AMENDED AND RESTATED AGREEMENT OF PURCHASE AND SALE by and between Harvest- Granite San Tomas LLC a Delaware limited liability company as Seller and HARVEST 2400, LLC a Delaware limited liability company as Buyer dated January 31, 2008
| EXHIBIT 10.3 |
AMENDED
AND RESTATED AGREEMENT OF PURCHASE AND SALE
by
and between
Harvest-Granite
San Xxxxx LLC
a
Delaware limited liability company
as
Seller
and
HARVEST
2400, LLC
a
Delaware limited liability company
as
Buyer
dated
January
31, 2008
TABLE
OF CONTENTS
Page
| 1. |
|
1
|
| 2. |
|
1
|
| 3. |
|
2 |
| 4. |
|
2 |
| 5. |
|
2 |
| 6. |
|
3 |
| 7. |
|
7
|
| 8. |
|
9 |
| 9. |
|
9 |
| 10. |
|
9 |
| 11. |
|
9 |
| 12. |
|
13 |
| 13. |
|
13 |
| 14. |
|
00 |
| 00. |
|
00 |
| 00. |
|
17 |
| 17. |
|
18 |
| 18. |
|
19 |
| 19. |
|
19 |
| 20. |
|
00 |
|
|
21 | |
| 22. |
|
21 |
| 23. |
|
22
|
- i -
TABLE
OF CONTENTS
(continued)
Exhibits
Exhibit
A - Property
Description
Exhibit
B
- Other
Property
Exhibit
C
- Xxxx
of Sale
Exhibit
D
- Leases
Exhibit
E - General
Assignment
Exhibit
F
- Grant
Deed
Exhibit
G
- Documents and Materials
Exhibit
H - Seller’s
Certificate
Exhibit
I
-
Buyer’s Certificate
Exhibit
J
- Contracts and
Agreements
Exhibit
K - Form of
Tenant Estoppel Certificate
Exhibit
L - Notice
to Tenants
Exhibit
M
-
Notice to Vendors
Exhibit
N - Relationship
Side Letter
- ii -
AMENDED AND RESTATED
AGREEMENT OF PURCHASE AND SALE
THIS
AMENDED AND RESTATED AGREEMENT OF PURCHASE AND SALE (this “Agreement”), dated as of
January 31, 2008, is entered into by and between HARVEST-GRANITE SAN XXXXX LLC, a
Delaware limited
liability company (“Seller”), and HARVEST
2400, LLC, a Delaware
limited liability company (“Buyer”).
RECITALS
A. Seller
is the owner of certain real property (“Real Property”), consisting of
approximately 24.67 acres, commonly known as 2600 - 2880 San Xxxxx Expressway,
located in the City and County of Santa Xxxxx (“County”), California (“State”), more particularly
described in Exhibit A
attached hereto.
B. The
Real Property has constructed thereon certain buildings and related improvements
(collectively, “Improvements”).
C. The
Real Property, Improvements, Personal Property (as defined on Exhibit G
attached hereto), and Other Property (as defined on Exhibit B
attached hereto) are hereinafter collectively referred to as the “Property.”
D. Seller
and San Xxxxx Investors, LLC, a Delaware limited liability company (“Original Buyer”) entered into
an Agreement of Purchase and Sale, dated December 28, 2007, with respect to the
Property (the “Original
Agreement”).
E. Conditioned
upon the concurrent execution and delivery of this Agreement, Original Buyer is
concurrently assigning the Original Agreement to Buyer pursuant to an Assignment
and Assumption of Agreement of Purchase and Sale , dated January 31,
2008.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants contained
herein, the parties agree as follows:
I. The
parties agree that the Original Agreement is amended and restated, as of January
31, 2008, in its entirety by this Agreement.
AGREEMENT
1. PURCHASE
AND SALE
Seller
agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller,
the Property on the terms and subject to the conditions set forth in this
Agreement. For the purposes of this Agreement, the term “Effective Date”, as used
herein shall mean December 28, 2007.
2. PURCHASE
PRICE
The
purchase price for the Property is equal to the amount of One Hundred Forty-Nine
Million, Three Hundred Fifty-Four Thousand, Fifty Dollars and No Cents
($149,354,050.00) (“Purchase
Price”).
1
3. PAYMENT
OF PURCHASE PRICE
The
Purchase Price for the Property shall be payable by Buyer as
follows:
(a) Deposit. On
or before two (2) business days following the following the Effective Date,
Buyer has paid to Seller the amount of Fifty Thousand Dollars ($50,000)
(together with any interest accrued thereon, the “First Deposit”) which shall be
nonrefundable notwithstanding any termination of this Agreement. On
or before one (1) business day following the expiration of the Contingency
Period (as defined below), Buyer shall cause an additional Four Million, Four
Hundred Fifty Thousand Dollars ($4,450,000) in immediately available funds
(together with any interest accrued thereon, the “Second Deposit”) in
immediately available funds to be delivered into Escrow with First American
Title Insurance Company, 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx
Xxxxxxxxxx 00000, Attn: Xxxx Xxxxx (“Escrow
Holder”). The First Deposit and the Second Deposit shall be
collectively referred to herein as the “Deposit”. The
Second Deposit shall be invested by Escrow Holder with a financial institution
acceptable to Buyer and Seller in a federally-insured interest-bearing demand
account (with any risk of loss for the account of Buyer), and the Second
Deposit, and all interest accrued on the Second Deposit, shall be credited to
the Purchase Price upon the Close of Escrow. Following the expiration
of the Contingency Period (as hereinafter defined), unless this Agreement has
been previously terminated or deemed terminated by Buyer pursuant to its rights
set forth in this Agreement, the Second Deposit shall, except as otherwise
provided in this Agreement to the contrary, become
non-refundable. The Deposit shall be credited against the Purchase
Price at Close of Escrow. The failure of Buyer to timely deliver any
of the Deposits shall be a material default, and shall entitle Seller, at
Seller’s sole option, to terminate this Agreement immediately by giving written
notice of such termination to Buyer and the Escrow Holder.
(b) Cash at Close of
Escrow. On or before the Close of Escrow, Buyer shall deposit
with Escrow Holder the remaining portion of the Purchase Price, in immediately
available funds, which shall be paid to Seller at Close of Escrow.
4. ESCROW
(a) Opening of
Escrow. Seller has opened an escrow (“Escrow”), Xxxxxx
Xx. XXX-000000-XX, with Escrow Holder on or prior to the Effective
Date. Buyer and Seller agree to execute and deliver to Escrow Holder,
in a timely manner, all escrow instructions necessary to consummate the
transaction contemplated by this Agreement. Any such instructions
shall not conflict with, amend or supersede any portion of this
Agreement. If there is any inconsistency between such instructions
and this Agreement, this Agreement shall control.
(b) Close of
Escrow. For purposes of this Agreement, “Close of Escrow” shall be
defined as the date that the Grant Deed (as hereinafter defined) is recorded in
the Official Records of the County. The Close of Escrow shall occur
on or before February 15, 2008 (subject to extension solely pursuant to the
terms and conditions of this Agreement or by the mutual agreement of the parties
in their sole and absolute discretion, the “Closing Date”).
5. CONDITIONS
OF TITLE
The
Property shall be conveyed to Buyer by Seller by a Grant Deed, in the form
attached hereto as Exhibit F
(“Grant Deed”), subject
only to (a) a lien to secure payment of real estate taxes, bonds and
assessments not delinquent; (b) the lien of supplemental taxes, not
delinquent; and (c) exceptions which are approved and/or accepted by Buyer
in writing in accordance with this Agreement; (d) laws, ordinances or
governmental regulations, including but not limited to, building and zoning
laws, ordinances and regulations, now existing or hereafter in effect with
respect to the Property; (e) matters affecting the condition of title
created by or with the written consent of
2
Buyer;
(f) water rights, and claims of title to water, if shown by the public
records; (g) conflicts in boundary lines, encroachments, and any state of
facts which an inspection of the Property would disclose and which are not shown
by the public records; and (h) standard printed exclusions generally
included in a CLTA owner’s policy (or ALTA owner’s policy, as the case may be)
(collectively, “Approved
Conditions of Title”). Notwithstanding anything to the
contrary contained in this Agreement, Buyer hereby disapproves all liens
evidencing deeds of trust or mortgages or other liens securing monetary
obligations, judgment liens, liens for delinquent real estate property taxes and
assessments and mechanic’s liens, other than mechanics liens solely due to
Buyer, and Seller agrees to cause all such liens to be eliminated at Seller’s
sole cost and expense (including all prepayment penalties and charges) prior to
or concurrently with the Close of Escrow. Issuance by the Title
Company (or an unconditional commitment to issue) as of the Close of Escrow of
the Title Policy shall constitute the required delivery of title by
Seller.
6. CONDITIONS
TO CLOSE OF ESCROW
(a) Conditions to Buyer’s
Obligations. The Close of Escrow and Buyer’s obligation to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the following conditions (or Buyer’s waiver thereof) which are
for Buyer’s sole benefit, on or prior to the dates designated below for the
satisfaction of such conditions, or the Close of Escrow in absence of a
specified date:
(i) Title and
Survey.
(a) Title. Buyer
shall have the right to approve any and all matters of and exceptions to title
of the Property, including the legal description, as disclosed by the following
documents and instruments (collectively, “Title
Documents”): (A) a preliminary title report (“Preliminary Report”) issued by
the Title Company (as hereinafter defined) with respect to the Property and all
matters referenced therein; and (B) legible copies of all documents,
whether recorded or unrecorded, referred to in such Preliminary
Report. Seller shall cause Escrow Holder to deliver the Title
Documents to Buyer within five (5) calendar days following the Effective
Date. Buyer shall have ten (10) business days following the
Effective Date to give Seller and Escrow Holder written notice (“Buyer’s Title Notice”) of
Buyer’s approval or disapproval, which shall be made in Buyer’s sole and
absolute discretion, of the legal description and every item or exception
disclosed by the Title Documents. The failure of Buyer to give
Buyer’s Title Notice to Seller within the specified time period shall be deemed
Buyer’s disapproval of title to the Property. In the event that
Buyer’s Title Notice disapproves of any matter of title shown in the Title
Documents, Seller shall, within three (3) business days after Buyer’s Title
Notice is received by Seller, give Buyer written notice (“Seller’s Title Notice”)
(a) that Seller will remove such objectionable exceptions from title on or
before the Close of Escrow, provided that Seller may extend the
Close of Escrow for such period as shall be required to effect such cure, but
not beyond ten (10) days or (b) that Seller elects not to cause such
exceptions to be removed. If Seller fails to timely give such notice
to Buyer, Seller shall be deemed to have given notice to Buyer under
clause (b). Seller shall have no obligation to remove any title
exceptions to which Buyer objects other than those that Seller has agreed to
remove in Section 5 above. The procurement by Seller of a
commitment for the issuance of the Title Policy without any exceptions to which
Buyer has objected or is deemed to have objected or with an endorsement thereto
insuring Buyer against any title exception which was disapproved pursuant to
this section (and so long as such endorsement is acceptable to Buyer in its sole
discretion) shall be deemed a cure by Seller of such disapproval. In
the event that Seller gives or is deemed to have given Buyer notice under
clause (b) above, Buyer shall have until the expiration of the Contingency
Period to notify Seller in writing that either (1) Buyer is willing to
purchase the Property subject to such disapproved exceptions, or (2) Buyer
elects to cancel this transaction.
3
Failure
of Buyer to take either one of the actions described in subsection (1) or
(2) above shall be deemed to be Buyer’s election to take the action described in
subsection (2) above. In the event this Agreement is canceled or
deemed canceled pursuant to this Section, except as otherwise provided herein,
the parties shall have no further obligations under this Agreement, and all
monies delivered to Escrow Holder (other than the First Deposit, which shall be
non-refundable), including any accrued interest thereon, by Buyer shall
immediately be returned to Buyer. Seller covenants after the
Contingency Period, that Seller will not cause title to the Real Property to
differ from the Approved Conditions of Title described in this
Section. Any liens, encumbrances, encroachments, easements,
restrictions, conditions, covenants, rights, rights-of-way or other matters
other than the Approved Conditions of Title which may appear of record or be
revealed after the Contingency Period that were not disclosed by the Title
Company or the Survey or otherwise actually known to Buyer prior to the
expiration of the Contingency Period or solely caused by Buyer, shall also be
subject to Buyer’s approval as a condition to the Close of Escrow for Buyer’s
benefit, provided that
Buyer must notify Seller of such objection(s) to title within two (2)
business days of being made aware of the existence of such
exception. If Buyer gives such a notice to Seller, the provisions of
this Section 6(a)(i)(a) above shall apply as if such notice was a Buyer’s
Title Notice, except that Buyer must respond within three (3) business days
to any response to such notice by Seller. The parties acknowledge
that Buyer’s Title Notice and Seller’s Title Notice have each been timely
delivered and Buyer has timely made the election referred to in subsection (1)
above with respect to Seller’s Title Notice.
