PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made and entered into as of the 19th day of
December, 1996, by and between XXXX XXXXXXX MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation, having its principal address
c/o The Real Estate Investment Group, Xxxx Xxxxxxx Xxxxx, X.X. Xxx
000, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter "Seller"), and ARDEN
REALTY LIMITED PARTNERSHIP, a Maryland limited partnership, having
an office address at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (hereinafter "Buyer");
WITNESSETH THAT:
WHEREAS, Seller is the owner of the premises known as 00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, containing
approximately 17,600 square feet of land improved with a building
containing approximately 42,510 square feet of space ("the
Premises"), more particularly described on Exhibit A attached
hereto and made a part hereof, and subterranean and surface
parking for approximately 99 automobiles, landscaping and other
amenities, and certain tangible and intangible personal property
(collectively, the "Property"); and
WHEREAS, Buyer desires to purchase the Premises and acquire
possession thereof in accordance with the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth the parties hereto mutually agree as
follows:
1. Purchase Price. The Premises are to be sold to Buyer for
the sum of Four Million Three Hundred Thousand dollars
($4,300,000.00) ("the Purchase Price"), which Buyer shall pay
to Seller on the Date of Closing by wiring immediately
available Federal funds to such bank account as may be
designated by Seller.
2. Deposit. Buyer shall deposit with Title Company (as
hereinafter defined) as escrow agent $100,000.00 by official
bank cashier's check or federal wire transfer of funds
simultaneously with the execution of this Agreement as a good
faith deposit (hereinafter, said deposit and such interest as
is earned thereon shall be referred to as "the Deposit"),
which Deposit shall be disposed of in the manner herein
provided. If Buyer performs all of its obligations under this
Agreement, the Deposit shall either be applied against the
Purchase Price or returned by escrow agent to Buyer on the
Date of Closing, as hereinafter provided. If Seller shall be
unable to deliver title and possession, as hereinafter
provided, or if Buyer shall fail to perform any of its
agreements hereunder, the Deposit shall be disposed of in the
manner hereinafter provided.
3. Closing. Subject to the provisions of this Agreement, the
grant deed representing fee title to the Premises shall be
delivered at 9 o'clock A.M., P.S.T., on December 30, 1996
("the Date of Closing" or "Closing"), at the offices of
Chicago Title Insurance Company located at 000 X. Xxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the "Title
Company").
4. Buyer's Review. Buyer shall have until 5 o'clock P.M.,
Boston time, on December 23, 1996 ("the Review Period") (a) to
obtain and review a commitment for title insurance and a
survey; (b) to make or have made such reasonable non-
destructive inspections as it desires of the Premises,
including, without limitation, the interior, exterior, and
structure of all improvements, and the condition of soils and
subsurfaces; and (c) to review all of Seller's financial
records, contracts, and leases relating to the Premises. All
such items shall be obtained and reviewed at Buyer's sole cost
and expense, except as otherwise expressly provided herein.
If Buyer has any objection to any of the matters set out in
(a), (b), or (c) of this section 4, it may either notify
Seller in writing of such objection on or before the end of
the Review Period ("Notice of Objection"), provided that with
such notice Buyer shall provide Seller with copies of all
written materials which provide or evidence the basis of any
such objection, or notify Seller in writing that this
Agreement is terminated ("Notice of Termination"). Any
matters not objected to in writing as herein provided shall be
deemed waived. Upon the expiration of the Review Period
without Notice of Objection or Notice of Termination, as
provided herein, or upon Seller's cure of Buyer's objections,
as provided in the following paragraph, or upon Buyer's actual
or deemed notification to Seller that Buyer will proceed
notwithstanding Seller's failure to cure Buyer's objections,
as provided in the following paragraph, the Deposit will
become nonrefundable, except in the case of Seller's default
hereunder.
If Seller is unwilling or unable to correct to Buyer's
satisfaction all defects to which Buyer has objected within 30
days after receipt of Notice of Objection (provided that
correction of defects objected to in the title commitment or
survey may be accomplished either by removing such defects or
by arranging for the title insurance policy to insure over
such defects; and provided further that Seller may use the
Purchase Price or any portion thereof to cure any such defects
which may be cured by instruments recorded on the Date of
Closing, or later if arrangements are made which are
satisfactory to Buyer and the Title Company), Seller shall, at
any time before the end of said 30-day period, so notify
Buyer, provided that if Seller fails to give such notice,
Seller shall be deemed to have notified Buyer on the 30th day
after receipt of Notice of Objection that Seller is unwilling
or unable to cure all defects to which Buyer has objected.
