Exhibit
10.1


 


 


PURCHASE AND SALE AGREEMENT


 


BETWEEN


 


LAS POSITAS LLC,

a Delaware limited liability company


 


AS SELLER,


 


and


 


SIMPSON MANUFACTURING CO., INC.,

a Delaware corporation


 


AS BUYER


 





















 


TABLE OF CONTENTS


 


	
  1.

  	
  Purchase and Sale

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Purchase Price;
  Deposit; Escrow

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Buyer’s Investigation

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Scope of Investigation

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.2

  	
  Entry; Insurance;
  Indemnity

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.3

  	
  Title
  Matters; Buyer’s Objections; Seller’s Right to Cure

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.4

  	
  Buyer’s Right to
  Terminate

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.5

  	
  Leases and
  Miscellaneous Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  As-Is Sale;
  Release and Indemnity

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  As-Is Sale

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2

  	
  Release and Indemnity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3

  	
  Representations
  and Warranties of Seller

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.4

  	
  Seller’s Knowledge

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.5

  	
  Survival
  of and Limitations on Seller’s Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.6

  	
  Representations
  and Warranties of Buyer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.7

  	
  Survival
  of Buyer’s Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Interim Operation
  of the Property

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Conditions to Closing

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Conditions
  to Buyer’s Obligations to Close

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2

  	
  Conditions
  to Seller’s Obligations to Close

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Closing and Transfer
  of Title

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Closing Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.2

  	
  Seller’s Deliveries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.3

  	
  Buyer’s Deliveries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.4

  	
  Possession
  of the Property; Condition of Property

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Prorations and Adjustments

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  General

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.2

  	
  Survival

  	
   

  



 


i





















 


	
  9.

  	
  Risk of Loss and
  Insurance Proceeds

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Minor Loss

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.2

  	
  Major Loss

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Default

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  Brokers

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  Assignment

  	
   

  
	
   

  	
   

  	
   

  
	
  14.

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  15.1

  	
  Attorneys’ Fees

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.2

  	
  Gender

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.3

  	
  Captions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.4

  	
  Construction

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.5

  	
  Business Days; Deadlines

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.6

  	
  Entire Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.7

  	
  Recording

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.8

  	
  No Continuance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.9

  	
  Time of Essence

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.10

  	
  Original Document

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.11

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.12

  	
  Acceptance of Offer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.13

  	
  Confidentiality

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.14

  	
  Section 1031 Exchange

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.15

  	
  Amendment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.16

  	
  Waiver

  	
   

  



 


ii





















 


LIST OF SCHEDULES


 


	
  1.1

  	
  Description
  of the Land

  	
   

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Access
  Agreement

  	
   

  



 


iii





















 


LIST OF EXHIBITS


 


	
  Exhibit A

  	
   

  	
  —

  	
   

  	
  Grant Deed

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  —

  	
   

  	
  Bill of Sale

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  —

  	
   

  	
  Assignment and Assumption of Permits, Intangible
  Property and Warranties

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  —

  	
   

  	
  Assignment and Assumption of Miscellaneous Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  —

  	
   

  	
  Seller’s Closing Certification

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit F

  	
   

  	
  —

  	
   

  	
  FIRPTA Affidavit

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit G

  	
   

  	
  —

  	
   

  	
  Designation Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit H

  	
   

  	
  —

  	
   

  	
  Buyer’s Closing Certification

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit I

  	
   

  	
  —

  	
   

  	
  Confidentiality Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit J

  	
   

  	
  —

  	
   

  	
  Invasive Testing Requirements

  



 


iv





















 


PURCHASE
AND SALE AGREEMENT


 


THIS PURCHASE AND SALE AGREEMENT (this “Agreement”), dated for reference
purposes as of March 28, 2005, is made by and between LAS POSITAS LLC,
a Delaware limited liability company (“Seller”),
and SIMPSON MANUFACTURING CO., INC.,
a Delaware corporation (“Buyer”).  This Agreement shall not be effective until
executed by both Buyer and Seller, and the date on which this Agreement is
executed by Buyer or Seller, whichever is later, as indicated on the signature
page hereto, shall be referred to herein as the “Effective
Date.”


 


1.                      PURCHASE
AND SALE


 


Seller hereby agrees to sell to Buyer, and Buyer
hereby agrees to purchase from Seller, subject to the terms, covenants and
conditions set forth herein, all of the following property:


 


(a)                     That certain
real property located in the City of Pleasanton, County of Alameda, State of California,
commonly known as 5956 and 5964 W. Las Positas Blvd., and more
particularly described in Schedule 1.1 hereto (the “Land”);


 


(b)                    The buildings,
structures and improvements erected or located on the Land (collectively, the “Improvements,” and together
with the Land, collectively, the “Premises”);


 


(c)                     All of Seller’s
right, title and interest, if any, in and to any rights and appurtenances
pertaining to the Land, including minerals, oil and gas rights, air, water and
development rights, roads, alleys, easements, streets and ways adjacent to the
Land, rights of ingress and egress thereto, any strips and gores within or
bounding the Land and in profits or rights or appurtenances pertaining to the
Land (the “Appurtenant Rights”);


 


(d)                    All of Seller’s
right, title, and interest, if any, in all tangible personal property located
on the Premises, including furniture, and equipment (the “Personal Property”).


 


(e)                     All of Seller’s
right, title and interest, if any, in and to all assignable permits and licenses
to the extent the same pertain to the Premises (collectively, the “Permits”);


 


(f)                       All of Seller’s
right, title, and interest in the agreement affecting the Property that Buyer
is required to assume pursuant to Section 3.5 below (the “Miscellaneous Agreement”).


 


(g)                    All of Seller’s
right, title and interest, if any, in and to all assignable intangible
property, if any, used exclusively in connection with the occupancy and
operation of the Premises (the “Intangible Property”).


 


(h)                    All of Seller’s
right, title and interest, if any, in and to all assignable warranties of any
contractor, manufacturer or materialman which relate to the Improvements or the
Personal Property (collectively, the “Warranties”).


 


The Premises, Appurtenant Rights, Personal
Property, Permits, Miscellaneous Agreement, Intangible Property and Warranties
are herein collectively referred to as the “Property”.


 


1





















 


2.                      PURCHASE PRICE; DEPOSIT; ESCROW


 


(a)                     The purchase
price (“Purchase Price”) for the
Property shall be Nine Million Six Hundred Twenty-One Thousand Two Hundred
Eighty-Eight Dollars ($9,621,288.00), subject to adjustment as provided in
Section 8 below, and shall be paid as set forth in subparagraphs (b),
(c) and (d) below.


 


(b)                    Within
one (1) business day following the Effective Date, Buyer shall deposit in
escrow with Chicago Title Insurance Company, 388 Market Street,
San Francisco, California 94111, Attn: 
Nicki Carr (the “Title Company”
and the “Escrow Holder”), as an
initial deposit hereunder, the sum of Two Hundred Fifty Thousand Dollars
($250,000.00) (the “Initial Deposit”).  Within one (1) business day following
expiration of the Investigation Period (as defined below), if Buyer delivers
notice to Seller of Buyer’s election not to terminate this Agreement pursuant
to Section 3.4 below, Buyer shall deposit with the Escrow Holder, as an
additional deposit hereunder, an additional sum of One Million Seven Hundred
Fifty Thousand Dollars ($1,750,000.00) (the “Additional
Deposit”).  The Initial
Deposit and the Additional Deposit, together with all interest accrued thereon,
are referred to herein as the “Deposit”.  The Deposit shall at all times before the
closing of the purchase and sale contemplated hereunder (the “Closing”) be invested in an
interest-bearing account approved by Buyer in writing.  Buyer shall provide the Escrow Holder with
its taxpayer identification number, and unless the Closing does not occur as a
result of Buyer’s default hereunder, all interest earned on the Deposit shall
be reported to the appropriate tax authorities using Buyer’s taxpayer
identification number.  At the Closing,
the Deposit shall be applied to the Purchase Price.  Provided that Buyer timely delivers notice to
Seller of Buyer’s election not to terminate this Agreement pursuant to
Section 3.4 below, prior to the expiration of the Investigation Period,
the Deposit shall become non-refundable (except as otherwise expressly set
forth herein).


 


(c)                     The balance of
the Purchase Price, subject to adjustment for any prorations and credits
provided hereunder, shall be deposited with Escrow Holder by Buyer at least
one (1) business day before the Closing by wire transfer of immediately
available funds, for disbursement pursuant to the terms hereof, with the transfer
of funds to Seller to be completed on the day of the Closing.


 


(d)                    Upon mutual
execution of this Agreement, the parties hereto shall deposit an executed
counterpart of this Agreement with Title Company and this Agreement shall serve
as instructions to Title Company for consummation of the purchase contemplated
hereby (“Escrow”).  Seller and Buyer shall execute such
supplemental escrow instructions as may be appropriate to enable Title Company
to comply with the terms of this Agreement, provided that such supplemental
escrow instructions are not in conflict with this Agreement as it may be
amended in writing from time to time.  In
the event of any conflict between the provisions of this Agreement and any
supplementary escrow instructions signed by Buyer and Seller, the terms of this
Agreement shall control.  Title Company
shall hold and dispose of the Deposit and other funds and instruments delivered
into Escrow in accordance with the terms of this Agreement.  Seller and Buyer agree that the duties of the
Title Company hereunder are purely ministerial in nature and shall be expressly
limited to the matters set forth in this Agreement.  Title Company shall not be responsible for
any interest on the Deposit except as is actually earned, or for the loss of
any interest resulting from the withdrawal of the Deposit prior to the date
interest is posted thereon.


 


2





















 


Title Company shall execute
this Agreement for the purpose of being bound by the provisions of this
Agreement directing action by the Title Company.  Escrow Holder shall be the “Reporting Person” pursuant
to Internal Revenue Code Section 6045(e) with respect to the transaction
contemplated by this Agreement.


 


3.                      BUYER’S INVESTIGATION


 


3.1                       Scope
of Investigation


 


Buyer shall have a period commencing on the
Effective Date and ending on May 16, 2005 (the “Investigation Period”), to
review and approve all matters relating to the Property, including the
following matters:


 


(a)                     All matters
relating to title to the Property, including (i) matters disclosed by that
certain preliminary title report dated December 6, 2004, or by any
underlying exception document referred to therein (collectively, the “Title Report”), issued by
the Title Company under Order No. 741779-BJS, and a copy of which has been
provided to Buyer, or disclosed by any updates thereof or supplements thereto,
and (ii) matters disclosed by any survey of the Property.  Seller shall provide Buyer with a copy of
that certain survey dated February 7, 2005, and prepared by URS under Job
No. 26814988, without representation or warranty of any kind with respect
thereto.  Buyer may obtain, at Buyer’s
sole cost and expense, an updated ALTA survey of the Property.


 


(b)                    All matters
relating to any governmental and other legal requirements relating to the
Property, such as taxes, assessments, zoning, use permit requirements and
building codes, including any certificates of occupancy, other governmental
permits and plans and specifications for the Property.  Except as set forth in Section 5(c)
below, Buyer shall not file or cause to be filed any application or make any
request (other than inquiries of the public records) with any governmental or
quasi-governmental agency which would or could lead to a hearing before any
governmental or quasi-governmental agency or which would or could lead to a
note, notice or violation of law or municipal ordinance, order or requirement
imposed by such an agency, at the Property or any change in zoning,
parcelization, licenses, permits or other entitlements or any investigation or
restriction on the use of the Property, or any part thereof.


 


(c)                     The physical
condition of the Property, including the interiors, exteriors, structures,
pavements, utilities, and all other physical and functional aspects of the
Property, and including an investigation as to the presence of Hazardous
Materials (as defined in Section 4.1(b) below) at, on or under the
Property and the compliance of the Property with all Hazardous Materials Laws
(as defined in Section 4.1(b) below).


 


(d)                    Any easements
and/or access rights affecting the Property.


 


(e)                     To the extent
in Seller’s possession or reasonable control, the following written materials
relating to the Property, originals or true copies of which shall be made
available at the offices of Seller’s property manager, Landmark Asset
Management Group, 100 Bayview Circle, Suite 200, Newport Beach,
California 92660, Attention: 
Mr. A. Corey Hansen, within two (2) business days after
the Effective Date:


 


3





















 


(i)                      Materials
relating to governmental and other legal requirements relating to the Property,
such as entitlements, taxes, assessments, zoning, use permit requirements and
building codes;


 


(ii)                   Materials
regarding the physical condition of the Property, including the interiors,
exteriors, structures, utilities, and all other physical and functional aspects
of the Property; and


 


(iii)                All agreements
affecting the Property not encompassed within any of the other subparagraphs of
this Section 3.1(e) or Section 3.1(f).


 


(f)                   To the extent
in Seller’s possession or reasonable control, copies of the following written
materials relating to the Property (“Due
Diligence Items”) shall be delivered to Buyer in care of Alan
Robin at the address set forth in Section 14 below within five (5)
business days after the Effective Date, to the extent not previously delivered
to Buyer prior to the Effective Date:


 


(i)                      Any existing
survey of the Property;


 


(ii)                   Certificates of
occupancy, governmental (or quasi-governmental) permits, licenses and plans and
specifications for the Property;


 


(iii)                Service,
maintenance and repair contracts for the Property;


 


(iv)               Certificates of
insurance applicable to the Property;


 


(v)                  Tax bills
affecting the Property for the calendar years 2003-2004 and 2004-2005;


 


(vi)               Cash flow
operating statements, profit and loss statements and other financial statements
for the Property;


 


(vii)            Reports,
studies, assessments, investigations and other materials related to the
presence of Hazardous Materials (as defined in Section 4.1(b) below) at,
on or under the Property, the compliance of the Property with all Hazardous
Materials Laws (as defined in Section 4.1(b) below), and any soil reports;


 


(viii)         Entitlement
records (other than the documents relating to the exceptions set forth in the
Title Report previously delivered by Seller or to be delivered by the Title
Company), maps, building inspection approvals, engineering and architectural
studies relating to the Property; and


 


(ix)                 Roof, plumbing,
structural and mechanical systems reports (other than vendor invoices, work
orders, maintenance records and other similar type of documents).


 


(g)                All matters
relating to the feasibility of Buyer’s proposed ownership of the Property.


 


(h)                Natural hazards
disclosure statements for the Property, as required under California law, to be
delivered to Buyer within fifteen (15) days after the Effective Date.  The natural hazards disclosure statements shall
be based on a report or reports of a licensed engineer, land


 


4





















 


surveyor, geologist, or expert
in natural hazard discovery, which report or reports shall be attached to such
natural hazards disclosure statement. 
Buyer acknowledges that the natural hazards disclosure statements shall
be based solely on the information contained in the report or reports attached
thereto, and Seller shall have no liability for any inaccuracy in such reports,
except to the extent that Seller has actual knowledge of the inaccuracy at the
time the corresponding natural hazards disclosure statement is signed by
Seller.


 


3.2                       Entry;
Insurance; Indemnity


 


(a)                     Pursuant to
that certain Access Agreement (the “Access
Agreement”) dated March 16, 2005, by Seller and Buyer (a
copy of which is attached hereto as Schedule 3.2),
Buyer shall have the right, in compliance with the requirements of the Access
Agreement and this Section 3.2, to enter on any portion of the Premises
for the limited purpose of conducting “Inspections” (as defined in the Access
Agreement).  Buyer shall conduct such
entries and any Inspections in connection therewith so as to minimize
disruption at the Property or interference with Seller’s business and otherwise
in a manner reasonably acceptable to Seller.


 


(b)                    Buyer’s
indemnification of Seller pursuant to Section 11 of the Access Agreement
shall extend to the partners, members, trustees, shareholders, directors and
officers of Seller, any party owning a direct or indirect interest in Seller,
the affiliates of Seller, and the partners, members, trustees, shareholders,
directors, officers, employees and agents of each of the foregoing parties
(collectively, the “Seller-Related Parties”).


 


(c)                     Notwithstanding
any other provision of this Section 3.2, in no event shall Buyer have the
right to perform any on-site sampling or other invasive testing (“Invasive Testing”) without
the prior written approval of Seller, which approval shall not be unreasonably
withheld or conditioned.  The Invasive
Testing shall be performed in accordance with the requirements set forth in Exhibit J
attached hereto and made a part hereof,


 


3.3                       Title
Matters; Buyer’s Objections; Seller’s Right to Cure


 


(a)                 Disapproved
Matters.


 


(i)                      For a period
commencing on the Effective Date and ending on April 29, 2005 (the “Title Review Period”),
Buyer shall have the right, by written notice to Seller (a “Disapproval Notice”), to
disapprove any matter relating to title of the Property.


