EXHIBIT 10.17
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this
"AGREEMENT") is made as of June 10, 2004 (the "EFFECTIVE DATE"), by and among
F&S HAYWARD, INC., a California corporation ("F&S, INC."), XXXXXX ENTERPRISES, a
California general partnership ("XXXXXX") and XXXX FAMILY PARTNERS L.P., a
California limited partnership ("XXXX") with a principal executive office at
000X Xxxx Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000,
(collectively/"SELLER"), and XXXXXXXX PROPERTY ADVISORS, INC, a California
corporation, with a principal executive office at 00000 Xxxxxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 ("PURCHASER"), bears the following
recitals:
A. Simultaneously herewith F&S Hayward, LLC, a Delaware limited
liability company and Purchaser have entered into a Purchase and Sale Agreement
with Escrow Instructions (the "F&S AGREEMENT") covering certain real property
commonly known as 00000 Xxxxxxxx Xxxx and 00000 Xxxxxxxxxx Xxxx in Hayward,
California (the "F&S PROPERTY").
B. Seller may exercise its right to extend the closing hereunder as
provided in Section 4.1(b) below. In such event the closing under the F&S
Agreement will not occur simultaneously with the closing hereunder. However, it
is the intent of both parties that if there is a closing under the F&S Agreement
the closing under this Agreement will also occur, failing which Seller shall
suffer substantial damages.
WITNESSETH:
ARTICLE I
PURCHASE AND SALE
SECTION 1.1 AGREEMENT OF PURCHASE AND SALE. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey to Purchaser,
and Purchaser agrees to purchase from Seller, all of Seller's right, title and
interest in and to the following:
(a) That certain tract or parcel of land commonly known as 00000
Xxxxxxxx Xxxx located in the City of Hayward, County of Alameda, California, and
more particularly described in Exhibit A attached hereto and made a part hereof,
together with all rights appurtenances pertaining to such property, including
any right, title and interest of Seller in and to relating to such property,
easements, covenants, adjacent streets, alleys or rights-of-way relating to such
I-1
property (the property described in clause (a) of this Section 1.1 being herein
referred to collectively as the "LAND");
(b) the buildings, structures, fixtures and other improvements
affixed to or located on the Land other than those listed in Exhibit I attached
hereto (collectively, the "IMPROVEMENTS");
(c) any and all of Seller's right, title and interest in and to:
(i) all assignable contracts and agreements (collectively, the "OPERATING
AGREEMENTS") listed and described on Exhibit B attached hereto and made a part
hereof, relating to the upkeep, repair, maintenance or operation of the Land,
Improvements or Personal Property; (ii) all assignable existing warranties and
guaranties (express or implied) issued to Seller by any contractor or
manufacturer in connection with the Improvements or the Personal Property; (iii)
all assignable existing permits, licenses, approvals and authorizations issued
by any governmental authority in connection with the Property; and (iv) to the
extent assignable, all trade names and general intangibles relating to the Land
or Improvements listed and described on Exhibit C attached hereto (the property
described in clause (c) of this Section 1.1 being sometimes herein referred to
collectively as the "INTANGIBLES").
SECTION 1.2 Property and Existing Loan Defined. The Land and the
Improvements are hereinafter sometimes referred to collectively as the "REAL
PROPERTY". The Land, the Improvements, and the Intangibles are hereinafter
sometimes referred to collectively as the "PROPERTY."
SECTION 1.3 PURCHASE PRICE. Seller agrees to sell and Purchaser agrees to
purchase the Property for the amount of Sixteen Million One Hundred Thousand
Dollars ($16,100,000.00) ("PURCHASE PRICE").
SECTION 1.4 DEPOSIT. On or before three (3) business days after execution
of this Agreement and delivery of a fully executed copy of this Agreement to
Chicago Title Company (the "ESCROW AGENT"), having its office at 000 X Xxxxxx,
Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxxx, Purchaser shall deposit
with Escrow Agent, the Sum of One Hundred Thousand Dollars ($100,000.00) in good
funds, either by certified bank or cashier's check or by federal wire transfer.
The Escrow Agent shall hold all cash deposits in an interest-bearing account
-2-
reasonably acceptable to Seller and Purchaser, in accordance with the terms and
conditions of this Agreement. All interest on the funds deposited in said
account shall be deemed income of Purchaser, and Purchaser shall bear all costs
and fees imposed on the deposit account. The deposits, including the additional
deposit described in Section 1.5 (i) below, and all accrued interest
(collectively, the "DEPOSIT") shall be distributed in accordance with the terms
of this Agreement. If not previously drawn upon, the Letter of Credit (hereafter
defined in Section 1.5) shall be returned to Purchaser upon the Closing.
SECTION 1.5 ADDITIONAL DEPOSIT. If this Agreement does not terminate
pursuant to the provisions of Section 3.3, then simultaneously with the close of
escrow under the F&S Agreement Purchaser shall deposit with Seller, an
irrevocable standby letter of credit ("LETTER OF CREDIT") in the amount of Six
Million Dollars ($6,000,000.00) issued by a bank and in the form attached hereto
and marked Exhibit C-1.
SECTION 1.6 PAYMENT OF PURCHASE PRICE.
(1) On the Scheduled Closing Date (as defined in Section 4.1
below), Purchaser shall pay the Purchase Price for the Property in cash upon the
close of escrow.
SECTION 1.7 DEPOSIT AS LIQUIDATED DAMAGES. FROM AND AFTER THE EXPIRATION
OF THE INSPECTION PERIOD AND THE TITLE INSPECTION PERIOD, AS SUCH TERMS ARE
DEFINED HEREINBELOW (THE "APPROVAL DATE"), IN THE EVENT THE SALE OF THE PROPERTY
AS CONTEMPLATED HEREUNDER IS NOT CONSUMMATED FOR ANY REASON OTHER THAN A DEFAULT
UNDER THIS AGREEMENT ON THE PART OF SELLER OR AS THE RESULT OF PURCHASER
EXERCISING ITS RIGHT TO TERMINATE UNDER SECTION 7.1 BELOW, AND SELLER IS READY,
WILLING AND ABLE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND ALL
CONDITIONS PRECEDENT TO CLOSING HAVE WAIVED OR SATISFIED, THEN SELLER SHALL BE
ENTITLED TO DRAW DOWN THE LETTER OF CREDIT AS LIQUIDATED DAMAGES, AND THE
DEPOSIT, AND EXTENSION DEPOSIT(S), IF ANY, SHALL BE REFUNDED TO PURCHASER. THE
PARTIES ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT THAT THE SALE IS
NOT CONSUMMATED WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE.
