Exhibit 10.1
AGREEMENT OF SALE AND PURCHASE
between
PACIFIC CONCOURSE 2, LLC,
a Delaware limited liability company
"Seller"
and
DIAGNOSTIC PRODUCTS CORPORATION,
a California corporation
"Buyer"
with Escrow Instructions for
COMMONWEALTH LAND TITLE INSURANCE COMPANY
as Escrow Agent
TABLE OF CONTENTS
AND
LIST OF EXHIBITS AND SCHEDULES
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ARTICLE 1 CERTAIN DEFINITIONS............................................................... 1
Section 1.1. Definitions.................................................... 1
Section 1.2 Rules of Construction.......................................... 5
ARTICLE 2 AGREEMENT OF PURCHASE AND SALE; PURCHASE PRICE.................................... 5
Section 2.1 Agreement to Purchase and Sell................................. 5
Section 2.2 Purchase Price................................................. 5
Section 2.3 Deposit........................................................ 6
Section 2.4 Independent Consideration...................................... 6
Section 2.5 Indivisible Economic Package................................... 6
ARTICLE 3 BUYER'S DUE DILIGENCE/ CONDITION OF THE PROPERTY.................................. 6
Section 3.1 Buyer's Inspections and Due Diligence.......................... 6
Section 3.2 Delivery Period................................................ 6
Section 3.3 Site Visits.................................................... 7
Section 3.4 Buyer's Due Diligence Indemnity................................ 8
Section 3.5 Confidentiality................................................ 8
Section 3.6 Due Diligence Period........................................... 8
ARTICLE 4 TITLE AND SURVEY.................................................................. 9
Section 4.1 Title to Real Property......................................... 9
Section 4.2 Certain Exceptions to Title.................................... 9
Section 4.3 Title Insurance................................................ 9
ARTICLE 5 REMEDIES AND DEPOSIT INSTRUCTIONS................................................. 10
Section 5.1 Permitted Termination; Seller Default.......................... 10
Section 5.2 BUYER DEFAULT; LIQUIDATED DAMAGES.............................. 10
Section 5.3 Deposit Instructions........................................... 10
Section 5.4 Designation of Reporting Person................................ 11
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ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF SELLER.......................................... 12
Section 6.1 Representations and Warranties of Seller....................... 12
Section 6.2 Limited Liability.............................................. 13
Section 6.3 Seller's Knowledge............................................. 14
Section 6.4 Liability of Representations and Warranties.................... 14
ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF BUYER........................................... 14
Section 7.1 Buyer's Representations and Warranties......................... 14
Section 7.2 Intentionally Omitted.......................................... 15
Section 7.3 Buyer's Independent Investigation.............................. 15
ARTICLE 8 MAINTENANCE OF PROPERTY........................................................... 16
Section 8.1 Intentionally Omitted.......................................... 16
Section 8.2 Intentionally Omitted.......................................... 16
Section 8.3 Intentionally Omitted.......................................... 16
Section 8.4 Certain Interim Operating Covenants............................ 17
Section 8.5 Insurance...................................................... 17
ARTICLE 9 CLOSING AND CONDITIONS............................................................ 17
Section 9.1 Escrow Instructions............................................ 17
Section 9.2 Closing........................................................ 17
Section 9.3 Seller's Closing Documents and Other Items..................... 18
Section 9.4 Buyer's Closing Documents and Other Items...................... 18
Section 9.5 Intentionally Omitted.......................................... 19
Section 9.6 Prorations and Closing Costs................................... 19
Section 9.7 Brokers........................................................ 20
Section 9.8 Expenses....................................................... 21
ARTICLE 10 MISCELLANEOUS.................................................................... 21
Section 10.1 Amendment and Modification..................................... 21
Section 10.2 Risk of Loss/Condemnation and Insurance Proceeds/Condemnation
Awards......................................................... 21
Section 10.3 Notices........................................................ 22
Section 10.4 Assignment..................................................... 23
Section 10.5 Governing Law and Consent to Jurisdiction...................... 23
Section 10.6 Counterparts................................................... 24
Section 10.7 Entire Agreement............................................... 24
Section 10.8 Severability................................................... 24
Section 10.9 Attorney Fees.................................................. 24
Section 10.10 Payment of Fees and Expenses................................... 24
Section 10.11 Confidential Information....................................... 24
Section 10.12 Performance Due On Day Other Than Business Day................. 25
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Section 10.13 No Joint Venture............................................... 25
Section 10.14 No Memorandum.................................................. 25
Section 10.15 Waiver of Jury Trial........................................... 25
Section 10.16 Not an Offer................................................... 25
Section 10.17 Limited Liability.............................................. 25
Section 10.18 No Third Party Beneficiaries................................... 25
Section 10.19 Time of Essence................................................ 25
Section 10.20 No Waiver...................................................... 26
Section 10.21 Further Acts................................................... 26
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EXHIBITS AND SCHEDULE
Exhibit "A" Description of Land
Exhibit "B" Disclosure Items
Exhibit "C" List of Service and Other Contracts
Exhibit "D" Form of Deed
Exhibit "E" Form of ▇▇▇▇ of Sale
Exhibit "F" Form of Assignment and Assumption of Contracts
Exhibit "G" Description of Existing Surveys
Exhibit "H" Reimbursable Capital Expenses
Exhibit "I" Amended Development Agreement
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AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement"), dated as of
January 3, 2003, is between PACIFIC CONCOURSE 2, LLC, a Delaware limited
liability company ("Seller"), and DIAGNOSTIC PRODUCTS CORPORATION, a California
corporation ("Buyer").
ARTICLE 1
CERTAIN DEFINITIONS
SECTION 1.1 DEFINITIONS. The parties hereby agree that the following
terms shall have the meanings hereinafter set forth, such definitions to be
applicable equally to the singular and plural forms, and to the masculine and
feminine forms, of such terms:
"AFFILIATE" shall mean any person or entity that directly, or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with Buyer or Seller, as the case may be. For the purposes
of this definition, "control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have the meanings
correlative to the foregoing.
"AGREEMENT" shall mean this Agreement, as the same may be amended,
modified, or supplemented from time to time in writing by the parties hereto.
"ASSIGNMENT AND ASSUMPTION OF CONTRACTS" shall have the meaning
ascribed in Section 9.3(d).
"▇▇▇▇ OF SALE" shall have the meaning ascribed in Section 9.3(b).
"BROKER" shall mean The Goodglick Company and CB ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"BROKER'S COMMISSION" shall have the meaning ascribed in Section 9.7.
"CLOSING" shall have the meaning ascribed in Section 9.2.
"CLOSING DATE" shall mean, TIME BEING OF THE ESSENCE, the date on which
the Closing shall occur, but in no event later than the date set forth in
Section 9.2.
"CLOSING STATEMENT" shall have the meaning ascribed in Section 9.6(a).
"COMMISSIONS" shall mean all commissions, referral fees, payments and
obligations of Seller or the Property Manager to make payments to leasing
agents, leasing brokers or other parties with respect to the leasing of all or
any of the Property, whether such agreements are contained in a Lease or in any
separate Commission Agreement.
"COMMISSION AGREEMENTS" shall mean all written agreements and documents
obligating Seller or the Property Manager to pay Commissions that are not
contained in a Lease, together with all amendments thereto or modifications
thereof.
"CONTRACTS" shall mean the service contracts, construction warranties,
and other contracts described in Exhibit "C" and all other service contracts
entered into by Seller after the Effective Date with respect to the Property in
accordance with Section 8.4.
"CURRENT MONTH" shall have the meaning ascribed in Section 9.6(c).
"DEED" shall have the meaning ascribed in Section 9.3(a).
"DEPOSIT" shall have the meaning ascribed in Section 2.3.
"DEVELOPMENT RIGHTS" shall mean Seller's interest in 100,000 square
feet of development rights (the "Development Rights") from that certain Amended
Development Agreement dated July 8, 1993 by and between the County of Los
Angeles, Economic Development Corporation of Los Angeles County, Del Aire Title
Corporation and OMA Del Aire Properties and more particularly described in
Exhibit "I" attached hereto.
"DISCLOSURE ITEMS" shall have the meaning ascribed in Section 6.1.
"DR HOLDBACK" shall have the meaning ascribed in Section 2.2.
"DR HOLDBACK PERIOD" shall have the meaning ascribed in Section 2.2.
"DUE DILIGENCE" shall mean the review contemplated by Section 3.1 and
related provisions of this Agreement.
"DUE DILIGENCE ITEMS" shall mean those items, documents and deliveries
contemplated in Section 3.2.
"DUE DILIGENCE PERIOD" shall mean the time period contemplated by
Section 3.1 of this Agreement.
"EFFECTIVE DATE" shall mean the date of this Agreement.
"ENVIRONMENTAL LAWS" means all federal, state and local environmental
laws, rules, statutes, directives, binding written interpretations, binding
written policies, ordinances and regulations issued by any Governmental Entity
and in effect as of the date of this Agreement with respect to or which
otherwise pertain to or affect the Real Property or the Improvements, or any
portion thereof, the use, ownership, occupancy or operation of the Real Property
or the Improvements, or any portion thereof, or Seller or Buyer, and as same
have been amended, modified or supplemented from time to time prior to the date
of this Agreement, including but not limited to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
seq.), the Hazardous Substances Transportation Act (49 U.S.C. Section 1802 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.), the Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the
Safe Drinking Water Act (42 U.S.C. Section 300f
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et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Solid Waste
Disposal Act (42 U.S.C. Section 6901 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Emergency Planning and Community
Right-to-Know Act of 1986 (42 U.S.C. Section 11001 et seq.), the Radon and
Indoor Air Quality Research Act (42 U.S.C. Section 7401 note, et seq.), the
Superfund Amendment Reauthorization Act of 1986 (42 U.S.C. Section 9601 et
seq.), comparable state and local laws, and any and all rules and regulations
which have become effective prior to the date of this Agreement under any and
all of the aforementioned laws.
"ESCROW AGENT" shall mean the Title Company.
"FIXTURES" shall mean the fixtures which are located at and affixed to
any of the Improvements as of the Closing Date.
"GOVERNMENTAL ENTITY" means the various governmental and
quasi-governmental bodies or agencies having jurisdiction over Seller, the Real
Property or the Improvements or any portion thereof.