(b) Survey. At
Buyer’s option and at its expense, during the Contingency Period Buyer may
obtain an update of the ALTA survey of the Property provided to Buyer by Seller
(“Survey”). Buyer may
advise Seller in writing and in reasonable detail, not later than five (5)
business days prior to the close of the Contingency Period, what matters, if
any, shown on the Survey are not acceptable to Buyer (the “Survey
Objections”). Seller shall have three (3) business days
after receipt of Buyer’s Survey Objections to give Buyer notice that
(a) Seller will remove any Survey Objections (or afford the Title Company
necessary information or certifications to permit it to insure over such
matters) or (b) Seller elects not to cause such matters to be
removed. Seller’s failure to provide notice to Buyer within such
three (3) business day period as to any Survey Objection shall be deemed an
election by Seller not to remove the Survey Objection. If Seller so
notifies or is deemed to have notified Buyer that Seller shall not remove any or
all of the Survey Objections, Buyer’s delivery of the Approval Notice pursuant
to Section 6(a)(ii) below shall indicate Buyer’s waiver of such objection
and its determination to proceed with the purchase and take the Property subject
to such matters. If obtained, Buyer shall promptly deliver a copy of
the Survey to Seller and the Title Company. It is acknowledged that
Buyer may not be entitled to obtain an ALTA title insurance policy with respect
to the Property if Buyer elects not to timely obtain a Survey on or before
five (5) days before the Close of Escrow with respect to the
Property. The parties acknowledge that Buyer has obtained an update
of the Survey and that Buyer has no Survey Objections in connection
therewith.
(ii) Inspections and
Studies. For a period commencing on the Effective Date and
expiring at 5:00 p.m. P.T. on January 31, 2008 (the “Contingency Period”), except
as otherwise extended pursuant to the provisions of this Section, Buyer shall
have the right to review and approve the (A) Documents and Materials (as
hereinafter defined), and (B) conduct any and all inspections,
investigations, tests and studies (including, without limitation, investigations
with regard to zoning, building codes and other governmental regulations,
architectural inspections, engineering tests, economic feasibility studies,
soils, seismic and geologic reports and environmental testing) with respect to
the Property as Buyer may elect to make or maintain. Any such entry
shall be upon reasonable notice to Seller and Seller shall be afforded the
opportunity to accompany Buyer during such visitations. Buyer shall
keep the Property free and clear of any mechanics’ liens, materialmen’s liens or
claims arising out of any of Buyer’s activities or those of Buyer’s
representatives on or with respect to the Property.
4
All
entries onto the Property by Buyer and all inspections and examinations thereof
shall be at Buyer’s sole cost and expense, shall be done in a workmanlike manner
in accordance with all applicable codes, statutes, ordinances, rules,
regulations and laws. Buyer shall not perform any test or inspection
or carry out any activity at the Property which damages the Property in any way
or which is physically intrusive into the Improvements or soil of the Property
without the prior written consent of Seller, which Seller may withhold in its
reasonable discretion and shall be subject to such other reasonable conditions
as may be placed on such testing by Seller, including, without limitation, a
requirement that Buyer provide Seller split samples of any testing performed by
or on behalf of Buyer. After completion of any such inspection or
study on any portion of the Property, Buyer, at its sole cost and expense shall
repair (which shall include replacement where necessary) any damage to the
Property arising from such entry. In connection with any inspections
of the Property, Buyer and Buyer’s representatives will carry Commercial General
Liability insurance with a limit of Five Million Dollars ($5,000,000) per
occurrence and, upon the reasonable request of Seller, will provide Seller with
written evidence of same. Before performing any environmental
inspections or testing of the Property, Buyer shall obtain any required permits
and authorizations and shall pay all applicable fees required by any public body
or agency in connection therewith. Prior to the expiration of the
Contingency Period, Buyer shall deliver to Seller and Escrow Holder written
notice of its approval, which shall be made in Buyer’s sole and absolute
discretion, of the Property and the Documents and Materials (“Approval
Notice”). The failure of Buyer to deliver such notice prior to
the expiration of the Contingency Period shall be deemed to constitute Buyer’s
disapproval of such matters. The cost of any such inspections, tests
and/or studies shall be borne by Buyer. Between the Effective Date
and the Close of Escrow, Buyer, its agents, contractors and subcontractors shall
have the right to enter upon the Property at reasonable times to make any and
all inspections and tests as may be necessary or desirable in Buyer’s sole
judgment and discretion. Buyer shall indemnify, defend and hold
Seller harmless from any and all damage arising out of or in connection with
such entry upon the Property by Buyer, its agents, employees or contractors or
the performance by Buyer or Buyer’s representatives of any testing or
investigations of the Property (“Inspection Indemnity”); provided, however, that such Inspection
Indemnity shall not extend to any damages arising from or related to the
discovery of any pre-existing condition of the Property or to loss of value
resulting from such discovery thereof and/or further excepting the acts or
omissions of Seller or any of Seller’s agents, employees, contractors,
consultants, lessees, licensees or invitees. In the event Buyer
disapproves or is deemed to have disapproved the condition of the Property
and/or the Documents and Materials prior to the expiration of the Contingency
Period, except as otherwise provided herein, the parties shall have no further
obligations under this Agreement, the Second Deposit including any accrued
interest thereon, shall be immediately returned to Buyer, and Buyer shall return
to Seller any Documents and Materials provided to Buyer during the Contingency
Period. In the event that Buyer terminates this Agreement pursuant to
the provisions contained in this subsection (ii)(a), Buyer shall be
responsible for all escrow cancellation costs charged by Escrow
Holder. Buyer and its representatives shall hold in strictest
confidence all confidential data and information obtained with respect to Seller
or the Property and obtained in connection with the transaction contemplated by
this Agreement, whether obtained before or after the execution and delivery of
this Agreement, and shall not disclose the same to others; provided, however, that it is
understood and agreed that the restrictions set forth herein shall not apply (a)
to disclosures which may otherwise be required by law, or (b) disclosures to
Buyer’s affiliates, and Buyer’s and such affiliates’ respective directors,
officers, partners, members, managers, employees, legal counsel, accountants,
engineers, architects, financial advisors, brokers and similar professionals and
consultants (“Representatives”) provided
that Buyer shall inform such persons to treat such data and information
confidentially. Buyer shall not be responsible for disclosures of
information which may otherwise become available to the public (other than from
disclosure by a Buyer or its Representatives). The indemnity
provisions of this Section 6(a)(ii) shall survive the Close of Escrow and
delivery of the Deed and shall further survive any earlier termination of this
Agreement and the confidentiality provisions of this Section 6(a)(ii) shall
survive the termination of this Agreement without a Close of Escrow for a period
of 36 months (and if the Close of Escrow occurs, Buyer’s obligation to keep
confidential information as set forth in this Section 6(a)(ii) shall expire
as of the date of the Close of Escrow).
5
Buyer
acknowledges that it has completed the investigations set forth in this Section
6(a)(ii) and is satisfied with the results thereof, and execution of this
Agreement by Buyer shall be conclusively deemed to be timely delivery of Buyer’s
Approval Notice.
(iii) Title
Insurance. As of the Close of Escrow, Title Company shall have
issued or shall have committed to issue the Title Policy (as hereinafter
defined) to Buyer.
(iv) Seller’s
Obligations. As of the Close of Escrow, Seller shall have
performed all of the obligations required to be performed by Seller under this
Agreement.
(v) Seller’s
Representations. As of the Close of Escrow, all
representations and warranties made by Seller to Buyer in this Agreement shall
be true and correct.
(vi) No Material
Change. As of the Close of Escrow, there shall have been no
material change in the condition of the Property between the expiration of the
Contingency Period and the Close of Escrow; provided, however, that the terms and
conditions of Section 18(b) below shall apply as Buyer’s remedy with
respect to any such change in the condition of the Property due to fire or other
casualty. For purposes of this Section 6(a)(vii), “material” shall be deemed to
be any diminution in the value of the Property which exceeds two million and
0/100ths Dollars ($2,000,000.00).
(vii) Estoppel
Certificates. As a condition precedent to Buyer’s obligation
to close hereunder, Buyer shall have received estoppel certificates dated no
more than thirty (30) days prior to the originally scheduled Close of
Escrow (the “Estoppel
Certificates”) from tenants, excluding Buyer or any affiliate of Buyer
which is also a tenant, that collectively occupy not less than seventy
percent (70%) of (i) the total rentable space actually leased as of
the Effective Date pursuant to valid and existing leases (excluding license
agreements and excluding the space leased by Buyer or any affiliate of Buyer),
less (ii) the total rentable space under lease by Buyer or any affiliate of
Buyer (the Estoppel Certificates to be delivered are collectively referred to as
the “Required Estoppel
Certificates”); it being agreed that receipt of an Estoppel Certificate
from Buyer shall not be a condition precedent to Buyer’s obligation to
consummate the transaction contemplated by this Agreement. The
Estoppel Certificates delivered to the tenants for execution shall be in the
form of Exhibit K
attached hereto (the “Form
Tenant Estoppel Certificate”). The Estoppel Certificates
executed by tenants shall be in substantially the form of the Form Tenant
Estoppel Certificate; provided, however, that an Estoppel
Certificate executed by a tenant shall not be deemed an unacceptable Estoppel
Certificate for purposes of this Section 6(a)(vii) if it (a) contains
the qualification by the tenant of any statement as being to its knowledge or as
being subject to any similar qualification, or (b) does not contain any
more information than that which the tenant is required to give in any such
certificate pursuant to its lease. In the event that Seller does not
provide to Buyer the Required Estoppel Certificates on or prior to the third
business day prior to the Closing Date (subject to Seller’s right to extend the
Closing Date set forth in the last sentence of this subsection), Buyer may, by
written notice to Seller given on or prior to the Close of Escrow, either
(A) elect not to purchase the Property, in which event the Second Deposit
shall be returned to Buyer, at which time this Agreement shall terminate and
become null and void and neither party shall have any further rights or
obligations under this Agreement, except for those which expressly survive
termination of this Agreement, or (B) elect to purchase the Property
notwithstanding Seller’s inability to provide the Required Estoppel
Certificates, in which event Buyer shall be deemed to have waived the condition
contained in this Section 6(a)(vii). If Buyer fails to deliver
such written notice as described above, Buyer shall be deemed to have elected
item (B) above. Information disclosed on any Estoppel
Certificate delivered to Buyer prior the Closing shall be deemed to have been
known by Buyer for purposes of the second sentence of Section
14(q). Seller shall have no liability in connection with Seller’s
representations or warranties set forth herein with respect to a particular
lease to the extent that such representations and warranties are confirmed by
the tenant under such lease in an Estoppel Certificate delivered with respect to
such lease. Seller
shall have the right to extend the Closing Date to any business day up to and
including March 3, 2008 if Seller determines such extension is necessary to
satisfy the condition set forth in this Section
6(a)(vii).
6
(b) Conditions to Seller’s
Obligations. The Close of Escrow and Seller’s obligation to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the following conditions (or Seller’s waiver thereof) which are
for Seller’s sole benefit, on or prior to the dates designated below for the
satisfaction of such conditions, or the Close of Escrow in absence of a
specified date:
(i) Buyer’s
Obligations. As of the Close of Escrow, Buyer shall have
performed all of the obligations required to be performed by Buyer under this
Agreement.
(ii) Buyer’s
Representations. As of the Close of Escrow, all
representations and warranties made by Buyer to Seller in this Agreement shall
be true and correct.
(iii) Buyer’s
Deliveries. Delivery and execution by Buyer of all monies,
items and instruments required to be delivered by Buyer pursuant to this
Agreement;
(iv) Approval
Notice. Buyer shall have timely waived the contingencies set
forth in Sections 6(a)(i), (ii) and (vii).
(c) Failure of Condition to
Close of Escrow. In the event any of the conditions set forth
in Section 6(a) or (b) are not timely satisfied or waived by Buyer or
Seller, as the case may be, for a reason other than the default of Buyer or
Seller, as the case may be, this Agreement shall terminate, and if applicable,
the Second Deposit (unless otherwise provided in this Agreement), and all
interest accrued thereon, and all other monies delivered to Escrow Holder by
Buyer shall be immediately be returned to Buyer, Buyer shall return to Seller
any Documents and Materials and, except as otherwise provided herein, the
parties shall have no further obligations hereunder. Buyer shall not
be required to deliver to Seller any reports or analyses (prepared by Buyer or
Buyer’s consultants or agents) concerning the Property, nor shall Buyer be
required to deliver to Seller any document which is privileged or is otherwise
legally protected from disclosure. The occurrence of the Close of
Escrow shall constitute satisfaction of conditions set forth in
Section 6(a) and (b) not otherwise specifically satisfied or waived by
Buyer or Seller (except with respect to any intentional default or breach of
this Agreement by Seller, in which event (and notwithstanding anything to the
contrary contained herein), so long as Buyer has provided reasonable notice and
opportunity to cure to Seller (if reasonably practicable) with respect to such
intentional default or breach by Seller, Buyer may elect to close the subject
transaction but may make a claim for actual damage to the condition of the
Property incurred as a result of any such intentional default or breach of this
Agreement by Seller; provided
that any such claim shall be limited by the restrictions on claims of
Buyer in connection with a breach of a Seller representation or warranty set
forth in Subsections 14(q)(i) and (ii) of this Agreement.).
7. DEPOSITS
BY SELLER
Unless
otherwise provided in this Section, prior to the Close of Escrow, Seller shall
deposit with Escrow Holder the following documents:
(a) Grant
Deed. The Grant Deed, duly executed and acknowledged in
recordable form by Seller, conveying fee title to the Property to Buyer subject
only to the Approved Conditions of Title.
7
(b) FIRPTA
Certificate. A certification, acceptable to Escrow Holder and
duly executed by Seller under penalty of perjury setting forth Seller’s address
and federal tax identification number in accordance with and/or for the purpose
of the provisions of Sections 7701 and 1445, as may be amended, of the
Internal Revenue Code of 1986, as amended, and any regulations promulgated
thereunder.