Buyer shall, within ten days after Seller has given or is
deemed to have given said notice, either (i) notify Seller
that it shall waive said defect(s) and proceed to closing, as
set out in section 3 hereof, or (ii) give Notice of
Termination, provided that if Buyer fails to give such notice,
Buyer shall be deemed to have notified Seller that it shall
waive all defects and proceed to closing. If any new matters
come to the attention of the Title Company after the close of
the Review Period but prior to the Closing Date which would
constitute exceptions on Buyer's title policy, Seller shall
promptly notify Buyer of such matters and Buyer shall have
five (5) business days in which to determine if such new
exceptions are acceptable or objectionable, and if necessary,
the Review Period shall be extended only for this purpose
until the completion of such five (5) business days.
Upon receipt of Notice of Termination the Deposit shall be
refunded and this Agreement shall become null and void, and
neither party shall be liable to the other for damages or
otherwise, except as otherwise expressly provided herein.
5. Condition of Premises. Buyer and Seller agree that,
subject to section 5A below, Buyer is acquiring the Premises
and any related personal property in their "AS IS" condition,
WITH ALL FAULTS, IF ANY, AND WITHOUT ANY WARRANTY, EXPRESS OR
IMPLIED. Neither Seller nor any agents, representatives, or
employees of Seller have made any representations or
warranties, direct or indirect, oral or written, express or
implied, to Buyer or any agents, representatives, or employees
of Buyer with respect to the condition of the Property, their
fitness for any particular purpose, or their compliance with
any laws, and Buyer is not aware of and does not rely upon any
such representation to any other party. Buyer acknowledges
that the Purchase Price might be higher if Buyer were not
acquiring the Property in "as is" condition. Buyer
acknowledges that it either has had or will have before the
Date of Closing the opportunity to make such inspections (or
have such inspections made by consultants) as it desires of
the Property and all factors relevant to its use, including,
without limitation, the interior, exterior, and structure of
all improvements, and the condition of soils and subsurfaces
(particularly with respect to the presence or absence of
hazardous substances).
After its inspections are completed, Buyer shall restore
the Premises and personal property to their condition prior to
Buyer's inspections. Buyer agrees to indemnify Seller for all
claims or damages arising out of Buyer's inspections,
including, without limitation, claims for personal injury or
property damage, and including all costs and attorneys' fees.
The obligations in this paragraph shall survive the Closing or
the termination of this Agreement for any reason, including
without limitation pursuant to section 4, 9, or 14 hereof.
Buyer hereby releases Seller and its agents,
representatives, and employees from any and all claims,
demands, and causes of action, past, present, and future, that
Buyer may have relating to (i) the condition of the Premises
and the personal property at any time, before or after the
Date of Closing, including, without limitation, the presence
of any hazardous substance, or (ii) any other matter
pertaining to the Premises or the personal property. This
release shall survive the Closing or the termination of this
Agreement for any reason. This release shall not apply to (x)
any presence or release of hazardous substances which first
occurred while Seller owned the Premises, and of which Buyer,
after having a phase I environmental site assessment performed
on the Premises, has no knowledge, or (y) any administrative
or judicial action brought against Buyer, without Buyer's
instigation, by an unrelated third party or governmental
entity, relating to a condition or event that occurred while
Seller owned the Premises, in which action Buyer may file a
third party complaint or similar pleading against Seller.
Seller shall deliver possession to Buyer, subject to the
matters set forth in section 7(a)(1) hereof, not later than
the Date of Closing, provided that all the terms and
conditions of this Agreement have been complied with. Seller
until the Date of Closing shall maintain, repair (subject to
section 9 hereof), manage, and operate the Premises in a
businesslike manner in accordance with Seller's prior
practices; shall comply with its contractual obligations as
owner of the Premises; shall maintain the types and amounts of
insurance that are in force on the date of execution hereof;
and shall not dissipate the Premises or remove any material
property therefrom, except in the ordinary course of business.
