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EXHIBIT 10.43
AGREEMENT FOR CONTRIBUTION OF PARTNERSHIP INTERESTS
THIS AGREEMENT FOR CONTRIBUTION OF PARTNERSHIP INTERESTS
("Agreement") is dated as of __________________, 1996, by and between
GLENBOROUGH CORPORATION, a California corporation ("Glenborough"), GPA, LTD., a
California limited partnership ("GPA"; GPA and Glenborough are collectively
referred to as the "Transferors" and individually as each or any "Transferor"),
GLENBOROUGH PROPERTIES, L.P., a California limited partnership ("GPLP"), and GRT
Corp., a Georgia corporation ("GRT").
RECITALS
A. GPLP is a California limited partnership whose general partner is
GLENBOROUGH REALTY TRUST INCORPORATED, a Maryland corporation ("GRTI"), whose
stock is publicly traded on the New York Stock Exchange.
B. GPA owns a 99% limited partnership interest (the "LP Interest")
in GPA BOND, LP, a California limited partnership ("BOND"). Glenborough owns a
1% general partnership interest (the "GP Interest") in BOND. The GP Interest and
the LP Interest shall hereinafter be collectively referred to as the
"Partnership Interests".
C. Glenborough desires to transfer to GRT, and GRT desires to
acquire from Glenborough, the GP Interest, upon the terms and subject to the
conditions set forth in this Agreement. GPA desires to transfer to GPLP, and GPA
desires to acquire from GPA, the LP Interest, upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual
representations, warranties, covenants and agreements hereinafter contained, and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties hereto
hereby agree as follows:
1. Contribution of Partnership Interests . Subject to and upon the
terms and conditions hereinafter set forth and the representations and
warranties contained herein:
(a) Glenborough hereby agrees to contribute to GRT, without
consideration, the GP Interest, free and clear of any and all liens,
encumbrances, liabilities, claims, charges, and restrictions of any
kind or nature whatsoever; and
(b) GPA hereby agrees to transfer to GPLP the LP Interest, in
exchange for the Units, as hereinafter defined, free and clear of
any and all liens, encumbrances, liabilities, claims, charges, and
restrictions of any kind or nature whatsoever.
2. Issuance of Units. At the Closing (as defined in Paragraph 3
below), GPLP shall issue to GPA Twenty Nine Thousand Three Hundred Thirty Three
(29,333) Limited
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Partnership Units, as that term is defined in that certain First Amended and
Restated Agreement of Limited Partnership of GPLP, dated as of December 31,
1995, as amended by that Amendment to First Amended and Restated Partnership
Agreement of Glenborough Properties, L.P., dated as of July 12, 1996 ("GPLP's
Partnership Agreement"). The Units shall include a redemption option as set
forth in GPLP's Partnership Agreement. If the Units are redeemed for GRTI Stock,
the Holder shall have certain registration rights for a period of one year as
well as certain other rights, all as more particularly described in the
Registration Rights Agreement attached hereto as Exhibit A (the "Registration
Rights Agreement"). On the Closing Date, GPA shall execute and deliver, and GPLP
shall cause GRTI, so to execute and deliver, the Registration Rights Agreement.
3. Title to the Partnership Interests. At the closing of the
transfer contemplated hereafter (the "Closing"), GPA shall convey the LP
Interest to GPLP by a duly executed assignment of partnership interests in the
form attached hereto as Exhibit B, and Glenborough shall convey to GRT Corp. the
GP Interest by a duly executed assignment of partnership interests in the form
attached hereto as Exhibit C (collectively, the "Assignments").
4. Conditions to Closing. The following conditions are precedent to
GPLP's obligation to issue the Units (the "Conditions Precedent"):
(a) The representations and warranties of Transferors
contained herein shall be true and correct as of the Closing Date as though made
at and as of the Closing Date, and Transferors' covenants under this Agreement
shall be satisfied as of the Closing Date (to the extent such covenants are to
be satisfied as of the Closing Date), and GPLP shall have received at the
Closing a certificate dated as of the Closing Date and executed on behalf of
Transferors by executive officers of Transferors or of the respective general
partners of Transferors, as applicable, certifying as to the fulfillment of the
conditions set forth in this Subparagraph 4(a).
(b) At the Closing, Transferors shall transfer to GPLP the
Partnership Interests free and clear of any defects, liens, encumbrances or
claims of any kind.
(c) Security Union Title Insurance Company ("Title Company")
shall be committed to issue at Closing for the Real Property (as defined in
Subparagraph 6(h)(i) below) endorsements (i) dating down the Title Policy, as
hereinafter defined, to the Closing, (ii) permitting the continuance of the
policy coverage issued to the original partnership (a "Fairways Endorsement")
and (iii) such other endorsements reasonably requested by GPLP (the
"Endorsements") to BOND's extended coverage American Land Title Association
Policy of Owner's Title Insurance , attached hereto in the form of Exhibit D
(the "Title Policy"), showing title to the Real Property vested in BOND, subject
only to (i) the lien of a first mortgage to be given by BOND to Xxxxx Fargo Bank
contemporaneously with the Closing securing GPLP's obligations under certain
promissory notes (the "Xxxxx Fargo Loan"), and (ii) exception Nos. 9-13 and 16
("Permitted Exceptions") on the Title Policy.
(d) The physical condition of the Real Property and
Improvements (as such terms are defined in Subparagraph 6(h)(i) below) shall be
substantially the same on the
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day of Closing as on the Effective Date, reasonable wear and tear and loss by
casualty excepted (subject to the provisions of Paragraph 9 below).
The Conditions Precedent contained in Subparagraphs 4(a) through (e)
are intended solely for the benefit of GPLP. If any of the Conditions Precedent
is not satisfied, GPLP shall have the right in its sole discretion either to
waive in writing the Condition Precedent and proceed with the purchase or
terminate this Agreement.
5. Closing.
(a) The Closing hereunder shall be held and delivery of all
items to be made at the Closing shall be made at the offices of GPLP on or
before _________________, 1996 (the "Closing Date"). In the event the Closing
does not occur on or before the Closing Date, each party shall return to the
other party all items which were provided hereunder. Any such return shall not,
however, relieve either party of any liability it may have for its wrongful
failure to close.
