EXHIBIT 10.01
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"),
is made and entered into as of the 8th day of March, 2004, by and between 20770
MADRONA, LLC, a California limited liability company (hereinafter referred to as
"Seller") and TRIPLE NET PROPERTIES, LLC, a Virginia limited liability company
(hereinafter referred to as "Purchaser").
W I T N E S S E T H :
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten and No/100 Dollars ($10.00) in hand
paid by Purchaser to Seller at and before the sealing and delivery of these
presents and for other good and valuable consideration, the receipt, adequacy,
and sufficiency of which are hereby expressly acknowledged by the parties
hereto, the parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance
with the terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) all that tract or parcel of land located in the City
of Torrance, Los Angeles County, California containing approximately
11.46 acres, and being more particularly described on Exhibit "A"
attached hereto (hereinafter referred to as the "Land"); and
(b) all rights, privileges, and easements appurtenant to
the Land, including all water rights, mineral rights, development
rights, air rights, reversions, or other appurtenances to said Land,
and all right, title, and interest of Seller, if any, in and to any
land lying in the bed of any street, road, alley, or right-of-way, open
or proposed, adjacent to or abutting the Land; and
(c) all buildings, structures, and improvements situated
on the Land, including, without limitation, that certain three-story
office building] containing approximately 211,407 square feet of net
rentable floor area, all parking areas and other amenities located on
the Land, and all apparatus, elevators, built-in appliances, equipment,
pumps, machinery, plumbing, heating, air conditioning, and electrical
and other fixtures located on the Land (all of which are together
hereinafter referred to as the "Improvements"); and
(d) all equipment, supplies, tools, furniture,
furnishings, office equipment, fittings, appliances, shades,
wall-to-wall carpet, draperies, screens and screening, art, awnings,
plants, shrubbery, landscaping, lawn care and building maintenance
equipment, vending machines and other furnishings or items of personal
property owned by Seller
and located at the Land and Improvements (all of which are together
hereinafter referred to as the "Personal Property"); and
(e) all of Seller's right, title, and interest, as
landlord or lessor, in and to each of the Leases (as hereinafter
defined) and any and all guaranties of the Leases; and
(f) all of Seller's right, title, and interest in and to
the plans and specifications with respect to the Improvements and any
guarantees, trademarks, rights of copyright, warranties, or other
rights related to the ownership of or use and operation of the Land,
Personal Property, or Improvements, all governmental licenses and
permits, and all intangibles associated with the Land, Personal
Property, and Improvements.
(g) of Seller's right, title and interest in and to the
contracts, if any, described on Exhibit "F" attached hereto (the
"Contracts"), to the extent the same survive the Closing or require
performance after Closing.
2. Xxxxxxx Money. Within two (2) business days after the full
execution of this Agreement, Purchaser shall deliver to United Title Company
("Escrow Agent"), whose offices are at 000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxxxxx, Xxxxxxxxxx 00000, Purchaser's check, payable to Escrow Agent, in the
amount of One Million Four Hundred Thousand Dollars ($1,400,000.00) (the
"Xxxxxxx Money"), which Xxxxxxx Money shall be held and disbursed by Escrow
Agent pursuant to this Agreement and Escrow Agent's standard instructions
attached hereto as Exhibit "I". The Xxxxxxx Money shall be paid by Escrow Agent
to Seller at Closing and shall be applied as a credit to the Purchase Price (as
hereinafter defined), or shall otherwise be paid to Seller or refunded to
Purchaser in accordance with the terms of this Agreement. All interest and other
income from time to time earned on the Xxxxxxx Money shall belong to Purchaser
and shall be disbursed to Purchaser at any time or from time to time as
Purchaser shall direct Escrow Agent, all as provided in the Escrow Agreement. In
no event shall any such interest or other income be deemed a part of the Xxxxxxx
Money.
3. Purchase Price. Subject to adjustment and credits as otherwise
specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be Forty-Five Million Nine
Hundred Thousand Dollars ($45,900,000.00). The Purchase Price shall be paid by
Purchaser to Seller at the Closing (as hereinafter defined) by wire transfer of
immediately available federal funds, less the amount of Xxxxxxx Money and
subject to prorations, adjustments, and credits as otherwise specified in this
Agreement.
4. Purchaser's Inspection and Review Rights.
(a) Commencing on the effective date of this Agreement
and subject to the rights of the Tenants (as hereinafter defined), upon
giving reasonable advance notice to Seller's property manager,
Purchaser and its agents, engineers, or representatives, with Seller's
reasonable, good faith cooperation, shall have the privilege of going
upon the Property as needed to inspect, examine, test, and survey the
Property at all reasonable times and from time to time. Purchaser shall
be additionally entitled to conduct interviews with the tenants
provided Purchaser has provided Seller with twenty-four (24) hours'
prior notice thereof and the opportunity to attend said meetings. Such
privilege
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shall include the right to make borings and other tests to obtain
information necessary to determine surface and subsurface conditions,
provided that such activities do not materially interfere with the
rights of Tenants or the ongoing operation of the Property.
(b) Purchaser shall maintain or shall cause to be
maintained at all times during its entry upon the Property, commercial
general liability insurance with limits of not less than One Million
and No/100 Dollars ($1,000,000.00) per occurrence combined single
limit. Such policy of insurance shall name Seller as an additional
insured, and such policy shall be primary with respect to the
activities of Purchaser and its agents, engineers or representatives at
the Property, whether or not Seller holds other policies of insurance.
If requested by Seller, a certificate issued by the insurance carrier
of such policy shall be delivered to Seller prior to entry upon the
Property by Purchaser or its agents, engineers or representatives.
(c) Purchaser hereby agrees to indemnify, defend (with
counsel selected by Purchaser and reasonably acceptable to Seller) and
hold Seller harmless from any liens, claims, liabilities, and damages
incurred through the exercise of the inspection privilege referred to
in Paragraph 4(a) (but excluding any liability arising out of the
existing environmental condition of the Property or the presence of
toxic or hazardous substances thereon and excluding any claims arising
out of a release of existing or in-place hazardous or toxic substances
on or under the Property), and Purchaser further agrees to repair any
damage to the Property caused by the exercise of such privilege
(excluding any damage arising out of a release of existing or in-place
hazardous or toxic substances on or under the Property. The foregoing
indemnification and repair obligations of Purchaser shall survive the
termination of this Agreement.
(d) At all reasonable times prior to the Closing, Seller
shall make available to Purchaser, or Purchaser's agents and
representatives, at Seller's office in Los Angeles, California for
review and copying at Purchaser's expense, all books, records, and
files relating to the ownership and operation of the Property,
including, without limitation, title matters, tenant files, tenant
credit information, commission agreements, service and maintenance
agreements, maintenance records for HVAC and other equipment and the
roof(s) on the Improvements, as-built plans and specifications,
environmental reports, engineering reports, reports of insurance
carriers insuring the Property, and other contracts, books, records,
operating statements, expense budgets, and other information relating
to the Property. Seller further agrees to provide to Purchaser prior to
the date which is five (5) days after the effective date of this
Agreement, to the extent the same are in the possession of or under the
control of Seller, the most current boundary and "as- built" surveys of
the Land and Improvements and any title insurance policies,
environmental reports, certificates of occupancy, building permits,
zoning letters and instruments reflecting the approval of any
association governing the Property or relating thereto. At no cost or
liability to Seller. Seller shall cooperate with Purchaser, its
counsel, accountants, agents, and representatives, provide them with
access to Seller's books and records with respect to the ownership,
management, maintenance, and operation of the Property for the
applicable period, and permit them to copy the same. At no cost to
Purchaser, Seller shall use commercially reasonable efforts to cause
the authors
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of environmental reports to issue reliance letters addressed to
Purchaser and Purchaser's lender, if any, in form and substance
reasonably acceptable to Purchaser, at least five (5) days prior to the
expiration of the Inspection Period. Notwithstanding the terms of this
Paragraph 4, Seller has not and shall not be required to provide or
make available to Purchaser copies of appraisals, building inspection
reports, internal financial analysis and calculations, documents
protected by the attorney-client or attorney work-product privileges,
Seller's formative documents or that of its members or investors
(except to the extent required to confirm the authority of Seller to
execute this Agreement and consummate the transaction contemplated
hereby), or Seller's inter-partner communications. In addition,
Purchaser agrees to return to Seller or otherwise destroy all documents
provided by Seller to Purchaser relating to the Property if Purchaser
or Seller terminates this Agreement, except for documentation retained
by Purchaser in connection with any pending or threatened litigation
related to such termination or claimed default by Seller or Purchaser.
(e) Seller acknowledges that Purchaser may be required by
the Securities and Exchange Commission to file audited financial
statements for one (1) to three (3) years with regard to the Property.
At no cost or liability to Seller, Seller shall (i) reasonably
cooperate with Purchaser, its counsel, accountants, agents, and
representatives, provide them with access to Seller's books and records
with respect to the ownership, management, maintenance, and operation
of the Property for the applicable period, and permit them to copy the
same, and (ii) execute a form of accounting letter in the form attached
hereto as Exhibit "N". Purchaser will pay the costs associated with any
such audit.
