PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
EXHIBIT 10.25
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
AND ESCROW INSTRUCTIONS
This
Agreement is dated as of February 2, 2006 (the “Effective Date”), by and
between Palm, Inc., a Delaware corporation (“Seller”), and Hunter/Storm, LLC, a California limited
liability company (“Buyer”). Buyer and Seller are individually referred to as a “Party” and
collectively as the “Parties.”
In consideration of the respective agreements hereinafter set forth, Seller and Buyer agree as
follows:
1. Property Included in Sale. Seller shall sell and convey to Buyer, and Buyer shall
purchase from Seller, subject to the terms and conditions set forth herein, the following:
1.1 Real Property. The unimproved real property located in the City of San Xxxx,
County of Santa Xxxxx, State of California, consisting of approximately thirty-six and six-tenths
(36.6) acres, which is described in EXHIBIT A attached hereto and incorporated by reference
herein (the “Real Property”); provided, however, that no representation is made by Seller as to the
size of the Real Property;
1.2 Appurtenances. All of Seller’s right, title and interest in and to all rights,
privileges and easements or other appurtenances used in connection with the beneficial use and
enjoyment of the Real Property (collectively, the “Appurtenances”); and
1.3 Intangible Property. All of Seller’s right, title and interest in and to all
intangible property related to the use or operation of the Property (defined below), including
without limitation, all licenses and permits required in connection with the operation of the
Property, all governmental zoning, use and operating permits, and all other governmental permits,
licenses, approvals, applications, subdivision maps, entitlements, certificates, rights under
development agreements, building permits, development allocations, and development rights relating
to the Real Property and all utility and other permits relating to the Real Property (collectively,
the “Intangible Property”), all of which shall, to the extent assignable, be assigned to and
assumed by Buyer pursuant to an Assignment and Assumption Agreement (the “Assignment”) in the form
attached hereto as EXHIBIT B and incorporated by reference herein. Seller shall provide
Buyer a written list of the existing Intangible Property no later than ten (10) business days
following the Effective Date. Not later than the last day of the Due Diligence Period (as defined
in paragraph 4.1 below), Buyer shall notify Seller in writing which of the foregoing items Buyer
shall want assigned to Buyer (to the extent assignable) at Close of Escrow (as defined in paragraph
7.2 below).
The Real Property, Appurtenances and Intangible Property are collectively referred to as the
“Property.”
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2. Purchase Price.
2.1 Purchase Price. The purchase price for the Property is Seventy Million Dollars
($70,000,000.00) (the “Purchase Price”). The Purchase Price shall be paid as set forth below.
2.2 Initial Deposit. Within three (3) business days after the Effective Date of this
Agreement, and as a condition to the Parties’ rights and obligations hereunder, Buyer shall deliver
into escrow with Chicago Title Company, 000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000
(“Escrow Holder” or “Title Company”), attn: Xxxxxxx XxXxxxx, a deposit in the amount of One Hundred
Thousand Dollars ($100,000) (the “Initial Deposit”). The Initial Deposit shall be refundable to
Buyer prior to the delivery of the Election Notice (as defined in paragraph 4.1) to Escrow Holder.
2.3 Additional Deposit. If Buyer elects to proceed with this Agreement, then not
later than one business day after the expiration of the Due Diligence Period, Buyer shall deliver
to Escrow Holder an additional deposit in the amount of Two Hundred Thousand Dollars ($200,000.00)
(the “Additional Deposit”), together with the Election Notice (as defined in paragraph 4.1).
Except as expressly provided herein, the Initial Deposit and the Additional Deposit shall become
non-refundable to Buyer immediately upon Buyer’s delivery of the Additional Deposit and the
Election Notice to Escrow Holder, but shall be applicable to the Purchase Price if the Closing (as
defined in paragraph 7.2 below) occurs as set forth in this Agreement. The Initial Deposit and the
Additional Deposit are referred to herein collectively as the “Deposit”.
2.4 Applied to Purchase Price. The Deposit shall be applied to the Purchase Price at
Close of Escrow.
2.5 Interest. Escrow Holder shall hold the Deposit and all other funds deposited by
Buyer into escrow pursuant to this Agreement, including, without limitation, the balance of the
Purchase Price if and when deposited into escrow in accordance with paragraph 7.4, in an interest
bearing account for the benefit of Buyer until the Close of Escrow.
2.6 Cash Balance. The balance of the Purchase Price, plus or minus prorations and
other adjustments as provided in this Agreement, if any, shall be due at Closing and shall be paid
by Buyer by wire transfer of immediately available funds paid to the Title Company one (1) business
day prior to the Closing.
3. Title to the Property. At the Closing, Seller shall convey to Buyer title to the
Real Property subject only to the Approved Exceptions (as defined in paragraph 5.1 below) by a duly
executed and acknowledged Grant Deed in Title Company’s standard form (the “Grant Deed”). At the
Closing, Title Company shall issue to Buyer a CLTA Owner’s Policy of Title Insurance in the amount
of the Purchase Price insuring fee simple title to the Property in Buyer, subject only to the
Approved Exceptions (as defined in paragraph 5.1). Buyer may elect to obtain an ALTA Extended
Owner’s Policy of Title Insurance, instead of a CLTA Owner’s Policy of Title Insurance, in the
amount of the Purchase Price subject only to the Approved Exceptions,
provided (i) Buyer shall be solely responsible for providing any survey (the “Survey”)
required by the Title Company for such
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purpose, or, if Seller has a Survey of the Real Property,
Buyer shall be entitled to use the same in which case Buyer shall be solely responsible for the
cost of updating the Survey; (ii) Buyer shall be responsible for the payment of any title insurance
premium in excess of the premium that would have been charged for a CLTA Owner’s Policy of Title
Insurance; and (iii) in no event will the issuance of the ALTA Extended Owner’s Policy of Title
Insurance delay the Closing. The CLTA Owner’s Policy of Title Insurance or, if requested by Buyer
in accordance with this paragraph, the ALTA Extended Owner’s Policy of Title Insurance to be issued
in accordance with this paragraph 3 is referred to as the “Title Policy.”
4. Due Diligence and Time for Satisfaction of Conditions; Right of Entry.
4.1 Due Diligence Period. Buyer, and/or its agents, members, partners, related and
affiliated entities, employees, representatives, consultants, contractors, successors or assigns
(collectively, “Buyer’s Agents”), shall have until 5:00 p.m., Pacific Time, on the date that is
sixty (60) days after the Effective Date (the “Due Diligence Period”) in which to examine, inspect,
and investigate the Property, and to determine whether the purchase of the Property is satisfactory
to Buyer, in its sole and absolute discretion. If Buyer does not give Seller and Escrow Holder
written notice of Buyer’s election to proceed with this Agreement (the “Election Notice”) prior to
the expiration of the Due Diligence Period, then Buyer shall be deemed to have elected to terminate
this Agreement, in which case Escrow Holder shall immediately return the Initial Deposit to Buyer,
this Agreement shall terminate and neither Party shall have any further obligation to the other
hereunder, except as provided in paragraph 4.2 below and except for the waivers, releases,
Information (as defined below), indemnity and insurance obligations of the Buyer and Seller that
are stated to survive the termination of this Agreement (the “Surviving Obligations”). In such
event, Buyer shall deliver to Seller all information, materials and data (collectively, the
“Information”) that Buyer and/or its Agents discover, obtain or generate in connection with or
resulting from Buyer’s investigation of the Property (including, without limitation, any Inspection
conducted pursuant to paragraph 4.2 below), other than internal analyses produced by Buyer of a
proprietary nature or matters subject to the attorney-client privilege, and neither Buyer nor
Seller shall thereafter have any further rights or obligations under this Agreement unless
expressly provided otherwise herein. The Information shall be delivered to Seller on an “as-is with
all faults basis” and without any representation or warranty as to the accuracy or completeness
thereof.
4.1.1 Extended Due Diligence Period. Notwithstanding the foregoing, if the Condition
Precedent set forth in paragraph 5.1.5 has not been satisfied on or before the expiration of the
Due Diligence Period, Buyer shall have the right to extend the Due Diligence Period for an
additional period of one hundred twenty (120) days (the “Extended Due Diligence Period”) solely for
the purpose of satisfying the Condition Precedent set forth in paragraph 5.1.5. If Buyer elects to
extend the Due Diligence Period as provided above, Buyer shall notify Seller in writing (the
“Extension Notice”) on or before the last day of the Due Diligence Period of its election to do so.
Furthermore, as a condition to the extension of the Due Diligence Period, Buyer shall (i)
concurrently with the delivery of the Extension Notice (or as part of the Extension Notice) deliver
to Seller and Escrow Holder the Election Notice (which shall state that Buyer approves or waives
the Conditions Precedent set forth in paragraphs 5.1.2 and 5.1.3, and (ii) within one business day
after the expiration
of the Due Diligence Period deliver the Additional Deposit to Escrow Holder. If Buyer does not
give Seller and Escrow Holder written notice of Buyer’s election to proceed with this
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Agreement (the “Second Election Notice”) prior to the expiration of the Extended Due Diligence Period, then
Buyer shall be deemed to have elected to terminate this Agreement, in which case this Agreement
shall terminate and neither Party shall have any further obligation to the other hereunder, except
as provided in paragraph 4.2, below and except for Buyer’s and Seller’s Surviving Obligations. In
such event, Buyer shall deliver to Seller the Information, as set forth in and subject to paragraph
4.1 above, and neither Buyer nor Seller shall thereafter have any further rights or obligations
under this Agreement unless expressly provided otherwise herein.
4.2 Property Inspection. Prior to the Closing Date, Seller shall afford Buyer and
Buyer’s Agents reasonable access to the Real Property for the purpose of conducting surveys,
architectural, engineering, geotechnical and environmental inspections and tests, and any other
physical inspections, studies, or tests reasonably required by Buyer (collectively, the
“Inspections”) with respect to the Property. Buyer shall maintain for itself and on behalf of its
consultants and contractors, or Buyer shall maintain and shall ensure that its agents, consultants
and contractors maintain, public liability and property damage insurance insuring against any
liability arising out of any entry, tests or investigations of the Property pursuant to the
provisions hereof. Such insurance maintained by Buyer and/or its consultants, agents and
contractors (as applicable) shall be in the amount of One Million Dollars ($1,000,000.00) combined
single limit for injury to or death of one or more persons in an occurrence, and for damage to
tangible property (including loss of use) in an occurrence. The policy maintained by Buyer shall
insure the contractual liability of Buyer covering the indemnities herein and shall (i) name the
Seller and its successors, assigns and affiliates as additional insureds, (ii) contain a
cross-liability provision, and (iii) contain a provision that “the insurance provided by Buyer
hereunder shall be primary and non-contributing with any other insurance available to Seller.”
Buyer shall provide Seller with evidence of such insurance coverage prior to any entry, tests or
investigations of the Property. The aforementioned insurance coverage may be obtained under a
blanket policy carried by Buyer or its agents, consultants or contractors, as the case may be.
Notwithstanding the foregoing, Buyer shall not be permitted to undertake any intrusive or
destructive testing of the Property, including without limitation a “Phase II” environmental
assessment, (“Physical Testing”) without in each instance first obtaining Seller’s written consent
thereto, which consent Seller shall not unreasonably withhold. Prior to entering the Property (and
on each and every occasion), Buyer shall deliver to Seller prior written notice thereof (or verbal
notice wherein Buyer actually speaks with a representative of Seller (not a voicemail message) with
written notice delivered immediately thereafter, if requested at such time), and shall afford
Seller a reasonable opportunity to have a representative of Seller present to accompany Buyer while
Buyer performs its evaluations, inspections, tests, Physical Testing and other investigations of
the physical condition, including without limitation, the environmental condition, of the Property.