THEREFORE BY SEPARATELY INITIALLING
-3-
THIS SECTION 1.6 BELOW, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT AND EXTENSION
DEPOSIT(S), IF ANY, HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES'
REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS SELLER'S EXCLUSIVE REMEDY AGAINST
PURCHASER IN THE EVENT THE CLOSING DOES NOT OCCUR AND AS SELLER'S SOLE AND
EXCLUSIVE REMEDY AGAINST PURCHASER ARISING FROM SUCH FAILURE OF THE SALE TO
CLOSE. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THIS SECTION 1.6 LIMIT
THE DAMAGES RECOVERABLE BY EITHER PARTY AGAINST THE OTHER PARTY DUE TO (A) THE
OTHER PARTY'S OBLIGATION TO INDEMNIFY SUCH PARTY, IF ANY, IN ACCORDANCE WITH
THIS AGREEMENT, OR (B) THIRD PARTY CLAIMS. BY THEIR SEPARATELY INITIALING THIS
Section 1.7 BELOW, PURCHASER AND SELLER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTOOD THE ABOVE PROVISION COVERING LIQUIDATED DAMAGES, AND THAT EACH PARTY
WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED
DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS EXECUTED.
Purchaser's Initials /s/ G Seller's Initials /s/ ILLEGIBLE
-------------- ------------------
SECTION 1.8 ESCROW AGENT. Escrow Agent shall hold and disburse the Deposit
and Extension Deposit(s), if any, in accordance with the terms of this
Agreement. Seller and Purchaser agree that the duties of the Escrow Agent
hereunder are purely ministerial in nature and shall be expressly limited to the
safekeeping and disposition of the Deposit and Extension Deposit(s), if any, in
accordance with this Agreement. Escrow Agent shall incur no liability in
connection with the safekeeping or disposition of the Deposit and Extension
Deposit(s), if any, for any reason other than Escrow Agent's misconduct or
negligence. In the event that Escrow Agent shall be in doubt as to its duties or
obligations with regard to the Deposit and Extension Deposit(s), if any, or in
the event that Escrow Agent receives conflicting instructions from Purchaser and
seller with respect to the Deposit or Extension Deposit(s), if any, Escrow Agent
shall not be required to disburse the Deposit and Extension Deposit(s), if any
and may, at its option, continue to hold the Deposit and Extension Deposit(s),
if any, until both Purchaser and Seller agree as to its disposition, or until a
final judgment is entered by a court of competent
-4-
jurisdiction directing its disposition, or Escrow Agent may interplead the
Deposit and Extension Deposit(s), if any, in accordance with the laws of the
state in which the Property is located.
Escrow Agent shall not be responsible for any interest on the Deposit or
Extension Deposit(s), if any, except as is actually earned, or for the loss of
any interest resulting from the withdrawal of the Deposit prior to the date
interest is posted thereon.
Escrow Agent shall execute this Agreement solely for the purpose of being
bound by the provisions of Section 1.4, Section 1.6, Section 1.7, Section 1.8
and Section 4.7 hereof.
The "CLOSING" OR "CLOSE OF ESCROW" shall mean the date that the Grant Deed
is recorded in the Official Records of Alameda County, California.
ARTICLE II
TITLE
SECTION 2.1 TITLE INSPECTION PERIOD. During the period beginning upon the
Effective Date and ending at 5:00 p.m. Pacific Time on the forty-fifth (45th)
day after the Effective Date ("APPROVAL DATE"), Purchaser shall have the right
to review: (a) a current preliminary title report on the Real Property (the
"PTR") issued by Chicago Title Company (the "TITLE COMPANY"), accompanied by
copies of all documents referred to in the report; (b) copies of the most recent
property tax bills for the Property; and (c) an ALTA survey of the Real Property
prepared by a licensed surveyor (the "SURVEY"). Item (a) shall be obtained by
Purchaser within five (5) days after the Effective Date. Item (c) shall be
obtained by Purchaser within Forty (40) days after the Effective Date. Item (b)
shall be delivered by Seller to Purchaser within five (5) days after the
Effective Date. On or prior to the Approval Date, Purchaser shall determine what
endorsements it may require and whether the Title Company is willing to issue
same.
SECTION 2.2 Title Examination. Purchaser shall notify Seller in writing
(the "TITLE NOTICE") within twenty (20) days after the Effective Date which
exceptions to title (excluding Survey matters), if any, will not be accepted by
purchaser. If Purchaser fails to notify Seller in writing of its disapproval of
any exceptions to title prior to 5:00 p.m. Pacific Time on the Approval Date,
Purchaser shall be deemed to have approved the condition of title to the Real
Property. If Purchaser notifies Seller in writing that Purchaser objects to any
exceptions to title, Seller shall have seven (7) business days after receipt of
the Title Notice to notify Purchaser of
-5-
either of the-following: (a) that Seller will remove such objectionable
exceptions from title on or before the Closing; or (b) that Seller elects not to
cause such exceptions to be removed. If Seller fails to notify Purchaser within
such seven (7) business-day period, then Seller shall be deemed to have made an
election under the foregoing clause (b). Notwithstanding the foregoing or any
other provision of this Agreement, all monetary obligations disclosed in the PTR
constituting a lien against the Real Property, other than the Loan, are to be
satisfied by Seller. The procurement by Seller of a commitment for the issuance
of the Title Policy (as defined in Section 2.5 hereof) or an endorsement
thereto insuring Purchaser against any title exception which was disapproved
pursuant to this Section 2.2 shall be deemed a cure by Seller of such
disapproval. If Seller gives Purchaser notice under clause (b) above, Purchaser
shall have three (3) business days after the date of such notice in which to
notify Seller that Purchaser will nevertheless proceed with the purchase in
accordance with the provisions of this Agreement and take title to the Property
subject to such exceptions, or that Purchaser will terminate this Agreement.
Purchaser's failure to respond within such three-business-day period shall be
deemed an election to terminate this Agreement. If, despite Seller's election to
eliminate any disapproved exception under clause (a) above, the exception has
not been eliminated on or before the Scheduled Closing Date, Purchaser, at its
option and sole discretion and as its sole right and remedy, may either: (a)
elect in writing to waive its prior disapproval; (b) if the exception represents
a monetary obligation, instruct Escrow Holder to deduct from Seller's proceeds
hereunder the amount necessary to satisfy the obligation and thereby eliminate
the exception; or (c) treat the failure to eliminate the exception as a failure
of a contingency under this Agreement, in which event, as Purchaser's sole right
and remedy, Purchaser may elect to cancel the Escrow and this Agreement shall be
terminated. If this Agreement is terminated pursuant to the foregoing provisions
of this Section, then neither party shall have any further rights or obligations
hereunder (except for any indemnity obligations of either party pursuant to the
other provisions of this Agreement), the Deposit shall be returned to Purchaser,
and each party shall bear its own costs incurred hereunder.
SECTION 2.3 PRE-CLOSING "GAP" TITLE DEFECTS. Purchaser may, at or prior to
the Scheduled Closing Date, notify Seller in writing (the "GAP NOTICE") of any
objections to title: (a) not caused by Purchaser and raised by the Title Company
between the Approval Date and the Closing Date; and (b) not disclosed by the
Title Company or otherwise known to Purchaser prior to the Approval Date;
provided that Purchaser must notify Seller of such objection to title within
-6-
two (2) business days of being made aware of the existence of such exception. If
Purchaser sends a Gap Notice to Seller, Purchaser and Seller shall have the same
rights and obligations with respect to such notice as apply to a Title Notice
under Section 2.2 hereof.