(f) To the extent Seller provides Purchaser with any
information regarding the Property, Purchaser will be solely
responsible for evaluating any such information provided by Seller to
Purchaser for purposes of determining the suitability of the Property
for Purchaser's intended use, and Seller makes no representations or
warranties concerning such information.
(g) If Purchaser or Seller terminates this Agreement and
Seller is not in default of its obligations hereunder, Seller agrees to
deliver to Purchaser copies of third-party reports, but excluding
appraisals and documents protected by the attorney-client or
work-product privileges, within thirty (30) days after the date of
termination.
5. Special Condition to Closing. Purchaser shall have a period
from the effective date hereof until March 8, 2004 (the "Inspection Period") to
make investigations, examinations, inspections, market studies, feasibility
studies, lease reviews, and tests relating to the Property and the operation
thereof in order to determine, in Purchaser's sole opinion and discretion, the
suitability of the Property for acquisition by Purchaser. Purchaser shall have
the right to terminate this Agreement at any time prior to the expiration of the
Inspection Period by giving written notice to Seller of such election to
terminate. In the event Purchaser so elects to terminate this Agreement, Seller
shall be entitled to retain the sum of Twenty-Five Dollars ($25.00) of the
Xxxxxxx Money, and the balance of the Xxxxxxx Money shall be refunded by Seller
to Purchaser, whereupon, except as expressly provided to the contrary in this
Agreement, no party hereto shall have any other or further rights or obligations
under this Agreement. Seller
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acknowledges that the sum of $25.00 is good and adequate consideration for the
termination rights granted to Purchaser hereunder.
6. General Conditions Precedent to Purchaser's Obligations
Regarding the Closing. In addition to the conditions to Purchaser's obligations
set forth in Paragraph 5 above, the obligations and liabilities of Purchaser
hereunder shall in all respects be conditioned upon the satisfaction of each of
the following conditions prior to or simultaneously with the Closing, any of
which may be waived by written notice from Purchaser to Seller:
(a) Seller has complied with and otherwise performed, in
all material respects each of the covenants and obligations of Seller
set forth in this Agreement.
(b) All representations and warranties of Seller as set
forth in this Agreement shall be in all material respects true and
correct when made and as of the date of Closing.
(c) There has been no adverse change to the title to the
Property since the effective date of the Title Commitment (as
hereinafter defined) which has not been cured and the Title Company (as
hereinafter defined) has issued an owner's title insurance commitment
on the Land and Improvements and is prepared to issue to Purchaser upon
the Closing a fee simple owner's title insurance policy on the Land and
Improvements which shall include only the Permitted Exceptions in
Schedule B thereof.
(d) Purchaser shall have received by March 25, 2004, each
Tenant's Estoppel Certificate referred to in Paragraph 9(d) hereof,
duly executed by each such Tenant and the Guarantor Estoppel
Certificate duly executed by Deere & Company. If Purchaser has not
received all such estoppels and the subordination non-disturbance and
attornment agreements described in 6(e) below, Seller shall be
permitted to extend the Closing Date until the later of (i) April 25,
2004 or (ii) five (5) days after the receipt of all such estoppels, to
permit Seller to secure such estoppels.
(e) Purchaser shall have received by March 25, 2004, a
Subordination, Non-Disturbance and Attornment Agreement from each
tenant in a form consistent with those specified in tenant's leases. If
feasible, Seller will endeavor to use Purchaser's LaSalle Bank form of
agreement.
In the event Purchaser shall terminate this Agreement as a result of the
non-satisfaction of any of the foregoing conditions, Purchaser shall be entitled
to an immediate return of the Xxxxxxx Money from Escrow Agent. The
non-satisfaction of any of the foregoing conditions shall not, in and of itself,
be construed to be a default by Seller hereunder.
7. Title to the Property. Good and marketable fee simple record
title to the Land and Improvements shall be conveyed by Seller to Purchaser by
Grant Deed, free and clear of all liens, easements, restrictions, and
encumbrances whatsoever, excepting only the matters set forth on Exhibit "C"
attached hereto (hereinafter referred to as the "Permitted Exceptions").
(a) Purchaser has obtained from United Title Company
(herein referred to as "Title Company") its commitment (hereinafter
referred to as the "Title Commitment") to
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issue to Purchaser upon the recording of the Grant Deed conveying title
to the Land and Improvements from Seller to Purchaser, the payment of
the Purchase Price, and the payment to the Title Company of the policy
premium therefor, an ALTA owner's policy of title insurance, in the
amount of the Purchase Price, insuring good and marketable fee simple
record title to the Land and Improvements to be in Purchaser without
exception (including any standard exception) except for the Permitted
Exceptions, which contains the following endorsements to the extent the
same are available in the State of California: comprehensive, zoning,
covenants and restrictions, creditor's rights, survey, and access
(provided, however that Purchaser shall be solely responsible for the
portion of the premium charged by the Title Company in order to upgrade
the title policy from a CLTA policy to an ALTA policy and the cost of
any premiums charged by Title Company in connection with any and all
such endorsements). The title policy issued pursuant to the Title
Commitment shall not contain any exception for mechanic's or
materialmen's liens or any exception for unpaid taxes other than an
exception for taxes for 2004 and subsequent years not yet due or
payable. The title policy issued pursuant to the Title Commitment shall
not contain any exception for rights of parties in possession other
than an exception for the rights of the Tenants (as hereinafter
defined), as tenants only, under the Leases. The title policy issued
pursuant to the Title Commitment shall not contain an exception for the
state of facts which would be disclosed by a survey of the Property or
an "area and boundaries" exception, and in lieu thereof, the Title
Commitment shall contain an exception only for the matters shown on the
current as-built survey to be provided by Seller to Purchaser in
accordance with Paragraph 9(g) hereof. The title policy issued pursuant
to the Title Commitment shall also contain such other special
endorsements as Purchaser shall reasonably require (the
"Endorsements"). Purchaser has delivered to Seller a true and complete
copy of the Title Commitment.
(b) Purchaser has also received Seller's most recent
survey of the Property prepared by Dubron & Associates, dated September
24, 1999, last revised August 7, 2000, which shows that the Property
contains 893 parking spaces. From time to time, Purchaser may request
an update to the effective date of such Title Commitment or may update
the date of the survey and give notice to Seller of all defects or
objections appearing subsequent to the effective date of the Title
Commitment (or previous update thereof) or survey, as the case may be
(including any reduction of parking spaces). Seller agrees to cause the
satisfaction and release of the monetary encumbrances on the Property
in favor of Fremont Investment and Loan and South Xxxxxxx Investment
Corporation. All matters disclosed by an updated Title Commitment
and/or survey and not objected to by Purchaser within five (5) days
after receipt of such updates shall be deemed to be additional
"Permitted Exceptions"; provided, however, encumbrances created by
Seller in violation of this Agreement, taxes due and payable prior to
Closing, and any mortgages, deeds of trust, mechanic's or materialmen's
liens and other such monetary encumbrances shall in no event be deemed
to be Permitted Exceptions.
Seller shall have five (5) days after receipt of such notice
of title defects or objections from Purchaser to advise Purchaser in
writing which of such title defects or objections Seller does not
intend to satisfy or cure; provided, however. Seller hereby agrees that
Seller shall satisfy or cure prior to Closing any such defects or
objections
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consisting of encumbrances created by Seller in violation of this
Agreement, any taxes due and payable prior to Closing, and any
mortgages, deeds of trust, mechanic's or materialmen's liens and other
such monetary encumbrances. In the event Seller fails to give such
written advice to Purchaser within such five (5) day period, Seller
shall be deemed to have agreed to satisfy or cure all such defects or
objections set forth in Purchaser's notice. If Seller shall advise
Purchaser in writing that Seller does not intend to satisfy or cure any
specific encumbrances which Seller is not obligated to satisfy or cure
under the second preceding sentence, Purchaser may elect either (a) to
terminate this Agreement by written notice to Seller, in which event
the Xxxxxxx Money shall be immediately refunded to Purchaser and this
Agreement shall be of no further force or effect and Purchaser and
Seller shall have no further rights, obligations or liabilities
hereunder, except for the obligations hereunder which expressly survive
termination, or (b) to accept title subject to such specific
encumbrances, in which case such specific encumbrances shall become
additional "Permitted Exceptions". Seller shall have until Closing to
satisfy or cure all such defects and objections which Seller agreed (or
is deemed to have agreed) to satisfy or cure as provided above. In the
event Seller fails or refuses to cure any defects and objections which
are required herein to be satisfied or cured by Seller prior to the
Closing, then (i) Purchaser may terminate this Agreement by written
notice to Seller, in which event the Xxxxxxx Money shall be immediately
refunded to Purchaser, and this Agreement shall be of no further force
and effect and Purchaser and Seller shall have no further rights,
obligations or liabilities hereunder, except for the obligations which
expressly survive termination.