Buyer also shall have the right to contact any governmental agency with respect to any Hazardous
Materials (as defined below) on, or the environmental condition of, the Property, including,
without limitation, in connection with a “Phase I” or “Phase II” environmental assessment. Prior to
any such contact, Buyer shall give Seller written notice thereof (or verbal notice wherein Buyer
actually speaks with a representative of Seller (not a voicemail message) with written notice
delivered immediately thereafter, if requested at such time), and shall afford Seller a reasonable
opportunity to have a representative of Seller present to accompany Buyer while Buyer contacts any
such governmental agency. In addition, prior to any entry to perform any necessary on-site inspections, tests,
Physical Testing or investigations with respect to the physical condition of the Property, Buyer
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shall give Seller written notice thereof (or verbal notice wherein Buyer actually speaks with a
representative of Seller (not a voicemail message) with written notice delivered immediately
thereafter, if requested at such time), including the identity of the company or party(s) who will
perform such inspections, tests, Physical Testing or investigations and the proposed scope of the
inspections, tests, Physical Testing or investigations, including, without limitation, the soil,
drainage and seismic condition of the Property, its compliance with applicable laws, codes,
regulations and governmental approvals, and the zoning, availability of utilities and feasibility
of the Property for the use intended by Buyer. Seller shall approve or disapprove any proposed
inspections, tests, Physical Testing or investigations and the party(s) performing the same within
one (1) business day after receipt of such notice. Seller’s failure to advise Buyer of its
disapproval of any proposed inspections, tests, Physical Testing or investigations and the party(s)
performing the same within such one (1)- business day period shall be deemed Seller’s approval
thereof, except to the extent said proposed inspections, tests, Physical Testing or investigations
relate to “Phase II” environmental matters, in which event Seller’s failure to advise Buyer of its
approval or disapproval of any proposed environmental inspections, tests or investigations and the
party(s) performing the same within such one (1) business day period shall be deemed Seller’s
disapproval thereof. Notwithstanding anything to the contrary contained in this Agreement, if
Buyer believes that applicable law requires disclosure to any governmental authority or regulatory
agency regarding any Hazardous Material on or environmental condition of the Property, including,
without limitation, in connection with Buyer’s performance of a “Phase I” or “Phase II”
environmental site assessment, Buyer shall so notify Seller and Seller shall determine whether
disclosure is required and, if so, shall make such disclosure. If Seller determines that
disclosure is required, Seller shall provide Buyer with evidence of Seller’s disclosure within the
period within which such disclosure is required to be made. The term “Hazardous Materials” as used
in this Agreement shall mean and refer to (a) any hazardous or toxic wastes, materials or
substances, or chemicals, and other pollutants or contaminants, which are or become regulated by
applicable local, state, regional and/or federal orders, ordinances, statutes, rules, regulations
(as interpreted by judicial and administrative decisions) and laws; (b) asbestos,
asbestos-containing materials or urea formaldehyde; (c) polychlorinated biphenyls; (d) flammables,
explosive, corrosive or radioactive materials; (e) medical waste and biochemicals; and (f)
gasoline, diesel, petroleum or petroleum by-products.
4.2.1 Natural Hazard Disclosure Statement. Buyer and Seller acknowledge that Seller
is required to disclose if any of the Property lies within the following natural hazard areas or
zones: (i) a special flood hazard area designated by the Federal Emergency Management Agency; (ii)
an area of potential flooding; (iii) a very high fire hazard severity zone; (iv) a wild land area
that may contain substantial forest fire risks and hazards; (v) an earthquake fault or special
studies zone; or (vi) a seismic hazard zone. Buyer acknowledges that Seller has or will have
engaged the services of Disclosure Source (“Natural Hazard Expert”) to examine the maps and other
information specifically made available to the public by government agencies for the purposes of
enabling Seller to fulfill its disclosure obligations with respect to the natural hazards and to
report the results of its examination to Buyer and Seller in writing. The written report prepared
by the Natural Hazard Expert regarding the results of its examination fully and completely
discharges Seller from its disclosure obligations referred to herein, and, for the purposes of this
Agreement, the provisions of
Civil Code Section 1103.4 regarding the non-liability of Seller for errors and/or omissions
not within its personal knowledge shall be deemed to apply and the Natural Hazard Expert shall be
deemed to
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be an expert, dealing with matters within the scope of its expertise with respect to the
examination and written report regarding the natural hazards referred to above. Not later than ten
(10) business days after the Effective Date, Seller shall deliver to Buyer a copy of a current
Natural Hazard Disclosure Statement issued by the Natural Hazard Expert with respect to the
Property.
4.3 Indemnity. Buyer, at its sole cost and expense, shall comply with all applicable
federal, state and local laws, rules, statutes, regulations, ordinances, or policies in conducting
the Inspections and Physical Testing. Buyer and Buyer’s Agents shall keep the Property free clear
of any liens arising from Buyer’s and Buyer’s Agent’s activities on the Property and shall hold
harmless, protect, defend (with counsel reasonably acceptable to Seller) and indemnify Seller and
Seller’s partners, members, trustees, directors, officers, shareholders, employees,
representatives, property managers, asset managers, agents, attorneys, affiliated and related
entities, heirs, successors and assigns (collectively, the “Indemnitees”) and the Property from and
against any liabilities, claims, demands, judgments, causes of action, losses, costs, damages,
penalties, fines, taxes, remedial actions, removal and disposal costs, investigation and remedial
costs and expenses (including, without limitation, attorneys’, expert and consultant fees), whether
direct or indirect, known or unknown (collectively, “Claims”) arising out of or in connection with
(1) any injuries to persons (including death) or damage to any property; provided, however, that
the foregoing indemnity shall not extend to any liabilities to the extent arising as a result of
the mere discovery by Buyer of a pre-existing condition that has a deleterious effect on the
Property, or (2) any mechanic’s, workers’ or other liens on the Property, by reason of or relating
to the work or activities conducted on the Property by Buyer or Buyer’s Agents. The foregoing
provisions shall not be limited by in any way by any other terms of this Agreement, and shall
survive the Closing and/or the expiration or earlier termination of this Agreement. Buyer, at its
sole cost and expense, shall clean up and repair the Property in whatever manner necessary after
Buyer or Buyer’s Agents’ entry thereon so that the Property shall be returned to the same condition
that existed prior to Buyer’s or Buyer’s Agents’ entry thereon; provided, however, that Buyer shall
not have any obligation to clean up or repair any condition not caused by Buyer or Buyer’s Agents.
4.4 Information. Seller shall promptly be provided with a copy of all Information
that Buyer or Buyer’s Agents discover, obtain or generate in connection with or resulting from
their Inspections, Physical Testing and work under paragraph 4.2, which Information shall be
subject to the disclaimer set forth in paragraph 4.1 above. All such Information shall be deemed
confidential, and Buyer shall not disclose or permit Buyer’s Agents to disclose to any third party,
other than Buyer’s consultants, agents, lenders and attorneys associated with the applicable
investigation of the Property and other than as may be required by applicable law (subject to the
provisions of paragraph 4.2 above), the results of Buyer’s Inspection.
5. Conditions to Closing.
5.1 Buyer’s Conditions. The following conditions are conditions precedent to Buyer’s
obligation to purchase the Property (the “Buyer’s Conditions Precedent”), which conditions are for
the benefit of Buyer only and the satisfaction of which may be waived only in writing by Buyer:
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5.1.1 Buyer’s review and approval of title to the Property, as follows: Buyer shall obtain or
Seller shall cause to be delivered to Buyer, a preliminary title report on the Property, issued by
Title Company, accompanied by copies of all documents referred to in the preliminary title report
(collectively, the “Preliminary Report”), and, if Buyer so elects, the Survey (or any update of
Seller’s existing Survey). Buyer shall advise Seller, within thirty (30) days after the later of
(a) Buyer’s receipt of the Preliminary Report, and (b) the Effective Date, what exceptions to
title, if any, are objected to by Buyer. If Buyer fails to deliver a timely notice of any
objections to such title exceptions, Buyer shall be deemed to have disapproved of such exceptions.
If Buyer fails to obtain its own Survey (or update Seller’s existing Survey) and render objections
to any matters described thereon within such thirty (30) -day period, any matters that would be
disclosed by a Survey shall be deemed Approved Exceptions (as defined below). Seller shall have
ten (10) days after receipt of Buyer’s objections to give Buyer: (i) notice that said exceptions
will be removed on or before the Closing Date; or (ii) notice that Seller elects not to cause such
exceptions to be removed. If Seller fails to give notice under either clause (i) or clause (ii),
Seller shall be deemed to have elected not to cause such exceptions to be removed. Except as
provided below, Seller shall have no obligation to remove or otherwise address Buyer’s objections
to title. If Seller gives Buyer notice under clause (ii), Buyer shall notify Seller prior to the
expiration of the Due Diligence Period, whether Buyer elects to proceed with the purchase or
terminate this Agreement. If Buyer fails to give Seller the Election Notice prior to the
expiration of the Due Diligence Period, Buyer shall be deemed to have elected to terminate this
Agreement. If Buyer gives Seller the Election Notice prior to the expiration of the Due Diligence
Period, Buyer shall be deemed to have elected to proceed with this Agreement and to accept title
subject to the Approved Exceptions and the objected-to exceptions that Seller has not agreed to
remove. The title exceptions approved pursuant to this paragraph 5.1.1 are referred to herein as
the “Approved Exceptions”. Notwithstanding the foregoing, in no event shall any financing secured
by the Property or any monetary liens (unless created by Buyer or Buyer’s Agents) other than
supplemental taxes and property taxes, assessments, special assessments and the like not yet due
and payable be deemed Approved Exceptions, and Seller agrees to remove any such exception at the
Close of Escrow.
5.1.2 Buyer’s review and approval, within the Due Diligence Period, of all physical
characteristics and conditions of the Property, including the environmental condition thereof
(including the approval of Phase I and Phase II Environmental Site Assessments of the Property if
Buyer so desires, subject, however, to the provisions of paragraph 4.2 above), the condition of the
Real Property, all governmental requirements and restrictions relating to the operation, use or
occupancy of the Property, and any other factors as Buyer deems necessary to fully understand the
Property and its suitability for Buyer’s intended use of the Property.
5.1.3 Buyer’s review and approval in its sole discretion, for any reason or no reason, within
the Due Diligence Period, of the Property Information, as defined herein. To the extent such items
are in Seller’s possession, and are not either proprietary to Seller or subject to any agreement by
Seller to maintain their confidentiality, within ten (10) business days after the Effective Date
Seller shall provide to Buyer the following information and documents: any ALTA survey of the
Property, environmental reports, including any environmental reports prepared by or on behalf of
Seller, soils tests, building plans, surveys, engineering reports and leases (the “Property
Information”). Seller has not undertaken any independent investigation as to the truth or accuracy
of the Property Information and is providing the same solely as an accommodation to Buyer, and,
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except as expressly provided herein, without representation or warranty of any kind as to the
thoroughness or accuracy of the information contained therein or Buyer’s ability to rely thereon.
The provisions of this paragraph 5.1.3 shall survive Closing and/or any expiration or earlier
termination of this Agreement, provided that following the Closing, Buyer shall be entitled to
employ all data and information with respect to the Property as reasonably required in connection
with the ownership and operation of the Property.
5.1.4 Buyer’s review and approval of a Seller certificate pursuant to which Seller certifies
to Buyer in writing, to Seller’s knowledge, that there have been no changes to the physical
condition of the Real Property. The foregoing certificate shall be delivered to Buyer no sooner
than thirty (30) days prior to the Close of Escrow and no later than fifteen (15) days prior to the
Close of Escrow.
5.1.5 As of the Due Diligence Period or the Extended Due Diligence Period, as applicable, the
legislative entitlements for Buyer’s proposed development of the Real Property, specifically, a
General Plan Amendment and zoning amendment (collectively, “Buyer’s Entitlements”), shall have been
enacted by the City of San Xxxx. As used in this Agreement, “enacted” shall mean that the City
Council of the City of San Xxxx has voted to enact the Buyer’s Entitlements, and that the thirty
(30)- day period for filing a referendum petition on Buyer’s Entitlements shall have expired. If a
valid referendum petition on Buyer’s Entitlements is timely filed, within ten (10) days thereafter
Buyer, in its sole discretion, may waive this condition. If Buyer does not waive this condition
within the ten (10)- day period, the condition shall be deemed unsatisfied, and the provisions of
Paragraph 5.3 shall apply.
5.1.6 Intentionally omitted.
5.1.7 Seller shall have performed all obligations to be performed by Seller pursuant to this
Agreement prior to Closing.
5.1.8 Seller’s representations and warranties set forth herein shall have been true and
correct as of the Effective Date and shall be true and correct as of the Closing Date, as if made
by Seller effective as of the Closing Date.
5.1.9 The Title Company shall be irrevocably and unconditionally committed to issue the Title
Policy to Buyer as of the Closing Date, subject only to the Approved Exceptions.
The Buyer’s Conditions Precedent are intended solely for the benefit of Buyer. If any of the
Buyer’s Conditions Precedent are not satisfied in the time and manner specified above, Buyer shall
have the right in its sole discretion either to terminate this Agreement by written notice to
Seller and, subject to the provisions of paragraph 5.3 below, to recover the Deposit or to waive
the Condition Precedent and proceed with the transaction provided for in this Agreement without
reduction of the Purchase Price.
5.2 Seller’s Conditions. The obligation of Seller to sell and convey the Property
pursuant to this Agreement is subject to the satisfaction on or before the Closing Date (or such
earlier date as is specifically set forth in this Agreement) of all of the following conditions
precedent (“Seller’s Conditions Precedent”), which conditions are for the benefit of Seller only and the
satisfaction of which may be waived only in writing by Seller:
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5.2.1 Delivery and execution by Buyer of all monies, items and instruments required to be
delivered by Buyer pursuant to this Agreement;
5.2.2 Buyer’s warranties and representations set forth herein shall be true and correct as of
the Effective Date and shall be true and correct as of the Closing Date as if made by Buyer
effective as of the Closing Date; and
5.2.3 Buyer shall have performed each and every agreement to be performed by Buyer pursuant to
this Agreement.