"HAZARDOUS MATERIALS" means any pollutants, contaminants, hazardous or
toxic substances, materials or wastes (including petroleum, petroleum
by-products, radon, asbestos and asbestos containing materials, polychlorinated
biphenyls ("PCBs"), PCB-containing equipment, radioactive elements, infectious
agents, and urea formaldehyde), as such terms are used in any Environmental Laws
(excluding solvents, cleaning fluids and other lawful substances used in the
ordinary operation and maintenance of the Real Property, to the extent in closed
containers).
"IMPROVEMENTS" shall mean the buildings, improvements, and structures
located on the Real Property.
"INDEPENDENT CONSIDERATION" shall have the meaning ascribed in Section
2.4.
"INITIAL DEPOSIT" shall have the meaning ascribed in Section 2.3.
"LAND" shall mean those certain parcels of land and appurtenances
thereto more particularly described on Exhibit "A" including Seller's right,
title and interest in and to all rights-of-way, open or proposed streets,
alleys, easements, strips or gores of land adjacent to those certain parcels of
land.
"LICENSEE PARTIES" shall mean those authorized agents, contractors,
consultants and representatives of Buyer who shall inspect, investigate, test or
evaluate the Property on behalf of Buyer in accordance with this Agreement.
"LICENSES AND PERMITS" shall mean, collectively, to the extent
assignable, all licenses, permits approvals, certificates of occupancy,
dedications, subdivision maps and entitlements now or hereafter issued, approved
or granted by any Governmental Entity in connection with the Real Property and
Improvements, together with all renewals and modifications thereof.
"PERMITTED EXCEPTIONS" shall mean and include all matters approved or
deemed approved by Buyer under Section 4.2 during Buyer's Due Diligence Period.
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"PERMITTED OUTSIDE PARTIES" shall have the meaning ascribed in Section
3.5.
"PERSONAL PROPERTY" shall mean all of the right, title, and interest of
Seller in and to the tangible personal property, which is located at and used
solely in connection with any of the Real Property as of the Closing Date, but
specifically excluding (a) any computer software which either is licensed to
Seller, or which Seller deems proprietary, and (b) any tangible personal
property used by any affiliated or unaffiliated on-site property manager.
Personal Property shall not include any appraisals, budgets, strategic plans for
the Real Property, internal analyses, marketing information, submissions
relating to Seller's obtaining of corporate authorization, attorney and
accountant work product, attorney-client privileged documents, or other
information in the possession or control of Seller or Seller's property manager
which Seller deems proprietary.
"PROPERTY" shall mean the Real Property, the Personal Property, the
Contracts, and to the extent transferable, all of Seller's right, title and
interest in and to all tangible and intangible assets of any nature relating
solely to the Property, specifically excluding options, warrants, stock and like
items, but including without limitation, (a) all warranties upon the
Improvements or the Personal Property identified, (b) rights to any plans,
specifications, engineering studies, reports, drawings, and prints relating to
the construction, reconstruction, modification, and alteration of Improvements,
(c) all works of art, graphic designs, and other intellectual or intangible
property used by Seller in connection with the Property, including any trade
name associated with the Improvements, (d) all claims and causes of action in
favor of the Property owner arising out of or in connection with the Property
after the Closing Date, and (e) the Licenses and Permits.
"PROPERTY MANAGER" shall mean those individuals or entities which
manage the Property.
"PURCHASE PRICE" shall have the meaning ascribed in Section 2.2.
"REAL PROPERTY" shall mean the Land, the Improvements, and the
Fixtures.
"REIMBURSABLE CAPITAL EXPENSES" shall mean costs or expenses for any
capital expenditures or improvements made by Seller after the Effective Date
hereof but before Closing or as otherwise listed on Exhibit "H" hereto.
"SURVEY" or "SURVEYS" shall mean, individually, or collectively, those
certain existing ALTA surveys of the Land and Improvements more particularly
described on Exhibit "G" attached hereto.
"TITLE COMMITMENT" shall have the meaning ascribed in Section 4.1.
"TITLE COMPANY" shall mean Commonwealth Land Title Insurance Company.
"TITLE DOCUMENTS" shall have the meaning ascribed in Section 4.1.
"TITLE OBJECTIONS" shall have the meaning ascribed in Section 4.2.
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"TITLE POLICY" shall have the meaning ascribed in Section 4.3.
SECTION 1.2 RULES OF CONSTRUCTION. Article and Section captions used in
this Agreement are for convenience only and shall not affect the construction of
this Agreement. All references to "Article" or "Sections" without reference to a
document other than this Agreement, are intended to designate articles and
sections of this Agreement, and the words "herein," "hereof," "hereunder," and
other words of similar import refer to this Agreement as a whole and not to any
particular Article or Section, unless specifically designated otherwise. The use
of the term "including" shall mean in all cases "including but not limited to,"
unless specifically designated otherwise. No rules of construction against the
drafter of this Agreement shall apply in any interpretation or enforcement of
this Agreement, any documents or certificates executed pursuant hereto, or any
provisions of any of the foregoing.
ARTICLE 2
AGREEMENT OF PURCHASE AND SALE; PURCHASE PRICE
SECTION 2.1 AGREEMENT TO PURCHASE AND SELL. Seller agrees to sell,
transfer and assign to Buyer, and Buyer agrees to purchase, accept and assume,
in consideration of the Purchase Price to Seller and subject to the terms and
conditions stated herein, all of Seller's right, title and interest in and to
the Property.
SECTION 2.2 PURCHASE PRICE. Buyer shall pay Seller the purchase price
of Twenty Two Million Four Hundred Thousand and NO/100 Dollars ($22,400,000.00)
("Purchase Price") in immediately available funds at Closing. The Purchase Price
and such other funds as may be necessary to pay Buyer's expenses hereunder,
subject to closing adjustments, shall be deposited with the Escrow Agent on or
before the Closing Date in accordance with this Agreement and paid to Seller
upon satisfaction of all conditions precedent to the Closing as described
herein. On the Closing Date, provided that the Entitlement Transfer Document has
been approved and entered into by all parties thereto, Seller shall transfer or
cause the Development Rights, to the extent assignable, to be transferred to
Buyer through the Escrow Agent pursuant to documentation in form and substance
agreed upon by Seller and Buyer during the Due Diligence Period, the basic
template for which shall be Exhibit "I" attached hereto (the "Entitlement
Transfer Document"). In the event that on or before the Closing Date, the
Entitlement Transfer Document has not been entered into by all parties thereto,
and other methods for transferring the Development Rights have not been agreed
to by the Buyer and Seller, then the Development Rights shall not be transferred
to Buyer at Closing, in which case, the sum of Five Hundred Thousand and NO/100
Dollars ($500,000.00) (the "DR Holdback") shall be held back with the Escrow
Agent for up to eighteen months after the Closing Date (the "DR Holdback
Period") until such time as the Entitlement Transfer Document, or another method
reasonably satisfactory to Buyer to evidence the Development Rights, is
procured, at which time the DR Holdback shall be released to Seller. If such
satisfactory evidence is not procured for Buyer within the DR Holdback Period,
the DR Holdback shall be paid to Buyer by the Escrow Agent on the first business
day after the expiration of the DR Holdback Period. Accrued interest on the DR
Holdback shall be paid to the party receiving the final payment. Time is of the
essence with respect to the DR Holdback Period.
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SECTION 2.3 DEPOSIT. Within two (2) business days after this Agreement
is executed by Buyer and Seller, Buyer shall deposit via wire transfer the sum
of Five Hundred Thousand and NO/100 Dollars ($500,000.00) in immediately
available funds as a deposit (the "Deposit") with Escrow Agent whose address is
as indicated in Section 10.3. The Deposit shall be refundable only as provided
in Sections 3.6, 4.2, 5.1, and 10.2(b) (otherwise it shall be non-refundable)
and shall be held and delivered by Escrow Agent in accordance with the
provisions of Article 5. Interest earned on the Deposit shall be considered part
of the Deposit. Except as otherwise expressly set forth herein, the Deposit
shall be applied against the Purchase Price on the Closing Date.
SECTION 2.4 INDEPENDENT CONSIDERATION. Contemporaneously with the
execution and delivery of this Agreement, Buyer has paid to Seller as further
consideration for this Agreement, in cash, the sum of One Hundred Dollars
($100.00) (the "Independent Consideration"), in addition to the Deposit and the
Purchase Price and independent of any other consideration provided hereunder,
which Independent Consideration is fully earned by Seller and is non-refundable
under any circumstances.
SECTION 2.5 INDIVISIBLE ECONOMIC PACKAGE. Buyer has no right to
purchase, and Seller has no obligation to sell, less than all of the Property,
it being the express agreement and understanding of Buyer and Seller that, as a
material inducement to Seller and Buyer to enter into this Agreement, Buyer has
agreed to purchase, and Seller has agreed to sell, all of the Property, subject
to and in accordance with the terms and conditions hereof.
ARTICLE 3
BUYER'S DUE DILIGENCE/
CONDITION OF THE PROPERTY
SECTION 3.1 BUYER'S INSPECTIONS AND DUE DILIGENCE. Buyer acknowledges
that for a period commencing on the date of the execution of this Agreement and
expiring at 5:00 p.m. Pacific Time on the sixtieth (60th) day thereafter (the
"Due Diligence Period"), Buyer shall conduct, its examinations, inspections,
testing, studies and investigations (herein collectively called the "Due
Diligence") of the Property, information regarding the Property and such
documents applicable to the Property as Seller is to deliver or make available
as set forth in Section 3.2 below. Except for any limitations as may be imposed
by Section 3.3 below, Buyer may conduct such due diligence activities,
inspections, and studies of the Property as it deems necessary or appropriate,
and examine and investigate to its full satisfaction all facts, circumstances,
and matters relating to the Property (including the physical condition and use,
availability and adequacy of utilities, access, zoning, compliance with
applicable laws, environmental conditions, mechanical and other systems,
engineering and structural matters and exploration of rights to develop
additional building(s) and parking on the Property), title, survey matters, and
any other matters it deems necessary or appropriate for purposes of consummating
this transaction. The Due Diligence shall be at Buyer's sole cost and expense.
