EXHIBIT 10.02
OPTION AGREEMENT
625 Townsend Street, San Francisco, California
By and Between
TOWNSEND 625, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
("Seller")
and
MACROMEDIA, INC.
A DELAWARE CORPORATION
("Buyer")
OPTION AGREEMENT
625 Townsend Street, San Francisco, California
THIS OPTION AGREEMENT ("Agreement") is made and entered into as of July
16, 2003 (the "Effective Date") by and between Townsend 625, LLC, a California
limited liability company ("Seller"), and Macromedia, Inc., a Delaware
corporation ("Buyer").
R E C I T A L S
This Agreement is made with respect to the following facts and
circumstances:
A. Seller owns certain real property commonly known as 625 Townsend
Street, San Francisco, California, which real property, together with certain
personal property is collectively referred to in this Agreement as the
"Property" and is more particularly defined below.
B. Subject to the terms and conditions herein, Seller desires to
grant Buyer an option to purchase the Property, and Buyer desires to acquire
such option.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Seller and Buyer agree as follows:
1. OPTION TO PURCHASE.
1.1 Grant of Option. In consideration for the Option Payment
provided for below and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller hereby grants to Buyer an
option ("Option") to purchase the Property in accordance with and subject to all
of the terms and conditions set forth in this Agreement.
1.2 Option Payment. As consideration for the grant of the Option
provided herein, Buyer shall pay to Seller outside of escrow, on the second
business day following the Effective Date, the sum of Twenty Five Thousand
Dollars ($25,000) in immediately available funds ("Option Payment") provided,
however, that in no event shall Buyer be required to pay the Option Payment
until one (1) business day following the date on which the First Offer Notice
(as defined immediately below) has been given by Seller to Buyer, if at all.
Seller shall give Buyer written notice ("First Offer Notice") in the event that
Omnicom (as defined below) fails to timely exercise the right of first offer as
more particularly described in Section 8.1.6 below. Upon purchase of the
Property following exercise of the Option, the Option Payment shall be credited
against the Purchase Price (as defined below) for the benefit of Buyer. Except
as otherwise provided in this Agreement, in the event that Buyer does not
exercise the Option provided for herein, or in the event that Buyer does not
purchase the Property after exercising the Option, then the entire amount of the
Option Payment shall be retained by Seller.
1.3 Term. The term ("Term") of the Option shall commence as of the
Effective Date and shall continue thereafter until 5:00 p.m. Pacific daylight
time, August 12, 2003.
1.4 Exercise of the Option. The Option provided for herein shall be
exercised, if at all, by written notice ("Exercise Notice") given by Buyer to
Seller prior to the expiration of the Term. Such notice shall set forth the
unequivocal intent of the Buyer to exercise the Option. The Exercise Notice
shall be in the form attached hereto as Exhibit 1.4. Following timely exercise
of the Option provided for herein, Buyer shall purchase from Seller and Seller
shall sell to Buyer, the Property in accordance with all of the terms of this
Agreement. Notwithstanding any provision to the contrary contained in this
Agreement, including, without limitation, the provisions of this Section 1.4,
the Option shall not be considered as having been exercised by Buyer, unless (i)
the Exercise Notice is timely given prior to the expiration of the Term, (ii)
the Deposit (as defined below) is timely delivered, and (iii) the options as
provided in the 601 Agreement (as defined below) and the King Street Agreement
(as defined below) are concurrently duly exercised. For purposes of this
Agreement, the term "601 Agreement" refers to a separate agreement in connection
with certain real property commonly known as 601 Townsend Street, San Francisco,
California ("601 Property") pursuant to which Baker Hamilton Properties, LLC, a
California limited liability company ("Baker Hamilton"), an affiliate of Seller,
has granted and Buyer has acquired an option to purchase the 601 Property. For
purposes of this Agreement, the term "King Street Agreement" refers to a
separate agreement in connection with certain real property commonly known as
650 King Street, San Francisco, California ("King Street Property") pursuant to
which Baker Hamilton has granted to Buyer an option to purchase the King Street
Property.
1.5 Termination. In the event that Buyer fails to duly exercise the
Option, as provided in Section 1.4, this Agreement shall terminate and neither
party shall have any further rights or obligations hereunder (except for the
obligations of Seller or Buyer which are expressly stated in this Agreement to
survive the termination of this Agreement) and, except as otherwise provided in
this Agreement, the Option Payment shall be retained by Seller.
2. PURCHASE AND SALE.
2.1 Property. Subject to the terms and conditions hereof, upon the
exercise of the Option provided for above, Seller hereby agrees to sell, convey
and assign to Buyer, and Buyer hereby agrees to purchase and accept from Seller
on the Closing Date (as defined below) the following (collectively, the
"Property"):
2.1.1 That certain tract or parcel of land situated in the
City and County of San Francisco, California, which is legally described on
Exhibit 2.1.1 attached hereto, together with any and all rights, privileges and
easements appurtenant thereto (collectively, the "Land");
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2.1.2 All buildings, structures, fixtures and other
improvements of every kind and description affixed to or located in, on, over,
or under the Land (excluding fixtures owned by tenants and which such tenants
have the right to remove under the terms of their respective Leases, as defined
below) (all of which are collectively referred to as the "Improvements"); and
2.1.3 All right, title and interest of Seller in and to all
tangible personal property listed on Exhibit 2.1.3 attached hereto
(collectively, the "Personal Property").
2.2 Real Property. The Land and Improvements are collectively
referred to as the "Real Property."
2.3 Assignment. In addition, Seller shall convey and assign to Buyer
all of the right, title and interest of Seller in and to (i) all leases,
licenses, rental and other agreements, if any, for the use or occupancy of any
portion of the Real Property (collectively, "Leases"), which Leases are listed
on Exhibit 2.3(i) attached hereto; together with any guarantees of the Leases
and any and all security deposits, letters of credit, and other property given
or delivered by any tenant, lessee, or occupant under a Lease (collectively, the
"Tenants" and each, individually, a "Tenant") as collateral security for
performance of such Tenant's obligations under such Lease; (ii) all assignable
service contracts and other agreements, if any, relating to the Real Property or
Personal Property, which, pursuant to the terns of this Agreement, are to
continue in effect after the Closing (as defined below) [the service contracts
presently applicable to the Property are listed on Exhibit 2.3(ii) attached
hereto (collectively, the "Service Contracts")]; (iii) all assignable current
licenses, permits, certificates of occupancy, approvals and entitlements issued
or granted in connection with the Real Property as well as any and all
assignable development rights and any other intangible rights, interests or
privileges relating to or used in connection with the Real Property; (iv) any
assignable right to use the current names of the Real Property, logos,
trademarks, tradenames and symbols and promotional materials; and (v) all
transferable warranties, guarantees or sureties relating to the Real Property or
the Personal Property. Such assignment shall be made pursuant to the form of
Assignment and Assumption Agreement described in Section 9.1.3 below
("Assignment").
2.4 Excluded Property. Notwithstanding any provision to the contrary
of this Agreement, the Property being conveyed pursuant to this Agreement does
not include (and Seller expressly reserves all rights with respect to) the
following: (i) any rebates of real property taxes on the Real Property paid by
Seller and attributable to the period prior to the Closing; and (ii) any refund
or other amount recovered from the California Petroleum Underground Storage Tank
Clean-Up Fund, or otherwise recovered, with respect to Seller's previously
having removed one or more underground storage tanks from the Real Property.
Following the Closing, Buyer shall reasonably cooperate with Seller with respect
to the matters described above in this Section 2.4 by executing such
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documents and taking such action as may be reasonably requested by Seller in
connection with such matters, at no cost or expense to Buyer.
3. PURCHASE PRICE. Buyer shall pay as the total purchase price for
the property ("Purchase Price") the sum of nine million five hundred thousand
dollars ($9,500,000). The purchase price shall be paid as follows:
3.1 Option Payment. At Closing, the Option Payment shall be applied
and credited toward the payment of the Purchase Price. In the event that Buyer
fails to timely pay the Option Payment, Seller shall be entitled, at Seller's
sole option, to terminate this Agreement immediately by giving written notice of
such termination to Buyer;
3.2 Deposit. Subject to the timely exercise of the Option by Buyer,
not later than two (2) business days following the date on which the Exercise
Notice is given, Buyer shall cause an additional Six Hundred Thousand Dollars
($600,000) (the "Deposit") in immediately available funds to be delivered into
Escrow (as defined below). The failure of Buyer to timely deliver the Deposit
shall be a material default, and Seller, at Seller's sole option, may terminate
this Agreement by giving written notice of such termination to Buyer and the
Title Company (as defined below). In the event of any such termination by reason
of Buyer's failure timely to deliver the Deposit into Escrow, Buyer shall be
considered to have not exercised the Option and the entire amount of the Option
Payment shall be retained by Seller.
3.3 Interest on Deposit. The Deposit shall be held in Escrow in
accordance with the provisions of this Agreement in an interest bearing,
federally insured account at a bank or other financial institution designated by
the Title Company and reasonably acceptable to Buyer, and all interest accruing
thereon shall be credited to the account of Buyer, except as otherwise provided
herein, and shall be considered to be a part of the Deposit.
3.4 Disposition of the Deposit. At the Closing, the Deposit and all
interest accrued thereon shall be applied and credited toward the payment of the
Purchase Price. Upon exercise of the Option and delivery of the Deposit into
Escrow, the Deposit shall become non-refundable in accordance with the
provisions of Section 19.1 subject to return to Buyer only as expressly provided
in this Agreement.
3.5 Cash Balance. On or before the Closing, Buyer shall deliver into
Escrow in immediately available funds the balance of the Purchase Price. The
Purchase Price, net of any prorations and closing costs to be paid by Seller as
provided in this Agreement and net of the Option Payment, shall be paid by the
Title Company to Seller on the Closing Date by federal wire transfer of
immediately available funds to a bank account(s) designated by Seller in a
written notice to the Title Company given prior to the Closing.
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4. TITLE.
4.1 Vesting of Title. At Closing, Seller shall convey fee simple
title to the Real Property to Buyer by execution and delivery of the Deed (as
defined below). Issuance by the Title Company (or an unconditional commitment to
issue) as of the Closing of the Buyer's Title Policy (as defined below) shall
constitute evidence of delivery of title by Seller.
4.2 Buyer's Title Insurance. At Closing, the Title Company shall
issue to Buyer an ALTA owner's title insurance policy (1970 form) ("Buyer's
Title Policy") in the amount of the Purchase Price insuring that fee simple
title to the Real Property is vested in Buyer subject only to the Permitted
Exceptions (as defined below). Buyer shall be entitled to request that the Title
Company issue such endorsements to the Buyer's Title Policy as Buyer may
reasonably require, provided that such endorsements shall be at no cost or
additional liability to Seller (other than any liability to the Title Company
under any customary affidavits or certifications reasonably requested by the
Title Company) and the Closing shall not be delayed as a result of Buyer's
request.
4.3 Permitted Exceptions. As a condition precedent of Buyer's
obligations as provided in Section 8.2.4 but not as a covenant of Seller, Seller
shall convey the Property and Buyer shall accept the Property subject to the
following matters, which are collectively referred to as the "Permitted
Exceptions":
4.3.1 All exceptions to title shown in the Title Report (as
defined below) as it may be amended and on the Survey (as defined below) that
are approved or deemed approved by Buyer as provided in Section 7.3.2 hereof and
7.3.3 hereof, if applicable;
4.3.2 the lien of non-delinquent real and personal property
taxes and assessments;
4.3.3 the rights of the Tenants, if any, under the Leases
referred to in Exhibit 2.3 (i);
4.3.4 the Service Contracts, if any, to be assumed by Buyer;
4.3.5 local, state and federal laws, ordinances or
governmental regulations, including but not limited to, building and zoning
laws, ordinances and regulations, now existing or hereafter in effect with
respect to the Real Property;
4.3.6 matters affecting the condition of title created by or
with the written consent of Buyer; and
4.3.7 standard printed exceptions included in an ALTA owner's
title insurance policy (1970 form).
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5. ESCROW.
5.1 Opening of Escrow. Seller shall deliver a fully executed
counterpart of this Agreement into escrow ("Escrow") to be established at
Chicago Title Company, One Kaiser Plaza, Suite 755, Oakland, California 94612,
Attention: Ms. Kris Owens ("Title Company") on or before three (3) days
following the Effective Date.
5.2 Instructions to Title Company. Seller and Buyer shall each be
entitled to submit escrow instructions to the Title Company in connection with
the Closing of the Escrow. Seller and Buyer shall in addition execute such
further escrow instructions as the Title Company may reasonably require in
connection with the Closing. In the event of any conflict between the terms and
conditions of this Agreement and the provisions of any escrow instructions
prepared by Seller, Buyer or the Title Company, the terms and conditions of this
Agreement shall control.
6. CLOSING.
6.1 Closing. The purchase and sale of the Property as contemplated
by this Agreement, including but not limited to the recordation of the Deed and
the completion of the other matters required by this Agreement to be done
contemporaneously (the "Closing") shall occur on August 15, 2003, or on such
earlier date as is agreed upon by Seller and Buyer. The date on which the
Closing actually occurs shall be referred to as the "Closing Date."
6.2 Failure to Close. If the Closing does not occur on or before the
date set forth in Section 6.1 above (as such date may be extended pursuant to
the express provisions of this Agreement), then in the absence of a written
agreement between the parties to extend the date of the Closing, either party
hereto (so long as such party is not then in default pursuant to this
Agreement), without waiving any rights it may otherwise have pursuant to the
Agreement, may elect to terminate this Agreement by giving written notice of
such termination to the other and to the Title Company. In the event of a
termination of this Agreement pursuant to this Section 6.2, if neither Seller
nor Buyer is in default pursuant to this Agreement, the Deposit, including all
interest accrued thereon, shall be returned to Buyer within two (2) business
days following the date of termination of this Agreement, and the Option Payment
shall be retained by Seller, except as otherwise provided in this Agreement. In
the event of any such termination, and (i) Seller is in default pursuant to this
Agreement, the Deposit, including the interest accrued thereon, and Option
Payment shall be returned to Buyer within two (2) business days following the
date of termination, or (ii) Buyer is in default pursuant to this Agreement, the
disposition of the Deposit shall be governed by the provisions of Section 19.1
below, and the Option Payment shall be retained by Seller.
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7. DUE DILIGENCE.
