day"
shall refer to a calendar day and the term "business day" shall refer to any
calendar day other than a legal holiday in the State of California, Saturday or
Sunday. In the event that the date for the performance of any covenant or
obligation under this Agreement shall fall on a Saturday, Sunday or legal
holiday under the laws of the State of California, the date for performance
thereof shall be extended to the next business day.
(q) Other Construction. As used herein the term "may" is permissive and
the term "shall" is mandatory. The term "will" means the statement of an
intention and not an obligation. The singular shall include the plural and the
neuter, the masculine and feminine.
(r) Further Assurances. Each party agrees to cooperate with the other
party and to execute such additional instruments and documents as may be
reasonably necessary or proper in order to carry out the provisions of this
Agreement.
(s) No Waiver. The waiver by either party of the performance of any
covenant, condition or promise shall not invalidate this Agreement and shall not
be considered a waiver of any other covenant, condition or promise. The waiver
shall not constitute a waiver of time for performing any other act or any
identical act required to be performed at a later time. The exercise of any
remedy provided in this Agreement shall not be a waiver of any remedy provided
by law, and the provisions in this Agreement for any remedy shall not exclude
any other remedy unless such remedy is expressly excluded.
(t) Invalid Provisions. If any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, unenforceable or illegal
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement, and this Agreement shall be construed as
if such invalid, illegal or unenforceable provisions had never been set forth.
(u) Schedules; Exhibits. All schedules and exhibits attached are
incorporated into this Agreement.
(v) Confidentiality. Buyer and Seller shall keep the pendency of this
transaction, the documents and information supplied by the parties to each other
and the terms and conditions of the transaction contemplated by this Agreement
confidential and shall not disclose any information regarding the same prior to
the Closing; provided, however, that both Buyer and Seller shall have the right
to disclose the terms of this Agreement and other information to their
respective directors, officers, employees, agents, contractors, attorneys,
consultants and such other persons or entities from whom consent to transfer is
required, provided that the parties shall inform all persons receiving such
information of the confidentiality requirement and (to the extent within such
party's control) cause such confidence to be maintained. Buyer acknowledges that
Seller is a publicly traded corporation and must make certain filings with the
Securities and Exchange Commission (hereinafter "SEC"), including reporting of
all material contracts. This Agreement is a material contract. Accordingly,
27
Seller is permitted to make all necessary or appropriate governmental
disclosures, and if an inquiry is made by third parties regarding this sale,
Seller may make appropriate disclosures as required by the federal securities
laws of the United States. In compliance with said laws, Seller shall use its
best efforts to maintain confidentiality of this Agreement, the identity of the
Buyer and any parent or other entity which owns or controls Buyer. Buyer shall
have the right to make inquiries regarding the Property of governmental
officials and current and former service providers, contractors, tenants and
other persons having knowledge of the Property and shall have the right to state
as the basis for any such inquiries that Buyer has entered into this Agreement
with Seller for the purchase and sale of the Property. This confidentiality
provision applies to any and all environmental studies, which studies shall
become the sole property of Seller if Buyer terminates this Agreement in
accordance with Section 8 above. Upon the termination of this Agreement prior to
the Closing, Buyer shall return to Seller and Seller shall return to Buyer,
promptly upon request, all copies of documents and materials supplied by Seller
to Buyer and Buyer to Seller, as applicable. Disclosure of information shall not
be prohibited if that disclosure is of information that is or becomes a matter
of public record or public knowledge as a result of the Closing of this
transaction of from sources other than the parties or their agents, employees,
contractors, attorneys or consultants.
(w) Expenses. Subject to the allocation of Closing Expenses provided in
Section 10(h) hereof, whether or not the transactions contemplated by this
Agreement shall be consummated, all fees and expenses incurred by any party
hereto in connection with this Agreement shall be borne by such party.
28
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the Effective Date set forth above.