SECTION 3.2 DELIVERY PERIOD. On or before five (5) days following the
Effective Date, Seller shall deliver to Buyer, or make available to Buyer for
inspection at the applicable Property or at the office of the Property Manager,
the following: (i) the Surveys; (ii) copies of all
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Contracts (including any Commission Agreements to the extent the same will not
be terminated as of the Closing Date); and (iii) copies of any of the following
items pertaining to the Property to the extent they exist and are in Seller's
possession: monthly cashflow reports for the current year to date; copies of
existing engineering studies and existing environmental audits prepared by third
parties in connection with the Property; copies of any surveys, environmental
reports, as-built plans and specifications, insurance claims history and tax
bills; exploration of rights to develop an additional building and parking on
the property; and the Licenses and Permits; provided, however, that Seller shall
not be obligated to deliver any internal memoranda or correspondence of Seller,
documents subject to the attorney client privilege and any appraisals or other
valuation information.
(b) All documents, materials, and information furnished to or made
available to Buyer pursuant to this Section 3.2 are being furnished or made
available to Buyer for information purposes only and without any representation
or warranty by Seller with respect thereto, express or implied, except as may
otherwise be expressly set forth in Section 6 below and as limited by Section
6.2 and 7.3(b) below, and all such documents, materials, and information are
expressly understood by Buyer to be subject to the confidentiality provisions of
Section 3.5 below.
SECTION 3.3 SITE VISITS. Buyer and its Licensee Parties shall have
reasonable access to the Real Property at agreed upon times for agreed upon
purposes on at least one (1) business day prior notice to Seller. Seller shall
make reasonable efforts to have an agent available to accompany Buyer or any
Licensee Parties, and in all events Seller shall have the right to have a
representative present during any visits to or inspections of any Real Property
by Buyer or any Licensee Parties. Buyer will conduct its Due Diligence in a
manner which is not disruptive to the normal operation of the Real Property.
Buyer shall not conduct any Phase I and/or Phase II testing that disturbs the
condition of the property, or is otherwise invasive without Seller's prior
written consent, which consent shall not be unreasonably withheld or delayed;
provided, however, if Seller refuses to consent to such Phase I and/or Phase II
testing in an unreasonable manner, Seller agrees to (a) explain the reasons for
such refusal in writing and (b) reimburse Buyer for all reasonable third party
out of pocket costs related to Due Diligence and attorneys' fees, not to exceed
$50,000.00. In the event Buyer desires to conduct any physically intrusive Due
Diligence, such as sampling of soils, other media, building materials, or the
like, Buyer will identify in writing exactly what procedures Buyer desires to
perform and request Seller's express written consent. Upon receipt of Seller's
written consent, Buyer and all Licensee Parties shall, in performing such Due
Diligence, comply with the agreed upon procedures and with any and all laws,
ordinances, rules, and regulations applicable to the Property and will not
engage in any activities which would violate any permit, license, or
environmental law or regulation. Buyer and any Licensee Parties will: (a)
maintain comprehensive general liability (occurrence) insurance in the amount of
Two Million and NO/100 Dollars ($2,000,000.00) covering injury, or death of one
or more persons in an occurrence, and for damage to tangible property (including
loss of use) in an occurrence, and deliver a certificate of insurance, which
names the Seller and the Property Manager as additional insureds thereunder
verifying such coverage to Seller prior to entry upon the Real Property or
Improvements; (b) promptly pay when due the costs of all entry and inspections
and examinations done with regard to the Property; and (c) restore the Real
Property and Improvements to the condition in which the same were found before
any such entry upon the Real Property and inspection or examination was
undertaken.
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SECTION 3.4 BUYER'S DUE DILIGENCE INDEMNITY. Buyer shall defend,
indemnify, and hold harmless Seller, Seller's managers, officers, partners,
shareholders and members, as applicable, and the Property Manager from and
against all losses, costs, damages, claims, and liabilities (whether arising out
of injury or death to persons or damage to the Property or otherwise) including,
but not limited to, costs of remediation, restoration and other similar
activities, mechanic's and materialmen's liens and attorneys' fees, arising out
of or in connection with Buyer's Due Diligence, Buyer's breach of its
obligations under Section 3.5 or Buyer's or any Licensee Parties' entry upon the
Real Property, unless any of the same are caused solely by the gross negligence
or willful misconduct of Seller, Seller's managers, officers, partners,
shareholders and members, as applicable, and/or the Property Manager. The
provisions of this Section 3.4 shall survive the Closing or, if the purchase and
sale is not consummated, any termination of this Agreement and shall not be
subject to the six month limitation set forth in Section 6.2.
SECTION 3.5 CONFIDENTIALITY. Buyer agrees that any information obtained
by Buyer or its attorneys, partners, accountants, lenders or investors
(collectively, for purposes of this Section 3.5, the "Permitted Outside
Parties") in the conduct of its Due Diligence shall be treated as confidential
pursuant to Section 10.11 of this Agreement. Buyer further agrees that within
its organization, or as to the Permitted Outside Parties, the Due Diligence
Items will be disclosed and exhibited only to those persons within Buyer's
organization or to those Permitted Outside Parties who are responsible for
determining the feasibility of Buyer's acquisition of the Property. Buyer agrees
not to divulge the contents of such Due Diligence Items or any other information
except in strict accordance with Sections 3.5 and 10.11 of this Agreement or as
required by applicable law. In permitting Buyer and the Permitted Outside
Parties to review the Due Diligence Items and other information to assist Buyer,
Seller has not waived any privilege or claim of confidentiality with respect
thereto, and no third party benefits or relationships of any kind, either
express or implied, have been offered, intended or created by Seller and any
such claims are expressly rejected by Seller and waived by Buyer and the
Permitted Outside Parties, for whom, by its execution of this Agreement, Buyer
is acting as an agent with regard to such waiver. Without limiting the
generality of any other provision of this Agreement, Buyer agrees that it shall,
upon the termination of this Agreement for any reason, as part of the
consideration owing to Seller, provide Seller with originals of all third party
reports, studies, appraisals and other material relating to the Property as
Buyer may have received and/or commissioned.
SECTION 3.6 DUE DILIGENCE PERIOD. Buyer may, by giving Seller and
Escrow Agent written notice on or before the end of the Due Diligence Period,
terminate its obligations hereunder without further liability except as
described in Sections 3.4, 9.7, and 10.11. If Buyer determines to proceed with
the purchase of the Property, then Buyer shall, before the end of the Due
Diligence Period, notify Seller and Escrow Agent in writing that Buyer has
approved all of the matters described in Sections 3.1 and 3.2; provided, that if
Buyer fails to give Seller such written notice, then Buyer shall be deemed to
have elected to waive its rights to terminate this Agreement. Buyer shall have
no additional time after the expiration of the Due Diligence Period to conduct
further physical Due Diligence or other examinations, inspections, testing,
studies or investigations regarding the Property.
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ARTICLE 4
TITLE AND SURVEY
SECTION 4.1 TITLE TO REAL PROPERTY. Seller shall make available to
Buyer, promptly after the Effective Date (a) a preliminary title report with
respect to the Property issued by the Title Company (the "Title Commitment"),
(b) legible copies of all recorded documents referred to on Schedule B of the
Title Commitment as exceptions to coverage (the "Title Documents"), and (c) the
Surveys.
SECTION 4.2 CERTAIN EXCEPTIONS TO TITLE. Buyer shall have the right to
object in writing to any title matters which are disclosed in the Title
Commitment or Survey within a period of time commencing on the Effective Date
and ending on the later of (a) the expiration of the Due Diligence Period, and
(ii) ten (10) days after the receipt of the Title Commitment and the Title
Documents. Any exceptions which are timely objected to by Buyer shall be herein
collectively called the "Title Objections." Seller may elect (but shall not be
obligated) to remove or cause to be removed, or insured over, (subject to
Buyer's reasonable approval) at its expense, any Title Objections, and shall be
entitled to a reasonable adjournment of the Closing (not to exceed thirty (30)
days) for the purpose of such removal, which removal will be deemed effected by
the issuance of title insurance eliminating or insuring against the effect of
the Title Objections (subject to Buyer's reasonable approval). Seller shall
notify Buyer in writing within ten (10) days after receipt of Buyer's notice of
Title Objections whether Seller elects to remove the same. If Seller is unable
to remove or endorse over any Title Objections prior to the Closing, or if
Seller elects not to remove one or more Title Objections, Buyer may elect to
either (a) terminate this Agreement by giving written notice to Seller and
Escrow Agent on or before the later of the end of the Due Diligence Period, or
five (5) business days after Seller's notice of its election to cure, in which
event the Deposit shall be paid to Buyer and, thereafter, the parties shall have
no further rights or obligations hereunder except for those obligations which
expressly survive the termination of this Agreement as set forth in Sections
3.4, 9.7 and 10.11, or (b) waive such Title Objections, in which event such
Title Objections shall be deemed additional "Permitted Exceptions" and the
Closing shall occur as herein provided without any reduction of or credit
against the Purchase Price. If before the end of the Due Diligence Period, Buyer
fails to give Seller and Escrow Agent such written notice, then Buyer shall be
deemed to have elected to waive such Title Objections and its right to terminate
this Agreement pursuant to this Section. Notwithstanding the foregoing, Seller
shall be obligated at Closing to cause the release of the liens of any financing
obtained by Seller which are secured by the Property. Items not objected to by
Buyer during the time frame set forth in Section 4.2 shall be "Permitted
Exceptions."
SECTION 4.3 TITLE INSURANCE. At Closing, the Title Company shall, as a
condition precedent to the Buyer's obligation hereunder, issue to Buyer or be
irrevocably committed to issue to Buyer an extended coverage ALTA owner's form
title policy (the "Title Policy"), in the amount of the Purchase Price, insuring
that fee simple title to the Real Property is vested in Buyer subject only to
the Permitted Exceptions. Buyer shall be entitled to request that the Title
Company provide such endorsements (or amendments) to the Title Policy as Buyer
may reasonably require, provided that (a) such endorsements (or amendments)
shall be at no cost to, and shall impose no additional liability on, Seller, (b)
Buyer's obligations under this Agreement shall not be conditioned upon Buyer's
ability to obtain such endorsements and, if Buyer is unable
9
to obtain such endorsements, Buyer shall nevertheless be obligated to proceed to
close the transaction contemplated by this Agreement without reduction of or set
off against the Purchase Price, and (c) the Closing shall not be delayed as a
result of Buyer's request.
ARTICLE 5
REMEDIES AND DEPOSIT INSTRUCTIONS
SECTION 5.1 PERMITTED TERMINATION; SELLER DEFAULT. If the sale of the
Property is not consummated due to the permitted termination of this Agreement
by Buyer as herein expressly provided, the Deposit shall be returned to Buyer.