7.1 Due Diligence. Buyer shall be entitled to conduct due diligence
with respect to the Property through and including the date on which the
expiration of the Term occurs ("Expiration Date"), and, if Buyer shall exercise
the Option, thereafter Buyer shall continue to have access to the Real Property
pursuant to the provisions of Section 7.4 below.
7.2 Available Information. Seller shall make available to Buyer the
following documents and materials with respect to the Property (collectively,
the "Due Diligence Materials") in accordance with the following:
7.2.1 Property Files. Seller shall make available to Buyer and
Buyer's agents and representatives, upon reasonable notice and during normal
business hours, all files in the possession of Seller, or in possession of
Seller's property manager, if any, relating to the ownership, operation,
construction, use or occupancy of the Property, or any portion of the Property,
including without limitation, all current Leases, the current operating budget,
building plans and specifications, surveys, all current service or maintenance
contracts, all other current contracts, warranties (including construction),
third party environmental or soils reports, third party seismic reports,
building and occupancy permits, all current budgets, public sector notices, and
tax assessments to the extent in Seller's possession or in the possession of
Seller's property manager, if any. Buyer, at its expense, may make photocopies
of such material relative to the Property as Buyer may determine.
7.2.2 Restricted Information. Notwithstanding any provision to
the contrary, "Due Diligence Materials" shall not include, and Seller shall have
no obligation to furnish or otherwise make available to Buyer, (i) any federal
or state income tax returns; (ii) any information or documentation, the
disclosure of which would violate any contract or agreement binding on Seller or
any applicable law; (iii) any documents, instruments, or agreements evidencing,
securing, or relating to the mortgage loan currently encumbering the Real
Property, provided that Seller will make available to Buyer any third party
reports with respect to the Property in Seller's possession and prepared in
connection with the mortgage loan, (iv) any internally or externally prepared
reports or analysis concerning the valuation of the Real Property; or (v) any
information received from or concerning any other potential purchaser of the
Property, provided that Seller will make available to Buyer any third party
reports in the possession of Seller acquired from or in connection with any
other potential purchaser of the Property. Nothing contained in this section is
intended to limit any disclosure obligations Seller may have under applicable
law.
7.2.3 Confidentiality. Buyer and its representatives shall
hold in strictest confidence all data and information obtained with respect to
Seller or the Property whether obtained before or after the execution and
delivery of this Agreement, and shall
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not disclose the same to others except as may be required by law or with the
consent of the Seller; provided, however, that it is understood and agreed that
Buyer may disclose such data and information to the employees, brokers, lenders
(actual or potential), consultants, accountants and attorneys of Buyer provided
that such persons agree to treat such data and information confidentially. In
the event this Agreement is terminated, other than by reason of a default by
Seller, Buyer shall promptly return to Seller any statements, documents,
schedules, exhibits and other written information obtained from Seller in
connection with this Agreement or the transaction contemplated herein. The
provisions of this Section 7.2.3 shall survive Closing or any termination of
this Agreement. Notwithstanding the foregoing, any party (and any employee,
representative or other agent of any party) may disclose to any and all persons,
without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to any party
relating to such tax treatment and tax structure; provided, however, that any
such information and materials shall be kept confidential to the extent
necessary to comply with any applicable securities laws. For purposes of the
exceptions set out in the preceding sentence to the general confidentiality
provisions set forth above, the tax treatment and tax structure of the
transactions contemplated by this Agreement shall not be deemed to include the
location of the Property, the identity of the parties to this Agreement or the
Purchase Price.
7.3 Title Review. Buyer shall have the right to review title to the
Real Property in accordance with this Section 7.3.
7.3.1 Title Material. Promptly following the Effective Date,
Seller will obtain and deliver to Buyer a current preliminary title report
("Title Report") for the Real Property prepared by the Title Company, together
with a copy of the documents listed as exceptions therein. Buyer, at its cost,
shall obtain a survey ("Survey") of the Real Property prepared by a licensed
engineer or surveyor, which Survey shall be sufficient to provide the basis for
an ALTA owner's policy of title insurance. Buyer shall deliver a copy of the
Survey to the Title Company and to Seller.
7.3.2 Review of Title. Buyer shall notify Seller in writing
(the "Title Notice") not later than three (3) business days prior to the
Expiration Date as to which exceptions to title as shown on the Title Report and
Survey, if any, will not be accepted by Buyer. If Buyer fails to notify Seller
in writing of its disapproval of any exceptions to title within such period of
time, Buyer shall be deemed to have approved the condition of title to the Real
Property. If Buyer notifies Seller in writing that Buyer objects to any
exceptions to title, Seller shall have two (2) business days after receipt of
the Title Notice (but, in no event, later than one (1) business day prior to the
Expiration Date) to notify Buyer (a) that Seller will remove such objectionable
exceptions from title on or before the Closing, provided that Seller may extend
the Closing for such period as shall be required to effect such cure, but not
beyond ten (10) days; or (b) that Seller elects not to
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cause such exceptions to be removed. If Seller fails to timely give such notice
to Buyer, the Seller shall be deemed to have given notice to Buyer under clause
(b). Seller shall have no obligation to remove any title exceptions to which
Buyer objects; provided, however, that Seller shall be obligated to remove, as
of the Closing, all liens evidencing any deed of trust (and related documents
securing financing), all delinquent tax liens, all mechanic's liens relating to
work performed by Seller, all judgment liens and encumbrances created by Seller
violation of the provisions of Section 11.2 below. The procurement by Seller of
a commitment for the issuance of the Buyer's Title Policy (as defined in Section
4.2 hereof) or an endorsement thereto insuring Buyer against any title exception
which was disapproved pursuant to this Section 7.3.2 shall be deemed a cure by
Seller of such disapproval. If Seller gives or is deemed to have given Buyer
notice under clause (b) above, Buyer shall have two (2) business days from the
date on which such notice to Buyer is given or deemed given (but in no event
later than the Expiration Date) in which to notify Seller that Buyer will
nevertheless proceed with the purchase and take title to the Property subject to
such exceptions. If Buyer fails to timely give such notice, and duly exercises
the Option, then Buyer will be deemed to have elected to proceed with the
purchase and take title to the Property subject to such exceptions. If Seller
gives or is deemed to have given notice to Buyer under clause (b) and Buyer
fails to exercise the Option, this Agreement shall terminate in accordance with
the provisions of Section 1.5.
7.3.3 Subsequent Title Defects. Buyer may, at or prior to
Closing, notify Seller in writing (the "Subsequent Title Defects Notice") of any
objection(s) to title exceptions (a) raised by the Title Company between the
Expiration Date and the Closing and (b) not disclosed by the Title Company in
writing or otherwise known to Buyer prior to the Expiration Date, provided that
Buyer must notify Seller of such objection(s) to title within two (2) business
days after being made aware of the existence of such exception. If Buyer gives a
Subsequent Title Defects Notice to Seller, Seller shall have two (2) business
days after receipt of the Subsequent Title Defects Notice to notify Buyer (a)
that Seller will remove such objectionable exceptions from title on or before
the Closing, provided that Seller may extend the Closing for such period as
shall be required to effect such cure, but not beyond ten (10) days; or (b) that
Seller elects not to cause such exceptions to be removed. If Seller fails to
timely give such notice to Buyer, Seller shall have been deemed to have given
notice to Buyer under clause (b). Seller shall have no obligation to remove any
title exceptions to which Buyer objects; provided, however, that Seller shall
remove, as of the Closing, all liens evidencing any deed of trust (and related
documents securing financing), all delinquent tax liens, all mechanic's liens
relating to work performed by Seller, all judgment liens and encumbrances
created by Seller in violation of the provisions of Section 11.2 below. The
procurement by Seller of a commitment of the Title Company for Buyer's Title
Policy or an endorsement thereto insuring Buyer against any title exception
which was disapproved pursuant to this Section 7.3.3 shall be deemed a cure by
Seller of such disapproval. If Seller gives or is deemed to have given notice
under clause (b) above, Buyer shall have two (2) business
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days from the date on which such notice to Buyer is given or deemed given in
which to notify Seller that Buyer will nevertheless proceed with the purchase
and take title to the Property subject to such exceptions or that Buyer elects
not to proceed with the purchase. If Buyer fails to timely give such notice and
has exercised the Option, Buyer shall be deemed to have elected to proceed with
the purchase and take title to the Property subject to such exceptions. If Buyer
has exercised the Option, and thereafter gives a Subsequent Title Defects
Notice, and if Seller gives, or is deemed to have given, notice under clause (b)
above, and Buyer timely elects not to proceed with the purchase, this Agreement
shall terminate. If this Agreement is so terminated, then neither party shall
have any further rights or obligations hereunder (except with respect to those
matters expressly set forth to survive such termination), each party shall bear
its own costs incurred hereunder, and, within two (2) business days thereafter,
Buyer shall be entitled to return of the Deposit, if delivered, together with
all interest accrued thereon. Except as otherwise provided in this Agreement, in
the event of a termination pursuant to the provisions of this Section 7.3.3, the
Option Payment shall be retained by Seller.
7.4 Inspection; Right of Entry. Buyer and Buyer's agents,
contractors, engineers, consultants, employees and other representatives
(collectively, "Buyer's Representatives") shall have the right, during the Term
and, if Buyer exercises the Option, thereafter, and subject to the terms and
conditions of Section 7.6 below, (i) to enter the Real Property to inspect the
same (including the performance of environmental audits of the Real Property in
accordance with the terms of Section 7.4.1 and 7.4.2 below), upon reasonable
notice to Seller, provided that Buyer does not unreasonably disturb any business
of Seller in connection with the Property or any Tenant of the Real Property,
(ii) to contact representatives of the Tenants, (iii) to contact representatives
of third parties who have executed Service Contracts with Seller or Seller's
representatives regarding the Real Property; (iv) to contact representatives of
Seller's property manager, if any, regarding the Property; and (v) to contact
representatives of applicable governmental authorities concerning the Property.
Buyer shall keep the Property free and clear of any mechanics' liens,
materialmen's liens or claims arising out of any of Buyer's activities or those
of Buyer's Representatives on or with respect to the Real Property. All entries
onto the Real Property by Buyer and all inspections and examinations thereof
shall be at Buyer's sole cost and expense, shall be done in a workmanlike manner
in accordance with all applicable codes, statutes, ordinances, rules,
regulations and laws and shall not unreasonably disturb the quiet occupancy or
enjoyment of any Tenant or other occupant of the Real Property. Buyer shall not
perform any test or inspection or carry out any activity at the Real Property
which damages the Real Property in any way or which is physically intrusive into
the Improvements or soil of the Real Property without the prior written consent
of Seller, which consent Seller shall not unreasonably withhold. In connection
with the request by Buyer for any such written consent of Seller, Buyer shall
provide a detailed description of the nature of the proposed test of the Real
Property, and shall in addition provide to Seller (i) the name of the
contractor, who will perform the subject test on behalf of Buyer, (ii) proof of
insurance, with respect to such contractor,
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adequate in Seller's reasonable judgment, and (iii) such other information with
respect to the proposed test as Seller may reasonably request. After each entry
onto any portion of the Real Property, Buyer, at its sole cost and expense shall
repair (which shall include replacement where necessary) any damage to the Real
Property arising from such entry. In connection with any inspections of the Real
Property, Buyer and Buyer's Representatives will carry liability insurance
adequate in Seller's reasonable judgment and, upon the request of Seller, will
provide Seller with written evidence of same. Buyer will give Seller reasonable
prior notice of its intention to conduct any inspections or tests with respect
to the Real Property or of its intention to contact any Tenant, and Seller
reserves the right to have a representative present.
7.4.1 Phase I Environmental Audit. During the Term, Buyer may
conduct (or have conducted on its behalf by an environmental auditor) a Phase I
environmental audit of the Real Property, subject to the terms and conditions of
Sections 7.4.2 and 7.6 below.
7.4.2 Environmental Conditions. In the event that Buyer shall
enter the Real Property for purposes of conducting a Phase I environmental audit
of the Real Property, Buyer shall provide Seller with at least twenty-four (24)
hours' prior notice of its intent thereof. Buyer shall not conduct a Phase II
environmental audit of the Real Property without the prior written consent of
Seller, which consent Seller shall not unreasonably withhold. Any request by
Buyer to conduct a Phase II environmental audit of the Real Property will be
subject to the applicable provisions of Section 7.4 relating to intrusive
testing of the Real Property. Buyer shall not disclose to any third party, other
than Buyer's consultants, agents and attorneys associated with any environmental
investigation of the Real Property, the results of any of Buyer's inspections or
testing of the Real Property, except as may be required by applicable law. Prior
to performing any environmental inspections or testing of the Real Property,
Buyer shall obtain any required permits and authorizations and shall pay all
applicable fees required by any public body or agency in connection therewith.
7.5 Buyer's Reports. If the Escrow fails to close for any reason
other than Seller's breach of this Agreement, then all studies, surveys
(including, without limitation the Survey), if any, reports, test results and
analyses concerning the Real Property prepared by, for or on behalf of Buyer in
connection with the Real Property (collectively, "Buyer's Reports") shall at the
option of Seller, be delivered and assigned to Seller free and clear of all
claims and at no cost, expense or liability to Seller. Buyer shall not be
required to deliver to Seller internally prepared reports or analyses concerning
the valuation or potential performance of the Real Property. Any Buyer's Reports
delivered to Seller at Seller's request pursuant to this Section 7.5 shall be
delivered without representation or warranty, nor shall Seller assert any
warranty or rights against the consultants of Buyer who have prepared such
Buyer's Reports.
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7.6 Indemnity. Buyer shall indemnify, defend by counsel reasonably
acceptable to Seller, and hold Seller harmless from and against any and all
costs, expenses, claims, demands or liens, (including, without limitation,
mechanics' liens) including reasonable attorneys' fees, arising from or in any
fashion related to the entry by Buyer or Buyer's Representatives on the Real
Property or the performance by Buyer or Buyer's Representatives of any testing
or investigations of the Real Property except with respect to any loss or
liability incurred by Seller resulting from the mere discovery by Buyer or Buyer
Representatives of the presence of hazardous materials at the Property or the
existence of other defects with respect to the Property. Without limiting the
scope or generality of the foregoing indemnity, Buyer shall not permit any
mechanics', materialman's, or other lien against all or any part of the Real
Property to exist as the result of any activity by Buyer or Buyer's
Representatives undertaken in connection with the Real Property. If any such
lien shall be filed against the Real Property or any portion of the Real
Property, Buyer shall cause the lien to be discharged within ten (10) business
days after the filing thereof. The provisions of this Section 7.6 shall survive
the Closing and delivery of the Deed and shall further survive any earlier
termination of this Agreement.
