AGREEMENT FOR PURCHASE AND SALE OF PROPERTY BY AND BETWEEN SELLER:
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA and
BUYER:
TECHMART OWNER, LLC
PROPERTY: Techmart Parcel 2
ADDRESS: 5201 Great America Parkway, Santa Clara, California EXECUTION DATE: [TBD]
AGREEMENT FOR PURCHASE AND SALE OF PROPERTY
This Agreement for Purchase and Sale of Property (this "Agreement") is executed by and between Seller, as identified in the Key Terms (set forth below), and Buyer, as identified in the Key Terms, as of the Execution Date (as defined in the Defined Terms below). Buyer and Seller hereby agree that Seller shall sell to Buyer and Buyer shall purchase from Seller, upon the following terms and conditions and for the Purchase Price set forth in the Key Terms, the Property, as defined in the Defined Terms.
LIMITATION OF SELLER'S LIABILITY AND BUYER'S WAIVER OF IMPORTANT RIGHTS:
BUYER AGREES THAT EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE DOCUMENTS TO BE DELIVERED BY SELLER PURSUANT TO SECTION 7.3 BUYER IS BUYING THE PROPERTY "AS IS, WHERE IS WITH ALL FAULTS AND LIMITATIONS" (AS MORE FULLY SET FORTH IN THIS AGREEMENT).
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT, SELLER'S LIABILITY AND BUYER'S SOLE AND EXCLUSIVE REMEDY IN ALL CIRCUMSTANCES AND FOR ALL CLAIMS (AS THAT TERM IS DEFINED IN THE DEFINED TERMS, AND ALL REFERENCES IN THIS AGREEMENT TO "CLAIMS," "CLAIM," "Claims," or "Claim" SHALL HAVE SUCH MEANING) OF WHICH BUYER HAS KNOWLEDGE PRIOR TO CLOSING ARISING OUT OF THIS AGREEMENT OR THE SALE OF THE PROPERTY TO BUYER INCLUDING, BUT NOT LIMITED TO, SELLER'S BREACH OR TERMINATION OF THIS AGREEMENT, THE CONDITION OR QUALITY OF THE PROPERTY, SELLER'S TITLE TO THE PROPERTY, THE OCCUPANCY STATUS OF THE PROPERTY, THE SIZE, SQUARE FOOTAGE, BOUNDARIES, OR LOCATION OF THE PROPERTY, ANY COST OR EXPENSE INCURRED BY BUYER IN CONDUCTING ITS INVESTIGATION AND/OR DUE DILIGENCE IN PREPARATION FOR THE PURCHASE OF THE PROPERTY, OBTAINING OTHER ACCOMMODATIONS, MOVING, STORAGE OR RELOCATION EXPENSES, OR ANY OTHER COSTS OR EXPENSES INCURRED BY BUYER IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED AS PROVIDED IN SECTION 11.2 OF THIS AGREEMENT.
IF BUYER DELIVERS THE APPROVAL NOTICE (DEFINED IN SECTION 3.2 BELOW) TO SELLER ON OR PRIOR TO THE EXPIRATION OF THE DILIGENCE PERIOD (AS DEFINED IN THE DEFINED TERMS), THEN BUYER SHALL NOT BE ENTITLED TO A RETURN OF THE DEPOSIT (AS DEFINED IN THE KEY TERMS) IN THE EVENT THAT THIS AGREEMENT IS TERMINATED BY SELLER AS RESULT OF BUYER'S BREACH OF THE TERMS OF THIS AGREEMENT; PROVIDED THAT (A) ANY CONDITIONS PRECEDENT BENEFITING BUYER HEREUNDER HAVE BEEN SATISFIED OR WAIVED, (B) SELLER HAS PERFORMED FULLY OR TENDERED PERFORMANCE OF ITS CLOSING OBLIGATIONS HEREUNDER, (C) SELLER IS NOT OTHERWISE IN BREACH OF THE TERMS OF THIS AGREEMENT, AND (D) SELLER IS OTHERWISE WILLING TO CONVEY THE PROPERTY PURSUANT TO THIS AGREEMENT.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY AGREES THAT THE PARTIES SHALL NOT BE LIABLE TO EACH OTHER UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLE, THEORY, OR CAUSE OF ACTION ARISING OUT OF ANY CLAIM, INCLUDING, BUT NOT LIMITED TO, THE AFOREMENTIONED CLAIMS.
ANY REFERENCE TO A RETURN OF THE DEPOSIT CONTAINED IN THIS AGREEMENT SHALL MEAN A RETURN OF THE DEPOSIT, LESS ANY ESCROW CANCELLATION FEES APPLICABLE TO BUYER UNDER THIS AGREEMENT AND LESS FEES AND COSTS PAYABLE FOR SERVICES AND PRODUCTS PROVIDED BY ESCROW AGENT DURING ESCROW AT BUYER'S REQUEST. UPON RETURN OF THE DEPOSIT TO BUYER, THIS AGREEMENT SHALL BE TERMINATED, AND BUYER AND SELLER SHALL HAVE NO FURTHER LIABILITY, OBLIGATION, OR RESPONSIBILITY TO EACH OTHER IN CONNECTION WITH THIS AGREEMENT, EXCEPT AS TO ANY PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY SURVIVE TERMINATION OF THIS AGREEMENT. IF THE SALE TO BUYER CLOSES, THEN BUYER AND SELLER SHALL HAVE NO FURTHER LIABILITY, OBLIGATION, OR RESPONSIBILITY TO EACH OTHER IN CONNECTION WITH THIS AGREEMENT EXCEPT AS TO ANY PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY SURVIVE CLOSING.
SELLER'S LIMITATION OF LIABILITY AND BUYER'S WAIVERS PROVIDED IN THIS AGREEMENT ARE A MATERIAL PART OF THE CONSIDERATION TO BE RECEIVED BY SELLER UNDER THIS AGREEMENT AS AGREED TO BY BUYER AND SELLER.
SUBJECT TO, AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER FURTHER WAIVES THE FOLLOWING, TO THE FULLEST EXTENT PERMITTED BY LAW:
ANY CLAIMS ARISING FROM THE ADJUSTMENTS OR PRORATIONS OR ERRORS IN CALCULATING THE ADJUSTMENTS OR PRORATIONS THAT ARE OR MAY BE DISCOVERED AFTER CLOSING, WHICH CLAIMS SHALL BE RESOLVED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.2(E) OF THIS AGREEMENT; ANY REMEDY OF ANY KIND THAT BUYER MIGHT OTHERWISE BE ENTITLED TO AT LAW OR EQUITY (INCLUDING, BUT NOT LIMITED TO, RESCISSION OF THIS AGREEMENT), EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT; ANY RIGHT TO A TRIAL BY JURY IN ANY LITIGATION ARISING FROM OR RELATED IN ANYWAY TO THIS AGREEMENT; ANY RIGHT TO AVOID THE SALE OF THE PROPERTY OR REDUCE THE PRICE OR HOLD SELLER LIABLE FOR ANY CLAIMS ARISING OUT OF THE CONDITION, CONSTRUCTION, REPAIR, OR TREATMENT OF THE PROPERTY, OR ANY DEFECTS, APPARENT OR LATENT, THAT MAY NOW OR HEREAFTER EXIST WITH RESPECT TO THE PROPERTY, INCLUDING BUT NOT LIMITED TO ANY CLAIMS RELATING TO ANY ORDINANCES AND ANY REPAIR COSTS REQUIRED THEREUNDER; ANY CLAIMS ARISING OUT OF ENCROACHMENTS, EASEMENTS, BOUNDARIES, SHORTAGES IN AREA OR ANY OTHER MATTER THAT WOULD BE DISCLOSED OR REVEALED BY A SURVEY OR INSPECTION OF THE PROPERTY OR SEARCH OF PUBLIC RECORDS; ANY CLAIMS ARISING OUT OF THE SQUARE FOOTAGE, SIZE, OR LOCATION OF THE PROPERTY, OR ANY INFORMATION PROVIDED ON THE MULTIPLE LISTING SERVICE, OR BROCHURES OR WEB SITES OF SELLER OR SELLER'S AGENT OR LISTING BROKER OR ANY STATEMENTS, ACTIONS OR CONDUCT OF SELLER'S AGENT OR LISTING BROKER; AND ANY CLAIMS ARISING OUT OF TENANTS OR OCCUPANTS OF THE PROPERTY OR INCOME, IF ANY, TO BE DERIVED FROM THE PROPERTY OR HAZARDOUS MATERIALS (AS DEFINED IN THE DEFINED TERMS OF THIS AGREEMENT).
THE ABOVE PROVISIONS SHALL SURVIVE THE CLOSING OF THE TRANSACTION CONTEMPLATED HEREBY, OR THE EARLIER TERMINATION OF THE AGREEMENT, IF PERMITTED. IF THERE IS A CONFLICT BETWEEN THE ABOVE PROVISIONS AND THE REMAINDER OF THIS AGREEMENT, THE PROVISIONS OF THE REMAINDER OF THIS AGREEMENT SHALL PREVAIL.
SELLER'S INITIALS _________/__ BUYER'S INITIALS _________/__ ARTICLE I.
KEY TERMS
The following "Key Terms" shall apply to this Agreement:
"Seller": Successor Agency to the Redevelopment Agency of the City of Santa Clara "Seller's Contact Person": Ruth Shikada
"Seller's Notice Address":
City Manager's Office City of Santa Clara
1500 Warburton Avenue Santa Clara, CA 95050
Attn: Ruth Shikada ([email protected])
With copies to:
City Attorney's Office
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Attn: Glen Googins Googins([email protected])
"Buyer":
"Specify Buyer Entity Type":
"Buyer's Contact Person":
"Buyer's Notice Address":
With copies to:
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Attn: Jesse Shapiro and Allison Kidd
Email: [email protected] and
[email protected]
"Purchase Price": $22,500,000.00
"Deposit": A deposit in an amount equal to $600,000.00 (the "Deposit") shall be delivered to Escrow Agent by wire transfer no later than three (3) Business Days after the Execution Date. If Buyer delivers an Approval Notice, the Deposit will be non-refundable from and after the expiration of the Diligence Period (except upon a default by Seller or as specifically provided in this Agreement). In addition to, and not in lieu of the delivery to the Escrow Agent of the Deposit, concurrently with the execution of this Agreement, Buyer shall also wire transfer to the Escrow Agent, for delivery to Seller, the amount of one thousand and 00/100 Dollars ($1000.00) (the "Independent Consideration"), which Independent Consideration Seller and Buyer hereby mutually acknowledge and agree represents adequate bargained for consideration for Seller's execution and delivery of this Agreement and Buyer's right to elect to purchase the Property as provided herein. Said Independent Consideration is in addition to and independent of any other consideration or payment provided for in this Agreement, is nonrefundable to Buyer in all events and shall not be applied to the Purchase Price at Closing. The Independent Consideration shall immediately be released by the Escrow Agent and delivered by wire transfer to Seller. The Escrow Agent is hereby authorized and directed by Buyer and Seller to release the Independent Consideration to Seller immediately upon the Escrow Agent's receipt thereof, without further direction. "Closing Date": [INSERT DATE], or such earlier date as Buyer may elect in its sole discretion by delivering written notice to Seller, provided that the Closing Date shall not be earlier than five (5) Business Days after expiration of the Diligence Period. "County": Santa Clara County located in the State.
"State": California.
ARTICLE II.
DEFINED TERMS
Definitions. The following "Defined Terms" shall have the following meanings when used in this Agreement:
“Affordability Covenant”: as defined in Section 7.3.
"Agreement": This Agreement for Purchase and Sale of Property executed by both Seller and Buyer. "Assignment of Lease": As defined in Section 7.3.
"Bid Package": All documentation and information provided to or otherwise made available to Buyer at least five (5) Business Days prior to execution of this Agreement, by Seller, by Seller's agent or on the Seller's website related to the Property, which documentation and information is listed on Exhibit G attached hereto. "Bill of Sale": As defined in Section 7.3.