(c) California Franchise Tax
Withholding. Evidence satisfactory to Buyer and Escrow Holder
that Seller is exempt from the provisions of the withholding requirements of the
California Revenue and Taxation Code, as amended, and that neither Buyer nor
Escrow Holder is required to withhold any amounts from the Purchase Price
pursuant to such provisions.
(d) Xxxx of
Sale. A xxxx of sale (“Xxxx of Sale”), duly executed
by Seller in favor of Buyer, assigning and conveying to Buyer all of Seller’s
right, title and interest in and to the Personal Property. The Xxxx
of Sale shall be in the form of, and upon the terms contained in, Exhibit C
attached hereto.
(e) Other
Documents. Such other administrative documents as may be
reasonably necessary and appropriate to complete the Close of Escrow of the
transaction contemplated herein.
(f) General
Assignment. An assignment (“General Assignment”), duly
executed by Seller, assigning to Buyer all of Seller’s right, title and interest
in all Leases (as defined on Exhibit B) and
Contracts (as defined on Exhibit B) and
the Intangibles (as defined in the General Assignment). The General
Assignment shall be in the form of, and upon the terms contained in, Exhibit E
attached hereto.
(g) Tenant and Contract Notice
Letters. one original notice letter to each tenant,
substantially in the form attached hereto as Exhibit L (to be
delivered outside of escrow); and one original notice letter to each Contract
vendor, substantially in the form attached hereto as Exhibit M (to be
delivered outside of escrow.
(h) Contracts and
Leases. The original (or copies if Seller is not in possession
of the originals) of the Contracts approved by Buyer in accordance with this
Agreement if required, together with any warranties related to such Contracts
including, without limitation any operating manuals for Building systems and
components. The original (or copies if Seller is not in possession of
the originals) of the Leases.
(i) Keys. Keys
to all entrance doors to the Improvements and keys to all Personal Property
located on the Property, which keys shall be properly tagged for
identification.
(j) Seller’s
Certificate. A certificate in the form of Exhibit H
attached hereto, confirming that the representations and warranties made by
Seller in this Agreement are true, correct and complete in all material respects
as of the Close of Escrow.
(k) Permits, Entitlements,
etc. Any original building and development permits,
certificates of occupancy, utility will-serve letters, use permits and other
government approvals and/or entitlements with respect to the
Property.
(l) January 31, 2008
Letter. Concurrently with the execution of this Agreement,
that certain January 31, 2008 letter from Harvest Properties, Inc. to BlackRock
Realty Advisors, Inc. in the form attached as Exhibit “N”.
8
8. DEPOSITS
BY BUYER
Prior to
the Close of Escrow, Buyer shall deposit or cause to be deposited with Escrow
Holder (a) the required funds which are to be applied towards the payment
of the Purchase Price; (b) a counterpart of the General Assignment executed
by Buyer; (c) a certificate in the form of Exhibit I
attached hereto, confirming that the representations and warranties made by
Buyer in this Agreement are true, correct and complete in all material respects
as of the Close of Escrow; and (d) such other administrative documents as
may be reasonably necessary and appropriate to complete the Close of Escrow of
the transaction contemplated herein.
9. ISSUANCE
OF TITLE INSURANCE
At the
Close of Escrow, Escrow Holder’s title insurer (“Title Company”), shall issue
to Buyer its standard form California Land Title Association (“CLTA”) Owner’s Policy of Title
Insurance showing fee title to the Property vested in Buyer subject only to the
Approved Conditions of Title (“Title Policy”). The
Title Policy shall be issued with liability in an amount equal to the Purchase
Price. Seller shall pay for the expense of the Title Policy
(excluding the cost of any endorsements, which shall be paid for by
Buyer). If Buyer elects to have Title Company issue its American Land
Title Association (“ALTA”) Owner’s Policy of Title
Insurance, Buyer shall pay for the expense of such ALTA premium increment, any
endorsement thereto and any survey costs. Buyer shall be entitled to
request that the Title Company provide an ALTA title insurance policy and/or
such endorsements to the Title Policy as Buyer may reasonably require, provided that such ALTA
policy and/or endorsements shall be at no cost or additional liability to Seller
and the Close of Escrow shall not be delayed as a result of Buyer’s
request.
10. COSTS
AND EXPENSES
Except as
otherwise specified in this Section 10, Seller and Buyer shall equally divide
all escrow charges. Seller shall pay any recording charges and all
documentary, transfer and stamp taxes charged by the County as a result of the
transaction described herein. Buyer shall pay the incremental premium
for the ALTA portion of the Title Policy and the premium for any endorsements,
the cost of the Survey (if any) and the premium for the Buyer’s lender’s title
policy, if any. All other costs and expenses incident to this
transaction and the Close of Escrow thereof and not specifically described
above, shall be allocated pursuant to the custom in the County. Buyer
and Seller shall each pay all legal and professional fees and fees of other
consultants incurred by Buyer and Seller, respectively.
11. PRORATIONS
The
provisions of this Section 11 shall survive Close of Escrow.
(a) Seller
shall prepare a statement of the prorations and adjustments required by this
Agreement (the “Joint Closing
Statement”) and submit it to Buyer for approval at least three (3)
business days prior to the Close of Escrow. The items listed below
are to be equitably prorated or adjusted as of the close of business on the
Close of Escrow, it being understood that, for purposes of prorations and
adjustments, Seller shall be deemed the owner of the Property on the day
immediately preceding the Close of Escrow and Buyer shall be deemed the owner of
the Property as of the day of the Close of Escrow.
(i) Taxes/Assessments. Seller
shall pay current the amount of any bond or assessment which is a lien on the
Property but not customarily paid with property taxes; provided that Buyer shall
acquire the Property subject to and Buyer shall assume the outstanding balance
of any such bond(s) and/or assessment(s). All non-delinquent real
estate taxes, bonds and assessments on the Property shall be prorated as of
12:01 a.m. on the day of the
9
Close of
Escrow based on the most recent tax xxxx. All delinquent taxes, bonds
and assessments, if any, on the Property shall be paid at the Close of Escrow
from funds accruing to Seller. The existing balance, paid current, of
all bonds and assessments shall be assumed by Buyer at Close of Escrow and shall
not be credited against the Purchase Price. Such payment obligation
shall survive the Close of Escrow.
(ii) Rent. The
“minimum” or “base” rent payable by tenants under the Leases for the calendar
month in which the Close of Escrow occurs shall be prorated on the basis of the
number of days of such month the Property will have been owned by Buyer and
Seller, respectively. However, there shall be no proration of any
such rent which is delinquent as of the Close of Escrow, and at the Close of
Escrow, Seller shall deliver to Buyer a schedule of all such delinquent
rent. Rather, Buyer shall cause any such delinquent rent for the
period prior to Close of Escrow to be remitted to Seller if, as, and when
collected. Additionally, there shall be no proration of any rent that
a tenant under a Lease delivers to either Buyer or Seller that such tenant has
identified, at the time of such delivery, as constituting payment of rent due
for a month or other period of time prior to Close of Escrow. If
Buyer receives any such rent, Buyer shall cause such rent to be remitted to
Seller if, as, and when collected. With respect to delinquent rent
existing under the Leases, all amounts collected by Buyer after the Close of
Escrow shall be applied first to the month in which the Close of Escrow occurs,
then to the period following the month in which the Close of Escrow occurs, then
to the period prior to the month in which the Close of Escrow
occurs. Buyer shall cause its property manager to include the amount
of delinquent rent in the first bills thereafter submitted to the tenants in
question after the Close of Escrow, and shall continue to do so for two (2)
months thereafter. Buyer shall, upon request from Seller, cause to
its property manager to promptly deliver to Seller a copy of each such xxxx
submitted to tenants. After such two (2) month period, Seller
may pursue remedies directly against delinquent tenants, but may not xxx to
evict or otherwise dispossess such tenants.
(iii) Costs Relating to New
Leases. Any tenant improvement costs, leasing commissions or
other leasing costs paid or payable pursuant to any New Lease (as hereinafter
defined) entered into in accordance with Section 16(a) shall be prorated
over the term of such New Lease, with Seller being responsible for a portion of
such costs and commissions based on the ratio of base rent payments received by
Seller through the Close of Escrow to the total base rent payable over the term
of such New Lease.
(iv) Security Deposits; Utility
Deposits. Buyer shall receive a credit at Close of Escrow in
the amount of any unapplied cash security deposits under the
Leases. In addition, Seller shall assign (to the extent assignable)
and deliver to Buyer at Close of Escrow any and all letters of credit and other
instruments held by Seller as security deposits under Leases. Seller
shall receive a credit at Close of Escrow in the amount of all refundable cash
or other deposits posted with utility companies servicing the Property which are
duly assigned to Buyer at Close of Escrow.
(v) Utilities. Water,
electric, telephone and all other utility and fuel charges, fuel on hand (at
cost plus sales tax), and any other payments to utility companies shall be
prorated. If possible, utility prorations will be handled by final
meter readings on the Close of Escrow. If final readings are not
possible, or if any such charges are not separately metered, such charges will
be prorated based on the most recent period for which costs are
available.
(vi) Contracts. Amounts
due and prepayments under the Contracts shall be prorated.
(vii) Fees
Payable. Assignable license and permit fees, and similar fees
and expenses of operation shall be prorated.
10
(viii) Tenant Inducement
Costs. Seller shall be responsible for the payment of any
unpaid Tenant Inducement Costs and leasing commissions with respect to any Lease
in existence as of the Closing Date, unless expressly authorized in writing by
Buyer in connection with a new Lease. For purposes hereof, the term
“Tenant Inducement
Costs” shall mean any payments required under a Lease 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 (other than those accruing as a
result of a buyout option executed by Buyer after the Close of Escrow, which
buyout costs shall be Buyer’s sole and exclusive responsibility), moving,
design, and refurbishment, but specifically excluding legal fees or 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 Close of
Escrow and that Buyer shall bear such loss from and after the Close of
Escrow). If, as of the date of Close of Escrow, Seller shall not have
paid any Tenant Inducement Costs or leasing commissions for which Seller is
responsible to have paid prior to the date of Close of Escrow in accordance with
the provisions of this Section 11(a)(viii), Buyer shall be credited with an
amount equal to such Tenant Inducement Costs and leasing commissions and Buyer
shall assume the obligation to pay the same. Buyer shall be
responsible for the payment of any Tenant Inducement Costs and leasing
commissions with respect to any New Lease.
(ix) If any
item of income or expense set forth in this Section 11(a) is subject to
final adjustment after Close of Escrow, then Seller and Buyer shall make, and
each shall be entitled to, an appropriate reproration to each such item promptly
when accurate information becomes available. Any amounts due from one
party to the other as a result of such reproration shall be paid promptly in
cash to the party entitled thereto. Seller and Buyer hereby covenant
and agree to make available to each other for review such records as are
necessary to complete such reprorations. The foregoing provisions of
this Section 11(a) shall survive Close of Escrow.
(b) Tenant
Reimbursements/CAM. Tenants under the Leases are currently
paying Seller certain amounts (referred to herein as “Tenant Reimbursements”) based
on Seller’s estimates for real estate taxes and assessments, common area
maintenance, operating expenses and similar expenses (collectively, “Tenant Reimbursable
Expenses”).
(i) 1)(a) For
the Calendar Year of the Close of Escrow. At Close of Escrow, Tenant
Reimbursements payable by tenants under the Leases for the calendar month in
which the Close of Escrow occurs shall be prorated on the basis of the number of
days of such month the Property will have been owned by Buyer and Seller,
respectively. However, there shall be no proration of any such Tenant
Reimbursements which are delinquent as of Close of Escrow. Rather,
Buyer shall cause its property manager to cause any such delinquent Tenant
Reimbursements for the period prior to Close of Escrow to be remitted to Seller
if, as, and when collected. Additionally, there shall be no proration
of any Tenant Reimbursements that a tenant under a Lease delivers to either
Buyer or Seller that such tenant has identified, at the time of such delivery,
as constituting payment of a Tenant Reimbursement due for a month or other
period of time prior to Close of Escrow. If Buyer receives any such
Tenant Reimbursements, Buyer shall cause such Tenant Reimbursements to be
remitted to Seller if, as, and when collected. At Close of Escrow,
Seller shall deliver to Buyer a schedule of all such delinquent Tenant
Reimbursements. Buyer shall cause its property manager to include the
amount of delinquent Tenant Reimbursements in the first bills thereafter
submitted to the tenants in question after Close of Escrow, and shall continue
to do so for two (2) months thereafter. Upon request by Seller,
Buyer shall cause its property manager to promptly deliver to Seller a copy of
each such xxxx submitted to tenants. After such two (2) month
period, Seller may pursue remedies directly against delinquent tenants, but may
not xxx to evict or otherwise dispossess such tenants.
11
(b) At least
three (3) business days prior to the Close of Escrow, Seller shall cause to
be prepared and delivered to Buyer a reconciliation (“Tenant Reimbursement
Reconciliation”) of (i) actual operating and similar expense of the
Property upon which Tenant Reimbursements are based (“Actual Expenses”) for the
period commencing on January 1, 2008 and ending on 11:59 p.m. on the
day preceding the Close of Escrow (the “Reconciliation Period”), it
being understood that certain Tenant Reimbursable Expenses for the
Reconciliation Period, if not based on actual amounts (such as certain operating
expenses for the month in which the Close of Escrow occurs), may be reasonably
estimated by Seller; and (ii) Tenant Reimbursable Expenses actually
collected by Seller for the Reconciliation Period. Any amount shown
to be owed by Seller to the tenants of the Property under the Tenant
Reimbursement Reconciliation shall be credited to Buyer at the Close of Escrow
(and shall be refunded by Buyer to the tenants as required under the Leases),
and any amounts shown to be owed to Seller by tenants of the Property under the
Tenant Reimbursement Reconciliation shall be credited to Seller (provided that there shall be
no proration of uncollected amounts with respect to any tenant who is more than
thirty (30) days delinquent in its payment of rent as of the Close of
Escrow). Buyer shall be responsible for performing the final
reconciliation of Tenant Reimbursements for calendar year 2008 in accordance
with the Leases, and for payment of all amounts owing to tenants under the
Leases in connection therewith (subject to the reproration provision set forth
herein and the time limits set forth therein). Seller shall be
responsible for any and all audits of any Tenant Reimbursements for all years
prior to the year in which the Close of Escrow occurs.