7.7 Estoppel Certificates. Following the Effective Date, Seller and
Buyer shall reasonably cooperate so as to allow the prompt delivery of Estoppel
Certificates ("Estoppel Certificates") substantially in the form attached hereto
as Exhibit 7.7 to the Tenants, if any. Seller shall thereafter reasonably
endeavor to obtain executed Estoppel Certificates from the Tenants, and copies
of any of the Estoppel Certificates received by Seller shall be promptly
delivered to Buyer. Although Seller shall reasonably endeavor to obtain signed
Estoppel Certificates, Seller shall have no obligation to do so.
7.8 Approval by Buyer. Buyer shall have the right to review and
approve, in its sole, absolute and subjective discretion, during the Term all
aspects of the Property, including but not limited to, (i) the Due Diligence
Materials, (ii) the physical and environmental condition of the Real Property,
including, without limitation, the condition of the Improvements, the condition
of the soil at the Real Property, the condition of the ground water at the Real
Property, and the presence or absence of any hazardous materials at the Real
Property, (iii) the financial condition of the Property, including, without
limitation, the feasibility, convertibility, desirability and suitability of the
Property for Buyer's intended use and purposes, (iv) the legal condition of the
Property, including, without limitation, the Property's compliance or
non-compliance with all statutes, ordinances, codes, regulations, decrees,
orders and laws applicable to the Property, (v) the Service Contracts, if any,
being assumed by Buyer, (vi) the existence or non-existence of any governmental
or quasi-governmental entitlements, if any, affecting the Property or any
portion of the Property, (vii) any dimensions or specifications of the Real
Property or any part thereof, (viii) the zoning, building and land use
restrictions applicable to the Real Property or any portion thereof, (ix) the
Estoppel Certificates, and (x) all other matters which Buyer deems relevant to
its purchase of the Property. In the
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event that Buyer elects to exercise the Option in accordance with the provisions
of Section 1.4, Buyer shall be deemed to have approved all aspects of the
Property, including, without limitation, the matters summarized in this Section
7.8. The deemed approval by Buyer pursuant to the provisions of this Section
7.8, shall not be construed to lessen or otherwise modify Seller's obligations
pursuant to Seller's representations and warranties as set forth in Section
12.2. If Buyer elects not to timely exercise the Option, then as provided in
Section 1.5, this Agreement shall terminate, all rights and obligations
hereunder of each party shall be at an end (except those matters which are
specifically stated in this Agreement to survive the termination), and each
party shall bear its own costs incurred hereunder. Notwithstanding the failure
of Buyer to timely exercise the Option, the Option Payment shall be retained by
Seller, except as otherwise provided in this Agreement. If Buyer timely
exercises the Option, in accordance with the provisions of Section 1.4, then
Buyer shall be considered to have elected to proceed with the purchase of the
Property in accordance with the provisions of this Agreement.
7.9 Approval of Service Contracts. At Buyer's election, Buyer may
specify, by a separate written notice to Seller, given prior to the date on
which the Exercise Notice is given, its approval of one or more of the Service
Contracts. Any assignable Service Contracts so approved, shall not be terminated
by Seller, and responsibility for payment thereof accruing as of and subsequent
to the Closing Date shall be assumed by Buyer effective as of the Closing. Any
Service Contract not specifically approved by Buyer by written notice given
prior to the date on which the Exercise Notice is given, shall be deemed
disapproved and shall be terminated by Seller prior to the Closing. Seller shall
be solely responsible for any such terminated Service Contracts and for the
payment of all amounts accruing under assumed Service Contracts prior to the
Closing Date.
8. CONDITIONS TO CLOSING.
8.1 Seller's Conditions. Following the due exercise by Buyer of the
Option, if at all, the obligation of Seller to sell and convey the Property
pursuant to this Agreement is subject to the satisfaction on or before the
Closing Date (or such earlier date as is specifically set forth in this
Agreement) of all of the following conditions precedent, which conditions are
for the benefit of Seller only and the satisfaction of which may be waived only
in writing by Seller:
8.1.1 Buyer's Deliveries. Delivery and execution by Buyer of
all monies, items and instruments required to be delivered by Buyer pursuant to
this Agreement;
8.1.2 Buyer's Representations. Buyer's warranties and
representations set forth herein shall be true and correct as of the Closing
Date;
8.1.3 Buyer's Performance. Buyer shall have performed each and
every agreement to be performed by Buyer pursuant to this Agreement;
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8.1.4 Prior Closings. The "Closing" as contemplated by the
King Street Agreement, shall be concurrently occurring in accordance with the
King Street Agreement, unless such Closing shall be prevented solely by a
default by Baker Hamilton under the King Street Agreement;
8.1.5 Lender Consent. The written consent of Fremont
Investment & Loan ("Lender") to the transactions as contemplated by the 601
Agreement and the King Street Agreement, shall have been obtained by Baker
Hamilton prior to July 22, 2003; and
8.1.6 First Offer. Omnicom Group, Inc. ("Omnicom") shall have
failed to exercise the right of first offer as set forth in Article 26 of the
lease dated November 8, 1999 by and between Baker Hamilton, as landlord, and
Organic, Inc. (predecessor to Omnicom), as tenant, in response to a notice dated
July 9, 2003 given by Baker Hamilton to Omnicom pursuant to the provisions of
such Article 26.
8.2 Buyer's Conditions. Following the due exercise by Buyer of the
Option, if at all, the obligation of Buyer to acquire the Property pursuant to
this Agreement is subject to the satisfaction on or before the Closing Date (or
such earlier date as is specifically set forth in this Agreement) of all of the
following conditions precedent which conditions are for the benefit of Buyer
only and the satisfaction of which may be waived only in writing by Buyer:
8.2.1 Seller's Deliveries. Delivery and execution by Seller of
all instruments and other items required to be delivered by Seller pursuant to
this Agreement;
8.2.2 Seller's Representations. Seller's warranties and
representations set forth herein shall be true and correct as of the Closing
Date;
8.2.3 Seller's Performance. Seller shall have performed each
and every agreement to be performed by Seller pursuant to this Agreement;
8.2.4 Buyer's Title Policy. As of the Closing, the Title
Company shall have issued or shall have committed to issue, upon the sole
condition of the payment of its regularly scheduled premium, the Buyer's Title
Policy;
8.2.5 Other Properties. Buyer shall not have terminated the
601 Agreement or the King Street Agreement solely by reason of a default by
Baker Hamilton, thereunder, or by reason of the nonsatisfaction of a condition
precedent to Buyer's obligations thereunder;
8.2.6 No Termination. Buyer shall not have terminated this
Agreement through exercise of a termination right provided to Buyer under this
Agreement;
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8.2.7 Lender Consent. The written consent of Lender as
contemplated by Section 8.1.5 above shall have been timely obtained by Baker
Hamilton. Seller shall provide a copy of such written consent to Buyer promptly
following its receipt; and
8.2.8 First Offer. Omnicom shall have failed to exercise the
right of first offer as more particularly described in Section 8.1.6 above.
8.3 Failure of Conditions. If any of the conditions set forth in
Section 8.1 is not timely satisfied or waived by Seller in writing, Seller shall
have the right to terminate this Agreement by written notice given to Buyer
within five (5) business days following the date for satisfaction of such
condition. If any of the conditions set forth in Section 8.2 is not timely
satisfied or waived by Buyer in writing, Buyer shall have the right to terminate
this Agreement by written notice given to Seller within five (5) business days
following the date for satisfaction of such condition. If either party shall so
terminate this Agreement, this Agreement and the rights and obligations of Buyer
and Seller shall terminate and be of no further force or effect, except as to
those matters which are specifically stated in this Agreement to survive
termination, and except as to the rights of the nondefaulting party if the
failure of condition shall constitute a default by the other party. In the event
that this Agreement is terminated pursuant to the provisions of this Section
8.3, and neither Seller nor Buyer is in default pursuant to this Agreement, the
Title Company is hereby instructed to return promptly to the party which placed
such items into Escrow all funds (including the Deposit, and all accrued
interest thereon, which is to be promptly returned to Buyer) and documents which
are held by the Title Company on the date of termination. In the event of any
such termination, the Option Payment shall be retained by Seller.
Notwithstanding any of the above provisions of Section 8.3 to the contrary, in
the event of a termination of this Agreement by reason of a failure of the
conditions set forth in Sections 8.1.5, 8.2.5 (by reason of a default of Baker
Hamilton only), or 8.2.7, Seller shall return the Option Payment to Buyer within
two (2) business days thereafter. Further, in the event of a termination of this
Agreement by reason of the failure of the conditions set forth in Sections 8.1.6
and 8.2.8 if Buyer has previously paid the Option Payment to Seller, Seller
shall return such Option Payment to Buyer within two (2) business days following
the date of termination. In the event of a default by Buyer, the return of the
Deposit and the disposition of the Option Payment shall be governed by the
provisions of Section 19.1. In the event of a default by Seller, the Deposit and
all interest accrued thereon and the Option Payment shall be returned to Buyer
within two (2) business days thereafter.
8.4 Satisfaction of Conditions. The occurrence of the Closing shall
constitute satisfaction of the conditions set forth in Sections 8.1 and 8.2 not
otherwise specifically satisfied or waived by Buyer or Seller.
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9. DELIVERIES INTO ESCROW.
9.1 Deliveries by Seller. One or before the Closing, Seller shall
deliver or cause to be delivered into Escrow the following documents duly
executed and acknowledged where appropriate:
9.1.1 Deed. A grant deed (the "Deed") in the form attached
hereto as Exhibit 9.1.1 conveying the Real Property to Buyer as provided in this
Agreement which Deed is to be duly executed and acknowledged by Seller;
9.1.2 Bill of Sale. Bill of sale ("Bill of Sale") in the form
attached hereto as Exhibit 9.1.2 conveying the Personal Property to Buyer which
Bill of Sale is to be duly executed by Seller;
9.1.3 Assignment. The Assignment in the form attached hereto
as Exhibit 9.1.3 which is to be duly executed by Seller and Buyer;
9.1.4 FIRPTA. Certificate of non-foreign status to confirm
that Buyer is not required to withhold part of the Purchase Price pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended which is to be
duly executed by Seller;
9.1.5 Form 593-W. Franchise Tax Board Form (593-W) which is to
be duly executed by Seller;
9.1.6 Seller's Authority. Such proof of Seller's authority and
authorization to enter into this Agreement and consummate the transaction
contemplated hereby and such proof of the power and authority of the
individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of Seller to act for and bind Seller as may be reasonably
required by Title Company; and
9.1.7 Other Documents. Such other documents as may be
reasonably necessary and appropriate to complete the Closing of the transaction
contemplated herein.
9.2 Deliveries by Buyer. On or before the Closing, Buyer shall
deliver or cause to be delivered into Escrow the following funds and documents
duly executed and acknowledged where appropriate:
9.2.1 Cash. The cash portion of the Purchase Price and such
additional sums as are necessary to pay the Buyer's share of closing costs,
prorations and any fees as more particularly set forth in Section 10 below;
9.2.2 Assignment. The Assignment which is to be duly executed
by Seller and Buyer;
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9.2.3 Buyer's Authority. Such proof of Buyer's authority and
authorization to enter into this Agreement and consummate the transaction
contemplated by this Agreement, and such proof of the power and authority of the
individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of Buyer to act for and bind Buyer as may be reasonably
required by Title Company; and
9.2.4 Other Documents.. Such other documents as may be
reasonably necessary and appropriate to complete the Closing of the transaction
contemplated herein.
9.3 Tenant Notification Letters. Seller shall execute a Tenant
Notification Letter in the form attached hereto as Exhibit 9.3 to each of the
Tenants, if any, pursuant to the Leases (the "Tenant Notification Letter"),
indicating the change of ownership of the Property with the name and address of
the Buyer and the Closing Date, and shall, upon the Closing, deliver the
executed Tenant Notification Letter to Buyer.
9.4 Delivery to Buyer Upon Closing. Seller shall deliver possession
of the Property to Buyer upon the Closing.
9.5 Delivery Following Closing. Concurrently with the Closing,
Seller shall deliver to Buyer outside of Escrow: (i) the originals of the
Leases, if any; (ii) the originals of the Service Contracts, if any; (iii) all
building plans and specifications with respect to the Real Property which are in
the possession of Seller or reasonably accessible to Seller or its property
manager; (iv) all structural reviews, architectural drawings, engineering,
soils, seismic, geologic and architectural reports in the possession of Seller
or reasonably accessible to Seller or its property manager; and (v) such other
matters and documents in the possession of Seller or reasonably accessible to
Seller or to its property manager as Buyer may reasonably request.
10. PRORATIONS; CLOSING COSTS; CREDITS.
10.1 Prorations.
10.1.1 Rent. Rents, revenue and other income from the Property
actually collected as of the Closing with respect to the Leases shall be
prorated through Escrow as of 12:01 a.m. on the Closing Date with Seller
entitled to the prorated portion of such items attributable to the period prior
to such date and time and Buyer entitled to the prorated portion of such items
as of and following such date and time. Any prepaid rent paid by the Tenants
pursuant to the Leases shall be credited to Buyer. If any rent or other payments
under the Leases are in arrears as of the Closing Date, Buyer shall use
reasonable efforts following the Closing to collect such rent or other payments
provided that in no event shall Buyer be obligated to commence litigation or
expend funds to effect collection. Nothing in this Section 10.1.1 shall restrict
Seller's right to collect delinquent rents directly from a Tenant by any legal
means; provided, however, that Seller shall have no right to terminate a Lease
or disturb a Tenant's possession.
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Delinquent rent collected by Seller from a Tenant subsequent to the Closing
shall be promptly paid to Buyer to the extent that Buyer is entitled to such
rent in connection with the period on and after the Closing Date, and delinquent
rent collected by Buyer from a Tenant subsequent to the Closing Date shall be
promptly paid to Seller to the extent that Seller is entitled to such rent
pursuant to the provisions of this Agreement relating to the period prior to the
Closing Date. Seller and Buyer agree that all rent from Tenants received by
Seller or Buyer following Closing shall be applied first to current rent, then
to delinquent rent, if any, for any period following the Closing, and then to
delinquent rent, if any, for periods prior to Closing.
