EXHIBIT 10.4
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of this 11th day of November, 2005, by
and between NNN Pacific Corporate Park 1, LLC and NNN Pacific Corporate Park VF,
LLC, ("Seller"), and Makoil Inc. ("Buyer"), with reference to the following
facts:
A. Seller owns certain real property located in Orange County,
California and more specifically described in Exhibit A attached
hereto (the "Land"), commonly known as Pacific Corporate Park
located at 00000 Xxxxxxxxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx and
such other assets, as the same are herein described.
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the Land and the associated assets.
NOW, THEREFORE, in consideration of the mutual covenants, premises and
agreements herein contained, the parties hereto do hereby agree as follows:
1. Purchase and Sale.
1.1. The purchase and sale includes, and at Close of Escrow (hereinafter
defined) Seller shall sell, assign, grant and transfer to Buyer by
grant deed, Seller's entire right, title and interest in and to all
of the following (hereinafter sometimes collectively, the
"Property"):
1.1.1. The Land, together with all structures, buildings,
improvements, machinery, fixtures, and equipment affixed or
attached to the Land and all easements and rights
appurtenant to the Land (all of the foregoing being
collectively referred to herein as the "Real Property");
1.1.2. All leases (the "Leases"), including associated amendments,
with all persons ("Tenants") leasing the Real Property or
any part thereof or hereafter entered into in accordance
with the terms hereof prior to Close of Escrow, together
with all security deposits, other deposits held in
connection with the Leases, Lease guarantees and other
similar credit enhancements providing additional security
for such Leases;
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1.1.3. All tangible and intangible personal property owned by
Seller located on or used in connection with the Real
Property, including, specifically, without limitation,
equipment, furniture, tools and supplies, and all related
intangibles including Seller's interest, if any, in the name
"Pacific Corporate Park (25371 Commercentre Drive)" (the
"Personal Property");
1.1.4. To the extent transferable, all service contracts,
agreements, warranties and guaranties relating to the
operation of the Property and all contractual and other
rights, and claims against third parties, regarding the
Property (the "Contracts"); and
1.1.5. To the extent transferable, all building permits,
certificates of occupancy and other certificates, permits,
licenses and approvals relating to the Property (the
"Permits").
2. Purchase Price.
The total Purchase Price of the Property shall be SEVEN MILLION THREE
HUNDRED THIRTY FIVE THOUSAND Dollars ($7,335,000.00) ("Purchase Price")
payable as follows:
2.1. Deposit/Further Payments/Down Payment.
2.1.1. Within two (2) business days after Opening of Escrow (as
hereinafter defined), Buyer (or Buyer's 1031 Exchange
Intermediary) shall deposit into Escrow the amount of
$100,000.00 (the "Deposit"), in the form of a wire transfer
payable to Commonwealth Land Title Company, at 0000 Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attn: Xxxxxxx Mesh
("Escrow Holder"). Escrow Holder shall place the Deposit
into an interest bearing money market account at a bank or
other financial institution reasonably satisfactory to
Buyer, and interest thereon shall be credited to Buyer's
account.
2.1.2. On or before Close of Escrow, Buyer (or Buyer's 1031
Exchange Intermediary) shall deposit into Escrow the balance
of the Purchase Price, by wire transfer payable to Escrow
Holder.
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3. Title to Property.
3.1. Title Insurance.
3.1.1. Escrow Holder will obtain a Standard Coverage CLTA owner's
policy of title insurance from Commonwealth Land Title
Company (the "Title Company") with their standard provisions
and exceptions (the "Title Policy") in the amount of the
Purchase Price. The Title Policy is to be free and clear of
encumbrances except the Permitted Exceptions (hereafter
defined).
3.2. Procedure for Approval of Title.
During the Inspection Period (hereafter defined) Buyer shall review
the Title Documents (hereinafter defined) and the Survey
(hereinafter defined). If the Title Documents or Survey reflect or
disclose any defect, exception or other matter affecting the
Property ("Title Defects") that is unacceptable to Buyer, then
within eight (8) days after the Opening of Escrow, Buyer shall
provide Seller with written notice of Buyer's objections. Seller
may, at its sole option, elect to cure or remove the objections made
by Buyer. Should Seller elect to attempt to cure or remove the
objections, it shall be a condition precedent to Buyer's obligation
to acquire the Property that Seller cures such title objections, to
Buyer's reasonable satisfaction within ten (10) days after the date
of Buyer's written notice of objections. Unless Seller provides
written notice to Buyer within two (2) days after the date of
Buyer's written notice of objections that Seller intends to cure
Buyer's title objections, Seller shall be deemed to have elected not
to cure or remove Buyer's title objections, and Buyer shall be
entitled, as Buyer's sole and exclusive remedies, either to (i)
terminate this Agreement and obtain a refund of the Deposit by
providing written notice of termination to Seller within five (5)
days after expiration of such two (2) day period and returning the
Due Diligence Items (hereinafter defined) or (ii) waive the
objections and close this transaction as otherwise contemplated
herein. If Buyer shall fail to terminate this Agreement during the
Inspection Period, all matters shown on the Survey or described in
the Title Report, except for monetary liens for indebtedness of the
Seller and any matters the Seller has agreed to cure in writing,
shall be deemed "Permitted Exceptions."
4. Due Diligence Items.
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4.1. Seller shall deliver to Buyer copies of each of the following within
two (2) business days of the Opening of Escrow (collectively, the
"Due Diligence Items"):
4.1.1. The existing survey of the Property, if any (the "Survey");
4.1.2. A current preliminary title report or title commitment (the
"Title Report") for the issuance of policy of title
insurance to Buyer from the Title Company, together with
good and legible copies of all documents constituting
exceptions to the title as reflected in the Title Report as
well as copies of all documents referenced in the legal
description for the Property, (collectively referred to
hereinafter as the "Title Documents");
4.1.3. A list and copies of all permits, licenses, government
authorizations, contracts, including leases, service
contracts, warranties, management, maintenance, leasing
commission and other agreements affecting the Property, if
any, and all modifications amendments and extensions
thereto. Seller agrees not to enter into any additional
leases, contracts or agreements prior to closing which
cannot be canceled upon thirty (30) days written notice
without cost, penalty, or obligation unless such leases,
contracts or other agreements are approved in writing by
Buyer, which approval shall not be unreasonably withheld or
delayed;
4.1.4. All site plans, leasing plans, as-built plans, drawings,
environmental, mechanical, electrical, structural, soils and
similar reports and/or audits and plans and specifications
relative to the Property in the possession or control of
Seller, if any;
4.1.5. True and correct copies of the real estate and personal
property tax statements covering the Property or any part
thereof for each of the two (2) years prior to the current
year and, if available, for the current year;
4.1.6. A schedule and detailed description of all threatened,
current and pending litigation, mediation, arbitration and
administrative proceedings (including any notices of
violations from any governmental agency or property owners
association) with respect to the Property or any part
thereof, if any;
4.1.7. Operating statements for the most recent two calendar years;
and for the first nine (9) months of 2005.
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4.1.8. The tenant files, books and records relating to the
ownership and operation of the Property shall be available
for inspection by Buyer during ordinary business hours
during the entire Inspection Period at Seller's Orange
County, California management office;
4.1.9. An inventory of all personal property located on the
Property, used in the maintenance of the Property or stored
for future use at the Property and an inventory of all
furniture and appliances used in the units, if any; and
4.1.10. A Natural Hazard Disclosure Statement has been provided to
Buyer, and Buyer approves of such statement.
4.1.11. A list of construction, repairs, modifications and
improvements made on/to the Property in the last two (2)
years.