(b) At or before the Closing, Transferors shall deliver to
GPLP the following:
(i) a duly executed Registration Rights Agreement;
(ii) the duly executed Assignments;
(iii) originals of the Leases (as defined in
Subparagraph 6(k)(i) below);
(iv) originals of the building permits and certificates
of occupancy for the Improvements and all tenant-occupied space included
within the Improvements not previously delivered to GPLP;
(v) an original, duly executed Assignment and Consent
Regarding Transfer of Partnership Interests in the form of Exhibit E
hereto;
(vi) an original, duly executed Second Amendment to
Limited Partnership Agreement of GPA BOND, LP, a California limited
partnership in the form of Exhibit F herein;
(vii) closing statement in form and content satisfactory
to GPLP and Transferors;
(viii) any other instruments, records or correspondence
called for hereunder which have not previously been delivered.
GPLP may waive compliance on Transferor's part under any of the foregoing items
by an instrument in writing.
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(c) At or before the Closing, GPLP shall deliver to
Transferors the following:
(i) a closing statement in form and content satisfactory
to GPLP and Transferors; and
(ii) a duly executed Registration Rights Agreement.
(d) Transferors and GPLP shall each provide such other
instruments as are reasonably required to close and consummate the transactions
described herein in accordance with the terms hereof.
(e) With respect to the Property the following adjustments
shall be made, and the following procedures shall be followed:
(i) the amount by which the outstanding principal
balance plus accrued but unpaid interest on any loans encumbering
the Property is greater or less than $2,710,000 at Closing shall be
reflected by a decrease or increase, as the case may be, in the
number of Units issued to GPA, at an agreed upon value of Fifteen
Dollars ($15) per unit.
(ii) GPLP shall have the right to collect and keep all
rents or other amounts payable under the Leases that were delinquent
as of the Closing Date and that relate to a period prior to the
Closing without payment thereof to Transferor.
(iii) All costs associated with the transaction shall be
charged against the GPLP (except for Transferors' legal, accounting
or other professional fees), including all title insurance premiums,
all escrow charges, any transfer taxes, all costs of GPLP's
engineering and environmental analyses, and all survey costs.
(iv) The obligations of Transferors and GPLP under this
Paragraph 5 shall survive the Closing.
6. Transferor's Representations and Warranties. Each of the
Transferors, jointly and severally, represents and warrants to GPLP as follows:
(a) Organization and Standing. GPA is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of California. BOND is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of California with
full power and authority to own, lease and operate its properties and assets and
to carry on its business and activities as currently conducted (the "Business").
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(b) Capacity and Authority. Each Transferor has full power and
authority to execute and deliver this Agreement and to perform all of the terms
and conditions hereof to be performed by the Transferor, and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by each of the Transferors and is the legal, valid and binding
obligation of each of the Transferors and is enforceable against each of the
Transferors in accordance with its terms, except as the enforcement thereof may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors generally and by general
equitable principles (whether or not such enforceability is considered in a
proceeding at law or in equity). None of the Transferors or BOND is presently
subject to any bankruptcy, insolvency, reorganization, moratorium, or similar
proceeding.
(c) No Violation. Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated by this Agreement,
nor the compliance with the terms and conditions hereof will (i) violate or
conflict, in any material respect, with any provision of BOND's Partnership
Agreement or any statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge or other restrictions of any government, governmental agency or
court to which either of the Transferors and/or BOND is subject, or (ii) result
in any material breach or the termination of any lease, agreement or other
instrument or obligation to which either of the Transferors or BOND is a party
or by which any of the properties or assets of the Transferors or BOND may be
subject, or cause a lien or other encumbrance to attach to any of BOND's
properties. Neither the Transferors nor BOND is a party to any contract or
subject to any other legal restriction that would prevent or restrict complete
fulfillment by the Transferors of all of the terms and conditions of this
Agreement or compliance with any of the obligations under it.
(d) Title to Partnership Interests. All of the Partnership
Interests are currently owned and as of the Closing will be owned beneficially
by the Transferors as set forth in Recital B hereto. The Transferors own the
Partnership Interests free and clear of all liens, charges, encumbrances,
claims, rights of others, mortgages, pledges or security interests, and the
Partnership Interests are not subject to any agreements or understandings among
any persons with respect to the voting or transfer thereof. The Transferors each
have full legal right to sell, assign, and transfer the Partnership Interests
and, upon delivery of the Assignment pursuant to the terms hereof, good and
marketable title to the Partnership Interests free and clear of any liens,
charges, encumbrances, pledges, security interests, taxes, claims or rights of
others of any nature whatsoever shall vest in GPLP.
(e) Subsidiaries and Affiliates. BOND does not own, control or
hold with the power to vote, directly or indirectly, any shares or capital stock
or beneficial interest in any corporation, partnership, limited liability
company, association, joint venture or other entity.
(f) Required Consents. All material consents required from any
governmental authority or third party in connection with the execution and
delivery of this Agreement by the applicable Transferor or the consummation by
the applicable Transferor of the transactions contemplated hereby have been made
or obtained or shall have been made or obtained by the Closing Date. Complete
and correct copies of all such consents shall be delivered to GPLP.
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(g) Absence of Undisclosed Liabilities. Except for the
liabilities (i) the "Lease and Contract Liabilities" (as hereinafter defined),
and (ii) the liabilities incurred since the date of BOND's latest financial
statements in the ordinary course of business (the items described in (i) and
(ii) are collectively referred to as the "Closing Date Liabilities"), as of the
date hereof BOND has, and as of the Closing Date BOND will have, no known
liabilities, obligations, debts, contracts or other commitments of any kind or
nature whatsoever, whether accrued, fixed, absolute, conditional, determined or
determinable, and whether or not required under generally accepted accounting
principles to be accrued or disclosed in a balance sheet of BOND, existing as of
the date hereof or on the Closing Date or arising out of, or resulting from any
transaction entered into prior to or at the Closing Date. As of the date hereof
there is, and as of the Closing Date there will be, no existing fact, condition,
situation or circumstance known to Transferors that would result in any material
liability or obligation of BOND other than the Closing Date Liabilities. For
purposes of this Agreement, the term "Lease and Contract Liabilities" shall mean
the liabilities and obligations of BOND under the Leases and Contracts (as such
terms are hereinafter defined), but only to the extent such liabilities and
obligations are required to be performed and satisfied after the Closing Date
and excluding (y) liabilities and obligations arising as a result of any breach
of, or default or failure to perform under, any Lease or Contract by BOND prior
to the Closing Date, and (z) liabilities and obligations arising as a result of
any breach of, or default or failure to perform under any Lease or Contract by
BOND on or after the Closing Date, which breach, default or failure is the
result of Transferors' failure to perform any of its obligations under this
Agreement.