(ii) For Prior Calendar
Years. Seller shall be responsible for the reconciliation with
tenants of Tenant Reimbursements and Tenant Reimbursable Expenses for any
calendar year prior to that in which the Close of Escrow occurs. If
the amount of Tenant Reimbursements collected by Seller for such prior years is
less than the amount of Tenant Reimbursable Expenses paid by Seller for such
period (or less than the amount which Seller is entitled to recover under the
terms of the Leases), then Seller shall be entitled to xxxx such tenants
directly and retain any such amounts due from tenants. If the amount
of Tenant Reimbursements collected by Seller for such prior calendar year
exceeds the amount of Tenant Reimbursable Expenses paid by Seller with respect
to such period (or the amount which Seller is entitled to recover under the
terms of the Leases), then, to the extent required under the terms of the
Leases, Seller shall remit such excess amounts to the applicable
tenants. In connection with the foregoing, Seller shall be permitted
to make and retain copies of all Leases and all xxxxxxxx concerning Tenant
Reimbursements for such prior years, and Buyer covenants and agrees to provide
Seller with reasonable access to the books and records pertaining to such Tenant
Reimbursements, and to otherwise cooperate with Seller (at no cost to Buyer) for
the purpose of enabling Seller to adequately respond to any claim by tenants for
reimbursement of Tenant Reimbursements previously paid by such
tenants. The provisions of this Section 11(b)(ii) shall survive
Close of Escrow.
(c) Reservation of Rights to
Contest. Notwithstanding anything to the contrary contained in
this Agreement, Seller reserves the right to (i) contest any taxes,
assessments, or reassessments of the Property (or any portion thereof) that
relate to any period of time prior to, through, and including the Close of
Escrow; (ii) attempt to obtain a refund for any taxes or assessments
previously paid by Seller; and (iii) meet with governmental officials in
connection with (i) or (ii) immediately above. The provisions of this
Section 11(c) shall survive Close of Escrow. Any amounts
refunded for the year in which Close of Escrow occurs shall be prorated between
Seller and Buyer pursuant to Section 11(a)(i), after deduction of the costs
of such contest.
(d) Reproration. Notwithstanding
anything contained herein to the contrary, all reprorations contemplated by this
Agreement shall be completed within one (1) year of Close of
Escrow. The provisions of this Section 11(d) shall survive Close
of Escrow.
12
12. REVIEW
OF INFORMATION
(a) Documents and
Materials. Within one (1) business day following the
Effective Date, Seller has delivered to Buyer the Documents and Materials listed
on Exhibit G
(collectively, “Documents and
Materials”) to the extent in Seller’s possession and
control. Notwithstanding any provision to the contrary, Seller shall
have no obligation to furnish or otherwise make available to Buyer, any of the
following documents: (i) any internally or externally prepared reports or
analysis concerning the valuation or economic performance of the Property;
(ii) any information received from or concerning any other potential
purchaser of the Property; (iii) any federal or state income tax returns;
(iv) any documents, instruments or agreements evidencing, securing or
relating to any mortgage loan currently encumbering the Property; (v) any
correspondence or analyses regarding past, pending or proposed real property tax
appeals; or (vi) any information or documentation that is privileged or
otherwise legally protected from disclosure under applicable law. In
addition, within five (5) business days following the Effective Date,
Seller shall deliver to Buyer, at Seller’s sole cost and expense, the Natural
Hazard Disclosure Statement required by California Civil Code
Section 1102.6c(b), which document shall be within the definition of
Documents and Materials.
(b) Plans. Any
and all building plans (including as built plans), site plans, tenant
improvement plans specifications or any other governmental approvals or
processed documents relating to the Property and the construction of the
Improvements in Seller’s possession (collectively, “Plans and
Permits”).
13. INTENTIONALLY
DELETED
14. SELLER’S
REPRESENTATIONS AND WARRANTIES
In
consideration of Buyer entering into this Agreement, Seller makes
representations and warranties set forth in this Section, which are material and
are being relied upon by Buyer (the continued truth and accuracy of which shall
constitute a condition precedent to Buyer’s obligations
hereunder). To the extent that Seller becomes aware of any conflict
with the representations and warranties set forth herein or that any covenant of
Seller under this Agreement is incapable of being performed after the Effective
Date and prior to the Close of Escrow, Seller shall provide Buyer with written
notice thereof, in which case Buyer, within five (5) calendar days
following receipt of such notice, shall have the right to either
(i) terminate this Agreement, in which case the provisions of
Sections 6(c) shall apply, or (ii) proceed with the transaction
described herein, waiving such inconsistent representation(s) and warranty(ies)
(provided, however, that Buyer shall not
be deemed to have waived any such inconsistent representation(s) and
warranty(ies) with respect to those that Seller is incapable of performing due
to Seller’s breach of this Agreement or intentional frustration thereof). In no event shall Seller
be liable to Buyer for, or be deemed to be in default pursuant to this Agreement
by reason of any inaccuracy of a representation or warranty which results from
any change that (i) occurs between the Effective Date and the Close of
Escrow; and (ii) is expressly permitted under the terms of this Agreement
or is beyond the reasonable control of Seller to prevent; provided, however, in such event, Buyer
shall be entitled to terminate this Agreement by providing written notice of
such termination to Buyer and, in such event, Seller shall immediately return
the Second Deposit, plus all interest earned thereon, to Buyer and the parties
shall have no further obligations to each other hereunder, except to the extent
expressly provided herein. If, in spite of such nonfulfillment of the
conditions set forth in Section 6(a), the Close of Escrow occurs, Seller’s
representations and warranties set forth in this Agreement shall be deemed to
have been modified by all statements made in any notice or notices of
modification as given by Seller to Buyer pursuant to this Section 14 prior
to the Close of Escrow (provided, however, that any of Seller’s
representations and warranties shall not be deemed to have been modified nor
shall Buyer be deemed to have waived any such representations and warranties
with respect to those affected by Seller’s breach of this Agreement or Seller’s
intentional frustration thereof).
13
(a) Seller’s
Authority. Seller has the legal power, right and authority to
enter into this Agreement and the instruments referenced herein, and to
consummate the transaction contemplated hereby.
(b) Proceedings. To
Seller’s knowledge, (i) there are no actions, suits, arbitrations, claims
proceedings or governmental investigations pending, in law or equity, including,
without limitation, the commencement of any condemnation action, against or
affecting the Property or in which Seller is a party by reason of Seller’s
ownership of the Property, and (ii) there is not now pending any action or
proceeding before any court or governmental agency or body against Seller which
would prevent Seller from performing its obligations hereunder.
(c) Compliance with
Laws. To Seller’s knowledge, Seller has not received a notice
of a violation of any applicable law, ordinance, building code, rule, regulation
or requirement of any governmental agency, body or subdivision affecting or
relating to the Property.
(d) Personal
Property. Seller has not encumbered or transferred its
interest in any Personal Property existing at the Property as of the Effective
Date, other than pursuant to Approved Conditions of Title or replacements of the
same in the ordinary course of business.
(e) Leases. To
Seller’s knowledge, (i) there are no leases or other agreements, written or
oral, affecting or relating to the rights of any party with respect to the
possession of the Property except the Leases listed on Exhibit D and
any New Leases or modifications to the Leases entered into in accordance with
Section 16(a) below, (ii) Seller has provided Buyer with true and correct
copies of all Leases identified on Exhibit D, (iii) all
rent concessions, improvement or other allowances, and leasing commissions under
the Leases have paid or satisfied (other than certain payments to Nvidia
corporation or any affiliate of Nvidia Corporation under its leases, which such
unpaid rent concessions, improvement or other allowances, and leasing
commissions will be credited to Buyer at Closing) and (iv) Seller has not
received any written notice of any material default by Seller under any
Lease.
(f) Hazardous
Materials. Except as disclosed in the Documents and Materials
(including, without limitation, any environmental reports or studies described
therein), to Seller’s knowledge, Seller has not received notice from
any governmental authority of any contamination or hazardous materials or
hazardous waste in existence in, on or below the surface of the Property,
including, without limitation, contamination of the soil, subsoil or ground
water, which constitutes a violation of any federal, state or local law,
ordinance, rule, or regulation of any governmental entity having jurisdiction
thereof. Except as disclosed in the Documents and Materials
(including, without limitation, any environmental reports or studies described
therein), to Seller’s knowledge, there are no underground storage tanks at the
Property.
(g) Executive
Order. Seller is in compliance with the requirements of
Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001)
(the “Order”) and other
similar requirements contained in the rules and regulations of the office of
Foreign Assets Control, Department of the Treasury (“OFAC”) and in any enabling
legislation or other Executive Orders or regulations in respect thereof (the
Order and such other rules, regulations, legislation, or orders are collectively
called the “Orders”). Seller is
not:
(i) listed on
the Specially Designated Nationals and Blocked Persons List maintained by OFAC
pursuant to the Order and/or on any other list of terrorists or terrorist
organizations maintained
pursuant to any of the rules and regulations of OFAC or pursuant to any other
applicable Orders (such lists are collectively referred to as the “Lists”);
or
14
(ii) a person
who has been determined by competent authority to be subject to the prohibitions
contained in the Orders.
Seller
hereby covenants and agrees that if Seller obtains knowledge that Seller is
indicted, arraigned, or custodial detained on charges involving money laundering
or predicate crimes to money laundering, Seller shall immediately notify Buyer
in writing, and in such event, Buyer shall have the right to terminate this
Agreement without penalty or liability to Seller immediately upon delivery of
written notice thereof to Seller. In such event the Second Deposit
shall be returned to Buyer.
(h) Intentionally
Omitted.
(i) Contracts and
Agreements. To Seller’s knowledge, attached to this Agreement
as Exhibit J is a
true, correct and complete schedule of all of the contracts, and other
agreements concerning the operation, maintenance and use of the Property,
showing as to each of the Contracts: (i) name of vendor; and (ii) type
of service.
(j) Intentionally
Omitted.
(k) Bankruptcy. Seller
has not (i) made a general assignment for the benefit of creditors,
(ii) filed any voluntary petition in bankruptcy or suffered the filing of
any involuntary petition by Seller’s creditors, (iii) suffered the
appointment of a receiver to take possession of all or substantially all of
Seller’s assets, (iv) suffered the attachment or other judicial seizure of
all, or substantially all, of Seller’s assets, (v) admitted in writing
Seller’s inability to pay its debts as they come due, or (vi) made an offer
of settlement, extension, or composition to its creditors
generally.
(l) Actions. All
requisite action (corporate, trust, partnership or otherwise) has been taken by
Seller in connection with the entering into this Agreement, the instruments
referenced herein, and the consummation of the transaction contemplated
hereby. No consent of any partner, shareholder, trustee, trustor,
beneficiary, creditor, investor, judicial or administrative body, governmental
authority or other party is required.
(m) Signatory. The
individuals executing this Agreement and the instruments referenced herein on
behalf of Seller have the legal power, right, and actual authority to bind
Seller to the terms and conditions hereof and thereof.
(n) Enforceability. This
Agreement and all documents required hereby to be executed by Seller are and
shall be valid, legally binding obligations of and enforceable against Seller in
accordance with their terms, subject to bankruptcy, insolvency and similar laws
affecting the enforcement of creditors’ rights generally and general equitable
principles.
(o) Conflicting
Documents. Neither the execution or delivery of this
Agreement, nor the consummation of the transaction contemplated herein, will
conflict with, or constitute or result in a breach of, any contract, license or
undertaking to which Seller is a party or by which the Property is bound,
resulting in the creation of any lien or encumbrance upon the
Property.
(p) Deliveries. Seller
makes no representation or warranty as to the truth, accuracy or completeness of
any materials, data or information delivered by Seller or its agents to Buyer in
connection with the transaction contemplated hereby. Buyer
acknowledges and agrees that all materials, data and information delivered by
Seller to Buyer in connection with the transaction contemplated hereby are
provided to Buyer as a convenience only and that any reliance on or use of such
materials, data or information by Buyer shall be at the sole risk of
Buyer. Neither Seller, nor any affiliate of Seller, nor the person or
entity which prepared any report or reports delivered by Seller to Buyer shall
have any liability to Buyer for any inaccuracy in or omission from any such
reports. To Seller’s knowledge, Seller has made available to Buyer
access to all written information in its actual possession respecting the
Property, other than items described in clauses (i) through (vi) of Section
12(a).
