AGREEMENT OF PURCHASE AND SALE
AND
JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW
INSTRUCTIONS (this "Agreement") is made and entered into as of
this 10th day of October, 1997, by and between PDG RANCHO
XXXXXXXX, LTD., a California limited partnership ("Seller"), and
ARDEN REALTY LIMITED PARTNERSHIP, a Maryland limited partnership
("Buyer"), with reference to the following facts:
A. Seller is the owner of the Property (as hereinafter
defined).
B. Buyer desires to purchase from Seller, and Seller
desires to sell to Buyer, the Property (as hereinafter defined),
on the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the foregoing and the
mutual covenants and agreements herein set forth, and other
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller and Buyer hereby agree as follows:
ARTICLE 1
PROPERTY
Seller hereby agrees to sell and convey to Buyer, and Buyer
hereby agrees to purchase from Seller, subject to the terms and
conditions set forth herein, the following:
1.1 Land. That certain land (the "Land") located at
00000 Xxxx Xxxxxxxx Xxxxx, in the City of San Diego, State of
California commonly known as Xxxxxxxx Regency Centre and more
particularly described on Exhibit A hereto;
1.2 Appurtenances. All rights, privileges and
easements appurtenant to the Land including, without limitation,
all minerals, oil, gas and other hydrocarbon substances on and
under the Land, as well as all development rights and air rights
relating to the Land, and all water, water rights and water stock
relating to the Land, and any and all easements, rights-of-way or
appurtenances used in connection with the beneficial use and
enjoyment of the Land (all of which are sometimes collectively
referred to as the "Appurtenances");
1.3 Improvements. All improvements and fixtures
located upon the Land, including, without limitation, an
approximately 47,916 net rentable square foot three (3) story
office building, and all other structures presently located on
the Land, all fixtures, apparatus, equipment, and appliances used
in connection with the operation or occupancy thereof (all of
which are collectively referred to as the "Improvements");
1.4 Leases. All interest of Seller, as landlord, in
and to the leases of space in the Improvements described on
Exhibit B hereto (collectively, the "Leases");
1.5 Personal Property. All personal property of
Seller, if any, located on or in or used in connection with the
operation, maintenance or management of the Land and/or the
Improvements (collectively, the "Personal Property");
1.6 Service Contracts. Those service contracts and
other agreements, lease rights, warranties, guarantees,
agreements, utility contracts and other rights relating to the
ownership, use and operation of all or any part of the Property,
elected to be assumed by Buyer pursuant to Section hereof
(collectively, the "Service Contracts"); and
1.7 Intangible Property. All right, title and
interest of Seller in and to any and all intangible property
owned by Seller and used in the ownership, use and/or operation
of the Land or the Improvements, including, without limitation,
the right to use any trade name now used in connection with the
Land or the Improvements, the books and records relating to the
Property, including computer discs, tapes and other data bases or
software, inventory records, building management records, payroll
records and all other books and records and all other books and
records relating to the operation and management of the Real
Property (collectively, the "Intangible Property").
The Land, the Appurtenances, the Improvements and the Leases
are sometimes referred to herein collectively as the "Real
Property." The Real Property, Personal Property, Service
Contracts and the Intangible Property are sometimes referred to
herein collectively as the "Property."
ARTICLE 2
PURCHASE PRICE
2.1 Purchase Price. The total purchase price for the
Property shall be the sum of Six Million Five Hundred Thousand
and No/100 Dollars ($6,500,000.00) (the "Purchase Price").
2.2 Payment of Purchase Price. The Purchase Price shall
be paid as follows:
(a) Deposit. Concurrently upon the execution of this
Agreement, Buyer shall deliver to Chicago Title Insurance Company
("Escrow Holder"), 000 "X" Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx the sum
of One Hundred Thousand and No/100 Dollars ($100,000.00) (the
"Deposit"). In the event the sale of the Property is
consummated, the Deposit shall be credited towards the Purchase
Price.
(b) Balance of Purchase Price. The Purchase Price,
less the sum of the Deposit (the "Purchase Price Balance") shall
be deposited with Escrow Holder by Buyer in immediately available
funds not later than the Closing Date (as hereinafter defined).
In the event the sale of the Property is consummated, such
amounts to be paid as set forth herein shall be credited towards
the Purchase Price. In the event the sale of the Property is not
consummated because of the failure of any condition or the
default by Seller, all such amounts, together with interest
thereon, shall be returned immediately to Buyer.
2.3 Investment of Deposit; Liquidated Damages
2.3.1 Investment of Deposit. The Deposit shall
be placed in an interest-bearing account or other investment with
a financial institution reasonably acceptable to Buyer, with all
interest accruing to the benefit of Buyer. Upon the expiration
of the Contingency Period, the Deposit shall become non-
refundable, subject to Buyer's rights under Section 5.4 hereof,
and subject to Seller's compliance with the terms hereof. The
Deposit shall be disposed of by Escrow Holder only as provided in
this Agreement.
2.3.2 Liquidated Damages. IN THE EVENT THAT,
FOLLOWING THE EXPIRATION OF THE CONTINGENCY PERIOD, THE
TRANSACTIONS CONTEMPLATED HEREBY ARE NOT CONSUMMATED DUE TO A
DEFAULT SOLELY ON THE PART OF BUYER, THE AMOUNT OF THE DEPOSIT
SHALL BE PAID TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES AS
SELLER'S SOLE AND EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT
SELLER'S ACTUAL DAMAGES IN THE EVENT THE TRANSACTIONS
CONTEMPLATED HEREBY ARE NOT CONSUMMATED FOLLOWING THE EXPIRATION
OF THE CONTINGENCY PERIOD DUE TO A DEFAULT SOLELY ON THE PART OF
BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE.
THEREFORE, BY PLACING THEIR SIGNATURES BELOW, THE PARTIES
ACKNOWLEDGE THAT THE AMOUNT OF THE DEPOSIT HAS BEEN AGREED UPON,
AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF
SELLER'S DAMAGES.
Seller: /s/ WPT Buyer: /s/ VJC
ARTICLE 3
ESCROW
3.1 Deposit with Escrow Holder and Escrow Instructions.
Within two (2) business days following the execution of this
Agreement by the parties hereto, the parties hereto shall deposit
a fully executed original of this Agreement with Escrow Holder,
and this Agreement shall serve as the instructions to Escrow
Holder for consummation of the transactions contemplated hereby.
Seller and Buyer agree to execute such additional and
supplementary escrow instructions as may be appropriate to enable
Escrow Holder to comply with the terms of this Agreement;
provided, however, that in the event of any conflict between the
terms and provisions of this Agreement and the terms and
provisions of any supplementary escrow instructions, the terms
and provisions of this Agreement shall control.