Between the date hereof and the Date of Closing, Seller will
not execute any new Leases or materially amend, terminate (except
upon a default by the tenant thereunder) or accept the surrender of
any existing tenancies or approve any subleases without the prior
consent of Buyer; provided however that Seller is authorized to
accept the termination of Leases at the end of their existing terms
and to expand, extend or renew any Leases pursuant to expansion,
extension or renewal options contained therein. With respect to
all new Leases executed after the Review Period expires which Buyer
has approved pursuant to this section 5, which new Leases require
the construction of tenant improvements after the date hereof
and/or the payment of leasing or brokerage commission(s) by
landlord, including without limitation brokerage commissions upon
the exercise by the tenant thereunder of an expansion, extension or
renewal option contained in such tenant's lease, Buyer shall: (a)
pay, and/or reimburse Seller at Closing for the paid portion of,
the cost of such improvements and such leasing or brokerage
commission(s) and any other costs associated with such Lease; and
(b) assume all of Seller's obligations as landlord thereunder with
respect to the payment of tenant improvements and brokerage
commissions after Closing. The failure of Buyer to notify Seller
of Buyer's consent or disapproval, within forty-eight (48) hours
after written request by Seller for such consent, to any Lease or
lease amendment submitted by Seller to Buyer after the expiration
of the Review Period shall be deemed to constitute Buyer's
disapproval.
5A. Representations and Warranties. (a) Seller represents and
warrants to Buyer as follows:
(1) Seller is an insurance company, duly organized, validly
existing, and in good standing under the laws of the Commonwealth
of Massachusetts and the State in which the Premises are located.
(2) Seller has all requisite power and authority to execute and
deliver this Agreement and to carry out its obligations hereunder
and the transactions contemplated hereby. This Agreement has
been, and the documents contemplated hereby will be, duly executed
and delivered by Seller and constitutes the Seller's legal, valid,
and binding obligation enforceable against Seller in accordance
with its terms. The consummation by Seller of the sale of the
Premises is not in violation of or in conflict with, nor does it
constitute a default under any term or provision of, the
organizational documents of Seller, or any of the terms of any
agreement or instrument to which Seller is a party, or by which
Seller is bound, or any provision of any applicable law,
ordinance, rule, or regulation of any governmental authority or
any provision of any applicable order, judgment, or decree of any
court, arbitrator, or governmental authority.
(3) Except as listed on Exhibit E hereto, to the best of Seller's
knowledge, Seller has not received, with respect to the Premises,
any notices from (i) any governmental agency of any violations of
building codes and/or zoning ordinances or other governmental
laws, regulations, or orders, (ii) any governmental agency of any
pending or threatened condemnation proceedings, or (iii) any party
of pending or threatened litigation affecting the Premises in any
way.
(4) To the best of Seller's knowledge, the list attached hereto
as Exhibit B is a true and complete list of all tenants and their
security deposits at the Premises, the leases to be provided by
Seller to Buyer during the Review Period are true and complete
copies of all existing leases for space at the Premises, and
Seller has paid all leasing commissions incurred by Seller as
owner of the Premises.
(5) To the best of Seller's knowledge, the list attached hereto
as Exhibit C is a true and complete list of all service and
management contracts affecting the Premises, and the contracts to
be provided by Seller to Buyer during the Review Period are true
and complete copies of all existing service and management
contracts for the Premises.
(6) To the best of Seller's knowledge, Seller has received no
notice of the presence of any hazardous substances, as defined by
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), 42 USC 9601(14), pollutants or
contaminants, as defined in CERCLA, 42 USC 9601(33), or hazardous
waste, as defined by the Resource Conservation and Recovery Act
("RCRA"), 42 USC 6903(5), or other similar applicable federal or
state laws and regulations, including, but not limited to,
asbestos and PCB's, at the Premises, except as set forth in the
report prepared by Xxxxx Xxxxx & Co., and dated June 7, 1994, and
except for minor amounts of substances customarily used in the
maintenance of properties similar to the Premises and maintained
in accordance with applicable laws.
(b) Buyer represents and warrants to Seller as follows:
(1) Buyer is a limited partnership, duly organized, validly
existing, and in good standing under the laws of Maryland and the
State in which the Premises are located.