8. Representations and Warranties of Seller. Seller hereby makes
the following representations and warranties to Purchaser, each of which shall
be deemed material:
(a) Leases. Attached hereto as Exhibit "D" is a complete
list setting forth all leases in effect relating to the Property and
all modifications and amendments to such leases (such leases, as
modified and amended, being herein collectively referred to as the
"Leases" or individually as "Lease"). Seller has delivered to Purchaser
complete and accurate copies of all of the Leases. Seller is the
"landlord" under all of the Leases and owns unencumbered legal and
beneficial title to all of the Leases and the rents and other income
thereunder, subject only to the collateral assignment of the Leases and
rents thereunder in favor of the holder of a deed of trust encumbering
the Property, which deed of trust shall be cancelled and satisfied by
Seller at the Closing. The lessees or tenants identified in the Leases
are hereinafter collectively referred to as "Tenants" or individually
as "Tenant".
(b) INTENTIONALLY OMITTED.
(c) Leases - Assignment. To the best of Seller's
knowledge, no Tenant has assigned its interest in its Lease or sublet
any portion of the premises leased to such Tenant under its Lease.
(d) Leases - Default, (i) Seller has not received any
notice of termination or default under any of the Leases, (ii) to the
best of Seller's knowledge, there are no existing or uncured defaults
by Seller, by any predecessor landlord, or, by any Tenant
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under the Leases, (iii) to the best of Seller's knowledge there are no
events which with passage of time or notice, or both, would constitute
a default by Seller or by any Tenant, and, to the best of Seller's
knowledge, Seller has complied with each and every material
undertaking, covenant, and obligation of Seller under each Lease
required to be performed or observed through the date hereof, (iv) no
Tenant has asserted in writing to Seller any defense, set-off, or
counterclaim with respect to its tenancy or its obligation to pay rent,
additional rent, or other charges pursuant to its Lease, and (v) to the
best of Seller's knowledge, no Tenant is using its premises in
violation of an "exclusive" granted to another Tenant or occupant of
the Property.
(e) Leases - Rents and Special Consideration. Except as
reflected on the Tenant Concession and Commission Schedule attached
hereto as Exhibit "E", no Tenant: (v) has prepaid rent for more than
the current month under such Tenant's Lease, (vi) is entitled to
receive any rent concession (not already taken) in connection with its
tenancy under its Lease, (vii) is entitled to any special work (not yet
performed) or consideration (not yet given) in connection with its
tenancy, and (viii) has any deed, option, or other evidence of any
right or interest in or to the Property, except for such Tenant's
tenancy as evidenced by the express terms of the Tenant's Lease. Seller
shall deliver to Purchaser at closing an amount equal to the
undisbursed tenant allowance sums set forth in Exhibit "E".
(f) Leases - Commissions. No rental, lease, or other
commissions with respect to any Lease are payable to Seller, to any
partner or member of Seller, any party affiliated with or related to
Seller or any partner or member of Seller or to any third party
whatsoever. All commissions payable under, relating to, or as a result
of the Leases have been cashed-out and paid and satisfied in full by
Seller or by Seller's predecessor in title to the Property, and no
further commissions shall be due or payable as a result of any Lease,
excluding, however, any brokerage commissions for any extension of the
term of any Lease or any expansion of the space leased thereunder
pursuant to the commission agreements described on the Tenant
Concession and Commission Schedule attached hereto as Exhibit "E".
Seller has delivered to Purchaser complete and accurate copies of all
such commission agreements. Upon Closing, Seller shall have no further
responsibility or liability for any brokerage commissions due upon any
extension of the terms of any Lease or any expansion of the space
leased thereunder, if any.
(g) Leases - Acceptance of Premises. Seller has not
received notice from any Tenant that such Tenant's premises are not in
full compliance with the terms and provisions of such Tenant's Lease or
are not satisfactory for such Tenant's purposes. None of the Tenants
has indicated to Seller in writing its request or its intent to
terminate its Lease prior to the expiration of the respective term of
such Lease or to reduce the size of the premises leased by such Tenant.
(h) Service Contracts. Attached hereto as Exhibit "F" is
a complete and accurate list and description of all of the service
contracts, management agreements, or other agreements (other than the
Leases) which are in effect and which relate to the operation,
management, or maintenance of the Property (said agreements being
herein collectively referred to as the "Service Contracts"). Seller has
provided Purchaser with
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complete and accurate copies of all Service Contracts. All such Service
Contracts are in full force and effect in accordance with their
respective provisions, all payments required to be made by Seller or
the "Owner" thereunder have been paid in full, and, to the best of
Seller's knowledge, there is no default, or claim of default, or any
event which the passage of time or notice, or both, would constitute a
default on the part of any party to any of such Service Contracts. All
such Service Contracts are terminable without penalty or obligation to
pay any severance or similar compensation on no more than thirty (30)
days' notice, except as expressly set forth on Exhibit "F". Seller
agrees to cancel, effective no later than the Closing, any of the
Service Contracts specified by Purchaser in a written notice to Seller
given at least thirty (30) days prior to the Closing. All Service
Contracts are assignable by Seller to Purchaser and no Service Contract
prohibits such assignment or provides for any right, claim, or cause of
action against Purchaser or the Property upon such Assignment. Except
as may otherwise be agreed in writing by Purchaser and Seller, Seller
has cancelled or will cancel, effective as of the Closing, any
agreement in the nature of a management agreement or service contract
between Seller and any partner or member of Seller or any party
affiliated with or related to Seller or any partner or member of
Seller. Notwithstanding the foregoing, the Simplex security system
agreement has been prepaid in advance, shall survive the Closing and is
to be prorated as of the Closing Date.
(i) Warranties and Guaranties. Attached hereto as Exhibit
"G" is a complete and accurate list and description of all of the
warranties and guaranties of contractors, vendors, manufacturers and
other parties which are known by Seller to be in effect and to relate
to the Property.
(j) No Other Agreements. Other than the Leases, the
Service Contracts, and the Permitted Exceptions, there are no leases,
service contracts, management agreements, or other agreements or
instruments in force and effect, oral or written, that grant to any
person whomsoever or any entity whatsoever any right, title, interest
or benefit in or to all or any part of the Property, any rights to
acquire all or any part of the Property or any rights relating to the
use, operation, management, maintenance, or repair of all or any part
of the Property.
(k) No Litigation. No actions, suits, or proceedings are
pending, or to the best of Seller's knowledge have been threatened by
any organization, person, individual, or governmental agency that
concerns or affects the Property or Seller's right to perform its
obligations hereunder. Seller also has no knowledge of any pending or
threatened application for changes in the zoning applicable to the
Property or any portion thereof.
(l) Condemnation. No condemnation or other taking by
eminent domain of the Property or any portion thereof has been
instituted and, to the best of Seller's knowledge, there are no pending
or threatened condemnation or eminent domain proceedings (or
proceedings in the nature or in lieu thereof) affecting the Property or
any portion thereof or its use.
(m) Proceedings Affecting Access. To the best of Seller's
knowledge, the Property is served by curb cuts for direct vehicular
access to and from Xxxxxxx Xxxxxx
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and Civic Center Drive adjoining the Property. To the best of Seller's
knowledge, there are no pending or threatened proceedings that would
have the effect of impairing or restricting access between the Property
and such adjacent public roads.
(n) No Roll-Back Taxes. To the best of Seller's
knowledge, the Property has not been classified under any designation
authorized by law to obtain a special low ad valorem tax rate or to
receive a reduction, abatement or deferment of ad valorem taxes which,
in such case, will result in additional, catch-up or roll-back ad
valorem taxes in the future in order to recover the amounts previously
reduced, abated or deferred.
(o) No Assessments. To the best of Seller's knowledge, no
assessments have been made against the Property that are unpaid,
whether or not they have become liens, and no impact fees or similar
charges or sums are payable as result of the construction of the
Improvements.
(p) Certificates. There are presently in effect permanent
certificates of occupancy, licenses, and permits as may be required for
the Property, and the present use and occupation of the Property is in
compliance and conformity with the certificates of occupancy and all
licenses and permits. Within three (3) days after the effective date of
this Agreement, Seller shall provide Purchaser with complete and
accurate copies of all such Certificates of Occupancy, licenses and
permits which are known by Seller to relate to the Property and which
are in the possession or control of Seller. To the best of Seller's
knowledge, there has been no notice or request of any municipal
department, insurance company or board of fire underwriters (or
organization exercising functions similar thereto), directed to Seller
and requesting the performance of any work or alteration in respect to
the Property which has not been complied with.
(q) Compliance With Governmental Requirements. Seller has
received no notice of any violations of law, municipal or county
ordinances, or other legal requirements with respect to the Property,
including any legal requirements with respect to the use, occupancy or
construction of the Improvements. To the best of Seller's knowledge,
the Property is currently zoned in a classification such as will permit
the operation of the Property as a three-story office building and the
conditions, if any, to the granting of the zoning of the Property have
been satisfied. To the best of Seller's knowledge, the Property is not
located in a wetland area or in a designated or recognized flood plain,
flood plain district, flood hazard area or area of similar
characterization or in an area of special risk with respect to earth
movement, rising groundwater, or other natural hazards.