4.1.12. Within ten (10) days after opening Escrow, Seller shall
deliver estoppel certificates, in the form attached hereto
as Exhibit B. from tenants representing all of the square
feet which are leased and occupied by tenants as of the date
this Agreement is fully executed; provided, however, that if
Seller is unable to deliver such estoppel certificates,
despite using commercially reasonable efforts to obtain
them, Seller shall not be in default of this Agreement.
4.1.13. The following documents which are referred to in the
Declaration of Covenants, Conditions and Restrictions for
Pacific Commercentre, to the extent they are recorded in the
public record or are in Seller's possession or control:
(a) Articles of Incorporation of Pacific Commercentre Owners
Association;
(b) Bylaws of Pacific Commercentre Owners Association;
(c) Pacific Commercentre Planned Community District
Regulations;
(d) Pacific Commercentre Planning and Design Guidelines
(including Site Planning Criteria, Architectural
Criteria, Landscape Criteria, Lighting Criteria and
Signage Criteria);
(e) Pacific Commercentre Feature Plan; and
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(f) All amendments and modifications to the above.
4.1.14. Buyer acknowledges that Buyer has received the following
documents which are referred to in the Declaration of
Covenants, Conditions and Restrictions, and Reservation of
Easements for Pacific Corporate Park, to the extent they are
recorded in the public record or are in Seller's possession
or control:
(a) Articles of Incorporation of the Pacific Corporate Park
Owners Association;
(b) Bylaws of the Pacific Corporate Park Owners Association;
(c) Rules and Regulations adopted by the Board of Directors
of the Pacific Corporate Park Owners Association; and
(d) All amendments and modifications to the above.
If Buyer determines that any of the Due Diligence Items specifically
described above have not been delivered within the time set forth
above, Buyer shall give Seller written notice specifying the missing
items, with five (5) business days of the date upon which they
should have been delivered. Any item not listed on such a Buyer
notice shall be conclusively deemed to have been timely delivered.
If within two (2) business days of receipt of such a Buyer notice
Seller sends either the missing materials or a notice advising that
such materials are not within Seller's possession or control, the
Inspection Period shall not be extended because of the failure to
deliver the Due Diligence Items within the time specified.
5. Inspections.
Buyer, at its sole expense, shall have the right to review and inspect the
Due Diligence Items and conduct feasibility, environmental, engineering
and physical studies and other tests and inspections (the "Inspections")
of the Property at any time during the Inspection Period (hereinafter
defined). Buyer, and its duly authorized agents or representatives, shall
be permitted to enter upon the Property at all reasonable times during
the Inspection Period in order to conduct engineering studies, soil tests
and any other Inspections and/or tests that Buyer may deem necessary or
advisable. Buyer must arrange all Inspections of the Property with
Seller's agent at least two (2) business days in advance of any
Inspections. In the event that the review and/or Inspection conducted
pursuant to this paragraph shows any fact, matter or condition to exist
with respect to the Property that is unacceptable
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to Buyer, in Buyer's sole subjective discretion, then Buyer shall be
entitled, as its sole and exclusive remedy, to (1) terminate this
Agreement and obtain a full refund of the Deposit, or (2) waive the
objection, and close the transaction as otherwise contemplated herein.
Buyer agrees to promptly discharge any liens that may be imposed against
the Property as a result of the Inspections and to defend, indemnify and
hold Seller harmless from all, claims, suits, losses, costs, expenses
(including without limitation court costs and attorneys' fees),
liabilities, judgments and damages to the extent incurred by Seller as a
result of any Inspections; provided, however, that Buyer shall not be
deemed liable for merely discovering a preexisting condition.
5.1. Approval.
5.1.1. Subject to Seller complying with its obligations under
Section 4.1 above, Buyer shall have until November 25, 2005
("Inspection Period") to approve or disapprove the
Inspections. If Buyer shall fail to notify Seller and Escrow
Holder of its disapproval of the Inspections in writing
within the Inspection Period, the condition of the Property
shall be deemed approved. If Buyer shall disapprove the
Inspections within the Inspection Period, this Agreement and
the Escrow shall thereupon be terminated and Buyer shall
receive a full refund of its Deposit. Buyer shall not be
entitled to purchase the Property, Seller shall not be
obligated to sell the Property to Buyer and the parties
shall be relieved of any further obligation to each other
with respect to the Property, except as provided in
Paragraph 5.
5.1.2. Notwithstanding anything to the contrary contained herein,
Buyer hereby agrees that, in the event this Agreement is
terminated for any reason, then Buyer shall promptly and at
its sole expense return to Seller all Due Diligence Items
which have been delivered by Seller to Buyer in connection
with the Inspections, along with copies of all reports,
drawings, plans, studies, summaries, surveys, maps and other
data prepared by third parties relating to the Property,
subject to restrictions on Buyer's ability to make any such
materials available to Seller that are imposed in any
agreement with a third party consultant preparing any such
reports or materials ("Buyer's Reports"). Buyer shall
cooperate with Seller at no expense to Buyer in order to
obtain a waiver of any such limitations.
5.1.3. Notwithstanding any contrary provision of this Agreement,
Buyer acknowledges that Seller is not representing or
warranting that any of the Due Diligence Items prepared by
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third parties are accurate or complete, such as the Survey,
engineering reports and the like. Seller advises Buyer to
independently verify the facts and conclusions set forth
therein, provided however, Seller warrants that it has no
knowledge of any material errors or misstatements in such
information regarding the Property.
6. Escrow.
6.1. Opening.
Purchase and sale of the Property shall be consummated through an
escrow ("Escrow") to be opened with Escrow Holder within two (2)
business days after the execution of this Agreement by Seller and
Buyer. Escrow shall be deemed to be opened as of the date fully
executed copies (or counterparts) of this Agreement are delivered to
Escrow Holder by Buyer and Seller ("Opening of Escrow"). This
Agreement shall be considered as the Escrow instructions between the
parties, with such further reasonable instructions as Escrow Holder
shall require in order to clarify its duties and responsibilities.
If Escrow Holder shall require reasonable further Escrow
instructions, Escrow Holder may prepare such instructions on its
usual form. Such reasonable further instructions shall be promptly
signed by Buyer and Seller and returned to Escrow Holder within
three (3) business days of receipt thereof. In the event of any
conflict between the terms and conditions of this Agreement and such
further instructions, the terms and conditions of this Agreement
shall control.
6.2. Close of Escrow.
6.2.1. Escrow shall close ("Close of Escrow") no later than
December 28, 2005.
6.3. Buyer Required to Deliver.
Buyer (or Buyer's 1031 Exchange Intermediary with respect to payment
of Deposits and other funds, excluding funds to be provided through
third party lender financing) shall deliver to Escrow the following:
6.3.1. Within two (2) business days of the Opening of Escrow, the
Deposit;
6.3.2. On or before Close of Escrow, the payment required by
Paragraph 2.1.2; provided, however that Buyer shall not be
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required to deposit the amount specified in Paragraph 2.1.2
until Buyer has been notified by Escrow Holder that (i)
Seller has delivered to Escrow each of the documents and
instruments to be delivered by Seller in connection with
Buyer's purchase of the Property, as provided in Section
6.4; (ii) Title Company has committed to issue and deliver
the Title Policy to Buyer and Seller and (iii) the only
impediment to Close of Escrow is delivery of such amount by
or on behalf of Buyer;
6.3.3. On or before Close of Escrow, such other documents as Title
Company may reasonably require from Buyer in order to issue
the Title Policy;
6.3.4. An original, mutually acceptable assignment and assumption
agreement (the "Assignment and Assumption Agreement") duly
executed by Seller assigning and conveying to Buyer all of
Seller's right, title and interest in and to the Leases and
the Contracts. The Assignment and Assumption Agreement shall
incorporate this Agreement by reference, and shall not
supersede, replace or modify any of the provisions of this
Agreement.