 


(ii)                   If any material
matter relating to title of the Property first arises after the expiration of
the Title Review Period, and is not created or caused by Buyer, then Buyer
shall have the right to disapprove such matter by delivering a Disapproval
Notice to Seller within five (5) days after Buyer first becomes aware of such
matter.


 


(iii)                All matters
relating to title to the Property to which Buyer objects pursuant to
Section 3.3(a)(i) or 3.3(a)(ii) above shall be referred to as “Disapproved Matters.”  All matters relating to title to the Property
which are not Disapproved Matters shall be deemed approved by Buyer.


 


5





















 


(b)                    Seller’s
Right to Undertake Curative Action.  Within five (5) days after Seller’s
receipt of a Disapproval Notice, Seller may give written notice to Buyer (a “Cure Notice”) of
(i) any Disapproved Matters set forth in such Disapproval Notice with
respect to which Seller is willing to undertake any curative action before the
Closing, and (ii) the nature of each such curative action that Seller is
willing to undertake (individually and collectively, “Curative
Action”).  Except as
expressly set forth in any Cure Notice, Seller shall be deemed to have elected
not to undertake any Curative Action with respect to any Disapproved
Matters.  If (1) the Curative Action
set forth by Seller in any Cure Notice consists of anything less than the
complete and unconditional cure of all Disapproved Matters set forth in the
Disapproval Notice to which such Cure Notice relates, or (2) Seller does
not reply to a Disapproval Notice within five (5) days after Seller’s
receipt thereof, then Buyer may terminate this Agreement prior to the end of
the Investigation Period; provided, however, that if any material matter
relating to title of the Property first arises after the expiration of the
Title Review Period, then Buyer may deliver a Disapproval Notice, and if
(x) the Curative Action set forth by Seller in any Cure Notice consists of
anything less than the complete and unconditional cure of all Disapproved
Matters set forth in the Disapproval Notice to which such Cure Notice relates,
or (y) Seller does not reply to a Disapproval Notice within five (5)
days after Seller’s receipt thereof, then Buyer may terminate this Agreement by
giving written notice to Seller no later than 2:00 p.m. California time on
the second (2nd) day after receipt of such Cure Notice or the expiration
of such five (5) day period without reply from Seller, as the case may
be.  If Buyer does not so elect to
terminate this Agreement within the applicable time frame set forth in the
immediately preceding sentence, then Buyer shall be deemed to have waived its
disapproval of all Disapproved Matters set forth in such Disapproval Notice
except to the extent of Seller’s agreement pursuant to the Cure Notice to
undertake Curative Action with respect thereto. 
Unless Buyer terminates this Agreement pursuant to the foregoing, if
Seller gives Buyer one or more Cure Notices, then (A) Seller shall use
commercially reasonably efforts to complete the Curative Action set forth therein
on or before the Closing Date, and (B) it shall be a condition to Buyer’s
obligation to purchase the Property hereunder (which condition may be waived by
Buyer), but not a covenant of Seller, that all Curative Action shall actually
be performed on or before the Closing Date.


 


(c)                     Extension
of Closing Date.  If any
situation described in Section 3.3(a)(ii) above occurs, and the respective
time periods afforded Buyer and Seller to make any elections and give notices
with respect thereto as permitted under Sections 3.3(a) and (b) will
extend beyond the fifth (5th) day before the Closing Date, then the
Closing Date shall be postponed until five (5) days after the disposition
of such matter is determined in accordance with the provisions of this
Section 3.3.


 


(d)                    Agreement
of Title Company to Insure Over Disapproved Matters.  Notwithstanding Seller’s unwillingness to
agree to completely and unconditionally cure any Disapproved Matter, Buyer may
obtain the agreement of the Title Company to omit such Disapproved Matter from
the schedule of exceptions to the Title Policy (as defined in Section 6.1
below) or to affirmatively insure over such Disapproved Matter by endorsement
to the Title Policy.  Any agreement of
the Title Company to so omit or insure shall be a matter solely between Buyer
and the Title Company, and the same shall not be condition to Closing, except
to the extent the Title Company’s agreement to so omit or insure is based upon
Seller’s agreement pursuant to the Cure Notice to undertake Curative Action
with respect to such Disapproved Matter and Seller fails to undertake such
Curative Action prior to the Closing. 
Further, with regard to Seller’s obligation


 


6





















 


to convey title to the
Property, any Disapproved Matter which Seller has not agreed to completely and
unconditionally cure shall be a Permitted Exception (as defined in
subparagraph (e) below) to the Deed (as defined in Section 7.2(a)
below) notwithstanding the Title Company’s agreement to omit such Disapproved
Matter from the Title Policy or to affirmatively insure against such
Disapproved Matter by endorsement to the Title Policy, and Buyer shall only
seek recourse against the Title Company, and not Seller, with respect to any
such Disapproved Matter.


 


(e)                 Permitted
Exceptions.  The Deed
shall be subject to the following matters (the “Permitted
Exceptions”):


 


(i)                      General real
estate taxes not yet due and payable as of the date of Closing;


 


(ii)                   All title
matters relating to the Property, other than Disapproved Matters, that are
(1) discoverable by means of an accurate survey or inspection of the
Property or by making inquiry of persons in possession, or (2) disclosed
to Buyer in writing before the Closing;


 


(iii)                All Disapproved
Matters Seller has not completely and unconditionally agreed to cure, except to
the extent, if any, Seller has agreed to undertake Curative Action pursuant to
a Cure Notice;


 


(iv)               The
Miscellaneous Agreement;


 


(v)                  All other
exceptions created or agreed to by Buyer; and


 


(vi)               Notwithstanding
anything to the contrary contained in this Agreement, the Permitted Exceptions
shall not include and Seller shall cause to be removed from title at or before
the Closing at Seller’s cost, any monetary liens voluntarily created by Seller
against the Property other than current, non-delinquent real property taxes and
assessments.


 


(f)                   Conveyance
of Title.  At Closing,
Seller shall convey and transfer to Buyer fee simple title to the Property, by
execution and delivery of the Deed (as defined below).  Evidence of delivery of such title shall be
the issuance by the Title Company of the Title Policy (as defined below).


 


3.4                       Buyer’s
Right to Terminate


 


This Agreement shall terminate at 5:00 p.m.
California time on the last day of the Investigation Period unless Buyer, in
its sole and absolute discretion, delivers written notice to Seller that it
does not elect to terminate this Agreement (“Approval
Notice”).  In the event
Buyer does not provide the Approval Notice prior to expiration of the Investigation
Period, the Initial Deposit shall be returned promptly to Buyer and, except for
any provisions of this Agreement which expressly state that they shall survive
the termination of this Agreement, this Agreement shall be terminated and
canceled in all respects and neither Buyer nor Seller will have any further
rights or obligations hereunder.  If
Buyer provides the Approval Notice prior to expiration of the Investigation
Period, (i) this Agreement shall remain in full force and effect and Buyer
shall have no further right to terminate this Agreement under this Section, and
(ii) Buyer shall be deemed to


 


7





















 


have waived any liability of
Seller and any right to refuse to consummate the Closing by reason of any condition
known to Buyer as of the last day of the Investigation Period.


 


3.5                       Leases
and Miscellaneous Agreements


 


Buyer agrees and acknowledges that, at Closing,
Seller will not assign, and Buyer will not assume, any leases affecting the
Property (other than Permitted Exceptions). 
At the Closing, Seller’s rights and obligations under that certain
agreement with Waterworks for the maintenance of the fountain on the Property
(the “Miscellaneous Agreement”)
shall be assigned to and assumed by Buyer, unless Buyer notifies Seller (“Rejection Notice”) prior to
the expiration of the Investigation Period that Buyer elects not to assume the
Miscellaneous Agreement.  After receipt
of the Rejection Notice, Seller shall terminate the Miscellaneous Agreement by
the Closing Date.


 


4.                      AS-IS SALE; RELEASE AND INDEMNITY


 


4.1                       As-Is Sale


 


(a)                     Buyer
acknowledges and agrees that it will have been given, before the expiration of
the Investigation Period, a full opportunity to inspect and investigate each
and every aspect of the Property, either independently or through agents of
Buyer’s choosing.  The closing of escrow
for the purchase of the Property by Buyer shall conclusively constitute Buyer’s
approval of each and every aspect of the Property, except as otherwise
specifically provided herein.


 


(b)                    Except with
respect to any representations expressly made by Seller in this Agreement,
Seller:  (i) makes no
representations or warranties concerning the Property, income derived therefrom
or any matters pertaining thereto; and (ii) makes no representations or
warranties with respect to the physical condition or any other aspect of the
Property, including, without limitation: 
(A) the structural integrity of, or the quality of any labor and
materials used in the construction of, any improvements on the Land;
(B) the conformity of the Improvements to any plans or specifications for
the Property (including any plans and specifications that may have been or
which may be provided to Buyer by Seller); (C) the compliance of the Property
or its operation with any applicable codes, laws, regulations, statutes,
ordinances, covenants, conditions and restrictions of any governmental or
quasi-governmental entity or of any other person or entity, including zoning or
building code requirements; (D) the existence of soil instability, past
soil repairs, soil additions or conditions of soil fill or susceptibility to
landslides; (E) the sufficiency of any undershoring; (F) the
sufficiency of any drainage; (G) whether the Land is located wholly or
partially in any flood plain or flood hazard boundary or similar area;
(H) the existence or non-existence of underground storage tanks;
(I) any other matter affecting the stability or integrity of the Land or
any buildings or improvements situated on or as part of the Improvements;
(J) the availability, quality, nature, adequacy and physical condition of
public utilities and services for the Property; (K) the habitability,
merchantability, fitness, suitability, functionality, value or adequacy of the
Property or any component or system thereof for any intended use; (L) the
potential for further development of the Property; (M) the existence of
vested land use, zoning or building entitlements affecting the Premises;
(N) the quality, nature, adequacy and physical condition of the Property,
including the structural elements, foundations, roofs, appurtenances, access,
landscaping, parking facilities and the electrical, mechanical, HVAC, plumbing,
sewage, and utility systems, facilities and appliances; (O) the quality and


 


8





















 


nature of any groundwater;
(P) the zoning or other legal status of the Property or any other public
or private restrictions on use of the Property; (Q) the presence of any
Hazardous Materials (as defined below) or mold or any mold-like substance on,
in, under or about the Property or any nearby property; (R) the condition
of title to the Property; (S) any agreements affecting the Property; and
(T) the economics of the operation of the Property.  Except with respect to any representations
expressly made by Seller in this Agreement, Buyer expressly acknowledges that
the Property is being sold and accepted “AS IS, WHERE IS” and is
being accepted without any representation or warranty, including any representation
or warranty by Seller or any agent, officer, employee or representative of
Seller.  Buyer agrees to make such
investigations of the condition of the Property as Buyer deems adequate and
shall rely solely upon its own investigation of such condition and not upon any
statement of Seller except as may be expressly stated in this Agreement.  As used herein, “Hazardous
Materials” means any material, substance or waste designated
as hazardous, toxic, radioactive, injurious or potentially injurious to human health
or the environment, or as a pollutant or contaminant, or words of similar
import, under any Hazardous Materials Law (as defined below), including, but
not limited to, petroleum and petroleum products, asbestos, polychlorinated
biphenyls, urea formaldehyde, radon gas, radioactive matter, medical waste, and
chemicals which may cause cancer or reproductive toxicity.  As used herein, “Hazardous
Materials Law” means any federal, state or local law,
statute, regulation or ordinance now or hereafter in force, as amended from
time to time, pertaining to materials, substances or wastes which are injurious
or potentially injurious to human health or the environment or the release,
disposal or transportation of which is otherwise regulated by any agency of the
federal, state or any local government with jurisdiction over the Property or
any such material, substance or waste removed therefrom, or in any way
pertaining to pollution or contamination of the air, soil, surface water or
groundwater, including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.
Section 9601 et seq.),
the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
Section 6901 et seq.),
the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Safe Drinking Water Act
(42 U.S.C. Section 300f et seq.),
the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Toxic Substance Control
Act (15 U.S.C. Section 2601 et seq.),
the Hazardous Substance Account Act (California Health and Safety Code
Section 25300 et seq.),
the Hazardous Waste Control Law (California Health and Safety Code
Section 25100 et seq.),
the Medical Waste Management Act (California Health and Safety Code
Section 25015 et seq.),
and the Porter-Cologne Water Quality Control Act (California Water Code
Section 13000 et seq.).


 


4.2                       Release
and Indemnity


 


(a)                     Without
limiting the provisions of Section 4.1, except as set forth in
Section 4.2(d) below, Buyer waives its right to recover from the Seller-Related
Parties, and forever releases, covenants not to sue and discharges the
Seller-Related Parties from, any and all damages, demands, claims, losses,
liabilities, penalties, fines, liens, judgments, costs or expenses whatsoever,
including attorneys’ fees and costs, whether direct or indirect, known or
unknown, foreseen or unforeseen, that may arise on account of or in any way be
connected with the physical condition of the Property, including, but not
limited to, the presence of any Hazardous Materials on, in, under or about the
Property, except for any liability of Seller for any breach of any
representation or warranty set forth in Section 4.3 below, which liability
shall survive the


 


9





















 


Closing only for the Survival
Period (as defined in Section 4.5 below) and shall be subject to the
limitation on liability set forth in Section 4.5 below.


 


(b)                    In the event
the Closing occurs, Buyer shall indemnify, defend and hold harmless the
Seller-Related Parties from and against any and all suits, actions,
proceedings, investigations, demands, claims, liabilities, fines, penalties,
liens, judgments, losses, injuries, damages, expenses or costs whatsoever,
including attorneys’ and experts’ fees and costs and investigation and
remediation costs (“Claims”),
asserted by the party originally identified as Buyer herein (“Original Buyer”), or any
assignee thereof, or the partners, members, trustees, shareholders, directors
or officers of any party owning a direct or indirect interest in Original Buyer
or any such assignee, or any affiliate of Original Buyer or any such assignee
possessing at any time an ownership interest (whether direct or indirect) in
the Property (including any party which may hereafter become an affiliate of
Original Buyer or any such assignee), arising from, relating to, or occasioned
in any way by the physical condition of the Property, including, but not
limited to, the presence of any Hazardous Materials on, in, under or about the
Property, except for any liability of Seller for any breach of any
representation or warranty set forth in Section 4.3 below, which liability
shall survive the Closing only for the Survival Period and shall be subject to
the limitation on liability set forth in Section 4.5 below.


 


(c)                     Except as set
forth in Section 4.2(d) below, the release set forth in Section 4.2(a)
above, and the indemnification set forth in Section 4.2(b) above, includes
claims, liabilities and other matters of which Buyer is presently unaware or
which Buyer does not presently suspect to exist which, if known by Buyer, would
materially affect Buyer’s willingness to enter into the release and
indemnification of the Seller-Related Parties set forth in Sections 4.2(a)
and 4.2(b).  In this connection and to
the fullest extent permitted by law, Buyer hereby agrees, represents and
warrants that Buyer realizes and acknowledges that factual matters now unknown
to it may have given or may hereafter give rise to causes of action, claims,
demands, debts, controversies, damages, costs, loses and expenses which are
presently unknown, unanticipated and unsuspected, and Buyer further agrees,
represents and warrants that the release and indemnification set forth in
Sections 4.2(a) and 4.2(b) have been negotiated and agreed upon in light
of that realization and that Buyer nevertheless hereby intends to release,
discharge and acquit the Seller-Related Parties from any such unknown causes of
action, claims, demands, debts, controversies, damages, costs, losses and
expenses, except for any liability of Seller for any breach of any
representation or warranty set forth in Section 4.3 below, which liability
shall survive the Closing only for the Survival Period and shall be subject to
the limitation on liability set forth in Section 4.5 below.  In connection with the release set forth in
Section 4.2(a) above, Buyer expressly waives the benefits of
Section 1542 of the California Civil Code which provides as follows:


 


A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS 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.


 


(d)                    The release set
forth in Sections 4.2(a) and 4.2(c) above shall not include any Claims
arising from the intentional misrepresentation of Seller.


 


10





















 


(e)                          The provisions of this
Section 4.2 shall survive the Closing.


 


4.3                       Representations
and Warranties of Seller


 


Seller represents and warrants to Buyer as follows:


 


(a)                     Seller is a
limited liability company, duly organized, validly existing and in good
standing under the laws of Delaware, and qualified to transact business and in
good standing in the State of California.


