EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement")
is entered into as of September 5, 2003 (the "Effective Date"), by and between
METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation ("Seller") and
XXXXXXX PROPERTIES, INC., a Maryland corporation ("Purchaser").
W I T N E S S E T H:
ARTICLE I
PURCHASE AND SALE
SECTION 1.1 Agreement of Purchase and Sale. Subject to the
terms and conditions hereinafter set forth, Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase from Seller, the following:
(a) a ground leasehold interest in that certain tract or
parcel of land situated in Los Angeles County, California more particularly
described in Exhibit A attached hereto and made a part hereof, which ground
leasehold interest was created pursuant to the Ground Lease, as defined below,
together with all rights and appurtenances pertaining to such property,
including any right, title and interest of Seller in and to adjacent streets,
alleys or rights-of-way (the property described in clause (a) of this Section
1.1 being herein referred to collectively as the "Land"). As used in this
Agreement, the term "Ground Lease" means that certain Lease of Phase 1A dated as
of August 26, 1983 by and between The Community Redevelopment Agency of the City
of Los Angeles, California (the "Ground Lessor"), as lessor, and Bunker Hill
Associates ("BHA"), as lessee, as amended by that certain First Amendment of
Lease of Phase 1A dated as of September 13, 1985 by and between the CRA and BHA,
that certain Second Amendment of Lease of Phase 1A dated as of December 29, 1989
by and between the Ground Lessor and Grand Avenue Associates, and as modified by
Quitclaim Deed dated July 8, 1986 executed by Grand Avenue Associates in favor
of the Ground Lessor, by that certain Quitclaim Deed dated as of May 1990
executed by Grand Avenue Associates in favor of California Plaza Hotel L.P., and
the Ground Lessor, and by that certain Grant of Easements dated as of May 1990
executed by Hotel L.P. and the Ground Lessor in favor of Grand Avenue
Associates. The Ground Lease was assigned to Seller pursuant to that certain
Grant Deed of Improvements and Assignment of Leasehold and REA dated June 26,
1991, from Grand Avenue Associates, as grantor, to BHA and Seller, as grantees,
and that certain Grant Deed of Improvements and Assignment of Leasehold and REA
dated June 26, 1991 from BHA, as grantor, to Seller, as grantee.
(b) the buildings, structures, fixtures and other
improvements affixed to or located on the Land, including an office building and
a parking garage, but excluding fixtures owned by tenants except to the extent
Seller holds any residual or other rights in such fixtures (the
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property described in clause (b) of this Section 1.1 being herein referred to
collectively as the "Improvements");
(c) any and all of Seller's right, title and interest in
and to all tangible personal property located upon the Land or within the
Improvements, including, without limitation, any and all appliances, furniture,
carpeting, draperies and curtains, tools and supplies, and other items of
personal property owned by Seller (excluding cash and any software, but
including data retrievable from Seller's computer programs regarding the
operation and leasing of the Property), located on and used exclusively in
connection with the operation of the Land and the Improvements, which personal
property includes without limitation the personal property listed on Exhibit B
attached hereto (the property described in this clause (c) of this Section 1.1
being herein referred to collectively as the "Personal Property"). None of the
Purchase Price, as defined in Section 1.3 below, is being paid on account of or
allocated to the Personal Property, including to the personal property listed on
Exhibit B attached hereto;
(d) any and all of Seller's right, title and interest in
and to the leases, licenses and occupancy agreements and amendments and
guaranties thereof covering all or any portion of the Real Property (as defined
in Section 1.2 hereof), to the extent they are in effect on the date of the
Closing (as such term is defined in Section 4.1 hereof) (the property described
in this clause (d) of this Section 1.1 being herein referred to collectively as
the "Leases"), together with all rents, reimbursements of real estate taxes and
operating expenses, and other sums due thereunder (the "Rents") and any and all
security deposits in Seller's possession in connection therewith (the "Security
Deposits"); and
(e) any and all of Seller's right, title and interest in
and to (i) all assignable contracts and agreements (collectively, the "Operating
Agreements") listed and described on Exhibit C attached hereto and made a part
hereof, relating to the upkeep, repair, maintenance or operation of the Land,
Improvements or Personal Property, except for those with respect to which
Purchaser notifies Seller on or prior to the end of the Inspection Period (as
defined in Section 2.1 below) that it does not desire to acquire and assume as
of Closing, and (ii) all assignable existing warranties and guaranties (express
or implied) issued to Seller in connection with the Improvements or the Personal
Property, and (iii) all assignable existing permits, licenses, approvals and
authorizations issued by any governmental authority in connection with the
Property, (iv) the right to the names "California Xxxxx Xxxxx 0X" and "One
California Plaza," or variations thereof, to the extent Seller has any right in
such names, (v) all assignable plans and specifications for the Improvements,
and (vi) any entitlements or rights to develop additional improvements on the
Land (the property described in this clause (e) of this Section 1.1 being
sometimes herein referred to collectively as the "Intangibles").
SECTION 1.2 Property Defined. The Land and the Improvements
are hereinafter sometimes referred to collectively as the "Real Property." The
Land, the Improvements, the Personal Property, the Leases and the Intangibles
are hereinafter sometimes referred to collectively as the "Property."
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SECTION 1.3 Purchase Price. Seller is to sell and Purchaser is
to purchase the Property for the amount of Two Hundred Twenty Five Million
Dollars ($225,000,000) (the "Purchase Price").
SECTION 1.4 Payment of Purchase Price. The Purchase Price
shall be payable at Closing as follows:
(a) The Purchase Price, as increased or decreased by
prorations and adjustments as herein provided, less the amount of the Mortgage
Loan (as hereinafter defined), shall be payable in full by Purchaser in cash by
wire transfer of immediately available funds through disbursement to Seller at
the Closing to an account designated by Seller from funds deposited by Purchaser
in an account designated by Escrow Holder.
(b) Up to One Hundred Forty Six Million Two Hundred Fifty
Thousand Dollars ($146,250,000) pursuant to a mortgage loan (the "Mortgage
Loan") to be provided by Seller. The terms, provisions and conditions of the
Mortgage Loan are set forth in Article X hereof.
SECTION 1.5 Deposit.
(a) Within one (1) business day after the execution and
delivery of this Agreement, Purchaser shall deposit with Chicago Title Insurance
Company (the "Escrow Agent"), having its office at 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxx, the sum of
One Million Dollars ($1,000,000) (the "Initial Deposit") in good funds, either
by certified bank or cashier's check or by federal wire transfer. Unless this
Agreement shall have been terminated pursuant to the provisions hereof prior
thereto, no later that the expiration date of the Inspection Period, as defined
below, Purchaser shall deposit with Escrow Agent an additional sum of Three
Million Dollars ($3,000,000) (the "Additional Deposit") The Initial Deposit and
the Additional Deposit as deposited shall be known as the "Deposit." The Escrow
Agent shall hold the Deposit in an interest-bearing account reasonably
acceptable to Seller and Purchaser, in accordance with the terms and conditions
of this Agreement. All interest earned on the Deposit shall become a part of the
Deposit and shall be deemed income of Purchaser, and Purchaser shall be
responsible for the payment of all costs and fees imposed on the Deposit
account. The Deposit shall be distributed in accordance with the terms of this
Agreement. The failure of Purchaser to timely deliver any Deposit hereunder
shall be a material default, and shall entitle Seller, at Seller's sole option,
to terminate this Agreement immediately.
(b) FROM AND AFTER THE EXPIRATION OF THE INSPECTION
PERIOD, IN THE EVENT THE SALE OF THE PROPERTY AS CONTEMPLATED HEREUNDER IS NOT
CONSUMMATED FOR ANY REASON EXCEPT A DEFAULT UNDER THIS AGREEMENT ON THE PART OF
SELLER AND EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE DEPOSIT
(INCLUDING ALL INTEREST EARNED FROM THE INVESTMENT THEREOF) SHALL BE PAID TO AND
RETAINED BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT SELLER'S
ACTUAL DAMAGES IN THE EVENT THAT THE SALE IS NOT CONSUMMATED WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO
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DETERMINE. THEREFORE, BY SEPARATELY EXECUTING THIS SECTION 1.5(b) BELOW, THE
PARTIES ACKNOWLEDGE THAT THE NONREFUNDABLE DEPOSIT AND ANY INTEREST THEREON HAS
BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF
SELLER'S DAMAGES AND AS SELLER'S EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, AGAINST
PURCHASER IN THE EVENT THE CLOSING DOES NOT OCCUR AND AS SELLER'S SOLE AND
EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, AGAINST PURCHASER ARISING FROM SUCH
FAILURE OF THE SALE TO CLOSE, INCLUDING ANY RIGHT IN EQUITY TO SEEK SPECIFIC
PERFORMANCE OF THIS AGREEMENT, AND IS NOT INTENDED AS A FORFEITURE OR PENALTY,
BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. IN ADDITION,
PURCHASER SHALL PAY ALL TITLE, SURVEY AND ESCROW CANCELLATION CHARGES.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THIS SECTION 1.5(b) LIMIT THE
DAMAGES RECOVERABLE BY EITHER PARTY AGAINST THE OTHER PARTY DUE TO (A) THE OTHER
PARTY'S OBLIGATION TO INDEMNIFY SUCH PARTY IN ACCORDANCE WITH THIS AGREEMENT, OR
(B) THIRD PARTY CLAIMS. BY THEIR SEPARATELY EXECUTING THIS SECTION 1.5(b) BELOW,
PURCHASER AND SELLER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE ABOVE
PROVISION COVERING LIQUIDATED DAMAGES, AND THAT EACH PARTY WAS REPRESENTED BY
COUNSEL (OR HAS BEEN ADVISED TO BE REPRESENTED BY COUNSEL) WHO EXPLAINED THE
CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS
EXECUTED.
SELLER'S INITIALS PURCHASER'S INITIALS
__________________ ____________________
SECTION 1.6 Escrow Agent. Escrow Agent shall hold and dispose
of the Deposit in accordance with the terms of this Agreement. Seller and
Purchaser agree that the duties of the Escrow Agent hereunder are purely
ministerial in nature and shall be expressly limited to the safekeeping and
disposition of the Deposit in accordance with this Agreement, the consummation
of the Closing in accordance with the terms and provisions of this Agreement,
and the performance of any other obligations specifically made the
responsibility of Escrow Agent under the Agreement.. Escrow Agent shall incur no
liability in connection with the safekeeping or disposition of the Deposit for
any reason other than Escrow Agent's willful misconduct or gross negligence. In
the event that Escrow Agent shall be in doubt as to its duties or obligations
with regard to the Deposit, or in the event that Escrow Agent receives
conflicting instructions from Purchaser and Seller with respect to the Deposit,
Escrow Agent shall not disburse the Deposit and shall, at its option, continue
to hold the Deposit until both Purchaser and Seller agree as to its disposition
or until a final judgment is entered by a court of competent jurisdiction
directing its disposition, or Escrow Agent shall interplead the Deposit in
accordance with the laws of the state in which the Property is located. Escrow
Agent shall not be responsible
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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 or for any loss caused by the failure, suspension,
bankruptcy or dissolution of the institution in which the Deposit is deposited.
Escrow Agent shall execute this Agreement solely for the purpose of being bound
by the provisions of Sections 1.5 and 1.6 hereof and to perform Escrow Agent's
obligations under this Agreement.
ARTICLE II
TITLE AND SURVEY
SECTION 2.1 Inspection Period. During the period beginning
upon the Effective Date and ending at 5:00 p.m. (local time at the Property) on
October 2, 2003 (hereinafter referred to as the "Inspection Period"), Purchaser
shall have the right to review (a) a current preliminary title report on the
Real Property issued by Escrow Agent, accompanied by copies of all documents
referred to in the report, which shall be obtained by Purchaser promptly after
the Effective Date (with a copy of the preliminary title report to be
simultaneously furnished to Seller); (b) copies of the most recent property tax
bills for the Property, which shall be obtained by Seller and provided to
Purchaser promptly after the Effective Date; (c) the most recent survey of the
Real Property in Seller's possession prepared by a licensed surveyor or engineer
hired by Purchaser (the "Survey"); and (d) a copy of Seller's title insurance
policy (or a current title commitment) and/or survey for the Real Property, if
available, which policy and survey (if available) shall be provided by Seller
promptly after the Effective Date.
SECTION 2.2 Title Examination. Purchaser shall notify Seller
in writing (the "Title Notice") prior to the expiration of the Inspection Period
which exceptions to title (including survey matters), if any, will not be
accepted by Purchaser. If Purchaser fails to notify Seller in writing of its
disapproval of any exceptions to title by the expiration of the Inspection
Period, Purchaser shall be conclusively deemed to have approved the condition of
title to the Real Property. If Purchaser notifies Seller in writing that
Purchaser objects to any exceptions to title, Seller shall have ten (10)
business days after receipt of the Title Notice to notify Purchaser (a) that
Seller will remove such objectionable exceptions from title on or before the
Closing; provided that Seller may extend the Closing for such period as shall be
required to effect such cure, but not beyond thirty (30) days; or (b) that
Seller elects not to cause such exceptions to be removed. The procurement by
Seller of a commitment for the issuance of the Title Policy (as defined in
Section 2.5 hereof) or an endorsement thereto (in form and substance reasonably
acceptable to Purchaser) insuring Purchaser against any title exception which
was disapproved pursuant to this Section 2.2 shall be deemed a cure by Seller of
such disapproval. Notwithstanding any other provisions hereof, Seller shall
cause all deeds of trust encumbering the Property with respect to which Seller
is trustor and all judgments against Seller to be removed on or before the
Closing. If Seller gives Purchaser notice under clause (b) above, Purchaser
shall have five (5) business days in which to notify Seller that Purchaser will
nevertheless proceed with the purchase and take title to the Property subject to
such exceptions, or that Purchaser will terminate this Agreement. If this
Agreement is terminated pursuant to the foregoing provisions of this paragraph,
the Deposit shall be returned to Purchaser, the Loan Deposit, as defined below,
shall be returned by Seller, less out-of-pocket costs incurred by Seller in
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connection with the Loan and Seller's Calculated Damages (as hereinafter
defined) (if the Loan Deposit has theretofore been provided by Purchaser to
Seller, and except to the extent provided in Article X), neither party shall
have any further rights or obligations hereunder (except for any indemnity
obligations of either party pursuant to the other provisions of this Agreement),
and each party shall bear its own costs incurred hereunder. If Purchaser shall
fail to notify Seller of its election within said five-day period, Purchaser
shall be deemed to have elected to proceed with the purchase and take title to
the Property subject to such exceptions.
SECTION 2.3 Pre-Closing "Gap" Title Defects. Purchaser may, at
or prior to Closing, notify Seller in writing (the "Gap Notice") of any
objections to title or the Survey (a) raised by the Title Company (as defined in
Section 2.5 hereof) or included in the Survey between the expiration of the
Inspection Period and the Closing and (b) not disclosed by the Title Company or
the surveyor, as the case may be, or otherwise known to Purchaser prior to the
expiration of the Inspection Period; provided that Purchaser must notify Seller
of such objection to title or the Survey within two (2) business days of being
made aware of the existence of such exception. If Purchaser sends a Gap Notice
to Seller, Purchaser and Seller shall have the same rights and obligations with
respect to such notice as apply to a Title Notice under Section 2.2 hereof.
SECTION 2.4 Permitted Exceptions. The Property shall be
conveyed subject to the following matters, which are hereinafter referred to as
the "Permitted Exceptions":
(a) those matters that either are not objected to in
writing within the time periods provided in Sections 2.2 or 2.3 hereof, or if
objected to in writing by Purchaser, are those which Seller has elected not to
remove or cure, or has been unable to remove or cure, and subject to which
Purchaser has elected or is deemed to have elected to accept the conveyance of
the Property;
(b) the rights of tenants under the Leases;
(c) the lien of all ad valorem real estate taxes and
assessments not yet due and payable as of the date of Closing, subject to
adjustment as herein provided;
(d) local, state and federal laws, ordinances or
governmental regulations, including but not limited to, building and zoning
laws, ordinances and regulations, now or hereafter in effect relating to the
Property; and
(e) items shown on the Survey and not objected to by
Purchaser or waived or deemed waived by Purchaser in accordance with Section 2.2
hereof.
SECTION 2.5 Conveyance of Title. At Closing, Seller shall
convey and transfer to Purchaser Seller's leasehold interest in the Land, and
fee title to the Improvements, by execution and delivery of the Deed (as defined
in Section 4.2(a) hereof). Evidence of delivery of such title shall be the
issuance by Chicago Title Insurance Company (the "Title Company"), or another
national title company acceptable to Seller and Purchaser in the sole discretion
of each, of an ALTA Owner's Policy of Title Insurance (Form B revised 10/17/70)
(the "Title Policy")
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covering the Real Property, in the full amount of the Purchase Price, subject
only to the Permitted Exceptions.
ARTICLE III
REVIEW OF PROPERTY
SECTION 3.1 Right of Inspection. During the Inspection Period
Purchaser shall have the right to make a physical inspection of the Real
Property, including an inspection of the environmental condition thereof
pursuant to the terms and conditions of this Agreement, and to examine at the
Property (or the property manager's office, as the case may be) documents and
files located at the Property or the property manager's office concerning the
leasing, maintenance and operation of the Property (including without
limitation, copies of permits, licenses, certificates of occupancy, plans and
specifications, surveys, property tax bills and reports concerning the
environmental and physical condition of the Property and insurance certificates
related to the Property, to the extent in Seller's or the property manager's
possession), but excluding Seller's partnership or corporate records, internal
memoranda, financial projections, budgets, appraisals, accounting and income tax
records and similar proprietary, confidential or privileged information
(collectively, the "Confidential Documents"). Seller shall provide Purchaser
with access during normal business hours to Seller's files at Seller's offices
at the Property during the Inspection Period, which commenced September 2, 2003.
Purchaser understands and agrees that any on-site inspections
of the Property shall occur at reasonable times agreed upon by Seller and
Purchaser after reasonable prior written notice to Seller and shall be conducted
so as not to interfere unreasonably with the use of the Property by Seller or
its tenants. Purchaser shall also have the right to interview tenants of the
Property and the Ground Lessor during the Inspection Period. Seller reserves the
right to have a representative present during any such inspections and
interviews. If Purchaser desires to do any invasive testing at the Property,
including without limitation a Phase II environmental study or testing which
would otherwise damage or disturb any portion of the Property, Purchaser shall
do so only after notifying Seller and obtaining Seller's prior written consent
thereto, which consent may be subject to any terms and conditions imposed by
Seller in its sole discretion, including without limitation, providing Seller
with evidence of insurance in form and substance satisfactory to Seller,
entering into Seller's standard form of license agreement for invasive testing
and the prompt restoration of the Property to its condition prior to any such
inspections or tests, at Purchaser's sole cost and expense. In no event shall
Purchaser provide any governmental entity or agency with information concerning
the environmental condition of the Property without obtaining Seller's prior
written consent thereto, which Seller agrees to provide in the event that
Purchaser is required by applicable law to provide such information to a
governmental entity or agency. At Seller's option, Purchaser will furnish to
Seller copies of any reports received by Purchaser relating to any inspections
of the Property, at no cost to Seller and without representation or warranty by
Purchaser and subject to any restrictions on the use of such reports imposed by
the consultants who generated the same. Purchaser agrees to protect, indemnify,
defend and hold Seller harmless from and against any claim for liabilities,
losses, costs, expenses (including reasonable attorneys' fees), damages or
injuries
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arising out of or resulting from the inspection of the Property by Purchaser or
its agents or consultants (but excluding those arising from the mere discovery
of an existing condition by Purchaser), and notwithstanding anything to the
contrary in this Agreement, such obligation to indemnify and hold harmless
Seller shall survive Closing or any termination of this Agreement.