(2) Buyer has all requisite power and authority to execute and
deliver this Agreement and to carry out its obligations hereunder
and the transactions contemplated hereby. This Agreement has
been, and the documents contemplated hereby will be, duly executed
and delivered by Buyer and constitutes its legal, valid, and
binding obligation enforceable against it in accordance with its
terms, and the consummation and performance by Buyer of the
transactions contemplated herein will not result in a violation of
or be in conflict with or constitute a default under any term or
provision of the organizational documents of Buyer, or any of the
terms of provisions of any agreement or instrument to which it is
a party, or by which it is bound, or of any term of any applicable
law, ordinance, rule or regulation of any governmental authority
or of any term of any applicable order, judgment, or decree of any
court, arbitrator, or governmental authority.
(c) The above-stated representations and warranties will
survive the Closing for a period of one year, before the
expiration of which the party claiming a breach must have filed an
action in a court of competent jurisdiction, and any
representation and warranty not specified in such action shall
expire. Buyer acknowledges that Seller has maintained no
employees at the Premises and that the Premises have during
Seller's ownership thereof always been managed by a third-party
manager, and that Seller has relied upon such manager for
knowledge and notice. The words "to the best of Seller's
knowledge" in this section 5A mean to the actual knowledge of Xxxx
Xxxxxxxx and Xxxxx Xxxxxx, the two employees of Seller who are
most familiar with the Premises and who have had the most contact
with the management company.
(d) Indemnification. Seller shall indemnify Buyer against
and hold Buyer harmless from any and all loss, cost, damage,
claim, liability or expense, including court costs and reasonable
attorneys' fees, for third party claims relating to the Premises
and arising out of or in connection with any act or omission of
Seller prior to closing (including any personal injury or property
damage of any kind whatsoever, including death, to property or
persons including employees and agents of Seller), unless caused
by Buyer. Buyer shall indemnify Seller against and hold Seller
harmless from any and all loss, cost, damage, claim, liability or
expense, including court costs and reasonable attorneys' fees, for
third party claims relating to the Premises and arising out of or
in connection with any act or omission of Buyer as a result of its
investigation of the Premises during the Review Period or
subsequent to the Closing (including any personal injury or
property damage of any kind whatsoever, including death, to
property or persons including employees and agents of Buyer),
unless caused by Seller. These covenants shall survive the
Closing.
5B. Conditions Precedent. (a) Conditions Precedent to Buyer's
Obligation to Close Escrow. The obligation of Buyer to consummate
the transactions contemplated hereby is subject to the following
conditions, inserted for Buyer's sole benefit and that may be
waived by Buyer only in writing at its sole option. Said
conditions are as follows:
1. Representations and Warranties True at Closing. The
representations and warranties of Seller contained in section 5A
of this Agreement shall be true on the date of Closing in all
material respects as though such representations and warranties
were made on and as of such date.
2. Delivery of Tenant Estoppels. Seller shall have delivered
to Buyer estoppel letters (the "Tenant Estoppels") from tenants
representing 85% of the leased area and from all tenants leasing
more than 3,500 square feet in the Premises in substantially the
form of Exhibit D attached hereto and forming a part hereof,
consistent in all material respects with the information to be
provided by Seller hereunder and certifying, inter alia, to the
effect that there are no defaults by landlord under the lease
known to tenant thereunder; that such lease is unmodified, except
as may be set forth therein, and in full force and effect; that
there are no defenses or offsets against the landlord known to
tenant thereunder; and that rental is current and has not been
paid more than one month in advance.
(b) Conditions Precedent to Seller's Obligation to Close
Escrow. The obligation of Seller to consummate the transactions
contemplated hereby is subject to the following conditions,
inserted for Seller's sole benefit and that may be waived by
Seller only in writing at its sole option. Said conditions are as
follows:
1. Representations and Warranties True at Closing. The
representations and warranties of Buyer contained in section 5A of
this Agreement shall be true on the date of Closing in all
material respects as though such representations and warranties
were made on and as of such date.
2. Delivery of Purchase Price and Documents. Buyer shall
have delivered all funds and documents to the Title Company
required by it hereunder to enable it to close pursuant to the
terms of this Agreement.
6. Adjustments and Prorations. All taxes, including, without
limitation, real estate taxes and personal property taxes,
collected rents, charges for utilities, including water,
sewer, and fuel oil, and for utility services, maintenance
services, maintenance and service contracts, all operating
costs and expenses, and all other income, costs, and charges
of every kind which in any manner relate to the operation of
the Premises (but not including insurance premiums) shall be
prorated to the Date of Closing, except that if Seller does
not receive the Purchase Price (by receipt of wired funds or
by receipt in hand of an official bank cashier's check) by 1
o'clock P.M., Boston time on the Date of Closing, all
prorations shall be made as of the following business day.
