AGREEMENT FOR PURCHASE AND SALE OF PROPERTY
SELLER:
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA and
BUYER:
XHR ACQUISITIONS, LLC, A DELAWARE LIMITED LIABILITY COMPANY PROPERTY:
ADDRESS: 5101 Great America Parkway, Santa Clara,
EXECUTION DATE: _______________, 2024
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 (as 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 THIS AGREEMENT, BUYER IS BUYING THE PROPERTY ON THE CLOSING DATE "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) ARISING OUT OF OR RELATING IN ANY WAY TO 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.
FOLLOWING THE DELIVERY OF AN APPROVAL NOTICE, THE 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 MATERIAL CLOSING OBLIGATIONS HEREUNDER, (C) SELLER IS OTHERWISE WILLING TO CONVEY THE PROPERTY PURSUANT TO THIS AGREEMENT AND (D) THE TERMS OF SECTIONS 4.1, 6.2 AND/OR 13.1 OF THIS AGREEMENT DO NOT OTHERWISE PROVIDE FOR THE RETURN OF THE DEPOSIT TO BUYER.
EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 9.6, 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 OR RELATED IN ANY WAY TO 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, PLUS ANY AND ALL INTEREST EARNED ON THE DEPOSIT, AND LESS FEES AND COSTS PAYABLE FOR SERVICES AND PRODUCTS PROVIDED DURING ESCROW AT BUYER’S REQUEST. UPON RETURN OF THE DEPOSIT TO BUYER PURSUANT TO THE TERMS OF THIS AGREEMENT, 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 FOR ANY OBLIGATIONS, WHICH 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.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER FURTHER WAIVES THE FOLLOWING, TO THE FULLEST EXTENT PERMITTED BY LAW:
ALL RIGHTS TO FILE AND MAINTAIN AN ACTION AGAINST SELLER FOR SPECIFIC PERFORMANCE; RIGHT TO RECORD A LIS PENDENS AGAINST THE PROPERTY OR TO RECORD THIS AGREEMENT OR A MEMORANDUM THEREOF IN THE REAL PROPERTY RECORDS (other than in connection with an action for specific performance PERMITTED HEREUNDER); ANY RIGHT TO INVOKE ANY EQUITABLE REMEDY THAT WOULD PREVENT SELLER FROM CONVEYING THE PROPERTY TO A THIRD-PARTY BUYER; 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(F) 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 ANY WAY 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 OR RELATED IN ANY WAY TO 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 OR RELATING IN ANY WAY TO 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 OR RELATING IN ANY WAY TO 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 OR RELATING IN ANY WAY TO 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 /__
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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":
"Seller's Notice Address":
City Manager’s Office
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Attn: Jovan Grogan ([email protected])
With copies to:
City Attorney’s Office
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Attn: Glen R. Googins ([email protected])
"Buyer": XHR Acquisitions, LLC
"Specify Buyer Entity Type": Delaware limited liability company "Buyer's Contact Person": Shamir Kanji
"Buyer's Notice Address":
c/o Xenia Hotels & Resorts, Inc.
200 South Orange Avenue, Suite 2700
Orlando, Florida
Attention: Shamir Kanji
Telephone: 407-246-8145
Email: [email protected]
and to:
c/o Xenia Hotels & Resorts, Inc.
200 South Orange Avenue, Suite 2700
Orlando, Florida 32801
Attention: Taylor Kessel, Esq.
Telephone: (407) 246-8112
Email: [email protected]
with a copy to:
Goodwin Procter LLP
3 Embarcadero Center, 27th Floor
San Francisco, California 94111
Attention: Teresa K. Goebel
Telephone: (415) 733-6052
Email: [email protected]
"Purchase Price": Twenty-Five Million Dollars ($25,000,000.00). "Deposit": A deposit in an amount equal to One Million Dollars ($1,000,000.00) shall be required to be delivered to Escrow Agent by wire transfer no later than three (3) Business Days after the Execution Date. Upon expiration of the Diligence Period, the Deposit will be non-refundable, except as specifically provided hereunder. 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 hundred and no/100 dollars ($100.00) (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": Fifteen (15) days after expiration of the Diligence Period, 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), as such Closing Date may be extended pursuant to the terms of this Agreement. "County": Santa Clara County located in the State.
"State": California.
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 made available to Buyer on Seller’s due diligence website located at https://protect-us.mimecast.com/s/V1MeC9r23BTkR0oAMI3C-l9?domain=esi.eastdilsecured.com at least two (2) Business Days prior to execution of this Agreement, by Seller or Seller’s agent. "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 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 in the form of Exhibit B hereto conveying fee title to the Real Property to Buyer, duly executed by Seller and acknowledged and in proper form for recordation in the County. "Diligence Period": The period commencing on the Execution Date and ending at 5:00 p.m. Pacific time on the date twenty (20) days following the Execution Date. "Escrow Agent": First American Title Insurance Company, National Commercial Services, 333 W. Santa Clara Street, Suite 220, San Jose, CA 95113, Attention: Debby (Zankich) Magliocco, Email: [email protected] Direct: 408.797.4452 "Event": Any fire or other casualty affecting the Property or any actual or threatened (to the extent that Seller has current actual knowledge thereof) 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 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. §§25170.1 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. "Hyatt Lease": That certain lease entered into by and between the former Redevelopment Agency of the City of Santa Clara as lessor, and SCCC Associates, as lessee, dated April 30, 1985, and recorded on May 16, 1985 as Instrument No. 8411269, as supplemented by that certain Supplement to Hotel Ground Lease between Former RDA and SCCC Associates dated May 10, 1985, recorded on May 16, 1985, as Instrument No. 8411271, as modified by that certain Assignment and Assumption Agreement dated October 31, 1986 by and between SCCC Associates and SCCHLP, recorded November 12, 1986 as Instrument No. 9026982, as amended by that certain Amendment to Hotel Ground Lease between Former RDA and SCCHLP dated January 13, 1987, and recorded on December 2, 1987 as Instrument No. 9524015, as further amended by that certain Second Amendment to Hotel Ground Lease between the Former RDA and SCCHLP dated November 24, 1987, and recorded on December 2, 1987 as Instrument No. 9524016, as further amended by that certain Third Amendment to Hotel Ground Lease between Former RDA and SCCHLP dated April 25, 1988, and recorded on July 13, 1988 as Instrument No. 9755389, as modified by that certain Assignment and Assumption Agreement dated December 22, 1997, by and between Travelers Casualty and Surety Company and T-W Santa Clara LLC, and recorded on December 22, 1997 as Instrument No. 13986588, as supplemented by that certain First Amended and Restated Supplement to Hotel Ground Lease between Former RDA and TWSC dated March 17, 1998, and recorded on April 21, 1998 as Instrument No. 14150275, as further amended by that certain Fourth Amendment to Hotel Ground Lease between the Former RDA and TWSC dated March 17, 1998, and recorded on April 21, 1998 as Instrument No. 14150278, as further amended by that certain Fifth Amendment to Hotel Ground Lease between Former RDA and TWSC dated May 14, 1998, and recorded on May 15, 1998 as Instrument No. 14185858, as modified by that certain Assignment and Assumption of Hotel Lease dated December 1, 1999, by and between T-W Santa Clara LLC and SHC-W Santa Clara, L.L.C, recorded on December 3, 1999 as Instrument No. 15077819, as further supplemented by that certain Second Supplement to Hotel Ground Lease made by the Former RDA and dated February 13, 2001, and recorded on February 16, 2001 as Instrument No. 15563483, as modified by that certain Assignment and Assumption of Hotel Ground Lease dated June 29, 2004, by and between SHC-W Santa Clara LLC and SHC New Santa Clara L.L.C., recorded July 8, 2004 as Instrument No. 17886492, and further modified by that certain Assignment and Assumption of Ground Lease, Ballroom License Agreement, and Recreation Facilities Agreement, and Deed of Improvements dated December 15, 2005, by and between SHC New Santa Clara, L.L.C and Hyatt Equities, L.L.C, recorded on December 15, 2005 as Instrument No. 18721549, as further amended by that certain Sixth Amendment to Hotel Ground Lease between the former RDA and SHC New Santa Clara L.L.C. dated December 13, 2005 and recorded on July 14, 2006 as Instrument No. 19016251; and as further supplemented by the Third Supplement to Hotel Ground Lease between the Former RDA and Hyatt Equities LLC dated April 10, 2007 and recorded on April 11, 2007 as Instrument No. 19379342, as modified by that certain Assignment and Assumption Agreement (Convention Complex Properties) dated March 8, 2011, by and between Santa Clara Redevelopment Agency and the City, recorded on June 23, 2011 as Instrument No. 21216114, and as further modified by that certain Assignment and Assumption of Ground Lease, Ballroom License Agreement and Recreational Facilities Agreement and Deed of Improvements dated September 23, 2013, by and between Hyatt Equities, L.L.C and IA Lodging Santa Clara L.L.C, recorded on September 26, 2013 as Instrument No. 22397821. The lessor’s interest under the lease was conveyed to the Successor Agency to the Redevelopment Agency of the City of Santa Clara, a public entity, by that certain quitclaim deed recorded on December 17, 2015 as Instrument No. 23175557 of Official Records. "Intangible Property": The Permits and any other personal property of worth 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, goodwill, permits, approvals, entitlements and other intangible property owned by Seller, if any, and used solely in connection with the Property, including, without limitation, all of Seller’s right, title and interest in any warranties and guaranties. "Land": Fee title to the parcel of real property, as more particularly described on the attached Exhibit A. "Leases": The Hyatt 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 and/or after 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, up to and equal to the Purchase Price. "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. "Proceeds": Any insurance proceeds or condemnation awards payable to Seller on account of any Event. "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. "Property": Collectively, the Real Property, the Personal Property and the Intangible Property. "Prorations Date": The day prior to the Closing Date.