(h) Real Property.
(i) BOND has, and at the Closing Date will have, good
and indefeasible fee simple title to the real property described on
Schedule (6)(h)(i) attached hereto (the "Real Property"), subject only to
the Permitted Exceptions. The Real Property, together with all buildings,
improvements and fixtures owned by BOND and located or to be located
thereon (the "Improvements") are referred to collectively as the
"Property."
(ii) There are no adverse or other parties in possession
of the Property, or any part thereof, except BOND and tenants under the
Leases. No party has been granted any license, lease, or other right
relating to the use or possession of the Property or any part thereof,
except tenants under the Leases.
(iii) Except as disclosed to GPLP, there are no material
defects with respect to the Real Property, including, without limitation,
no material defects in the structural and load-bearing components of the
Property, the roof(s), the parking lot(s), the plumbing, heating, air
conditioning and electrical and life safety systems, and all such items
are in good operating condition and repair. For the purpose of this
Subparagraph 6(h)(iii), the term "material defects" shall mean defects
which in the aggregate for the Property would cost more than $50,000 to
repair.
(iv) Except as disclosed to GPLP, to the best of
Transferors' knowledge, the use and operation of the Property is in
compliance with all applicable
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restrictive covenants, building codes, environmental, zoning and land use
laws, and other applicable local, state and federal laws and regulations
(collectively, "Laws").
(v) Except as disclosed to GPLP, there are no
condemnation, environmental, zoning or other land-use regulation
proceedings, either instituted or, to the best of Transferors' knowledge,
planned to be instituted, which would detrimentally affect the use,
operation or value of any of the Property, nor has either Transferor or
Company received notice of any special assessment proceedings affecting
any of the Property. Transferors shall notify GPLP promptly of any such
proceedings of which either Transferor becomes aware.
(vi) All water, sewer, gas, electric, telephone, and
drainage facilities and all other utilities required by law or by the
normal use and operation of the Property are installed to the property
lines of the Property, and are connected pursuant to valid permits, and
are adequate to service the Property and to permit compliance with all
Laws.
(vii) Company has obtained all licenses, permits,
variances, approvals, authorizations, easements and rights of way,
including proof of dedication, required from all governmental authorities
having jurisdiction over the Property or from private parties for the
intended use, operation and occupancy of the Property and to insure
vehicular and pedestrian ingress to and egress from the Property.
(viii) Except as disclosed to GPLP, there is no
litigation pending or, to the best of Transferors' knowledge, threatened,
against either Transferor or any basis therefor that arises out of the
ownership of the Property or that might detrimentally affect the value or
the use or operation of any of the Property for its intended purpose or
the ability of Transferors to perform their obligations under this
Agreement. Transferors shall notify GPLP promptly of any such litigation
of which either Transferor becomes aware.
(ix) Except as disclosed to GPLP, at the time of Closing
there will be no outstanding written or oral contracts made by Company for
any improvements to the Property which have not been fully paid for and
Transferors shall cause to be discharged all mechanics' and materialmen's
liens arising from any labor or materials furnished to the Property prior
to the time of Closing.
(x) As of the Closing Date, Company has completed (i)
all original building construction on the Real Property, (ii) all
punch-list items with respect to any tenant improvements constructed by
Company as landlord under the Leases, and (iii) all on- and off-site
development obligations of BOND in connection with any of the Real
Property.
(xi) Transferors know of no facts nor have Transferors
failed to disclose any fact which would prevent BOND from using and
operating the Property after Closing in the manner in which the Property
is intended to be operated.
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(xii) Other than the rights of Tenants, as tenants only,
under the Leases, there are no purchase contracts, options or other
agreements of any kind, written or oral, recorded or unrecorded, whereby
any person or entity other than BOND will have acquired or will have any
basis to assert any right, title or interest, or right to possession, use,
enjoyment or proceeds of all or any portion of the Property. None of the
Leases contain any rights of first offer, first refusal or purchase
options.
(i) Leased Personal Property. Transferors will make, or cause
to be made available to GPLP true, correct and complete copies of all leases and
subleases for each item of personal property leased or subleased to BOND (the
"Leased Personal Property"). All such Leased Personal Property is in BOND's
actual possession and is in such condition that, upon return of such property in
its present condition to its owner, BOND will not be liable in any amount to
such owner on account of the condition of such Leased Personal Property.
(j) Title to and Condition of Assets. BOND has good and
indefeasible title to the Property, including, without limitation, the Real
Property and the Improvements, any personal property owned by Company ("Personal
Property") and all other assets and properties, whether real or personal,
tangible or intangible, which it owns (collectively referred to as the
"Assets"). All Assets are owned free and clear of all mortgages, liens, pledges,
claims, charges, restrictions, easements, encumbrances or security interests of
any kind or nature whatsoever (collectively, the "Liens"), other than the Loans.
Except in connection with the Loans, no financing statement under the Uniform
Commercial Code or similar law naming BOND as debtor has been filed in any
jurisdiction and is still in effect, and BOND is not a party to or bound by any
agreement or arrangement authorizing any party to file any such financing
statement. Upon the Closing, BOND will have good, valid, complete and marketable
title to the Assets free and clear of all Liens except for the Loans.
(k) Leases.
(i) Attached hereto as Exhibit G is a list (the "Rent
Roll") of each lease or agreement for the use or occupancy of the Property
(collectively, the "Leases") as of the date of this Agreement. Said Rent
Roll is complete in all material respects and all information therein is
accurate as of its date, and there are no Leases or tenancies with respect
to the Property or any part thereof except as therein set forth. Except as
disclosed on the Rent Roll, no rental under any Lease has been collected
in advance of the current month. BOND is the owner of the entire lessor's
interest in and to each of the Leases and none of the Leases or the
rentals or other sums payable thereunder has been assigned or otherwise
encumbered, except in connection with the Loans.
(ii) Each of the Leases, including, without limitation,
any guaranties thereof, is an enforceable Lease and is in full force and
effect according to the terms set forth therein, except as the enforcement
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the rights of
creditors generally, and by general equitable principles. Except as
disclosed to GPLP, (i) no Tenant under any of the Leases is greater than
forty-five (45) days delinquent in the
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payment of its rental and other sums due, (ii) no Tenant has abandoned or
otherwise vacated the Property in violation of any Lease, (iii) no Tenant
or guarantor has filed a voluntary petition in bankruptcy, insolvency or
similar proceedings, has been the subject of an involuntary bankruptcy
petition, or otherwise been adjudged bankrupt or insolvent in any
proceedings filed against such tenant or guarantor; (iv) no trustee or
receiver has been appointed for any Tenant; (v) no written notice has been
provided to any tenant notifying the Tenant that it is in default under
the Lease which default has not been remedied by such Tenant; and (vi) no
Tenant, to Transferors' knowledge, is otherwise in default under any of
the Leases. Except as otherwise provided in the Lease, each Tenant is
legally required to pay all sums and perform all obligations set forth in
its respective Lease, without concessions, abatements, offsets or other
basis for relief or adjustment, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
rights of creditors generally, and by general equitable principles.