The Seller’s Conditions Precedent are intended solely for the benefit of Seller. If any of
the Seller’s Conditions Precedent are not satisfied in the time and manner specified above, Seller
shall have the right in its sole discretion either to terminate this Agreement by written notice to
Buyer and, subject to the provisions of paragraph 5.3 below, to return the Deposit to Buyer or to
retain the Deposit, as applicable, or to waive the Condition Precedent and proceed with the
transaction provided for in this Agreement without reduction of the Purchase Price.
5.3 Failure of Conditions. If any of the conditions set forth in paragraphs 5.1 or
5.2 above are not timely satisfied or waived by the applicable party, for any reason other than the
default of Buyer or Seller under this Agreement, then this Agreement and the rights and obligations
of Buyer and Seller shall terminate and be of no further force or effect except as to those matters
as specifically stated in this Agreement to survive expiration or early termination, in which case
the Title Company is hereby instructed to return promptly to Buyer the Deposit in accordance with
paragraph 4.1 and to the party which placed such items into Escrow the documents that are held by
the Title Company on the date of termination. Notwithstanding anything to the contrary contained
in this Agreement, the Parties acknowledge that, if Buyer elects to extend the Due Diligence Period
pursuant to paragraph 4.1.1 above, the Initial Deposit and the Additional Deposit become
non-refundable to Buyer except (i) in the event of a default by Seller hereunder (in which event
the provisions of paragraph 6.2 shall apply), or (ii) in the event of a failure of any of Seller’s
representations or warranties contained herein due to changed circumstances not caused by an act of
Seller (as opposed to Seller’s breach or inaccuracy in any representation of Seller as of the date
of this Agreement pursuant to paragraph 8 below) as of the Close of Escrow, in which case Buyer
shall have the option either to (i) proceed with the Closing and the Deposit shall be applied to
the Purchase Price, or (ii) terminate this Agreement and the Deposit shall be returned to Buyer.
Consequently, except as set forth in the preceding sentence, if Buyer terminates this Agreement
pursuant to this paragraph 5.3 at any time after Buyer’s election to extend the Due Diligence
Period, Title Company hereby is instructed to promptly release the Deposit to Seller.
5.4 Satisfaction of Conditions. The occurrence of the Closing shall constitute
satisfaction of conditions set forth in paragraphs 5.1 and 5.2 not otherwise specifically satisfied
or waived by Buyer or Seller.
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6. Remedies.
6.1 LIQUIDATED DAMAGES. IF ESCROW FAILS TO CLOSE DUE TO BUYER’S DEFAULT UNDER THIS
AGREEMENT, BUYER AND SELLER AGREE THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND
UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH SELLER’S DAMAGES CAUSED BY
BUYER’S DEFAULT UNDER THIS AGREEMENT. ACCORDINGLY, BUYER AND SELLER AGREE THAT IN THE EVENT ESCROW
FAILS TO CLOSE DUE TO BUYER’S DEFAULT UNDER THIS AGREEMENT, IT WOULD BE REASONABLE AT SUCH TIME TO
AWARD SELLER “LIQUIDATED DAMAGES” EQUAL TO THE AMOUNT OF THE DEPOSIT PREVIOUSLY PAID BY BUYER.
THEREFORE, IF ESCROW FAILS TO CLOSE DUE TO BUYER’S DEFAULT UNDER THIS AGREEMENT, THIS AGREEMENT
SHALL TERMINATE, ESCROW HOLDER SHALL CANCEL THE ESCROW AND SELLER SHALL BE ENTITLED TO RETAIN THE
PORTION OF THE DEPOSIT PREVIOUSLY PAID BY BUYER AND RELEASED TO SELLER. RETENTION OF THE
NONREFUNDABLE DEPOSIT BY SELLER SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER IN THE
EVENT ESCROW FAILS TO CLOSE DUE TO A BREACH BY BUYER, AND SELLER WAIVES ANY AND ALL RIGHT TO SEEK
OTHER RIGHTS OR REMEDIES AGAINST BUYER, INCLUDING, WITHOUT LIMITATION, SPECIFIC PERFORMANCE. THE
PAYMENT AND RETENTION OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR
PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND
1677. IN ADDITION, BUYER SHALL PAY ALL TITLE, SURVEY AND ESCROW CANCELLATION CHARGES. SELLER
HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. NOTWITHSTANDING THE FOREGOING,
IN NO EVENT SHALL THIS SECTION 6.1 LIMIT THE DAMAGES RECOVERABLE BY EITHER PARTY AGAINST THE OTHER
PARTY DUE TO (A) THE OTHER PARTY’S OBLIGATION TO INDEMNIFY SUCH PARTY IN ACCORDANCE WITH THIS
AGREEMENT, OR (B) THIRD PARTY CLAIMS. BY THEIR SEPARATELY EXECUTING THIS PARAGRAPH 6.1 BELOW,
BUYER AND SELLER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE ABOVE PROVISION COVERING
LIQUIDATED DAMAGES, AND THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES
OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS EXECUTED. UPON TERMINATION OF
THIS AGREEMENT AS PROVIDED HEREIN, NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF SELLER TO RETAIN SUCH LIQUIDATED DAMAGES AND
BUYER’S SURVIVING OBLIGATIONS.
INITIALS:
|
Seller | /s/ AB | Buyer | /s/ ES/DH | ||||||
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6.2 Buyer’s Remedies. In the event Close of Escrow does not occur by reason of any
breach or default by Seller under this Agreement, including any breach or inaccuracy in any
representation made by Seller pursuant to paragraph 8 below as of the date of this Agreement (as
opposed to a failure of such representation due to changed circumstances not caused by an act of
Seller), Buyer’s remedies shall be limited to either (i) the termination of this Agreement, in
which event Buyer shall be entitled to the return of the Deposit, and all accrued interest thereon,
and Seller shall reimburse Buyer for Buyer’s reasonable out-of-pocket costs and expenses incurred
by Buyer in entering into this Agreement and conducting its due diligence investigation of the
Property and the processing of Buyer’s Entitlements, up to but not in excess of $250,000.00, as
evidenced by reasonable documentation with respect thereto, which return and recovery shall operate
to terminate this Agreement and release Seller from any and all liability hereunder, or (ii) an
action for specific performance; provided, however, that if an action for specific performance is
not available solely because of any act of Seller in breach of this Agreement, and at the time of
such act Buyer is not then in breach or default under this Agreement, Buyer shall have the right,
in lieu thereof, to bring an action for its monetary damages resulting from Seller’s default
hereunder in an amount not to exceed Three Million Dollars ($3,000,000.00). Buyer shall be deemed
to have elected to terminate this Agreement and receive back the Deposit (if applicable) and
reimbursement for Buyer’s reasonable out-of-pocket costs as described herein if Buyer fails to file
suit for specific performance against Seller in a court having jurisdiction in the county and state
in which the Property is located, on or before ninety (90) days following the date upon which the
Closing Date was to have occurred. Except for, and in consideration of, the foregoing right of
Buyer to xxx for specific performance (or to bring an action for monetary damages, where specific
performance is not available solely for the reason set forth in subparagraph (ii) above), or
alternatively, to obtain a refund of the Deposit and reimbursement of Buyer’s documented and
reasonable out-of-pocket expenses incurred in performing its inspections, investigations and other
due diligence review of the Property, Buyer hereby waives any other remedies available at law or in
equity. Except as expressly provided above, Buyer expressly waives its rights to seek damages if
the Closing does not occur in the event of Seller’s default hereunder. Buyer acknowledges and
agrees that the limitation of Buyer’s remedies to those set forth in this paragraph 6.2 was
negotiated by Seller as an integral and material part of the transaction contemplated by this
Agreement and that Seller would not have entered into this Agreement but for Buyer’s agreement to
limit its remedies as provided herein.
Buyer’s
Initials: /s/ ES/DH
6.3 Limitations on Seller’s Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL SELLER OR ANY OTHER INDEMNITEE BE LIABLE TO BUYER IN
CONTRACT, TORT OR OTHERWISE WITH RESPECT TO ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR
INCIDENTAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY CLOSING DOCUMENT OTHER THAN
ANY INTENTIONAL OR NEGLIGENT MISREPRESENTATION BY SELLER. IN ADDITION, IN NO EVENT WILL SELLER OR
ANY OTHER INDEMNITEE BE LIABLE TO BUYER UNLESS AND UNTIL THE AGGREGATE AMOUNT OF DAMAGES FOR WHICH
SELLER IS OBLIGATED TO PAY OR INDEMNIFY BUYER PURSUANT TO THIS AGREEMENT EXCEEDS THE SUM OF FIVE
THOUSAND DOLLARS ($5,000.00) (THE “BASE AMOUNT”) WHEREUPON SELLER SHALL BE LIABLE FOR ALL SUCH
DAMAGES, INCLUDING THE BASE AMOUNT, BUT, NOTWITHSTANIDNG ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY DAMAGES TO THE BUYER IN EXCESS OF THE
SUM OF ONE MILLION DOLLARS ($1,000,000.00); PROVIDED, HOWEVER, THAT THE LIMITATION ON SELLER’S
LIABILITY IN THE
EVENT THAT SPECIFIC PERFORMANCE IS NOT AVAILABLE TO BUYER SOLELY FOR THE REASON SET FORTH IN
SUBPARAGRAPH (ii) OF PARAGRAPH 6.2 ABOVE SHALL REMAIN AN AMOUNT NOT TO EXCEED THREE MILLION DOLLARS
($3,000,000.00) AS SET FORTH IN PARAGRAPH 6.2.
Buyer’s
Initials: /s/ ES/DH
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6.4 Waiver. Buyer hereby acknowledges that it has read and is familiar with the
provisions of California Civil Code Section 1542, which is set forth below: By initialing below,
Buyer hereby waives the provisions of Section 1542 solely in connection with the matters which are
the subject of the foregoing waivers and releases:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Buyer’s
Initials: /s/ ES/DH
6.5 Representations and Warranties. Notwithstanding anything to the contrary
contained in this Agreement, if any representation and warranty made by Seller pursuant to
paragraph 8 below was an intentional or negligent misrepresentation as of the date of this
Agreement, and Buyer discovers such intentional or negligent misrepresentation during the period
commencing with the date of the Closing until the last day of the Survival Period (as defined in
paragraph 8 below), Buyer shall have the right, during the Survival Period and as its sole remedy,
to bring an action against Seller for its monetary damages resulting from such intentional or
negligent misrepresentation, subject to the limitation on Seller’s liability in an amount not to
exceed One Million Dollars ($1,000,000.00), as more particularly set forth in paragraph 6.3 above.
6.6 Survival. All of the foregoing waivers and releases by Buyer set forth in this
paragraph 6 shall survive any expiration or earlier termination of this Agreement, and shall not be
deemed merged into any instrument or conveyance delivered at Closing.
7. Closing and Escrow.
7.1 Escrow Instructions. Upon mutual execution of this Agreement, the parties hereto
shall deposit an executed counterpart of this Agreement with Escrow Holder and this Agreement shall
serve as instructions to Escrow Holder for the consummation of the purchase and sale contemplated
hereby. Seller and Buyer each shall have the right to execute such additional escrow instructions
as may be appropriate to enable Escrow Holder to comply with the terms of this Agreement; provided,
however, in the event of any conflict between the provisions of this Agreement and any
supplementary escrow instructions, the terms of this Agreement shall control.
7.2 Closing Date. The closing of the purchase and sale contemplated hereunder (the
“Closing”) shall take place on the earlier to occur of (i) five (5) days following the enactment of
Buyer’s Entitlements as set forth in paragraph 5.1.5, or (ii) August 1, 2006 (the “Closing Date” or
“Close of Escrow”), or such earlier date as Buyer and Seller may agree upon in writing.
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7.3 Seller’s Deposits. At or before the Closing (except to the extent otherwise
specifically provided below), Seller shall deliver to Escrow Holder the following:
(i) the Grant Deed, duly executed and acknowledged by Seller;
(ii) the Assignment, duly executed by Seller;
(iii) an affidavit pursuant to Section 1445(b)(2) of the Federal Code, and on which Buyer is
entitled to rely, that Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of
the Federal Code (the “Nonforeign Affidavit”);
(iv) a properly executed California Withholding Exemption Certificate (Form 593-C) certifying
that Buyer is not required to withhold any portion of the Purchase Price at the Close of Escrow
(the “California Form 593-C”);
(v) such proof of Seller’s authority and authorization to enter into this Agreement and
consummate the transaction contemplated hereby and such proof of the power and authority of the
individual(s) executing and/or delivering any instruments, documents or certificates on behalf of
Seller to act for and bind Seller as may be reasonably required by the Title Company; and
(vi) any other instruments, records or correspondence called for hereunder which have not
previously been delivered. Buyer may waive compliance on Seller’s part under any of the foregoing
items by an instrument in writing.