Rents shall be prorated on an as-collected basis, with first
rents collected after the Date of Closing credited toward
current rent, if owed, and the balance to delinquencies. The
Buyer shall receive credit for any post-closing unamortized
rental concessions granted by Seller prior to the date of this
Agreement. Buyer shall use reasonable efforts to assist the
Seller in collecting delinquent rent, but shall not be
required to file an action for the delinquency. Buyer shall
receive a credit for all security deposits set forth on
Exhibit B. If the amount of said taxes, assessments, or rents
is not known on the Date of Closing, they shall be apportioned
on the basis of the amounts for the preceding year, with a
reapportionment as soon as the new amounts can be ascertained.
If such taxes and assessments shall thereafter be reduced by
abatement, the amount of such abatement, less the reasonable
cost of obtaining the same, shall be apportioned between the
parties, provided that neither party shall be obligated to
institute or prosecute proceedings for an abatement unless
otherwise agreed. Buyer shall be responsible for the payment
of any assessments or notice of assessments made after the
date of execution hereof for any public improvement, provided
Buyer takes title hereunder. Any deposits on utilities paid
by Seller shall be returned to Seller. The foregoing
provisions of this section shall not apply to any taxes,
assessments, or other payments which are directly payable by
tenants under their leases or reimbursable by such tenants to
the owner of the Premises, as landlord, under their leases.
On the Date of Closing, Seller shall deliver to Buyer all
inventories of supplies on hand at the Premises owned by
Seller, if any, at no additional cost to Buyer.
7. Closing Documents. (a) Seller's Deliveries. Conditioned
upon performance by Buyer hereunder, Seller shall execute and
deliver to Buyer at the Closing the following documents
("Seller's Closing Documents"):
(1) Deed. A grant deed conveying marketable title to the
Premises subject to the following:
(A) All easements, conditions, restrictions, and
reservations of record set forth on the Schedule B of a
pro forma title policy from the Title Company, including
all private and public rights in highways and rights-of-
way;
(B) All building and zoning laws, ordinances, and State
and Federal regulations;
(C) Encroachments and all other matters that an accurate
survey might show, provided that the same do not
unreasonably interfere with the use of the Premises as an
office building;
(D) Rights of tenants in possession as tenants only; and
(E) Real estate taxes and all installments of special
assessments or levies not yet due and payable on the Date
of Closing.
(2) Xxxx of Sale. A xxxx of sale, assigning and
transferring to Buyer all of the right, title, and interest of
Seller in and to all tangible personal property, if any, owned
by Seller and located upon the Premises.
(3) Assignment of Leases. An assignment of leases,
tenancies, and security deposits, which will include an
indemnification by Seller of Buyer for all landlord
obligations accruing prior to the Date of Closing.
(4) Assignment of Service Contracts. An assignment of
maintenance and service contracts, which will include an
indemnification by Seller of Buyer for all owner obligations
accruing prior to the Date of Closing.
(5) Non-Foreign Certificate. A certification that Seller
is not a non-resident alien (a foreign corporation,
partnership, trust, or estate as defined in the Internal
Revenue Code and Treasury Regulations promulgated thereunder).
(b) Buyer's Deliveries. Conditioned upon performance by
Seller hereunder, Buyer shall execute and deliver to Seller at
the Closing the following documents:
(1) Assumption of Leases. An assumption of leases,
tenancies, and security deposits, which will include an
indemnification by Buyer of Seller for all landlord
obligations accruing on or after the Date of Closing.
(2) Assumption of Service Contracts. An assumption of
maintenance and service contracts, which will include an
indemnification by Buyer of Seller for all owner obligations
accruing on or after the Date of Closing.
(c) Other Closing Documents and Deliveries. Each party
shall deliver to the other party or the Title Company such
duly executed and acknowledged or verified certificates,
affidavits, and other usual closing documents respecting the
power and authority to perform the obligations hereunder and
as to the due authorization thereof by the appropriate
corporate, partnership, or other representatives acting for
it, as counsel for the other party or the Title Company may
reasonably request. Seller shall cause tenant notices to be
sent out at Closing. Seller shall deliver keys and personal
property located on the Premises and used in the operation of
the Premises at the Closing.