15
(q) Limitations. The
representations and warranties of Seller set forth in this Section 14 (as
such may have been updated as of the Close of Escrow in accordance with this
Section 14) in accordance with the terms of this Agreement, shall survive
Close of Escrow until the close of business on December 1, 2008 (the “Survival Period”) with respect
to any written claims which were delivered within the Survival Period, then all
causes of action related to the same shall terminate. No claim for a
breach of any representation or warranty of Seller shall be actionable or
payable if the breach in question results from or is based on a condition, state
of facts or other matter which was known to Buyer prior to Close of
Escrow. For purposes of this Subsection (q), “known to Buyer” shall
mean the actual knowledge of Xxxxx Xxx or Xxxxxxx Xxxxx. Seller shall
have no liability to Buyer for a breach of any representation or warranty
(i) unless the valid claims for all such breaches collectively aggregate
more than One Hundred Thousand Dollars ($100,000), (ii) for claims in
excess of Two Million Dollars ($2,000,000) (the “Maximum Liability Cap”) and
(iii) unless written notice containing a description of the specific nature
of such breach shall have been given by Buyer to Seller prior to the expiration
of the Survival Period and an action shall have been commenced by Buyer against
Seller with respect to the claims specified in such written
notice within thirty (30) days thereafter. The provisions
of this Section 14 shall survive Close of Escrow or any termination of this
Agreement.
(r) Knowledge. “Seller’s knowledge” shall
refer only to the current actual (not constructive) knowledge of Xxxxx Xxxxxx,
Xxxx Xxxxxxx and Xxxxxx Rock, and shall not be construed, by imputation or
otherwise, to refer to the knowledge of any affiliate of Seller, or to any other
officer, agent, manager, representative or employee of Seller or any affiliate
thereof or to impose upon such persons any duty to investigate the matter to
which such actual knowledge, or the absence thereof, pertains.
15. BUYER’S
REPRESENTATIONS AND WARRANTIES
In
consideration of the Seller entering into this Agreement, Buyer makes the
representations and warranties set forth in this Section.
(a) Buyer’s
Authority. Buyer has the legal power, right and authority to
enter into this Agreement and the instruments referenced herein, and to
consummate the transaction contemplated hereby. The sole direct or
indirect owner of Buyer is Nvidia Corporation.
(b) Actions. All
requisite action (corporate, trust, partnership or otherwise) has been taken by
Buyer in connection with the entering into this Agreement, the instruments
referenced herein, and the consummation of the transaction contemplated
hereby. No consent of any partner, shareholder, trustee, trustor,
beneficiary, creditor, investor, judicial or administrative body, governmental
authority or other party is required.
(c) Signatory. The
individuals executing this Agreement and the instruments referenced herein on
behalf of Buyer and the partners of Buyer, if any, have the legal power, right,
and actual authority to bind Buyer to the terms and conditions hereof and
thereof.
16
(d) Enforceability. This
Agreement and all documents required hereby to be executed by Buyer are and
shall be valid, legally binding obligations of and enforceable against Buyer in
accordance with their terms.
(e) ERISA. (i) Buyer
is not purchasing the Property with funds that constitute plan assets within the
meaning of Department of Labor Regulation 29 C.F.R. §2510.3-101
of any (a) “employee benefit plan” (within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and covered under
Title I, Part 4 of ERISA or Section 4975 of the Internal Revenue
Code of 1986, as amended (“Code”), or (b) “plan”
(within the meaning of Section 4975(e)(1) of the Code), (ii) Buyer is
not (a) an entity whose underlying assets include “plan assets” by reason
of a plan’s investment in such entity or (b) a “governmental plan” within
the meaning of section 3(32) of ERISA, and (iii) the execution of this
Agreement and the sale of the Property by Buyer is not subject to state statutes
regulating investments of and fiduciary obligations with respect to governmental
plans.
(f) Executive
Order. Buyer is in compliance with the requirements of the
Order and other similar requirements contained in the rules and regulations of
OFAC and any other Orders. Buyer is not:
(i) listed on
the Lists; or
(ii) a person
who has been determined by competent authority to be subject to the prohibitions
contained in the Orders.
Buyer
hereby covenants and agrees that if Buyer obtains knowledge that Buyer is
indicted, arraigned, or custodial detained on charges involving money laundering
or predicate crimes to money laundering, Buyer shall immediately notify Seller
in writing, and in such event, Seller shall have the right to terminate this
Agreement without penalty or liability to Buyer immediately upon delivery of
written notice thereof to Seller. In such event the Second Deposit
shall be returned to Buyer.
16. SELLER’S
COVENANTS
(a) Modification of Existing
Leases and Contracts. Prior to the expiration of the
Contingency Period, Seller may cancel, amend and modify any of the Leases and
any of the Contracts, provided notice is given to
Buyer within five (5) business days after such action and in any event at
least two (2) business days prior to the expiration of the Contingency
Period. After the expiration of the Contingency Period, Seller may
not cancel, amend, or modify any Leases, in a manner binding upon Buyer after
the Close of Escrow, unless otherwise approved by Buyer in writing in Buyer’s
sole discretion or unless required by the terms of any such
Lease. After the expiration of the Contingency Period, Seller may not
cancel, amend, or modify any Contract, in a manner, unless if doing so is in the
ordinary course of operating the Property and the contract either (i) will
not be binding on Buyer or (ii) is cancelable on thirty (30) days or
less notice without penalty or premium. If Seller shall request
Buyer’s approval to any of the foregoing matters, Buyer shall have five (5)
business days from its receipt of such request to give Seller notice of its
approval or disapproval of such matter. If Buyer does not give such
notice, such matter shall be deemed disapproved by Buyer.
(b) New Leases and
Contracts. Prior to the expiration of the Contingency Period,
Seller may enter into any new lease or any new contract, provided notice is given to
Buyer within five (5) business days after such action and in any event at
least two (2) business days prior to the expiration of the Investigation
Period. After the expiration of the Contingency Period, Seller may
not enter into any new lease or contract without Buyer’s consent, which consent
shall be in Buyer’s sole discretion. After the expiration of the
Contingency Period, Seller may not enter into any new contract, unless doing so
is in the ordinary course of operating the Property and the contract either
(i) will not be binding on Buyer or (ii) is cancelable on
thirty (30) days or less notice without penalty or premium. If
Seller shall request Buyer’s approval to any of the foregoing matters, Buyer
shall have five (5) days from its receipt of such request to give Seller
notice of its approval or disapproval of such matter. If Buyer does
not give such notice, such matter shall be deemed disapproved by
Buyer.
17
(c) So long
as this Agreement remains in effect, Seller shall ensure that the Property is
operated and maintained in a manner consistent with past practices and maintain
reasonable and customary levels and coverages of insurance and Seller shall not
create or consent to the creation of liens or exceptions to title other than the
Approved Conditions of Title or take any action that would render any of the
representations or warranties of Seller set forth in Section 14 incorrect
as of the Close of Escrow.
(d) Seller
shall promptly notify Buyer in writing of any material change in the status of
the use, occupancy, or condition of the Property.
(e) Seller
will give notice as of the Close of Escrow terminating any Contracts that Buyer
has not agreed in writing to accept to the extent that such contracts are
terminable.
17. DEFAULT
(a) Liquidated
Damage. BUYER RECOGNIZES THAT THE PROPERTY WILL BE REMOVED BY
THE SELLER FROM THE MARKET DURING THE EXISTENCE OF THIS AGREEMENT, AND THAT IF
THIS AGREEMENT IS NOT CONSUMMATED SOLELY BECAUSE OF BUYER’S DEFAULT IN ITS
OBLIGATION TO PURCHASE THE PROPERTY, IT WOULD BE EXTREMELY DIFFICULT AND
IMPRACTICAL TO ASCERTAIN THE EXTENT OF THE DETRIMENT TO SELLER. THE
PARTIES HAVE DETERMINED AND AGREED THAT THE ACTUAL AMOUNT OF DAMAGES THAT WOULD
BE SUFFERED BY SELLER AS A RESULT OF ANY SUCH DEFAULT IS DIFFICULT OR
IMPRACTICABLE TO DETERMINE AS OF THE DATE OF THIS AGREEMENT AND THAT THE DEPOSIT
IS A REASONABLE ESTIMATE OF THE AMOUNT OF SUCH DAMAGES. FOR THESE
REASONS, THE PARTIES AGREE THAT IF THIS PURCHASE AND SALE IS NOT CONSUMMATED
BECAUSE OF BUYER’S DEFAULT IN ITS OBLIGATION TO PURCHASE THE PROPERTY, SELLER,
AS ITS SOLE REMEDY, SHALL BE ENTITLED TO RETAIN THE DEPOSIT AS LIQUIDATED
DAMAGES (INCLUDING ALL INTEREST EARNED FROM THE INVESTMENT
THEREOF). IN ADDITION, BUYER SHALL PAY ALL TITLE, SURVEY AND ESCROW
CANCELLATION CHARGES. SELLER WAIVES ITS RIGHT TO SEEK SPECIFIC
PERFORMANCE AGAINST BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTION 3389,
OR OTHERWISE, OR TO SEEK ANY OTHER REMEDY AT LAW OR IN
EQUITY. NOTHING CONTAINED HEREIN SHALL IN ANY MANNER LIMIT THE AMOUNT
OF DAMAGES OBTAINABLE BY SELLER PURSUANT TO AN ACTION UNDER ANY HOLD HARMLESS,
DEFENSE OR INDEMNIFICATION PROVISION HEREOF.
Seller
_/s/
CS_ Buyer
_/s/
KB_
(b) Default by
Seller. In the event the sale of the Property as contemplated
hereunder is not consummated due to Seller’s default hereunder, Buyer shall be
entitled, as its sole remedy, either (a) to receive the return of the
Deposit plus all interest earned thereon, or (b) to enforce specific
performance of Seller’s obligation to convey the Property to Buyer in accordance
with the terms of this Agreement, it being understood and agreed that the remedy
of specific performance shall not be available to enforce any other obligation
of Seller hereunder. In the event the sale of the Property as
contemplated hereunder is not consummated due to Seller’s default hereunder, and
Buyer elects clause (a) above as its remedy, subject to a cap of $150,000,
Seller shall reimburse Buyer within ten (10) days of the cancellation of
this Agreement all of Buyer’s reasonable and actual out of pocket costs and
expenses incurred by
18
Buyer in
connection with this Agreement, including title, survey and escrow cancellation
charges (“Costs”). Buyer
expressly waives its rights to seek damages in the event of Seller’s default
hereunder except as expressly provided herein. Buyer shall be deemed
to have elected to terminate this Agreement and receive back the Deposit (plus
interest, and be reimburse its Costs) if Buyer fails to file suit for specific
performance against Seller in a court having jurisdiction in the county and
state in which the Real Property is located, on or before ninety (90) days
following the date upon which Close of Escrow was to have
occurred. Buyer waives any right to pursue any other remedy at law or
equity for such default of Seller, including, without limitation, any right to
seek, claim or obtain damages (other than for the
Costs), punitive damages
or consequential damages. In no case shall Seller ever be liable to
Buyer under any statutory, common law, equitable or other theory of law, either
prior to or following the Closing, for any lost rents, profits, “benefit of the
bargain,” business opportunities or any form of consequential damage in
connection with any claim, liability, demand or cause of action in any way or
manner relating to the Property, the condition of the Property, this Agreement,
or any transaction or matter between the parties contemplated
hereunder.
18. CONDEMNATION
AND DESTRUCTION
(a) Eminent Domain or
Taking. If, prior to the Close of Escrow, any material portion
of the Real Property or Improvements is taken by eminent domain or otherwise,
Seller shall immediately notify Buyer of such fact. If such taking is
“material,” Buyer shall have the option, in its sole discretion, to terminate
this Agreement upon written notice to Seller given not later than ten (10)
days after receipt of Seller’s notice. If this Agreement is
terminated pursuant to this Section, the provisions of Section 6(c) shall
govern. If Buyer does not exercise this option to terminate this
Agreement, or if there has not been a material taking by eminent domain or
otherwise to give rise to such option, neither party shall have the right to
terminate this Agreement, but the Seller shall assign and turn over, and the
Buyer shall be entitled to receive and keep, all awards for the taking by
eminent domain which accrue to Seller and the parties shall proceed to the Close
of Escrow pursuant to the terms hereof, without modification of the terms of
this Agreement and without any reduction in the Purchase Price. For
the purpose hereof, “material” shall be deemed to
be any diminution in the value of the Property as a result of a taking by
eminent domain or otherwise which exceeds two million and 0/100ths Dollars
($2,000,000.00).
(b) Fire or
Casualty. Prior to the Close of Escrow, the entire risk of
loss or damage by earthquake, flood, landslide, fire or other casualty shall be
borne and assumed by Seller, except as otherwise provided in this
Section. If, prior to the Close of Escrow, any part of the
Improvements are damaged or destroyed by earthquake, flood, landslide, fire or
other casualty, Seller shall immediately notify Buyer of such
fact. If such damage or destruction is “material”, Buyer shall have
the option to terminate this Agreement upon written notice to the Seller given
not later than ten (10) days after receipt of Seller’s
notice. For purposes hereof, “material” shall be deemed to be any
damage or destruction where the cost of repair or replacement is estimated to be
two million and 0/100ths Dollars ($2,000,000.00) or more by Seller’s
consultant. If this Agreement is so terminated, the provisions of
Section 6(c) shall govern. If Buyer does not exercise this
option to terminate this Agreement, or if the casualty is not material, neither
party shall have the right to terminate this Agreement but Seller shall assign
and turn over, and Buyer shall be entitled to receive and keep, all insurance
proceeds payable to it with respect to such destruction, and the parties shall
proceed to the Close of Escrow pursuant to the terms hereof without modification
of the terms of this Agreement and without any reduction in the Purchase
Price.