"Business Day": Any day, other than a Saturday, Sunday or legal holiday, on which business is conducted by national banking institutions in San Francisco, California. "Claims": Any and all claims, demands, causes of action, whether administrative or judicial, losses, costs (including any and all reasonable attorneys' fees, court costs, and reasonable costs of investigation, litigation, and settlement), expenses, sanctions, orders, curtailments, interest, liabilities, penalties, fines, expenses, liens, judgments, compensation, fees, loss of profits, injuries, death, response costs and/or damages, of any kind whatsoever, whether direct or indirect, known or unknown, fixed or contingent, joint or several, criminal or civil, or in law or in equity. . "Closing": The closing of the transaction contemplated by this Agreement. “Convention Center Campus Declaration of Covenants, Conditions and Restrictions (Convention Center Campus CC&Rs)”: That certain Declaration of Covenants, Conditions and Restrictions by the City of Santa Clara and the Successor Agency to the Redevelopment Agency of the City of Santa Clara, collectively, the Declarant, recorded on December 14, 2020 as Instrument No. 24756283. "Deed": The grant deed conveying fee title to the Real Property, subject only to the Acceptable Encumbrances, to Buyer, duly executed by Seller and acknowledged and in proper form for recordation in the County. "Diligence Period": The period commencing on [INSERT DATE] and ending at 5:00 p.m. Pacific time on [INSERT DATE]. "Escrow Agent": First American Title Insurance Company, National Commercial Services, 1737 North First Street, Suite 500, San Jose, California (Escrow Officer: Linda Tugade; email: [email protected]; telephone: (408) 579-8340). "Event": Any fire or other casualty affecting the Property or any actual or threatened taking or condemnation of all or any portion of the Property. "Execution Date": The date set forth on the cover page of this Agreement, which date shall be the later of the date(s) Buyer and Seller have each executed this Agreement. "Hazardous Materials": Any toxic, radioactive, caustic or otherwise hazardous substance, including petroleum, its derivatives, by-products and other hydrocarbons, or any substance having any constituent elements displaying any of the foregoing characteristics. The term "Hazardous Materials" includes, without limitation, any substance regulated under any and all federal, state and local statutes, laws (including case law), regulations, ordinances, rules, judgments, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions, whether now or hereafter in effect, relating to human health, the environment or to emissions, discharges or releases of pollutants, contaminants toxic substances, hazardous substances or wastes into the environment including, without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, hazardous materials or wastes or the clean-up or other remediation thereof. "Hazardous Materials Laws": all federal, state and local laws, ordinances, rules and regulations now or hereafter in force, as amended from time to time, and all federal and state court decisions, consent decrees and orders interpreting or enforcing any of the foregoing, in any way relating to or regulating human health or safety, or industrial hygiene or environmental conditions, or protection of the environment, or pollution or contamination of the air, soil, surface water or groundwater, and includes, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 United States Code section 9601, et seq., the Resource Conservation and Recovery Act, 42 United States Code section 6901, et seq., and the Clean Water Act, 33 United States Code section 1251, et seq.; the California Hazardous Waste Control Act, California Health & Safety Code ("H.&S.C.") §§25100 et seq.; California Hazardous Substance Account Act, H.&S.C. §§25300 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, H.&S.C. §§25249 et seq.; the California Hazardous Waste Management Act, H.&S.C. §§25170.I et seq.; H.&S.C. §§25501 et seq. (Hazardous Materials Response Plans and Inventory); the Porter Cologne Water Control Act, Ca. Water Code §§13000 et seq.; H.&S.C. §§25280, et seq. (Underground Storage of Hazardous Substances); H.&S.C. §25915 et seq.; H.&S.C. § 25359.7; H.&S.C. §§2595 et seq.; Cal Labor Code§§ 6501.5 et seq.; and Title 22 of the California Code of Regulations, all as amended to the date hereof. "Hazardous Materials Reports": Any and all studies, reports, analyses, information, or other written records regarding the presence or absence of Hazardous Materials at, on, in, under or relating to the Land. "Intangible Property": The Permits and any other personal property that is not physical in nature that is owned by Seller and that relates to or involves the Real Property, including, without limitation intellectual property or goodwill. "Land": Fee title to the parcel of real property located in the County and State, as more particularly described on the attached Exhibit A. If the legal description is not complete or is inaccurate, this Agreement shall not be invalid provided the identity of the Property can otherwise be determined from this Agreement, in which event the legal description shall be completed or corrected after the Execution Date and prior to the expiration of the Diligence Period to meet legal requirements as mutually agreed by the parties, such agreement not to be unreasonably withheld. "Leases": The Techmart Lease and any and all other leases, tenancies, licenses and other rights of occupancy or use of or for any portion of the Real Property or the Personal Property (including all amendments and renewals thereof). "Net Proceeds": The Proceeds less any sums reasonably incurred by Seller prior to Closing to process and resolve a claim with Seller's insurance company or any condemning authority, including but not limited to reasonable attorneys' fees and costs. "Permits": Any and all licenses, permits, authorizations, certificates of occupancy and other approvals that are in effect for the current use and operation of the Property. "Personal Property": All tangible personal property and fixtures owned by Seller and located on or attached to the Real Property. "Personal Property" does not include property owned by others such as Tenants under Leases. The term "Personal Property" shall not include insurance policies, utility deposits or bank accounts. "Pre-Existing Insurance Claims": Any insurance claims made or to be made by Seller for any Event occurring prior to the Execution Date relating to the Property or any portion thereof. "Proceeds": Any insurance proceeds or condemnation awards payable to Seller on account of any Event. (y) "Proceeds from Pre-Existing Insurance Claims": Any proceeds resulting from any Pre-Existing Insurance Claims, regardless of whether such proceeds are received prior to or after Closing. (z) "Property": Collectively, the Real Property, the Personal Property and the Intangible Property. (aa) "Prorations Date": The day prior to the Closing Date. (bb) "Real Property": The Land, together with Seller's interest in the buildings and other improvements and fixtures located thereon or attached thereto, together with Seller's interest in all rights of ways, streets, alleys,· air rights, development rights, water rights, riparian rights and to water stock, ingress and egress, easements, rights, privileges, hereditaments and appurtenances thereto or in any way appertaining thereto. (cc) "Service Contracts": Any and all management, service, maintenance, supply or operating contracts, or other agreements, however termed, written or oral, affecting the use, ownership, maintenance or operation of all or any part of the Property (but specifically excluding any Leases and any management agreements). (dd) "Survey": The ALTA Survey prepared by [INSERT SURVEY INFORMATION] (ee) “Techmart Assignment and Assumption of Ground Lease”: That certain grant deed and assignment and assumption between assignor, CarrAmerica Techmart, LLC, a Delaware limited liability company, and assignee, Hudson Techmart Commerce Center, LLC, a Delaware limited liability company. (ff) "Techmart Lease": That certain Ground Lease between Seller, as landlord, and CarrAmerica Techmart, LLC, dated May 13, 1998, and recorded on May 15, 1998 as Instrument No. 14185856, as assigned to Hudson Pacific Properties, Inc, a Maryland corporation by a an Assignment and Assumption of Ground Lease, dated April 1, 2015, as amended by that certain Amendment to Ground Lease, dated as of July 12, 2006 and recorded on October 26, 2006 as Instrument No. 19158820. (gg) "Techmart Tenant": [Hudson Techmart Commerce Center, LLC, a Delaware limited liability company], the tenant under the Techmart Lease. (hh) "Tenants": The tenant under the Techmart Lease and those other persons or entities holding rights of tenants under Leases, if any. (ii) “Title Commitment”: The commitment for issuance of an owner’s title insurance policy issued by the Title company in favor of Buyer in the full amount of the Purchase Price. (jj) "Title Company": First American Title Insurance Company at the office selected by the Escrow Agent. (kk) "Title Policy": A 2021 ALTA extended Owner's Title Insurance Policy insuring Buyer as the fee owner of the Property in the amount of the Purchase Price with such endorsements as Buyer shall reasonably request, subject only to the Acceptable Encumbrances. (ll) “Title Report”: The First American Title Insurance Company Preliminary Report dated as of [INSERT DATE]; Order Number: [INSERT NUMBER].
Other Defined Terms. Other capitalized terms contained in this Agreement shall have the meanings assigned to them herein.
ARTICLE III.
CONDITION
Information Regarding Property. Seller has provided and may in the future provide to Buyer documents and information pertaining to the Property, including without limitation, the Bid Package. All of such information is provided simply as an accommodation to Buyer, and except as otherwise provided in this Agreement or in any documents delivered by Seller pursuant to Section 7.3, Seller makes no representations as to their accuracy or completeness. Buyer understands that some of such documents and information were provided by others to Seller and were not prepared by or verified by Seller. In no event shall Seller be obligated to deliver or make available to Buyer any of Seller's internal memoranda, attorneyclient privileged materials or appraisals of the Property, if any.
Diligence Period. Buyer's obligation to purchase the Property is conditioned upon Buyer's review and approval, prior to the expiration of the Diligence Period and in Buyer's sole and absolute discretion, of all matters pertaining to the physical, structural, electrical, mechanical, soil, drainage, environmental, economic, tenancy, zoning, land use and other governmental compliance matters and conditions respecting the Property, including without limitation the items include in the Bid Package. If, prior to the expiration of the Diligence Period, based upon Buyer's review, examination and/or inspection of the Property, Buyer determines in its sole and absolute discretion, for any reason or no reason whatsoever, that it no longer intends to acquire the Property, then Buyer shall notify Seller of such determination in writing prior to the expiration of the Diligence Period, whereupon this Agreement, and the obligations of the parties to purchase and sell the Property hereunder, shall terminate, and Escrow Agent shall promptly release the Deposit and interest accrued thereon to Buyer without any requirement for notice to, or authorization from, Seller. If, however, on or before the expiration of the Diligence Period, Buyer determines that it intends to proceed with the acquisition of the Property, then Buyer shall notify Seller of such determination in writing prior to the expiration of the Diligence Period ("Approval Notice"). If Buyer fails to deliver the Approval Notice to Seller on or before the expiration of the Diligence Period, Buyer shall be deemed to have disapproved of all of the foregoing matters, this Agreement and the obligations of the parties hereunder shall terminate, and Escrow Agent shall promptly release the Deposit and interest accrued thereon to Buyer without any requirement for notice to, or authorization from, Seller.
Access. Subject to the rights of the Tenant pursuant to the Techmart Lease, until the Closing Date, provided this Agreement is not earlier terminated as permitted herein, Buyer and Buyer's agents and contractors shall be entitled to enter upon the Property at all reasonable times, but only for the purpose of conducting tests and making site inspections and investigations. In doing so, however, Buyer agrees (a) that no invasive testing may be conducted without Seller's prior consent, which may be withheld by Seller in its sole discretion, (b) not to cause any damage or make any physical changes to the Property (other than in de minimis respects) and (c) not to unreasonably interfere with the rights of Tenants or others who may have a legal right to use or occupy the Property. Seller or its representative shall have the right to be present to observe any testing or other inspection performed on the Property, provided in no event shall the unavailability of Seller or its representative delay any such testing or inspection. Under no circumstances shall the right of entry granted herein be interpreted as delivery of possession of the Property prior to Closing. Buyer shall maintain (or cause its agents and contractors to maintain) at all times during its entry upon the Property, commercial general liability insurance with limits of not less than Two Million Dollars ($2,000,000) combined single limit, bodily injury, death and property damage insurance per occurrence with proper endorsements naming Seller as an additional insured. At Seller's request, Buyer, Buyer's agents and contractors shall each deliver a certificate issued by the insurance carrier of each such policy to Seller evidencing the endorsements naming Seller as an additional insured prior to entry upon the Property.
Indemnification. Buyer hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to Seller) Seller, its board members, its officers, its employees and the Countywide Oversight Board members (collectively, “Seller Indemnified Parties”) from and against any and all Claims to the extent resulting from, arising from, or occasioned in whole or in part by any act or omission by Buyer, its agents, contractors, employees, representatives or invitees resulting from Buyer’s entry, inspection and examination of or on the Property (but not including any claims resulting from the discovery or disclosure of pre-existing physical or environmental conditions or the non-negligent aggravation of pre-existing physical or environmental conditions on, in, under or about the Property), except to the extent resulting from, arising from, or occasioned in whole or in part by any negligence or willful misconduct of any Seller Indemnified Parties. The provisions of this Section shall survive Closing or termination of this Agreement for a period of one (1) year.
Estoppel. Prior to the expiration of the Diligence Period, and as a condition precedent to Closing for the benefit of Buyer, Seller shall have obtained and delivered to Buyer (i) an estoppel certificate, addressed to Buyer and such other parties as Buyer may reasonably designate, from Seller in the form attached hereto as Exhibit D (the "Techmart Estoppel"). The Techmart Estoppel shall be dated no earlier than thirty (30) days prior to the Closing Date.
Buyer's Obligations with Respect to Inspections. If following Seller's prior written approval, Buyer or its agents, employees or contractors take any sample from the Property in connection with any invasive testing, Buyer shall, upon the request of Seller, provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. As soon as reasonably practicable after Buyer’s physical examinations of the Property, Buyer shall repair the damage, if any, caused by physical examinations conducted by Buyer or its agents, to substantially the condition of the Property immediately prior to such examination. Buyer shall not suffer or permit the filing of any liens arising from such inspections against the Property. If any such liens are filed, Buyer shall within thirty (30) days of knowledge thereof, cause them to be released, bonded over, or otherwise eliminated from being a lien upon the Property. In the event the transaction contemplated by this Agreement is not closed for any reason whatsoever, Buyer shall remain obligated with respect to the indemnities contained in Section 3.4 and the repair obligations set forth in this Section 3.6. The provisions of this Section shall survive termination of this Agreement for a period of one (1) year.