SECTION 3.2 Environmental Reports. PURCHASER ACKNOWLEDGES THAT
(1) PURCHASER HAS RECEIVED COPIES OF THE ENVIRONMENTAL REPORTS LISTED ON EXHIBIT
D ATTACHED HERETO, (2) IF SELLER DELIVERS ANY ADDITIONAL ENVIRONMENTAL REPORTS
TO PURCHASER, PURCHASER WILL ACKNOWLEDGE IN WRITING THAT IT HAS RECEIVED SUCH
REPORTS PROMPTLY UPON RECEIPT THEREOF, AND (3) ANY ENVIRONMENTAL REPORTS
DELIVERED OR TO BE DELIVERED BY SELLER OR ITS AGENTS OR CONSULTANTS TO PURCHASER
ARE BEING MADE AVAILABLE SOLELY AS AN ACCOMMODATION TO PURCHASER AND MAY NOT BE
RELIED UPON BY PURCHASER IN CONNECTION WITH THE PURCHASE OF THE PROPERTY, IT
BEING UNDERSTOOD, HOWEVER, THAT PURCHASER MAY, AT ITS EXPENSE, RETAIN THE
CONSULTANT(S) UNDER SUCH ENVIRONMENTAL REPORTS TO PROVIDE NEW REPORTS OR
SUPPLEMENTS TO EXISTING REPORTS, WHICH MAY BE RELIED UPON BY PURCHASER IN
CONNECTION WITH THE PURCHASE OF THE PROPERTY. PURCHASER AGREES THAT SELLER SHALL
HAVE NO LIABILITY OR OBLIGATION WHATSOEVER FOR ANY INACCURACY IN OR OMISSION
FROM ANY ENVIRONMENTAL REPORT AND/OR ANY OF SUCH NEW REPORTS AND/OR SUPPLEMENTS.
PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND
RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY SUCH REPORTS, NEW REPORTS
OR SUPPLEMENTS. IN CONNECTION THEREWITH, PURCHASER EXPRESSLY WAIVES ALL RIGHTS
UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES THAT:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO THE EXPIRATION OF THE
INSPECTION PERIOD, ITS OWN INVESTIGATION OF THE ENVIRONMENTAL CONDITION OF THE
PROPERTY TO THE EXTENT PURCHASER DEEMS SUCH AN INVESTIGATION TO BE NECESSARY OR
APPROPRIATE.
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SECTION 3.3 Right of Termination. If for any reason whatsoever
Purchaser determines that the Property or any aspect thereof is unsuitable for
Purchaser's acquisition, Purchaser shall have the right to terminate this
Agreement by giving written notice thereof to Seller prior to the expiration of
the Inspection Period, and if Purchaser gives such notice of termination within
the Inspection Period, this Agreement shall terminate. If this Agreement is
terminated pursuant to the foregoing provisions of this paragraph, the Deposit
shall be returned to Purchaser, the Loan Deposit shall be returned by Seller,
less out-of-pocket costs incurred by Seller in connection with the Loan and
Seller's Calculated Damages (as hereinafter defined) (if the Loan Deposit has
theretofore been provided by Purchaser to Seller, and except to the extent
provided in Article X), neither party shall have any further rights or
obligations hereunder (except for any indemnity obligations of either party
pursuant to the other provisions of this Agreement), and each party shall bear
its own costs incurred hereunder. If Purchaser fails to give Seller a notice of
termination prior to the expiration of the Inspection Period, Purchaser shall be
deemed to have approved all aspects of the Property (except title and survey,
which shall be governed by Article II hereof) and to have elected to proceed
with the purchase of the Property pursuant to the terms hereof.
SECTION 3.4 Review of Tenant Estoppels. Seller shall deliver
to each tenant of the Property an estoppel certificate in substantially the form
of Exhibit E attached hereto (or the form of estoppel certificate a tenant is
obligated to deliver pursuant to its Lease, such form being referred to herein
as the "Lease Tenant Estoppels") (all of such tenant estoppels, including the
Lease Tenant Estoppels, are referred to herein as the "Tenant Estoppels"), and
shall request that the tenants complete and sign the Tenant Estoppels and return
them to Seller. Seller shall deliver copies of the completed Tenant Estoppels to
Purchaser as Seller receives them. Purchaser shall notify Seller within three
(3) business days of receipt of any Tenant Estoppel in the event Purchaser
determines such Tenant Estoppel is not acceptable to Purchaser along with the
reasons for such determination. In the event Purchaser fails to give such notice
within such three (3) business day period then any such Tenant Estoppel shall be
deemed to be acceptable to Purchaser. Notwithstanding anything in this Agreement
to the contrary, however, Purchaser acknowledges and agrees that it may not
disapprove a Lease Tenant Estoppel by reason of the fact that it does not
contain matters other than matters that the Tenant is required to state in its
Lease Tenant Estoppel. In the event that Seller fails to obtain Tenant Estoppels
from (a) each of the tenants listed on Exhibit F attached hereto (the "Major
Tenants"), and (b) a sufficient number of the remaining tenants such that
Purchaser shall have received in the aggregate Tenant Estoppel certificates from
tenants (including the Major Tenants) leasing seventy-five percent (75%) of the
space in the Improvements that is leased by Tenants (including the Major
Tenants), that are in a form satisfactory or deemed satisfactory to Purchaser on
or before five (5) days prior to Closing, Purchaser shall have the right to
terminate this Agreement by written notice to Seller. If this Agreement is
terminated pursuant to the foregoing provisions of this paragraph, the Deposit
shall be returned to Purchaser, the Loan Deposit shall be returned by Seller (if
the Loan Deposit has theretofore been provided by Purchaser to Seller, and
except to the extent provided in Article X), neither party shall have any
further rights or obligations hereunder (except for any indemnity obligations of
either party pursuant to the other provisions of this Agreement), and each party
shall bear its own costs incurred hereunder. If Purchaser fails to give Seller a
notice of termination as set
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forth above, Purchaser shall be deemed to have approved the Tenant Estoppels and
to have elected to proceed with the purchase of the Property pursuant to the
terms hereof.
SECTION 3.5 Agency Estoppel. Seller shall use its commercially
reasonable efforts to obtain a Ground Lessor Estoppel (the "Ground Lessor
Estoppel") in favor of Seller, Purchaser and its lender from the Ground Lessor
in the form provided for in Article 34 of the Ground Lease. Seller shall also
use its commercially reasonable efforts to obtain a Ground Lessor Consent (the
"Ground Lessor Consent"), which may be included in the Ground Lessor Estoppel.
The Ground Lessor Consent shall include the consent of the Ground Lessor to the
assignment of the Ground Lease from Seller to Purchaser and the consent of the
Ground Lessor to the Mortgage Loan on the leasehold under the Ground Lease (to
the extent the Agency is required to give such consent under the Ground Lease
and as may be required by Seller in connection with the Mortgage Loan) together
with an agreement by the Agency to give notice to Seller, as the mortgage lender
on the Property under the Mortgage Loan, if Agency commences a proceeding under
the Federal Bankruptcy Code and if Agency should offer for sale under the
Federal Bankruptcy Code the fee interest in the land to which the Ground Lease
pertains, free of the interest of the Ground Lease. The Ground Lessor Estoppel ,
shall contain such additional matters, if any, as Seller, in its capacity as
lender, may require in connection with the Mortgage Loan ("Lender's Required
Items"). Seller shall provide its proposed Lender's Required Items within five
(5) business day following the Effective Date, and such additional items may be
included only if Seller and Purchaser agree upon the additional items to be
included within two (2) business days after Seller provides its proposed
additional items. Lender's Required Items are for the benefit of Seller as
lender, and the ultimate inclusion or deletion by the Ground Lessor in the
Ground Lease Estoppel of any of the Lender's Required Items, may be waived or
required by Seller only. In the event that Seller and Purchaser cannot agree
upon the Lender's Required Items within such two (2) business day period, then
this Agreement shall be terminated, and the Deposit, the Loan Application Fee
and Loan Deposit, as applicable, shall be returned to Purchaser, and neither
party shall have any further rights or obligations hereunder (except for any
indemnity obligations of either party pursuant to the provisions of this
Agreement), and each party shall bear its own costs incurred hereunder.
Purchaser shall notify Seller within three (3) business days of receipt of the
Ground Lessor Estoppel and Ground Lessor Consent in the event Purchaser
determines that the Ground Lessor Estoppel or Ground Lessor Consent is not
acceptable to Purchaser along with the reasons for such determination; provided,
however, that the Ground Lessor Estoppel and Ground Lessor Consent shall not be
deemed not acceptable to Purchaser as long as the Ground Lessor Estoppel
certifies to the matters required to be certified to by the Ground Lessor in
Article 34 of the Ground Lease and the Ground Lessor Consent provides the
consents required to be provided by Ground Lessor under the Ground Lease. In the
event Purchaser fails to give such notice within such three (3) business day
period, then any such Ground Lessor Estoppel and Ground Lessor Consent shall be
deemed to be acceptable to Purchaser. If Purchaser does not receive the Ground
Lessor Estoppel and Ground Lessor Consent in a form satisfactory or deemed
satisfactory to Purchaser on or before two (2) business days prior to Closing,
Purchaser shall have the right to terminate this Agreement by written notice to
Seller. If this Agreement is terminated pursuant to the foregoing provisions of
this paragraph, the Deposit shall be returned to Purchaser, the Loan Deposit
shall be returned by Seller, (if the Loan Deposit has theretofore been provided
by Purchaser to Seller, and except to the extent provided in Article X), neither
party shall have any further rights or
10
obligations hereunder (except for any indemnity obligations of either party
pursuant to the provisions of this Agreement), and each party shall bear its own
costs incurred hereunder. If Purchaser fails to give Seller a notice of
termination as set forth above, Purchaser shall be deemed to have approved the
Ground Lessor Estoppel and Ground Lessor Consent provided by Seller and to have
elected to proceed with the purchase of the Property pursuant to the terms
hereof.
ARTICLE IV
CLOSING
SECTION 4.1 Time and Place. The consummation of the
transaction contemplated hereby (the "Closing") shall be held at the offices of
the Title Company on the 30th day after the end of the Inspection Period, or on
such earlier date as both parties agree upon, except that provided that Seller
and Purchaser agree, the Closing may be accomplished by the use of overnight or
same day courier. At the Closing, Seller and Purchaser shall perform the
obligations set forth in, respectively, Section 4.2 and Section 4.3 hereof, the
performance of which obligations shall be concurrent conditions; provided that
the Deed shall not be recorded until Seller receives confirmation that Escrow
Holder has received the full amount of the Purchase Price, adjusted by
prorations as set forth herein. The Closing shall be consummated through an
escrow administered by Escrow Agent pursuant to additional escrow instructions
that are consistent with this Agreement. The Purchase Price and all documents
shall be deposited with the Escrow Agent as escrowee.
SECTION 4.2 Seller's Obligations at Closing. At Closing,
Seller shall:
(a) deliver to Purchaser a duly executed grant deed of
improvements and assignment of leasehold and reciprocal easement agreement (the
"Deed") in the form attached hereto as Exhibit G, conveying the ground leasehold
interest in the Land and Improvements, subject only to the Permitted Exceptions;
the warranty of title in the Deed will be only as to claims made by, through or
under Seller and not otherwise;
(b) deliver to Purchaser a duly executed xxxx of sale
(the "Xxxx of Sale") conveying the Personal Property without warranty of title
(other than that Seller has not previously conveyed its interest in the Personal
Property) or use and without warranty, express or implied, as to merchantability
and fitness for any purpose and in the form attached hereto as Exhibit H;
(c) assign to Purchaser, and Purchaser shall assume, the
landlord/lessor interest in and to the Leases, Rents and Security Deposits, and
any and all obligations to pay leasing commissions and finder's fees with
respect to the Leases and amendments, renewals and expansions thereof, to the
extent provided in Section 4.4(b)(v) hereof, by a duly executed assignment and
assumption agreement (the "Assignment of Leases") in the form attached hereto as
Exhibit I pursuant to which (i) Seller shall indemnify Purchaser and hold
Purchaser harmless from and against any and all claims pertaining thereto
arising prior to Closing and (ii) Purchaser shall indemnify Seller and hold
Seller harmless from and against any and all claims pertaining thereto
11
arising from and after the Closing, including without limitation, claims made by
tenants with respect to tenants' Security Deposits to the extent paid, credited
or assigned to Purchaser;
(d) to the extent assignable, assign to Purchaser, and
Purchaser shall assume, Seller's interest in the Operating Agreements (other
than those rejected by Purchaser pursuant to Section 1.1 (e)) and the other
Intangibles by duly executed assignment and assumption agreement (the
"Assignment of Contracts") in the form attached hereto as Exhibit J pursuant to
which (i) Seller shall indemnify Purchaser and hold Purchaser harmless from and
against any and all claims pertaining thereto arising prior to Closing, and (ii)
Purchaser shall indemnify Seller and hold Seller harmless from and against any
and all claims pertaining thereto arising from and after the Closing;
(e) join with Purchaser to execute a notice (the "Tenant
Notice") in the form attached hereto as Exhibit K, which Purchaser shall send to
each tenant under each of the Leases promptly after the Closing, informing such
tenant of the sale of the Property and of the assignment to Purchaser of
Seller's interest in, and obligations under, the Leases (including, if
applicable, any Security Deposits), and directing that all Rent and other sums
payable after the Closing under each such Lease be paid as set forth in the
Tenant Notice;
(f) In the event that any representation or warranty of
Seller needs to be modified due to changes since the Effective Date, deliver to
Purchaser a certificate, dated as of the date of Closing and executed on behalf
of Seller by a duly authorized officer thereof, identifying any representation
or warranty which is not, or no longer is, true and correct and explaining the
state of facts giving rise to the change. In no event shall Seller be liable to
Purchaser for, or be deemed to be in default hereunder by reason of, any breach
of representation or warranty which results from any change that (i) occurs
between the Effective Date and the date of Closing and is expressly permitted
under the terms of this Agreement, or (ii) occurs between the Effective Date and
the date of the Closing and is beyond the reasonable control of Seller to
prevent; provided, however, that the occurrence of a change which is not
permitted hereunder or is beyond the reasonable control of Seller to prevent
shall, if materially adverse to Purchaser or the Property, as reasonably
determined by Purchaser, constitute the non-fulfillment of the condition set
forth in Section 4.6(b) hereof; if, despite changes or other matters described
in such certificate, the Closing occurs, Seller's representations and warranties
set forth in this Agreement shall be deemed to have been modified by all
statements made in such certificate;
(g) deliver to Purchaser such evidence as the Title
Company may reasonably require as to the authority of the person or persons
executing documents on behalf of Seller;
(h) deliver to Purchaser a certificate in the form
attached hereto as Exhibit L duly executed by Seller stating that Seller is not
a "foreign person" as defined in the Federal Foreign Investment in Real Property
Tax Act of 1980 and a California Form 597-W;
(i) deliver to Purchaser originals (to the extent
originals are in Seller's possession, or photocopies if originals are not in
Seller's possession), including electronic versions if any, of the Leases,
Operating Agreements and Intangibles, together with such leasing and property
files and records located at the Property or the property manager's office which
are
12
material in connection with the continued operation, leasing and maintenance of
the Property, but excluding any Confidential Documents;
(j) deliver such affidavits as may be customarily and
reasonably required by the Title Company, in a form reasonably acceptable to
Seller;
(k) deliver to Purchaser possession and occupancy of the
Property, subject to the Permitted Exceptions;
(l) execute a closing statement acceptable to Seller; and
(m) deliver such additional documents and items as shall
be reasonably required to consummate the transaction contemplated by this
Agreement (including the funding of the Mortgage Loan in accordance with Article
X), including without limitation, keys or codes to locks on the Property.
SECTION 4.3 Purchaser's Obligations at Closing. At Closing,
Purchaser shall:
(a) deposit with Escrow Agent and cause to be paid to
Seller the full amount of the Purchase Price (which amount shall include the
Deposit and the proceeds of the Mortgage Loan), as increased or decreased by
prorations and adjustments as herein provided, in immediately available wire
transferred funds pursuant to Section 1.4 hereof;
(b) join Seller in execution of the Assignment of Leases,
Assignment of Contracts and Tenant Notices;
(c) In the event that any representation or warranty of
Purchaser set forth in Sections 5.5(a) or (b) hereof needs to be modified due to
changes since the Effective Date, deliver to Seller a certificate, dated as of
the date of Closing and executed on behalf of Purchaser by a duly authorized
representative thereof, identifying any such representation or warranty which is
not, or no longer is, true and correct and explaining the state of facts giving
rise to the change. In no event shall Purchaser be liable to Seller for, or be
deemed to be in default hereunder by reason of, any breach of representation or
warranty set forth in Sections 5.5(a) or (b) hereof which results from any
change that (i) occurs between the Effective Date and the date of Closing and is
expressly permitted under the terms of this Agreement, or (ii) occurs between
the Effective Date and the date of the Closing and is beyond the reasonable
control of Purchaser to prevent; provided, however, that the occurrence of a
change which is not permitted hereunder or is beyond the reasonable control of
Purchaser to prevent shall, if materially adverse to Seller, as reasonably
determined by Seller, constitute the non-fulfillment of the condition set forth
in Section 4.7(c) hereof; if, despite changes or other matters described in such
certificate, the Closing occurs, Purchaser's representations and warranties set
forth in this Agreement shall be deemed to have been modified by all statements
made in such certificate;
(d) deliver to Seller such evidence as the Title Company
may reasonably require as to the authority of the person or persons executing
documents on behalf of Purchaser;
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(e) deliver such affidavits as may be customarily and
reasonably required by the Title Company, in a form reasonably acceptable to
Purchaser;
(f) execute a closing statement acceptable to Purchaser;
(g) execute such documents as may be required pursuant to
and satisfy the terms and conditions of Article X hereof; and
(h) deliver such additional documents as shall be
reasonably required to consummate the transaction contemplated by this
Agreement.
SECTION 4.4 Credits and Prorations
(a) All income and expenses of the Property shall be
apportioned as of 12:01 a.m., on the day of Closing, as if Purchaser were vested
with title to the Property during the entire day upon which Closing occurs.
Subject to the provisions of this Section 4.4, such prorated items shall include
without limitation the following: (i) all Rents, if any; (ii) taxes and
assessments (including personal property taxes on the Personal Property) levied
against the Property; (iii) utility charges for which Seller is liable, if any,
such charges to be apportioned at Closing on the basis of the most recent meter
reading occurring prior to Closing (dated not more than fifteen (15) days prior
to Closing) or, if unmetered, on the basis of a current xxxx for each such
utility; (iv) all amounts payable under brokerage agreements and Operating
Agreements, pursuant to the terms of this Agreement; and (v) any other operating
expenses or other items pertaining to the Property which are customarily
prorated between a purchaser and a seller in the county in which the Property is
located.