3.2 Confirmation of the Opening of Escrow. Upon
receipt of a fully executed copy of this Agreement, Escrow Holder
shall immediately execute this Agreement to evidence Escrow
Holder's agreement to act in compliance with the terms and
provisions hereof. Escrow Holder shall immediately notify Buyer
in Seller in writing of the date on which escrow was established
with Escrow Holder (the "Opening of Escrow"), which date shall
thereafter be the Opening of Escrow date for purposes of this
Agreement.
ARTICLE 4
TITLE TO PROPERTY
4.1 Real Property. At the Closing, Seller shall
convey to Buyer marketable and insurable fee simple title to the
Real Property by duly executed and acknowledged grant deed in the
form of Exhibit C hereto (the "Grant Deed"). Evidence of
delivery of marketable and insurable fee simple title to the Real
Property shall be the issuance by Chicago Title Insurance Company
(the "Title Company") of an ALTA Owner's Policy of Title
Insurance (extended coverage) (form B, rev. 10-17-70) (the "Title
Policy") in the amount of the Purchase Price, insuring fee simple
title to the Real Property in Buyer, free and clear of monetary
liens and subject only to the Permitted Exceptions (as
hereinafter defined) and including the Endorsements (as
hereinafter defined).
4.2 Leases. At the Closing, Seller shall transfer all
of its right, title and interest in and to the Leases by an
Assignment of Leases in the form of Exhibit D hereto (the
"Assignment of Leases"), free and clear of any liens,
encumbrances or interests of third parties.
4.3 Personal Property. At the Closing, Seller shall
transfer title to the Personal Property, if any, by a xxxx of
sale in the form of Exhibit E hereto (the "Xxxx of Sale"), free
and clear of any liens, encumbrances or interests of third
parties.
4.4 Service Contracts. At the Closing, Seller shall
transfer all of its right, title and interest in and to the
Service Contracts, if any, by an Assignment of Service Contracts,
Warranties and Guarantees in the form of Exhibit F hereto (the
"Assignment of Service Contracts"), free and clear of any liens,
encumbrances or interest of third parties.
4.5 Intangible Property. At the Closing, Seller shall
transfer all of its right, title and interest in and to all
Intangible Property, if any, by an Assignment of Intangible
Property in the form of Exhibit G hereto (the "Assignment of
Intangible Property"), free and clear of any liens, encumbrances
or interests of third parties.
ARTICLE 5
BUYER'S CONDITIONS TO CLOSING
The following conditions are conditions precedent to Buyer's
obligation to purchase the Property:
5.1 Review and Approval of Title. Seller has
delivered to Buyer all of the following:
5.1.1 a current extended coverage preliminary
title report (the "Preliminary Title Report") with respect to the
Property issued by the Title Company, accompanied by copies of
all documents referenced in such report;
5.1.2 an ALTA survey of the Real Property
prepared by a licensed surveyor reasonably acceptable to Buyer
(the "Survey"). The Survey shall be in sufficient detail to
provide the basis for an ALTA owner's policy of title insurance
without boundary, encroachment or survey exceptions, and shall
show the location of all easements and improvements, and any and
all other pertinent information with respect to the Real
Property; and
5.1.3 copies of all existing and proposed
easements, covenants, restrictions, agreements or other documents
which affect the Real Property, including, without limitation,
any and all documents relating to any variance, conditional use
permits or land-use restrictions relating to or affecting the
Real Property, or if no such documents exist, a certification of
Seller to that effect.
Title to the Property shall be subject only to such exceptions in
the Preliminary Title Report as Buyer shall approve, in Buyer's
sole and absolute discretion (collectively, the "Permitted
Exceptions"). Buyer shall have until October 16, 1997, (the
"Contingency Period"), in which to notify Seller, in writing, as
to those items which are Permitted Exceptions, those matters
which Buyer disapproves, and which endorsements Buyer will be
requiring (collectively, the "Endorsements"). Buyer's failure to
provide such written notice to Seller shall constitute approval
of all matters shown in the Preliminary Title Report and Survey.
If Buyer disapproves of any matter disclosed in the Preliminary
Title Report or Survey as herein provided, Seller shall have ten
(10) business days after Seller receives written notice of such
disapproval to elect to cure any such matter by delivering
written notice of such election to Buyer. Seller's failure to
give such notice to Buyer within the ten (10) day period set
forth herein shall constitute Seller's election not to cure the
matters disapproved by Buyer. If Seller elects not to cure any
such matter, Buyer may either, at Buyer's sole election, (i)
proceed with the purchase of the Property, in which event Buyer
shall be deemed to have approved such matters which were
previously disapproved, or (ii) terminate this Agreement, in
which event this Agreement shall terminate, the Deposit, together
with any interest earned thereon, shall be returned to Buyer, and
the parties hereto shall be relieved of all further rights and
obligations hereunder.
5.2 Delivery of Reports and Documents. Seller has
delivered to Buyer, copies of any and all of the following
documents in Seller's possession or control:
(a) a rent roll of the Property for the current month;
(b) evidence that the Property complies with the
Subdivision Map Act;
(c) copies of the Leases, and all licenses, service
contracts (including parking, elevator, HVAC and landscaping
maintenance contracts), management contracts, brokerage
agreements, permits, variances, insurance policies, maps,
certificates of occupancy, building permits and other
documentation and evidence that the construction, present use,
occupancy and operation of the Property is authorized by and is
in compliance with all governmental regulations;
(d) warranties and instruction books (e.g., for
vertical transportation, HVAC and other building systems);
operating statements for calendar years 1995 and 1996, and 1997
monthly statements to date;
(e) all available plans, structural drawings,
architectural and "as built" drawings, including, but not limited
to, mechanical, electrical, air conditioning, landscape and
sprinkler drawings and specifications regarding the improvements,
and any soils, structural, geological, environmental, hazardous
materials and asbestos studies or reports relating to subsurface
conditions, grading plans, topographical maps and similar data
respecting the Property;
(f) copies of property tax bills for the last two (2)
years and copies of the most recently available utility bills and
similar records respecting the Property;
(g) a list of all personal property owned by or leased
by Seller and used in connection with the ownership or operation
of the Property;
(h) a certificate of Seller certifying to Seller's
best knowledge that there is no legal or administrative action,
proceeding, claim, arbitration or suit pending before any court,
agency or official, nor any such claim or action threatened in
writing, relating to the Seller, the Property or with respect to
the validity of any statutes, ordinances, regulations or
restrictions or any permits or approvals thereunder relating to
the Property, nor any outstanding contingent liabilities
affecting the Property; and
(i) any and all other reports, plans or studies
relating to the Property
(collectively, the "Reports and Documents"). The Reports and
Documents are listed on that certain letter dated September 16,
1997, attached hereto as Exhibit L, and Buyer acknowledges
receipt of copies of the Reports and Documents listed thereon.