(r) Utilities. To the best of Seller's knowledge, all
utilities necessary for the use of the Property as an office building
of the size and nature situated thereon, including water, sanitary
sewer, storm sewer, natural gas, electricity, and telephone, are
installed and operational, and such utilities either enter the Property
through adjoining public streets, or, if they pass through adjoining
private land, do so in accordance with valid public easements or
private easements which inure to the benefit of the Property.
10
(s) Surveys. Seller has heretofore delivered to Purchaser
the most current boundary and "as-built" surveys of the Land and
Improvements in the possession or control of Seller.
(t) Initial Utility Charges. All installation and
connection charges for utilities serving the Property have been paid in
full.
(u) No Liens. Except for the contractors, subcontractors,
and other persons or entities described in the form of Owner's
Declaration provided by the Title Company, all contractors,
subcontractors, and other persons or entities furnishing work, labor,
materials, or supplies by or at the instance of Seller for the Property
have been paid in full and, other than routine ongoing charges pursuant
to the Service Contracts, there are no claims against the Property or
Seller in connection therewith. Purchaser acknowledges that Honda and
Kaiser are performing their own tenant improvements for their
respective premises on the Property, that Seller will not be providing
to Title Company or Purchaser an indemnity therefor, and that Seller
shall have no liability for any mechanics' liens relating to said
tenant improvements.
(v) No Liens Upon Building Service Equipment. None of the
fixtures, equipment, apparatus, fittings, machinery, appliances,
furniture, furnishings, and articles of personal property attached or
appurtenant to, or used in connection with the occupation or operation
of, all or any part of the Property are leased by Seller from third
parties, and all of same which are owned by Seller, including the
Personal Property, are free of any and all liens, encumbrances,
charges, or adverse interests, except for the security interest granted
to the holder of the existing deed of trust encumbering the Property,
which security interest shall be terminated or cancelled at the time of
the Closing. The foregoing representation and warranty shall not apply
to any construction equipment owned by Seller which is located at the
property which is being used for the tenant improvement work for Honda
and Kaiser and is not otherwise used in the operation of the Property.
(w) Tax Returns. All property tax returns required to be
filed by Seller relating to the Property under any law, ordinance,
rule, regulation, order, or requirement of any governmental authority
have been, or will be, as the case may be, truthfully, correctly, and
timely filed.
(x) Employees. There are no employment, collective
bargaining, or similar agreements or arrangements between Seller and
any of its employees or others which will be binding on Purchaser or
any of Purchaser's successors in title.
(y) Bankruptcy. Seller is solvent and has not made a
general assignment for the benefit of creditors nor been adjudicated a
bankrupt or insolvent, nor has a receiver, liquidator, or trustee for
any of Seller's properties (including the Property) been appointed or a
petition filed by or against Seller for bankruptcy, reorganization, or
arrangement pursuant to the Federal Bankruptcy Act or any similar
Federal or state statute, or any proceeding instituted for the
dissolution or liquidation of Seller.
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(z) Pre-existing Right to Acquire. No person or entity
has any right or option to acquire the Property or any portion thereof
which will have any force or effect after execution hereof, other than
Purchaser and the tenants under the Leases.
(aa) Authorization. Seller is a duly organized and validly
existing limited liability company under the laws of the State of
California and has duly registered and is qualified to transact
business in the State of California. This Agreement has been duly
authorized and executed on behalf of Seller, all necessary action on
the part of Seller to authorize the transactions herein contemplated
has been taken, and no further action is necessary for such purpose,
and this Agreement constitutes the valid and binding agreement of
Seller, enforceable in accordance with its terms, subject to
bankruptcy, insolvency and similar laws affecting generally the
enforcement of creditor's rights. Neither the execution and delivery of
this Agreement nor the consummation of the transaction contemplated
hereby will (i) be in violation of Seller's Articles of Organization or
Operating Agreement, (ii) conflict with or result in the breach or
violation of any law, regulation, writ, injunction or decree of any
court or governmental instrumentality applicable to Seller, or (iii)
constitute a breach of any evidence of indebtedness or agreement of
which Seller is a party or by which Seller is bound.
(bb) Seller Not a Foreign Person. Seller is not a "foreign
person" which would subject Purchaser to the withholding tax provisions
of Section 1445 of the Internal Revenue Code of 1986, as amended.
(cc) Hazardous Substances. To the best of Seller's
knowledge, and except as otherwise disclosed in the environmental
reports delivered to Purchaser by Seller, (ix) no "hazardous
substances", as that term is defined in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. Section 9601, et seq., the Resource Conservation and Recovery
Act of 1976, as amended, 42 U.S.C. Section 6901, et seq., and the rules
and regulations promulgated pursuant to these acts, any so-called
"super-fund" or "super lien" laws or any applicable state or local
laws, nor any other pollutants, toxic materials, or contaminants have
been or shall prior to Closing be discharged, disbursed, released,
stored, treated, generated, disposed of, or allowed to escape on the
Property, (x) no asbestos or asbestos containing materials have been
installed, used, incorporated into, or disposed of on the Property,
(xi) no polychlorinated biphenyls are located on or in the Property, in
the form of electrical transformers, fluorescent light fixtures with
ballasts, cooling oils, or any other device or form, (xii) no
underground storage tanks are located on the Property or were located
on the Property and subsequently removed or filled, (xiii) no
investigation, administrative order, consent order and agreement,
litigation, or settlement with respect to hazardous substances is
proposed, threatened, anticipated or in existence with respect to the
Property, and (xiv) the Property has not previously been used as a
landfill, cemetery, or as a dump for garbage or refuse.
At Closing, Seller and Purchaser shall represent and warrant to each other that
all such representations and warranties of each party in this Agreement remain
true and correct as of the date of the Closing, except for any changes in any
such representations or warranties that occur and are disclosed by the party
making such representation or warranty (either to Purchaser or
12
Seller, as the case may be ), expressly and in writing at any time and from time
to time prior to Closing upon their occurrence, which disclosures shall
thereafter be updated by such party to the date of Closing. Each and all of the
express representations and warranties made and given by Seller or Purchaser
herein shall survive the execution and delivery of the Grant Deed by Seller to
Purchaser for a period of six (6) months after the Closing, except to the extent
that a notice of breach of any representation or warranty has been given prior
to such expiration. If there is any material change in any of Seller's
representations or warranties and Seller does not cure or correct such changes
prior to Closing, then Purchaser may, at Purchaser's option, (xv) close and
consummate the transaction contemplated by this Agreement, except that after
such closing and consummation Purchaser shall have the right to seek monetary
damages from Seller for any such changes willfully caused by Seller or any such
representations or warranties willfully breached by Seller, or (xvi) terminate
this Agreement by written notice to Seller, whereupon the Xxxxxxx Money shall be
immediately returned to Purchaser, and thereafter the parties hereto shall have
no further rights or obligations hereunder, except only (1) for such rights or
obligations that, by the express terms hereof, survive any termination of this
Agreement and (2) that Purchaser shall have the right to seek monetary damages
from Seller for any changes in such representations and warranties willfully
caused by Seller or any such representations and warranties willfully breached
by Seller.
Whenever a representation or warranty is made in this Agreement "to the
best knowledge of Seller", such representation and warranty is made solely on
the basis of the actual, as distinguished from implied, imputed and
constructive, knowledge on the date of such representation or warranty is made
of Xxxx Xxxxxxxxxxx and Xxxxx Xxxxxxx, principals of Seller having
responsibility for the management, operation and sale of the Property, without
attribution to Xxxx Xxxxxxxxxxx and Xxxxx Xxxxxxx of facts and matters otherwise
within the personal knowledge of any other principals or employees of Seller or
third parties. Xxxx Xxxxxxxxxxx and Xxxxx Xxxxxxx shall have no personal
liability or obligation hereunder to Purchaser nor shall such individuals owe
any duty whatsoever to Purchaser.
9. Seller's Additional Covenants. Seller does hereby further
covenant and agree as follows:
(a) Operation of Property. Seller hereby covenants that,
from the date of this Agreement up to and including the date of
Closing, Seller shall: (i) [intentionally omitted], (ii) not modify,
amend, or terminate any of the Leases or enter into any new lease,
contract, or other agreement respecting the Property, unless Seller
obtains the prior written consent to same from Purchaser, (iii) not
waive any rights of Seller under any Lease or material contract, (iv)
not grant or otherwise create or consent to the creation of any
easement, restriction, lien, assessment, or encumbrance respecting the
Property, and (v) cause the Property to be operated, maintained, and
repaired in the same manner as the Property is currently being
operated, maintained, and repaired.
(b) Removal of Personal Property. Seller shall neither
transfer nor remove any Personal Property or fixtures from the Property
after the date of this Agreement except for the purposes of replacement
thereof, in which case such replacements shall be promptly installed
and shall be comparable in quality to the items being replaced.