10.1.2 Taxes and Assessments. All non-delinquent real estate
taxes on the Property payable by the owner shall be prorated through Escrow
based on the actual current tax bill as of 12:01 a.m. on the Closing Date with
Seller responsible for all such taxes attributable to the period prior to such
date and time and Buyer responsible for all such taxes attributable to the
period as of and following such date and time. If after the Closing,
supplemental real estate taxes are assessed against the Property by reason of
any event occurring prior to the Closing Date, Buyer and Seller shall adjust the
proration of the real estate taxes following the Closing. Any delinquent taxes
and assessments on the Property shall be paid at the Closing from funds accruing
to Seller. Any current installments with respect to assessments on the Real
Property shall be prorated through Escrow as of 12:01 a.m. on the Closing Date
and Seller shall have no obligation to pay any amount with respect to any such
assessments other than the prorated current installment and any delinquent
installments. Any refund in connection with real estate taxes relating to the
Property attributable to the period prior to the Closing Date shall be paid to
Seller.
10.1.3 Utility Charges. Utility charges payable by the owner of
the Real Property, and all other customary charges or costs incident to the
ownership of the Property shall be prorated through Escrow as of 12:01 a.m. on
the Closing Date. Seller shall be responsible for all such utility charges
payable by Seller accruing and attributable to the Property through the day
prior to the Closing Date and Buyer shall be responsible for all such utility
charges accruing and attributable to the Property commencing as of the Closing
Date. Seller, as landlord under the Leases, may be currently collecting from
Tenants under the Leases additional rent to cover taxes, insurance, utilities(to
the extent not paid directly by a Tenant), any other maintenance, operating
costs, and expenses (collectively, "Operating Costs") in connection with the
ownership, operation, maintenance, and management of the Property. Tenant
reimbursements for Operating Costs shall be prorated in the same manner as rents
are prorated under Section 10.1.1 above. Seller shall not assign to Buyer any
deposits, if any, which Seller has with any utility companies servicing the
Property. Buyer shall arrange with such companies to have accounts opened in
Buyer's name beginning at 12:01 a.m. on the Closing Date. To the extent
possible, Seller shall obtain billings and meter readings as of the Closing Date
and all utility charges to be prorated between Seller and Buyer shall be
prorated based
18
upon the information then available. Seller and Buyer shall make any adjustments
required to be made subsequent to the Closing in the event the information
available at the Closing is incorrect, which adjustments shall include, without
limitation, any adjustments required in connection with the Operating Costs,
which adjustments shall be made in a reasonable period following the
availability of correct or adjusted information.
10.1.4 Service Contracts. Amounts payable pursuant to Service
Contracts to be assumed by Buyer shall be prorated through Escrow as of 12:01
a.m. on the Closing Date. Seller shall be responsible for such amounts accruing
and attributable to the Property through the day prior to the Closing Date and
Buyer shall be responsible for such amounts accruing and attributable to the
Property commencing as of the Closing Date. Such amounts shall be prorated
between Seller and Buyer based upon information available as of the Closing and
Seller and Buyer shall make any adjustments required to be made subsequent to
the Closing in the event that the information available at the Closing is
incorrect.
10.1.5 Calculation of Prorations. All prorations shall be made
on the basis of the actual number of days of the month which have elapsed as of
12:01 a.m. on the Closing Date.
10.1.6 Proforma Closing Statement. Buyer and Seller shall
reasonably cooperate to produce at least one business day prior to the Closing
Date, a schedule of prorations in accordance with the provisions of this
Agreement which is as complete and accurate as is then reasonably possible. All
prorations which can be reasonably estimated as of the Closing Date shall be
made in Escrow on the Closing Date. All other prorations and any adjustments to
the initial estimated prorations, shall be made by Buyer and Seller within
thirty (30) days following the Closing or such later time as may be reasonably
required, in the exercise of due diligence to obtain the necessary information.
Any net credit due one party from the other as the result of such post-Closing
prorations and adjustments shall be paid to the other in cash immediately upon
the parties' written agreement to a final schedule of post-Closing adjustments
and prorations.
10.2 Closing Costs.
10.2.1 Seller's Costs. Seller shall pay (i) all county and city
documentary transfer and other transfer or conveyance taxes; (ii) fifty percent
(50%) of all recording costs, and (iii) its own attorneys' fees.
10.2.2 Buyer's Costs. Buyer shall pay (i) one hundred percent
(100%) of all escrow fees and fifty percent (50%) of all recording costs; (ii)
the premium for the Buyer's Title Policy, including the premium for any
endorsements; (iii) the premium for the Buyer's lender's title policy, if any;
(iv) the cost of the Survey; and (v) its own attorneys' fees.
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10.2.3 Credits. Buyer shall be credited and Seller shall be
debited in an amount equal to all cash security deposits owing to any Tenants
with respect to the Leases, except to the extent that Seller was entitled to and
did apply any part of such deposits to Tenant obligations under the Leases.
Seller shall assign to Buyer at Closing, at Seller's cost and expense (as
between Seller and Buyer), any non-cash security deposits such as letters of
credit made by the Tenants under the Leases.
10.2.4 Other Expenses. Buyer and Seller shall each pay all
legal and professional fees and fees of other consultants incurred by Buyer and
Seller respectively.
10.3 City Fees. It is acknowledged that a transit impact development
fee is due to the City of San Francisco in connection with the use of the Real
Property for offices, which fee is in the amount of Two Hundred Sixty-Five
Thousand Five Hundred Eighty Dollars ($265,580) as set forth in the letter dated
July 12, 2000 from Mr. Steven Nickerson, Administrator, Municipal San Francisco
Railroad ("MUNI"). Buyer shall be responsible for the payment of such transit
impact development fee in such amount. Buyer shall, in addition, be responsible
for the unpaid child care fee owing to the City of San Francisco in connection
with the Real Property.
11. OPERATION OF PROPERTY PENDING THE CLOSING. Following the Effective Date
and pending the Closing, the Seller shall operate the Property in accordance
with the following:
11.1 Normal Course of Business. Seller shall continue to operate,
manage and maintain the Property in such condition so that the Property shall be
in the same condition as of the Closing Date as it is as of the Effective Date,
reasonable wear and tear and casualty excepted. In no event shall Seller be
required to improve the Real Property or to undertake any expenditures resulting
in improvement of the Real Property. Seller shall maintain liability and
property insurance policies in connection with the Property and shall keep in
effect and renew without modification all licenses, permits and entitlements
applicable to the Property. Seller's existing liability and property insurance
pertaining to the Property will be canceled by Seller as of the Closing Date.
11.2 Further Encumbrances. Seller shall not voluntarily execute any
documents or otherwise take any action which will have the result of further
encumbering the Property in any fashion;
11.3 Leasing. Seller shall not terminate, amend or otherwise modify
the Leases, or enter into any new lease, without the prior consent of Buyer,
which consent shall not be unreasonably withheld or delayed prior to the
Expiration Date, and which consent may be withheld by Buyer in its sole
discretion if Buyer shall exercise the Option; and
11.4 New Obligations. Without the prior written consent of Buyer,
which consent shall not be unreasonably withheld or delayed, Seller shall not
enter into any
20
maintenance contract, service contract or any other contract affecting or
relating to the Property or any portion thereof which cannot be canceled upon
thirty (30) days (or less) prior written notice.
12. REPRESENTATIONS AND WARRANTIES.
12.1 No Representations or Warranties by Seller. Except as expressly
set forth in this Agreement, Seller has not made any warranty or representation,
express or implied, written or oral, concerning the Property.
12.2 Seller's Representations and Warranties. Seller represents and
warrants to Buyer that:
12.2.1 Authority. This Agreement constitutes the valid and
binding obligation of Seller and is enforceable against Seller in accordance
with its terms, subject to bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally and general equitable principles.
Seller is a limited liability company, validly formed, duly organized and in
good standing under the laws of the State of California. Seller has full power
and authority to enter into this Agreement, to perform its obligations
hereunder, and to consummate the transactions and conveyances contemplated
hereby, and each of the persons signing this Agreement or any other document or
instrument contemplated hereby on behalf of Seller is authorized to do so. The
execution and delivery of this Agreement, delivery of money and all required
documents, Seller's performance of this Agreement and the transaction
contemplated hereby have been duly authorized by all requisite action on the
part of Seller, and no consent or approval of any third party is required for
the execution and delivery hereof by Seller, Seller's performance hereof, or the
consummation of the transactions contemplated hereby on Seller's part, except
for such consents or approvals as have been obtained and remain in full force
and effect. Neither the execution and delivery of this Agreement, nor the
transaction contemplated by this Agreement will conflict in any material respect
with, or constitute a breach under, any agreement or instrument to which Seller
is a party or by which Seller or the Property is bound;
12.2.2 Service Contracts. The Service Contracts listed on
Exhibit 2.3(ii) are all of the agreements concerning the operation and
maintenance of the Property to which Seller is a party; and excepting for any
such matters which Buyer has agreed in writing to permit to remain in effect
following the Closing, no such agreements will continue to be binding on the
Real Property or a successor owner of the Real Property after Closing;
12.2.3 Condemnation. Seller has received no written notice of,
and to Seller's knowledge there are no, pending or threatened condemnation
proceedings against or relating to the Real Property;
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12.2.4 Litigation. Except as disclosed to Buyer in writing
prior to the Effective Date and listed on Schedule 12.2.4 to this Agreement, (or
as subsequently disclosed in writing to, and approved in writing by, Buyer) no
litigation has been served on Seller, and to Seller's knowledge, no litigation
is otherwise pending or threatened against Seller, to restrain or enjoin the
sale or transfer of the Property to Buyer, or which challenges the existence or
power of Seller or Seller's authority to enter into or perform under this
Agreement, or which asserts a claim of ownership of the Property or any interest
therein, or which claims any right to occupy or use the Real Property or any
portion thereof, or which could adversely affect the use or value of the
Property, or which, if determined adversely to Seller, might materially
adversely affect Seller's ability to perform its obligations under this
Agreement or to consummate the transactions contemplated hereby;
12.2.5 Violations. Except as disclosed to Buyer in writing
prior to the Effective Date and listed on Schedule 12.2.5 to this Agreement, (or
as subsequently disclosed in writing to, and approved in writing by, Buyer),
Seller has not received written notice asserting or alleging the existence of,
and to Seller's knowledge there are no, uncured violations of any federal, state
or local law or any covenant or restriction of record which would adversely
affect the value or marketability of the Property or the ability to make use
thereof, or Seller's ability to perform hereunder. Except as disclosed to Buyer
in writing prior to the Effective Date and listed on a schedule to this
Agreement (or as subsequently disclosed in writing to, and approved in writing
by, Buyer), Seller has not received written notice asserting or alleging the
existence of, and to Seller's knowledge, there are no, uncured building code
violations, health and safety code violations, federal, state or local agency
actions regarding environmental matters or zoning violations currently affecting
the Real Property.
12.2.6 Access. To the best of Seller's knowledge, no fact or
condition exists which may result in the termination or reduction of the current
access from the Real Property to existing roads and highways;
12.2.7 Foreign Person. Seller is not a "foreign person" as
defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and
the income tax regulations issued thereunder;
12.2.8 Leases. Except for the Leases listed in Exhibit 2.3(i),
true, correct and complete copies of which have been delivered or made available
by Seller to Buyer, there are no leases, rental agreements or other agreements
for the occupancy, use or possession of any portion of the Real Property, and no
person, other than the Tenants listed in such exhibit, has any right of
occupancy, use or possession with respect to the Real Property or any portion
thereof; except as disclosed on Schedule 12.2.8 attached hereto, such Leases are
in full force and effect, and the Tenants thereunder are not in default and have
no rights of setoff, abatement or deduction from the rent payable thereunder;
and the landlord under the Leases has no outstanding obligation to provide
22
any Tenant with an allowance to construct, or to construct at its own expense,
any tenant improvements, or to pay any other amounts to or for the account of
any Tenant;
12.2.9 Leasing Commissions. Except as disclosed to Buyer in
writing prior to the Effective Date and listed on Schedule 12.2.9 to this
Agreement (or subsequently disclosed in writing to, and approved in writing by
Buyer), there are no leasing commissions or other compensation required to be
paid in connection with the Leases as of the date hereof, at any time during the
Term of such Leases or upon extension or renewal thereof;
12.2.10 Developmental Requirements. Except as listed on Schedule
12.2.10 attached hereto, Seller has fully performed all of Seller's obligations
to any governmental authority, and all conditions of any consent, approval or
authorization imposed by any governmental authority, arising out of or in
connection with Seller's construction, renovation and/or rehabilitation of the
Improvements or the use or occupancy of the Real Property, including, without
limitation, the payment in full of all permit or license fees or charges, in
lieu payments, contributions to housing or other funds, dedication of property
to the public or for a public purpose and the payment and/or performance of all
other governmental exactions of any kind or nature.
12.2.11 Hazardous Materials. To Seller's knowledge the Real
Property is in compliance with all Hazardous Materials Laws (as hereinafter
defined); and any underground or aboveground storage tanks removed by Seller
from the Real Property have been removed in compliance with applicable Hazardous
Materials Laws. For the purposes of this Agreement, "Hazardous Materials" shall
mean any oil or petroleum products, flammable explosives, asbestos, urea
formaldehyde insulation, radioactive materials, or other hazardous or toxic
substance, material or waste which is regulated by any federal, state or local
governmental authority; and "Hazardous Materials Laws" means all federal, state
and local statutes, ordinances, rules and regulations relating to Hazardous
Materials, including those pertaining to health, safety, industrial hygiene or
the environment, such as, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Resource
Conservation and Recovery Act of 1976, as amended, and any similar state laws;
12.2.12 Utilities. To Seller's knowledge, all electric, natural
gas, telephone, storm drainage, water, sewer service and other utility services
required for the use, occupancy and operation of the Real Property for the
purposes for which Seller has heretofore used, occupied and operated the Real
Property are available to the Real Property, provided, however, that it is
acknowledged that the Real Property is unoccupied and that tenant Improvements
and certain other matters with respect to the Real Property have not been
completed, such that certain of the utility services have not been fully
implemented or connected to the Improvements; and.