"Pursuit Costs": those reasonable, out of pocket costs incurred by Buyer in connection with its investigation and efforts to purchase the Property, including, without limitation, reasonable fees and costs of counsel and consultants, all of which shall be evidenced by written documentation reasonably acceptable to Seller, but in no event shall the Pursuit Costs payable by Seller to Buyer exceed One Hundred Thousand and No/100 Dollars ($100,000.00). "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, developments, water rights, riparian rights and to water stock, ingress and egress, easements, rights, privileges, hereditaments and appurtenances thereto or in any way appertaining thereto. “Recreational Facilities Agreement” an Agreement date dated April 30, 1985,‘ between the City of Santa Clara’s predecessor in interest, the Sports and Open Space Authority of the City of Santa Clara, and Defendant IA Lodging Santa Clara, LLC’s predecessor in interest, SCCC Associates, which Recreation Facilities Agreement was recorded in the Official Records on May 16, 1985, as Instrument No. 8411277 in Book 1348, Page 1, as amended by that certain First Amendment to Recreation Facilities Agreement, dated November 24, 1987 recorded in the Official Records on December 2, 1987 in Book K377, Page 638 and as further amended by that certain Second Amendment to Recreation Facilities Agreement dated March 17, 1998 recorded in the Official Records on April 21, 1998, as Instrument No. 14150277 and as further amended by that certain First Supplement to Recreation Facilities Agreement, recorded in the Official Records on February 16, 2001 as Instrument No. 15563487, and condemned on September 27, 2021 to the City of Santa Clara. "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). “Taxes”: State taxes, personal property taxes, special assessments (and installments thereof), and other governmental taxes and charges relating to the Property, including annual or periodic permit fees (but excluding, for clarity, income taxes and Taxes payable by Tenants). "Tenants": The tenant under the Hyatt Lease and those other persons or entities holding rights of tenants under Leases, if any. "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. "Title Company": First American Title Insurance Company at the office selected by the Escrow Agent. “Title Policy”; A 2021 ALTA Form extended Owner’s Title Insurance Policy insuring Buyer in the amount of the Purchase Price, subject only to the Acceptable Encumbrances. “Title Report”: The First American Title Insurance Company Preliminary Report dated as of October 17, 2023; Order Number: NCS-997300-SC.
Other Defined Terms. Other capitalized terms contained in this Agreement shall have the meanings assigned to them herein.
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. To the extent available, Seller shall provide or make available to Buyer all construction documents, books, records, financials, and other items reasonably requested by Buyer relating to the operation and construction of the Property. 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 this Agreement at Closing (including, without limitation, pursuant to Section 7.3), Seller makes no representations as to their accuracy or completeness. Buyer understands that some of the foregoing 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, attorney-client 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 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 included 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 for no reason, that it no longer intends to acquire the Property, then Buyer shall promptly notify Seller of such determination in writing, 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. If, however, on or before the expiration of the Diligence Period, Buyer determines to proceed with the acquisition of the Property at Closing, then Buyer shall promptly notify Seller of such determination in writing ("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 elected to terminate this Agreement, and this Agreement and the obligations of the parties hereunder shall terminate (subject to the survival of any obligations that expressly survive termination of this Agreement), and Escrow Agent shall promptly release the Deposit and interest accrued thereon to Buyer.
Access. Subject to the rights of the Tenant pursuant to the Hyatt Lease, until the Closing Date, provided this Agreement is not earlier terminated as permitted herein, Buyer and Buyer’s agents and contractors (collectively, “Buyer’s Representatives”) 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 and (c) not to 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. Under no circumstances shall the right of entry granted herein be interpreted as delivery of possession of the Property prior to Closing. Buyer’s Representatives accessing the Real Property shall maintain (or cause to be maintained) at all times during their 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’s Representatives accessing the Real Property 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. Nothing in this Section 3.3. shall impact Buyer’s affiliate’s rights as Tenant under the Hyatt Lease.
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 its Oversight Board members 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’s Representatives resulting from Buyer's inspection, examination and inquiry 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 Seller, its board members, officers and/or employees, or any of their respective affiliates. Nothing in this Section 3.4 shall impact Buyer’s affiliate’s rights or obligations as Tenant under the Hyatt Lease. The provisions of this Section shall survive Closing or termination of this Agreement.
Estoppels. 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-1 (the "Hyatt Estoppel"), (ii) an estoppel certificate, addressed to Buyer and such other parties as Buyer may reasonably designate from each counterparty under the Convention Center Campus CC&Rs in the form attached hereto as Exhibit D-2 (“CC&R Estoppel”) and (iii) an estoppel certificated, addressed to Buyer and such other parties as Buyer may reasonably designated in the form attached hereto as Exhibit D-3 (the “Ballroom Estoppel” and together with the Hyatt Estoppel and the CC&R Estoppels, the “Required Estoppels”). In no event shall the Hyatt Estoppel, CC&R Estoppel, nor the Ballroom Estoppel delivered at Closing be dated earlier than 45 days prior to Closing. The Required Estoppels shall not contain any information that is materially inconsistent with Seller's representations and warranties contained in this Agreement, the Hyatt Lease, the Convention Center Campus CC&Rs or that certain Ballroom License Agreement recorded May 16, 1985 as Instrument No. 8411276 in Book J347, Page 2253 (as amended and assigned, the “Ballroom License”) (as applicable), and shall not claim any default by Seller or outstanding indemnity obligation of Seller under the Hyatt Lease, the Convention Center Campus CC&Rs, or the Ballroom License as applicable. Neither the CC&R Estoppel nor the Ballroom Estoppel shall be subject to the limitations in Section 9.4 and Section 9.5. The immediately preceding sentence shall survive Closing.
Buyer's Obligations with Respect to Inspections. Promptly after Buyer's physical examinations of the Property, but in no event later than ten (10) Business Days after Seller’s written notice of any damage to the Property caused by Buyer’s Representative, Buyer shall repair the damage, if any, caused by such physical examinations to substantially the same condition that existed prior to Buyer’s access to the Property. Buyer shall promptly pay for all inspections and shall use commercially reasonable efforts to prevent the filing of any liens arising from such inspections against the Property. If any such liens are filed, Buyer shall promptly cause them to be released 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.
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:
Based upon Buyer’s familiarity with, and due diligence relating to the Property and pertinent knowledge as to the market in which the Property is situated and in direct consideration of Seller’s decision to sell the Property to Buyer for the Purchase Price, Buyer does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement and the Deed and the other documents to be delivered at Closing by Seller (including 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 of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (iv) as of Closing Buyer shall have undertaken 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 Seller’s representations, warranties and covenants included herein) 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; (vi) prior to the Execution Date, 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; and (vii) by reason of all the foregoing, Buyer is assuming the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the Property.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE DEED, AND THE OTHER DOCUMENTS TO BE DELIVERED AT CLOSING BY SELLER (INCLUDING, 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 AT CLOSING BY SELLER (INCLUDING 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 AT CLOSING BY SELLER (INCLUDING, PURSUANT TO SECTION 7.3).
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE DEED, AND THE OTHER DOCUMENTS TO BE DELIVERED PURSUANT TO SECTION 7.3, 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 AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE DEED, AND THE OTHER DOCUMENTS TO BE DELIVERED PURSUANT TO SECTION 7.3, BUYER ACKNOWLEDGES AND AGREES THAT, THE 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 at Closing (including 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.). 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 all (1) 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 the Agreement, the Deed and the other documents to be delivered by Seller at Closing (including 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 at Closing (including pursuant to Section 7.3), 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; provided that such extinguishment shall not apply to any Claims arising pursuant to the express provisions of this Agreement.
Initials of Buyer:
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CONDITIONS FOR CLOSING
Seller Conditions. The parties acknowledge 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 [NTD: Enter that date that is 30 days after the Effective Date], then, from and after such date and without limitation of Buyer’s rights hereunder, Buyer shall have the right (but not the obligation), by delivering written notice to Seller and Escrow Agent, to rescind its execution of this Agreement and, upon such notice of rescission, the Deposit and any interest earned thereon (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 and any interest earned thereon (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 or which Seller is otherwise obligated to deliver under this Agreement.