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(c) Preservation of Leases. Seller shall, from and after
the date of this Agreement to the date of Closing, use its best efforts
to perform and discharge all of the duties and obligations and shall
otherwise comply with every covenant and agreement of the landlord or
lessor under the Leases, at Seller's expense, in the manner and within
the time limits required thereunder. Furthermore, Seller shall, for the
same period of time, use diligent and good faith efforts to cause the
Tenants under the Leases to perform all of their respective duties and
obligations and otherwise comply with each and every one of their
covenants and agreements under such Leases and shall take such actions
as are reasonably necessary to enforce the terms and provisions of such
Leases.
(d) Tenant and Guarantor Estoppel Certificates. Seller
shall use commercially reasonable efforts to obtain and deliver to
Purchaser a fully completed estoppel certificate with respect to each
of the Leases in the respective forms attached hereto as Exhibits "H-
1". "H-2" and "H-3" (herein referred to as the "Tenant Estoppel
Certificates"), duly executed by the Tenant thereunder and a Guarantor
Estoppel Certificate from Deere & Company attached hereto as Exhibit
"H-4". Seller shall use all reasonable efforts to cause the executed
estoppel certificates to be delivered to Purchaser prior to March 25,
2004. The Tenant Estoppel Certificates and Guarantor Estoppel
Certificate shall be executed as of the date not more than fifteen (15)
days prior to Closing. Purchaser's obligations under this Agreement
shall be conditioned upon Purchaser receiving an executed Estoppel
Certificates from each of the Tenants and the Guarantor Estoppel
Certificate from Deere & Company prior to March 25, 2004, as such date
may be extended pursuant to Paragraph 6(d) above.
(e) Insurance. From and after the date of this Agreement
to the date and time of Closing, Seller shall, at its expense, continue
to maintain the same special form/"all risk" insurance covering the
Property which is currently in force and effect.
10. Closing. Provided that all of the conditions set forth in this
Agreement are theretofore fully satisfied or performed, it being fully
understood and agreed, however, that Purchaser may waive expressly and in
writing, at or prior to Closing, any conditions that are unsatisfied or
unperformed at such time, the consummation of the sale by Seller and purchase by
Purchaser of the Property (herein referred to as the "Closing") shall be held on
or before March 25, 2004, at an office in Glendale or Los Angeles, California at
such specific office, and at such specific time and date as shall be designated
by Purchaser in a written notice to Seller not less than three (3) business days
prior to Closing. In the event Purchaser fails to give such notice of the time,
date and place of Closing, the Closing shall occur at 1:30 p.m. on the last date
for such Closing as provided above, at the Glendale, California office of the
Title Company.
11. Seller's Closing Documents. For and in consideration of, and
as a condition precedent to Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Grant Deed. A Grant Deed conveying to Purchaser
marketable fee simple title to the Land and Improvements, together with
all rights, members, easements, and
14
appurtenances thereof, subject only to the Permitted Exceptions. The
legal description set forth in the Grant Deed shall be identical to
Exhibit "A" attached hereto. In the event the as-built survey of the
Land and Improvements updated by Purchaser shall differ from the legal
description set forth on Exhibit "A" hereto, Seller shall, if required
by Purchaser, execute and deliver to Purchaser a quitclaim deed
containing a legal description based upon such updated as-built survey;
(b) Xxxx of Sale. A Xxxx of Sale conveying to Purchaser
marketable title to the Personal Property in the form and substance of
Exhibit "J" attached hereto;
(c) Blanket Transfer. A Blanket Transfer and Assignment
in the form and substance of Exhibit "K" attached hereto;
(d) Assignment and Assumption of Leases. An Assignment
and Assumption of Leases in the form and substance of Exhibit "L"
attached hereto, assigning to Purchaser all of Seller's right, title,
and interest in and to the Leases and the rents thereunder;
(e) Seller's Affidavit. A customary Seller's Affidavit in
the form required by the Title Company;
(f) FIRPTA Certificate. A FIRPTA Certificate in the form
and substance of Exhibit "M" attached hereto;
(g) Surveys and Plans. Such surveys, site plans, plans
and specifications, and other matters relating to the Property as are
described in subparagraph (a) of the Blanket Transfer and Assignment
and are in the possession or control of Seller;
(h) Certificates of Occupancy. Original Certificates of
Occupancy for all space within the Improvements, to the extent same are
in the possession or control of Seller;
(i) Leases. An original executed counterpart of each
Lease and any guaranties thereof;
(j) Service Contracts. An original executed counterpart
of each Service Contract;
(k) Limited Liability Company Consent. A certified
consent to this Agreement, the transactions contemplated herein, and
the execution and delivery of the documents required hereunder, signed
by all members of Seller, together with written authorization of such
members authorizing the execution and delivery of documents required
hereunder, and designating and guaranteeing the signatures of the
manager(s) or member(s) of Seller who are to execute and deliver all
such documents on behalf of Seller;
15
(l) Keys and Records. All of the keys to any doors or
locks on the Property and the original tenant files and other books and
records relating to the Property in Seller's possession or control;
(m) Tenant Notices. Notice from Seller to the Tenants of
the sale of the Property to Purchaser in such form as Purchaser shall
reasonably approve;
(n) Settlement Statement. A settlement statement setting
forth the amounts paid by or on behalf of and/or credited to each of
Purchaser and Seller pursuant to this Agreement; and
(o) Other Documents. Such other documents as shall be
reasonably required by Purchaser's counsel.
12. Purchaser's Closing Documents. Purchaser shall obtain or
execute, at Purchaser's expense, and deliver to Seller at Closing the following
documents, all of which shall be duly executed and acknowledged where required
and shall survive the Closing:
(a) Blanket Transfer. A Blanket Transfer and Assignment
in the form and substance of Exhibit "K" attached hereto;
(b) Assignment and Assumption of Leases. The Assignment
and Assumption of Leases in the form and substance of Exhibit "L"
attached hereto;
(c) Settlement Statement. A settlement statement setting
forth the amounts paid by or on behalf of and/or credited to each of
Purchaser and Seller pursuant to this Agreement;
(d) Corporate Resolution. A copy of a resolution of the
Board of Directors of Purchaser, certified by the Secretary or
Assistant Secretary of the corporate general partner of Purchaser to be
in force and unmodified as of the date and time of Closing, authorizing
the execution and delivery of documents required hereunder, and
designating and guaranteeing the signatures of the officers of the
corporate general partner of Purchaser who are to execute and deliver
all such documents on behalf of the corporate general partner of
Purchaser;
(e) Other Documents. Such other documents as shall be
reasonably required by Seller's counsel.
13. Closing Costs. Seller shall pay the cost of the Title
Commitment, including the cost of the examination of title to the Property made
in connection therewith, the cost (which may be a credit to Purchaser) of the
premium payable for a CLTA form owner's policy of title insurance issued
pursuant to the Title Commitment, (except for any additional cost attributable
to the Endorsements or increased costs based on Purchaser's request to use an
ALTA form of title insurance), the cost of any state, county or municipal
transfer taxes imposed upon the conveyance of the Property pursuant hereto, the
attorneys' fees of Seller, and all other costs and expenses incurred by Seller
in closing and consummating the purchase and sale of the Property
16
pursuant hereto. Purchaser shall pay the recording fees on the Grant Deed (and
quitclaim deed if required pursuant to Paragraph 11 [a] hereof) of the Property
from Seller to Purchaser to be recorded in connection with this transaction, the
additional cost of the Title Policy attributable to the Endorsements, the cost
of any title insurance coverage for Purchaser's lender, the additional cost of
the issuance of a ALTA form instead of an CLTA form of title policy, the costs
of updating the survey, the attorneys' fees of Purchaser, and all other costs
and expenses incurred by Purchaser in closing and consummating the purchase and
sale of the Property pursuant hereto.
14. Prorations. The following items shall be prorated and/or
credited between Seller and Purchaser as of 12:00 a.m. on the date of Closing:
(a) Rents. Rents, additional rents, operating costs, and
other income of the Property (other than security deposits) collected
by Seller from the Tenants for the month of Closing. Purchaser shall
also receive a credit against the Purchase Price payable by Purchaser
to Seller at Closing for any rents or other sums (not including
security deposits) prepaid by the Tenants for any period following the
month of Closing, or otherwise. Purchaser shall receive a credit
against the Purchase Price payable by Purchaser to Seller at Closing
for the total sum of all security deposits paid by Tenants under Leases
and not theretofore applied to delinquent rent and other charges
payable by the applicable Tenant. Seller hereby acknowledges that
Purchaser shall not be legally responsible to Seller for the collection
of any uncollected rent or other income under any of the Leases that is
past due or otherwise due and payable as of the date of Closing.