SELLER:
XXXXXXXXXX REALTY GROUP, INC.,
A NEVADA CORPORATION
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Xx. Xxxxxx Xxxxxx
Its: President
BUYER:
GULL AVENUE, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
Its: V.P. & Assistant Secretary
29
ESCROW AGENT:
The undersigned Escrow Agent accepts the foregoing Agreement of Purchase and
Sale and Joint Escrow Instructions and agrees to act as Escrow Agent under this
Agreement in strict accordance with its terms.
FIRST AMERICAN TITLE INSURANCE COMPANY,
A CALIFORNIA CORPORATION
By:/s/ Kat Van Steenhuyse
Name: Kat Van Steenhuyse
Its: Vice President
30
EXHIBIT "A"
DESCRIPTION OF REAL PROPERTY
[TO BE PROVIDED BY SELLER]
EXHIBIT "B"
LIST OF PERSONAL PROPERTY
TO BE DELIVERED AT THE CLOSING
[TO BE PROVIDED BY SELLER]
EXHIBIT "C"
XXXX OF SALE
For and in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, XXXXXXXXXX REALTY GROUP, INC., a Nevada corporation (hereinafter
the "Seller") does hereby unconditionally, absolutely, and irrevocably sell,
assign, convey, transfer, and deliver without reservation to GULL AVENUE, LLC, a
Delaware limited liability company, or its Assignee (hereinafter the "Buyer"),
the following personal property which Seller warrants to be free and clear of
all encumbrances, to wit, the personal property is itemized on the Schedule of
Personal Property attached hereto and incorporated herein by this reference. All
such personal property is sold in its "as is" condition.
Seller does hereby covenant with Buyer that the undersigned is the
lawful owner of such personal property, the personal property is free and clear
of all liens, mortgages, pledges, security interests, prior assignments,
encumbrances and claims of any nature other than Permitted Exceptions (as
defined in that certain Purchase and Sale Agreement and Joint Escrow
Instructions [the "Agreement"] dated as of ________ ___, 2006, by and between
Seller and Buyer) and that the undersigned has good right to sell the same as
aforesaid and will warrant and defend the title thereto unto Buyer, its
successors and assigns, against the claims and demands of all persons
whomsoever.
Seller hereby agrees to indemnify, protect, defend and hold Buyer
harmless from and against any and all claims, losses, damages, costs and
expenses (including, without limitation, reasonable attorney's fees and
disbursements) incurred or suffered by Buyer in connection with the personal
property and arising prior to the Closing (as defined in the Agreement).
This Xxxx of Sale shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and
assigns.
This Xxxx of Sale and the legal relations of the parties hereto shall
be governed by and construed and enforced in accordance with the laws of the
State of California, without regard to its principles of conflicts of law.
In the event of any litigation between Assignor and Assignee arising
out of the obligations of Assignor under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing, without limitation, reasonable attorney's fees.
SELLER:
XXXXXXXXXX REALTY GROUP, INC.,
A NEVADA CORPORATION
By:____________________________________
Xx. Xxxxxx Xxxxxx
Its ______________________________
Dated: _____________________, 2006
BUYER:
GULL AVENUE, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: ______________________________
Name: ______________________________
Its: ______________________________
Dated: ________________________, 2006
SCHEDULE OF PERSONAL PROPERTY
EXHIBIT "D"
THE DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Attention:
MAIL TAX STATEMENTS TO:
GRANT DEED
The undersigned Grantor declares that Documentary Transfer Tax is not part of
the public records.
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
XXXXXXXXXX REALTY GROUP, INC., a Nevada corporation ("Grantor"), hereby GRANTS
to GULL AVENUE, LLC, a Delaware limited liability company ("Grantee"), that
certain real property located in the County of San Mateo, State of California
and more particularly described in Exhibit A attached hereto and incorporated
herein by this reference (the "Property"), together with (i) all improvements
located thereon, (ii) all rights, privileges, easements and appurtenances
appertaining to the Property, and (iii) all right, title and interest of Grantor
(if any) in, to and under adjoining streets, rights of way and easements.