(b) Notwithstanding anything contained in Section 4.4(a)
hereof:
(i) At Closing, (A) Seller shall, at Seller's
option, either deliver to Purchaser any Security Deposits actually held by
Seller pursuant to the Leases or credit to the account of Purchaser the amount
of such Security Deposits (to the extent such Security Deposits have not been
applied against delinquent Rents or otherwise as provided in the Leases), and
(B) Purchaser shall credit to the account of Seller all refundable cash or other
deposits posted with utility companies serving the Property, or, at Seller's
option, Seller shall be entitled to receive and retain such refundable cash and
deposits;
(ii) Any taxes paid at or prior to Closing shall
be prorated based upon the amounts actually paid. If taxes and assessments due
and payable during the year of Closing have not been paid before Closing, Seller
shall be charged at Closing an amount equal to that portion of such taxes and
assessments which relates to the period before Closing and Purchaser shall pay
the taxes and assessments prior to their becoming delinquent. Any such
apportionment made with respect to a tax year for which the tax rate or assessed
valuation, or both, have not yet been fixed shall be based upon the tax rate
and/or assessed valuation last fixed. To the extent that the actual taxes and
assessments for the current year differ from the amount apportioned at
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Closing, the parties shall make all necessary adjustments by appropriate
payments between themselves within thirty (30) days after such amounts are
determined following Closing, subject to the provisions of Section 4.4(d)
hereof;
(iii) Charges referred to in Section 4.4(a) hereof
which are payable by any tenant to a third party shall not be apportioned
hereunder, and Purchaser shall accept title subject to any of such charges
unpaid and Purchaser shall look solely to the tenant responsible therefor for
the payment of the same. If Seller shall have paid any of such charges on behalf
of any tenant, and shall not have been reimbursed therefor by the time of
Closing, Purchaser shall credit to Seller an amount equal to all such charges so
paid by Seller;
(iv) As to utility charges referred to in Section
4.4(a)(iii) hereof, Seller may on notice to Purchaser elect to pay one or more
or all of said items accrued to the date hereinabove fixed for apportionment
directly to the person or entity entitled thereto, and to the extent Seller so
elects, such item shall not be apportioned hereunder, and Seller's obligation to
pay such item directly in such case shall survive the Closing or any termination
of this Agreement;
(v) Upon the Closing, Purchaser shall be
responsible for the payment of (A) all Tenant Inducement Costs (as hereinafter
defined) and leasing commissions which become due and payable (whether before or
after Closing) as a result of any new Leases, or any renewals, amendments or
expansions of existing Leases (whether or not entered into pursuant to an
option), arising or entered into during the Lease Approval Period (as
hereinafter defined) and, if required, approved or deemed approved in accordance
with Section 5.4 hereof; provided that if the term of a new Lease or extension
or expansion of an existing Lease commences prior to the date of Closing, then
Purchaser shall be responsible for only its prorata share of the Tenant
Inducement Costs and leasing commissions related thereto, which prorata share
shall be calculated by comparing the portion of such new or extended term that
remains after the Closing Date to the total duration of the new or extended
term; and (B) all Tenant Inducement Costs and leasing commissions with respect
to new Leases, or renewals, amendments or expansions of existing Leases,
arising, signed or entered into from and after the date of Closing, including
but not limited to leasing commissions that become payable after the termination
of a brokerage agreement referred to in Section 5.1(d) hereof in accordance with
the terms of such an agreement; and (C) Tenant Inducement Costs in the amount of
approximately $2,100,000 and leasing commissions in the amount of approximately
$750,000 in respect of the Xxxxx & Winfield lease renewal, expansion and
extension intended to be effective as of April 1, 2004, which may be executed
prior to the Effective Date. If, as of the date of Closing, Seller shall have
paid any Tenant Inducement Costs or leasing commissions for which Purchaser is
responsible pursuant to the foregoing provisions, or if, as of the date of
Closing, Seller shall have paid any attorneys' fees or expenses incurred in
connection with the drafting or the negotiation, or both, of any leases entered
into after the Effective Date, Purchaser shall reimburse Seller therefor at
Closing, subject to the prorata sharing of such costs as described above for any
such leases that commence prior to the date of Closing and subject to a cap on
attorneys' fees of $1.00 per square foot of rentable area for each new lease and
$.50 per square foot of rentable area for a lease amendment. For purposes
hereof, the term "Tenant Inducement Costs" shall mean any
15
out-of-pocket payments required under a Lease to be paid by the landlord
thereunder to or for the benefit of the tenant thereunder which is in the nature
of a tenant inducement, including specifically, without limitation, tenant
improvement costs, lease buyout costs, and moving, design, refurbishment and
club membership allowances. The term "Tenant Inducement Costs" shall not include
loss of income resulting from any free rental period, it being agreed that
Seller shall bear the loss resulting from any free rental period until the date
of Closing and that Purchaser shall bear such loss from and after the date of
Closing. For purposes hereof, the term "Lease Approval Period" shall mean the
period from the Effective Date until the date of Closing;
(vi) Unpaid and delinquent Rent collected by
Seller and Purchaser after the date of Closing shall be delivered as follows:
(a) if Seller collects any unpaid or delinquent Rent for the Property, Seller
shall, within fifteen (15) days after the receipt thereof, deliver to Purchaser
any such Rent which Purchaser is entitled to hereunder relating to the date of
Closing and any period thereafter, and (b) if Purchaser collects any unpaid or
delinquent Rent from the Property, Purchaser shall, within fifteen (15) days
after the receipt thereof, deliver to Seller any such Rent which Seller is
entitled to hereunder relating to the period prior to the date of Closing.
Seller and Purchaser agree that all Rent received by Seller or Purchaser within
the first ninety (90) day period after the date of Closing shall be applied
first to current Rent then to delinquent Rent, if any, in the inverse order of
their maturity. For a period of 180 days after the Closing Purchaser will make a
good faith effort to collect all Rents in the usual course of Purchaser's
operation of the Property, but Purchaser will not be obligated to institute any
lawsuit or other collection procedures to collect delinquent Rents. Seller may
attempt to collect any delinquent Rents owed Seller and may institute any
lawsuit or collection procedures, but may not evict any tenant or seek to
interfere with its occupancy of the Improvements after Closing. In the event
that there shall be any Rents or other charges under any Leases which, although
relating to a period prior to Closing, do not become due and payable until after
Closing or are paid prior to Closing but are subject to adjustment after Closing
(such as year end common area expense reimbursements and the like), then any
Rents or charges of such type received by Purchaser or its agents or Seller or
its agents subsequent to Closing shall, to the extent applicable to a period
extending through the Closing, be prorated between Seller and Purchaser as of
Closing and Seller's portion thereof shall be remitted promptly to Seller by
Purchaser.
(vii) Purchaser shall receive a credit from Seller
at Closing in the amount of the closing costs to be paid by Purchaser pursuant
to Section 4.5(c) below (excluding, however, the cost of any counsel
representing Purchaser), but in no event shall such credit exceed the amount of
Three Hundred Thousand Dollars ($300,000.00); provided, however, that if the
closing costs to be paid by Purchaser under Section 4.5(c) below are less than
$300,000, the balance of the $300,000 credit shall be given to Purchaser as a
credit against Purchaser's share of pro-rations and charges under this Section
4.4.
(c) Seller may, at its sole expense, prosecute appeals
(if any) of the real property tax assessment for the period prior to the
Closing, and may take related action which Seller deems appropriate in
connection therewith. Purchaser shall reasonably cooperate with Seller in
connection with such appeal and collection of a refund of real property taxes
paid, provided that Purchaser shall incur no material cost or expense in
connection therewith. Seller owns and holds
16
all right, title and interest in and to such appeal and refund, and all amounts
payable in connection therewith shall be paid directly to Seller by the
applicable authorities. If such refund or any part thereof is received by
Purchaser, Purchaser shall promptly pay such amount to Seller. Any refund
received by Seller shall be distributed as follows: first, to reimburse Seller
for all costs incurred in connection with the appeal; second, with respect to
refunds payable to tenants of the Real Property pursuant to the Leases, to such
tenants in accordance with the terms of such Leases; and third, to Seller to the
extent such appeal covers the period prior to the Closing, and to Purchaser to
the extent such appeal covers the period as of the Closing and thereafter. If
and to the extent any such appeal covers the period after the Closing, Purchaser
shall have the right to participate in such appeal.
(d) Except as otherwise provided herein, any revenue or
expense amount which cannot be ascertained with certainty as of Closing shall be
prorated on the basis of the parties' reasonable estimates of such amount, and
shall be the subject of a final proration ninety (90) days after Closing, or as
soon thereafter as the precise amounts can be ascertained. Any reconciliation of
revenue or expense amounts relating to Leases which needs to be made in
connection with this Section 4.4 shall be prepared by Purchaser and submitted to
Seller for Seller's review and approval. Purchaser shall promptly notify Seller
when it becomes aware that any such estimated amount has been ascertained. Once
all revenue and expense amounts have been ascertained, Purchaser shall prepare,
and certify as correct, a final proration statement which shall be in a form
consistent with the closing statement delivered at Closing and which shall be
subject to Seller's approval. Upon Seller's acceptance and approval of any final
proration statement submitted by Purchaser, such statement shall be conclusively
deemed to be accurate and final, and any payment due to any party as a result of
such final pro-rations shall be made within thirty (30) days of such approval by
Seller.
(e) Subject to the final sentence of Section 4.4(d)
hereof, the provisions of this Section 4.4 shall survive Closing.
SECTION 4.5 Transaction Taxes and Closing Costs.
(a) Seller and Purchaser shall execute such returns,
questionnaires and other documents as shall be required with regard to all
applicable real property transaction taxes imposed by applicable federal, state
or local law or ordinance;
(b) Seller shall pay the fees of any counsel representing
Seller in connection with this transaction. Seller shall also pay the following
costs and expenses:
(i) one-half of the escrow fee, if any, which
may be charged by the Escrow Agent or Title Company;
(ii) the fee for the title examination and the
Title Commitment and the premium for the Owner's ALTA Policy of Title Insurance
to be issued to Purchaser by the Title Company at Closing;
17
(iii) the fees for recording the Deed;
(iv) any transfer tax, sales tax, documentary
stamp tax or similar tax which becomes payable by reason of the transfer of the
Property from Seller to Purchaser; and
(v) all fees and commissions payable to the
Broker, as defined in Section 8.1 below, up to but not to exceed the sum of
Seven Hundred Fifty Thousand Dollars ($750,000.00).
(c) Purchaser shall pay the fees of any counsel
representing Purchaser in connection with this transaction. Subject to Section
4.4(b)(vii) above, Purchaser shall also pay the following costs and expenses:
(i) one-half of the escrow fee, if any, which
may be charged by the Escrow Agent or Title Company;
(ii) the premium for all endorsements relating to
the Owner's Policy of Title Insurance to be issued to Purchaser by the Title
Company at Closing;
(iii) the cost of the Survey or any update of any
survey in Seller's possession, as Purchaser may elect, and the cost of any
special language requested by Purchaser; and
(iv) all fees and commissions payable to the
Broker in excess of the amount to be paid by Seller pursuant to Section
4.5(b)(v) above.
(d) The Personal Property is included in this sale
without charge, except that Purchaser shall pay to Seller the amount of any and
all sales or similar taxes payable in connection with the transfer of the
Personal Property and Purchaser shall execute and deliver any tax returns
required of it in connection therewith.
(e) All costs and expenses incident to this transaction
and the closing thereof, and not specifically described above, shall be paid by
the party incurring same.
(f) The provisions of this Section 4.5 shall survive the
Closing.
SECTION 4.6 Conditions Precedent to Obligations of Purchaser.
The obligation of Purchaser to consummate the transaction hereunder shall be
subject to the fulfillment on or before the date of Closing of all of the
following conditions, any or all of which may be waived by Purchaser in its sole
discretion:
(a) Seller shall have delivered to Purchaser all of the
items required to be delivered to Purchaser pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section 4.2
hereof;
18
(b) All of the representations and warranties of Seller
contained in this Agreement shall be true and correct in all material respects
as of the date of Closing (with appropriate modifications permitted under this
Agreement); and
(c) Seller shall have performed and observed, in all
material respects, all covenants and agreements of this Agreement to be
performed and observed by Seller as of the date of Closing.
SECTION 4.7 Conditions Precedent to Obligations of Seller. The
obligation of Seller to consummate the transaction hereunder shall be subject to
the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as
adjusted as provided herein, pursuant to and payable in the manner provided for
in this Agreement;
(b) Purchaser shall have delivered to Seller all of the
items required to be delivered to Seller pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section 4.3
hereof;
(c) All of the representations and warranties of
Purchaser contained in this Agreement shall be true and correct in all material
respects as of the date of Closing (with appropriate modifications permitted
under this Agreement); and
(d) Purchaser shall have performed and observed, in all
material respects, all covenants and agreements of this Agreement to be
performed and observed by Purchaser as of the date of Closing.
SECTION 4.8 Additional Condition Precedent to Obligations of
Purchaser. Purchaser's obligation to consummate the Closing is also subject to
and conditioned upon the condition that there shall have been no "material
adverse change" (as hereinafter defined) between the expiration of the
Inspection Period and the date of Closing not caused by Purchaser. As used
herein, a "material adverse change" shall be limited to and include only a
material adverse exception to the title to the Property, a material adverse
change to the physical condition of the Property which materially and
substantially impairs the Purchaser's use of the Property as an office building,
or a material release of "hazardous materials" as the same shall be defined in
the Loan Documents), in, on or under the Property, which in all cases did not
exist prior to the expiration of the Inspection Period and that will not be
cured or removed prior to Closing. In the event that Purchaser or Seller's
Designated Employees becomes aware of a material adverse change, such party
shall give the other party written notice thereof. Purchaser shall have three
(3) business days following receipt of notice of the material adverse change to
elect to either terminate this Agreement or waive the material adverse change.
Failure of Purchaser to notify Seller in writing of such election within such
three (3) business day period shall constitute Purchase's election to waive the
material adverse change. If Purchaser gives notice to Seller in writing within
such three (3) business day period of its election to eliminate the Agreement,
then
19
Seller shall have three (3) business days after receipt of such notice from
Purchaser to give Purchaser written notice of Seller's intention to cure such
objectionable condition on or before the Closing Date. If Seller notifies
Purchaser within such three (3) business day period of its intention to cure,
then the Agreement shall not terminate, but the Closing shall be extended up to
but not in excess of thirty (30) days, as selected by Seller, during which
period Seller may attempt to satisfy or remove the objectionable condition;
provided, however, that if Seller satisfies or removes the objectionable
condition to Purchaser's reasonable satisfaction, the Closing shall occur on the
earlier to occur of the extended date for Closing selected by Seller for
satisfaction or removal of the condition, or within ten (10) days of the
satisfaction or removal of such condition; and provided, further, however, if
Seller thereafter fails to remove or satisfy Purchaser's objection, Purchaser
shall have the right in its sole discretion either to waive in writing the
objectionable condition and proceed with the purchase, or terminate this
Agreement.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 5.1 Representations and Warranties of Seller. Seller
hereby makes the following representations and warranties to Purchaser as of the
Effective Date, which representations and warranties shall be deemed to have
been made again as of the Closing, subject to Section 4.2(f) hereof:
(a) Organization and Authority. Seller has been duly
organized and is validly existing and in good standing under the laws of the
State of New York and in good standing and duly qualified to do business in the
State where the Property is located. Subject to the provisions of Section 11.16
hereof, Seller has the full right and authority to enter into this Agreement and
to transfer all of the Property and to consummate or cause to be consummated the
transaction contemplated by this Agreement. The person signing this Agreement on
behalf of Seller is authorized to do so.
(b) Pending Actions. To Seller's knowledge, Seller has
not received written notice of any action, suit, arbitration, unsatisfied order
or judgment, government investigation or proceeding pending against Seller
which, if adversely determined, could individually or in the aggregate
materially interfere with the consummation of the transaction contemplated by
this Agreement.
(c) Operating Agreements. To Seller's knowledge, the
Operating Agreements listed on Exhibit C are all of the agreements concerning
the operation and maintenance of the Property entered into by Seller and
affecting the Property, except those operating agreements that are not
assignable and will not affect Purchaser or the Property after the Closing. By a
notice given to Seller at any time prior to the end of the Inspection Period),
Purchaser may require that Seller terminate any or all of the Operating
Agreements that may be terminated as of the Closing, or as of a date thirty (30)
days after the Closing, at Seller's sole cost and expense, except that Seller
shall, at its sole cost and expense, terminate any agreement with Seller's
Property manager and leasing agent with respect to the Property, effective as of
the Closing.
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(d) Lease Brokerage. To Seller's knowledge, there are no
agreements with brokers providing for the payment from and after the Closing by
Seller or Seller's successor-in-interest of leasing commissions or fees for
procuring tenants with respect to the Property, except as disclosed in Exhibit N
hereto;
(e) Condemnation. To Seller's knowledge, Seller has
received no written notice of any condemnation proceedings relating to the
Property, nor to Seller's knowledge is any such proceeding threatened.
(f) Litigation. To Seller's knowledge, except as set
forth on Exhibit O attached hereto, Seller has not received written notice of
any litigation which has been filed against Seller relating to the Property and
would materially affect the Property or use thereof, or Seller's ability to
perform hereunder;
(g) Violations. To Seller's knowledge, except as set
forth on Exhibit P attached hereto, Seller has not received written notice of
any uncured violation of any federal, state or local law relating to the use or
operation of the Property or which would materially adversely affect the
Property or use thereof; and
(h) Leases. The rent roll attached hereto as Exhibit Q is
accurate in all material respects, and lists all of the leases currently
affecting the Property.
(i) Ground Lease. To Seller's knowledge, "Equity" as
defined in the Ground Lease is $190,128,687, provided that this statement shall
not be considered inaccurate or breached if the actual amount of Equity varies
by fifteen percent (15%) or less.
SECTION 5.2 Knowledge Defined. References to the "knowledge"
of Seller shall refer only to the current actual knowledge of the Designated
Employees (as hereinafter defined) of Seller, and shall not be construed, by
imputation or otherwise, to refer to the knowledge of Seller or any affiliate of
Seller, to any property manager, or to any other officer, agent, manager,
representative or employee of Seller or any affiliate thereof or to impose upon
such Designated Employees any duty to investigate the matter to which such
actual knowledge, or the absence thereof, pertains. As used herein, the term
"Designated Employees" shall refer to Xxxxxxx Xxxx, the current asset manager
and Xxxxxxx Xxxxxx, the previous asset manager of Seller, each of whom has or
had primary business responsibility for the Property.
SECTION 5.3 Survival of Seller's Representations and
Warranties. The representations and warranties of Seller set forth in Section
5.1 hereof as updated as of the Closing in accordance with the terms of this
Agreement, shall survive Closing for a period of one (1) year. No claim for a
breach of any representation or warranty of Seller shall be actionable or
payable if the breach in question results from or is based upon a condition,
state of facts or other matter which was known to Purchaser prior to the
Closing. Seller shall have no liability to Purchaser for a breach of any
representation or warranty (a) unless the valid claims for all such breaches
collectively aggregate more than One Hundred Thousand Dollars ($100,000.00) in
which event the full amount
21
of such valid claims shall be actionable, up to the Cap (as defined in this
Section), and (b) unless written notice containing a description of the specific
nature of such breach shall have been given by Purchaser to Seller prior to the
expiration of said one (1) year period and an action shall have been commenced
by Purchaser against Seller within fifteen (15) months following the Closing.
Purchaser agrees to first seek recovery under any insurance policies, service
contracts and Leases prior to seeking recovery from Seller, and Seller shall not
be liable to Purchaser if Purchaser's claim is satisfied from such insurance
policies, service contracts or Leases. As used herein, the term "Cap" shall mean
the total aggregate amount of Five Million Dollars ($5,000,000.00).
SECTION 5.4 Covenants of Seller. Seller hereby covenants with
Purchaser as follows:
(a) From the Effective Date hereof until the Closing or
earlier termination of this Agreement, Seller shall use reasonable efforts to
operate and maintain the Property in a manner generally consistent with the
manner in which Seller has operated and maintained the Property prior to the
date hereof;
(b) Except as provided hereinbelow, a copy of any
termination, amendment, renewal or expansion of an existing Lease or Operating
Agreement or of any new Lease or Operating Agreement which Seller wishes to
execute between the Effective Date and the date of Closing will be submitted to
Purchaser prior to execution by Seller. Purchaser agrees to notify Seller in
writing within five (5) business days after its receipt thereof of either its
approval or disapproval thereof, including all Tenant Inducement Costs, leasing
commissions and attorneys' fees and expenses to be incurred in connection
therewith. Prior to the end of the Inspection Period, Purchaser shall not have
the right to withhold its approval of any new Lease or amendment, renewal or
expansion of an existing Lease that is consistent with the present leasing
profile of the Property, or the current leasing of the Property. After the end
of the Inspection Period, Purchaser shall have the right to approve all new
Operating Agreements and new leasing transactions or terminations, amendments,
renewals or expansions of existing Operating Agreements or Leases, which
approval shall be in Purchaser's discretion; provided, however, Purchaser shall
have no right to disapprove (and shall be deemed to have approved) any Lease
renewal or expansion which occurs or is made pursuant to the terms of an
existing Lease. In the event Purchaser informs Seller within such five (5)
business day period that Purchaser does not approve the termination, amendment,
renewal or expansion of an existing Operating Agreement or Lease or the proposed
new Operating Agreement or proposed new Lease, which approval shall be
consistent with the aforementioned standards, Seller shall not proceed with the
termination, amendment, renewal or expansion or new Operating Agreement or Lease
in question. In the event Purchaser fails to notify Seller in writing of its
approval or disapproval within the five (5) business day period set forth above,
Purchaser shall be deemed to have approved such new Operating Agreement or
Lease, termination, amendment, renewal or expansion, including all Tenant
Inducement Costs and leasing commissions to be incurred in connection therewith
as disclosed by Seller. At Closing, Purchaser shall reimburse Seller for any
Tenant Inducement Costs, leasing commissions and attorneys' fees and other
expenses, incurred by Seller pursuant to an amendment, a renewal, an expansion
or a new Lease approved (or deemed approved) by Purchaser as provided in Section
4.4(b)(v).