6.4. Seller Required to Deliver.
On or before Close of Escrow, Seller shall deliver to Escrow the
following:
6.4.1. A duly executed and acknowledged grant deed, conveying fee
title to the Property in favor of Buyer (the "Grant Deed");
6.4.2. An executed Certificate of Non-Foreign Status; At the Close
of Escrow. Escrow Holder shall withhold all amounts required
by federal and state law and shall administer such amounts
in accordance with applicable law;
6.4.3. A xxxx of sale of the Personal Property, if any, without
warranty, in favor of Buyer and duly executed by Seller;
6.4.4. Such other documents as Title Company may require from
Seller in order to issue the Title Policy;
6.4.5. Seller shall deliver to Buyer all keys to all buildings and
other improvements located on the Property, combinations to
any safes thereon, and security devices therein in Seller's
possession;
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6.4.6. Seller shall deliver all records and files relating to the
management or operation of the Property, including, without
limitation, all maintenance and repair records, permits,
licenses, certificates of occupancy, tenant financial
statements, all insurance policies, all security contracts,
all tenant files (including correspondence), property tax
bills, and all calculations used to prepare statements of
rental increases under the Leases and statements of common
area charges, insurance, property taxes and other charges
which are paid by tenants of the Property; and
6.4.7. A counterpart original of the Assignment and Assumption
Agreement
6.4.8. At Buyer's request, a recordable Assignment of Declarant's
Rights Under Declaration of Covenants, Conditions and
Restrictions ("Declarant Assignment") executed and
acknowledged by the current declarant if favor of Buyer, as
Assignee, in a form similar to the March 20, 2002 Declarant
Assignment delivered by DT Partners Three Limited
Partnership in favor of NNN Pacific Corporate Park VF, LLC;
provided that such Assignment to Buyer shall expressly state
that it is made without representation or warranty, express
or implied, of any kind or nature.
6.5. Buyer's Costs.
Buyer shall pay the following:
6.5.1. One-half (1/2) of Escrow Holder's fees, costs and expenses;
6.5.2. All other costs customarily borne by purchasers of real
property in Orange County, California; and
6.5.3. If Buyer elects to obtain special endorsements on extended
coverage title insurance, the amount by which the premium
for special endorsements on an extended coverage policy of
title insurance exceeds the premium for the Title Policy.
6.6. Seller's Costs.
Seller shall pay the following:
6.6.1. One-half (1/2) of Escrow Holder's fees, costs and expenses;
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6.6.2. The cost of the basic CLTA title insurance premium;
6.6.3. The cost of recording the Grant Deed, including documentary
transfer taxes; and
6.6.4. All other costs customarily borne by sellers of real
property in Orange County, California.
6.7. Prorations and Credits.
6.7.1. Real property taxes, assessments, rents, and all expenses
the tenant is required to reimburse under the terms of its
lease shall be prorated through Escrow between Buyer and
Seller as of Close of Escrow. Security deposits held by
Seller shall be given to Buyer as a credit towards the
balance of the Purchase Price due at Close of Escrow. Rents,
security deposits and cam expenses shall be approved by
Buyer prior to Close of Escrow. Any delinquent rents
collected by Buyer shall be paid to Seller. Seller shall
have the right to pursue any Tenant for delinquent rent, but
shall not cause a Tenant to be delinquent for their current
rent or become financially unstable. Tax and assessment
prorations shall be based on the latest available tax xxxx.
If, after Close of Escrow, Buyer receives any further or
supplemental tax xxxx relating to any period prior to Close
of Escrow, or Seller receives any further or supplemental
tax xxxx relating to any period after Close of Escrow, the
recipient shall promptly deliver a copy of such tax xxxx to
the other party, and not later than ten (10) days prior to
the delinquency date shown on such tax xxxx Buyer and Seller
shall deliver to the taxing authority their respective
shares of such tax xxxx, prorated as of Close of Escrow.
6.7.2. All leasing commissions earned or owing and tenant
improvement costs with respect to transactions entered into
prior to full execution of this Agreement shall be paid by
Seller, and Seller shall indemnify, defend and hold Buyer
harmless for Lease commission claims brought against the
Property arising therefrom. All leasing commissions for new
Leases executed after the date of this Agreement shall be
prorated between Buyer and Seller as their respective
periods of ownership bear to the primary term of the new
Lease.
6.7.3. Seller agrees to indemnify, defend and hold Buyer harmless
of and from any and all liabilities, claims, demands, suits,
and judgments, of any kind or nature, including court costs
and
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reasonable attorneys' fees brought by third parties and
based on events occurring on or before the date of closing
and which are in any way related to the Property, and all
expenses related thereto, including but not limited to court
costs and attorneys' fees.
6.7.4. Buyer agrees to indemnify, defend and hold Seller harmless
of and from any and all liabilities, claims, demands, suits
and judgments, of any kind or nature, including court costs
and reasonable attorneys' fees, brought by third parties and
based on events first occurring subsequent to the date of
closing and which are in any way related to the Property,
and all expenses related thereto, including, but not limited
to, court costs and attorneys' fees. The existence of
hazardous substances or contamination on the Property at the
time of the Close of Escrow shall not be considered an event
occurring subsequent to the date of the Close of Escrow.
6.8. Determination of Dates of Performance.
Within 2 days after the Opening of Escrow, Escrow Holder shall
prepare and deliver to Buyer and Seller a schedule which shall state
each of the following dates:
6.8.1. The date of Opening of Escrow pursuant to Paragraph 6.1;
6.8.2. The date of receipt of the Title Report by Buyer;
6.8.3. The date by which title must be approved or disapproved by
Buyer pursuant to Paragraph 3.2;
6.8.4. The date by which the Inspections must be approved or
disapproved by Buyer pursuant to Paragraph 5.1.1;
6.8.5. The date by which the amounts described in Paragraph 2 must
be deposited by Buyer, for which determination Escrow Holder
shall assume satisfaction of the condition expressed in
Paragraph 2 on the last date stated for its satisfaction;
and
6.8.6. The date of Close of Escrow pursuant to Paragraph 6.2,
subject to the possible extension of such date pursuant to
Paragraph 9.6.
If any events which determine any of the aforesaid dates occur on a
date other than the date specified or assumed for its occurrence in
this
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Agreement, Escrow Holder shall promptly redetermine as appropriate
each of the dates of performance in the aforesaid schedule and
notify Buyer and Seller of the dates of performance, as
redetermined.
7. Representations, Warranties, and Covenants.
Seller hereby represents and warrants as of the date hereof to Buyer as
follows:
7.1. Each party of which the Seller is comprised is a limited liability
company duly formed and validly existing under the laws of the state
in which it was formed. Seller has full power and authority to enter
into this Agreement, to perform this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and
performance of this Agreement and all documents contemplated hereby
by Seller have been duly and validly authorized by all necessary
action on the part of Seller and all required consents and approvals
have been duly obtained and will not result in a breach of any of
the terms or provisions of, or constitute a default under any
indenture, agreement or instrument to which Seller is a party. This
Agreement is a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, subject to
the effect of applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws affecting the rights
of creditors generally.
7.2. Seller has good and marketable title to the Property, subject to the
conditions of title. There are no outstanding rights of first
refusal, rights of reverter or option relating to the Property or
any interest therein. To Seller's knowledge, there are no unrecorded
or undisclosed documents or other matters which affect title to the
Property. Subject to the Leases, Seller has enjoyed the continuous
and uninterrupted quiet possession, use and operation of the
Property, without material complaint or objection by any person.
