PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
LBA-VIF UTAH, LLC,
a Delaware limited liability company
AS SELLER
AND
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
AS PURCHASER
FOR
0000 Xxxx Xxxxxx
Xx Xxxxxxx, Xxxxxxxxxx
Dated as of February 15, 2005
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is made as of the
15th day of February, 2005 (the "EFFECTIVE DATE") by and between LBA-VIF UTAH,
LLC, a Delaware limited liability company ("SELLER"), having an office at 00000
Xxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, and HARVARD PROPERTY
TRUST, LLC, a Delaware limited liability company d/b/a Behringer Harvard Funds
("PURCHASER") having an office at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000.
ARTICLE I
PURCHASE AND SALE
1.1 AGREEMENT OF PURCHASE AND SALE. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey and Purchaser
agrees to purchase the following:
(a) that certain tract or parcel of land situated in Los
Angeles County, California, more particularly described on EXHIBIT A attached
hereto and made a part hereof, together with all and singular the rights and
appurtenances pertaining to such property, including any right, title and
interest of Seller in and to adjacent streets, alleys or rights-of-way (the
property described in clause (a) of this Section 1.1 being herein referred to
collectively as the "LAND");
(b) the buildings, structures, fixtures and other
improvements on the Land, including specifically, without limitation, that
certain industrial building located thereon having a street address of 0000 Xxxx
Xxxxxx, Xx Xxxxxxx, Xxxxxxxxxx (the property described in clause (b) of this
Section 1.1 being herein referred to collectively as the "IMPROVEMENTS");
(c) all of Seller's right, title and interest in and to all
tangible personal property upon the Land or within the Improvements, including
specifically, without limitation, appliances, furniture, carpeting, draperies
and curtains, tools and supplies, and other items of personal property
(excluding cash) used exclusively in connection with the operation of the Land
and the Improvements and only as specifically described on EXHIBIT B attached
hereto and made a part hereof (the property described in clause (c) of this
Section 1.1 being herein referred to collectively as the "PERSONAL PROPERTY");
(d) all of Seller's right, title and interest in and to
those certain leases more fully described on EXHIBIT C (the "LEASE SCHEDULE")
attached hereto and made a part hereof (the property described in clause (d) of
this Section 1.1 being herein referred to as the "LEASES"); and
(e) all of Seller's right, title and interest in and to (i)
all assignable contracts and agreements (collectively, the "OPERATING
AGREEMENTS") listed and described on EXHIBIT D (the "OPERATING AGREEMENTS
SCHEDULE") attached hereto and made a part hereof, relating to the upkeep,
repair, maintenance or operation of the Land, Improvements or Personal Property
which will extend beyond the date of Closing (as such term is defined in Section
4.1 hereof), including specifically, without limitation, all assignable
equipment leases, and (ii) all assignable existing
warranties and guaranties (expressed or implied) issued to Seller in connection
with the Improvements or the Personal Property (the property described in this
Section 1.1(e) being sometimes herein referred to collectively as the
"INTANGIBLES").
1.2 PROPERTY DEFINED. The Land, the Improvements, the Personal
Property, the Leases and the Intangibles are hereinafter sometimes referred to
collectively as the "PROPERTY."
1.3 PERMITTED EXCEPTIONS. The Property shall be conveyed subject to
the matters which are, or are deemed to be, Permitted Exceptions pursuant to
Article II hereof (herein referred to collectively as the "PERMITTED
EXCEPTIONS").
1.4 PURCHASE PRICE. Seller is to sell and Purchaser is to purchase
the Property for a total of TWENTY SEVEN MILLION FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($27,500,000.00) (the "PURCHASE PRICE").
1.5 PAYMENT OF PURCHASE PRICE. The Purchase Price, as increased or
decreased by prorations and adjustments as herein provided, shall be payable in
full at Closing in cash by wire transfer of immediately available federal funds
to a bank account designated by Title Company (as such term is defined in
Section 1.6 hereof) in writing to Purchaser prior to the Closing.
1.6 XXXXXXX MONEY. Within three (3) business days after the
execution and delivery of this Agreement, Purchaser shall deposit with Fidelity
National Title Company ("TITLE COMPANY"), having its office at 0000 Xxxx, Xxxxx
000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (Attention: Xxxxx Xxxxxxx), the sum of Five
Hundred Thousand Dollars ($500,000) (the "FIRST DEPOSIT") in good funds, either
by certified bank or cashier's check or by federal wire transfer. If Purchaser
does not exercise the right to terminate this Agreement in accordance with
Section 2.3 or Section 3.2 hereof, Purchaser shall, within three (3) business
days after the last day of the Inspection Period (as such term is defined in
Section 3.1 hereof), deposit with the Title Company the additional sum of Five
Hundred Thousand Dollars ($500,000) (the "SECOND DEPOSIT") in good funds, either
by certified bank or cashier's check or by federal wire transfer as an
additional deposit under this Agreement. The Title Company shall hold the First
Deposit and the Second Deposit in an interest-bearing account in accordance with
the terms and conditions hereof and any supplementary instructions executed by
the parties pursuant to the provisions of Section 1.7 hereof. The First Deposit
and the Second Deposit, together with all interest earned on such sums, are
herein referred to collectively as the "XXXXXXX MONEY." All interest accruing on
such sums shall become a part of the Xxxxxxx Money and shall be distributed as
Xxxxxxx Money in accordance with the terms of this Agreement. Upon the
expiration of the Inspection Period, the Xxxxxxx Money shall be non-refundable
to Purchaser except as expressly set forth in this Agreement. If Purchaser fails
to deliver the Second Deposit to the Title Company within the time period
specified above, this Agreement shall, at the option of Seller, terminate
automatically and, in such event, Title Company shall deliver the Xxxxxxx Money
to Seller promptly thereafter and neither party shall have any further rights,
obligations or liabilities hereunder except to the extent that any right,
obligation or liability set forth herein expressly survives termination of this
Agreement. Time is of the essence for the delivery of Xxxxxxx Money under this
Agreement.
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1.7 DELIVERY TO TITLE COMPANY. Upon mutual execution of this
Agreement, the parties hereto shall deposit an executed copy of this Agreement
with Title Company and this Agreement shall (along with such supplementary
instructions not inconsistent herewith as either party hereto may deliver to
Title Company) serve as escrow instructions to Title Company for the
consummation of the purchase and sale contemplated hereby. Seller and Purchaser
agree to execute such additional escrow instructions as Title Company may
reasonably require and which are not inconsistent with the provisions hereof;
provided, however, that in the event of any conflict between the provisions of
this Agreement and any supplementary escrow instructions, the terms of this
Agreement shall control.
ARTICLE II
TITLE AND SURVEY
2.1 TITLE EXAMINATION; COMMITMENT FOR TITLE INSURANCE. Seller has
obtained from the Title Company and delivered, or shall obtain from the Title
Company and deliver, to Purchaser, an ALTA preliminary title report (the "TITLE
COMMITMENT") covering the Property. Purchaser shall have until the date (the
"TITLE EXAM DEADLINE"), which is ten (10) days prior to the expiration of the
Inspection Period (defined in Section 3.1 hereof) to review the Title Commitment
and at Closing obtain from the Title Company an Owner's Policy of Title
Insurance in the full amount of the Purchase Price pursuant to Section 2.4
hereof.
2.2 SURVEY. Seller has delivered or shall deliver to Purchaser and
the Title Company, Seller's existing ALTA survey of the Property (the "SURVEY").
Purchaser may, at its sole cost and expense, update and recertify the Survey.
2.3 TITLE OBJECTIONS; CURE OF TITLE OBJECTIONS. Purchaser shall have
until the Title Exam Deadline to notify Seller, in writing, of such objections
as Purchaser may have to anything contained in the Title Commitment or the
Survey. Any item contained in the Title Commitment or any matter shown on the
Survey to which Purchaser does not object prior to the Title Exam Deadline shall
be deemed a Permitted Exception. In the event Purchaser shall notify Seller of
objections to title or to matters shown on the Survey prior to the Title Exam
Deadline, Seller shall have the right, but not the obligation, to cure such
objections. Within five (5) days after receipt of Purchaser's notice of
objections, Seller shall notify Purchaser in writing whether Seller elects to
attempt to cure such objections. Seller's failure to respond within said five
(5) day period shall be deemed to be Seller's election not to cure any such
objections. If Seller elects to attempt to cure, and provided that Purchaser
shall not have terminated this Agreement in accordance with Section 3.2 hereof,
Seller shall have until the date of Closing to attempt to remove, satisfy or
cure the same and for this purpose Seller shall be entitled to a reasonable
adjournment of the Closing if additional time is required, but in no event shall
the adjournment exceed sixty (60) days after the date for Closing set forth in
Section 4.1 hereof. If Seller elects not to cure any objections specified in
Purchaser's notice, or if Seller is unable to effect a cure prior to the Closing
(or any date to which the Closing has been adjourned), Purchaser shall have the
following options: (i) to accept a conveyance of the Property subject to the
Permitted Exceptions, specifically including any matter objected to by Purchaser
which Seller is unwilling or unable to cure, and without reduction of the
Purchase Price; or (ii) to terminate this
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Agreement by sending written notice thereof to Seller, and upon delivery of such
notice of termination, this Agreement shall terminate and the Xxxxxxx Money
shall be returned to Purchaser, and thereafter neither party hereto shall have
any further rights, obligations or liabilities hereunder except to the extent
that any right, obligation or liability set forth herein expressly survives
termination of this Agreement. If Seller notifies Purchaser that Seller does not
intend to attempt to cure any title objection; or if, having commenced attempts
to cure any objection, Seller later notifies Purchaser that Seller will be
unable to effect a cure thereof; Purchaser shall, within five (5) days after
such notice has been given, notify Seller in writing whether Purchaser shall
elect to accept the conveyance under clause (i) or to terminate this Agreement
under clause (ii). Purchaser's failure to respond within said five (5) day
period shall be deemed to be Purchaser's election to accept the conveyance under
clause (i) above. Notwithstanding anything to the contrary in this Section 2.3,
Seller shall be obligated to remove from title to the Property at Closing any
deeds of trust or mortgages encumbering the Property.
2.4 CONVEYANCE OF TITLE. At Closing, Seller shall convey and
transfer to Purchaser such title to the Property as will enable the Title
Company to issue to Purchaser an ALTA Owner's Policy of Title Insurance (the
"TITLE POLICY") covering the Property, in the full amount of the Purchase Price.