8. Costs. Buyer and Seller shall each pay one-half of the
escrow fee, while Seller shall pay the documentary transfer
tax (city and county) and the CLTA portion of the title
premium, plus the cost of any specific endorsements Seller
agrees to obtain to cure specific title objections of the
Buyer. Buyer shall pay the balance of the title premium
charges and the cost of recording the deed and other transfer
documents. Buyer shall pay its attorneys' fees, and the fees
and costs of any other professionals or consultants. Seller
shall pay its attorneys' fees, if any, incurred by Seller in
connection with this transaction, and the Broker's commission,
but only if, as, and when the transaction contemplated hereby
is fully consummated and the deed is recorded and the full
consideration therefor has been received by Seller.
9. Casualty or Condemnation. In the event that prior to the
Date of Closing either the improvements on the Premises are
damaged or destroyed, in whole or in part, by fire or other
cause, or any portion of the Premises becomes the subject of a
condemnation proceeding by a public or quasi-public authority
having the power of eminent domain, then either (a) the
parties shall proceed with the transaction contemplated
herein, in which event Buyer shall be entitled to receive any
insurance proceeds or condemnation awards, or (b) in the event
such damage, destruction, or condemnation involves, in the
reasonable estimation of Seller, a loss in an amount in excess
of ten per cent (10%) of the Purchase Price, or loss of all or
a material portion of access to the Premises, either party, at
its option, may terminate this Agreement by notice to the
other within ten (10) days of Buyer's receipt of Seller's
notice of such damage or proceeding, in which case the Deposit
shall be refunded, and thereafter neither party shall have any
further obligation or liability to the other by virtue of this
Agreement, except as otherwise expressly provided herein.
10. Insurance. Seller shall not be obligated to assign to
Buyer any fire, hazard, or liability insurance policies which
it holds respecting the Premises, and Seller shall have the
right to any and all refunds or rebates resulting from the
termination of such policies.
11. Broker's Commission. Buyer and Seller each hereby
warrants and represents to the other that it has dealt with no
broker or finder in connection with this transaction except
Xxxxxxx and Xxxxxxxxx and Westmac ("the Broker"), and that it
is not affiliated with the Broker in any way. Buyer and
Seller each hereby agrees to indemnify and hold the other
harmless from and against any and all claims for brokerage or
finder's fees or other similar commissions or compensation
made by any and all other brokers or finders claiming to have
dealt with the indemnifying party in connection with this
Agreement or the consummation of the transaction contemplated
hereby. The obligations in this section shall survive the
Closing or the termination of this Agreement for any reason,
including without limitation pursuant to section 4, 9, or 14
hereof.
12. Seller's Performance. The acceptance of Seller's Closing
Documents by Buyer shall be deemed to be a full performance
and discharge of every agreement and obligation of Seller
herein contained and expressed, except such as are, by the
terms hereof, to be performed after the delivery of said
instruments.
13. Recording Prohibited. This Agreement shall not be
recorded with Los Angeles County Records or in any other
office or place of public record. If Buyer shall record this
Agreement or cause or permit the same to be recorded, Seller
may, at its option, elect to treat such act as a default by
Buyer under this Agreement.
14. Remedies. If Seller defaults under this Agreement,
Buyer's sole remedy, at law or in equity, shall be one of
either (a) the return of the Deposit to Buyer, whereupon the
obligations of Seller under this Agreement shall terminate; or
(b) the right to obtain specific performance of Seller's
obligation to convey the Premises pursuant to this Agreement,
provided that in no event shall Seller be obliged to cure
defects objected to by Buyer pursuant to section 4 hereof. In
no event shall any officer, director, employee, agent, or
representative of Seller have any personal liability in
connection with this Agreement or transaction.