7.3. Seller is not a "foreign person" within the meaning of Section
1445(f) of the Internal Revenue Code of 1986, as amended (the
"Code").
7.4. Seller represents and warrants the following to the actual knowledge
of Xxxx Xxxxxx, Asset Manager, and Xxxxx Xxxxxx, property manager,
without the duty of investigation:
(a) All of the Due Diligence Items which were prepared by the
Seller, including the rent roll and operating statements, are
accurate. Seller makes
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no representations about the Due Diligence Items which were prepared
by third parties;
(b) There are no existing material structural defects or any
material structural defects Seller has repaired or cured in the
past, including problems with the roof, walls, foundation, plumbing,
electrical systems, heating, air conditioning and ventilation
systems;
(c) There have been no slipping, sliding, settling, flooding,
ponding, grading, drainage or soils problems;
(d) There are no aspects or conditions of the property which violate
applicable laws, codes or ordinances;
(e) No improvements, alterations or repairs have been made without a
permit where a permit was required;
(f) No government agency has ordered or directed that any repair,
remediation or retrofit work be done that has not been completed to
the satisfaction of the government agency;
(g) Seller is not aware of any hazardous substances or contamination
on or beneath the property or any adjacent property in quantities or
concentrations that could be harmful to human health or the
environment because of flammability, toxicity, reactivity or
corrosiveness, such as asbestos, lead based paint, transformers
containing PCBs or toxic mold;
(h) There is no fire or water damage or dry/damp rot on the property
which is not apparent;
(i) Seller is not aware of any insect or vermin infestations on the
property which are not obvious;
(j) Seller is not aware of any pending or threatened litigation,
arbitration, mediation, administrative proceedings, condemnation
actions or rezoning. redevelopment or plans or proposals affecting
the Property;
(k) Seller is not aware of any liens, encumbrances, covenants,
conditions, restrictions, easements, licenses, charges, assessments,
agreements or contracts (other then tenant leases or rental
agreements) which affect the property that are not recorded in the
official records of the county recorder;
(1) There are no encroachments or boundary disputes or issues
affecting the property or neighboring properties;
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(m) No work has been performed on the property in the last six
months which has not been paid for and/or which could result in a
mechanic's or material supplier's lien on the property;
(n) No tenants are currently delinquent in payment of their rent or
otherwise in breach or violation of their leases or rental
agreements;
(o) Neither Seller nor any tenant is involved as a debtor or debtor
in possession in any bankruptcy, insolvency or probate proceedings;
(p) No insurance company has refused to provide insurance coverage
on the property during Seller's period of ownership , nor canceled
or refused to extend any insurance coverage or policy on the
Property.
Notwithstanding anything to the contrary in this Agreement, no claim
may be brought for any representations contained in this Agreement
or obligations arising from this Agreement unless an action is filed
within six months of the Close of Escrow.
7.5. Covenants of Seller. Seller hereby covenants as follows:
7.5.1. At all times from the date hereof through the date of
closing, Seller shall cause to be in force fire and extended
coverage insurance upon the Property, and public liability
insurance with respect to damage or injury to persons or
property occurring on the Property in at least such amounts
as are maintained by Seller on the date hereof;
7.5.2. From the date of execution of this Agreement through the
date of closing, Seller will not enter into any new lease
with respect to the Property, without Buyer's prior written
consent, which shall not be unreasonably withheld. Exercise
of a renewal option and renewal or extension of the lease
for the tenant on the second floor shall not be considered a
new lease. Any brokerage commission payable with respect to
a new lease shall be prorated between Buyer and Seller in
accordance with their respective periods of ownership as it
bears to the primary term of the new lease. Further, Seller
will not modify any existing Lease covering space in the
Property without first obtaining the written consent of
Buyer which shall not be unreasonably withheld. Buyer shall
have five (5) business days in which to approve or
disapprove of any new lease for which it has a right to
consent. Failure to respond in writing within said time
period shall be deemed to be consent;
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7.5.3. From the date of execution of this Agreement through the
date of closing, Seller shall not sell, assign, or convey
any right, title or interest whatsoever in or to the
Property, or create or permit to attach any lien, security
interest, easement, encumbrance, charge, or condition
affecting the Property (other than the Permitted Exceptions)
without promptly discharging the same prior to closing;
7.5.4. Seller shall not, without Buyer's written approval, (a)
amend or waive any right under any Service Contract, or (b)
enter into any agreement of any type affecting the Property
that would survive the Closing Date;
7.5.5. Seller shall fully and timely comply with all obligations to
be performed by it under the Leases, the Contracts, and all
permits, licenses, approvals and laws, regulations and
orders applicable to the Property.
7.5.6. Prior to the Closing Date, Seller shall maintain the
Property in its condition as of the date of execution of
this Agreement, normal wear and tear excepted.
7.5 Approval of Property. The consummation of the purchase and sale of
the Property pursuant to this Agreement shall be deemed Buyer's
acknowledgement that it has had an adequate opportunity to make such
legal, factual and other inspections, inquiries and investigations
as it deems necessary, desirable or appropriate with respect to the
Property. Such inspections, inquiries and investigations of Buyer
shall be deemed to include, but shall not be limited to, any leases
and contracts pertaining to the Property, the physical components of
all portions of the Property, the physical condition of the
Property, such state of facts as an accurate survey, environmental
report and inspection would show, the present and future zoning
ordinance, ordinances, resolutions. Except as provided otherwise in
this Agreement, Buyer shall not be entitled to and shall not rely
upon, Seller or Seller's agents with regard to, and Seller will not
make any representation or warranty with respect to: (i) the
quality, nature, adequacy or physical condition of the Property
including, but not limited to, the structural elements, foundation,
roof, appurtenances, access, landscaping, parking facilities, or the
electrical, mechanical, HVAC, plumbing, sewage or utility systems,
facilities, or appliances at the Property, if any; (ii) the quality,
nature, adequacy or physical condition of soils or the existence of
ground water at the Property; (iii) the existence, quality, nature,
adequacy or physical condition of any
16
utilities serving the Property; (iv) the development potential of
the Property, its habitability, merchantability, or the fitness,
suitability, or adequacy of the Property for any particular purpose;
(v) the zoning or other legal status of the Property; (vi) the
Property or its operations' compliance with any applicable codes,
laws, regulations, statutes, ordinances, covenants, conditions or
restrictions of any governmental or quasi-governmental entity or of
any other person or entity; (vii) the quality of any labor or
materials relating in any way to the Property; or (viii) the
condition of title to the Property or the nature, status and extent
of any right-of-way, lease, right of redemption, possession, lien,
encumbrance, license, reservation, covenant, condition, restriction,
or any other matter affecting the Property except as expressly set
forth in this Agreement. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT AND THE GRANT DEED, SELLER HAS NOT, DOES NOT, AND WILL NOT
MAKE ANY WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROPERTY
AND SELLER SPECIFICALLY DISCLAIMS ANY OTHER IMPLIED WARRANTIES OR
WARRANTIES ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY
LIMITED TO, ANY WARRANTY OF CONDITION, MERCHANTABILITY,
HABITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
FURTHERMORE, EXCEPT AS PROVIDED OTHERWISE IN THIS AGREEMENT, SELLER
HAS NOT, DOES NOT, AND WILL NOT MAKE ANY REPRESENTATION OR WARRANTY
WITH REGARD TO COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION, OR LAND USE LAWS, RULES, REGULATIONS, ORDERS, OR
REQUIREMENTS INCLUDING, BUT NOT LIMITED TO, THOSE PERTAINING TO THE
HANDLING, GENERATING, TREATING, STORING OR DISPOSING OF ANY
HAZARDOUS WASTE OR SUBSTANCE INCLUDING, WITHOUT LIMITATION,
ASBESTOS, PCB AND RADON. BUYER ACKNOWLEDGES THAT BUYER IS A
SOPHISTICATED BUYER FAMILIAR WITH THIS TYPE OF PROPERTY AND THAT,
SUBJECT ONLY TO THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT
AND CLOSING DOCUMENTS, BUYER WILL BE ACQUIRING THE PROPERTY "AS IS
AND WHERE IS, WITH ALL FAULTS," IN ITS PRESENT STATE AND CONDITION,
SUBJECT ONLY TO NORMAL WEAR AND TEAR AND BUYER SHALL ASSUME THE RISK
THAT ADVERSE MATTERS AND CONDITIONS MAY NOT HAVE BEEN REVEALED BY
BUYER'S INSPECTIONS AND INVESTIGATIONS. BUYER SHALL ALSO ACKNOWLEDGE
AND AGREE THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR
REPRESENTATIONS, COLLATERAL TO OR
17
AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD
PARTY. THE TERMS AND CONDITIONS OF THIS PARAGRAPH SHALL SURVIVE THE
CLOSING, AND NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS.