 


(b)                    Seller has the
power and authority to enter into this Agreement and convey the Property to
Buyer and to execute and deliver the other documents referred to herein and to
perform hereunder and thereunder on behalf of Seller.  This Agreement has been duly authorized,
executed and delivered by Seller and is, or when delivered shall be, a valid,
binding and enforceable obligation of Seller.


 


(c)                     Neither the
execution and delivery of this Agreement, the consummation of the transactions
contemplated by this Agreement, nor the compliance with the terms and
conditions hereof will violate, in any material respect, any statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge or other
restrictions of any government, governmental agency or court to which Seller is
subject.


 


(d)                    Seller is not
required to obtain the consent or approval of any government agency, department
or other government body to enter into this Agreement or if required, any such
required consents or approvals have been obtained.


 


(e)                     There are no general
assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy, existing, pending or, to Seller’s knowledge,
threatened against Seller.


 


(f)                       To Seller’s
knowledge, the reports, studies, assessments, investigations and other
materials to be made available to Buyer for its review pursuant to
Section 3.1(f)(vii) above, shall constitute all written materials in the
possession, custody or control of Seller or its property manager related to the
presence of Hazardous Materials at, on or under the Property and the compliance
of the Property with Hazardous Materials Laws; provided that Seller makes no
representation or warranty as to whether Buyer is entitled to rely on any such
reports, studies, assessments, investigations or other materials, and if Buyer
desires to rely on the same, Buyer shall be responsible for obtaining, at its
sole cost and expense, written permission from the preparer of any such items.


 


(g)                    Except as set
forth in the immediately following sentence, Seller has not received any
written notice within the twelve (12) month period immediately preceding
the Effective Date of any actions, suits or proceedings which are pending or
threatened in writing before any governmental department, commission, board,
bureau, agency or instrumentality that would, if determined adversely against
Seller, materially and adversely affect the Property.  To Seller’s knowledge, the City of Pleasanton
is currently studying the possibility of re-zoning certain portions of the
Hacienda Business Park for residential use (“Rezoning”),
however, as of the


 


11





















 


Effective Date, there has been
no final determination made by the City of Pleasanton regarding the Rezoning
that directly affects the Property.


 


(h)                    Seller has not
received any written notice within the twelve (12) month period
immediately preceding the Effective Date of any enacted, pending or proposed
condemnation proceedings relating to the Property.


 


(i)                        Seller has not
received written notice within the twelve (12) month period immediately
preceding the Effective Date of any uncured violation of any federal, state or
local law relating to the condition, use or operation of the Property which
would materially, adversely affect the intended development of the Property.


 


(j)                        Except as
disclosed to Buyer in the Due Diligence Items, Seller has received no written
notice of any violations of any Hazardous Materials Laws that have not been
cured or waived as of the Effective Date during its period of ownership of the
Property.


 


(k)                     To Seller’s
knowledge, all bills and claims for labor performed or materials furnished to
or for the benefit of the Property under contract with Seller for all periods
of time prior to the Effective Date or the Closing, as applicable, have been
paid in full and there are no mechanics’ or materialmen’s liens (whether or not
perfected) on or affecting the Property arising from any work under contract
with Seller.


 


4.4                       Seller’s
Knowledge


 


As used in this Agreement or in any documents
delivered pursuant hereto, the phrases “to Seller’s knowledge”, “known to
Seller”, “Seller has not received any notice”, or “Seller has not received any
written notice” (or similar words), shall mean that the representations and
warranties (or other provisions) qualified by any of such phrases are made
without investigation of the matters stated therein and are based solely on the
current actual knowledge of A. Corey Hansen.


 


4.5                       Survival
of and Limitations on Seller’s Representations and Warranties


 


All representations and warranties contained in
Section 4.3, are qualified by any information contained in any documents
or other material made available to Buyer in connection with its review of
matters pertaining to the Property pursuant to Section 3 above, including
any title report or survey made available to Buyer.  All representations and warranties of Seller
set forth in Section 4.3 are made as of the Effective Date.  In addition, as of Closing Date, Seller shall
provide Buyer with a certification regarding the accuracy of such
representations and warranties as of such date, including any exceptions or
qualifications thereto as of such date (“Seller’s
Closing Certification”). 
If any exceptions or qualifications to such representations and warranties
set forth in Seller’s Closing Certification are material, were not known to
Buyer as of the expiration of the Investigation Period, and are not acceptable
to Buyer in its sole discretion, Buyer may terminate this Agreement and receive
a refund of the Deposit, but Seller shall have no liability to Buyer as a
result of such qualification and exceptions. 
In addition, in the event Buyer has actual knowledge prior to the
Closing that any of the representations or warranties set forth in
Section 4.3 are not true, correct or complete, and Buyer nonetheless
proceeds with the purchase of the Property, such representations and warranties
shall be deemed to be qualified by


 


12





















 


all matters of which Buyer has
actual knowledge, and Buyer shall have no claim for breach of any such
representation or warranty to the extent it has actual knowledge prior to the
Closing of any inaccuracies therein.  The
representations and warranties of Seller set forth in Section 4.3, as
qualified by all matters of which Buyer has actual knowledge as of the Closing
and by any exceptions and qualifications set forth on Seller’s Closing
Certification, as qualified by all matters of which Buyer has actual knowledge
as of the Closing, shall survive the Closing of the transaction contemplated in
this Agreement and the delivery of the Grant Deed from Seller to Buyer for a
period of nine (9) months from and after the Closing Date (the “Survival Period”);
provided, however, that Buyer must give Seller written notice of any claim
Buyer may have against Seller for breach of any such representations and
warranties set forth in Section 4.3 (as modified by any exceptions and
qualifications set forth on Seller’s Closing Certification), prior to the expiration
of the Survival Period.  Any such claim
which Buyer may have which is not so asserted prior to the expiration of the
Survival Period shall not be valid or effective, and Seller shall have no
liability with respect thereto. 
Notwithstanding any provision of this Agreement to the contrary, in no
event shall Seller’s liability (i) for any breach of any representation or
warranty under this Agreement, (ii) pursuant to Seller’s Closing
Certification , or (iii) for any other Seller’s default, as described in
Section 10(b) below, exceed Six Hundred Twenty-Five Thousand Dollars
($625,000.00), in the aggregate.


 


4.6                       Representations
and Warranties of Buyer


 


Buyer represents and warrants to Seller as follows:


 


(a)                     Buyer is a
corporation, duly organized, validly existing and in good standing under the
laws of Delaware, and qualified to transact business and in good standing in
the State of California.


 


(b)                    Buyer has the
power and authority to enter into this Agreement and to execute and deliver the
other documents referred to herein and to perform hereunder and thereunder on
behalf of Buyer.  This Agreement has been
duly authorized, executed and delivered by Buyer and is, or when delivered
shall be, a valid, binding and enforceable obligation of Buyer.


 


(c)                     Neither the
execution and delivery of this Agreement, the consummation of the transactions
contemplated by this Agreement, nor the compliance with the terms and
conditions hereof will violate, in any material respect, any statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge or other
restrictions of any government, governmental agency or court to which Buyer is
subject.


 


(d)                    Buyer is not
required to obtain the consent or approval of any government agency, department
or other government body to enter into this Agreement or if required, any such
required consents or approvals have been obtained.


 


(e)                     There are no
general assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy, existing, pending or, to Buyer’s knowledge,
threatened against Buyer.


 


(f)                       Buyer has no
knowledge of any action, suit, arbitration, government investigation or
proceeding pending against Buyer which, if adversely determined, could
individually or in the


 


13





















 


aggregate materially interfere
with the consummation of the transaction contemplated by this Agreement.


 


4.7                       Survival
of Buyer’s Representations and Warranties


 


All representations and warranties of Buyer set
forth in Section 4.6 are made as of the Effective Date.  In addition, as of Closing Date, Buyer shall
provide Seller with a certification regarding the accuracy of such
representations and warranties as of such date, including any exceptions or
qualifications thereto as of such date (“Buyer’s
Closing Certification”). 
If the exceptions or qualifications to such representations and
warranties as of the Closing Date are material and are not acceptable to Seller
in its sole discretion, Seller may refuse to consummate this transaction and
exercise the remedy set forth in Section 10(a) below.  The representations and warranties of Buyer
set forth in Section 4.6, as qualified by any exceptions and
qualifications set forth on Buyer’s Closing Certification, shall survive the
Closing of the transaction contemplated in this Agreement and the delivery of
the Grant Deed from Seller to Buyer for the Survival Period; provided, however,
that Seller must give Buyer written notice of any claim Seller may have against
Buyer for breach of any such representations and warranties set forth in
Section 4.6 (as modified by any exceptions and qualifications set forth on
Buyer’s Closing Certification), prior to the expiration of the Survival
Period.  Any such claim which Seller may
have which is not so asserted prior to the expiration of the Survival Period
shall not be valid or effective, and Buyer shall have no liability with respect
thereto.


 


5.                      INTERIM OPERATION OF THE PROPERTY


 


(a)                     Following the
Effective Date, Seller shall cause the interior and exterior windows of the
Improvements to be washed.


 


(b)                    From and after
the Effective Date until the Closing Date, Seller shall cause the Property to
be maintained (including any landscaping) in a manner consistent with Seller’s
past practices.


 


(c)                     Notwithstanding
any provisions of this Agreement to the contrary, after the Effective Date,
Buyer shall have access to the Property for the purpose of planning and
designing Buyer’s desired improvements to the Property and Buyer may pursue any
permits or approvals necessary for such improvements.  In this regard, Buyer may file or cause to be
filed any application or make any request with any governmental or
quasi-governmental agency which would or could lead to a hearing before any
governmental or quasi-governmental agency or which would or could lead to a
change in zoning, parcelization, licenses, permits or other entitlements
(collectively, “Entitlements and Permits”)
so long as (i) no such Entitlements and Permits will be binding on Seller
or the Property unless the Closing actually occurs, and (ii) no staging or
construction shall be commenced on the Property prior to the Closing.  So long as no liability attaches to Seller by
cooperating with Buyer in Buyer’s effort to obtain the Entitlements and
Permits, Seller covenants and agrees to reasonably cooperate with Buyer, at
Buyer’s cost and expense, including executing documents necessary to apply for
the same which are required to be executed by an owner of property.


 


14





















 


(d)                    Buyer shall
indemnify, defend and hold harmless Seller and the Seller-Related Parties from
and against all claims, losses, costs, damages, demands, expenses and
liabilities (including reasonable attorneys’ fees, court costs and other
reasonable costs of defense) which may be asserted or recovered against any of
the foregoing parties arising by reason of the entries on the Property by Buyer
or its agents, representatives or other parties designated by Buyer in
connection with the Entitlements and Permits. 
Without limiting the generality of the foregoing indemnity, Buyer shall
remove any mechanic’s or other lien which may be recorded against the Property
by any party providing labor, materials or services at the request of
Buyer.  The obligations of Buyer under
this Section 5(c) shall survive the Closing or any expiration or
termination of this Agreement, however caused.


 


6.                      CONDITIONS TO CLOSING


 


6.1                       Conditions
to Buyer’s Obligations to Close


 


The obligation of Buyer to consummate the purchase
of the Property as contemplated by this Agreement is subject to the fulfillment
of each of the following conditions (in addition to such other items as are set
forth elsewhere in this Agreement as conditions to Buyer’s obligations to
close), any or all of which may be waived in whole or in part by Buyer to the
extent permitted by applicable law:


 


(a)                     Delivery
of Documents.  Seller
shall be ready, willing and able to deliver to Buyer all instruments and
documents to be delivered by Seller to Buyer at the Closing under the
provisions of this Agreement.


 


(b)                    Title
Policy.  The Title Company shall be
committed to issue at Closing an owner’s title insurance policy, or an
irrevocable binder to issue the same, dated as of the Closing Date, in the full
amount of the Purchase Price, showing title to the Premises in the name of
Buyer, the form of which shall be in the form agreed to between Buyer and the
Title Company prior to expiration of the Investigation Period; provided that
such form shall be modified as of the Closing Date to include any Permitted
Exceptions arising after the expiration of the Investigation Period (the “Title Policy”).


 


(c)                     Seller’s
Compliance.  Seller
shall have performed and satisfied all material covenants and material
obligations of Seller under this Agreement to the extent such covenants and
obligations are to be performed or satisfied as of the Closing Date.


 


The
conditions set forth in this Section 6.1 are solely for the benefit of
Buyer and may be waived only by Buyer. 
Buyer shall at all times have the right to waive any condition.  Any such waiver or waivers shall be in
writing and shall be delivered to Seller and Escrow Holder.  If any of the conditions in this Section 6.1
is not satisfied or has not been so waived by Buyer prior to the Closing Date,
Buyer shall deliver written notice to Seller describing the condition that has
not been satisfied or waived, and if such condition remains unsatisfied as of
the Closing Date, then Buyer shall have the right to terminate this Agreement
and the Escrow by written notice to Seller and Escrow Holder.  If Buyer terminates this Agreement in
accordance with the foregoing, the Deposit shall be refunded to Buyer, all
documents deposited into Escrow shall be returned to the party depositing such
documents, and neither party shall have any further rights or obligations


 


15





















 


under
this Agreement, except for those rights or obligations which expressly survive
the termination of this Agreement. 
Further, if the failure of such condition also constitutes a default of
Seller under this Agreement, then in lieu of terminating this Agreement, Buyer
may elect to proceed under either of the options provided under clauses (i)
or (iii) of Section 10(b).


 


6.2                       Conditions
to Seller’s Obligations to Close


 


The obligation of Seller to consummate the sale of
the Property as contemplated by this Agreement is subject to the fulfillment of
each of the following conditions (in addition to such other items as are set
forth elsewhere in this Agreement as conditions to Seller’s obligations to
close), any or all of which may be waived in whole or in part by Seller to the
extent permitted by applicable law:


 


(a)                     Deposit
of Funds.  Buyer shall
have deposited into Escrow the Purchase Price, subject to adjustment for any
prorations and credits provided hereunder, and all other monies required to be
deposited by Buyer hereunder.


 


(b)                    Delivery
of Closing Documents.  Buyer shall
be ready, willing and able to deliver to Seller all instruments and documents
to be delivered by Buyer to Seller at the Closing under the provisions of this
Agreement.


 


(c)                     Buyer’s
Compliance.  Buyer shall
have performed and satisfied all material covenants and material obligations of
Buyer under this Agreement to the extent such covenants and obligations are to
be performed or satisfied as of the Closing Date.


 


The
conditions set forth in this Section 6.2 are solely for the benefit of
Seller and may be waived only by Seller. 
Seller shall at all times have the right to waive any condition.  Any such waiver or waivers shall be in
writing and shall be delivered to Buyer and Escrow Holder.  If any of the conditions in this
Section 6.2 is not satisfied or has not been so waived by Seller prior to
the Closing Date, Seller shall deliver written notice to Buyer describing the
condition that has not been satisfied or waived, and if such condition remains
unsatisfied as of the Closing Date, then Seller shall have the right to
terminate this Agreement and the Escrow by written notice to Buyer and Escrow
Holder.  If Seller terminates this
Agreement in accordance with the foregoing, the Deposit shall be returned to
Buyer or paid over to Seller, as required by the terms of this Agreement, all
documents deposited into Escrow shall be returned to the party depositing such
documents, and neither party shall have any further rights or obligations under
this Agreement, except for those rights or obligations which expressly survive
the termination of this Agreement; provided, however, that if the failure of
such condition also constitutes a default of Buyer under this Agreement, then
the provisions of Section 10(a) shall apply, and the Deposit shall be paid
to Seller as liquidated damages, rather than being returned to Buyer.  Without limiting the foregoing, in the event
of Buyer’s default, Seller’s termination of this Agreement pursuant to this
Section 6.2 shall not constitute a waiver of Seller’s right to recover
liquidated damages from Buyer pursuant to Section 10(a).


 


16





















 


7.                      CLOSING AND TRANSFER OF TITLE


 


7.1                       Closing
Date


 


Provided that all of the conditions precedent to the
Closing have been satisfied or waived, the Closing shall be held, and delivery
of all items to be made at the Closing under the terms of this Agreement shall
be made, at the offices of the Escrow Holder at 8:00 a.m. California time
on August 1, 2005, or such earlier date and time as Buyer and Seller may
mutually agree upon in writing (the “Closing
Date”). 
Notwithstanding the foregoing, Seller shall have the right, by written
notice to Buyer given at least five (5) business days prior to the
then-scheduled Closing Date, to extend the Closing Date one or more times, but
in no event beyond September 1, 2005.