Buyer shall have until the expiration of the Contingency Period
in which to review the Reports and Documents heretofore delivered
and approve or disapprove any of the foregoing, in Buyer's sole
and absolute discretion. In the event Buyer disapproves any of
the Reports and Documents, Buyer shall deliver Seller written
notice of Buyer's disapproval prior to the expiration of the
Contingency Period, in which event this Agreement shall
terminate, the Deposit, together with any interest thereon, shall
be returned to Buyer, and the parties hereto shall be relieved of
all further rights and obligations hereunder. In the event Buyer
fails to deliver said written notice to Seller prior to the
expiration of the Contingency Period, Buyer shall be deemed to
have disapproved the Reports and Documents. Buyer agrees to
return the Reports and Documents to Seller in the event for any
reason this Agreement is terminated and the transactions
contemplated herein are not consummated.
5.3 Buyer's Independent Review. Buyer shall have the
right, during the Contingency Period, to conduct such further
inspections and/or tests of the Property as Buyer deems necessary
and/or desirable, to enable Buyer to satisfy itself as to all
matters relating to the Property, including, without limitation,
a Phase 1 environmental assessment of the Property, asbestos-
containing-materials studies, Americans with Disabilities Act
compliance studies, soils testing, engineering studies, zoning
and intended use reviews, the physical, structural, mechanical
condition of the Property, seismic studies, and other surveys and
studies of the Property (collectively, "Buyer's Inspections and
Reports"). Buyer's right to conduct Buyer's Inspections and
Reports shall be subject to and conducted in accordance with
Buyer's right of access to the Property as set forth in Section
hereof. In the event that, based upon Buyer's independent review
of the Property, Buyer determines, in Buyer's sole and absolute
discretion, that Buyer is unwilling to proceed with the purchase
of the Property, Buyer may elect to terminate the Agreement by so
notifying Seller in writing of Buyer's election prior to the
expiration of the Contingency Period, and this Agreement shall
terminate, the Deposit, together with any interest earned
thereon, shall be returned to Buyer, and the parties hereto shall
be relieved of all further rights and obligations hereunder. In
the event Buyer fails to deliver said written notice to Seller
prior to the expiration of the Contingency Period, Buyer shall be
deemed to have disapproved Buyer's Inspections and Reports.
5.4 Estoppel Certificates. Buyer shall receive, no
later than October 31, 1997, an estoppel certificate from (i)
each tenant occupying not less than 2,500 net rentable square
feet, and (ii) a sufficient number of other tenants at the
Property such that estoppel certificates shall have been received
pursuant to clauses (i) and (ii) hereof with respect to not less
than eighty-five percent (85%) of the aggregate net rentable
square feet of the Property covered by Leases in effect on the
Closing Date, in the form of Exhibit H hereto and in substance
satisfactory to Buyer, in Buyer's sole and absolute discretion
(collectively, the "Estoppel Certificates"). Buyer shall have
until November 7, 1997 in which to review and approve or
disapprove the Estoppel Certificates. Buyer's failure to
disapprove the Estoppel Certificates shall be deemed Buyer's
approval of the Estoppel Certificates. Upon Buyer's approval of
the Estoppel Certificates, the Closing shall proceed in
accordance with Article 7 hereof. In the event Buyer disapproves
of any Estoppel Certificates, Buyer shall notify Seller of the
basis for such disapproval. Seller shall then have five (5) days
following receipt of Buyer's disapproval to cure the matters
disapproved by Buyer to Buyer's satisfaction. In the event
Seller so cures the matters disapproved by Buyer, theClosing
shall proceed in accordance with Article 7 hereof. If Seller
elects not to cure, or is unable to cure the matters disapproved
by Buyer, then Buyer shall have five (5) days in which to elect
to waive the condition in question and proceed with the
transactions contemplated hereby, or in the alternative, to
terminate this Agreement, in which event this Agreement shall
Terminate, the Deposit, together with any interest earned
thereon, shall be returned to Buyer, and the parties hereto shall
be relieved of all further rights and obligations hereunder.
5.5 Representations and Warranties of Seller. All of
Seller's representations and warranties contained in or made
pursuant to this Agreement shall have been true and correct when
made and shall be true and correct as of the Closing Date.
5.6 Covenants of Seller. Seller shall have complied
with all of Seller's covenants and agreements contained in or
made pursuant to this Agreement.
5.7 Delivery of Documents. Seller shall have
delivered into Escrow the documents and instruments described in
Section hereof and shall have delivered to Buyer the documents
and instruments described in Section hereof.
5.8 Condition of Property. The condition of the
Property shall not have materially changed from the date of this
Agreement to the Closing Date, ordinary wear and tear excepted.
5.9 Conditions for the Benefit of Buyer. The
foregoing conditions are for the sole benefit of Buyer. If any
of the foregoing conditions described in this Article 5 is not
satisfied for any reason whatsoever, Buyer shall have the right
at its sole election either to waive such condition and proceed
with the transactions contemplated hereby, or, in the
alternative, to terminate this Agreement, in which event Buyer
shall be entitled to a return of the Deposit, together with all
interest earned thereon, and Seller and Buyer shall be released
from further obligation or liability hereunder (except for those
obligations and liabilities which, pursuant to the terms of this
Agreement, survive such termination).
ARTICLE 6
SELLER'S CONDITIONS TO CLOSING
The following conditions are conditions precedent to
Seller's obligation to sell the Property:
6.1 Representations and Warranties of Buyer. All of
Buyer's representations and warranties contained in or made
pursuant to this Agreement shall have been true and correct when
made and shall be true and correct as of the Closing Date.
6.2 Covenants of Buyer. Buyer shall have complied
with all of Buyer's covenants and agreements contained in or made
pursuant to this Agreement.
6.3 Delivery of Documents and Funds. Buyer shall have
delivered into Escrow the documents, instruments and funds
described in Section hereof.
6.4 Conditions for the Benefit of Seller. The
foregoing conditions are for the sole benefit of Seller. If any
of the foregoing conditions described in this Article 6 is not
satisfied for any reason whatsoever, Seller shall have the right
at its sole election either to waive such condition and proceed
with the transactions contemplated hereby, or, in the
alternative, to terminate this Agreement, and (in the event Buyer
is in default hereunder by reason of such failure of condition)
retain the Deposit as liquidated damages pursuant to Section
2.3.2 hereof.
ARTICLE 7
CLOSING
7.1 Closing. The closing hereunder (the "Closing") shall
mean the recording of the Grant Deed conveying title to the
Property from Seller to Buyer and shall be held and delivery of
all items to be made at the Closing shall be made at the offices
of Escrow Holder five (5) days following the later of the
expiration of the Contingency Period or Buyer's approval or
deemed approval of the Estoppel Certificates pursuant to Section
5.4 hereof (the "Closing Date"), or such other date prior thereto
and/or at such other location as Buyer and Seller may mutually
agree in writing. In the event the Closing Date does not fall on
a Business Day (as hereinafter defined), the Closing Date shall
be moved to the next succeeding Business Day. Such date may not
otherwise be modified without the written approval of both Seller
and Buyer. In the event the Closing does not occur on or before
the Closing Date, Escrow Holder shall, unless it is notified by
both parties to the contrary within five (5) days after the
Closing Date, return to the depositor thereof items which may
have been deposited hereunder. Any such return shall not,
however, relieve either party hereto of any liability it may have
for its wrongful failure to close.