Condition of the Property. Buyer hereby acknowledges that prior to the expiration of the Diligence Period Seller is obligated to have provided Buyer sufficient opportunity make such independent factual, physical and legal examinations and inquiries as Buyer deems necessary and desirable with respect to the Property and the transaction contemplated by this Agreement. Any inspections conducted by Buyer after the expiration of the Diligence Period do not and shall not in any way relieve Buyer of any of its obligations under this Agreement, and the following provisions shall survive Closing:
As of the Closing, Buyer does hereby acknowledge and agree to and with Seller that, except as otherwise expressly provided in this Agreement (including without limitation Section 9.2 and Section 13.1) and the Deed and the other documents to be delivered pursuant to Section 7.3: (i) Buyer is expressly purchasing the Property in its existing condition "AS IS, WHERE IS, AND WITH ALL FAULTS" whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) Seller specifically bargained for the assumption by Buyer of all responsibility to inspect and investigate the Property and Buyer’s acknowledges the risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (iv) Buyer undertook all such inspections and investigations of the Property as Buyer deems necessary or appropriate with respect to the Property and the suitability of the Property for Buyer's intended use, and based upon same, Buyer is relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers and Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; (v) Seller is not making and has not made any warranty or representation with respect to any materials, any marketing information, or offering memoranda, or pamphlets listing or describing the property, or other data provided by Seller or others on behalf of Seller to Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or quality or any other aspect of all or any part of the Property as an inducement to Buyer to enter into this Agreement and thereafter to purchase the Property or for any other purpose; and (vi) prior to the expiration of the Diligence Period, Buyer had full access to the Bid Package and thoroughly reviewed or had a reasonable opportunity to review this Agreement and the contents of the Bid Package and freely consulted with persons of Buyer's own choosing regarding the terms and conditions of this Agreement and the Bid Package, including but not limited to consultation with legal counsel of its own choosing.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE DEED, AND THE OTHER DOCUMENTS TO BE DELIVERED PURSUANT TO SECTION 7.3, SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, TAX LIABILITIES, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. BUYER FURTHER ACKNOWLEDGES THAT BUYER IS BUYING THE PROPERTY "AS IS" AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE DEED AND THE OTHER DOCUMENTS TO BE DELIVERED PURSUANT TO SECTION 7.3, BUYER IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER, OR ANY OF ITS EMPLOYEES OR AGENTS WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE DEED AND THE OTHER DOCUMENTS TO BE DELIVERED PURSUANT TO SECTION 7.3.
WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, SELLER MAKES NO WARRANTY WITH RESPECT TO THE PRESENCE ON OR BENEATH THE LAND (OR ANY PARCEL IN PROXIMITY THERETO) OF HAZARDOUS MATERIALS. BY ACCEPTANCE OF THIS AGREEMENT AND THE DEED, BUYER ACKNOWLEDGES THAT BUYER'S OPPORTUNITY FOR INSPECTION AND INVESTIGATION OF SUCH LAND HAS BEEN ADEQUATE TO ENABLE BUYER TO MAKE BUYER'S OWN DETERMINATION WITH RESPECT TO THE PRESENCE ON OR BENEATH THE LAND OF SUCH HAZARDOUS MATERIALS.
EXCEPT TO THE EXTENT THE SAME CONSTITUTES A BREACH OF SELLER’S REPRESENTATION HEREUNDER OR AS OTHERWISE SET FORTH IN THIS AGREEMENT OR THE OTHER CLOSING DOCUMENTS, BUYER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT BE RESPONSIBLE FOR ANY CLAIMS ARISING OUT OF OR RELATING TO MOLD AND/OR OTHER MICROSCOPIC ORGANISMS AT THE PROPERTY INCLUDING BUT NOT LIMITED TO PROPERTY DAMAGES, PERSONAL INJURY, ADVERSE HEALTH EFFECTS, LOSS OF INCOME, EMOTIONAL DISTRESS, DEATH, LOSS OF USE OR LOSS OF VALUE AND BUYER HEREBY IRREVOCABLY RELEASES SELLER, ITS BOARD MEMBERS, ITS OFFICERS, ITS EMPLOYEES AND ITS OVERSIGHT BOARD MEMBERS FROM THE SAME. BUYER HEREBY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS DISCLOSURE AND RELEASE AND AGREES TO THE PROVISIONS CONTAINED HEREIN.
Other than as expressly set forth in this Agreement, in the Deed and in the other documents to be delivered by Seller pursuant to Section 7.3, neither Seller nor any agents, representatives, or employees of Seller have made any representations or warranties, direct or indirect, oral or written, express or implied, to Buyer or any agents, representatives, or employees of Buyer with respect to the Property, including, without limitation, (a) the physical condition of the Property (including the presence or absence of Hazardous Materials), zoning, set-back and other ordinances, codes, regulations, rules, requirements and orders affecting occupancy or operation of the Property, plans, specifications, any affordable housing restrictions or requirements, costs or other estimates, projections, including income and expense projections concerning the same, and (b) the Property's compliance with any environmental laws, including without limitation, 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 (42 U.S.C. Section 6901 et seq.),, the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. Section 300f et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the California Hazardous Waste Control Law (California Health and Safety Code Sections 25100-25600), the Porter-Cologne Water Quality Control Act (California Health and Safety Code Section 13000 et seq.), and the Safe Drinking Water and Toxic Enforcement Act (California Health and Safety Code Section 25249.5 et seq.). As of the Closing, Buyer specifically waives and releases Seller and its respective successors, assigns, board members, Oversight Board members, representatives, employees, agents, adjustors, accountants, officers, officials, and attorneys from (1) all warranties, express, implied, statutory or otherwise (including warranties of merchantability and warranties of fitness for use or acceptability for the purpose intended by Buyer) with respect to the Property or its condition or the prospects, operations or results of operations of the Property except with respect to the express representations and warranties contained in this Agreement, the Deed and the other documents to be delivered pursuant to Section 7.3, and (2) except with respect to Claims arising out of Seller's breach of any representation, warranty, covenant or agreement in this Agreement, the Deed and any other documents delivered by Seller pursuant to Section 7.3, and/or any other Excluded Claims, all Claims that Buyer would have against Seller.
In connection with this Section 3.7, Buyer expressly waives the benefits of Section 1542 of the California Civil Code, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. OR RELEASED PARTY" Thus, notwithstanding the provisions of Section 1542 or of any similar statute, and for the purpose of implementing a full and complete release, Buyer expressly acknowledges that this Agreement is intended to include in its effect, without limitation, all Claims which are known and all Claims which Buyer does not know or suspect to exist in Buyer's favor at the time of execution of this Agreement and that this Agreement contemplates the extinguishment of all such Claims (other than Excluded Claims).
Initials of Buyer:
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ARTICLE IV.
CONDITIONS FOR CLOSING
Seller Conditions. The parties acknowledges that Seller’s execution of this Agreement and the effectiveness of Buyer’s execution of this Agreement are each subject to the approval of (i) Seller’s Governing Board and (ii) Seller’s Countywide Oversight Board (collectively, the “Board Approvals”). If Buyer has executed this Agreement prior to receipt of the Board Approvals and thereafter the Board Approvals are not obtained by [INSERT DATE], then, from and after such date and without limitation of Buyer’s rights hereunder, Buyer shall have the right, by delivering written notice to Seller and Escrow Agent, to rescind its execution of this Agreement and, upon such notice of recession, the Deposit (to the extent any has been deposited by Buyer) shall be returned immediately to Buyer in full by Escrow Agent and the parties shall have no further rights and obligations to each other hereunder. Seller shall use commercially reasonable efforts to obtain the Board Approvals within the applicable time periods set forth above and shall provide Buyer with prompt notice of Seller's receipt of the Board Approvals. If this Agreement is disapproved by any of these entities, Seller shall immediately notify Buyer in writing of the disapproval and this Agreement shall automatically terminate, the Deposit (to the extent any has been deposited by Buyer) shall be returned immediately to Buyer in full by Escrow Agent and the parties shall have no further rights and obligations to each other hereunder.
Buyer's Conditions. The obligation of Buyer to purchase the Property from Seller, and to perform the obligations required to be performed by Buyer at the Closing, are subject to each of the following conditions precedent ("Buyer's Conditions"):
Closing Documents. Seller shall have tendered at Closing all closing documents to which Seller is a party.
Compliance with Agreement. Seller shall have performed and complied in all material respects with its obligations under this Agreement.
Representations and Warranties. All of Seller's representations and warranties under Sections 9.2, Section 13.16 and elsewhere in this Agreement shall have been true and correct as of the Effective Date and true and correct in all material respects as of Closing.
Title Policy. The Title Company shall have irrevocably and unconditionally committed to issue, but for payment of premium (other than premium or other cost to be paid by the Seller pursuant to this Agreement), the Title Policy.
Required Estoppel. Seller shall have delivered, not later than the two (2) days prior to the expiration of the Diligence Period, to Buyer the Techmart Estoppel in the form attached as Exhibit D, which estoppel shall not contain any information that is materially inconsistent with Seller's representations and warranties contained in this Agreement or the Techmart Lease provided to Buyer during the Diligence Period, and shall not claim any default by Seller or outstanding indemnity obligation of Seller under the Techmart Lease.
Techmart Lease. The Techmart Lease shall be in full force and effect, neither Seller nor Techmart Tenant shall be in breach or default of any of its obligations under the Techmart Lease (including any indemnity obligation that has not yet been performed), and there shall be no circumstance which currently or with notice or the passage of time or both could become a breach or default under the Techmart Lease.
Effect of Non-Satisfaction of a Condition. If any condition set forth in Section 4.1 is not satisfied or waived by Buyer on or before the Closing Date, Buyer may, in its sole and absolute discretion, terminate this Agreement by notice to the Seller. If this Agreement is terminated pursuant to this Article IV, notwithstanding any other provision of this Agreement, (a) all Buyer documents and funds, including the Deposit and any interest thereon, shall be returned to Buyer, and (b) neither party shall have any further rights or obligations hereunder, except for any obligations which expressly survive the termination of this Agreement and the payment of any escrow and title cancellation fees, which shall be borne equally by Buyer and Seller.
ARTICLE V.
TERMS OF PAYMENT; CLOSING ADJUSTMENTS
Payment of Purchase Price. The Purchase Price shall be paid as follows:
Credit for Deposit. If Buyer fails to deliver the Deposit as and when required by this Agreement, Seller, at Seller's sole discretion, may terminate this Agreement by providing notice to Buyer of such termination and, thereafter, this Agreement shall be terminated and neither party shall have any further rights or obligations hereunder, except for those provisions that expressly survive termination. If and only to the extent Buyer in its sole discretion and dealing entirely with the Escrow Agent (it being acknowledged by Buyer that Seller shall have no responsibility or liability in connection therewith) supplies Buyer's Taxpayer Identification Number to the Escrow Agent and executes all necessary forms required by the Escrow Agent, the Deposit shall be held in an interest bearing account with a financial institution selected by Buyer. Any accrued interest shall belong to Buyer. At Closing Buyer shall receive a credit against the Purchase Price in the amount of the Deposit (less any accrued interest thereon) and the Deposit (less any accrued interest thereon) shall be delivered to Seller. Any accrued interest on the Deposit shall be delivered upon Closing by the Escrow Agent to Buyer by wire transfer of good federal funds from the Escrow Agent. Upon Buyer’s delivery of the Approval Notice, the Deposit shall become immediately non-refundable to Buyer except as otherwise expressly provided in this Agreement, including, without limitation, in the event that this Agreement is terminated (A) due to a default by Seller, (B) due to the Seller Conditions set forth in Section 4.1 not being met; or (C) as a result of the failure of a condition to Closing benefiting Buyer. If the sale is not consummated solely because of the Buyer's default in its obligation to close hereunder (subject to all applicable extensions and notice and cure periods) with all conditions to Buyer's obligation to close having been satisfied, the terms of Section 11.1 shall apply.
Payment at Closing. The balance of the Purchase Price, subject to the prorations and adjustments for which provision is herein made, shall be paid by Buyer to the Escrow Agent by wire transfer to Escrow Agent's account at the time of Closing, and the Escrow Agent shall immediately upon Closing disburse such funds pursuant to the Closing Statement. Buyer understands and acknowledges that the purchase of the Property and this Agreement IS NOT contingent on Buyer obtaining financing for the purchase of the Property. Wired funds must be received in the Escrow Agent's account prior to 12:00 p.m. Pacific Standard Time on the Closing Date for Seller to receive the benefit of such funds. Accordingly, if funds are received after 12:00 p.m. Pacific Standard Time on any day, they shall not be deemed received until the following Business Day.
Prorations; Adjustments; Closing Costs. The following adjustments and prorations shall be computed as of 11:59 p.m. on the Prorations Date and the Purchase Price shall be adjusted to reflect such prorations; provided, however, the figures utilized by Seller for the proration of rents, security deposits and other expenses for the Property may be calculated using information from a date prior to the Prorations Date, but in no event more than four (4) Business Days prior to the Prorations Date. All costs and expenses of the Property with respect to the period on and prior to the Prorations Date shall be charged to Seller. All costs and expenses of the Property with respect to the period after the Prorations Date shall be charged to Buyer.
Revenues and Expenses. Seller shall be entitled to receive all revenues and shall be charged with all expenses relating to the ownership and operation of the Property through the Prorations Date. All revenues and expenses shall be prorated as of the Prorations Date. If, as of Closing, any rent is in arrears for the calendar month in which Closing occurs but not for prior periods, there shall be no proration of delinquent rent or revenues. All revenues from the Property collected by Seller after Closing shall be credited first to the obligations then owing to Seller for its period of ownership, remitting the balance due to Buyer for the period after the Closing, if any, but Seller will not institute litigation against any such tenant until six months after the Closing and no such litigation shall seek termination of the Lease in question, termination of the tenant's right to possession under such Lease or seek to obtain all or any part of any security for such Lease. All revenues from the Property received by Buyer after the Closing shall be applied to rent for the period on and after the Closing Date before payment by Buyer to Seller for application to revenues delinquent as of the Closing. Buyer will use reasonable efforts for a period of not more than one hundred eighty (180) days following the Closing to include in its rent invoices, the amount of any delinquent rents as of the Closing. In no event shall Buyer be obligated to bring any suit against any Tenant or exercise any of its rights or remedies under any Lease in order to collect any such Revenue. The provisions of this Section shall survive Closing.