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 this Agreement, including but not limited to Sections 9.2 and 13.16 are true and correct in all material respects as of Closing.
Title Policy. The Title Company shall have irrevocably 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 Estoppels. Seller shall have delivered the Required Estoppels.
Replacement Declaration. Seller shall have caused, at or prior to Closing, the execution and recordation of a Replacement Declaration (as defined in Convention Center Campus CC&Rs) in the real property records of the County, which Replacement Declaration shall be in a form reasonably acceptable to Buyer and contain for the benefit Tenant (and its permitted sub tenants) the same rights currently afforded to Tenant under the Hyatt Lease and the Convention Center Campus CC&Rs, including but not limited to the hotel-expansion rights on Parcel 1a (as defined in Convention Center Campus CC&Rs) as provided in Section 402 of the Hyatt Lease and section 2.1.1 of the Convention Center Campus CC&Rs and the rights to utilize the Common Area (as defined in the Convention Center Campus CC&Rs) for utilities access, pedestrian and vehicular access, parking, landscaping and such other benefits as provided to Tenant in the Hyatt Lease and Convention Center Campus CC&Rs. The expense and cost-allocation obligations of Tenant for the foregoing access and use of the Common Area under the Replacement Declaration shall be in the same kind and amount as currently imposed on Tenant by the Hyatt Lease. Upon provision of written notice to the other at least one (1) Business Day prior to the then-scheduled Closing Date, Each of Buyer and Seller, in its sole discretion, may extend the Closing Date for successive periods of thirty (30) days each for up to an aggregate of one hundred eighty (180) days (as provided in the Convention Center Campus CC&Rs) as necessary to permit recordation of the Replacement Declaration in the foregoing form; provided that Buyer and Seller shall negotiate the Replacement Declaration in good faith and Seller shall use commercially reasonable efforts to cause the owners of Parcel 2, Parcel 3 and Parcel 4 (each as defined in Convention Center Campus CC&Rs) to negotiate the Replacement Declaration in good faith. For the avoidance of doubt, “Tenant” under this section 4.1 shall mean IA Lodging Santa Clara, L.L.C., the tenant under the Hyatt Lease. For the avoidance of doubt, so long as Seller has used commercially reasonable efforts to obtain the Replacement Declaration, Seller’s failure to deliver the Replacement Declaration Documents shall constitute a failed closing condition but not a Seller default.
Ballroom License Amendment. Buyer and Seller shall enter into an amendment to the Ballroom License in a form reasonably acceptable to Buyer and Seller (the “Amendment to Ballroom License”) to account for Seller’s removal as a party to the Hyatt Lease upon Closing and, if requested by Buyer, Buyer’s assignment of its rights as licensee under such Ballroom License to its affiliate upon the expiration or termination of the Hyatt Lease, and Seller shall record the same on or before Closing.
Effect of Non-Satisfaction of a Condition. If any condition set forth in Section 4.2 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, all Buyer documents and funds, including the Deposit and any interest thereon, shall be returned to Buyer, and 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.
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. The Deposit is consideration for the rights granted to Buyer to purchase the Property and, following the expiration of the Diligence Period, provided this Agreement has not otherwise been terminated, shall be non-refundable except as specifically provided herein. 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 the Escrow Agent and reasonably approved by Buyer. Any accrued interest shall become a part of the Deposit to be applied or disposed of in the same manner as the Deposit. 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.
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 2:00 p.m. Pacific Standard Time on the Closing Date for Seller to receive the benefit of such funds. Accordingly, if funds are received by Escrow Agent after 2:00 p.m. Pacific Standard Time on any day, they shall not be deemed received until the following Business Day. If the Escrow Agent does not receive the funds on the Closing Date and Seller elects not to (or is not entitled to) exercise any of its default remedies, Buyer shall pay interest on the Purchase Price from the Closing Date until the funds are deemed to have been received by the Escrow Agent, at the rate of fifteen percent (15%) per annum. For the avoidance of doubt, if the funds are received by the Escrow Agent on the Closing Date after 2:00 p.m. Pacific Standard Time, Buyer shall not be in default hereunder but such interest shall be payable. The interest amount represents a fair and reasonable estimate of the costs that Seller will incur by reason of any late payment of funds due on the Closing Date.
Prorations; Adjustments; Closing Costs. The following adjustments and prorations shall be computed as of 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, with Buyer being deemed the owner of the Property beginning on the Closing Date for the entirety of the Closing Date.
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 rent 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 rent 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. Seller shall not be permitted to take any steps to recover any rent arrearages after Closing. The provisions of this Section shall survive Closing.
Lease Prepayments; Lease Obligations. Buyer shall receive credits against the Purchase Price at Closing for any prepaid rents paid to Seller by the Tenants.
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 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) pursuant to Section 7(e). 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 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 (e) 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.
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 six (6) months.
Tenant Pay Items. Notwithstanding anything to the contrary in this Section 5.2, (i) to the extent the 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 Tenant is responsible for payment of 100% of any category of expenses otherwise subject to proration in the form of operating expense reimbursements under the Lease, no proration of such expenses shall be made at Closing.
Costs and Expenses.
Seller Expenses. Seller shall be responsible for the cost of (i) all transfer, recordation, and sales taxes and fees which may be due or payable in connection with the transaction contemplated by this Agreement and the termination of the Hyatt Lease (if such termination is requested in writing by Buyer prior to Closing), and (ii) the cost of the portion of the premium for the Title Policy attributable to standard coverage, (iii) one-half of Escrow Agent’s escrow fee, and (iv) all costs and expenses related to the Seller’s negotiation and recording of the Replacement Declaration.
Buyer Expenses. Buyer shall be responsible for the cost of (i) Buyer’s due diligence examinations, (ii) the cost of the portion of the premium for the Title Policy attributable to extended coverage and the cost of any endorsements obtained by Buyer, (iii) financing costs (if any), (iv) extended coverage or endorsements to the Title Policy, (v) any survey fees and expenses, and (vi) one-half of Escrow Agent’s escrow fee.
Other Expenses. Except as expressly provided otherwise in this Agreement, each party shall bear its own legal fees in connection with the transaction contemplated by this Agreement, and all other costs, charges, and expenses shall be borne and paid as provided in this Agreement, or in the absence of such provision, in accordance with the custom of the County.
Survival. The provisions of this Section 5.3 shall survive Closing.
TITLE
Title Report. The Title Report was included in the Bid Package. Subject to Section 6.2, the Title Report is the basis upon which Buyer will review the status of title to the Real Property during the Diligence Period and in consideration thereof, Buyer agrees to accept from the Title Company the Title Policy. Buyer shall take title to the Real Property subject to the following, all of which shall be deemed "Acceptable Encumbrances":
Exceptions Numbers: 1, 4, 5, 9, 10, 12, 13,19 and 20 on the Pro forma Title Policy issued by the Title Company attached hereto as Exhibit H. [intentionally omitted];
The standard printed exceptions contained in a 2021 ALTA Form owner's title insurance policies, including, without limitation, rights of tenants and/or other occupants of the Property, if any; Matters disclosed by that certain Survey dated October 31, 2023, prepared by Rodney A. Stewart II of Kier & Wright Surveyors; Zoning and other regulatory laws and ordinances affecting the Property; Any matters that are approved in writing by Buyer.
Updated Title Report. Immediately upon execution of the Agreement, and at Buyer’s election again on or before the Closing Date, Buyer and/or Seller may 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 in writing within 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 (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 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, however, Buyer shall be deemed to object to any Required Removal Exceptions (as defined below) disclosed in the updated Title Report without any need to object to such items in writing or otherwise. At or prior to Closing, Seller shall be obligated to satisfy and/or to be released or record (i) any monetary liens, including, without limitation, liens secured by deeds of trust or mortgages securing loans or otherwise evidencing indebtedness secured by the Property, mechanics liens, tax liens, and any other lien that can be cured by the payment of a liquidated sum, except for any such liens created by through or under Buyer, (ii) judgment liens against Seller, (iii) any lien created or placed (or allowed to be created or placed) by, through or under Seller on or after the Effective Date and not otherwise expressly permitted by the terms of this Agreement, and (iv) delinquent taxes or assessments against Seller; provided that, Seller shall not be obligated to spend more than two percent (2%) of the Purchase Price in the aggregate to remove any such Lien, and (v) any exception to title that Seller has specifically agreed in writing to remove or discharge (collectively, the “Required Removal Exceptions”). If Seller shall be unwilling or unable to remove or discharge other Liens, encumbrances or objections (other than Required Removal Exceptions) within the periods provided in this Section 6.2, then Buyer may, at its option, no later than five (5) Business Days after Seller notifies (or is deemed to have notified) 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 (and the Closing Date shall be extended day for day as necessary). If Buyer shall elect to terminate this Agreement, the Deposit (and any interest accrued thereon), shall be returned to Buyer, this Agreement shall terminate, and thereafter neither Seller nor Buyer shall have any further rights or obligations hereunder except 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 or exceptions required to be removed by Seller pursuant to this Article VI, 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 4.2 and further subject to Section 13.1, be obligated to complete the transaction as required by this Agreement.