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(c) To the extent the information requested is (i)
reasonably available to Seller in its Los Angeles, California Real Estate
Investments office, and (ii) not confidential or covered by any privilege,
including the attorney-client privilege, or is not attorney work product, Seller
shall provide Purchaser during the Inspection Period with financial information
for the Property for calendar year 2002 and calendar year to date 2003 in a form
reasonably sufficient to permit Purchaser's auditors to prepare, at Purchaser's
sole cost and expense, audited financial statements for the Property for such
year. Seller shall provide Purchaser's auditors with reasonable access to meet
with the personnel of Seller and its agents as may be reasonably necessary for
Purchaser to investigate and confirm Seller's financial information and prepare
any required filings with the Securities and Exchange Commission relating to
this transaction.
SECTION 5.5 Representations and Warranties of Purchaser.
Purchaser hereby makes the following representations and warranties to Seller as
of the Effective Date, which representations and warranties shall be deemed to
have been made again as of the Closing, subject to Section 4.3(c) hereof:
(a) Organization and Authority. Purchaser has been duly
organized and is validly existing and in good standing under the laws of
Maryland and in good standing and qualified to do business in the State where
the Property is located. Purchaser has the full right and authority to enter
into this Agreement and to consummate or cause to be consummated the transaction
contemplated by this Agreement. The person signing this Agreement on behalf of
Purchaser is authorized to do so.
(b) Pending Actions. To Purchaser's knowledge, there is
no action, suit, arbitration, unsatisfied order or judgment, government
investigation or proceeding pending against Purchaser which, if adversely
determined, could individually or in the aggregate materially interfere with the
consummation of the transaction contemplated by this Agreement.
(c) ERISA.
(i) As of the Closing, (1) Purchaser will not be
an employee benefit plan as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I
of ERISA, nor a plan as defined in Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended (each of the foregoing hereinafter referred to
collectively as "Plan"), and (2) the assets of the Purchaser will not constitute
"plan assets" of one or more such Plans within the meaning of Department of
Labor ("DOL") Regulation Section 2510.3-101.
(ii) As of the Closing, if Purchaser is a
"governmental plan" as defined in Section 3(32) of ERISA, the closing of the
sale of the Property will not constitute or result in a violation of state or
local statutes regulating investments of and fiduciary obligations with respect
to governmental plans.
(iii) As of the Closing, Purchaser will be acting
on its own behalf and not on account of or for the benefit of any Plan.
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(iv) Purchaser has no present intent to transfer
the Property to any entity, person or Plan which will cause a violation of
ERISA.
(v) Purchaser shall not assign its interest
under this Agreement to any entity, person, or Plan which will cause a violation
of ERISA.
SECTION 5.6 Survival of Purchaser's Representations and
Warranties. The representations and warranties of Purchaser set forth in Section
5.5 hereof as updated as of the Closing in accordance with the terms of this
Agreement, shall survive Closing for a period of one (1) year. No claim for a
breach of any representation or warranty of Purchaser shall be actionable or
payable if the breach in question results from or is based upon a condition,
state of facts or other matter which was known to Seller prior to Closing.
Purchaser shall have no liability to Seller for a breach of any representation
or warranty (a) unless the valid claims for all such breaches collectively
aggregate more than One Hundred Thousand Dollars ($100,000.00), in which event
the full amount of such valid claims shall be actionable, up to the Cap (as
defined in Section 5.3), and (b) unless written notice containing a description
of the specific nature of such breach shall have been given by Seller to
Purchaser prior to the expiration of said one (1) year period and an action
shall have been commenced by Seller against Purchaser within fifteen (15) months
following the Closing. Seller agrees to first seek recovery under any insurance
policies, service contracts and Leases prior to seeking recovery from Purchaser,
and Purchaser shall not be liable to Seller if Seller's claim is satisfied from
such insurance policies, service contracts or Leases.
ARTICLE VI
DEFAULT
SECTION 6.1 Default by Purchaser. In the event the sale of the
Property as contemplated hereunder is not consummated due to Purchaser's default
hereunder, Seller shall be entitled, as its sole remedy, to terminate this
Agreement and receive the Deposit and retain the Loan Deposit as liquidated
damages for the breach of this Agreement, it being agreed between the parties
hereto that the actual damages to Seller in the event of such breach are
impractical to ascertain and the amount of the Total Deposit is a reasonable
estimate thereof.
SECTION 6.2 Default by Seller. In the event the sale of the
Property as contemplated hereunder is not consummated due to Seller's default
hereunder, Purchaser shall be entitled, as its sole remedy, either (a) to
receive the return of the Deposit (and the Loan Deposit if it has theretofore
been provided by Purchaser to Seller), which return shall operate to terminate
this Agreement and release Seller from any and all liability hereunder, or (b)
to enforce specific performance of Seller's obligation to convey the Property to
Purchaser in accordance with the terms of this Agreement, it being understood
and agreed that the remedy of specific performance shall not be available to
enforce any other obligation of Seller hereunder. Purchaser expressly waives its
rights to seek damages in the event of Seller's default hereunder. If the sale
of the Property is not consummated due to Seller's default hereunder, Purchaser
shall be deemed to have elected to
24
terminate this Agreement and receive back the Deposit (and the Loan Deposit if
it has theretofore been provided by Purchaser to Seller) if Purchaser fails to
file suit for specific performance against Seller in a court having jurisdiction
in the county and state in which the Property is located, on or before thirty
(30) days following the date upon which Closing was to have occurred.
SECTION 6.3 Recoverable Damages. Notwithstanding Sections 6.1
and 6.2 hereof, in no event shall the provisions of Sections 6.1 and 6.2 limit
the damages recoverable by either party against the other party due to the other
party's obligation to indemnify such party in accordance with this Agreement.
This Section shall survive the Closing or the earlier termination of this
Agreement.
ARTICLE VII
RISK OF LOSS
SECTION 7.1 Minor Damage or Condemnation. In the event of loss
or damage to, or legal proceeding under power of eminent domain ("Condemnation")
is commenced with respect to the Property or any portion thereof which is not
"Major" (as hereinafter defined), this Agreement shall remain in full force and
effect provided that Seller shall, at Seller's option, either (a) perform any
necessary repairs, or (b) assign to Purchaser, without representation, warranty
or recourse to Seller, all of Seller's right, title and interest in and to any
claims and proceeds Seller may have with respect to any casualty insurance
policies or Condemnation awards relating to the premises in question, after
deduction of Seller's expenses of collection and amounts expended by Seller in
Seller's reasonable discretion to prevent further damage to the Property or to
alleviate unsafe conditions at the Property caused by casualty or Condemnation.
In the event that Seller elects to perform repairs upon the Property, Seller
shall use reasonable efforts to complete such repairs promptly and the date of
Closing shall be extended a reasonable time in order to allow for the completion
of such repairs. If Seller elects to assign a casualty claim to Purchaser, the
Purchase Price shall be reduced by an amount equal to the lesser of the
deductible amount under Seller's insurance policy or the cost of such repairs as
determined in accordance with Section 7.3 hereof. Upon Closing, full risk of
loss with respect to the Property shall pass to Purchaser.
SECTION 7.2 Major Damage. In the event of a "Major" loss or
damage to, or Condemnation of, the Property or any portion thereof, Purchaser
may terminate this Agreement by written notice to the Seller, in which event the
Deposit and the Loan Deposit shall be returned to Purchaser, less out-of-pocket
costs incurred by Seller in connection with the Loan and Seller's Calculated
Damages (as hereinafter defined) (if the Loan Deposit has theretofore been
provided by Purchaser to Seller, and except to the extent provided in Article
X). If Purchaser does not elect to terminate this Agreement within ten (10) days
after Seller sends Purchaser written notice of the occurrence of such Major
loss, damage or Condemnation (which notice shall state the cost of repair or
restoration thereof as opined by an architect in accordance with Section 7.3
hereof), then Seller and Purchaser shall be deemed to have elected to proceed
with Closing, in which event Seller shall, at Seller's option, either (a)
perform any necessary repairs, or (b) assign to Purchaser, without
25
representation, warranty or recourse to Seller, all of Seller's right, title and
interest in and to any claims and proceeds Seller may have with respect to any
casualty insurance policies or Condemnation awards relating to the premises in
question, after deduction of Seller's reasonable expenses of collection and
amounts expended by Seller in Seller's reasonable discretion to prevent further
damage to the Property or to alleviate unsafe conditions at the Property caused
by casualty or Condemnation. In the event that Seller elects to perform repairs
upon the Property, Seller shall use reasonable efforts to complete such repairs
promptly and the date of Closing shall be extended a reasonable time in order to
allow for the completion of such repairs. If Seller elects to assign a casualty
claim to Purchaser, the Purchase Price shall be reduced by an amount equal to
the lesser of the deductible amount under Seller's insurance policy or the cost
of such repairs as determined in accordance with Section 7.3 hereof. Upon
Closing, full risk of loss with respect to the Property shall pass to Purchaser.
SECTION 7.3 Definition of "Major" Loss or Damage. For purposes
of Sections 7.1 and 7.2, "Major" loss, damage or Condemnation refers to the
following: (a) loss or damage to the Property hereof such that the cost of
repairing or restoring the premises in question to substantially the same
condition which existed prior to the event of damage would be, in the opinion of
an architect selected by Seller and reasonably approved by Purchaser, equal to
or greater than Fifteen Million Dollars ($15,000,000.00), and (b) any loss due
to a Condemnation which permanently and materially impairs the current use of
the Property. If Purchaser does not give written notice to Seller of Purchaser's
reasons for disapproving an architect within five (5) business days after
receipt of notice of the proposed architect, Purchaser shall be deemed to have
approved the architect selected by Seller.
ARTICLE VIII
COMMISSIONS
SECTION 8.1 Brokerage Commissions. With respect to the
transaction contemplated by this Agreement, the sole broker involved is Secured
Capital Corporation (the "Broker"). Seller shall pay the first $750,000 of any
fee or commission owed to Broker in connection with this transaction and
Purchaser shall pay the balance of such fee or commission, if any. Each party
hereto agrees that if any person or entity makes a claim for brokerage
commissions or finder's fees related to the sale of the Property by Seller to
Purchaser, other than the Broker, and such claim is made by, through or on
account of any acts or alleged acts of said party or its representatives, said
party will protect, indemnify, defend and hold the other party free and harmless
from and against any and all loss, liability, cost, damage and expense
(including reasonable attorneys' fees) in connection therewith. The provisions
of this paragraph shall survive the Closing or any termination of this
Agreement.
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ARTICLE IX
DISCLAIMERS AND WAIVERS
SECTION 9.1 No Reliance on Documents. Except as expressly
stated herein, Seller makes no representation or warranty as to the truth,
accuracy or completeness of any materials, data or information delivered or
given by Seller or its brokers or agents to Purchaser in connection with the
transaction contemplated hereby. Purchaser acknowledges and agrees that all
materials, data and information delivered or given by Seller to Purchaser in
connection with the transaction contemplated hereby are provided to Purchaser as
a convenience only and that any reliance on or use of such materials, data or
information by Purchaser shall be at the sole risk of Purchaser, except as
otherwise expressly stated herein. Neither Seller, nor any affiliate of Seller,
nor the person or entity which prepared any report or reports delivered by
Seller to Purchaser shall have any liability to Purchaser for any inaccuracy in
or omission from any such reports.
SECTION 9.2 AS-IS SALE; DISCLAIMERS. EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING
AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL
AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE
IS, WITH ALL FAULTS," EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT OR IMPLIED BY LAW IN THE DEED UNDER CALIFORNIA CIVIL CODE SECTION
1113. PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE
FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO
(INCLUDING SPECIFICALLY, WITHOUT LIMITATION, OFFERING PACKAGES DISTRIBUTED WITH
RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGERS OF THE
PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO
REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR
IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT. PURCHASER ALSO
ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE
PROPERTY IS BEING SOLD "AS-IS." PURCHASER FURTHER ACKNOWLEDGES THAT NEITHER
SELLER NOR THE BROKER NOR ANYONE ACTING ON BEHALF OF SELLER HAS MADE ANY
REPRESENTATIONS REGARDING THE ZONING, DEVELOPMENT POTENTIAL AND/OR RESTRICTIONS,
OR THE SUITABILITY OF THE PROPERTY FOR PURCHASER'S INTENDED USE AND PURCHASER
SHALL DETERMINE ALL SUCH MATTERS ON ITS OWN BEHALF DURING THE INSPECTION PERIOD.
PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL
CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT
LIMITED TO, THE PHYSICAL AND
27
ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY OR DESIRABLE TO
SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR
NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR
TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON
SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS
AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS,
WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT
OR IMPLIED BY LAW IN THE DEED UNDER CALIFORNIA CIVIL CODE SECTION 1113. UPON
CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT
LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS, AND
PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND
RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT
CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS
AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS
REGARDING THE PROPERTY, ALL SUBJECT TO AND WITHOUT LIMITING SELLER'S EXPRESS
REPRESENTATIONS, WARRANTIES OR COVENANTS UNDER THIS AGREEMENT INCLUDING
CONVEYANCING DOCUMENTS ATTACHED AS EXHIBITS. PURCHASER ACKNOWLEDGES THAT SUCH
ADVERSE MATTERS MAY AFFECT PURCHASER'S ABILITY TO SELL, LEASE OR FINANCE THE
PROPERTY AT ANY TIME AND FROM TIME TO TIME. IN CONNECTION THEREWITH, PURCHASER
EXPRESSLY WAIVES ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES THAT:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
SECTION 9.3 Survival of Disclaimers. The provisions of this
Article IX shall survive Closing or any termination of this Agreement.
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ARTICLE X
MORTGAGE LOAN
SECTION 10.1 Application. Purchaser hereby applies for, and
subject to satisfaction of the conditions set forth in this Article X, Seller
hereby commits to make or cause its affiliate to make the Mortgage Loan
described below, on the terms, provisions and conditions contained herein. If
all conditions contained herein have not been complied with on or before the
Closing (the "Expiration Date"), Seller's obligations under this Article X shall
cease, unless prior thereto, Seller, having the sole option to do so, extends
the Expiration Date by written notice to Purchaser. Purchaser acknowledges that
Seller may also enter into co-lending arrangements with its subsidiaries and/or
affiliates.
A cashier's or certified check or wired funds in the amount of Six
Hundred Sixty Five Thousand Six Hundred Twenty Five Dollars ($665,625) (the
"Loan Application Fee") also accompanies this Agreement. Except as provided in
the immediately succeeding sentence hereof, the Loan Application Fee shall be
retained by Seller as its fee for committing to provide the Mortgage Loan in
accordance with the terms of this Agreement. If this Agreement is terminated
prior to the end of the Inspection Period other than as a result of Purchaser's
default, the Loan Application Fee shall be returned to Purchaser, less, in the
case where the Loan Deposit has not yet been provided to Seller, any reasonable
out of pocket expenses incurred by Seller in connection with Purchaser's
application for the Mortgage Loan. This paragraph shall survive the Closing or
earlier termination of this Agreement.
If Purchaser has not previously elected to terminate this Agreement,
Purchaser agrees to provide to Seller, a cashier's or certified check or wired
funds in the amount of Two Million Nine Hundred Twenty Five Thousand Dollars
($2,925,000) (the "Loan Deposit") prior to the end of the Inspection Period
(time being of the essence), and the failure of Purchaser to timely deliver the
Loan Deposit prior to the end of the Inspection Period shall be a material
default and shall entitle Seller, at Seller's sole option, to terminate this
Agreement immediately. The Loan Deposit may also be in the form of a clean
irrevocable sight draft letter of credit, issued by a bank and in a form
approved in writing by Seller, with an expiration date no earlier than two
months following the contemplated date of Closing. The Loan Deposit shall be
held by Seller and will be returned to Purchaser on the date of the Closing,
subject to Seller's right to keep the Loan Deposit in the circumstances
described in this Agreement. It is understood and agreed that Seller shall be
entitled to retain the Loan Deposit if the sale contemplated by this Agreement
does not close for any reason whatsoever or if the Loan does not close for any
reason whatsoever, in each case other than (i) an express default by Seller
under this Agreement, or (ii) Seller does not obtain the approvals described in
Section 11.16 by the Committee Approval Date (iii) pursuant to an express
provision of this Agreement which provides that the Loan Deposit less
out-of-pocket costs and Seller's Calculated Damages (as hereinafter defined) are
returned to Purchaser.
Purchaser may have the interest rate as set forth in Section 10.3 (c)
determined prior to the end of the Inspection Period by providing Seller with
one (1) Business Day's notice of Purchaser's election have the interest rate
determined, and simultaneously submitting delivering the Loan Deposit to Seller,
by the means specified herein. Where Seller receives the Loan Deposit later than
29
2:00 P.M. E.S.T or E.D.T on a Business Day, the interest rate shall be
determined pursuant to Section 10.3 (c) on the next Business Day.
Seller's Calculated Damages shall mean the excess of (a) the present
value of all interest payments payable during the Loan Term, discounted at the 7
year interpolated U.S. Treasury Yield on the Seller Determination Date, as
determined by Seller in its sole discretion, less (b) the present value of all
interest payments payable during the Loan Term, discounted at the 7 year
interpolated U.S. Treasury Yield at the time the rate is locked on the Loan, as
determined by Seller in its sole discretion; but in no event may the Seller's
Calculated Damages be less than zero. "Seller Determination Date" means the date
on which Seller's Trading Desk receives written notice that Purchaser intends to
terminate the transaction contemplated by this Agreement, provided that if
Seller's Trading Desk receives such notice later than 2:00 p.m. E.S.T. or
E.D.T., as applicable, on a Business Day or on a day that is not a Business Day,
then the Seller Determination Date shall be deemed to be the next succeeding
Business Day.
With respect to the Loan Deposit, it is understood and agreed that
Seller will be entering into other contracts with other parties with respect to
the anticipated disbursement of the Mortgage Loan including agreements with
respect to the fixing of the interest rate prior to the funding of the Mortgage
Loan, and Purchaser and Seller agree that where Seller is entitled to retain the
Loan Deposit or any portion thereof pursuant to this Agreement, the amount of
the retained portion of the Loan Deposit is intended by Purchaser and Seller to
compensate Seller for losses sustained on its other contracts, time spent, labor
and services performed, loss of interest and other losses and costs incurred by
Seller in connection therewith. The Loan Deposit that is provided by Purchaser
to Seller pursuant to this paragraph together with the Deposit referred to in
Section 1.5 hereof are sometimes collectively referred to herein as the "Total
Deposit." This paragraph shall survive the Closing or earlier termination of
this Agreement. Notwithstanding the foregoing, in the event that approvals
contemplated by Section 11.16 are not obtained, the Loan Deposit shall be
returned to Purchaser, less out of pocket costs in an amount not to exceed Fifty
Thousand Dollars ($50,000) incurred by Seller in connection with the Loan.
SECTION 10.2 Definitions and Other Requirements. "Note" means
the instrument executed and delivered by Purchaser to evidence the indebtedness
of the Mortgage Loan. "Mortgage" means the mortgage delivered by Purchaser to
secure the Note. "Unsecured Indemnity Agreement" means the separate unsecured
indemnity agreement executed and delivered by Purchaser as described in Section
10.9(b). "Mortgaged Property" means the Real Property, the Personal Property and
the Intangible Property collectively. "Seller's Approval" means approval in
writing by Seller's Real Estate Investments Department and either Seller's Law
Department or Seller's special counsel. "Space Lease" means any lease or
occupancy agreement affecting a portion of the space in the Real Property.
"Space Tenant" means a tenant under a Space Lease. "Impositions" mean all real
estate and other taxes, assessments, water and sewer charges, vault and other
license or permit fees, liens, fines, penalties, interest, impositions, and
other similar claims, general and special, public and private, of any kind
whatsoever which may be assessed, liened, confirmed, imposed upon or become due
or payable out of, all or any part of, the Mortgaged Property. "Loan Documents"
means the Note, the Mortgage, the Security Agreement and any other instrument,
document or agreement evidencing or securing the indebtedness evidenced by the
Note.
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"Liable Parties" means Xxxxxxx Properties, L.P. and Liable Parties shall execute
a "Guaranty" in connection with the Mortgage Loan and the Unsecured Indemnity
Agreement to guaranty the obligations of Purchaser with respect to (a) the
recourse provisions of the Loan which are set forth in Section 10.9(a) and (b)
the Unsecured Indemnity Agreement. The Unsecured Indemnity Agreement and
Guaranty are not Loan Documents and shall survive repayment of the Loan or other
termination of the Loan Documents. The Loan Documents, the Unsecured Indemnity
Agreement and the Guaranty shall be in a form subject to Seller's Approval
SECTION 10.3 Terms.