SECTION 2.4 PERMITTED EXCEPTIONS. The Real Property to be conveyed at the
Closing shall be conveyed subject to the following matters, which are
hereinafter referred to as the "PERMITTED EXCEPTIONS":
(a) those matters affecting such Real Property (including, without
limitation, the exceptions disclosed in the PTR) that either are not objected to
in writing within the time periods provided in Section 2.2 or Section 2.3
hereof, or if objected to in writing by Purchaser, are those which Seller has
elected not to remove or cure, or has been unable to remove or cure, and subject
to which Purchaser has elected or is deemed to have elected to accept the
conveyance of the Property;
(b)the lien of all ad valorem real estate taxes and assessments not
yet due and payable as of the date of Closing, subject to adjustment as herein
provided;
(c)local, state and federal laws, ordinances or governmental
regulations, including but not limited to, building and zoning laws, ordinances
and regulations, now or hereafter in effect relating to the Property;
(d)items shown on the Survey and not objected to by Purchaser or
waived or deemed waived by Purchaser in accordance with Section 2.2 or Section
2.3 hereof;
(e)rights of tenants under leases affecting the Property;
(f) any exception to title that results from the actions of
Purchaser or its employees, agents or contractors;
(g) the standard printed exceptions in the Title Policy.
SECTION 2.5 CONVEYANCE OF TITLE. At the Closing, Seller shall convey and
transfer to Purchaser fee simple title to that portion of the Real Property by
execution and delivery of the Grant Deed (as defined in Section 4.2(a)(i)
hereof) and Escrow Agent shall obtain the irrevocable commitment of the Title
Company to issue an ALTA Owners Policy of Title
-7-
Insurance (the "TITLE POLICY") covering the Real Property, in the full amount of
the Purchase Price, subject only to the Permitted Exceptions
ARTICLE III
REVIEW OF PROPERTY
SECTION 3.1 RIGHT OF PHYSICAL INSPECTION.
(a) On or before 5:00 p.m. Pacific Time on the Approval Date,
Purchaser, its agents, employees, and independent contractors, shall have the
right to make a physical inspection of the Real Property and perform an
environmental, soil, geological or other assessment on the Property pursuant to
the terms and conditions of this Agreement, provided there shall be no drilling
or other invasive testing on or in the Real Property without Seller's prior
written consent.
(b) Purchaser understands and agrees that any on-site inspections or
environmental assessments of the Property shall occur at reasonable times agreed
upon by Seller and Purchaser after reasonable prior written notice to Seller and
shall be conducted so as not to interfere unreasonably with the use of the
Property by Seller. Seller reserves the right to have a representative present
during any such inspections. Purchaser shall promptly restore the Real Property
to its prior condition following any such inspections or assessments, at
Purchaser's sole cost and expense. At Seller's option, Purchaser will furnish to
Seller copies of any reports received by Purchaser relating to any inspections
of the Property. Purchaser agrees to protect, indemnify, defend and hold Seller
harmless from and against any claim for liabilities, losses, costs, expenses
(including reasonable attorneys fees), damages or injuries arising out of or
resulting from the inspection of the Property by Purchaser or its agents or
consultants, and notwithstanding anything to the contrary in this Agreement,
such obligation to indemnify, defend and hold harmless shall survive Closing or
any termination of this Agreement, provided that the foregoing indemnity shall
not apply to Purchaser's discovery of pre-existing conditions on the Real
Property.
SECTION 3.2 DOCUMENT INSPECTION. Seller shall make available (and
Purchaser may copy same) all of the following to Purchaser within twenty (20)
days after the Effective Date to the extent such items are in the possession of
Seller or are reasonably obtainable by Seller:
-8-
(a) copies of any environmental, physical, condition, ADA, and other
reports relating to the Property in Seller's possession;
(b) a list and complete copies of all Operating Agreements,
including any amendments and other documents pertaining hereto;
(c) plans, permits, specifications and certificates of occupancy for
the Real Property;
(d) all other reports, surveys, or other information (including,
without limitation, any notices with respect to the Property received from any
governmental agency) in Seller's possession relating to the Property;
(e) the last 36 months utility bills and other operating expenses
for the Real Property;
(f) existing insurance policies for the Property;
(g) existing leases, rent rolls, licenses, permits and certificates
pertaining to the Property;
(h) Operating Statements and balance sheets, for the last three (3)
years for the Property
(i) and such other files, books, records, documentation, tax returns
and other materials relating to the Property and Sellers ownership and
management of the Property.
SECTION 3.3 RIGHT OF TERMINATION. On or before 5:00 p.m. Pacific Time on
the Approval Date, if for any reason Purchaser, in its sole discretion,
determines that the Property or any aspect thereof is unsuitable for Purchaser's
acquisition, either Purchaser or Seller shall have the right to terminate this
Agreement by giving written notice thereof to the other, and if such notice is
given, this Agreement shall terminate. If this Agreement is terminated pursuant
to the foregoing provisions of this paragraph, then neither party shall have any
further rights or obligations hereunder (except for any indemnify obligations of
either party pursuant to the other provisions of this Agreement), the Deposit
shall be immediately returned to Purchaser without any action being necessary,
and each party shall bear its own costs incurred hereunder. If
-9-
Purchaser fails to give Seller a notice of termination prior to 5:00 p.m.
Pacific Time on the Approval Date, Purchaser shall be deemed to have approved
all aspects of the Property (except title and Survey, which shall be governed by
Article II hereof) and to have elected to proceed with the purchase of the
Property pursuant to the terms hereof.
ARTICLE IV
CLOSING
SECTION 4.1 TIME AND PLACE.
(a) The consummation of the purchase of the Property contemplated
hereby ("CLOSING") shall be consummated within five (5) business days of the
date Purchaser completes its initial public offering, but not later than July
30, 2004 (the "SCHEDULED CLOSING DATE"), through an escrow closing administered
by Escrow Agent pursuant to joint instructions from Seller and Purchaser. At the
Closing, Seller and Purchaser shall perform the obligations set forth in,
respectively, Section 4.2 and Section 4.3 hereof, the performance of which
obligations shall be concurrent conditions. The Closing shall be held at the
offices of Escrow Agent set forth in Section 1.4. If the sale transaction fails
to close by the Scheduled Closing Date due to the extension of Purchaser's
public offering date, Purchaser shall have the option to extend the Scheduled
Closing Date for up to two (2) consecutive forty-five (45) day periods (each of
which is an "EXTENSION PERIOD") by making a deposit with Escrow Agent of
($100,000) (each an "EXTENSION DEPOSIT") for each Extension Period. Purchaser
shall provide Seller twenty (20) days prior written notice of the exercise of
each such option. If Purchaser is unable to complete its initial public offering
by the end of the last Extension Period exercised by Purchaser, Purchaser shall
have the right to terminate this Agreement without incurring any liability to
Seller, and Purchaser's Deposit and Extension Deposit(s) and all accrued
interest thereon will be delivered to Purchaser provided that said right to
terminate shall automatically terminate upon the close of escrow under the F&S
Agreement. On the Closing, the Deposit, the Extension Deposit(s), if any, shall
be credited against the Purchase Price, and the balance of the Purchase Price
shall be paid by Purchaser to Seller through Escrow Agent. If Purchaser fails to
exercise and Extension Option within the time periods stated in this Section
4.1, then such extension option shall terminate.