ESCROW AND CLOSING
Escrow Instructions. Upon execution of this Agreement, 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 prior to the Closing Date; 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. At or before Closing, 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;
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-C;
executed duplicate originals of an Assignment and Assumption of Lease (the “Assignment of Leases”) in the form of Exhibit E; An executed Bill of Sale (the “Bill of Sale”) in the form of Exhibit F; 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; An executed and acknowledged Owners Affidavit, to the extent and in such form as the Title Company shall require in order for the Title Policy to be issued at Closing; A GAP indemnity to the extent and in such form as the Title Company shall require in order for the Title Policy to be issued at Closing 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; An executed Holdback Escrow Agreement (substantially in the form of Exhibit G attached hereto (the “Holdback Escrow Agreement”); A Replacement Declaration in the form contemplated by Section 4.2(f) and executed by all parties to the Convention Center Campus CC&Rs (or their permitted successors and assigns); The Required Estoppels;
The Amendment to Ballroom License; and
executed duplicate originals of the Post-Closing Escrow Agreement (as defined below).
Buyer’s Deposit of Documents. At or before Closing, Buyer shall deposit or cause to be deposited into escrow with the Escrow Agent the following items:
cash to close in the amount required by Section 5.1 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; 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;
Two (2) duplicate originals executed by Buyer of the Assignment of Lease; The Amendment to Ballroom License; and
executed duplicate originals of the Post-Closing Escrow Agreement.
Other Documents. Buyer and Seller shall each deliver such other documents as are otherwise required by this Agreement 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 Lease, shall be surrendered to Buyer at Closing.
Tenant and Service Contractor Notices. Immediately after Closing, Buyer shall deliver to all Tenants, if any, a copy of the Notice to Tenant and all vendors under Service Contracts, if any, a copy of the Notice to Service Contractor, which obligation shall survive Closing. The provisions of this Section 7.7 shall survive the Closing.
ENVIRONMENTAL MATTERS
Release. Without limiting Section 3.6 or Buyer’s remedies for Seller’s breach of its representations and warranties contained in this Agreement (including but not limited to Section 9.2), 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. Except for Buyer’s remedies for Seller’s breach of its representations and warranties contained in this Agreement (including but not limited to Section 9.2), 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. EXCEPT FOR BUYER’S REMEDIES FOR SELLER’S BREACH OF ITS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO SECTION 9.2), 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 WHICH REQUIRES REMOVAL OR REMEDIAL ACTION WITH RESPECT TO SUCH HAZARDOUS 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.
Confidentiality of Hazardous Materials Reports. Unless and until the Closing actually occurs, Buyer shall keep (and shall use commercially reasonable efforts to cause all Buyer’s Representatives to keep) 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: (i) Buyer shall if requested by Seller in writing promptly after receipt provide copies thereof to Seller; and (ii) Buyer may disclose same to (a) Buyer’s Representatives if Buyer first obtains the agreement in writing of such consultants to keep such Hazardous Materials Reports and related documentation confidential, (b) as required by applicable law, (c) in connection with litigation or other judicial proceedings and (d) its attorneys, accountants and federal advisors. 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 or Buyer’s Representatives unless and until Buyer is legally required to make such disclosure provided, however, Buyer may disclose as permitted under clause (ii) of this Section 8.2 prior to Closing and to anyone after Closing. The provisions of this Section 8.2 shall survive the termination of this Agreement.
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 is, or at Closing will be, 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 or will be obtained prior to Closing; (d) this Agreement has been duly authorized, executed and delivered by Buyer; and (e) 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, subject to Section 3.11, 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.
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 or other proceedings or causes of action which are pending or, to Seller’s knowledge, threatened against Seller with respect to the Property or, to Seller’s knowledge, affecting the Property, in each case, in any court of competent jurisdiction.
Leases. The only Lease currently in effect to which Seller is a party is the Hyatt Lease. The Lease is in full force and effect on the terms set forth therein and Seller has delivered to Buyer true, correct and complete copies of the Lease. Such 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 Hyatt Lease. To the best of Seller's knowledge, there are no noticed defaults by Tenant under the Hyatt Lease. Seller has good title to the Lease and has not assigned or pledged the 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.
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.
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. Except as included in the Hyatt Lease, no other 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.
No Unrecorded Agreements. Seller has not 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 Hyatt Lease.
Employees. Seller has no employees with respect to the Property Ownership. Seller is the owner of the Personal Property and Intangibles.
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.
Environmental. Seller has not received written notice from any governmental agency or other body of any violation of Hazardous Materials Laws or the presence or release of Hazardous Materials in violation of Hazardous Materials Laws on or from the Property that has not been resolved.
Zoning. Seller has not received written notice of any pending or contemplated zoning action with respect to the Real Property.
Violations. Seller has not received written notice from any governmental agency or other body of any existing material violations of any federal, state, county or municipal laws, ordinances, orders, codes, regulations or requirements affecting the Property or Seller with respect to the Property that has not been resolved.
Convention Center Campus CC&Rs. Seller has delivered to Purchase a true, correct and complete copy of the Convention Center Campus CC&Rs. The Convention Center Campus CC&Rs are in full force and effect on the terms set forth therein. Such Convention Center Campus CC&Rs have 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 noticed defaults by Seller under the Convention Center Campus CC&Rs. To the best of Seller's knowledge, there are no defaults by any other party to the Convention Center Campus CC&Rs.
Taxes. To Seller’s knowledge, there are no outstanding or pending contests or disputes with respect to the amount or payment of any Taxes applicable to the Property.
Surplus Land Act. Seller has complied with all requirements of the Surplus Land Act, California Government Code section 54220 et seq. and all regulations with respect thereto in connection with the sale of the Property contemplated hereunder.
Seller’s Knowledge; Survival. For purposes of this Agreement, Seller’s “knowledge” or words of similar import means the actual knowledge of [INSERT CITY REPRESENTATIVE], after reasonable and diligent inquiry and investigation including, without limitation, inquiry of the 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 nine (9) 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 discovered by Buyer after Closing is subject to the following limitations:
Filing of Claim. Any claim by Buyer against Seller for a breach of a representation or warranty set forth in Section 9.2 must be asserted in writing to Seller during the period of nine (9) months following the Closing (the “Survival Period”) and, any litigation related to such claim must be brought within twelve (12) months following the Closing, provided notice of such claim is delivered during the Survival Period.
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 (as opposed to imputed) knowledge of before Closing, Buyer shall have no claim for such breach of representation or warranty, and, by proceeding with Closing as aforesaid, Buyer shall be deemed to have waived all claims based on or resulting from such breach of such representations, warranties or covenants. For purposes of this Agreement, Buyer’s “knowledge” or words of similar import means the actual knowledge of Shamir Kanji without any independent investigation and does not include any imputed or constructive knowledge that may be attributed to such individual(s).
Threshold Amount. 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, from dollar one, subject to Sections 9.5 and 9.6.
Aggregate Liability. If the Closing occurs, the aggregate liability of Seller to Buyer 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 four hundred thousand dollars ($400,000.00) ("Liability Limitation"). The provisions of this Section shall survive Closing. At Closing, Seller shall cause a portion of its proceeds from Closing equal to the Liability Limitation to be deposited with an escrow holder acceptable to Buyer to secure payment and performance of Seller’s obligations which survive Closing under this Agreement, pursuant to and in accordance with the Holdback Escrow Agreement.
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 where such Party’s or omissions constitute fraud or willful misconduct, provided that in no event shall Seller’s liability exceed the amount set forth in Section 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 date of this Agreement 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, the Seller shall not materially alter the Property (or permit the material alteration of the Property) after execution of this Agreement without Buyer’s consent, to be given or withheld in Buyer’s sole discretion.
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 in any consensual manner without the written consent of Buyer, to be given or withheld in Buyer’s sole discretion. Seller will not apply for any variance, change or modification with respect to any zoning of the Property or use of the Property without Buyer’s consent, to be given or withheld in Buyer’s sole discretion.
Leases. Seller shall not enter into, terminate, modify or amend any Leases. Seller shall not grant any consent or approval under any Leases. Seller shall not waive any conditions or obligations under any Leases or guarantees of Lease. Seller shall not enter into any non-disturbance or analogous agreements with any subtenants. Seller will, promptly, and, in any event, not later than one Business Day following receipt, give Buyer a true and complete copy of any notices, reports, statements, demand or material correspondence received from Tenants. Seller will not give a notice of default to any Tenant without Buyer’s consent, to be given or withheld in Buyer’s sole discretion.
Copies of Written Notices. Seller shall, from and after the date hereof, promptly provide Buyer with copies of all written notices received by Seller after the date hereof which assert any material breach of agreements, laws, covenants or permits applicable to the Property.