Notwithstanding anything contained herein to the contrary, the Property shall be
conveyed subject to the following matters, which shall be deemed to be Permitted
Exceptions:
(a) the rights of tenants, as tenants only, under the
Leases;
(b) the lien of all ad valorem real estate taxes and
assessments not yet due and payable as of the date of Closing, subject to
adjustment as herein provided;
(c) local, state and federal laws, ordinances or
governmental regulations, including but not limited to, building and zoning
laws, ordinances and regulations, now or hereafter in effect relating to the
Property; and
(d) items appearing of record or shown on the Survey and, in
either case, not objected to by Purchaser or waived or deemed waived by
Purchaser in accordance with Sections 2.3 or 2.5 hereof.
2.5 PRE-CLOSING "GAP" TITLE DEFECTS. Whether or not Purchaser shall
have furnished to Seller any notice of title objections pursuant to the
foregoing provisions of this Agreement, Purchaser may, at or prior to Closing,
notify Seller in writing of any objections to title first raised by the Title
Company between (a) the expiration of the Inspection Period, and (b) the date on
which the transaction contemplated herein is scheduled to close. With respect to
any objections to title set forth in such notice, Seller shall have the same
option to cure and Purchaser shall have the same option to accept title subject
to such matters or to terminate this Agreement as those which apply to any
notice of objections made by Purchaser before the expiration of the Inspection
Period. If Seller elects to attempt to cure any such matters, the date for
Closing shall be automatically extended by a reasonable additional time to
effect such a cure, but in no event shall the extension exceed sixty (60) days
after the date for Closing set forth in Section 4.1 hereof.
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ARTICLE III
INSPECTION PERIOD
3.1 RIGHT OF INSPECTION. During the period beginning upon the
Effective Date and ending at 5:00 p.m. (local time at the Property) on the date
which is twenty-one (21) days thereafter (hereinafter referred to as the
"INSPECTION PERIOD"), Purchaser shall have the right to make a physical
inspection of the Property and to examine at such place or places at the
Property, in the offices of the property manager or elsewhere as the same may be
located, any operating files maintained by Seller or its property manager in
connection with the leasing, current maintenance and/or management of the
Property, including, without limitation, the Leases, lease files, Operating
Agreements, current budgets, insurance policies, insurance loss histories,
bills, invoices, receipts and other general records relating to the income and
expenses of the Property, correspondence, surveys, plans and specifications,
warranties for services and materials provided to the Property, environmental
audits and similar materials, but excluding materials not directly related to
the leasing, current maintenance and/or management of the Property such as,
without limitation, Seller's internal memoranda, financial projections,
appraisals, accounting and tax records and similar proprietary, elective or
confidential information (collectively, the "CONFIDENTIAL DOCUMENTS"). Purchaser
has advised Seller that Purchaser must cause to be prepared up to three (3)
years of audited financial statements in respect of the Property in compliance
with the policies of Purchaser and certain laws and regulations, including,
without limitation, Securities and Exchange Commission Regulation S-X, Rule
3-14. Seller agrees to use reasonable efforts to cooperate with Purchaser's
auditors in the preparation of such audited financial statements (it being
understood and agreed that the foregoing covenant shall survive Closing).
Without limiting the generality of the preceding sentence (a) Seller shall,
during normal business hours, allow Purchaser's auditors reasonable access to
the books and records maintained by Seller in respect of the Property (excepting
the Confidential Documents); (b) Seller shall use reasonable efforts to provide
to Purchaser such financial information and supporting documentation as are
necessary for Purchaser's auditors to prepare audited financial statements; and
(c) if Seller has audited financial statements with respect to the Property,
Seller shall promptly provide Purchaser's auditors with a copy of such audited
financial statements. If after Closing Seller obtains an audited financial
statement in respect of the Property for a fiscal period in 2003 or 2004 that
was not completed at the time of Closing, then Seller shall promptly provide
Purchaser with a copy of such audited financial statement, and the foregoing
covenant shall survive Closing.
Purchaser understands and agrees that any on-site inspections of the
Property shall be conducted upon at least twenty-four (24) hours' prior written
notice to Seller and in the presence of Seller or its representative. Such
physical inspection shall not unreasonably interfere with the use of the
Property by Seller or its tenants nor shall Purchaser's inspection damage the
Property in any respect. Such physical inspection shall not be invasive in any
respect (unless Purchaser obtains Seller's prior written consent), and in any
event shall be conducted in accordance with standards customarily employed in
the industry and in compliance with all governmental laws, rules and
regulations. Following each entry by Purchaser with respect to inspections
and/or tests on the Property, Purchaser shall restore the Property to a
condition which is as near as possible to its original condition as existed
prior to any such inspections and/or tests. Seller shall cooperate
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with Purchaser in its due diligence but shall not be obligated to incur any
liability or expense in connection therewith. Seller shall have the right to
have a representative present at any interviews Purchaser conducts with tenants
of the Property, and Purchaser shall not disrupt Seller's or any tenant's
activities on the Property. Purchaser agrees to indemnify against and hold
Seller harmless from any claim for liabilities, costs, expenses (including
reasonable attorneys' fees actually incurred) damages or injuries arising out of
or resulting from the inspection of the Property by Purchaser or its agents, and
notwithstanding anything to the contrary in this Agreement, such obligation to
indemnify and hold harmless Seller shall survive Closing or any termination of
this Agreement. All inspections shall occur at reasonable times agreed upon by
Seller and Purchaser. Prior to Purchaser entering the Property to conduct the
inspections and/or tests described above, Purchaser shall obtain and maintain,
at Purchaser's sole cost and expense, and shall deliver to Seller evidence of,
the following insurance coverage, and shall cause each of its agents and
contractors to obtain and maintain, and, upon request of Seller, shall deliver
to Seller evidence of, the following insurance coverage: general liability
insurance, from an insurer reasonably acceptable to Seller, in the amount of Two
Million and No/100 Dollars ($2,000,000.00) combined single limit for personal
injury and property damage per occurrence, such policy to name Seller as an
additional insured party, which insurance shall provide coverage against any
claim for personal liability or property damage caused by Purchaser or its
agents, employees or contractors in connection with such inspections and/or
tests.
3.2 RIGHT OF TERMINATION. Seller agrees that in the event Purchaser
determines (such determination to be made in Purchaser's sole discretion) that
the Property is not suitable for its purposes, Purchaser shall have the right to
terminate this Agreement by giving written notice thereof to Seller prior to the
expiration of the Inspection Period. If Purchaser gives such notice of
termination within the Inspection Period, this Agreement shall terminate and the
Xxxxxxx Money shall be returned to Purchaser. Time is of the essence with
respect to the provisions of this Section 3.2. If Purchaser fails to give Seller
a notice of termination prior to the expiration of the Inspection Period,
Purchaser shall no longer have any right to terminate this Agreement under this
Section 3.2 and (subject to the provisions of Section 2.5 hereof) shall be bound
to proceed to Closing and consummate the transaction contemplated hereby
pursuant to the terms of this Agreement.
ARTICLE IV
CLOSING
4.1 TIME AND PLACE. The parties shall conduct an escrow closing (the
"CLOSING") on the date which is fifteen (15) days after the expiration of the
Inspection Period or such later date as the same may be extended to pursuant to
Section 2.3 or 2.5 hereof (the "CLOSING DATE"). In the event the Closing does
not occur on or before the Closing Date, the Title Company shall, unless it is
notified by both Seller and Purchaser to the contrary within three (3) days
after the Closing Date, return to the depositor thereof items other than the
Xxxxxxx Money which were deposited thereunder; any such return shall not,
however, relieve either party of any liability it may have for its wrongful
failure to close. At Closing, Seller and Purchaser shall perform the
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obligations set forth in, respectively, Section 4.2 hereof and Section 4.3
hereof, the performance of which obligations shall be concurrent conditions.
4.2 SELLER'S OBLIGATIONS AT CLOSING. Not later than one business day
prior to Closing, Seller shall deliver to the Title Company:
(a) a duly executed grant deed in the form of EXHIBIT E
attached hereto, conveying the Land and Improvements, subject only to the
Permitted Exceptions; the warranty of title in the Deed will be only as to
claims made by, through or under Seller and not otherwise;
(b) four (4) a duly executed counterparts of a xxxx of sale
in the form of EXHIBIT F attached hereto;
(c) four (4) duly executed counterparts of an assignment and
assumption agreement as to the Leases in the form of EXHIBIT G attached hereto;
(d) four (4) duly executed counterparts of an assignment and
assumption agreement as to the Operating Agreements and other Intangibles in the
form of EXHIBIT H attached hereto;
(e) the Tenant Estoppels (as defined in Section 5.4(b)
hereof), to the extent received by Seller from the tenants under the Leases;
(f) four (4) duly executed originals of a notice in the form
of EXHIBIT I attached hereto which Purchaser shall send to each of the tenants
under the Leases informing such tenants of the sale of the Property and of the
assignment to Purchaser of Seller's interest in, and obligations under, the
Leases (including, if applicable, any security deposits) and directing that all
rent and other sums payable under the Leases after the Closing shall be paid as
set forth in the notice;
(g) four (4) originals of a certificate, dated as of the
date of Closing and executed on behalf of Seller by a duly authorized officer
thereof, stating that the representations and warranties of Seller contained in
this Agreement are true and correct in all material respects as of the date of
Closing (with appropriate modifications of those representations and warranties
made in Section 5.1 hereof to reflect any changes therein including without
limitation any changes resulting from actions under Section 5.4 hereof) or
identifying any representation or warranty which is not, or no longer is, true
and correct and explaining the state of facts giving rise to the change. In no
event shall Seller be liable to Purchaser for, or be deemed to be in default
hereunder by reason of, any breach of representation or warranty which results
from any change that (i) occurs between the Effective Date and the date of
Closing and (ii) is expressly permitted under the terms of this Agreement or is
beyond the reasonable control of Seller to prevent; provided, however, that the
occurrence of a change which is not permitted hereunder or is beyond the
reasonable control of Seller to prevent shall, if materially adverse to
Purchaser, constitute the non-fulfillment of the condition set forth in Section
4.7(b) hereof; if, despite changes or other matters described in such
certificate, the Closing occurs, Seller's
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representations and warranties set forth in this Agreement shall be deemed to
have been modified by all statements made in such certificate;
(h) such evidence as Purchaser's counsel and/or the Title
Company may reasonably require as to the authority of the person or persons
executing documents on behalf of Seller;
(i) four (4) duly executed counterparts of an affidavit by
Seller stating that Seller is not a "foreign person" as defined in the Federal
Foreign Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act
in the form of EXHIBIT J attached hereto, and four (4) duly executed originals
of a California Form 593-C;
(j) the Leases, Operating Agreements and licenses and
permits, if any, in the possession of Seller or Seller's agents, together with
such leasing and property files and records which are material in connection
with the continued operation, leasing and maintenance of the Property; and
(k) such additional documents as shall be reasonably
required to consummate the transaction expressly contemplated by this Agreement.