 


7.2                       Seller’s
Deliveries


 


At the Closing, or at such later date as may be
indicated below for any specific item, Seller shall deliver or cause to be
delivered to Buyer through the Escrow or otherwise, each of the following
instruments and documents, duly executed and acknowledged by Seller, as
appropriate:


 


(a)                     Grant Deed in
the form attached hereto as Exhibit A (the “Deed”),
subject only to the Permitted Exceptions.


 


(b)                    Bill of Sale in
the form attached hereto as Exhibit B.


 


(c)                     Originals (or,
if originals are unavailable, copies) of all assignable Permits and Warranties
(which may be delivered within five (5) days after the Closing), unless
the same are posted at the Property, and an Assignment and Assumption of
Permits, Intangible Property and Warranties with respect thereto in the form
attached hereto as Exhibit C.


 


(d)                    In the event
Buyer does not deliver a Rejection Notice in accordance with Section 3.5
above, a fully executed original (or a copy in the event the original is not
available) of the Miscellaneous Agreement (which may be delivered within
five (5) days after the Closing), and an Assignment and Assumption of
Miscellaneous Agreement with respect thereto in the form attached hereto as Exhibit D.


 


(e)                     Seller’s
Closing Certification, in the form attached hereto as Exhibit E.


 


(f)                       Any required
real estate transfer tax declarations or any other similar documentation
required to evidence the payment of any tax imposed by the state, county and
city on the transaction contemplated hereby.


 


(g)                    An affidavit
pursuant to Section 1445(b)(2) of the United States Internal Revenue Code
(the “Federal Code”), and on
which Buyer is entitled to rely, from Seller that it is not a “foreign person”
within the meaning of Section 1445(f)(3) of the Federal Code, in the form
attached hereto as Exhibit F attached hereto (the “FIRPTA Affidavit”).


 


(h)                    a properly
executed certificate (herein, a “Qualifying Certificate”) under Section 18662 of the California
Revenue and Taxation Code (“CALFIRPTA”)
certifying that Seller is not an


 


17





















 


“individual” seller under CALFIRPTA and either (i) has a permanent place
of business in California, or (ii) is qualified to do business in California or
(iii) is exempt from the CALFIRPTA withholding requirements (if so, such certificate
shall specify the applicable exemption).


 


(i)                        A
Designation Agreement in the form attached hereto as Exhibit
G.


 


(j)                        To
the extent in Seller’s possession or reasonable control, all keys and combinations
to all locks on the Improvements.


 


(k)                     Such
other customary documents and instruments as may be required by any other provision
of this Agreement or as may reasonably be required to carry out the terms and intent
of this Agreement; provided that Seller shall not be obligated to cause the delivery
of any such instrument or document that would increase or expand Seller’s obligations
or liability under this Agreement.


 


(l)                        Copies
of all books, records, and files of Seller in Seller’s possession relating to the
Premises and operations thereof (excluding any proprietary matters, such as appraisals
and tax returns), and, to the extent in Seller’s possession or available to Seller
at no material cost, architects’ drawings, blueprints and as-built plans for the
Improvements (all of which may be delivered within five (5) days after the Closing).


 


7.3                       Buyer’s Deliveries


 


At the Closing,
Buyer shall deliver or cause to be delivered to Seller each of the following instruments
and documents, duly executed and acknowledged by Buyer, as appropriate:


 


(a)                     Counterparts
of the closing documents referenced in Sections 7.2(c) and (i).


 


(b)                    Buyer’s
Closing Certification, in the form attached hereto as Exhibit
H.


 


(c)                     Such
other documents and instruments as may be required by any other provision of this
Agreement or as may reasonably be required to carry out the terms and intent of
this Agreement; provided that Buyer shall not be obligated to cause the delivery
of any such instrument or document that would increase or expand Buyer’s obligations
or liability under this Agreement.


 


7.4                       Possession of the Property; Condition
of Property


 


At the Closing,
possession of the Property shall be delivered to Buyer vacant and free of any occupants,
subject to the Permitted Exceptions.


 


18





















 


8.                      PRORATIONS AND ADJUSTMENTS


 


8.1                       General


 


The following adjustments
shall be made with respect to the Property, and the following procedures shall be
followed:


 


(a)                 Preparation of Prorations.  At least five (5) days before the Closing Date,
Seller shall prepare and deliver, or cause Escrow Holder to prepare and deliver,
to Buyer an unaudited statement for the Property (the “Preliminary
Proration Statement”) showing prorations for the items set forth
below, calculated as of 12:01 a.m. on the Closing Date, on the basis of a 365-day
year.  Buyer and its representatives shall
be afforded reasonable access to Seller’s books and records with respect to the
Property and Seller’s work papers pertaining to the Preliminary Proration Statement
to confirm the accuracy of the Preliminary Proration Statement.  Buyer and Seller shall agree upon any adjustments
to be made to the Preliminary Proration Statement before the Closing, and at the
Closing, Buyer or Seller, as applicable, shall receive a credit equal to the net
amount due Buyer or Seller, as applicable, pursuant to the Preliminary Proration
Statement as finally agreed upon by Buyer and Seller.  The items to be covered by the Preliminary Proration
Statement are as follows:


 


(i)                      non-delinquent
real property taxes and assessments; provided that if the real property tax assessment
for the fiscal year in which the Closing occurs has not been issued as of the Closing
Date, real property taxes shall be prorated based on the most recent assessed value
of the Property, multiplied by the current tax rate, and such tax proration shall
be subject to adjustment pursuant to subparagraph (b) of this Section 8.1;


 


(ii)                   the current installment
(only) on any improvement bonds which are a lien on the Property; Buyer shall take
the Property subject to all future installments of any improvement bonds;


 


(iii)                water, sewer and utility
charges;


 


(iv)               amounts payable under
the Miscellaneous Agreement;


 


(v)                  assessments under
the CC&Rs;


 


(vi)               permits, licenses and/or
inspection fees (calculated on the basis of the period covered), but only to the
extent transferred to Buyer; and


 


(vii)            any other expenses normal
to the operation and maintenance of the Property.


 


(b)                Post-Closing Adjustments.  Notwithstanding anything to the contrary contained
in this Section 8, (i) if the amount of the real property taxes and assessments
payable with respect to the Property for any period before Closing is determined
to be more than the amount of such real property taxes and assessments that is prorated
herein (in the case of the current year) or that was paid by Seller (in the case
of any prior year), due to a reassessment of the value of the Property or otherwise,
Seller and Buyer shall promptly adjust the proration of such real property taxes
and assessments after the determination of such amounts, and Seller shall pay to
Buyer any increase


 


19





















 


in the amount of such real property taxes and assessments applicable to
any period before Closing; and (ii) if the amount of the real property taxes and
assessments payable with respect to the Property for any period before Closing is
determined to be less than the amount of such real property taxes and assessments
that is prorated herein (in the case of the current year) or that was paid by Seller
(in the case of any prior year), due to an appeal of the taxes by Seller, a reassessment
of the value of the Property or otherwise, Seller and Buyer shall promptly adjust
the proration of such real property taxes and assessments after the determination
of such amounts (net of any costs incurred by Seller in connection with pursuing
any appeal thereof), and (A) Buyer shall pay to Seller any refund received by Buyer
representing such a decrease in the amount of such real property taxes and assessments
applicable to any period before Closing; and (B) Seller shall be entitled to retain
any refund received by Seller representing such a decrease in the amount of such
real property taxes and assessments applicable to any period before Closing.  Each party shall give notice to the other party
of any adjustment of the amount of the real property taxes and assessments payable
with respect to the Property for any period before Closing within thirty (30) days
after receiving notice of any such adjustment.


 


8.2                       Survival


 


The obligations
of Seller and Buyer under this Section 8 shall survive the Closing.


 


9.                      RISK OF LOSS AND INSURANCE PROCEEDS


 


9.1                       Minor
Loss


 


Buyer shall be
bound to purchase the Property for the full Purchase Price as required by the terms
hereof, without regard to the occurrence or effect of any damage to the Property
or destruction of any Improvements of any portion of the Property, provided that:  (a) the cost to repair any such damage or destruction
does not exceed ten percent (10%) of the Purchase Price; and (b) upon the Closing,
there shall be a credit against the Purchase Price due hereunder equal to the amount
of any insurance proceeds collected by Seller as a result of any such damage or
destruction, plus the amount of any insurance deductible and the amount of any uninsured
loss, less any sums expended by Seller toward the restoration or repair of the Property
as a result of such casualty; provided, however, that with respect to the deductible
under any policy of earthquake insurance or any uninsured loss, Seller shall have
no obligation to give Buyer a credit in excess of Fifty Thousand Dollars ($50,000.00)
in each instance.  If the proceeds have not
been collected as of the Closing, then such proceeds shall be assigned to Buyer
at Closing, and Buyer shall receive a credit from Seller at Closing equal to the
amount of the deductible under any policy of insurance pursuant to which such assigned
proceeds will be paid; provided that if Seller shall have expended any sums before
the Closing to repair or restore the Property, the amount expended by Seller shall
first be deducted from any credit due Buyer for the deductible under any insurance
policy, and if the amount expended by Seller exceeds the total amount of such deductible(s),
Seller shall reserve from the assignment of insurance proceeds to Buyer, the amount
of such excess.  If damage due to an earthquake
occurs or in the event of any uninsured loss and the cost to repair the damage or
loss, as applicable, exceeds Fifty Thousand Dollars ($50,000.00) in each instance,
then unless Seller notifies Buyer within twenty (20) days after the occurrence thereof
that it will waive the Fifty Thousand Dollar ($50,000.00) limitation on the credit
to Buyer, then such loss or damage shall be governed by Section 9.2.


 


20





















 


9.2                       Major
Loss


 


If the cost to
repair such damage or destruction to Property exceeds ten percent (10%) of the Purchase
Price or, if there is a condemnation of any portion of the Property, or in the case
of an uninsured loss or damage due to an earthquake which, under the terms of Section
9.1 above, is to be governed by this Section 9.2, then Buyer may, at its option
to be exercised by written notice to Seller within twenty (20) days after Seller’s
notice to Buyer of the occurrence of the damage or destruction or the commencement
of condemnation proceedings, either (a) elect to terminate this Agreement, in which
case the Deposit shall be refunded to Buyer, and neither party shall have any further
obligations under this Agreement, except for obligations which expressly state that
they shall survive termination of this Agreement, or (b) consummate the purchase
of the Property for the full Purchase Price as required by the terms hereof, subject
to the credits against the Purchase Price provided below.  If Buyer elects to proceed with the purchase of
the Property, then, upon the Closing, Buyer shall be given a credit against the
Purchase Price due hereunder equal to the amount of any insurance proceeds or condemnation
awards collected by Seller as a result of any damage or destruction or condemnation,
plus the amount of any insurance deductible, less any sums expended by Seller toward
the restoration or repair of the Property as a result of such casualty or condemnation;
provided, however, that with respect to the deductible under any policy of earthquake
insurance, Seller shall have no obligation to give Buyer a credit in excess of Fifty
Thousand Dollars ($50,000.00) ; provided, further, that with respect to any uninsured
loss, Seller shall have no obligation to give Buyer a credit in excess of Fifty
Thousand Dollars ($50,000.00).  If the proceeds
or awards have not been collected as of the Closing, then such proceeds or awards
shall be assigned to Buyer at Closing, and Buyer shall receive a credit from Seller
at Closing equal to the amount of the deductible under any policy of insurance pursuant
to which such assigned proceeds will be paid; provided that if Seller shall have
expended any sums before the Closing to repair or restore the Property, the amount
expended by Seller shall first be deducted from any credit due Buyer for the deductible
under any insurance policy, and if the amount expended by Seller exceeds the total
amount of such deductible(s), Seller shall reserve from the assignment of insurance
proceeds to Buyer, the amount of such excess. 
If Buyer fails to give Seller notice within such twenty (20) day period,
then Buyer will be deemed to have elected to proceed in accordance with clause (b)
above.


 


10.               DEFAULT


 


(a)     Buyer’s Default.  After
the expiration of the Investigation Period, if the Closing does not occur as a result
of Buyer’s default hereunder, including Buyer’s failure to timely deliver the Additional
Deposit, Seller’s sole and exclusive remedy shall be to terminate this Agreement
by giving written notice thereof to Buyer, whereupon the Deposit shall be paid to
Seller as liquidated damages, as Seller’s sole and exclusive remedy on account of
such default hereunder by Buyer; provided, however, that this provision will not
limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to Section
15.1 below, nor waive or affect any provisions of this Agreement which expressly
state that they shall survive the termination of this Agreement, and neither party
shall have any further liability or obligation to the other hereunder, except for
provisions of this Agreement which expressly state that they shall survive the termination
of this Agreement; provided, further, that if such default by Buyer occurs prior
to the Closing Date, and if such default is of a nature such that it can be cured
on or before the Closing Date, Seller shall give Buyer written notice of such default
prior to exercising its right to


 


21





















 


terminate this Agreement pursuant to this subparagraph (a), and Seller may
not exercise such termination right unless Buyer fails to cure such default on or
before the Closing Date.  The parties acknowledge
and agree that Seller’s actual damages in the event of Buyer’s default would be
extremely difficult or impracticable to determine.  After negotiation, the parties have agreed that,
considering all the circumstances existing on the date of this Agreement, the amount
of the Deposit is a reasonable estimate of the damages that Seller would incur in
such event.  The payment of the Deposit to
Seller as liquidated damages under the circumstances provided for herein is not
intended as a forfeiture or penalty within the meaning of Sections 3275 or 3369
of the California Civil Code, but is intended to constitute liquidated damages to
Seller pursuant to Sections 1671, 1676 and 1677 of the California Civil Code.  By placing their initials below, each party specifically
confirms the accuracy of the statements made above, the reasonableness of the amount
of liquidated damages agreed upon, and the fact that each party was represented
by counsel who explained, at the time this agreement was made, the consequences
of this liquidated damages provision.


 




	
  INITIALS:

  	
  FXT

  	
   

  	
  MJH

  
	
   

  	
  Seller

  	
   

  	
  Buyer

  






 


(b)                Seller’s Default.  If the Closing does not occur as a result of Seller’s
default hereunder, then, provided Buyer is not in default hereunder, Buyer may,
at its sole election, proceed with one of the following mutually exclusive alternatives:


 


(i)                      proceed with
the Closing with no reduction in the Purchase Price; provided, however, that in
proceeding with the Closing pursuant to this subparagraph (i), Buyer shall be deemed
to have waived any default of Seller of which Buyer has actual knowledge prior to
the Closing, unless Buyer gives Seller written notice of such default prior to the
Closing, which notice expressly states that Buyer intends to preserve a post-Closing
claim to such default; and provided, further, that:  (1) in no event shall Seller’s liability to Buyer
for any pre-Closing default not waived or deemed waived by Buyer (including, but
not limited to, any breach of any representation or warranty under this Agreement
or pursuant to Seller’s Closing Certification, as described in Section 4.5 above)
exceed, in the aggregate, Six Hundred Twenty-Five Thousand Dollars ($625,000.00);
and (2) no claim for any pre-Closing default of Seller shall be valid unless suit
thereon is filed in a court of competent jurisdiction prior to the expiration of
the Survival Period;


 


(ii)                   terminate this Agreement,
whereupon the Deposit shall be returned and paid to Buyer, and neither party shall
have any further liability or obligation to the other hereunder, except for provisions
of this Agreement which expressly state that they shall survive the termination
of this Agreement; provided, however, that if such default is of a nature such that
it can be cured on or before the Closing Date, Buyer shall give Seller written notice
of such default prior to exercising its right to terminate this Agreement pursuant
to this subparagraph (ii), and Buyer may not exercise such termination right unless
Seller fails to cure such default on or before the Closing Date; or


 


(iii)                file in any court of
competent jurisdiction an action for specific performance to cause Seller to convey
the Property to Buyer pursuant to the terms and conditions of this Agreement and
recovery of actual third party out-of-pocket costs incurred by Buyer in


 


22





















 


connection with this Agreement up to an amount not to exceed in the aggregate
Seventy-Five Thousand Dollars ($75,000.00); but Buyer shall not be entitled to recover
monetary damages from Seller in connection with such default.


 


11.               EXPENSES


 


(a)                     All
documentary stamp taxes and county transfer taxes shall be borne and paid by Seller,
and all recording fees and any city transfer taxes shall be borne and paid one-half
by Seller and one-half by Buyer.


 


(b)                    All
Escrow and Closing costs charged by the Escrow Holder, and any investment charges
or escrow fees incurred with respect to the Escrow shall be borne and paid by Buyer.