Notice of Material Changes. Upon learning of any event or 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 untrue or misleading in any material way 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, 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; provided that, for the avoidance of doubt, if the Changed Condition is a result of a default by Seller, Buyer shall have its remedies under Section 11.2 hereof.
No Other Contract. Subject to the right of first refusal included in the Hyatt Lease, neither Seller nor its affiliates will enter into any other agreement or option to sell the Property or any portion of, or interest in, the Property. Neither Seller nor its affiliates will market the Property for sale or negotiate with any other person or entity relating to the purchase and sale of the Property.
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 evidence reasonably satisfactory to Seller 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.
DEFAULT
Buyer's Default. If Buyer shall fail to close the transaction contemplated hereby as and when required and Buyer has failed to cure such default within five (5) Business Days of Seller’s written notice of same, except as a result of any Seller default or failure of a condition, or if Seller fails to close the transaction contemplated hereby as a result of a Buyer default that Buyer has failed to cure within five (5) Business Days of Seller’s written notice of same, the Deposit shall be paid over to Seller as agreed as 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 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 any rights and remedies provided herein, shall be entitled to any and all remedies available at law or in equity.
SELLER AND BUYER ACKNOWLEDGE THAT SELLER’S DAMAGES WOULD BE DIFFICULT TO DETERMINE, AND THAT THE DEPOSIT IS A REASONABLE ESTIMATE OF SELLER’S DAMAGES RESULTING FROM A DEFAULT BY BUYER IN ITS OBLIGATION TO PURCHASE THE PROPERTY. 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 A BREACH BY BUYER OF ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OTHER THAN WITH RESPECT TO BUYER’S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND TO THE EXTENT PROVIDED BY SECTION 16.1, 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 returned to Buyer, and receive a reimbursement from Seller for the Pursuit Costs; 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 within the time periods provided in Section 9.4(a), 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.
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, except as expressly provided in this Agreement. The provisions of this Article shall survive Closing.
MISCELLANEOUS
Risk of Loss.
Seller shall, subject to the rights of Tenants, 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 and such Termination Event (i) would cost an amount, greater than, or equal to $1,000,000 to repair and/or restore (as reasonably determined by Buyer), (ii) would materially interfere with the present use of such Property and/or permit the Tenant to terminate the Hyatt Lease or abate rent, (iii) with respect to which any mortgagee of the 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, or (iv) which is not fully covered by Seller’s insurance policies and that is not Tenant’s obligation to repair and restore pursuant to the 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 and interest accrued thereon, shall be 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 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 Execution Date 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 and any rights of Seller to prosecute, settle, compromise, or appeal such payments.
At Closing, Buyer shall receive (i) a credit for (1) any Net Proceeds received by Seller prior to Closing and (2) the amount of any deductible under any insurance policy, (ii) an assignment of all of Seller’s rights to any insurance proceeds payable by reason of such Event, other than any business interruption insurance to the extent the same is attributable to the period of time prior to the Closing which shall be retained by or paid to Seller, and (iii) an assignment of Seller’s right, title and interest to any insurance claims or other claims related to any Event to the extent unresolved as of the Closing Date. Seller shall, subject to the Hyatt lease, retain the exclusive right to process and handle the claim related to any Event occurring prior to Closing with Seller’s insurance company; provided, however, that from and after the expiration of the Diligence Period, Buyer shall have the right, but not the obligation, to participate in the processing and handling of such claims. 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. Seller and Buyer agree that this Agreement or any other document necessary for the consummation of the transaction contemplated by this Agreement may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act ("E-Sign Act"), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act ("UETA") and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on both Seller and Buyer the same as if it were physically executed and Buyer hereby consents to the use of any third party electronic signature capture service providers as may be chosen by Seller.
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 attention of the Seller's Contact Person in the Key Terms to the Seller's Notice Address in the Key Terms TO BUYER: To the attention of the Buyer’s Contact Person in the Key Terms 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 and Buyer agrees that recording shall constitutes a default by Buyer.
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. Seller and Buyer each expressly agrees that the obligations and liabilities of Buyer and 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 Buyer or Seller. Notwithstanding anything to the contrary, Seller's liability, if any, arising in connection with this Agreement or with the Property shall be limited as set forth in Section 9.5 above 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 Seller nor any of its respective officers, directors, shareholders, partners, members or affiliates (including without limitation indirect holders of equity interests in Buyer or Seller) is or will be 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 ("EO13224"), (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, EO13224 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"). Each of Buyer and Seller covenants and agrees on behalf of itself that neither Buyer nor Seller nor any of its respective officers, directors, shareholders, partners, members or affiliates (including without limitation indirect holders of equity interests in Buyer or Seller) shall (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 13.6 shall survive Closing or termination of this Agreement.
13.17. Tax deferred exchange. Either party may consummate the purchase or sale of the Property as part of a like kind exchange ("Exchange") pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended ("Code") provided: (i) Close of Escrow shall not be affected by the Exchange, nor shall the consummation or accomplishment of the Exchange be a condition to either party's obligations under this Agreement; (ii) the party consummating the Exchange ("Electing Party") shall effect the Exchange through an assignment of this Agreement, or its rights under this Agreement, to a qualified intermediary; (iii) the other party (the "Other Party") shall not be required to take an assignment of the purchase agreement for the relinquished property or be required to acquire or hold title to any real property; (iv) the Electing Party shall indemnify, defend and hold the Other Party harmless from and against any Claim arising from or related to such Exchange that would not have been incurred by the Other Party if the transaction were not subject of an Exchange; and (v) the Exchange is not a Closing Condition of either party.
13.18. Right of First Refusal. Lessee (as defined in the Hyatt Lease) is an affiliate of Buyer, and both Buyer and Lessee are under common control. Pursuant to Section 1314 of the Hyatt Lease, Lessee has a right of first refusal (“ROFR”) with respect to the Property. Buyer and Seller acknowledge that this Agreement cannot and shall not replace, modify, waive or release any of Seller’s obligations or Lessee’s rights under the Hyatt Lease, including especially the rights and obligations associated with Lessee’s ROFR, which obligations Seller is required to satisfy prior to any sale or other transfer of the Property. To the extent the Property is not sold to Buyer in accordance with this Agreement, Lessee intends to fully enforce its rights under the Hyatt Lease with respect to the ROFR and otherwise and reserves all rights and remedies pursuant to the same.
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.
OTHER DISCLOSURES
Radon. 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 except for such representations provided in this Agreement or in any documents delivered by Seller pursuant to Section 7.3, 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.
LITIGATION
Attorneys' Fees; Jurisdiction; Venue. In the event of any litigation arising out of or under this Agreement and/or out of Buyer's ownership, development or construction upon the Property, 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 BY LAW, 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 FORMER 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 Officer/City Manager 1500 Warburton Avenue
ATTEST: Santa Clara, CA 95050
Telephone: (408) 615-2210
___________________________ Fax: (408) 241-6771
NORA PIMENTEL
Agency Secretary
Date:______________________
[Signatures continue on following page]
BUYER:
XHR ACQUISITIONS, LLC,
a Delaware limited liability company
By: _______________________________
Its: _______________________________
Date:______________________
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.