Lease Prepayments. Buyer shall receive credits against the Purchase Price at Closing for any prepaid rents paid to Seller by the Techmart Tenant.
Taxes and Assessments; Pending and Certified Liens. To the extent applicable, taxes and assessments for the year of Closing shall be prorated as of the Prorations Date upon the amount of such taxes for the year of Closing (using any maximum discount available) if the amount of such taxes is known at the time of Closing; if such amount cannot be then ascertained, proration shall be based upon the amount of the taxes for the preceding year (using any maximum discount available). If any tax proration shall be based upon the amount of taxes for the year preceding the year of Closing, such taxes, at the request of either party, shall be reprorated and adjusted between the parties, on the basis of the tax bills for the year of Closing when received (using any maximum discount available). To the extent that Seller completes any tax appeal which results in savings for periods prior to but not after Closing, Seller shall subject to rights of the Techmart Tenant be entitled to retain all savings. To the extent that Seller completes any tax appeal which results in savings for periods prior to and after Closing, the parties agree to reprorate any such taxes and to share in the costs of such appeal, including attorney's fees and costs, based on the parties' prorata ownership of the Property for such tax period. City/County, public liens and/or similar liens (collectively, "Public Liens"), if any, certified or for which the work has been substantially completed on the date of Closing and for which payment is due in full as of the Closing, shall be paid by Seller. Any Public Liens for which an installment payment is due and/or for which the owner of the Property has the right to make installment payments on an annual basis (as opposed to being paid in a lump sum), shall be prorated for the year of Closing. Buyer shall assume all obligations for any other Public Liens payable from and after Closing. Other assessments not included on the regular property tax bills, license fees for transferred licenses, and state or municipal fees and taxes for the Property for the applicable fiscal period during which Closing takes place shall be adjusted as of the Prorations Date on the basis of the most recent ascertainable assessments and rates, and shall be re prorated as necessary pursuant to Section (f) below. The provisions of this Section shall survive Closing.
Other Prorations. In addition to the previously stated adjustments and prorations at Closing the parties shall also make such adjustments and prorations to the Purchase Price as are customary and usual in transactions similar to the transaction contemplated by this Agreement for ground leased properties located in the County, unless otherwise expressly provided in this Agreement.
Re-proration and Post-Closing Adjustments. In the event that any adjustments or prorations cannot be apportioned or adjusted at Closing by reason of the fact that final or liquidated amounts have not been ascertained, or are not available as of such date, the parties hereto agree to apportion or adjust such items on the basis of their best estimates of the amounts at Closing and to re-prorate any and all of such amounts promptly when the final or liquidated amounts are ascertained. In the event of any omission or mathematical error on the Closing Statement, or if the prorations, apportionments and computations shall prove to be incorrect for any reason, the same shall be promptly adjusted when determined and the appropriate party paid any monies owed. This provision shall survive Closing for a period of twelve (12) months.
Tenant Pay Items. Notwithstanding anything to the contrary in this Section 5.2, (i) to the extent the Techmart Tenant is paying any expenses (including, without limitation, real property taxes and assessments and/or utility charges) otherwise subject to proration hereunder directly to the applicable governmental entity, utility or services provider, or other third party, no proration of such expenses shall be made at Closing, and (ii) to the extent that the Techmart Tenant is responsible for payment directly to the applicable service provider of 100% of any category of expenses otherwise subject to proration in the form of operating expense reimbursements under the Techmart Lease, no proration of such expenses shall be made at Closing.
Costs and Expenses. Closing and Escrow costs shall be allocated between Buyer and Seller in accordance with the custom of Santa Clara County. Attorneys' fees, consulting fees, and other due diligence expenses shall be borne by the party incurring such expense. The provisions of this Section shall survive Closing.
ARTICLE VI.
TITLE
Title Report. The Title Report and the Survey were included in the Bid Package. Buyer shall take title to the Real Property subject only to the following, all of which shall be deemed "Acceptable Encumbrances":
Exception Numbers. [TBD] reflected on the Title Report; Liens for real property taxes and assessments not yet due and payable, subject to any prorations provided for herein; Reserved;
Matters disclosed by the Survey;
Zoning and other regulatory laws and ordinances affecting the Property (but not violations thereof); Any other matters that are approved in writing by Buyer after the Execution Date.
Updated Title Report. On or before the Closing Date, Buyer and/or Seller may, from time to time, cause the Title Company to update the Title Report. If the updated Title Report contains exceptions that do not constitute Acceptable Encumbrances, Buyer may deliver to Seller written objection thereto prior to the completion of the Closing. If Buyer timely and properly delivers written objection(s) to any such item(s) other than an Acceptable Encumbrance, then Seller shall notify Buyer three (3) Business Days after receipt of Buyer's notice of Buyer's title objections (but, in any event, prior to the Closing Date) whether Seller elects to remove, discharge or correct the same to Buyer’s reasonable satisfaction (and Seller's failure to respond in writing within such period shall be deemed an election by Seller not to remove, discharge or correct Buyer's title objections), and Seller shall have the right but not the obligation to use reasonable diligence to remove, discharge or correct (to Buyer’s reasonable satisfaction) such liens, encumbrances or objections and shall have a period of thirty (30) days after receipt of notice thereof in which to do so (and if necessary the Closing Date shall be extended on a day for day basis) provided that Seller is diligently pursuing such removal, discharge or correction; provided, however, Buyer shall be deemed to object to any consensual liens or encumbrances disclosed in the updated Title Report without any need to object to such items in writing or otherwise. Seller shall not in any event be obligated to pay any sums of money or to litigate any matter in order to remove, discharge or correct any lien, encumbrance or objection; provided, however, Seller shall be obligated to remove, discharge or correct any consensual liens and encumbrances disclosed in the updated Title Report. Any attempt by Seller to remove other title exceptions (i.e., exceptions that Seller is not obligated to remove pursuant to the preceding sentence or otherwise in this Article VI) shall not impose an obligation upon Seller to remove such exceptions. If Seller shall be unwilling or unable to remove or discharge such other liens, encumbrances or objections within such period, then Buyer may, at its option, no later than five (5) Business Days after Seller notifies Buyer of Seller's unwillingness or inability, either terminate this Agreement or accept title in its then existing condition without reduction of the Purchase Price. If Buyer shall elect to terminate this Agreement, the Deposit shall be returned to Buyer, this Agreement shall terminate, and thereafter neither Seller nor Buyer shall have any further rights or obligations hereunder except with respect to such obligations of this Agreement which specifically survive termination. If the updated Title Report contains no exceptions other than those reflected on the Title Report and other Acceptable Encumbrances or if Buyer fails to give written notice of objection(s) to Seller prior to completion of Closing, all matters reflected on the updated Title Report shall, except with respect to matters that are deemed objections of Buyer, be deemed Acceptable Encumbrances, this Agreement shall remain in full force and effect and Buyer shall, subject to satisfaction of the conditions set forth in Section 4.1 and further subject to Section 13.1, be obligated to complete the transaction as required by this Agreement. For the avoidance of doubt, Seller shall cause all mortgages, security agreements and deeds of trust encumbering the Property to be released of record not later than Closing.
ARTICLE VII.
ESCROW AND CLOSING
Escrow Instructions. Upon execution of this Agreement, each of the parties hereto shall deposit an executed counterpart of this Agreement with the Escrow Agent, and this Agreement shall serve as the instructions to the Escrow Agent as the escrow holder for consummation of the purchase and sale contemplated hereby. Seller and Buyer agree to execute such reasonable additional and supplementary escrow instructions as may be appropriate to enable the Escrow Agent to comply with the terms of this Agreement; provided, however, that in the event of any conflict between the provisions of this Agreement and any supplementary escrow instructions, the terms of this Agreement shall control.
Time and Place. Closing shall take place on the Closing Date or such earlier date as may be mutually acceptable to the parties with all deliveries to be made in escrow to the Escrow Agent on or prior to the Closing Date, as applicable; provided, however, that pursuant to Section 6.2 Seller at Seller's option may extend the Closing Date for purposes of curing objections to the status of title that were timely and properly raised by Buyer.
Seller's Deposit of Documents. Not later than 5:00 p.m. Pacific time on the date prior to the Closing Date, Seller shall deposit or cause to be deposited into escrow with the Escrow Agent the following items:
an executed and acknowledged Deed in recordable form with respect to the Real Property, in the form of Exhibit B hereto, together with any State, County and local transfer tax declarations and forms required to be executed by Seller; an executed Certificate of Non-Foreign Status in the form of Exhibit H hereto;
an executed combined Buyer - Seller Closing Statement prepared by the Escrow Agent reflecting all financial aspects of the transaction ("Closing Statement"); a completed State of California Form 593;
two (2) executed counterpart originals of an Assignment and Assumption of Lease (the "Assignment of Lease") in the form of Exhibit E hereto; an executed Bill of Sale (the "Bill of Sale") in the form of Exhibit F hereto;
an executed Affordability Covenant (the “Affordability Covenant”) in the form of Exhibit I hereto; appropriate evidence of existence, good standing, qualification in California (if applicable), and authorization reasonably satisfactory to Buyer and satisfactory to the Title Company regarding the consummation of the transaction contemplated by this Agreement and reflecting that the documents executed by Seller at Closing were duly authorized and executed; An executed and acknowledged Owners Affidavit, to the extent and in such form as the Title Company shall reasonably require in order for the Title Policy to be issued at Closing (including a mechanics lien indemnity, if required); a "GAP" indemnity, to the extent and. in such form as the Escrow Agent shall reasonably require in order to close on the Closing Date an executed Seller Closing Certificate that all of Seller's warranties and representations remain true and correct in all material respects as of Closing in the form of Exhibit C.
Buyer's Deposit of Documents. Not later than 5:00 p.m. Pacific time on the date prior to the Closing Date (except as otherwise noted), Buyer shall deposit or cause to be deposited into escrow with the Escrow Agent the following items:
the balance of the Purchase Price in the amount required by Section 5.1(b) hereof; any State, County and local transfer tax declarations and forms required to be executed by Buyer; an executed Closing Statement;
an executed Certificate of Buyer that all of Buyer's warranties and representations remain true in all material respects as of Closing in the form of Exhibit C hereto; evidence reasonably satisfactory to Seller and the Escrow Agent reflecting that all documents executed by Buyer at Closing were duly authorized and executed; (l) a Certificate of Good Standing from the Secretary of State in which Buyer is organized (if Buyer is a corporation, limited partnership or limited liability company); a completed Preliminary Change of Ownership form; and
Two (2) duplicate originals executed by Buyer of the Assignment of Leases.
Other Documents. Buyer and Seller shall each deliver such other documents as are otherwise reasonably required by the Title Company to consummate the purchase and sale of the Property in accordance with the terms hereof. Unless the parties otherwise agree in writing, the Escrow Agent is hereby designated as the "Reporting Person" for the transaction pursuant to Section 6045(e) of the United States Code and the regulations promulgated thereunder. If requested in writing by either party, the Escrow Agent shall confirm its status as the "Reporting Person" in writing, which such writing shall comply with the requirements of Section 6045(e) of the United States Code and the regulations promulgated thereunder.
Possession. Possession of the Property, subject to the Techmart Lease, shall be surrendered to Buyer at Closing.
Tenant and Service Contractor Notices. Immediately after Closing, Buyer shall deliver to Techmart Tenant a copy of the Notice to Tenant, and to all vendors under Service Contracts, if any, a copy of the Notice to Service Contractor. The provisions of this Section 7.7 shall survive the Closing.
ARTICLE VIII.