(iii) To the best of Transferors' knowledge, no material
event of default on behalf of BOND, as lessor, exists under any Lease and
no event or condition exists that, upon the giving of notice or lapse of
time, or both, would constitute a default by BOND under any Lease. No
Tenant has given notice to BOND of any offsets, defenses or claims
available against rent or other charges payable by such Tenant or other
performance or obligations otherwise due from it under any Lease, except
as specifically set forth in the Rent Roll.
(iv) No guarantor of any Lease has been released or
discharged, voluntarily or involuntarily, from any obligation under or in
connection with any Lease or any transaction related thereto.
(v) No Tenant or any other party has given notice of any
claim (other than for customary refund at the expiration of a Lease) to
all or any part of any security deposit. The Rent Roll sets forth all
security deposits held by BOND.
(vi) Except as shown on the Rent Roll, Company has
paid in full any of landlord's leasing costs or obligations, including,
without limitation, any costs incurred by Company in connection with any
tenant improvements.
(vii) No Tenant has indicated to Company either orally
or in writing its intent to terminate its Leases prior to expiration of
the term of such Lease.
(viii) Except as disclosed to GPLP, (A) no brokerage or
similar fee is due or unpaid by Company with respect to the Leases, and
(B) no brokerage or similar fee shall be due or payable after the Closing
in connection with the Leases pursuant to any agreement entered into by
Company or either Transferor or of which either Transferor or Company has
knowledge.
(l) Permits and Licenses. BOND owns or has rights under all
material government and non-government licenses and permits required for the
lawful conduct of the Business and BOND's use and ownership of the Property
(collectively, the "Licenses").
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BOND owns or has rights under all Licenses. At the Closing Date, BOND will have
all such Licenses and the Licenses shall, in all material respects, be in full
force and effect. The consummation of the transactions contemplated hereby will
not result in any revocation, cancellation or suspension of any of the Licenses.
No actions or proceedings to revoke any Licenses are pending or, to the
knowledge of the Transferors, threatened. BOND has not taken any action or
knowingly failed to take any action which would materially impair, limit or in
any way affect any of BOND's right to conduct its Business and operate the
Property. To the best of Transferors' knowledge, there is no basis for any
action, suit, proceeding, hearing, investigation, charge, complaint, claim or
demand which would have the result of challenging the legality, validity or
enforceability of any of the Licenses. BOND is, in all material respects, in
compliance with all of the Licenses. No registration, filing, application,
notice, transfer, consent, approval, order, qualification, waiver or other
action of any kind will be required as a result of the transactions contemplated
herein to avoid (i) the loss of any License, (ii) a violation, breach or default
under or the termination of any License, or (iii) the creation of any Lien on
any Asset pursuant to the terms of any License and/or any law, regulation, order
or other requirement or any contract or agreement binding upon BOND or to which
any Asset may be subject.
(m) Taxes. BOND has timely filed or caused to be timely filed
all federal, state and local tax returns and informational filings for taxes,
and all such tax returns and informational filings are, in all material
respects, proper, complete and accurate. Copies of all available tax returns and
informational filings of BOND existing as of the Effective Date have been
provided to GPLP and any subsequent tax returns and informational filings shall
be delivered to GPLP as they become available. BOND has withheld and/or paid all
taxes which have become due pursuant to BOND's tax returns and all other taxes,
assessments and other governmental charges which have become due and are imposed
by law upon BOND or any of its Assets which are due on or after the Closing
Date, which relate to periods prior to the Closing Date. Neither of the
Transferors nor BOND have received and neither of the Transferors have any
knowledge of any notice of deficiency or assessment with respect to BOND and its
Assets or any basis for any of the foregoing, from any taxing authorities. There
is no litigation, governmental or other proceeding (formal or informal) or
investigation pending or, to the best of Transferors' knowledge, threatened with
respect to any such federal, state or local income or other taxes, tax returns
or informational filings of BOND. There are not in effect any waivers or
extensions of statutes of limitations with respect to taxes payable by BOND.
(n) BOND Loans. Except for such loans and advances that will
be paid in full on or before the Closing Date and the Xxxxx Fargo Loan, BOND has
no outstanding loans or other advances to any other party. Neither BOND nor
either Transferor has defaulted on any loan or other obligation entered into in
connection with the Property or the Business.
(o) Compliance with Laws. BOND is, and all of the Assets are,
in all material respects, in compliance with all applicable laws, orders, rules,
Licenses, codes, rulings, decrees, regulations, ordinances and other
requirements of all federal, state and local governmental, administrative and
judicial authorities and agencies. No action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand or notice has been filed or
commenced.
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(p) Contracts. With respect to all service contracts,
construction contracts for work in progress, any warranties thereunder,
management contracts, reciprocal easement agreements, operating agreements,
maintenance agreements, franchise agreements and other similar agreements (the
"Contracts"). With respect to each of the Contracts, (i) the Contract is legal,
valid, binding, enforceable in accordance with its terms and in full force and
effect, except as may be limited by bankruptcy, reorganization, fraudulent
conveyance, insolvency or similar laws of general application relating to or
affecting the enforcement of creditor's rights and subject to general principles
of equity, (ii) the Contract will not be adversely affected by the occurrence of
the Closing and will be legal, valid, binding, enforceable in accordance with
its terms and in full force and effect on identical terms following the
consummation of the sale of the Partnership Interests, (iii) no party to the
Contract is in breach or default under any obligation thereunder or any
provisions thereof which would have material adverse affect upon BOND, and no
event has occurred which, with notice or lapse of time, would constitute a
breach or default, or permit any termination under the Contract which would have
a material adverse affect upon BOND, (iv) no event has occurred under the
Contract which would permit the creation of any Lien upon, or the restriction of
the right to the use of, any Asset and (v) no party to any Contract has
repudiated any material provision of the Contract.