First American Title Insurance Company
By:
Date: ________________________, 2024
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:
PARCEL ONE:
ALL OF ADJUSTED PARCEL 1 AS DESCRIBED IN THAT CERTAIN GRANT DEED FILED FOR RECORD ON MARCH 24, 1998 AS DOCUMENT NO. 14106142, SANTA CLARA COUNTY RECORDS, AND DESCRIBED AS FOLLOWS:
BEGINNING AT A NORTHWESTERLY CORNER OF PARCEL 1 AS SHOWN ON THAT CERTAIN AMENDED PARCEL MAP RECORDED IN BOOK 581 OF MAPS, PAGES 9 THRU 11, SANTA CLARA COUNTY RECORDS, AND AS FURTHER AMENDED BY THAT CERTAIN GRANT DEED BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA AS GRANTOR AND GRANTEE RECORDED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON MARCH 24, 1998 AS INSTRUMENT NO. 14106142 PURSUANT TO THAT CERTAIN NOTICE OF LOT LINE ADJUSTMENT ISSUED BY THE CITY OF SANTA CLARA AND RECORDED CONCURRENTLY THEREWITH IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON MARCH 24, 1998 AS INSTRUMENT NO. 14106143, SAID POINT OF BEGINNING ALSO BEING POINT P-I AS SHOWN ON SAID MAP, AND SAID POINT BEING DISTANT THEREON SOUTH 61° 50' 39" EAST, 307.32 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, NORTH 89° 59' 26" EAST, 12.86 FEET; THENCE, NORTH 00° 00' 34" WEST, 13.75 FEET;
THENCE, NORTH 89° 59' 26" EAST, 13.04 FEET;
THENCE, NORTH 00° 00' 34" WEST, 12.25 FEET;
THENCE, NORTH 89° 59' 26" EAST, 12.96 FEET;
THENCE, NORTH 00° 00' 34" WEST, 26.38 FEET;
THENCE, NORTH 89° 59' 26" EAST, 38.49 FEET;
THENCE, NORTH 00° 00' 34" WEST, 25.63 FEET;
THENCE, NORTH 89° 59' 26" EAST, 17.95 FEET;
THENCE, NORTH 00° 00' 34" WEST, 18.71 FEET;
THENCE, NORTH 89° 59' 26" EAST, 24.75 FEET;
THENCE, SOUTH 45° 00' 34" EAST, 28.08 FEET;
THENCE, NORTH 89° 59' 26" EAST, 17.54 FEET;
THENCE, NORTH 00° 00' 34" WEST, 33.00 FEET;
THENCE, NORTH 89° 59' 26" EAST, 20.00 FEET;
THENCE, SOUTH 00° 00' 34" EAST, 33.00 FEET;
THENCE, NORTH 89° 59' 26" EAST, 54.66 FEET;
THENCE, SOUTH 00° 00' 34" EAST, 117.92 FEET;
THENCE, SOUTH 00° 00' 34" EAST, 59.58 FEET;
THENCE, SOUTH 00° 00' 34" EAST, 61.17 FEET;
THENCE, NORTH 89° 59' 26" EAST, 18.56 FEET;
THENCE, SOUTH 44° 59' 26" WEST, 121.71 FEET;
THENCE, SOUTH 00° 00' 34" EAST, 11.89 FEET;
THENCE, SOUTH 44° 58' 16" WEST, 19.63 FEET;
THENCE, SOUTH 89° 59' 26" WEST, 16.78 FEET;
THENCE, SOUTH 00° 00' 34" EAST, 7.47 FEET;
THENCE, SOUTH 89° 59' 26" WEST, 20.29 FEET;
THENCE, SOUTH 44° 59' 26" WEST, 92.86 FEET;
THENCE, SOUTH 89° 59' 26" WEST, 32.00 FEET;
THENCE, NORTH 00° 00' 34" WEST, 200.00 FEET;
THENCE, NORTH 89° 59' 26" EAST, 6.00 FEET;
THENCE, NORTH 00° 00' 34" WEST, 10.00 FEET;
THENCE, NORTH 89° 59' 26" EAST, 4.00 FEET;
THENCE, NORTH 00° 00' 34" WEST, 51.78 FEET;
THENCE, NORTH 45° 00' 34" WEST, 36.77 FEET;
THENCE, NORTH 00° 00' 34" WEST, 59.00 FEET TO THE POINT OF BEGINNING.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT FOR PARKING PURPOSES, AS SET FORTH IN THAT CERTAIN "FIRST AMENDED AND RESTATED EASEMENT AGREEMENT BY CITY AND AGENCY" RECORDED APRIL 21, 1998 AS INSTRUMENT NO. 14150279 OF OFFICIAL RECORDS. PARCEL THREE: NON-EXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN "DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS SANTA CLARA CONVENTION CENTER CAMPUS" RECORDED DECEMBER 21, 2020 AS INSTRUMENT NO. 24756283 OF OFFICIAL RECORDS.
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, successor to the former Redevelopment Agency of the City of Santa Clara, California, a separate public entity, hereby grants to [INSERT BUSINESS NAME], a California corporation, 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 non-delinquent real property taxes, (b) all non-delinquent special assessments, 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.
SUCCESSOR AGENCY TO THE FORMER 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 Officer/City Manager 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.
STATE OF CALIFORNIA )
)
COUNTY OF ___________ )
On ________________, 2024 before me, (here 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
FORM OF CERTIFICATE OF BUYER
[INSERT BUSINESS NAME], [INSERT LEGAL ENTITY] the Buyer under that certain Agreement for Purchase and Sale of Property dated , 2024, 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 , 2024. [INSERT BUSINESS NAME], [INSERT LEGAL ENTITY]
By:
Name:
Title:
EXHIBIT D-1
FORM OF SELLER ESTOPPEL
PROPERTY: 5101 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, Buyer’s lenders and each of their respective successors and assigns 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.
The monthly assessment for (i) Common Area costs currently due from Tenant under the Ground Lease equals $[INSERT AMOUNT] and (ii) construction of Common Improvements (collectively, along with assessments for Common Area costs, the “Assessments”) currently due from Tenant under the Ground Lease equals $[INSERT AMOUNT]. Any Assessments due from Tenant under the Ground Lease have been paid in full.
There are no uncured defaults by Seller under the Ground Lease, and no event has occurred which, with the giving of notice or passage of time, or both, would constitute a default under the Ground Lease by Seller.
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 April 30, 2035, unless extended by Tenant under its options to renew under the terms of the ground lease. Tenant has no right to terminate the Ground Lease, in whole or in part, except, to 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 D-2
FORM OF DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS SANTA CLARA CONVENTION CENTER CAMPUS ESTOPPEL CERTIFICATE The undersigned, CITY OF SANTA CLARA (“City”) and the SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA (“Agency”, and together with City, collectively, “Declarant”) hereby certify to (i) IA LODGING SANTA CLARA, L.L.C., a Delaware limited liability company and its successors and assigns (collectively, “Hotel Lessee”) and (ii) XHR ACQUISITIONS, LLC, a Delaware limited liability company and its successors and assigns (collectively, “Purchaser”) and each of Purchaser’s lenders, the following, as of [______], 2024:
Declarant is the declarant under that certain Declaration of Covenants, Conditions and Restrictions Santa Clara Convention Center Campus, dated as of December 14, 2020 and recorded on December 21, 2020 as Instrument No. 24756283 in the official records of Santa Clara County (the “Declaration”).
The Declaration is in full force and effect, and has not been modified, amended, or supplemented, orally or in writing.
There are no uncured defaults by Declarant under the Declaration and no event has occurred which, with the giving of notice or passage of time, or both, would constitute a default by Declarant under the Declaration.
To the knowledge of Declarant, there are no uncured defaults under the Declaration by Hotel Lessee or Lessee under the Office Ground Lease (each as defined in the Declaration) and no event has occurred which, with the giving of notice or passage of time, or both, would constitute a default under the Declaration by Hotel Lessee or Lessee under the Office Ground Lease.
Declarant confirms and agrees that Hotel Lessee, Purchaser and any lender providing a loan to Hotel Lessee, Purchaser and/or their affiliates, and their respective successors and/or assigns, may rely on the statements contained herein.
Dated and effective as of [______], 2024.
[Remainder of page intentionally blank; signatures follow.] CITY:
CITY OF SANTA CLARA,
a chartered California municipal corporation
By:_______________________
Name:_____________________
Title:______________________
AGENCY:
SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY
OF THE CITY OF SANTA CLARA,
a separate public entity
By:_______________________
Name:_____________________
Title:______________________
EXHIBIT D-3
FORM OF
BALLROOM LICENSE AGREEMENT ESTOPPEL CERTIFICATE
The undersigned, CITY OF SANTA CLARA (“City”), hereby certifies to (i) IA LODGING SANTA CLARA, L.L.C., a Delaware limited liability company and its successors and assigns (collectively, “Hotel Lessee”) and (ii) XHR ACQUISITIONS, LLC, a Delaware limited liability company and each of their respective lenders, successors and assigns (collectively, “Purchaser”) the following, as of [______], 2024:
The City and Hotel Lessee are party to that certain Ballroom License Agreement (the “Ballroom Agreement”) as more particularly described in Exhibit A attached hereto.
The Ballroom Agreement is in full force and effect, and has not been modified, amended, or supplemented, orally or in writing, except as set forth in Exhibit A.
Hotel Lessee is paying the license fee as provided for in the Ballroom Agreement. The current basic license fee is $[______] per annum, payable in equal monthly installments of $[_____] and has been paid by Hotel Lessee through [______], 2024; the percentage license fee, if any, has been paid by Hotel Lessee through [______], 2024; and no fees, rentals or other payments in advance of the current calendar month have been paid by Hotel Lessee. (a) There are no uncured defaults by City under the Ballroom Agreement, and (b) no event has occurred which, with the giving of notice or passage of time, or both, would constitute a default under the Ballroom Agreement by City.
To the knowledge of City, (a) there are no uncured defaults by Hotel Lessee under the Ballroom Agreement, and (b) no event has occurred which, with the giving of notice or passage of time, or both, would constitute a default under the Ballroom Agreement by Hotel Lessee.
City confirms and agrees that Hotel Lessee, Purchaser and any lender providing a loan to Hotel Lessee, Purchaser and/or their affiliates, and their respective successors and/or assigns, may rely on the statements contained herein.
Dated and effective as of [______], 2024.