(a) The amount of the Mortgage Loan (the "Loan Amount")
shall be sixty five percent (65%) of the Purchase Price in an amount not to
exceed One Hundred Forty Six Million Two Hundred Fifty Thousand Dollars
($146,250,000) (as defined in Section 1.3 of this Agreement).
(b) The Maturity Date shall be the first day of the month
following the seventh (7th) anniversary of the Closing.
(c) The annual interest rate for the Mortgage Loan shall
be the sum of (i) One Hundred Thirty (130) basis points plus (ii) the
interpolated yield that would be issued on securities issued by the United
States Treasury having a maturity equal to seven (7) years, based on the next
shorter and next longer (on the run) maturity for United States Treasury
securities, as determined by Seller's Treasury Trading desk on the Business Day
after the date Seller shall have received the Loan Deposit. A "Business Day" is
a day that both Seller and the bond market are conducting business. Interest
shall be calculated on a daily basis of the actual number of days elapsed over a
360-day year.
(d) Purchaser shall pay interest only in advance on the
date of Closing and shall then pay interest only in arrears, on the first day of
the second month following the Closing and thereafter Purchaser shall make
payments of interest only on the first day of each month through and including
the forty eighth (48th) month following the Closing; thereafter Purchaser shall
make payments of both principal and interest on the first day of each month
through and including the Maturity Date. The amortization period of the Mortgage
Loan shall be twenty six (26) years, as measured from the first day of the month
in which payments of principal and interest are due.
(e) The monthly payment shall be established in
accordance with the terms set forth above.
(f) The annual net operating income at the time of
Closing shall be 1.85 times the annual debt service, as determined by Seller in
its reasonable discretion.
SECTION 10.4 Repayment. Interest only shall be paid from the
date of Closing to and including the first day of the 48th month following the
Closing, and monthly installments of principal and interest shall be paid on the
first day of each and every month thereafter, except that if
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not sooner paid, the entire outstanding principal balance, together with the
interest thereon, shall be paid on the Maturity Date. The aforesaid monthly
installments shall be applied first to the payment of interest and second to the
reduction of principal.
SECTION 10.5 Prepayment. Commencing with the first day of the
Thirty Sixth (36th) month after the Closing, Purchaser shall have the right to
and privilege of prepaying the entire principal balance of the Mortgage Loan
(but not a part thereof) on the first day of any month upon thirty (30) days'
prior written notice to Seller and upon payment to Seller of the outstanding
principal balance of the Mortgage Loan together with accrued interest, the
Prepayment Fee (as defined below and in the Note) and all other sums which may
be due and payable under the Loan Documents.
SECTION 10.6 Title and Title Policy. The Mortgage shall be a
first lien on the unencumbered, marketable, ground leasehold interest in the
Land and fee simple absolute title to the Improvements free of the possibility
of any (a) prior mechanics' liens, (b) prior materialmen's liens or (c) special
assessments for work completed or under construction on the date of the Closing.
There shall be delivered to Seller a mortgagee or loan title insurance policy or
policies for the Loan Amount, issued by the Title Company and by First American
Title Insurance Company, as co-insurers and in a form acceptable to Seller, with
such endorsements, reinsurance required by Seller, insuring title as above and
insuring Seller as the holder of the Mortgage. All title exceptions shall be
subject to Seller's written approval.
SECTION 10.7 Personal Property. A security interest in the
Personal Property shall be created by the Mortgage or such other instrument as
Seller shall require. Such security interest shall be perfected and shall be
prior to any and all other security interests in the Personal Property.
Purchaser shall provide to Seller's special counsel such evidence as may be
required to enable such special counsel to furnish an opinion to Seller
confirming the priority of Seller's security interest in the Personal Property.
SECTION 10.8 Leases. All Space Leases regardless of term,
shall be assigned to Seller as security for the Mortgage Loan. The assignment
shall be recorded and shall include leases which may be entered into after the
Closing ("Future Leases") and while the Mortgage is outstanding as well as those
in existence at the time of the Closing. Purchaser shall give written notice of
the assignment to each Space Tenant.
The Mortgage will contain "LEASING GUIDELINES" with respect to Future
Leases which will include (i) minimum and maximum lease terms, (ii) minimum
annual rent payable per square foot for office or retail leases, and (iii) a
provision requiring that all payments of rent, additional rent or any other
amounts due from a tenant to a landlord under a Space Lease shall be made in
money of the United States of America that at the time of payment shall be legal
tender for the payment of all obligations. The Mortgage shall provide that
except as otherwise approved in writing by Seller, each Future Lease that is a
net lease shall contain provisions requiring the tenant to pay its proportionate
share of operating expenses and taxes, and all other Future Leases shall contain
provisions requiring the tenant to pay, after the first year, its proportionate
share of increases in
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taxes and operating expenses. Future Leases on a form approved by MetLife and
whose terms are within the Leasing Guidelines will not require any approval by
Seller as the lender.
All Future Leases shall be subordinate to the lien of the Mortgage and
shall provide that Seller may elect to make the Future Lease superior to the
Mortgage and to require the tenant to attorn to Seller. The Mortgage shall
provide that Seller may, at its election, provide a non-disturbance agreement to
any tenant under a Future Lease; provided that for tenants under a Future Lease
leasing a full floor or more of space consistent with the Leasing Guidelines and
on a form of lease approved by Seller, Seller will provide such tenants with a
standard form of non-disturbance agreement. Any tenant under a Future Lease to
whom non-disturbance is granted shall execute Seller's standard form of
non-disturbance agreement, at no cost to Seller.
SECTION 10.9 Specific Provisions in Loan Documents In addition
to any other provisions that Seller may require, the Note and/or Mortgage shall
provide, to the extent permitted by law:
(a) a provision in substantially the following form:
"Upon the occurrence of an Event of Default, except as
provided in this Section____, Seller shall look solely to the Mortgaged Property
and the security under the Loan Documents for the repayment of the Mortgage Loan
and will not enforce a deficiency judgment against Purchaser and the general
partners, the limited partners, or the members of the Purchaser, if any.
However, nothing contained in this Section shall limit the rights of Seller to
proceed against Purchaser and the general partners of the Purchaser, if any,
and/or the Liable Parties (as defined in the Note), if any, (i) to enforce any
leases entered into by Purchaser or its affiliates as tenant, guarantees, or
other agreements entered into by Purchaser in a capacity other than as Purchaser
or any policies of insurance; (ii) to recover damages for fraud, material
misrepresentation, material breach of warranty or physical waste; (iii) to
recover any condemnation proceeds or insurance proceeds or other similar funds
which have been misapplied by Purchaser or which, under the terms of the Loan
Documents, should have been paid to Seller; (iv) to recover any tenant security
deposits, tenant letters of credit or other deposit or fees paid to Purchaser
that are part of the collateral for the Mortgage Loan or prepaid rents for a
period of more than 30 days which have not been delivered to Seller; (v) to
recover the rents and profits received by Purchaser after the first day of the
month in which an Event of Default occurs and prior to the date Seller acquires
title to the Mortgaged Property which have not been applied to the Mortgage Loan
or in accordance with the Loan Documents to operating and maintenance expenses
of the Mortgaged Property; (vi) to recover damages, costs and expenses arising
from, or in connection with the provisions of the Mortgage pertaining to
hazardous materials or the Unsecured Indemnity Agreement; (vii) to recover all
amounts due and payable pursuant to Sections ___ and ___ of the Mortgage (those
Sections of the Mortgage referring to out-of-pocket expenses) and any amount
expended by Seller in connection with the foreclosure of the Mortgage; (viii) to
recover damages arising from Purchaser's failure to comply with the provisions
of the Mortgage pertaining to ERISA; (ix) to recover any damages, costs,
expenses or liabilities, including attorneys' fees, incurred by Seller and
arising from any breach of a covenant contained in Article VI of this Mortgage,
or any warranty or indemnity agreement given to Seller (including, without
limitation, the Indemnity Agreement), or any order, consent decree or settlement
relating to the cleanup of Hazardous Materials (as defined in
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the Mortgage), or any other "environmental provision" (as defined in California
Code of Civil Procedure Section 736, as such Section may be amended from time to
time) relating to the Property or any portion thereof; and/or (x) in accordance
with California Code of Civil Procedure Section 726.5, as such Section may be
amended from time to time, to waive the security of the Mortgage as to any
parcel of Real Property that is "environmentally impaired" or is an "affected
parcel" (as such terms are defined in such Section), and as to any Personal
Property attached to such parcel, and thereafter to exercise against Purchaser,
to the extent permitted by such Section 726.5, the rights and remedies of an
unsecured creditor, including reduction of Seller's claim against Purchaser to
judgment, and any other rights and remedies permitted by law. If Seller
exercises the rights and remedies of an unsecured creditor in accordance with
clause (x) above, Purchaser promises to pay to Seller, on demand by Seller
following such exercise, all amounts owed to Seller under any Loan Document, and
Purchaser agrees that it and its general partners, if any, will be personally
liable for the payment of all such sums.
The limitation of liability set forth in this Section ________ shall
not apply and the Loan shall be fully recourse to Purchaser and Liable Parties
in the event that Purchaser commences a voluntary bankruptcy or insolvency
proceeding or an involuntary bankruptcy or insolvency proceeding is commenced
against Purchaser and is not dismissed within 90 days of filing.
(b) any provision of Section 10.9(a) of this Agreement to
the contrary notwithstanding, Purchaser shall, by a separate unsecured indemnity
agreement, in form, scope and substance satisfactory to Seller, indemnify and
hold Seller harmless from and against any and all losses, costs, damages or
liabilities (including without limitation, attorneys' fees and disbursements
and/or environmental investigation costs, or architects' or engineers' fees)
Seller may suffer as a result of the enforcement (or attempted enforcement)
against the Mortgaged Property (or Seller, if it becomes or is considered to be
the owner of the Mortgaged Property), of any federal, state or local act, law,
statute, rule, regulation, order or ordinance concerning hazardous or toxic
wastes or materials (as defined in any federal, state or local act, law,
statute, rule, regulation, order or ordinance). Such unsecured indemnity
agreement shall be executed as an independent inducement to Seller to make the
Mortgage Loan and shall survive any repayment or other termination of the
Mortgage and the other documents given to secure the Mortgage.
(c) a prohibition against any financing of Purchaser in
addition to the Mortgage Loan if such financing would be secured by a lien,
security interest or other encumbrance on the Mortgaged Property, or any part
thereof, or by a pledge or other encumbrance including mezzanine financing of
the interests in Purchaser, if any.
(d) Payment by Purchaser of a late charge of 4% of any
amount which is not received within 7 days of the due date of such payment and
default interest upon a default at the lesser of an annual rate equal to 400
basis points plus the Annual Interest Rate, or the highest interest rate
permitted under applicable law.
(e) Purchaser will not have any right to prepay the Note,
in whole or in part, except as may be expressly provided in the Loan Documents.
If a prepayment of all or any part of the Note is made following an acceleration
of the Maturity Date, the application of proceeds to the
34
principal of the Mortgage Loan after a casualty or condemnation, or in
connection with a purchase of the Mortgaged Property at a foreclosure sale, then
to compensate Seller for the loss of the investment, Purchaser shall pay an
amount equal to the Prepayment Fee. The PREPAYMENT FEE shall be (x) the present
value of all remaining payments of principal and interest including the
outstanding principal due on the Maturity Date, discounted at the rate which,
when compounded monthly, is equivalent to the Treasury Rate, compounded
semi-annually, plus 25 basis points (0.25%) less (y) the amount of the principal
being prepaid, provided that Purchaser may prepay the Note in full at any time
within 90 days prior to the Maturity Date without any Prepayment Fee. The
"TREASURY RATE" shall be the annualized yield on securities issued by the United
States Treasury having a maturity equal to the remaining stated term of the
Note, as quoted in the Federal Reserve Statistical Release [H. 15 (519)] under
the heading "U.S. Government Securities - Treasury Constant Maturities" for the
date on which prepayment is being made. If this rate is not available as of the
date of prepayment, the Treasury Rate shall be determined by interpolating
between the yield on securities of the next longer and next shorter maturity. If
the Treasury Rate is no longer published, Seller shall select a comparable rate.
Seller will, upon request, provide an estimate of the amount of the Prepayment
Fee two weeks before the date of the scheduled prepayment.
(f) Purchaser will make monthly deposits into a reserve
account for all real estate and other taxes and assessments on the Property
(collectively, "IMPOSITIONS") and insurance premiums. The monthly deposits into
the reserve account will be in an amount sufficient to fund the full amount of
the next installment of Impositions and the next installment of insurance
premiums, in each case at least thirty (30) days prior to the due date of such
installment payment. Purchaser shall pay each installment of the Impositions and
each installment of the insurance premiums thirty (30) days' prior to their
respective due dates unless Purchaser has deposited such amounts in the reserve
account; Purchaser may use the funds deposited in the reserve account to pay
each such installment of Impositions and insurance premiums when the same are
due and payable. The deposits in the reserve account shall be held by Seller in
an interest bearing account, with interest for the benefit of Purchaser, but
such funds may be commingled with other funds of Seller.
(g) Except as permitted by the following provisions,
Purchaser may not cause or permit: (i) any part of the Mortgaged Property or any
interest in the Mortgaged Property, to be conveyed, transferred, assigned,
encumbered, sold or otherwise disposed of, or (ii) any change in the
individual(s) comprising, or in the partners, or stockholders, or members or
beneficiaries of, Purchaser from those represented to Seller on the date of this
Agreement, or (iii) any merger, reorganization, dissolution or other change in
the ownership structure of Purchaser or any of the general partners of
Purchaser, including, without limitation, any conversion of the Purchaser or any
general partner of Purchaser from a general partnership to a limited
partnership, a limited liability partnership or a limited liability company
(collectively, "TRANSFERS"), any such Transfers shall be an Event of Default
under the Loan Documents. However, these prohibitions will not apply to
transfers of ownership as a result of the death, or in connection with estate
planning, of a natural person to a spouse, son or daughter or descendant of
either, or to a stepson or stepdaughter or descendant of either. There will be
no restriction on the day to day Transfer of shares in a publicly held entity
that does not, singularly or in the aggregate, cause a change in management or
control of such entity.
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(h) The Loan Documents shall provide that Seller may, at
any time, sell, transfer or assign the Loan, the Loan Documents, the Unsecured
Indemnity Agreement and the Guaranty, and its servicing rights with respect to
the Mortgage Loan, grant participations in the Mortgage Loan or issue mortgage
pass-through certificates or other securities evidencing a beneficial interest
in the Mortgage Loan in a rated or unrated public offering or private placement
(the "SECURITIES"). Seller may forward to each purchaser, transferee, assignee,
servicer, participant, investor or prospective investor in such Securities
(collectively, the "INVESTOR"), or any "Rating Agency" rating or assigning value
to such Securities, or prospective Investor all documents and information Seller
has with respect to the Mortgage Loan. Purchaser and the Liable Parties, if any,
shall furnish and consent to Seller furnishing this information pertaining to
the Mortgage Loan, the Mortgaged Property, the Space Leases and the financial
condition of Purchaser, the Liable Parties, and the Mortgaged Property as
Seller, the Investor or Rating Agency may request. Purchaser and Liable Parties
shall provide an estoppel certificate or any other documents to the Investor or
the Rating Agency as may be reasonably required by Seller. "RATING AGENCY" shall
mean any credit rating agency which rates or assigns values to Securities.
(i) Purchaser shall deliver to Seller in a form
satisfactory to Seller (in addition to other financial reports related to the
Mortgaged Property which may be required) (i) an annual ARGUS (C) valuation file
in electronic form which includes, without limitation, a then current rent roll,
all income of the Mortgaged Property and all Mortgaged Property expenses, (ii)
quarterly operating statements for the Mortgaged Property and (iii) an annual
operating budget presented on a monthly basis for the upcoming two (2) year
period at least fifteen (15) days prior to the beginning of each calendar year.
(j) A. During the Loan term, Purchaser may make up
to three transfers of the Property to an entity wholly owned and controlled by
Xxxxxxx Properties, L.P. ("Purchaser Affiliate"), provided that Xxxxxxx
Properties, Inc., remains the general partner of Xxxxxxx Properties L.P., and
Purchaser shall pay all out-of-pocket costs of such transfer including, without
limitation, title insurance and attorneys' fees.
B. In addition, Purchaser shall have a one time
right to transfer the Property, subject to the following conditions: (i) there
being no Event of Default under the Loan Documents, the Indemnity Agreement or
the Guaranty at the time of the transfer, (ii) OMITTED, (iii) the transferee
shall be able to make the ERISA representations set forth in the Loan Documents
and in Section 10.14 of this Agreement and such other representations as Seller
may determine in its sole discretion, (iv) the cash flow, in the opinion of
Seller, derived from the Property shall be no less than 2.0 times the annual
payments required under the Loan, (v) the loan to value ratio of the Property at
the time of the transfer shall not be greater than 60%, (vi) Purchaser or the
transferee shall pay a fee equal to one percent (1%) of the outstanding
principal balance of the Note at the time of the assumption together with a
processing fee in the amount of $50,000, (vii) the transferee shall expressly
assume the Loan Documents and the Indemnity Agreement in a manner satisfactory
to Seller and additional Liable Parties acceptable to Seller shall execute the
Guaranty with respect to events arising or occurring from and after the date of
the transfer, which additional Liable Parties must have (in the aggregate if
more than one) a net worth of not less than
36
$250,000,000.00, determined in accordance with generally acceptable accounting
principles, consistently applied, (viii) the transferee must have a net worth of
not less than $250,000,000.00, determined in accordance with generally accepted
accounting principles, consistently applied, (ix) the transferee must be
experienced in the ownership, management and leasing of properties similar to
the Property, and be approved by Seller, in Seller's reasonable discretion, (x)
Purchaser or transferee shall pay all costs and expenses incurred by Seller in
connection with the transfer, including title insurance premiums, documentation
costs and reasonable attorneys' fees and (xi) if the Mortgage Loan has been
securitized, Seller shall have received confirmation that the assumption of the
Mortgage Loan by the transferee will not result in a downgrade in the rating of
the Securities by the Rating Agency. No transfer shall release Purchaser or
Liable Parties from their obligations under the Loan Documents, the Indemnity
Agreement or the Guaranty with respect to events arising or occurring prior to
the date of transfer.
C. In addition, Purchaser or the Purchaser
Affiliate shall also have a one-time right to transfer interests in the Property
or interests in Purchaser or the Purchaser Affiliate to an Institutional
Investor, as defined below, so long as (i) there is no Event of Default under
the Loan Documents, the Indemnity Agreement or the Guaranty at the time of the
transfer, (ii) the transferee shall be able to make the ERISA representations
set forth in the Loan Documents and in Section 10.14 of this Agreement and such
other representations as Seller may determine in its sole discretion, (iii) the
transferee of a direct interest in the Property shall expressly assume the Loan
Documents and the Indemnity Agreement in a manner satisfactory to Seller and the
Liable Parties shall consent thereto in form acceptable to MetLife in its sole
discretion, (iv) Purchaser, the Purchaser Affiliate or transferee shall pay all
costs and expenses incurred by Seller in connection with the transfer, including
title insurance premiums, documentation costs and reasonable attorneys' fees,
(v) if the Mortgage Loan has been securitized, Seller shall have received
confirmation that the assumption of the Mortgage Loan by the transferee will not
result in a downgrade in the rating of the Securities by the Rating Agency, (vi)
at all times Xxxxxxx Properties, Inc. shall maintain not less than 25% direct or
indirect ownership interest in the Property as well as the right and power to
direct or cause the direction of the management and policies of the entity that
owns the Property, Purchaser shall pay a processing fee to Seller in the amount
of Fifty Thousand Dollars ($50,000.00) plus a transfer fee equal to the product
of one percent (1%) multiplied by the percentage of interest in the Property
being transferred multiplied by the balance of principal and interest
outstanding on the Mortgage Loan at the time of the transfer. No transfer shall
release Purchaser or Liable Parties from their obligations under the Loan
Documents, the Indemnity Agreement or the Guaranty.