SELLER SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR
WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH
OR REFERRED TO IN THIS AGREEMENT.
7.6 Buyer and Seller expressly agree that, except for the
representations and warranties contained in this Agreement, the Due
Diligence Items are being provided solely for Buyer's convenience in
assessing the Property and that Buyer shall rely exclusively on its
own inspection of the Property and its independently verified
information. Except with regard to the obligations expressly set
forth in this Agreement and the representations and warranties in
this Agreement, Purchaser hereby releases Seller and its agents,
representatives and employees from any and all liability relating to
the condition of the Property before or after the Close of escrow
and any other matter relating to the Property, whether known or
unknown at the time of the Close of Escrow. For purposes of the
foregoing, Buyer and Seller hereby specifically waive the provisions
of Section 1542 of the California Civil Code and any similar law of
any other jurisdiction. Section 1542 provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOW BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
BUYER AND SELLER HEREBY EXPRESSLY ACKNOWLEDGE THAT EACH HAS
CAREFULLY REVIEWED THIS SECTION AND DISCUSSED IT WITH LEGAL COUNSEL
AND THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL PART OF THIS
AGREEMENT.
BUYER INITIALS: __________ SELLER INITIALS:____________
18
BUYER INITIALS: __________ SELLER INITIALS: ___________
TO THE EXTENT REQUIRED UNDER APPLICABLE LAW, THE PARTIES AGREE THAT
THE DISCLAIMERS IN THIS AGREEMENT ARE "CONSPICUOUS"DISCLAIMERS FOR
PURPOSES OF ANY APPLICABLE LAW.
ALL OF THE MATTERS SET FORTH ABOVE IN SECTIONS 7.4, 7.5 AND 7.6 ARE
EXPRESSLY SUBJECT TO AND CONDITIONED ON SELLER'S FULL COMPLIANCE
WITH ALL DISCLOSURE REQUIREMENTS UNDER APPLICABLE LAW.
8. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller as follows:
8.1. Buyer is a corporation duly organized and validly existing under the
laws of the state in which it was formed. Buyer has full power and
authority to enter into this Agreement, to perform this Agreement
and to consummate the transactions contemplated hereby. The
execution, delivery and performance of this Agreement and all
documents contemplated hereby by Buyer have been duly and validly
authorized by all necessary action on the part of Buyer and all
required consents and approvals have been duly obtained and will not
result in a breach of any of the terms or provisions of, or
constitute a default under any indenture, agreement or instrument to
which Buyer is a party. This Agreement is a legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with
its terms, subject to the effect of applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium or other similar
laws affecting the rights of creditors generally, and equitable
powers of courts.
9. Conditions Precedent to Closing.
The obligations of Buyer pursuant to this Agreement shall, unless
expressly waived by Buyer, be subject to the following conditions
precedent:
9.1. All of the representations, warranties and agreements of Seller set
forth in this Agreement shall be true and correct in all material
respects as of the date hereof, and Seller shall not have on or
prior to closing, failed to meet, comply with or perform in any
material respect any conditions or agreements on Seller's part as
required by the terms of this Agreement.
20
TO THE EXTENT REQUIRED UNDER APPLICABLE LAW, THE PARTIES AGREE THAT
THE DISCLAIMERS IN THIS AGREEMENT ARE " CONSPICUOUS" DISCLAIMERS FOR
PURPOSES OF ANY APPLICABLE LAW.
ALL OF THE MATTERS SET FORTH ABOVE IN SECTIONS 7.4, 7.5 AND 7.6 ARE
EXPRESSLY SUBJECT TO AND CONDITIONED ON SELLER'S FULL COMPLIANCE
WITH ALL DISCLOSURE REQUIREMENTS UNDER APPLICABLE LAW.
8. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller as follows:
8.1. Buyer is a corporation duly organized and validly existing under
the laws of the state in which it was formed. Buyer has full power
and authority to enter into this Agreement, to perform this
Agreement and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement and all
documents contemplated hereby by Buyer have been duly and validly
authorized by all necessary action on the part of Buyer and all
required consents and approvals have been duly obtained and will
not result in a breach of any of the terms or provisions of, or
constitute a default under any indenture, agreement or instrument
to which Buyer is a party. This Agreement is a legal, valid and
binding obligation of Buyer, enforceable against Buyer in
accordance with its terms, subject to the effect of applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws affecting the rights of creditors generally,
and equitable powers of courts.
9. Conditions Precedent to Closing.
The obligations of Buyer pursuant to this Agreement shall, unless
expressly waived by Buyer, be subject to the following conditions
precedent:
9.1. All of the representations, warranties and agreements of Seller
set forth in this Agreement shall be true and correct in all
material respects as of the date hereof, and Seller shall not have
on or prior to closing, failed to meet, comply with or perform in
any material respect any conditions or agreements on Seller's part
as required by the terms of this Agreement.
9.2. There shall be no change in the matters reflected in the Title
Report, and there shall not exist any encumbrance or title defect
affecting the Property not described in the Title Report except
for the Permitted Exceptions or matters to be satisfied at
closing.
19
9.3. Unless Seller receives notice from Buyer at least thirty (30) days
prior to closing, effective as of closing, all management and
brokerage agreements affecting the Property shall be terminated by
Seller and any and all termination fees incurred as a result thereof
shall be the sole obligation of Seller.
9.4. Seller shall have operated and maintained the Property from and
after the date hereof in substantially the same manner as prior
thereto.
9.5. If any such condition is not fully satisfied by closing, Buyer shall
so notify Seller and may terminate this Agreement by written notice
to Seller whereupon this Agreement may be canceled, upon return of
the Due Diligence Items the full Deposit shall be paid to Buyer and,
thereafter, neither Seller nor Buyer shall have any continuing
obligations hereunder.
9.6. If Buyer notifies Seller of a failure to satisfy the conditions
precedent set forth in this paragraph, Seller may, within five (5)
days of receipt of Buyer's Notices agree to satisfy the condition by
written notice to Buyer, and Buyer shall thereupon be obligated to
close the transaction provided Seller so satisfies such condition.
If Seller fails to agree to cure or fails to cure such condition by
the Closing Date, this Agreement shall be canceled and the full
Deposit shall be returned to Buyer and neither party shall have any
further liability hereunder.