7.2 Deliveries by Seller to Escrow Holder. Not later
than one (1) business day prior to the Closing Date, Seller shall
deposit with Escrow Holder the following:
7.2.1 The Grant Deed duly executed and
acknowledged by Seller, in recordable form, and ready for
recordation on the Closing Date;
7.2.2 An Affidavit of Non-Foreign Status in the
form of Exhibit I hereto, duly executed by Seller pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended;
7.2.3 California Form 590-RE, duly executed by
Seller;
7.2.4 The Xxxx of Sale;
7.2.5 The Assignment of Leases;
7.2.6 The Assignment of Service Contracts; and
7.2.7 Any and all other documents, instruments,
data, records, correspondence or agreements called for hereunder
which have not been previously delivered.
Buyer may waive compliance on Seller's part under any of the
foregoing items by an instrument in writing.
7.3 Deliveries by Seller Outside of Escrow. On or
before the Closing Date, Seller shall deliver or cause to be
delivered to Buyer the following:
7.3.1 To the extent they are then in
Seller's possession, and have not heretofore been delivered to
Buyer, the original and as-built plans and specifications for all
Improvements on the Property;
7.3.2 To the extent in Seller's possession,
all unexpired warranties and guarantees which Seller has received
in connection with any work or services performed with respect
to, or equipment installed in, the improvements on the Property;
7.3.3 All keys in Seller's possession
(properly tagged for identification) for all improvements on the
Property;
7.3.4 The originals of all Leases and
Estoppel Certificates (if not previously delivered), all
correspondence to or from any tenants, relating to the Leases and
all guarantees, certificates of deposit or other security
associated therewith;
7.3.5 The originals of all Service Contracts
which are being assumed by Buyer and will remain in effect after
the Closing and all correspondence and existing records prepared
by Seller in its normal course of operations specifically for the
Property (and which are not otherwise confidential) relating to,
and necessary for, the on-going operations and maintenance of the
Property (which materials may be either delivered at Closing or
left at the management office at the Property);
7.3.6 An inventory list of all Seller's personal
property, if any, on the Property; and
7.3.7 Copies of all insurance policies containing
coverage applicable to the Property, including all additional
insured endorsements in which Seller is named as an additional
insured on an insurance policy concerning the Property. For
purposes of this agreement, policies of insurance include, but
are not limited to, policies of commercial general liability,
fire, earthquake, flood, hazard, bodily injury, lost rents,
theft, condemnation, casualty loss and any umbrella policies
concerning the Property;.
Buyer may waive compliance on Seller's part under any of the
foregoing items by an instrument in writing.
7.4 Deliveries by Buyer. Not later than the Closing
Date, Buyer shall deposit with Escrow Holder the following:
7.4.1 The Purchase Price Balance, for
disbursement to Seller in accordance with the terms and
provisions hereof, to be held by Escrow Holder pursuant to joint
closing instructions reasonably acceptable to Buyer and Seller;
and
7.4.2 Any other documents, instruments, data,
records, correspondence or agreements called for hereunder which
have not previously been delivered.
Seller may waive compliance on Buyer's part under any of the
foregoing items by an instrument in writing.
7.5 Other Instruments. In addition to the documents and
instruments to be delivered as herein provided, each of the
parties hereto shall, from time to time at the request of the
other party, execute and deliver to the other party such other
instruments of transfer, conveyance and assignment and shall take
such other action as may be reasonably required to effectively
carry out the terms of this Agreement.
7.6 Prorations. All revenues, income, receivables,
costs, expenses and payables of the Property shall be apportioned
equitably between the parties as of Closing on the basis of the
actual number of days in a particular month, and with respect to
the items enumerated below where a particular manner of
apportionment is provided, then apportionment of such item shall
be made in such manner. The obligation to make apportionments
shall survive Closing. Without limitation, the following items
shall be so apportioned:
(i) Monthly rents and percentage rent and
"passthroughs" of real estate taxes and operating expenses due
from occupancy tenants under Leases, as and when collected. If
at Closing there are any past due rents or charges owed by
occupancy tenants, they shall not be prorated until received;
Buyer shall include such delinquencies in its normal billing and
shall pursue the collection thereof in good faith after the
Closing Date (but Buyer shall not be required to litigate or
declare a default in any Lease). To the extent Buyer receives
amounts on account of Leases on or after the Closing Date, such
payments shall be applied first toward then current rent owed to
Buyer in connection with the applicable Lease for which such
payments are received, and any excess monies received shall be
applied toward the payment of any delinquent rents, with Seller's
share thereof being promptly delivered to Seller. Buyer may not
waive any delinquent rents nor modify a Lease so as to reduce or
otherwise affect amounts owed thereunder for any period in which
Seller is entitled to receive its share of charges or amounts
without first obtaining Seller's written consent. Seller hereby
reserves the right to pursue any remedy against any tenant owing
delinquent rents and any other amounts to Seller. Buyer shall
reasonably cooperate with Seller in any collection efforts
hereunder (but shall not be required to litigate or declare a
default in any Lease). With respect to delinquent rents and any
other amounts or other rights of any kind respecting tenants who
are no longer tenants of the Property as of the Closing Date,
Seller shall retain all rights relating thereto;
(ii) Real estate and personal property taxes and any
special assessments, taking into consideration discounts for the
earliest permitted payment, based upon the latest previous tax
levies. Such items shall be reapportioned between Seller and
Buyer if current tax rates differ from the latest previous tax
rates as soon as the same are known. Seller agrees that to the
extent any additional taxes, assessments or levies are imposed,
assessed or levied against the Property, or any portion thereof,
subsequent to Closing, relating to the period prior to the
Closing, Seller shall promptly pay to Buyer an amount equal to
such additional assessments or levies. Similarly, if tax refunds
become payable for periods during Seller's ownership of the
Property, such amounts (subject to adjustments for the potential
claims of occupancy tenants that paid tax increases by way of
rent escalations to Seller) shall be promptly paid over to
Seller. In the event that any assessments on the Property are
payable in installments, then the installment for the current
period shall be prorated (with Buyer assuming the obligation to
pay any installment due after the Closing Date). In no event
shall Seller be charged with or be responsible for any increase
in the taxes on the Property resulting from the sale of the
Property or from any improvements made or lease entered into on
or after the Closing Date;
(iii) Transferable annual permits, licenses, and/or
inspection fees, if any, on the basis of the duration of the
same;
(iv) Security deposits in Seller's possession, plus
accrued interest, if any, payable thereon to tenants, and any
other deposits and prepaid rent, shall be credited (or assigned)
to Buyer;
(v) Utility charges levied against Seller or the
Property, and Buyer shall transfer all such utility services to
its name and account immediately upon Closing;
(vi) Service Contracts on the basis of the charge or
premium for the period involved;
(vii) All forms of rent concessions, including free
rent, reduced rent and other concessions or obligations under all
Leases for any period following the Closing shall be credited to
Buyer against the Purchase Price at Closing; and
(viii) All other operation expenses incurred in the
management and operation of the Property.