IN WITNESS WHEREOF, Grantor has caused its duly authorized
representatives to execute this instrument as of __________ __, 2006.
GRANTOR: XXXXXXXXXX REALTY GROUP, INC.,
a Nevada corporation,
By:______________________________
Xx. Xxxxxx Xxxxxx
Its:
Assessor's Parcel Number(s): ___________
STATE OF CALIFORNIA )
)
COUNTY OF ___________ )
On _____ ___, 2006, before me, ______________________, a Notary Public
in and for said State, personally appeared _________________________ and
___________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
EXHIBIT A
Legal Description of the Property
STATEMENT OF TAX DUE AND REQUEST
THAT TAX DECLARATION NOT BE MADE A PART
OF THE PERMANENT RECORD
IN THE OFFICE OF THE COUNTY RECORDER
(Pursuant to Cal. Rev. and Tax Code Section 11932)
To: Registrar - Recorder
County of San Mateo
Request is hereby made in accordance with the provision of the Documentary
Transfer Tax Act that the amount of tax due not be shown on the original
document which names:
XXXXXXXXXX REALTY GROUP, INC.,
a Nevada corporation, as Grantor,
and
GULL AVENUE, LLC, a Delaware limited liability company, as Grantee.
The property described in the accompanying document is located in San Mateo
County, California.
The amount of tax due to the County of San Mateo on the accompanying document is
$____________, computed on full value of property conveyed.
GRANTOR: XXXXXXXXXX REALTY GROUP, INC.,
a Nevada corporation
By:
Xx. Xxxxxx Xxxxxx
Its:
NOTE: After the permanent record is made, this form will be affixed to the
conveying document and returned with it.
EXHIBIT "E"
SELLER'S CERTIFICATE
The undersigned hereby certifies to GULL AVENUE, LLC ("Buyer") that, as
of the date hereof:
1. all of the representations, covenants and warranties of XXXXXXXXXX
REALTY GROUP, INC. A NEVADA CORPORATION ("Seller") made in or pursuant
to that certain Purchase and Sale Agreement and Joint Escrow
Instructions dated as of ________ ___, 2006 (the "Agreement"), between
Seller and Buyer are true, accurate, correct and complete;
2. all conditions to the Closing (as such term is defined in the
Agreement) that Seller was to satisfy or perform have been satisfied
and performed; and
3. all conditions to the Closing that Buyer was to perform have been
satisfied and performed.
SELLER:
XXXXXXXXXX REALTY GROUP, INC.,
A NEVADA CORPORATION
By:______________________________
Xx. Xxxxxx Xxxxxx,
Its President
EXHIBIT "F"
NON-FOREIGN AFFIDAVIT
1. Section 1445 of the Internal Revenue Code of 1986, as amended (the
"Code"), provides that a transferee of a United States real property
interest must withhold tax if the transferor is a foreign person.
2. In order to inform GULL AVENUE, LLC, a Delaware limited liability
company, and its nominees, designees and assigns (collectively,
"Transferee"), that withholding of tax is not required upon the
disposition by XXXXXXXXXX REALTY GROUP, INC. A NEVADA CORPORATION
("Transferor"), of the United States real property more particularly
described on Exhibit A attached hereto and incorporated herein by
reference (the "Property"), the undersigned Transferor certifies and
declares by means of this certification, the following:
a. Transferor is not a foreign person, foreign corporation, foreign
partnership, foreign trust or foreign estate (as such terms are
defined in the Code and the Income Tax Regulations).
b. Transferor's federal taxpayer identification number is: __________.
c. Transferor's address is:
3. Transferor understands that this certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement
contained in this certification may be punished by fine, imprisonment,
or both.