At the Closing, Seller shall deliver to Purchaser possession and occupancy of
the Property, subject to the Permitted Exceptions. Purchaser shall cooperate
with Seller for a period of two (2) years after the Closing in case of Seller's
need in response to any legal requirements, tax audits, tax return preparation
or litigation threatened or brought against Seller, by allowing Seller and its
agents or representatives access, upon reasonable advance notice (which notice
shall identify the nature of the information sought by Seller), at all
reasonable times to examine and make copies of any and all instruments, files
and records, which right shall survive the Closing.
4.3 PURCHASER'S OBLIGATIONS AT CLOSING. Not later than one business
day prior to Closing, Purchaser shall deliver to Title Company:
(a) the full amount of the Purchase Price, as increased or
decreased by prorations and adjustments as herein provided, in immediately
available wire transferred funds pursuant to Section 1.5 hereof, it being agreed
that at Closing the Xxxxxxx Money shall be delivered to Seller and applied
towards payment of the Purchase Price;
(b) four (4) duly executed counterparts of the instruments
described in Sections 4.2(b), 4.2(c), 4.2(d) and 4.2(f) hereof;
(c) such evidence as Seller's counsel and/or the Title
Company may reasonably require as to the authority of the person or persons
executing documents on behalf of Purchaser; and
(d) such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
4.4 TITLE COMPANY'S OBLIGATIONS AT CLOSING. At Closing, Title
Company shall:
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(a) at such time as Title Company holds and is irrevocably
obligated to deliver the Purchase Price to Seller, record the Deed in the
Official Records of Los Angeles County, California.
(b) deliver to Seller the Purchase Price by wire transfer of
immediately available federal funds to a bank account designated by Seller in
writing to Title Company prior to the Closing;
(c) deliver to Seller and Purchaser two (2) fully executed
counterparts of the instruments described in Sections 4.2(b), 4.2(c), 4.2(d),
4.2(f), 4.2(g) and 4.2(i) hereof; and
(d) deliver to Seller and Purchaser settlement statements
prepared by Title Company and approved by Seller and Purchaser not less than two
(2) business days prior to the Closing (it being agreed that the Title Company
shall circulate to the parties an initial draft of the settlement statements no
later than five (5) business days prior to the Closing).
4.5 CREDITS AND PRORATIONS.
(a) The following shall be apportioned with respect to the
Property as of 12:01 a.m., on the day of Closing, as if Purchaser were vested
with title to the Property during the entire day upon which Closing occurs:
(i) rents, if any, as and when collected (the term
"rents" as used in this Agreement includes all payments due and
payable by tenants under the Leases);
(ii) taxes (including personal property taxes on the
Personal Property) and assessments levied against the Property;
(iii) payments under the Operating Agreements;
(iv) gas, electricity and other utility charges for
which Seller is liable, if any, such charges to be apportioned
at Closing on the basis of the most recent meter reading
occurring prior to Closing; and
(v) any other operating expenses or other items
pertaining to the Property which are customarily prorated
between a purchaser and a seller in the area in which the
Property is located.
(b) Notwithstanding anything contained in the foregoing
provisions:
(i) At Closing, (A) Seller shall, at Seller's
option, either deliver to Purchaser any security deposits
actually held by Seller pursuant to the Leases or credit to the
account of Purchaser the amount of such security deposits (to
the extent such security deposits are not applied against
delinquent rents or otherwise as provided in the Leases), and
(B) Purchaser shall credit to the account of Seller all
refundable cash or other deposits posted with utility companies
serving the
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Property, or, at Seller's option, Seller shall be entitled to
receive and retain such refundable cash and deposits.
(ii) Any taxes paid at or prior to Closing shall be
prorated based upon the amounts actually paid. If taxes and
assessments for the current year have not been paid before
Closing, Seller shall be charged at Closing an amount equal to
that portion of such taxes and assessments which relates to the
period before Closing and Purchaser shall pay the taxes and
assessments prior to their becoming delinquent. Any such
apportionment made with respect to a tax year for which the tax
rate or assessed valuation, or both, have not yet been fixed
shall be based upon the tax rate and/or assessed valuation last
fixed. To the extent that the actual taxes and assessments for
the current year differ from the amount apportioned at Closing,
the parties shall make all necessary adjustments by appropriate
payments between themselves following Closing.
(iii) Charges referred to in Section 4.5(a) hereof
which are payable by any tenant to a third party shall not be
apportioned hereunder, and Purchaser shall accept title subject
to any of such charges unpaid and Purchaser shall look solely to
the tenant responsible therefor for the payment of the same. If
Seller shall have paid any of such charges on behalf of any
tenant, and shall not have been reimbursed therefor by the time
of Closing, Purchaser shall credit to Seller an amount equal to
all such charges so paid by Seller.
(iv) Seller shall receive the entire advantage of any
discounts for the prepayment by it of any taxes, water rates or
sewer rents.
(v) As to gas, electricity and other utility charges
referred to in Section 4.5(a)(iv) hereof, Seller may on notice
to Purchaser elect to pay one or more of all of said items
accrued to the date herein above fixed for apportionment
directly to the person or entity entitled thereto, and to the
extent Seller so elects, such item shall not be apportioned
hereunder, and Seller's obligation to pay such item directly in
such case shall survive the Closing.
(vi) Purchaser shall pay to Seller the amount of any
and all sales or similar taxes payable in connection with the
Personal Property and Purchaser shall execute and deliver any
tax returns required of it in connection therewith, said
obligations of Purchaser to survive Closing.
(vii) Purchaser shall be responsible for the payment
of (A) all Tenant Inducement Costs (as hereinafter defined) and
leasing commissions which become due and payable (whether before
or after Closing) as a result of any renewals or modifications
of the Leases, or any new Leases, approved or deemed approved in
accordance with Section 5.4 hereof, between the Effective Date
and the date of Closing, and (B) all Tenant Inducement Costs and
leasing commissions which become due and payable from and after
the date of Closing. If, as of the date of Closing, Seller shall
have paid any Tenant Inducement Costs
10
or leasing commissions for which Purchaser is responsible
pursuant to the foregoing provisions, Purchaser shall reimburse
Seller therefor at Closing. For purposes hereof, the term
"TENANT INDUCEMENT COSTS" shall mean any out-of-pocket payments
required under any Leases to be paid by the landlord thereunder
to or for the benefit of the tenant thereunder which is in the
nature of a tenant inducement, including specifically, without
limitation, tenant improvement costs, lease buyout costs, and
moving, design, refurbishment and club membership allowances.
The term "TENANT INDUCEMENT COSTS" shall not include loss of
income resulting from any free rental period, it being agreed
that Seller shall bear the loss resulting from any free rental
period until the date of Closing and that Purchaser shall bear
such loss from and after the date of Closing.
(viii) Unpaid and delinquent rent collected by Seller
and Purchaser after the date of Closing shall be delivered as
follows: (a) if Seller collects any unpaid or delinquent rent
for the Property, Seller shall, within fifteen (15) days after
the receipt thereof, deliver to Purchaser any such rent which
Purchaser is entitled to hereunder relating to the date of
Closing and any period thereafter, and (b) if Purchaser collects
any unpaid or delinquent rent from the Property, Purchaser
shall, within fifteen (15) days after the receipt thereof,
deliver to Seller any such rent which Seller is entitled to
hereunder relating to the period prior to the date of Closing.
Seller and Purchaser agree that (i) all rent received by Seller
or Purchaser within the first ninety (90) day period after the
date of Closing shall be applied first to delinquent rentals, if
any, in the order of their maturity, and then to current
rentals, and (ii) all rent received by Seller or Purchaser after
the first ninety (90) day period after the date of Closing shall
be applied first to current rentals and then to delinquent
rentals, if any, in inverse order of maturity. Purchaser will
make a good faith effort after Closing to collect all rents in
the usual course of Purchaser's operation of the Property, but
Purchaser will not be obligated to institute any lawsuit or
other collection procedures to collect delinquent rents. In the
event that there shall be any rents or other charges under the
Leases which, although relating to a period prior to Closing, do
not become due and payable until after Closing or are paid prior
to Closing but are subject to adjustment after Closing (such as
year end common area expense reimbursements and the like), then
any rents or charges of such type received by Purchaser or its
agents or Seller or its agents subsequent to Closing shall, to
the extent applicable to a period extending through the Closing,
be prorated between Seller and Purchaser as of Closing and
Seller's portion thereof shall be remitted promptly to Seller by
Purchaser.
(c) In the event that a post closing true-up is necessary,
Purchaser shall work diligently with Seller to finalize the prorations as soon
as possible, but in no event later than forty-five (45) days after the close of
the calendar year. Purchaser shall be responsible for billing and collecting, if
necessary, any amounts owed by tenants as a result of the true-up. Purchaser
agrees to refund Seller's portion of Landlord's CAM reimbursement within thirty
(30) days of receipt of funds. If any tenant is owed a refund, Seller agrees to
refund to Purchaser its proportionate share within forty-five (45) days after
receiving notification from Purchaser of
11
such amounts owed; Seller shall have the right to review the true-up and
withhold any refund until the completion of said review.
(d) The provisions of this Section 4.5 shall survive
Closing.
4.6 CLOSING COSTS. Seller shall pay (a) the fees of any counsel
representing it in connection with this transaction; (b) the CLTA portion of the
premium for the Owner's Policy of Title Insurance to be issued to Purchaser by
the Title Company at Closing; (c) any transfer tax, documentary stamp tax or
similar tax which becomes payable by reason of the transfer of the Property; and
(d) one-half (1/2) of any escrow fee which may be charged by Title Company.
Purchaser shall pay (u) the fees of any counsel representing Purchaser in
connection with this transaction; (v) the premium for the ALTA portion of the
Owner's Policy of Title Insurance to be issued to Purchaser by the Title Company
at Closing and the costs of any endorsements thereto; (w) for the cost of the
any update or recertification of the Survey; (x) the fees for recording the deed
conveying the Property to Purchaser; and (y) one-half (1/2) of any escrow fees
charged by Title Company. All other costs and expenses incident to this
transaction and the closing thereof shall be paid by the party incurring same.
4.7 CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASER. The obligation
of Purchaser to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the
items required to be delivered to Purchaser pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section 4.2
hereof.
(b) All of the representations and warranties of Seller
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing (with appropriate modifications permitted under this
Agreement or not adverse to Purchaser).
(c) Seller shall have performed and observed, in all
material respects, all covenants and agreements of this Agreement to be
performed and observed by Seller as of the date of Closing.
4.8 CONDITIONS PRECEDENT TO OBLIGATION OF SELLER. The obligation of
Seller to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as
adjusted pursuant to and payable in the manner provided for in this Agreement.
(b) Purchaser shall have delivered to Seller all of the
items required to be delivered to Seller pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section 4.3
hereof.