No insurance policies shall be assigned hereunder, and
accordingly there shall be no proration of insurance premiums.
7.7 Costs and Expenses. Buyer and Seller shall each
pay one-half (1/2) of Escrow Holder's escrow fee. Seller shall
pay all documentary transfer taxes, transfer or conveyance taxes
imposed by the City and/or County in which the Property is
located. Seller shall pay any and all delinquent real property
taxes or assessments, and the cost of recording the Grant Deed.
Seller shall pay the cost of the Title Policy, including the
Endorsements with liability in the amount of the Purchase Price.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF SELLER
As a material inducement to Buyer to enter into this
Agreement, Seller hereby represents and warrants to and agrees
with Buyer as follows:
7.1 Condition of Property. Except as disclosed to
Buyer by Seller in writing, to the best of Seller's knowledge,
without inquiry, there are now, and at the Closing Date there
will be, no material physical or mechanical defects of the
Property, including, without limitation, the plumbing, heating,
air conditioning, ventilating, life safety and electrical
systems, and all such items are in good operating condition and
repair.
8.2 Use and Operation. To the best of Seller's
knowledge, without inquiry, the use and operation of the Property
now are, and at the time of Closing will be, in full compliance
with applicable building codes, environmental, zoning and land
use laws, and other applicable local, state and federal laws,
ordinances, regulations and requirements.
8.3 Reports, Contracts and Other Documents. To the
best of Seller's knowledge, without inquiry, the survey,
mechanical and structural plans and specifications, soil reports,
certificates of occupancy, warranties, and all other books and
records relating to or affecting the Property and all other
contracts or documents delivered to Buyer pursuant to this
Agreement or in connection with the execution hereof, including,
without limitation, the Reports and Documents, are and at the
time of Closing will be true and correct copies, and all such
contracts and other documents relating to or affecting the
Property have been delivered to Buyer pursuant to this Agreement.
8.4 Condemnation; Land-Use Regulation. To the best of
Seller's knowledge, there are no condemnation, environmental,
zoning or other land-use regulation proceedings, either
instituted or planned to be instituted, which could detrimentally
affect the use or operation of the Property for its intended
purpose or the value of the Property, nor has Seller received
notice of any special assessment proceedings affecting the
Property.
8.5 Leases. Except as set forth on Exhibit B, Seller
has not executed or otherwise entered into any written or
unwritten leases, tenancies, occupancy agreements, or other
agreements with respect to the Property or affecting possession
thereof or any portion thereof or any rights thereto and there
are no such agreements entered into or executed by any third
party. There is no default on the part of Seller, as lessor, or,
except as described on Schedule hereto, on the part of any
lessee, and there exists no condition that with the passage of
time or the giving of notice or both would constitute such a
default. No event or transaction contemplated by this Agreement
will conflict with, violate any provision of, or constitute a
default under (with or without the giving of notice and/or the
lapse of time) any of the Leases. Except as disclosed on
Schedule , there is no conflict between the rights of tenants to
space in the Improvements, nor is any conflict between the terms
of this Agreement and any Lease, whether by original leasing,
options to extend, expand or renew, rights of first refusal, or
otherwise.
8.6 Service Contracts, Mechanic's Liens and Other
Agreements. Other than those which are cancelable on thirty (30)
day's notice, Seller has not entered into any service agreements
or contracts or other agreements, oral or written (other than as
set forth in this Agreement) relating to the Property which will
be in force on the Closing Date, except as disclosed on Schedule
hereto, and Seller has not received any notice of any material
default thereunder that remains uncured. Seller shall provide
Buyer with true, correct and complete copies of all agreements
listed on Schedule pursuant to Section hereof.
8.7 Brokerage Commissions. To the best knowledge of
Seller, without inquiry, there are no commissions, finder's fees
or other compensation owing or which may become owing to any
broker or any other person or entity with respect to any tenant
lease or occupancy agreement including, without limitation, any
such compensation with respect to any future renewals, extensions
or expansions thereof.
8.8 Labor Disputes. To the best knowledge of Seller,
without inquiry, there is no current labor dispute with any
maintenance or other personnel or employees of Seller or any
contracts with respect to the Property which could adversely
affect the use, operation or value of the Property.
8.9 Absence of Other Agreements Affecting the
Property. To the best knowledge of Seller, without inquiry,
there are no easements, encumbrances or other agreements
affecting the Property except as may be shown in the Preliminary
Title Report and Survey.
8.10 Default in Respect of Appurtenances. To the best
of Seller's knowledge, without inquiry, there is no default under
or in respect of any of the Appurtenances on the part of any
party thereto and no condition exists that with the passage of
time or giving of notice or both would constitute such a default.
8.11 Litigation. There is no litigation pending or, to
Seller's knowledge threatened, against Seller that arises out of
the ownership or operation of the Property or that might
detrimentally affect the use or operation of the Property for its
intended purpose or the value of the Property or is likely to
materially and adversely affect the ability of Seller to perform
its obligations under this Agreement.
8.12 Utilities. To the best of Seller's knowledge,
without inquiry, all water, sewer, gas, electric, telephone, and
drainage facilities and all other utilities required by law or by
the normal use and operation of the Property are, and at the time
of Closing will be, connected and operating pursuant to valid
permits, and are and at the time of Closing will be adequate to
service the Property and to permit full compliance with all
requirements of law and normal usage of the Property by the
tenants thereof and their licensees and invitees.
8.13 Use Permits and Other Approvals. To the best of
Seller's knowledge, without inquiry, Seller has obtained all
licenses, permits and approvals required from all governmental
authorities having jurisdiction over the Property or from private
parties for the normal use and operation of the Property.
8.14 Authority of Seller. This Agreement and all
documents executed by Seller which are to be delivered to Buyer
at or prior to the Closing are or at the time of Closing will be
duly authorized, executed, and delivered by Seller, are or at the
time of Closing will be legal, valid, and binding obligations of
Seller enforceable in accordance with their terms, and are and
at the time of Closing will be sufficient to convey title (if
they purport to do so).
8.15 No Conflict. To the best of Seller's knowledge,
without inquiry, the execution and delivery of this Agreement,
the consummation of the transactions herein contemplated, and
compliance with the terms of this Agreement shall not conflict
with or result in a breach of any of the terms of provisions of,
or constitute a default under, any instrument or agreement to
which Seller is a party or, to Seller's knowledge, by which any
of the Property is or may be bound, or any applicable regulation
of any governmental agency, or any judgment, order or decree of
any court having jurisdiction over Seller or, to Seller's
knowledge, the Property.