[Remainder of page intentionally blank; signatures follow.] CITY:
CITY OF SANTA CLARA,
a chartered California municipal corporation
By:_______________________
Name:_____________________
Title:______________________
EXHIBIT A
Ballroom License Agreement dated April 30, 1985, originally recorded in Book J347 at Page 2253 of the Official Records of Santa Clara County on May 16, 1985, between The Redevelopment Agency of the City of Santa Clara (the “Agency”) and SCCC Associates, as amended by First Amendment dated November 24, 1987 between the Agency and Santa Clara Convention Hotel Limited Partnership, as successor-in-interest to SCCC Associates, Second Amendment dated November 24, 1987 between the Agency and Santa Clara Convention Hotel Limited Partnership, and Third Amendment dated March 17, 1998 between the Agency and T-W Santa Clara LLC as supplemented by the Procedure for Operation for the Ballroom Facility established by the Agency.
EXHIBIT E
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this “Assignment”) is made and entered into as of ___________________, 2024, by and between the Successor Agency to the Redevelopment Agency of the City of Santa Clara, a separate public entity (“Assignor”), and [INSERT BUSINESS NAME], [INSERT LEGAL ENTITY] (“Assignee”).
Recitals
A. Assignor, as seller, and Assignee, as buyer, entered into that certain Agreement of Purchase and Sale dated as of ______________, 2024 (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 5101 Great America Parkway, Santa Clara, California (the “Property”), including Assignor’s interest in certain leases related thereto.
B. As part 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 Leases (as defined in the Agreement), a schedule of which Leases is attached hereto as Exhibit B and incorporated herein by this reference (herein, the “Leases”).
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:
1. Transfer and Assignment by Assignor. Assignor hereby transfers and assigns to Assignee all of Assignor’s right, title and interest, in, to and under the Leases.
2. Assumption by Assignee. Assignee hereby accepts the foregoing assignment and assumes and agrees to perform all of the duties, obligations, liabilities, commitments and covenants of Assignor, accruing from and after the date hereof with respect to or arising under each of the Leases.
3. 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.
4. 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.
5. 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.
6. Governing Law. This Assignment shall be governed by and construed in accordance with the laws of the State of California.
7. Counterparts. This Assignment may be executed in counterparts which, when integrated, shall constitute one original of this Assignment.
8. 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.
9. 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 Leases. Assignor represents and warrants that it has good title to and has not assigned or pledged the 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 FORMER 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 Officer/City Manager 1500 Warburton Avenue
ATTEST: Santa Clara, CA 95050
Telephone: (408) 615-2210
___________________________ Fax: (408) 241-6771
NORA PIMENTEL
Agency Secretary Date:______________________
ASSIGNEE:
[INSERT BUSINESS NAME],
[INSERT LEGAL ENTITY]
By:____________________
Its:______________________
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF LEASES
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT B TO ASSIGNMENT AND ASSUMPTION OF LEASES
SCHEDULE OF LEASES
Lease dated April 30, 1985 between the Redevelopment Agency of the City of Santa Clara or its predecessor in interest and SCCC Associates. [NTD: Seller to add amendments, assignments, etc.]
EXHIBIT F
BILL OF SALE
THIS BILL OF SALE is made by the undersigned, SUCCESSOR AGENCY TO REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA, a separate public body (“Seller”), in favor of and to [INSERT BUSINESS NAME], [INSERT LEGAL ENTITY] (“Buyer”).
WHEREAS, Seller, as seller, and Buyer, as buyer, entered into that certain Agreement of Purchase and Sale dated as of ______________, 2024 (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 5101 Great America Parkway, Santa Clara, California (the “Property”), including Seller’s interest in certain real and personal property related thereto; 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 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 ______________________, 2024.
SUCCESSOR AGENCY TO THE FORMER 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 Officer/City Manager 1500 Warburton Avenue
ATTEST: Santa Clara, CA 95050
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 G
FORM OF HOLDBACK ESCROW AGREEMENT
ESCROW HOLDBACK AGREEMENT
This ESCROW HOLDBACK AGREEMENT (the “Agreement”) is entered effective as of the [___] day of [____________] [____] (the “Effective Date”), by and among SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA(“Seller”), [INSERT], a Delaware limited liability company (“Buyer”) and FIRST AMERICAN TITLE INSURANCE COMPANY (“Escrow Agent”). All capitalized terms not otherwise defined herein, shall have the meaning ascribed to them in the Purchase Agreement (as hereinafter defined).
WHEREAS, Buyer and Seller are parties to that certain Agreement of Sale and Purchase of Property dated as of [_______________], 2024 (the “Purchase Agreement”) with respect to certain property, as legally described on Exhibit A attached hereto (the “Real Property”); WHEREAS, (i) Seller is liable for breaches of its representations and warranties under the Purchase Agreement for a period of nine (9) months after the Closing (as the same may be extended pursuant to Section 9.3 of the Purchase Agreement, the “Survival Period”) and (ii) Seller has agreed to indemnify Buyer with respect to certain matters under the Purchase Agreement (collectively, the “Post-Closing Seller Obligations); WHEREAS, under Section 9.5 of the Purchase Agreement, Seller has agreed to deliver Four Hundred Thousand and NO/100 DOLLARS ($400,000) of Seller’s proceeds from the sale (the “Escrow Holdback Funds”) to Escrow Agent at the Closing, which Escrow Holdback Funds are to be held by Escrow Agent in an escrow account (the “Escrow Holdback Account”) in accordance with the terms and conditions of this Agreement; and WHEREAS, Buyer and Seller desire to enter into this Agreement to set forth the terms and conditions related to the Escrow Holdback Funds.
NOW, THEREFORE, the parties hereto agree as follows:
Recitals. The Recitals are incorporated herein as if fully set forth below.
Disbursement of Escrow Holdback Funds to Buyer.
If any action, suit, proceeding, claim, demand, or any other matter arises for which Buyer demands indemnification or payment from Seller in connection with a Post-Closing Seller Obligation (any of the foregoing constituting a “Claim” hereunder), Buyer shall notify Seller and Escrow Agent of such Claim and the amount or estimated amount of such Claim (the “Claim Amount”); provided, however, that all Claims (if any) shall be made by Buyer on or before the expiration of the Survival Period, and any Claims first made by Buyer after the expiration of the Survival Period shall be void and ineffective and shall be disregarded by Escrow Agent.
Upon receipt of a notice of a Claim by Buyer as described in Section 2(a) hereinabove, Escrow Agent shall notify the Seller of such Claim and Seller shall cause an authorized representative of Seller to provide in writing to Escrow Agent Seller’s authorization to either (i) pay to Buyer from the Escrow Holdback Funds the amount of such Claim, or (ii) if Seller contests such Claim, retain and continue to hold the funds in the amount of such Claim until the earlier to occur of (I) mutual written instructions from Seller and Buyer as to the disbursement of such amount, or (II) a final order, decree, or judgment of a court or other tribunal of competent jurisdiction directing the disbursement of such amount. (c) To the extent the Escrow Agent has been timely notified of any Claim pursuant to Section 2(b) above, and such Claim is pending on the expiration of the Survival Period, then an amount (the “Retained Amount”) equal to the lesser of:
one hundred ten percent (110%) of the Claim Amount under all such pending Claims; or the remainder of the Escrow Holdback Funds
shall be retained in the Escrow Account and remain subject to the terms of this Escrow Agreement until distributed in accordance with the final disposition of the underlying Claim, as directed either by (i) mutual written instructions from Seller and Buyer, or (ii) a final order, decree, or judgment of a court or other tribunal of competent jurisdiction directing the disbursement of such amount.
Disbursement of Escrow Holdback Funds to Seller. Following the expiration of the Survival Period, unless a Claim has been made by Buyer against Seller with respect to the Post-Closing Seller Obligations which has not been resolved, then all remaining Escrow Holdback Funds shall be disbursed to Seller without further authorization from Buyer.
Default; Failure to Pay Amounts Due.
If Seller fails to make any payment when due, and such failure continues for a period of fifteen (15) days after written notice by Buyer, then Seller shall be in default of this Agreement.
If Seller fails to perform or comply with any term, condition or obligation of this Agreement, and such failure continues for thirty (30) days after receipt of written notice from Buyer (or such longer period as may be reasonable under the circumstances if the failure cannot be cured within thirty (30) days and Seller commences to cure within such time period and diligently and continuously prosecutes such cure to completion, but in any event not more than sixty (60) days in the aggregate), then Seller shall be in default of this Agreement.
All remedies are cumulative and shall be deemed additional to any and all other remedies to which Buyer may be entitled to at law or in equity. Buyer shall also have the right to restrain by injunction any violation or threatened violation by another of the terms, covenants or conditions of this Agreement, or to obtain a decree to compel performance of any such term, covenant or condition, it being agreed that the remedy at law for a breach of any such term, covenant or condition (except those, if any, requiring the payment of a liquidated sum) is not adequate.