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(c) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing.
(d) Purchaser shall have performed and observed, in all
material respects, all covenants and agreements of this Agreement to be
performed and observed by Purchaser as of the date of Closing.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby makes
the following representations and warranties to Purchaser as of the Effective
Date:
(a) ORGANIZATION AND AUTHORITY. Seller has been duly
organized and is validly existing under the laws of Delaware. Seller has the
full right, power and authority to enter into this Agreement and, to transfer
all of the Property to be conveyed by Seller pursuant hereto and to consummate
or cause to be consummated the transactions contemplated herein to be made by
Seller. The person signing this Agreement on behalf of Seller is authorized to
do so.
(b) PENDING ACTIONS. To Seller's knowledge, there is no
action, suit, arbitration, unsatisfied order or judgment, governmental
investigation or proceeding pending against the Property or the transaction
contemplated by this Agreement, which, if adversely determined, could
individually or in the aggregate have a material adverse effect on title to the
Property or any portion thereof or which could in any material way interfere
with the consummation by Seller of the transaction contemplated by this
Agreement.
(c) LEASES. Seller is the lessor or landlord or the
successor lessor or landlord under the Leases. Except as set forth in the Lease
Schedule, to Seller's knowledge, there are no other leases or occupancy
agreements to which Seller is a party affecting the Property. Seller does not
represent or warrant that any of the Leases will be in force or effect at
Closing or that the tenants under the Leases will have performed its or their
obligations thereunder. The termination of any of the Leases prior to Closing by
reason of the tenant's default shall not affect the obligations of Purchaser
under this Agreement in any manner or entitle Purchaser to an abatement of or
credit against the Purchase Price or give rise to any other claim on the part of
Purchaser.
(d) CONDEMNATION. To Seller's knowledge, no condemnation
proceedings relating to the Property are pending or threatened.
(e) LEASING COMMISSIONS. To Seller's actual knowledge, all
leasing commissions which are attributable solely to the execution of Leases
existing as of the Effective Date (but not as to future renewals, expansions and
the like) or the move-in of tenants occupying the Property as of the Effective
Date have been paid in full.
(f) MANAGEMENT AGREEMENTS. Any and all property management
contracts and leasing agreements with respect to the Property shall be
terminated by Seller as of the
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Closing, with Seller having fully paid and discharged any and all obligations
accruing thereunder (other than with respect as to leasing commissions, as to
future renewals, expansions and the like).
5.2 KNOWLEDGE DEFINED. References to the "knowledge" of Seller shall
refer only to the actual knowledge of the Designated Employee (as hereinafter
defined) of LBA Realty, and shall not be construed, by imputation or otherwise,
to refer to the knowledge of Seller, or any affiliate of Seller, to any property
manager, or to any other officer, agent, manager, representative or employee of
Seller or any affiliate thereof or to impose upon such Designated Employee any
duty to investigate the matter to which such actual knowledge, or the absence
thereof, pertains. As used herein, the term "Designated Employee" shall refer to
the following person: Xxxxxx Xxxxxxxxx.
5.3 SURVIVAL OF SELLER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller set forth in Section 5.1 hereof as
updated by the certificate of Seller to be delivered to Purchaser at Closing in
accordance with Section 4.2(g) hereof, shall survive Closing for a period of
sixty (60) days. No claim for a breach of any representation or warranty of
Seller shall be actionable or payable (a) if the breach in question results from
or is based on a condition, state of facts or other matter which was known to
Purchaser prior to Closing, (b) unless the valid claims for all such breaches
collectively aggregate more than One Hundred Thousand and No/100 Dollars
($100,000), in which event the full amount of such claims shall be actionable,
and (c) unless written notice containing a description of the specific nature of
such breach shall have been given by Purchaser to Seller prior to the expiration
of said sixty (60) day period and an action shall have been commenced by
Purchaser against Seller within ten (10) days after the termination of the
survival period provided for above in this Section 5.3. Purchaser agrees to
first seek recovery under any insurance policies, service contracts and Leases
prior to seeking recovery from Seller, and Seller shall not be liable to
Purchaser if Purchaser's claim is satisfied from such insurance policies,
service contracts or the Leases. As used herein, the term "Cap" shall mean the
total aggregate amount of Two Hundred Fifty Thousand Dollars ($250,000). In no
event shall Seller's aggregate liability to Purchaser for breach of any
representation or warranty of Seller in this Agreement or the certificate to be
delivered by Seller at Closing pursuant to Section 4.2(g) hereof exceed the
amount of the Cap.
5.4 COVENANTS OF SELLER. Seller hereby covenants with Purchaser as
follows:
(a) From the Effective Date hereof until the Closing or
earlier termination of this Agreement, Seller shall use reasonable efforts to
operate and maintain the Property in a manner generally consistent with the
manner in which Seller has operated and maintained the Property prior to the
date hereof.
(b) Seller shall use reasonable efforts (but without
obligation to incur any cost or expense) to obtain and deliver to Purchaser
prior to Closing, written estoppel certificates, in the form required by any
Lease or, if no such form is required, in the form of EXHIBIT K attached hereto
and made a part hereof, and such subordination, non-disturbance and attornment
agreements as may be required by the lender of Purchaser, signed by each of the
tenants under the Leases. A signed estoppel certificate is referred to herein as
a "Tenant Estoppel".
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Notwithstanding anything contained herein to the contrary, it shall be a
condition precedent to the obligation of Purchaser to consummate the transaction
that is the subject of this Agreement that Seller deliver to Purchaser, at least
five (5) days prior to Closing, Tenant Estoppels from Northrop Grumman Space &
Mission Systems Corp. and Unisys Corp., dated within thirty (30) days prior to
the date of Closing, it being agreed that (i) Seller shall deliver each Tenant
Estoppel (whether or not in compliance herewith) to Purchaser promptly following
Seller's receipt thereof; and (ii) if Seller does not timely obtain the required
Tenant Estoppels, then Seller or Purchaser may elect to adjourn the Closing Date
up to ten (10) days in order to allow more time to obtain the required Tenant
Estoppels. In the event that Seller is unable to obtain the required Tenant
Estoppels prior to the Closing Date (as same may be extended), Seller or
Purchaser may terminate this Agreement by written notice to the other and
Purchaser shall receive the return of the Xxxxxxx Money.
(c) A copy of any renewal or modification of any Leases or
any new Lease which Seller wishes to execute between the Effective Date and the
date of Closing will be submitted to Purchaser prior to execution by Seller.
Purchaser agrees to notify Seller in writing within five (5) business days after
its receipt thereof of either its approval or disapproval, including all Tenant
Inducement Costs and leasing commissions to be incurred in connection therewith.
In the event Purchaser informs Seller that Purchaser does not approve the
renewal or modification of any existing Lease or any new Lease, which approval
shall not be unreasonably withheld, Seller shall have the option to cancel this
Agreement by written notice thereof to Purchaser within five (5) business days
after Seller's receipt of written notice of Purchaser's disapproval thereof, and
upon refund and payment of the Xxxxxxx Money to Purchaser, neither party shall
have any further liability or obligation hereunder. In the event Purchaser fails
to notify Seller in writing of its approval or disapproval within the five (5)
business day time period for such purpose set forth above, such failure shall be
deemed the approval by Purchaser. At Closing, Purchaser shall reimburse Seller
for any Tenant Inducement Costs, leasing commissions or other expenses,
including legal fees, incurred by Seller pursuant to a renewal or a modification
or a new Lease approved (or deemed approved) by Purchaser.
(d) So long as this Agreement remains in effect, Purchaser
will be allowed access to the Property and the books and records related to the
Property under the terms and conditions set forth in Section 3.1.m
5.5 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to Seller:
(a) ORGANIZATION AND AUTHORITY. Purchaser has been duly
organized and is validly existing under the laws of the State of Delaware.
Purchaser has the full right, power and authority to purchase the Property as
provided in this Agreement and to carry out Purchaser's obligations hereunder,
and all requisite action necessary to authorize Purchaser to enter into this
Agreement and to carry out its obligations hereunder have been, or by the
Closing will have been, taken. The person signing this Agreement on behalf of
Purchaser is authorized to do so.
(b) PENDING ACTIONS. There is no action, suit, arbitration,
unsatisfied order or judgment, government investigation or proceeding pending
against Purchaser which, if adversely
15
determined, could individually or in the aggregate materially interfere with the
consummation of the transaction contemplated by this Agreement.
5.6 SURVIVAL OF PURCHASER'S REPRESENTATIONS AND WARRANTIES. The
representation and warranties of Purchaser set forth in Section 5.5(a) hereof
shall survive Closing and shall be a continuing representation and warranty
without limitation. All other representations and warranties of Purchaser shall
survive Closing for a period of sixty (60) days.
5.7 COVENANTS OF PURCHASER. Purchaser hereby covenants with Seller
that Purchaser shall, in connection with its investigation of the Property
during the Inspection Period, inspect the Property for the presence of hazardous
substances, and shall furnish to Seller copies of any reports received by
Purchaser in connection with any such inspection. Purchaser hereby assumes full
responsibility for such inspections and irrevocably waives any claim against
Seller arising from the presence of hazardous substances on the Property.
Purchaser shall also furnish to Seller copies of any other reports received by
Purchaser relating to any other inspections of the Property conducted on
Purchaser's behalf, if any (including, specifically, without limitation, any
reports analyzing compliance of the Property with the provisions of the
Americans with Disabilities Act, 42 U.S.C. ss.12101, ET SEQ., if applicable).
5.8 ERISA. Seller and Purchaser hereby agree that if the
transactions contemplated hereby are or may be prohibited transactions under
Section 406 of the Employee Retirement Income Security Act of 1974, as amended
and supplemented ("ERISA"), Seller shall not be obligated to sell, and Purchaser
shall not be obligated to purchase, the Property pursuant to this Agreement.
Within three (3) business days after the Effective Date, the parties shall
exchange such information as is necessary in order for each party to determine
whether the transaction contemplated hereby may be prohibited under ERISA and
related rules. If either party determines, in its reasonable discretion, that
the transaction contemplated hereby may be prohibited under ERISA and related
rules, then either party may terminate this Agreement by written notice thereof
to the other party no later five (5) business days after the Effective Date, and
upon such termination the Xxxxxxx Money shall be returned to Purchaser and
neither party shall thereafter have any further liability or obligations
hereunder, except for those obligations stated herein to survive such
termination.