 


(c)                     The
cost of the Title Policy (including the cost of ALTA extended coverage and the cost
of all endorsements) shall be paid by Buyer.


 


(d)                    Buyer
shall pay its due diligence expenses, and each party shall pay its own attorneys’
fees in connection with the negotiation, documentation and consummation of the transactions
contemplated hereunder.  Each party shall
pay its own costs of preparing and/or reviewing the Preliminary Prorations Statement
and any Supplemental Prorations Statement in connection with this Agreement.  The provisions of this Section 11(d) shall survive
any termination of this Agreement.


 


(e)                     Other
costs, charges, and expenses shall be borne and paid as provided in this Agreement,
or in the absence of such provision, in accordance with the custom in the county
where the Premises are located.


 


12.               BROKERS


 


(a)                     Buyer
represents to Seller that it is represented by CB Richard Ellis, Inc. (“Buyer’s Broker”) whose commission
will be paid by Seller pursuant to the terms of a separate agreement between Buyer’s
Broker and Seller).  Buyer agrees to indemnify
and hold harmless the Seller-Related Parties, from and against all claims, demands,
causes of action, judgments, and liabilities which may be asserted or recovered
for brokerage or finders fees, commissions, or other compensation in connection
with the transaction contemplated under this Agreement claimed by any party other
than Broker (as defined below) to be owing to such party due to any dealings between
Buyer and the party claiming such fee, commission or compensation, including costs
and reasonable attorneys’ fees incident thereto.


 


(b)                    Seller
represents to Buyer that it is represented by Colliers Parrish International Inc.
(“Seller’s Broker”; together with
Buyer’s Broker, “Broker”) whose commission will
be paid by Seller pursuant to the terms of a separate agreement between Seller’s
Broker and Seller).  Seller agrees to indemnify
and hold harmless Buyer, the partners, members, trustees, shareholders, directors
and officers of Buyer, any party owning a direct or indirect interest in Buyer,
the affiliates of Buyer, and the partners, members, trustees, shareholders, directors,
officers, employees and agents of each of the foregoing parties (the “Buyer-Related Parties”), from
and against all claims, demands, causes of action, judgments, and liabilities which
may be asserted or recovered for brokerage or finders fees, commissions, or other
compensation in connection with


 


23





















 


the transaction contemplated under this Agreement claimed by any party other
than Broker to be owing to such party due to any dealings between Seller and the
party claiming such fee, commission or compensation, including costs and reasonable
attorneys’ fees incident thereto.


 


(c)                     The
parties hereto agree that the foregoing obligations of indemnification shall survive
the Closing hereunder or the expiration or termination of this Agreement, however
caused.


 


13.               ASSIGNMENT


 


Original Buyer
may, upon written notice to Seller given not later than ten (10) days before the
Closing, assign its right to purchase the Property hereunder to any other entity
that is (and as of the Closing shall continue to be) (i) controlled by Original
Buyer (and, if such entity is a partnership or limited liability company, Original
Buyer shall be a managing general partner of such partnership or a managing member
of such limited liability company, as the case may be) and (ii) an entity in which
Original Buyer shall own, directly or indirectly, at least fifty percent (50%) of
each class of stock or other equity interest, provided that such entity shall assume
all obligations of Buyer hereunder in a written agreement reasonably acceptable
to Seller, including, specifically, reaffirmation of the release and indemnification
set forth in Section 4.2 above.  Except in
compliance with the preceding sentence, Buyer may not assign this Agreement to any
other party without Seller’s prior written consent, which consent may be granted,
conditioned or denied in Seller’s sole and absolute discretion.  Notwithstanding anything herein to the contrary,
Buyer shall not in any event be released from any of its obligations or liabilities
hereunder in the event of any assignment by Buyer, including, but not limited to,
any obligations which survive the Closing, whether contained in this Agreement or
any document to be delivered by Buyer at the Closing, even if such document is signed
by the assignee of Buyer only.  Subject to
the limitations described herein, this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, and their respective successors and
assigns.


 


24





















 


14.               NOTICES


 


Any and all notices
or other communications required or permitted to be given under this Agreement shall
be in writing and either (i) personally delivered, in which case notice shall be
deemed delivered upon receipt, (ii) sent by facsimile, in which case notice shall
be deemed delivered upon the sender’s receipt of confirmation of transmission of
such facsimile notice produced by the sender’s facsimile machine, (iii) sent by
any nationally recognized overnight courier service with provisions for proof of
delivery, in which case notice shall be deemed delivered on the next business day
after the sender deposits the same with such delivery service, or (iv) sent by United
States Mail, postage prepaid, certified mail, return receipt requested, in which
case notice shall be deemed delivered on the date of delivery as shown on the return
receipt or the date of the addressee’s refusal to accept delivery as indicated by
the United States Postal Service, and in any case such notices or other communication
shall be addressed to the following addresses:


 




	
  Buyer:

  	
   

  	
  Simpson Manufacturing Co.,Inc.

  4120 Dublin Blvd.

  Dublin, California 94568

  
	
   

  	
   

  	
  Attention:

  	
  Michael Herbert

  
	
   

  	
   

  	
  Telephone:

  	
  (925) 560-9011

  
	
   

  	
   

  	
  Telecopy:

  	
  (925) 833-1498

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Shartsis Friese Ginsburg LLP

  One Maritime Plaza, 18th Floor

  San Francisco, California 94111

  
	
   

  	
   

  	
  Attention:

  	
  Alan Robin, Esq.

  
	
   

  	
   

  	
  Telephone:

  	
  (415) 421-6500

  
	
   

  	
   

  	
  Telecopy:

  	
  (415) 421-2922

  
	
   

  	
   

  	
   

  
	
  Seller:

  	
   

  	
  Las Positas LLC

  c/o DRA Advisors, LLC

  220 East 42nd Street, 27th Floor

  New York, New York 10017

  
	
   

  	
   

  	
  Attention:

  	
  Ms. Janine Roberts

  
	
   

  	
   

  	
  Telephone:

  	
  (212) 697-4740

  
	
   

  	
   

  	
  Telecopy:

  	
  (212) 697-7403

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Landmark Asset Management Group

  100 Bayview Circle, Suite 200

  Newport Beach, California 92660

  
	
   

  	
   

  	
  Attention:

  	
  Mr. A. Corey Hansen

  
	
   

  	
   

  	
  Telephone:

  	
  (949) 856-3100

  
	
   

  	
   

  	
  Telecopy:

  	
  (949) 856-3232

  






 


25





















 




	
  and a copy to:

  	
   

  	
  Morrison & Foerster LLP

  425 Market Street

  San Francisco, California 94105

  
	
   

  	
   

  	
  Attention:

  	
  Craig B. Etlin, Esq.

  
	
   

  	
   

  	
  Reference:

  	
  23573/107

  
	
   

  	
   

  	
  Telephone:

  	
  (415) 268-7000

  
	
   

  	
   

  	
  Telecopy:

  	
  (415) 268-7522

  






 


Either party may
change its address for notice from time to time by notice to the other party in
writing to the other in the manner aforesaid; provided that any such notice of change
of address shall only be effective upon actual receipt by the other party.


 


15.               MISCELLANEOUS


 


15.1                Attorneys’ Fees


 


In the event of
any litigation between the parties with respect to the Property, this Agreement,
the Escrow, the performance of their obligations hereunder or the effect of a termination
under this Agreement, the losing party shall pay all costs and expenses incurred
by the prevailing party in connection with such litigation including, without limitation,
reasonable attorneys’ fees and disbursements. 
Any such attorneys’ fees and other expenses incurred by either party in enforcing
a judgment in its favor under this Agreement shall be recoverable separately from
and in addition to any other amount included in such judgment, and such attorneys’
fees obligation is intended to be severable from the other provisions of this Agreement
and to survive and not be merged into any such judgment.  Notwithstanding any provisions of this Agreement
to the contrary, the obligations of the parties under this Section 15.1 shall survive
any termination of this Agreement and the Closing.


 


15.2                Gender


 


Words of any gender
used in this Agreement shall be held and construed to include any other gender,
and words in the singular number shall be held to include the plural, and vice versa,
unless the context requires otherwise.


 


15.3                Captions


 


The captions in
this Agreement are inserted only for the purpose of convenient reference and in
no way define, limit or prescribe the scope or intent of this Agreement or any part
hereof.


 


15.4                Construction


 


(a)                     No
provision of this Agreement shall be construed by any Court or other judicial authority
against any party hereto by reason of such party’s being deemed to have drafted
or structured such provisions.


 


(b)                    As
used herein, the terms “include”, “including” and similar terms shall be construed
as if followed by the phrase “but not limited to”.  The terms “hereof”, “herein” and “hereunder”,


 


26





















 


and words of similar import, shall be construed to refer to this Agreement
as a whole, and not to any particular article or provision, except as expressly
so stated.


 


(c)                     It
is the intent of the parties that all indemnification obligations of the either
party set forth in this Agreement shall apply without regard to whether or not (i)
the indemnifying party is negligent or otherwise at fault in any respect with regard
to the existence or occurrence of any of the matters covered by any such indemnification
obligation, or (ii) the indemnifying party otherwise caused or created, or is claimed
to have caused or created, the existence or occurrence of any of the matters covered
by any such indemnification obligation, whether through its own acts or omissions
or otherwise.


 


15.5                Business Days; Deadlines


 


As used in this
Agreement and any document executed by any party hereto to another party hereto
at the Closing, the term “business days” means all days of the year except Saturdays,
Sundays, and holidays recognized by the Federal Reserve Bank of San Francisco.  If a deadline provided in this Agreement or any
document executed by any party hereto to another party hereto at the Closing falls
on a day other than a business day, such deadline shall be extended until the first
business day thereafter.


 


15.6                Entire Agreement


 


This written Agreement,
including all Schedules and Exhibits attached hereto and documents to be delivered
pursuant hereto, shall constitute the entire agreement and understanding of the
parties, and there are no other prior or contemporaneous written or oral agreements,
undertakings, promises, warranties, or covenants not contained or merged herein.  The Schedules and Exhibits attached hereto are
hereby incorporated in and made part of this Agreement.


 


15.7                Recording


 


The parties agree
that this Agreement shall not be recorded. 
If Buyer causes this Agreement or any notice or memorandum thereof to be
recorded, this Agreement shall be null and void at the option of Seller.


 


15.8                No Continuance


 


Buyer acknowledges
that there shall be no assignment, transfer or continuance of Seller’s insurance
coverage after the Closing.


 


15.9                Time of Essence


 


Time is of the
essence of this Agreement.  In the computation
of any period of time provided for in this Agreement or by law, the day of the act
or event from which said period of time runs shall be excluded, and the last day
of such period shall be included, unless it is not a business day, in which case
the period shall be deemed to run until the next day which is a business day.


 


27





















 


15.10         Original Document


 


This Agreement
may be executed by all parties in counterparts in which event each shall be deemed
an original, and all of which shall constitute one and the same agreement.  Any signature on this Agreement, or any amendment
or modification thereof or any document or instrument signed by either of the parties
in connection therewith, that is sent by facsimile shall be considered valid and
binding.  A party sending a facsimile signature
shall on the same day send the executed document to Escrow Holder and to the other
party hereto by mail, courier or overnight courier.


 


15.11         Governing Law


 


This Agreement
shall be governed by and construed in accordance with the laws of the State of California.


 


15.12         Acceptance of Offer


 


In the event this
Agreement is executed only by Buyer or Seller, this Agreement shall be regarded
only as an offer to purchase or sell, as applicable, and shall not obligate either
Buyer or Seller until this offer is accepted by execution hereof by the other party
(the “Second Party”) and delivered
to the party that first executed this Agreement (the “First
Party”).  If the Second
Party has not accepted this offer and delivered a fully executed copy of this Agreement
to the First Party within five (5) business days after its submission by the First
Party, this offer shall be of no force or effect.


 


15.13         Confidentiality


 


(a)                     Buyer
and Seller shall each maintain as confidential any and all material or information
about the other, and, in the case of Buyer and its agents, employees, consultants
and contractors, about the Property, and shall not disclose such terms or information
to any third party, except, in the case of information about the Property, to Buyer’s
lender or prospective lenders, equity investors or prospective equity investors,
insurance and reinsurance firms, attorneys, and environmental assessment firms,
as may be reasonably required for the consummation of the transaction contemplated
hereunder and/or as required by law; provided that Buyer shall inform such parties
as to the confidentiality of such materials and information and use all reasonable
efforts to cause such parties to abide by the confidentiality provisions of this
Agreement; and provided, further, that, anything in this Agreement to the contrary
notwithstanding, Buyer shall have the right to file this Agreement with the Securities
and Exchange Commission, if Buyer determines that such filing is reasonably necessary
or reasonably advisable under the Securities Exchange Act of 1934, as amended.  In addition to, and without limiting the generality
of, the foregoing, with respect to any environmental assessment firm employed directly
or indirectly by Buyer for the purpose of reviewing or analyzing the condition of
the Property, Buyer shall obtain from any such party a confidentiality agreement
in the form attached hereto as Exhibit I for the benefit
of Seller.  Buyer shall notify Seller, by
facsimile, with a copy by regular mail, at least three (3) business days before
Buyer or Buyer’s agents, employees or contractors make any disclosure that such
party believes is required by law; provided that, if a court order of a court of
law with appropriate jurisdiction requires disclosure within a period of less than
three (3)


 


28





















 


business days, Buyer shall notify Seller by facsimile immediately upon receipt
of such order.  Further, Buyer agrees not
to use or to allow to be used any such information for any purpose other than in
connection with the transaction contemplated by this Agreement, including whether
to proceed with the contemplated purchase or to obtain a loan in connection therewith
or to obtain insurance.  This provision shall
survive the Closing or any termination of this Agreement, provided that Buyer shall
not be obligated to maintain as confidential any material about the Property after
the Closing.  If the purchase and sale of
the Property pursuant hereto does not close for any reason, Buyer shall return to
Seller all agreements (excluding this Agreement), documents, studies, reports and
other materials pertaining to the Property either delivered by Seller or Seller’s
agents to Buyer pursuant hereto, or obtained by or on behalf of Buyer during Buyer’s
investigation of the Property; provided that neither the fact that the purchase
and sale did not close nor the termination of this Agreement shall be regarded as
confidential or subject to this Section 15.13. 
Notwithstanding anything herein to the contrary, each party shall have the
right to disclose information relating to the Property to its partners and their
direct and indirect owners, and their respective officers, employees, directors
and representatives, and the provisions of this Section 15.13 shall in no event
apply to information which is or becomes generally available to the public other
than as a result of disclosure by such party.


 


(b)                    Certain
materials delivered or made available to Buyer pursuant to Sections 3.1(e) or 3.1(f)
above contain information related to properties owned by Seller which are adjacent
to or near the Property (the “Adjacent Properties”).  Buyer and its agents, employees, consultants and
contractors shall maintain as confidential any and all material or information about
the Adjacent Properties and shall not disclose such material or information to any
third party except as required by applicable law.  This provision shall survive the Closing or any
termination of this Agreement.


 


15.14         Section 1031 Exchange


 


Seller agrees to
cooperate with Buyer and any escrow holder or exchange facilitator selected by Buyer
in effecting a qualifying exchange or exchanges under Section 1031 of the Federal
Code undertaken by Buyer with respect to the Property, either through assignment
of this Agreement by Buyer to a qualified intermediary or through other means determined
by Buyer, and Seller shall execute such documents as may be reasonably requested
by Buyer provided that such documents shall not materially increase Seller’s obligations
over those otherwise contained in this Agreement.  Seller makes no representation to Buyer regarding
qualification of the exchange under Section 1031 of the Federal Code and shall not
be liable to Buyer in any manner whatsoever if the exchange completed in accordance
with this Section 15.14 should not qualify for any reason under Section 1031 of
the Federal Code.  Buyer hereby agrees to
indemnify Seller against all costs, expenses and liabilities incurred by Seller
in connection with any such exchange, to the extent the same would not have been
incurred by Seller in the absence of such exchange.  Notwithstanding anything in this Section 15.14
to the contrary, it is a condition precedent to Seller’s obligation to cooperate
with Buyer in any such exchange that:  (i)
no material change to the terms of this Agreement results therefrom, (ii) Seller
shall not be required to acquire or hold title to any real property for the purpose
of consummating the exchange, and (iii) consummation or accomplishment of such an
exchange shall not be a condition precedent or a condition subsequent to Buyer’s
obligations under this Agreement and shall not delay the Closing.


 


29





















 


15.15         Amendment


 


This Agreement
may be amended or modified only by a written agreement subsequently executed by
Buyer and Seller.