If the sale of the Property is not consummated due to Seller's default
hereunder, Buyer shall be entitled, as its sole remedy, either (a) to receive
the return of the Deposit, or (b) to enforce specific performance of this
Agreement. Buyer expressly waives its rights to seek any damages in the event of
Seller's default hereunder. Buyer shall be deemed to have elected to terminate
this Agreement and receive back the Deposit and be reimbursed for expenses to
the extent provided in said item (a) if Buyer fails to file suit for specific
performance against Seller in a court prescribed by Section 10.5 hereof, on or
before sixty (60) days following the date upon which closing was to have
occurred.
SECTION 5.2. BUYER DEFAULT; LIQUIDATED DAMAGES. IF THE SALE IS NOT
CONSUMMATED DUE TO ANY DEFAULT BY BUYER HEREUNDER, THEN SELLER SHALL RETAIN THE
DEPOSIT AS LIQUIDATED DAMAGES, WHICH RETENTION SHALL OPERATE TO TERMINATE THIS
AGREEMENT AND RELEASE BUYER FROM ANY AND ALL LIABILITY HEREUNDER, EXCEPT AS
PROVIDED IN SECTIONS 3.4, 9.7, AND 10.11. THE PARTIES HAVE AGREED THAT SELLER'S
ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER'S
DEFAULT, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER
NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES
EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A
REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. BY
PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF
THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY
COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT
BUYER'S INDEMNITY OBLIGATIONS UNDER SECTIONS 3.4, 9.7, AND 10.11.
Initials: Seller _______ Buyer _______
SECTION 5.3 DEPOSIT INSTRUCTIONS. The Escrow Agent joins herein below
to evidence its agreement to hold such funds in accordance with the terms and
conditions of this Agreement. Further, the following provisions shall control
with respect to the rights, duties and liabilities of the Escrow Agent.
10
The Escrow Agent acts hereunder as a depository only and is not
responsible or liable in any manner whatsoever for the (i) sufficiency,
correctness, genuineness or validity of any written instrument, notice or
evidence of a party's receipt of any instruction or notice which is received by
the Escrow Agent, or (ii) identity or authority of any person executing such
instruction notice or evidence.
The Escrow Agent shall have no responsibility hereunder except for the
performance by it in good faith of the acts to be performed by it hereunder, and
the Escrow Agent shall have no liability except for its own willful misconduct
or gross negligence.
The Escrow Agent shall be reimbursed on an equal basis by Buyer and
Seller for any reasonable expenses incurred by the Escrow Agent arising from a
dispute with respect to the amount held in escrow, including the cost of any
legal expenses and court costs incurred by the Escrow Agent, should the Escrow
Agent deem it necessary to retain an attorney with respect to the disposition of
the amount held in escrow.
In the event of a dispute between the parties hereto with respect to
the disposition of the amount held in escrow, the Escrow Agent shall be
entitled, at its own discretion, to deliver such amount to an appropriate court
of law pending resolution of the dispute.
The Escrow Agent shall invest the amount in escrow in accounts which
are federally insured, which invest solely in government securities, or which
are reasonably satisfactory to Seller, and shall be applied in accordance with
the terms of this Agreement.
SECTION 5.4 DESIGNATION OF REPORTING PERSON. In order to assure
compliance with the requirements of Section 6045 of the Internal Revenue Code of
1986, as amended (for purposes of this Section 5.4, the "Code"), and any related
reporting requirements of the Code, and Section 18643 of the California Revenue
and Taxation Code (for purposes of this Section 5.4, the "R&T Code") the parties
hereto agree as follows:
(a) Provided the Escrow Agent shall execute a statement in writing
(in form and substance reasonably acceptable to the parties hereunder) pursuant
to which it agrees to assume all responsibilities for information reporting
required under Section 6045(e) of the Code and Section 18643 of the R&T Code,
Seller and Buyer shall designate the Escrow Agent as the person to be
responsible for all information reporting under Section 6045(e) of the Code (the
"Reporting Person") and Section 18643 of the R&T Code. If the Escrow Agent
refuses to execute a statement pursuant to which it agrees to be the Reporting
Person, Seller and Buyer shall agree to appoint another third party as the
Reporting Person.
(a) Seller and Buyer hereby agree:
(i) to provide to the Reporting Person all information
and certifications regarding such party, as reasonably requested by the
Reporting Person or otherwise required to be provided by a party to the
transaction described herein under Section 6045 of the Code; and
(ii) to provide to the Reporting Person such party's
taxpayer identification number and a statement (on Internal Revenue
Service Form W-9 or an acceptable
11
substitute form, or on any other form the applicable current or future
Code sections and regulations might require and/or any form requested
by the Reporting Person), signed under penalties of perjury, stating
that the taxpayer identification number supplied by such party to the
Reporting Person is correct.
(b) Each party hereto agrees to retain this Agreement for not less
than four years from the end of the calendar year in which the Closing occurred,
and to produce it to the Internal Revenue Service upon a valid request therefor.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER
SECTION 6.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Subject to the
provisions of Sections 6.2 and 7.5 and except for those matters described in
Exhibit "B" (the "Disclosure Items") for which Seller makes no representations
or warranties of any kind and for which Seller shall have no liability or
obligation to Buyer of any kind whatsoever, Seller makes the following
representations and warranties with respect to the Property:
(a) STATUS. Seller is a limited liability company duly organized
or formed, validly existing and in good standing under the laws of the State of
Delaware and is qualified to transact business in the State of California.
(b) AUTHORITY. The execution and delivery of this Agreement and
the performance of Seller's obligations hereunder have been or will be duly
authorized by all necessary action on the part of Seller, and this Agreement
constitutes the legal, valid and binding obligation of Seller, subject to
equitable principles and principles governing creditors' rights generally.
(c) NON-CONTRAVENTION. The execution and delivery of this
Agreement by Seller and the consummation by Seller of the transactions
contemplated hereby will not, to Seller's knowledge (i) violate any judgment,
order, injunction, decree, regulation or ruling of any court or Governmental
Entity or (ii) conflict with, result in a breach of, or constitute a default
under the organizational documents of Seller, any note or other evidence of
indebtedness, any mortgage, deed of trust or indenture, or any lease or other
material agreement or instrument to which Seller is a party or by which Seller
may be bound.
(d) SUITS AND PROCEEDINGS. To Seller's knowledge, there are no
legal actions, suits or similar proceedings pending and served, or threatened in
writing against Seller or the Property which (i) are not adequately covered by
existing insurance or (ii) if adversely determined, would adversely affect the
value of the Property, the continued operations thereof, or Seller's ability to
consummate the transactions contemplated hereby or (iii) which could impose
liability or material legal costs on Buyer as a result of its ownership of the
Property.
(e) NON-FOREIGN ENTITY. Seller is not a "foreign person" or
"foreign corporation" as those terms are defined in the Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder.
12
(f) CONSENTS. No consent, waiver, approval or authorization is
required from any person or entity (that has not already been obtained) in
connection with the execution and delivery of this Agreement by Seller or the
performance by Seller of the transactions contemplated hereby.
(g) CONDEMNATION. To Seller's knowledge, Seller has not received
any written condemnation notice with respect to all or part of the Property, and
no action in condemnation of the Property is currently pending.
(h) BANKRUPTCY. Seller has not (i) commenced a voluntary case, or
had entered against it a petition, for relief under any federal bankruptcy act
or any similar petition, order or decree under any federal or state law or
statute relative to bankruptcy, insolvency or other relief for debtors, (ii)
caused, suffered or consented to the appointment of a receiver, trustee,
administrator, conservator, liquidator or similar official in any federal, state
or foreign judicial or non-judicial proceedings, to hold, administer and/or
liquidate all or substantially all of its property, or (iii) made an assignment
for the benefit of creditors.
(i) ENVIRONMENTAL. Except as disclosed in that certain Toxic
Hazard Assessment for the Del Aire Project Site in Los Angeles County, CA, dated
as of March 6, 1987, Seller does not have knowledge of the presence of any
material Hazardous Materials on the Property in violation of Environmental Laws.
(j) COMPLIANCE WITH LAWS. Seller has not received written notice
that the Property is in material continuing violation of any laws respecting the
Property or the Building situated thereon except as specifically disclosed in
Exhibit B hereto.
(k) NO LEASES. To Seller's knowledge, there are no leases,
licenses or occupancy agreements (other than those which can be terminated with
notice, or which are for a term of 30 days or less (e.g., janitorial or
landscaping contracts)) respecting the Property, or any part thereof, which will
survive Closing.
(l) CONSTRUCTION. The building on the Property has been completed
substantially in accordance with the plans and specifications provided by Seller
to Buyer. The building systems are in good working order and condition.
SECTION 6.2 LIMITED LIABILITY. The representations and warranties of
Seller set forth in Section 6.1 (except for representation in 6.1(i) which shall
survive for a period of twelve months), together with Seller's liability for any
breach before Closing of any of Seller's interim operating covenants under
Article 8, will survive the Closing for a period of six (6) months. Buyer will
not have any right to bring any action against Seller as a result of any untruth
or inaccuracy of such representations and warranties, or any such breach, unless
and until the aggregate amount of all liability and losses arising out of any
such untruth or inaccuracy, or any such breach, exceeds One Hundred Thousand
Dollars ($100,000.00), and then only to the extent of such excess. In addition,
in no event will Seller's liability for all such breaches exceed, in the
aggregate, Five Million Dollars ($5,000,000.00). Seller shall have no liability
with respect to any of Seller's representations, warranties and covenants herein
if, prior to the Closing, Buyer has actual knowledge of a specific breach of a
representation, warranty or covenant of Seller
13
herein, or Buyer obtains actual written knowledge (from whatever source,
including, without limitation, written disclosure by Seller or Seller's agents
and employees) that contradicts any of Seller's representations and warranties
herein, and Buyer nevertheless consummates the transaction contemplated by this
Agreement. Sections 3.4, 9.7 and 10.11 will survive Closing without limitation
unless a specified period is otherwise provided in this Agreement. All other
representations, warranties, covenants and agreements made or undertaken by
Seller under this Agreement, unless otherwise specifically provided herein, will
not survive the Closing Date but will be merged into the Deed and other Closing
documents delivered at the Closing.