ENVIRONMENTAL MATTERS
Release. Without limiting Section 3.6, Buyer acknowledges that Seller is not in any manner responsible to Buyer for the presence of any Hazardous Materials at, on, in, under or relating to the Property, if any. Buyer hereby specifically and irrevocably releases the Seller, its board members, its officers, its employees and its Oversight Board members from any and all Claims relating to the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission or release of any Hazardous Materials on the Property, if any, including without limitation, any residual contamination, in, on, under or about the Property or affecting natural resources, whether prior to or following Closing, and also including, without limitation, any liability due to asbestos-containing materials at the Property. BUYER'S CLOSING HEREUNDER SHALL BE DEEMED TO CONSTITUTE AN EXPRESS WAIVER OF BUYER'S AND ITS SUCCESSORS' AND ASSIGNS' RIGHTS TO SUE SELLER AND OF BUYER'S RIGHT TO CAUSE ANY OF SELLER'S BOARD MEMBERS, OFFICERS, EMPLOYEES OR OVERSIGHT BOARD MEMBERS TO BE JOINED IN AN ACTION BROUGHT UNDER ANY FEDERAL, STATE OR LOCAL LAW, RULE, ACT, OR REGULATION NOW EXISTING OR HEREAFTER ENACTED OR AMENDED WHICH PROHIBITS OR REGULATES THE USE, HANDLING, STORAGE, TRANSPORTATION OR DISPOSAL OF HAZARDOUS MATERIALS OR WIDCH REQUIRES REMOVAL OR REMEDIAL ACTION WITH RESPECT TO SUCH I-IAZARDOUS MATERIALS, SPECIFICALLY INCLUDING BUT NOT LIMITED TO FEDERAL "CERCLA", "RCRA", AND "SARA" ACTS. The acknowledgments of Buyer and the release contained in this Section of this Agreement shall survive Closing or termination of this Agreement. Notwithstanding anything to the contrary in this Agreement, the waivers, releases and other provisions limiting Seller's liability set forth in this Section 8.1 and elsewhere in this Agreement shall be inapplicable to any claims based on, resulting from or arising out, whether in whole in part, of (a) breach of Seller's express representations and warranties hereunder, subject to Section 9.5, (b) Seller's fraud or intentional wrongdoing, (c) the right of Buyer to name Seller or any agents, representatives, or employees of Seller as a defendant in any third party claim filed against Buyer or its agents, affiliates, successors or assigns, to the extent such claim arose as a result an event or circumstance that occurred during Seller's (or its predecessor Redevelopment Agency of the City of Santa Clara's) period of ownership of the Property and was not caused by the acts or omissions of Buyer or such agents, affiliates, successors or assigns, (d) claims of Buyer, its successors or assigns against Seller for indemnification or contribution arising under the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. Section 9601, et. seq.) or any similar federal, state or local statute, rule or ordinance relating to liability of property owners for environmental matters to the extent such claim arose as a result of a release or other occurrence during Seller's (or its predecessor Redevelopment Agency of the City of Santa Clara's) period of ownership of the Property and was not caused by the acts or omissions of Buyer or such successors or assigns, (e) claims made by Techmart Tenant alleging defaults by Seller, as landlord, related to the period of Seller's ownership of the Property, (f) claims relating to or arising from properties of Seller other than the Property and/or claims against Seller in its regulatory capacity (as opposed to its proprietary capacity), and/or (g) breach of Seller’s obligations that expressly survive Closing or termination of this Agreement including, without limitation, pursuant to Section 5.2 (Prorations; Adjustments; Closing Costs), Section 13.16 (Broker) and Section 16.1 (Attorneys’ Fees; Jurisdiction; Venue) (collectively, the “Excluded Claims”).
Indemnification. Without limiting the provisions of Section 3.4, effective as of the Closing and expressly conditioned on the Closing having occurred, Buyer hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to Seller) Seller, its board members, its officers, its employees and its Oversight Board members from and against any and all claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of any kind, and all costs and expenses actually and reasonably incurred in connection therewith (including, but not limited to, reasonable attorney's fees and expenses), solely to the extent arising from: (1) the failure of Buyer, its agents, employees, or contractors to comply with any Hazardous Materials Law relating in any way whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation or disposal of Hazardous Materials into, on, under or from the Property; (2) the presence in, on or under the Property of any Hazardous Materials, to the extent introduced to the Property on or after the Closing Date, or any releases or discharges of any Hazardous Materials into, on, under or from the Property, to the extent such release or discharge is initiated on or after the Closing Date; or (3) any activity carried on or undertaken on or off the Property subsequent to the conveyance of the Property to Buyer, whether by Buyer or any employees, agents, contractors or subcontractors of Buyer at any time occupying or present on the Property, in connection with the handling, treatment, removal, storage, decontamination, cleanup, transport or disposal of any Hazardous Materials at any time located or present on or under the Property. The foregoing indemnity shall further apply to any contamination of any property or natural resources in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Materials on or after the Closing Date, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws.
Confidentiality of Hazardous Materials Reports. Unless and until the Closing actually occurs, Buyer, its agents, consultants and employees shall keep confidential all Hazardous Materials Reports and other information received or completed by Buyer in Buyer's independent factual, physical and legal examinations and inquiries of the Property, except that: (a) if Closing does not occur for any reason other than due to Seller’s default hereunder, Buyer shall if requested by Seller in writing promptly after receipt provide copies thereof to Seller; and (b) Buyer may disclose the same (i) to its consultants if Buyer first advises such consultants to keep such Hazardous Materials Reports and related documentation confidential, (ii) as required by applicable law, rule, regulation, (iii) in connection with litigation or other judicial or regulatory proceedings and (iv) to its consultants, attorneys, accountants and advisors, investors and current and potential investors and other financing sources. Unless and until the Closing actually occurs, neither the contents nor the results of any test, report, analysis, opinion or other information shall be disclosed by Buyer, its agents, consultants and employees without Seller's prior written approval not to be unreasonably withheld, delayed or conditioned unless and until Buyer is legally required to make such disclosure; provided, however, Buyer may disclose as permitted under clause (b) of this Section 8.3 prior to Closing and to anyone after Closing. The provisions of this Section 8.3 shall survive the termination of this Agreement.
ARTICLE IX.
WARRANTIES AND REPRESENTATIONS AND COVENANTS
Buyer's Representations and Warranties. Buyer warrants and represents that: (a) Buyer has the full right, power, and authority to purchase the Property from Seller as provided in this Agreement and to carry out Buyer's obligations hereunder; (b) if Buyer is an entity, Buyer is duly formed and in good standing under the laws of the state in which it is organized and duly authorized to conduct business in the State or if Buyer is an individual, Buyer is lawfully capable of entering into and performing the obligations under this Agreement, provided however, in the event that Buyer assigns this Agreement to an entity pursuant to the terms of Article IX of this Agreement, any such entity shall be duly formed and in good standing under the laws of the state of its formation and qualified to transact business in the State; (c) all requisite action necessary to authorize Buyer to enter into this Agreement and to carry out Buyer's obligations has been obtained; (d) this Agreement has been duly authorized, executed and delivered by Buyer; and (e) to Buyer’s knowledge, the execution of this Agreement and the Closing to occur hereunder do not and will not violate any contract, covenant or other agreement to which Buyer may be a party or by which Buyer may be bound. The provisions of this Section shall survive Closing.
Seller’s Representations and Warranties. Seller represents and warrants to Buyer:
Authorization. Seller is an existing public entity under the laws of the State of California. Seller has the full right, power, and authority to execute and deliver this Agreement, the Deed and the other documents to be executed by Seller pursuant to Section 7.3 and sell, assign, transfer and convey fee simple title to the Property as provided in this Agreement, and to carry out Seller’s obligations hereunder[, and, upon receipt of the Board Approvals,] all requisite action necessary to authorize Seller to enter into this Agreement and to carry out Seller’s obligations hereunder has been, or at the Closing will have been, taken. [As of Seller’s execution of this Agreement, Seller has received all Board Approvals.] No Conflict. Seller is not prohibited from consummating the transactions contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment.
No Bankruptcy Proceedings. There are no assignments for the benefit of creditors, receiverships, conservatorships, or voluntary or involuntary proceedings in bankruptcy or pursuant to any other debtor relief laws contemplated or filed by Seller or pending against Seller or the Property.
Litigation. There are no suits, arbitrations, mediations, investigations or other proceedings or causes of action which are pending or, to Seller’s Knowledge, threatened against or affecting Seller or the Property in any court of competent jurisdiction or otherwise.
Leases. The only Lease currently in effect to which Seller (and/or any prior owner of the Property or any portion thereof) is party or is otherwise binding upon the Property is the Techmart Lease and no person or entity is in possession, has a right to possess or occupy all or any portion of the Property other than pursuant to the Techmart Lease (including any subleases thereunder). The Techmart Lease is in full force and effect on the terms set forth therein and Seller has delivered to Buyer a true, correct and complete copy of the Techmart Lease. The Techmart Lease has not been amended or modified except pursuant to written modifications or amendments, true, correct and complete copies of which have been delivered by Seller to Buyer. There are no defaults by Seller under the Techmart Lease and to the best of Seller’s knowledge, there are no defaults by Techmart Tenant under the Techmart Lease. Seller has good title to· the Techmart Lease and has not assigned or pledged the Techmart Lease.
Service Contracts. The Seller is not party to, nor is the Seller's interest in the Property bound by, any Property management agreement or other Service Contract. From and after Closing, neither Buyer nor the Property shall be bound any property management agreement or other Service Contract of Seller.
Compliance With Law. Seller has not received any written notice stating that the Property violates any federal, state, municipal and other governmental statutes, ordinances, by-laws, rules, regulations or any other legal requirements and which have not been cured, and to Seller’s knowledge, no such violation exists.
No Violation. The execution of this Agreement and the Closing to occur hereunder do not and will not violate any contract, covenant or other agreement to which Seller may be a party or by which Seller may be bound.
No Rights to Purchase. Other than Buyer pursuant to this Agreement, no person or entity has a contract or option to purchase, letter of intent, right of first refusal or first offer, or similar rights with respect to the Property that is now outstanding.
No Condemnation. Seller has not received any notice that any condemnation or eminent domain proceedings are pending or threatened against the Property, and to ’no such proceedings are pending or, to Seller’s knowledge, threatened.
No Unrecorded Agreements. Neither Seller nor its predecessor Redevelopment Agency of the City of Santa Clara has entered into or executed any unrecorded agreement or lease that would be binding on the Property and/or Buyer as of the Closing, other than the Techmart Lease.
Employees. Seller has no employees with respect to the Property Ownership. Seller is the owner of the Personal Property and Intangibles, free and clear of any liens or encumbrances.
ERISA. Neither the Property nor any portion thereof is the asset of an employee benefit plan as defined in Section 3(3) of ERISA or covered under Title I, Part 4 of ERISA or Section 4975 of the Internal Revenue Code.
OFAC. Seller (i) is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order or the United States Department of the Treasury as a terrorist, "Specially Designated and Blocked Persons", or other banned or blocked person, group, entity, nation or transaction pursuant to any law, order, rule, or regulation that is enforced or administered by the Office of Foreign Asset Control ("OFAC") of the United States Department of the Treasury; and (ii) is not engaged, directly or indirectly, in any dealings or transactions and is not otherwise associated with such person, group, entity or nation.
Seller's Knowledge; Survival. For purposes of this Agreement, Seller's "knowledge" or words of similar import means the actual knowledge of Ruth Shikada, in her capacity as [_____________] of the Seller and who is the person most knowledgeable of Seller’s representations and warranties contained in this Agreement, after reasonable and diligent inquiry and investigation including, without limitation, inquiry of the Techmart Tenant. The representations and warranties of Seller contained in this Agreement shall survive the Closing and the recordation of the Deed for a period of Twelve (12) months, at which time they will be deemed to be merged into and superseded by the Deed and other documents executed by Seller and delivered pursuant to Section 7.3, except with respect to claims made in accordance with Section 9.4.
Limitations. Notwithstanding anything in this Agreement to the contrary, Seller's liability for breaches of the representations and warranties set forth in Section 9.2 is subject to the following limitations:
Filing of Claim. Any claim by Buyer against Seller for a breach of a covenant, representation or warranty must be asserted during the period of twelve (12) months following the Closing and any litigation related to such claim must be brought within twelve (12) months following the Closing.
Actual Knowledge. If Buyer proceeds with Closing despite having the right to terminate this Agreement on account of any breach of a representation or warranty by Seller as to which Buyer has actual knowledge of before Closing (except to the extent such breach is the result of Seller's fraud or intentional wrongdoing), Buyer shall have no claim for any such breach of a representation or warranty, and, by proceeding with Closing as aforesaid, Buyer shall be deemed to have waived all claims based on or resulting from the breach of any such representations, warranties or covenants. For purposes of this Agreement, Buyer's "knowledge" or words of similar import means the actual knowledge of Sam Hamilton without any independent investigation and does not include any imputed or constructive knowledge that may be attributed to such individual.
Threshold Amount. If the Closing occurs, Buyer shall have no recourse against Seller until the aggregate claims for breach of any of Seller's covenants, representations or warranties under this Agreement exceed $25,000.00 (the "Threshold Amount"). Once the Threshold Amount has been reached as to any one or more matters in the aggregate, Buyer shall be entitled to recourse against the Seller for the dollar value of all aggregate claims, subject to Sections 9.5 and 9. 6.
Aggregate Liability. If the Closing occurs, the aggregate liability of Seller arising pursuant to or in connection with the representations and warranties of Seller under this Agreement or any document executed or delivered in connection herewith shall not exceed one hundred thousand dollars ($100,000) ("Liability Limitation"). The provisions of this Section shall survive Closing.
Consequential or Punitive Damages. Neither Seller nor Buyer shall be liable to the other under this Agreement for special, incidental or consequential damages or for punitive or exemplary damages except (i) where such party's acts or omissions constitute fraud or willful misconduct, (ii) to the extent awarded against Seller or Buyer, as applicable, in favor of a third party and/or (iii) as otherwise expressly set forth herein. Provided that in no event shall Seller’s liability under this Section 9.6 exceed the amount set forth in 9.5 above.
Seller's Covenants. Seller covenants and agrees as follows until the Closing:
Insurance. Seller shall cause to be maintained in force Seller's existing Property coverage insurance and commercial general liability insurance upon the Property in the amounts not less than such amounts as are, on the Execution Date, carried by Seller.
Operation and Maintenance, Seller shall, subject to the terms and conditions of the Leases, operate, maintain, and repair the Property in substantially the same manner as prior to the Execution Date pursuant to its normal course of business. Except to the extent required to comply with applicable law or as the tenants under the Leases are permitted to do without Seller’s consent and at such tenants’ cost, the Seller shall not materially alter the Property (or permit the material alteration of the Property) after the Execution Date without Buyer’s prior written consent.