7.4 Buyer’s Deposits. At or before the Closing, Buyer shall deliver to Escrow Holder
the following:
(i) the balance of the Purchase Price and such additional sums necessary to pay Buyer’s share
of Closing Costs fees and prorations as more particularly described in paragraph 7.6 below;
(ii) the Assignment, duly executed by Buyer;
(iii) such proof of Buyer’s authority and authorization to enter into this Agreement and
consummate the transaction contemplated by this Agreement, and such proof of the power and
authority of the individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of Buyer to act for and bind Buyer as may be reasonably required by the
Title Company or Seller; and
(iv) any other instruments, records or correspondence called for hereunder which have not
previously been delivered. Seller may waive compliance on Buyer’s part under any of the foregoing
items by an instrument in writing.
7.5 Deposits Required by Escrow Holder. Seller and Buyer shall each deposit such
other instruments as are reasonably required by Escrow Holder or otherwise required to close the
escrow and consummate the purchase of the Property in accordance with the terms hereof.
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7.6 Prorations. The following are to be apportioned as of the Closing Date, as
follows:
(i) Real Estate Tax and Assessments. General real estate taxes and any assessments
shall be prorated as of the Closing Date.
(ii) Closing Costs. Seller shall pay the CLTA portion of the premium for the Title
Policy, the recording fees for the Grant Deed, one-half of the escrow fees. Seller shall pay the
County of Santa Xxxxx documentary transfer taxes and one-half of the City of San Xxxx transfer
taxes. Buyer shall pay the ALTA portion of the premium for the Title Policy, one-half of the
escrow fees and one-half of the City of San Xxxx transfer taxes. All other costs and charges of
the escrow for the sale not otherwise provided for in this paragraph or elsewhere in this Agreement
shall be paid in accordance with the custom in Santa Xxxxx County. The parties shall each pay
their own legal fees, if any are incurred.
If any information needed for the proration of any item is not available at the Closing, the
parties shall re-prorate such item after Closing and payment shall be made promptly to the party
entitled thereto. After the Closing, Seller shall remain solely responsible for and shall promptly
pay before delinquency any real estate taxes and assessments for the Property relating to periods
prior to the Closing Date. The provisions of this paragraph shall survive the Close of Escrow.
7.7 Escrow Holder’s Actions. On the Closing Date, when Escrow Holder holds the items
required to be deposited into escrow by Seller and Buyer as described above and Title Company is
prepared to issue and deliver the Title Policy to Buyer, Escrow Holder is instructed and authorized
to (i) record the Grant Deed in the Office of the County Recorder of Santa Xxxxx County; (ii) pay
any transfer taxes; (iii) instruct the County Recorder to return the Grant Deed to Buyer (with a
copy to Seller); (iv) disburse to Seller from the funds deposited into Escrow by Buyer the Purchase
Price less Seller’s escrow and cash charges as described herein; (v) disburse to the appropriate
party from funds deposited into escrow by Buyer amounts toward payment of all other items
chargeable to the account of Buyer hereunder, and disburse the balance of such funds, if any, to
Buyer; and (vi) deliver to Buyer one original of the Assignment, the Nonforeign Affidavit, the
California Form 593-C and the Title Policy, with one original of the Assignment and copies to
Seller of all of the foregoing except for the Title Policy.
7.8 Escrow Cancellation Charges. If the Closing does not occur because of the default
of a Party, the defaulting Party shall bear all Escrow Cancellation Charges. If the Closing does
not occur for any reason other than a default of a Party, then Buyer and Seller shall each pay
one-half (1/2) of any Escrow Cancellation Charges. As used herein, “Escrow Cancellation Charges”
means all fees, charges and expenses incurred by Escrow Holder or third parties engaged by Escrow
Holder, as well as all expenses related to the services of the Title Company in connection with the
issuance of the Preliminary Report and other title matters.
8. Seller’s Representations. Seller hereby makes the following representations and
warranties, each of which shall be continuing and shall survive the Closing for a period of nine
(9) months after the Closing (the “Survival Period”). Any claim based on any of the following
representations and warranties must be filed, if at all, before the end of the Survival Period.
-14-
Whenever in this Agreement a representation or warranty is being made to Seller’s knowledge, such
qualification indicates that the warranty is being made to the current actual knowledge of Xx
Xxxxxxx, Director of Real Estate, without any implied, imputed or constructive knowledge and
without any independent investigation having been made or any implied duty to investigate. Seller
represents that Xx. Xxxxxxx is the person within Seller’s organization that is most knowledgeable
regarding the matters described in such representations. No claim for a breach or failure of any
representation or warranty of Seller shall be actionable or payable if the breach or failure in
question results from or is based on a condition, state of facts or other matter which was known to
Buyer prior to Closing. Seller shall have no liability to Buyer for a breach of any representation
or warranty unless written notice containing a description of the specific nature of such breach
shall have been given by Buyer to Seller prior to the expiration of the Survival Period and any
action shall have been commenced by Buyer against Seller within nine (9) months after Closing.
Except as expressly set forth in this Agreement, Seller has not made any warranty or
representation, express or implied, written or oral, concerning the Property.
8.1 Hazardous Materials. Except to the extent disclosed in the Property Information,
or disclosed to Buyer through any Physical Testing or inspection of the Property or otherwise, to
Seller’s knowledge, during Seller’s ownership of the Property there has been no production,
disposal, release or storage by Seller on or at the Property of any Hazardous Material in violation
of any applicable laws relating thereto.
8.2 Notices of Violation. Except to the extent disclosed in the Property Information,
or disclosed to Buyer through any Physical Testing or inspection of the Property or otherwise,
Seller has not received and, to Seller’s knowledge, Seller is not aware of, any written notice from
any governmental authority that any condition at the Property violates any material provision of
applicable building codes, zoning or land use laws, other local, state or federal laws and
regulations, or restrictive easements or covenants affecting the Property.
8.3 Possession. Except to the extent disclosed in the Property Information, or
disclosed to Buyer through any Physical Testing or inspection of the Property or otherwise, there
are no parties in possession or occupancy of any of the Property or any parts thereof except for
that certain lease, dated as of May 16, 2005 (“Lease”), between Seller, as Lessor, and Preston
Pipelines, a California corporation, as Lessee, which Lease may be terminated by either party upon
thirty (30) days’ prior written notice, nor, except pursuant to the Lease, are there any parties
who have any possessory rights with respect to any of the Property or any part thereof.
8.4 Condemnation. Except to the extent disclosed in the Property Information, or
disclosed to Buyer through any Physical Testing or inspection of the Property or otherwise, Seller
has not received written notice from any governmental authority of any existing, pending or
threatened condemnation or taking by eminent domain of any part of the Property.
8.5 Litigation. Except to the extent disclosed in the Property Information, or
disclosed to Buyer through any Physical Testing or inspection of the Property or otherwise, Seller
has not received written notice of any litigation which has been filed against Seller that arises
out of the ownership of the Property and would materially affect the Property or use thereof, or
Seller’s ability to perform hereunder. Except to the extent disclosed in the Property Information,
or disclosed to Buyer through any Physical Testing or inspection of the Property or otherwise,
Seller has not received written notice of any threatened litigation relating to the Property.
-15-
8.6 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.
The person executing this Agreement on behalf of Seller is duly authorized to do so.
8.7 Due Formation; Power. Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and authorized to transact business in
the State of California. Seller has full capacity, right, power and authority to enter into this
Agreement and to perform its obligations hereunder. Neither the execution of this Agreement nor the
consummation of any of the transactions contemplated by this Agreement violates any provision of
any agreement or document to which Seller is a party or by which Seller or the Property is bound.
No consent from any third party is required before the Property may be conveyed to Buyer.
8.8 Bankruptcy. Neither Seller, nor any entity or person that directly or indirectly
owns or controls Seller is bankrupt or insolvent under any applicable Federal or state standard,
nor has any such party filed for protection or relief under any applicable bankruptcy or creditor
protection statute nor has any such party been threatened by creditors with an involuntary
application of any applicable bankruptcy or creditor protection statute. Seller is not entering
into the transaction described in this Agreement with an intent to defraud any creditor or to
prefer the rights of one creditor over any other. Seller and Buyer have negotiated this Agreement
at arms-length and the consideration to be paid represents fair value for the assets to be
transferred.
8.9 Rights of Other Parties. Except for the Lease, to Seller’s knowledge, no party
has a right of first opportunity, right of first refusal, right of first offer, or any similar
right to purchase or lease any portion of the Property and that Seller will not enter into
negotiations with any other party for the sale and/or lease of the Property while this Agreement is
in effect.
9. Buyer’s Representations; As-Is Acquisition, General Release and Indemnity.
9.1 Buyer’s Representations. Buyer hereby makes the following representations and
warranties, each of which shall survive the Close of Escrow for a period of twelve (12) months:
a. 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 Seller. The
persons executing this Agreement on behalf of Buyer are duly authorized to do so.
b. Due Formation; Power. Buyer is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of California and authorized to transact
business in the State of California. Buyer has full capacity, right, power and authority to enter
into this Agreement and to perform its obligations hereunder. Neither the execution of this
Agreement nor the consummation of any of the transactions contemplated by this Agreement violates
any provision of any agreement or document to which Buyer is a party or by which Buyer or the
Property is bound. No consent from any third party is required before any of the Property may be
acquired by Buyer.
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c. Bankruptcy. Neither Buyer, nor any entity or person that directly or indirectly
owns or controls Buyer is bankrupt or insolvent under any applicable Federal or state standard, nor
has any such party filed for protection or relief under any applicable bankruptcy or creditor
protection statute nor has any such party been threatened by creditors with an involuntary
application of any applicable bankruptcy or creditor protection statute. Buyer is not entering
into the transaction described in this Agreement with an intent to defraud any creditor or to
prefer the rights of one creditor over any other. Seller and Buyer have negotiated this Agreement
at arms-length and the consideration to be paid represents fair value for the assets to be
transferred.
d. Conflicts and Pending Action. There is no agreement to which Buyer is a party or
to Buyer’s knowledge binding on Buyer which is in conflict with this Agreement. There is no action
or proceeding pending or, to Buyer’s knowledge, threatened against Buyer which challenges or
impairs Buyer’s ability to execute or perform its obligations under this Agreement.
e. No Encumbrance. Prior to Closing, Buyer shall neither encumber nor cause any liens
to be created against the Property in any way which shall not be removed before the Closing or
termination of this Agreement, as applicable, or which shall not be assumed by Buyer at the
Closing, nor shall Buyer, at any time, record this Agreement or a memorandum thereof.
f. Principal; Financial Resources. Buyer is acting as a principal in connection with
the transaction as contemplated by this Agreement and will possess as of the Closing the financial
resources (either with an equity partner or through an acquisition loan) to timely consummate the
purchase and sale transaction contemplated by this Agreement.
g. No Reliance on Documents. All materials, data and Property Information delivered
by Seller to Buyer in connection with the transaction contemplated hereby are provided to Buyer as
a convenience only and that any reliance on or use of such materials, data or information by Buyer
shall be at the sole risk of Buyer. Neither Seller nor any person or entity which prepared any
report or reports delivered by Seller to Buyer shall have any liability to Buyer for any inaccuracy
in or omission from any such reports.