SECTION 6.3 SELLER'S KNOWLEDGE. For purposes of this Agreement and any
document delivered at Closing, whenever the phrase "to Seller's knowledge," or
the "knowledge" of any Seller or words of similar import are used, they shall be
deemed to refer to facts within the actual knowledge only of ▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and facts known (or which should be known) by such persons as a
result of their review of Seller's files by such persons in the ordinary course
of their performance of their job duties prior to Closing, without duty of
further inquiry.
SECTION 6.4 LIABILITY OF REPRESENTATIONS AND WARRANTIES. Buyer
acknowledges that the individuals named above are named solely for the purpose
of defining and narrowing the scope of Seller's knowledge and not for the
purpose of imposing any liability on or creating any duties running from such
individuals to Buyer. Buyer covenants that it will bring no action of any kind
against such individuals, any shareholder, manager, officer partner or member of
Seller, as applicable, or related to or arising out of these representations and
warranties.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BUYER
SECTION 7.1 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents
and warrants to Seller the following:
(a) STATUS. Buyer is a California corporation duly organized and
validly existing under the laws of the State of California and is qualified to
transact business in the State of California
(b) AUTHORITY. The execution and delivery of this Agreement and
the performance of Buyer's obligations hereunder have been or will be duly
authorized by all necessary action on the part of Buyer and this Agreement
constitutes the legal, valid and binding obligation of Buyer, subject to
equitable principles and principles governing creditors' rights generally.
(c) NON-CONTRAVENTION. The execution and delivery of this
Agreement by Buyer and the consummation by Buyer of the transactions
contemplated hereby will not violate any judgment, order, injunction, decree,
regulation or ruling of any court or Governmental Entity or conflict with,
result in a breach of, or constitute a default under the organizational
documents of Buyer, any note or other evidence of indebtedness, any mortgage,
deed of trust or indenture, or any lease or other material agreement or
instrument to which Buyer is a party or by which it is bound.
14
(d) CONSENTS. No consent, waiver, approval or authorization is
required from any person or entity (that has not already been obtained) in
connection with the execution and delivery of this Agreement by Buyer or the
performance by Buyer of the transactions contemplated hereby.
(e) BANKRUPTCY. Buyer has not (i) commenced a voluntary case, or
had entered against it a petition, for relief under any federal bankruptcy act
or any similar petition, order or decree under any federal or state law or
statute relative to bankruptcy, insolvency or other relief for debtors, (ii)
caused, suffered or consented to the appointment of a receiver, trustee,
administrator, conservator, liquidator or similar official in any federal, state
or foreign judicial or non-judicial proceeding, to hold, administer and/or
liquidate all or substantially all of its property, or (iii) made an assignment
for the benefit of creditors.
SECTION 7.2 INTENTIONALLY OMITTED.
SECTION 7.3 BUYER'S INDEPENDENT INVESTIGATION.
Buyer has been given, or will be given before the end of the Due
Diligence Period, a full opportunity to inspect and investigate each and every
aspect of the Property, either independently or through agents of Buyer's
choosing, including, without limitation:
(a) All matters relating to title, together with all governmental
and other legal requirements such as taxes, assessments, zoning, use permit
requirements, and building codes;
(b) The physical condition and aspects of the Property, including,
without limitation, the interior, the exterior, the square footage within the
improvements on the Real Property and within each space therein, the structure,
the paving, the utilities, and all other physical and functional aspects of the
Property, including, without limitation, an examination for the presence or
absence of Hazardous Materials, which shall be performed or arranged by Buyer at
Buyer's sole expense;
(c) Any easements and/or access rights affecting the Property;
(d) Intentionally Omitted;
(e) The Contracts, the Licenses and Permits, the Commission
Agreements and any other documents or agreements of significance affecting the
Property; and
(f) All other matters of material significance affecting the
Property or delivered to Buyer by Seller in accordance with Article 3 of this
Agreement, or which Buyer otherwise reasonably considers to be relevant to the
acquisition of the Property.
THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED
BETWEEN SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER
AND BUYER, AND BUYER HAS CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE
PROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTION 6.1 HEREOF AS SUCH MAY
BE LIMITED BY SECTION 6.2 HEREOF, BUYER HAS NOT RELIED UPON
15
AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR
WARRANTY OF SELLER OR ANY OF SELLER'S AGENTS OR REPRESENTATIVES, AND BUYER
HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. SELLER
SPECIFICALLY DISCLAIMS, AND NEITHER IT NOR ANY OTHER PERSON IS MAKING, ANY
REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY
SELLER OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE
MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY
PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS
WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR
A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO
MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE
STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BUYER FOR
DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, LATENT OR PATENT, WITH
RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL
CONDITION OR PROSPECTS OF THE PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF
THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, IT BEING
THE EXPRESS INTENTION OF SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO BUYER IN ITS
PRESENT CONDITION AND STATE OF REPAIR, "AS IS" AND "WHERE IS", WITH ALL FAULTS.
BUYER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED BUYER
OF REAL ESTATE, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF
BUYER'S CONSULTANTS IN PURCHASING THE PROPERTY. BUYER ACKNOWLEDGES AND AGREES
THAT IT WILL HAVE THE OPPORTUNITY TO CONDUCT SUCH INSPECTIONS, INVESTIGATIONS
AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS,
INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF,
DURING THE DUE DILIGENCE PERIOD AND WILL RELY UPON SAME AND NOT UPON ANY
STATEMENTS OF SELLER OR OF ANY MEMBER, MANAGER, OFFICER, DIRECTOR, AGENT OR
ATTORNEY OF SELLER EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
ARTICLE 8
MAINTENANCE OF PROPERTY
From the date hereof until the Closing, and except as otherwise
consented to or approved by Buyer, Seller covenants and agrees with Buyer as
follows:
SECTION 8.1 INTENTIONALLY OMITTED.
SECTION 8.2 INTENTIONALLY OMITTED.
SECTION 8.3 INTENTIONALLY OMITTED.
16
SECTION 8.4 CERTAIN INTERIM OPERATING COVENANTS. Seller covenants to
Buyer that Seller will, from the Effective Date until Closing: (a) continue to
operate, manage and maintain the Improvements located on the Property in the
ordinary course of Seller's business and substantially in accordance with
Seller's present practice, subject to ordinary wear and tear and further subject
to Section 10.2; (b) maintain fire and extended coverage insurance on the
Property which is at least equivalent in all material respects to the insurance
policies covering the Land and the Improvements of such Property as of the
Effective Date; and (c) not enter into any lease or occupancy agreements (other
than those terminable upon notice or those with a term of thirty (30) days or
less) of any kind or any new contract for the provision of goods or services to
or with respect to the Property or renew, extend, modify or replace any of the
Contracts other than in the ordinary course of business or unless such contract
is terminable as of the Closing Date without payment of any fees or penalty or
unless Seller pays such fees or penalties or Buyer consents thereto in writing,
which approval shall not be unreasonably withheld, delayed or conditioned. In
addition, the Seller shall terminate any management agreement with the Property
Manager with respect to the Property effective as of the Closing Date and pay
any and all costs and expenses of termination thereof.
SECTION 8.5 INSURANCE. Seller shall continue to carry its existing
insurance, or substantially comparable insurance, through the Closing Date.
ARTICLE 9
CLOSING AND CONDITIONS
SECTION 9.1 ESCROW INSTRUCTIONS. Upon execution of this Agreement, the
parties hereto shall deposit an executed counterpart of this Agreement with the
Title Company, and this Agreement shall serve as escrow instructions to the
Title Company as the escrow holder for consummation of the purchase and sale
contemplated hereby. Seller and Buyer agree to execute such reasonable
additional and supplementary escrow instructions as may be appropriate to enable
the Title Company to comply with the terms of this Agreement; provided, however,
that in the event of any conflict between the provisions of this Agreement and
any supplementary escrow instructions, the terms of this Agreement shall
control.
SECTION 9.2 CLOSING. The closing hereunder ("Closing") shall be held
and delivery of all items to be made at the Closing under the terms of this
Agreement shall be made through escrow at Escrow Agent's office on the date that
is fifteen (15) days after the expiration of the Due Diligence Period, or, if
such date is not a business day, on the immediately succeeding business day,
provided that in any case, subject to Seller's limited rights hereunder to
extend the Closing, the Closing must occur by no later than March 11, 2003 (the
"Closing Date"). Such date may not be extended without the prior written
approval of both Seller and Buyer. No later than 10:00 a.m. Pacific Time on the
Closing Date, Buyer shall deposit in escrow with the Escrow Agent the balance of
the Purchase Price (subject to adjustments described in Section 9.6), together
with all other costs and amounts to be paid by Buyer at the Closing pursuant to
the terms of this Agreement, by Federal Reserve wire transfer of immediately
available funds to an account to be designated by the Escrow Agent. No later
than 11:00 a.m. Pacific Time on the
17
Closing Date, (a) Buyer will cause the Escrow Agent to (i) pay to Seller by
Federal Reserve wire transfer of immediately available funds to an account
designated by Seller, the balance of the Purchase Price (subject to adjustments
described in Section 9.6), less any costs or other amounts to be paid by Seller
at Closing pursuant to the terms of this Agreement, and (ii) pay all appropriate
payees the other costs and amounts to be paid by Buyer at Closing pursuant to
the terms of this Agreement and (b) Seller will direct the Escrow Agent to pay
to the appropriate payees out of the proceeds of Closing payable to Seller, all
costs and amounts to be paid by Seller at Closing pursuant to the terms of this
Agreement. It shall constitute a condition precedent to Seller's obligations to
consummate the Closing hereunder that all of the material representations,
warranties, covenants, and agreements of Buyer contained in Section 7.1 shall be
true and correct and/or shall have been performed, as the case may be, in all
material respects.