 


15.16         Waiver


 


No waiver of any
provision or condition of this Agreement by any party shall be valid unless in writing
signed by such party.  No such waiver shall
be taken as a waiver of any other or similar provision or of any future event, act,
or default.


 


IN WITNESS WHEREOF,
the parties have executed this Agreement as of the date first above written.


 


	
  BUYER:

  	
   

  	
  SIMPSON MANUFACTURING CO., INC.,
  

  
	
   

  	
   

  	
  a Delaware corporation 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/MICHAEL J. HERBERT

  	
   

  
	
   

  	
   

  	
  Name: 
  

  	
  Michael J. Herbert

  	
   

  
	
   

  	
   

  	
  Title:

  	
   Chief
  Financial Officer 

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date signed: 

  	
  March 30, 2005

  	
   

  
	
   

  	
   

  	
   

  
	
  SELLER:

  	
   

  	
  LAS POSITAS LLC, 

  
	
   

  	
   

  	
  a Delaware limited liability company 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  G&I II Las Positas LLC,

  
	
   

  	
   

  	
   

  	
  a Delaware limited liability company,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  G&I II Investment Las Positas Corp.,

  a Delaware corporation,

  its managing member 

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:  

  	
  /s/ FRANCIS X. TANSEY

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Francis X.
  Tansey

  	
   

  
	
   

  	
   

  	
   

  	
  Title: 

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date signed: March 28, 2005

  
												



 


30





















 


Title Company executes
this Agreement below solely for the purpose of acknowledging that it agrees to be
bound by the provisions of this Agreement relating to performance by the Title Company.


 


	
  TITLE COMPANY:

  	
   

  	
  CHICAGO TITLE INSURANCE COMPANY 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 


31





















 


SCHEDULE 1.1


 


DESCRIPTION OF THE LAND


 


The following
described real property in the City of Pleasanton, County of Alameda, State of
California:


 


PARCEL 1:


 


LOT 33, AMENDED PARCEL MAP 3858, FILED
NOVEMBER 3, 1986, SERIES NO. 86-272355. IN MAP BOOK 165, AT PAGES 1 THROUGH 20,
INCLUSIVE (FORMERLY IN MAP BOOK 167, AT PAGES 1 THROUGH 20, INCLUSIVE), ALAMEDA
COUNTY RECORDS.


 


PARCEL 2:


 


NON-EXCLUSIVE EASEMENT FOR
VEHICULAR (INCLUDING TRUCKS OF ALL SIZES) AND PEDESTRIAN INGRESS AND EGRESS,
APPURTENANT TO LOT 33 OF SAID AMENDED PARCEL MAP 3858, CREATED PURSUANT TO THAT
CERTAIN “CONFIRMATION OF EASEMENTS AND DECLARATION OF DRIVEWAY OBLIGATIONS”,
RECORDED SEPTEMBER 15, 1986, SERIES NO. 86-224964, OFFICIAL RECORDS, AND THAT
CERTAIN “CORPORATION GRANT DEED”, RECORDED SEPTEMBER 15, 1986, SERIES NO.
86-224965, OFFICIAL RECORDS OF ALAMEDA COUNTY, STATE OF CALIFORNIA, OVER, ALONG
AND ACROSS THE FOLLOWING STRIP OF LAND:


 


BEING A PORTION OF LOTS 32 AND
33, AS SAID LOTS ARE SHOWN ON PARCEL MAP 3858, FILED AUGUST 13, 1982, IN BOOK
135 OF MAPS, AT PAGE 49, OFFICIAL RECORDS OF ALAMEDA COUNTY; AS CORRECTED BY A
CERTIFICATE OF CORRECTION RECORDED APRIL 13, 1984, SERIES NO. 84-071572,
OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:


 


BEGINNING AT THE MOST
NORTHWESTERLY CORNER OF SAID 32, SAID POINT BEING THE MOST NORTHEASTERLY CORNER
OF SAID LOT 33, SAID POINT ALSO BEING ON THE GENERAL SOUTHERLY LINE OF WEST LAS
POSITAS BOULEVARD; THENCE NORTHEASTERLY ALONG THE GENERAL SOUTHERLY LINE OF
WEST LAS POSITAS BOULEVARD AND THE GENERAL NORTHERLY LINE OF SAID LOT 32, NORTH
68° 56’ 21” EAST, 39.16 FEET TO A POINT OF CUSP WITH A CURVE CONCAVE TO THE
SOUTHEAST, HAVING A RADIUS OF 15.00 FEET AND TO WHICH POINT A RADIAL LINE BEARS
NORTH 35° 53’ 45” WEST; THENCE LEAVING THE GENERAL NORTHERLY LINE OF SAID LOT
32 AND THE GENERAL SOUTHERLY LINE OF SAID WEST LAS POSITAS BOULEVARD,
SOUTHWESTERLY, SOUTHERLY AND SOUTHEASTERLY, 19.68 FEET ALONG SAID CURVE,
THROUGH A CENTRAL ANGLE OF 75° 09’ 54”; THENCE SOUTH 21° 03’ 39” EAST, 58-50
FEET; THENCE SOUTH 68° 56’ 21” WEST, 5.00 FEET TO THE BEGINNING OF A CURVE CONCAVE
TO THE SOUTHEAST, HAVING A RADIUS OF 8.00 FEET; THENCE SOUTHWESTERLY, SOUTHERLY
AND SOUTHEASTERLY, 12 .57 FEET ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 90°
00’ 00”; THENCE SOUTH 21° 03’ 39” EAST, 366.00 FEET TO THE GENERAL SOUTHERLY
LINE OF SAID LOT 32; THENCE SOUTHWESTERLY ALONG THE GENERAL SOUTHERLY LINE OF
SAID LOT 32. SOUTH 68° 56’ 21” WEST, 15.00 FEET TO THE MOST SOUTHWESTERLY CORNER
OF SAID LOT 32, SAID POINT BEING THE MOST SOUTHEASTERLY CORNER OF SAID LOT 33;
THENCE SOUTHWESTERLY ALONG THE GENERAL SOUTHERLY LINE OF SAID LOT 33, SOUTH 68°
56’ 21” WEST, 15.00 FEET; THENCE LEAVING THE GENERAL SOUTHERLY LINE OF SAID LOT
33, NORTH 21° 03’ 39” WEST, 432.50 FEET TO THE BEGINNING OF A CURVE CONCAVE TO
THE SOUTHWEST, HAVING A RADIUS OF 15.00 FEET; THENCE NORTHERLY. NORTHWESTERLY
AND WESTERLY, 19.68 FEET ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 75° 09’
54” TO A POINT OF CUSP WITH THE GENERAL SOUTHERLY LINE OF SAID WEST LAS POSITAS
BOULEVARD, SAID POINT BEING ON THE GENERAL NORTHERLY LINE OF SAID LOT 33;
THENCE NORTHEASTERLY ALONG THE GENERAL SOUTHERLY LINE OF SAID WEST LAS POSITAS
BOULEVARD AND THE GENERAL NORTHERLY LINE OF SAID LOT 33, NORTH 68° 56’ 21”
EAST, 26.16 FEET TO THE POINT OF BEGINNING.


 


EXCEPTING FROM PARCEL 2,
HOWEVER, ANY AND ALL PORTIONS THEREOF LYING WITHIN THE LINES OF PARCEL 1
HEREINABOVE.


 


ASSESSOR’S PARCEL NO. 941-2760-011


 





















 


SCHEDULE 3.2


 


ACCESS AGREEMENT


 


THIS AGREEMENT
(this “Agreement”) dated the 16th
day of March, 2005, is made by LAS POSITAS LLC, a Delaware limited liability company
(“Owner”), having an address c/o
DRA Advisors LLC, 220 East 42nd Street, New York, New York 10017, and SIMPSON MANUFACTURING COMPANY, INC., a
Delaware corporation (“Buyer”), having
an address at 1701 Ethel Cemetery Road, Collinsville, Texas 76233.


 


W I T N E S S E T H:


 


WHEREAS, Owner
and Buyer are currently negotiating a contract of sale (the “Contract”) for the purchase
and sale of the property commonly known as 5956 and 5964 W. Las Positas Blvd., Pleasanton,
California (the “Property”);


 


WHEREAS, Buyer
wishes to (i) conduct non-intrusive environmental and engineering inspections at
the Property and (ii) have access to all non-confidential records of Owner related
solely to the Property (collectively, the “Inspections”);
and


 


WHEREAS, Owner
has agreed to allow Buyer to conduct Inspections, subject to Buyer entering into
this Agreement and complying with the conditions set forth in this Agreement.


 


NOW, THEREFORE,
in consideration of the covenants, promises and undertakings set forth herein, and
for good and valuable consideration, receipt of which is hereby acknowledged, Owner
and Buyer hereby agree as follows:


 


Owner agrees to
allow Buyer, or Buyer’s agents, contractors or representatives, to access the Property
for the limited purpose of conducting the Inspections, subject to the following
terms and conditions:


 


1.                          The
Inspections shall only occur during business hours at reasonable times on reasonable
advance notice (at least two (2) Business Days’ prior written notice) to Owner,
subject to Owner’s prior consent, which consent shall not be unreasonably withheld.


 


2.                          Prior
to conducting the Inspections, Buyer shall submit for Owner’s approval the certificates
of insurance as required pursuant to Exhibit A annexed hereto
and neither Buyer nor its agents, contractors or representatives shall be permitted
to conduct the Inspections unless and until Owner approves such certificates.


 


3.                          Buyer
may not conduct any intrusive inspections or borings without Owner’s prior written
consent, which consent may be withheld, granted or granted upon conditions in Owner’s
sole and absolute discretion.


 


4.                          Owner
shall have the option to have an agent or employee accompany Buyer at all times
during its investigation or Inspection of the Property.


 


1





















 


5.                          Buyer
shall have no right to make inquiries of employees of Owner or its property manager
without Owner’s prior consent, which may be conditioned upon an agent or representative
of Owner accompanying Buyer and its agents or representatives during such inquiries.


 


6.                          Prior
to the termination of this Agreement, Buyer shall furnish Owner with copies of any
reports relating to the Inspections performed by Buyer or its agents, employees
or contractors.  If Buyer fails to purchase
the Property, all such reports shall become the property of Owner.


 


7.                          Any
and all work with respect to the Inspections shall be at Buyer’s sole cost and expense.


 


8.                          All
activities undertaken by Buyer in connection with the Inspections shall fully comply
with applicable laws and regulations.


 


9.                          Buyer
shall promptly restore at its sole cost and expense any damage arising in connection
with the Inspections.


 


10.                    Buyer
agrees to keep confidential and not to disseminate to any third party and to cause
its agents or representatives to keep confidential and not disseminate to any third
party, any information Buyer (and/or its agents or representatives) obtains as a
result of the Inspections, except to the extent disclosure is required by law.  This Section 10 shall survive the termination
of this Agreement.


 


11.                    Buyer
indemnifies and agrees to defend and hold Owner free and harmless from and against
any and all obligations, lawsuits, injuries, losses, damages, claims, liens, costs,
expenses, demands, liabilities, judgments, penalties, investigation costs, including
attorneys’ fees and costs, incurred in connection with, arising directly or indirectly
out of, or in any way connected with (i) the Inspections, (ii) any act or omission
of Buyer, its employees, agents, consultants, contractors or anyone acting by, through,
under, or at the direction, of the foregoing, in connection with this Agreement
or (iii) Buyer’s breach of any of the terms of this Agreement.  Without limiting the generality of the foregoing
indemnity, Buyer shall (i) keep the Property free and clear of any mechanics’ or
other lien which may be recorded or threatened against the Property by any party
providing labor, materials or services in connection with the Inspections and (ii)
not file or cause to be filed any application or make any request (other than inquiries
of the public records) with any governmental or quasi-governmental agency which
would or could lead to a hearing before any governmental or quasi-governmental agency
or which would or could lead to a note, notice or violation of law or municipal
ordinance, order or requirement imposed by such an agency, at the Property or any
change in zoning, parcelization, licenses, permits or other entitlements or any
investigation or restriction on the use of the Property, or any part thereof.  This Section 11 shall survive the termination
of this Agreement.


 


12.                    Owner,
but not any property manager of Owner, shall be solely authorized to furnish Buyer
with all non-confidential documents reasonably requested by Buyer in connection
with the Inspections which are then in the possession of Owner or Owner’s property
manager.


 


2





















 


13.                                                 All notices hereunder to Owner or Buyer shall
be sent by certified or registered mail, return receipt requested, or may be sent
by Federal Express or other overnight courier which obtains a signature upon delivery
or by fax transmission:


 


	
  Owner:

  	
   

  	
  LAS POSITAS LLC

  c/o DRA Advisors LLC

  220 East 42nd Street, 27th Floor

  New York, New York 10017

  
	
   

  	
   

  	
  Attention:

  	
  Janine Roberts

  
	
   

  	
   

  	
  Facsimile:

  	
  (212) 697-7403

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  Morrison & Foerster LLP

  425 Market Street

  San Francisco, California 94105

  
	
   

  	
   

  	
  Attention:

  	
  Craig B. Etlin, Esq.

  
	
   

  	
   

  	
  Facsimile:

  	
  (415) 268-7522

  
	
   

  	
   

  	
   

  
	
  Buyer:

  	
   

  	
  Simpson Manufacturing Company, Inc.

  1701 Ethel Cemetery Road

  Collinsville, Texas 76233

  
	
   

  	
   

  	
  Attention:

  	
  David Hendricks 

  
	
   

  	
   

  	
  Telephone:

  	
  (903) 429-6377 

  
	
   

  	
   

  	
  Telecopy:

  	
  (903) 429-4455

  
	
   

  	
   

  	
   

  
	
  with a copy
  to:

  	
   

  	
  Simpson Strong Tie

  P.O. Box 17

  Collinsville, Texas 76233

  
	
   

  	
   

  	
  Attention:

  	
  David Hendricks

  
	
   

  	
   

  	
  Telephone:

  	
  (903) 429-6377

  
	
   

  	
   

  	
  Telecopy:

  	
  (903) 429-4455

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Shartsis Friese Ginsburg LLP

  One Maritime Plaza, 18th Floor

  San Francisco, California 94111

  
	
   

  	
   

  	
  Attention:

  	
  Alan Robin, Esq.

  
	
   

  	
   

  	
  Telephone:

  	
  (415) 421-6500

  
	
   

  	
   

  	
  Telecopy:

  	
  (415) 421-2922

  



 


Notices shall be deemed served three (3) days after mailing,
and in the case of overnight courier or hand delivery, on the date actually delivered
to or rejected by the intended recipient, and in the case of facsimile, upon the
sender’s receipt of confirmation of transmission of such facsimile notice produced
by the sender’s facsimile machine, provided a copy of such transmission and the
confirmation receipt thereof is deposited with an overnight courier for next day
delivery properly addressed and paid for, except for notice(s) which advise the
other party of a change of address of the party sending such notice or of such party’s
attorney, which notice shall not be deemed served until actually received by the
party to whom such notice is addressed or delivery is refused by such


 


3





















 


party.  Notices on
behalf of the respective parties may be given by their attorneys and such notices
shall have the same effect as if in fact subscribed by the party on whose behalf
it is given.  Notwithstanding the foregoing
provisions of this Section (a) notices served by hand delivery shall be deemed served
on the date of delivery if delivered at or prior to 5:00 p.m. Eastern Time on a
Business Day and on the next Business Day if delivered after 5:00 p.m. Eastern Time
on a Business Day or at any time on a non-Business Day and (b) notices served by
facsimile shall be deemed served on the date of transmission if the sender receives
confirmation of transmission in the manner set forth above at or prior to 5:00 p.m.
Eastern Time on a Business Day, notices served by facsimile shall be deemed given
upon receipt if received at or prior to 5:00 p.m. Eastern Time on a Business Day
and on the next Business Day if received after 5:00 p.m. Eastern Time on a Business
Day or at any time on a non-Business Day.


 


14.                    Nothing
in this Agreement shall be deemed to impose an obligation on Owner to sell or enter
into a contract of sale to sell the Property to Buyer.


 


15.                    This
Agreement may be executed in two or more counterparts and each of such counterparts,
for all purposes, shall be deemed to be an original but all such counterparts together
shall constitute but one and the same instrument, binding upon all parties hereto,
notwithstanding that all of such parties may not have executed the same counterpart.  Facsimile signatures shall be binding.