9.2 Buyer’s Release. Except for any intentional or negligent misrepresentations of
Seller relating to this Agreement, Buyer on its own behalf and on behalf of Buyer’s Agents hereby
agrees that each of Seller and the Indemnitees shall be, and are hereby, fully and forever released
and discharged from any and all Claims with respect to any and all Claims, whether direct or
indirect, known or unknown, foreseen or unforeseen, that may arise on account of or in any way be connected with the Property
including, without limitation, the physical, environmental and structural condition of the related
Land or any law or regulation applicable thereto, including, without limitation, any Claim or
matter (regardless of when it first appeared) relating to or arising from (i) the presence of any
environmental problems, or the use, presence, storage, release, discharge, or migration of
Hazardous Materials on, in, under or around the Property regardless of when such Hazardous
Materials were first introduced in, on or about the Property, (ii) any patent or latent defects or
deficiencies with respect to the Property, (iii) any and all matters related to the Property or any
-17-
portion thereof, including without limitation, the condition and/or operation of the Property and
each part thereof, and (iv) the presence, release and/or remediation of asbestos and asbestos
containing materials in, on or about the Property regardless of when such asbestos and asbestos
containing materials were first introduced in, on or about the Property. Buyer hereby waives and
agrees not to commence any action, legal proceeding, cause of action or suits in law or equity, of
whatever kind or nature, including, but not limited to, a private right of action under the federal
superfund laws, 42 U.S.C. Sections 9601 et seq. and California Health and Safety Code Sections
25300 et seq. (as such laws and statutes may be amended, supplemented or replaced from time to
time), directly or indirectly, against Seller and the Indemnitees or their agents in connection
with Claims described above and expressly waives the provisions of Section 1542 of the California
Civil Code which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR
and all similar provisions or rules of law. Buyer elects to and does assume all risk for such
Claims heretofore and hereafter arising, whether now known or unknown by Buyer. The aforementioned
release shall not include or be applicable to any Claims arising out of the entry into or
performance of this Agreement by Seller nor any Claims directly resulting from or relating to a
breach by Seller of any of the representations made in paragraph 8 hereof so long as any such Claim
(in each instance) is made by Buyer within the nine (9) month survival period specified in
paragraph 8 above. After the expiration of said nine (9) month period the aforementioned release
will also include all Claims resulting from or relating to any breach by Seller of the
representations made in paragraph 8 of this Agreement. In this connection and to the greatest
extent permitted by law, Buyer hereby agrees, represents and warrants that Buyer realizes and
acknowledges that factual matters now unknown to it may have given or may hereafter give rise to
causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which
are presently unknown, unanticipated and unsuspected, and Buyer further agrees, represents and
warrants that the waivers and releases herein have been negotiated and agreed upon in light of that
realization and that Buyer nevertheless hereby intends to release, discharge and acquit Seller from
any such unknown Claims, debts, and controversies which might in any way be included as a material
portion of the consideration given to Seller by Buyer in exchange for Seller’s performance
hereunder. Without limiting the foregoing, if Buyer has actual knowledge of (a) a default in any of
the covenants, agreements or obligations to be performed by Seller under this Agreement and/or (b)
any breach or inaccuracy in any representation of Seller pursuant to paragraph 8 above as of the
date of this Agreement (as opposed to a failure of such representation due to changed circumstances
not caused by an act of Seller), and Buyer nonetheless elects to proceed to Closing,
then, upon the consummation of the Closing, Buyer shall be conclusively deemed to have waived any
such default and/or breach or inaccuracy and shall have no Claim against Seller or hereunder with
respect thereto. Notwithstanding anything to the contrary contained herein, if Buyer obtains actual
knowledge of any material default by Seller or any such breach or inaccuracy in any such
representation of Seller which, in Buyer’s reasonable judgment, would have a material adverse
effect on the Property or on Buyer’s intended development of the Property, Buyer may terminate this
Agreement and receive a return of the Deposit upon written notice to Seller within five (5) days
after Buyer learns of such default or breach if, within five (5)
-18-
days after Buyer’s notice to
Seller, Seller notifies Buyer in writing that Seller elects not to cure or remedy any such default
or breach. Failure by Seller to so notify Buyer shall be deemed Seller’s election not to cure or
remedy any such default or breach or inaccuracy. Upon such termination, Seller shall reimburse
Buyer for Buyer’s reasonable out-of-pocket costs and expenses incurred by Buyer in entering into
this Agreement and conducting its due diligence investigation of the Property and the processing of
Buyer’s Entitlements, up to but not in excess of $250,000.00, as evidenced by reasonable
documentation with respect thereto, and thereafter the parties shall have no further obligations
hereunder except for Buyer’s and Seller’s Surviving Obligations. Notwithstanding anything to the
contrary herein, subject to Buyer’s termination and recovery right described above, Seller shall
not have any liability whatsoever to Buyer with respect to any matter disclosed to or discovered by
Buyer or its agents or representatives prior to the Closing Date.
Seller has given Buyer material concessions regarding this transaction in exchange for Buyer
agreeing to the provisions of this paragraph 9.2. Seller and Buyer have each initialed this
paragraph 9.2 to further indicate their awareness and acceptance of each and every provision
hereof. The provisions of this paragraph 9.2 shall survive the Closing and/or any expiration or
earlier termination of this Agreement, and shall not be deemed merged into any instrument or
conveyance delivered at the Closing.
SELLER’S
INITIALS:
/s/ AB
BUYER’S INITIALS:/s/ ES/DH
9.3 As-Is Condition of Property. Buyer specifically acknowledges, represents and
warrants that prior to Closing, it and its agents and representatives will have thoroughly
inspected the Property and observed the physical characteristics and condition of the Property. By
Buyer purchasing the Property and upon the occurrence of the Closing, Buyer waives any and all
right or ability to make a claim of any kind or nature against Seller or any Indemnitee (except for
claims reserved pursuant to paragraph 6.5 above) for any and all deficiencies or defects in the
physical characteristics and condition of the Property which would be disclosed by such inspection,
and expressly agrees to acquire the Property with any and all of such deficiencies and defects and
subject to all matters disclosed by Seller herein or in any separate writing with respect to the
Property and/or disclosed in and set forth in the Natural Hazard Disclosure Statement for the
Property. Buyer further acknowledges and agrees that except for any representations expressly made
by Seller in paragraph 8 of this Agreement, neither Seller nor any of Seller’s employees, agents or
representatives have made any representations, warranties or agreements by or on behalf of Seller
of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to
any matters concerning the Property, the condition of the Property, the size of the Land, the
present use of the Property or the suitability of Buyer’s intended use of the Property. Buyer
hereby acknowledges, agrees and represents that the Property is to be purchased, conveyed and
accepted by Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no
patent or latent defect or deficiency in the condition of the Property, whether or not known or discovered, shall affect the rights of
either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof.
Any and all information and documents furnished to Buyer by or on behalf of Seller relating to the
Property shall be deemed furnished as a courtesy to Buyer but without any warranty of any kind from
or on behalf of Seller. Buyer hereby represents and warrants to Seller that Buyer has performed an
independent inspection and investigation of the Property and has also investigated and has
knowledge of operative or proposed governmental laws and regulations, including, without
-19-
limitation, land use laws and regulations to which the Property may be subject. Buyer further
represents that, except for any representations expressly made by Seller in paragraph 8 of this
Agreement, it shall acquire the Property solely upon the basis of its independent inspection and
investigation of the Property, including, without limitation, (i) the quality, nature,
habitability, merchantability, use, operation, value, marketability, adequacy or physical condition
of the Property or any aspect or portion thereof, including, without limitation, appurtenances,
access, landscaping, sewage, and utility systems, facilities and appliances, soils, geology and
groundwater, or whether the Land lies within a special flood hazard area, an area of potential
flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or
a seismic hazard zone, (ii) the dimensions or lot size of the Land, (iii) the development or income
potential, or rights of or relating to, the Property or its use, habitability, merchantability or
fitness, or the suitability, value or adequacy of such Property for any particular purpose, (iv)
the zoning or other legal status of the Property or any other public or private restrictions on the
use of the Property, (v) the compliance of the Property or its operation with any applicable codes,
laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental
or regulatory agency or authority or of any other person or entity (including, without limitation,
the American with Disabilities Act), (vi) the ability of Buyer to obtain any necessary governmental
approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the
presence or absence of Hazardous Materials on, in, under, above or about the Property or any
adjoining or neighboring property, (viii) the condition of title to the Land, (ix) any agreements
affecting the Property or the intentions of any party with respect to the negotiation and/or
execution of any lease or contract with respect to the Property, (x) Seller’s ownership of the
Property or any portion thereof, or (xi) the economics of, or the income and expenses, revenue or
expense projections or other financial matters, relating to the operation of the Property. Without
limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not
relying on any representation or warranty of Seller, nor any member partner, officer, employee,
attorney, property manager, agent or broker of Seller, whether implied, presumed or expressly
provided at law or otherwise, arising by virtue of any statute, common law or other legally binding
right or remedy in favor of Buyer except as expressly provided in paragraph 8 above. Buyer further
acknowledges and agrees that Seller is not under any duty to make any inquiry regarding any matter
that may or may not be known to the Seller or any member, partner, officer, employee, attorney,
property manager, agent or broker of Seller.
SELLER’S
INITIALS:
/s/ AB
BUYER’S INITIALS: /s/ ES/DH
Any reports, repairs or work required by Buyer are the sole responsibility of Buyer, and Buyer
agrees that there is no obligation on the part of Seller to make any changes, alterations or
repairs to the Property or to cure any violations of law or to comply with the requirements of any
insurer. Buyer is solely responsible for obtaining any certificate of occupancy or any other
approval or permit necessary for transfer or occupancy of the Property and for any repairs or
alterations necessary to obtain the same, all at Buyer’s sole cost and expense. The provisions of
this paragraph 9.3 shall survive the Closing and/or any expiration or earlier termination of this
Agreement, and shall not be deemed merged into any instrument or conveyance delivered at the
Closing.
10. Possession. Possession of the Property shall be delivered to Buyer on the
Closing Date free and clear of all tenancies and other third party occupancy rights.
11. Maintenance of the Property. Between Seller’s execution of this Agreement and the
Closing, Seller shall maintain the Property in its present condition (“AS-IS”), subject to normal
wear and tear, all in a manner consistent with Seller’s past practice. Seller shall notify Buyer in
writing if Seller becomes aware of any material change in the physical condition or operation of
the Property.
-20-
12. Buyer’s Consent to Contracts And Leases. Seller shall not, after the date of
Seller’s execution of this Agreement, enter into any contract or lease affecting the Property which
would remain in effect after the Close of Escrow without in each case obtaining Buyer’s prior
written consent thereto, which consent shall not be unreasonably withheld.
13. Damage or Destruction. If, prior to the Closing, any part of the Property is
damaged or destroyed by earthquake, flood, landslide, fire or other casualty, Seller shall
immediately notify Buyer of such fact. Neither party shall have the right to terminate this
Agreement, but Seller shall assign and turn over to Buyer, and Buyer shall be entitled to receive
and keep all insurance proceeds, if any, payable to Seller with respect to such destruction (but
not in excess of the Purchase Price) and the parties shall proceed to the Closing pursuant to the
terms hereof without modification of the terms of this Agreement and without any reduction in the
Purchase Price. Seller shall keep its present casualty insurance and, to the extent Seller
carries it, earthquake insurance with respect to the Property in full force and effect until
Closing.
14. Condemnation. In the event that all or any substantial portion of the Property
shall be taken in condemnation or under the right of eminent domain after the Effective Date and
before the Closing, Buyer, at its option, may either (i) terminate this Agreement by written notice
thereof to Seller and, subject to the provisions of paragraph 5.3 above, receive an immediate
refund of the Deposit, together with any interest earned thereon, or (ii) proceed to close the
transaction contemplated herein pursuant to the terms hereof in which event Seller shall assign and
turn over to Buyer, and Buyer shall be entitled to receive and keep all awards for the taking by
eminent domain which accrue to Seller and there shall be no reduction in the Purchase Price. For
purposes of this provision, a “substantial portion” of the Property shall mean (a) more than five
percent (5%) of the Property is taken; or (b) the access to the Property is materially reduced or
restricted. In the event that a portion of the Property less than a substantial portion is taken,
or Buyer elects not to terminate this Agreement, Buyer shall proceed to close the transaction
contemplated herein and there shall be no reduction in the Purchase Price and Seller shall assign
and turn over to Buyer and Buyer shall be entitled to receive and keep all awards for the taking by
eminent domain which accrue to Seller.
15. Miscellaneous.
15.1 Notices. Any notice, consent or approval required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been received on the date (i) of
hand delivery to the receiving Party, (ii) of delivery by telecopy transmission as evidence by
confirmation of transmission, provided such transmission is sent prior to 5:00 p.m. PST or if sent after 5:00 p.m. PST, then
the next business day, (iii) one business day following delivery to a reputable overnight courier,
or (iv) three (3) days after being deposited in the U.S. Mail, certified mail return receipt
requested. Mailed or couriered notices shall be addressed as set forth below.
-21-
If to Seller:
|
Palm, Inc. | |
| 000 X. Xxxxx Xxxxxx | ||
| Xxxxxxxxx, Xxxxxxxxxx 00000 | ||
| Attn: Xx Xxxxxxx, Director of Real Estate | ||
| Telephone No.: (000) 000-0000 | ||
| Telecopy No.: (000) 000-0000 | ||
With copy to:
|
GCA Law Partners LLP | |
| 0000 Xxxxxxxx Xxxxx | ||
| Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 | ||
| Attn: Xxxxxxx X. Xxxxxx | ||
| Telephone No.: (000) 000-0000 | ||
| Telecopy No.: (000) 000-0000 | ||
If to Buyer:
|
Hunter/Storm, LLC | |
| 00000 Xxxxxx Xxxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxxxx, XX 00000 | ||
| Attn: Xxxxxx X. Storm | ||
| Telephone No.: 000-000-0000 | ||
| Telecopy No.: 000-000-0000 | ||
With copy to:
|
Berliner Xxxxx | |
| Xxx Xxxxxxx Xxxx., Xxxxxxxx Xxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attention: Xxxx Xxxxxxxxx | ||
| Telephone No.: 000-000-0000 | ||
| Telecopy No.: 000-000-0000 |
or such other address as either party may from time to time specify in writing to the other.
15.2 Brokers. Seller has been represented by Cornish & Xxxxx Commercial in connection
with this transaction. Buyer has been represented by BT Commercial in connection with this
transaction. Each Party shall be solely responsible for compensating its respective broker for
services provided in connection with this transaction pursuant to separate written agreements with
such brokers. Except as provided above, neither Party has had any contact or dealings regarding the
Property, or any communication in connection with the subject matter of this transaction, through
any other real estate broker or other person who can claim a right to a commission or finder’s fee
in connection with the sale contemplated herein. If any other broker or finder perfects a claim
for a commission or finder’s fee based upon any such contact, dealings or communication, the party through whom the broker or finder
makes its claim shall be responsible for said commission or fee and all costs and expenses
(including reasonable attorneys’ fees) incurred by the other party in defending against the same.