SECTION 9.3 SELLER'S CLOSING DOCUMENTS AND OTHER ITEMS. At or before
Closing, Seller shall deposit into escrow the following items:
(a) A duly executed and acknowledged Grant Deed for the Property
in the form attached hereto as Exhibit "D" (the "Deed");
(b) Two duly executed counterparts of a ▇▇▇▇ of Sale for the
Property in the form attached hereto as Exhibit "E" (the "▇▇▇▇ of Sale");
(c) Two (2) duly executed counterparts of an Assignment and
Assumption of Contracts, Warranties and Guaranties, and Other Intangible
Property for the Property in the form attached hereto as Exhibit "F" (the
"Assignment and Assumption of Contracts");
(d) An affidavit pursuant to Section l445(b)(2) of the Code, and
on which Buyer is entitled to rely, that Seller is not a "foreign person" within
the meaning of Section l445(f)(3) of the Code, together with a corresponding
affidavit pursuant to the corresponding provisions of the California Revenue and
Taxation Code;
(e) Duly completed and signed real estate transfer tax
declarations for each Property;
(f) Such other documents as may be reasonably required by the
Title Company or as may be agreed upon by Seller and Buyer to consummate the
purchase of the Property as contemplated by this Agreement;
(g) Documentation to establish Title Company's reasonable
satisfaction the due authority of Seller's sale of the Property to Buyer
pursuant to the terms hereof, and Seller's delivery of the documents required to
be delivered by Seller pursuant to this Agreement (including, but not limited
to, the organizational documents of Seller, as they may have been amended from
time to time, resolutions of Seller and incumbency certificates of Seller); and
(h) A certificate from Seller that each of the representations and
warranties contained in Section 6.1 hereof are true and correct as set forth
herein as of the Closing Date, or, if not, setting forth any discrepancy.
SECTION 9.4 BUYER'S CLOSING DOCUMENTS AND OTHER ITEMS. At or before
Closing, Buyer shall deposit into escrow the following items:
18
(a) The balance of the Purchase Price and such additional funds as
are necessary to close this transaction;
(b) Two (2) duly executed counterparts of the ▇▇▇▇ of Sale for the
Property;
(c) Two (2) duly executed counterparts of the Assignment and
Assumption of Contracts for the Property;
(d) Documentation to establish Title Company's reasonable
satisfaction the due authority of Buyer's acquisition of the Property and
Buyer's delivery of the documents required to be delivered by Buyer pursuant to
this Agreement (including, but not limited to, the organizational documents of
Buyer, as they may have been amended from time to time, resolutions of Buyer and
incumbency certificates of Buyer);
(e) Duly completed and signed real estate transfer tax
declarations for each Property; and
(f) Such other documents as may be reasonably required by Seller
or the Title Company or as may be agreed upon by Seller and Buyer to consummate
the purchase of the Property as contemplated by this Agreement.
SECTION 9.5 INTENTIONALLY OMITTED.
SECTION 9.6 PRORATIONS AND CLOSING COSTS.
(a) Seller and Buyer agree to adjust, as of 11:59 p.m. on the day
immediately preceding the Closing Date, the following (collectively, the
"Proration Items"): real estate and personal property taxes and assessments,
utility bills (except as hereinafter provided), and all other revenues and
expenses payable to or by the owner of the Property. Seller will be charged and
credited for the amounts of all of the Proration Items relating to the period up
to and including 11:59 p.m. on the day immediately preceding the Closing Date,
and Buyer will be charged and credited for all of the Proration Items relating
to the period after the Closing Date. Such preliminary estimated Closing
prorations shall be set forth on a preliminary closing statement to be prepared
by Seller and submitted to Buyer for Buyer's reasonable approval prior to the
Closing Date (the "Closing Statement"). The Closing Statement, once agreed upon,
shall be signed by Buyer and Seller and delivered to the Escrow Agent for
purposes of making the preliminary proration adjustment at Closing subject to
the final cash settlement provided for below. The preliminary proration shall be
paid at Closing by Buyer to Seller (if the preliminary prorations result in a
net credit to Seller) or by Seller to Buyer (if the preliminary prorations
result in a net credit to Buyer) by increasing or reducing the cash to be
delivered by Buyer in payment of the Purchase Price at the Closing. If the
actual amounts of the Proration Items are not known as of the Closing Date, the
prorations will be made at Closing on the basis of the best evidence then
available; thereafter, when actual figures are received (not to exceed 120 days
after closing), re-prorations will be made on the basis of the actual figures,
and a final cash settlement will be made between Seller and Buyer. No prorations
will be made in relation to insurance premiums, and Seller's insurance policies
will not be assigned to Buyer. Final readings and final ▇▇▇▇▇▇▇▇ for utilities
will be made if possible as of the Closing Date, in which event no proration
will be made at Closing with respect to utility bills. Seller will be entitled
to
19
all deposits presently in effect with the utility providers, and Buyer will
be obligated to make its own arrangements for deposits with the utility
providers. The provisions of this Section 9.6(a) will survive the Closing for
twelve (12) months.
(b) Buyer shall receive a credit against the Purchase Price at
Closing for all payments due or owing under any Contracts for periods prior to
the Closing Date, which amounts shall be prorated as of 11:59 p.m. of the day
immediately preceding the Closing Date. If Seller has paid any amounts under any
Service Contracts for periods after 11:59 p.m. of the day immediately preceding
the Closing Date, Buyer shall pay such amounts to Seller at Closing in addition
to the Purchase Price.
(c) Seller shall pay (a) one-half of the Escrow Agent's escrow
fee, (b) the premium for the CLTA portion of the Title Policy and any
endorsement to cure title defects requested by Seller, and agreed to by Buyer,
under Section 4.3, (c) recording fees in connection with any reconveyance
requested hereby, (d) all state and county transfer taxes and (e) any additional
costs and charges customarily charged to sellers in accordance with common
escrow practices in the county in which the Property is located, other than
those costs and charges specifically required to be paid by Buyer hereunder.
Buyer shall pay (a) one-half of the Escrow Agent's escrow fee, (b) the premium
for the ALTA portion of the Title Policy and the costs of any endorsements Buyer
may require in accordance with Section 4.3 (other than the cost of endorsements
required to cure title defects, and agreed to by Seller), (c) the recording fees
required in connection with the transfer of the Property to Buyer, and (d) any
additional costs and charges customarily charged to buyers in accordance with
common escrow practices in the county in which the Property is located, other
than those costs and charges specifically required to be paid by Seller
hereunder. In addition to the foregoing, Seller shall be responsible for any
costs of updating the Surveys of the Property or otherwise conforming the
Surveys to the requirements for issuance of such Title Policy or for any new
survey that may be required for issuance of such Title Policy.
SECTION 9.7 BROKERS. Buyer hereby represents and warrants to Seller
that it did not employ or use any broker or finder to arrange or bring about
this transaction other than The Goodglick Company, and that there are no claims
or rights for brokerage commissions or finder's fees in connection with the
transactions contemplated by this Agreement, other than the commission
("Broker's Commission") required to be paid by Seller to Broker pursuant to a
separate agreement between Seller and Broker. Seller represents and warrants to
Buyer only (nothing in this provision nor any other provision of this Agreement
being intended to create any rights on the part of any third party beneficiary,
or to create any third party beneficiary) that Seller has not employed any
broker with respect to this transaction, other than CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, and Seller
shall only pay the Broker's Commission. Seller hereby represents and warrants to
Buyer that it did not employ or use any broker or finder to arrange or bring
about this transaction, and that there are no claims or rights for brokerage
commissions or finder's fees in connection with the transactions contemplated by
this Agreement, other than the Broker's Commission required to be paid by Seller
to Broker pursuant to a separate agreement between Buyer and Broker. If any
person brings a claim for a commission or finder's fee based upon any contact,
dealings, or communication with Buyer in connection with the transactions
contemplated by this Agreement, other than The Goodglick Company, then Buyer
shall defend Seller from such claim, and shall indemnify Seller and hold Seller
harmless from any and all
20
costs, damages, claims, liabilities, or expenses (including, without limitation,
reasonable attorneys' fees and disbursements) incurred by Seller with respect to
the claim. The provisions of this Section 9.7 shall survive the Closing or, if
the purchase and sale is not consummated, any termination of this Agreement, and
shall not be subject to the six month limitation set forth in Section 6.2.
SECTION 9.8 EXPENSES. Except as provided in Sections 9.6 and 9.7, each
party hereto shall pay its own expenses incurred in connection with this
Agreement and the transactions contemplated hereby, including, without
limitation, in the case of Buyer, all third-party engineering and environmental
review costs, its inspection costs, attorney costs, due diligence costs, etc.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 AMENDMENT AND MODIFICATION. Subject to applicable law,
this Agreement may be amended, modified, or supplemented only by a written
agreement signed by Buyer and Seller.
SECTION 10.2 RISK OF LOSS/CONDEMNATION AND INSURANCE
PROCEEDS/CONDEMNATION AWARDS.
(a) MINOR LOSS/CONDEMNATION. Buyer shall be bound to purchase the
Property for the full Purchase Price 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, or the
diminution in the value of the remaining Property as a result of a partial
condemnation, equals $250,000 or less, and (b) upon the Closing, there shall be
a credit against the Purchase Price due hereunder equal to the greater or (i)
the amount of any insurance proceeds or condemnation awards collected by Seller
as a result of any such damage or destruction or condemnation, plus the amount
of any insurance deductible, less any sums expended by Seller toward the
restoration or repair of the Property, including barricades and other temporary
repairs required for safety purposes, or in collecting such insurance proceeds
or condemnation awards, or (ii) the amount necessary to restore such damage;
provided, however, that if the amount referenced in clause (ii) is higher than
that referenced in clause (i) by more than ten thousand dollars ($10,000),
Seller shall have the right to terminate this Agreement unless Buyer accepts a
credit of the amount referenced in clause (i). If the proceeds or awards have
not been collected as of the Closing, then such proceeds or awards shall be
assigned to Buyer, except to the extent needed to reimburse Seller for sums
expended to the Closing to repair or restore the Property or to collect any such
proceeds or awards.
(b) MAJOR LOSS/CONDEMNATION. If the amount of the damage or
destruction or condemnation as specified above exceeds $250,000, then Buyer may
at its option, to be exercised by written notice to Seller within ten (10)
business days of Seller's notice of the occurrence of the damage or destruction
or the commencement of condemnation proceedings, terminate this Agreement.