Personal Property. Seller shall not remove any Personal Property from the Property unless Seller replaces the same before the Closing with Personal Property of equivalent or better utility and quality to the items removed.
Title. Seller shall not further encumber the Property (or permit the same to be further encumbered) without the written consent of Buyer. Seller will not apply for or permit any variance, change or modification with respect to any zoning of the Property or use of the Property without Buyer's written consent.
Leases. Seller shall not enter into, terminate, modify or amend any Leases. Seller shall not grant any consent or approval under the Techmart Leases. Seller shall not waive any conditions or obligations under the Techmart Leases or guarantees of Techmart Lease. Seller shall not enter into any nondisturbance or analogous agreements with any Techmart Tenants or subtenants. Seller will, promptly, and, in any event, not later than one (1) Business Day following receipt, give Buyer a true and complete copy of any notices, reports, statements, demand or material correspondence received from or delivered to the Techmart Tenant. Seller will not give a notice of default to the Techmart Tenant or apply any portion of the security deposit, in each case without Buyer's written consent.
Notice of Material Changes. Upon learning of any event, changed condition or circumstance or receiving any notice or documentation or otherwise acquiring knowledge (any of the foregoing being referred to herein as a "Changed Condition") which makes any representation or warranty of Seller to Buyer under this Agreement not true, incomplete or incorrect or any default by the tenant under any Leases, Seller shall promptly notify Buyer in writing thereof.
Within five (5) Business Days after notification in writing by Seller to Buyer of any such Changed Condition that is not due a breach or default by Seller under this Agreement, Seller, at Seller’s own option and expense, may elect by written notice to Buyer to remedy the Changed Condition such that Seller’s representations are accurate, and the Closing Date may be extended for up to ten (10) days after the scheduled Closing Date in order for Seller to effectuate such remedy. If Seller does not elect to effectuate such remedy so as to cause Seller's representations to be accurate, or if Seller so elects but then fails to complete such remedy within such ten (10) day period, then Buyer may elect, by written notice to Seller given at any time thereafter, to terminate this Agreement, in which event (1) neither Buyer nor Seller shall have any further obligation under this Agreement, except for the obligations which expressly survive the termination of this Agreement, and (2) the Deposit together with accrued interest thereon shall be returned to Buyer.
No Other Contract. Seller will not enter into any other agreement or option to sell the Property or any portion of, or interest in, the Property. Seller will not market the Property for sale. Seller will not enter into any other agreements or contracts, including, without limitation any Service Contracts or Property management agreements, that will be binding on the Property or Buyer at Closing.
ARTICLE X.
ASSIGNMENT
Buyer may not, prior to the Closing, assign this Agreement, nor may any of Buyer's rights hereunder be transferred in any manner, nor may any of Buyer's rights hereunder or any ownership interest in Buyer be transferred in any manner to any person or entity, without Seller's specific prior written consent, which consent may be withheld by Seller for any reason whatsoever except, however, that Buyer shall have the right to assign this Agreement, without Seller’s consent, to an entity controlled by, or under common control with, Buyer; provided, however, any such assignment shall be binding on Seller only to the extent Buyer provides Seller with written intent to so assign, specifically naming the assignee and providing the signature block for the assignee, no later than the Closing Date and a certification by Buyer that the assignee is controlled by, or under common control with, Buyer. If Buyer assigns this Agreement pursuant to the terms hereof: (a) the assignee shall be liable (jointly and severally with assignor) for all of Buyer's obligations hereunder; (b) the assignor (i.e., the original Buyer hereunder) shall remain obligated (but jointly and severally with assignee) with respect to all of Buyer's obligations hereunder; and (c) the assignor and any assignee shall execute such instruments of assignment and assumption in form reasonably acceptable to Seller in confirmation of the provisions hereof. “Control” means (a) the power to direct the management and policies, directly or indirectly, of an entity through the ownership of voting securities, contract or otherwise or (b) the ownership, directly or indirectly, of at least fifty percent (50%) of the ownership interests of an entity.
ARTICLE XI.
DEFAULT
Buyer's Default. If Buyer shall fail to close the transaction contemplated hereby as and when required, except if such failure is as a result of any Seller default or failure of a condition, the Deposit shall be paid over to Seller as agreed and, liquidated damages and not as a penalty, it being acknowledged by Buyer and Seller that in such event Seller will suffer substantial damages but such damages are incapable of exact ascertainment. After payment to Seller of the Deposit, neither Seller nor Buyer shall have any further rights or obligations hereunder except that Buyer and Seller shall remain obligated with respect to the obligations which specifically survive termination. If subsequent to Closing Buyer shall fail to comply with its obligations contained herein which survive Closing, Seller, in addition to an rights and remedies provided herein, shall be entitled to any and all remedies available at law or in equity. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
SELLER AND BUYER ACKNOWLEDGE THAT IN THE EVENT BUYER SHOULD FAIL TO CLOSE THE TRANSACTION CONTEMPLATED HEREBY SOLELY AS A RESULT OF A DEFAULT BY BUYER, THEN SELLER'S DAMAGES WOULD BE DIFFICULT TO DETERMINE, AND THAT THE DEPOSIT IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES RESULTING FROM SUCH FAILURE TO CLOSE THE TRANSACTION RESULTING SOLELY FROM A DEFAULT BY BUYER. SELLER AND BUYER FURTHER AGREE THAT THIS SECTION 11.1 IS INTENDED TO AND DOES LIQUIDATE THE AMOUNT OF DAMAGES DUE SELLER, AND SHALL BE SELLER'S EXCLUSIVE REMEDY AGAINST BUYER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR RELATED TO SUCH FAILURE BY BUYER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OTHER THAN WITH RESPECT TO BUYER'S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND SELLER’S RIGHT TO RECOVER ITS REASONABLE ATTORNEYS’ FEES AND EXPENSES. THE PAYMENT 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.
Buyer Seller
Seller's Default. If Seller is in default of this Agreement before or at the Closing, Buyer may elect either:
to terminate this Agreement, in which case the Deposit (plus accrued interest) shall be promptly returned to Buyer, and neither Buyer nor Seller shall have any further liability hereunder; or to seek specific performance of Seller's obligations hereunder, plus recover the costs and expenses of enforcing this Agreement.
Buyer expressly waives all other remedies, including suit for damages, provided that nothing herein precludes a claim against Seller after Closing for a breach of any representations and warranties, subject to the limitations of Section 9.4 hereof. If Buyer does not bring suit under option (b) above within six (6) months of the scheduled Closing, Buyer shall be deemed to have elected option (a) above.
No Obligation of Seller after Closing. Buyer expressly acknowledges and agrees that Seller has no obligations with respect to the Property that survive Closing, except as specifically set forth in this Agreement. The provisions of this Section shall survive Closing.
ARTICLE XII.
NO JOINT VENTURE
Buyer acknowledges and agrees that Seller is not a venturer, co-venturer, insurer, guarantor or partner of Buyer in Buyer’s development of, construction upon and resale of the Property, and that Seller shall bear no liability whatsoever resulting from or arising out of Buyer’s ownership and development of, and construction upon, the Property. The provisions of this Article shall survive Closing.
ARTICLE XIII.
MISCELLANEOUS
Risk of Loss.
Seller shall, subject to the rights of Techmart Tenant, retain all rights with respect to any Pre-Existing Insurance Claims and any Proceeds from Pre Existing Insurance Claims.
Seller agrees to give Buyer prompt notice of any Event occurring after the Execution Date and before the Closing Date.
If on or after the Execution Date and prior to Closing, any Event (“Termination Event”) shall occur (i) which would cost an amount, greater than, or equal to $500,000 (as reasonably determined by a third party contractor approved by Buyer) to repair and/or restore, (ii) (A) which would materially interfere with the present use of or access to such Property and/or permit Techmart Tenant to terminate the Techmart Lease or abate rent, or (B) with respect to which any mortgagee of Techmart Tenant is not required to apply (or does not apply) proceeds of insurance or condemnation awards, as applicable, sufficient to complete such restoration and/or repair, as applicable, (iii) which would cause the Property to be in violation of applicable law (including any applicable zoning laws and/or parking requirements thereunder), or (iv) which is not fully covered by Seller's insurance policies and that is not Techmart Tenant's obligation to repair and restore pursuant to the Techmart Lease, Buyer shall have the right to terminate this Agreement by giving notice to Seller within ten (10) Business Days after Buyer has received notice from Seller of the Event and the Closing Date shall be extended, if necessary, to provide sufficient time for Buyer to make such election (and Buyer's failure to make· such election shall be deemed Buyer's election not to terminate this Agreement). Upon such termination, the Deposit shall be promptly returned to Buyer, and neither party shall have any further rights or obligations hereunder except with respect to the provisions of this Agreement which specifically survive termination. If Buyer or Seller does not so timely elect to terminate this Agreement, Seller shall not be obligated to repair the Property, Closing shall take place as provided herein and at Closing Seller shall assign to Buyer all interest of Seller in and to the Net Proceeds (if any).
If, on or after the expiration of the Diligence Period and prior to Closing, any Event that is not a Termination Event shall occur, Buyer may not terminate this Agreement, Seller shall not be obligated to repair the Property, and Closing shall take place as provided herein, and at Closing Seller shall assign to Buyer all interest of Seller in and to the Net Proceeds.
At Closing, Buyer shall receive a credit for any Net Proceeds received by Seller prior to Closing. Seller shall, subject to the Techmart lease, retain the exclusive right to process and handle the claim related to any Event occurring prior to Closing with Seller’s insurance company. Seller makes no representation or warranty with respect to the amount of the Net Proceeds, including, without limitation, whether Buyer will be entitled to the actual cash value or the replacement cost of the Property. Seller and Buyer agree to use good faith efforts to cooperate with each other in negotiating and resolving the amount of the Net Proceeds, including, without limitation, promptly providing any and all materials requested by the insurance company and promptly responding to any and all inquiries from the insurance company. Seller shall not agree to the amount of the Net Proceeds with the insurance company without Buyer's consent.
Seller and Buyer each expressly waive the provisions of California Civil Code Section 1662 and hereby agree that the provisions of this Agreement shall govern the parties’ obligations in the event of any damage or destruction to the Real Property or the taking of all or any part of the Real Property, as applicable.
The provisions of this Section shall survive Closing.
Construction. The terms "Seller" and "Buyer" whenever used in this Agreement shall include the heirs, personal representatives, successors and assigns of the respective parties hereto; provided, however, that Buyer's right of assignment is restricted by the provisions hereof. Whenever used, the singular number shall include the plural and the plural the singular, and the use of any gender shall include all genders. The term "including" as used herein shall in all instances mean "including, but not limited to". The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the interpretation of this Agreement. This Agreement and any related instruments shall not be construed more strictly against one party than against the other by virtue of the fact that initial drafts may have been prepared by counsel for one of the parties, it being recognized that this Agreement and any related instruments are the product of extensive negotiations between the parties hereto.
Counterparts and Electronic Signatures. This Agreement may be executed in multiple counterparts by the parties hereto. All counterparts so executed shall constitute one agreement binding upon all parties, notwithstanding that all parties are not signatories to the original or the same counterpart. Each counterpart shall be deemed an original Agreement all of which shall constitute one agreement to be valid as of the date of this Agreement. Facsimile, documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such facsimile, scanned and electronic signatures having the same legal effect as original signatures.
Severability and Waiver. Invalidation of any one Section or provision of this Agreement by judgment or court order shall in no way affect any other Section or provision. Failure of any party to this Agreement to insist on the full performance of any of its provisions by the other party (or parties) shall not constitute a waiver of such performance unless the party failing to insist on full performance of the provision declares in writing signed by it that it is waiving such performance. A waiver of any breach under this Agreement by any party, unless otherwise expressly declared in writing, shall not be a continuing waiver or waiver of any subsequent breach of the same or other provision of this Agreement. The provisions of this Section shall survive Closing.
Governing Law. The laws of the State of California (without regard to conflicts of law) shall govern the validity, construction, enforcement and interpretation of this Agreement.
Further Acts. In addition to the acts and deeds recited in this Agreement and contemplated to be performed, executed, and/or delivered under this Agreement, Seller and Buyer agree to perform, execute and/or deliver or cause to be delivered, executed and/or delivered at Closing or after Closing all further acts, fees, and assurances reasonably necessary to consummate the transactions contemplated hereby.
Notices. All notices, demands, requests, and other communications required or permitted hereunder shall be in writing. Any notice given by a party's attorney shall be deemed notice given by such party. All such notices, demands, requests and other communications (and copies thereof) shall be deemed to be delivered: (a) if sent by messenger, upon personal delivery to the party to whom the notice is directed; (b) if sent by email on (i) the Business Day sent so long as such email notice is sent within business hours (i.e., 8 A.M. Pacific Time - 5 P.M. Pacific Time) on that Business Day (unless a different time period is provided here) or (ii) the next Business Day if sent after business hours (i.e., 8 A.M. Pacific Time - 5 P.M. Pacific Time) on the Business Day sent or sent on a day other than a Business Day, and in either case such email notice is followed by notice pursuant to provisions (a) or (c) of this Section or the party to whom such email notice is given acknowledges receipt; or (c) if sent by overnight courier, with request for next Business Day delivery, on the next Business Day after sending; addressed as follows (or to such other address as the parties may specify by notice given pursuant to this Section):
TO SELLER: To the Seller's Notice Address set forth in the Key Terms TO BUYER: To the Buyer's Notice Address set forth in the Key Terms Entire Agreement and Amendment. This Agreement contains the entire understanding between Buyer and Seller with respect to the subject matter hereof. Neither this Agreement nor any provision hereof may be modified, amended, changed, waived, discharged or terminated orally. Any such action may occur only by an instrument in writing signed by the party against whom enforcement of the modification, change, waiver, discharge or termination is sought.