ARTICLE VI
DEFAULT
6.1 DEFAULT BY PURCHASER. IF THE SALE OF THE PROPERTY IS NOT
CONSUMMATED DUE TO ANY DEFAULT BY PURCHASER HEREUNDER, THEN SELLER SHALL RETAIN
THE XXXXXXX MONEY AS LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT SELLER'S
ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO
PURCHASER'S DEFAULT HEREUNDER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO
DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE
CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE XXXXXXX
MONEY IS A REASONABLE
16
ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. BY PLACING THEIR
INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS
MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO
EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS
LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT PURCHASER'S
INDEMNITY OBLIGATIONS UNDER OTHER SECTIONS HEREOF.
SELLER:________________ PURCHASER:___________________
6.2 DEFAULT BY SELLER. In the event that Seller fails to consummate
this Agreement for any reason other than Purchaser's default hereunder or the
permitted termination of this Agreement by Seller or Purchaser as herein
expressly provided, Purchaser shall be entitled, as its sole remedy, either (a)
to receive the return of the Xxxxxxx Money, which return shall operate to
terminate this Agreement and release Seller from any and all liability
hereunder, or (b) to enforce specific performance of Seller's obligation to
execute the documents required to convey the Property to Purchaser, it being
understood and agreed that the remedy of specific performance shall not be
available to enforce any other obligation of Seller hereunder. Purchaser
expressly waives its rights to seek damages in the event of Seller's default
hereunder. Purchaser shall be deemed to have elected to terminate this Agreement
and receive back the Xxxxxxx Money if Purchaser fails to file suit for specific
performance against Seller in a court having jurisdiction in the county and
state in which the Property is located, on or before thirty (30) days following
the date upon which Closing was to have occurred.
ARTICLE VII
RISK OF LOSS
7.1 MINOR DAMAGE. In the event of loss or damage to the Property or
any portion thereof which is not "major" (as hereinafter defined), this
Agreement shall remain in full force and effect provided Seller performs any
necessary repairs or, at Seller's option, assigns to Purchaser all of Seller's
right, title and interest to any claims and proceeds Seller may have with
respect to any casualty insurance policies or condemnation awards relating to
the premises in question. In the event that Seller elects to perform repairs
upon the Property, Seller shall use reasonable efforts to complete such repairs
promptly and the date of Closing shall be extended a reasonable time in order to
allow for the completion of such repairs. If Seller elects to assign a casualty
claim to Purchaser, the Purchase Price shall be reduced by an amount equal to
the deductible amount under Seller's insurance policy. Upon Closing, full risk
of loss with respect to the Property shall pass to Purchaser.
7.2 MAJOR DAMAGE. In the event of a "major" loss or damage, either
Seller or Purchaser may terminate this Agreement by written notice to the other
party, in which event the Xxxxxxx Money shall be returned to Purchaser. If
neither Seller nor Purchaser elects to terminate this Agreement within ten (10)
days after Seller sends Purchaser written notice of the occurrence of major loss
or damage, then Seller and Purchaser shall be deemed to have elected to proceed
with Closing, in which event Seller shall, at Seller's option, either (a)
perform any necessary
17
repairs, or (b) assign to Purchaser all of Seller's right, title and interest to
any claims and proceeds Seller may have with respect to any casualty insurance
policies or condemnation awards relating to the premises in question. In the
event that Seller elects to perform repairs upon the Property, Seller shall use
reasonable efforts to complete such repairs promptly and the date of Closing
shall be extended a reasonable time in order to allow for the completion of such
repairs. If Seller elects to assign a casualty claim to Purchaser, the Purchase
Price shall be reduced by an amount equal to the deductible amount under
Seller's insurance policy. Upon Closing, full risk of loss with respect to the
Property shall pass to Purchaser.
7.3 DEFINITION OF "MAJOR" LOSS OR DAMAGE. For purposes of Sections
7.1 and 7.2 hereof, "major" loss or damage refers to the following: (i) loss or
damage to the Property or any portion thereof such that the cost of repairing or
restoring the premises in question to a condition substantially identical to
that of the premises in question prior to the event of damage would be, in the
opinion of an architect selected by Seller and reasonably approved by Purchaser,
equal to or greater than Five Hundred Thousand and No/100 Dollars ($500,000),
and (ii) any loss due to a condemnation which permanently and materially impairs
the current use of the Property. If Purchaser does not give notice to Seller of
Purchaser's reasons for disapproving an architect within five (5) business days
after receipt of notice of the proposed architect, Purchaser shall be deemed to
have approved the architect selected by Seller.
ARTICLE VIII
COMMISSIONS
8.1 BROKERAGE COMMISSIONS. In the event the transaction contemplated
by this Agreement is consummated, but not otherwise, Seller agrees to pay to
Xxxxxxxx Xxxx Company and Jones, Lang, LaSalle, Inc. (collectively, the
"BROKER") at Closing a brokerage commission pursuant to a separate written
agreement between Seller and Broker. Each party agrees that should any claim be
made for brokerage commissions or finder's fees by any broker or finder other
than the Broker by, through or on account of any acts of said party or its
representatives, said party will indemnify and hold the other party free and
harmless from and against any and all loss, liability, cost, damage and expense
in connection therewith. The provisions of this Section 8.1 shall survive
Closing or earlier termination of this Agreement.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 NO RELIANCE ON DOCUMENTS. Except as expressly stated herein,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered by Seller to
Purchaser in connection with the transaction contemplated hereby. Purchaser
acknowledges and agrees that all materials, data and information delivered by
Seller to Purchaser in connection with the transaction contemplated hereby are
provided to Purchaser as a convenience only and that any reliance on or use of
such materials, data or information by Purchaser shall be at the sole risk of
Purchaser, except as otherwise expressly stated herein. Without limiting the
generality of the foregoing provisions, Purchaser
18
acknowledges and agrees that (a) any environmental or other report with respect
to the Property which is delivered by Seller to Purchaser shall be for general
informational purposes only, (b) Purchaser shall not have any right to rely on
any such report delivered by Seller to Purchaser, but rather will rely on its
own inspections and investigations of the Property and any reports commissioned
by Purchaser with respect thereto, and (c) neither Seller, any affiliate of
Seller nor the person or entity which prepared any such report delivered by
Seller to Purchaser shall have any liability to Purchaser for any inaccuracy in
or omission from any such report or in verbal communication.
9.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT
IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE
ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR
IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER'S LIMITED WARRANTY OF TITLE TO BE
SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR
ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION,
GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS,
THE TRUTH, ACCURACY OR COMPLETENESS OF THE PROPERTY DOCUMENTS OR ANY OTHER
INFORMATION PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER
OR THING REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON
CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE
PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED OTHERWISE IN THIS AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT RELY
ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED
WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO
THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR
FURNISHED BY SELLER, THE MANAGER OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR
AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR
WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING
BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS
PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY
AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO
ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL
RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF
SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH
REPRESENTATIONS, WARRANTIES AND
19
COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING,
PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED
TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY
NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS, AND PURCHASER, UPON
CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND
SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND
AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF
ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING
ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR
UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND
SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY
REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR
PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS (INCLUDING, WITHOUT
LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS, OMISSIONS,
EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY. PURCHASER AGREES THAT
SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER
ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE REQUIRED AFTER THE DATE OF CLOSING,
SUCH CLEAN-UP, REMOVAL OR REMEDIATION SHALL BE THE RESPONSIBILITY OF AND SHALL
BE PERFORMED AT THE SOLE COST AND EXPENSE OF PURCHASER AND SELLER SHALL NOT BE
LIABLE TO PURCHASER FOR SUCH CLEAN-UP, REMOVAL OR REMEDIATION. AS PART OF THE
PROVISIONS OF THIS SECTION 9.2, BUT NOT AS A LIMITATION THEREON, PURCHASER
HEREBY AGREES, REPRESENTS AND WARRANTS THAT THE MATTERS RELEASED HEREIN ARE NOT
LIMITED TO MATTERS WHICH ARE KNOWN OR DISCLOSED, AND PURCHASER HEREBY WAIVES ANY
AND ALL RIGHTS AND BENEFITS WHICH IT NOW HAS, OR IN THE FUTURE MAY HAVE
CONFERRED UPON IT, BY VIRTUE OF THE PROVISIONS OF FEDERAL, STATE OR LOCAL LAW,
RULES OR REGULATIONS, INCLUDING WITHOUT LIMITATION, SECTION 1542 OF THE CIVIL
CODE OF THE STATE OF CALIFORNIA, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
9.3 EFFECT AND SURVIVAL OF DISCLAIMERS. Seller and Purchaser
acknowledge that the compensation to be paid to Seller for the Property has been
decreased to take into account that the Property is being sold subject to the
provisions of this Article IX. Seller and Purchaser agree that the provisions of
this Article IX shall survive Closing.
20
ARTICLE X
MISCELLANEOUS
10.1 CONFIDENTIALITY. Purchaser and its representatives shall hold in
strictest confidence all data and information obtained with respect to Seller or
its business, whether obtained before or after the execution and delivery of
this Agreement, and shall not disclose the same to others; provided, however,
that (a) Purchaser may disclose such information to its consultants, attorneys,
accountants, prospective investors and lenders, and others who need to know the
information for the purpose of assisting Purchaser in connection with the
transaction that is the subject of this Agreement; (b) the foregoing covenant of
confidentiality shall not be applicable to any information published by Seller
as public knowledge or otherwise available in the public domain; and (c)
Purchaser shall be permitted to disclose such information as may be recommended
by Purchaser's legal counsel in order to comply with all financial reporting,
securities laws and other legal requirements applicable to Buyer, including any
required disclosures to the Securities and Exchange Commission. In the event
this Agreement is terminated or Purchaser fails to perform hereunder, Purchaser
shall promptly return to Seller any statements, documents, schedules, exhibits
or other written information obtained from Seller in connection with this
Agreement or the transaction contemplated herein. It is understood and agreed
that, with respect to any provision of this Agreement which refers to the
termination of this Agreement and the return of the Xxxxxxx Money to Purchaser,
such Xxxxxxx Money shall not be returned to Purchaser unless and until Purchaser
has fulfilled its obligation to return to Seller the materials described in the
preceding sentence. In the event of a breach or threatened breach by Purchaser
or its agents or representatives of this Section 10.1, Seller shall be entitled
to an injunction restraining Purchaser or its agents or representatives from
disclosing, in whole or in part, such confidential information. Nothing herein
shall be construed as prohibiting Seller from pursuing any other available
remedy at law or in equity for such breach or threatened breach. The provisions
of this Section 10.1 shall survive Closing.
10.2 PUBLIC DISCLOSURE. Prior to Closing, any release to the public
of information with respect to the sale contemplated herein or any matters set
forth in this Agreement will be made only in the form approved by Purchaser and
Seller and their respective counsel.
10.3 DISCHARGE OF OBLIGATIONS. The acceptance of the Deed by
Purchaser shall be deemed to be a full performance and discharge of every
representation and warranty made by Seller herein and every agreement and
obligation on the part of Seller to be performed pursuant to the provisions of
this Agreement, except those which are herein specifically stated to survive
Closing.