9.7. Because Buyer's acquisition of the Property is intended to be part
of a tax-deferred exchange pursuant to Section 1031 of the Code,
Seller agrees to execute such documents or instruments as may be
necessary or appropriate to evidence such exchange, provided that
Seller's cooperation in such regard shall be at no additional cost,
expense, or liability whatsoever to Seller, and that no additional
delays in the scheduled Close of Escrow are incurred unless mutually
agreed upon by all parties to this Agreement.
9.8. It shall be a condition precedent to Buyer's obligation to close
that Buyer shall not have terminated this Agreement because of the
inability of Buyer to secure Acceptable Financing (hereafter
defined) within the Financing Contingency Period (hereafter
defined). Buyer shall diligently endeavor to secure Acceptable
Financing (hereafter defined) during the period which ends December
19, 2005 (the "Financing Contingency Period"). For purposes of this
Section, "Acceptable Financing" shall mean a loan
20
in an amount no less than 70% loan to value, with an interest rate
of no more than 7%, amortized over no less than 20 years, with no
more than a 1% origination fee. If Buyer is unable to secure a
commitment for Acceptable Financing within the Financing Contingency
Period, Buyer may, within the Financing Contingency Period,
terminate this Agreement, in which case the full Deposit shall be
refunded to Buyer. In the event Buyer terminates the Agreement
during the extended Financing Contingency Period, all of the Deposit
shall be refunded to Buyer.
10. Damage or Destruction Prior to Close of Escrow.
In the event that the Property should be damaged by any casualty prior to
the Close of Escrow, then if the cost of repairing such damage, as
estimated by an architect or contractor retained pursuant to the mutual
agreement of the parties, is:
10.1. Less than Twenty-Five Thousand Dollars ($25,000), the Close of
Escrow shall proceed as scheduled and any insurance proceeds
shall be distributed to Buyer to the extent not expended by
Seller for restoration;
or if said cost is:
10.2. Greater than Twenty-Five Thousand Dollars ($25,000), then either
Seller or Buyer may elect to terminate this Agreement, in which
case upon return of the Due Diligence Items the Deposit shall be
returned to Buyer and neither party shall have any further
obligation to the other except for Buyer's indemnification
obligations under Paragraph 5.
11. Eminent Domain.
11.1. If, before the Close of Escrow, proceedings are commenced for the
taking by exercise of the power of eminent domain of all or a
material part of the Property which, as reasonably determined by
Buyer, would render the Property unacceptable to Buyer or
unsuitable for Buyer's intended use, Buyer shall have the right,
by giving notice to Seller within thirty (30) days after Seller
gives notice of the commencement of such proceedings to Buyer, to
terminate this Agreement, in which event this Agreement shall
terminate, the full Deposit shall be returned to Buyer and
neither party shall have any further obligation to the other
except for Buyer's indemnification under Paragraph 5. If, before
the Close of Escrow, proceedings are commenced for the taking by
exercise of
21
the power of eminent domain of less than such a material part of the
Property, or if Buyer has the right to terminate this Agreement
pursuant to the preceding sentence but Buyer does not exercise such
right, then this Agreement shall remain in full force and effect
and, at the Close of Escrow, the condemnation award (or, if not
therefore received, the right to receive such portion of the award)
payable on account of the taking shall be transferred in the same
manner as title to the Property is conveyed. Seller shall give
notice to Buyer within three (3) business days after Seller's
receiving notice of the commencement of any proceedings for the
taking by exercise of the power of eminent domain of all or any part
of the Property.
12. Notices.
12.1. All notices, demands, or other communications of any type given
by any party hereunder, whether required by this Agreement or in
any way related to the transaction contracted for herein, shall
be void and of no effect unless given in accordance with the
provisions of this Paragraph. All notices shall be in writing and
delivered to the person to whom the notice is directed, either in
person, by United States Mail, as a registered or certified item,
return receipt requested by facsimile or by Federal Express.
Notices delivered by mail shall be deemed given when received.
Notices by facsimile or Federal Express shall be deemed received
on the business day following transmission. Notices shall be
given to the following addresses:
Seller: Xxxxxxx Xxxxxx
Triple Net Properties, LLC
0000 X. Xxxxxx Xxx. #000
Xxxxx Xxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
With Required Copy to: Xxxxxx X. XxXxxxx, Esq.
Xxxxxxxxx Xxxxxxxxx
The Federal Reserve Bank Building, 16th Floor
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
(000)000-0000 fax
Buyer: Makoil Inc.
Attn: Xxxx Xxxxxxxxx
22
00000 Xxxxxxxxxxxx Xx., Xxxxx 000
Xxxx Xxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 fax
Either party may change their address and/or facsimile number for notice
purposes by sending notice of such change to the other party in accordance
with the above.
13. Remedies.
13.1. Defaults by Seller. If there is any default by Seller under this
Agreement, following notice to Seller and seven (7) days, during
which period Seller may cure the default, Buyer may, at its option,
(a) declare this Agreement terminated in which case the full Deposit
shall be returned to Buyer and seek actual out of pocket damages not
to exceed Fifty Thousand ($50,000); or (b) treat this Agreement as
being in full force and effect and bring an action against Seller
for specific performance.
13.2. Defaults by Buyer. If there is any default by Buyer under this
Agreement, following notice to Buyer and seven (7) days, during
which period Buyer may cure the default, then Seller may, as its
sole remedy, declare this Agreement terminated, in which case the
Deposit shall be paid to Seller as liquidated damages and each party
shall thereupon be relieved of all further obligations and
liabilities, except any which survive termination. In the event this
Agreement is terminated due to the default of Buyer hereunder, Buyer
shall deliver to Seller, at no cost to Seller, the Due Diligence
Items and all of Buyer's Reports.
14. Assignment.
Buyer may assign its rights under this Agreement to an entity in which
Buyer has a significant interest.
15. Interpretation and Applicable Law.
This Agreement shall be construed and interpreted in accordance with the
laws of the state in which the Property is located (the "State"). Where
required for proper interpretation, words in the singular shall include
the plural; the masculine gender shall include the neuter and the
feminine, and vice versa. The terms "successors and assigns" shall include
the heirs, administrators, executors, successors, and assigns, as
applicable, of any party hereto.
23
16. Amendment.
This Agreement may not be modified or amended, except by an agreement in
writing signed by the parties. The parties may waive any of the conditions
contained herein or any of the obligations of the other party hereunder,
but any such waiver shall be effective only if in writing and signed by
the party waiving such conditions and obligations.
17. Attorney's Fees.
In the event it becomes necessary for either party to file a suit or
arbitration to enforce this Agreement or any provisions contained herein,
the prevailing party shall be entitled to recover, in addition to all
other remedies or damages, reasonable attorneys' fees and costs of court
incurred in such suit or arbitration.
18. Entire Agreement; Survival.
This Agreement (and the items to be furnished in accordance herewith)
constitutes the entire agreement between the parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings of the parties in connection therewith. No
representation, warranty, covenant, agreement, or condition not expressed
in this Agreement shall be binding upon the parties hereto nor affect or
be effective to interpret, change, or restrict the provisions of this
Agreement. The obligations of the parties hereunder and all other
provisions of this Agreement shall survive the closing of this Agreement,
except as expressly limited herein.
19. Multiple Originals only; Counterparts.
Numerous agreements may be executed by the parties hereto. Each such
executed copy shall have the full force and effect of an original executed
instrument. This Agreement may be executed in any number of counterparts,
all of which when taken together shall constitute the entire agreement of
the parties.
20. Acceptance.
Time is of the essence of this Agreement. The date of execution of this
Agreement by the last of Seller or Buyer shall be the date of execution of
this Agreement. If the final date of any period falls upon a Saturday,
Sunday, or legal holiday under Federal law, the laws of the State of
California, then in such event the expiration date of such period shall be
extended to the next
24
day which is not a Saturday, Sunday, or legal holiday under Federal law,
the laws of the State of California.