8.16 Use and Operation of Property. Seller knows of no
facts nor has Seller failed to disclose to Buyer any fact which
would prevent Buyer from using, leasing and operating the
Property after Closing in the normal manner in which similar
properties in the area are used, operated and leased or in the
manner in which the Property has been used, leased and operated
prior to the Closing Date.
8.17 Other Contracts to Convey Property. Seller has
not legally committed nor obligated itself in any manner
whatsoever to sell the Property to any party other than Buyer.
8.18 Hazardous Substances and Environmental Matters.
Neither Seller, nor to the best knowledge of Seller, any other
person or entity, has ever used, generated, manufactured,
produced, stored, released, discharged or disposed of on, under
or about the Property, or transported to or form the Property any
Hazardous Substance (as hereinafter defined) or allowed any other
person or entity to do so. To the best knowledge of Seller,
without inquiry, no proceeding or inquiry by any governmental
authority with respect to the presence of any Hazardous Substance
on the Property or the migration thereof from or to other
property is pending or threatened, nor have any claims been made
or threatened by any third party against Seller or the Property
relating to any loss or injury resulting form any Hazardous
Substance. In addition, there is no occurrence or condition on
any real property adjoining or in the vicinity of the Property
that could cause the Property or any part thereof to be subject
to any restrictions on the ownership, occupancy, transferability
or use of the Property under any Environmental Law (as
hereinafter defined). The term "Environmental Law" shall
include, without limitation, any federal, state or local law,
statute, ordinance or regulation pertaining to health, industrial
hygiene or the environment (collectively referred to as
"Environmental Laws"), including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA") as amended, 42 U.S.C. Sections 9601 et
seq., and the Resource Conservation and Recovery Act of 1976
("RCRA") as amended, 42 U.S.C. Sections 9601 et seq. The term
"Hazardous Substance" shall include, without limitation, (i)
those substances included within the definitions "hazardous
substances," "hazardous materials," "toxic substances," or "solid
waste" in CERCLA, RCRA and the Hazardous Materials Transportation
Act, 49 U.S.C. Sections 1801 et seq., as amended, and in the
regulations promulgated pursuant to said laws; (ii) those
substances defined as "hazardous wastes" in Section 25117 of the
California Health & California Health & Safety Code, or as
"hazardous substances" in Section 25316 of the California Health
& Safety Code, and in the regulations promulgated pursuant to
said laws; (iii) those substances listed in the United States
Department of Transportation Table (49 CFR 172.101 and amendments
thereto) or by the Environmental Protection Agency (or any
successor agency) as hazardous substances (40 CFR Part 302 and
amendments thereto); and (iv) such other substances, materials,
and wastes which are or become regulated under applicable local,
state or federal law, or which are classified as hazardous or
toxic under local, state or federal law, rules or regulations.
8.19 Transactions with Affiliates. Except as disclosed
on Schedule hereto, there are no agreements between Seller and
any Affiliate (as hereinafter defined) of Seller respecting the
Property, including the use, operation and maintenance thereof.
Without limiting the foregoing, there are no Leases, Service
Contracts, or brokerage agreements between Seller and any
Affiliate of Seller respecting the Property or any portion
thereof except as disclosed on Schedule . As used herein
"Affiliate" shall mean and refer to any entity which controls, is
controlled by, or is under common control with Seller.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF BUYER
As a material inducement to Seller to enter into this
Agreement, Buyer hereby represents and warrants to and agrees
with Seller as follows:
9.1 Authority of Buyer. This Agreement and all documents
executed by Buyer which are to be delivered to Seller at or prior
to the Closing are or at the time of Closing will be duly
authorized, executed, and delivered by Buyer, are or at the time
of Closing will be legal, valid, and binding obligations of Buyer
enforceable in accordance with their terms.
9.2 Litigation. There is no litigation pending or, to
Buyer's knowledge threatened, against Buyer that is likely to
materially and adversely affect the ability of Buyer to perform
its obligations under this Agreement.
9.3 No Conflict. The execution and delivery of this
Agreement, the consummation of the transactions herein
contemplated, and compliance with the terms of this Agreement
shall not conflict with or result in a breach of any of the terms
of provisions of, or constitute a default under, any instrument
or agreement to which Buyer is a party or any applicable
regulation of any governmental agency, or any judgment, order or
decree of any court having jurisdiction over Buyer.
ARTICLE 10
COVENANTS OF SELLER
Seller agrees and covenants with Buyer, from the date hereof
through the Closing Date, as follows:
10.1 Maintenance and Operation of the Property. Seller
shall maintain the Property in good order, condition and repair,
reasonable wear and tear excepted, and shall make all repairs,
maintenance and replacements as is necessary to so maintain the
Property as it is currently operated.
10.2 No Leases or Other Contracts. Seller shall not enter
into, modify or terminate any leases, service contracts or other
similar agreements with respect to the Property, or take any
other actions affecting the Property (other than in the ordinary
course of ownership) without the prior written consent of Buyer,
which shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, Buyer will have the right to
market the Property for lease.
10.3 No Other Encumbrances. Seller shall not enter into
any agreements respecting the sale of the Property or any portion
thereof, and shall not enter into any agreements which encumber
or subject to lien the Property or any portion thereof.
10.4 Insurance. Seller shall keep its existing policies
of insurance in full force and effect.
10.5 Disclosure of Changes. If Seller discovers any
information or facts which would materially or adversely change
the representations and warranties of Seller contained in this
Agreement, Seller shall promptly give notice to Buyer of such
information or facts.
ARTICLE 11
DAMAGE OR DESTRUCTION; CONDEMNATION
In the event that, after the date hereof but prior to the
Closing Date, either any portion of the Property is taken
pursuant to eminent domain proceedings or any of the improvements
on the Property are damaged or destroyed by any casualty, Seller
shall have no obligation to repair or replace any such damage or
destruction. Seller shall, upon consummation of the transaction
herein provided, assign to Buyer all claims of Seller respecting
any condemnation or casualty insurance coverage, as applicable,
and all condemnation proceeds or proceeds from any such casualty
insurance received by Seller on account of any casualty (the
damage from which shall not have been repaired by Seller prior to
the Closing Date) as applicable, and Seller shall give Buyer a
credit equal to the deductible portion of Seller's insurance
policy attributable to the Property. In the event (i) the
condemnation award shall equal or exceed One Hundred Thousand and
No/100 Dollars ($100,000.00) or otherwise materially and
adversely affect the Property, as reasonably determined by Buyer,
or (ii) the cost of repair of damage to the Property on account
of a casualty, shall equal or exceed One Hundred Thousand and
No/100 Dollars ($100,000.00) or otherwise materially and
adversely interfere with the operations of the Property, as
reasonably determined by Buyer, Buyer may, at its option,
terminate this Agreement by notice to Seller, given on or before
the Closing Date, in which event this Agreement shall terminate,
the Deposit, together with all interest earned thereon, shall be
returned to Buyer, and each party shall be relieved of all
further obligations hereunder.