10.4 ASSIGNMENT. Purchaser may not assign its rights under this
Agreement (except to an Affiliate) without first obtaining Seller's written
approval, which approval may be given or withheld in Seller's sole discretion.
Purchaser may assign its rights under this Agreement to an Affiliate without the
prior written consent of Seller. For purposes of this Section 10.4, the term
"AFFILIATE" shall mean: (a) an entity that controls, is controlled by, or is
under common control with Purchaser; (b) any partnership in which Purchaser or
Purchaser's controlling member is the
21
general partner; (c) any fund or entity sponsored by Purchaser; or (d) any
entity that retains Purchaser or a company affiliated with Purchaser to manage
the Property.
10.5 NOTICES. Any notice pursuant to this Agreement shall be given in
writing by (a) personal delivery, or (b) reputable overnight delivery service
with proof of delivery, or (c) United States Mail, postage prepaid, registered
or certified mail, return receipt requested, or (d) legible facsimile
transmission sent to the intended addressee at the address set forth below, or
to such other address or to the attention of such other person as the addressee
shall have designated by written notice sent in accordance herewith, and shall
be deemed to have been given either at the time of personal delivery, or, in the
case of expedited delivery service or mail, as of the date of first attempted
delivery at the address and in the manner provided herein, or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in accordance
with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
If to Seller: c/o LBA Realty
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to: DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
If to Purchaser: Harvard Property Trust, LLC
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxx Xxxxxx
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
with a copy to: Xxxxxx & Xxxxxxx, L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X Xxxxxx
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
10.6 BINDING EFFECT. This Agreement shall not be binding in any way
upon Seller unless and until Seller shall execute and deliver the same to
Purchaser
22
10.7 MODIFICATIONS. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
10.8 TENANT NOTIFICATION LETTER. Purchaser shall deliver to each of
the tenants under the Leases a signed statement acknowledging Purchaser's
receipt and responsibility for each such tenant's security deposit (to the
extent delivered by Seller to Purchaser at Closing), if any, all in compliance
with and pursuant to the applicable provisions of applicable law. The provisions
of this Section 10.8 shall survive Closing.
10.9 CALCULATION OF TIME PERIODS. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the State
in which the Property is located, in which event the period shall run until the
end of the next day which is neither a Saturday, Sunday or legal holiday. The
final day of any such period shall be deemed to end at 5 p.m., local time.
10.10 SUCCESSORS AND ASSIGNS. The terms and provisions of this
Agreement are to apply to and bind the permitted successors and assigns of the
parties hereto.
10.11 ENTIRE AGREEMENT. This Agreement, including the Exhibits,
contains the entire agreement between the parties pertaining to the subject
matter hereof and fully supersedes all prior written or oral agreements and
understandings between the parties pertaining to such subject matter.
10.12 FURTHER ASSURANCES. Each party agrees that it will without
further consideration execute and deliver such other documents and take such
other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes or
subject matter of this Agreement. Without limiting the generality of the
foregoing, Purchaser shall, if requested by Seller, execute acknowledgments of
receipt with respect to any materials delivered by Seller to Purchaser with
respect to the Property. The provisions of this Section 10.12 shall survive
Closing.
10.13 COUNTERPARTS. This Agreement may be executed in counterparts,
and all such executed counterparts shall constitute the same agreement. It shall
be necessary to account for only one such counterpart in proving this Agreement.
10.14 SEVERABILITY. If any provision of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement shall nonetheless remain in full force and effect.
10.15 APPLICABLE LAW. THIS AGREEMENT IS PERFORMABLE IN THE STATE IN
WHICH THE PROPERTY IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE FEDERAL LAWS
23
OF THE UNITED STATES AND THE LAWS OF SUCH STATE. SELLER AND PURCHASER HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN
THE STATE IN WHICH THE PROPERTY IS LOCATED IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN
A STATE OR FEDERAL COURT SITTING IN THE STATE IN WHICH THE PROPERTY IS LOCATED.
PURCHASER AND SELLER AGREE THAT THE PROVISIONS OF THIS SECTION 10.15 SHALL
SURVIVE THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
10.16 NO THIRD PARTY BENEFICIARY. The provisions of this Agreement and
of the documents to be executed and delivered at Closing are and will be for the
benefit of Seller and Purchaser only and are not for the benefit of any third
party (including, without limitation, Title Company and Broker), and
accordingly, no third party shall have the right to enforce the provisions of
this Agreement or of the documents to be executed and delivered at Closing. The
provisions of this Section 10.16 shall survive the closing of the transaction
contemplated by this Agreement.
10.17 EXHIBITS AND SCHEDULES. The following schedules or exhibits
attached hereto shall be deemed to be an integral part of this Agreement:
(a) EXHIBIT A - Legal Description of the Land
(b) EXHIBIT B - Personal Property
(c) EXHIBIT C - Lease Schedule
(d) EXHIBIT D - Operating Agreements Schedule
(e) EXHIBIT E Deed
(f) EXHIBIT F Xxxx of Sale
(g) EXHIBIT G Assignment of Leases
(h) EXHIBIT H Assignment of Operating Agreements and
Intangibles
(i) EXHIBIT I Notice to Tenants
(j) EXHIBIT J FIRPTA Certificate
(k) EXHIBIT K Tenant Estoppel
10.18 CAPTIONS. The section headings appearing in this Agreement are
for convenience of reference only and are not intended, to any extent and for
any purpose, to limit or define the text of any section or any subsection
hereof.
24
10.19 CONSTRUCTION. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
10.20 TERMINATION OF AGREEMENT. It is understood and agreed that if
either Purchaser or Seller terminates this Agreement pursuant to a right of
termination granted hereunder, such termination shall operate to relieve Seller
and Purchaser from all obligations under this Agreement, except for such
obligations as are specifically stated herein to survive the termination of this
Agreement.
10.21 SURVIVAL. The provisions of the following Sections of this
Agreement shall survive Closing and shall not be merged into the execution and
delivery of the Deed: 3.1; the last paragraph of Section 4.2; 4.5; 5.3; 5.6;
8.1; 9.3; 10.1; 10.8; 10.12; 10.15; 10.16; and 10.23.
10.22 TITLE COMPANY'S AGREEMENT. Title Company, as escrow agent, is
executing this Agreement to confirm its agreement to serve as escrow agent
hereunder in accordance with the terms set forth in this Agreement and the
supplementary instructions referenced in Section 1.7 hereof.
10.23 NATURAL HAZARD DISCLOSURE STATEMENT. As used herein, the term
"Natural Hazard Area" shall mean those areas identified as natural hazards in
the Natural Hazard Disclosure Act, California Government Code Sections 8589.3,
8589.4, and 51183.5, and California Public Resources Code Sections 2621.9, 2694,
and 4136, and any successor statutes or laws (the "ACT"). Seller shall provide
Purchaser with a Natural Hazard Disclosure Statement ("DISCLOSURE STATEMENT").
Purchaser acknowledges that Seller has retained the services of an expert (the
"NATURAL HAZARD EXPERT") to examine the maps and other information made
available to the public by government agencies for the purpose of enabling
Seller to fulfill its disclosure obligations with respect to the Act and to
prepare a written report of the result of its examination (the "REPORT").
Purchaser acknowledges that the Report fully and completely discharges Seller
from its disclosure obligations under the Act, and, for the purpose of this
Agreement, the provisions of Civil Code Section 1103.4 regarding the
non-liability of Seller for errors or omission not within its personal knowledge
shall be deemed to apply and the Natural Hazard Expert shall be deemed to be an
expert dealing within the scope of its expertise with respect to the examination
and Report. Purchaser acknowledges and agrees that nothing contained in the
Disclosure Statement shall release Purchaser from its obligation to fully
investigate the condition of the Property, including, without limitation,
whether the Property is located in any Natural Hazard Area. Purchaser further
acknowledges and agrees that the matters set forth in the Disclosure Statement
or Report may change on or prior to the Closing Date and that Seller has no
obligation to update, modify, or supplement the Disclosure Statement or Report.
Purchaser shall be solely responsible for preparing and delivering its own
Natural Hazard Disclosure Statement to subsequent prospective buyers of the
Property. The provisions of this Section 10.23 shall survive the closing of the
transaction contemplated by this Agreement.
25
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the Effective Date.
SELLER:
LBA-VIF UTAH, LLC,
a Delaware limited liability company
By: LBA-VIF Holding Co. II, LLC,
a California limited liability company,
its sole Member
By: LBA-VIF One, LLC,
a California limited liability company,
its sole Manager and Member
By: Spectrum-VIF One, L.P.,
a California limited partnership,
its sole Member-Manager
By: LBA Fund I, Inc.,
a California corporation,
its sole General Partner
By:___________________________________
Name:_________________________________
Title:________________________________
PURCHASER:
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
By:___________________________________
Name:_________________________________
Title:________________________________
[signatures continued on next page]
Title Company, as Escrow Agent:
PARTNERS TITLE COMPANY,
a Texas corporation
By:___________________________________
Its:__________________________________
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
PARCEL 2 OF EXHIBIT B OF THAT CERTAIN CERTIFICATE OF COMPLIANCE FOR LOT LINE
ADJUSTMENT WHICH RECORDED ON MAY 5, 2003 AS INSTRUMENT NO. 00-0000000 AND
RE-RECORDED DECEMBER 23, 2003 AS INSTRUMENT NO. 00-0000000 IN THE OFFICIAL
RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
XXXX 0, 0, 0 XXX XXX XXXX 00 FEET OF XXX 0 XX XXXXX XX. 00000, IN THE CITY OF EL
SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
675, PAGES 95 TO 98 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
EXCEPT THEREFROM THE WEST 212.60 FEET.
EXCEPTING ALL OIL, GAS, ASPHALTUM, AND OTHER HYDROCARBONS AND OTHER MINERALS,
WHETHER SIMILAR TO THOSE HEREIN SPECIFIED OR NOT, WITHIN OR THAT MAY BE PRODUCED
FROM SAID LAND; PROVIDED, HOWEVER, THAT THE SURFACE OF SAID LAND SHALL NEVER BE
USED FOR THE EXPLORATION, DEVELOPMENT, EXTRACTION, REMOVAL OR STORAGE OF SAID
OIL, GAS, ASPHALTUM AND OTHER HYDROCARBONS AND OTHER MINERALS, AND FURTHER
PROVIDED THAT NO INSTALLATION CONSTRUCTED THEREON SHALL BE DISTURBED IN ANY
MANNER IN EXTRACTING SAID RESERVED MINERALS, AS RESERVED IN DEED FROM STANDARD
OIL COMPANY OF CALIFORNIA, RECORDED DECEMBER 20, 1960 AS INSTRUMENT NO. 1622, IN
BOOK D-1069, PAGE 989, OFFICIAL RECORDS.