Purchaser agrees that if (vi) a Tenant is in arrears on the date of
Closing in the payment of rent or other charges under such Tenant's
Lease, and (vii) upon Purchaser's receipt of any rental or other
payment from such Tenant, such Tenant is, or after application of a
portion of such payment will be, current under such Lease in the
payment of all accrued rental and other charges that become due and
payable on the date of Closing or thereafter and in the payment of any
other obligations of such Tenant to Purchaser, then Purchaser shall
refund to Seller, out of and to the extent of the portion of such
payment remaining after Purchaser deducts therefrom any and all sums
due and owing it from such Tenant from and after the date of Closing,
an amount up to the full amount of any arrearage existing on the date
of Closing.
(b) Property Taxes. City, state, county, and school
district ad valorem taxes based on the ad valorem tax bills for the
Property, if then available, or if not, then on the basis of the latest
available tax figures and information and applicable statutory
increases. Should such proration be based on such latest available tax
figures and information and applicable statutory increases and prove to
be inaccurate on receipt of the ad valorem tax bills for the Property
for the year of Closing, either Seller or Purchaser, as the case may
be, may demand at any time after Closing a payment from the other
correcting such malapportionment. In addition, if after Closing there
is an adjustment or reassessment by any governmental authority with
respect to, or affecting, any ad valorem taxes for the Property for the
year of Closing or any prior year, any additional tax payment for the
Property required to be paid with respect the year of Closing
(excluding any increase in taxes solely as a consequence of the
"transfer of ownership" to Seller) shall be prorated between Purchaser
and Seller and any such additional tax payment for the Property for
17
any year prior to the year of Closing shall be paid by Seller. This
agreement shall expressly survive the Closing.
(c) Utility Charges. Except for utilities which are the
direct responsibility of the Tenants to the applicable public or
private utilities supplier, Seller shall pay all utility bills received
prior to Closing and shall be responsible for utilities furnished to
the Property prior to Closing. Purchaser shall be responsible for the
payment of all bills for utilities furnished to the Property subsequent
to the Closing. Seller and Purchaser hereby agree to prorate as of
midnight preceding the date of Closing and pay their respective shares
of all utility bills received subsequent to Closing (if they include a
service period prior to the date of Closing), which agreement shall
survive Closing. Seller shall be entitled to all deposits presently in
effect with the utility providers.
(d) Service Contracts. Charges under the Service
Contracts shall be prorated as of Midnight preceding the date of
Closing.
(e) Other Tenant Charges. Where the Leases contain Tenant
obligations for taxes, common area expenses, operating expenses or
additional charges of any nature, and where Seller shall have collected
on an estimated basis any portion thereof in excess of amounts owed by
Seller for such items for the period prior to the date of Closing, then
there shall be an adjustment and credit given to Purchaser on the date
of Closing for such excess amounts collected. Purchaser shall apply all
such excess amounts to the charges owed by Purchaser for such items for
the period after the date of Closing, and if required by the Leases,
shall rebate or credit Tenants with any remainder. If it is determined
subsequent to the Closing that the amount collected during Seller's
ownership period exceeded expenses incurred during the same period by
more than the amount previously credited to Purchaser at Closing, then
Seller shall promptly pay to Purchaser the deficiency. If it is
determined subsequent to Closing that the amount collected during
Seller's ownership period exceeded expenses incurred during the same
period by less than the amount previously credited to Purchaser at
Closing, then Purchaser shall promptly pay to Seller the overpayment.
(f) Tenant Inducements and Unpaid Commissions. Seller
shall pay all leasing commissions in connection with any Lease executed
on or before the effective date of this Agreement (including leasing
commissions attributable to the exercise by the Tenants of any
expansion or extension options set forth in the Lease which are not
exercised until after the Closing). Purchaser shall be entitled to a
credit against the Purchase Price for the total sum of any unexpired
concessions under any Leases to the extent they apply to any period
after the Closing (excluding the free rent addressed in (h) below).
Purchaser shall also be entitled to a credit against the Purchase Price
for the total sum of any remaining improvement allowances the payment
of which may become the obligation of the landlord or lessor under the
Leases after the Closing, but Purchaser shall receive no such credit
against the Purchase Price for any improvement allowances payable by
the landlord or lessor under the Leases as a result of the exercise by
a Tenant after the Closing of any expansion or extension option in such
Tenant's Lease.
18
(g) Tenant's Free Rent. Seller agrees to pay to
Purchaser, the lump sum of $2,521,224.00 (the "Rent Concession
Amount"), representing free rent concessions provided to Honda from
April 1, 2004 through July 31, 2005. Seller shall deliver the Rent
Concession Amount to _________________________(the "Rent Escrow Agent")
at Closing to be held in escrow, and the installments described below
shall be distributed pursuant to an escrow agreement (the "Rent Escrow
Agreement") in form and substance satisfactory to Purchaser, as long as
such agreement provides that all interest which accrues on the Rent
Concession Amount shall be the property of Seller and shall be
distributed to Seller upon the disbursement of the final installment to
Purchaser. Seller agrees and acknowledges that Purchaser may grant its
lender a security interest in the Rent Concession Amount and agrees to
cooperate with Purchaser and its lender in connection therewith. The
Rent Concession Amount shall be distributed to Rent Escrow Agent as
follows: (i) in monthly installments of $183,333.00, due on the first
day of each month beginning April 1, 2004 and ending March 1, 2005 and
(ii) in monthly installments of $80,907.00, due on the first day of
each month beginning April 1, 2005 and ending July 1, 2005. The
obligations set forth in this Paragraph 14(g) shall survive Closing.
15. Purchaser's Default. THE PARTIES AGREE THAT IT WOULD BE
EXTREMELY IMPRACTICAL AND DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES SUFFERED BY
SELLER AS A RESULT OF PURCHASER'S DEFAULT HEREUNDER, AND THAT UNDER THE
CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES
PROVIDED FOR IN THIS PARAGRAPH REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES
WHICH SELLER WILL INCUR AS A RESULT OF SUCH FAILURE. THE PARTIES ACKNOWLEDGE
THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR
PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL
CODE SECTION 1671, 1676, AND 1677. THE PARTIES HAVE SET FORTH THEIR INITIALS
BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES PROVISION
CONTAINED IN THIS PARAGRAPH. IN THE EVENT OF DEFAULT BY PURCHASER UNDER THE
TERMS OF THIS AGREEMENT, SELLER'S SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE
THE XXXXXXX MONEY AS LIQUIDATED DAMAGES AND THEREAFTER THE PARTIES HERETO SHALL
HAVE NO FURTHER RIGHTS OR OBLIGATIONS HEREUNDER WHATSOEVER. THE LIMITATIONS ON
PURCHASER'S LIABILITY UNDER THIS PARAGRAPH 15 SHALL BE INAPPLICABLE TO THE
LIABILITY OF PURCHASER FOR PAYMENTS, IF ANY, DUE BY PURCHASER TO SELLER UNDER
PARAGRAPH 4 HEREOF.
MS /s/ AWT
---------------------- ------------------------------
SELLER'S INITIALS PURCHASER'S INITIALS
16. Seller's Default. In the event of default by Seller under the
terms of this Agreement, except as otherwise specifically set forth herein, at
Purchaser's option: (i) Purchaser
19
may terminate this Agreement by written notice to Seller, whereupon the Xxxxxxx
Money shall be immediately returned by Escrow Agent to Purchaser, and the
parties hereto shall have no further rights or obligations hereunder whatsoever;
or (ii) Purchaser shall be entitled to an immediate refund of all but $25.00 of
the Xxxxxxx Money and to pursue against Seller the remedy of specific
performance.
17. Condemnation. If, prior to the Closing, all or any part of the
Property is subjected to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or condemnation (or sale
in lieu thereof), or if Seller has received notice that any condemnation action
or proceeding with respect to the Property is contemplated by a body having the
power of eminent domain, Seller shall give Purchaser immediate written notice of
such threatened or contemplated condemnation or of such taking or sale, and
Purchaser may by written notice to Seller given within thirty (30) days of the
receipt of such notice from Seller, elect to cancel this Agreement. If Purchaser
chooses to cancel this Agreement in accordance with this Paragraph 17, then the
Xxxxxxx Money shall be returned immediately to Purchaser by Escrow Agent and the
rights, duties, obligations, and liabilities of the parties hereunder shall
immediately terminate and be of no further force and effect, except for those
obligations that expressly survive the termination hereof. If Purchaser does not
elect to cancel this Agreement in accordance herewith, this Agreement shall
remain in full force and effect and the sale of the Property contemplated by
this Agreement, less any interest taken by eminent domain or condemnation, or
sale in lieu thereof, shall be effected with no further adjustment and without
reduction of the Purchase Price, and at the Closing, Seller shall assign,
transfer, and set over to Purchaser all of the right, title, and interest of
Seller in and to any awards that have been or that may thereafter be made for
such taking. At such time as all or a part of the Property is subjected to a
bona fide threat of condemnation and Purchaser shall not have elected to
terminate this Agreement as hereinabove provided, Purchaser shall be permitted
to participate in the proceedings as if Purchaser were a party to the action.
Seller shall not settle or agree to any award or payment pursuant to
condemnation, eminent domain, or sale in lieu thereof without obtaining
Purchaser's prior written consent thereto in each case.