23
12.3 Buyer's Representations and Warranties. Buyer represents and
warrants to Seller that:
12.3.1 Authority to Execute; Organization. This Agreement
constitutes the valid and binding obligation of Buyer and is enforceable against
Buyer in accordance with its terms, subject to bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles. Buyer is a corporation, validly formed, duly
organized, and in good standing under the laws of the State of Delaware. Buyer
has full power and authority to enter into this Agreement, to perform its
obligations hereunder, and to consummate the transactions contemplated hereby,
and each of the persons signing this Agreement or other document or instrument
contemplated hereby on behalf of Buyer is authorized to do so. The execution and
delivery of this Agreement, delivery of money and all other required documents,
Buyer's performance of this Agreement and the transactions contemplated hereby
have been, or prior to the duly authorized by all requisite action on the part
of Buyer and no consent or approval of any third party is required for the
execution and delivery hereof by Buyer, Buyer's performance hereof or the
consummation of the transaction contemplated hereby on Buyer's part, except for
such consents or approvals as have been obtained and remain in full force and
effect and except for the consent of Buyer's Board of Directors, which consent
is required in connection with the exercise of the Option by Buyer. Neither the
execution and delivery of this Agreement, nor the transaction as contemplated by
this Agreement will conflict in any material respect with, or constitute a
breach under, any agreement or instrument to which Buyer is a party, or to which
Buyer is bound;
12.3.2 No Encumbrance. Prior to Closing, Buyer shall neither
encumber nor cause any liens to be created against the Property in any way, nor
shall Buyer, at any time, record this Agreement or a memorandum thereof; and
12.3.3 Principal; Financial Resources. Buyer is acting as a
principal in connection with the transaction as contemplated by this Agreement
and presently possesses, and will possess as of the Closing, the financial
resources to timely consummate the purchase and sale transaction contemplated by
this Agreement.
12.4 Knowledge Defined. References to the "knowledge" of Seller shall
refer only to the current actual knowledge of Ronaldo Cianciarulo and shall not
be construed, by imputation or otherwise, to refer to the knowledge of any
affiliate of Seller, to any property manager, or to any other officer, agent,
manager, representative or employee of Seller or any affiliate thereof or to
impose upon such person any duty to investigate the matter to which such actual
knowledge, or the absence thereof, pertains.
13. INDEMNIFICATION.
13.1 Indemnification of Buyer. Seller hereby agrees to indemnify
Buyer against, and to hold Buyer harmless from, all claims, losses, damages,
liabilities, costs and
24
expenses, including, but not limited to, reasonable legal fees and disbursements
("Claims") incurred or suffered by Buyer relating to the Property which arise,
result from, or relate to (i) acts, occurrences, or matters that took place
prior to the Closing, to the extent that any such Claim described in this clause
(i) is covered by the commercial general liability insurance policy or other
applicable insurance coverage maintained by Seller, and, in this connection,
Seller represents and warrants that Seller has, during the period of its
ownership, maintained and continues to maintain commercial general liability
insurance coverage with respect to its ownership of the Real Property with a
coverage limit not less than One Million Dollars ($1,000,000) per occurrence; or
(ii) any breach of any of the representations or warranties of Seller set forth
in Section 12.2 of this Agreement subject, however, to the limitations of
Section 17.4. Without limiting the foregoing and without regard to whether or
not any such matter is covered by Seller's liability insurance as provided
above, Seller hereby represents and warrants to Buyer that no other party holds
any right or option to purchase or otherwise acquire the Property, any portion
thereof or any interest therein, except for Omnicom, as more particularly
described in Section 8.1.6, and Seller shall indemnify, defend and hold Buyer
harmless from and against any Claims suffered or incurred by Buyer by reason of
any party other than Omnicom asserting any such right or option against Seller
or Buyer. Notwithstanding the above sentence, it is acknowledged that the
Tenants, if any, hold possessory rights pursuant to their respective Leases in
connection with portions of the Real Property.
13.2 Defense of Claims Against Buyer. With respect to any Claim for
which Buyer has requested indemnification under Section 13.1, Seller shall be
entitled to assume the defense of any related litigation, arbitration or other
proceeding, provided that Buyer may at its election and expense, participate in
such defense, and provided further that if there is any difference of opinion or
strategy with respect to the defense of such action or the assertion of
counterclaims to be brought with respect thereto, Seller's counsel will, after
consultation with Buyer's counsel, determine the actual strategy, defense or
counterclaim to be employed. At Seller's reasonable request, Buyer will
cooperate with Seller in the preparation of any defense for any such Claim and
Seller will reimburse Buyer for any reasonable expenses incurred in connection
with such request. If Seller does not elect to assume the defense of any such
matter and such matter is defended by Buyer, Seller shall have the right, at its
sole expense, to employ separate counsel acceptable to Buyer and participate in
such defense, provided that if there is any difference of opinion or strategy
with respect to the defense of such action or the assertion of counterclaims to
be brought with respect thereto, Buyer's counsel will, after consultation with
Seller's counsel, determine the actual strategy, defense and/or counterclaim to
be employed.
13.3 Indemnification of Seller. Buyer hereby agrees to indemnify
Seller against, and to hold Seller harmless from, all Claims incurred or
suffered by Seller relating to the Property which arise, result from or relate
to (i) acts, occurrences or matters that take
25
place subsequent to the Closing to the extent that any such Claim described in
this clause (i) is covered by a commercial general liability insurance policy or
other applicable insurance coverage maintained by Buyer, and, in this
connection, Buyer represents and warrants that Buyer will, during the period of
its ownership, maintain commercial general liability insurance coverage with
respect to its ownership of the Real Property; or (ii) any breach of any of the
representations or warranties of Buyer set forth in Section 12.3 of this
Agreement.
13.4 Defense of Claims Against Seller. With respect to any Claim for
which Seller has requested indemnification under Section 13.3, Buyer shall be
entitled to assume the defense of any related litigation, arbitration or other
proceeding, provided that Seller may at its election and expense, participate in
such defense, and provided further that if there is any difference of opinion or
strategy with respect to the defense of such action or the assertion of
counterclaims to be brought with respect thereto, Buyer's counsel will, after
consultation with Seller's counsel, determine the actual strategy, defense or
counterclaim to be employed. At Buyer's reasonable request, Seller will
cooperate with Buyer in the preparation of any defense for any such Claim and
Buyer will reimburse Seller for any reasonable expenses incurred in connection
with such request. If Buyer does not elect to assume the defense of any such
matter, and such matter is defended by Seller, Buyer shall have the right, at
its sole expense, to employ separate counsel acceptable to Seller and
participate in such defense, provided that if there is any difference of opinion
or strategy with respect to the defense of such action or the assertion of
counterclaims to be brought with respect thereto, Seller's counsel will, after
consultation with Buyer's counsel, determine the actual strategy, defense and/or
counterclaim to be employed.
14. CASUALTY OR CONDEMNATION.
14.1 Notice of Casualty. If, following the exercise of the Option and
prior to the Closing Date, any part of the Real Property is damaged or destroyed
by earthquake, flood, landslide, fire or other casualty ("Casualty"), Seller
shall promptly notify Buyer of such fact.
14.1.1 Insured Casualty. If any Improvements located upon the
Real Property are destroyed or substantially damaged by a Casualty during the
period following the exercise of the Option and prior to the Closing, and such
damage is fully covered (except for a deductible or self-insured retention not
exceeding Twenty-Five Thousand Dollars ($25,000)) by insurance carried by Seller
(an "Insured Casualty"), and the cost of repairing or restoring the damaged
Improvements (as agreed between Buyer and Seller or as determined under Section
14.1.4) ("Restoration Costs") shall exceed One Million Dollars ($1,000,000) (the
"Insured Casualty Threshold Amount"), Buyer shall have the right to terminate
this Agreement by giving Seller written notice of termination within ten (10)
business days following the date of receipt of Seller's notice of the occurrence
of such destruction or damage (or if a longer period of time is
26
reasonably required to determine whether a Casualty is an Insured Casualty, or
to agree upon or determine Restoration Costs, within five (5) business days
after the amount of Restoration Costs has been determined and Buyer has received
written confirmation, in a form reasonably satisfactory to Buyer, from Seller's
insurance carrier or carriers that Seller's insurance will cover such damage).
If this Agreement is so terminated, then neither party shall have any further
rights or obligations hereunder (except with respect to those matters expressly
stated to survive such termination), the Deposit, and all interest accrued
thereon, shall be returned to Buyer within two (2) business days thereafter, and
each party shall bear its own costs incurred hereunder. In all events, however,
Seller shall be entitled to retain the Option Payment. If Buyer does not elect
to terminate this Agreement, or if damage to such Improvements occurs, the
Restoration Costs of which are less than the Insured Casualty Threshold Amount,
Buyer shall remain obligated to perform all of its obligations under this
Agreement, and at Closing, Buyer shall receive a credit against the Purchase
Price in the amount of any insurance proceeds collected and retained by Seller
as a result of any such damage or destruction (other than proceeds of business
interruption insurance), plus the amount of any applicable policy deductible
(but reduced by the costs of any repairs performed by Seller with Buyer's
approval, which approval shall not be unreasonably withheld), and Seller shall
assign to Buyer all rights to such insurance proceeds (other than proceeds of
business interruption insurance relating to periods prior to the Closing) as
shall not have been collected prior to the Closing. Buyer shall have the right
to participate in any adjustment of the insurance claim in connection with any
Casualty, whether or not such Casualty is an Insured Casualty.
14.1.2 Uninsured Casualty. If any Improvements located upon the
Real Property are destroyed or substantially damaged during the period following
the exercise of the Option and prior to the Closing by a Casualty which is not
an Insured Casualty, and the Restoration Costs (as agreed between Buyer and
Seller or as determined under Section 14.1.4) shall exceed the available
insurance proceeds, if any (other than proceeds of business interruption
insurance), by more than Two Hundred Thousand Dollars ($200,000) (the "Uninsured
Casualty Threshold Amount"), Buyer shall have the right to terminate this
Agreement by giving Seller written notice of termination within ten (10)
business days following the date of receipt of Seller's notice of the occurrence
of such destruction or damage (or if a longer period of time is reasonably
required to determine whether a Casualty is or is not an Insured Casualty, or to
agree upon or determine Restoration Costs or the amount of insurance proceeds
which will be available, within five (5) business days after all such
determinations have been made); whereupon this Agreement shall terminate, except
as specified in Section 14.1.3. If this Agreement is so terminated, then neither
party shall have any further rights or obligations hereunder (except with
respect to those matters expressly stated to survive such termination), the
Deposit, and all interest accrued thereon, shall be returned to Buyer within two
(2) business days thereafter, and each party shall bear its own costs incurred
hereunder. In all events, however, Seller shall be entitled to retain the Option
Payment. If (a) damage to such Improvements occurs, but the Restoration Costs,
less the available insurance
27
proceeds, if any (other than proceeds of business interruption insurance), is
less than or equal to the Uninsured Casualty Threshold Amount, or if (b) Buyer
does not elect to terminate this Agreement, or if (c) Buyer elects to terminate
this Agreement, but this Agreement nevertheless does not terminate due to the
operation of Section 14.1.3, then, in any of such cases, Buyer shall remain
obligated to perform all of its obligations under this Agreement, and at
Closing, Buyer shall receive a credit against the Purchase Price in the amount
of (A) any insurance proceeds collected and retained by Seller as a result of
any such damage or destruction (other than proceeds of business interruption
insurance relating to periods prior to the Closing), plus (B) an amount equal to
the lesser of (i) the uninsured Restoration Costs, or (ii) Two Hundred Thousand
Dollars ($200,000); plus (C) if Section 14.1.3 is applicable, the Additional
Amount specified in Section 14.1.3; but reduced by the costs of any repairs
performed by Seller with Buyer's approval, which approval shall not be
unreasonably withheld, and Seller shall assign to Buyer all rights to such
insurance proceeds as shall not have been collected prior to the Closing (other
than proceeds of business interruption insurance relating to periods prior to
close of escrow). Buyer shall have the right to participate in any adjustment of
the insurance claim in connection with any Casualty, whether or not such
Casualty is an Insured Casualty.
14.1.3 Additional Credit. If any Improvements located upon the
Real Property are destroyed or substantially damaged during the period following
the exercise of the Option and prior to the Closing by a Casualty which is not
an Insured Casualty, and the Restoration Costs (as agreed between Buyer and
Seller or as determined under Section 14.1.4) shall exceed the available
insurance proceeds, if any (other than proceeds of business interruption
insurance), by an amount greater than the Uninsured Casualty Threshold Amount,
and as a result, Buyer gives notice of termination of this Agreement pursuant to
Section 14.1.2, Seller shall have the right, at its option, for a period of five
(5) business days after Buyer's notice of termination is given, to give notice
to Buyer by which Seller agrees to reduce the Purchase Price by the amount (the
"Additional Amount") by which the Restoration Costs, less the amount of any
available insurance proceeds (other than proceeds of business interruption
insurance), exceeds the Uninsured Casualty Threshold Amount. In such event,
Buyer's notice of termination given under Section 14.1.2 shall be of no effect,
this Agreement shall not be terminated, and the Purchase Price shall be reduced
by giving Buyer a credit at Closing for the Additional Amount as specified in
this Section 14.1.3 above; provided, however, that if the Additional Amount so
computed equals or exceeds Two Million Dollars ($2,000,000), then
notwithstanding the foregoing, Seller's agreement to reduce the Purchase Price
by crediting Buyer the Additional Amount will become effective, and this
Agreement will not be terminated, only if Buyer agrees to accept such price
reduction and purchase the Property.
14.1.4 Arbitration of Disputes. In the event Seller and Buyer
cannot mutually agree upon the amount of Restoration Costs, such disputed amount
shall be determined in the manner provided in Exhibit 14.1.4 attached hereto.
Either Party may
28
invoke the provisions of this Section 14.1.4 at any time that a dispute as to
any such amount exists, by delivering written notice to the other party. With
respect to the arbitration provided for in this Section 14.1.4, the Parties
agree as follows:
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISIONS
IN THIS AGREEMENT DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW
AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED
IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP
YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE
SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED
TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING
OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO
NEUTRAL ARBITRATION.