(q) Loan Documents. With respect to all notes or other
evidence of indebtedness, loan agreements, mortgages, guaranty agreements, and
any and all other documents entered into by BOND and all amendments,
modifications and supplements thereto (collectively the "Loan Documents") in
connection with any Loans to BOND and all matters in connection with the Loans,
(i) each Loan Document is legal, valid, binding, enforceable in accordance with
its terms and in full force and effect, except as may be limited by bankruptcy,
reorganization, fraudulent conveyance, insolvency or similar laws of general
application relating to or affecting the enforcement of creditor's rights and
subject to general principles of equity, (ii) each Loan Document will not be
adversely affected by the occurrence of the Closing and will be legal, valid,
binding, enforceable in accordance with its terms and in full force and effect
on identical terms following the consummation of the sale of the Partnership
Interests, (iii) no party to the Loan Document is in breach or default under any
obligation thereunder or any provisions thereof which would have material
adverse affect upon BOND, and no event has occurred which, with notice or lapse
of time, would constitute a breach or default, or permit any termination,
modification or acceleration under the Loan Documents which would have a
material adverse affect upon BOND, (iv) no event has occurred under the Loan
Document which would permit the creation of any Lien upon, or the restriction of
the right to the use of, any Asset and (v) no party to the Loan Document has
repudiated any material provision of the Loan Document.
(r) Insurance. Copies of all insurance policies of BOND by
which BOND and any of its Assets are now covered or have been covered during the
last three (3) years will be provided to the GPLP. Transferors agree to cause
BOND to maintain the existing policies (which are presently in force) or
comparable coverage in full force and effect at all times from the date of this
Agreement through and including the Closing Date. None of the Transferors or
BOND have received any notice from any insurance carrier of its intent to
discontinue any such insurance coverage or have any reason to believe that such
carrier intends to discontinue any such insurance coverage. Except as set forth
in Schedule 6(r), during the last
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three years, there has been no material casualty affecting BOND or loss, damage
or destruction to any of its properties, whether or not covered by or
compensated under any insurance policy of BOND.
(s) Orders and Litigation. No court or governmental or
regulatory authority of competent jurisdiction has enacted, issued, promulgated,
enforced or entered any statute, rule, regulation, judgment, decree, injunction
or other order (whether temporary, preliminary or permanent) which is in effect
and prohibits consummation by Transferors or BOND of the transactions
contemplated by this Agreement. Except as disclosed to GPLP, BOND is neither
subject to any outstanding injunction, judgment, order, decree, ruling or charge
nor a party, or, to the best of Transferors' knowledge, threatened to be made a
party, to any action, suit, proceeding, hearing or investigation of, in, or
before any court or quasi-judicial or administrative agency of any federal,
state or local jurisdiction or before any arbitrator, and there is no basis
known to the Transferors for any such action.
(t) Employees. BOND does not now and has never had any
employees.
(u) Environmental Matters. Transferors have delivered to GPLP
all environmental reports and investigations relating to the Property and/or the
Prior Properties (as herein defined) which are available to Company or
Transferors or in Company's or Transferors' possession (the "Environmental
Reports"). Except as set forth in the Environmental Reports:
(i) BOND's prior uses of the Property have at all times
during BOND's lease, ownership or use thereof complied in all material
respects with, and neither has BOND nor, to the best of Transferors'
knowledge, any other person in connection with the ownership, lease,
occupancy, use, maintenance, or operation of the Property and the conduct
of the Business violated, in any material respect, any then applicable
federal, state, county or local statutes, laws, regulations, rules,
ordinances, codes, licenses or permits relating in any way to the
protection of the environment, including, without limitation, the Clean
Air Act, the Federal Water Pollution Control Act of 1972, the Resource
Conservation and Recovery Act of 1976 ("RCRA"), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),
and the Toxic Substances Control Act and any amendments or extensions of
the foregoing and the regulations promulgated thereunder (collectively,
the "Environmental Laws"). BOND's existing use of the Property complies
with and BOND is not currently, in any material respect, in violation of
any current Environmental Laws in connection with the ownership, lease,
occupancy, use, maintenance, or operation of the Property and the conduct
of the Business. During the time BOND has owned, leased or used the
Property, BOND has not received any written notification from the Federal
Environmental Protection Agency, or the environmental protection agency or
similar agency of any of the States, that a permit is required by BOND for
any reason whatsoever, including, without limitation, the use or
maintenance of any improvement or facility on the Property and, to the
Transferors' knowledge, no such permit has been required. Neither Company,
nor to the best of Transferors' knowledge, any third party
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has installed, used or removed any storage tank on, from or in connection
with the Property except in full compliance with all Environmental Laws,
and to the best of Transferors' knowledge there are no storage tanks or
xxxxx (whether existing or abandoned) located on, under or about the
Property and to the best of Transferors' knowledge no storage tank has
been installed on, used on or removed from or used in connection with the
Property in violation of any Environmental Laws. To the best of
Transferors' knowledge, the Property does not consist of any building
materials that contain Hazardous Materials. No claim, action, suit or
proceeding is pending or, to the Transferors' knowledge, threatened
against BOND, before any court or other governmental authority or
arbitration tribunal, relating to Hazardous Materials, pollution or the
environment, and there is no outstanding judgment, order, writ,
injunction, decree or award against or affecting BOND or the Property with
respect to the same. There is not presently occurring, nor to the
Transferors' knowledge, has there ever been any "release" of any Hazardous
Materials onto or from the Property in violation of an Environmental Law.
To the best of Transferors' knowledge, there has never been, nor is there
presently occurring, any "release" of any "hazardous substance" from any
location where BOND transported, treated, disposed of or arranged or
caused the transportation, treatment or disposal of Hazardous Materials in
violation of an Environmental Law. BOND has utilized, stored, delivered
for disposal, disposed of and transported all wastes, whether hazardous or
not, in material compliance with the then applicable laws, rules,
regulations and ordinances and the common law and so as not to give rise
to any reporting, remediation or clean-up obligation under any currently
applicable law, rule, regulation or ordinance or the common law. The
provisions of this Subparagraph 6(u) shall also apply to the real property
of, and actions taken by, each person controlled by BOND during all
periods in which such person was controlled by BOND; provided, however,
that for purposes of this Subparagraph 6(u), BOND shall not be deemed to
be in control of any Tenant of the Property. BOND has not received any
written notice from any government agency advising it that it is
responsible for response costs with respect to a release, a threatened
release or clean up of chemical produced by, or resulting from, any
business, commercial, or industrial activities, operations, or processes,
including, but not limited to, Hazardous Materials, and has not received
any written information requests under CERCLA from any government agency.