Buyer's failure to elect to terminate this Agreement within said ten
21
business day period shall be deemed an election by Buyer to consummate this
purchase and sale transaction. If Buyer elects to terminate this Agreement
within such ten business day period, the Deposit shall be returned to Buyer and
neither party shall have any further rights or obligations hereunder except as
provided in Sections 3.4, 9.7, and 10.11. If Buyer elects or is deemed to have
elected to proceed with the purchase, then upon the Closing, there shall be a
credit against the Purchase Price due hereunder equal to the greater of (i) the
amount of any insurance proceeds or condemnation awards collected by Seller as a
result of any such damage or destruction or condemnation, plus the amount of any
insurance deductible, less any sums expended by Seller toward the restoration or
repair of the Property, including barricades and other temporary repairs
required for safety purposes, or in collecting such insurance proceeds or
condemnation awards, or (ii) the amount necessary to restore such damage;
provided, however, that if the amount referenced in clause (ii) is higher than
that referenced in clause (i) by more than ten thousand dollars ($10,000),
Seller shall have the right to terminate this Agreement unless Buyer accepts a
credit of the amount referenced in clause (i). If the proceeds or awards have
not been collected as of the Closing, then such proceeds or awards shall be
assigned to Buyer, except to the extent needed to reimburse Seller for sums
expended prior to the Closing to repair or restore the Property, including
barricades and other temporary repairs required for safety purposes, or to
collect any such proceeds or awards.
SECTION 10.3 NOTICES. All notices required or permitted hereunder shall
be in writing and shall be served on the Parties at the following address:
If to Seller: Pacific Concourse 2, LLC,
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with Copies to: Pacific Coast Capital Partners
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: Diagnostic Products Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with Copies to: O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent: Commonwealth Land Title Company
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Any such notices may be sent by (a) certified mail, return receipt requested, in
which case notice shall be deemed delivered three (3) business days after
deposit, postage prepaid in the U.S. mail, (b) a recognized and reputable
overnight courier, in which case notice shall be deemed delivered one (1)
business day after deposit with such courier (on or prior to 5:00 p.m., Pacific
Time; if deposited after such time, it shall be deemed to have been deposited on
the next business day), or (c) facsimile transmission, in which case notice
shall be deemed delivered upon electronic verification (on or prior to 5:00
p.m., Pacific Time; if verification is received after such time, it shall be
deemed to have been delivered on the next business day) that transmission to
recipient was completed. The above addresses and facsimile numbers may be
changed by written notice to the other party; provided that no notice of a
change of address or facsimile number shall be effective until actual receipt of
such notice. Copies of notices are for informational purposes only, and a
failure to give or receive copies of any notice shall not be deemed a failure to
give notice.
SECTION 10.4 ASSIGNMENT. Buyer, at its sole discretion, has the right,
upon prior written notice to Seller, to assign all rights in this Agreement or
acquire title in the name of a majority owned subsidiary or majority owned
affiliate, and such assignee shall become the Buyer under this Agreement and the
grantee under the deed, provided, however, that any such assignment shall in no
way release Buyer from any liability under this Agreement; and provided further
that such assignee must assume the Buyer's obligations hereunder. Except as
provided above, Buyer may not assign its rights under this Agreement.
SECTION 10.5 GOVERNING LAW AND CONSENT TO JURISDICTION. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS
OF LAWS. ANY ACTION ARISING OUT OF THIS AGREEMENT MUST BE COMMENCED BY BUYER OR
SELLER IN THE STATE COURTS OF THE STATE OF CALIFORNIA, CITY OF LOS ANGELES, OR
IN U.S. FEDERAL COURT FOR THE APPLICABLE DISTRICT OF CALIFORNIA AND EACH PARTY
HEREBY CONSENTS TO THE JURISDICTION
23
OF THE ABOVE COURTS IN ANY SUCH ACTION AND TO THE LAYING OF VENUE IN THE STATE
OF CALIFORNIA, CITY OF LOS ANGELES. ANY PROCESS IN ANY SUCH ACTION SHALL BE DULY
SERVED IF MAILED BY REGISTERED MAIL, POSTAGE PREPAID, TO THE PARTIES AT THEIR
RESPECTIVE ADDRESS DESCRIBED IN SECTION 10.3 HEREOF.
SECTION 10.6 COUNTERPARTS. This Agreement may be executed in two or
more fully or partially executed counterparts, any one or more of which may be
executed and delivered by facsimile transmission, each of which will be deemed
an original binding the signer thereof against the other signing parties, but
all counterparts together will constitute one and the same instrument.
SECTION 10.7 ENTIRE AGREEMENT. This Agreement and any other document to
be furnished pursuant to the provisions hereof embody the entire agreement and
understanding of the parties hereto as to the subject matter contained herein.
There are no restrictions, promises, representations, warranties, covenants, or
undertakings other than those expressly set forth or referred to in such
documents. This Agreement and such documents supersede all prior agreements and
understandings among the parties with respect to the subject matter hereof.
SECTION 10.8 SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement, or affecting the validity or enforceability of any of the terms or
provisions of this Agreement.
SECTION 10.9 ATTORNEY FEES. If any action is brought by any party to
this Agreement to enforce or interpret its terms or provisions, the prevailing
Party will be entitled to reasonable attorney fees and costs incurred in
connection with such action prior to and at trial and on any appeal therefrom.
SECTION 10.10 PAYMENT OF FEES AND EXPENSES. Each party to this
Agreement will be responsible for, and will pay, all of its own fees and
expenses, including those of its counsel and accountants, incurred in the
negotiation, preparation, and consummation of this Agreement and the transaction
contemplated hereunder.
SECTION 10.11 CONFIDENTIAL INFORMATION. The parties acknowledge that
the transaction described herein is of a confidential nature and shall not be
disclosed except to Permitted Outside Parties or as required by law. No party
shall make any public disclosure of the specific terms of this Agreement, except
as required by law. In connection with the negotiation of this Agreement and the
preparation for the consummation of the transactions contemplated hereby, each
Party acknowledges that it will have access to confidential information relating
to the other party. Each Party shall treat such information as confidential,
preserve the confidentiality thereof, and not duplicate or use such information,
except to Permitted Outside Parties in connection with the transactions
contemplated hereby. In the event of the termination of this Agreement for any
reason whatsoever, Buyer shall return to Seller, all documents, work papers,
engineering and environmental studies and reports and all other materials
(including all copies thereof obtained from Seller in connection with the
transactions
24
contemplated hereby), and each party shall use its best efforts, including
instructing its employees and others who have had access to such information, to
keep confidential and not to use any such information. Neither Buyer nor Seller
shall issue any press release or otherwise make any public statements unless set
forth in writing by an authorized representative of the party to be bound or
required by applicable law. The provisions of this Section 10.11 shall survive
the Closing. If the purchase and sale is not consummated, the provisions of this
Section 10.11 shall survive and shall not be subject to the six month limitation
set forth in Section 6.2.
SECTION 10.12 PERFORMANCE DUE ON DAY OTHER THAN BUSINESS DAY. If the
time period for the performance of any act called for under this Agreement
expires on a Saturday, Sunday or any other day on which banking institutions in
the State of California are authorized or obligated by law or executive order to
close (a "Holiday"), the act in question may be performed on the next succeeding
day that is not a Saturday, Sunday or Holiday.
SECTION 10.13 NO JOINT VENTURE. Nothing set forth in this Agreement
shall be construed to create a joint venture between Buyer and Seller.
SECTION 10.14 NO MEMORANDUM. Buyer shall not record any memorandum
disclosing this Agreement.
SECTION 10.15 WAIVER OF JURY TRIAL. Each party to this Agreement hereby
expressly waives any right to trial by jury of any claim, demand, action or
cause of action (each, an "Action") (a) arising out of this Agreement, including
any present or future amendment thereof or (b) in any way connected with or
related or incidental to the dealings of the parties or any of them with respect
to this Agreement (as hereafter amended) or any other instrument, document or
agreement executed or delivered in connection herewith, or the transactions
related hereto or thereto, in each case whether such Action is now existing or
hereafter arising, and whether sounding in contract or tort or otherwise and
regardless of which party asserts such Action; and each party hereby agrees and
consents that any such Action shall be decided by court trial without a jury,
and that any party to this Agreement may file an original counterpart or a copy
of this section with any court as written evidence of the consent of the parties
to the waiver of any right they might otherwise have to trial by jury.
SECTION 10.16 NOT AN OFFER. Nothing set forth in this Agreement shall
be construed to create a joint venture between Buyer and Seller nor shall
presentation of drafts hereof by one party to the other be deemed an offer, and
this Agreement shall only become a binding and enforceable contract upon
execution hereof by both parties.
SECTION 10.17 LIMITED LIABILITY. Neither the members, managers,
employees or agents of Seller or Buyer, nor the shareholders, officers,
directors, employees or agents of any of them shall be liable under this
Agreement and all parties hereto shall look solely to the assets of Seller for
the payment of any claim or the performance of any obligation by Seller or
Buyer, as applicable.
SECTION 10.18 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement
is intended to benefit any third party, or create any third party beneficiary.
SECTION 10.19 TIME OF ESSENCE. Time is of the essence of this
Agreement.
25
SECTION 10.20 NO WAIVER. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver, nor
shall a waiver in any instance constitute a waiver in any subsequent instance.
No waiver shall be binding unless executed in writing by the party making the
waiver.
SECTION 10.21 FURTHER ACTS. Each party, at the request of the other,
shall execute, acknowledge or have notarized (if appropriate) and deliver in a
timely manner such additional documents, and do such other additional acts, also
in a timely manner, as may be reasonably required in order to accomplish the
intent and purposes of this Agreement.
[SIGNATURE PAGE ATTACHED]
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SELLER: PACIFIC CONCOURSE 2, LLC,
a Delaware limited liability company
By: OMP CROSSPOINTE HOLDING COMPANY, LLC,
a Delaware limited liability company
Its: Sole Member
By: PCCP LB Pacific Concourse, LLC,
a Delaware limited liability company
Its: Managing Member
By: PCCP Equities II, LLC,
a Delaware limited liability company
Its: Co-managing Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
BUYER: DIAGNOSTIC PRODUCTS CORPORATION,
a California corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: VP
ESCROW AGENT:
The Escrow Agent is executing this Agreement to evidence its agreement
to hold the Deposit and act as escrow agent in accordance with the terms and
conditions of this Agreement.
COMMONWEALTH LAND TITLE INSURANCE
COMPANY
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Escrow Manager
EXHIBIT "A"
DESCRIPTION OF LAND
EXHIBIT "B"
DISCLOSURE ITEMS
EXHIBIT B
TO COME
EXHIBIT "C"
LIST OF CONTRACTS
EXHIBIT "D"
FORM OF GRANT DEED
GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
File No. 213,685-10
MAIL TAX STATEMENTS TO:
Diagnostic Products Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
APN: ____________________________
The undersigned grantor declares:
Documentary Transfer Tax not shown pursuant to Section 11932 of the Revenue and
Taxation Code, as amended.