Under penalty of perjury, Transferor declares that it has carefully
examined this certification and it is true, correct and complete, and the
undersigned declares that it has authority to sign this document on behalf of
Transferor.
IN WITNESS WHEREOF, Xx. Xxxxxx Xxxxxx has executed this certificate.
XXXXXXXXXX REALTY GROUP, INC.,
A NEVADA CORPORATION
By:________________________________
Xx. Xxxxxx Xxxxxx
Its ______________________
Dated: ___________________, 2006
EXHIBIT A
Legal Description of the Property
EXHIBIT "G"
ASSIGNMENT OF SERVICE CONTRACTS, WARRANTIES,
GUARANTIES AND OTHER INTANGIBLES
THIS ASSIGNMENT OF SERVICE CONTRACTS, WARRANTIES, GUARANTIES AND OTHER
INTANGIBLES is made and entered into this _______ day of ________, 2006, by
XXXXXXXXXX REALTY GROUP, INC., a Nevada corporation ("Assignor"), in favor of
GULL AVENUE, LLC, a Delaware limited liability company ("Assignee").
For Good and Valuable Consideration, the receipt of which is hereby
acknowledged, Assignor hereby assigns and transfers unto Assignee all of its
right, title, claim, and interest in and under:
(A) all warranties and guaranties set forth in "Schedule 1" attached
hereto, made by or received from any third party with respect to any building,
building component, structure, fixture, machinery, equipment, or material
situated on, contained in any building or other improvement situated, or
comprising a part of any building or other improvement situated on, any part of
that certain real property described in Exhibit "A" to that certain Purchase and
Sale Agreement and Joint Escrow Instructions (the "Agreement") dated as of
________ ___, 2006, by and between Assignor and Assignee (collectively, the
"Warranties and Guaranties");
(B) all of the service contracts listed in "Schedule 2" attached hereto
(collectively, the "Service Contracts"); and
(C) the Intangibles (as defined in the Agreement) (together with the
Warranties and Guaranties and the Service Contracts, the "Property").
ASSIGNOR AND ASSIGNEE FURTHER HEREBY AGREE AND COVENANT AS FOLLOWS:
1. Assignor covenant that the Warranties and Guaranties described in
Schedule 1 and the Service Contracts described in Schedule 2 are in full force
and effect and there exist no defaults thereunder, nor any acts or events which
with the passage of time or the giving of notice could become defaults
thereunder, on the part of any party thereto.
2. Assignor represents and warrants that (a) its title to the
Intangibles is free and clear of all liens, mortgages, pledges, security
interests, prior assignments, encumbrances and claims of any nature other than
the than Permitted Exceptions (as defined in the Agreement) and (b) Assignor has
good right to sell the same as aforesaid and will warrant and defend the title
thereto unto Assignee, its successors and assigns, against the claims and
demands of all persons whomsoever.
3. Assignor hereby agrees to indemnify, protect, defend and hold
Assignee harmless from and against any and all claims, losses, damages, costs
and expenses (including, without limitation, reasonable attorney's fees and
disbursements) incurred or suffered by Assignee in connection with the Property
and arising prior to the Closing (as defined in the Agreement).
4. This Assignment shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, legal representatives, successors
and assigns.
5. This Assignment and the legal relations of the parties hereto shall
be governed by and construed and enforced in accordance with the laws of the
State of California, without regard to its principles of conflicts of law.
6. In the event of any litigation between Assignor and Assignee arising
out of the obligations of Assignor under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing, without limitation, reasonable attorney's fees.
3. This Assignment shall be binding on and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors in interest,
and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
the day and year first above written.