19. NOTICES
All
notices required or permitted hereunder shall be in writing, and shall be served
on the parties at the addresses set forth below. Any such notices
shall be either (i) sent by overnight delivery using a nationally
recognized
19
overnight
courier, in which case notice shall be deemed delivered one (1) business
day after deposit with such courier, or (ii) sent by personal delivery, in
which case notice shall be deemed delivered upon receipt or refusal of
delivery. A party’s address may be changed by written notice to the
other party; provided,
however, that no notice
of a change of address shall be effective until actual receipt of such
notice. The attorney for a party has the authority to send notices on
behalf of such party.
|
TO
BUYER:
|
Harvest
2400, LLC
|
|
|
0000
Xxx Xxxxx Xxxxxxxxx
|
|
|
Xxxxx
Xxxxx, 00000
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
Attention:
|
Senior
Director of Real Estate and
|
|
|
Legal
Department
|
|
WITH
A COPY TO:
|
Cooley
Godward Kronish, LLP
|
|
|
000
Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
|
Xxx
Xxxxxxxxx, XX 00000-0000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxx
Xxxx
|
TO
SELLER:
|
c/o
Harvest Properties, Inc.
|
|
|
0000
Xxxxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxxxxxxxxx,
XX 00000
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
Attention:
|
Xxxx
Xxxxxxx
|
|
|
and:
|
|
|
c/o
BlackRock Realty Advisors, Inc.
|
|
|
000
Xxxxxx Xxxxx, 0xx
Xxxxx
|
|
|
Xxxxxxx
Xxxx, Xxx Xxxxxx 00000
|
|
Attention:
|
Xxxxx
Xxxxxxxxx, Vice-President -
Dispositions
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
|
xxxxx.xxxxxxxxx@xxxxxxxxx.xxx
|
|
|
and:
|
|
|
c/o
BlackRock Realty Advisors, Inc.
|
|
|
000
Xxxxxx Xxxxx, 0xx
Xxxxx
|
|
|
Xxxxxxx
Xxxx, Xxx Xxxxxx 00000
|
|
Attention:
|
Xxxxxx
X. Xxxx, Esq.
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
|
Xxxxxx.xxxx@xxxxxxxxx.xxx
|
20
|
WITH
COPY TO:
|
Fulbright &
Xxxxxxxx L.L.P.
|
|
|
000
Xxxxxxxx, Xxxxx 0000
|
|
|
Xxxxxx,
Xxxxx 00000
|
|
Attention:
|
Xxxx
X. Xxxxx, Esq.
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
|
xxxxxx@xxxxxxxxx.xxx
|
|
TO
ESCROW HOLDER:
|
First
American Title Insurance Company
|
|
|
0000
Xxxxx Xxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxx
Xxxx, XX 00000
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
Attention:
|
Xxxx
Xxxxx
|
Notice of
change of address shall be given by written notice in the manner described in
this Section
20. NONDISCLOSURE
Prior to
the Close of Escrow, Buyer and Seller shall keep confidential the existence of
and the provisions of this Agreement in accordance with that certain
Confidentiality Agreement dated December 21, 2007 by and between Seller and
Buyer; provided, however, that Buyer may make filings and disclosure of this
Agreement to the extent required by applicable laws.
21. BROKERS
Seller
represents to Buyer that it has not dealt with any broker or finder in
connection with the sale contemplated by this Agreement except for Xxxxxxx Xxxx
and Xxxx Xxxxxxxxx of CB Xxxxxxx Xxxxx, Inc., and Xxxxxx Xxxxxx of CPS Corfac
International (collectively, “Brokers”). Buyer
represents to Seller that it has not dealt with any broker or finder in
connection with the sale contemplated by this Agreement other than
Brokers. Seller and Buyer shall each indemnify and hold the other
harmless from and against any and all claims of all brokers and finders other
than Brokers claiming by, through or under the indemnifying party and in any way
related to the sale and purchase of the Property, this Agreement, or otherwise,
including, without limitation, attorneys’ fees and expenses incurred by the
indemnified party in connection with such claim. The provisions of
this paragraph shall survive Closing or any termination of this
Agreement.
22. EXCHANGE
The
parties to this Agreement acknowledge that either party may desire to structure
the sale and/or the purchase of the Property as an exchange for like-kind
property pursuant to Section 1031 of the Internal Revenue Code of 1986, as
amended, in order to defer recognition of income from the disposition of the
Property and other properties. The parties agree to reasonably
cooperate with each other to accomplish such exchange(s) and each party hereby
agrees that any and all costs associated with said exchange shall be borne
solely by the exchanging party and shall in no way be attributable to the
non-exchanging party. In no event shall (i) such cooperation
entail any additional expense or cause any liability whatsoever to the
non-exchanging party, (ii) the non-exchanging party be required to take
title to the exchanged property(ies) to effectuate the tax deferred exchange
contemplated by this Section, (iii) the Close of Escrow be extended as a
result of such exchange, and (iv) the exchanging party shall indemnify and
hold the other party harmless for, from an against any claim, demand, cause of
action, liability or expenses including
attorneys’ fees) in connection with such exchange including, without limitation,
any increase in escrow fees or charges resulting from such
exchange. An assignment to an exchange facilitator pursuant to this
Section shall not relieve the assigning party from any of its obligations
hereunder nor shall the ability to consummate a 1031 exchange be a
condition to the Close of Escrow.
21
(a) Partial
Invalidity. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
such term and provision of this Agreement shall be valid, and shall be enforced
to the fullest extent permitted by law.
(b) Waivers. No
waiver of any breach of any covenant or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof, or of any other
covenant or provision herein contained. No extension of time for
performance of any obligation or act shall be deemed an extension of time for
performance of any other obligation or act except those of the waiving party,
which shall be extended by a period of time equal to the period of the
delay.
(c) Survival of
Representations. The indemnification, defense and hold
harmless obligations, and the representations and warranties made by each party
herein (subject to Section 14(q)) shall survive (i) the Close of
Escrow and shall not merge into the Grant Deed and the recordation thereof, and
(ii) the termination and/or cancellation of this Agreement.
(d) Successors and
Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the permitted successors and assigns of the parties hereto;
provided, however, that Buyer shall not
assign Buyer’s rights or obligations pursuant to this Agreement to any party
without the prior written consent of Seller, which consent may be withheld in
its sole and absolute discretion.
(e) Professional
Fees. If either party commences an action against the other to
interpret or enforce any of the terms of this Agreement or because of the breach
by the other party of any of the terms hereof, the losing party shall pay to the
prevailing party reasonable attorneys’ fees, costs and expenses and court costs
and other costs of action incurred in connection with the prosecution or defense
of such action, whether or not the action is prosecuted to a final
judgment.
(f) Entire
Agreement. This Agreement (including all Exhibits attached
hereto) and all documents referred to in Sections 7 and 8 executed by the
parties in connection with the Close of Escrow are the final expression of, and
contain the entire agreement between, the parties with respect to the subject
matter hereof and supersede all prior understandings with respect
thereto. This Agreement may not be modified, changed, supplemented,
superseded, canceled or terminated, nor may any obligations hereunder be waived,
except by written instrument signed by the party to be charged or by its agent
duly authorized in writing or as otherwise expressly permitted
herein. The parties do not intend to confer any benefit hereunder on
any person, firm or corporation other than the parties hereto and lawful
assignees.
(g) Time of
Essence. Seller and Buyer hereby acknowledge and agree that
time is strictly of the essence with respect to each and every term, condition,
obligation and provision hereof and that failure to timely perform any of the
terms, conditions, obligations or provisions hereof by either party shall
constitute a material breach of and a non-curable (but waivable) default under
this Agreement by the party so failing to perform.
22
(h) Relationship of
Parties. Nothing contained in this Agreement shall be deemed
or construed by the parties to create the relationship of principal and agent, a
partnership, joint venture or any other association between Buyer and
Seller.
(i) Construction. Headings
at the beginning of each paragraph and subparagraph are solely for the
convenience of the parties and are not a part of the
Agreement. Whenever required by the context of this Agreement, the
singular shall include the plural and the masculine shall include the feminine
and vice versa. This Agreement shall not be construed as if it had
been prepared by one of the parties, but rather as if both parties had prepared
the same. Unless otherwise indicated, all references to paragraphs,
sections, subparagraphs and subsections are to this Agreement. All
exhibits referred to in this Agreement are attached and incorporated by this
reference.
(j) Governing
Law. This Agreement shall be governed by, interpreted under,
and construed and enforced in accordance with the laws of the State of
California.
(k) Possession of
Property. Buyer shall be entitled to the possession of the
Property immediately following the Close of Escrow.
(l) Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which, together, shall constitute one and the
same instrument.
(m) Days of
Week. If any date for performance herein falls on a Saturday,
Sunday or holiday, as defined in Section 6700 of the California Government
Code, the time for such performance shall be extended to 5:00 p.m. on the
next business day.
(n) Representation by
Counsel. Notwithstanding any rule or maxim of construction to
the contrary, any ambiguity or uncertainty shall not be construed against either
Seller or Buyer based upon authorship of any of the provisions
hereof. Seller and Buyer each hereby warrant, represent and certify
to the other as follows: (a) that the contents of this Agreement
have been completely and carefully read by the representing party and counsel
for the representing party; (b) that the representing party has been
separately represented by counsel and the representing party is satisfied with
such representation; (c) that the representing party’s counsel has advised
the representing party of, and the representing party fully understands, the
legal consequences of this Agreement; and (d) that no other person (whether
a party to this Agreement or not) has made any threats, promises or
representations of any kind whatsoever to induce the execution hereof, other
than the performance of the terms and provisions hereof.
(o) Facsimile
Signatures. In order to expedite the transaction contemplated
herein, facsimile and emailed signatures may be used in place of original
signatures on this Agreement. Seller and Buyer intend to be bound by
the signatures on the electronically transmitted document, are aware that the
other party will rely on the such signatures, and hereby waive any defenses to
the enforcement of the terms of this Agreement based on the form of signature
provided that the parties agree to exchange originally signed counterparts
within ten (10) days following the date hereof.
(p) Offer. This
Agreement constitutes an offer by Buyer to buy the Property upon the terms and
conditions set forth herein, and such offer shall not be deemed to be accepted
until executed and delivered by Buyer and Seller.
23
(q) AS-IS SALE. 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, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS
AS TO HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
BUYER
ACKNOWLEDGES AND AGREES THAT UPON CLOSE OF ESCROW SELLER SHALL SELL AND CONVEY
TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, WITH ALL FAULTS”,
EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT. BUYER 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 PROPERTY OR
RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, OFFERING PACKAGES
DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, OR ANY
EMPLOYEES OR AGENTS 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. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE
REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD
“AS-IS.”
BUYER
REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR WILL CONDUCT PRIOR
TO CLOSE OF ESCROW, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING
BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS
THEREOF, AS BUYER DEEMS NECESSARY OR DESIRABLE 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 COVENANTS OF SELLER AS
ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSE OF ESCROW,
BUYER 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 BUYER’S INVESTIGATIONS, AND BUYER, UPON CLOSE OF ESCROW
(EXCEPT WITH RESPECT TO THE EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLER SET
FORTH IN THIS AGREEMENT AND ANY FRAUD ON THE PART OF SELLER), SHALL BE DEEMED TO
HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLERS 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 REASONABLE
ATTORNEYS’ FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH
BUYER 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
AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS
REGARDING THE PROPERTY. IN ADDITION, BUYER WAIVES, RELINQUISHES AND
RELEASES ANY CLAIMS IT MAY HAVE AGAINST SELLER, BLACKROCK GRANITE PROPERTY FUND,
L.P., AND ITS DIRECT AND INDIRECT OWNERS, WITH RESPECT TO ANY STATEMENTS MADE BY
HARVEST PROPERTIES, INC., OR ANY OF ITS AFFILIATES OR REPRESENTATIVES, INCLUDING
BUT NOT LIMITED TO XXXX XXXXXXX AND XXXXX XXXXXX, REGARDING THE EXISTENCE,
STATUS, POTENTIAL FOR OR NATURE OF ANY ENTITLEMENTS WITH RESPECT TO THE PROPERTY
AND ANY REDEVELOPMENT OF THE PROPERTY. THE PROVISIONS OF THIS SECTION
WILL SURVIVE THE TERMINATION OF THIS AGREEMENT. BUYER HEREBY WAIVES
THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES
THAT:
24
“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.”
(r) Limitation on
Liability. In any action brought to enforce the obligations of
Seller under this Agreement or any other document delivered in connection
herewith, the judgment or decree shall be subject to the provisions of this
Section 23(r). In all events, the liability of Seller under this
Agreement in the aggregate shall be enforceable against Seller only up to the
Maximum Liability Cap. In connection with this Agreement, BlackRock
Realty Advisors, Inc. (“Advisor”) is acting as the
investment adviser to Seller, and Advisor shall not have any individual
liability hereunder. Buyer acknowledges and agrees that Buyer shall
have no recourse against any property or assets of BlackRock Granite Property
Fund, L.P. or Harvest Properties, Inc., any assets of the Advisor,
or to any of the past, present or future, direct or indirect, shareholders,
partners, members, managers, principals, directors, officers, agents,
incorporators, affiliates or representatives of Seller, BlackRock Granite
Property Fund, L.P., Harvest Properties, Inc., or the Advisor (collectively,
“Seller Parties”) for
the payment or collection of any amount, judgment, judicial process, arbitral
award, fee or cost or for any other obligation or claim arising out of or based
upon this Agreement and requiring the payment of money by Seller, except that
Buyer shall have a claim against the Property (and the proceeds from the sale
thereof), but only up to the Maximum Liability Cap. The Seller
Parties, shall not be subject to levy, lien, execution, attachment or other
enforcement procedure for the satisfaction of any of Buyer’s rights or remedies
under or with respect to this Agreement, at law, in equity or otherwise, provided the foregoing shall
not limit the rights of Buyer to pursue claims against the Property (and the
proceeds from the sale thereof), but only up to the Maximum Liability
Cap. Nothing contained in this Agreement shall be deemed or construed
to be an acknowledgment or agreement by Seller, or any other Seller Party that
they do not have and maintain, respectively, separate existences, identities and
integrity from the others, or that their separate existences, identities and
integrity are impaired or should be disregarded in any manner whatsoever or that
BlackRock Granite Property Fund, L.P., Harvest Properties, Inc., or Advisor are
parties to this Agreement. The provisions of this Section are
intended and shall be construed to be a limitation on liability only and shall
not be deemed or be construed to create any liability or obligation of Seller or
any of the Seller Parties. The provisions of this Section shall
survive the termination of this Agreement.