Deposit of Escrow Holdback Funds with Escrow Agent. Concurrently with the Closing, Seller will deposit with Escrow Agent the Escrow Holdback Funds, which Escrow Holdback Funds are to be held in escrow by Escrow Agent in the Escrow Holdback Account, which shall be an interest-bearing account in the name of Seller and disbursed to Seller and/or Buyer, as applicable, by Escrow Agent strictly in accordance with the terms and provisions of this Agreement. All out-of-pocket costs and fees incurred by Escrow Agent in connection with this Agreement shall be paid equally by Seller and Buyer.
Escrow Provisions.
Appointment of Escrow Agent. Seller and Buyer hereby designate Escrow Agent to hold and disburse the Escrow Holdback Funds in accordance with the terms and conditions of this Agreement and Escrow Agent accepts such designation and appointment and agrees to act in accordance with the terms of this Agreement. Escrow Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement.
Indemnity and Hold Harmless of Escrow Agent. If this Agreement or any matter relating hereto shall become the subject of any litigation or controversy, Buyer and Seller shall, jointly and severally, hold Escrow Agent free and harmless from any loss or expense, including attorneys’ fees, that may be suffered by it by reason thereof other than as a result of Escrow Agent’s breach of this Agreement, gross negligence or willful misconduct. In the event conflicting demands are made or notices served upon Escrow Agent with respect to this Agreement, or if there shall be uncertainty as to the meaning or applicability of the terms of this Agreement, Buyer and Seller expressly agree that Escrow Agent shall be entitled to file a suit in interpleader and to obtain an order from the court requiring Buyer and Seller to interplead and litigate their several claims and rights among themselves. Upon the filing of the action in interpleader and the deposit of the Escrow Holdback Funds into the registry of the court, Escrow Agent shall be fully released and discharged from any obligations imposed upon it by this Agreement with respect to the amount so deposited with the court, except for previous actions taken or suffered by Escrow Agent in bad faith, in willful disregard of this Agreement or involving gross negligence on the part of the Escrow Agent.
Liability. Escrow Agent shall not be liable for the sufficiency or correctness as to form, manner, execution or validity of any instrument deposited with it, nor as to the identity, authority or rights of any person executing such instrument. It is agreed that the duties of the Escrow Agent are purely ministerial in nature, and that Escrow Agent’s duties hereunder shall be limited to the safekeeping of the Escrow Holdback Funds and documents received by it as Escrow Agent, and for their disposition in accordance with the terms of this Agreement. Seller and Buyer hereby release the Escrow Agent from any act done or omitted to be done by Escrow Agent in good faith in the performance of its duties hereunder. The Escrow Agent may seek the advice of independent legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability and shall be fully protected in respect of any action taken or suffered by it in good faith in accordance with the opinion of such counsel.
Direction to Invest. Escrow Agent shall invest the Escrow Holdback Funds at the joint direction of Seller and Buyer. Escrow Agent shall have no liability for any investment losses, including any losses on investments required to be liquidated prior to maturity in order to make a payment required by this Agreement. Interest earned on the Escrow Holdback Funds shall be paid to Seller and Seller shall be responsible for any income taxes payable thereon. For federal, state and local income tax purposes, the parties agree that Seller shall be treated as the owner of the Escrow Holdback Funds.
Disputes; Conflicting Demands. In the event of a dispute or conflicting demands for the Escrow Holdback Funds or any portion thereof, Escrow Agent may at its option continue to hold the Escrow Holdback Funds until obtaining: (i) a court order directing its payment or (ii) it may tender the Escrow Holdback Funds into the court in connection with any appropriate proceeding to determine the rights and obligations of the parties hereunder.
Miscellaneous Provisions.
Assignment. This Agreement will be binding upon Buyer, Seller and Escrow Agent and their respective successors and assigns and may not be assigned without the consent of the other parties hereto.
No Third-Party Beneficiary. This Agreement is intended solely for the benefit of Buyer, Seller and Escrow Agent. No third party will have any rights or interest in any provision of this Agreement or the Escrow Holdback Funds.
Amendment and Waiver. No amendment to this Agreement will be valid unless it is made in writing and executed by the parties to this Agreement. No specific waiver or forbearance for any breach of any of the terms of this Agreement will be considered as a general waiver of that or any other term of this Agreement.
Entire Agreement. This Agreement contains the complete and entire understanding of the parties and no changes will be recognized as valid unless they are made in writing and signed by the parties. No specific waiver if any of the terms of this Agreement will be considered as a general waiver.
No Expansion of Rights or Liabilities. This Agreement is merely an extension of the Purchase Agreement and is not intended to expand the rights and/or obligations of the parties under the Purchase Agreement. The Liability Limitation shall apply to Seller’s obligations under this Agreement to the extent set forth in the Purchase Agreement.
Notices. All notices and approval required or permitted under this Agreement shall be served in the manner and to the address for such Party as set forth in the Purchase Agreement.
Severability. The invalidity, illegality, or unenforceability of any provision of this Agreement pursuant to judicial decree will not affect the validity or enforceability of any other provision of this Agreement, all of which will remain in full force and effect.
Attorneys’ Fees. In the event of any litigation or dispute resolution proceeding between Buyer and Seller by reason of this Agreement, or otherwise to enforce the terms hereof, the prevailing party in such proceeding shall be entitled to recover reasonable attorney’s fees in addition to all other expenses incurred by such prevailing party with respect to such proceeding.
Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to any otherwise applicable principles of conflicts of laws.
Counterparts. This Agreement may be executed in counterparts, each of which, when taken together, shall constitute one and the same document. An email signature of either party shall constitute an original signature of such party for all purposes. [SIGNATURES FOLLOW]
The parties hereto have executed this Escrow Holdback Agreement as of the date and year first written above.
BUYER:
ESCROW AGENT:
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
EXHIBIT H
TITLE COMPANY’S PRO FORMA
EXHIBIT I
AFFORDABILITY COVENANT
OFFICIAL BUSINESS
Document entitled to free
recording per Government
Code Section 6103
Recording Requested By and
When Recorded Mail To:
CITY OF SANTA CLARA
City Clerk’s Office
1500 Warburton Avenue
Santa Clara, California 95050
Attention: Division Manager
______________________________________________________________________ SPACE ABOVE THIS LINE FOR RECORDER’S USE
DECLARATION OF RESTRICTIVE COVENANT
5101 GREAT AMERICA PARKWAY
THIS DECLARATION OF RESTRICTIVE COVENANT (“Declaration”) is made this ____ day of _____________, 2024 by the City of Santa Clara as the Successor Agency to the Redevelopment Agency of the City of Santa Clara (the "Agency", the "Declarant") with reference to the following facts.
RECITALS
5101 Great America Parkway (“Property”) was developed by the former Redevelopment Agency of the City of Santa Clara ("Former RDA") upon property previously owned by the Former RDA and currently owned by the Declarant, more particularly described on the Legal Description attached as Exhibit A hereto.
The Former RDA, along with all redevelopment agencies in the State of California, was dissolved effective February 1, 2012 pursuant to legislation adopted by the California Legislature, and all assets of the Former RDA were transferred to the Agency in accordance with ABX1 26 as subsequently amended by AB 1484 and as further amended by SB 107.
The Oversight Board for the Agency approved a Long Range Property Management Plan ("LRPMP") in accordance with Health and Safety Code Section 34191.5, providing for the disposition of the real property assets of the Former RDA, which LRPMP was subsequently approved by the California Department of Finance.
The LRPMP calls for Property to be sold for maximum value subject to its ground lease.
Prior to the disposition of the property under the LRPMP, the Agency is required to comply with the Surplus Land Act, Government Code section 54220 et seq.
The Agency declared the property surplus and issued notice of availabilities to interested entities in which it received no notices of interest.
G. In preparation for the disposition of the Property, the Agency is recording an affordable housing restrictive covenant in compliance with Government Code section 54233 prior to disposition of the property.
NOW, THEREFORE, in consideration of the foregoing Recitals, Declarant hereby declares that the Property and all interests in the Property, including the fee interest of all owner(s), shall be subject to the following restrictive covenant which shall run with the land, and be binding on Declarant and its successors and assigns, and on all parties having or acquiring any right, title or interest in or to Property or any part thereof, their heirs, successors and assigns.
Affordability Covenants. 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 (to the extent occupied) for a period of 55 years for rental housing (from the date of the initial rental of such affordable unit) and 45 years for ownership housing (from the date of the initial sale of each affordable unit) (collectively, the “Covenant Periods”). 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.
Release of Covenants. Following the expiration of the applicable Covenant Periods contained herein, Declarant shall promptly issue and record a release of this Declaration in a form reasonably acceptable to the owner of the Property.
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be signed as of the date and year first above written.
CITY OF SANTA CLARA, CALIFORNIA,
a chartered California municipal corporation
APPROVED AS TO FORM:
Glen R. Googins
City Attorney
Jōvan D. Grogan
City Manager/Executive Officer
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“City”
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Signature Page to Agreement for Purchase and Sale of Property Signature Page to Agreement for Purchase and Sale of Property – Escrow Agent A-1
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NTD: To be updated with specific date.