THE ESCROW AGENT, IN CASH, CERTIFIED CHECK, BANK CASHIER'S CHECK, WIRE TRANSFER,
OR OTHER FORM OF READILY AVAILABLE FEDERALLY INSURED FUNDS, AN AMOUNT EQUAL TO
THE PURCHASE PRICE LESS THE DEPOSIT PLUS INTEREST EARNED, IF ANY, TOGETHER WITH
BUYER'S SHARE OF CLOSING COSTS AND PRORATIONS DUE AND PAYABLE BY BUYER IN
ACCORDANCE WITH THIS AGREEMENT. THE PURCHASE PRICE, SUBJECT TO ADJUSTMENTS AND
APPORTIONMENTS SET FORTH HEREIN, SHALL BE TRANSFERRED THROUGH THE ESCROW ON THE
CLOSING DATE TO THE ORDER OR ACCOUNT OF SELLER OR SUCH OTHER PERSON AS SELLER
MAY DESIGNATE IN WRITING.
3.
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. SELLER
REPRESENTS, WARRANTS AND ACKNOWLEDGES TO BUYER AND COVENANTS WITH BUYER AS
FOLLOWS:
3.1
AUTHORITY. SELLER IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF CALIFORNIA AND ALL DOCUMENTS EXECUTED BY
SELLER SHALL BE VALID, LEGAL AND BINDING OBLIGATIONS OF SELLER AT CLOSING. NO
CONSENT OF ANY THIRD PARTY IS REQUIRED IN ORDER FOR SELLER TO PERFORM ANY OF ITS
OBLIGATIONS HEREUNDER.
3.2
CONTRACTS. WITHIN FIVE (5) BUSINESS DAYS AFTER ESCROW AGENT'S
RECEIPT OF THE DEPOSIT, SELLER SHALL DELIVER TO BUYER COPIES OF ALL
CONSTRUCTION, EQUIPMENT LEASING, SERVICE, EQUIPMENT, SUPPLY, UTILITIES,
MAINTENANCE, OR CONCESSION OR OTHER AGREEMENTS RELATING TO THE OWNERSHIP, USE OR
OPERATION OF THE PROPERTY IN SELLER'S POSSESSION WHICH ARE CURRENTLY IN FORCE
WITH RESPECT TO THE PROPERTY (COLLECTIVELY, THE "CONTRACTS"). EXCEPT AS TO THOSE
CONTRACTS THAT BUYER NOTIFIES SELLER IN WRITING, PRIOR TO THE EXPIRATION OF THE
DUE DILIGENCE PERIOD, THAT BUYER ELECTS TO ASSUME AT CLOSING, ALL CONTRACTS
SHALL BE TERMINATED BY SELLER AT CLOSING. SUCH CONTRACTS, THAT BUYER ELECTS TO
CONTINUE IN ACCORDANCE WITH THE PRECEDING SENTENCE, IF ASSIGNABLE BY SELLER AT
NO COST TO SELLER (COLLECTIVELY, THE "ASSIGNED CONTRACTS"), SHALL BE ASSIGNED TO
AND ASSUMED BY BUYER AT CLOSING. TO SELLER'S ACTUAL KNOWLEDGE, THE ITEMS
DELIVERED TO BUYER PURSUANT TO THIS SECTION 3.2 SHALL BE ACCURATE AND COMPLETE
COPIES OF ALL OF THE CONTRACTS AFFECTING THE PROPERTY.
3.3
LEASES. SELLER HAS NOT LEASED OR LICENSED THE PROPERTY TO A THIRD
PARTY, AND THERE ARE NO OTHER PARTIES OCCUPYING, OR WITH A RIGHT TO OCCUPY, THE
PROPERTY.
3.4
DOCUMENTS. WITHIN FIVE (5) BUSINESS DAYS AFTER ESCROW AGENT'S
RECEIPT OF THE DEPOSIT, SELLER SHALL DELIVER TO BUYER ALL DOCUMENTS IN ITS
POSSESSION REGARDING THE PROPERTY, INCLUDING WITHOUT LIMITATION DOCUMENTS WITHIN
THE CATEGORIES LISTED IN EXHIBIT "D", ATTACHED HERETO (THE "PROPERTY
DOCUMENTS"). BUYER ACKNOWLEDGES RECEIPT, PRIOR TO THE EXECUTION DATE, OF THE
2
PROPERTY DOCUMENTS PRIOR TO THE DATE HEREOF, INCLUDING WITHOUT LIMITATION
DOCUMENTS RELATING TO THE ENVIRONMENTAL CONDITION OF AND REMEDIATION OF THE
PROPERTY COMPLETED BY SELLER AND APPROVED BY THE FREMONT FIRE DEPARTMENT IN
AUGUST, 2007. TO SELLER'S ACTUAL KNOWLEDGE, THE ITEMS DELIVERED TO BUYER
PURSUANT TO THIS SECTION 3.4 ARE ACCURATE AND COMPLETE COPIES OF ALL OF THE
PROPERTY DOCUMENTS AFFECTING THE PROPERTY. SELLER ALSO SHALL MAKE AVAILABLE TO
BUYER, IN SELLER'S OFFICE, ALL OF SELLER'S BOOKS AND RECORDS WITH RESPECT TO THE
PROPERTY.
3.5
MAINTENANCE OF