BUYER ACKNOWLEDGES THAT IF IT FAILS TO PURCHASE THE PREMISES
AS THE RESULT OF BUYER'S DEFAULT UNDER THIS AGREEMENT SELLER
SHOULD BE ENTITLED TO COMPENSATION FOR THE DETRIMENT RESULTING
THEREFROM, AND THEREFORE THE PARTIES AGREE AS FOLLOWS: IF
BUYER SHALL DEFAULT IN ITS OBLIGATIONS TO PURCHASE THE
PREMISES, SELLER SHALL BE ENTITLED TO RETAIN AS AND FOR ITS
OWN PROPERTY, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, AN
AMOUNT EQUAL TO THE DEPOSIT, TOGETHER WITH ANY AND ALL
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) THAT SELLER
MAY INCUR IN COLLECTING SUCH LIQUIDATED DAMAGES. BOTH PARTIES
ACKNOWLEDGE AND AGREE THAT SAID AMOUNT IS PRESENTLY A
REASONABLE SUM CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING
ON THE DATE OF THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF
THE SUM TO THE RANGE OF HARM TO SELLER THAT REASONABLY COULD
BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL
DAMAGES WOULD BE COSTLY OR INCONVENIENT. IN PLACING THEIR
INITIALS AT THE PLACES PROVIDED,
SELLER /s/ JMG BUYER /s/ VJC
EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE
STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS
REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS
LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS
MADE. BOTH PARTIES AGREE THAT THIS SUM STATED AS LIQUIDATED
DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER
MIGHT OTHERWISE BE ENTITLED BY VIRTUE OF THIS AGREEMENT OR
OPERATION OF LAW.
Nothing in this section 14 shall limit the express
provisions of this Agreement obligating one party hereto to
indemnify the other or to restore the Premises, including
without limitation sections 5 and 11 hereof.
15. Assignment. This Agreement may not be assigned by Buyer
without the express written consent of Seller, which consent
Seller may in its sole discretion withhold, except that Buyer
may, without Seller's consent, assign this Agreement to a
limited partnership of which Buyer (or a principal of Buyer)
or any parent or any wholly owned subsidiary of Buyer are the
sole general partners. No such assignment shall operate to
relieve Buyer from any obligation hereunder.
16. Waiver. No waiver of any breach of any agreement or
provision contained herein shall be deemed a waiver of any
preceding or succeeding breach of any other agreement or
provision herein contained. No extension of time for the
performance of any obligation or act shall be deemed an
extension of time for the performance of any other obligation
or act.
17. Time. It is agreed that time is of the essence of this
Agreement.
18. Governing Law. This Agreement shall be construed under
the laws of the state in which the Premises are located.
19. Notices. All notices required or permitted to be given
hereunder shall be in writing and sent by overnight delivery
service (such as Federal Express), in which case notice shall
be deemed given on the day after the date sent, or by personal
delivery, in which case notice shall be deemed given on the
date received, or by certified mail, in which case notice
shall be deemed given three (3) days after the date sent, or
by fax (with copy by overnight delivery service), in which
case notice shall be deemed given on the date sent, to the
appropriate address indicated below or at such other place or
places as either Buyer or Seller may, from time to time,
respectively, designate in a written notice given to the other
in the manner described above.
To Seller: c/o The Real Estate Investment Group
Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000
Xxxxxx, XX 00000
Re: File No. ______________
Attention: Xxxx Xxxxxxxx, Investment Officer
Fax No.: (000) 000-0000 or 3866
With Copy To:Xxxx Xxxxxxx Mutual Life
Insurance Company
Law Department (T-50)
Xxxx Xxxxxxx Xxxxx, X.X. Xxx 000
Xxxxxx, XX 00000
Re: File No. ______________
Attention: Xxxxxx Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000 or 9269
To Buyer: Arden Realty Limited Partnership
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Ms. Brig Troy
Fax No.: (000) 000-0000
With Copy To:Xxxxxxx X. Xxxxxx, Esq.
Xxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
20. Confidentiality. Buyer shall not disclose the financial
and economic terms and conditions of the transaction
contemplated herein except as may be necessary in the ordinary
course of its business. All press releases or other
dissemination of information to the media, or responses to
requests from the media, for information relating to the
transaction contemplated herein shall be subject to the prior
written approval of Seller; provided that, following the
Closing, Seller's approval shall not be unreasonably withheld
or delayed. The obligations in this section shall survive the
Closing or termination of this Agreement for any reason.
21. Entire Agreement. This instrument, executed in
duplicate, sets forth the entire agreement between the parties
and may not be canceled, modified, or amended except by a
written instrument executed by both Seller and Buyer.
[Page Intentionally Ends Here]
IN WITNESS WHEREOF, the parties hereto have caused these presents
to be executed the day and year first above written.
SELLER: XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Investment Officer
BUYER: ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: ARDEN REALTY GROUP, INC.,
a Maryland corporation,
its sole general partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President and COO
The Company hereby agrees to furnish supplementally the omitted
exhibits and schedules to the Commission upon request.