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
-------------------------- ------------------------------
Seller's Initials Buyer's Initials
14.1.5 Postponement of Closing. If any of the Improvements
located upon the Real Property are destroyed or substantially damaged during the
period following the exercise the Option and this Agreement is not terminated as
a result thereof, the scheduled Closing shall be postponed to the extent
reasonably necessary to determine whether a Casualty is or is not an Insured
Casualty, to agree upon or determine Restoration Costs or the amount of
insurance proceeds which will be available, or to determine whether this
Agreement will be terminated. Once it has been determined that this Agreement
will not be terminated, and such other matters as may be relevant have also been
determined, either party may give notice to the other requiring that the Closing
occur not more than ten (10) business days following the date such notice is
given.
14.2 Condemnation. Provided that Buyer has exercised the Option, in
the event that all or any portion of the Real Property shall be taken in
condemnation or under the right of eminent domain after the Effective Date and
before the Closing Date, Buyer, notwithstanding such taking, shall be obligated
to proceed to close the transaction contemplated herein pursuant to the terms
hereof and Seller shall assign and turn over to Buyer, and Buyer shall be
entitled and receive and keep all awards for the taking by eminent domain which
accrue to Seller and there shall be no reduction in the Purchase Price.
29
15. COMMISSIONS.
Seller represents and warrants to Buyer that no real estate broker or
agent has been authorized to act on Seller's behalf, in connection with the
transaction as contemplated by this Agreement. Buyer represents and warrants to
the Seller that no real estate broker or agent has been authorized to act on
Buyer's behalf in connection with the transaction as contemplated by this
Agreement, except for Cushman & Wakefield ("Buyer's Broker"). Buyer and Seller
each indemnifies the other party and agrees to defend and hold the other party
harmless from any and all Claims which now or hereafter may be asserted against
the other party for any brokerage fees, finder's fees, commissions or similar
types of compensation which may be claimed by any person as a result of the
indemnifying party's acts in connection with this transaction, except as
otherwise provided herein.
16. NOTICES.
All notices, requests or demands to a party hereunder shall be in
writing and shall be given or served upon the other party by personal service,
by certified return receipt requested or registered mail, postage prepaid, or by
Federal Express or other nationally recognized commercial courier, charges
prepaid, addressed as set forth below. Any such notice, demand, request or other
communication shall be deemed to have been given upon the earlier of personal
delivery thereof, three (3) business days after having been mailed as provided
above, or one (1) business day after delivery to a commercial courier for next
business day delivery, as the case may be. Each party shall be entitled to
modify its address by notice given in accordance with this Section 16.
If to Seller: Townsend 625, LLC
601 Townsend Street, Suite 107
San Francisco, CA 94103
Attention: Ronaldo Cianciarulo
With a copy to: Kay & Merkle
100 The Embarcadero, Penthouse
San Francisco, CA 94105
Attn: Walter F. Merkle, Esq.
If to Buyer: Macromedia, Inc.
600 Townsend Street, Suite 310W
San Francisco, CA 94103
Attn: Loren Hillberg
With a copy to: Heller Ehrman White and McAuliffe
333 Bush Street
San Francisco, California 94104
Attn: Carl Johnson, Esq.
30
17. LIMITATIONS ON REPRESENTATIONS AND WARRANTIES.
17.1 No Reliance on Documents. Except as expressly stated herein,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered by Seller or its
agents to Buyer in connection with the transaction contemplated hereby. Buyer
acknowledges and agrees that all materials, data and information delivered by
Seller to Buyer in connection with the transaction contemplated hereby are
provided to Buyer as a convenience only and that any reliance on or use of such
materials, data or information by Buyer shall be at the sole risk of Buyer.
Neither Seller, nor any affiliate of Seller, nor the person or entity which
prepared any report or reports delivered by Seller to Buyer shall have any
liability to Buyer for any inaccuracy in or omission from any such reports.
17.2 As-Is Sale: Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT
ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND
CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL
FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT.
BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND
BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS
OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING
SPECIFICALLY, WITHOUT LIMITATION, OFFERING PACKAGES DISTRIBUTED WITH RESPECT TO
THE PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGER OF THE PROPERTY, OR ANY
EMPLOYEES OR AGENTS REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER
MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY
SET FORTH IN THIS AGREEMENT. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE
REFLECTS AND TAKES INTO ACCOUNT THAT, EXCEPT WITH RESPECT TO THE EXPRESS
REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH IN THIS AGREEMENT, THE
PROPERTY IS BEING SOLD "AS-IS."
BUYER REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR WILL CONDUCT
PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED
TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY
31
OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE
EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY
HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY
SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER
OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH
IN THIS AGREEMENT. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL
AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S
INVESTIGATIONS, AND, EXCEPT WITH RESPECT TO SELLER'S EXPRESS REPRESENTATIONS,
WARRANTIES, AND COVENANTS SET FORTH IN THIS AGREEMENT OR ANY DOCUMENT EXECUTED
BY SELLER AND DELIVERED PURSUANT TO THIS AGREEMENT AT CLOSING, BUYER, UPON
CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND
SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, PROPERTY MANAGER
AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST
SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES,
PROPERTY MANAGER AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY
LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS AND ANY VIOLATIONS
OF ANY HAZARDOUS MATERIALS LAWS REGARDING THE PROPERTY. BUYER HEREBY WAIVES THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES THAT:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
-------------------------- ------------------------------
Buyer's Initials Seller's Initials
17.3 Material Change. Seller shall promptly notify Buyer in writing
of any change in any condition with respect to the Property or any event or
circumstance which makes any representation or warranty of Seller as set forth
in Section 12.2 of this
32
Agreement materially untrue or misleading or any covenant of Seller under this
Agreement incapable of being performed. In no event shall Seller be liable to
Buyer for, or be deemed to be in default pursuant to this Agreement by reason of
any inaccuracy of a representation or warranty which results from any change
that (i) occurs between the Effective Date and the Closing Date; and (ii) is
expressly permitted under the terms of this Agreement or is beyond the
reasonable control of Seller to prevent; provided, however, that the occurrence
of a material change which is not permitted hereunder will constitute the
non-fulfillment of the condition set forth in Section 8.2.2 hereof. If, in spite
of such non-fulfillment of the conditions set forth in such Section 8.2.2 the
Closing occurs, Seller's representations and warranties set forth in this
Agreement shall be deemed to have been modified by all statements made in any
notice or notices of modification as given by Seller to Buyer pursuant to this
Section 17.3 prior to the Closing.
17.4 Survival of Seller's Representations and Warranties. The
representations and warranties of Seller set forth in Section 12.2 hereof (as
such may have been updated as of the Closing in accordance with Section 17.3) in
accordance with the terms of this Agreement, shall survive Closing for a period
of twelve (12) months. No claim for a breach of any representation or warranty
of Seller shall be actionable or payable if the breach in question results from
or is based on a condition, state of facts, or other matter, which was actually
known to Buyer prior to the Closing. Seller shall have no liability to Buyer for
a breach of any representation or warranty unless and until the valid claims for
all such breaches collectively aggregate more than Fifty Thousand Dollars
($50,000) (including all claims arising in relation to the King Street Agreement
and the 601 Agreement), in which event the amount of such valid claims in excess
of Fifty Thousand Dollars ($50,000) shall be actionable, up to the Maximum (as
defined in this Section), and unless written notice containing a description of
the specific nature of such breach shall have been given by Buyer to Seller
prior to the expiration of said twelve (12) month period and any action shall
have been commenced by Buyer against Seller within fourteen (14) months of
Closing. Buyer agrees to first seek recovery under any insurance policies,
Service Contracts and the Leases, as applicable, prior to seeking recovery from
Seller (although the foregoing shall not prevent Buyer from commencing an action
against Seller to recover such damages), and Seller shall not be liable to Buyer
if Buyer's remaining claim after recovery from such insurance policies, Service
Contracts and/or Leases is less than Fifty Thousand Dollars ($50,000). As used
herein, the tern "Maximum" shall mean the total aggregate amount (including
claims arising under or in relation to the 601 Agreement and King Street
Agreement) of Five Million Dollars ($5,000,000). References to "known to Buyer"
shall refer only to the current actual knowledge of James Morgensen and shall
not be construed, by imputation or otherwise, to refer to the knowledge of any
affiliate of Buyer, or to any other officer, agent, manager, representative or
employee of Buyer or any affiliate thereof or to impose upon such person any
duty to investigate the matter to which such actual knowledge, or the absence
thereof, pertains.
33
17.5 Survival of Limitations. The provisions of this Article 17 shall
survive Closing or any termination of this Agreement.
18. MISCELLANEOUS.
18.1 Time. Time is of the essence in the performance of each party's
obligations hereunder; however, if the final date of any period which is set out
in any provision of this Agreement falls on a Saturday, Sunday or legal holiday
under the laws of the United States or the State in which the Property is
located, then, in such event, the time of such period shall be extended to the
next day which is not a Saturday, Sunday or legal holiday.
18.2 Attorneys' Fees. If any legal action, arbitration or other
proceeding is commenced to enforce or interpret any provision of this Agreement,
the prevailing party shall be entitled to an award of its attorneys' fees and
expenses. The phrase "prevailing party" shall include a party who receives
substantially the relief desired whether by dismissal, summary judgment,
judgment or otherwise.
18.3 No Waiver. No waiver by any party of the performance or
satisfaction of any covenant or condition shall be valid unless in writing and
shall not be considered to be a waiver by such party of any other covenant or
condition hereunder.
18.4 Entire Agreement. This Agreement contains the entire agreement
between the parties regarding the Property and supersedes all prior agreements,
whether written or oral, between the parties regarding the same subject. This
Agreement may only be modified in writing.
18.5 Survival. The provisions of this Agreement shall not merge with
the delivery of the Deed but shall, except as otherwise provided in this
Agreement, survive the Closing.
18.6 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the heirs, executors, administrators and successors and
assigns of Seller and Buyer. Buyer shall have the right to assign Buyer's rights
and obligations pursuant to this Agreement to any party without the prior
written consent of Seller; provided, however, that Buyer shall not be released
from liability under this Agreement by reason of any such assignment and Buyer
shall give Seller written notice of any such assignment at least ten (10) days
prior to the Closing.
18.7 Severability. In the case that any one or more of the provisions
contained in this Agreement are for any reason held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
34
18.8 Captions. Paragraph titles or captions contained in this
Agreement are inserted as a matter of convenience only and for reference, and in
no way define, limit, extend or describe the scope of this Agreement.
18.9 Exhibits. All exhibits attached hereto shall be incorporated
herein by reference as if set out herein in full.
18.10 Relationship of the Parties. The parties acknowledge that
neither party is an agent for the other party, and that neither party shall or
can bind or enter into agreements for the other party.
18.11 Governing Law. This Agreement and the legal relations between
the parties hereto shall be governed by and be construed in accordance with the
laws of the State of California.
18.12 Review by Counsel. The parties acknowledge that each party and
its counsel have reviewed and approved this Agreement, and the parties hereby
agree that the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments or exhibits hereto.
18.13 Non-Disclosure. Except as otherwise provided in Section 7.2.3
the parties hereto shall not disclose any of the material terms of this
Agreement or the existence of this Agreement (except to the extent as may be
required by law or as required by the Title Company or to the officers,
directors, partners, employees, accountants, attorneys, and other consultants of
the parties hereto in the ordinary course of business) without the prior written
consent of the other party. Notwithstanding the foregoing, any party (and any
employee, representative or other agent of any party) may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax structure
of the transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to any party
relating to such tax treatment and tax structure; provided, however, that any
such information and materials shall be kept confidential to the extent
necessary to comply with any applicable securities laws. For purposes of the
exceptions set out in the preceding sentence to the general confidentiality
provisions set forth above, the tax treatment and tax structure of the
transactions contemplated by this Agreement shall not be deemed to include the
location of the Property, the identity of the parties to this Agreement or the
Purchase Price.
18.14 Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original. This Agreement shall only be
effective if a counterpart is signed by both Seller and Buyer.
18.15 Filing of Reports. The Title Company shall be solely responsible
for the timely filing of any reports or returns required pursuant to the
provisions of
35
Section 6045(e) of the Internal Revenue Code of 1986 as amended (and any similar
reports or returns required under any state or local laws) in connection with
the Closing.
18.16 Third Party Beneficiaries. This Agreement is for the benefit of
Buyer and Seller and their respective agents, employees, shareholders, officers,
directors, partners and successors and no third party shall be entitled to the
benefit of any of the provisions of this Agreement.
18.17 Tax Deferred Exchange. In connection with the transactions
contemplated by this Agreement, Seller may wish to engage in a tax deferred
exchange of the Real Property. Buyer agrees to reasonably cooperate with Seller
in connection with such exchange, provided, however, that (i) the exchange shall
not delay (except as expressly provided in this Agreement) the Closing; (ii)
Buyer will not be required to take title to any other real property; (iii) Buyer
shall not incur any additional liability or cost by reason of such exchange;
(iv) Seller will indemnify, defend and hold Buyer harmless for, from and against
any claim, demand, cause of action, liability, cost or expense (including
attorney's fees) in connection therewith, including, without limitation, any
increase in escrow fees or charges resulting from such exchange; and (v) Seller
acknowledges and agrees and that Buyer has not made and will not make
representation or warranty as to the effectiveness for tax purposes of any such
exchange
19. DEFAULT.
19.1 Liquidated Damages. FROM AND AFTER THE EXERCISE OF THE OPTION,
IN THE EVENT THE SALE OF THE PROPERTY AS CONTEMPLATED HEREUNDER IS NOT
CONSUMMATED DUE TO A DEFAULT OF BUYER, THE DEPOSIT SHALL BE PAID TO AND RETAINED
BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT SELLER'S ACTUAL
DAMAGES IN THE EVENT THAT THE SALE IS NOT CONSUMMATED WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY SEPARATELY EXECUTING THIS
SECTION 19.1 BELOW, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED
UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES
AND AS SELLER'S EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT THE CLOSING DOES NOT
OCCUR AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER ARISING FROM SUCH
FAILURE OF THE SALE TO CLOSE. IN ADDITION, BUYER SHALL PAY ALL TITLE, SURVEY AND
ESCROW CANCELLATION CHARGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL
THIS SECTION 19.1 LIMIT THE DAMAGES RECOVERABLE BY EITHER PARTY AGAINST THE
OTHER PARTY DUE TO (A) THE OTHER PARTY'S OBLIGATION TO INDEMNIFY SUCH PARTY IN
ACCORDANCE WITH THIS AGREEMENT, OR (B) THIRD PARTY CLAIMS. BY THEIR SEPARATELY
EXECUTING THIS SECTION 19.1 BELOW, BUYER AND SELLER ACKNOWLEDGE THAT THEY
36
HAVE READ AND UNDERSTOOD THE ABOVE PROVISION COVERING LIQUIDATED DAMAGES, AND
THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS EXECUTED.