"Institutional Investor" means one or more of the following: (i) a real estate
investment trust, bank, saving and loan association, investment bank, insurance
company, trust company, commercial credit corporation, pension plan, pension
fund or pension advisory firm, mutual fund, government entity or plan, (ii)
investment company, money management firm or "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933, as amended, or
an institutional "accredited investor" within the meaning of Regulation D under
the Securities Act of 1933, as amended, provided that in all cases such entity
(A) has total assets (in name or under management) in excess of Five Hundred
Million Dollars ($500,000,000.00) and net worth or capital/statutory surplus or
shareholder's equity, as MetLife shall reasonably determine, of Two Hundred
Fifty Million Dollars ($250,000,000.00); and (B) has a total debt to
37
total net worth/capital/statutory surplus or shareholder's equity (as MetLife
shall determine in its reasonable discretion) ratio not to exceed Fifty Percent
(50%). For purposes of this definition only, "Control" means the ownership,
directly or indirectly, in the aggregate of more than fifty percent (50%) of the
beneficial ownership interest of an entity and the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of an entity, whether through the ability to exercise voting power, by
contract or otherwise.
SECTION 10.10 Insurance. During the term of the Mortgage Loan,
Purchaser at its sole cost and expense must provide insurance policies and
certificates of insurance satisfactory to Seller as to amounts, types of
coverage and the companies underwriting these coverages. The terms upon which
the policies shall be issued, maintained and available to Seller for review,
including the manner in which Seller shall be identified in the policies, shall
be set forth in the Mortgage. Evidence of the required insurance coverage shall
be submitted to Seller no later than ten (10) days prior to Closing.
(a) Policies of insurance shall comply with the following
requirements:
(i) All Risk Property insurance on the
Improvements and the Personal Property, including contingent liability from
Operation of Building Laws, Demolition Costs and Increased Cost of Construction
endorsements, in each case (i) in an amount equal to 100% of the "Full
Replacement Cost" of the Improvements and Personal Property, which for purposes
hereof shall mean actual replacement value (exclusive of costs of excavations,
foundations, underground utilities and footings) with a waiver of depreciation
and with a Replacement Cost Endorsement; (ii) containing an agreed amount
endorsement with respect to the Improvements and Personal Property waiving all
co-insurance provisions; (iii) providing for no deductible in excess of $10,000;
and (iv) containing an "Ordinance or Law Coverage" or "Enforcement" endorsement
if any of the Improvements or the use of the Mortgaged Property shall constitute
non-conforming structures or uses. The Full Replacement Cost shall no less than
$ 229,775,000.00 at Closing and be determined from time to time thereafter by an
appraiser or contractor designated and paid by Purchaser and approved in writing
by Seller, or by an engineer or appraiser in the regular employ of the insurer.
(ii) Commercial General Liability insurance
against claims for personal injury, bodily injury, death or property damage
occurring upon, in or about the Mortgaged Property, such insurance (i) to be on
the so-called "occurrence" form with a combined single limit of not less than
$25,000,000.00; (ii) to continue this limit until required to be changed by
Seller in writing by reason of changed economic conditions making this
protection inadequate; and (iii) to cover at least the following hazards: (a)
premises and operations; (b) products and completed operations on an "if any"
basis; (c) independent contractors; (d) blanket contractual liability for all
written and oral contracts; and (e) contractual liability covering the
indemnities contained in the Mortgage to the extent available.
(iii) Business Income insurance in an amount
sufficient to prevent Purchaser from becoming a co-insurer within the terms of
the applicable policies, and sufficient to recover eighteen (18) months'
"Business Income" (as hereinafter defined). The amount $32,000,000.00 is the
current estimate of one year's "Business Income" for the Mortgaged Property,
38
for the purpose of determining Business Income insurance. "Business Income"
shall mean the sum of (a) the total anticipated gross income from occupancy of
the Mortgaged Property, (b) the amount of all charges (such as, but not limited
to, operating expenses, insurance premiums and taxes) which are the obligation
of tenants or occupants to Purchaser, (c) the fair market rental value of any
portion of the Mortgaged Property which is occupied by Purchaser, and (d) any
other amounts payable to Purchaser or to any affiliate of Purchaser pursuant to
Space Leases.
(iv) If Seller determines at any time that any
part of the Mortgaged Property is located in an area identified on a Flood
Hazard Boundary Map or Flood Insurance Rate Map issued by the Flood Emergency
Management Agency as having special flood hazards and flood insurance has been
made available, Purchaser will maintain a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier, in an amount not less than the
lesser of (1) the outstanding principal balance of the Mortgage Loan or (2) the
maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National
Flood Insurance Reform Act of 1994, as amended.
(v) During the period of any construction or
renovation or material alteration of the Improvements, a so-called "Builder's
All Risk" insurance policy in non-reporting form for any Improvements under
construction, renovation or alteration including, without limitation, for
demolition and increased cost of construction or renovation, in an amount
approved in writing by Seller, including an Occupancy endorsement and Workers'
Compensation Insurance covering all persons engaged in the construction,
renovation or alteration in an amount at least equal to the minimum required by
statutory limits of the state in which the Mortgaged Property is located.
(vi) Workers' Compensation Insurance, subject to
the statutory limits of the state in which the Mortgaged Property is located,
and employer's liability insurance with a limit of at least $1,000,000 per
accident and per disease per employee, and $1,000,000 for disease aggregate in
respect of any work or operations on or about the Mortgaged Property, or in
connection with the Mortgaged Property or its operations (if applicable).
(vii) Boiler & Machinery insurance covering the
major components of the central heating, air conditioning and ventilating
systems, boilers, other pressure vessels, high pressure piping and machinery,
elevators and escalators, if any, and other similar equipment installed in the
Improvements, in an amount equal to one hundred percent (100%) of the full
replacement cost of all equipment installed at the Improvements. These policies
shall insure against physical damage to and loss of occupancy and use of the
Improvements arising out of a covered accident or breakdown.
(viii) Insurance from all losses, damages, costs,
expenses, claims and liabilities related to or arising from acts of terrorism,
of such types, in such amounts, with such deductibles, issued by such companies,
and on such forms of insurance policies as required by Seller.
39
(ix) Insurance from all losses, damages, costs,
expenses, claims and liabilities related to or arising from earthquake or
earthquakes, of such types, in such amounts, with such deductibles, issued by
such companies, and on such forms of insurance policies as required by Seller.
(x) Such other insurance as may from time to
time be reasonably required by Seller against other insurable hazards,
including, but not limited to, vandalism, sinkhole and mine subsidence.
(b) All the insurance companies must be authorized to do
business in New York State and the state where the Mortgaged Property is located
and be Approved by Seller. The insurance companies must have a general policy
rating of AA or better and a financial class of X or better by A.M. Best
Company, Inc. and a claims paying ability of A or better according to Standard &
Poors. If there are any "Securities" issued which have been assigned a rating by
a credit rating agency approved by Seller (a "Rating Agency"), the insurance
company shall have a claims paying ability rating by such Rating Agency equal to
or greater than the rating of the highest class of the Securities. The term
"Securities" shall mean mortgage pass through certificates or other securities
evidencing a beneficial interest in the Mortgage Loan in a rated or unrated
public offering or private placement. Purchaser shall deliver evidence
satisfactory to Seller of payment of premiums due under the insurance policies.
(c) Seller shall review Purchaser's existing blanket
insurance program, to determine whether the insurance, coverage and ratings are
acceptable for the funding of the Mortgage Loan, within seven (7) days after
Purchaser provides Seller all materials necessary for Seller to evaluate the
sufficiency of Purchaser's insurance program in meeting such requirements.
SECTION 10.11 Special Counsel Seller shall be represented
legally, in connection with the making of the Mortgage Loan, by special counsel
to be selected by its Law Department. At the Closing, such special counsel and
Purchaser's counsel shall deliver to Seller their respective opinions addressed
to Seller, in form, scope and substance satisfactory to Seller, concerning the
legality, validity, enforceability and binding effect of all documents required
in connection with the Mortgage Loan. The fees and disbursements of special
counsel shall be included in the expenses, fees and charges referred to in
Section 10.13 of this Agreement.
SECTION 10.12 Brokers and Finders Fees. Seller shall be under
no obligation for, and Purchaser shall indemnify and hold harmless Seller from
the payment of any brokerage commissions or fees of any kind and any legal fees
and expenses incurred by Seller in connection with any claims for brokerage
commissions or fees with respect to the Mortgage Loan.
SECTION 10.13 Expenses Purchaser shall, to the extent
permitted by law, be responsible and liable for payment of all fees, costs,
expenses and charges incurred by Seller and/or Purchaser in connection with the
making of the Mortgage Loan, or in any way connected with the transactions
contemplated by this Article X including, without limitation, brokerage
commissions, the premium and all endorsements to the lender's policy of title
insurance to be issued to Seller by the Title Company at Closing, recording
charges of the Loan Documents, the fees and expenses of
40
Seller's special counsel in connection with the Mortgage Loan, taxes and revenue
stamps applicable to the Note and/or Mortgage, regardless of whether Seller
disburses the Mortgage Loan.
SECTION 10.14 Purchaser's Additional Representations.
Purchaser hereby represents that, and agrees to furnish Seller at or prior to
the Closing evidence confirming that (i) it is a Maryland corporation (or if
Purchaser has assigned its rights under this Agreement to a Purchaser Affiliate,
confirming that the affiliate is a duly formed and validly existing entity),
(ii) no member or partner of Purchaser (or of any Purchaser Affiliate that is an
assignee hereunder) is an officer or director of Seller or is a relative of an
officer or director of Seller within the following categories: a son, daughter,
or descendant of either, a stepson, stepdaughter, stepfather, stepmother,
father, mother, or a descendant of either, or a spouse; (iii) neither Purchaser
(or of any Purchaser Affiliate that is an assignee hereunder) nor any partner,
stockholder (excluding stockholders holding shares of a publicly traded entity),
member, trustee or Purchaser (or of any Purchaser Affiliate that is an assignee
hereunder) is, and no legal or beneficial interest in a partner, stockholder
(excluding stockholders holding shares of a publicly traded entity), member, or
trustee of Purchaser (or of any Purchaser Affiliate that is an assignee
hereunder), is or will be held, directly or indirectly by, a "foreign person"
within the meaning of Sections 1445 and 7701 of the Internal Revenue Code of
1986, and the amendments of such Code or Regulations as promulgated pursuant to
such Code, and (iv) the parties executing the Loan Documents on behalf of
Purchaser or other party to the transaction have the legal capacity and
authority to execute the documents as executed or to be executed. Purchaser
further represents that it has not engaged a broker in connection with the
Mortgage Loan contemplated in this Article X and agrees to pay all fees to any
broker it has engaged in connection with the transaction contemplated in this
Article X. Purchaser acknowledges that Seller may be related to or affiliated
with, or may have been involved in other transactions with, the broker named in
Purchaser's representation and Purchaser agrees that it shall have no rights
against Seller or defenses to Purchaser's obligations hereunder or under the
Note or Mortgage arising out of any relationships between such broker and
Seller.
SECTION 10.15 Compliance with ERISA. The Mortgage shall
contain a provision in substantially the following form, and a breach or default
under such provision shall be excluded from the limitation of liability
provisions of the Loan Documents referred to in Section 10.9(a) hereof:
Purchaser represents, warrants and agrees that:
(i) it is acting on its own behalf and that it is not an
employee benefit plan as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), which is subject to Title 1 of
ERISA, nor a plan as defined in Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended (each
of the foregoing hereinafter referred to collectively
as a "Plan");
(ii) Purchaser's assets do not constitute "plan assets" of
one or more such Plans within the meaning of
Department of Labor Regulation Section 2510.3-101;
and
41
(iii) it will not be reconstituted as a Plan or as an
entity whose assets constitute "plan assets".
SECTION 10.16 No Adverse Change. Except as may be otherwise
required by this Agreement, at the time of the Closing, the rental income of the
Mortgaged Property, the credit of the Purchaser and all other features of the
Mortgage Loan contemplated by this Article X shall be as represented in this
Article X and in the materials submitted by Purchaser to Seller with respect to
the Mortgage Loan, without material adverse change. Neither Purchaser, nor, if
applicable any general partner of Purchaser, or any tenant or combination of
tenants renting ten percent (10%) or more of the space in the Improvements, or
any guarantor of the Mortgage Loan or of any lease of ten percent (10%) or more
of the space in the Improvements shall be involved as a debtor in a bankruptcy,
reorganization, or insolvency proceeding. Subject to the provisions of Article
VII, no part of the Mortgaged Property shall have been damaged and not repaired
to Seller's satisfaction, nor taken in condemnation or other like proceeding,
nor shall any such proceeding be pending or threatened. If Seller elects not to
consummate the Closing as a result of any of the circumstances referred to in
this Section 10.16, the Deposit and the Loan Deposit, less out of pocket costs
related to the Loan, shall be returned to Purchaser. The terms of the
immediately preceding sentence shall survive any termination of this Agreement.
The Mortgage Loan is a material consideration in Seller's decision to sell the
Property to Purchaser, and notwithstanding anything contained in this Agreement,
Seller shall not be obligated to sell the Property to Purchaser without
contemporaneously closing the Mortgage Loan with Purchaser.
SECTION 10.17 Documentation. Purchaser shall provide Seller
with such other documentation as Seller customarily requires in connection with
mortgage loan transactions, all in form, scope and substance satisfactory to
Seller. Such other documentation shall include, but not be limited to:
(a) Purchaser shall submit certified financial statements
for itself and for all Liable Parties.
(b) UCC searches on the Purchaser and all principals of
the Purchaser.
(c) Purchaser shall submit organizational documents,
incumbency certificates and borrowing authorizations for itself and all Liable
Parties. The organization documents must comply with the requirements of this
Agreement regarding the identity of the Purchaser.
(d) At the election of Seller, Purchaser at its expense
shall provide in triplicate any report related to or including (a) a Property
Condition Assessment ("PCA"), (b) a Maximum Probable Loss Study ("MPL"), or (c)
Environmental Site Assessment ("ESA") commissioned by Purchaser or a related
entity, if such report or reports (as applicable) contain any scope of work
items beyond the scope of work of the PCA, MPL, and/or ESA that Seller has
already provided to the Purchaser in connection with the contemplated sale of
the Property.
42
(e) Evidence to the effect that all agreements to pay
management fees are subordinate to the Mortgage and shall not be enforceable
against Seller.
(f) The Ground Lessor Estoppel, with Lender's Required
Items, if any, and Ground Lessor Consent.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Confidentiality. Purchaser and Seller each agree
that the material economic, business and legal terms of the transactions
contemplated by this Agreement and all confidential information made available
by, or pursuant to the request of, one party to the other shall be maintained in
strict confidence and no disclosure of such information will be made, whether or
not the transactions contemplated by this Agreement shall close, except to such
attorneys, accountants, appraisers, investment advisors, officers, directors,
lenders (including lender providing a line of credit to Purchaser or its
Affiliates), prospective partners or investors and others as are reasonably
required to evaluate and consummate the transactions who have agreed to comply
with the provisions of this Section 11.1. Purchaser and Seller each further
agree and covenant as follows:
(a) Neither Purchaser nor Seller shall disclose or
authorize the disclosure of the material economic, business and legal terms of
this Agreement or any instruments, documents or assignments delivered in
connection with this Agreement, or the identity of the other party to this
Agreement in any public statement, news release, or other announcement or
publication. The provisions of this Section 11.1 shall survive the Closing or
any termination of this Agreement for a period of twelve (12) months.
(b) Nothing in this paragraph shall prevent either
Purchaser or Seller from disclosing any information otherwise deemed
confidential under this paragraph (i) in connection with that party's
enforcement of its rights hereunder; (ii) pursuant to any legal requirement, any
statutory reporting requirement or any accounting or auditing disclosure
requirement, provided that in the case of a legal subpoena or a request for
information or similar requirement from a governmental agency that allows an
opportunity for objection by Purchaser or Seller, at least ten (10) days (or
such shorter period as may be reasonable under the circumstances) prior to the
disclosure pursuant to such subpoena or request for information or similar
requirement the disclosing party shall inform the other party in writing of the
proposed disclosure in order that the other party may monitor the extent of the
disclosure and, if appropriate, object thereto; (iii) in connection with the
performance by either party of its obligations under this Agreement (including,
but not limited to, the delivery and recordation of instruments, notices or
other documents required hereunder); or (iv) subject to the provisions of
Article 10 and Section 11.3 and regarding Purchaser's right to assign its
interest in the transactions contemplated by this Agreement, to potential
investors, participants or assignees in or of the transactions contemplated by
this Agreement.
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(c) Subject to the provisions of this Section 11.1,
Purchaser and Seller shall jointly issue a press release reasonably acceptable
to each at Closing announcing the sale of the Property.
(d) In the event this Agreement is terminated or
Purchaser fails to perform hereunder, Purchaser shall promptly return to Seller
any statements, documents, schedules, exhibits or other written information
obtained from Seller in connection with this Agreement or the transaction
contemplated herein. It is understood and agreed that, with respect to any
provision of this Agreement which refers to the termination of this Agreement
and the return of the Deposit to Purchaser, such Deposit shall not be returned
to Purchaser unless and until Purchaser has fulfilled its obligation to return
to Seller the materials described in the preceding sentence. In the event of a
breach or threatened breach by Purchaser or its agents or representatives of
this Section 11.1, Seller shall be entitled to an injunction restraining
Purchaser or its agents or representatives from disclosing, in whole or in part,
such confidential information. Nothing herein shall be construed as prohibiting
Seller from pursuing any other available remedy at law or in equity for such
breach or threatened breach. The provisions of this Section 11.1 shall survive
Closing or any termination of this Agreement.
SECTION 11.2 Intentionally omitted.
SECTION 11.3 Assignment. (a) Subject to the provisions of this
Section 11.3, the terms and provisions of this Agreement are to apply to and
bind the permitted successors and assigns of the parties hereto. Purchaser may
not assign its rights under this Agreement without first obtaining Seller's
written approval, which approval may be given or withheld in Seller's sole
discretion, and any such attempted assignment without Seller's prior written
approval shall be null and void. In the event Purchaser intends to assign its
rights hereunder, (a) Purchaser shall send Seller written notice of its request
at least ten (10) business days prior to Closing, which request shall include
the legal name and structure of the proposed assignee, as well as any other
information that Seller may reasonably request, and (b) Purchaser and the
proposed assignee shall execute an assignment and assumption of this Agreement
in the form attached hereto as Exhibit R and made a part hereof, and (c) in no
event shall any assignment of this Agreement release or discharge Purchaser from
any liability or obligation hereunder. The provisions of this Section 11.3 shall
survive the Closing or any termination of this Agreement.
(b) Notwithstanding the foregoing, under no circumstances
shall Purchaser have the right to assign this Agreement to any person or entity
owned or controlled by an employee benefit plan if Seller's sale of the Property
to such person or entity would, in the reasonable opinion of Seller's ERISA
advisor, create or otherwise cause a "prohibited transaction" under ERISA.
(c) Except as set forth in this Section 11.3(b),
notwithstanding anything in this Section 11.3 to the contrary, however, and
provided that Purchaser is not in default of its duties or obligations under
this Agreement, Purchaser may, in its sole discretion (i) assign its interest
under this Agreement to an entity in which either Purchaser or Xxxxxxx
Properties, L.P. owns a majority of and otherwise controlling interest, without
Seller's consent, provided that in both such cases that
44
Purchaser and such entity comply with subclauses (a) and (b) of this Section
11.3. This Section 11.3 shall not be construed to restrict transfers of shares
in a publicly traded entity which do not change the management or control of
such entity, nor to restrict transfers of partnership units in Xxxxxxx
Properties, L.P. between or among existing partners or to trusts or similar
entities for estate planning purposes.
SECTION 11.4 Notices. Any notice pursuant to this Agreement
shall be given in writing by (a) personal delivery, (b) reputable overnight
delivery service with proof of delivery, (c) United States Mail, postage
prepaid, registered or certified mail, return receipt requested, or (d) legible
facsimile transmission, sent to the intended addressee at the address set forth
below, or to such other address or to the attention of such other person as the
addressee shall have designated by written notice sent in accordance herewith,
and shall be deemed to have been given upon receipt or refusal to accept
delivery, or, in the case of facsimile transmission, as of the date of the
facsimile transmission provided that an original of such facsimile is also sent
to the intended addressee by means described in clauses (a), (b) or (c) above.