-10-
(b) Notwithstanding the foregoing, Seller shall have the right, for
purposes of completing one or more 1031 tax deferral exchanges, to extend the
Closing for up to nine (9) months beyond the Scheduled Closing Date as it may
previously have been extended pursuant to Section 4.1 (a) (the "EXTENDED CLOSING
DATE") by giving written notice to Purchaser not later than June 30, 2004. In
the event Seller exercises said right to extend the Closing prior to Purchaser
exercising its right to extend under Section 4,1(a) above, Purchaser's right to
extend shall automatically terminate. Seller may accelerate the Extended Closing
Date by providing Purchaser twenty (20) days prior written notice thereof, which
accelerated date shall not be earlier than the close of escrow under the F&S
Agreement, and such accelerated date shall thereafter be deemed the Extended
Closing Date. In the event such notice is given by Seller, any Extension
Deposit(s) paid by Purchaser shall be refunded to Purchaser.
SECTION 4.2 SELLER'S OBLIGATIONS AT CLOSINGS.
(a) On or before two (2) days before the Scheduled Closing Date,
Seller shall:
(i) deliver to Escrow Agent a duly executed grant deed
in the form attached hereto as Exhibit D, conveying the Property (the "GRANT
DEED");
(ii) deliver to Escrow Agent a duly executed Assignment
and Assumption of Leases ("ASSIGNMENT OF LEASES") in the form attached hereto as
Exhibit E transferring Seller's interest in the Leases;
(iii) deliver to Escrow Agent a duly executed assignment
and assumption agreement (the "ASSIGNMENT OF CONTRACTS") in the form attached
hereto as Exhibit F transferring Seller's interest in the Intangibles to the
extent assignable;
(iv) deliver such evidence as the Title Company may
reasonably require as to the authority of the person or persons executing
documents on behalf of Seller;
(v) deliver to Purchaser a certificate in the form
attached hereto as Exhibit G duly executed by Seller stating that Seller is not
a "foreign person" as defined in the Federal Foreign Investment in Real Property
Tax Act of 1980;
(vi) deliver to Purchaser the Operating Agreements as
they relate to the First Closing Real Property;
-11-
(vii) deliver such affidavits as may be customarily and
reasonably required by the Title Company, in a form reasonably acceptable to
Seller;
(viii) deliver to Purchaser possession of the Property,
subject to the Permitted Exceptions and any leases;
(ix) execute a closing statement reasonably acceptable
to Seller; and
(x) deliver such additional documents as shall be
reasonably required to consummate the Closing.
SECTION 4.3 PURCHASER'S OBLIGATIONS AT CLOSING. On or before two (2) days
before the Scheduled Closing Date, Purchaser shall:
(a) deposit into escrow the cash portion of the Purchase Price, less
the cash Deposit and any Extension Deposit(s) and less the amount, if any, that
has been drawn on the Letter of Credit;
(b) deliver to Seller a duly executed Assignment of Lease;
(c) deliver to Seller a duly executed Assignment of Contracts;
(d) deliver such evidence as the Title Company may reasonably
require as to the authority of the person or persons executing documents on
behalf of Purchaser;
(e) deliver such affidavits as may be customarily and reasonably
required by the Title Company, in a form reasonably acceptable to Purchaser;
(f) execute a closing statement reasonably acceptable to Purchaser;
and
(g) deliver such additional documents as shall be reasonably
required to consummate the Closing.
SECTION 4.4 CLOSING COSTS AND PRORATIONS.
(a) Seller and Purchaser shall execute such returns, questionnaires
and other documents as shall be required with regard to all applicable real
property transaction taxes imposed by applicable federal, state or local law
or ordinance.
-12-
(b)Seller shall pay the fees of any counsel representing Seller in
connection with this transaction. Seller shall also pay any County imposed
transfer tax, documentary stamp tax or similar tax which becomes payable by
reason of the Property being transferred;
(c)Purchaser shall pay the fees of any counsel representing
Purchaser in connection with this transaction. Purchaser shall also pay the
following costs and expenses:
(i) the escrow fee, if any, which may be charged by the
Escrow Agent or Title Company;
(ii) the cost of the Survey and
(iii) the title insurance premium for an ALTA standard
form of owner's title policy; and
(iv) any City of Hayward imposed transfer tax,
documentary stamp tax or similar tax which becomes payable by reason of the Real
Property being transferred.
(d) All costs and expenses incident to this transaction and the
closing thereof, and not specifically described above, shall be paid by the
party incurring same.
(e) Real property taxes and assessments and rents shall be prorated
as of the Closing and through escrow based upon the latest available tax and
assessment information.
(f) The provisions of this Section 4.4 shall survive the Closing.
SECTION 4.5 CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASER. The
obligation of Purchaser to consummate the purchase of the Property shall be
subject, respectively, to the fulfillment on or before the Scheduled Closing
Date of all of the following conditions, any or all of which may be waived by
Purchaser in its sole discretion:
(a) Seller shall have delivered all of the items required to be
delivered pursuant to the terms of this Agreement, including but not limited to,
those provided for in Section 4.2 hereof, as they relate to the Property and the
letter described in Section 11.16;
(b) all of the representations and warranties of Seller contained in
this Agreement shall be true correct in all material respects as of the date of
the Closing;
-13-
(c) Seller shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Seller as of the date of Closing as they relate to the Property;
(d) the Title Company shall be prepared and irrevocably committed to
issue to Purchaser the Title Policy in an amount equal to the Purchase Price;
and
(e) no proceeding shall have been commenced against Seller under the
federal Bankruptcy Code or any state law for relief of debtors.
SECTION 4.6 CONDITIONS PRECEDENT TO OBLIGATION OF SELLER. The obligation
of Seller to consummate the purchase of the Property hereunder shall be subject
to the fulfillment on or before the Scheduled Closing Date of the following
conditions, any or all of which may be waived by Seller in its sole discretion:
(a) Purchaser shall have delivered all of the items required to be
delivered pursuant to the terms of this Agreement, including but not limited to,
those provided for in Section 4.3 hereof.