As used herein, "release" shall have the same meaning as defined in
CERCLA.
(v) Intellectual Property. BOND does not utilize or otherwise
conduct any business under any trademark, service xxxx or tradename. BOND has
not been charged with, nor, to the knowledge of Transferors, has it infringed,
or, is it threatened to be charged with infringement of, any patent, proprietary
rights or trade secrets of others in the conduct of its Business, and, to the
date hereof, BOND has not, to Transferors' knowledge, received any notice of
conflict with or violation of the asserted rights in intangibles or trade
secrets of others.
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(w) Brokers' Fees. Neither the Transferors nor BOND has any
liability or obligation to pay any fees or commissions to any broker, finder or
agent with respect to the transactions contemplated by this Agreement.
(x) Accuracy of Information. Neither Transferor has knowledge
of any events, transactions or other facts which, either individually or in the
aggregate might reasonably give rise to circumstances or conditions which might
have a material adverse affect on the general affairs, business, prospects,
financial position, results of operations or net worth of BOND.
(y) No Indemnification Liabilities. There are no existing
liabilities that require BOND to indemnify its partners for acts or omissions by
such persons acting on behalf of BOND or existing agreements to provide
indemnification for such liabilities.
(z) No Foreign Persons. Neither Transferor is a "foreign
person" within the meaning of Section 1445(f)(3) of the Code.
(aa) Investment Representations.
(i) (A) Each Transferor is acquiring the Units for
investment for its own account, not as a nominee or agent, and not with a
view to the sale in connection with a public distribution of any part
thereof; and (B) each Transferor has no present intention of selling,
granting a participation in or otherwise distributing, and does not have
any contract, undertaking, agreement or arrangement with any natural
person, corporation, partnership, association or other entity ("Person")
to sell, transfer or grant a participation to such person, or to any third
person, with respect to any of the Units.
(ii) Each Transferor understands that the Units are not
registered under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the "Securities Act") on the ground
that the sale and the issuance of the Units hereunder is exempt from
registration under the Securities Act pursuant to Section 4(2) thereof and
regulations issued thereunder, and that the GPLP's reliance on such
exemption is predicated on Transferors' representations set forth herein.
(iii) Each Transferor represents that it either (A) is
both an "accredited investor" as that term is defined in Regulation D
promulgated under the Securities Act and a purchaser excluded from the
count of investors under Section 25102(f) of the California Corporations
code; or (B) alone or together with its professional advisor, has such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of investment in the GPLP and
has the capacity to protect its own interest in connection with the
transactions contemplated hereby. Each Transferor further represents that,
during the course of the transaction and prior to its purchase of shares
of the Units, it had access to, the opportunity to ask questions of, and
receive answers from, representatives of the GPLP concerning the terms and
conditions of the offering and to obtain additional information (to the
extent the GPLP possessed such information or could acquire it without
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unreasonable effort or expense) necessary to verify the accuracy of any
information furnished to it or to which it had access.
(iv) Each Transferor has relied solely on its own
investigations in making a decision to purchase the Units, and has
received no representation or warranty from GPLP, or any of its
affiliates, employees or agents, other than those set forth in this
Agreement.
(v) Each Transferor understands that the Units may not
be sold, transferred or otherwise disposed of without registration under
the Securities Act or pursuant to an exemption therefrom, and that in the
absence of an effective registration statement covering the Units or an
available exemption from registration under the Securities Act, the Units
must be held indefinitely. In particular, each Transferor is aware that
the Units may not be sold pursuant to Rule 144 promulgated under the
Securities Act unless all of the conditions of that Rule are met. Each
Transferor represents that, in the absence of an effective registration
statement covering the Units, it will sell, transfer or otherwise dispose
of the Units only in a manner consistent with its representations set
forth herein and then only in accordance with the provisions of this
Agreement, GPLP's Partnership Agreement, and applicable laws and
regulations.
(vi) Each Transferor agrees that, except as specifically
contemplated hereunder, in no event will it transfer or dispose of any of
the Units other than pursuant to an effective registration statement under
the Securities Act, unless and until (i) there is compliance with all
requirements contained in other sections of this Agreement and the GPLP's
partnership agreement; (ii) the Transferor shall have notified GPLP of the
proposed disposition and shall have furnished GPLP with a statement of the
circumstances surrounding the disposition; (iii) if requested by GPLP, at
the expense of such Transferor, or its transferee, it shall have furnished
to GPLP an opinion of counsel, reasonably satisfactory to GPLP, to the
effect that such transfer may be consummated without registration under
the Securities Act; and (iv) the transferee executes and delivers an
assumption of the terms and conditions of this Agreement and the GPLP's
Partnership Agreement satisfactory to GPLP.
7. Representations and Warranties of GPLP. GPLP hereby represents
and warrants to Transferors as follows: GPLP is a duly organized and validly
existing limited partnership under the laws of the State of California; this
Agreement and all documents executed by GPLP which are to be delivered to
Transferors at the Closing are or at the time of Closing will be duly
authorized, executed and delivered by GPLP, and are or at the Closing will be
legal, valid and binding obligations of GPLP, and do not and at the time of
Closing will not violate any provisions of any agreement or judicial order to
which GPLP is subject.
8. Indemnification.
(a) Each party hereby agrees to indemnify the other party and
defend and hold it harmless from and against any and all claims, demands,
liabilities, costs, expenses,
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penalties, damages and losses, including, without limitation, attorneys' fees,
resulting from any misrepresentation or breach of warranty or breach of covenant
made by such party in this Agreement or in any document, certificate, or Exhibit
given or delivered to the other pursuant to or in connection with this
Agreement.
(b) Transferors agree on a joint and several basis to
indemnify GPLP and BOND and defend and hold GPLP and BOND harmless from and
against any and all claims, demands, liabilities, costs, expenses, penalties,
damages and losses, including, without limitation, attorneys' fees, asserted
against, incurred or suffered by GPLP or BOND resulting from or arising out of
any transaction entered into, any state of facts existing, or any personal
injury or property damage occurring in, on or about the Property or relating
thereto, before the Closing Date, from any cause whatsoever other than as a
consequence of the acts or omissions of GPLP, its agents, employees or
contractors.
(c) GPLP and BOND agree to indemnify Transferors and defend
and hold Transferors harmless from any claims, losses, demands, liabilities,
costs, expenses, penalties, damages and losses, including, without limitation,
attorneys' fees, asserted against, incurred or suffered by Transferors resulting
from or arising out of any transaction entered into, any state of facts
existing, or any personal injury or property damage occurring in, on or about
the Property or relating thereto, after the Closing Date, from any cause
whatsoever other than as a consequence of the acts or omissions of either
Transferor, or their respective agents, employees or contractors.