21. Real Estate Commission.
Seller and Buyer each represent and warrant to the other that neither
Seller nor Buyer has contracted or entered into any agreement with any
real estate broker, agent, finder or any other party in connection with
this transaction, and that neither party has taken any action which would
result in any real estate broker's, finder's or other fees or commissions
being due and payable to any party with respect to the transaction
contemplated hereby, except that Seller has contracted with (a) Xxxxx &
Xxxxx Company, (b) Xxx & Associates and (c) Triple Net Properties Realty,
Inc. as its brokers and Buyer has retained NAI Capital as its broker.
Brokerage commissions and fees payable to such brokers shall be set forth
in separate agreements between Seller and its brokers, and between one or
more of Seller's brokers and NAI Capital. Each party hereby indemnifies
and agrees to hold the other party harmless from any loss, liability,
damage, cost, or expense (including reasonable attorneys' fees) resulting
to the other party by reason of a breach of the representation and
warranty made by such party in this paragraph.
22. Exchange.
Each entity comprising Seller reserves the right to structure the sale of
the Property as a like kind exchange pursuant to Section 1031 of the Code.
In such event Seller shall have the right to assign its interest in this
Agreement to a qualified exchange intermediary of its choosing to effect
such exchange. Buyer shall sign a customary assignment and/or notice of
assignment, however, such assignment shall be at no cost, liability or
expense to Buyer and shall not otherwise affect the term of this
Agreement.
23. Confidentiality.
Buyer agrees that, prior to the closing, all Property information received
by Buyer shall be kept confidential as provided in this paragraph. Without
the prior written consent of Seller, prior to the closing, the Property
information shall not be disclosed by Buyer or its representatives, in any
manner whatsoever, in whole or in part, except (1) to Buyer's
representatives who need to know the Property information for the purpose
of evaluating the Property and who are informed by the Buyer of the
confidential nature of the Property information; (2) as may be necessary
for Buyer or Buyer's representatives to comply with applicable laws,
including, without limitation, governmental, regulatory, disclosure, tax
and reporting requirements; to comply with other requirements and requests
of regulatory and supervisory authorities and self-regulatory
organizations having jurisdiction over Buyer
25
or Buyer's representatives; to comply with regulatory or judicial
processes; or to satisfy reporting procedures and inquiries of credit
rating agencies in accordance with customary practices of Buyer or its
affiliates; and (3) to prospective tenants of the Property.
THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK
26
SIGNATURE PAGE FOR
00000 Xxxxxxxxxxxx Xxxxx
Xxxx Xxxxxx, XX
EXECUTED on this the 10 day of Nov, 2005.
SELLER:
NNN Pacific Corporate Park 1, LLC, a Virginia limited liability company
By: Triple Net Properties, LLC, a Virginia limited liability company,
Its: Manager
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: XXXXXXX XXXXXX
Title: CHIEF INVESTMENT OFFICER
NNN Pacific Corporate Park Plaza VF, LLC, a Virginia limited liability company
By: Triple Net Properties, LLC, a Virginia limited liability company
Its: Manager
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: XXXXXXX XXXXXX
Title: CHIEF INVESTMENT OFFICER
28
EXECUTED on this the 11th day of November, 2005.
BUYER:
Makoil Inc.
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------
Xxxxx Xxxxxxxxx, President
28
EXHIBIT A
Legal Description of the Property
29
EXHIBIT "A"
All that certain real property situated in the County of Orange, State of
California, described as follows:
PARCEL A:
Parcel 3 as shown on Parcel Map No. 2001-247, as per map filed in book 327,
pages 27 through 30, inclusive of Parcel Maps in the office of the County
Recorder of said County.
EXCEPTING from a portion of said land, any and all minerals located within the
real property hereinafter described, including without limitation, all oil, gas,
hydrocarbon and similar rights, and all water, water rights, geothermal steam
and steam power within or underlying such real property, together with the
perpetual right of development thereof, provided, however, that the rights
herein conveyed do not include the right to enter upon the surface and top 500
feet of the subsurface of such real property, as provided in deed to Signal
Properties, Inc., a California corporation, an undivided one-half interest
recorded July 3, 1979 in book 13215, page 646 and to Eastwood Minerals and
Energy Company, a California corporation, an undivided one-half interest,
recorded July 3, 1979 in book 13215, page 649, both of Official Records.
ALSO EXCEPTING from the remainder of said land, all oil, gas, other hydrocarbons
and other minerals in and to said real property in which Grantor presently owns
or may obtain an interest, together with the right as hereinafter limited, to
drill, redrill, deepen, complete and maintain well holes, under, through and
beyond and to drill for, produce, extract, take and remove oil, gas and other
hydrocarbon substances (and water necessary therefor) and other minerals from
and through said real property, together with rights of way and easements for
any and all of the above mentioned purposes, but with no right of entry upon or
through said real property, except beneath a depth of 500 feet below the present
surface of the said real property, as reserved by the Roman Catholic Archbishop
of Los Angeles, a corporation sole, by deed recorded June 23, 1976 in book
11784, page 827 of Official Records.
PARCEL B:
Easements as set forth in Covenants, Conditions and Restrictions recorded
January 10, 1991 as Instrument No. 91-013945, as amended by instruments recorded
October 4, 1991 as Instrument No. 91-540892; September 10, 1992 as Instrument
No. 92-606715; October 1, 1993 as Instrument No. 00-0000000; February 16, 1996
as Instrument No. 19960074202; December 30, 1996 as
Instrument No. 19960655380; and December 19, 1997 as Instrument No. 19970654599,
all of Official Records, and as set forth in Covenants, Conditions and
Restrictions recorded November 3, 2000 as Instrument No. 20000595557, as amended
by instruments recorded March 25, 2002 as Instrument No. 20020243642 and
recorded August 29, 2002 as Instrument No. 20020730519, both of Official
Records.
Assessor's Parcel Number: 000-000-00
EXHIBIT B
Estoppel Certificate
30
1
ESTOPPEL CERTIFICATE
To: ___________________________ Loan No. ________________________
___________________________
___________________________
___________________________
(to be completed by Purchaser)
["Lender"]
and
Makoil Inc. ["Purchaser"]
PROPERTY TO BE MORTGAGED: 00000 Xxxxxxxxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx
[the "Property"]
PREMISES OCCUPIED BY TENANT: 00000 Xxxxxxxxxxxx Xxxxx, Xxxxx._________________,
Xxxx Xxxxxx, Xxxxxxxxxx, which is approximately _____________ square feet [the
"Premises"].
TENANT'S NAME: _____________________________________________________ ["Tenant"].
DESCRIPTION OF TENANT'S BUSINESS: ______________________________________________
________________________________________________________________________________
CURRENT LANLORD'S/LESSOR'S NAME: NNN Pacific Corporate Park 1, LLC and NNN
Pacific VF, LLC, both Virginia limited liability companies [collectively
"Landlord"].
PROSPECTIVE PURCHASER'S/BORROWER'S NAME: Makoil Inc., a Nevada corporation
["Purchaser"]
Landlord requests that Tenant complete and return this Estoppel Certificate for
the benefit of Lender and Purchaser (together with their respective successors
and assigns) in connection with Purchaser's pending acquisition of the Property
and a pending loan from Lender to Purchaser [the "Loan"] which will be secured
by a mortgage or deed of trust on the Property.