 


16.                    Except
for those provisions expressly stated to survive the termination of this Agreement,
this Agreement shall terminate on the earlier to occur of (a) the closing under
the Contract, (b) the date on which the Contract expires, is terminated or is deemed
terminated and (c) the date on which Contract negotiations terminate pursuant to
notice sent by Owner to Buyer, provided that, Owner may at any time prior to the
execution of the Contract, terminate Buyer’s access to the Property for Inspections
or otherwise in Owner’s sole and absolute discretion for any reason or for no reason
whatsoever.


 


 


[signatures appear on the following page]


 


4





















 


IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement the day and year first above written.


 


	
  OWNER:

  	
   

  	
  LAS POSITAS LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  G&I II Las Positas LLC,

  a Delaware limited liability company,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  G&I II Investment Las Positas Corp.,

  a Delaware corporation,

  its managing member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ FRANCIS X. TANSEY

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Francis X.
  Tansey

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date signed:

  	
  March 17,
  2005

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BUYER:

  	
   

  	
  SIMPSON MANUFACTURING COMPANY, INC.,

  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ MICHAEL J. HERBERT

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael J. Herbert

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date signed:

  	
  March 16,
  2005

  	
   

  
											



 


5










 













 


EXHIBIT A


 


INSURANCE
REQUIREMENTS


 


Prior to performing Inspections at the Property,
Buyer and Buyer’s consultant and/or contractor and any subcontractor thereof (and
other agent, contractor or consultant of Buyer performing activities) shall have
and maintain insurance coverage in form and substance reasonably acceptable to Owner
complying with the requirements set forth below.


 


A.                   Required Types
of Insurance Coverage


 


1.                      Workers’ Compensation
and Employers’ Liability


 


(a)                  Statutory Worker’s
Compensation insurance as required by law.


 


(b)                 Employers’ Liability
insurance with limits of at least $1,000,000 per occurrence.


 


2.                      General Liability
Insurance


 


(a)                  Commercial General
Liability policy form on an occurrence basis including Premises/Operations Liability,
Contractual Liability (which shall include coverage for, but shall not limit, Buyer’s
indemnification obligations hereunder), Independent Contractors Coverage and Products/Completed
Operations Liability with the explosion, collapse and underground (XCU) exclusions
eliminated.


 


(b)                 Limits of Liability:
Five Million Dollars ($5,000,000) combined single limit for Bodily Injury and Property
Damage coverage.  Limits of Liability may
be provided under a Commercial General Liability and Umbrella Liability Policy,
if desired.


 


B.                     Additional
Requirements


 


1.                      Except where
prohibited by law, all insurance policies shall contain provisions that the insurance
companies waive the rights of recovery or subrogation against Owner, Owner’s agents
and employees, and their insurers.


 


2.                      Such insurance
shall not be subject to cancellation except upon thirty (30) days’ prior written
notice to Owner.


 


3.                      All insurance
required hereunder shall be with insurance companies which (i) are rated by Best’s
Insurance Reports, (ii) have a rating of at least A-(VIII) and (iii) are licensed
to do business in the state where the property is located.  Prior to commencement of the performance of the
Inspections, Buyer shall deliver to Owner certificates of insurance evidencing the
coverages required hereunder or such other evidence of compliance with the foregoing
insurance requirements as is required by, and satisfactory and acceptable to, Owner.


 


1





















 


4.                      The following
parties shall be named as additional insureds under the Commercial General Liability,
Automobile Liability (if any) and Umbrella Liability insurance policies required
to be maintained by Buyer and Buyer’s consultant and/or any subcontractor thereof:


 


LAS POSITAS LLC

c/o DRA Advisors LLC

220 East 42nd Street, 27th Floor

New York, New York 10017

Attention:  Janine Roberts


 


5.                      All Commercial
General Liability and Umbrella Liability policies maintained by Buyer and Buyer’s
consultant and/or any subcontractor thereof shall contain a cross-liability provision
and shall provide primary coverage as to Owner, and any other insurance available
to Owner shall be noncontributing therewith.


 


2





















 


EXHIBIT A


 


	
  RECORDING REQUESTED BY AND WHEN

  RECORDED RETURN TO:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MAIL TAX STATEMENTS TO:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Documentary Transfer Tax is not of public

  record and is shown on a separate sheet

  attached to this deed

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



(Space above this line for Recorder’s use)


 


 


GRANT
DEED


 


FOR VALUABLE CONSIDERATION, receipt of which is
hereby acknowledged, LAS POSITAS LLC, a Delaware limited liability company, hereby
grants to [BUYER NAME], a [Buyer Entity], the real property located in
the City of Pleasanton, County of Alameda, State of California, described on Exhibit
A attached hereto and made a part hereof.


 


This Deed is made and accepted subject to the
matters listed on Exhibit B attached hereto and made a part hereof.


 


Executed as of this          
day of                ,
2005.


 


	
  GRANTOR:

  	
   

  	
  LAS POSITAS LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  G&I II Las Positas LLC,

  a Delaware limited liability company,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  G&I II Investment Las Positas Corp.,

  a Delaware corporation,

  its managing member

  	 

	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
										



 


[Attach acknowledgment]


 


A-1





















 


EXHIBIT B


 


BILL
OF SALE


 


LAS POSITAS LLC, a Delaware limited liability
company (“Grantor”), for good and valuable
consideration to Grantor in hand paid by [BUYER
NAME], a [Buyer Entity]
(“Grantee”), the receipt and sufficiency
of which is hereby acknowledged, does hereby sell and deliver to Grantee all of
Grantor’s right, title and interest, if any, in and to the following:


 


All tangible personal property located on or used
exclusively in connection with those certain premises known as 5956 and 5964 W.
Las Positas Blvd., Pleasanton, California and described on Exhibit
A attached hereto (the “Premises”),
including, but not limited to, furniture, fixtures, and equipment (the “Personal Property”).


 


The Personal Property is in a used condition,
and Grantor is neither a manufacturer, nor distributor of, nor dealer nor merchant
in, said Personal Property.  Grantor makes
no representations, express or implied, as to the condition or state of repair of
the Personal Property, including warranties of fitness or merchantability, it being
expressly understood that the Personal Property is being sold to Grantee in its
present “AS IS, WHERE IS” condition and with all faults.


 


Grantor represents and warrants that it owns the
personal property free and clear of any leases, mortgages, encumbrances and security
interests.


 


By acceptance of delivery of the Personal Property,
Grantee affirms that it has not relied on Grantor’s skill or judgment to select
or furnish said Personal Property for any particular purpose, and that Grantor makes
no warranty that said Personal Property is fit for any particular purpose and that
there are no representations or warranties, express, implied or statutory, except
that Grantor represents and warrants that Grantor has not previously sold or conveyed
said Personal Property.


 


IN WITNESS WHEREOF, Grantor has executed this
Bill of Sale as of the           day
of               ,
2005.


 


	
  GRANTOR:

  	
   

  	
  LAS POSITAS LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  G&I II Las Positas LLC,

  a Delaware limited liability company,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  G&I II Investment Las Positas Corp.,

  a Delaware corporation,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
									



 


B-1





















 


EXHIBIT C


 


ASSIGNMENT
AND ASSUMPTION OF

PERMITS, INTANGIBLE PROPERTY AND WARRANTIES


 


THIS ASSIGNMENT AND ASSUMPTION OF PERMITS, INTANGIBLE
PROPERTY AND WARRANTIES (this “Assignment”) is
made as of this           day of                ,
2005, by and between LAS POSITAS LLC, a Delaware limited liability company (“Assignor”), and [BUYER NAME], a [Buyer Entity] (“Assignee”).


 


R E C
I T A L S:


 


A.       Assignor
and Assignee entered into that certain Purchase and Sale Agreement dated                   ,
2005 (the “Agreement”), pursuant to which
Assignor has agreed to sell to Assignee that certain office building commonly known
as 5956 and 5964 W. Las Positas Blvd., Pleasanton, California, and situated on the
land legally described in Exhibit A attached hereto (the “Premises”).


 


B.        Assignor
and Assignee are delivering this Assignment pursuant to the terms of the Agreement.


 


NOW, THEREFORE, in consideration of the mutual
covenants and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, covenant and agree as follows:


 


1.       Effective
on the date of the conveyance of the Premises by Assignor to Assignee (the “Conveyance Date”), Assignor
hereby transfers, assigns and sets over unto Assignee, without warranty as to transferability
or as to Assignee’s rights to use the same, all of Assignor’s right, title and interest,
if any, in and to:


 


(a)      all
assignable permits and licenses, copies of which have either been delivered to Assignee
or Assignee has reviewed or is aware of, to extent the same pertain to the Premises
(collectively, the “Permits”);


 


(b)      all
assignable trademarks and trade names, if any, and other intangible property used
exclusively in connection with the occupancy and operation of the Premises (the
“Intangible Property”); and


 


(c)      all
assignable warranties of any contractor, manufacturer or materialman which relate
to the Improvements or the Personal Property (as such terms are defined in the Agreement)
(the “Warranties”).


 


2.       Assignee
hereby accepts the foregoing assignment of the Permits, Intangible Property, and
Warranties.  Assignee does hereby assume and
become responsible for and agree to perform, discharge, fulfill and observe all
of the obligations, covenants and conditions of Assignor with respect to the Permits,
whether performance is required on, after or before the Conveyance Date,


 


C-1





















 


and Assignor shall have no obligation
or liability to Assignee for the performance, discharge, fulfillment or observation
of the same, whether required on, after or before the Conveyance Date.


 


3.         The
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.


 


4.         In
the event of any litigation between Assignor and Assignee arising out of the obligations
of the parties under this Assignment or concerning the meaning or interpretation
of any provision contained herein, the losing party shall pay all costs and expenses
incurred by the prevailing party in connection with such litigation including, without
limitation, reasonable attorneys’ fees and disbursements.  Any such attorneys’ fees and other expenses incurred
by either party in enforcing a judgment in its favor under this Assignment shall
be recoverable separately from and in addition to any other amount included in such
judgment, and such attorneys’ fees obligation is intended to be severable from the
other provisions of this Assignment and to survive and not be merged into any such
judgment.


 


5.         This
Assignment may be executed in counterparts, each of which shall be deemed an original,
and all of which shall taken together be deemed one document.  Assignor and Assignee agree that the delivery
of an executed copy of this Assignment by facsimile shall be legal and binding and
shall have the same full force and effect as if an original executed copy of this
Assignment had been delivered.


 


C-2





















 


IN WITNESS WHEREOF, Assignor and Assignee have
caused this Assignment to be duly executed as of the day and year first above written.


 


	
  ASSIGNOR:

  	
   

  	
  LAS POSITAS LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  G&I II Las Positas LLC,

  a Delaware limited liability company,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  G&I II Investment Las Positas Corp.,

  a Delaware corporation,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ASSIGNEE:

  	
   

  	
  [BUYER NAME],

  a [Buyer Entity]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  [Insert signature block]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
												



 


C-3





















 


EXHIBIT D


 


ASSIGNMENT
AND ASSUMPTION OF MISCELLANEOUS AGREEMENTS


 


THIS ASSIGNMENT AND ASSUMPTION OF MISCELLANEOUS
AGREEMENTS (this “Assignment”) is made this        
day of                  ,
2005, by LAS POSITAS LLC, a Delaware limited liability company (“Assignor”), and [BUYER NAME], a [Buyer Entity] (“Assignee”).


 


R E C
I T A L S:


 


A.       Assignor
and Assignee entered into that certain Purchase and Sale Agreement dated                 ,
2005 (the “Agreement”), pursuant to which
Assignor has agreed to sell to Assignee that certain office building commonly known
as 5956 and 5964 W. Las Positas Blvd., Pleasanton, California, and situated on the
land legally described in Exhibit A attached hereto (the “Premises”).


 


B.        Assignor
or its predecessor-in-interest has previously entered into that certain contract
with Waterworks for the maintenance of the fountain with respect to the Premises
(the “Miscellaneous Agreement”).


 


C.        Assignor
and Assignee are delivering this Assignment pursuant to the terms of the Agreement.


 


NOW, THEREFORE, in consideration of the mutual
covenants and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, covenant and agree as follows:


 


1.         Effective
on the date of the conveyance of the Premises by Assignor to Assignee (the “Conveyance Date”), Assignor
hereby transfers, assigns and sets over unto Assignee all of its right, title and
interest, if any, in and to the Miscellaneous Agreement.


 


2.         Assignee
does hereby accept the foregoing assignment of Miscellaneous Agreement and does
hereby assume as of the Conveyance Date and become responsible for and agree to
perform, discharge, fulfill and observe all of the obligations, covenants and conditions
of Assignor with respect to the Miscellaneous Agreement which are to be performed
on and after the Conveyance Date with the same force and effect as if Assignee were
party to the original Miscellaneous Agreement, and to indemnify Assignor with respect
to the same.


 


3.         The
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.


 


4.         In
the event of any litigation between Assignor and Assignee arising out of the obligations
of the parties under this Assignment or concerning the meaning or interpretation
of any provision contained herein, the losing party shall pay all costs and expenses
incurred by the prevailing party in connection with such litigation including, without
limitation, reasonable attorneys’ fees and disbursements.  Any such attorneys’ fees and other expenses incurred
by either party in enforcing a judgment in its favor under this Assignment shall
be recoverable


 


D-1





















 


separately from and in addition
to any other amount included in such judgment, and such attorneys’ fees obligation
is intended to be severable from the other provisions of this Assignment and to
survive and not be merged into any such judgment.


 


5.         This
Assignment may be executed in counterparts, each of which shall be deemed an original,
and all of which shall taken together be deemed one document.  Assignor and Assignee agree that the delivery
of an executed copy of this Assignment by facsimile shall be legal and binding and
shall have the same full force and effect as if an original executed copy of this
Assignment had been delivered.


 


IN WITNESS WHEREOF, Assignor and Assignee have
caused this Assignment to be duly executed as of the day and year first above written.


 


	
  ASSIGNOR:

  	
   

  	
  LAS POSITAS LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  G&I II Las Positas LLC,

  a Delaware limited liability company,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  G&I II Investment Las Positas Corp.,

  a Delaware corporation,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ASSIGNEE:

  	
   

  	
  [BUYER NAME],

  a [Buyer Entity]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  [Insert signature block]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
													



 


D-2





















 


EXHIBIT E


 


SELLER’S
CLOSING CERTIFICATION


 


Pursuant to Section 4.5 of that certain Purchase
and Sale Agreement (the “Agreement”) dated
as of                   ,
2005, between LAS POSITAS LLC, a Delaware limited liability company (“Seller”), and [BUYER NAME], a [Buyer Entity] (“Buyer”), Seller
hereby certifies to Buyer that all representations and warranties of Seller contained
in Section 4.3 of the Purchase Agreement are true, correct and complete as of the
date hereof.


 


Dated as of                  ,
2005.


 


	
  SELLER:

  	
   

  	
  LAS POSITAS LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  G&I II Las Positas LLC,

  a Delaware limited liability company,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  G&I II Investment Las Positas Corp.,

  a Delaware corporation,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
									



 


E-1





















 


EXHIBIT F


 


FIRPTA
AFFIDAVIT


 


CERTIFICATE OF TRANSFEROR OTHER

THAN AN INDIVIDUAL


 


Section 1445 of the Internal Revenue Code provides
that a transferee of a U.S. real property interest must withhold tax if the transferor
is a foreign person.  To inform [BUYER NAME], a [Buyer Entity] (“Transferee”),
the transferee of certain real property located in the County of Alameda, State
of California, commonly known as 5956 and 5964 W. Las Positas Blvd., that withholding
of tax is not required upon the disposition of such U.S. real property interest
by LAS POSITAS LLC, a Delaware limited liability company (“Transferor”), the undersigned
hereby certifies the following on behalf of Transferor:


 


1.         Transferor
is not a foreign corporation, foreign partnership, foreign trust, or foreign estate
(as those terms are defined in the Internal Revenue Code and Income Tax Regulations);


 


2.         Transferor
is not a disregarded entity as defined in Income Tax Regulations §1.1445-2(b)(2)(iii);


 


3.         Transferor’s
U.S. employer identification number is                         ;
and


 


4.         Transferor’s
office address is c/o DRA Advisors, LLC, 220 East 42nd Street, 27th Floor, New York,
New York 10017.


 


Transferor understands that this certification
may be disclosed to the Internal Revenue Service by Transferee and that any false
statement contained herein could be punished by fine, imprisonment, or both.


 


F-1





















 


Under penalty of perjury, I declare that I have
examined this certificate and to the best of my knowledge and belief it is true,
correct and complete, and I further declare that I have authority to sign this document
on behalf of Transferor.


 


Dated as of                  ,
2005.