(b) All of the representations and warranties of Purchaser contained
in this Agreement shall be true and correct in all material respects as of the
date of Closing; provided for purposes of this Section 4.6(b):
(1) Seller shall not be in violation of warranty 5.1(c)
notwithstanding the existence of any new Operating Agreements provided that each
such new Operating Agreement can be terminated in thirty (30) days written
notice;
(2) Notwithstanding any uncured violations described in
warranty 5.1(d), Seller shall not be in violation of said warranty provided
Purchaser is given a credit against the purchase price equal to the cost of
curing such violation;
(3) Notwithstanding any violation described in warranty
5.1(f), Seller shall not be in violation of said warranty provided Purchaser is
given a credit against the purchase price equal to the cost of curing such
violation;
(4) Notwithstanding the existence of any lien or
encumbrance described in warranty 5.1(g), Seller shall not be deemed in
violation of said warranty provided Purchaser is given a credit against the
purchase price equal to the cost of removing any such lien or encumbrance;
-14-
(5) Notwithstanding the existence of any agreement
described in warranty 5.1(h), Seller shall not be deemed in violation of said
warranty provided Purchaser is given a credit against the purchase price equal
to the penalty or premium which must be paid to terminate the agreement;
(6) Notwithstanding the existence of any taxes,
assessments (special, general or otherwise) or bonds described in warranty
5.1(i), Seller shall not be deemed in violation of said warranty provided taxes
are prorated as provided in Section 4.4(e) and Purchaser is given a credit
against the purchase price equal to any such bonds or assessments.
(c) Purchaser shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Purchaser as of the date of Closing.
SECTION 4.7 CLOSE OF ESCROW. Provided that Escrow Agent has received the
documents, instruments and funds described herein, provided that Escrow Agent
has not received written notice from either Purchaser or Seller that this
Agreement has been terminated or that any of the conditions to Closing set forth
herein have not been satisfied or waived and provided further that the Title
Company is able to deliver to Purchaser a commitment to issue the Title Policy,
then Escrow Agent is authorized and instructed to:
(a) Record the Grant Deed to the Real Property covered by the
Closing with the County Recorder; and
(b) Deliver to Seller the Purchase Price for the Property, as
increased or decreased by prorations and adjustments as provided herein and less
Seller's share of closing costs. To the extent Purchaser receives the benefit of
any loan related impound (such as tax, insurance, tenant improvement or leasing
commission) or other loan escrowed funds pertaining to the Property, Seller
shall be credited in escrow for said funds.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby makes
the following representations warranties to Purchaser as of the Effective Date:
-15-
(a) Organization and Authority. Seller has been duly organized and
is validly existing under the laws of the State of Delaware. Seller has the full
right and authority to enter into this Agreement and to transfer all of the
Property and to consummate or cause to be consummated the transaction
contemplated by this Agreement. The execution, delivery and performance of this
Agreement have been duly authorized by all necessary action on Seller's part.
The person(s) signing this Agreement on behalf of Seller is (are) authorized to
do so;
(b) Pending Actions. To Seller's actual knowledge, there are no
actions, suits, arbitrations, unsatisfied orders or judgments, government
investigations or proceedings pending against Seller or the Property which, if
adversely determined, could individually or in the aggregate affect the Property
or use thereof, or Seller's ability to perform hereunder;
(c) Operating Agreements. To Seller's actual knowledge, there are no
Operating Agreements other than those listed on Exhibit B hereto;
(d) Violations. To Seller's actual knowledge, there are no uncured
violations of any federal, state or local law relating to the use or operation
of the Property which would adversely affect the Property or use thereof,
provided Seller makes no representation or warranty with respect to ADA
compliance;
(e) Leases. There are no leases affecting the Property other than
the lease described on Exhibit H attached hereto and those consented to by
Purchaser pursuant to Section 5.4(c);
(f) Environmental. To Seller's actual knowledge there has not been
any release of hazardous substances on or beneath the Real Property in violation
of any federal, state or local law, and Seller has received no written notice of
any violation or claimed violation of any law, rule, or regulation relating to
hazardous substances (as used in this clause (g), "hazardous substances" shall
have the meaning set forth in Section 25359.7 of the California Health and
Safety Code);
(g) Lien or Encumbrances. To Seller's actual knowledge, fee title to
the Property is not subject to any liens or encumbrances (including mechanics'
liens) including, without limitation, liens or claims for delinquent taxes, and
security agreements and pledges, except for those exceptions to title shown in
the PTR or the other Permitted Exceptions;
-16-
(h) No Agreements. Except for agreements terminable on thirty (30)
days written notice without penalty or premium or as specified in this Agreement
(including, without limitation, the Permitted Exceptions), Seller has not
entered into any agreements other than leases by which Purchaser would be bound
following the Closing;
(i) Taxes. To Seller's actual knowledge, there are no taxes,
assessments (special, general or otherwise) or bonds of any nature assessed
against the Property, or any portion thereof, except as disclosed in the PTR and
described in Section 2.4(b);
(j) Utilities. To Seller's actual knowledge, all utilities for
servicing the Property are being provided by third parties, and those utilities
billed to Seller have been paid current.
SECTION 5.2 KNOWLEDGE DEFINED. References to the "knowledge or awareness"
of Seller shall be deemed to include the present and actual knowledge of all
officers or members of Seller (after due internal inquiry of Seller by said
officers or members) whose primary work involves or is associated with
ownership, operation or maintenance of the Property, and Seller's "written
notice" shall be deemed to include notices sent to the attention of one or more
of said persons.
SECTION 5.3 SURVIVAL OF SELLER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller set forth in Section 5.1 hereof as
updated as of the Closing in accordance with the terms of this Agreement, and
shall survive Closing until 12 midnight on the day immediately preceding the
first anniversary of the Closing ("BAR DATE"). In order for Purchaser to perfect
any claim of breach of representation or warranty, on or before the Bar Date,
Purchaser shall have delivered to Seller, and Seller shall have received,
Seller's written claim specifying with particularity the nature and extent of
the claimed breach, and if no such written claim is received by Seller, such
claims shall be forever barred.
SECTION 5.4 COVENANTS OF SELLER.
(a) Maintenance of Property. Seller hereby covenants with Purchaser
that from the Effective Date hereof until the Closing or earlier termination of
this Agreement, Seller shall maintain the Property in a manner generally
consistent with the manner in which Seller has maintained the Property prior
to the date hereof;
-17-
(b) Notification of Subsequent Events. If, prior to Closing, the
Seller becomes aware of any event which Seller believes would have a material
adverse effect on the condition or operation of the Property as a whole, the
Seller will immediately notify in writing the Purchaser of such event.
(c) Termination of Leases. From and after the Approval Date so long
as this Agreement is in effect Seller shall not terminate or amend any existing
leases or enter into any new lease without Purchaser's prior written consent,
which shall not be unreasonably withheld. Purchaser shall be responsible for
leasing commissions and/or tenant improvement costs with respect to any new
leases approved by Purchaser.
SECTION 5.5 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
makes the following representations and warranties to Seller as of the Effective
Date.
(a) Organization and Authority. Purchaser has been duly organized
and is validly existing under the laws of the State of California. Purchaser has
the full right and authority to enter into this Agreement and to consummate or
cause to be consummated the transaction contemplated by this Agreement. The
execution, delivery, and performance of this Agreement have been duly authorized
by all necessary action on Purchaser's part. The person(s) signing this
Agreement on behalf of Purchaser is (are) authorized to do so; and
(b) Pending Actions. To Purchaser's knowledge, there is no action,
suit, arbitration, unsatisfied order or judgment, government investigation or
proceeding pending against Purchaser which, if adversely determined, could
individually or in the aggregate materially interfere with the consummation of
the transaction contemplated by this Agreement.