18. Damage or Destruction. If any of the Improvements shall be
destroyed or damaged prior to the Closing, and if either the estimated cost of
repair or replacement exceeds Two Hundred Fifty Thousand Dollars ($250,000.00)
or the damage results in the termination of one or more of the Leases, Purchaser
may, by written notice given to Seller within twenty (20) days after receipt of
written notice from Seller of such damage or destruction, elect to terminate
this Agreement, in which event the Xxxxxxx Money shall immediately be returned
by Escrow Agent to Purchaser and the rights, duties, obligations, and
liabilities of all parties hereunder shall immediately terminate and be of no
further force or effect, except for those obligations that expressly survive the
termination hereof. If Purchaser does not elect to terminate this Agreement
pursuant to this Paragraph 18, or has no right to terminate this Agreement
(because the damage or destruction does not exceed $250,000.00 and has not
resulted in the termination of one or more of the Leases), and the sale of the
Property is consummated, Purchaser shall be entitled to receive all insurance
proceeds paid or payable to Seller by reason of such destruction or damage under
the insurance required to be maintained by Seller pursuant to Paragraph 9(a)
hereof (less amounts of insurance theretofore received and applied by Seller to
costs actually incurred for restoration). Seller shall not settle or release any
damage or destruction claims without obtaining
20
Purchaser's prior written consent in each case. All said insurance proceeds
received by Seller by the date of Closing shall be paid by Seller to Purchaser
at Closing, together with the lesser of (i) that amount necessary to cover any
difference between the amount of such proceeds and the estimated cost of repair
or replacement, or (ii) the amount of the deductible under Seller's all-risk
property damage insurance policy]. In addition, at Closing, Seller shall pay
over to Purchaser, and assign to Purchaser, all proceeds of any rent loss
insurance for the period of time commencing on the date of Closing. If the
amount of said casualty or rent loss insurance proceeds is not settled by the
date of Closing, Seller shall execute at Closing all proofs of loss, assignments
of claim, and other similar instruments in order that Purchaser receive all of
Seller's right, title, and interest in and under said insurance proceeds.
19. As Is Purchase; Indemnity: Release.
(a) Purchaser hereby acknowledges, represents, warrants,
covenants and agrees that as a material inducement to Seller to execute
and accept this agreement and in consideration of the performance by
seller of its duties and obligations under this agreement, the sale of
the property hereunder is and will be made on an "as is, where is"
basis except as otherwise expressly provided in this Agreement
including Paragraph 8, and that except as otherwise expressly provided
in this Agreement including Paragraph 8 and all documents delivered to
Purchaser at Closing, Seller has not made, does not make and
specifically negates and disclaims any representations, warranties or
guaranties of any kind or character whatsoever, whether express or
implied, oral or written, past, present, future or otherwise, of, as
to, concerning or with respect to the Property, including, without
limitation: (1) the existence of hazardous materials upon the Real
Property or any portion thereof; (2) geological conditions, including,
without limitation, subsidence, subsurface conditions, water table,
underground water reservoirs, limitations regarding the withdrawal of
water and faulting; (3) whether or not and to the extent to which the
Real Property or any portion thereof is affected by any stream (surface
or underground), body of water, flood prone area, flood plain, floodway
or special flood hazard; (4) drainage; (5) soil conditions, including
the existence of instability, past soil repairs, soil additions or
conditions of soil fill, or susceptibility to landslides, or the
sufficiency of any undershoring; (6) usages of adjoining properties;
(7) the value, compliance with the plans and specifications, size,
location, age, use, design, quality, description, durability,
structural integrity, operation, title to, or physical or financial
condition of the real property or any portion thereof, or any rights or
claims on or affecting or pertaining to the Real Property or any part
thereof including, without limitation, whether or not the improvements
comply with the requirements of Title III of the Americans with
Disabilities Act of 1990, 42 U.S.C. Sections 12181-12183, 12186(b)
-12189 and related regulations; (8) the presence of hazardous materials
in or on, under or in the vicinity of the Real Property; (9) the square
footage of the land or the improvements; (10) improvements and
infrastructure, if any; (11) development rights and extractions; (12)
water or water rights; (13) the development potential for the Property;
(15) the ability of purchaser to rezone the Property or change the use
of the Property; (16) the ability of purchaser to acquire adjacent
properties; (17) the existence and possible location of any underground
utilities; (19) the existence and possible location of any
encroachments; (20) whether the improvements were built, in whole or in
part, in
21
compliance with applicable building codes; (21) the status of any
life-safety systems in the improvements; (22) the character of the
neighborhood in which the Real Property is situated; (23) the condition
or use of the property or compliance of the Property with any or all
past, present or future federal, state or local ordinances, rules,
regulations or laws, building, fire or zoning ordinances, codes or
other similar laws; and(or) (24) the merchantability of the Property or
fitness of the Property for any particular purpose (Purchaser affirming
that Purchaser has not relied on Seller's skill or judgment to select
or furnish the Property for any particular purpose, and that seller
makes no warranty that the Property is fit for any particular purpose).
Purchaser acknowledges that as of the expiration of the
Inspection Period, Purchaser shall have completed all physical and
financial examinations relating to the Property hereunder and will
acquire the same solely on the basis of such examinations and the title
insurance protection for the Real Property afforded by Purchaser's
title policy and not on any information provided or to be provided by
Seller except for representations and warranties and indemnities
otherwise expressly provided in this Agreement including Paragraph 8
and all documents delivered to Purchaser at Closing. Purchaser further
acknowledges and agrees that any information provided or to be provided
with respect to the Property was obtained from a variety of sources and
that Seller has not made any independent investigation or verification
of such information and makes no representations as to the accuracy or
completeness of such information except for representations and
warranties and indemnities otherwise expressly provided in this
agreement including Paragraph 8 and all documents delivered to
Purchaser at Closing. Seller shall not be liable for any negligent
misrepresentation or any failure to investigate the property nor shall
Seller be bound in any manner by any verbal or written statements,
representations, appraisals, environmental assessment reports, or other
information pertaining to the Property or the operation thereof,
furnished by Seller, or by any real estate broker, agent,
representative, employee, servant or other person acting on Seller's
behalf except for representations and warranties and indemnities
expressly provided in this Agreement including Paragraph 8 and all
document delivered to Purchaser at Closing. It is acknowledged and
agreed that the Property is sold by Seller and purchased by Purchaser
subject to the foregoing.
The Closing of the purchase of the Property by Purchaser
hereunder shall be conclusive evidence that: (a) Purchaser has fully
and completely inspected (or has caused to be fully and completely
inspected) the Property; (b) Purchaser accepts the Property as being in
good and satisfactory condition and suitable for Purchaser's purposes;
and (c) the Property fully complies with Seller's covenants and
obligations hereunder, except for any breach of representations and
warranties and indemnities expressly provided in this Agreement
including Paragraph 8.
Without limiting the generality of the foregoing, except for
reliance on representations and warranties and indemnities expressly
provided in this Agreement including Paragraph 8 and all documents
delivered to Purchaser at Closing. Purchaser shall perform and rely
solely upon its own investigation concerning its intended use of the
Property, and the Property's fitness therefor. Purchaser further
acknowledges and
22
agrees that Seller's cooperation with Purchaser whether by providing
the Property documents or permitting inspection of the Real Property,
shall not be construed as any warranty or representation, express or
implied, of any kind with respect to the Property, or with respect to
the accuracy, completeness, or relevance of the due diligence
documents, provided that the foregoing shall not be a limitation or
modification of the representations and warranties and indemnities
expressly provided in this Agreement including Paragraph 8 all
documents delivered to Purchaser at Closing.
(b) Indemnity. For the purposes of this Paragraph 19(b),
the term "Claims" shall mean any and all claims, obligations,
liabilities, causes of action, suits, debts, liens, damages, judgments,
losses, demands, orders, penalties, settlements, costs and expenses
(including, without limitation, attorneys' fees and any and all costs
and expenses related to, whether directly or indirectly, any and all
clean-up, remediation, investigations, monitoring, abatement,
mitigation measures, fines or removal with respect to Hazardous
Materials) of any kind or nature whatsoever. Each and every provision
of this Paragraph 19(b) shall survive the Closing. Purchaser
acknowledges that but for Purchaser's agreement to each and every
provision of this Paragraph 19(b), Seller would not have entered into
this Agreement. Purchaser, on behalf of itself, its successors, assigns
and successors-in-interest ("Successors"), hereby agrees to indemnify,
defend (with legal counsel selected by Seller) and hold Seller and its
Successors harmless from any and all Claims resulting from, related to,
or based upon, whether directly or indirectly: (i) the breach by
Purchaser of any representation, warranty, covenant or obligation
contained in this Agreement or in any other document delivered by
Purchaser at Closing; and (ii) any Claim or Claims, if the basis of
such Claim or Claims arose on or after the Closing Date except as noted
in subparagraph (iv), and if the basis of such Claim or Claims arose
from, is based upon, relates to or pertains to, directly or indirectly,
the operation, management and use of the Property; (iii) any Claim or
Claims which Claim or Claims (or the basis for which) arose from, is
based upon, relates to or pertains to, directly or indirectly, any act
or omission of Purchaser; and (iv) any Claim or Claims that relate to
the condition of the Property or any defects therein, regardless of
whether said condition or the cause of the same arose either before or
after the Closing Date, including any judgment, order or settlement
under or otherwise pursuant to the lawsuit. Each and every provision of
this paragraph shall survive the Closing and but for Purchaser's
agreement to each and every provision of this Paragraph 19(b), Seller
would not have executed this Agreement.