Unless changed in accordance with the preceding sentence, the addresses for
notices given pursuant to this Agreement shall be as follows:
If to Seller Metropolitan Life Insurance Company
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Equity Investments
Telephone: 000.000.0000 Fax: 000.000.0000
With a copy to: Metropolitan Life Insurance Company
000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Associate General Counsel
Telephone: 000.000.0000 Fax: 000.000.0000
If to Purchaser: Xxxxxxx Properties, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone: 000.000.0000 Fax: 000.000.0000
with a copy to: Xxxx X. Xxxxxx, Esq.
Xxxxxxxxx & Xxxxxx Professional Corp.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Telephone: 000.000.0000 Fax: 000.000.0000
SECTION 11.5 Modifications. This Agreement cannot be changed
orally, and no executory agreement shall be effective to waive, change, modify
or discharge it in whole or in part
45
unless such executory agreement is in writing and is signed by the parties
against whom enforcement of any waiver, change, modification or discharge is
sought.
SECTION 11.6 Entire Agreement. This Agreement, including the
exhibits and schedules hereto, contains the entire agreement between the parties
hereto pertaining to the subject matter hereof and fully supersedes all prior
written or oral agreements and understandings between the parties pertaining to
such subject matter, other than any confidentiality agreement executed by
Purchaser in connection with the Property.
SECTION 11.7 Further Assurances. Each party agrees that it
will execute and deliver such other documents and take such other action,
whether prior or subsequent to Closing, as may be reasonably requested by the
other party to consummate the transaction contemplated by this Agreement. The
provisions of this Section 11.7 shall survive Closing.
SECTION 11.8 Counterparts. This Agreement may be executed in
counterparts, all such executed counterparts shall constitute the same
agreement, and the signature of any party to any counterpart shall be deemed a
signature to, and may be appended to, any other counterpart.
SECTION 11.9 Facsimile Signatures. In order to expedite the
transaction contemplated herein, telecopied signatures may be used in place of
original signatures on this Agreement. Seller and Purchaser intend to be bound
by the signatures on the telecopied document, are aware that the other party
will rely on the telecopied signatures, and hereby waive any defenses to the
enforcement of the terms of this Agreement based on the form of signature.
SECTION 11.10 Severability. If any provision of this Agreement
is determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Agreement shall nonetheless remain in full
force and effect; provided that the invalidity or unenforceability of such
provision does not materially adversely affect the benefits accruing to any
party hereunder.
SECTION 11.11 Applicable Law. This Agreement shall be governed
by and construed in accordance with the laws of the State in which the Property
is located. Purchaser and Seller agree that the provisions of this Section 11.11
shall survive the Closing or any termination of this Agreement.
SECTION 11.12 No Third-Party Beneficiary. The provisions of
this Agreement and of the documents to be executed and delivered at Closing are
and will be for the benefit of Seller and Purchaser only and are not for the
benefit of any third party, and accordingly, no third party shall have the right
to enforce the provisions of this Agreement or of the documents to be executed
and delivered at Closing.
SECTION 11.13 Captions. The section headings appearing in this
Agreement are for convenience of reference only and are not intended, to any
extent and for any purpose, to limit or define the text of any section or any
subsection hereof.
46
SECTION 11.14 Construction. The parties acknowledge that the
parties and their counsel have reviewed and revised this Agreement and that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement or any exhibits or amendments hereto.
SECTION 11.15 Recordation. This Agreement may not be recorded
by any party hereto without the prior written consent of the other party hereto.
The provisions of this Section 11.15 shall survive the Closing or any
termination of this Agreement.
SECTION 11.16 Seller Approval. Notwithstanding any other
provision of this Agreement, the obligation of Seller to consummate the
transaction contemplated herein shall be subject to the condition that the Field
Investments Committee and the Investments Committee of the Board of Directors of
Seller shall have approved the sale of the Property to Purchaser, pursuant to
the terms and conditions of this Agreement, on or prior to October 21, 2003 (the
"Committee Approval Date"). If Seller fails to give Purchaser notice within five
(5) business days after the Committee Approval Date that such committees have
approved the sale of the Property to Purchaser pursuant to the terms hereof,
then this Agreement shall terminate and neither party shall have any further
rights or obligations hereunder (except for any indemnity obligations of either
party pursuant to the other provisions of this Agreement), the Deposit, the Loan
Application Fee and the Loan Deposit shall be returned to Purchaser and each
party shall bear its own costs hereunder. It is understood and agreed that if
any required committee approval is not obtained, Seller shall have no obligation
to seek any further or higher level of approval. The terms of this Section 11.16
shall survive the termination of this Agreement.
SECTION 11.17 Audit Rights and Tenant Reconciliation
Statements. For a period of three (3) years after the Closing, Purchaser shall
allow Seller and its agents and representatives access without charge to (i) all
files, records, and documents delivered to Purchaser at the Closing, and (ii)
the financial records and financial statements for the Property (including but
not limited to, financial records and financial statements related to the
Reconciliation Statements, as such term is hereinafter defined) for the calendar
year in which the Closing occurs and for the calendar year preceding the
calendar year in which the Closing occurs, upon reasonable advance notice and at
all reasonable times, to examine and to make copies of any and all such files,
records, documents, and statements, which right shall survive the Closing.
Purchaser shall prepare and provide to the tenants under the Leases a statement
of the reconciliation of expenses between the landlord and the tenants under the
Leases in accordance with the terms of the Leases (the "Reconciliation
Statements"), and Purchaser shall provide Seller with copies of the
Reconciliation Statements at the same time that they are furnished to the
Tenants. If amounts are due from any Tenants based on the Reconciliation
Statements, Purchaser shall make a good faith effort after Closing to collect
the same in the usual course of Purchaser's operation of the Property, and upon
collection, to remit to Seller, Seller's share of those amounts in accordance
with the terms of Section 4.4 hereof; however, Purchaser shall not be obligated
to institute any lawsuit or other collection procedures to collect said amounts.
Seller may attempt to collect amounts due to it pursuant to the reconciliation
of expenses between the landlord and the tenants in accordance with the terms of
the Leases, and Seller may institute any lawsuit or collection procedures, but
Seller may not evict any tenant after Closing. The provisions of this Section
11.17 shall survive the Closing.
47
SECTION 11.18 1031 Exchange. Seller may structure the
disposition of the Property as a like kind exchange under Internal Revenue Code
Section 1031 (including a "reverse" exchange) at the Seller's sole cost and
expense. Purchaser shall reasonably cooperate therein, provided that Purchaser
shall incur no costs, expenses or liabilities in connection with the Seller's
exchange, and provided that no such exchange shall delay or otherwise be a
condition to the Closing. If the Seller uses a qualified intermediary and/or
accommodation title holder to effectuate an exchange, any assignment of the
rights or obligations of Seller hereunder shall not relieve, release or absolve
Seller of its obligations to the Purchaser. Other than documentation ancillary
to the exchange, Purchaser shall not be responsible for costs, expenses or
liabilities in connection with Seller's exchange, and Purchaser shall not be
required to take title to or contract for the purchase of any other property.
The provisions of this Section 11.18 shall survive the Closing.
SECTION 11.19 Computation of Periods. All periods of time
referred to in this Agreement shall, unless otherwise expressly provided,
include all Saturdays, Sundays and state and national holidays, provided that if
the last date to perform any act or give any notice with respect to this
Agreement shall fall on a Saturday, Sunday or a national holiday, such act or
notice may be timely performed or given on the next succeeding day which is not
a Saturday, Sunday or a national holiday. Saturdays, Sundays and national
holidays shall not be "business" days for purposes of this Agreement.
SECTION 11.20 Waiver. Any term, condition or provision of this
Agreement which is exclusively for the benefit of one party may unilaterally be
waived by the benefited party. Except where expressly provided herein that
silence or failure to respond is to be deemed an approval, election, waiver or
consent, no waiver of any term, condition or provision of this Agreement shall
be effective unless in writing. The waiver by either party of a breach of any
provision of this Agreement shall not be deemed a waiver of any subsequent
breach whether of the same or another provision of this Agreement.
SECTION 11.21 Attorneys' Fees. If legal action is commenced to
enforce or to declare the effect of any provision of this Agreement, or any
document executed in connection with this Agreement, the prevailing party shall
be entitled to recover from the non-prevailing party attorneys' fees and other
litigation costs. In addition to the foregoing award of attorneys; fees to the
prevailing party, the prevailing party in any lawsuit on this Agreement or any
document executed in connection with this Agreement shall be entitled to its
attorneys' fees incurred in any post judgment proceedings to collect or enforce
the judgment. This provision is separate and several and shall survive the
merger of this Agreement or any document executed in connection with this
Agreement into any judgment on this Agreement or any document executed in
connection with this Agreement. This provision shall survive termination of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date.
SELLER:
METROPOLITAN LIFE INSURANCE COMPANY
a New York corporation
By: /s/ XXXX XXXXX
-----------------------
Name:
----------------------
Title:
---------------------
PURCHASER:
XXXXXXX PROPERTIES, INC.,
a Maryland corporation
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
----------------------
Title: President and CO-CEO
---------------------
Escrow Agent executes this Agreement below solely for the purpose of
acknowledging that it agrees to be bound by the provisions of Sections 1.5 and
1.6 hereof.
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY,
a Missouri corporation
By:
------------------------
Name:
-----------------------
Title:
----------------------
49
LIST OF EXHIBITS
A DESCRIPTION OF LAND
B LIST OF PERSONAL PROPERTY
C LIST OF OPERATING AGREEMENTS
D LIST OF ENVIRONMENTAL REPORTS
E FORM OF TENANT ESTOPPEL CERTIFICATE
F MAJOR TENANTS
G FORM OF DEED
H FORM OF XXXX OF SALE
I FORM OF ASSIGNMENT OF LEASES
J FORM OF ASSIGNMENT OF CONTRACTS
K FORM OF TENANT NOTICE
L FORM OF FIRPTA CERTIFICATE
M INTENTIONALLY DELETED
N LIST OF BROKERAGE AGREEMENTS
O LIST OF SPECIFIED LITIGATION
P LIST OF VIOLATION NOTICES
Q RENT ROLL
R ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT
50
EXHIBIT A
DESCRIPTION OF LAND
TO BE PROVIDED WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THE EFFECTIVE DATE, IN A
FORM MUTUALLY AGREED UPON BY THE PARTIES.
51
EXHIBIT B
LIST OF PERSONAL PROPERTY
TO BE PROVIDED WITHIN THREE (3) BUSINESS DAYS FOLLOWING THE EFFECTIVE DATE, IN A
FORM MUTUALLY AGREED UPON BY THE PARTIES.
52
EXHIBIT C
LIST OF OPERATING AGREEMENTS
VENDOR NAME AGREEMENT DATE PURPOSE TERM
CANCELLATION
CLAUSE
TO BE PROVIDED WITHIN THREE (3) BUSINESS DAYS FOLLOWING THE EFFECTIVE DATE, IN A
FORM MUTUALLY AGREED UPON BY THE PARTIES.
53
EXHIBIT D
LIST OF ENVIRONMENTAL REPORTS
TO BE PROVIDED WITHIN THREE (3) BUSINESS DAYS FOLLOWING THE EFFECTIVE DATE, IN A
FORM MUTUALLY AGREED UPON BY THE PARTIES.
54
EXHIBIT E
TENANT ESTOPPEL FORM
_______________________________________________[Date]
[PURCHASER]
[SELLER]
Re: Lease dated ________________________, (the "Lease") executed between
_____________________("Landlord"), and_________________________________
("Tenant"), for those premises located at________________________________.
Gentlemen:
The undersigned Tenant understands that the above-referenced purchaser
intends to acquire fee title to that property located at ______ (the "Property")
from Metropolitan Life Insurance Company. The undersigned Tenant does hereby
certify to Metropolitan Life Insurance Company and the purchaser as follows:
A. Tenant has entered into a certain lease together with all amendments
(the "Lease") as described on Schedule 1 attached hereto.
B. The Lease is in full force and effect and has not been modified,
supplemented, or amended except as set forth on Schedule 1 attached hereto.
C. Tenant has not given Landlord written notice of any dispute between
Landlord and Tenant or that Tenant considers Landlord in default under the
Lease. Tenant is not in default under the Lease and no event has occurred which,
with the passage of time or notice, or both, would constitute a default by
Tenant under the Lease.
D. Tenant does not claim any offsets or credits against rents payable
under the Lease.
E. Tenant has not paid a security or other deposit with respect to the
Lease, except as follows: _____________.
F. Tenant has fully paid rent to and including the month of______________,
2___.
G. Tenant has not paid any rentals in advance except for the current month
of_____________________, 2____.
55
H. The Lease expires on ____________________________.
I. Tenant has no options, rights of first offer or rights of first refusal
to purchase the Property, except as follows:
J. Tenant is not a party to any brokerage agreement or other agreement,
and is not aware of any agreement, requiring landlord to pay any leasing
commissions, tenant improvement allowances or other payments to Tenant relating
to the Lease or the Premises.
K. Tenant has not subleased any portion of the Premises or assigned the
Lease, except as follows:____________________________________________. No other
person or entity is in possession of the Premises other than Tenant and its
employees, except for the foregoing sublessee or assignee, if any, and its
employees. _____________________________________
_____________________________________
This Certificate may be relied upon by Metropolitan Life Insurance
Company, any purchaser of the Property and any lender to any of the foregoing
and shall inure to the benefit of their respective successors and assigns.
TENANT:
_________________________________
a _______________________________
By: _____________________________
Name: ___________________________
Title: __________________________
56
EXHIBIT F
MAJOR TENANTS
1. Xxxxxxx Xxxx, et al.
2. Xxxxxx Xxxxx, et al.
3. Bank of the West
4. Xxxxxxx & XxXxxxxx
5. Bankers Trust
6. CIT Group
7. Bank of America
8. Hill, Xxxxxx & Xxxxxxx
9. Xxxxxxxx & Struggles
10. Lord, Bissel & Brook
57
EXHIBIT G
FORM OF DEED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
___________________________
___________________________
___________________________
The undersigned grantor declares:
Documentary transfer tax is shown by an unrecorded separate affidavit
pursuant to R & T Code Section 11932
(x) computed on full value of property conveyed, or
( ) computed on full value, less value of liens and encumbrances
remaining at time of sale
GRANT DEED OF IMPROVEMENTS AND ASSIGNMENT
OF LEASEHOLD AND REA
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation ("Grantor"), hereby
grants to XXXXXXX PROPERTIES, INC., a Maryland corporation ("Grantee"), all
buildings and improvements (the "Improvements") situated on that certain land
located in the City of Los Angeles, County of Los Angeles, State of California,
more particularly described in Schedule 1 attached hereto (the "Land"). The
Improvements are and shall remain real property.
Grantor further hereby conveys, transfers and assigns to Grantee all of
Grantor's right, title and interest in and to that certain Lease of Phase 1A
dated as of August 26, 1983, executed by The Community Redevelopment Agency of
the City of Los Angeles, a public body, corporate and politic established
pursuant to Chapter 2 of the Community Redevelopment Law of the State of
California (the "Agency"), as Landlord, and Bunker Hill Associates, as Tenant,
which was recorded in the Official Records of the County of Los Angeles, State
of California (the "Official Records") on August 26, 1983, as Instrument No.
83-991993, as amended by that certain First Amendment of Lease of Phase lA,
which was recorded in the Official Records on September 23, 1985 as Instrument
No. 00-0000000, that certain Second Amendment of Lease of Phase 1A dated
58
as of December 29, 1989, recorded February 13, 1990 in the Official Records as
Instrument No. 90-248146 and as modified by that certain Quitclaim Deed dated
July 8, 1986 executed by Grantor in favor of the Agency which was recorded in
the Official Records on July 9, 1986 as Instrument No. 86-862746, by that
certain Quitclaim Deed dated as of May, 1990 executed by Grantor in favor of
California Plaza Hotel L.P., a California limited partnership ("Hotel L.P.") and
the Agency, which was recorded in the Official Records on October 3, 1990 as
Instrument No. 00-0000000 and by that certain Grant of Easements (lA Fire Exit)
dated as of May, 1990 executed by Hotel L.P. and the Agency in favor of Grantor,
which was recorded in the Official Records on October 3, 1990 as Instrument No.
00-0000000 (as so amended and modified, the "Ground Lease"). Grantee hereby
agrees and accepts the assignment of Grantor's right, title and interest in and
to the Ground Lease (the "Leasehold") and hereby agrees, including for the
benefit of the Agency, to be bound as Tenant by all of the terms, covenants,
conditions, and obligations required to be kept, performed and fulfilled
thereunder and accept and agree to all of the covenants, conditions,
reservations and restrictions contained therein.
Grantor hereby further grants to Grantee all of Grantor's right, title
and interest in all easements, privileges and rights appurtenant to the
Leasehold and the Improvements and pertaining or held and enjoyed in connection
therewith, including without limitation that certain Construction, Operation and
Reciprocal Easement Agreement dated as of August 26, 1983 (the "REA") by and
between Bunker Hill Associates and the Agency, which was recorded in the
Official Records on August 26, 1983 as Instrument No. 83-991992 and all of
Grantor's right, title and interest in and to any land lying in the bed of any
street, alley, road or avenue to the centerline thereof in front of, or
adjoining the Land.
The foregoing grant and assignment is subject to the following:
(a) All liens, encumbrances, easements, covenants, conditions and
restrictions of record, including any matters shown on any subdivision or parcel
map affecting the Property;
(b) All exceptions appearing in a certain policy of title
insurance for the Property issued to the Grantee as of the date hereof;
(c) All matters which would be revealed or disclosed in an
accurate survey of the Property;
(d) All matters which would be revealed or disclosed by a physical
inspection of the Property;
(e) Interests of tenants in possession;
(f) A lien not yet delinquent for taxes for real property and
personal property, and any general or special assessments against the Property;
and
59
(g) Zoning ordinances and regulations and any other laws,
ordinances, or governmental regulations restricting or regulating the use,
occupancy or enjoyment of the Property.
Grantee hereby agrees, including for the benefit of the Agency, to
assume all obligations of the Grantor under the REA insofar as it relates to
Phase 1A for so long as Grantee owns the Leasehold.
Grantee herein covenants by and for itself and its successors and
assigns, and all persons claiming under or through them, as follows:
(i) That there shall be no discrimination against or
segregation of, any person or group of persons on account of race,
color, creed, sex, religion, marital status, national origin, or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure
or enjoyment of the property herein conveyed, nor shall Grantee itself
or any persons claiming under or through the Grantee, establish or
permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees, or vendees in the property
herein conveyed;
(ii) That all leases of any portion of the Land subject to
the Ground Lease shall contain substantially the following clause:
"The lessee herein covenants by and for himself, his heirs,
executors, administrators and assigns, and all persons
claiming under or through him, and this lease is made and
accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation
of any person or group of persons on account of sex, marital
status, race, color, religion, creed, national origin or
ancestry, in the leasing, subleasing, transferring, use, or
enjoyment of the land herein leased nor shall the lessee
himself, or any person claiming under or through him establish
or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number,
use or occupancy, of tenants, lessees, sublessees, subtenants
or vendees in the land herein leased."; and
(iii) THAT ALL CONTRACTS RELATING TO ANY PORTION OF THE
LAND SUBJECT TO THE GROUND LEASE SHALL CONTAIN SUBSTANTIALLY
THE FOLLOWING CLAUSE:
"That there shall be no discrimination against or segregation
of, any person, or group of persons on account of sex, marital
status, race, color, religion, creed, national origin or
ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land, nor shall the
transferee himself or any person claiming under or through
him, establish
60
or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees
or vendees of the land."
The foregoing covenants shall run with the Land.
THE PROVISIONS OF THIS GRANT DEED OF IMPROVEMENTS AND ASSIGNMENT OF LEASEHOLD
AND REA SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF GRANTOR AND GRANTEE
AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS.
IN WITNESS WHEREOF, the undersigned has executed this Grant Deed of Improvements
and Assignment of Leasehold and REA as of __________, 2003.