SAID TRACT BEING A SUBDIVISION OF THE SURFACE AND THAT PORTION OF THE SUBSURFACE
WHICH LIES ABOVE A PLANE 450 FEET BELOW THE MEAN LOW WATER LEVEL OF THE PACIFIC
OCEAN, AS SAID MEAN LOW WATER LEVEL IS ESTABLISHED BY U. S. COAST AND GEODETIC
SURVEY BENCH MARKS ALONG THE SHORELINE.
EXHIBIT B
PERSONAL PROPERTY
None
EXHIBIT C
SCHEDULE OF LEASES
SUITE TENANT
1. 100 Northrop Grumman Space & Mission Systems Corp.
2. 200 Unisys Item Processing Services, L.L.C.
EXHIBIT D
SCHEDULE OF OPERATING AGREEMENTS
------------------------------- ---------------------------- ---------------------------- ----------------------------
VENDOR SERVICE TYPE TERM (I.E., MTM) CANCELLATION PROVISION
------------------------------- ---------------------------- ---------------------------- ----------------------------
Associated Group Landscape Services MTM 30 day
------------------------------- ---------------------------- ---------------------------- ----------------------------
AquaTrol Water Treatment MTM 30 day
------------------------------- ---------------------------- ---------------------------- ----------------------------
Consolidated Waste Trash MTM 30 day
------------------------------- ---------------------------- ---------------------------- ----------------------------
Property Prep Sweeping MTM 30 day
------------------------------- ---------------------------- ---------------------------- ----------------------------
AIS Alarm Monitoring MTM 30 day
------------------------------- ---------------------------- ---------------------------- ----------------------------
EXHIBIT E
DEED
(see attached)
RECORDING REQUESTED BY:
_____________________________________
_____________________________________
AND WHEN RECORDED RETURN TO:
_____________________________________
_____________________________________
_____________________________________
_____________________________________
Attn:________________________________
================================================================================
(ABOVE SPACE FOR RECORDER'S USE ONLY)
In accordance with Section 11932 of the California Revenue and Taxation
Code, Grantor has declared the amount of transfer tax which is due by separate
statement which is not being recorded with this Grant Deed.
GRANT DEED
FOR VALUE RECEIVED, ______________________ ("Grantor"), hereby grants to
, a ("Grantee"), all that certain real property ("Property") described on
EXHIBIT A attached hereto and incorporated herein by reference, together with
all buildings and improvements located thereon and any and all improvements,
easements, privileges and rights appurtenant thereto.
THE PROPERTY IS CONVEYED TO GRANTEE SUBJECT TO:
(a) A lien not yet delinquent for taxes for real property
and personal property, and any general or special assessments against the
Property; and
(b) All liens, encumbrances, easements, covenants,
conditions and restrictions of record.
E-2
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of _________
______, ____.
"GRANTOR" ________________________,
a ______________________
By: ___________________,
a _________________,
By:_________________________________
Name:_______________________________
Title:______________________________
E-3
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
-------------------------------------------------------------------------------------------------------------------------
STATE OF_______________________ )
) ss.
COUNTY OF______________________ )
On ________________________, 200_, before me,__________________________________________________________________________,
Date Name and Title of Officer (e.g. "Xxxx Xxx, Notary Public")
personally appeared ___________________________________________________________________________________________________,
Name of Signer(s)
|_| 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 of Notary Public
-------------------------------------------------------------------------------------------------------------------------
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT
|_| Individual
|_| Corporate Officer
_____________________________________________________ _____________________________________________________
Title(s) Title or Type of Document
|_| Partner(s) |_| Limited
|_| General
_____________________________________________________
|_| Attorney-In-Fact Number of Pages
|_| Trustee(s)
|_| Guardian/Conservator
|_| Other:________________________________________ _____________________________________________________
Date of Document
Signer is Representing:
Name of Person(s) or Entity(ies)
_____________________________________________________
Signer(s) Other Than Named Above
_____________________________________________________
_____________________________________________________
-------------------------------------------------------------------------------------------------------------------------
E-4
EXHIBIT A
LEGAL DESCRIPTION
Document No.: _______________
Date Recorded: _______________ ___, 200_
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 Section 11932 R&T Code)
To: Registrar Recorder
County of _______________, California
Request is hereby made in accordance with the provisions of the Documentary
Transfer Tax Act that the amount of tax due not be shown on the original
document which names:
-------------------------
(as grantor)
-------------------------
(as grantee)
Property described in the accompanying document is located in
( ) unincorporated area of the County of ________________
( ) City of ______________.
The amount of tax due on the accompanying document is $__________
X Computed on full value of property conveyed, or
---------
--------- Computed on full value less liens and encumbrances
remaining at time of sale.
"GRANTOR" ________________________________,
a ______________________________
By: ____________________________
Name: ________________________
Title: _________________________
E-6
EXHIBIT F
XXXX OF SALE
(see attached)
XXXX OF SALE
For good and valuable consideration, the receipt of which is hereby
acknowledged, ______________, a _______________ ("Seller"), does hereby sell,
transfer and convey to __________________________________ ("Purchaser"), without
recourse or warranty, any and all personal property (the "Personal Property")
owned by Seller and used exclusively in connection with the operation of that
certain real property known _____________________, California, and more
particularly described in Exhibit A attached hereto (the "Property").
Purchaser acknowledges that the sale of the personal property is
specifically made "as-is" and "where-is," without any representations or
warranties express or implied, including, without limitation, implied warranties
of fitness for any particular purpose or merchantability or any other warranties
whatsoever. Purchaser has not relied and will not rely on, and Seller is not
liable for or bound by, any express or implied warranties, guaranties,
statements, representations or information pertaining to the personal property
or relating thereto (including specifically, without limitation, information
packages distributed with respect to the Property) made or furnished by Seller,
the property manager, or any agent or real estate broker representing or
purporting to represent Seller, to whomever made or given, directly or
indirectly, orally or in writing.
This Xxxx of Sale may be executed in any number of counterparts, each of
which shall be deemed an original and all of which, when taken together, shall
constitute one and the same instrument.
[Next page is signature page]
F-2
IN WITNESS WHEREOF, the undersigned have executed this Xxxx of Sale as
of this ____ day of _____________, ____.
SELLER:
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
PURCHASER:
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
F-3
EXHIBIT G
ASSIGNMENT AND ASSUMPTION OF LEASES
(see attached)
ASSIGNMENT AND ASSUMPTION OF LEASES
This Assignment and Assumption of Leases (this "Assignment") dated as of
_______________, _____ is entered into by and between
________________,a______________ ("Assignor"), and
________________________________________________ ("Assignee").
W I T N E S S E T H
WHEREAS, Assignor is the lessor under those certain lease agreements
identified on EXHIBIT B attached hereto (the "Leases") executed with respect to
that certain real property commonly known as ____________________, California
(the "Property") as more fully described in EXHIBIT A attached hereto;
WHEREAS, Assignor, as Seller, and ________________________________, as
Purchaser, have entered into that certain Purchase and Sale Agreement dated as
of _________________, _____ (the "Purchase Agreement") conveying the Property
(as defined in the Purchase Agreement); and
WHEREAS, Assignor desires to assign its interest as lessor in the Leases
to Assignee, and Assignee desires to accept the assignment thereof;
Now, THEREFORE, in consideration of the promises and conditions
contained herein, the parties hereby agree as follows:
1. Effective as of the Effective Date (as defined below), Assignor
hereby assigns to Assignee all of its right, title and interest in and to the
Leases.
2. Effective as of the Effective Date, Assignee hereby assumes all
of the Assignor's obligations under the Leases.
3. Any rental and other payments under the Leases shall be prorated
between the parties as provided in the Purchase Agreement.
4. In the event of any litigation arising out of this Assignment,
the losing party shall pay the prevailing party's costs and expenses of such
litigation, including, without limitation, attorneys' fees.
5. This Assignment shall be binding on and inure to the benefit of
the parties hereto, their heirs, executors, administrators, successors in
interest and assigns.
6. This Assignment shall be governed by and construed in accordance
with the laws of the State of California.
7. Assignee acknowledges that, except as provided in the Purchase
Agreement, the conveyance of the leases herein is specifically made "as-is" and
"where-is," without any
G-2
representations or warranties express or implied, including, without limitation,
implied warranties of fitness for any particular purpose or merchantability or
any other warranties whatsoever. Assignee has not relied and will not rely on,
and assignor is not liable for or bound by, any express or implied warranties,
guaranties, statements, representations or information pertaining to the leases
or relating thereto (including specifically, without limitation, information
packages distributed with respect to the real property) made or furnished by
Assignor, the property manager, or any agent or real estate broker representing
or purporting to represent Assignor, to whomever made or given, directly or
indirectly, orally or in writing.
8. This Assignment is delivered pursuant to the Purchase Agreement.
9. For purposes of this Assignment, the "Effective Date" shall be
the date of the Closing (as defined in the Purchase Agreement).
10. This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original, and all of which, when taken
together, shall constitute one and the same document.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
the day and year first above written.
ASSIGNOR:
________________________________________________
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
ASSIGNEE:
________________________________________________
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
G-3
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
(SEE ATTACHED)
G-4
EXHIBIT B
LEASES
(SEE ATTACHED)
G-5
EXHIBIT H
ASSIGNMENT AND ASSUMPTION OF
OPERATING AGREEMENTS, WARRANTIES AND INTANGIBLES
(see attached)
ASSIGNMENT AND ASSUMPTION OF
OPERATING AGREEMENTS, WARRANTIES AND INTANGIBLES
THIS ASSIGNMENT AND ASSUMPTION OF OPERATING AGREEMENTS, WARRANTIES AND
INTANGIBLES is made and entered into as of this ____ day of ___________, ____,
by ________________,a__________________ ("Assignor"), and ("Assignee").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, effective as of the Effective Date (as defined below), and in
connection with the sale of that certain real property described in EXHIBIT A
attached hereto (the "Property") Assignor hereby assigns and transfers unto
Assignee all of its right, title, claim and interest in and under:
(A) all warranties and guaranties (express or implied) 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 on, or comprising a part of any
building or other improvement situated on, any part of the Property including,
without limitation, those warranties and guaranties listed in EXHIBIT B attached
hereto (collectively, "Warranties");
(B) all of the service contracts listed in EXHIBIT C attached hereto
(the "Service Contracts"); and
(C) any Intangibles (as defined in that certain Purchase and Sale
Agreement dated as of ____________________, ____ between Assignor and
_________________________ (the "Purchase Agreement")).
ASSIGNOR AND ASSIGNEE FURTHER HEREBY AGREE AND COVENANT AS FOLLOWS:
1. Effective as of the Effective Date (as defined below), Assignee
hereby accepts the assignment from Assignor of all of Assignor's right, title
and interest in and to the Service Contracts, Warranties and Intangibles.