Recording. This Agreement shall not be recorded. Buyer agrees that recording this Agreement shall constitute a default by Buyer. Nothing herein shall prohibit Buyer from recording a notice of lis pendens in the event of a specific performance action under Section 11.2.
Exhibits. The Exhibits that are referenced in and attached to this Agreement are incorporated in, and made a part of, this Agreement for all purposes.
Time of the Essence. Seller and Buyer expressly agree that time is of the essence with respect to this Agreement. If the final day of any period or any date of performance under this Agreement falls on a date which is not a Business Day, then the final day of the period or the date of performance, as applicable, shall be extended to the next day which is a Business Day.
No Third Party Beneficiary. This Agreement is solely between Seller and Buyer and no other party shall be entitled to rely upon any provision hereof for any purpose whatsoever.
Limitation on Liability. Buyer expressly agrees that the obligations and liabilities of Seller under this Agreement and any document referenced herein shall not constitute personal obligations of the officers, directors, shareholders, employees, agents, representatives, trustees, partners, members, certificate holders, or other principals of Seller. Notwithstanding anything to the contrary, Seller's liability, if any, arising in connection with this Agreement or with the Property shall be limited to the amount set forth in Section 9.5 or Section 11.2 above, as applicable, for the recovery of any judgment against Seller, and Seller shall not be personally liable for any such judgment or deficiency after execution thereon. The limitations of liability contained in this paragraph shall apply equally and inure to the benefit of all of Seller's board members, officers, employees and Oversight Board members. The provisions of this Section shall survive termination and Closing.
Legal Counsel and Joint Authorship. Each of Buyer and Seller has received independent legal advice from attorneys of its choice with respect to the advisability of making and executing this Agreement and the documents which, under the terms of this Agreement, are to be executed and delivered by Seller or Buyer or both at Closing (the "Closing Documents") or waived its right to do so. Buyer hereby acknowledges that Seller's counsel is not representing the Buyer or any interests of Buyer in connection with this Agreement or any other matter and that, unless Buyer is represented by counsel, Buyer has made the informed decision to not consult with an attorney of Buyer's choice prior to the execution of this Agreement. In the event of any dispute or controversy regarding authorship of this Agreement or the Closing Documents, Buyer and Seller shall be conclusively deemed to be the joint authors of this Agreement and the Closing Documents and no provision of this Agreement or the Closing Documents shall be interpreted against Buyer or Seller by reason of authorship.
Prohibited Persons. Neither Buyer nor, to Buyer's knowledge, any of its respective officers, directors, shareholders, partners, members or affiliates (including without limitation indirect holders of equity interests in Buyer) is an entity or person (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224 issued on September 24, 2001 ("E013224"), (ii) whose name appears on the United States Treasury Department's Office of Foreign Assets Control ("OFAC") most current list of "Specifically Designated National and Blocked Persons" (which list may be published from time to time in various mediums including, but not limited to, the OFAC website) (iii) who commits, threatens to commit or supports "terrorism", as that term is defined in EO13224, (iv) is subject to sanctions of the United States government or is in violation of any federal, state, municipal or local laws, statutes, codes, ordinances, orders, decrees, rules or regulations relating to terrorism or money laundering, including, without limitation, EOl3224 and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, or (v) who is otherwise affiliated with any entity or person listed above (any and all parties or persons described in clauses (i) - (v) above are herein referred to as a "Prohibited Person"). Buyer covenants and agrees that Buyer shall not (aa) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person, or (bb) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in EO13224. The provisions of this Section shall survive Closing or termination of this Agreement.
Broker. Seller represents and warrants to Buyer that Seller has not incurred, and shall not have incurred as of the Closing, any liability for the payment of any brokerage fee or commission in connection with the transaction contemplated in this Agreement, other than to Eastdil Secured ("Eastdil"). Seller shall pay a commission to Eastdil at Closing pursuant to the terms of a separate written agreement between Seller and Eastdil. Buyer represents and warrants to Seller that Buyer has not incurred, and shall not have incurred as of the Closing, any liability for the payment of any brokerage fee or commission in connection with the transaction contemplated in this Agreement. Seller and Buyer hereby agree to defend, indemnify and hold harmless the other from and against any and all claims of any other person claiming a brokerage fee or commission through the indemnifying party. The provisions of this Section 13.16 shall survive Closing or termination of this Agreement.
ARTICLE XIV.
ESCROW TERMS
The Escrow Agent shall hold the Deposit in escrow on the following terms and conditions:
The Escrow Agent shall deliver the Deposit to Seller or Buyer, as the case may be, in accordance with and subject to the terms and conditions of this Agreement.
Any notice to or demand upon the Escrow Agent shall be in writing and shall be sufficient only if received by the Escrow Agent within the applicable time periods set forth herein, if any. Notices to or demands upon the Escrow Agent shall be sent in accordance with Section 13.7 hereof, to the Contact Person and address set forth in the Defined Terms. Notices from the Escrow Agent to Seller or Buyer shall be delivered to them in accordance with Section 13.7 of this Agreement.
If the Escrow Agent shall have received notice signed by either party advising that litigation between the parties over entitlement to the Deposit has been commenced, the Escrow Agent shall, on demand of either party, deposit the Deposit with the clerk of the court in which such litigation is pending. If at any time the Escrow Agent is uncertain of its duties hereunder or if Escrow Agent for any other reason is no longer willing to serve as escrow agent, the Escrow Agent may, on notice to the parties, take such affirmative steps as it may, at its option, elect in order to terminate its duties as the Escrow Agent, including, but not limited to, the deposit of the Deposit with a court of competent jurisdiction and the commencement of an action for interpleader, the reasonable costs of which shall be borne by whichever of the parties is the losing party. Upon the taking by the Escrow Agent of such action described, the Escrow Agent shall be released of and from all liability hereunder as escrow agent, except for the gross negligence or willful misconduct of Escrow Agent.
The Escrow Agent shall not incur any liability in acting upon any signature, notice, demand, request, waiver, consent, receipt or other paper or document believed by the Escrow Agent to be genuine. The Escrow Agent may assume that any person purporting to give it any notice on behalf of any party in accordance with the provisions hereof has been duly authorized to do so, or is otherwise acting or failing to act under this Section except in the case of the Escrow Agent's gross negligence or willful misconduct.
The terms and provisions of this Article shall create no right in any person or entity other than the parties and their respective successors and permitted assigns and no third party shall have the right to enforce or benefit from the terms hereof.
The Escrow Agent has executed this Agreement for the sole purpose of agreeing to act as such in accordance with the terms of this Agreement.
ARTICLE XV.
RADON DISCLOSURE
Radon is a naturally occurring radioactive gas that when accumulated in a building in sufficient quantities may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines may have been found in buildings in the state where the Property is located. Additional information regarding radon and radon testing may be obtained from your county or state health unit. Buyer represents and warrants that he/she/it has not relied on the accuracy or completeness of any representations that have been made by the Seller and/or Listing Broker as to the presence of radon and that the Buyer has not relied on the Seller's or Listing Broker's failure to provide information regarding the presence or effects of any radon found on the Property. Real estate brokers and agents are not generally qualified to advise buyers on radon treatment or its health and safety risks.
ARTICLE XVI.
LITIGATION
Attorneys' Fees; Jurisdiction; Venue. In the event of any litigation arising out of or under this Agreement the prevailing party shall be entitled to collect from the non-prevailing party reasonable attorneys' fees and costs. Buyer and Seller hereby submit to the jurisdiction of the Civil Courts of the State and the United States District Courts located in the State in respect of any suit or other proceeding brought in connection with or arising out of this Agreement and venue shall be in the County. The provisions of this Section shall survive Closing.
WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BYLAW, THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH OR RELATED HERETO, OR ANY COURSE OR CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS TRANSACTION. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Buyer and Seller have executed this Agreement as of the Execution Date.
SELLER:
SUCCESSOR AGENCY TO THE REDEVELOPMENT
AGENCY OF THE CITY OF SANTA CLARA,
a separate public entity
APPROVED AS TO FORM_______________________________GLEN R. GOOGINS Agency General CounselAPPROVED AS TO FORM_______________________________GLEN R. GOOGINS Agency General Counsel
APPROVED AS TO FORM
_______________________________
GLEN R. GOOGINS
Agency General Counsel
APPROVED AS TO FORM
_______________________________
GLEN R. GOOGINS
Agency General Counsel
________________________
JŌVAN GROGAN
Executive Director
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
Date: ________________________
ATTEST:
_____________________________
NORA PIMENTEL
Agency Secretary
BUYER:
[ INSERT BUYER INFORMATION]
By: ___________________________
Name:
Title:
EXECUTION BY ESCROW AGENT
The Escrow Agent executes this Agreement for the purposes of acknowledging its Agreement to serve as escrow agent in accordance with the terms of the Agreement and to acknowledge receipt of the Deposit of Six Hundred Thousand and 00/100 Dollars ($600,000.00) (if in the form of a check, subject to clearance) from Buyer as the Deposit due thereunder.
FIRST AMERICAN TITLE INSURANCE COMPANY
By: _________________________________
Name: L. Tugade
Title: Escrow Officer
Date: __________________, 2023
EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA CLARA, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
EXHIBIT B
FORM OF GRANT DEED
RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
Attention:
MAIL TAX STATEMENT TO:
Attention:
(Space Above Line for Recorder's Use Only)
The undersigned grantor(s) declare(s):
Documentary transfer tax is: $
( ) Computed on full value of property conveyed, or
( ) Computed on full value less value of liens and encumbrances remaining at time of sale. ( ) Unincorporated area: ( ) City of _____________, and
GRANT DEED
FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby acknowledged, SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA, a separate public entity, hereby grants to________ ______, a________________ , all of that certain real property more particularly described in Schedule 1 attached hereto and incorporated herein by this reference, together with any and all tenements, hereditaments, easements, rights-of-way, appurtenances, development rights or intangible Property anywise appertaining to the same, subject to (a) all real property taxes not yet due and payable, (b) all special assessments not yet due and payable, if any, (c) all other liens, leases, easements, encumbrances, covenants, conditions, restrictions and other matters of record, and (d) all matters affecting the status of title that would be revealed by an accurate survey of the subject property.
Grantor disclaims any and all express or implied warranties regarding the Property other than the implied warranties stated in Section 1113 of the California Civil Code.
Dated: ___,2023
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA, a separate public entity By: ______________________
Its: ______________________
APPROVED AS TO FORM
_______________________ __________________________
GLEN R. GOOGINS JOVAN GROGAN
Agency General Counsel Executive Director
1500 Warburton Avenue
ATTEST: Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
_______________________
NORA PIMENTEL
Agency Secretary Date: _____________________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF _______________ )
On _____________________, 2023 before me, _____________________________, (insert name and title of the officer)
personally appeared __________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: ________________________________ (Seal) EXHIBIT C-2
FORM OF CERTIFICATE OF SELLER
_____________________________, as __________________________ of _______________, a __________________________, the Seller under that certain agreement for Purchase and Sale of Property dated ____________________, 2023, by and between Buyer and Seller (the “Agreement”) does hereby Certify that all representations and warranties of Buyer set forth in the Agreement remain true in all material respects as of _______________________, 2023. ________________________________
a(n) ____________________________
By:
Name: ___
Title: _____________________________
EXHIBIT D
FORM OF SELLER ESTOPPEL
PROPERTY: 5201 Great America Parkway, Santa Clara, California To: [BUYER]
The undersigned SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA, a separate public entity ("Seller"), or its predecessor-in-title, has heretofore leased or subleased to Tenant certain land described on Exhibit A hereto (the "Real Property") pursuant to that certain ground lease described in Exhibit B hereto (the "Ground Lease").
Seller hereby certifies to Buyer that as of the date hereof:
The Ground Lease is in full force and effect, and has not been modified, amended, or supplemented, orally or in writing, except as listed on Exhibit B. There are no other agreements between Lessor and Assignor with respect to the Real Property or the Ground Lease except as listed on Exhibit B.
Seller has constructed, or caused to be constructed, certain “Common Improvements” within the Common Area, as defined in Section 1403 of the Ground Lease. Seller as owner of Common Area, shall continue to operate and maintain the Common Improvements in accordance with and subject to the rights and obligations as set forth in the Ground Lease, subject to compliance by the Tenant and its obligations with respect to the Common Area and Common Improvements. Seller and Tenant’s rights and obligations are further defined in the Convention Center Campus Declaration of Covenants, Conditions and Restrictions, recorded on December 14, 2020 as Instrument No. 24756283.
The monthly base rent currently due under the Ground Lease equals $[INSERT AMOUNT]. Any rent and other sums due Seller under the Ground Lease have been paid in full. To Seller's actual knowledge, (i) Tenant is not in breach or default of any of its obligations under the Ground Lease (including any indemnity obligation that has not yet been performed) and (ii) there is no circumstance which currently or with notice or the passage of time or both could become a breach or default under the Ground Lease.