CONSISTENT WITH THE PROVISIONS OF SECTION 1.5, IN THE EVENT OF A TERMINATION OF
THIS AGREEMENT BY REASON OF A DEFAULT OF BUYER PURSUANT TO THIS SECTION 19.1,
THE OPTION PAYMENT IN ALL EVENTS SHALL BE RETAINED BY SELLER.
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
-------------------------- ------------------------------
Buyer's Initials Seller's Initials
19.2 Default by Seller. In the event the sale of the Property as
contemplated hereunder is not consummated due to default by Seller hereunder,
Buyer shall be entitled, as its sole remedy for Seller's default, either (a) to
receive the return of the Option Payment and the Deposit (together with all
interest accrued thereon), and to recover from Seller Buyer's actual third party
out of pocket costs incurred in connection with Buyer's due diligence (which
costs, together with any costs incurred by Baker Hamilton in connection with the
601 Property and King Street Property, shall not exceed Two Hundred Thousand
Dollars ($200,000); or (b) to enforce specific performance of Seller's
obligation to convey the Property to Buyer in accordance with the terms of this
Agreement, it being understood and agreed that the remedy of specific
performance shall not be available to enforce any other obligation of Seller
hereunder. Except as otherwise expressly provided in this Section 19.2 above,
Buyer expressly waives its rights to seek damages in the event of Seller's
default hereunder. Buyer shall be deemed to have elected to terminate this
Agreement if Buyer fails to file suit for specific performance against Seller in
a court having jurisdiction in the county and state in which the Real Property
is located, on or before one hundred twenty (120) days following the date upon
which Closing was to have occurred.
Notwithstanding the above provisions of this Section 19.2 to the
contrary, Buyer shall be entitled to seek damages against Seller as allowed by
applicable law in the event that Buyer shall be prevented from obtaining
specific performance of Seller's obligation to convey title to the Property to
Buyer as required under this Agreement by reason of Seller's grant or conveyance
of the Property, any right or interest therein or any lien or encumbrance
thereon to any other party.
20. DEFINITIONS. For ease of reference, the defined terms as employed in
this agreement and as listed below are defined in the designated sections:
1. "601 Agreement" as defined in Section 1.4
2. "601Property" as defined in Section 1.4
37
3. "Additional Amount" as defined in Section 14.1.3
4. "Agreement" as defined in the first paragraph
5. "Assignment" as defined in Section 2.3
6. "Baker Hamilton" as defined in Section 1.4
7. "Bill of Sale" as defined in Section 9.1.2
8. "Buyer" as defined in the first paragraph
9. "Buyer's Broker" as defined in Section 15
10. "Buyer's Reports" as defined in Section 7.5
11. "Buyer's Representatives" as defined in Section 7.4
12. "Buyer's Title Policy" as defined in Section 4.2
13. "Casualty" as defined in Section 14.1
14. "Claims" as defined in Section 13.1
15. "Closing" as defined in Section 6.1
16. "Closing Date" as defined in Section 6.1
17. "Deed" as defined in Section 9.1.1
18. "Deposit" as defined in Section 3.2
19. "Due Diligence Materials" as defined in Section 7.2
20. "Effective Date" as defined in the first paragraph
21. "Escrow" as defined in Section 5.1
22. "Estoppel Certificate(s)" as defined in Section 7.7
23. "Exercise Notice" as defined in Section 1.4
24. "Expiration Date" as defined in Section 7.1
25. "First Offer Notice" as defined in Section 1.2
26. "Improvements" as defined in Section 2.1.2
38
27. "Insured Casualty" as defined in Section 14.1.1
28. "Insured Casualty Threshold Amount" as defined in Section 14.1.1
29. "King Street Property" as defined in Section 1.4
30. "King Street Agreement" as defined in Section 1.4
31. "Land" as defined in Section 2.1.1
32. "Leases" as defined in Section 2.3
33. "Lender" as defined in Section 8.1.5
34. "Maximum" as defined in Section 17.4
35. "Omnicom" as defined in Section 8.1.6
36. "Operating Costs" as defined in Section 10.1.3
37. "Option" as defined in Section 1.1
38. "Option Payment" as defined in Section 1.2
39. "Permitted Exceptions" as defined in Section 4.3
40. "Personal Property" as defined in Section 2.1.3
41. "Property" as defined in Section 2.1
42. "Purchase Price" as defined in Section 3
43. "Real Property" as defined in Section 2.2
44. "Restoration Costs" as defined in Section 14.1.1
45. "Seller" as defined in the first paragraph
46. "Service Contracts" as defined in Section 2.3
47. "Subsequent Title Defects Notice" as defined in Section 7.3.3
48. "Survey" as defined in Section 7.3.1
49. "Tenant Notification Letter", as defined in Section 9.3
50. "Tenants" as defined in Section 2.3
39
51. "Term" as defined in Section 1.3
52. "Title Company" as defined in Section 5.1
53. "Title Notice" as defined in Section 7.3.2
54. "Title Report" as defined in Section 7.3.1
55. "Uninsured Casualty Threshold Amount" as defined in Section
14.1.2
SIGNATURE PAGE FOLLOWS:
40
IN WITNESS WHEREOF, the parties hereto have caused this Option Agreement
to be duly executed and delivered as of the day and year first above written.
SELLER: BUYER:
TOWNSEND 625, LLC, MACROMEDIA, INC.,
a California limited liability company a Delaware corporation
By: /s/ Ronaldo Cianciarulo By: /s/ James L. Morgensen
--------------------------------------- --------------------------
Ronaldo Cianciarulo, Name: James L. Morgensen
Its President Its: Vice President
41
LIST OF EXHIBITS
625 Townsend Street, San Francisco, California
Exhibit 1.4 - Form of Exercise Notice
Exhibit 2.1.1 - Legal Description of Land
Exhibit 2.1.3 - Schedule of Tangible Personal Property
Exhibit 2.3(i) - Schedule of Leases
Exhibit 2.3(ii) - Schedule of Service Contracts
Exhibit 7.7 - Form of Estoppel Certificate
Exhibit 9.1.1 - Form of Grant Deed
Exhibit 9.1.2 - Form of Bill of Sale
Exhibit 9.1.3 - Form of Assignment and Assumption Agreement
Exhibit 9.3 - Form of Tenant Notification Letter
Exhibit 14.1.4 - Arbitration of Disputes Relating to Estimated
Restoration Costs
LIST OF SCHEDULES
Schedule 12.2.4 - Description of Litigation
Schedule 12.2.5 - Description of Violations
Schedule 12.2.8 - Description of Lease Issues
Schedule 12.2.9 - Description of Commission Issues
Schedule 12.2.10 - Description of Issues Relating to Developmental
Requirements
EXHIBIT 1.4
FORM OF EXERCISE NOTICE
[date]
Townsend 625, LLC
601 Townsend Street, Suite 107
San Francisco, CA 94103
Attention: Ronaldo Cianciarulo
Re: 625 Townsend Street Option Agreement ("Agreement") dated July ____,
2003, by and between Townsend 625, LLC, ("Seller") and Macromedia,
Inc. ("Buyer")
Gentlemen:
With reference to the above Agreement and specifically with reference to
Section 1.4 of the above Agreement, please consider this letter notice of
Buyer's unequivocal exercise of the Option as described in the Agreement.
This letter constitutes the "Exercise Notice" as defined in the
Agreement.
Very truly yours,
cc: Walter F. Merkle
EXHIBIT 2.1.1
LEGAL DESCRIPTION OF LAND
Real property in the City of San Francisco, County of San Francisco, State of
California, described as follows:
Lot 8, as shown on that certain map entitled, "Parcel Map being a Merger and
Resubdivision of Lots 4, 5 & 6 as they are shown on that map filed in Book 41 of
Parcel Maps, at page 18, Records of the City and County of San Francisco, also
being a subdivision of Lots 4, 5 & 6 of Assessor's Block 3799, San Francisco,
California", which map was filed for record in the Office of the Recorder of the
City and County of San Francisco, State of California, on July 14, 2000, in Book
44 of Parcel Maps, at pages 124 and 125.
Excepting therefrom: "All minerals and mineral rights, interests and royalties,
including without limiting the generality thereof, oil, gas and other
hydrocarbon substances, as well as metallic or other solid minerals, in and
under said property; however, grantor or its successors and assigns, shall not
have the right for any purpose whatsoever to enter upon, into or through the
surface of said property in connection therewith", as reserved in the deed
executed by Southern Pacific Transportation Company, as Grantor, recorded May
12, 1989, in book 2869 of Official Records, page 1405.
Assessor's: Lot: 8 Block: 3799
PARCEL II:
EASEMENTS for parking, pedestrian and vehicular Ingress and egress and
utilities, as provided in that certain "PARKING EASEMENT AGREEMENT" executed by
and between BAKER HAMILTON PROPERTIES, LLC, a California limited liability
company, and TOWNSEND 625, LLC, a California limited liability company, dated
August 17th, 2000 and recorded August 24th, 2000 in Official Records under
Recorder's Serial Number 2000-G819993-00, over, across, through, and under
portions of the following described parcel, as said portions are more
particularly described therein.
Lot 9, as shown on that certain map entitled, "Parcel Map being a Merger and
Resubdivision of Lots 4, 5 & 6 as they are shown on that map filed in Book 41 of
Parcel Maps, at page 18, Records of the City and County of San Francisco, also
being a subdivision of Lots 4, 5 & 6 of Assessor's Block 3799, San Francisco,
California", which map was filed for record in the Office of the Recorder of the
City and County of San Francisco, State of California, on July 14, 2000, in Book
44 of Parcel Maps, at pages 124 and 125.
EXHIBIT 2.1.3
SCHEDULE OF TANGIBLE PERSONAL PROPERTY
NONE
EXHIBIT 2.3(i)
SCHEDULE OF LEASES
NONE
EXHIBIT 2.3(ii)
SCHEDULE OF SERVICE CONTRACTS
1. Agreement with Diversified Fire Protection for providing fire alarm
monitoring services and testing services.
EXHIBIT 7.7
FORM OF ESTOPPEL CERTIFICATE
____________________________________("Tenant") hereby certifies for the benefit
of Macromedia, Inc., a Delaware corporation ("Buyer"), with respect to those
certain Premises (as defined below) located in San Francisco, California, that
all of the following statements are true, except as may be indicated to the
contrary herein by Tenant:
1. Tenant has accepted, and is in possession of, the premises
("Premises") located at _______________________________ ("Property"), consisting
of approximately _____________ square feet under the terms of that certain lease
("Original Lease") dated _____________________________, executed by Townsend
625, LLC, a California limited liability company ("Landlord") and the
undersigned. The only amendments to said Lease are the following (list by date;
if none, please state "none"): _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The Original Lease as so amended is referred to herein as the "Lease". The Lease
is in full force and effect and constitutes the entire agreement between
Landlord and Tenant with respect to the Premises or Property. There are no other
agreements, options or rights with respect to the Premises or Property in favor
of Tenant or any affiliate of Tenant.
2. The term of the Lease commenced on ____________________,
_________, and expires by its terms on ____________________, _________, unless
sooner terminated. The current monthly installment of base rent required to be
paid under the Lease is $__________________ and has been paid through ________
2003 and no rent has been paid for more than thirty (30) days in advance of its
due date. Tenant is not in a period of free rent, rental credit, rental
concession, rental abatement or other benefit granted to Tenant and is not due
any free rent, rental credit, rental concession, rental abatement or other
benefit granted to Tenant during the remaining term of the Lease, except as set
forth in the Lease. Tenant asserts no claim of default, right of offset, or
defense against the payment of rents or other amounts payable under the Lease.
3. Tenant is obligated to reimburse Landlord for its percentage
share of all real property taxes, operating expenses, common area maintenance
and insurance expenses affecting the Building of which the Premises are a part,
and the current estimated amount of such reimbursements payable monthly by
Tenant is $_____________________________. Tenant is current in the payment of
such real property taxes, including without limitation, special assessments and
other local taxes, operating expenses, common area maintenance payments and all
other expenses required to be paid in full or in part by Tenant.
4. The total number of parking spaces presently leased by Tenant
under the Lease is ___________________________, and the total current monthly
parking rent is $_________________________.
5. Tenant has no right or option to renew or extend the term of the
Lease or to enlarge the leased premises except as
follows:________________________________________________.
6. Tenant has no option to purchase, or first right of refusal with
respect to the Building of Which the Premises are a part, or any portion
thereof, or Landlord's interest therein.
7. As of this date, there exists no breach or default under the
Lease on the part of either the Tenant or Landlord. Tenant has no right or
option to terminate the Lease.
8. There has not been filed by or against Tenant a petition in
bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors,
any petition seeking reorganization or arrangement under the Bankruptcy laws of
the United States or any state thereof, or any other action brought under said
Bankruptcy laws with respect to Tenant.
9. Tenant has not assigned its interest in the Lease, nor has it
sublet any portion of the Premises, except as
follows:_____________________________________________________________________.
10. Landlord has no further obligation to make or pay for any
improvements to Tenant's space, and any obligation of Landlord to this effect
contained in the Lease has been fully performed, except as
follows:__________________________________________________________
11. The undersigned is the Tenant under the Lease and has authority
to sign this document and to bind said Tenant.
12. This Certificate may be relied upon by Landlord, Buyer and any
lender to Buyer in connection with Buyer's acquisition or financing of the
Building of which the Premises are a part, and acceptance by any lender of an
assignment of Buyer's interest in the Lease, as additional security for making a
loan.
Dated:______________________, 2003
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT 9.1.1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
MAIL TAX STATEMENTS TO
FORM OF GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Townsend 625, LLC, a California limited liability company ("Grantor") hereby
grants to Macromedia, Inc., a Delaware corporation, that certain real property
(the "Real Property") located in the City and County of San Francisco, State of
California, as more particularly described on Exhibit A attached hereto,
together with all easements, privileges and rights appurtenant to the Real
Property and pertaining or held or enjoyed in connection therewith and all of
Grantor's right, title and interest in and to any real property, lying in the
bed of any street, alley, road or avenue to the centerline thereof adjoining the
Real Property. The conveyance hereunder is made subject to matters of record in
the Official Records of the City and County of San Francisco, California as of
the date of this conveyance.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of
_____________, 2003.
GRANTOR:
Townsend 625, LLC,
a California limited liability company
By:_______________________________________
Name:_____________________________________
Its:______________________________________
STATE OF CALIFORNIA )
) ss.