The provisions of this paragraph shall survive the Closing.
15.3 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, heirs, administrators and assigns.
15.4 No Oral Amendments. Except as otherwise provided herein, this Agreement may be
amended or modified only by a written instrument executed by Seller and Buyer.
-22-
15.5 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
15.6 Merger Prior to Amendments. This Agreement and the exhibits hereto constitute
the entire agreement between the parties and supersede all prior agreements and understandings
between the parties relating to the subject matter hereof.
15.7 Negotiated Agreement. Seller and Buyer acknowledge that this Agreement has been
negotiated and that each party has had an opportunity to have the Agreement reviewed by legal
counsel. Accordingly, notwithstanding the fact that this Agreement was prepared by Buyer’s
counsel, the doctrine that ambiguities in an agreement shall be construed against the drafting
party shall not be employed in connection with this Agreement.
15.8 Enforcement. If either Party commences legal proceedings to enforce the terms of
this Agreement, the prevailing party shall be entitled to recover from the other party its
attorneys’ fees and court costs incurred therein.
15.9 Time of the Essence. Seller and Buyer agree that time is of the essence of this
Agreement. If either Party fails to perform an obligation contained herein by the date such
performance is required, it shall not be deemed to be unreasonable for the other party to pursue
its remedies hereunder, including termination of this Agreement. Should any period of time
prescribed herein end on a Saturday, Sunday or legal holiday (recognized in San Francisco,
California), the period of time shall automatically be extended to 11:59 p.m. (or such other time
as is expressly provided herein) of the next full business day.
15.10 Severability. If any provision of this Agreement or the application thereof to
any person, place or circumstance shall be held by a court of competent jurisdiction to be invalid,
unenforceable or void, the remainder of this Agreement and such provisions as applied to other
persons, places and circumstances shall remain in full force and effect.
15.11 Tax Deferred Exchange. Both Parties shall have the right to complete the
transaction contemplated by this Agreement as an exchange which will qualify for nonrecognition of
gain
under Section 1031 of the Internal Revenue Code of 1986, as amended. Both Parties agree to
reasonably cooperate in effecting such an exchange transaction if requested to do so by the other
but at no cost to the non-exchanging party and without (i) accepting title to any other property
other than the Real Property, (ii) executing any promissory notes, deeds of trust or other
agreements (other than an acknowledgment of the assignment of rights to a qualified intermediary),
and (iii) providing any representations, warranties or indemnities to any third party. In the
event of such exchange, the exchanging party shall indemnify and hold the non-exchanging party
harmless from any and all liabilities, losses and expenses (including attorney’s fees) incurred by
the non-exchanging party arising from such exchange, which liabilities, losses and expenses would
not have been incurred if there had not been a exchange of properties. This indemnity and
hold-harmless shall survive the Close of Escrow.
-23-
15.12 Assignment. Except as provided below, Buyer shall not assign this Agreement
without the prior written consent of Seller, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Buyer shall have the right to assign this Agreement without Seller’s
consent to an entity that controls, is controlled by or under common control with Buyer, provided
that Buyer notifies Seller in writing of such assignment prior to the Close of Escrow and delivers
a copy of a fully executed written assignment at the Close of Escrow. Notwithstanding Seller’s
consent to any assignment, where consent is required, and notwithstanding Buyer’s assignment to an
entity that controls, is controlled by or under common control with Buyer, no such assignment or
delegation will release Buyer from any of its obligations under this Agreement.
15.13 Counterparts; Facsimile. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall constitute one and
the same document. Seller and Buyer each (i) has agreed to permit the use from time to time, where
appropriate, of facsimile signatures in order to expedite the transaction contemplated by this
Agreement, (ii) intends to be bound by its respective facsimile signature, (iii) is aware that the
other will rely on the facsimiled signature, and (iv) acknowledges such reliance and waives any
defenses to the enforcement of this Agreement and the documents affecting the transaction
contemplated by this Agreement based on the fact that a signature was sent by facsimile only.
15.14 Filing of Reports. The Title Company shall be solely responsible for the timely
filing of any reports or returns required pursuant to the provisions of Section 6045(e) of the
Internal Revenue Code of 1986 as amended (and any similar reports or returns required under any
state or local laws) in connection with the Closing.
15.15 Third Party Beneficiaries. This Agreement is for the benefit of Buyer and
Seller and their respective shareholders, partners and successors, and no third party shall be
entitled to the benefit of any of the provisions of this Agreement.
15.16 Survival. The provisions of this Agreement shall not merge with the delivery of
the Deed but shall, except as otherwise provided in this Agreement, survive the Closing.
15.17 Mutual Cooperation. Each party hereto agrees to execute, acknowledge and
deliver or to cause to have executed, acknowledged and delivered, such other and further
instruments and
documents as may reasonably be requested by the other to carry out this Agreement. Each party
hereto shall use its good faith efforts to cause satisfaction of all conditions to its obligation
under this Agreement, and to exercise good faith in fulfilling its obligations under this
Agreement.
15.18 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[SIGNATURES APPEAR ON NEXT PAGE]
-24-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
| SELLER: | BUYER: | |||||||||
| Palm, Inc., a Delaware corporation | Hunter/Storm, LLC, a California | |||||||||
| limited liability company | ||||||||||
By:
|
/s/ XXXXXX X. XXXXX | By: | /s/ XXXXXX X. STORM | |||||||
Name:
|
Xxxxxx X. Xxxxx | Name: | Xxxxxx X. Storm | |||||||
Title:
|
Senior Vice President and | Title: | Managing Member | |||||||
| Chief Financial Officer | ||||||||||
| (Principal Financial and | By: | /s/ XXXX X. XXXXXX XX. | ||||||||
| Accounting Officer) | Name: | Xxxx X. Xxxxxx Xx. | ||||||||
| Title: | Managing Member | |||||||||
-25-
EXHIBIT A
Legal description of the Real Property
[to be attached]
-26-
EXHIBIT B
Assignment and Assumption Agreement
This Assignment and Assumption Agreement (the “Assignment”) is made and entered into as of
this ___day of , 200___(“Assignment Date”), by and between Palm, Inc., a Delaware
corporation (“Assignor”), and Hunter/Storm, LLC, a California limited liability company
(“Assignee”), with reference to the following facts.
RECITALS
A. Assignor and Assignee are parties to that certain Purchase and Sale Agreement and Escrow
Instructions, made and entered into as of , 2006 (the “Purchase Agreement”), pursuant to
which Assignor agreed to sell to Assignee, and Assignee agreed to purchase from Assignor that
certain unimproved real property located in the City of San Xxxx, County of Santa Xxxxx, State of
California, as more particularly described on Exhibit A attached hereto and made a part hereof (the
“Real Property”), together with all of Seller’s right, title and interest in (i) all plans,
specifications, maps, drawings and other renderings of the Real Property and all licenses and
permits required in connection with the operation of the Property, (ii) all governmental zoning,
use and operating permits, and all other governmental permits, licenses, approvals, applications,
subdivision maps, entitlements, certificates, rights under development agreements, building
permits, development allocations, and development rights relating to the Real Property and all
utility and other permits relating to the Real Property; (iii) all warranties, claims, indemnities
and any similar rights relating to and benefiting the Property or the assets transferred hereby;
(iv) all intangible rights, goodwill and similar rights benefiting the Property; (v) all
development rights benefiting the Property; and (vi) all rights, claims or awards benefiting the
Property (collectively, the “Intangible Property”).
1. Assignment and Assumption. Effective as of the Assignment Date, Assignor hereby
grants, transfers, conveys, assigns and delegates to Assignee all of the rights and interests of
Assignor in, to and under the Intangible Property. Effective as of the Assignment Date, Assignee
hereby accepts such assignment and delegation by Assignor and agrees to fully perform and assume
all the obligations of Assignor under the Intangible Property.
2. No Warranties. Assignee does hereby covenant with Assignor, and represents and
warrants to Assignor, that Assignor is transferring the Intangible Property (to the extent the
terms of any of the foregoing do not limit or restrict such right) without any warranty or
representation of any kind or nature. This Assignment shall not be construed as a representation
or warranty by Assignor as to the transferability or enforceability of the Intangible Property, and
Assignor shall have no liability to Assignee in the event that any or all of the Intangible
Property (a) is not transferable to Assignee, or (b) is cancelled or terminated by reason of this
Assignment or any acts of Assignee.
3. Dispute Costs. 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 any
provision contained herein, the losing party shall pay the prevailing party’s costs and expenses of
such dispute, including without limitation,
-27-
reasonably attorneys’ fees and costs. Any such
attorneys’ fees and other expenses incurred by either party in enforcing a judgment in its favor
under this Assignment shall be recoverable separately from and in addition to any other amount
included in such judgment, and such attorneys’ fees obligation is intended to be severable from the
other provisions of this Assignment and to survive and not be merged into any such judgment.
4. Counterparts. This Assignment may be executed in counterparts, each of which shall
be deemed an original, and all of which shall taken together be deemed one document. Assignor and
Assignee agree that the delivery of an executed copy of this Assignment by facsimile shall be legal
and binding and shall have the same full force and effect as if an original executed copy of this
Assignment had been delivered.
5. Survival. This Assignment and the provisions hereof shall inure to the benefit of
and be binding upon the parties to this Assignment, and their respective successors, heirs and
permitted assigns.
6. Miscellaneous. This Assignment shall be governed by and construed in accordance
with the laws of the State of California. Any waiver by either party of any breach of any term or
condition of this Assignment shall not operate as a waiver of any other breach of such term or
condition or of any other term or condition, nor shall any failure to enforce such provision hereof
operate as a waiver of such provision or of any other provision hereof, nor constitute nor be
deemed as a waiver or release of any other party for anything arising out of, connected with or
based upon this Assignment.
7. Limited Liability. This Assignment is made without recourse and without any
express or implied representation or warranty of any kind or nature, except as expressly set forth
herein or in the Purchase Agreement. Assignee and Assignor on its own behalf and on behalf of its
agents, members, partners, employees, representatives, successors and assigns each hereby agrees
that in no event or circumstance shall any of the members, partners, employees, representatives,
officers, directors, agents, property management company, affiliated or related entities of
Assignor or of Assignee, have any personal liability under this Assignment, or to any of the
other’s creditors, or to any other party in connection with the Property.
8. No Third Party Beneficiaries. Except as otherwise expressly set forth herein,
Assignor and Assignee do not intend, and this Assignment shall not be construed, to create a
third-party beneficiary status or interest in, nor give any third-party beneficiary rights or
remedies to, any other person or entity not a party to this Assignment.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption Agreement
as of the Assignment Date..
| ASSIGNOR: | ASSIGNEE: | |||||||||
| Palm, Inc., a Delaware corporation | Hunter/Storm, LLC, a California limited liability company | |||||||||
By:
|
By: | |||||||||
Name:
|
Name: | |||||||||
Title:
|
Title: | |||||||||
-28-
EXHIBIT A
Property
Property
-29-
The land referred to in this report is situated in the State of California, County
of and is described as follows:
All that certain Real Property in the City of San Xxxx, County of Santa Xxxxx, State
of California, described as follows:
PARCEL ONE:
All of Parcel 1, as shown upon that certain Map entitled, “Amended Parcel Map”, which
Map was filed for record in the Office of the Recorder of the County of Santa Xxxxx,
State of California, on December 22, 1983 in Book 523 of Maps, at pages 7.
EXCEPTING THEREFROM:
All that certain real property situate in the City of San Xxxx, County of Santa Xxxxx,
State of California, being a portion of Parcel 1, as shown on the Amended Parcel Map
recorded in Book 523 of Maps at page 7, Santa Xxxxx County Records, being more
particularly described as follows:
Beginning at the most Westerly corner of said Parcel 1, being on the Northeasterly
line of North First Street; thence North 71°56’56” East, 341.59 feet along the
Northerly line of said Parcel 1; thence South 37°32’48” West, 281.82 feet to said
Northeasterly line of North First Street; thence along said Northeasterly line North
52°27’37” West, 193.00 feet to the true point of beginning.