No written notice of default has been given to Tenant alleging any default on the part of Tenant under the Ground Lease which remains outstanding. No written notice of default has been given to Seller alleging any default on the part of Seller under the Ground Lease which remains outstanding.
Seller owns the fee interest in the Real Property, and such interest is not subject to any mortgage or other material encumbrance.
The term of the Ground Lease will expire on June 1, 2053, unless extended. Tenant has no right to terminate the Ground Lease, in whole or in part, except, the extent contained in the Ground Lease. Tenant has not given Seller notice of any termination of the Ground Lease.
Seller confirms and agrees that Buyer, any leasehold pledgee, or lender providing a loan to Buyer and/or its affiliates, and their respective successors and/or assigns, may rely on the statements contained herein.
To the extent of any conflict or inconsistency between the Ground Lease and this instrument, this instrument shall govern.
Dated and effective as of the day set forth above.
Seller:
By:
Name:
Title:
EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment") is made and entered into as of ______________, 2023, by and between __________, a ________________ ("Assignor"), and ____________________, a ________________ (“Assignee”).
Recitals
Assignor, as seller, and Assignee, as buyer, entered into that certain Agreement of Purchase and Sale dated as of ___, 2023 (the "Agreement"), pursuant to which Assignor agreed to sell to Assignee, and Assignee agreed to acquire from Assignor, among other things, Assignor's ownership interest in the land legally described on Exhibit A attached hereto and all of Assignor's right, title and interest in the building located at such parcel commonly known as ____________________ (the "Property"), including Assignor's interest in the ground lease related thereto, in each case, subject to the terms and conditions in the Agreement.
As pair of the acquisition transaction contemplated by the Agreement, Assignor has agreed to assign to Assignee, and Assignee has agreed to assume, Assignor's interest as landlord (together with all rights and obligations relating thereto) under the Techmart Lease (as defined in the Agreement).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee agree as follows:
Transfer and Assignment by Assignor. Effective as of the date hereof, Assignor hereby transfers and assigns to Assignee all of Assignor's right, title and interest, in, to and under the Techmart Lease.
Assumption by Assignee. Effective as of the date hereof, Assignee hereby accepts the foregoing assignment and assumes all of the duties, obligations, liabilities, commitments and covenants of Assignor accruing from and after the date hereof with respect to or arising under the Techmart Lease.
Indemnification by Assignor. Assignor hereby agrees to indemnify, defend and hold harmless Assignee, and its partners, directors, members, shareholders, affiliates, managers, employees and agents, from, of and against any and all claims, demands, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees) ("collectively, "Claims") arising out of or relating to the breach by Assignor of any of the obligations, terms or covenants of Assignor, under or pursuant to the Techmart Lease, which obligations, terms or covenants accrued prior to the date hereof. The indemnification obligation contained in this Section 3 shall be subject to the limitations on liabilities and other provisions contained in the Agreement relating to the Assignor's liability.
Indemnification by Assignee. Assignee hereby agrees to indemnify, defend and hold harmless Assignor, and its partners, officers, directors, members, shareholders, affiliates, managers, employees and agents, from, of and against any and all Claims arising out of or relating to the breach by Assignee of any of the other obligations, terms or covenants of Assignor, under or pursuant to the Techmart Lease, which other obligations, terms or covenants accrue from and after the date hereof. The indemnification obligation contained in this Section 4 shall be subject to all applicable limitations on liabilities and other provisions contained in the Agreement relating to Assignee's liability.
Further Assurances. The parties hereto covenant and agree to execute such further instruments and take such further action as may be reasonably required by either party to fully effectuate the terms and provisions of this Assignment and the transactions contemplated herein, provided such instruments or actions do not increase such party’s obligations or reduce such party’s rights other than to a de minimis extent.
Survival of Provisions. The covenants and obligations contained in this Assignment shall survive the consummation of the closing of the transactions contemplated by the Agreement and this Assignment shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.
Attorneys' Fees and Costs. If either party commences an action for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other party for an amount equal to reasonable attorneys' fees and court and other costs incurred.
Governing Law. This Assignment shall be governed by and construed in accordance with the laws of the State of California.
Counterparts. This Assignment may be executed in counterparts which, when integrated, shall constitute one original of this Assignment.
Conflict. In the event of any conflict or inconsistency between the terms hereof and the terms of the Agreement, the terms of the Agreement shall govern and control. Without limitation of the foregoing, all waivers, releases and other limitations on liability expressly set forth in the Agreement shall apply to this Assignment and the liabilities of the parties hereunder.
11. No Representation. Except as expressly set forth in the Agreement or this Assignment, it is hereby acknowledged that Assignor makes no representation or warranty of any kind or nature relative to the Techmart Lease. Assignor represents and warrants that it has good title to and has not assigned or pledged the Techmart Lease. [signatures on following page]
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be executed by their duly authorized officers on the date first written above.
ASSIGNOR:
SUCCESSOR AGENCY TO THE REDEVELOPMENT
AGENCY OF THE CITY OF SANTA CLARA,
a separate public entity
APPROVED AS TO FORM
_______________________ __________________________
GLEN R. GOOGINS JŌVAN GROGAN
Agency General Counsel Executive Director
1500 Warburton Avenue
ATTEST: Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
_______________________
NORA PIMENTEL
Agency Secretary Date: _____________________
ASSIGNEE:
______________________, a _____________
By:
Name:
Title:
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF LEASES LEGAL DESCRIPTION OF PROPERTY Real property in the City of Santa Clara, County of Santa Clara, State of California, described as follows:
"ADJUSTED PARCEL 2" AS SHOWN AND DESCRIBED IN THAT CERTAIN NOTICE OF LOT LINE ADJUSTMENT RECORDED MARCH 24, 1998 AS INSTRUMENT NO. 14106143, OFFICIAL RECORDS OF SANTA CLARA COUNTY, CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF PARCEL 2, AS SHOWN ON THAT CERTAIN AMENDED PARCEL MAP RECORDED IN BOOK 581 OF MAPS, PAGES 9 THRU 11, SANTA CLARA COUNTY RECORDS, SAID POINT OF BEGINNING ALSO BEING POINT "P-2" AS SHOWN ON SAID MAP, AND SAID POINT BEING DISTANT THEREON NORTH 31° 56' 14" EAST, 383.76 FEET FROM THE CITY OF SANTA CLARA
BRASS PIN MONUMENT AT THE INTERSECTION OF BUNKER HILL LANE AND GREAT AMERICA PARKWAY; THENCE FROM SAID POINT OF BEGINNING, SOUTH 00° 00' 34" EAST, 191.50 FEET; THENCE SOUTH 89° 59' 26" WEST, 7.00 FEET; THENCE SOUTH 45° 00' 34" EAST, 92.63 FEET; THENCE NORTH 00° 00' 34" WEST, 7.00 FEET; THENCE NORTH 89° 59' 26" EAST, 191.57 FEET; THENCE NORTH 00° 00' 34" WEST, 149.97 FEET; THENCE NORTH 89° 59' 26" EAST, 29.93 FEET; THENCE NORTH 00° 00' 34" WEST, 130.03 FEET; THENCE SOUTH 89° 59' 26" WEST, 65.04 FEET; THENCE NORTH 00° 00' 34" WEST, 30.00 FEET; THENCE SOUTH 89° 59' 26" WEST, 10.00 FEET; THENCE SOUTH 00° 00' 34" EAST,
30.00 FEET; THENCE SOUTH 89° 59' 26" WEST, 55.00 FEET; THENCE SOUTH 00° 00' 34" EAST, 30.00 FEET; THENCE SOUTH 89° 59' 26" WEST, 25.00 FEET; THENCE NORTH 00° 00' 34" WEST, 20.00 FEET; THENCE SOUTH 89° 59' 26" WEST, 30.00 FEET; THENCE SOUTH 00° 00' 34" EAST, 20.00 FEET; THENCE SOUTH 89° 59' 26" WEST, 94.96 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE IMPROVEMENTS EXISTING ON THAT CERTAIN REAL PROPERTY AS OF MAY 15, 1998, AS GRANTED TO CARRAMERICA TECHMART, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY IN THE DEED RECORDED MAY 15, 1998 AS INSTRUMENT NO. 14185857 OF OFFICIAL RECORDS, WHICH IMPROVEMENTS ARE AND SHALL REMAIN REAL PROPERTY.
APN: 104-55-013
EXHIBIT F
FORM OF BILL OF SALE
THIS BILL OF SALE is made by the undersigned, SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA, a separate public entity ("Seller"), in favor of and to ___________________________, a __________________________ (“Buyer”).
WHEREAS, Seller, as seller, and Buyer, as buyer, entered into that certain Agreement of Purchase and Sale dated as of ____________, 2023 (the "Agreement"), pursuant to which Seller agreed to sell to Buyer, and Buyer agreed to acquire from Seller, among other things, Seller's ownership interest in the land legally described on Exhibit A attached hereto and all of Seller's right, title and interest in the building located at such parcel commonly known as ______________________________ (the "Property"), including Seller's interest in certain real and personal property related thereto, in each case, subject to the terms and conditions in the Agreement; WHEREAS, as part of the acquisition transaction contemplated by the Agreement, Seller is to sell, convey, and transfer to Buyer, by bill of sale, the Personal Property (as defined in the Agreement and as more particularly described on Exhibit B attached hereto) and the Intangible Property (as defined in the Agreement).
NOW, THEREFORE, pursuant to the Agreement, and in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller by these presents does GIVE, GRANT, CONVEY, ASSIGN, TRANSFER, BARGAIN, SELL, REMISE, RELEASE, ALIENATE, SET OVER, and CONFIRM, unto Buyer, its successors and assigns, forever, as an entirety, all of Seller's right, title, and interest, if any, in and to (a) the Personal Property (as defined in the Agreement); and (b) the Intangible Property (as defined in the Agreement).
Except as otherwise expressly provided in the Agreement, Seller makes no representations or warranties whatsoever, regarding said Personal Property or the Intangible Property, including, without limitation, any representations or warranties related to title, quality, merchantability or fitness for a particular purpose.
In the event of any conflict or inconsistency between the terms hereof and the terms of the Agreement, the terms of the Agreement shall govern and control. Without limitation of the foregoing, all limitations on liability expressly set forth in the Agreement shall apply to this Bill of Sale and the liabilities of Seller hereunder.
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed by its duly authorized officer this ________ day of _____________________, 2023.
SELLER:
SUCCESSOR AGENCY TO THE REDEVELOPMENT
AGENCY OF THE CITY OF SANTA CLARA,
a separate public entity
APPROVED AS TO FORM
_______________________ ________________________
GLEN R. GOOGINS JŌVAN GROGAN
Agency General Counsel Executive Director
1500 Warburton Avenue
Santa Clara, CA 95050
ATTEST: Telephone: (408) 615-2210
Fax: (408) 241-6771
_______________________
NORA PIMENTEL Date: ___________________
Agency Secretary
EXHIBIT A TO BILL OF SALE LEGAL DESCRIPTION
[To be attached.]
EXHIBIT B TO BILL OF SALE PERSONAL PROPERTY
[To be attached.]
EXHIBIT G
ITEMS CONTAINED IN BID PACKAGE
[Seller to provide.]
EXHIBIT H
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
AFFIDAVIT PURSUANT TO FOREIGN INVESTMENT AND REAL PROPERTY TAX ACT To inform ___________________, a _________________________ ("Transferee"), that withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as amended (collectively, the "Code"), will not be required upon transfer of certain real property to Transferee by _________________ ("Transferor"), the undersigned hereby certifies the following on behalf of Transferor:
Transferor is not a foreign person, foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Code and the Income Tax Regulations promulgated thereunder).
Transferor is not a disregarded entity as defined in Treasury Regulation § 1.1445- 2(b)(2)(iii).
Transferor's U.S., taxpayer identification number is as follows: _________________.
Transferor's office address is as follows:
________________________________________.
Transferor understands that this Certification may be disclosed to the Internal Revenue Service by Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Transferor understands that Transferee is relying on this Certification in determining whether withholding is required upon said transfer.
Under penalty of perjury I declare that I have examined this Certification and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of Transferor.
Date: _____________, 2023 TRANSFEROR:
____________________________,
a ___________________________
By: ___________________________
Name: _________________________
Title: __________________________
EXHIBIT I
AFFORDABILITY COVENANT
(per Government Code Section 54233)
If ten (10) or more residential units are developed on the Property, not less than 15 percent of the total number of residential units developed on the property shall be sold or rented at affordable housing cost, as defined in Section 50052.5 of the California Health and Safety Code, or affordable rent, as defined in Section 50053 of the California Health and Safety Code, to lower income households, as defined in Section 50079.5 of the California Health and Safety Code. Rental units shall remain affordable to and occupied by lower income households for a period of 55 years for rental housing and 45 years for ownership housing. The initial occupants of all ownership units shall be lower income households, and the units shall be subject to an equity sharing agreement consistent with the provisions of paragraph (2) of subdivision (c) of 65915 of the California Government Code. These requirements shall be covenants or restrictions running with the land and shall be enforceable against any owner who violates a covenant or restriction and each successor-in-interest who continues the violation by any of the entities described in subdivisions (a) to (f), inclusive, of Section 54222.5 of the California Government Code.
Date: ______________________
_____________________________________[LOCAL AGENCY NAME] By: ____________________________
Name: __________________________
Title: ___________________________
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