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: __________________________________
Title: _______________________________
61
SCHEDULE 1
LEGAL DESCRIPTION
TO BE PROVIDED
00
Xxxxx xx Xxxxxxxxxx
Xxxxxx xx Xxx Xxxxxxx
Xx ____________________, 2003 before me, ____________________, personally
appeared ___________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
63
EXHIBIT H
FORM OF XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that METROPOLITAN LIFE INSURANCE COMPANY, a New
York corporation (the "Seller"), for and in consideration of the sum of Ten
Dollars and other valuable consideration to it in hand paid by __________,
a _______ (the "Purchaser"), the receipt and sufficiency of which are hereby
acknowledged, hereby sells, assigns, transfers and conveys unto said Purchaser
any and all of Seller's right, title and interest in and to all tangible
personal property located upon the land described in that certain Sale Agreement
dated _______________, 2003 between Seller and Purchaser (the "Land") or within
the improvements located thereon, including, without limitation, any and all
appliances, furniture, carpeting, draperies and curtains, tools and supplies,
and other items of personal property owned by Seller (excluding cash and any
software), used exclusively in connection with the operation of the Land and
improvements, as is, where is, and without warranty of title or use, and without
warranty, express or implied, of merchantability or fitness for a particular
purpose.
TO HAVE AND TO HOLD all of said personal property unto Purchaser, its
successors and assigns, to its own use forever.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the
_______ day of ____________, 2____.
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
64
EXHIBIT I
FORM OF ASSIGNMENT OF LEASES
This ASSIGNMENT OF LEASES (the "Assignment") is made as of this
________ day of ______, 2____, between METROPOLITAN LIFE INSURANCE COMPANY, a
New York corporation, ("Assignor") and _______, a _______ ("Assignee").
For and in consideration of the sum of Ten Dollars ($10.00) and other
valuable consideration to it in hand paid by Assignee to Assignor, the
conveyance by Assignor to Assignee of all that certain real property being
particularly described on Schedule 1 attached hereto and incorporated herein by
this reference, more commonly known as ______ located in the City of _______,
County of _______, State of ________ (the "Property"), and the mutual covenants
herein contained, the receipt and sufficiency of the foregoing consideration
being hereby acknowledged by the parties hereto, Assignor hereby assigns,
transfers, sets over and conveys to Assignee all of Assignor's right, title and
interest in, to and under any and all existing and outstanding leases, licenses
and occupancy agreements (collectively, the "Leases"), of the improvements
comprising a part of the Property, including without limitation, all those
Leases described on Schedule 2 attached hereto and incorporated herein by this
reference, together with all security deposits tendered under the Leases
remaining in the possession of Assignor.
Assignee does hereby assume and agree to perform all of Assignor's
obligations under or with respect to the Leases accruing from and after the date
hereof, including without limitation, any and all obligations to pay leasing
commissions and finder's fees which are due or payable after the date hereof
with respect to the Leases, and claims made by tenants with respect to the
tenants' security deposits to the extent paid, credited or assigned to Assignee
by Assignor. Assignee agrees to indemnify, protect, defend and hold Assignor
harmless from and against any and all liabilities, losses, costs, damages and
expenses (including reasonable attorneys' fees) directly or indirectly arising
out of or related to any breach or default in Assignee's obligations hereunder.
Assignor shall remain liable for all of Assignor's obligations under or with
respect to the Leases accruing prior to the date hereof. Assignor agrees to
indemnify, protect, defend and hold Assignee harmless from and against any and
all liabilities, losses, costs, damages and expenses (including reasonable
attorneys' fees) directly or indirectly arising out of or related to any breach
or default in Assignor's obligations hereunder.
This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective heirs, executors, administrators,
successors and assigns.
This Assignment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
65
IN WITNESS WHEREOF, Assignor and Assignee have each executed this
Assignment as of the date first written above.
ASSIGNOR:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
ASSIGNEE:
a
By:
Name: _____________________________
Title: _____________________________
SCHEDULE "1"
66
LEGAL DESCRIPTION
SCHEDULE "2"
LEASES
[To be attached]
67
EXHIBIT J
FORM OF ASSIGNMENT OF CONTRACTS
This ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND INTANGIBLES (the
"Assignment") is made as of the _______ day of _______, 2_____, between
METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, ("Assignor") and
______, a _______ ("Assignee").
For and in consideration of the sum of Ten Dollars ($10.00) and other
valuable consideration to it in hand paid by Assignee to Assignor, the
conveyance by Assignor to Assignee of all that certain real property being
particularly described on Schedule 1 attached hereto and incorporated herein by
this reference, more commonly known as ______ located in the City of _______,
County of _______, State of _________________ (the "Property"), and the mutual
covenants herein contained, the receipt and sufficiency of the foregoing
consideration being hereby acknowledged by the parties hereto, Assignor hereby
assigns, transfers, sets over and conveys to Assignee all of Assignor's right,
title and interest, to the extent assignable, in, to and under any and all of
the following, to wit:
(i) the contracts and agreements listed and described on Schedule
2 attached hereto and incorporated herein by this reference
(the "Contracts"),
(ii) all existing warranties and guaranties (express or implied)
issued to Assignor in connection with the improvements or the
personal property being conveyed to Assignee by Xxxx of Sale
on the date hereof,
(iii) all existing permits, licenses, approvals and authorizations
issued by any governmental authority in connection with the
Property, and
(iv) the names "California Xxxxx Xxxxx 0X" and "One California
Plaza."
All items described in (ii), (iii) and (iv) above are hereinafter collectively
referred to as "Intangible Property."
Assignee does hereby assume and agree to perform all of Assignor's
obligations under the Contracts and Intangible Property accruing from and after
the date hereof. Assignee agrees to indemnify, protect, defend and hold Assignor
harmless from and against any and all liabilities, losses, costs, damages and
expenses (including reasonable attorneys' fees) directly or indirectly arising
out of or related to any breach or default in Assignee's obligations hereunder.
Assignor shall remain liable for all of Assignor's obligations under the
Contracts and Intangible Property accruing prior to the date hereof. Assignor
agrees to indemnify, protect, defend and hold Assignee harmless from and against
any and all liabilities, losses, costs, damages and expenses (including
reasonable attorneys' fees) directly or indirectly arising out of or related to
any breach or default in Assignor's obligations hereunder.
This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective heirs, executors, administrators,
successors and assigns.
68
This Assignment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
69
IN WITNESS WHEREOF, Assignor and Assignee have each executed this
Assignment as of the date first written above.
ASSIGNOR:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By:
Name: _____________________________
Title: _____________________________
ASSIGNEE:
a
By:
Name: _____________________________
Title: _____________________________
SCHEDULE "1"
70
LEGAL DESCRIPTION
SCHEDULE "2"
CONTRACTS
[To be attached]
71
EXHIBIT K
FORM OF TENANT NOTICE
TENANT NOTIFICATION LETTER
[DATE OF SALE CLOSING]
HAND DELIVERED
TO: ALL TENANTS AT [NAME AND ADDRESS OF PROPERTY]
RE: [NAME OF PROPERTY]
NOTIFICATION REGARDING CHANGE OF OWNERSHIP
This letter is to notify you as a Tenant at _______ (the "Property"), that the
Property has been sold by Metropolitan Life Insurance Company, a New York
corporation ("Seller"), to ______, a ______ ("Purchaser"). As of the date
hereof, your Lease has been assigned by Seller to Purchaser. From the date of
this letter, any and all unpaid rent as well as all future rent, or any other
amounts due under the terms of your Lease, shall be directed as follows:
TO:
ATTN:
AT:
As part of the sale, all refundable tenant deposits, if any, actually held by
Seller with respect to the Property have been transferred to, and Seller's
obligations with respect to such deposits have been assumed by, Purchaser as of
the date of this letter. Any and all payments of rent (or other sums due under
your Lease) hereafter paid to any party other than Purchaser shall not relieve
you of the obligation of making said payment to Purchaser.
SELLER: METROPOLITAN LIFE INSURANCE COMPANY,
A NEW YORK CORPORATION
BY: _______________________________
NAME:
TITLE:
PURCHASER:
A
BY: _______________________________
NAME:
TITLE:
72
EXHIBIT L
FORM OF FIRPTA CERTIFICATE
CERTIFICATE REGARDING FOREIGN INVESTMENT
IN REAL PROPERTY TAX ACT
(ENTITY TRANSFEROR)
Section 1445 of the Internal Revenue Code provides that a transferee
(purchaser) of a U.S. real property interest must withhold tax if the transferor
(seller) is a foreign person. To inform the transferee (purchaser) that
withholding of tax is not required upon the disposition of a U.S. real property
interest by METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
("Transferor") Transferor hereby certifies:
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's Federal Employer Identification Number is
00-0000000.
3. Transferor's office address is:
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000; and
4. The address or description of the property which is the
subject matter of the disposition is 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000.
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.
Transferor declares that it has examined this certification and to the
best of its knowledge and belief, it is true, correct and complete, and further
declares that the individual executing this certification on behalf of
Transferor has full authority to do so.
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
Dated: _____________________________
73
EXHIBIT M
INTENTIONALLY DELETED
74
EXHIBIT N
LIST OF BROKERAGE AGREEMENTS
TO BE PROVIDED WITHIN THREE (3) BUSINESS DAYS FOLLOWING THE EFFECTIVE DATE, IN A
FORM MUTUALLY AGREED UPON BY THE PARTIES.
75
EXHIBIT O
LIST OF SPECIFIED LITIGATION
TO BE PROVIDED WITHIN THREE (3) BUSINESS DAYS FOLLOWING THE EFFECTIVE DATE, IN A
FORM MUTUALLY AGREED UPON BY THE PARTIES.
76
EXHIBIT P
LIST OF VIOLATION NOTICES
TO BE PROVIDED WITHIN THREE (3) BUSINESS DAYS FOLLOWING THE EFFECTIVE DATE, IN A
FORM MUTUALLY AGREED UPON BY THE PARTIES.
77
EXHIBIT Q
RENT ROLL
TO BE PROVIDED WITHIN THREE (3) BUSINESS DAYS FOLLOWING THE EFFECTIVE DATE, IN A
FORM MUTUALLY AGREED UPON BY THE PARTIES.
78
EXHIBIT R
ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT
This Assignment and Assumption of Purchase and Sale Agreement (the
"Assignment") is made as of __________________, 2003 by and among Metropolitan
Life Insurance Company, a New York corporation ("Seller"), ____________________
("Assignor") and ______________ ("Assignee") with reference to the following
facts:
A. Seller and Assignor entered into that certain Purchase and Sale
Agreement dated ______________, 2003 (the "Purchase and Sale Agreement").
Pursuant to the terms and conditions of the Purchase and Sale Agreement, Seller
agreed to sell certain real property described therein (the "Property").
B. Assignor now desires to assign the Purchase and Sale Agreement to
Assignee and Assignee has agreed to assume all of Assignor's obligations under
the Purchase and Sale Agreement, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing facts:
1. Assignor hereby assigns, transfers and conveys to Assignee
all of Assignor's right, title and interest in and to the Purchase and Sale
Agreement. Notwithstanding the foregoing, this Assignment shall not release or
discharge Assignor from any liability, whether past, present or future, under
the Purchase and Sale Agreement.
2. Assignee hereby agrees to and accepts such rights under the
Purchase and Sale Agreement and expressly assumes and agrees to keep, perform
and fulfill all of the terms, covenants, obligations and conditions required to
be kept, performed and fulfilled by Assignor under or with respect to the
Purchase and Sale Agreement. Assignee also acknowledges and agrees that it has
read the Purchase and Sale Agreement and that it has had an adequate opportunity
to inspect the Property and review the status of title and other matters
affecting the Property.
3. Subject to the express terms and conditions set forth
herein, Seller does not object to the assignment of the Purchase and Sale
Agreement as set forth herein.
4. Assignor and Assignee respectively acknowledge, agree and
understand that the Property is being sold as is and with no representations or
warranties, except as expressly set forth in the Purchase and Sale Agreement,
and that a conveyance of the Property by Seller shall be deemed an
acknowledgement by Assignor and Assignee that all conditions precedent to the
Closing have been waived and/or satisfied.
5. BY THE UNDERSIGNED SEPARATELY EXECUTING THIS SECTION 5
BELOW, ASSIGNEE ACKNOWLEDGES THAT ASSIGNEE HAS READ AND UNDERSTOOD THE PROVISION
COVERING LIQUIDATED DAMAGES SET FORTH IN
79
SECTION ___ OF THE PURCHASE AND SALE AGREEMENT, AND THAT ASSIGNEE WAS
REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES
PROVISION AT THE TIME THIS ASSIGNMENT WAS EXECUTED.
6. To the extent permitted by law, Assignor and Assignee
jointly and severally agree to protect, indemnify, defend and hold harmless
Seller from and against any and all liability, loss, cost, damage and expense
(including reasonable attorneys' fees and costs) directly or indirectly arising
out of or related to the assignment of the Purchase and Sale Agreement by
Assignor to Assignee.
7. By execution of this Assignment, Assignee shall be deemed
to have made all of the representations and warranties made by Assignor pursuant
to Section ___ of the Purchase and Sale Agreement, except that Assignee hereby
represents that it has been duly organized and is validly existing under the
laws of the State of California.
8. This Assignment shall not be modified or amended except by
a writing signed by all parties. Except as modified by this Assignment, the
Purchase and Sale Agreement shall be and remain in full force and effect. All
capitalized words not expressly defined in this Assignment shall have the
definitions set forth in the Purchase and Sale Agreement. This Assignment may be
executed simultaneously or in any number of counterparts, each of which shall be
deemed an original as to the party whose signature it bears, but all of which
together shall constitute one and the same agreement. The provisions of this
Assignment shall survive the Closing.
9. In order to expedite the transaction contemplated herein,
telecopied signatures may be used in place of original signatures on this
Assignment. Seller, Assignor and Assignee intend to be bound by the signatures
on the telecopied document, are aware that the other party will rely on the
telecopied signatures, and hereby waive any defenses to the enforcement of the
terms of this Assignment based on the form of signature.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as
of the date first set forth above.
METROPOLITAN LIFE INSURANCE COMPANY
a New York corporation
By: ______________________________
Title: ___________________________
________________________
________________________
________________________
________________________
80
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
Reference is made to that certain Purchase and Sale Agreement dated as
of September 5, 2003, by and between Metropolitan Life Insurance Company, a New
York corporation ("Seller") and Xxxxxxx Properties, Inc., a Maryland
corporation, as assigned to Xxxxxxx Properties - One Cal Plaza, LLC, a Delaware
limited liability company ("Purchaser"), (the "Agreement") with respect to
certain property known as Xxx Xxxxxxxxxx Xxxxx and located at 000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto desire to amend the Agreement
as follows:
1. Seller and Purchaser agree that the Closing shall be scheduled
to occur on November 4, 2003, notwithstanding any contrary
provision of the Agreement.
Except as hereby amended, the Agreement remains in full force and
effect.
This Amendment may be executed in several counterparts, each of which
shall be deemed to be an original and such counterparts together shall
constitute one and the same instrument.
"PURCHASER":
XXXXXXX PROPERTIES - ONE CAL PLAZA, LLC,
a Delaware limited liability company
By: XXXXXXX PROPERTIES, L.P.,
a Maryland limited partnership
By: XXXXXXX PROPERTIES, INC.
a Maryland corporation
its General Partner
By: /s/ XXXX LAMMAS
-------------------------
Name: Xxxx Lammas
Title: Senior Vice President
"SELLER":
METROPOLITAN LIFE INSURANCE COMPANY
a New York corporation
By: /s/ XXXX XXXXX
----------------------------------
Title: Director
-------------------------------
Name: Xxxx Xxxxx
--------------------------------
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
Reference is made to that certain Purchase and Sale Agreement dated as
of September 5, 2003, by and between Metropolitan Life Insurance Company, a New
York corporation ("Seller") and Xxxxxxx Properties, Inc., a Maryland
corporation, as assigned to Xxxxxxx Properties - One Cal Plaza, LLC, a Delaware
limited liability company ("Purchaser"), as amended, (collectively, the
"Agreement") with respect to certain property known as Xxx Xxxxxxxxxx Xxxxx and
located at 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx.
RECITALS
A. Purchaser has requested that Seller provide to Purchaser's
accountants, KPMG, LLP, a management representation letter dated 11/05/03 with
respect to certain accounting records of Seller's in connection with the sale
and purchase of the Property ("Management Representation Letter"). Seller has
agreed to provide the Management Representation Letter, in consideration of,
among other things, certain modifications to the Agreement, all as set forth
hereinbelow.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto desire to amend the Agreement
as follows:
1. Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms in the Agreement.
2. With respect to Section 5.3 of the Agreement, any and all
amounts paid by Seller in connection with any claims relating to or arising out
of the Management Representation Letter which are not paid to Seller by the
indemnitors under that certain Indemnity Agreement between Seller and Xxxxxxx
Properties, L.P., Xxxxxxx Properties, Inc and Purchaser of even date herewith,
shall reduce the Cap, on a dollar-for-dollar basis, even though such amounts may
be paid or payable to third parties, and not to Purchaser. The sole purpose of
this amended provision is provide for a reduction in the dollar amount of
liability of Seller under the Agreement if the indemnitors under the Indemnity
Agreement fail to indemnify Seller, and shall not be construed as making any
provision of the Management Representation Letter a representation or warranty
under the Agreement. Nothing herein shall give Purchaser any rights under the
provisions of, and Purchaser acknowledges it has no rights under, such
Management Representation Letter, and Purchaser shall not rely on any of the
statements or provisions set forth in the Management Representation Letter
(without limiting Purchaser's right to rely on the fact of KPMG's permitted use
of the Management Representation Letter).
3. This Amendment may be executed in several counterparts, each
of which shall be deemed to be an original and such counterparts together shall
constitute one and the same instrument. This Amendment shall be construed under
the laws of the State of California.
"PURCHASER":
XXXXXXX PROPERTIES - ONE CAL PLAZA, LLC,
a Delaware limited liability company
By: XXXXXXX PROPERTIES, L.P.,
a Maryland limited partnership
By: XXXXXXX PROPERTIES, INC.
a Maryland corporation
its General Partner
By: /s/ XXXXXXX X. XXXXXXXXX
----------------------------------
Name: XXXXXXX X. XXXXXXXXX
Title: CO-CEO & PRESIDENT
"SELLER":
METROPOLITAN LIFE INSURANCE COMPANY
A New York corporation
By:
-------------------------------------
Title:
----------------------------------
Name:
-----------------------------------
"PURCHASER":
XXXXXXX PROPERTIES - ONE CAL PLAZA, LLC,
a Delaware limited liability company
By: XXXXXXX PROPERTIES, L.P.,
a Maryland limited partnership
By: XXXXXXX PROPERTIES, INC.
a Maryland corporation
its General Partner
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
"SELLER":
METROPOLITAN LIFE INSURANCE COMPANY
a New York corporation
By: /s/ XXXX XXXXX
------------------------------------
Title:
----------------------------------
Name:
-----------------------------------
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
Reference is made to that certain Purchase and Sale Agreement dated as
of September 5, 2003, by and between Metropolitan Life Insurance Company, a New
York corporation ("Seller") and Xxxxxxx Properties, Inc., a Maryland
corporation, as assigned to Xxxxxxx Properties - One Cal Plaza, LLC, a Delaware
limited liability company ("Purchaser"), as previously amended (the "Agreement")
with respect to certain property known as Xxx Xxxxxxxxxx Xxxxx and located at
000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto desire to amend the Agreement
as follows:
1. Seller and Purchaser agree that the Closing shall be scheduled
to occur on November 6, 2003, notwithstanding any contrary
provision of the Agreement.
Except as hereby amended, the Agreement remains in full force and
effect.
This Amendment may be executed in several counterparts, each of which
shall be deemed to be an original and such counterparts together shall
constitute one and the same instrument.
[Signatures on following page]
In Witness Whereof, the parties have executed this Amendment on
November 4, 2003.
"PURCHASER":
XXXXXXX PROPERTIES - ONE CAL PLAZA, LLC,
a Delaware limited liability company
By: XXXXXXX PROPERTIES, L.P.,
a Maryland limited partnership
By: XXXXXXX PROPERTIES, INC.
a Maryland corporation
its General Partner
By: /s/ XXXXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------
Title: CO-CEO and President
----------------------
"SELLER":
METROPOLITAN LIFE INSURANCE COMPANY
a New York corporation
By: /s/ XXXX XXXXX
----------------------------------
Title:
--------------------------------
Name:
--------------------------------