2. Effective as of the Effective Date, Assignee hereby assumes all
of the owner's obligations under the Service Contracts Warranties and
Intangibles.
3. In the event of any litigation between Assignor and Assignee
arising out of this Assignment, the losing party shall pay the prevailing
party's costs and expenses of such litigation, including, without limitation,
reasonable attorneys' fees.
4. This Assignment shall be binding on and inure to the benefit of
the parties hereto, their heirs, executors, administrators, successors in
interest and assigns.
H-2
5. This Assignment shall be governed by and construed in accordance
with the laws of the State of California.
6. This Assignment is delivered pursuant to the Purchase Agreement.
7. Assignee acknowledges and agrees that, except as provided in the
Purchase Agreement, the conveyance of the service contracts, warranties and
intangibles is specifically made "as-is" and "where-is," without any
representations or warranties express or implied, including, without limitation,
implied warranties of fitness for any particular purpose or merchantability or
any other warranties whatsoever. Assignee has not relied and will not rely on,
and Assignor is not liable for or bound by, any express or implied warranties,
guaranties, statements, representations or information pertaining to the service
contacts, warranties or intangibles or relating thereto (including specifically,
without limitation, information packages distributed with respect to the
property) made or furnished by Assignor, the property manager, or any agent or
real estate broker representing or purporting to represent Assignor, to whomever
made or given, directly or indirectly, orally or in writing.
8. For purposes of this Assignment, the "Effective Date" shall be
the date of the Closing (as defined in the Purchase Agreement).
9. This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original, and all of which, when taken
together, shall constitute one and the same document.
[Next page is signature page]
H-3
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
the day and year first above written.
ASSIGNOR:
________________________________________________
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
ASSIGNEE:
________________________________________________
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
H-4
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
(SEE ATTACHED)
EXHIBIT B
WARRANTIES & GUARANTIES
(SEE ATTACHED)
EXHIBIT C
SERVICE CONTRACTS
(SEE ATTACHED)
EXHIBIT I
NOTICE TO TENANTS
(see attached)
NOTICE TO TENANTS
_____________, ____
To: ________________________
________________________
________________________
Re: Notice of Lease Assignment
Premises: _________________________________
_________________________________
Ladies and Gentlemen:
Please be advised that the Premises have been acquired by, and the
Lessor's interest in your lease and your security deposit (if any) have been
assigned, to _______________ ________________________________________ ("New
Owner").
All future rental and other payments under your lease shall be paid to
New Owner, in accordance with the terms of your lease, to the following address:
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
Very truly yours,
Prior Owner: ________________________________________________
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
New Owner: ________________________________________________
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
I-2
EXHIBIT J
CERTIFICATE OF NON-FOREIGN STATUS
(see attached)
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee
(buyer) of a U.S. real property interest must withhold tax if the transferor
(seller) is a foreign person. For U.S. tax purposes (including Section 1445),
the owner of a disregarded entity (which has legal title to a U.S. real property
interest under local law) will be the transferor of the property and not the
disregarded entity. To inform the transferee (buyer) that withholding of tax is
not required upon the disposition of a U.S. real property interest by
___________________, a ___________________ ("SELLER"), the undersigned hereby
certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Seller is not a disregarded entity as defined in Section
1.1445-2(b)(2)(iii) of the Income Tax Regulations;
3. Seller's U. S. employer identification number is
_______________; and
4. Seller's office address is:
\ c/o Xxxxxx-Xxxxxxx & Associates
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Seller understands that this certification may be disclosed to the
Internal Revenue Service by the transferee (buyer) and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned declares that he has
examined this certification and to the best of his knowledge and belief it is
true, correct and complete, and he further declares that he has the authority to
sign this document on behalf of Seller.
[Next page is signature page]
J-2
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
the ____ day of __________, 20___.
SELLER: _______________________________________________,
a ______________________________________________
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
J-3
EXHIBIT K
TENANT ESTOPPEL CERTIFICATE
(see attached)
TENANT ESTOPPEL CERTIFICATE
[Date]
[PURCHASER]
________________________
________________________
________________________
Re: Lease dated _________________________, ____ (the "Lease") executed
between _______________________________ ("Landlord"), and
____________________ ("Tenant"), for those premises located at
__________________________.
Gentlemen:
The undersigned Tenant understands that you or your assigns intend to
acquire that property located at _________________ (the "Property") from
________________________. The undersigned Tenant does hereby certify to the
Benefited Parties (as hereinafter defined) as follows:
A. The Lease consists only of the documents identified in items 1
and 2 on Schedule A attached hereto ("Schedule A").
B. The Lease is in full force and effect and has not been modified,
supplemented, or amended as indicated in Item 2 on Schedule A.
C. Neither Tenant nor Landlord is in default under the Lease nor
does any state of facts exist which with the passage of time or
the giving of notice, or both, could constitute a default under
the Lease. All conditions under the Lease to be satisfied by
Landlord as of the date hereof (including, without limitation,
all work, if any, to be performed by Landlord in the premises or
on the Property) have been satisfied, and all contributions, if
any, required to be paid by Landlord under the Lease to date for
improvements to the Premises have been paid. To Tenant's
knowledge, all leasing commissions that have become due with
respect to the Lease have been paid.
D. Tenant does not claim any offsets or credits against rents
payable under the Lease.
E. Tenant has not paid a security or other deposit with respect to
the Lease, except as shown in Item 3 on Schedule A.
F. Tenant has fully paid rent on account of the month of ______,
______; the current base rent under the Lease is as shown in
Item 4 on Schedule A.
K-2
G. Tenant has not paid any rentals in advance except for the
current month of ________________, ____.
H. The term of the lease will terminate on the dates indicated in
Item 5 on Schedule A.
I. Except as shown in Item 6 on Schedule A, Tenant has no right of
first refusal or option to lease space in addition to the
premises demised under the Lease. Except as shown in Item 6 on
Schedule A, Tenant has no right of first refusal or option to
purchase the Property or any part thereof.
Tenant understands that the Benefited Parties will rely on the
statements set forth herein as an inducement to make an investment in the
Property. For purposes hereof, the term "Benefited Parties" means all of the
following: (a) Harvard Property Trust, LLC and its affiliates, successors,
assigns, and designees (including, without limitation, any tenant in common
acquiring an interest in the Property); and (b) any lender to which any party
described in the foregoing clause (a) grants a deed of trust or other lien upon
the Property and its successors and assigns.
TENANT: _______________________________________________,
a ______________________________________________
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
K-3
SCHEDULE A
1. Lease:
Landlord:
Tenant: _____________________
Suite #: _____________________
Date: _____________________
2. Modifications and/or Amendments
(a) Date: _____________________
(b) Date: _____________________
(c) Date: _____________________
3. Security Deposit (currently held by Landlord) $____________________
4. Monthly Base Rent for current term of Lease $____________________
5. Commencement Date: _____________________
Termination Date: _____________________
6. Right of First refusal to Lease to Purchase
or option __________ _______________
(if none, state "None")
If "yes", does such right or option still exist or has such right or
option been exercised or waived?
Still Exists ___ Exercised ___ Waived ____
K-4
Table of Contents
-----------------
Page
----
ARTICLE I PURCHASE AND SALE..........................................1
1.1 Agreement of Purchase and Sale....................................1
1.2 Property Defined..................................................2
1.3 Permitted Exceptions..............................................2
1.4 Purchase Price....................................................2
1.5 Payment of Purchase Price.........................................2
1.6 Xxxxxxx Money.....................................................2
1.7 Delivery to Title Company.........................................3
ARTICLE II TITLE AND SURVEY...........................................3
2.1 Title Examination; Commitment for Title Insurance.................3
2.2 Survey 3
2.3 Title Objections; Cure of Title Objections........................3
2.4 Conveyance of Title...............................................4
2.5 Pre-Closing "Gap" Title Defects...................................4
ARTICLE III INSPECTION PERIOD..........................................5
3.1 Right of Inspection...............................................5
3.2 Right of Termination..............................................6
ARTICLE IV CLOSING....................................................6
4.1 Time and Place....................................................6
4.2 Seller's Obligations at Closing...................................7
4.3 Purchaser's Obligations at Closing................................8
4.4 Title Company's Obligations at Closing............................8
4.5 Credits and Prorations............................................9
4.6 Closing Costs....................................................12
4.7 Conditions Precedent to Obligation of Purchaser..................12
4.8 Conditions Precedent to Obligation of Seller.....................12
ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS.................13
5.1 Representations and Warranties of Seller.........................13
5.2 Knowledge Defined................................................14
5.3 Survival of Seller's Representations and Warranties..............14
5.4 Covenants of Seller..............................................14
5.5 Representations and Warranties of Purchaser......................15
5.6 Survival of Purchaser's Representations and Warranties...........16
5.7 Covenants of Purchaser...........................................16
ARTICLE VI DEFAULT...................................................16
6.1 Default by Purchaser.............................................16
6.2 Default by Seller................................................17
Table of Contents
-----------------
(continued)
Page
----
ARTICLE VII RISK OF LOSS..............................................17
7.1 Minor Damage.....................................................17
7.2 Major Damage.....................................................17
7.3 Definition of "Major" Loss or Damage.............................18
ARTICLE VIII COMMISSIONS...............................................18
8.1 Brokerage Commissions............................................18
ARTICLE IX DISCLAIMERS AND WAIVERS...................................18
9.1 No Reliance on Documents.........................................18
9.2 Disclaimers......................................................19
9.3 Effect and Survival of Disclaimers...............................20
ARTICLE X MISCELLANEOUS.............................................21
10.1 Confidentiality..................................................21
10.2 Public Disclosure................................................21
10.3 Discharge of Obligations.........................................21
10.4 Assignment.......................................................21
10.5 Notices..........................................................22
10.6 Binding Effect...................................................22
10.7 Modifications....................................................23
10.8 Tenant Notification Letter.......................................23
10.9 Calculation of Time Periods......................................23
10.10 Successors and Assigns...........................................23
10.11 Entire Agreement.................................................23
10.12 Further Assurances...............................................23
10.13 Counterparts.....................................................23
10.14 Severability.....................................................23
10.15 Applicable Law...................................................23
10.16 No Third Party Beneficiary.......................................24
10.17 Exhibits and Schedules...........................................24
10.18 Captions.........................................................24
10.19 Construction.....................................................25
10.20 Termination of Agreement.........................................25
10.21 Survival.........................................................25
10.22 Title Company's Agreement........................................25
10.23 Natural Hazard Disclosure Statement..............................25
ii