ASSIGNOR:
XXXXXXXXXX REALTY GROUP, INC.,
A NEVADA CORPORATION
By:________________________________
Xx. Xxxxxx Xxxxxx
Its ____________________________
Dated: ___________________, 2006
ASSIGNEE:
GULL AVENUE, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: ________________________________
Name: ________________________________
Its: ________________________________
Dated:__________________________, 2006
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EXHIBIT "H"
PENDING OR THREATENED LITIGATION AND/OR LAWSUITS
[TO BE PROVIDED BY SELLER]
EXHIBIT "I"
PROPERTY DOCUMENTS
No. Item Delivered
---------------------------------------------------------------------------------- -----------------------------------
1. Property Information
---------------------------------------------------------------------------------- -----------------------------------
a. A list of Personal Property to be sold to Buyer (including any
leased personal property) and all documentation evidencing the
ownership thereof (specifically excluding all Personal Property not
part of the sale to Buyer.
b. All documents evidencing the Intangibles
c. Copies of all outstanding labor, service, equipment, supply,
management, maintenance, concession, utility, construction and
operating contracts, and any amendments thereto to which Seller is a
party (collectively, the "Service Contracts")
d. Property Sales Contracts (prior purchase and sales agreements with
surviving representations, warranties, indemnities or preferential
rights to purchase or lease, first right of negotiation or refusal
regarding the same or other option rights)
e. Copies of any Ground Leases and amendments thereto
f. Copies of all Approvals
g. Property Association Documents: including Conditions, Covenants and
Restrictions, Association Articles of Incorporation and Bylaws,
Financial Statements, Budgets and Information on Reserves,
Reciprocal Easement Agreements
h. Capital Improvement and Preventative Maintenance Program
---------------------------------------------------------------------------------- -----------------------------------
2. Drawings and Specifications, Maps, Plans, Photographs and Appraisals
---------------------------------------------------------------------------------- -----------------------------------
a. All as-built plans and specifications, site plans, aerial
photographs, floor plans, CAD drawing and other similar maps, plans
and drawings.
b. American Land Title Association (ALTA) Survey sufficient to obtain
extended coverage Owner's Policy of Title Insurance
c. Appraisals
---------------------------------------------------------------------------------- -----------------------------------
3. Insurance Information
---------------------------------------------------------------------------------- -----------------------------------
a. Statement of insurance coverage and premiums by policy type, and
evidence of insurance
b. Copies of all pending insurance claims and insurance-related
litigation documents
---------------------------------------------------------------------------------- -----------------------------------
No. Item Delivered
---------------------------------------------------------------------------------- -----------------------------------
4. Governmental Documents
---------------------------------------------------------------------------------- -----------------------------------
a. Development Agreements
b. Building Permits
c. Certificates of Occupancy/Completion
d. Variances
e. Special Conditional Use Permits for Building
f. Special Agreements with Utilities and Districts
g. Environmental Impact Reports (EIR)
h. Negative declarations
i. Other zoning, entitlements and developments rights agreements and
information
j. Any notices of violation, citations, or compliance orders related to
the foregoing
---------------------------------------------------------------------------------- -----------------------------------
5. Engineering Reports and Studies
---------------------------------------------------------------------------------- -----------------------------------
a. Geological, soils, geotechnical, flood zone studies
b. Mechanical, structural, electrical, architectural, engineering and
physical inspection reports which relate to the physical condition,
development and operation of the Property or recommended
improvements thereto, including any seismic retrofit and ADA
compliance reports.
c. All reports, studies, audits, assessments and information concerning
Material of Environmental Concern, if any including any
investigation or remediation reports.
d. Any notices of violation, citations, or compliance orders related to
the foregoing
---------------------------------------------------------------------------------- -----------------------------------
6. Seller Information
---------------------------------------------------------------------------------- -----------------------------------
a. Organizational Documents
b. Authority Documents or Certificates
---------------------------------------------------------------------------------- -----------------------------------
7. Title Information
---------------------------------------------------------------------------------- -----------------------------------
a. Existing Title Policy
b. Current Preliminary Title Report or Commitment and legible copies of
all underlying documents referenced therein, deed vesting Seller
with title, and any maps referenced in the legal description for the
Property
2