ALSO EXCEPTING THEREFROM:
That portion described in the Grant Deed to the City of San Xxxx, a municipal
corporation recorded August 20, 1987 in Book K267, page 156 Official Records of Santa
Xxxxx County and being more particularly described as follows:
All that certain real property situate in the City of San Xxxx, County of Santa Xxxxx,
State of California, being a portion of Parcel 1 as shown on the Amended Parcel Map
recorded in Book 523 of Maps, at page 7, Santa Xxxxx County Records, being also a
portion of Parcel 2 as described in the deed recorded October 21, 1985 in Book J492 of
Official Records at page 1703, Santa Xxxxx County Records, being more particularly
described as follows:
Beginning at the most Southerly corner of the parcel of land described in the deed
recorded October 21, 1985 at Series Number 8564627, Book J492 of Official Records at
page 1698, Santa Xxxxx County Records; thence along the Southeasterly line of said
parcel described in said deed recorded October 21, 1985, North 37°32’48” East, 281.82
feet to the Northwesterly line of said Parcel 2; thence along said Northwesterly line
the following three courses: North 37°32’48” East, 20.53 feet; thence along a curve to
the right having a radius of 300.00 feet through a central angle of 7°12’ 34” for an
arc length of 37.75 feet; thence North 44°45’22” East, 261.02 feet to the Northeasterly
line of said Parcel 2; thence along said Northeasterly South 45°14’38” East, 27.00 feet
to a line that is parallel with and 27.00 Southeasterly of said Northwesterly line;
thence along said parallel line South 44°45’22” West, 261.02 feet; thence along a curve
to the left having a radius of 273.00 feet through a central angle of 7°12’34” for an
arc length of 34.35 feet; thence South 37°32’48” West, 252.35 feet; thence along a
curve to the left having a radius of 50.00 feet through a central of 90°00’00” for an
arc length of 78.54 feet to the Northeasterly line of North First Street; thence along
said Northeasterly line North 52°27’12” West, 77.00 feet to the point of beginning.
AND, IN ADDITION THERETO, THE FOLLOWING AREA:
TRANSFER AREA 1
Beginning at 4” x 4” stake marked A.D.C.M.1, standing on the Southerly line of the
Alviso and Milpitas Road, from which stake a stone monument standing at the point of
intersection of the South line of the Alviso and Milpitas Road with the center line of
the San Xxxx and Xxxxxx Road bears West 28.14 chains; running thence along the South
line of the Alviso and Milpitas Road East 38.88 chains to a 4” x 4” stake marked
C.M.N.M.1; thence S 7 deg. 20’ E., 7.835 chains to a 4” x 4” stake marked C.M.N.M.2
standing on the Southerly line of the lands formerly belonging to the Estate of Xxxx X.
Xxxxx; thence along said Southerly line S 88 deg. 55’ W., 36.74 chains to a 4” x 4”
stake marked M.4, thence S 59 deg. 57’ E., 1.322 chains to a 4” stake marked M.3;
thence S 71 deg. 48’ W., 3.35 chains to a 4” x 4” stake marked A.D.C.M. 3; thence N 1
deg. 28’ W. 5.02 chains to a 4” x 4” stake marked A.D.C.M.2; thence N 10 deg. 18’ W.,
5.474 chains to the place of beginning, and being Lot 2 as shown on the Map
accompanying the report of the sole commissioner in the Partition of the Estate of Xxxx
X. Xxxxx, deceased.
Excepting therefrom a portion of that Parcel of Land described in the Deed Recorded
September 21, 1966 as Instrument No. 3120626 in Book 7512, Page 79, Official Records of
Santa Xxxxx County, said portion being more particularly described as follows:
Commencing at the Northeasterly corner of that Parcel of Land described in the Deed to
the State of California, Recorded November 15, 1957 in Volume 3937, Page 635, Official
Records of Santa Xxxxx County; thence along the Northerly line of said Parcel (7512 OR
79) S. 89 deg. 01’ 21” E., 2959.87 feet, and N 74 deg. 49’ 08” E., 1314.86 feet to the
Easterly line of last said Parcel; thence along last said line S. 6 deg. 22’ 52” E., 76.47 feet;
thence S. 80 deg. 54’ 25” W., 72.96 feet to a line parallel with and distant 67.83 feet Southerly
at right angles, from the course described above as “N. 74 deg. 49’ 08” E., 1314.86 feet”; thence
along said parallel line S. 74 deg. 49’ 08” W., 1034.16 feet; thence along a tangent curve to the
right with a radius of 1395.00 feet through an angle of 16 deg. 09’ 31”, an arc length of 393.42
feet to a line parallel with and distant 65.59 feet Southerly, at right angles, from the course
described above as “S. 89 deg. 01’ 21” E., 2959.87 feet”; thence along last said parallel line N.
89 deg. 01’ 21” W., 2767.11 feet to the Easterly line of said State of California parcel; thence
along last said line N. 9 deg. 29’ 21” W., 66.70 feet to the point of commencement, as granted to
the State of California by Deed Recorded February 17, 1970 Series No. 3764080, Book 8830, Page 352
and Series No. 3764081, Book 8830, Page 355, Official Records Santa Xxxxx County.
ALSO EXCEPTING THEREFROM:
All that certain real property situate in the City of San Xxxx, County of Santa Xxxxx,
State of California, being a portion of the parcel of land described in the Deed
recorded July 26, 1984 in Book 1749 of Official Records, page 539, Santa Xxxxx County
Records, and being more particularly described as follows:
Beginning at the most Westerly corner of Parcel 1, as shown on the Amended Parcel Map
recorded in Book 523 of Maps, at page 7, Santa Xxxxx County Records, said corner being
on the Northeasterly line of North First Street; thence along the Northerly line of
said Parcel 1, North 71°56’56” East 787.15 feet to the Westerly line of said parcel
described in the said deed recorded July 26, 1984; thence along said Westerly line
North 1°19’04” West 327.06 feet to the true point of beginning; thence continuing along
said Westerly line North 1°19’04” West 4.26 feet; thence North 10°16’10” West 261.37
feet; thence leaving said Westerly line South 89°50’02” East 218.46 feet; thence South
0°09’58” West 88.17 feet; thence Southwesterly along a non-tangent curve to the left
having a radius of 325.00 feet whose xxxxxx xxxxx xxxxx Xxxxx 00x00’16” East, through a
central angle of 2°11’22” for an arc length of 12.42 feet; thence South 44°45’22” West
230.93 feet to the true point of beginning.
ALSO EXCEPTING THEREFROM:
That portion described in the Grant Deed to the City of San Xxxx, a municipal
corporation, recorded August 20, 1987, in Book K267, page 162, Official Records, and
being more particularly described as follows:
All that certain real property situate in the City of San Xxxx, County of Santa Xxxxx,
State of California, being a portion of the parcel of land described in the deed
recorded July 26, 1984 in Book 1749 of Official Records, at page 539, Santa Xxxxx
County Records, being also a portion of the Parcel 4 as described in the deed recorded
October 21, 1985 in Book J492 of Official Records, at page 1713, Santa Xxxxx County
Records, and being more particularly described as follows:
Beginning at the most Westerly corner of said Parcel 4; thence along the Northwesterly
line of said Parcel 4, North 44°45’22” East 278.16 feet to the Westerly line of said
Parcel described in said deed recorded July 26, 1984; thence along said Westerly line
North 1°19’04” West 37.49 feet to the Southeasterly line of Parcel 3, as described in
the deed recorded October 21, 1985 in Book J492 of Official Records, at page 1708,
Santa Xxxxx County Records; thence along said Southeasterly line North 44°45’22” East,
230.93 feet; thence Northeasterly along a curve to the right having a radius at 325.00
feet through a central angle of 45°24’36” for an arc length of 257.58 feet; thence South
89°50’02” East 2099.12 feet; thence along a curve to the left, having a radius of 2000.00 feet,
through a central angle of 6°03’43” for an arc length of 211.60 feet; thence North 84°06’15” East
709.89 feet; thence along a curve to the right having a radius of 350.00 feet through a central
angle of 31°13’08” for an arc length of 190.71 feet; thence South 64°40’37” East 358.91 feet;
thence along a curve to the right having a radius of 226.00 feet through a central angle of
42°17’12” for an arc length of 166.890 feet to a point of reverse curvature; thence along a curve
to the left having a radius of 173.00 feet through a central angle of 55°40’26” for an arc length
of 168.10 feet to a point compound curvature; thence along a curve to the left having a radius of
43.00 feet through a central angle of 106°08’43” for an arc length of 79.66 feet to a point of
reverse curvature; thence along a curve to the right having a radius of 1065.00 feet through a
central angle of 2°47’46” for an arc length of 51.97 feet; thence South 1°24’49” West 358.65 feet;
thence along a curve to the left having a radius of 931.00 feet through a central angle of 1°55’58”
for an arc length of 31.40 feet to a point on the Westerly line of Zanker Road; thence along said
Westerly line South 7°05’54” East 546.38 feet to the Southerly line of said parcel described in
said Deed recorded July 26, 1984; thence along said Southerly line South 88°44’54” West 72.55 feet;
thence Northwesterly along a non-tangent curve to the right having a radius of 226.00 feet whose
radius point bears North 0°26’07” East, through a central angle of 67°10’28” for an arc length of
264.97 feet to a point of reverse curvature; thence along a curve to the left having a radius of
173.00 feet through a central angle of 42°17’12” for an arc length of 127.68 feet; thence North
64°40’37” West 358.91 feet; thence along a curve to the left having a radius of 297.00 feet through
a central angle of 31°13’08” for an arc length of 161.83 feet; thence South 84°06’15” West 709.89
feet; thence along a curve to the right having a radius of 2053.00 feet through a central angle of
6°03’43” for an arc length of 217.71 feet; thence North 89°50’02” West 1574.68 feet; thence along a
curve to the left having a radius of 50.00 feet, through a central angle of 90°50’02” for an arc
length of 78.54 feet; thence South 0°09’58” West 247.88 feet; thence along curve to the right
having a radius of 177.00 feet through a central angle of 37°22’50” for an arc length of 115.48
feet to said Southerly line, being also the Northwesterly corner of Parcel 1 shown on the Parcel
Map recorded in Book 531 of Maps at page 42, Santa Xxxxx County Records; thence along said
Southerly line South 88°44’54” West 69.29 feet; thence leaving said line North
37°32’48” East 43.41 feet; thence along a curve to the left having a radius of 123.00 feet through
a central angle of 37°22’50” for an arc length of 80.25 feet; thence North 0°09’58” East 247.88
feet; thence along a curve to the left, having a radius of 50.00 feet through a central angle of
90°00’00” for an arc length of 78.54 feet; thence North 89°50’02” West 365.69 feet; thence along a
curve to the left having a radius of 280.00 feet through a central angle of 45°24’36” length of
221.92 feet; thence South 44°45’22” West 532.74 feet to the Southwesterly line of said Parcel 4;
thence along said Southwesterly North 45°14’38” West 27.00 feet to the point of beginning.
Also excepting therefrom:
That portion thereof as shown in that Final Order of Condemnation recorded March 30,
1994 in Book N373, page 560, Official Records, and all that portion lying thereof and
being more particularly described as follows:
All that certain real property situate in the City of San Xxxx, County of Santa Xxxxx,
described as follows:
described as follows:
Beginning at the Northwest corner of Parcel 3 as described in the deed from Highway 237
Associates, a California general partnership to Xxxx Xxxxxxxxx, et al, recorded October
21, 1985 in Book J492 of Official Records, at page 1708, Santa Xxxxx County Records;
thence from said point of beginning, along the Northerly prolongation of the Westerly
line of said Parcel 3 North 9°29’16” West 11.25 feet; thence leaving said Northerly
prolongation North 88°43’01” East 202.59 feet; thence North 89°49’56” East 330.95 feet;
thence North 0°58’44” East 6.61 feet to a point in the Southerly line of that certain 6.465 acre
parcel described in the deed from Xxxxxx X. X. Xxxx, et al., to the State of California, recorded
February 17, 1970 in Book 8830 of Official Records, at page 352, Santa Xxxxx County Records; thence
along said Southerly line South 89°01’16” East 1954.77 feet; thence leaving said Southerly line
South 86°14’18” East 317.01 feet to a point in the general Northerly line of the 6474 acre parcel
described in the Deed from Metropolitan Life Insurance Company, a New York Corporation to the City
of San Xxxx, a municipal corporation of the State of California recorded August 20, 1987 in Book
K267 of Official Records at page 162, Santa Xxxxx County Records; thence along said general
Northerly line the following courses: South 84°55’33” West, 51.74 feet; thence from a tangent
bearing of South 84°54’26” West along a curve to the right with a radius of 1999.89 feet, through a
central angle of 6°03’42” for an arc length of 211.58 feet; North 89°01’32” West 2099.03 feet; and
thence from a tangent bearing of North 89°01’57” West, along a curve to the left with a radius of
324.98 feet; through a central angle of 43°13’13” for an arc length of 245.14 feet, to the
Southeasterly corner of Said Parcel 3; thence along the Easterly line of said Parcel 3, North
0°58’29” East 88.17 feet to the Northeast corner of said Parcel 3; thence along the Northerly line
of said Parcel 3, North 89°01’31” West, 218.48 feet to the point of beginning.
ALSO EXCEPTING THEREFROM:
Beginning at the Southwest corner of that certain 6.465 acre parcel of land described
in the Deed from Xxxxxx X. X. Xxxx, et al, to the State of California, recorded
February 17, 1970 in Book 8830 of Official Records, at page 352, Santa Xxxxx County
Records, at page 352, Santa Xxxxx County Records; thence from said point of beginning,
along the Southerly line of said 6.465 acre parcel South 89°01’16” East 537.24 feet;
thence leaving said Southerly line, at right angles South 0°58’44” West 6.61 feet;
thence South 89°49’56” West 330.95 feet; thence South 88°43’01” West 202.59 feet to a
point in the Southerly prolongation of the Westerly line of said 6.4675 acre parcel;
thence along said Southerly prolongation North 9°29’16” West 21.59 feet to the point of
beginning.