ARTICLE 12
DELIVERY OF POSSESSION AND ENTRY ON PROPERTY
12.1 Delivery of Possession. Possession of the Property
shall be delivered to Buyer on the Closing Date.
12.2 Entry on Property. From the date hereof until the
Closing, Seller shall afford Buyer reasonable access to the
Property during normal business hours for the purpose of
conducting Buyer's Inspections. Buyer agrees to keep the
Property free and clear of any mechanic's liens or other liens in
connection with Buyer's Inspections and Reports, and Buyer agrees
to indemnify, defend and hold Seller harmless from and against
any and all liability, loss, cost, damage and/or expense,
including, without limitation, reasonable attorneys' fees and
costs, resulting directly from Buyer's entry onto the Property.
ARTICLE 13
INDEMNIFICATION
13.1 Indemnification by Seller. Seller hereby agrees,
for a period of one (1) year following the Closing Date, to
indemnify Buyer and hold Buyer harmless from and against any and
all claims, demands and losses, including, without limitation,
reasonable attorneys' fees and costs suffered by Buyer as a
direct or indirect result of:
(a) Any misrepresentation or breach of warranty or
breach of covenant made by Seller in this Agreement or any
document, certificate, or exhibit given by Seller or delivered by
Seller to Buyer pursuant to or in connection with this Agreement;
and
(b) Any and all obligations, liabilities, claims,
liens or encumbrances, whether direct, contingent or
consequential and no matter how arising, and in any way related
to the Property and arising or accruing on or before the Closing
Date, or in any way related to or arising from any act, conduct,
omission, contract or commitment of Seller (or any of its agents
or employees) at any time or times on or before the Closing Date.
13.2 Indemnification by Buyer. Buyer hereby agrees,
for a period of one (1) year following the Closing Date, to
indemnify Seller and hold Seller harmless from and against any
and all claims, demands liabilities, liens, costs, expenses,
penalties, damages and losses, including, without limitation,
reasonable attorneys' fees and costs suffered by Seller as a
direct or indirect result of:
(a) Any misrepresentation or breach of warranty or
breach of covenant made by Buyer in this Agreement or any
document, certificate, or exhibit given by Buyer or delivered by
Buyer to Seller pursuant to or in connection with this Agreement;
and
(b) Any and all obligations, liabilities, claims,
liens or encumbrances, whether direct, contingent or
consequential and no matter how arising, and in any way related
to the Property and arising or accruing after the Closing Date,
or in any way related to or arising from any act, conduct,
omission, contract or commitment of Buyer (or any of its agents
or employees) at any time or times after the Closing Date.
13.3 Warranty and Indemnity Regarding Estoppels. If
Seller has failed to deliver to Buyer any estoppel certificates
required to be delivered pursuant to Section hereof on or before
the Closing Date and Buyer nevertheless elects to close the
transaction, Seller shall indemnify Buyer with respect to any
claim made by any tenant or other party which is based upon facts
not consistent with the representations and warranties of Seller
herein or set forth on the respective unmodified form of estoppel
certificate to have been provided by such tenant.
The provisions of this Article shall survive the execution
and delivery of this Agreement, the delivery of the Grant Deed
and transfer of title.
ARTICLE 14
MISCELLANEOUS
14.1 Notices. Any notice or other communication
required or permitted to be given under this Agreement shall be
in writing and sent by commercial courier service, United States
mail, registered or certified mail, postage prepaid, return
receipt requested, and addressed as follows:
If to Buyer: Arden Realty Limited Partnership
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxx, Director of
Acquisitions
with a copy to: Christensen, Miller, Fink, Jacobs,
Xxxxxx, Weil & Xxxxxxx, LLP
2121 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
Fax No. (000) 000-0000
If to Seller: PDG Rancho Xxxxxxxx, Ltd.
0000 Xxxxxxxxx Xxx, Xxxxx 0000
Xx Xxxxx, Xxxxxxxxxx 00000
Attn: Skip Xxxxxxxx
with a copy to: Xxxx, Xxxxxx & Roeper
000 "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
If to Escrow Holder: Chicago Title Insurance Company
________________________________
________________________________
________________________________
Attn: _________________________
If to the Title Company: Chicago Title Insurance Company
________________________________
________________________________
________________________________
Attn: __________________________
or such other address as either party may from time to time
specify in writing to the other in the manner aforesaid. If
personally delivered, such notices or other communications shall
be deemed delivered upon delivery. If sent by commercial courier
service, United States mail, registered or certified mail,
postage prepaid, return receipt requested, such notices or other
communications shall be deemed delivered upon delivery or refusal
to accept delivery as indicated on the return receipt.
14.2 Brokers and Finders. In connection with the
transactions contemplated by this Agreement (a) Seller hereby
represents and warrants to Buyer that Seller has not, and shall
not, incur any obligation to any third party for the payment of
any broker's fee, finder's fee, commission or other similar
compensation, other than to CB Commercial Real Estate Group,
Inc. and (b) Buyer hereby represents and warrants to Seller that
Buyer has not, and shall not, incur any obligation to any third
party for the payment of any broker's fee, finder's fee,
commission or other similar compensation. In the event of a claim
for broker's fee, finder's fee, commission or other similar
compensation in connection herewith, Buyer, if such claims is
based upon any agreement alleged to have been made by Buyer,
hereby agrees to indemnify and hold Seller harmless from and
against any and all liability, loss, cost, damage and/or expense
(including, without limitation, reasonable attorneys' fees and
expenses) which Seller may sustain or incur by reason of such
claim, and Seller, if such claims is based upon any agreement
alleged to have been made by Seller, hereby agrees to indemnify
and hold Buyer harmless from and against any and all liability,
loss, cost, damage and/or expense (including, without limitation,
reasonable attorneys' fees and expenses) which Buyer may sustain
or incur by reason of such claim. The provisions of this Section
shall survive the Closing.
14.3 Successors and Assigns. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereof and
their respective successors, heirs, administrators and assigns;
provided, however, that Buyer shall provide Seller with notice of
any assignment of its rights or obligations under this Agreement,
and such assignee of Buyer shall assume the obligations of Buyer
under this Agreement in writing.
14.4 Amendments. This Agreement may be amended or
modified only by a written instrument executed by the parties
hereto.
14.5 Continuation and Survival of Representations and
Warranties. All representations and warranties by the respective
parties contained herein or made in writing pursuant to this
Agreement are intended to be and shall remain true and correct as
of the time of Closing, shall be deemed to be material, and shall
survive the execution and delivery of this Agreement, and the
execution and delivery of the Grant Deed and the transfer of
title to the Property for a period of one (1) year following the
Closing Date.