SECTION 5.6 COVENANTS OF PURCHASER. Purchaser covenants that:
(a) Purchaser shall not take any action with respect to the
Property, which would result in the creation of any lien or encumbrance against
the Property.
(b) Purchaser shall not request any permit affecting the Property or
any change in the zoning or general plan designation of the Property, including,
without limitation, any variance of special or conditional use permit.
-18-
ARTICLE VI
DEFAULT
SECTION 6.1 DEFAULT BY PURCHASER. In the event the sale of the Property as
contemplated hereunder is not consummated solely due to Purchaser's default
hereunder, Seller, as its sole remedy, shall be entitled pursuant to Section 1.6
hereof to terminate this Agreement and receive the Deposit and Extension
Deposit(s), if any, as liquidated damages for the breach of this Agreement.
SECTION 6.2 DEFAULT BY SELLER. In the event the sale of the Property as
contemplated hereunder is not consummated due to Seller's default hereunder,
Purchaser shall be entitled, in addition to all other remedies available at law
or in equity, to: (a) receive the return of the Deposit and Extension
Deposit(s), if any, which return shall operate to terminate this Agreement; (b)
specific performance of Seller's obligation to convey the Property to Purchaser
in accordance with the terms of this Agreement; or (c) collect damages in the
amount of all of Purchaser's costs incurred in connection with the proposed
transaction contemplated by this Agreement.
ARTICLE VII
RISK OF LOSS
SECTION 7.1 CASUALTY.
(a) Prior to the Closing, and notwithstanding the pendency of this
Agreement, 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 7.1. If, prior to said Closing, any part of the Real
Property is damaged or destroyed by earthquake, flood, landslide, fire or other
casualty, Seller shall immediately notify Purchaser of such fact. If such damage
or destruction is "material", Purchaser shall have the option to terminate this
Agreement upon notice to Seller given not later than ten (10) days after receipt
of Seller's notice. For purposes of this Section 7.1, damage or destruction is
"material" if it constitutes an Uninsured Loss (as defined in the Lease). If
Purchaser 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 to Purchaser, and Purchaser
shall be entitled to receive keep all insurance proceeds payable to it with
respect to such destruction (but not in excess of the Purchase Price) but
subject to any applicable terms of the Leases listed on Exhibit H, and the
-19-
parties shall proceed to the Closing pursuant to the terms hereof without
modification of the terms of this Agreement and without any reduction in the
Purchase Price; provided only that in connection with an Insured Loss, Purchaser
shall be entitled to a credit against the Purchase Price in an amount equal to
the applicable insurance deductible. If Purchaser does terminate this Agreement
pursuant to this Section 7.1, all rights and obligations hereunder of each party
shall be at an end (except those matters which are specifically stated in this
Agreement to survive the termination) and the Title Company is hereby instructed
to return the Deposit and any Extension Deposit to Purchaser.
SECTION 7.2 CONDEMNATION.
(a) In the event that all or any portion of the Real Property shall
be taken in condemnation or under the right of eminent domain after the
Effective Date and before the Closing, Purchaser shall proceed to close the
transaction contemplated herein pursuant to the terms hereof in which event
Seller shall assign and turn over to Purchaser, and Purchaser shall be entitled
to receive and keep all awards for the taking by eminent domain of Seller's
interest in the Property which accrue to Seller, and there shall be no reduction
in the Purchase Price of the Property.
ARTICLE VIII
COMMISSIONS
SECTION 8.1 BROKERAGE COMMISSIONS. Except for BT Commercial who represents
Purchaser exclusively, there are no brokers involved in this transaction.
Purchaser, at Closing, shall pay to BT Commercial a commission of one percent
(1%) of the Purchase Price in accordance with a separate agreement. Each party
hereto agrees that if any person or entity, makes a claim for brokerage
commissions or finder's fees related to the sale of the Property by Seller to
Purchaser, and such claim is made by, through or on account of any acts or
alleged acts of said party or its representatives, said party will protect,
indemnify, defend and hold the other party free and harmless from and against
any and all loss, liability, cost, damage and expense (including reasonable
attorneys' fees) in connection therewith. The provisions of this paragraph
survive Closing or any termination of this Agreement.
-20-
ARTICLE IX
INDEMNITY
SECTION 9.1 INDEMNIFICATION BY SELLER. From and after the Closing, Seller
shall indemnify and hold Purchaser, its affiliates, members and partners, and
the partners, shareholders, officers, directors, employees, representatives and
agents of each of the foregoing harmless from and against any and all liability,
costs, fees, expenses, damages, deficiencies, interest and penalties (including,
without limitation, reasonable attorneys' fees and disbursements) (collectively,
"LOSSES") arising out of, or in any way relating to (i) any breach of any
representation or warranty of Seller contained in this Agreement or in any
Schedule, certificate, instrument or other document delivered pursuant hereto,
provided the claim therefore is asserted in writing prior to the Bar Date; (ii)
any breach of any covenant of Seller contained in this Agreement, provided the
claim therefore is asserted in writing within the applicable statute of
limitations and (iii) any event, act, or omission on the part of Seller
relating to the Property and arising prior to the Closing. The obligations of
this Section 9.1 shall survive the Closing.
SECTION 9.2 INDEMNIFICATIONS BY PURCHASER. From and after the Closing,
Purchaser shall indemnify and hold Seller, its affiliates and shareholders, and
the partners, shareholders, officers, directors, employees, representatives and
agents of each of the foregoing harmless from and against any and all Losses
arising out of, or in any way relating to (i) any breach of any representation
or warranty of Purchaser contained in this Agreement or in any Schedule,
certificate, instrument or other document delivered pursuant hereto, (ii) any
breach of any covenant of Purchaser contained in this Agreement, provided the
claim therefore is asserted in writing within the applicable statute of
limitations and (iii) any event, act, or omission on the part of Purchaser
relating to the Property and arising after the Closing. The obligations of this
Section 9.2 shall survive the Closing.
ARTICLE X
PURCHASER'S ACKNOWLEDGEMENT AND RELEASE
SECTION 10.1 ACKNOWLEDGEMENT.
(a) Purchaser acknowledges that, prior to the Closing(s) hereunder,
it or its or contractors shall have thoroughly inspected the Property and
observed the physical
-21-
characteristics and condition of the Property and otherwise investigated the
status of the Property, including without limitation, the matters referred to in
paragraph (b) below.