Also excepting therefrom:
Being a portion of that parcel of land described in the Deed recorded June 5, 1987 in
Book K178 of Official Records, at page 366, Santa Xxxxx County Records, and being more
particularly described as follows:
Beginning at the Southeast corner of Lot 2 as shown on the Map accompanying the report of the Sole Commissioner in the Partition of the Estate of Xxxx X. Xxxxx, Deceased, said point of beginning being also the Southwest corner of Lot 3 as shown on said Map; thence South 88°44’54” West, 1510.35 feet along the Southerly line of said Lot 2, to the Easterly line of Headquarters Drive, said point being on a nontangent curve concave to the West having a radius of 177.00 feet and from which a radial bears North 52°27’12” West; thence Northeasterly and Northerly 115.48 feet along the arc of said curve and through a central angle of 37°22’50”; thence North 00°09’58” East 247.90 feet along the Easterly line of Headquarters Drive, to a curve to the right having a radius of 50.00 feet; thence Northeasterly 78.53 feet along the arc of said curve and through a central angle of 90°00’00”; thence South 89°50’27” East 1574.10 feet along the Southerly line of Holger Way to the Easterly line of said Lot 2; thence South 07°30’06” East 366.03 feet along said Eastern line to the point of beginning.
Beginning at the Southeast corner of Lot 2 as shown on the Map accompanying the report of the Sole Commissioner in the Partition of the Estate of Xxxx X. Xxxxx, Deceased, said point of beginning being also the Southwest corner of Lot 3 as shown on said Map; thence South 88°44’54” West, 1510.35 feet along the Southerly line of said Lot 2, to the Easterly line of Headquarters Drive, said point being on a nontangent curve concave to the West having a radius of 177.00 feet and from which a radial bears North 52°27’12” West; thence Northeasterly and Northerly 115.48 feet along the arc of said curve and through a central angle of 37°22’50”; thence North 00°09’58” East 247.90 feet along the Easterly line of Headquarters Drive, to a curve to the right having a radius of 50.00 feet; thence Northeasterly 78.53 feet along the arc of said curve and through a central angle of 90°00’00”; thence South 89°50’27” East 1574.10 feet along the Southerly line of Holger Way to the Easterly line of said Lot 2; thence South 07°30’06” East 366.03 feet along said Eastern line to the point of beginning.
AND, IN ADDITION THERETO, THE FOLLOWING AREA:
TRANSFER AREA 2
Real Property in the City of Xxx Xxxx, Xxxxxx xx Xxxxx Xxxxx, Xxxxx xx Xxxxxxxxxx
described as follows:
All that certain real property situate in the City of San Xxxx, County of Santa Xxxxx,
State of California, being a portion of that parcel of land described in the Deed
recorded May 3, 1979 in Book E464 of Official Records, at page 51, Santa Xxxxx County
Records, being more particularly described as follows:
Beginning at the most Westerly corner of Parcel 1, as shown on the Amended Parcel Map
recorded in Book 523 of Maps, at page 7, Santa Xxxxx County Records, said corner being
on the Northeasterly line of North First Street; thence along the Northerly line of said Parcel 1,
North 71°56’56” East 341.59 feet to the true point of beginning; thence continuing along said
Northerly line North 71 deg. 56’ 56” East 358.60 feet; thence North 45 deg. 14’ 38” West 168.78
feet; thence South 44 deg. 45’ 22” West 260.95 feet; thence along a curve to the left, having a
radius of 300.00 feet through a central angle of 7 deg. 12’ 34” 48” West 20.53 feet to the True
Point of Beginning.
Excepting therefrom:
That portion described in the Grant Deed to the city of San Xxxx, A Municipal
Corporation, recorded August 20, 1987 in Book K267, Page 156, Official Records of Santa
Xxxxx County, and being more particularly described as follows:
All that certain real property situate in the City of San Xxxx, County of Santa Xxxxx,
State of California, being a portion of Parcel 1, as shown on the Amended Parcel Map
recorded in Book 523 D Maps, at Page 7, Santa Xxxxx County Records, being also a
portion of Parcel 2 as described in the Deed, recorded October 21, 1985 in Book J492 of
Official Records, at Page 1703, Santa Xxxxx County Records, being more particularly
described as follows:
Beginning at the most Southerly corner of the Parcel of Land described in the Deed
recorded October 21, 1985 at Series No. 8564627, Book J492 of Official Records, at Page
1698, Santa Xxxxx County Records; thence along the Southeasterly line of said parcel
described in said Deed recorded October 21, 1985, North 37 deg. 32’ 48” East 281.82
feet to the Northwesterly line of said Parcel 2; thence along said Northwesterly line
the following three courses: North 37 deg. 32’ 48” East 20.53 feet; thence along a
curve to the right having a radius of 300.00 feet through a central angle of 7 deg. 12’
34” for an arc length of 37.75 feet; thence North 44 deg. 45’ 22” East 260.95 feet to
the Northeasterly line of said Parcel 2; thence along said Northeasterly line South 45
deg. 14’ 38” East 27.00 feet to a line that is parallel with and 27.00 feet Southeasterly of said
Northwesterly line; thence along said parallel line South 44 deg. 45’ 22” West, 260.95 feet; thence
along a curve to the left having a radius of 273.00 feet through a central angle of 7 deg. 12’ 34”
for an arc length of 34.35 feet; thence South 37 deg. 32’ 48” West 252.34 feet; thence along a
curve to the left having a radius of 50.00 feet through a central angle of 90 deg. 00’ 00” for an
arc length of 78.54 feet to the Northeasterly line of North First Street; thence along said
Northeasterly line North 52 deg. 27’ 12” West 77.00 feet to the Point of Beginning.
AND IN ADDITION THERETO, THE FOLLOWING AREA:
TRANSFER AREA 3
All that certain real property situate in the City of San Xxxx, County of Santa Xxxxx,
State of California, being a portion of that parcel of land described in the Deed
recorded May 3, 1979 in Book E464 of Official Records at page 51, Santa Xxxxx County
Records, being more particularly described as follows:
Beginning at the most Westerly corner of Parcel as shown on the Amended Parcel Map
recorded in Book 523 of Maps at page 7, Santa Xxxxx County Records, said corner being
on the Northeasterly line of North First Street; thence along the Northerly line of
said Parcel 1, North 71 deg 56’ 56” East 700.17 feet to the True Point of Beginning;
thence continuing along said Northerly line North 71 deg. 56’ 56” East 86.88 feet to
the Easterly line of said parcel of land described in the Deed recorded May 3, 1979;
thence along said Easterly line North 1 deg. 19’ 04” West 289.47 feet; thence leaving
said Easterly line South 44 deg. 45’ 22” West 278.09 feet; thence South 45 deg. 14’
38” East 168.78 feet to the True Point of Beginning.
Excepting therefrom:
That portion described in the Grant Deed to the City of San Xxxx, A Municipal
Corporation recorded August 20, 1987 in Book K267, Page 162 Official Records, and being
more particularly described as follows:
All that certain real property situate in the City of San Xxxx, County of Santa Xxxxx,
State of California, being a portion of Parcel of Land described in the Deed recorded
July 26, 1984 in Book 1749 of Official Records at Page 539, Santa Xxxxx County Records,
being also a portion of Parcel 4 as described in the Deed recorded October 21, 1995 in
Book J492 of Official Records at Page 1713, Santa Xxxxx County Records, being more
particularly described as follows:
Beginning at the Westerly corner of said Parcel 4; thence along the Northwesterly line
of said Xxxxxx 0, Xxxxx 00 xxx. 45’ 22” East 278.16 feet to the Westerly line of said
parcel described in said Deed recorded July 26, 1984; thence along said Westerly line
North 1 deg. 19’ 04” West 37.49 feet to the Southeasterly line of Parcel 3 as described
in the Deed recorded October 21, 1985 in Book J492 of Official Records, at Page 1708,
Santa Xxxxx County Records; thence along said Southeasterly line North 44 deg. 45’ 22”
East 230.93 feet; thence feet; thence Northeasterly along a curve to the right having a
radius of 325.00 feet through a central angle at 45 deg. 24’ 36” for an arc length of
257.58 feet; thence South 89 deg. 50’ 02” East 2099.12 feet; thence along a curve to
the left, having a radius of 2000.00 feet, through a central angle of 6 deg. 03’ 43”
for an arc length of 211.60 feet; thence North 84 deg. 06’ 15” East 709.89 feet; thence
along a curve to the right having a radius of 350.00 feet through a central angle of 31
deg. 13’ 08” for an arc length of 190.71 feet; thence South 64 deg. 40’ 37” East 358.85
feet; thence along a curve to the right having a radius of 226.00 feet through a central angle of
42 deg. 17’ 12” for an arc length of 166.80 feet to a point of reverse curvature; thence along a
curve to the left having a radius of 173.00 feet through a central angle of 55 deg. 40’ 26” for an
arc length of 168.10 feet to a point of compound curvature; thence along a curve to the left having
a radius of 43.00 feet through a central angle of 106 deg. 08’ 43” for an arc length of 79.66 feet
to a point of reverse curvature; thence along a curve to the right having a radius of 1065.00 feet
through a central angle of 2 deg. 47’ 46” for an arc length of 51.97 feet; thence North 1 deg. 24’
49” West 358.65 feet; thence along a curve to the left having a radius of 931.00 feet through a
central angle of 1 deg. 55’ 58” for an arc length of 31.40 feet to a point on the Westerly line of
Zanker Road; thence along said Westerly line South 7 deg. 05’ 54” East 546.69 feet to the Southerly
line of said parcel described in said recorded July 26, 1984; thence along said Southerly line
South 88 deg. 44’ 54” West 72.55 feet; thence Northwesterly along a non-tangent curve to the right
having a radius of 226.00 feet whose radius point bears North 0 deg. 26’ 07” East, through a
central angle of 68 deg. 51’ 41” for an arc length of 271.62 feet to a point of reverse
curvature; thence along a curve to the left having a radius of 173.00 feet through a central angle
of 42 deg. 17’ 12” for an length of 127.68 feet; thence North 64 deg. 40’ 37” West 358.85 feet;
thence along a curve to the left having a radius of 297.00 feet through a central angle of 31 deg.
13’ 08” for an arc length of 161.83 feet; thence South 84 deg. 06’ 15” West 709.89 feet; thence
along a curve to the right having a radius of 2053.00 feet through a central angle of 6 deg. 03’
20” for an arc length of 216.98 feet; thence North 89 deg. 50’ 25” West 1574.10 feet; thence along
a curve to the right having a radius of 50.00 feet, through a central angle of 90 deg. 00’ 00” an
arc length of 78.53 feet; thence South 0 deg. 09’ 58” West 247.90 feet; thence along a curve to the
right having a radius of 177.00 feet through a central angle of 37 deg. 22’ 50” for an arc length
of 115.48 feet to said Southerly line, being also the Northwesterly corner of Parcel 1 shown on the
Parcel Map recorded in Book 531 of Maps, at Page 42, Santa Xxxxx County Records; thence along said
Southerly line South 88 deg. 44’ 54” West 69.29 feet; thence leaving said line North 37 deg. 32’
48” East 43.41
feet; thence along a curve to the left having a radius of 123.00 feet through a central
angle of 37 deg. 22’ 50” for an arc length of 80.25 feet; thence North 0 deg. 09’ 58” East 247.88
feet; thence along a curve to the left having a radius of 50.00 feet through a central angle of 90
deg. 00’ 00” for an arc length of 78.53 feet; thence North 89 deg. 50’ 25” West 365.70 feet; thence
along a curve to the left having a radius of 280.00 feet through a central angle of 45 deg. 24’ 13”
for an arc length of 221.88 feet; thence South 44 deg. 45’ 22” West 532.79 feet to the
Southwesterly line of said Parcel 4; thence along said Southwesterly line North 45 deg. 14’ 38”
West 27.00 feet to the Point of Beginning.
PARCEL TWO:
Parcel One as shown on the certain Map entitled “Parcel Map, being a portion of Parcel
1 as shown on the Amended Parcel Map recorded in Book 523 of Maps at Page 9 and a
portion of Lot 1, as shown on the Map accompanying the Report of the Sole Commissioner
in the Partition of the Estate of Xxxx X. Xxxxx, Deceased and a portion of that parcel of land
conveyed by Deed No. 16421 to the State of California, recorded November 15, 1957 in Volume 3937,
Page 635 and lying in the city of San Xxxx, Santa Xxxxx County, California”, which Map was filed
for Record in the Office of the Recorder of the County of Santa Xxxxx, State of California on
October 29, 1996 in Book 683 of Maps, at Pages 44 and 45.