(c) Release and Section 1542 Waiver. Except for Claims
for Seller's breach of representations and warranties of Seller
provided in this Agreement including Paragraph 8 and the Closing
documents delivered to Purchaser at Closing, Purchaser for itself and
on behalf of each of its Successors (collectively, the "Releasors") by
this general release of known and unknown claims (this "Release")
hereby irrevocably and unconditionally release and forever discharge
Seller and each of its Successors (collectively, the "Releasees") or
any of them, from and against any and all Claims of any kind or nature
whatsoever, WHETHER KNOWN OR UNKNOWN, suspected or unsuspected, fixed
or contingent, liquidated or unliquidated which any of the Releasors
now have, own, hold, or claim to have had, owned, or held, against any
of the Releasees arising from, based upon or related to, whether
directly or indirectly any facts, matters, circumstances,
23
conditions or defects (whether patent or latent) of all or any kinds,
related to, arising from, or based upon, whether directly or
indirectly, the Property, including without limitation the presence of
Hazardous Materials in, on, about or under the Real Property or which
have migrated from adjacent lands to the Real Property or from the Real
Property to adjacent lands.
Except for Claims for Seller's breach of representations and
warranties of Seller provided in this Agreement including Paragraph 8
and representations and warranties in the documents delivered to
Purchaser at Closing, Releasors hereby further agree as follows:
(i) Releasors acknowledge that there is
a risk that subsequent to the execution of the Release set
forth herein, Releasors may discover, incur, or suffer from
Claims which were unknown or unanticipated at the time this
Release is executed, including, without limitation, unknown or
unanticipated Claims which, if known by Releasors on the date
this Release is being executed, may have materially affected
Releasors' decision to execute this Release. Releasors
acknowledge that Releasors are assuming the risk of such
unknown and unanticipated Claims and agree that this Release
applies thereto. Releasors expressly waive the benefits of
Section 1542 of the California Civil Code, which reads as
follows:
"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."
(ii) Releasors represent and warrant
that Releasors have been represented by independent counsel of
Releasors' own choosing in connection with the preparation and
review of the Release set forth herein, that Releasors have
specifically discussed with such counsel the meaning and
effect of this Release and that Releasors have carefully read
and understand the scope and effect of each provision
contained herein. Releasors further represent and warrant that
Releasors do not rely and have not relied upon any
representation or statement made by any of the Releasees or
any of their representatives, agents, employees, attorneys or
officers with regard to the subject matter, basis or effect of
this Release.
(iii) Releasors represent and warrant to
Releasees that Releasors have not and shall not assign or
transfer or purport to assign or transfer any Claim or Claims
or any portion thereof or any interest therein, and agree to
indemnify, defend, and hold the Releasees harmless from and
against any Claim or Claims based on or arising out of,
whether directly or indirectly, any such assignment or
transfer, or purported assignment or transfer.
20. Assignment. This Agreement and Purchaser's rights, duties, and
obligations hereunder may not be delegated, transferred, or assigned by
Purchaser without the prior written
24
consent of Seller, and any assignee or transferee proposed by Purchaser shall
expressly assume all of Purchaser's duties, liabilities and obligations under
this Agreement by written instrument delivered to Seller. Notwithstanding the
foregoing to the contrary, this Agreement, and Purchaser's rights and duties
hereunder, may be freely assigned and transferred to an entity managed or
controlled by Purchaser. In the event of any such transfer or assignment, Seller
shall look solely to such transferee or assignee for the performance of all
obligations, covenants, conditions, and agreements imposed upon Purchaser
pursuant to the terms of this Agreement. For purposes of this Paragraph 20, the
term "control" shall mean a twenty percent (20%) ownership in the applicable
entity.
21. Broker's Commission. Upon the Closing, and only in the event
of Closing, Seller shall pay to Xxxxx & Xxxxx ("Broker") in cash or its
equivalent a real estate sales commission pursuant to a separate agreement
between Seller and Broker. Broker does hereby agree that, in the event the sale
contemplated hereby is for any reason not consummated, then no commission shall
have been earned, and none shall be payable. Seller shall and does hereby
indemnify and hold harmless Purchaser from and against any claim, whether or not
meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Seller, including any claim asserted by Broker.
Likewise, Purchaser shall and does hereby indemnify and hold harmless Seller
from and against any claim, whether or not meritorious, for any real estate
sales commission, finder's fees, or like compensation in connection with the
sale contemplated hereby and arising out of any act or agreement of Purchaser,
except any such claim asserted by Broker. This Paragraph 21 shall survive the
Closing or any termination of this Agreement.
22. Notices. Wherever any notice or other communication is
required or permitted hereunder, such notice or other communication shall be in
writing and shall be delivered by overnight courier, by hand, facsimile
transmission or sent by U.S. certified mail, return receipt requested, postage
prepaid, to the addresses set out below or at such other addresses as are
specified by written notice delivered in accordance herewith:
PURCHASER: Triple Net Properties, LLC
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx
Attn: Xx. Xxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxxxxx Xxxxxxxxx
000 XxxxXxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
SELLER: 20770 Madrona, LLC
c/o Xx. Xxxx Xxxxxxxxxxx
000 Xxxx Xxxxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
25
With a copy to:
20770 Madrona, LLC
c/o Xx. Xxxxx Xxxxxxx
00000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxx XxXxxxx Xxxxx
c/o Xxxxx X. Dome, Esq.
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Any notice or other communication (i) mailed as hereinabove provided shall be
deemed effectively given or received on the third (3rd) business day following
the postmarked date of such notice or other communication, (ii) sent by
overnight courier or by hand shall be deemed effectively given or received on
the date of delivery, and (iii) sent by facsimile transmission shall be deemed
effectively given or received on the first business day after the date of
transmission of such notice and confirmation of such transmission.
26
23. Possession. Possession of the Property shall be granted by
Seller to Purchaser on the date of Closing, subject only to the Leases and the
Permitted Exceptions.
24. Time Periods. If the time period by which any right, option,
or election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
25. Survival of Provisions. All covenants, warranties, and
agreements set forth in this Agreement shall survive the execution or delivery
of any and all deeds and other documents at any time executed or delivered
under, pursuant to, or by reason of this Agreement, and shall survive the
payment of all monies made under, pursuant to, or by reason of this Agreement,
subject to the survival time limitation provisions set forth in Paragraph 8
above.
26. Severability. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
27. Authorization. Purchaser represents to Seller that this
Agreement has been duly authorized and executed on behalf of Purchaser and
constitutes the valid and binding agreement of Purchaser, enforceable in
accordance with its terms, and all necessary action on the part of Purchaser to
authorize the transactions herein contemplated has been taken, and no further
action is necessary for such purpose. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (i)
be in violation of Purchaser's Partnership Agreement or Partnership Certificate,
(ii) to the best of Purchaser's knowledge, conflict with or result in the breach
or violation of any law, regulation, writ, injunction or decree of any court or
governmental instrumentality applicable to Purchaser, or (iii) constitute a
breach of any evidence of indebtedness or agreement to which Purchaser is a
party or by which Purchaser is bound.
28. General Provisions. No failure of either party to exercise any
power given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. To facilitate the execution and delivery of this Agreement,
the parties may execute and exchange counterparts of
27
the signature pages by facsimile, and the signature page of either party to any
counterpart may be appended to any other counterpart. The headings inserted at
the beginning of each paragraph are for convenience only, and do not add to or
subtract from the meaning of the contents of each paragraph. The exhibits
attached to this Agreement are an integral part of this Agreement and are hereby
incorporated herein by this reference. This Agreement shall be construed and
interpreted under the laws of the State of California. Except as otherwise
provided herein, all rights, powers, and privileges conferred hereunder upon the
parties shall be cumulative but not restrictive to those given by law. All
personal pronouns used in this Agreement, whether used in the masculine,
feminine, or neuter gender shall include all genders, and all references herein
to the singular shall include the plural and vice versa.
29. Effective Date. The "effective date" of this Agreement shall
be deemed to be the date this Agreement is fully executed by both Purchaser and
Seller and a fully executed original counterpart of this Agreement has been
received by both Purchaser and Seller.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
20770 MADRONA, LLC,
a California limited liability company
By: /s/ Xxxx Xxxxxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxxxxx
---------------------------------------
Title: Member
---------------------------------------
"PURCHASER":
TRIPLE NET PROPERTIES, LLC,
a Virginia limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxx
President
28