[Signature page
follows.]
25
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
January 31, 2008.
BUYER: SELLER:
HARVEST
2400,
LLC HARVEST-GRANITE
SAN XXXXX LLC,
a
Delaware limited liability
company a
Delaware limited liability company
By: /s/ Xxxxx
Xxxxx By:BlackRock Granite Property Fund,
L.P.,
Name: Xxxxx
Xxxxx a Delaware limited
partnership,
Its: Director its managing member
|
|
By:BlackRock
Granite Property Fund, LLC,
|
|
|
a
Delaware limited liability company,
|
|
|
its
general partner
|
|
|
By:BlackRock
Granite Property Fund, Inc.
|
|
|
a
Maryland corporation,
|
|
|
its
sole member
|
|
|
By:BlackRock
Realty Advisors, Inc.,
|
|
|
a
Delaware corporation,
|
|
|
its
investment manager
|
By: /s/ Xxxxxxxxxxx
Xxxxx
Name: /s/ Xxxxxxxxxxx
Xxxxx
Its: Vice
President
EXHIBIT
LIST
Exhibit
A – Property
Description
Exhibit
B – Other
Property
Exhibit
C – Xxxx
of Sale
Exhibit
D – Leases
Exhibit
E
– General Assignment
Exhibit
F
– Grant Deed
Exhibit
G – Documents
and Materials
Exhibit
H – Seller’s
Certificate
Exhibit
I
– Buyer’s
Certificate
Exhibit
J
–
Contracts and Agreements
Exhibit
K –
Form of Tenant Estoppel Certificate
Exhibit
L
–
Notice to Tenants
Exhibit
M – Notice
to Vendors
Exhibit
A
A-1
Exhibit
B
OTHER
PROPERTY
(a) All
unexpired leases, subleases, occupancy and license agreements and any other
agreements for the use, possession or occupancy of any portion of the Property
and described on Exhibit D and
all other new leases or modifications to existing leases entered into by Seller
after the Effective Date with respect to the Property in accordance with
Section 16(a) (“Leases”), security deposits
under the Leases (to the extent made by tenants under the Leases and not applied
or forfeited, in accordance with the terms of the applicable Leases, prior to
the Close of Escrow as defined below), tenant indemnities, rents and other sums
accruing pursuant to the Leases on or after the Close of Escrow, provided that
no Leases shall be deemed assigned if Seller’s execution or modification of such
Leases shall be in contravention of this Agreement.
(b) All
service contracts and other contracts which affect the Property to the extent
described on Exhibit J and
all other service contracts entered into by Seller in accordance with
Section 16(b) after the Effective Date (“Contracts”);
(c) All
consents, authorizations, government approvals, governmental permits, licenses
and approvals, warranties and guarantees that are assignable and that Seller has
received on equipment installed in the Improvements, and, to the extent in
Seller’s possession, plans, specifications, as-built architectural drawings and
engineering, electrical and mechanical plans.
B-1
Exhibit
C
XXXX
OF SALE
THIS XXXX
OF SALE (“Xxxx of
Sale”), is made this ____ day of February __, 2008, by
HARVEST-GRANITE SAN XXXXX LLC, a Delaware limited liability company (“Seller”), and
_________________, a Delaware __________ (“Buyer”).
W I T N E S S E T H
:
Seller
and Buyer entered into that certain Agreement of Purchase and Sale dated as of
_____________, 2007 (“Agreement”) respecting the
sale of certain “Property” (as defined in the
Agreement).
Under the
Agreement, Seller is obligated to transfer Seller’s right, title and interest in
and to certain tangible personal property, which is described in Exhibit A
attached hereto and incorporated herein by this reference, as well as all of
Seller’s right, title and interest in and to all other furniture, fixtures,
equipment (including office equipment), machinery, tools and supplies owned by
Seller and found on the improvements as of the date hereof, commonly known as
2600 - 2880 San Xxxxx Expressway, Santa Clara, California, located on the real
property described in Exhibit B
attached hereto (collectively, “Personal
Property”).
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller does hereby absolutely and unconditionally
give, grant, bargain, transfer, sell, set over, assign, convey, release, confirm
and deliver to Buyer all of the Personal Property. The Personal
Property is transferred “As-Is”, “Where-Is” without warranties of any kind
including without limitation, implied warranties of merchantability or fitness
for any particular purpose.
This Xxxx
of Sale shall be binding upon and inure to the benefit of the successors,
assigns, personal representatives, heirs and legatees of Buyer and
Seller.
This Xxxx
of Sale shall be governed by, interpreted under, and construed and enforced in
accordance with, the laws of the State of California.
C-1
IN
WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the date first
written above.
SELLER:
HARVEST-GRANITE
SAN XXXXX LLC,
a
Delaware limited liability company
|
|
By:BlackRock
Granite Property Fund, L.P.,
|
|
|
a
Delaware limited partnership,
|
|
|
its
managing member
|
|
|
By:BlackRock
Granite Property Fund, LLC,
|
|
|
a
Delaware limited liability company,
|
|
|
its
general partner
|
|
|
By:BlackRock
Granite Property Fund, Inc.
|
|
|
a
Maryland corporation,
|
|
|
its
sole member
|
|
|
By:BlackRock
Realty Advisors, Inc.,
|
|
|
a
Delaware corporation,
|
|
|
its
investment manager
|
By:
Name:
Its:
C-2
Exhibit
D
LEASES
Digital
Networks North America, Inc., May 23, 2003
BAIS,
Inc., dba Bay Area Internet Solutions, July 22, 2002
BAIS,
Inc. First Amendment to Lease, May 30, 2007
Osram
Opto Semiconductors, Inc., January 5, 2007
Nvidia
Corporation, May 26, 2006
Nvidia
Corporation, First Amendment, February 8, 2007
Nvidia
Corporation, Second Amendment, June 15, 2007
Nvidia
Corporation, Third Amendment, November 15, 2007
Nvidia
Corporation, Found Amendment, November 27, 2007
Nvidia
Corporation, Fifth Amendment, December 4, 2007
Parametric
Technology Corporation, May 2, 2003
Parametric
Technology Corporation First Amendment, June 25, 2003
Edgewater
Networks, Inc., July 11, 2005
M2000,
Inc., September 25, 2006
Entrisphere,
Inc., July 15, 2005
Mu Cho
Hong and Sung Xxx Xxxx, April 5, 2006
ITM
Software Corp., November 6, 2006
Verity,
Inc., August 15, 2007
FusionStorm,
December ___, 2005
FusionStorm
First Amendment, March 24, 2006
D-1
Exhibit
E
GENERAL
ASSIGNMENT
This
General Assignment (“Assignment”), dated as of
_____________, 2008, is entered into by and between HARVEST-GRANITE SAN XXXXX LLC, a
Delaware limited liability company (“Assignor”), in favor
___________, a Delaware _________ (“Assignee”).
W I T N E S S E T H
:
Assignor,
as seller, and Assignee, as buyer, entered into that certain Agreement of
Purchase and Sale dated _______, 2007 (“Agreement”), regarding the
purchase and sale of certain “Property” (as such term is
defined in the Agreement).
Under the
Agreement, Assignor is obligated to assign to Assignee, all of Assignor’s right,
title and interest in and to the Leases and Contracts (as such term is defined
in the Agreement) and Intangibles and Assignee is obligation to accept such
assignment.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor hereby assigns, sells, transfers, sets
over and delivers unto Assignee, all of Assignor’s estate, right, title and
interest in and to (i) the maintenance, service or other contracts listed
on Exhibit A
attached hereto and accepted by Buyer pursuant to the Purchase Agreement, if
any, (ii) the leases listed on Exhibit B and
(iii) in each case to the extent assignable and without representation or
warranty: all licenses, permits, sign permits, operating permits certificates of
occupancy, approvals, dedications, subdivision maps and entitlements issued,
approved or granted by governmental entities or otherwise in connection with the
Property; any and all warranties, trade names, services marks, engineering,
soils, pest control and other reports relating to the Property; advertising
materials, all development rights and other intangible rights, titles,
interests, privileges and appurtenances (in each case without representation or
warranty, except as expressly set forth in the Agreement) and related to the
Property and its operation; and all licenses, consents, easements, rights of way
and approvals required from private parties to make use of utilities and to
insure vehicular and pedestrian ingress and egress to the Real Property and the
Improvements, if any (collectively, the “Intangibles”), and Assignee
hereby accepts such assignment and assumes the obligations with respect to the
Intangibles as of the Close of Escrow (as defined in the
Agreement).
In the
event of the bringing of any action or suit by a party hereto against another
party hereunder by reason of any breach of any of the covenants, conditions,
agreements or provisions on the part of the other party arising out of this
Assignment, then in that event the prevailing party shall be entitled to have
and recover of and from the other party all costs and expenses of the action or
suit, including reasonable attorneys’ fees.
This
Assignment shall be binding upon and inure to the benefit of the successors,
assignees, personal representatives, heirs and legatees of all the respective
parties hereto.
This
Assignment shall be governed by, interpreted under, and construed and
enforceable in accordance with, the laws of the State of
California.
E-1
The
obligations of Assignee contained herein are intended to be binding upon
Assignee and shall not be personally binding upon, nor shall any resort be had
to the private properties of any officers, directors, shareholders, trustees or
beneficiaries thereof.
This
Assignment may be executed in counterparts with all such counterparts together
constituting one (1) original of this Assignment.
IN
WITNESS WHEREOF, Assignor and Assignee have executed and delivered this
Assignment as of the dates set forth below.
ASSIGNEE: ASSIGNOR:
______________,
LLC HARVEST-GRANITE
SAN XXXXX LLC,
a
Delaware
_____________ a
Delaware limited liability company
By:
By:BlackRock Granite Property Fund, L.P.,
Name:
a Delaware limited partnership,
Its: its managing
member
|
|
By:BlackRock
Granite Property Fund, LLC,
|
|
|
a
Delaware limited liability company,
|
|
|
its
general partner
|
|
|
By:BlackRock
Granite Property Fund, Inc.
|
|
|
a
Maryland corporation,
|
|
|
its
sole member
|
|
|
By:BlackRock
Realty Advisors, Inc.,
|
|
|
a
Delaware corporation,
|
|
|
its
investment manager
|
By:
Name:
Its:
E-2
Exhibit
A To General Assignment
LIST
OF CONTRACTS
E-3
Exhibit
F
GRANT
DEED
RECORDING
REQUESTED BY AND
WHEN
RECORDED MAIL TO:
Harvest
Properties, Inc.
______________________
______________________
Attention: _____________
MAIL TAX
STATEMENTS TO:
Same as
above
_________________________________________________________
(Above
Space For Recorder’s Use Only)
In
accordance with Section 11932 of the California Revenue and Tax Code,
Grantor has declared the amount of the transfer tax which is due by a separate
statement not being recorded with this Grant Deed.
F-1
GRANT
DEED
FOR A
VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, HARVEST-GRANITE SAN XXXXX LLC, a
Delaware limited liability company (“Grantor”), hereby grants to
_________________, a Delaware ______________ all rights, title and interest in
that certain real property described in Exhibit A
attached hereto and made a part hereof. The conveyance hereunder is
made subject to matters of record or apparent from an inspection or survey as of
the date hereof.
DATED:
______________, 2008
GRANTOR:
HARVEST-GRANITE
SAN XXXXX LLC,
a
Delaware limited liability company
|
|
By:BlackRock
Granite Property Fund, L.P.,
|
|
|
a
Delaware limited partnership,
|
|
|
its
managing member
|
|
|
By:BlackRock
Granite Property Fund, LLC,
|
|
|
a
Delaware limited liability company,
|
|
|
its
general partner
|
|
|
By:BlackRock
Granite Property Fund, Inc.
|
|
|
a
Maryland corporation,
|
|
|
its
sole member
|
|
|
By:BlackRock
Realty Advisors, Inc.,
|
|
|
a
Delaware corporation,
|
|
|
its
investment manager
|
By:
Name:
Its:
X-0
Xxxxx
xx Xxxxxxxxxx
Xxxxxx of
_________________
On _______________ before me,
______________________,
a notary public, personally appeared ____________________________________, who
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.
I certify
under PENALTY OF PERJURY under the laws of the State of California that the
foregoing is true and correct.
F-3
Exhibit
A to Grant Deed
F-4
Exhibit
G
DOCUMENTS
AND MATERIALS
A. Intentionally
Omitted.
B. Operating
Information. The following information with respect to the
Property:
1. Copies of
real estate tax bills (including special assessments) for prior 3 years,
including evidence of payment.