 


	
  TRANSFEROR:

  	
   

  	
  LAS POSITAS LLC,

  a Delaware limited liability company

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
  By:

  	
  G&I II Las Positas LLC,

  a Delaware limited liability company,

  its managing member

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
  By:

  	
  G&I II Investment Las Positas Corp.,

  a Delaware corporation,

  its managing member

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  	 

											



 


NOTICE TO TRANSFEREE (BUYER):  You are required by law to retain this Certificate
until the end of the fifth tax year following the tax year in which the transfer
takes place and make the Certificate available to the Internal Revenue Service if
requested to do so during that period.


 


F-2





















 


EXHIBIT G


 


DESIGNATION
AGREEMENT


 


THIS DESIGNATION AGREEMENT (this “Agreement”) is entered into
as of                     ,
2005 by and among LAS POSITAS LLC, a Delaware limited liability company (“Seller”), [BUYER NAME], a [Buyer Entity] (“Buyer”), and CHICAGO
TITLE INSURANCE COMPANY, a                  
(“Escrow Holder”).


 


I.  RECITALS


 


A.       Pursuant
to that certain Purchase and Sale Agreement entered into by and between Seller and
Buyer, dated as of                ,
2005 (the “Purchase Agreement”), Seller
has agreed to sell to Buyer, and Buyer has agreed to buy from Seller, certain real
property commonly known as 5956 and 5964 W. Las Positas Blvd., Pleasanton, California,
and described more fully on Exhibit A attached hereto (the “Property”) (the purchase and
sale of the Property pursuant to the Purchase Agreement is sometimes referred to
below as the “Transaction”).


 


B.        Section
6045(e) of the United States Internal Revenue Code and the regulations promulgated
thereunder (collectively, the “Reporting Requirements”)
require an information return to be made to the United States Internal Revenue Service,
and a statement to be furnished to Seller, in connection with the Transaction.


 


C.        Pursuant
to Section 2 of the Purchase Agreement, an escrow has been opened with Escrow Holder
Escrow No. 741779 through which the Transaction will be or is being accomplished.  Escrow Holder is either (i) the person responsible
for closing the Transaction (as described in the Reporting Requirements) or (ii)
the disbursing title or escrow company that is most significant in terms of gross
proceeds disbursed in connection with the Transaction (as described in the Reporting
Requirements).


 


D.        Seller,
Buyer and Escrow Holder desire to designate Escrow Holder as the “Reporting Person”
(as defined in the Reporting Requirements) with respect to the Transaction.


 


II.  AGREEMENT


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, Seller, Buyer and Escrow
Holder agree as follows:


 


1.         Escrow
Holder is hereby designated as the Reporting Person for the Transaction.  Escrow Holder shall perform all duties that are
required by the Reporting Requirements to be performed by the Reporting Person for
the Transaction.


 


2.         Seller
and Buyer shall furnish to Escrow Holder, in a timely manner, any information requested
by Escrow Holder and necessary for Escrow Holder to perform its duties as Reporting
Person for the transaction.


 


3.         Escrow
Holder hereby requests Seller to furnish to Escrow Holder Seller’s correct taxpayer
identification number.  Seller acknowledges
that any failure by Seller to provide


 


G-1





















 


Escrow Holder with Seller’s correct
taxpayer identification number may subject Seller to civil or criminal penalties
imposed by law.  Accordingly, Seller hereby
certifies to Escrow Holder, under penalties of perjury, that Seller’s correct taxpayer
identification number is                  .


 


4.         The
names and addresses of the parties hereto are as follows:


 


	
  Buyer:

  	
   

  	
  Simpson Manufacturing Co., Inc.

  4120 Dublin Blvd.

  Dublin, California 94568

  
	
   

  	
   

  	
  Attention:

  	
  Michael Herbert

  
	
   

  	
   

  	
  Telephone:

  	
  (925) 560-9011

  
	
   

  	
   

  	
  Telecopy:

  	
  (925) 833-1498

  
	
   

  	
   

  	
   

  
	
  Seller:

  	
   

  	
  Las Positas LLC

  c/o DRA Advisors, LLC

  220 East 42nd Street, 27th Floor

  New York, New York 10017

  
	
   

  	
   

  	
  Attention:

  	
  Ms. Janine Roberts

  
	
   

  	
   

  	
  Telephone:

  	
   

  	
   

  
	
   

  	
   

  	
  Telecopy:

  	
  (212) 697-7403

  
	
   

  	
   

  	
   

  	
   

  
	
  Escrow Holder:

  	
   

  	
  Chicago Title Insurance Company

  388 Market Street

  San Francisco, California 94111

  Attention: Nicki Carr, Esq.

  
	
   

  	
   

  	
  Telephone: 

  	
  (415) 291-5153

  
	
   

  	
   

  	
  Telecopy: 

  	
  (415) 956-2175

  



 


5.         Each
of the parties hereto shall retain this Agreement for a period of four years following
the calendar year during which the date of closing of the Transaction occurs.


 


6.         This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which shall constitute one and the same agreement.


 


7.         This
Agreement shall be governed by and construed in accordance with the laws of the
State of California.


 


G-2





















 


IN WITNESS WHEREOF, the parties have entered into
this Agreement as of the date and year first above written.


 


	
  BUYER:

  	
   

  	
  [BUYER NAME],

  a [Buyer Entity]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  [Insert signature block]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SELLER:

  	
   

  	
  LAS POSITAS LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  G&I II Las Positas LLC,

  a Delaware limited liability company,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  G&I II Investment Las Positas Corp.,

  a Delaware corporation,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ESCROW HOLDER:

  	
   

  	
  CHICAGO TITLE INSURANCE COMPANY,

  
	
   

  	
   

  	
  a

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
														



 


G-3





















 


EXHIBIT H


 


BUYER’S
CLOSING CERTIFICATION


 


Pursuant to Section 4.7 of that certain Purchase
and Sale Agreement (the “Agreement”) dated
as of                      ,
2005, between LAS POSITAS LLC, a Delaware limited liability company (“Seller”), and [BUYER NAME], a [Buyer Entity] (“Buyer”), Buyer
hereby certifies to Seller that all representations and warranties of Buyer contained
in Section 4.6 of the Agreement are true, correct and complete as of the date hereof.


 


Dated:                    ,
2005.


 


	
  BUYER:

  	
   

  	
  [BUYER NAME], 

  a [Buyer Entity]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  [Insert signature block]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
								



 


H-1





















 


EXHIBIT I


 


CONFIDENTIALITY
AGREEMENT


 


[Letterhead
of Consultant]


 


            ,
2005


 


Las Positas LLC

c/o DRA Advisors, LLC

220 East 42nd Street, 27th Floor

New York, New York 10017

Attention:    Ms. Janine Roberts

Telecopy:     (212) 697-7403


 


Re:                 Due Diligence Investigation
of 5956 and 5964 W. Las Positas Blvd., Pleasanton, California


 


Ladies
and Gentlemen:


 


                                  ,
a                            
(“Consultant”), has been engaged
by [BUYER NAME], a [Buyer Entity] (“Buyer”),
to assist Buyer in conducting its due diligence investigation with respect to the
purchase by Buyer or an affiliate of certain real property, commonly known as 5956
and 5964 W. Las Positas Blvd., Pleasanton, California, (the “Property”), which is currently
owned by LAS POSITAS LLC, a Delaware limited liability company (“Seller”).  In order to induce Seller to grant Consultant
access to the Property and provide Consultant with confidential information of Seller,
Consultant agrees as follows:


 


1.         Consultant
shall maintain as confidential any and all material or information obtained about
the Property or Seller and shall not disclose such information to any third party,
except Buyer, Buyer’s lender or prospective lenders, Buyer’s attorneys, any other
consultants of Buyer who have signed confidentiality letters similar to this letter,
Seller, Seller’s attorneys and/or as required by law.  Consultant shall notify A. Corey Hansen, of Landmark
Asset Management Group, by facsimile at (949) 856-3232, with a copy by overnight
mail to the address noted above, at least three (3) days before it or its agents,
employees or contractors make any disclosure that such party believes is required
by law.


 


2.         Consultant
agrees not to use any information obtained about the Property or Seller for any
purpose other than assisting Buyer in determining whether to proceed with the contemplated
purchase of the Property or to obtain financing or insurance in connection with
Buyer’s purchase of the Property.


 


I-1





















 


3.         This
letter shall be of no further force or effect if the Property is actually purchased
by Buyer or its affiliate following the closing of such purchase, but shall continue
in effect if the Property is not actually acquired by Buyer or its affiliate.


 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  	
  ,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 


I-2





















 


EXHIBIT J


 


INVASIVE
TESTING REQUIREMENTS


 


1.            License
and Term of License.


 


(a)        Seller
hereby grants to Buyer and its employees, agents, contractors and consultants (collectively,
“Buyer’s Consultants”), a license
(the “License”) to enter upon, in
and below the surface of the Property for the purpose of performing certain environmental
and other inspections on or concerning the Property in accordance with the terms
of this Exhibit
K, which inspections
may include:  (i) research regarding the Property
and surrounding parcels as is generally conducted in a Level I or Phase I environmental
audit, surveying the Property, and conducting other non-invasive inspections of
the Property approved by Seller (the “Level
One Investigation”); and (ii) certain invasive investigations
and tests of the Property conducted after receipt of the prior written approval
of Seller, which approval shall not be unreasonably withheld, conditioned or delayed
(“Level Two Investigation”).  Prior to commencing any portion of the Investigation,
each of Buyer’s Consultants shall execute a confidentiality agreement (“Confidentiality Agreement”)
for the benefit of Seller in the form attached as Exhibit I to that certain
Purchase and Sale Agreement between Buyer and Seller (the “Agreement”).  The Level One Investigation and Level Two Investigation
shall be sometimes collectively referred to herein as the “Investigation,” which Investigation
and all related activities or events shall be limited and conducted as herein required,
all at Buyer’s sole cost and expense.  All
capitalized terms not defined herein shall be as defined in the Agreement.


 


(b)        Whenever
Seller’s or Buyer’s consent or approval is required pursuant to any provision of
this License, such consent must be in writing and, unless otherwise agreed hereunder,
may be given or denied in such party’s good faith discretion, but shall not be unreasonably
withheld, conditioned or delayed.


 


(c)        The
term of the License shall terminate on the earlier to occur of the termination of
the Agreement or Closing.


 


(d)        Buyer
shall, at its sole cost and expense, obtain all governmental permits and authorizations
required by any governmental agencies for the Investigation.  Buyer shall comply with, and shall cause all of
Buyer’s Consultants to comply with, all applicable governmental laws, regulations
and requirements in connection with the Investigation.  Notwithstanding the foregoing, Buyer and Buyer’s
Consultants shall maintain as confidential any and all material or information obtained
about the Property or Seller and shall not disclose such information to any third
party, except Buyer, Buyer’s lender or prospective lenders, Buyer’s attorneys, any
other consultants of Buyer who have signed a Confidentiality Agreement, Seller,
Seller’s attorneys and/or as required by law. 
Buyer and Buyer’s Consultant shall notify A. Corey Hansen, of Landmark Asset
Management Group, by facsimile at (949) 856-3232, with a copy by overnight mail
to the following address:  Landmark Asset
Management Group, 100 Bayview Circle, Suite 200, Newport Beach, California 92660,
Attention:  Mr. A. Corey Hansen, at least
three (3) days before it or its agents, employees or contractors make any disclosure
that such party believes is required by law.


 


J-1





















 


(e)        In
the event that this Agreement is terminated, the contract with Buyer’s Consultant
shall, at Seller’s request and option and at Seller’s cost, be assigned to Seller.


 


2.         Investigation:  Approval of Plans and Specifications.  Prior to commencement of any Level Two Investigation,
Buyer shall provide Seller, its environmental and other engineers and consultants
(collectively, “Seller’s Consultants”) with
a complete set of plans, drawings and specifications (the “Plans”) that define the work
to be performed on the Property pursuant to the Level Two Investigation.  Buyer shall not commence any Level Two Investigation
unless Seller has previously approved the Plans in writing.  All work shall be done in accordance with the
approved Plans and no change or modification shall be permitted without the prior
written consent of Seller.


 


3.         Investigation:  Diligent Prosecution of Work and Cooperation with
Seller.


 


(a)        The
Investigation shall be diligently performed and prosecuted to completion in a manner
that will not materially interfere with the operation or use of the Property.


 


(b)        Neither
Buyer nor Buyer’s Consultants shall enter the Property without providing at least
three (3) business days’ prior notice to Seller.  Seller shall, at Buyer’s cost, be present at all
times during the Investigation.  In the event
any samples of soil, gas, groundwater or any portion of the Property is removed
from the Property by Buyer (subject to the prior written approval of Seller, which
approval shall not be unreasonably withheld) for testing or further investigation,
Buyer shall remove sufficient quantities of such samples to enable Seller to also
undertake tests of such samples.


 


4.         Investigation:  Removal of Equipment and Restoration of Property.  Upon the earlier to occur of the completion of
the Investigation or any portion thereof, any equipment or materials are no longer
required to continue the Investigation, or termination of the Agreement, at Buyer’s
sole cost and expense, promptly remove any and all equipment and materials used
in conducting the Investigation, and upon the earlier to occur of the completion
of the Investigation or termination of the Agreement, Buyer shall restore the Property
to the condition existing prior to the commencement of the Investigation.  Buyer shall dispose of all soil, gas, and groundwater
samples obtained at, from or about the Property in compliance with law.


 


5.         Standard
of Work Performed.  Buyer warrants, represents
and agrees that the methods of performing the Investigation will conform to the
highest standards of environmental and other appropriate consultants as applied
by a firm of environmental or other appropriate consultants of national reputation
specializing in work of the type involved in the area in which the Property is located
and will comply with all federal, state and local laws, rules and regulations, and
all other applicable requirements of any governmental agencies having jurisdiction
over such matters.  Additionally, where customary
and appropriate, all soils, soil gas and water testing pursuant to the Investigation
shall be performed by a laboratory approved by the Environmental Protection Agency
and/or certified by the State of California. 
Buyer shall provide Seller with a copy of all reports prepared in connection
with the Investigation including, without limitation, the results of all testings.  Buyer will provide Seller with a copy of any other
reports obtained in connection with the Property.


 


J-2





















 


6.         Liens.  Buyer shall keep the Property free and clear of
all mechanics’, materialmen’s and other liens resulting from the Investigation or
any of its other work under this License.


 


7.         Revocation
of License.  The License shall be revocable
in whole or in part by Seller immediately upon termination of the Agreement or upon
notice from Seller to Buyer that Buyer has failed to comply with any provision of
this License or the Agreement.


 


8.         Indemnity.  To the extent permitted by law, except as provided
below Buyer shall protect, defend, indemnify and hold harmless Seller, Seller-Related
Parties and Seller’s Consultants, and any employee or agent of Seller, Seller-Related
Parties or Seller’s Consultants and each of them, against and from any and all claims,
demands, causes of action, damages, costs, expenses, losses and liabilities (including
reasonable attorneys’ fees, court costs and other reasonable costs of defense and,
in the event of any release of Hazardous Materials caused by Buyer, investigation
and remediation costs), at law or in equity, of every kind or nature whatsoever,
arising out of or related to the Investigation (other than mere discovery of existing
conditions, except to the extent such conditions are exacerbated by Buyer), Buyer’s
breach of the Agreement or this License or any acts by Buyer or Buyer’s Consultants.  The foregoing obligation shall not cover any claims,
demands, causes of action, damages, costs, expenses, losses and liabilities, at
law or in equity, which are attributable to, to the extent so attributable to, (i)
pre-existing adverse conditions affecting the Property, except to the extent such
conditions are exacerbated by Buyer (ii) Seller’s conduct, or (iii) Buyer’s discovery
of any information potentially having a negative impact on the Property, except
to the extent such negative impact is exacerbated by Buyer.


 


9.         Insurance.  Buyer shall obtain and maintain, and shall cause
each of Buyer’s Consultants to obtain and maintain, the insurance coverage specified
on Exhibit
A of the Access Agreement between Buyer and Seller during
the term of any entry upon the Property pursuant hereto.


 


10.       No
Presumption of Approval.  Nothing in this
Agreement shall be deemed to create any duty by Seller or Seller’s Consultants,
or their respective officers, employees or agents, arising from their review and/or
approval of Buyer’s plans, drawings, specifications, or from their physical inspection
of the Investigation.  Neither the review
and approval by Seller or its agents of Buyer’s plans, drawings and specifications
nor physical inspection by Seller or its agents of the Investigation or any other
work done under this Agreement shall be deemed a waiver of any rights Seller may
have under this License or the Agreement.q


 


J-3