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
________________________, a Delaware ____________, does hereby GRANT to
______________________________________________, a ____________________, all of
that certain real property in the City of Los Angeles, County of Los Angeles,
State of California, as more particularly described in Exhibit "A" attached
hereto and made a part hereof.
Such grant is subject to all encumbrances and other matters of record,
and all non-delinquent real property taxes and assessments.
1
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed
on this ____ day of ____________, 2003.
"GRANTOR"
___________________________________________,
a Delaware _________________________________
By: ______________________________________
Name:_________________________________
Title:________________________________
2
STATE OF ___________________________)
____________________________________) ss.
COUNTY OF___________________________)
On this ____ day of ______________, 2003 before me, the undersigned a notary
public in and for said county and state, personally appeared
___________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS My Hand and Official Seal. [Seal]
___________________________
Notary Public
3
EXHIBIT "E"
FORM OF ▇▇▇▇ OF SALE
For good and valuable consideration, the receipt of which is hereby
acknowledged, ____________________, a Delaware ____________________ ("Seller"),
does hereby sell, transfer, and convey to _______________________, a
___________________ ("Buyer") any and all personal property owned by Seller and
used exclusively in connection with the operation of that certain real property
more particularly described in Exhibit "A" attached hereto (the "Personal
Property"), as such Personal Property is more particularly described in the
attached Schedule 1.
Seller has executed this ▇▇▇▇ of Sale and BARGAINED, SOLD, TRANSFERRED,
CONVEYED and ASSIGNED the Personal Property and Buyer has accepted this ▇▇▇▇ of
Sale and purchased the Personal Property AS IS AND WHEREVER LOCATED, WITH ALL
FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE,
EXPRESS, IMPLIED, OR STATUTORY, EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT
OF SALE AND PURCHASE BETWEEN SELLER AND BUYER, DATED AS OF ____________________,
2002 (AS AMENDED, REVISED AND/OR SUPPLEMENTED, THE "PURCHASE AGREEMENT") AND THE
WARRANTIES SET FORTH HEREIN, IT BEING THE INTENTION OF SELLER AND BUYER TO
EXPRESSLY NEGATE AND EXCLUDE ALL WARRANTIES WHATSOEVER, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY
PARTICULAR PURPOSE, ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR
SAMPLES OF MATERIALS, ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM
DIMINUTION OF CONSIDERATION, ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS,
WHETHER KNOWN OR UNKNOWN, LATENT OR PATENT, WITH RESPECT TO THE PROPERTY,
WARRANTIES CREATED BY AFFIRMATION OF FACT OR PROMISE AND ANY OTHER WARRANTIES
CONTAINED IN OR CREATED BY THE UNIFORM COMMERCIAL CODE AS NOW OR HEREAFTER IN
EFFECT IN THE STATE IN WHICH THE PERSONAL PROPERTY IS LOCATED, OR CONTAINED IN
OR CREATED BY ANY OTHER LAW.
1
Buyer expressly acknowledges and affirms the provisions of Sections
6.2, 7.3 and 7.4 of the Purchase Agreement.
Dated this _______ day of ____________________, 2003.
SELLER: ___________________________________________,
a Delaware ________________________________
By: _____________________________________
Name:________________________________
Title:_______________________________
BUYER: ___________________________________________,
a _________________________________________
By: _____________________________________
Name:________________________________
Title:_______________________________
2
EXHIBIT "A" TO ▇▇▇▇ OF SALE
DESCRIPTION OF REAL PROPERTY
3
Exhibit A
Legal Description
All that certain real property situated in the County of Los Angeles, State of
California, described as follows:
Parcel A:
Parcels 1 and 2 of Parcel Map No. 18568, in the County of Los Angeles, State of
California, as per map filed in Book 213 Pages 76 through 85 inclusive of maps
in the office of the county recorder of said county.
Except therefrom all oil, gas, minerals, and other Hydrocarbon Substances lying
below the surface of said land, but with no right of surface entry as provided
in deeds of record.
Parcel B:
An appurtenant, non-exclusive easement for ingress and egress purposes over that
portion of said Parcel 3 of said Parcel Map 18568 beginning at the most
Southerly corner of said Parcel 5; thence along the Southeasterly line of said
Parcel 3 of Parcel Map No. 18568, South 44(degrees) 39' 37" West, a distance of
17.50 feet to the true point of beginning; thence continuing along said
Southeasterly line South 44(degrees) 39' 37" West, a distance of 167.37 feet;
thence along the East line of said Parcel 3, South 00(degrees) 03' 33" East, a
distance of 192.22 feet; thence perpendicular to said East line, South
89(degrees) 56' 27" West, a distance of 14.00 feet; thence parallel to said East
line, North 00(degrees) 03' 33" West, a distance of 215.03 feet to a line
parallel with and distant 26.00 feet (measured at right angles) from before
Southeasterly line; thence along said parallel line, North 44(degrees) 39' 37"
East, a distance of 161.01 feet; thence perpendicular to said parallel line
South 45(degrees) 0' 23" East a distance of 26.00 feet to the true point of
beginning.
Parcel C:
An appurtenant, non-exclusive easement for ingress and egress, and light and air
purposes over the Northeasterly 17.50 feet of the Southeasterly 182.00 feet to
Parcel 3 of said Parcel Map No. 18568.
Parcel D:
An appurtenant, non-exclusive easement for ingress and egress, and light and air
purposes over the Southwesterly 17.50 feet of the Southeasterly 182.00 feet of
Parcel 5 of said Parcel Map No. 18568.
Exhibit A
Legal Description -- page 2
Parcel E:
An appurtenant, non-exclusive easement for ingress and egress purposes over a
portion of ▇▇▇▇▇▇▇ ▇, ▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇ Map No. 18568, being described as a
28.00 foot wide circular strip. The exterior line of which is contiguous with a
circle having a radius of 63.00 feet; whose radial point in the Southeast corner
of said Parcel 4.
Parcel F:
An appurtenant, non-exclusive easement for ingress, egress, surface drainage,
light and air, and utility purposes over the Southwesterly 48.,00 feet of the
Northwesterly 199.08 feet of the Southeasterly 234.08 feet of said Parcel 6.
Parcel G:
An appurtenant, A non-exclusive easement for ingress, egress, surface drainage,
light and air, and utilities purposes over the Southwesterly 15.00 feet of the
Southwesterly 48.00 feet and Southeasterly 35.00 feet of the Southwesterly 53.00
feet of Parcel 6 of said Parcel Map No. 18568.
Parcel H:
An appurtenant, nonexclusive easement for ingress, egress, surface drainage
light and air, and utilities purposes over that portion of Parcel 9 of said
Parcel Map No. 18568, lying Southwesterly and Southerly of a line that is
parallel and concentric with and 20.00 feet Northerly and Northeasterly of,
measured perpendicular and radially to the Northerly and Northeasterly line of
that area designated as "Private Driveway and Fire Lane" on Parcel 9 of said
Parcel Map No. 18568.
SCHEDULE 1 TO ▇▇▇▇ OF SALE
LIST OF PERSONAL PROPERTY
4
EXHIBIT "F"
FORM OF ASSIGNMENT AND ASSUMPTION OF CONTRACTS, WARRANTIES AND GUARANTIES,
AND OTHER INTANGIBLE PROPERTY
THIS ASSIGNMENT AND ASSUMPTION (the "Assignment") dated as of
____________________ 2003, is between ____________________, a Delaware
____________________ ("Assignor"), and ____________________, a
____________________ ("Assignee").
A. Assignor owns certain real property and certain improvements
thereon known as _______________________, and more particularly described in
Exhibit "A" attached hereto (the "Property").
B. Assignor has entered into certain contracts which are more
particularly described in Schedule l attached hereto (the "Contracts"), which
affect the Property.
C. Assignor and Assignee, entered into an Agreement of Sale and
Purchase dated as of _________________, 2002 (as amended, revised and/or
supplemented, the "Purchase Agreement"), pursuant to which Assignee agreed to
purchase the Property from Assignor and Assignor agreed to sell the Property to
Assignee, on the terms and conditions contained therein.
D. Assignor desires to assign to Assignee its interest, if any,
in the Contracts and in certain warranties, guaranties, and intangible personal
property with respect to the Property, to the extent the same are assignable,
and Assignee desires to accept the assignment thereof, on the terms and
conditions below.
ACCORDINGLY, the parties hereby agree as follows:
1. Assignor hereby assigns to Assignee all of Assignor's right,
title, and interest, if any, in and to the following, from and after the date
hereof, to the extent the same are assignable:
(a) the Contracts;
(b) any warranties and guaranties ("Warranties and
Guaranties") made by or received from any third party with respect to
any improvements owned by Assignor on the Property; and
(c) the right to use the name ____________________.
2. Assignee hereby accepts the foregoing assignment by Assignor
and assumes all of the Assignor's obligations under the Contracts from and after
the date hereof.
3. In the event of any dispute between Assignor and Assignee
arising out of the obligations of the parties under this Assignment or
concerning the meaning or interpretation of
1
any provision contained herein, the losing party shall pay the prevailing
party's costs and expenses of such dispute, including, without limitation,
reasonable attorneys' fees and costs.
4. This Assignment shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
5. This Assignment shall be governed and construed in accordance
with the laws of the State of California.
6. This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
7. Assignee hereby expressly acknowledges and affirms the
provisions of Sections 6.2, 7.3 and 7.4 of the Purchase Agreement.
2
Assignor and Assignee have executed this Agreement the day and year
first above written.
ASSIGNOR: ___________________________________________,
a Delaware ________________________________
By: _____________________________________
Name:________________________________
Title:_______________________________
ASSIGNEE: ___________________________________________,
a _________________________________________
By: _____________________________________
Name:________________________________
Title:_______________________________
3
EXHIBIT "A" TO ASSIGNMENT AND ASSUMPTION OF CONTRACTS,
WARRANTIES AND GUARANTIES, AND OTHER INTANGIBLE PROPERTY
DESCRIPTION OF REAL PROPERTY
4
SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION OF CONTRACTS,
WARRANTIES AND GUARANTIES, AND OTHER INTANGIBLE PROPERTY
LIST OF CONTRACTS
5
EXHIBIT "G"
DESCRIPTION OF EXISTING SURVEYS
EXHIBIT "H"
REIMBURSABLE CAPITAL EXPENSES
EXHIBIT "I"
DEVELOPMENT AGREEMENT