TENANT STATEMENTS ABOUT ITS LEASE
Unless otherwise stated by Tenant in Item 21 below, Tenant certifies and
confirms to Lender and Purchaser as follows:
1. An accurate and complete copy of Tenant's original office lease and all
amendments thereto are attached to this Estoppel Certificate as Schedule A
[collectively the "Lease"]. There are no other amendments, modifications,
supplements, extensions or renewals of or
2
to the Lease. The Lease (a) embodies the entire agreement of Tenant and Landlord
concerning the use and occupancy of the Premises, (b) has not been terminated,
cancelled, revoked or rescinded in any manner (and Tenant has not given Landlord
any notice of any such matters), and (c) is currently in full force and effect.
2. Tenant has not assigned, sublet, encumbered or otherwise transferred or
conveyed all or any part of the Premises or Lease, or entered into any agreement
or commitment to do any of the above. No person or entity other than Tenant is
in possession of all or any part of the Premises.
3. To the best of Tenant's knowledge (a) no rental or leasing commission remains
unpaid with respect to the Premises or Lease, (b) no construction, repair or
improvement work has been made to the Premises which has not been fully paid
for, and (c) the Premises and Property are owned solely by Landlord, who holds
the entire interest of the lessor under the Lease.
4. Tenant currently (a) is the sole tenant and occupant of the Premises, (b)
subject to the terms of the Lease, has unconditionally accepted full possession
of the Premises, (c) is open for business and operating such business from the
Premises, and (d) pays the rent and operating expenses due under the Lease and
otherwise performs Tenant's other obligations and responsibilities under the
Lease.
5. Except as provided below (a) all tenant improvement work and other
construction, repair and improvement work to be performed by Landlord or Tenant
under the Lease has been completed, and no un-reimbursed construction or fix-up
allowances are due Tenant, (b) no damage to the Premises or Property exists
which has not been repaired, (c) the Premises and the common areas of the
Property (including, without limitation, parking areas, sidewalks, access ways,
elevators and landscaping) are in compliance with the Lease and are satisfactory
for Tenant's purposes and (d) the windows, walls, roof, ceiling and foundation
are free of leaks and in good repair. The only exception(s) to the above is
described as follows: __________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
6. The Lease and Tenant's obligations under the Lease are guaranteed by: _______
_______________________________________________________________________________.
7. No breach or default by Tenant or Landlord currently exists under the Lease.
No event or condition exists which would be a breach or default under the Lease
if notice had been given or applicable grace/cure periods had expired (or both).
With the exception of __________________________________________________________
______________________, Tenant has no setoffs, credits, claims or defenses to
Tenant's obligation to pay rent, operating expenses or other charges to be paid
under the Lease (including, without limitations, applicable common area charges)
or to enforcement of the Lease.
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8. The original Lease term, and rent commencement date, began _________________.
The current Lease term (excluding extension options) ends on __________________,
and Tenant has no option or right to terminate or cancel the Lease prior to such
date.
9. Tenant has no options or right to extend the term of the Lease, to lease
additional space in the Property, or to purchase the Premises or Property except
for the following:
________________________________________________________________________________
________________________________________________________________________________
10. Effective January 1, 2006, the Minimum Base Rent for the Premises is as
follows:
Monthly Total
Rent Per Monthly
Rental Period Square Foot Rent
------------------------------------- ----------------- ----------------------
January 1, 2006 to ________________ $________________ $_____________________
_________________ to ________________ $________________ $_____________________
_________________ to ________________ $________________ $_____________________
_________________ to ________________ $________________ $_____________________
_________________ to ________________ $________________ $_____________________
_________________ to ________________ $________________ $_____________________
Tenant is obligated to pay its share of Operating Expenses during the entire
remaining term of the Lease. Except as indicated above, there is no free/abated
rent under the Lease.
11. Tenant's share of Operating Expenses under the Lease is ________%.
12. Tenant's last payment of Base Rent in the amount of $ __________________ was
paid on ____________________, 2005. Tenant's last payment of Operating Expenses
in the amount of $ ________________ was paid on __________________, 2005. No
other advance Base Rent or Operating Expenses have been paid by Tenant.
13. Tenant has not paid any refundable deposits under the Lease except for a
security deposit in the amount of $_______________. No portion of the security
deposit has been applied by Landlord towards Tenant's obligations under the
Lease.
14. No bankruptcy, reorganization, insolvency or similar proceedings under any
state or federal law has commenced or is currently proceeding in which Tenant is
the debtor.
15. Tenant has all licenses and permits which Tenant must have to operate its
business from the Premises, and all are current and have not been revoked.
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16. Since taking possession of the Premises, Tenant has not received any notice
that the Premises or Tenant's use of the Premises violates any applicable law,
regulation, ordinance or directive of any governmental authority or agency or
insurance company.
17. Since taking possession of the Premises, Tenant has not stored, generated,
manufactured, refined, treated, transported, disposed or in any way used
materials which are considered hazardous substances or wastes under applicable
environmental laws and regulations (including, without limitation, petroleum or
petroleum by-products) at the Premises or on any other part of the Property,
except for de minimus quantities incidental to the cleaning or operation of
Tenant's business.
18. Tenant is not identified on the list of specially designated nationals and
blocked persons subject to financial sanctions that is maintained by the U.S.
Treasury Department, Office of Foreign Assets Control or any other similar list
maintained by the Office of Foreign Assets Control pursuant to any authorizing
United States law, regulation or Executive Order of the President of the United
States, nor is Tenant subject to trade embargo or economic sanctions pursuant to
any authorizing United States law, regulation or Executive Order of the
President of the United States.
19. Tenant understands that a condition of the Loan may require Lender's consent
to any future amendment, waiver, expansion or renewal (except for expansion or
renewal rights currently permitted to Tenant by the express terms of the Lease),
and no modification, waiver, expansion or renewal made without Lender's written
consent will be enforceable against Landlord or Purchaser.
20. Tenant understands that a condition of the Loan may prohibit Landlord from
accepting Tenant's rent more than 30 days prior to its due date, and no payment
of rent by Tenant more than 30 days in advance will be binding on Lender.
21. Listed below (or on Schedule B attached hereto by Tenant) are any exceptions
asserted by Tenant to the foregoing statements 1-20. (Lender has no obligation
to address Tenant's exceptions in connection with the Loan):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________.
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BY SIGNING BELOW:
- Tenant acknowledges that Purchaser's decision to acquire the Property and
Lender's decision to provide financing to Purchaser for the purpose of acquiring
the Property is based in material part on the certifications set forth above.
Tenant agrees that Purchaser and Lender and their respective successors,
assigns, and personal representatives may rely on such certifications when
making such decisions.
- Tenant certifies that all information stated in this Estoppel Certificate is
accurate and correct in all material respects and does not omit any material
fact that would make any statement false or misleading, and that the undersigned
representative of Tenant is duly authorized to sign this Estoppel Certificate on
Tenant's behalf.
- Tenant agrees for a period of sixty days from the date hereof to notify
Purchaser and Lender in writing of any changes to the statements made by Tenant
in this Estoppel Certificate promptly upon Tenant learning of each such change.
TENANT: __________________________________
Date: _________________, 2005 By: ______________________________________
Print Name: ______________________________
Print Title: _____________________________
BY SIGNING BELOW, Landlord certifies to the best of Landlord's knowledge that
the information disclosed by Tenant above is accurate and complete in all
material respects and does not omit any material fact that would make any
statement false or misleading, and that the undersigned representative of
Landlord is duly authorized to sign this Estoppel Certificate on Landlord's
behalf.
LANDLORD: NNN Pacific Corporate Park 1, LLC
and NNN Pacific Corporate Park VF, LLC
Date: _________________, 2005 By: Triple Net Properties Realty, Inc.
Authorized Agent for Landlord
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