COUNTY OF _____________________ )
_________________________________________ )
On ________________________________, 2003, before me,
______________________________, personally appeared ___________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person 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, 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.
WITNESS my hand and official seal.
_________________________________________ (Seal)
EXHIBIT A
To Grant Deed
LEGAL DESCRIPTION
[To be Attached]
EXHIBIT 9.1.2
FORM OF BILL OF SALE
THIS BILL OF SALE (the "Bill of Sale") is made as of the ____ day of
________, 2003 by Townsend 625, LLC, a California limited liability company
("Seller"), in favor of Macromedia, Inc., a Delaware corporation ("Buyer").
Seller and Buyer are parties to an Option Agreement (the "Option
Agreement") dated July ____, 2003 which provides for the sale of certain real
property located at 625 Townsend Street, San Francisco, California (the "Real
Property").
In connection with the Option Agreement, Seller is required to convey to
Buyer certain items of tangible personal property as hereinafter described.
NOW, THEREFORE, for valuable consideration, receipt and sufficiency of
which are hereby acknowledged, Seller hereby conveys, transfers and delivers to
Buyer, its legal representatives, successors and assigns, all of its right,
title and interest in and to all tangible personal property of any type owned by
Seller and located at the Real Property and used exclusively in connection with
the operation of the Real Property (collectively, "Personal Property"). The
Personal Property is transferred "As-Is", "Where-Is" without warranties of any
kind including without limitation, implied warranties of merchantability or
fitness for any particular purpose; provided, however, that Seller does warrant
good and marketable title to the Personal Property, free and clear of all liens
and encumbrances, save and except for any liens or encumbrances relating to or
arising out of the Permitted Exceptions identified pursuant to the Option
Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Bill of Sale to be
duly executed and delivered as of the day and year first above written.
SELLER:
Townsend 625, LLC,
a California limited liability company
By: ___________________________________
Name:__________________________________
Its:___________________________________
EXHIBIT 9.1.3
FORM OF ASSIGNMENT & ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment") is dated as
of _________, 2003 by and between Townsend 625, LLC, a California limited
liability company ("Assignor") and Macromedia, Inc., a Delaware corporation
("Assignee").
R E C I T A L S
A. Assignor and Assignee entered into that certain Option Agreement dated
as of July ____, 2003 ("Agreement") with respect to the sale of certain Property
(as defined in the Agreement).
B. Pursuant to the Agreement, Assignor is assigning to Assignee and
Assignee is acquiring all of Assignor's interest in, to, and under those certain
leases described on Exhibit A, attached hereto and incorporated herein by this
reference (the "Leases") together with any security deposits paid pursuant to
the Leases, except to the extent that Assignor was entitled to and did apply any
part of such deposits to tenant obligations under the Leases.
C. Pursuant to the Agreement, Assignor is obligated to assign to Assignee
all assignable current licenses, permits, certificates of occupancy, approvals
and entitlements issued, granted or existing in connection with the Real
Property (as defined in the Agreement) as well as any and all assignable
development rights and other intangible rights, interests or privileges directly
relating to or used directly in connection with the Real Property, any
assignable right to use the current names of the Real Property, logos,
trademarks, tradenames, symbols and promotional materials, and all transferable
warranties, guarantees or sureties relating to the Real Property or to the
Personal Property (as defined in the Agreement) (collectively, the "Intangible
Property"). Assignor is further obligated to assign to Assignee all Service
Contracts and other agreements, if any, affecting the Property and listed on
Exhibit B attached hereto and incorporated herein by this reference
(collectively, the "Service Contracts").
NOW THEREFORE, for good and valuable consideration, Assignor and
Assignee agree:
AGREEMENT
1. Assignment of Leases. Assignor hereby assigns, conveys, transfers and
sets over to Assignee all of Assignor's right, title and interest in, to and
under the Leases, together with the security deposits paid under the Leases,
except to the extent that Assignor was entitled to and did apply any part of
such deposits to tenant obligations under the Leases, subject to the rights of
the Tenants under the Leases and Assignee hereby accepts such assignment.
2. Assignment of Service Contracts and Intangible Property. Assignor hereby
assigns, sells, transfers, sets over and delivers to Assignee all of Assignor's
right, title and interest in and to the Intangible Property and the Service
Contracts, and Assignee hereby accepts such assignment.
3. Assumption of Leases. Assignee hereby assumes and agrees to perform,
fulfill and comply with all covenants and obligations to be performed, fulfilled
or complied with by the landlord under the Leases accruing from and after the
Closing Date, including, but not limited to, payment of all valid claims made by
the Tenants with respect to the tenant security deposits, to the extent such
security deposits were assigned, and were either paid or credited, to Assignee
by Assignor.
Assignor shall remain responsible for all Assignor's obligations under or with
respect to the Leases accruing prior to the Closing Date.
4. Additional Assumption. Assignee hereby assumes and agrees to perform,
fulfill and comply with all covenants and obligations to be performed, fulfilled
or complied with by the owner of the Real Property with respect to the
Intangible Property and the Service Contracts accruing on or after the Closing
Date. Assignor shall remain responsible for all of Assignor's obligations under
or with respect to the Intangible Property and the Service Contracts accruing
prior to the Closing Date.
5. Indemnification. Assignee shall and does hereby indemnify Assignor
against, and agrees to hold Assignor harmless of and from all liabilities,
obligations, actions, suits, proceedings or claims and costs or expenses,
including, but not limited to, reasonable attorneys' fees based upon or arising
out of any breach or failure of Assignee to observe or perform any of the
obligations of Assignee as set forth in this Assignment. Assignor shall and does
hereby indemnify Assignee against, and agrees to hold Assignee harmless of and
from all liabilities, obligations, actions, suits, proceedings or claims and
costs or expenses, including, but not limited to, reasonable attorneys' fees
based upon or arising out of any breach or failure of Assignor to observe or
perform any of the obligations of Assignor as set forth in this Assignment.
6. Binding Effect. This Assignment shall inure to the benefit of and shall
be binding upon the parties hereto and their respective successors and assigns.
7. Defined Terms. Except as otherwise specifically provided in this
Assignment, defined terms employed in this Assignment shall have the same
meaning as described in the Agreement.
8. Governing Law. This Assignment and the legal relations between the
parties hereto shall be governed by and be construed in accordance with the laws
of the State of California.
9. Counterparts. This Assignment may be executed in counterparts, each of
which shall constitute an original. This Assignment shall only be effective if a
counterpart is signed by both Assignor and Assignee.
10. Survival. The provisions of this Assignment shall survive the Closing.
ASSIGNOR: ASSIGNEE:
Townsend 625, LLC, a Macromedia, Inc., a Delaware corporation
California limited liability
company
By:______________________________ By:______________________________________
EXHIBIT A
To Assignment and Assumption Agreement
DESCRIPTION OF LEASES
NONE
EXHIBIT B
To Assignment and Assumption Agreement
SERVICE CONTRACTS
[To be attached]
EXHIBIT 8.3
FORM OF TENANT NOTIFICATION LETTER
Certified Mail, Return
Receipt Requested
______________________________ Dated: ___________________
______________________________
______________________________
Attn: _________________
NOTICE TO TENANT
Tenant address: ____________________________
Premises: _______________________________
Lease dated: _______________________________
Landlord: _______________________________
Tenant: _______________________________________
This is to notify you that the undersigned has conveyed its fee
interest in the property located at 625 Townsend Street, San Francisco
California to Macromedia Inc., a California, a Delaware corporation ("Buyer"),
and in connection therewith has assigned its interest as landlord under your
lease, to Buyer, whose address is:
________________________
________________________
________________________
Attn:___________________
Commencing as of the date hereof, all rental and other payments under
your lease shall be paid to Buyer at the address specified above unless you are
otherwise notified in writing by Buyer. All notices to the landlord pursuant to
your lease should hereafter be sent to Buyer at the address specified above and
all inquires with respect to (and responsibility for) your security deposit
should hereafter be directed to Buyer.
Very truly yours,
Townsend 625, LLC
a California limited liability company
By:___________________________________
EXHIBIT 14.1.4
ARBITRATION OF DISPUTES
RELATING TO ESTIMATED RESTORATION COSTS.
1. Estimators. Within twenty (20) business days after delivery of
notice invoking the provisions of this Section, each party shall designate, by
written notice to the other party, a licensed general contractor having at least
ten (10) years experience in estimating construction costs of major construction
projects in the City and County of San Francisco ("City") to estimate the cost
or amount in dispute. Each such estimator shall be competent, licensed,
qualified by training and experience in the City, disinterested and independent.
Each estimator (or if either party fails to appoint its estimator within such
twenty (20) business day period, the estimator appointed by the other party)
shall make an independent determination of the disputed amount in accordance
with the provisions hereof. The estimators may share and have access to
objective information in preparing their estimates, but they will otherwise act
independently. Each estimator shall complete, sign and submit its written
estimate of the disputed construction or replacement cost, as applicable, within
fifteen (15) business days after the appointment of both estimators, unless the
parties agree to permit a longer period of time. If the higher estimate is not
more than one hundred ten percent (110%) of the lower estimate, the disputed
amount shall be determined for purposes of this Agreement to equal the average
of the two (2) estimates.
2. Arbitration. If the higher estimate is more than one hundred ten
percent (110%) of the lower estimate, the parties shall agree upon and appoint
an independent arbitrator within ten (10) business days after the first two (2)
estimates have been submitted to the parties. The arbitrator shall have
experience acting as an arbitrator of disputes involving construction costs or
construction disputes. If the parties do not appoint such arbitrator within such
thirty (30) day period, then either party may apply to the Superior Court of the
State of California in and for the County of San Francisco for appointment of an
arbitrator meeting the foregoing qualifications. If the court denies or
otherwise refuses to act upon such application, either party may apply to the
Judicial Arbitration and Mediation Services, Inc. ("JAMS"), or any similar
provider of professional commercial arbitration services in San Francisco,
California, for a list of available arbitrators containing three (3)
arbitrators, and each party may strike one potential arbitrator. The remaining
arbitrator shall serve as the arbitrator. The arbitrator shall consider the
estimates submitted by the parties as well as any other relevant written
evidence which the parties may choose to submit. If a party chooses to submit
any such evidence, it shall deliver a complete and accurate copy to the other
party at the same time it submits the same to the arbitrator. Neither party
shall conduct ex parte communications with the arbitrator regarding the subject
matter of the arbitration. Within fifteen (15) business days after his or her
appointment, the arbitrator shall conduct a hearing, at which Seller and Buyer
may each make supplemental oral and/or written presentations, with an
opportunity for testimony by
the estimators and questioning by the parties and the arbitrator. Within ten
(10) business days following the hearing, the arbitrator shall select the
estimate submitted by one or the other of the first two (2) estimators, as the
more accurate estimate of the disputed amount, in the opinion of the arbitrator.
The determination of the arbitrator shall be limited solely to the issue of
deciding which of the estimates is closest to the actual disputed value or
amount. The arbitrator shall have no right to propose a middle ground or to
modify either of the two estimates, or to modify any provision of this
Agreement.
3. Conclusive Determination. Except as provided in California Code
of Civil Procedure Section 1286.2 (or its successor), the determination by the
estimators or the arbitrator, as applicable, shall be conclusive, final and
binding on the parties. Neither the estimators nor the arbitrator shall have any
power to modify any of the provisions of this Agreement. Subject to the
provisions of this Section, the parties will cooperate to provide all
appropriate information to the estimators and the arbitrator. The estimators and
the arbitrator will each report their respective determinations in writing,
supported by the reasons for the determination.
4. Conduct of Arbitration Proceeding. Any arbitration proceeding
under this Section 14.1.4 shall be subject to California Code of Civil Procedure
Sections 1280 to 1294.2 (but excluding Section 1283.05 with respect to
discovery), or successor California laws then in effect relating to arbitration
generally. Any such proceeding shall be conducted in the City of San Francisco.
5. Fees and Costs; Waiver. Each party shall bear the fees, costs
and expenses of the estimator it selects. The fees, costs and expenses of the
arbitrator and the costs and expenses of the arbitration proceeding, if any,
shall be shared equally by Seller and Buyer. The parties waive any claims
against the estimator appointed by the other party, and against the arbitrator,
for negligence, malpractice, or similar claims in the performance of the
estimates or arbitration contemplated by this Section.
SCHEDULE 12.2.4
DESCRIPTION OF LITIGATION
NONE
SCHEDULE 12.2.5
DESCRIPTION OF VIOLATIONS
1. The width of the sidewalk running along Townsend Street adjacent to the
Real Property is not in compliance with applicable zoning requirements. The
width of the sidewalk is less than that required.
SCHEDULE 12.2.8
DESCRIPTION OF LEASE ISSUES
NONE
SCHEDULE 12.2.9
DESCRIPTION OF COMMISSION ISSUES
NONE
SCHEDULE 12.2.10
DESCRIPTION OF ISSUES RELATING TO DEVELOPMENTAL REQUIREMENTS
1. The transit impact development fee due the City of San Francisco in
connection with the Real Property remains unpaid.
2. The child care fee owing to the City of San Francisco in connection with the
Real Property remains unpaid.
[LOGO OF MACROMEDIA]
August 12, 2003
Townsend 625, LLC
601 Townsend Street, Suite 107
San Francisco, CA 94103
Attention: Ronaldo Cianciarulo
Re: 625 Townsend Street Option Agreement ("Agreement") dated July 16, 2003,
by and between Townsend 625, LLC, ("Seller") and Macromedia, Inc.
("Buyer")
Gentlemen:
With reference to the above Agreement and specifically with reference to
Section 1.4 of the above Agreement, please consider this letter notice of
Buyer's unequivocal exercise of the Option as described in this Agreement.
This letter constitutes the "Exercise Notice" as defined in the Agreement.
Very truly yours,
/s/ James L. Morgensen
James L. Morgensen
Vice President, Real Estate
cc: Walter F. Merkle
Macromedia
600 Townsend Street
San Francisco
California 94103, USA
www.macromedia.com