(b) Purchaser further acknowledges that, except as may be
specifically set forth in this Agreement, neither Seller nor any of Seller's
employees, agents, brokers or representatives have made any representations,
warranties or agreements by or on behalf of Seller as to any matters concerning
the Property, including, without limitation, (i) the habitability,
merchantability, or fitness, suitability, value or adequacy of the Property for
any particular use; (ii) the compliance of the Property or operations on the
Property with any applicable codes, laws, statutes ordinances, regulations
rules, covenants, conditions or restrictions of any governmental or
quasi-governmental entity or of any other person or entity; (iii) the
suitability of the topography; (iv) the availability of water rights or
utilities; (v) the present and future zoning, subdivision and any and all other
land use matters; (vi) the condition of the soil, subsoil, or groundwater
(including, without limitation, the presence or absence of toxic or hazardous
substances, materials or wastes therein, thereon or on adjacent or neighboring
properties); (vii) the purpose(s) to which the Property are suited; (viii)
drainage or flooding; (ix) access to public roads or proposed routes of roads or
extensions thereof; (x) the quality, nature, adequacy and physical condition of
the Property and any improvements located thereon, including, without
limitation, the structural elements, foundation, roof, appurtenances,
electrical, mechanical, plumbing, sewage and utility systems, facilities and
appliances; (xi) the condition of title to the Property; (xii) the leases,
service contracts, and other agreements affecting the Property.
(c) The term "hazardous substance" as used in this Agreement shall
mean any product, substance, chemical, material or waste whose presence, nature
quantity and/or intensity of existence, use, manufacture, disposal,
transportation, spill, release or effect, either by itself or in combination
with other materials on the Real Property, is either (i) potentially injurious
to the public health, safety or welfare, the environment or the Real Property,
(ii) regulated or monitored by any governmental authority, or (iii) a basis for
liability of Seller to any governmental agency or third party under any
applicable statute or common law theory. Hazardous substance shall include,
without limitation, hydrocarbons, petroleum, gasoline, crude oil or any
products, by products or fractions thereof.
SECTION 10.2 RELEASE.
-22-
(a) Purchaser acknowledges and agrees that except for the warranties
and representations set forth in Section 5.1, the Property is to be purchased,
conveyed and accepted by Purchaser in its present condition, "AS-IS, WHERE-IS,
WITH ALL FAULTS" and that no patent or latent defect in the condition of the
Property, whether or not known or discovered, shall give rise to any claim or
cause of action by Purchaser against Seller. Any documents furnished to
Purchaser by Seller relating to the Property prepared by third parties,
including, without limitation, maps, surveys, studies, pro formas, reports and
other information shall be deemed furnished to Purchaser but without warranty
from Seller except as may be specifically set forth in this Agreement. Purchaser
acknowledges that the full extent of any damages hereunder may be uncertain. In
making this covenant, Purchaser understands and agrees that it relies wholly
upon its judgment, belief and knowledge of the nature, extent, effect and
duration of damages and Seller's liability and has not relied upon any statement
of Seller, except as set forth in this Agreement. Purchaser has read and fully
understands the following language of California Civil Code section 1542 and
waives any rights it may have under section 1542:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Purchaser further represents that no promise, inducement or
agreement not described in this agreement has been made to it and that this
release contains the entire agreement between the parties. This covenant shall
survive the Close of Escrow.
(b) All work done in connection with preparing the Property for the
uses intended by Purchaser, including any and all fees, studies, reports,
approvals, plans, surveys, permits, and any expenses whatsoever necessary or
desirable in connection with Purchaser's acquiring, developing, using and/or
operating the Property shall be obtained and paid for by, shall be the sole
responsibility of, Purchaser.
(c) Purchaser has investigated and has knowledge of operative or
proposed governmental laws and regulations including land use laws and
regulations to which the may be subject and shall acquire the Property upon the
basis of its review and determination of the applicability and effect of such
laws and regulations. Purchaser has neither received nor
-23-
relied upon any representations concerning such laws and regulations from
Seller, Seller's employees, agents or any other person acting on or in behalf of
Seller.
(d) Except as expressly stated herein, Seller makes no
representation or warranty as to the truth, accuracy or completeness of any
materials, data or information delivered by Seller or its agents to Purchaser in
connection with the transaction contemplated hereby, except that Seller will
provide accurate copies of documents in its possession. Purchaser acknowledges
and agrees that all materials, data and information prepared by third parties
and delivered by Seller to Purchaser in connection with the transaction
contemplated hereby are provided to Purchaser as a convenience only and that any
reliance on or use of such materials, data or information by Purchaser shall be
at the sole risk of Purchaser, however Seller, to its actual knowledge without
duty of inquiry, has no reason to believe such materials, data and information
delivered by Seller are inaccurate.
SECTION 10.3 SURVIVAL. The provisions of this Article X shall survive the
termination of this Agreement and shall not be merged into the Grant Deed or any
other document of conveyance executed or delivered at Close of Escrow.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 CONFIDENTIALITY. Except when required to disclose by
applicable law, including public company reporting requirements (Purchaser or
its successor is filing a registration statement in connection with the public
offering of its stock and may need to disclose the transaction contemplated
hereby upon the execution of this Agreement) each party and its representatives
shall hold in strictest confidence all data and information obtained with
respect to the Property or the transaction contemplated hereunder, whether
obtained before or after the execution and delivery of this Agreement and
whether or not marked "confidential," and shall not disclose the same to others;
provided, however, that it is understood and agreed that the parties may
disclose such data and information to their employees, lenders, consultants,
accountants, underwriters, investors and attorneys provided that such persons
agree to treat such data and information confidentially. In the event this
Agreement is terminated or Purchaser fails to perform hereunder, Purchaser shall
promptly return to Seller any statements, documents, schedules, exhibits or
other written information obtained from Seller in connection with this
-24-
Agreement or the transaction contemplated herein. The provisions of this Section
11.1 shall survive the Closing or any termination of this Agreement.
SECTION 11.2 PUBLIC DISCLOSURE. Except when required to disclose by
applicable law, including public company reporting requirements (it being
understood by the parties that Purchaser or its successor is filing a
registration statement in connection with the public offering of its stock and,
as a public company, may need to disclose the transaction contemplated hereby
upon the execution of this Agreement), prior to the Closing, any release to the
public of information with respect to the sale contemplated herein or any
matters set forth in this Agreement will be made only in the form reasonably
approved in writing by Purchaser and Seller. The provisions of this Section 11.2
shall survive the Closing or any termination of this Agreement.
SECTION 11.3 ASSIGNMENT. Subject to the provisions of this Section 11.3,
the terms and provisions of this Agreement are to apply to and bind the
permitted successors and assigns of the parties hereto. Purchaser shall have the
right to assign this agreement to any affiliate of Purchaser without Seller's
consent. Purchaser shall have the right to assign this agreement to any entity
which is not an affiliate, whether voluntary or involuntary, with Seller's prior
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed. Purchaser and the proposed assignee shall execute an assignment and
assumption of this Agreement in form and substance reasonably satisfactory to
Seller. Seller hereby consents to the assignment of this Agreement to a
to-be-formed entity that shall succeed to the business of Purchaser in
connection with an initial public offering of its stock.