(d) Transferors agree on a joint and several basis to and do
hereby indemnify, defend and hold harmless GPLP, its shareholders and BOND and
the respective agents, contractors, employees, shareholders, trustees,
investment advisors, and representatives of each of GPLP, its shareholders, and
BOND and each of their successors and assigns, from and against any and all
liabilities, claims, demands, suits, administrative proceedings, causes of
action, costs, damages, personal injuries and property damages, losses and
expenses, both known and unknown, present and future, at law or in equity,
arising out of or related in any way to any active or inactive underground
storage tanks at the Property ("USTs") or the presence of any hazardous
substances in or about the Property or any portion thereof existing on or prior
to the Closing Date. This indemnification includes, without limitation, (i) any
and all remedial costs (including, without limitation, all costs, expenses and
fees incurred in connection with any corrective action, preventative measures,
or any response, removal, transport, disposal, clean-up, abatement, treatment
and monitoring actions relating to hazardous substances, including, regulatory
costs, penalties, fines, legal fees and disbursements and the costs of
environmental contractors and consultants) associated with any USTs or hazardous
substances, (ii) to the maximum extent allowed by law, all fines and/or
penalties that may be imposed in connection with any USTs, (iii) defense of any
claim made by any individual or entity (including any government or governmental
agency or entity) concerning any of the foregoing, which defense shall be
conducted by counsel and with the assistance of environmental advisors and
consultants, in all cases subject to the prior written approval of GPLP, and
(iv) reasonable attorneys' fees and costs and environmental advisors' and
consultants' fees incurred by GPLP and BOND with respect to enforcing its rights
under this indemnification provision.
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(e) The indemnification provisions of this Paragraph 8 shall
survive beyond the Closing, or, if the Closing does not occur pursuant to this
Agreement, beyond any termination of this Agreement.
9. Risk of Loss.
(a) Minor Loss. GPLP shall be bound to transfer the Units in
exchange for the Partnership Interests as required by the terms hereof, without
regard to the occurrence or effect of any damage to the Property or destruction
of any improvements thereon or condemnation of any portion of the Property,
provided that: (a) the cost to repair any such damage or destruction does not
exceed five percent (5%) of the fair market value of the Property or, in the
case of a partial condemnation, the value of the portion of the Property taken
does not exceed five percent (5%) of the fair market value of the Property; (b)
upon the Closing, there shall be a credit reducing the number of Units (at $15
per Unit) to be transferred by GPLP hereunder equal to the amount of any
insurance proceeds or condemnation awards collected by the Transferors as a
result of any such damage or destruction or condemnation, plus seventy-five
percent (75%) of the amount of any insurance deductible; (c) insurance or
condemnation proceeds available to BOND are sufficient to cover the cost of
restoration; and (d) the insurance carrier has admitted liability for the
payment of such costs. If the proceeds or awards have not been collected as of
the Closing, then Transferors' right, title and interest to such proceeds or
awards shall be assigned to GPLP.
(b) Major Loss. If the cost to repair such damage or
destruction to the Property exceeds fifteen percent (15%) of the fair market
value of the Property or, in the case of condemnation, if the value of the
Property taken exceeds fifteen percent (15%) of the fair market value of the
Property, then GPLP may, at its option to be exercised by written notice to
Transferors within twenty (20) days of Transferors' notice to GPLP of the
occurrence of the damage or destruction or the commencement of condemnation
proceedings, either (a) elect to terminate this Agreement, in which event each
party shall have no further right, liability or obligation to the other, except
as set forth herein by express reference in a paragraph or provision which
provides that such paragraph or provision shall survive termination of this
Agreement, or (b) consummate the purchase of all of the Property as required by
the terms hereof, subject to the credits against the Units provided below. If
GPLP elects to proceed with the purchase of all of the Property, then, upon the
Closing, GPLP shall be given a credit reducing the number of Units (at $15 per
Unit) to be transferred by GPLP hereunder equal to the amount of any insurance
proceeds or condemnation awards collected by the Transferors as a result of any
such damage or destruction or condemnation, plus seventy-five percent (75%) of
the amount of any insurance deductible. If the proceeds or awards have not been
collected as of the Closing, then Transferors' right, title and interest to such
proceeds or awards shall be assigned to GPLP. If GPLP fails to give Transferors
notice within such 20-day period, then GPLP will be deemed to have elected to
terminate this Agreement.
10. Inspections. Prior to the Closing Date, Transferors shall afford
authorized representatives of GPLP reasonable access to the Property for
purposes of satisfying GPLP with respect to the representations, warranties and
covenants of Transferors contained herein and with
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respect to satisfaction of any Conditions Precedent to the Closing contained
herein, including, without limitation, the drilling of test xxxxx on and the
taking of soil borings from the Property. GPLP hereby agrees to indemnify and
hold Transferors harmless from any damage or injury to persons or property
caused by GPLP or its authorized representatives during their entry and
investigations prior to the Closing. In the event this Agreement is terminated,
GPLP shall restore the Property to substantially the condition in which it was
found. This indemnity shall survive the termination of this Agreement or the
Closing, as applicable.
11. Actions Prior to Closing. Subject to the provisions of Paragraph
12 below, from and after the Effective Date and until the Closing Date, or until
this Agreement shall be terminated as herein provided, Transferors shall not and
shall not otherwise cause BOND to (i) merge with or into, consolidate with, or
sell its assets to any other corporation or person, or enter into any other
transaction not in the ordinary course of the Business consistent with past
practice, (ii) incur any liability or obligation, make any commitment or
disbursement, acquire or dispose of any property or asset, make any contract or
agreement or engage in any transaction, except in the ordinary course of the
Business consistent with past practice, (iii) subject any of its properties or
assets to a Lien, (iv) hire any employee(s), or enter into any employment
agreement, engage in any activity, enter into any transaction or fail to take
any action which would be inconsistent with any of the representations and
warranties as set forth in this Agreement as if such representations and
warranties were made at a time subsequent to such activity or transaction and
all references to the date of this Agreement were deemed to be such later time,
(v) amend BOND's Partnership Agreement, or (vii) waive any material right.