14.6 Interpretation. Whenever used herein, the term
"including" shall be deemed to be followed by the words "without
limitation." Words used in the singular number shall include
the plural, and vice-versa, and any gender shall be deemed to
include each other gender.
14.7 Captions. The captions and headings of the
Articles and Sections of this Agreement are for convenience of
reference only, and shall not be deemed to define or limit the
provisions hereof.
14.8 Governing Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the
State of California, without regard to conflicts of law
principles.
14.9 Merger of Prior Agreements. This Agreement,
including the exhibits and schedules hereto, constitutes the
entire agreement between the parties with respect to the purchase
and sale of the Property and supersedes all prior agreements and
understandings between the parties hereto relating to the subject
matter hereof.
14.10 Attorneys' Fees. In the event either Buyer or Seller
brings any suit or other proceeding with respect to the subject
matter or enforcement of this Agreement, the prevailing party (as
determined by the court, agency or other authority before which
such suit or proceeding is commenced) shall, in addition to such
other relief as may be awarded, be entitled to recover reasonable
attorneys' fees, expenses and costs of investigation as actually
incurred (including, without limitation, attorneys' fees,
expenses and costs of investigation incurred in appellate
proceedings, costs incurred in establishing the right to
indemnification, or in any action or participation in, or in
connection with, any case or proceeding under Chapter 7, 11 or 13
of the Bankruptcy Xxxx, 00 Xxxxxx Xxxxxx Code Sections 101 et
seq., or any successor statutes).
14.11 Time of the Essence. Time is of the essence of this
Agreement.
14.12 Election of Remedies. Except as otherwise
specifically provided herein to the contrary in Section hereof,
no right or remedy conferred upon either party in this Agreement
is intended to be exclusive of any other right or remedy
contained herein or now or hereafter available to either part at
law or in equity, and every such right and remedy shall be
cumulative and shall be in addition be every other right or
remedy contained in this Agreement or now or hereafter available
to either party at law or in equity.
14.13 Authority. The parties signing below represent and
warrant that they have the requisite authority to bind the
entities on whose behalf they are signing.
14.14 Exhibits. The exhibits and schedules attached hereto
are hereby incorporated by reference herein.
14.15 Severability. The invalidity or unenforceability of
any one or more of the provisions of this Agreement shall not
affect the validity or enforceability of any of the other
provisions of this Agreement.
14.16 Further Assurances. The parties hereto agree to
execute, acknowledge and deliver any and all additional papers,
documents and other assurances and shall perform any and all acts
and things reasonably necessary in connection with the
performance of the obligations hereunder and to carry out the
intent of the parties hereto.
14.17 Effect of Waiver. A waiver by either party hereto
shall not affect either party's right to enforce the provisions
contained herein, nor shall nay extension or waiver be held to be
an extension of time or waiver of any prior or subsequent breach
of the same or any other obligation under this Agreement.
14.18 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
14.19 No Third Parties Benefitted. This Agreement is made
and entered into solely for the benefit of Seller and Buyer,
their successors and assigns, and no other person or entity shall
have any rights hereunder.
14.20 Specific Performance. The parties understand and
agree that the Property is unique and for that reason, among
others, Buyer will be irreparably damaged in the event that this
Agreement is not specifically enforced. Accordingly, in the
event of any breach or default in or of this Agreement or any of
the warranties, terms or provisions hereof by Seller, Buyer shall
have, in addition to a claim for damages for such breach or
default, and in addition and without prejudice to any right or
remedy available at law or in equity, the right to demand and
have specific performance of this Agreement.
14.21 Memorandum of Agreement. Concurrently with the
execution of this Agreement, Seller shall execute, acknowledge
and deliver to Buyer a Memorandum of Agreement in the form of
Exhibit J hereto, which Buyer may record in the appropriate
records of the County in which the Property is situated.
14.22 Business Day. As used herein, Business Day shall
mean and refer to any day in which banking institutions are open
for business and the County Recorder's Office of San Diego
County, California is accepting documents for recordation in
their real estate records.
14.23 Furnishing of Audit Letter. Seller agrees to
furnish, from time to time upon the request of Buyer, an Audit
Letter substantially in the form of Exhibit K hereto, to Buyer's
accountants.
14.24 Arbitration. ANY CONTROVERSY OR CLAIM ARISING
UNDER OR RELATING TO THE TERMS OF THIS AGREEMENT OR ANY OF THE
EXHIBITS ATTACHED TO IT, AND ANY PROCEEDINGS TO ENFORCE THIS
AGREEMENT OR RIGHTS UNDER THIS AGREEMENT AND ITS EXHIBITS OTHER
THAN THE "EXCLUDED MATTERS" (AS HEREINAFTER DEFINED) SHALL BE
SETTLED BY ARBITRATION IN THE CITY OF SAN DIEGO IN ACCORDANCE
WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION. THE ARBITRATOR(S) SHALL HAVE THE RIGHT TO DETERMINE
THE SCOPE OF THEIR JURISDICTION AND GRANT EQUITABLE RELIEF,
INCLUDING, WITHOUT LIMITATION, THE RIGHT TO ORDER THE EXPUNGEMENT
OF ANY LIS PENDENS WHICH THE ARBITRATOR(S) DEEM IMPROPER. THE
PREVAILING PARTY SHALL BE ENTITLED TO REASONABLE ATTORNEYS' FEES
AND OTHER REASONABLE COSTS INCURRED IN CONNECTION WITH THE
ARBITRATION OR ANY OTHER LITIGATION PLUS INTEREST ON THE AMOUNT
OF ANY AWARD. JUDGMENT UPON THE AWARD RENDERED BY THE
ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION
THEREOF. THIS PARAGRAPH MUST BE INITIALED BELOW IN ORDER FOR
THIS PARAGRAPH OF THE AGREEMENT TO BE BINDING.
NOTICE: BY INITIALLING IN THE SPACE BELOW, YOU
ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE
MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW, AND YOU ARE GIVING UP ANY RIGHTS YOU
MIGHT POSSESS TO HAVE THE DISPUTE LITIGATION IN A COURT
OR JURY TRIAL. BY INITIALLING IN THE SPACE BELOW, YOU
ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND
APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN
THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.
YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS
VOLUNTARY. WE HAVE READ AND UNDERSTAND THE FOREGOING
AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS
INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO
NEUTRAL ARBITRATION.
/s/ WPT /s/ VJC
Seller's Initials Buyer's Initials
As used herein, "Excluded Matters" means any controversy,
claim or proceeding with respect to or otherwise related to a
breach or default of any representation or warranty contained in
this Agreement (which matters shall not be subject to the
arbitration provisions contained herein).
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
Seller: PDG Rancho Xxxxxxxx, Ltd.,
a California limited partnership
By: Pacific Diversified Group, LLC
a California limited liability company
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Its: Manager
Buyer: ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: ARDEN REALTY, INC.,
a Maryland corporation
Its: General Partner
By:/s/ Xxxxxx X. Xxxxxxx
Its: President and COO