SECTION 11.4 NOTICES. Any notice pursuant to this Agreement shall be given
in writing by: (a) personal delivery; (b) reputable overnight delivery service
with proof of delivery; (c) United States Mail, postage prepaid, registered or
certified mail, return receipt requested; or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designated by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or, in the case of
facsimile transmission, as of the of the facsimile transmission provided that an
original of such facsimile is also sent to the intended addressee by means
described in clauses (a), (b) or (c) above. Unless changed in accordance
-25-
with the preceding sentence, the addresses for notices given pursuant to
this Agreement shall be as follows:
If to Seller. F&S Hayward
c/x Xxxxxx Enterprises
000X Xxxx Xxxxxxx
Xxxxxxx Xxxx, XX 00000-0000
with a copy to: Xxxxxx X. Book, Jr.
Carr, McClellan, Ingersoll, Xxxxxxxx & Xxxx
000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax:
If to Purchaser: XXXXXXXX PROPERTY ADVISORS
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Gold
Telephone:
Fax
with a copy to: XXXXXXXX PROPERTY ADVISORS
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telephone:
Fax:
SECTION 11.5 MODIFICATIONS. This Agreement cannot be changed orally, and
no executory agreement shall be effective to waive, change, modify or discharge
it in whole or in part unless such executory agreement is in writing and is
signed by the parties against whom enforcement of any waiver, change,
modification or discharge is sought.
SECTION 11.6 ENTIRE AGREEMENT. This Agreement, including the exhibits and
schedules hereto, contains the entire agreement between the parties hereto
pertaining to the subject matter hereof and fully supersedes all prior written
or oral agreements and understandings between the parties pertaining to such
subject matter.
11.7 FURTHER ASSURANCES. Each party agrees that it will execute and
deliver such other documents and take such other action, whether prior or
subsequent to Closing, as may
-26-
be reasonably requested by the other party to consummate the transaction
contemplated by this Agreement. The provisions of this Section 11.7 shall
survive Closing.
SECTION 11.8 COUNTERPARTS. This Agreement may be executed in counterparts,
all such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
SECTION 11.9 FACSIMILE SIGNATURES. In order to expedite the transaction
contemplated herein, telecopied signatures may be used in place of original
signatures on this Agreement. Seller and Purchaser intend to be bound by the
signatures on the telecopied document, are aware that the other party will rely
on the telecopied signatures, and hereby waive any defenses to the enforcement
of the terms of this Agreement based on the form of signature.
SECTION 11.10 SEVERABILITY. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement shall nonetheless remain in full force and
effect; provided that the invalidity or unenforceability of such provision does
not materially adversely affect the benefits accruing to any party hereunder.
SECTION 11.11 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
SECTION 11.12 NO THIRD-PARTY BENEFICIARY. The provisions of this Agreement
and of the documents to be executed and delivered at Closing are and will be for
the benefit of Seller and Purchaser only and are not for the benefit of any
third party, and accordingly, no third party shall have the right to enforce
the provisions of this Agreement or of the documents to be executed and
delivered at Closing.
11.13 CAPTIONS. The section headings appearing in this Agreement are for
convenience of reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
SECTION 11.14 CONSTRUCTION. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or any exhibits or amendments hereto.
-27-
SECTION 11.15 ATTORNEYS' FEES. In the event of any dispute, arbitration,
action, or other proceeding brought by either party against the other under this
Agreement, the prevailing party shall be entitled to recover all costs and
expenses incurred in connection with such dispute, arbitration, action, or other
proceeding, including, without limitation, the fees and costs of its attorneys,
whether or not such dispute, arbitration, action, or other proceeding proceeds
to formal resolution or judgment.
SECTION 11.16 AUDIT. At no cost to Seller, Seller shall provide
Purchaser's independent auditors access to Seller's files, documentation,
leases, books and records relating to the Property so as to allow Purchaser's
auditors to prepare audited financial statements of the Property as required by
the Securities and Exchange Commission. Seller shall provide such auditors with
an Audit Representation Letter in the form attached hereto as Exhibit J.
SECTION 11.17 1031 EXCHANGE. In connection with the transactions
contemplated by this Agreement, Seller may wish to engage in a tax deferred
exchange pursuant to Section 1031 of the Internal Revenue Code of 1986, as
amended. Purchaser agrees to cooperate with Seller in connection with such
exchange(s), provided, however, that notwithstanding any other provision of this
Agreement to the contrary, Purchaser will not be required to take title to any
other real property or become a party to any purchase agreement; Purchaser shall
not incur any additional liability by reason of such exchange, the exchange
shall not delay the Closing other than as provided in Section 4.1 (b), and
Seller will indemnify and hold Purchaser harmless for, from and against any
claim, demand, cause of action, liability or expense (including attorney's fees)
in connection therewith, including, without limitation, any increase in escrow
fees or charges resulting from any exchange.
SECTION 11.18 SCHEDULE OF EXHIBITS. The following exhibits are attached
hereto and incorporated herein by this reference:
Exhibit A Legal Description of the Real Property
Exhibit B List of Operating Agreements
Exhibit C List of Intangibles
Exhibit C-1 Letter of Credit
Exhibit D Grant Deed
Exhibit E Assignment of Leases
-28-
Exhibit F Assignment of Contracts
Exhibit G Non Foreign Status Certificate (FIRPTA)
Exhibit H List of Leases
Exhibit I Exclusions from Improvements
Exhibit J Audit Representation Letter
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the Effective Date.
SELLER: SELLER:
XXXXXX ENTERPRISES, a XXXX FAMILY PARTNERS, L.P. a
California general partnership California limited partnership
By: X.X. XXXXXX L.P. By: /s/ XXXX X. XXXX
a California limited partnership ---------------------------------
Its: General Partner Xxxx X. Xxxx, as Trustee of
The Xxxx Family Trust under
agreement dated November 23, 1998
By: /s/ XXXX X. XXXXXX Its: General Partner
------------------------------
Xxxx X. Xxxxxx, General Partner
F&S, INC.
By: X.X. XXXXXX L.P.
a California limited partnership F&S HAYWARD, INC., a. California
Its: General Partner corporation
By: /s/ XXXX X. XXXXXX By: /s/ XXXX X. XXXXXX
-------------------------------- ---------------------------------
Xxxx X. Xxxxxx, General Partner Xxxx X. Xxxxxx, President
By: /s/ XXXX X. XXXXXX
---------------------------------
Xxxx X. Xxxxxx, Secretary
PURCHASER:
XXXXXXXX PROPERTY ADVISORS, INC.,
a California corporation
By: /s/ XXXX X. GOLD
-------------------------------
Xxxx X. Gold, President
By: /s/ XXXX X. XXXXXXXX
---------------------------------
Its: Executive V.P.
--------------------------------
-29-
The undersigned acknowledges receipt of this Agreement and agrees to act as
Escrow Agent pursuant to the terms hereof.
ESCROW AGENT:
CHICAGO TITLE COMPANY
By: /s/ XXXXX XXXXXXXX
_______________________________
Name: Xxxxx Xxxxxxxx
_____________________________
Title: Escrow Officer
____________________________
-30-