12. Leases And Other Agreements; Capital Improvements. Except as
otherwise contemplated or permitted by this Agreement or approved by GPLP in
writing, from the Effective Date to the Closing Date, Transferors will cause
BOND to operate, maintain, repair and lease the Property in a prudent manner, in
the ordinary course, on an arm's-length basis and consistent with their past
practices (and without limiting the foregoing, Transferors shall cause BOND, in
the ordinary course, negotiate with prospective tenants and enter into leases of
the Property, enforce leases in all material respects, pay all costs and
expenses of the Property, including, without limitation, debt service, real
estate taxes and assessments, maintain insurance and pay and perform obligations
under the Loan Documents) and will not dispose of or encumber any of the
Property, except for dispositions of personal property in the ordinary course of
business. Without the written consent of GPLP, which consent GPLP may grant or
deny in its sole and absolute discretion, Transferors shall not enter into any
contract or lease with a term of more than one (1) year and consideration
payable or to be received of more than Fifty Thousand Dollars ($50,000).
13. Cooperation. Transferors and GPLP shall cooperate and do all
acts as may be reasonably required or requested by the other with regard to the
fulfillment of any Condition Precedent or the consummation of the transactions
contemplated hereby including execution of any documents, applications or
permits. Transferors hereby irrevocably authorize GPLP and its agents to make
all inquiries of any third party, including any governmental authority, as GPLP
may reasonably require to complete its due diligence.
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14. Miscellaneous.
(a) Notices. Any notice, consent or approval required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given upon (i) hand delivery, (ii) one (1) day after being
deposited with Federal Express or another reliable overnight courier service or
transmitted by facsimile telecopy, or (iii) two (2) days after being deposited
in the United States mail, registered or certified mail, postage prepaid, return
receipt required, and addressed as follows:
If to Transferors: GPA, Ltd.
000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
Att'n: Xxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Fax No.: (000) 000-0000
Glenborough Corporation
000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
Telephone: (000) 000-0000
Attn: Xxxxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
If to GPLP: Glenborough Properties, L.P.
000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Att'n: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Att'n: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax : (000) 000-0000
or such other address as either party may from time to time specify in writing
to the other.
(b) Brokers and Finders. Neither party has had any contact or
dealings regarding the Property, or any communication in connection with the
subject matter of this transaction, through any real estate broker or other
person who can claim a right to a commission or finder's fee in connection with
the sale contemplated herein. In the event that any other broker or finder
perfects a claim for a commission or finder's fee based upon any such contact,
dealings or communication, the party through whom the broker or finder makes its
claim
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shall be responsible for said commission or fee and shall indemnify and hold
harmless the other party from and against all liabilities, losses, costs and
expenses (including reasonable attorneys' fees) arising in connection with such
claim for a commission or finder's fee. The provisions of this Subparagraph
shall survive the Closing.
(c) Successors and Assigns. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors, heirs, administrators and assigns. GPLP shall have the right, with
notice to Transferors (but without the necessity of Transferors' consent), to
assign its right, title and interest in and to this Agreement to one or more
assignees at any time before the Closing Date, and in such event, the party
originally designated as GPLP shall be relieved of any and all obligations under
this Agreement and any other instruments executed pursuant hereto, and such
assignee(s) shall be substituted in its place and will assume all obligations of
GPLP hereunder. Transferors shall not have the right to assign any of their
respective interest in this Agreement.
(d) Amendments. Except as otherwise provided herein, this
Agreement may be amended or modified only by a written instrument executed by
Transferors and GPLP.
(e) Continuation and Survival of Representations and
Warranties, Etc. All representations and warranties by the respective parties
contained herein or made in writing pursuant to this Agreement are intended to
and shall remain true and correct as of the time of Closing, shall be deemed to
be material, and, together with all conditions, covenants and indemnities made
by the respective parties contained herein or made in writing pursuant to this
Agreement (except as otherwise expressly limited or expanded by the terms of
this Agreement), shall survive the execution and delivery of this Agreement and
the Closing, or, to the extent the context requires, beyond any termination of
this Agreement.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
(g) Merger of Prior Agreements. This Agreement and the
Exhibits hereto constitute the entire agreement between the parties and
supersede all prior agreements and understandings between the parties relating
to the subject matter hereof.
(h) Enforcement. If either party hereto fails to perform any
of its obligations under this Agreement or if a dispute arises between the
parties hereto concerning the meaning or interpretation of any provision of this
Agreement, then the defaulting party or the party not prevailing in such dispute
shall pay any and all costs and expenses incurred by the other party on account
of such default and/or in enforcing or establishing its rights hereunder,
including, without limitation, court costs and attorneys' fees and
disbursements. Any such attorneys' fees and other expenses incurred by either
party in enforcing a judgment in its favor under this Agreement shall be
recoverable separately from and in addition to any other amount included in such
judgment, and such attorneys' fees obligation is intended to be severable from
the other provisions of this Agreement and to survive and not be merged into any
such judgment.
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(i) Time of the Essence. Time is of the essence of this
Agreement.
(j) Severability. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other persons,
places and circumstances shall remain in full force and effect.
(k) Marketing. Transferors agree not to market or show the
Property or market the Partnership Interests to any other prospective purchasers
during the term of this Agreement.
(l) Effective Date. As used herein, the term "Effective Date"
shall mean the first date on which both Transferors and GPLP shall have executed
this Agreement.
(m) Joint and Several. The representations, warranties,
covenants and obligations of Transferors and GPLP are joint and several.
(n) Confidentiality. GPLP and Transferors shall each maintain
as confidential any and all material or information about the other or, in the
case of GPLP and its agents, employees, consultants and contractors, about the
Property, and shall not disclose such information to any third party, except, in
the case of information about the Property and BOND, to Transferors or GPLP's
lender or prospective lenders, underwriters and their counsel, insurance and
reinsurance firms, attorneys, environmental assessment and remediation service
firms and consultants, as may be reasonably required for the consummation of the
transaction contemplated hereunder and/or as required by law.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
GPLP:
GLENBOROUGH PROPERTIES, L.P.
a California limited partnership
Dated:_______________ By: Glenborough Realty Trust Incorporated,
a Maryland corporation, its general partner
By:____________________________________________
Its:___________________________________________
Transferors:
GPA: GPA, LTD., a California limited partnership
Dated: _____________ By: Glenborough Corporation,
a California corporation, its general partner
By:____________________________________________
Its:___________________________________________
Glenborough: GLENBOROUGH CORPORATION,
a California corporation
By:____________________________________________
Its:___________________________________________
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GRT CORP., a Georgia corporation
By:____________________________________________
Its:___________________________________________
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