2. Plans and
specifications showing “as built” condition of the Property with an architect’s
certificate as to the gross leasable area of the Property, to the extent they
exist and are in Seller’s possession.
3. All
reports relating to the physical condition of the Property, to the extent they
exist and are in Seller’s possession, including engineering, mechanical, roof,
environmental and seismographic.
4. All
current insurance policies, together with a written summary of insurance
coverages and premiums by policy type.
5. All
reports, assessments or studies regarding actions required to bring the Property
into compliance with the American Disabilities Act (“ADA”), or any similar statute
or local ordinance or code.
6. All
reports, assessments, studies or other information in Seller’s possession
relating to design, construction and costs of performing seismic, ADA, building
code and other improvements with respect to the Property.
7. A
detailed list of any personal property owned by Seller including, without
limitation, any fixtures equipment and tools owned by Seller and located on the
Property which are to be conveyed to Buyer at the Close of Escrow (collectively,
“Personal Property”),
together with a copy of any warranty or guaranties applicable
thereto.
8. Copies of
all management, service and other contracts and agreements relating to the
ownership, operation, maintenance, construction or development of the Property,
including without limitation, any insurance policies, broker listing agreements,
construction contracts major subcontractor contracts, architect contracts,
maintenance contracts, reciprocal easement agreements, utility will-serve
letters and any construction warranties on the roof of the Property, HVAC or
other elements of the Property.
9. Copies of
all leases, licenses or occupancy agreements relating to the
Property.
G-1
C. Other
Information. To the extent such exist and are in Seller’s
possession, the following additional information relating to the
Property:
1. Seller’s
most current title policy.
2. Existing
certified boundary survey and title survey completed by a registered surveyor,
including a legal description and, to the extent in Seller’s possession, copies
of any title exceptions noted thereon.
3. Any and
all licenses, permits, approvals and agreements affecting or relating to the
ownership and operation of the Property.
4. Copies of
all applications, permits, notices, approvals and correspondence or other
written communications to or from any governmental or quasi-governmental entity,
department or agency regarding any permit, approval, consent or authorization
with respect to the Property, including without limitation, any building permits
and certificates of occupancy.
5. Copies of
all documents pertaining to any loan currently secured by the
Property.
6. Details
of any pending disputes, lawsuits, claims or other proceedings affecting the
Property or any past disputes, lawsuits, claims or other proceedings affecting
the Property while owned by Seller.
G-2
Exhibit
H
SELLER’S
CERTIFICATE
The
undersigned, HARVEST-GRANITE
SAN XXXXX, LLC, a Delaware limited liability company (“Seller”), hereby certifies to
_______________, a Delaware
_______________ (“Buyer”), pursuant to that
certain Agreement of Purchase and Sale dated ________, 2007 by and between
Seller and Buyer (the “Agreement”), that the
representations and warranties made by Seller in the Agreement, subject to the
provisions of and limitations contained in this Agreement, are true and correct
and complete in all material respects as of the date hereof.
IN
WITNESS WHEREOF, the undersigned has executed this certificate as of the ______
day of ______________, 2008.
HARVEST-GRANITE
SAN XXXXX LLC,
a
Delaware limited liability company
|
|
By:BlackRock
Granite Property Fund, L.P.,
|
|
|
a
Delaware limited partnership,
|
|
|
its
managing member
|
|
|
By:BlackRock
Granite Property Fund, LLC,
|
|
|
a
Delaware limited liability company,
|
|
|
its
general partner
|
|
|
By:BlackRock
Granite Property Fund, Inc.
|
|
|
a
Maryland corporation,
|
|
|
its
sole member
|
|
|
By:BlackRock
Realty Advisors, Inc.,
|
|
|
a
Delaware corporation,
|
|
|
its
investment manager
|
By:
Name:
Its:
H-1
Exhibit
I
BUYER’S
CERTIFICATE
The
undersigned, _______________, a
Delaware ____________ (“Buyer”), pursuant to that
certain Agreement of Purchase and Sale dated ________, 2007 by and between
Harvest-Granite San Xxxxx, LLC, as Seller, and Buyer (the “Agreement”), that the
representations and warranties made by Buyer in the Agreement, subject to the
provisions of and limitations contained in this Agreement, are true and correct
and complete in all material respects as of the date hereof.
IN
WITNESS WHEREOF, the undersigned has executed this certificate as of the ______
day of ______________, 2008.
BUYER:
_____________________
a
Delaware _____________
By:
Name:
Its:
I-1
Exhibit
J
CONTRACTS
AND AGREEMENTS
Exclusive
Lease Listing Agreement, August 11, 2006, (CB Xxxxxxx Xxxxx, Inc.)
Engineering
Service Agreement, January 9, 2006, (ABM Engineering Services)
Service
Contract (Elevator), April 26, 2006, (Xxxx Elevator Company)
Service
Contract (Exterior Lighting), December 13, 2005, (Lighting Management Co.,
Inc.)
Service
Contract (HVAC), June 26, 2006, (Matrix HG, Inc.)
Service
Contract (Interior Plants), December 13, 2005, (AddLife, Inc.)
Service
Contract (Janitorial), December 13, 2005, (Loma Cleaning Service,
Inc.)
Service
Contract (Landscaping), March 29, 2006, (Valley Crest Landscape
Maintenance)
Service
Contract (Pest Control), December 13, 2005, (Crane Pest Control,
Inc.)
Service
Contract (Window Washing), December 13, 2005, (Caledonia Building Services,
Inc.)
Service
Contract (Fire and Life Safety), February 8, 2006, (Diamond Communications,
Inc.)
Service
Xxxxxxxx (Xxxxxxx Xxx Xxxxxxxx), Xxxxx 00, 0000, (Xxxxx, Inc.)
Management
Agreement between San Xxxxx Tower LLC and Harvest Properties, Inc., dated
December 13, 2005, as amended by the First Amendment to Property Management and
Leasing Agreement, dated May 12, 2006, and amended by the Second Amendment to
Property Management and Leasing Agreement, dated January __, 2007.
J-1
Exhibit
K
FORM
TENANT ESTOPPEL CERTIFICATE
[BUYER]
[BUYER’S
ADDRESS]
Ladies
and Gentlemen:
At the
request of Harvest-Granite San Xxxxx, LLC, a Delaware limited liability company
(“Landlord”), made in
connection with the proposed sale of the property commonly known as
2600 - 2880 San Xxxxx Expressway, located in Santa Clara,
California, (the “Property”) and Landlord’s
interest in the “Lease”
(as hereinafter defined) to [BUYER] (“Buyer”), the undersigned
hereby certifies to Landlord and Buyer as follows:
1. The
undersigned is the tenant under a lease with Landlord, dated __________, ___,
[as amended by _________________, dated __________, ____ (collectively, the
“Lease”)][(the “Lease”)] for suite(s) _______
on the ________ floor(s) at the Property (the “Premises”).
2. The Lease
sets forth the entire agreement between Landlord and the undersigned with
respect to the Premises, is in full force and effect and has not been amended,
modified or extended.
3. The
monthly [base][minimum] rent of $________ due under the Lease has been paid
through the date hereof, and all additional rent (consisting of $_________ per
month for estimated operating expenses and estimated real estate taxes) due
under the Lease has been paid through the date hereof.
4. The
Landlord is not in default under the Lease.
5. The
expiration date of the Lease is ____________________, _____.
6. The
amount of the security deposit currently held by Landlord under the Lease is
$_______________.
7. There is
no prepaid rent, except $ _____________.
8. The
undersigned has not assigned any of its interest in the Lease or subleased all
or any portion of the Premises, except as follows:
_____________________________.
9. The
undersigned has no defenses, counterclaims, set-offs or concessions against rent
or charges due or to become due under the Lease.
10. The
undersigned has unconditionally accepted the Premises and [has commenced payment
of full rent] [or] [is entitled to _____ month’s abatement of base rent, as of
the date hereof] under the Lease and is the owner and holder of the entire
tenant’s interest in the Lease.
11. All work
required to be performed by Landlord as of the date hereof with respect to the
Lease and in connection with the Premises has been completed by Landlord to the
satisfaction of Tenant.
K-1
12. The “base
year” for operating expense reimbursements and real estate taxes under the Lease
is ____.
13. The
undersigned has no right or option pursuant to the Lease or otherwise to
purchase all or any part of the Premises or the Property.
14. This
Tenant Estoppel Certificate (this “Certificate”) shall inure to
the benefit of Landlord, Buyer and their successors and assigns.
15. The
undersigned is duly authorized to execute this Certificate.
Very
truly yours,
____________________________,
Tenant
|
|
By: |
|
|
Name: |
|
|
Its: |
|
|
Date:_________________,
2006
|
K-2
Exhibit
L
FORM
OF TENANT NOTICE LETTER
NOTICE TO
TENANTS
2600 -
0000 Xxx Xxxxx Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
________________,
2008
Re: Sale
of 2600 - 2880 San Xxxxx Expressway, Santa Clara, California (the “Property”)
Dear
Tenant:
This is
to notify you that the Property has been sold to [BUYER] and that
____________________________ has been retained by the new owner as managing
agent of the building. Any security or other deposits and any prepaid
rents under your lease have been transferred to the new owner.
Effective
immediately, all rental payments, notices to the Landlord, and correspondence
pursuant to your lease should be mailed to the following address:
_______________________________________________________________.
Very
truly yours,
L-1
Exhibit
M
FORM
OF VENDOR NOTICE LETTER
NOTICE TO
VENDORS
2600 -
0000 Xxx Xxxxx Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
_________________,
2008
Re: Sale
of 2600 - 2880 San Xxxxx Expressway, Santa Clara, California (the “Property”)
Dear
Service Provider:
This is
to notify you that the Property has been sold to [BUYER] (“Buyer”). Buyer has
assumed all of the obligations of the undersigned under the service contracts as
of the date hereof. All notices to Buyer should be sent to Buyer in
the manner provided in the service contract to the following
address:
_______________________________________________________________.
Very
truly yours,
M-1
Exhibit
N
RELATIONSHIP
SIDE LETTER
HARVEST
PROPERTIES, INC.
0000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
January
31, 2008
Xxxxx
Xxxxx
BlackRock
Realty Advisors, Inc.
000
Xxxxxx Xxxxx, 0xx
Xxxxx
Xxxxxxx
Xxxx, Xxx Xxxxxx 00000
Dear
Xxxxx,
As
discussed, Harvest 2400, LLC, an entity wholly owned by Nvidia Corporation
(“Buyer”), the buyer of 2600-2880 San Xxxxx Parkway (the “Property”) pursuant to
that certain Amended and Restated Agreement of Purchase and Sale, effective as
of December 28, 2007 (“Purchase Agreement”), has requested that BlackRock
Granite Property Fund, L.P. (“Granite”), in its capacity as the investor member
of Harvest-Granite San Xxxxx LLC (“Owner”), the current owner of the property,
acknowledge that it is aware that Harvest Development Partners, LLC (“Harvest”),
an affiliate of Harvest Properties, Inc., which is a member of Owner, and Buyer
intend to enter into a development agreement pursuant to which Harvest will be
retained by Buyer as its exclusive developer in connection with the
redevelopment of a new office campus for Buyer on the Property and on a
neighboring site located at 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx. Granite further acknowledges that Granite has been
informed that: (i) prior to the date hereof, Harvest has been working with Buyer
on the entitlement process for the potential development of the Property, and
that, after the closing under the Purchase Agreement, Harvest will continue to
work with Buyer to develop the Property, and (ii) Buyer contemplates developing
the Property with a one and one-half to two million square foot campus over the
next five to six years, subject to the terms of the development agreement with
Harvest (the past, present, and contemplated future relationship between Buyer
and Harvest being referred to herein as the “Relationship”).
Granite
is executing this letter with the understanding that Buyer understands and has
acknowledged that none of Granite, BlackRock Realty Advisors, Inc., their
respective direct or indirect owners, or any of each of their respective
members, managers, officers, directors, partners, owners, employees, or legal
advisors (collectively, the “Granite Parties”) have any knowledge whatsoever
relating to any representations or warranties that have been made or may have
been made to Buyer by Harvest or any of Harvest’s affiliates or any of their
respective representatives pursuant to the Relationship or otherwise in
connection with the entitlement or contemplated redevelopment of the Property by
Buyer or any other party, and further, except for the express representations
and warranties of Seller set forth in the Purchase Agreement (subject to the
terms and limitations set forth therein), that Buyer has waived and released the
Granite Parties from any liability whatsoever with respect to the Relationship,
any matters relating to the entitlement of the Property, and any contemplated
redevelopment of the Property by Buyer or any other party.
N-1
Please
confirm that you are aware of the above by signing below.
|
Thanks,
By: /s/ Xxxx
Xxxxxxx
Name
: Xxxx Xxxxxxx,
President,
Harvest Properties, Inc.
|
[Acknowledgement
on Next Page]
N-2
Acknowledged and confirmed as of
January 31, 2008:
HARVEST-GRANITE
SAN XXXXX LLC, a Delaware limited liability company
By:BlackRock
Granite Property Fund, L.P.,
a
Delaware limited partnership, its managing member
By:
BlackRock Granite Property Fund, LLC,
a
Delaware limited liability company, its general partner
By:
BlackRock Granite Property Fund, Inc.
a
Maryland corporation, its sole member
By: BlackRock
Realty Advisors, Inc.,
a
Delaware corporation, its investment manager
By: /s/ Xxxxx Xxxxx
Name
: Xxxxx Xxxxx
Its:
Vice President
N-3
